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State v. Celestine

Court of Appeals of Louisiana, Third Circuit

October 2, 2019

STATE OF LOUISIANA
v.
WILL ANTONIO CELESTINE

          APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF CALCASIEU, NO. 20529-17 HONORABLE G. MICHAEL CANADAY, DISTRICT JUDGE

          John Foster DeRosier, District Attorney Fourteenth Judicial District Court COUNSEL FOR APPELLEE: State of Louisiana

          Mary Constance Hanes COUNSEL FOR DEFENDANT/APPELLANT: Will Antonio Celestine

          Jeffrey M. Landry, Attorney General J. Taylor Gray, Assistant Attorney General COUNSEL FOR OTHER APPELLEE: Attorney General of the State of Louisiana

          Court composed of Ulysses Gene Thibodeaux, Chief Judge, Billy Howard Ezell, and John E. Conery, Judges.

          BILLY HOWARD EZELL, JUDGE

         Defendant, Will Antonio Celestine, was charged by bill of information filed on November 17, 2017, as a fourth habitual offender, a violation of La.R.S. 15:529.1. On January 8, 2018, Defendant was adjudicated a fourth felony offender for the offense of attempted illegal use of a weapon, a violation of La.R.S. 14:27 and La.R.S. 14:94, and sentenced to life imprisonment without benefit of probation, parole, or suspension of sentence.

         On July 27, 2018, Defendant filed a "Notice of Appeal" and "Motion for Appeal." The motion for appeal was granted. Defendant is now before this court asserting trial counsel rendered ineffective assistance at sentencing for failing to file a motion to reconsider and/or request a downward departure from the sentence of life without parole for attempted illegal use of a weapon. He also alleges his life sentence is excessive.

         FACTS

         Defendant was convicted of attempted illegal use of a weapon in trial court docket number 16636-15 on November 15, 2017, and was subsequently adjudicated and sentenced as a habitual offender in trial court docket number 20529-17. The underlying offense occurred on May 16, 2015.

         ERRORS PATENT

         In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find no errors patent.

         ASSIGNMENTS OF ERROR NUMBERS ONE AND TWO

         In his first assignment of error, Defendant contends trial counsel rendered ineffective assistance at sentencing because he failed to file a motion to reconsider Defendant's sentence and/or seek a downward departure from the mandatory life sentence, which is to be served without benefit of parole. In his second assignment of error, Defendant contends his sentence is excessive. Inasmuch as these two assignments of error pertain to Defendant's sentence, we will address them collectively.

         At the habitual offender hearing, the State set forth Defendant's prior convictions as follows:

16636-15 is the incident conviction wherein he was convicted of one count attempted illegal use of [a] dangerous instrumentality, one count of firearm by a felon, one count of unauthorized entry of an inhabited dwelling. That conviction was on November 16th, 2017.
26093-13 was one count of obscenity wherein he was sentenced to one year parish prison on February 26th, 2014.
And 39274-11 that was one count of attempted possession of a firearm by a convicted felon, and he was sentenced to six years department of corrections on February 26th, 2014.
14206-09 was one count of theft over $500 wherein he was sentenced to five years DOC. That was suspended. He was placed on five years active supervised probation on November 3rd, 2009. That probation was revoked on October 28th, 2011. He was ordered to serve the original five years DOC sentence.
In 16851-07 it was one count of attempted simple escape. He was sentenced to serve three months parish prison on January 28th, 2008.
In 6669-07 was one count of theft over [$]500. He was sentenced to four years DOC on January 28th, 2008.
In 10648-05 was one count of possession with intent to distribute CDS II. He was sentenced to four years department of corrections, suspended, three years active supervised probation wherein on November 17th, 2005, that probation was also revoked on January 28th, 2008. He was ordered to serve four years DOC.
In 17264-05 one count of aggravated flight wherein he was sentenced to one year DOC. It was suspended. He was placed on three years active supervised probation. He was also convicted on -- in that matter of illegal possession of stolen things over [$]500. He was sentenced in that matter to four years DOC. It was suspended. He was placed on two years active supervised probation. All of that occurred on March 9th, 2005.
He was also revoked on January 28th, 2008, and sentenced to serve four years department of corrections and one year department of corrections concurrent on January 28th, 2008.

         Defendant was then adjudicated a fourth felony offender.

         The State subsequently called Don Dixon, the Lake Charles Chief of Police, to testify. Chief Dixon testified he had dealt with Defendant for sixteen years.[1] He discussed Defendant's escape from "JDC," indicating a manhunt ensued. Chief Dixon considered Defendant to be "the No. 1 menace to society since [he'd] been chief of police . . . ." According to Chief Dixon, Defendant's last arrest cost $36, 983.75 in overtime pay. Additionally, Defendant had thirty-eight criminal files with law enforcement agencies.

         Thereafter, the trial court stated it did not see any reason to address the sentencing guidelines because the penalty was mandatory. After the State indicated the trial court should address the sentencing guidelines, the court discussed them as follows:

It says, when the defendant has been convicted of a felony, the court shall impose a sentence of incarceration if any of the following occurs:
There's an undue risk during a period of a suspended sentence he would commit another crime.
Historically it has been established that he has been convicted of offenses as well as charged with a number of offenses. The court answers that in the affirmative based on the totality of what has been presented here today.
Is he in need of correctional treatment or custodial environment that can [be] provide[d] most effectively by his commitment to an institution?
Again, with the totality of the CDS significant charges as well as his failed opportunities on probation and the recent conviction for a violent offense and the prior conviction of a violent offense, the court would find that he is definitely in need of custodial commitment.
Would any lesser sentence deprecate the seriousness of the crime?
As indicated from the totality, the court would answer that also in the affirmative because of his history, crimes of violence and habitual involvement with the criminal justice system.
In looking at this application of aggravating or mitigating, offences [sic] that are considered violent, I would find that those --that conduct manifests direct cruelty to victims, should know that the victims are particularly vulnerable or incapable of resistance, offenses in which it has appeared that he has used weapons or attempted to use weapons, indicate that he is more familiar with those individuals that they were aimed at. The court cannot say it was extreme youth-advanced age, disability, or ill-health, but whether they were --regardless if they were not armed and he was and went after those individuals. That would be significant.
Has he offered or received something of valve [sic] for the commission?
I have thefts over [$]500 on occasion, which would indicate that's also in the affirmative.
Has he used his position to facilitate the commission?
The court does not have any information with regard to that. Has he created risk of death or great bodily harm to more than one person?
That's clear from the one case that the court was familiar with, the jury trial, in which a number of people were outside a residential area in which the crime for which he was -- attempted illegal use or possession of dangerous weapons as found by the jury, noting also that there were bullets found; and some testimony indicated that firearms was [sic] shot. However, he was only found guilty of attempted ...

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