State of Louisiana Versus Julius Hankton

STATE OF LOUISIANA NO. 20-KA-388

VERSUS FIFTH CIRCUIT

JULIUS HANKTON COURT OF APPEAL

STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 15-1798, DIVISION "L"
HONORABLE DONALD A. ROWAN, JR., JUDGE PRESIDING

July 03, 2021

STEPHEN J. WINDHORST
JUDGE

Panel composed of Judges Fredericka Homberg Wicker,
Stephen J. Windhorst, and John J. Molaison, Jr.

SENTENCES ON COUNTS ONE, TWO, THREE, FOUR, AND SIX
AFFIRMED; SENTENCE ON COUNT FIVE VACATED; CASE
REMANDED
SJW
JJM

DISSENTS WITH REASONS
FHW

COUNSEL FOR PLAINTIFF/APPELLEE,
STATE OF LOUISIANA
Honorable Paul D. Connick, Jr.
Thomas J. Butler
Andrea F. Long
Seth W. Shute
Douglas E. Rushton
Lynn Schiffman

COUNSEL FOR DEFENDANT/APPELLANT,
JULIUS HANKTON
Bruce G. Whittaker

WINDHORST, J.

Defendant/Appellant, Julius Hankton, seeks review of his sentences imposed

on remand. For the following reasons, we affirm defendant’s sentences on counts

one, two, three, four, and six, but vacate defendant’s sentence on count five, and

remand this matter for further proceedings on count five.

FACTS and PROCEDURAL HISTORY 1

On May 1, 2015, the Jefferson Parish District Attorney filed a bill of

information charging Hankton with one count of possession with intent to distribute

heroin in violation of La. R.S. 40:966(A) (count one), four counts of possession of a

firearm by a convicted felon in violation of La. R.S. 14:95.1 (counts two, three, five,

and six), and one count of possession of Oxycodone, in violation of La. R.S.

40:967(C) (count four). The six separate counts for which defendant was charged

all arose out of a single search warrant executed on March 19, 2015 at defendant’s

residence located in Metairie, Louisiana during which law enforcement seized a

significant amount of heroin packaged for sale, drug paraphernalia, multiple cell

phones, a large amount of cash, and four guns. Defendant pled not guilty to all

counts.

Trial commenced before a twelve-person jury on January 18, 2017 and

revealed the following. Gregory Morrow, a recovering heroin addict, testified that

in 2014 he was working with the Federal Bureau of Investigations (FBI) as a

confidential informant. While working with the FBI, Morrow purchased heroin

from defendant, who he knew as “Ju,” on November 7 and 19, 2014, and on

December 5, 2014, in quantities of one-half to one gram for approximately $50 to

$100.

1 This opinion replaces and supersedes a document mistakenly issued on June 9, 2021 as an opinion. The
June 9, 2021 document was recalled and is of no effect whatsoever.

20-KA-388 1

A video of the November 7, 2014 drug transaction between defendant and

Morrow was played for the jury. On the video, a vehicle driven by defendant was

shown pulling up to Morrow’s vehicle where the passenger of defendant’s vehicle

then handed Morrow a gram of heroin in exchange for $100. A second purchase

made by Morrow on November 19, 2014, from defendant was for half a gram of

heroin and was also recorded on video; however, Morrow testified that the video did

not capture defendant, who had given him the heroin and was out of sight of the

surveillance camera. On December 5, 2014, Morrow made a third purchase of

heroin from defendant near the Brother Martin football field. This third sale was not

captured on video because Morrow was instructed by defendant to exit his vehicle

and enter defendant’s vehicle, where defendant sold him the heroin out of the visual

field of the surveillance camera positioned in Morrow’s vehicle.

Stacey Taranto of the Jefferson Parish Sheriff’s Office testified that in 2014

and 2015 she was a member of the narcotics unit working as a Task Force Officer

with the FBI. She explained that she conducted surveillance of the controlled buys

about which Morrow had testified, and that in March of 2015, she participated in the

execution of a search warrant at defendant’s residence in Metairie, Louisiana.

Officer Taranto testified that during the November 19, 2014 controlled buy,

she observed a silver BMW pull into the meeting location set up between defendant

and Morrow. She then observed a black male, wearing a black sweatshirt with “O-

B-E-Y” written on it, exit the vehicle he was driving and conduct a hand-to-hand

drug transaction with Morrow. She further testified that during her surveillance of

the drug transactions conducted on November 19, 2014 and December 5, 2014, she

was able to obtain the license plate numbers from the vehicles driven by defendant

and discovered that the vehicle used in November was registered to a female named

Jasmine Chaney (defendant’s girlfriend), who resided in Metairie, Louisiana.

Further, the vehicle used in December 2014 was a rental car which had been rented

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under the name Jasmine Chaney. Officer Taranto testified that she performed a

traffic stop of the vehicle following the December 5, 2014 drug transaction and

confirmed defendant as the driver of the vehicle. A search of the vehicle driven by

defendant revealed a black sweatshirt with “O-B-E-Y” written on the front, a cell

phone, and two small bags of heroin.

Special Agent Christopher Bauer of the New Orleans Division of the FBI and

member of the Violent Crimes Task Force participated in the controlled buy on

November 19, 2014, during which he observed a silver BMW pull into the parking

lot at the meeting location alongside Morrow’s vehicle. He then observed a black

male wearing a sweatshirt with “O-B-E-Y” written across the front exit the BMW

and interact with Morrow. Special Agent Bauer also confirmed his participation in

the stop of defendant’s vehicle after the December 2014 controlled buy. Special

Agent Bauer indicated that defendant was arrested at the time of the stop, but was

subsequently released.

Special Agent Bauer testified that subsequent to defendant’s release, a warrant

was obtained for the search of defendant’s apartment. During the execution of the

search warrant, defendant was detained, and was found to have 26 small plastic

baggies containing heroin and eight pills that tested positive for Oxycodone in his

pants. Additionally, a Glock 17, Glock 29, Glock 21, an AK-47 rifle, ammunition,

multiple cell phones, a scale, and over $20,000 in cash were seized during the search

of the master bedroom in which defendant’s pants were located. Upon discovery of

the evidence, defendant admitted his ownership of “all the stuff in the house.”

FBI Special Agent Crystal Bender, also of the New Orleans Violent Crimes

Task Force, likewise testified regarding the various monitored phone conversations

between Morrow and defendant during which the narcotics transactions were

arranged, as well as the monitored video recordings of the controlled buys that took

place. Agent Bender explained that surveillance of the Metairie apartment was also

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conducted during which defendant was seen entering and exiting the residence. At

one time, defendant was seen exiting the apartment, approaching the driver of a

white sedan, leaning inside the vehicle, and retreating back into the apartment after

a couple of seconds.

Agent Bender further testified regarding a controlled buy between defendant

and an unnamed confidential informant on May 8, 2014, which was recorded on

video surveillance and played for the jury. Agent Bender identified defendant from

the video and confirmed that in exchange for $100, the confidential informant

received .31 grams of heroin. She explained that the quantity received was less than

the amount paid. A recorded phone conversation between defendant and the

confidential informant was played during which defendant explained that the reason

it was “short” was because it was “bricked up,” meaning it had been cut off of a

“solid piece.”

Sergeant Joshua Collins, an expert in the field of quantity, packaging, pricing,

and distribution of narcotics, testified that the 26 bags of heroin individually

packaged within a larger plastic bag weighing approximately 21 grams, the $20,000,

and the scale all found in defendant’s apartment are indicative of street-level

distribution.

A stipulation was accepted by the parties that Sergeant Joel O’Lear, an expert

in fingerprint examination and comparison, if called as a witness, would testify that

defendant’s fingerprints were those contained on the certified conviction packets,

establishing the prior felonies as alleged in counts two, three, five, and six.

The jury found defendant guilty as charged. The trial court sentenced

defendant on count one, to 50 years imprisonment at hard labor, with the first ten

years to be served without benefit of probation, parole, or suspension of sentence;

on each of counts two, three, five, and six, to 20 years imprisonment at hard labor to

be served without benefit of probation, parole, or suspension of sentence; and on

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count four, to two years imprisonment at hard labor. The trial court further ordered

defendant’s sentences on all counts to be served consecutively to each other.

On July 19, 2017, defendant filed a motion for out-of-time appeal, which was

granted by the trial court on July 24, 2017. On appeal, this Court affirmed

defendant’s convictions on all six counts. This Court affirmed the term of the

sentences imposed on each count, but vacated the consecutive nature of the

sentences, and amended the sentences by ordering that the sentences on each count

be served concurrently. State v. Hankton, 17-628 (La. App. 5 Cir. 7/31/18), 251

So.3d 1234, 1237, 1240, writ granted in part, 18-1457 (La. 5/20/19), 270 So.3d 569.

This Court also amended the sentence on count one to delete the parole restriction,

and as amended, affirmed all the sentences. Id.

On appeal to the Louisiana Supreme Court, the Court granted defendant’s writ in

part, reversing the court of appeal’s decision only in that it amended the sentences,

and affirmed as amended. State v. Hankton, 18-1457 (La. 5/20/19), 270 So.3d 569.

The Supreme Court vacated defendant’s sentences and remanded the case to the trial

court for resentencing. Id. On remand, the Supreme Court ordered the trial court

“to resentence defendant to a punishment that is not unconstitutionally excessive and

to articulate its reasons for the sentences imposed, including as to whether some or

all of the sentences should be served consecutively.” Id.

On remand, the trial court resentenced defendant on count one to 50 years

imprisonment at hard labor, with the first 10 years to be served without benefit of

probation or suspension of sentence (count one); on counts two, three, five, and six

to 20 years imprisonment at hard labor to be served without benefit of probation,

parole, or suspension of sentence; and on count four to 2 years imprisonment. The

trial court ordered defendant’s sentences on counts one, two, three, five, and six to

be served consecutively and count four to be served concurrently. These sentences

are substantially the same as the initial sentence, except that the sentence for

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possession of Oxycodone is 2 years instead of 4 years as in the initial sentence.

Defense counsel objected to the sentence and filed a motion for reconsideration, but

the motion was denied. This appeal followed.

LAW and ANALYSIS

In the instant appeal, post-resentencing, defendant asserts that the trial court

imposed an unconstitutionally excessive sentence. Defendant asserts that his

sentence of 130 years of imprisonment is unconstitutionally excessive because the

trial court imposed near maximum available sentences on each count and ordered

them to be served consecutively constituting needless and purposeless pain and

suffering. He argues that the trial court failed to justify ordering that sentences be

served consecutively under La. C.Cr.P. art. 883. He notes that he was 25 years old

at the time he committed the instant crimes, is a father of a young child, and that his

crimes are non-violent offenses. He further notes that this Court previously stated,

“The record contains scant evidence to support a finding that this case involved the

most serious violation of the offenses and the worst type of offender,” citing State v.

Hankton, 251 So.3d at 1247.

The State responds that the trial court did not abuse its broad sentencing

discretion and that the record supports the imposition of consecutive sentences in

five of the six counts. Below, we address whether the consecutive nature of

defendant’s sentence constitutes an excessive sentence.2

Error Patent in Sentencing

Ordinarily, we reserve discussion of errors patent until the end of an opinion,

but in this case it is logically discussed first. We reviewed the record for errors

patent pursuant to the mandates of La. C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d

2 Because defendant’s appeal focuses on the consecutive nature of his sentences, and this Court

previously considered and affirmed each of defendant’s individual sentences, we do not believe
it is necessary to address whether each individual sentence is excessive herein. Hankton, supra.

20-KA-388 6

337 (La. 1975); and State v. Weiland, 556 So.2d 175 (La. App. 5 Cir. 1990), and for

the following reasons, we find an error in the sentencing on count five.

Although the commitment minute entry and the Uniform Commitment Order

(UCO) indicate separate sentences on each count, the transcript from defendant’s

sentencing indicates otherwise for count five. The trial court must impose a separate

sentence for each separate count on which a defendant is convicted. See La. C.Cr.P.

art. 883; State v. Hebert, 02-1252 (La. App. 5 Cir. 4/8/03), 846 So.2d 60, 66. State

v. Narcisse, 01–49 (La. App. 5 Cir. 6/27/01), 791 So.2d 149, 155, writ denied, 01–

2231 (La. 6/14/02), 817 So.2d 1152. Patent sentencing error occurs when a trial

court, in sentencing for multiple counts, does not impose a separate sentence for each

count. State v. Joseph, 96-187 (La. App. 5 Cir. 11/14/96), 685 So.2d 237, 248, writ

granted in part and remanded, 96-2998 (La. 5/9/97), 693 So.2d 782.

When initially sentencing defendant on the four counts of felon in possession

of a firearm, the trial court mistakenly referred to count four, which is for the

possession of oxycodone, instead of count five. The sentencing transcript indicates

that the trial court sentenced defendant as follows:

Counts two, three, four, and six. I will sentence you to twenty years
at hard labor, Department of Corrections; that’s to be without
benefit of probation and parole, or suspension of sentence.

Counts two, three, four, and six are to be run consecutive.

Count four—I’m sorry, I might have got that wrong.

I’m sorry, it’s count two, three, five, and six, are to be run
consecutive. Those are the felon in possession of a firearm.

Count four is the possession of Oxycodone, Percocet.
I’ll sentence you to four years at hard labor, Department of
Corrections. I will run that concurrent.

As I state, counts one, two, three, five, and six, are to be run
consecutive to each other. Count four will be concurrent.

Based on the above, we find the transcript reflects that the trial court intended

defendant’s four counts of felon in possession of a firearm to receive the same

20-KA-388 7

sentence, which was twenty years at hard labor without the benefit of parole,

probation, or suspension of sentence. Specifically, we find that the trial court’s

statements that counts two, three, five, and six were to run consecutive reflect that

separate sentences were imposed for the felon in a possession of firearm counts.

However, while imposing the 20-year sentences on the felon in a possession

of a firearm counts, the trial court erroneously referred to count four, instead of count

five. Immediately noticing the oversight, the trial court made clear that count five—

not count four—was one of the counts to be served consecutively, but the court did

not actually sentence defendant on count five. As a result, we must vacate the

sentence on count five reflected in the commitment minute entry and the UCO, and

remand this matter for further proceedings on count five.

Excessiveness of the Remaining Sentences

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

of the Louisiana Constitution prohibit the imposition of excessive punishment. A

sentence is considered excessive, even if it is within the statutory limits, if it is

grossly disproportionate to the offense or imposes needless and purposeless pain and

suffering. State v. Dixon, 18-79 (La. App. 5 Cir. 8/29/18), 254 So.3d 828, 836, writ

not considered, 18-1909 (La. 2/18/19), 263 So.3d 1154, and writ denied, 18-1909

(La. 4/8/19), 267 So.3d 606. 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. Id.

A trial judge has broad discretion when imposing a sentence and a reviewing

court may not set a sentence aside absent a manifest abuse of discretion. State v.

Dufrene, 12-716 (La. App. 5 Cir. 4/10/13), 115 So.3d 22, 26. 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. State v. Pearson, 07-332 (La. App. 5 Cir.

20-KA-388 8

12/27/07), 975 So.2d 646, 656. The appellate court will 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 reviewing court shall consider

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

penalty is so disproportionate as to shock the court’s sense of justice, while

recognizing the trial court’s wide discretion. Courts also consider whether the

convictions arise out of a single course of criminal conduct. State v. Ortego, 382

So.2d 921 (La. 1980), cert. denied, 449 U.S. 848, 101 S.Ct. 135, 66 L.Ed.2d 58

(1980). When two or more convictions arise from the same act or transaction, or

constitute parts of a common scheme or plan, the terms of imprisonment shall be

served concurrently unless the court expressly directs that some or all shall be served

consecutively. La. C.Cr.P. art. 883.

A trial judge retains discretion to impose consecutive sentences on the basis

of factors such as the offender’s past criminal acts, the violent nature of the charged

offenses, or the risk that the defendant may pose to the safety of the community.

State v. Baham, 14-653 (La. App. 5 Cir. 3/11/15), 169 So.3d 558, 571-72, writ

denied, 15-40 (La. 3/24/16), 190 So.3d 1189. If the trial court elects to impose

consecutive sentences for crimes arising from a single course of conduct, it must

articulate the reasons it feels the sentence is necessary. Id. Although the imposition

of consecutive sentences requires particular justification when the crimes arise from

a single course of conduct, consecutive sentences are not necessarily excessive. Id.

The failure to articulate specific reasons for consecutive sentences does not require

remand if the record provides an adequate factual basis to support consecutive

sentences. State v. Blanchard, 03-612 (La. App. 5 Cir. 11/12/03), 861 So.2d 657, 664.

In determining 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. Arceneaux, 19-472 (La. App. 5 Cir. 1/29/20), 290 So.3d 313, 316,

20-KA-388 9

writ denied, 20-324 (La. 5/14/20), 296 So.3d 608. The sentencing court may rely on

sources of information usually excluded from the courtroom at the trial of guilt or

innocence, e.g., hearsay and arrests, and conviction records. State v. Myles, 94-217

(La. 6/3/94), 638 So.2d 218, 219. These matters may be considered even in the

absence of a proof the defendant committed the other offense. Arceneaux, 290 So.3d

at 316.

We recognize that this Court previously found defendant’s initial 132-year

sentence resulting from consecutive sentences unconstitutionally excessive.

Further, while La. C.Cr.P. art. 883 provides that the sentencing court need only

specifically state that sentences for crimes arising from a single event are to be

served consecutively, Louisiana courts have held that the sentencing court must give

reasons for consecutive sentences. State v. Baham, supra. The Louisiana Supreme

Court, after reviewing this case ordered the trial court “to resentence defendant to a

punishment that is not unconstitutionally excessive and to articulate its reasons for

the sentence imposed, including as to whether some or all of the sentence should be

served consecutively.” State v. Hankton, 270 So.2d at 569-70. Upon resentencing

defendant, the trial court considered the sentencing guidelines of La. C.Cr.P. art. 894.1,

including defendant’s extensive criminal history, the evidence at trial, defendant’s

history of distribution of heroin in the community, and that any lesser sentence

would deprecate the seriousness of the offenses.

On review of a trial court’s reasons or lack of reasons for consecutive

sentences for crimes arising from the same transaction, courts of appeal may also

consider factors evident from the trial record of the case. See Blanchard, supra. The

articulation of the factual basis for a sentence is the goal of La. C.Cr.P. art. 894.1,

not rigid or mechanical compliance with its provisions. Where the record clearly

shows an adequate factual basis for the sentence imposed, remand is unnecessary

even where there has not been full compliance with La. C.Cr.P. art. 894.1. State v.

20-KA-388 10

Lanclos, 419 So.2d 475 (La. 1982); State v. Hampton, 38,017 (La. App. 2 Cir.

1/28/04), 865 So.2d 284.

Looking to the record, we take into consideration generally the prohibited

substances which were sold by defendant; the store of prohibited substances later

seized pursuant to a warrant; the amounts and perniciousness of the drugs seized;

the facts and expert testimony which show that defendant was engaged in drug

dealing as an ongoing business; the alarming number of firearms seized; that

defendant’s wife and small child were living in his apartment; and the potential for

violence and serious harm to the public, including severe injury and homicides.

We further note that while the bill of information charges arose out of a single

event, i.e., the execution of the warrant on March 19, 2015, thorough evidence three

separate transactions (prior to seizures during execution of the warrant) was

introduced at trial showing that defendant sold heroin to undercover agents on

separate occasions.

Defendant’s criminal record shows that he is a repeat offender and career

criminal with a disregard for the law. Defendant has prior 2012 convictions of

aggravated battery, illegal possession of stolen firearm, illegal carrying of a firearm,

and possession of cocaine. Defendant also has 2017 convictions for manslaughter

and possession of heroin. The State indicated that defendant currently had a pending

case for three counts of second degree murder in an unrelated matter, and that

defendant was arrested for aggravated burglary on March 25, 2008, although those

charges were refused. The State further noted that there were other misdemeanor

arrests but did not provide specific information.

In addition, the evidence reflects that defendant was a serious drug dealer and

engaged in drug-related violence. Louisiana courts have recognized that the

legislature’s purpose in enacting laws that criminalize possession of a firearm while

also possessing a controlled substance was to prevent those engaged in drug use and

20-KA-388 11

distribution from engaging in the violent behavior. State v. Blanchard, 99-3439 (La.

1/18/01), 776 So.2d 1165, 1168-69. This statute was enacted not solely for the

protection of police officers but also for the protection of the general public. Id.

Evidence at trial established that defendant had eight oxycodone pills, 26 baggies of

heroin, a scale, four firearms, and over $20,000 in cash in his apartment in which his

girlfriend and their four-year-old child were present. Defendant’s possession of four

loaded guns while in possession of a significant quantity of heroin could have

conceivably led to a violent outcome or injury to members of the public; thereby,

rendering the nature of these offenses far-reaching for sentencing purposes.

Defendant’s actions also illustrate a disregard for the welfare of others. State v.

Hankton, 251 So.3d at 1244, citing State v. Payne, 10-47 (La. App. 5 Cir. 1/25/11),

59 So.3d 1287, writ denied, 11-387 (La. 9/16/11), 69 So.3d 1141.

Further, the record supports the trial court’s reasoning that any lesser sentence

would deprecate the seriousness of these offenses, and that there is an undue risk

during the period of a suspended sentence or probation the defendant would commit

another crime. The evidence at trial established that defendant had an ongoing drug

distribution business involving the sale of heroin for a profit, in quantities

inconsistent with personal use.

In State v. Brown, the Louisiana Second Circuit Court of Appeal found that

an aggregate sentence of 170 years on convictions for illegal use of a weapon during

a crime of violence, three counts of possession of a firearm by a convicted felon,

intent to distribute a Schedule II controlled dangerous substance (CDS), and illegal

carrying of weapons while in possession of a CDS, which represented maximum

sentence for each offense, to be served consecutively, was not excessive, and, thus,

did not violate State Constitution. State v. Brown, 42,188 (La. App. 2 Cir. 9/26/07),

966 So.2d 727, 752-53, writ denied, 07-2199 (La. 4/18/08), 978 So.2d 347. In that

20-KA-388 12

case, defendant had an extensive criminal history involving crimes of violence and

narcotics-related offenses. Id. In particular, defendant was adjudicated a third

felony offender based on convictions for illegal use of a weapon during a crime of

violence and possession of a Schedule II CDS with intent to distribute, and a second

felony offender with regard to one of his convictions for possession of a firearm by

a convicted felon. Id.

In light of the foregoing, and the trial court’s newly articulated consideration

of additional criminal charges pending against defendant, and on further

consideration of the record, we cannot say under these facts that defendant’s

aggregate 110-year sentence is unconstitutionally excessive, or that the trial court

abused its sentencing discretion in imposing consecutive sentences in this case. We

conclude that the determination that the sentences on the felon in a possession of a

firearm counts (counts one, two, three, and six) be served consecutively was within

the sound discretion of the trial court. Considering the defendant’s criminal history,

the seriousness of the offenses, the exposure and endangerment of a four-year-old

child, and the danger to the public, we conclude that the record supports the trial

judge’s sentence, and accordingly, we do not find defendant’s sentences

unconstitutionally excessive.

DECREE

For the reasons stated herein, we affirm defendant’s sentences on counts one,

two, three, four, and six. We vacate defendant’s sentence on count five and remand

this matter for further proceedings on count five.

SENTENCES ON COUNTS ONE, TWO, THREE, FOUR, AND
SIX AFFIRMED; SENTENCE ON COUNT FIVE VACATED;
CASE REMANDED

20-KA-388 13

STATE OF LOUISIANA NO. 20-KA-388

VERSUS FIFTH CIRCUIT

JULIUS HANKTON COURT OF APPEAL

STATE OF LOUISIANA

WICKER, J. DISSENTS WITH REASONS

For the following reasons, I respectfully dissent from the majority’s

opinion insofar as it finds that the trial judge did not abuse his discretion

in ordering the sentences for defendant’s four convictions for felon in

possession of a firearm in violation of La. R.S. 14:95.1 to be run

consecutively.

As this Court stated in its first opinion in this case, the record amply

justifies the individual sentences imposed by the trial court and the

individual sentences are not grossly disproportionate to the offenses or

impose needless and purposeless pain and suffering. State v. Hankton, 17-

628 (La. App. 5 Cir. 7/31/18), 251 So. 3d 1234, 1245, writ granted in

part, judgment rev’d in part, 18-1457 (La. 5/20/19), 270 So.3d 569.

However, although the individual sentences are supported, it remains my

position that “the aggregate of the four felon in possession of a firearm

convictions—all arising from the execution of one search warrant and

discovered together at the same time—is constitutionally excessive.” Id;

See also State v. Cann, 471 So.2d 701, 703 (La. 1985) (wherein the

Louisiana Supreme Court found that “although defendant was convicted

of four charges of distribution (one for marijuana and three for cocaine),

20-KA-388 1

each sale involved a relatively small amount of drugs, was separated from

the other sales by relatively short periods of time, and was made to the

same undercover policeman.” The Court determined that although each

sentence was supported, it was “the aggregate of the sentences that makes

them constitutionally excessive.”).

It is my opinion that removing the consecutive nature of defendant’s

sentences for his felon in possession of a firearm convictions would be

“supported by the jurisprudence, meet all of the societal goals of

incarceration for Defendant without imposing an undue financial burden

on the state, [would be] more proportionate to the crimes committed in the

instant case, and will eliminate the “purposeful imposition of pain and

suffering” element that is prohibited by the federal and state

constitutions.” State v. Hankton, 251 So.3d at1248.

Accordingly, for these reasons, I respectfully dissent.

20-KA-388 2

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

NANCY F. VEGA
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON SUSAN S. 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
JULY 3, 2021 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT
REPRESENTED BY COUNSEL, AS LISTED BELOW:

20-KA-388
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE DONALD A. ROWAN, JR. (DISTRICT JUDGE)
ANDREA F. LONG (APPELLEE) THOMAS J. BUTLER (APPELLEE)

MAILED
BRUCE G. WHITTAKER (APPELLANT) HONORABLE PAUL D. CONNICK, JR.
ATTORNEY AT LAW DISTRICT ATTORNEY
LOUISIANA APPELLATE PROJECT DOUGLAS E. RUSHTON (APPELLEE)
1215 PRYTANIA STREET LYNN SCHIFFMAN (APPELLEE)
SUITE 332 SETH W. SHUTE (APPELLEE)
NEW ORLEANS, LA 70130 ASSISTANT DISTRICT ATTORNEYS
TWENTY-FOURTH JUDICIAL DISTRICT
200 DERBIGNY STREET
GRETNA, LA 70053