State of Louisiana Versus Anthony O. Stokes

STATE OF LOUISIANA NO. 19-KA-128

VERSUS FIFTH CIRCUIT

ANTHONY O. STOKES COURT OF APPEAL

STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 97-3678, DIVISION "I"
HONORABLE NANCY A. MILLER, JUDGE PRESIDING

September 04, 2019

MARC E. JOHNSON
JUDGE

Panel composed of Judges Marc E. Johnson,
John J. Molaison, Jr., and Robert M. Murphy, Ad Hoc

HABITUAL OFFENDER SENTENCE VACATED;
REMANDED FOR RESENTENCING
MEJ
JJM
RMM

COUNSEL FOR PLAINTIFF/APPELLEE,
STATE OF LOUISIANA
Paul D. Connick, Jr.
Terry M. Boudreaux
Darren A. Allemand

COUNSEL FOR DEFENDANT/APPELLANT,
ANTHONY O. STOKES
Bruce G. Whittaker

JOHNSON, J.

Defendant, Anthony O. Stokes, appeals his habitual offender sentence from

the 24th Judicial District Court, Division “I”. For the following reasons, we vacate

the habitual offender sentence and remand the matter with instructions.

FACTS AND PROCEDURAL HISTORY1

On May 27, 1997, the Jefferson Parish District Attorney filed a bill of

information charging Defendant with possession with intent to distribute cocaine in

violation of La. R.S. 40:967(A). After a trial by jury on August 15, 1997,

Defendant was found guilty as charged. See State v. Stokes, 99-1287 (La. App. 5

Cir. 4/13/00); 759 So.2d 980, writ denied, 00-1219 (La. 2/16/01); 802 So.2d 607.

On August 20, 1997, the State filed a habitual offender bill of information, alleging

Defendant was a fourth-felony offender.2 On August 21, 1997, the trial judge

sentenced Defendant to serve seven years at hard labor. Id. Defendant denied the

allegations in the habitual bill of information, and a habitual offender hearing was

held on October 6, 1997. Stokes, 759 So.2d at 982. At the conclusion of the

hearing, the trial judge found Defendant to be a fourth-felony offender and

imposed a sentence of life imprisonment. Defendant’s first appeal ensued. Id.

On first appeal, this Court affirmed Defendant’s conviction and underlying

sentence but vacated his enhanced sentence as a fourth-felony offender and

remanded the matter for the trial court to resentence him as a third-felony

1
This is Defendant’s third appeal. For a full recitation of the underlying facts of this case, please
see State v. Stokes, 99-1287 (La. App. 5 Cir. 4/13/00); 759 So.2d 980, writ denied, 00-1219 (La. 2/16/01);
802 So.2d 607.
2
The predicates for the habitual offender bill were as follows: 1) on February 13, 1985,
Defendant pleaded guilty in district court case number 84-2228 to attempted simple burglary, a violation
of La. R.S. 14:27 and La. R.S. 14:62, in Division “N” of the 24th Judicial District Court; 2) on November
16, 1992, Defendant pleaded guilty in district court case number 92-4000 to simple burglary, a violation
of La. R.S. 14:62, in Division “H” of the 24th Judicial District Court; and 3) on January 28, 1994,
Defendant pleaded guilty in district court case number 93-4370 to simple burglary of an inhabited
dwelling, a violation of La. R.S. 14:62.2, in Division “A” of the 24th Judicial District Court.

19-KA-128 1

offender.3 See Stokes, 759 So.2d at 988. On error patent review, this Court found,

among other errors, that the second and third predicate offenses in the habitual

offender proceeding were out of sequence.4 Id. at 987. This Court stated:

In the instant case, the bill of information in the second predicate
offense, 92-4000, charges defendant with committing simple burglary
on July 18, 1992. The commitment and waiver of rights form reflect
that defendant pled guilty to that offense on November 16, 1992.
According to the bill of information for the third predicate offense,
93-4370, defendant committed simple burglary of an inhabited
dwelling on March 24, 1992, and pled guilty to that offense on
January 28, 1994. Therefore, defendant had not been through the
required sequencing because the commission of the third offense
(March 24, 1992), occurred before the conviction for the second
predicate offense (November 16, 1992). As a result, defendant should
not have been found to be and sentenced as a fourth felony offender.
In such cases, the remedy is to vacate the enhanced sentence and to
remand the matter for the trial court to correct the problem by re-
sentencing the defendant as a third felony offender. See State ex rel.
Mims v. Butler, 601 So.2d at 655.

Stokes, 759 So.2d at 987-88.

This Court further stated in a footnote:

Proof of the discharge dates of these predicate offenses was not
necessary in this case because less than the ten-year cleansing period
had elapsed between defendant’s conviction on each predicate felony
and the commission of each subsequent predicate felony. This is true
regardless of whether the felony in 92-4000 or 93-4370 is used to find
defendant a third felony offender.

Id. at 988 n.3.

We concluded that “[b]ecause of the sequencing problem with the offenses

in case number 93-4370 and 92-4000, defendant is subject to sentencing as a third

3
Defendant argued that his trial counsel was ineffective for failing to object to the qualifications
of a State’s expert and to the lack of proof presented at the habitual offender proceeding. He also argued
the State failed to prove by competent evidence that he was a habitual offender. Id. at 985-86.
4
At that time, the Louisiana Supreme Court held in State ex rel Mims v. Butler, 601 So.2d 649
(La. 1992), that La. R.S. 15:529.1 contained a sequential requirement for enhanced penalties in the
sentencing of habitual offenders. According to the Mims court, “[t]he cornerstone of that scheme is that
felons graduate to second offender status, not by committing multiple crimes, but by committing a crime
or crimes after having been convicted.” Id. at 650 (emphasis as found in the original). The Louisiana
Supreme Court expressly overruled Mims in State v. Johnson, 03-2993 (La. 10/19/04); 884 So.2d 568,
holding that multiple convictions obtained on the same date based on unrelated conduct can be counted
separately for sentence enhancement purposes. This Court additionally found on error patent review that
the trial court had failed to vacate Defendant’s original sentence upon imposition of his enhanced
sentence, rendering his enhanced sentence null and void and requiring a remand for the trial court to
vacate the original sentence. This Court also found that Defendant’s enhanced sentence was illegally
lenient as it was not imposed without the required restriction of benefits. Stokes, 759 So.2d at 988.

19-KA-128 2

felony offender only.” Id. at 988. Defendant thereafter sought a writ with the

Louisiana Supreme Court, which was denied. State v. Stokes, 00-1219 (La.

2/16/01); 802 So.2d 607.

On remand, the trial judge for the resentencing, who was not the same judge

who presided over Defendant’s trial and habitual offender adjudication, vacated the

original sentence, stating: “I am also going to find the defendant a third felony

offender rather than a fourth felony offender, because there was not an arrest

conviction, arrest conviction on the third conviction. So, that one will be no longer

in effect, but the fourth conviction will become a third conviction.”5 She then

resentenced Defendant to life imprisonment without benefits since “the distribution

of cocaine is one in which under 15:529.1, it requires that a life sentence be

imposed.” On second appeal in 2001, this Court affirmed Defendant’s enhanced

sentence of life imprisonment without benefit of parole, probation, or suspension

of sentence as a third-felony offender imposed after his resentencing.6

In the years that followed, Defendant sought post-conviction relief and filed

motions to correct an illegal sentence and for downward departure, all of which

were denied. See also State ex rel. v. Stokes, 05-667 (La. App. 5 Cir. 6/29/05)

(unpublished writ disposition), writ denied, 05-2193 (La. 6/16/06); 929 So.2d

1274; and State ex rel. v. Stokes, 17-277 (La. App. 5 Cir. 6/14/17) (unpublished

writ disposition), writ denied, 17-1282 (La. 11/5/18); 255 So.3d 1051.

On February 14, 2018, Defendant filed a pro se Motion to Vacate Habitual

Offender Adjudication, arguing that due to the 2001 amendments to the Habitual

Offender Law, he no longer qualified under La. R.S. 15:529.1(A)(1)(b)(ii),

5
While the resentencing transcript is not abundantly clear, the trial judge vacated Defendant’s
third predicate conviction for simple burglary of an inhabited dwelling and sentenced him to life
imprisonment as a third-felony offender based upon his first and second predicates (the 1985 conviction
for attempted simple burglary and the 1992 conviction for simple burglary). The third predicate was also
proper in light of the sequencing error discussed by this Court in Defendant’s first appeal.
6
Defendant argued that his life sentence as a third-felony offender was unconstitutionally
excessive.

19-KA-128 3

mandating a life sentence for a third-felony offender, but rather, he now fell under

the more lenient provisions. He argued that the maximum sentence he could

receive was 60 years of imprisonment.

After the trial court denied relief, this Court considered Defendant’s

argument. In State v. Stokes, 18-151 (La. 5/8/18) (unpublished writ disposition),

this Court wrote:

WRIT DENIED

Relator, Anthony Stokes, seeks review of the trial court’s
February 22, 2018 denial of his “Motion to Vacate Habitual Offender
Adjudication.” In his motion, Relator argued his third felony offender
adjudication of life imprisonment without the eligibility of parole,
probation, or suspension of sentence should be vacated because 1) the
underlying offenses were not crimes of violence or sex offenses; 2)
the current provisions of the habitual offender law do not permit a
sentence of life imprisonment at hard labor without the benefit of
parole, probation, or suspension of sentence; and 3) he should have
been adjudicated only as a second felony offender, instead of a third
felony offender, because his attempted simple burglary was
considered in error. The trial court noted that Relator’s adjudication
was reviewed on appeal and denied Relator’s motion on the basis that
it found no error or legal basis to set aside the habitual offender
adjudication.
After review, we find the trial court did not err in its ruling.
First, Relator’s adjudication and enhanced sentence have been fully
litigated, and Relator’s claim that the attempted simple burglary
conviction was considered in error is a repetitive claim. See, La.
C.Cr.P. 930.4(A); State v. Stokes, 99-1287 (La. App. 5 Cir. 4/12/00);
759 So.2d 980, writ denied, 00-1219 (La. 2/16/01); 802 So.2d 607;
State v. Stokes, 00-1904 (La. App. 5 Cir. 4/24/0l)(unpublished writ
disposition); and State v. Stokes, 05-667 (La. App. 5 Cir.
7/1/05)(unpublished writ disposition). Additionally, the habitual
offender law in effect at the time of the offense provided for life
imprisonment without benefit of parole, probation, or suspension of
sentence for third felony offenses.
Accordingly, on the showing made, the writ application is
denied.

Defendant sought a writ with the Louisiana Supreme Court, which was

granted on November 5, 2018. In State v. Stokes, 18-0846 (La. 11/5/18); 255

So.3d 1048, the Louisiana Supreme Court vacated Defendant’s sentence and

remanded the matter to the trial court for resentencing pursuant to State ex rel.

Esteen v. State, 16-0949 (La. 1/30/18); 239 So.3d 233.

19-KA-128 4

Following remand, the trial court resentenced Defendant on February 11,

2019, as follows:

THE COURT:

Mr. Stokes, your case was sent back to us from the Supreme Court
with instructions to re-sentence you pursuant to Esteen. There were a
number of things that were—the law changed after you were
sentenced which would make you no longer triple life eligible and the
sentence for your underlying charge as well.
Based upon consideration of the new multiple bill sentencing range
and the new sentencing range for your conviction – your underlying
conviction – the Court would now sentence you to sixty years at hard
labor in the Department of Corrections with credit for time served
from the date of your arrest in this case and this case only.

Defense counsel objected to the sentence on the basis that it was excessive. A

written motion for appeal was filed on February 11, 2019 and was granted on

February 22, 2019.

ASSIGNMENT OF ERROR

On appeal, Defendant solely alleges the trial court imposed an

unconstitutionally excessive sentence.

LAW AND ANALYSIS

Defendant challenges his 60-year sentence as a third-felony offender

imposed after resentencing in accordance with Esteen, supra. He argues that his

sentence is constitutionally excessive and unsupported by the record. He maintains

that he is a “late middle-aged offender,” and a 60-year sentence is grossly out of

proportion to the seriousness of the offense and is nothing more than a purposeless

and needless infliction of pain and suffering. He argues that the resentencing

judge, who was not the original trial judge in this matter, imposed the maximum

sentence without any consideration of La. C.Cr.P. art. 894.1 or articulation of

reasons to justify the imposition of the sentence. Defendant argues that the trial

judge failed to consider the facts surrounding his underlying conviction and

19-KA-128 5

predicates and failed to consider the intent of the original sentencing judge, who

indicated that he had “no option” but to impose a sentence of life imprisonment.

The failure to file a motion to reconsider sentence, or to state the specific

grounds upon which the motion is based, limits a defendant to a review of the

sentence for constitutional excessiveness only. State v. Taylor, 18-126 (La. App. 5

Cir. 10/17/18); 258 So.3d 217, 224. Here, trial counsel objected to the sentence as

excessive but did not state any specific grounds for the objection. No motion to

reconsider Defendant’s sentence was filed. Therefore, we are constrained to limit

our review to Defendant’s sentence for constitutional excessiveness only.

The Eighth Amendment to the United States Constitution and Article I, § 20

of the Louisiana Constitution prohibit the imposition of excessive punishment.

Although a sentence is within statutory limits, it can be reviewed for constitutional

excessiveness. State v. Mathis, 18-678 (La. App. 5 Cir. 4/3/19); 268 So.3d 1160,

1165 State v. Smith, 01-2574 (La. 1/14/03); 839 So.2d 1, 4. A sentence is

considered excessive if it is grossly disproportionate to the offense or imposes

needless and purposeless pain and suffering. Id. A sentence is grossly

disproportionate if, when the crime and punishment are considered in light of the

harm done to society, it shocks the sense of justice. State v. Lawson, 04-334 (La.

App. 5 Cir. 9/28/04); 885 So.2d 618, 622.

The “deliberate inclusion by the redactors of the [Louisiana] Constitution of

a prohibition against ‘excessive’ as well as cruel and unusual punishment

broadened the duty of [courts] to review the sentencing aspects of criminal

statutes.” State v. Baxley, 94-2982 (La. 5/22/95); 656 So.2d 973, 977. This

constitutional protection against excessive sentence allows courts to review a

sentence within the statutorily prescribed range to determine whether the sentence

of the particular offender is excessive. Id.

The appellate court shall not set aside a sentence for excessiveness if the

19-KA-128 6

record supports the sentence imposed. State v. Pearson, 07-332 (La. App. 5 Cir.

12/27/07); 975 So.2d 646, 656. In reviewing a trial court’s sentencing discretion,

three factors are considered: 1) the nature of the crime; 2) the nature and

background of the offender; and 3) the sentence imposed for similar crimes by the

same court and other courts. Id. at 656. The relevant question on appellate review

is not whether another sentence might have been more appropriate but rather

whether the trial court abused its sentencing discretion. Id. Part of the abuse of

discretion inquiry requires a court to consider the crime and the punishment given

in light of the crime’s harm to society and gauge whether the penalty is so

disproportionate as to shock the sense of justice. State v. Aguliar-Benitez, 17-361

(La. App. 5 Cir. 12/10/18); 260 So.3d 1247, 1262, writ denied, 19-147 (La.

6/3/19); 272 So.3d 543. Generally, maximum sentences are reserved for cases

involving the most serious violations of the offense charged and the worst type of

offender. State v. Badeaux, 01-406 (La. App. 5 Cir. 9/25/01); 798 So.2d 234, 239,

writ denied, 01-2965 (La. 10/14/02); 827 So.2d 414.

Recently, in Esteen, supra, the Louisiana Supreme Court explained that a

defendant’s remedy for obtaining the ameliorative provisions enacted by Act 403

and made retroactive for certain offenses in La. R.S. 15:308 was through a motion

to correct illegal sentence filed in the district court. In compliance with the

directive issued by the Louisiana Supreme Court, the trial court resentenced

Defendant under Esteen and imposed a sentence of 60 years imprisonment.

In the instant case, Defendant was convicted of one count of possession with

intent to distribute cocaine in violation of La. R.S. 40:967(A), committed on May

16, 1997.7 Thereafter, Defendant was found to be a third-felony offender and was

7
At the time of the offense in May 1997, possession with intent to distribute cocaine had a
sentencing range of “at hard labor for not less than five years nor more than thirty years, with the first five
years of said sentence being without benefit of parole, probation, or suspension of sentence.” La. R.S.
40:967(B).

19-KA-128 7

properly sentenced to life imprisonment under La. R.S. 15:529.1(A)(1)(b)(ii)8 as it

existed in May 1997 at the time he committed the underlying offense.

In 2001, the Louisiana Legislature through Act 403 amended the habitual

offender laws to provide for more lenient penalty provisions; however, the

amendments were given prospective application. In 2006, the Louisiana

Legislature enacted La. R.S. 15:308, which provided that the more lenient penalty

provisions enacted by Act 403 applied retroactively to those defendants who

committed, were convicted of, or were sentenced for certain enumerated offenses

prior to June 15, 2001, if such application ameliorated the defendant’s

circumstances. One such statute amended was La. R.S. 15:529.1(A)(1)(b)(ii)

which addressed enhanced life sentences for third-felony offenders.9 Further,

Defendant committed the instant offense in May 1997, thus the more lenient

penalty provisions apply retroactively to him.

After the 2001 amendments, Defendant’s underlying and predicate

convictions no longer subjected him to a life sentence.10 Under the amendments,

8
At that time, La. R.S. 15:529.1(A)(1)(b)(ii) provided in pertinent part:
If the third felony or either of the two prior felonies is a felony defined as a crime of
violence under R.S. 14:2(13) or as a violation of the Uniform Controlled Dangerous
Substances Law punishable by imprisonment for more than five years or any other crime
punishable by imprisonment for more than twelve years, the person shall be imprisoned
for the remainder of his natural life, without benefit of parole, probation, or suspension of
sentence.
9
La. R.S. 15:529.1(A)(1)(b)(ii) was amended to provided:
If the third felony and the two prior felonies are felonies defined as a crime of violence
under R.S. 14:2(13), a sex offense as defined in R.S. 15:540 et seq. when the victim is
under the age of eighteen at the time of commission of the offense, or as a violation of the
Uniform Controlled Dangerous Substances Law punishable by imprisonment for ten
years or more or of any other crime punishable by imprisonment for twelve years or
more, or any combination of such crimes, the person shall be imprisoned for the
remainder of his natural life, without benefit of parole, probation, or suspension of
sentence.
La. R.S. 15:529.1(A)(1)(b)(i) remained unchanged by the 2001 amendments, providing, as it did in May
1997:
(b) If the third felony is such that upon a first conviction, the offender would be
punishable by imprisonment for any term less than his natural life then:
(i) The person shall be sentenced to imprisonment for a determinate term not less than
two-thirds of the longest possible sentence for the conviction and not more than twice the
longest possible sentences prescribed for a first conviction….
10
As stated in footnote 8, possession with intent to distribute cocaine was punishable by
imprisonment of ten years or more under the Uniform Controlled Dangerous Substances Law. Simple
burglary is punishable by imprisonment for 12 years or more. See La. R.S. 14:62 (“Whoever commits the
crime of simple burglary shall be fined not more than two thousand dollars, imprisoned with or without
hard labor for not more than twelve years, or both.” However, Defendant’s predicate conviction of

19-KA-128 8

Defendant’s underlying conviction of possession with intent to distribute cocaine

and his predicate convictions of attempted simple burglary and simple burglary

subject him to the sentencing provisions of La. R.S. 15:529.1(A)(1)(b)(i), which—

as it existed in both May 1997 and in 2001—provides for a sentencing range of 20

to 60 years. See La. R.S. 15:529.1(A)(1)(b)(i), supra.

After applying the three aforementioned factors, we find that the record does

not support the sentence imposed and the 60-year sentence is unconstitutionally

excessive in this case, as it shocks our sense of justice. Considering the first factor,

the nature of the crime, the facts indicate that Defendant possessed 50 rocks of

crack cocaine11 for distribution, and each rock was valued at ten dollars. Police did

not observe Defendant engage in any narcotics transaction but only observed him

discard the narcotics upon seeing them.

Regarding the nature and background of the offender, Defendant had prior

convictions of attempted simple burglary and simple burglary, as well as his

underlying conviction of possession with intent to distribute cocaine. None of

Defendant’s predicates are crimes of violence, and Defendant’s underlying

conviction of possession with intent to distribute cocaine is his only drug offense.

Further, it is noted that La. R.S. 40:967(B) was amended by Acts 2017, No.

281, § 2, effective August 1, 2017, to change the penalty provisions for offenses

related to Schedule II drugs. Under the amendment, the penalty for possession

with intent to distribute cocaine is dependent on the aggregate weight of the

cocaine involved. Under the current version of La. R.S. 40:967(B)(1)(a),

Defendant would have received a sentence of imprisonment, with or without hard

labor, for not less than one nor more than ten years for possessing the amount of

6.5 grams. It is well-settled that in most instances, the penalty of the offense is

attempted simple burglary did not fall under La. R.S. 15:529.1(A)(1)(b)(ii), as it was not punishable by
imprisonment for 12 years or more.
11
The total gross weight was 6.5 grams.

19-KA-128 9

determined as of the date of the offense. State v. Sugasti, 01-3407 (La. 6/21/02);

820 So.2d 518, 522. Nonetheless, in State v. Arceneaux, 18-642 (La. App. 5 Cir.

4/24/19); 271 So.3d 362, this Court stated that consideration may be given to

legislative changes in the penalty for applicable offenses.

As to the third factor, sentences imposed for similar crimes in this and other

courts, we find that the jurisprudence fails to reveal the imposition of a near

maximum sentence under similar circumstances. Rather, the jurisprudence shows

that sentences imposed for third-felony habitual offenders convicted of violations

of La. R.S. 40:967(A) and facing a sentencing range of 20 to 60 years actually

receive a sentencing range from 20 to 45 years.

In State v. Evans, 09-477 (La. App. 5 Cir. 12/29/09); 30 So.3d 958, writ

denied, 10-363 (La. 3/25/11); 61 So.3d 653, this Court upheld a 45-year enhanced

sentence where the defendant was found to be a third-felony habitual offender

upon his possession with intent to distribute cocaine conviction. The defendant’s

prior convictions included armed robbery as a juvenile and possession of cocaine.

Recently, in Arceneaux, supra, this Court held that the defendant’s 55-year

enhanced sentence as a third-felony offender, imposed after resentencing pursuant

to Esteen, supra, was unconstitutionally excessive. The defendant had an

underlying conviction of distribution of cocaine, also a violation of La. R.S.

40:967(A), with predicate convictions of theft over $500, now a misdemeanor

rather than a felony, and simple robbery, a crime of violence. This Court noted

that the defendant sold $20 worth of crack cocaine to an undercover police officer,

and the amount indicated that the defendant was a low level street drug pusher

rather than a major drug dealer. This Court vacated the enhanced sentence and

remanded the matter for resentencing. See also State v. Tomlinson, 06-892 (La.

App. 5 Cir. 3/27/07); 957 So.2d 196, 198-99, writ denied, 07-1068 (La. 11/21/07);

967 So.2d 1154 (where the defendant received a 25-year enhanced sentence as a

19-KA-128 10

third-felony offender for distribution of cocaine with prior convictions for breaking

and entering in North Carolina and publishing a forged check with the intent to

defraud in Florida); State v. Lott, 02-702 (La. App. 5 Cir. 12/30/02); 836 So.2d

584, 587-89, writ denied, 03-499 (La. 10/17/03); 855 So.2d 755 (where the

defendant received a 25-year enhanced sentence as a third-felony offender for

distribution of cocaine with prior convictions for possession of cocaine and

possession of stolen property); State v. Turner, 18-326 (La. App. 4 Cir. 11/28/18);

259 So.3d 1089, 1095-96 (where the defendant received a 25-year sentence as a

third-felony offender for distribution of cocaine with six prior convictions

including second degree battery (a crime of violence) and numerous drug

offenses); State v. Williams, 16-140 (La. App. 3 Cir. 9/28/18); 201 So.3d 379, 394

(where the defendant received a 20-year enhanced sentence as a third-felony

offender for his conviction of possession with intent to distribute cocaine); State v.

Denson, 11-0517 (La. App. 4 Cir. 1/25/12); 83 So.3d 1183, 1190-91, writ denied,

12-0391 (La. 6/22/12); 91 So.3d 967 (where the defendant received a 20-year

enhanced sentence as a third-felony offender with predicate convictions of

possession of cocaine, second-offender marijuana possession, and possession of

heroin); and State v. Bentley, 02-1564 (La. App. 4 Cir. 3/12/03); 844 So.2d 149,

156, writ denied, 03-1156 (La. 11/14/03); 858 So.2d 416 (where the defendant

received the minimum 20-year enhanced sentence as a third-felony offender for his

conviction of distribution of two rocks of cocaine with two prior convictions for

possession of cocaine).

Therefore, we find that Defendant’s 60-year enhanced sentence imposed

after resentencing pursuant to Esteen was unconstitutionally excessive and an

abuse of the trial court’s sentencing discretion, as it is grossly out of proportion to

the seriousness of the offense and is nothing more than a purposeless and needless

infliction of pain and suffering. Accordingly, we vacate Defendant’s enhanced

19-KA-128 11

sentence and remand the matter for resentencing. Pursuant to La. C.Cr.P. art.

881.4(A), this Court may provide direction regarding a constitutionally reasonable

sentence in a given case. Considering the factual circumstances of this case, we

suggest an enhanced sentence between the sentencing range of 20-25 years.12

DECREE

For the foregoing reasons, we find Defendant’s habitual offender sentence to

be unconstitutionally excessive, vacate Defendant’s habitual offender sentence,

and remand the matter to the trial court for resentencing consistent with this

opinion.

HABITUAL OFFENDER SENTENCE VACATED;
REMANDED FOR RESENTENCING

12
While we acknowledge the enhanced sentence in Evans, supra, that case is an outlier in the
sentencing range and more of the jurisprudence trend toward the 20-25 year sentencing range.
Considering the facts of this case, we suggest the lower range for resentencing.

19-KA-128 12

SUSAN M. CHEHARDY MARY E. LEGNON

CHIEF JUDGE INTERIM CLERK OF COURT

FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON SUSAN BUCHHOLZ
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400

(504) 376-1498 FAX
www.fifthcircuit.org

NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
SEPTEMBER 4, 2019 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

19-KA-128
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE NANCY A. MILLER (DISTRICT JUDGE)
TERRY M. BOUDREAUX (APPELLEE) THOMAS J. BUTLER (APPELLEE) DARREN A. ALLEMAND (APPELLEE)

MAILED
BRUCE G. WHITTAKER (APPELLANT) HON. PAUL D. CONNICK, JR. (APPELLEE)
ATTORNEY AT LAW DISTRICT ATTORNEY
LOUISIANA APPELLATE PROJECT TWENTY-FOURTH JUDICIAL DISTRICT
1215 PRYTANIA STREET 200 DERBIGNY STREET
SUITE 332 GRETNA, LA 70053
NEW ORLEANS, LA 70130