Date: 09-14-2018

Case Style:

Case Number: 2014-KA-0408

Judge: PAUL A. BONIN

Court: COURT OF APPEAL FOURTH CIRCUIT STATE OF LOUISIANA

Plaintiff's Attorney: Leon A. Cannizzaro, Jr.
District Attorney
Scott G. Vincent
Assistant District Attorney

Defendant's Attorney: Mary Constance Hanes
OUISIANA APPELLATE PROJECT

Description: We previously vacated the defendant‟s sentence due to the trial judge‟s
failure to observe the statutorily-prescribed delay before imposing sentence upon
his conviction for carjacking, a violation of La. R.S. 14:64.2 A. We remanded the
matter for re-sentencing and reserved unto the defendant, Kendrick Boyd, the right
to appeal the sentence imposed on remand. See State v. Boyd, 11-1129, p. 8 (La.
App. 4 Cir. 11/21/12); 104 So. 3d 642, 646.
On remand, after finding that Mr. Boyd was properly adjudicated a second
felony offender under the Habitual Offender Law, the trial judge sentenced him to
a term of imprisonment of thirty-five years, without the benefit of parole,
probation, or suspension of sentence. The sentence imposed, being within the
authorized statutory range, is a legal sentence. See La. R.S. 15:529.1 A(1) (noting
that if the second felony is punishable by imprisonment for any term less than the
offender‟s natural life, “then the sentence to imprisonment shall be for a



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determinate term not less than one-half the longest term and not more than twice
the longest term prescribed for a first conviction”); La. R.S. 14:64.2 B (“Whoever
commits the crime of carjacking shall be imprisoned at hard labor for not less than
two years and for not more than twenty years, without benefit of parole, probation,
or suspension of sentence.”). See, e.g., State v. Hunter, 02-2742, pp. 2-3 (La. App.
4 Cir. 2/19/03); 841 So. 2d 42, 43.
Mr. Boyd appeals this sentence and assigns two errors. He first contends
that his sentence, while legal, is nonetheless excessive under Article I, Section 20
of the Louisiana Constitution. See State v. Augustine, 555 So. 2d 1331, 1334 (La.
1990) (“Constitutional excessiveness of sentence and illegal imposition of sentence
are quite separate and distinct matters. A sentence illegally imposed, even one not
constitutionally excessive, is null, and constitutes no valid premise for continued
incarceration.”).See also La. C.Cr.P. art. 882; State v. Pernell, 14-0678, pp. 4-5
(La. App. 4 Cir. 10/15/14); 151 So. 3d 940, 944 (citing State v. Dorthey, 623 So.
2d 1276, 1280 (La. 1993)); Augustine, 555 So. 2d at 1334 (noting that “a district
court (upon resentencing) is not bound by the sentence previously imposed,
whereas [a reviewing court] is bound by a legally imposed sentencing which is not
unconstitutionally excessive”). Mr. Boyd argues that the trial judge failed to
consider certain mitigating evidence and relied upon facts contrary to the evidence
presented. Mr. Boyd next contends that at sentencing his counsel rendered
ineffective assistance under the Sixth Amendment to the United States Constitution
and Article I, Section 13 of the Louisiana Constitution. Mr. Boyd specifically


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claims that counsel‟s performance was deficient and that he was prejudiced at
sentencing by counsel‟s failure to investigate his mental illness, to obtain and
produce mitigating evidence of his bipolar disorder and recent hospitalization, and
to present expert testimony on the effects of bipolar disorder and whether his
illness influenced his behavior on the day of the offense.
In order to adequately address Mr. Boyd‟s claim of ineffective assistance on
direct appeal, we must be able to evaluate the extent of his counsel‟s investigation
for mitigating evidence, whether the decision to not present any mitigating
evidence of his bipolar disorder was tactical in nature, and whether the defendant
suffered actual prejudice. After our thorough examination, we find the record
insufficient for proper review of this claim. To that end, we remand Mr. Boyd‟s
claim of ineffective assistance at sentencing to the district court in order to conduct
an evidentiary hearing and to render a ruling on the merits. In the meantime, we
will retain jurisdiction over Mr. Boyd‟s remaining assignment of error which
asserts excessiveness of sentence.
We explain our decision in greater detail below.
I
We begin by addressing the ineffective-assistance-of-counsel-at-sentencing
claim.
Both the Louisiana and United States Constitutions afford criminal
defendants the right to the effective assistance of counsel at sentencing. See U.S.


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Const. amend. VI; La. Const. art. I, § 13. See also McMann v. Richardson, 397
U.S. 759, 771 n.14 (1970).
In order to be entitled to a new sentencing hearing as a result of his claim
that his counsel‟s assistance was constitutionally-ineffective, Mr. Boyd must
establish both prongs of the test set out in Strickland v. Washington, 466 U.S. 668
(1984). See Lafler v. Cooper, --- U.S. ---, 132 S.Ct. 1376, 1385-6 (2012). First,
Mr. Boyd must prove that counsel‟s performance was deficient, which requires
showing that serious errors were made such that counsel was no longer functioning
as the “counsel” guaranteed by the Sixth Amendment. See Strickland, 466 U.S. at
687. Second, Mr. Boyd must prove that he was prejudiced by counsel‟s deficient
performance during sentencing. See id. Unless Mr. Boyd succeeds in making both
showings, we cannot find that his sentence “resulted from a breakdown in the
adversary process that renders the result unreliable.” Id. A trial judge, however,
need not “address both components of the inquiry if the defendant makes an
insufficient showing on one.” Id. at 697.
To show that counsel‟s assistance was deficient, Mr. Boyd must show that
counsel‟s “representation fell below an objective standard of reasonableness.” Id.
at 688. The reasonableness of counsel‟s performance must be measured “under
prevailing professional norms” and “considering all the circumstances.” Id.
“Judicial scrutiny of counsel‟s performance must be highly deferential.” Id. at 689.
We do “„not sit to second-guess strategic and tactical choices made by trial
counsel.‟” State v. Hoffman, 98-3118, p. 40 (La. 4/11/00); 768 So. 2d 542, 579


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(quoting State v. Myles, 389 So. 2d 12, 31 (La. 1979)). And a reviewing court must
always “indulge a strong presumption that counsel‟s conduct falls within the wide
range of reasonable professional assistance….” Strickland, 466 U.S. at 689.
Mr. Boyd “must identify the acts or omissions of counsel that are alleged not
to have been the result of reasonable professional judgment.” Id. at 690. Here, Mr.
Boyd has pointed to counsel‟s failure to investigate his mental illness, to obtain
and produce mitigating evidence of his bipolar disorder and recent hospitalization
prior to the commission of the offense, and to present expert testimony on the
effects of bipolar disorder and whether his illness influenced his behavior on that
day. And the report of the presentence investigation, which has been supplied to
us under seal, does note that Mr. Boyd disclosed to the investigator that he had
only been released from hospitalization at the DePaul‟s Mental Facility just three
weeks prior to the commission of the offense for a bipolar disorder.
In assessing the reasonableness of Mr. Boyd‟s counsel‟s conduct, the trial
judge must determine “whether a reasonable investigation would have uncovered
mitigating evidence. [And i]f such evidence could have been found, [the trial
judge] must consider whether counsel had a tactical reason for failing to put the
evidence” before the judge. State v. Sparks, 88-0017, p. 64 (La. 5/11/11); 68 So. 3d
435, 484 (citations omitted). “„[S]trategic choices made after less than complete
investigation are reasonable precisely to the extent that reasonable professional
judgments should support the limitations on investigation.‟” Id., 88-0017, p. 65;
68 So. 3d at 484 (quoting Burger v. Kemp, 483 U.S. 776, 794 (1987)). If the trial


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judge finds that the failure to present mitigating evidence was not a tactical
decision but reflects counsel‟s failure to adequately advocate his client‟s cause,
then the trial judge should next determine whether the defendant suffered actual
prejudice before granting the requested relief. See Sparks, 88-0017, pp. 64-5; 68
So. 3d at 484.
“An error by counsel, even if professionally unreasonable, does not warrant
setting aside the judgment of a criminal proceeding if the error had no effect on the
judgment.” Strickland, 466 U.S. at 691. “The purpose of the Sixth Amendment
guarantee of counsel is to ensure that a defendant has the assistance necessary to
justify reliance on the outcome of the proceeding. Accordingly, any deficiencies in
counsel's performance must be prejudicial to the defense in order to constitute
ineffective assistance under the Constitution.” Id. at 691-2.
Mr. Boyd bears the burden of proving prejudice. See id. at 693. That is, Mr.
Boyd “must show that there is a reasonable probability that, but for counsel‟s
unprofessional errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Id. at 694. This assessment of prejudice should also “proceed on the
assumption that the decisionmaker is reasonably, conscientiously, and impartially
applying the standards that govern the decision.” Id. at 695.
“Even though sentencing does not concern a defendant‟s guilt or innocence,
ineffective assistance of counsel during a sentencing hearing may result in
prejudice within the compass of Strickland … because „any amount of additional


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jail time has Sixth Amendment significance.‟” See State v. Mills, 13-1901, p. 3 (La.
3/21/14); 137 So. 3d 8, 10 (per curiam) (quoting Glover v. United States, 531 U.S.
198, 203 (2001)) (citations and punctuation omitted). Counsel‟s errors at
sentencing have prejudiced a defendant when “there is a reasonable probability that
the defendant‟s sentence would have been „significantly less harsh….‟” See Mills,
13-1901, p. 3; 137 So. 3d at 10. See also Sparks, 88-0017, p. 61; 68 So. 3d at 482.
Prior to making this determination, the trial judge should consider “such factors as
the defendant‟s actual sentence, the potential minimum and maximum sentences
that could have been received, the placement of the actual sentence within the
range of potential sentences, and any relevant mitigating or aggravating
circumstances.” See Mills, 13-1901, p. 3; 137 So. 3d at 10. And of course the trial
judge who imposed the sentence initially is uniquely situated to determine whether
any errors by counsel at sentencing would have resulted in a substantially less
harsh sentence.
II
Ineffective-assistance-of-counsel claims are ideally and typically addressed
in a post-conviction or collateral-review proceeding in the trial court, not on
appeal. See State v. Watson, 00-1580, p. 4 (La. 5/14/02); 817 So. 2d 81, 84. See
also State v. Small, 13-1334, p. 13 (La. App. 4 Cir. 8/27/14); 147 So. 3d 1274,
1283. “The rationale behind such procedure is that a full evidentiary hearing may
be conducted to explore the issue.” Watson, 00-1580, p. 4; 817 So. 2d at 84 (citing
State v. Stowe, 93-2020 (La. 4/11/94); 635 So. 2d 168, 173). Thus, defendants are


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afforded the opportunity to expand upon and prove their allegations through the
introduction of evidence in post-conviction proceedings.
An ineffective-assistance-of-counsel-at-sentencing claim, however, is not
cognizable in post-conviction proceedings when, as here, the sentence imposed by
the trial judge is within the authorized range of the sentencing statutes. See State v.
Cotton, 09-2397, p. 2 (La. 10/15/10); 45 So. 3d 1030, 1031 (per curiam). See also
State v. Pernell, 14-0678, p. 5 (La. App. 4 Cir. 10/15/14); 151 So. 3d 940, 945.
Article 930.3 of the Louisiana Code of Criminal Procedure, which enumerates the
grounds upon which post-conviction relief may be granted, “„provides no basis for
review of claims of excessiveness or other sentencing error post-conviction.‟”
State v. Thomas, 08-2912 (La. 10/16/09); 19 So. 3d 466 (quoting State ex rel.
Melinie v. State, 93-1380 (La. 1/12/96); 665 So. 2d 1172 (per curiam)) (emphasis
added). See also La. C.Cr.P. art. 930.3. And a “habitual offender adjudication …
constitutes sentencing for purposes of Melinie and La. C.Cr.P. art. 930.3….”
Cotton, 09-2397, p. 2; 45 So. 3d at 1030 (emphasis added). See also Thomas, 08
2912; 19 So. 3d 466. Thus, no statutory vehicle is offered for post-conviction
consideration of claims of ineffective assistance of counsel arising out of habitual
offender proceedings. See Cotton, 09-2397, p. 2; 45 So. 3d at 1030.
Because Mr. Boyd‟s claim is not cognizable in a post-conviction proceeding,
we cannot refer the claim to a post-conviction proceeding and must consider on
direct review his claim that counsel rendered ineffective assistance at sentencing.
See Mills, 13-1901, p. 2; 137 So. 3d at 10. But the record in this matter is


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insufficient for us to make a proper determination as is often the case in
ineffective-assistance-of-counsel claims. We do not have any testimony or
evidence in the record to explain the absence of any documentation or expert
testimony which might have supported or corroborated the information which Mr.
Boyd as well as his aunt told the trial judge at sentencing about Mr. Boyd‟s mental
health. Notably, the trial judge did not mention or comment about Mr. Boyd‟s
mental health.1
III
Not only is the record as presently constituted insufficient for us to decide
whether Mr. Boyd can establish both prongs of the Strickland test, but also, as we
have already stated, the particular trial judge who actually imposed the thirty-five
year sentence is best situated to decide whether any deficiency on the part of
sentencing counsel resulted in a significantly harsher sentence for Mr. Boyd.
We therefore remand the matter to the trial court for a full evidentiary
hearing and decision on Mr. Boyd‟s ineffective-assistance-of-counsel-at
sentencing claim. See Sparks, 88-0017, p. 66; 68 So. 3d at 485 (citing State v.
Strickland, 94-0025, p. 51 (La. 11/1/96); 683 So. 2d 218, 238-9). In connection
with the claim and hearing, the trial court shall ensure that Mr. Boyd, who is
indigent, is represented by conflict-free counsel. See La. R.S. 15:175 A(1)(d);

1 The prosecution argues in brief that the trial judge did take the matter into consideration and concluded that it failed to show that Mr. Boyd could not distinguish between right and wrong. The prosecution has not cited to any of the sentencing transcripts in the record, and we cannot locate what the prosecution has argued.


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Martinez v. Ryan, --- U.S. ---, ---, 132 S.Ct. 1309, 1317-8 (2012); State v. Carter,
10-0614, pp. 5-6 (La. 1/24/12); 84 So. 3d 499, 508-9.
With respect to the remaining assignment of error, we shall pretermit its
consideration pending the filing of the supplemental record of the hearing and
ruling of the proceedings on remand at which point the two assignments of error
will be rejoined in a single, coherent action.2 See State v. Johnson, 07-2034, pp. 3
4 (La. 6/26/09); 23 So. 3d 876, 877-8 (per curiam); State v. Garcia, 09-1578, p. 2
(La. 9/23/11); 80 So. 3d 1150, 1150-1 (per curiam). Cf. Sparks, 88-0017, p. 66; 68
So. 3d at 485.

Outcome: We remand Kendrick Boyd‟s ineffective-assistance-of-counsel-at-sentencing
claim to the district court which shall ensure conflict-free counsel to represent Mr. Boyd, conduct a full evidentiary hearing, and rule on the merits of the claim. Upon the conclusion of the proceedings on remand, the district court shall cause a supplemental record of the proceedings on remand to be filed in this court in these proceedings.

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