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State v. Duncan

Court of Appeals of Louisiana, Second Circuit

January 15, 2020

STATE OF LOUISIANA Appellee
v.
DERRICK DUNCAN Appellant

          Appealed from the First Judicial District Court for the Parish of Caddo, Louisiana Trial Court No. 205764 Honorable John D. Mosely, Jr., Judge

          LOUISIANA APPELLATE PROJECT By: Carey J. Ellis, III Counsel for Appellant

          JAMES E. STEWART, SR. District Attorney Counsel for Appellee

          TRENEISHA JACKSON HILL CHARLES KENNETH PARR Assistant District Attorneys

          Before STONE, COX, and STEPHENS, JJ.

          STONE, J.

         The defendant, Derrick Duncan, was convicted upon jury trial of attempted armed robbery. He was subsequently adjudicated a third-felony habitual offender and sentenced to life imprisonment without the benefit of probation, parole, or suspension of sentence. Duncan's conviction and sentence were affirmed on appeal in an unpublished opinion. State v. Duncan, 34, 933 (La.App. 2 Cir. 12/28/01), 810 So.2d 584, writ denied, 02-0447 (La. 1/24/03), 836 So.2d 37. This appeal is from a subsequent resentencing pursuant to State ex rel. Esteen v. State, 16-0949 (La. 1/30/18), 239 So.3d 233, wherein Duncan was resentenced to 40 years at hard labor. For the following reasons, we affirm Duncan's sentence.[1]

         FACTS

         On December 10, 1999, David Graham was in his bedroom when he heard a noise. When he walked out of his bedroom, he was confronted by two men, each of whom had a gun. Both men had on masks and were dressed in dark clothing. They demanded money from Mr. Graham, but he told them that he did not have any. Mr. Graham then began to yell and walk toward his son's house, which was next door. The two men followed Mr. Graham into the backyard and three shots were fired, one of which struck Mr. Graham. Mr. Graham tried to flee, but one of the men caught him and began "frisking" him.

         Josylin Bryant, Mr. Graham's daughter who lived in a neighboring house, heard the commotion and went outside to investigate. The man who was "frisking" her father ran toward her while carrying a small revolver. She picked up a brick and threw it at him. The man then shot at Ms. Bryant, but missed. Ms. Bryant proceeded to chase the man; however, she could not catch him, so she got into her vehicle and attempted to run over him. As she drove her car after the man, she saw that he had been joined by another person dressed in dark clothes and a ski mask. When the two men jumped into a ditch to avoid being run over, one of them took off his mask, which enabled Ms. Bryant to later identify him as Antonio Deshaun Green. The two men then disappeared into the woods.

         A few minutes later, the two men knocked on the door of Kim White, who lived in the vicinity and knew the men as Derrick Duncan and Antonio Green. Ms. White testified that both men had on dark clothing and Green had a black pistol lodged in the waistband of his pants. After Ms. White received a phone call, she told Duncan and Green to leave and heard Duncan say that he needed to "throw away the mask."

         Duncan and Green were later arrested. Duncan was charged with two counts of attempted second degree murder and one count of attempted armed robbery. Duncan was acquitted of the two attempted second degree murder charges but convicted of attempted armed robbery.[2] Duncan was subsequently adjudicated a third-felony habitual offender and was sentenced to life imprisonment without the benefit of probation, parole, or suspension of sentence. Duncan's conviction and sentence were affirmed on appeal in an unpublished opinion. State v. Duncan, supra.

         On March 2, 2018, Duncan filed a successful "Motion to Correct Illegal Sentence" based on the supreme court decision in State ex rel. Esteen v. State, supra. Duncan correctly argued that under Esteen, supra, because less than all of his total of three felony convictions fit into the categories described in La. R.S. 15:529.1(A)(1)(b)(ii), he was entitled to be resentenced pursuant to the version of La. R.S. 15:529.1(A)(1)(b)(i) as amended in 2001.

         Eventually, [3] the trial court resentenced Duncan to 40 years at hard labor. Duncan timely filed motion to reconsider sentence urging only constitutional excessiveness, which the trial court denied. Thereupon, Duncan ...


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