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State v. Burns

Court of Appeals of Louisiana, Second Circuit

January 15, 2020

STATE OF LOUISIANA Appellee
v.
GERALD P. BURNS Appellant

          Appealed from the First Judicial District Court for the Parish of Caddo, Louisiana Trial Court No. 347306, Honorable Katherine Clark Dorroh, Judge.

          LOUISIANA APPELLATE PROJECT By: Mary Constance Hanes, Counsel for Appellant.

          GERALD DESHANE BURNS Pro Se.

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

          RICHARD SOL FEINBERG JASON WAYNE WALTMAN Assistant District Attorneys.

          Before WILLIAMS, COX, and McCALLUM, JJ.

          McCALLUM, J.

         Adjudicated a third-felony habitual offender after being convicted of armed robbery and attempted first degree rape, Gerald Burns appeals his habitual offender sentence of 49.5 years at hard labor without benefit of parole, probation, or suspension of sentence.

         We affirm the convictions, but upon reviewing this record, we note several errors patent, the most significant being that Burns's habitual offender sentence is illegally lenient. Therefore, we vacate his habitual offender sentence and remand for resentencing. We further remand for a correction of the minutes and for Burns to be provided with written notice that he is required to register as a sex offender.

         FACTS

         On the afternoon of February 18, 2017, M.A. was reading a book at a cemetery near downtown Shreveport when Gerald Burns held her at gunpoint and took her cell phone. Burns ordered M.A. to come back when she tried to walk away. Burns next told M.A. to stand on a grave before ordering her to strip off her clothing. When she refused to remove her clothing, Burns ran at M.A., who screamed and attempted to escape. Burns tackled M.A. and while the two struggled on the ground, Burns tried to remove M.A.'s pants. After M.A. struck Burns on the head several times with a piece of broken headstone, she was able to run away and contact the police. Burns, who was later found with a head injury, made incriminating statements to the police. M.A. identified Burns in a photo lineup.

         On March 20, 2017, Burns was charged by bill of information with the attempted first degree rape of M.A. in violation of La. R.S. 14:27 and 14:42, and with armed robbery of the same victim, in violation of La. R.S. 14:64. Following a jury trial on October 24-25, 2018, Burns was found guilty as charged on both counts.

         On October 30, 2018, Burns filed a motion for post-verdict judgment of acquittal. The trial court denied that motion on the same day and proceeded with sentencing after Burns waived the delays. Burns's father, Gerald Williams, testified at the sentencing hearing that Burns was bipolar and suffered from schizophrenia. Williams explained that he lived near Burns and supervised his son to ensure that he took medication for his mental illness. Williams testified that he had been out of town for a few weeks when the crimes against M.A. were committed. Although a relative was supposed to watch Burns while Williams was away, Burns would not listen to her.

         At the sentencing hearing, defense counsel requested that the trial court take judicial notice of a report prepared earlier by Dr. Marc Colon for the purpose of a competency determination. Dr. Colon noted in his report that Burns reported a history of bipolar disorder, schizophrenia, and attention-deficit/hyperactivity disorder ("ADHD"). Dr. Colon also noted that deficits shown by Burns on a cognitive assessment were consistent with schizophrenia and mild intellectual disability.

         The trial court completed a review of the aggravating and mitigating factors found in La.C.Cr.P. art. 894.1. The trial court also considered Dr. Colon's report. Burns was sentenced to 25 years at hard labor without benefits for the attempted first degree rape conviction. Burns was also sentenced to 25 years at hard labor without benefits for the armed robbery conviction. Both sentences were to be served concurrently, and credit ...


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