State of Louisiana Versus Shawn A. Clark

STATE OF LOUISIANA NO. 19-KA-518

VERSUS FIFTH CIRCUIT

SHAWN A. CLARK COURT OF APPEAL

STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 18-2756, DIVISION "E"
HONORABLE FRANK A. BRINDISI, JUDGE PRESIDING

June 24, 2020

JUDE G. GRAVOIS
JUDGE

Panel composed of Judges Susan M. Chehardy,
Fredericka Homberg Wicker, and Jude G. Gravois

AFFIRMED
JGG
SMC
FHW

COUNSEL FOR PLAINTIFF/APPELLEE,
STATE OF LOUISIANA
Honorable Paul D. Connick, Jr.
Thomas J. Butler
Andrea F. Long
Rachel L. Africk
Lynn Schiffman

COUNSEL FOR DEFENDANT/APPELLANT,
SHAWN A. CLARK
Cynthia K. Meyer

GRAVOIS, J.

Defendant/appellant, Shawn A. Clark, appeals his conviction and sentence

for the charge of possession with intent to distribute methamphetamine weighing

less than twenty-eight grams, in violation of La. R.S. 40:967(A). Defendant was

found guilty by a jury, sentenced, and thereafter was charged as a third felony

offender in a habitual offender bill of information. Upon being adjudicated as a

third felony offender, defendant’s original sentence was vacated and an enhanced

sentence was imposed.

On appeal, defendant argues that the trial judge erred in denying his motion

to recuse on the basis that prior to becoming a district court judge, the judge had

been employed as an assistant district attorney and had prosecuted defendant on a

previous charge that was used in this proceeding as a predicate offense in the

habitual offender bill. Defendant also argues that the record on appeal is incorrect

and incomplete. Finally, he argues that his sentence on the habitual offender bill is

excessive. For the following reasons, we find no merit to the assignments of error

and affirm defendant’s convictions and sentence.

PROCEDURAL HISTORY

On May 14, 2018, the Jefferson Parish District Attorney filed a bill of

information charging defendant, Shawn A. Clark, with possession with intent to

distribute methamphetamine weighing less than twenty-eight grams, in violation of

La. R.S. 40:967(A). On August 13, 2018, defendant pled not guilty at his

arraignment.

Various pretrial motions were filed. Trial began before a six-person jury on

June 24, 2019.1 On June 25, 2019, the defense made an oral request to recuse the

trial court judge and/or for a mistrial, which the trial court denied. Trial concluded

1
Defendant’s companion misdemeanor charge of possession of marijuana, second offense, in
district court case number 18-2759 was heard simultaneously by a bench trial. The appeal in that case is
currently pending before this Court as companion case number 19-KA-522.

19-KA-518 1

the same day with a verdict of guilty as charged.2 On June 27, 2019, defendant

was sentenced to ten years imprisonment with the Department of Corrections. The

State later filed a habitual offender bill of information.

On July 15, 2019, the trial court adjudicated defendant as a third felony

offender and vacated defendant’s previous sentence.3 Defendant was thereupon

resentenced to twenty years imprisonment at hard labor without the benefit of

probation or suspension of sentence. Defendant objected to the sentence imposed.

On July 26, 2019, defendant filed a motion for an appeal regarding his verdict

rendered on June 25, 2019, his misdemeanor and felony sentences imposed on

June 27, 2019, and his habitual offender sentence imposed on July 15, 2019. On

July 30, 2019, the trial court granted the appeal.

Defendant now appeals challenging the trial court’s denial of his motion to

recuse. Defendant further complains that the record on appeal is incomplete and

inaccurate and that the imposed enhanced sentence is excessive.

FACTS

Detectives Blaine Howard and Daniel Lassus, then with the Project STAR

division of the Jefferson Parish Sheriff’s Office, were investigating information

received from a confidential informant regarding narcotics distribution by Tony

Ford.4 They surveilled Mr. Ford and his residence in an unmarked police car on

several different dates. Until January 20, 2018, the detectives saw nothing

significant.

Both detectives testified that on January 20, 2018, shortly after arriving at

Mr. Ford’s home, they observed a blue Lexus vehicle arrive and park in front of

2
On the same day, defendant was also found guilty of the misdemeanor offense of possession of
marijuana, second offense, by a simultaneous judge trial under district court case number 18-2759.
3
The habitual offender bill charged two drug-related predicate convictions from 2007 and 2011.
4
Detectives later obtained a search warrant for Mr. Ford’s residence and found cocaine and
marijuana. Detectives did not locate any money in Mr. Ford’s residence. Mr. Ford was charged with
possession of cocaine in the same felony bill of information that charged defendant.

19-KA-518 2

Mr. Ford’s home around 7:00 p.m. The driver of the Lexus was later identified as

defendant Shawn Clark. Defendant parked a short distance from the detectives on

the opposite side of the street, facing their vehicle. Defendant remained in his

vehicle; Mr. Ford exited his residence and entered the front passenger door of the

vehicle. Both detectives testified that Mr. Ford was in the vehicle for less than one

minute and that a visit of this short duration was consistent with a drug transaction.

The detectives testified that Mr. Ford re-entered his home and the blue

Lexus drove away. The detectives followed the vehicle.5 While following the

vehicle, the detectives observed that defendant failed to signal several lane

changes, the license plate illuminator bulb was out, and there was a cover over the

license plate. They conducted a traffic stop of defendant by activating the lights

and siren on their vehicle.

Detective Howard testified that after exiting their vehicle, both detectives

approached defendant’s vehicle from the rear with illuminated flashlights in their

hands. Detective Howard stated that he observed defendant move towards the

center console of the vehicle and throw a white pill bottle on the back passenger

floorboard. Detective Lassus similarly testified that he saw defendant’s hands

moving around the center console and then saw him drop a white item behind the

rear passenger seat. Detectives Howard and Lassus testified that Detective Lassus

approached the open driver’s window of defendant’s vehicle and told Detective

Howard that he smelled marijuana. Detective Lassus ordered defendant out of the

vehicle; defendant complied. Defendant was Mirandized 6 and placed in

handcuffs.

5
Detective Howard testified that they followed defendant’s vehicle for a short distance as
opposed to immediately stopping him so as to not alert Mr. Ford of their investigation. Detective Lassus
testified to similar reasons for the delay.
6
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

19-KA-518 3

Detective Howard testified that he asked defendant for his driver’s license,

which was suspended, and asked to search defendant’s vehicle, to which defendant

consented. Detective Lassus searched the vehicle and located a white pill bottle on

the rear passenger floorboard containing marijuana and forty-six multi-colored

pills. After locating the pill bottle and its contents, defendant was placed under

arrest for possession with intent to distribute based on the quantity of the pills.7

While searching defendant, Detective Howard discovered one hundred twenty-two

dollars on defendant’s person.

Pamela Williams-Cyprian, a forensic scientist at the Jefferson Parish

Sheriff’s Office Crime Laboratory, testified briefly as to her work in analyzing and

identifying controlled dangerous substances. She tested twenty-one pills of the

forty-six multi-colored pills, which collectively contained three grams of

methamphetamine.8

Defendant testified at trial that the blue Lexus belonged to his girlfriend and

that he was driving it on the day in question to take the car to get the license plate

light and window mechanics fixed. On his way to the mechanic, defendant passed

Mr. Ford’s house and saw him arguing outside with his girlfriend. Defendant

testified that he stopped to prevent Mr. Ford from getting into trouble. Defendant

admitted that Mr. Ford got into his vehicle. He testified that they had a short

conversation during which defendant warned Mr. Ford to stop fighting with his

girlfriend to avoid getting himself into trouble, and then Mr. Ford exited the

vehicle.

7
Defendant was also issued a traffic citation at that time. Defendant testified at trial that he did
not learn of the citation until it was presented at trial.
8
Ms. Williams-Cyprian also tested the vegetable matter, which tested positive for marijuana and
weighed approximately one gram.

19-KA-518 4

Defendant testified that he left Mr. Ford’s house and was pulled over two to

three miles later.9 Defendant stated that he made no movements towards the center

console or the glove box. Defendant denied that his window was down, and said

that he had no knowledge that the pill bottle was in the car.10 Defendant testified

that he was not read his Miranda rights and did not consent to a search of the

vehicle. Defendant also testified as to his prior convictions, and acknowledged

that he was on parole from an earlier conviction at the time of his arrest.

ASSIGNMENT OF ERROR NUMBER ONE

Motion to recuse

In his first assignment of error, defendant argues that the trial judge erred in

denying his motion to recuse when the record indicates that the trial judge

prosecuted defendant in one of the predicate offenses used to adjudicate defendant

as a third felony offender.

Defendant argues that the trial judge was made aware that he prosecuted

defendant in a prior case before trial started. Defendant asserts that defense

counsel informed the trial judge that if defendant was convicted, the State intended

to use that prior conviction as a predicate offense when filing a habitual offender

bill of information. Defendant further asserts that he requested that the judge

recuse himself at that point, but that the request was denied.

On appeal, defendant argues that contrary to the trial judge’s assertion, the

judge could not be fair and impartial. Defendant asserts that the State and the

judge attempted to pressure defendant into pleading guilty. Defendant contends

that the judge’s repeated reference to the State’s plea offer gives the appearance

that the judge thought defendant was guilty before trial. Defendant argues that the

9
Defendant testified that another police officer dressed in army camouflage driving a truck pulled
up next to his vehicle, but was dismissed by the officers who initiated the stop.
10
The State played for the jury a portion of a phone call made by defendant from jail to his
girlfriend the day after his arrest. During that phone call, defendant stated that the marijuana was a
misdemeanor and that the pills were “not real.”

19-KA-518 5

trial judge ordered the bailiff to remove Amos St. Cyr, whom he wished to have

assist his defense counsel, from the courtroom. Defendant also alleges that the trial

judge treated him harshly regarding his failure to return to court after a recess

during a previous motions hearing.11 Defendant concludes that despite the trial

judge’s denial that he remembered prosecuting defendant, the trial judge should

have recused himself, and thus, defendant’s conviction and sentence should be

vacated.

The State asserts that the trial judge acted appropriately in his denial of the

motion to recuse. The State argues that La. C.Cr.P. art. 674 requires a written

motion by a party seeking to recuse a judge, and that because defendant failed to

file a written motion, there is nothing to review on appeal. The State asserts that

even if this Court does look at the merits of the motion to recuse, relief is still not

warranted. The State contends that a trial judge is presumed to be impartial and

the burden is on the party seeking recusal to prove otherwise. The State argues

that if the motion contains valid grounds for recusal, the trial judge must recuse

himself or refer the motion to another judge. The State contends that otherwise,

the trial judge can overrule the motion.

The State asserts that the situation at hand does not qualify as a reason for

recusal under the exhaustive list contained in La. C.Cr.P. art. 671(A). The State

contends that previous prosecution on a prior unrelated case does not require

recusal. The State asserts that recusal for bias, prejudice, and personal interest is

also unwarranted. The State rebuts defendant’s claim that the trial judge treated

defendant harshly. The State asserts that the trial judge’s refusal to allow

defendant to have Mr. St. Cyr act as special counsel for the defense was legally

proper because Mr. St. Cyr was neither counsel of record, nor a licensed Louisiana

11
Defendant was found in contempt of court for failing to return to court following a recess
during a motions hearing.

19-KA-518 6

attorney. The State also argues that neither the State nor the trial judge attempted

to pressure defendant into accepting the plea offer, but instead made efforts to

ensure that defendant had time to consider the offer. The State contends that the

circumstances of defendant’s contempt do not support recusal. The State points

out that defendant’s examples of “harsh treatment” occurred before the judge was

even made aware that he previously prosecuted defendant. The trial judge stated

that he did not recognize defendant, and defendant does not allege that the judge

had any prosecutorial role regarding his current case. The State argues that

defendant does not point to any specific ruling indicating bias and that the verdict

was returned by a jury. The State further asserts that defendant’s habitual offender

status was conclusively established by a fingerprint expert and by exhibits. The

State contends that defendant did not dispute his prior convictions.

According to the June 25, 2019 minute entry and transcript, defendant orally

requested that the trial judge recuse himself and/or grant a mistrial. Defendant

stated that during investigations relating to a possible habitual bill proceeding,

defendant discovered that the trial judge prosecuted him on one of his predicate

offenses from 2007. Defendant acknowledged that there was no indication that he

and the trial judge recognized each other. Defendant argued that in his experience,

trial judges have recused themselves upon discovering that they are presiding over

someone they previously prosecuted. The trial judge reiterated that he and

defendant did not recognize each other and stated that he could be fair and

impartial. The trial judge denied the requests, and defendant objected. No written

motion to recuse was filed.

A party desiring to recuse a trial judge shall file a written motion assigning

the ground for recusal. State v. Neely, 08-707 (La. App. 5 Cir. 12/16/08), 3 So.3d

532, 537, writ denied, 09-248 (La. 10/30/09), 21 So.3d 272; State v. Page, 02-689

(La. App. 5 Cir. 1/28/03), 837 So.2d 165, 181, writ denied, 03-951 (La. 11/7/03),

19-KA-518 7

857 So.2d 517 (citing La. C.Cr.P. art. 674).12 In State v. Crothers, 278 So.2d 12,

14 (La. 1973), cert. denied, 414 U.S. 1096, 94 S.Ct. 731, 38 L.Ed.2d 555 (1973),

the Louisiana Supreme Court found that the defendant’s motion to recuse was not

in writing as required by La. C.Cr.P. art. 674, and therefore, the denial of the oral

motion for recusal presented nothing for it to review. (See also: Neely, supra;

State v. Lewis, 97-1244 (La. App. 3 Cir. 3/6/98), 728 So.2d 1, 9, writ denied, 98-

977 (La. 9/18/98), 724 So.2d 752; State v. Williams, 96-1587 (La. App. 4 Cir.

4/16/97), 693 So.2d 249, 252-53, writ denied, 97-2513 (La. 4/9/98), 717 So.2d

1138; and State v. Davis, 485 So.2d 981, 982-83 (La. App. 4 Cir. 1986), writ

denied, 488 So.2d 1019 (La. 1986); where these appellate courts recognized that

there was nothing to review when the defendants orally moved to recuse the trial

judges.)

Because defendant failed to file a written motion assigning the ground for

recusal, there is nothing for this Court to review. Accordingly, this assignment of

error is without merit.

ASSIGNMENT OF ERROR NUMBER TWO

Incomplete and inaccurate transcript

In his second assignment of error, defendant argues that the record is

incomplete and thus infringes on his constitutional right to a full judicial appeal.

Defendant contends that the record did not contain the entire transcript from June

24, 2019, and that even after the record was supplemented, the transcripts remain

incomplete and inconsistent with the minute entry for that day. Defendant asserts

12
La. C.Cr.P. art. 674 sets forth the procedure for recusation of a trial judge:
A party desiring to recuse a trial judge shall file a written motion therefor assigning the
ground for recusation. The motion shall be filed prior to commencement of the trial
unless the party discovers the facts constituting the ground for recusation thereafter, in
which event it shall be filed immediately after the facts are discovered, but prior to
verdict or judgment. If a valid ground for recusation is set forth in the motion, the judge
shall either recuse himself, or refer the motion for hearing to another judge or to a judge
ad hoc, as provided in Article 675. (Emphasis added.)

19-KA-518 8

that the minute entry lists which jurors were excused for cause, excused by a

peremptory challenge, or selected. He states that the transcript does not contain

any of the challenges or what was discussed at the noted bench conferences, but

the minute entry shows that defendant used all of his peremptory challenges.

Defendant asserts that without those portions of the transcript, it is impossible to

determine whether he was forced to exhaust his peremptory challenges because

one or more challenges for cause were improperly denied, resulting in a jury that

was not favorable towards defendant.

Additionally, defendant argues that the minute entry for June 24, 2019

differs from the corresponding transcript. Defendant asserts that the minute entry

shows prospective jurors Earline Colbert and Dorothy Gardner were excused by

the court for cause, but that the transcript does not show either of these names

called by the judge when excusing prospective jurors. Defendant argues that such

inaccuracies and inconsistencies render it impossible to determine whether or not

one or more of defendant’s challenges for cause were erroneously denied, forcing

him to use all of his peremptory challenges and resulting in a biased juror.

The State asserts that the second supplemental record, which was filed in

this Court after defendant filed his appellate brief, contains the previously non-

transcribed portions of the voir dire, the absence of which formed the basis of

defendant’s second claim on appeal. The State argues that the additional material

within the second supplemental record rendered defendant’s second claim moot, or

alternatively, without merit. Specifically, the State contends that the second

supplemental record includes transcripts of the bench conferences where the

parties exercised their challenges, and the judge ruled on them. The State also

asserts that the second supplemental record reflects that prospective jurors Earline

Colbert and Dorothy Gardner were excused for cause by the judge. The State

argues that the record is therefore neither incomplete nor inaccurate. The State

19-KA-518 9

concludes that defendant’s claim is rendered moot, or alternatively, that it should

be denied on the merits based on the current state of the record.

La. Const. Art. I, § 19 provides that no person shall be subjected to

imprisonment without the right of judicial review based upon a complete record of

all evidence upon which the judgment is based. La. C.Cr.P. art. 843 requires, in all

felony cases, the recording of “all of the proceedings, including the examination of

prospective jurors, the testimony of witnesses, statements, rulings, orders, and

charges by the court, and objections, questions, statements, and arguments of

counsel.”

A defendant has a right to a complete transcript of the trial proceedings,

particularly where, as in this case, appellate counsel did not represent defendant at

trial. Material omissions from trial court proceedings bearing on the merits of an

appeal require reversal; however, a slight inaccuracy in a record or an

inconsequential omission from it which is immaterial to a proper determination of

the appeal does not require reversal of a conviction. A defendant is not entitled to

relief because of an incomplete record absent a showing of prejudice based on the

missing portions of the transcript. See e.g., State v. Castleberry, 98-1388 (La.

4/13/99), 758 So.2d 749, 773, cert. denied, 528 U.S. 893, 120 S.Ct. 220, 145

L.Ed.2d 185 (1999); State v. Spears, 18-663 (La. App. 5 Cir. 12/11/19), 286 So.3d

1064, 1099. “The materiality of a given omission is measured by the prejudicial

effect of the omission on the defendant in accessing the full scope of appellate

review[.]” State v. Youngblood, 18-445 (La. App. 5 Cir. 5/22/19), 274 So.3d 716,

740.

Here, defendant filed a motion to supplement the record on appeal

requesting certain transcripts of the proceedings in this case. On November 12,

2019, this Court granted defendant’s motion, ordering that the district court

supplement the appellate record with the transcripts of the proceedings held on

19-KA-518 10

May 29, 2019 and June 24, 2019, and the transcript of closing arguments held on

June 25, 2019. Pursuant to this Court’s order, a supplement to the appellate record

was filed on January 7, 2020. Defendant filed his appellate brief on February 3,

2020. Then, on February 12, 2020, the second supplement was filed. This second

supplement includes the transcript of all bench conferences held during the voir

dire.

While defendant accurately notes in his brief that the first supplement to the

record does not contain the transcript of the bench conferences during the voir dire,

the record has since been supplemented again with those transcripts. The

deficiencies defendant took issue with in the original appellate record have been

remedied by the second supplement to the appellate record, and thus, the issue has

been rendered moot. The supplemental record provides the necessary information

for a complete review required for defendant to perfect his appeal. Defendant

discusses the flaws contained in the original appellate record lodged with this

Court. Defendant argues that the transcript does not reflect the trial judge’s

excusal of Earline Colbert and Dorothy Gardner. However, the second supplement

to the record contains these transcripts. Both Earline Colbert and Dorothy Gardner

were excused for cause by the court for medical reasons.

In light of the above, we find that defendant has not demonstrated or

particularized how he has been prejudiced by the filing of the supplemental

appellate transcripts. It appears that the record, as twice supplemented, does not

contain any material omissions that preclude defendant from having a complete

appellate review, nor is the record, including the supplements, so lacking that any

of the assignments of error presented on appeal could not be addressed. Therefore,

we find that the record as twice supplemented is sufficient for a proper appellate

review, and deny this assignment of error as moot.

19-KA-518 11

ASSIGNMENT OF ERROR NUMBER THREE

Excessive sentence

Defendant next asserts that his enhanced sentence of twenty years

imprisonment is excessive. Defendant acknowledges that he did not file a motion

to reconsider sentence, but asserts that the issue can still be reviewed on appeal.

Defendant concedes that he has prior narcotics-related offenses. Defendant asserts

that while this is a factor to consider, it is not the only factor. Defendant alleges

that the trial judge failed to mention his family, his work history, or that he has no

history of violence. He argues that the State offered him a guilty plea in exchange

for a three-year sentence, but that defendant exercised his right to go to trial and

was then sentenced to twenty years imprisonment. Finally, defendant alleges that

the trial judge failed to consider any of the factors set forth in La. C.Cr.P. art. 894.1

while sentencing defendant on the habitual offender bill.

The State asserts that defendant’s underlying conviction carried a sentencing

range of imprisonment, with or without hard labor, for not less than one year nor

more than ten years and a possible fine of not more than fifty thousand dollars.

The State further argues that as a third felony offender, defendant faced a

sentencing range of five to twenty years. The State asserts that the trial judge did

not abuse his broad discretion in sentencing defendant to twenty years

imprisonment. The State argues that the underlying conviction involved the

possession with intent to distribute forty-six pills containing methamphetamine,

and he was also in possession of approximately one gram of marijuana at the time.

The State also asserts that defendant had prior drug-related convictions dating back

almost twenty-five years: possession of cocaine (1995 and 2002), possession of

marijuana (2003), two counts of possession with intent to distribute cocaine

(2006), and possession with intent to distribute cocaine (2010). The State asserts

that defendant may also have a 2002 conviction of battery of a police officer. The

19-KA-518 12

State alleges that, had it chosen to habitual bill defendant as a fourth felony

offender, defendant would have faced a sentence of twenty years to life

imprisonment. The State also argues that defendant was on parole at the time of

the instant offense. The State concludes that these facts demonstrate that defendant

has not availed himself of prior opportunities for rehabilitation and instead has

continued to engage in narcotics offenses; therefore, the State asserts that

defendant’s sentence is not unconstitutionally excessive.

Defendant was charged with one count of possession with intent to distribute

methamphetamine, and the jury found him guilty as charged. The trial court

sentenced defendant to ten years imprisonment at hard labor, pointing out that

defendant committed this offense while on parole. The State filed a habitual

offender bill of information alleging defendant to be a third felony offender.13 The

trial court then vacated defendant’s prior sentence and sentenced him as a third

felony offender to twenty years imprisonment at hard labor. Defense counsel

generally objected to the enhanced sentence.

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

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

sentence only for unconstitutional excessiveness. La. C.Cr.P. art. 881.1; State v.

Converse, 03-711 (La. App. 5 Cir. 12/30/03), 864 So.2d 803, 808, writ denied, 04-

195 (La. 6/4/04), 876 So.2d 74. While defendant objected orally after he was

resentenced as a habitual offender, he did not file a motion to reconsider sentence

nor state the grounds for the objection.

13
The predicates for the habitual offender bill were as follows: 1) on November 13, 2007,
defendant pled guilty in district court case number 06-1782 to possession with intent to distribute cocaine,
a violation of La. R.S. 40:967(A), in Division “C” of the 24th Judicial District Court; and 2) on March 29,
2011, defendant pled guilty in district court case number 10-239 to possession with intent to distribute
cocaine, a violation of La. R.S. 40:967(A), in Division “G” of the 24th Judicial District Court.

19-KA-518 13

This Court has held that when the specific grounds for objection to the

sentences, including alleged non-compliance with La. C.Cr.P. art. 894.1,14 are not

specifically raised in the trial court, then these issues are not included in the bare

review for unconstitutional excessiveness, and the defendant is precluded from

raising these issues on appeal. See e.g., State v. Brown, 15-96 (La. App. 5 Cir.

9/15/15), 173 So.3d 1262, 1269, writ denied, 15-1872 (La. 10/10/16), 207 So.3d

403; State v. Escobar-Rivera, 11-496 (La. App. 5 Cir. 1/24/12), 90 So.3d 1, 8, writ

denied, 12-409 (La. 5/25/12), 90 So.3d 411. Therefore, defendant is not entitled to

a review of whether the trial court complied with La. C.Cr.P. art. 894.1 in this

appeal and is limited to a review of his sentence for unconstitutional excessiveness.

See State v. Hills, 03-716 (La. App. 5 Cir. 12/9/03), 866 So.2d 278, 286, writ

denied, 04-1322 (La. 4/22/05), 899 So.2d 569; see also Escobar-Rivera, 90 So.3d

at 8.

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 the statutory limits, the imposition of that sentence

may still violate a defendant’s constitutional right against excessive punishment.

State v. Cann, 471 So.2d 701 (La. 1985). Such a sentence may be considered

excessive if it is grossly disproportionate to the offense or imposes needless and

purposeless pain and suffering. State v. Nguyen, 06-969 (La. App. 5 Cir. 4/24/07),

958 So.2d 61, 64, writ denied, 07-1161 (La. 12/7/07), 969 So.2d 628.

Nevertheless, a trial judge is afforded wide discretion in determining a

sentence, and a sentence will not be set aside as excessive absent clear abuse of

14
La. C.Cr.P. art. 894.1(C) states that the court must note for the record the considerations and
factual basis for an imposed sentence. While the trial judge does not need to articulate every aggravating
and mitigating circumstance, the record must reflect adequate considerations in sentencing the defendant.
State v. Smith, 433 So.2d 688, 698 (La. 1983). In this case, while imposing defendant’s original sentence,
the trial judge stated that he looked at the factors in La. C.Cr.P. art. 894.1 and considered them. The trial
judge stated the sentence imposed was based on what he heard at trial and defendant’s prior criminal
record.

19-KA-518 14

discretion. State v. Forshee, 395 So.2d 742, 744 (La. 1981); State v. Taylor, 04-

689 (La. App. 5 Cir. 12/14/04), 892 So.2d 78, 81. In selecting a proper sentence, a

trial judge is not limited to considering only a defendant’s prior convictions, but

may properly review all prior criminal activity. State v. Bartholomew, 18-670 (La.

App. 5 Cir. 10/23/19), 282 So.3d 374, 385. The issue on appeal is whether the trial

court abused its discretion, not whether another sentence might have been more

appropriate. State v. Napoleon, 01-1222 (La. App. 5 Cir. 2/26/02), 811 So.2d 980,

983. An appellate court shall not set aside a sentence for excessiveness if the

record supports the sentence imposed. La. C.Cr.P. art. 881.4(D).

In reviewing a sentence for excessiveness, the appellate court must consider

the crime and the punishment in light of the harm to society and gauge whether the

penalty is so disproportionate as to shock its sense of justice. State v. Lobato, 603

So.2d 739, 751 (La. 1992); Nguyen, supra. Generally, maximum sentences are

reserved for cases involving the most serious violations of the offense charged and

the worst type of offender. See e.g., State v. Stokes, 19-128 (La. App. 5 Cir.

9/4/19), 279 So.3d 517, 523. An appellate court should consider the following

factors: 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.

State v. Nguyen, 958 So.2d at 64. However, there is no requirement that specific

matters be given any particular weight at sentencing. State v. Tracy, 02-227 (La.

App. 5 Cir. 10/29/02), 831 So.2d 503, 516, writ denied, 02-2900 (La. 4/4/03), 840

So.2d 1213.

The underlying offense occurred on January 20, 2018. Effective as of

August 1, 2017, the underlying offense carries a sentence of one to ten years

imprisonment. See La. R.S. 40:967. The enhancement applicable to such a third

felony offense is a sentence of not less than one-half of the longest possible

sentence for the conviction and not more than twice the longest possible sentence

19-KA-518 15

prescribed for a first conviction. See La. R.S. 15:529.1. As such, defendant faced

a sentencing range of between five years imprisonment and twenty years

imprisonment as a third felony offender. Defendant was sentenced to the

maximum sentence of twenty years imprisonment as a third felony offender.

Effective August 1, 2017, La. R.S. 40:967 was amended to lower the

sentencing range for the instant offense, to permit the sentence to be imposed with

or without hard labor, and to separate sentencing ranges by aggregate weight of the

Schedule II drug. Prior to that amendment, a defendant faced a sentencing range at

hard labor of two to thirty years. Further, La. R.S. 15:529.1 has also undergone

amendments. Until the amendment effective November 1, 2017, defendant would

have faced an enhanced range of not less than two-thirds of the longest possible

sentence for the conviction and not more than twice the longest possible sentence

prescribed for a first conviction. Therefore, both statutes underwent changes in

2017, and case law must be considered with these amendments in mind.

Considering the first factor, the nature of crime, this Court has previously

looked at the quantity and monetary value of the drugs in question and the general

circumstances surrounding the crime. See generally Stokes, supra; State v.

Arceneaux, 18-642 (La. App. 5 Cir. 4/24/19), 271 So.3d 362, 367. Here, the record

does not reflect a monetary estimate as to the value of the drugs. However, the

record states that of the forty-six pills, twenty-one were tested and contained three

grams of methamphetamine. The detectives also recovered marijuana.

Regarding the nature and background of the offender, defendant was born on

July 24, 1970, and was therefore forty-seven years old at the time of the offense.

Defendant had at least five prior felony convictions within twenty-four years.

Defendant has the following prior convictions: two convictions for possession of

19-KA-518 16

cocaine (1995 and 2002), possession of marijuana (2003),15 convictions for two

counts of possession with intent to distribute cocaine (2006), and possession with

intent to distribute cocaine (2010).16 At trial, defendant denied any recollection of

a possible 2002 conviction for battery of a police officer. Simultaneously with this

instant conviction, defendant was convicted by bench trial of possession of

marijuana. Further, at the time of the offense, defendant was on parole for his

2011 drug conviction. None of defendant’s predicates are crimes of violence. The

record contains little other information about defendant’s background.

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

courts, jurisprudence provides support for the imposed sentence.

In State v. Baillio, 49,093 (La. App. 2 Cir. 6/25/14), 144 So.3d 1162, the

defendant pled guilty to charges of carrying a concealed weapon by a convicted

felon and possession with intent to distribute a Schedule II controlled dangerous

substance (methamphetamine). As to the drug conviction, the defendant was

sentenced to serve thirty years at hard labor and fined. At the time of the offense,

the sentencing range for the drug conviction was two to thirty years. The appellate

court upheld the sentence, pointing out that despite the State’s decision not to file a

habitual offender bill, the defendant was a fifth felony offender and that his prior

offenses spanned more than twenty-five years. The court found it “obvious that

the defendant has failed to benefit from prior leniency in sentencing and has

continued in the same pattern of criminal activity for more than a twenty-five-year

period, escalating his activities from the possession to the sale of illegal drugs. His

15
The record is unclear as to whether these dates (1995, 2002, and 2003) are the respective dates
when the previous crimes were committed by defendant, when the previous charges were instituted
against defendant, or when defendant was convicted of the previous charges.
16
The record indicates that these dates (2006 and 2010) respectively are the dates the previous
charges were instituted against defendant. Defendant’s actual conviction dates on these charges are
November 13, 2007 and March 29, 2011, respectively, as noted earlier.

19-KA-518 17

lack of rehabilitation, as evidenced by these facts, qualifie[d] him as the worst type

of offender for which a maximum sentence is appropriate.” Id. at 1166.

Here, defendant was sentenced as a third felony offender to twenty years

imprisonment. As seen in Baillio, prior case law permitted higher sentencing

ranges. Defendant in the instant case and the defendant in Baillio both had five

prior convictions spanning more than two decades. As in Baillio, defendant’s

criminal record reflects that defendant has escalated his activities from possession

to possession with the intent to distribute illegal drugs. This pattern strongly

demonstrates that defendant resists rehabilitation, qualifying him as the type of

offender for whom a maximum sentence is appropriate. This determination is

further supported by the fact that defendant committed the underlying offense

while on parole for a previous drug charge. Therefore, based on the nature of the

crime, defendant’s extensive drug-related criminal background, and sentences

imposed by other courts, we find that the enhanced sentence imposed in the present

case is not unconstitutionally excessive. This assignment of error is without merit.

ERRORS PATENT REVIEW

The record was reviewed for errors patent, according to La. C.Cr.P. art. 920;

State v. Oliveaux, 312 So.2d 337 (La. 1975); and State v. Weiland, 556 So.2d 175

(La. App. 5th Cir. 1990).

While the relevant minute entries state that defendant was advised of the

provisions of La. C.Cr.P. art. 930.8 at both the original sentencing and at the

habitual offender sentencing, the transcripts reflect that the trial judge did not

advise defendant of the provisions of La. C.Cr.P. art. 930.8 at the time of either

sentencing. Where there is a discrepancy between the transcript and the minute

entry, the transcript generally prevails. State v. Lynch, 441 So.2d 732, 734 (La.

1983).

19-KA-518 18

Accordingly, by way of this opinion, defendant is hereby notified that no

application for post-conviction relief, including applications which seek an out-of-

time appeal, shall be considered if filed more than two years after the judgment of

conviction and sentence has become final under the provisions of La. C.Cr.P. arts.

914 or 922. State v. Becnel, 18-549 (La. App. 5 Cir. 2/6/19), 265 So.3d 1017,

1022; State v. Barnett, 18-254 (La. App. 5 Cir. 4/3/19), 267 So.3d 209, 235.

CONCLUSION

For the foregoing reasons, defendant’s conviction and sentence are affirmed.

AFFIRMED

19-KA-518 19

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

MARY E. LEGNON
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
JUNE 24, 2020 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT
REPRESENTED BY COUNSEL, AS LISTED BELOW:

19-KA-518
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE FRANK A. BRINDISI (DISTRICT JUDGE)
THOMAS J. BUTLER (APPELLEE) ANDREA F. LONG (APPELLEE) CYNTHIA K. MEYER (APPELLANT)

MAILED
HONORABLE PAUL D. CONNICK, JR.
(APPELLEE)
DISTRICT ATTORNEY
LYNN SCHIFFMAN (APPELLEE)
RACHEL L. AFRICK (APPELLEE)
ASSISTANT DISTRICT ATTORNEYS
TWENTY-FOURTH JUDICIAL DISTRICT
200 DERBIGNY STREET
GRETNA, LA 70053