State Of Louisiana v. Kevin O'brien Allen

Supreme Court of Louisiana
November 01, 2022
Chief Deputy Clerk of Court
For the Court
The Supreme Court of the State of Louisiana
STATE OF LOUISIANA
VS.
KEVIN O'BRIEN ALLEN
No. 2022-KP-00508
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N RE: Kevin O'Brien Allen - Applicant Defendant; Applying For Supervisory Writ,
Parish of Bossier, 26th Judicial District Court Number(s) 199,853, Court of Appeal,
Second Circuit, Number(s) 54,569-KW;
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November 01, 2022
Writ application granted. See per curiam.
Hughes, J., concurs and assigns reasons.
Crain, J., dissents and assigns reasons.
SJC
JLW
JTG
JBM
PDG
11/01/2022 "See News Release 047 for any Concurrences and/or Dissents."

SUPREME COURT OF LOUISIANA
No. 2022-KP-00508
STATE OF LOUISIANA
VERSUS
KEVIN O’BRIEN ALLEN
ON SUPERVISORY WRIT TO THE TWENTY-SIXTH JUDICIAL
DISTRICT COURT, PARISH OF BOSSIER

PER CURIAM
Writ granted. In 2014, Kevin O’Brien Allen was convicted of two counts of
distribution of marijuana in violation of La. R.S. 40:966. For these crimes, Mr. Allen
faced a sentencing exposure of not less than five , nor more than 30 years
imprisonment at hard labor on each count. La. R.S. 40:966(B)( 3). The trial court
imposed two ten-year concurrent sentences. Eighteen months later , Mr. Allen was
adjudicated a five-time habitual offender1 and given the then-mandatory sentence of
life imprisonment pursuant to La. R.S. 15:529.1.2
Counsel for Mr. Allen filed a motion to reconsider the sentence. In the motion,
sentencing counsel misstated Mr. Allen’s habitual offender sentencing range as 20
years to life, asserted the life sentence was excessive in violation of Article I, Section
20 of the Louisiana Constitution, and asked the court to reconsider the sentence. The
trial court denied the motion finding the sentence was required by statute .
Mr. Allen subsequently filed an application for post-conviction relief in which
he argued that he was denied effective assistance of counsel in relation to his habitual
offender sentencing. In State v. Harris , 18-1012, p. 1 (La. 7/9/20), 340 So.3d 845 ,
1 Mr. Allen’s predicate offenses were: 1) possession with intent to distribute marijuana; 2)
second-offense possession of marijuana; 3) second-offense possession of marijuana; and 4)
possession of a Schedule II controlled dangerous substance.
2 In 2017, the Louisiana Legislature passed ameliorative amendments to the Habitual Offender
Law, such that, if he were convicted today, Mr. Allen would not be subject to a mand atory
minimum life sentence, but rather a minimum 20-year sentence. La. R.S. 15:529.1(A)(4)(b).
11/01/22

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847, we held that an “ineffective assistance of counsel at sentencing claim is
cognizable on collateral review.” Under the standard for ineffective assistance of
counsel provided in Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052,
2064, 80 L.Ed.2d 674 (1984), a reviewing court must vacate a sentence if the
defendant establishes (1) that counsel’s performance fell below an objective standard
of reasonableness under prevailing prof essional norms; and (2) counsel’ s deficient
performance prejudiced defendant to the extent that the outcome of the proceeding
is rendered unreliable. We have explained that
[a]n o bjectively reasonable standard of performance requires that
counsel be aware of the sentencing options in the case and ensure that
all reasonably available mitigating information and legal arguments are
presented to the court. Since Louisiana law prohibits excessive
sentences, and requires that individual circumstances be considered,
counsel acts unprofessionally when he fails to conduct a reasonable
investigation into factors which may warrant a downward departure
from the mandatory minimum.
Harris, 18-1012, p. 19, 340 So.3d at 858.
A sentence may be excessive under Article I, Section 2 0 of the Louisiana
Constitution, even if it falls within the statutory range established by the Legislature.
State v. Johnson, 97-1906, p. 6 (La. 3/4/98), 709 So.2d 672, 676; State v. Sepulvado,
367 So.2d 762, 767 (La. 1979). In State v. Dorthey, 623 So.2d 1276, 1280–81 (La.
1993), we held that this extends to the minimum sentences mandated by the Habitual
Offender Law and that the tria l court must reduc e a sentence to one not
unconstitutionally excessive if the trial court finds that the sentence mandated by the
Habitual Offender Law “makes no measurable contribution to acceptable goals of
punishment” or is nothing more than “the purposeful i mposition of pain and
suffering” and “is grossly out of proportion to the severity of the crime.”
Here, in the motion to reconsider the sentence, defense counsel failed to
apprise the trial court of its duty of depart fr om the mandatory life sentence under
Dorthey on the grounds it was excessive. Counsel also failed to present any

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mitigating evidence . In particular, counsel failed to emphasize that none of Mr.
Allen’s predicate offenses were violent or sexual in nature. The initial sentence—on
the lower end of the sentencing range—was based on the information contained in a
presentence investigation rep ort that described not only Mr. Allen’s prior
convictions and arrests but also mitigating information. In the motion to reconsider
the habitual offender sentence , which was filed 18 months after the initial
sentencing, counsel failed to remind the trial court of these individual circumstances
including that Mr. Allen had obtained his GED, was an employed father two young
children, and that he desired treatment for his dependency on marijuana.
We find that sentencing counsel ’s performance fell below an objective
standard of reasonableness under prevailing professional norms . As a result of her
deficient performance, the trial court imposed a mandatory life sentence that was
excessive as applied to Mr. Allen. Accordingly, Mr. Allen’s right to effective
assistance of counsel as required by the Sixth Amendment to the Constitution of the
United States and Article I, Section 13 of the Louisiana Constitution was violated
and his sentence must be vacated.
Accordingly, we reverse the ruling of the trial court, which denied the
application for post -conviction relief . W e vacate Mr. Allen’s life sentence and
remand to the trial court, which is instructed to re-sentence Mr. Allen to a term
imprisonment that is not unconstitutionally excessive. In resentencing, the trial court
must state for the record its co nsiderations and factual basis. See La.C.Cr.P. art.
894.1(C). We note that while ameliorative sentencing changes may not apply
retroactively, they may guide the court when imposing the new sentence. See
generally State v. Clark, 391 So.2d 1174 (La. 1980).
REVERSED AND REMANDED