State of Louisiana v. Keith Kisack

STATE OF LOUISIANA * NO. 2022-KA-0495

VERSUS *
COURT OF APPEAL
KEITH KISACK *
FOURTH CIRCUIT
*
STATE OF LOUISIANA
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APPEAL FROM
CRIMINAL DISTRICT COURT ORLEANS PARISH
NO. 510-800, SECTION “C”
Honorable Benedict Willard, Judge
******
Judge Daniel L. Dysart
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(Court composed of Judge Daniel L. Dysart, Judge Sandra Cabrina Jenkins, Judge
Rachael D. Johnson)

Jeff Landry
ATTORNEY GENERAL
J. Taylor Gray
Grant L. Willis
ASSISTANT ATTORNEYS GENERAL
LOUISIANA DEPARTMENT OF JUSTICE
P.O. Box 94005
Baton Rouge, LA 70804

COUNSEL FOR STATE/APPELLEE

Christopher A. Aberle
LOUISIANA APPELLATE PROJECT
P.O. Box 8583
Mandeville, LA 70470-8583

COUNSEL FOR DEFENDANT/APPELLANT

VACATED AND REMANDED
NOVEMBER 16, 2022

DLD This is an appeal of the district court’s July 22, 2021 judgment denying
SCJ
Defendant’s, Keith Kisack, Motion to Reconsider Sentence. For the following
RDJ
reasons, we vacate the judgment and remand the matter to the trial court to conduct

further proceedings consistent with this opinion.

FACTS/PROCEDURAL HISTORY

Defendant was charged with and found guilty of possession of contraband

(namely, a cell phone) in prison. Thereafter, the State filed a multiple-offender bill

based on Defendant’s contraband charge and his prior felony convictions for

possession of a firearm by a felon (2001), aggravated battery (1995), and illegal

discharge of a firearm (1993). The penalty for a fourth-felony offender under the

multiple-offender statute is twenty (20) years to life. The court imposed the

maximum sentence of life in prison without the possibility of parole. Defendant

appealed and this Court ultimately amended the sentence to include the possibility

of parole but affirmed the lifetime term imposed by the trial court. See State v.

Kisack, 2015-0083 (La. App. 4 Cir. 3/30/16), 190 So.3d 806. On writ of certiorari,

the Louisiana Supreme Court found that the trial court failed to observe the

mandatory delay before sentencing Defendant to the maximum term of life

1

imprisonment, reversed this Court’s ruling in part to vacate the habitual offender

adjudication, and remanded the matter to the trial court to conduct further

proceedings consistent with its findings. See State v. Kisack, 2018-0797 (La.

10/18/17), 236 So.3d 1201 (per curium), cert denied, ___ U.S. ____, 138 S.Ct.

1175, 200 L.Ed.2d 322. A second multiple offender adjudication was conducted

and Defendant was again found to be a fourth-felony offender. After the

sentencing delay was explicitly waived, the trial court judge imposed a sentence of

life without the benefit of probation or suspension of sentence. Defendant then

filed a Motion to Reconsider Sentence and the trial court conducted a hearing on

July 22, 2021. At that time, Defendant had pending charges of second degree

murder, attempted second degree murder, and possession of a firearm by a

convicted felon. The trial judge denied Defendant’s Motion to Reconsider

Sentence without hearing argument on the merits, reasoning that the motion would

essentially become moot if Defendant was subsequently convicted on the pending

charges. This appeal timely followed.

STANDARD OF REVIEW

“An appellate court reviewing a claim of excessive sentence must determine

whether the trial court adequately complied with the statutory sentencing

guidelines, as well as whether the facts of the case warrant the sentence imposed.”

State v. Batiste, 06–0875, pps.18–19 (La. App 4 Cir. 12/20/06), 947 So.2d 810,

820–821; see also La. Code Crim. Proc. art. 894.1.

DISUCSSION/ERRORS PATENT

In accordance with La. C.Cr.P. art. 920, this Court reviews all criminal

appeals for errors patent. An error patent is one “that is discoverable by a mere

inspection of the pleadings and proceedings and without inspection of the

evidence.” La. C.Cr.P. art. 920(2).

Defendant assigns one error on appeal, namely that “[t]he district court erred

in deferring ruling on Defendant’s long-pending Motion to Reconsider Sentence

until after the resolution of an unrelated matter.” As such, Defendant argues that

this Court should remand the matter and instruct the trial court to make a final

ruling on his Motion to Reconsider Sentence. For the reasons that follow, we

disagree with Defendant’s assignment of error; however, we find that this matter

should be remanded for the trial court to rule upon the merits of Defendant’s

Motion to Reconsider Sentence.

The transcript of the trial court’s oral judgment states:

Motion to Reconsider is denied at this time…. Mr.
Kennedy [defense counsel], at this time, I would
reconsider your request in the event your client is found
guilty of anything less than manslaughter on the open
case.

I’m going to note your objection. And again, if he’s
convicted [of second degree murder and sentenced to]
life, this matter is moot. If he’s convicted of
manslaughter and multiple billed, this matter is moot. If
he’s convicted of anything less than that, sir, re-file your
motion possibly. If it comes back not guilty, I’ll
entertain a reconsideration of your re-file.

The district court did not defer ruling on Defendant’s Motion to Reconsider

Sentence. The trial judge plainly denied the Motion and advised defense counsel

to consider re-filing after the adjudication of Defendant’s pending charges.

Defendant’s contention that the trial court failed to provide a final, appealable

judgment on his Motion to Reconsider Sentence and effectively delayed his right

to appeal is without merit.

The trial court’s denial of Defendant’s Motion was predicated upon the

result of pending, unrelated charges against Defendant rather than a meritorious

consideration of the aggravating and/or mitigating circumstances as required by

La. Code Crim. Proc. art. 894.1. The statute states that in sentencing a convicted

felon, “…[certain] grounds, while not controlling the discretion of the court, shall

be accorded weight in its determination…” See La. Code. Crim. Proc. art.

894.1(B). “The purpose of the sentencing guidelines is to afford a reviewing court

some insight into the reasoning process of the sentencing judge, so that the

propriety of the sentence can be better evaluated.” State v. Charles, 18-222, p. 12

(La. App. 3 Cir. 5/1/19), 270 So.3d 859, 868, quoting State v. See, 462 So.2d 1369,

1372 (La. App. 3 Cir. 1985), writ denied, writ granted in part, judgment set aside

in part, 467 So. 2d 525 (La.1985). “The record should reflect that the trial court

considered not only the seriousness of the crime and the defendant's criminal

history, but also the defendant's personal history (age, mental status, dependents,

family ties, employment record, emotional and physical health), and his potential

for rehabilitation.” Id. at 869, quoting State v. See, 462 So.2d 1369, 1372 (La.

App. 3 Cir.1985), writ denied, writ granted in part, judgment set aside in part, 467

So.2d 525 (La.1985); citing State v. Quebedeaux, 424 So.2d 1009 (La.1982). And

though “[i]t is not necessary for the trial court to articulate every factor presented

in Art. 894.1, the record must reflect that the trial court adequately considered

them in particularizing the sentence to the defendant.” Id., quoting State v. Kohl,

524 So.2d 781, 786 (La. App. 3 Cir. 1988), citing State v. Cottingin, 476 So.2d

1184 (La. App. 3 Cir. 1985). “The judge should indicate that he considered not

only the factors militating for incarceration, but also any factor mitigating against

it.” Id. at 870, quoting State v. See, 462 So.2d 1369, 1372 (La. App. 3 Cir.1985),

writ denied, writ granted in part, judgment set aside in part, 467 So.2d 525

(La.1985); citing State v. Ray, 423 So.2d 1116 (La.1982).

Here, the trial court failed to consider any of the statutory factors when

denying Defendant’s Motion to Reconsider Sentence. Instead, argument on the

merits was disallowed by the court, reasoning that a conviction under the pending

charges would result in the imposition of a mandatory life-sentence and that any

disposition on the merits of Defendant’s Motion at that time would ultimately

become moot by way of a successive conviction. The list of factors that the trial

court must consider does not include pending criminal charges against the

defendant.

It is clear that the trial court’s denial of Defendant’s Motion to Reconsider

Sentence did not adequately comply with the requirements of Article 894.1. While

not bound to examine all of the factors contained listed in Article 894.1, the court

is required to consider both aggravating and mitigating factors. However, the

transcript does not contain or reflect any mention of Article 894.1 factors. It is

clear that the trial court’s ruling did not properly assess the militating/mitigating

factors as is statutorily required.

DECREE

For the foregoing reasons, the trial court’s July 22, 2021 judgment denying

Defendant’s Motion to Reconsider Sentence is vacated and remanded to the trial

court for ruling on the merits, reserving his right to appeal his sentence once the

trial court has ruled.

VACATED AND REMANDED