State Of Louisiana v. Derrick Odomes

i`

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

2023 KA 1363

STATE OF LOUISIANA

VERSUS

DERRICK ODOMES

Consolidated with

2023 KA 1364

STATE OF LOUISIANA

VERSUS

DERRICK ODOMES

Judgment Rendered:

On Appeal from the
Seventeenth Judicial District Court
In and for the Parish of Lafourche
State of Louisiana
No. 482946 c/ w 498015

The Honorable Rebecca N. Robichaux, Judge Presiding

Mary Constance Hanes Attorney for Defendant/Appellant
Louisiana Appellate Project Derrick Odomes
New Orleans, LA

Kristine Russell Attorneys for Appellee
District Attorney State of Louisiana
Joseph S. Soignet
Jason Chatagnier
Assistant District Attorneys
Thibodaux, Louisiana

BEFORE: GUIDRY, C.J., PENZATO, AND STROMBERG, JJ -

The defendant, Derrick Odomes,' was charged by bill of information with

intimidating a witness, in violation of La. R.S. 14: 129. 1( 0)( 4). He pled not guilty

and, following a jury trial, was convicted as charged. The trial court sentenced the

defendant to five years imprisonment at hard labor, and this court affirmed his

conviction and sentence on appeal. State v. Odoms, 2011- 1356 ( La. App. I Cir.

2/ 10/ 12), 2012 WL 602407 ( unpublished), writ denied, 2012- 0582 ( La. 9/ 12/ 12), 98

So3d 820. Meanwhile,, after the defendant was convicted, the State filed a habitual

offender bill of information, and the trial court adjudicated the defendant a fourth -

felony offender, vacated the prior sentence, and sentenced him to life imprisonment

at hard labor without the benefit of probation or suspension of sentence.2 The

defendant later filed a pro se application for post -conviction relief and a counseled

supplement to his pro se application, wherein he sought an out -of t-ime appeal, which

the trial court granted.' The defendant now appeals, assigning error to the

excessiveness of his sentence. For the following reasons, we affirm his habitual
offender adjudication and sentence.`

1 While the original bill of information and habitual offender bill of information use " Odours" as
the defendant' s last name, the trial court clarified on the record that the correct spelling of the
defendant' s last name is " Odomes."

2 We note the minutes and commitment order reflect the sentence was imposed without the benefit
of probation or suspension of sentence, though the transcript is silent as to the benefits restriction.
Any sentence imposed under the habitual offender statute shall be at hard labor without the benefit
of probation or suspension of sentence. See La. R.S. 15: 529. 1( G). Pursuant to La. R.S. 15: 301. 1,
the defendant' s habitual offender sentence is deemed to contain the benefits restriction by
operation of law. See State v. Williams, 2000- 1725 ( La. 11/ 28/ 01), 800 So.2d 790, 799; State v.
Passow, 2013- 0341 ( La. App. 1st Cir. 11/ 1/ 13), 136 So. 3d 12, 15.

3 There was substantial delay between the initial filing of the pro se application for post -conviction
relief and the trial court' s ruling granting the defendant an out -of t-ime appeal of his sentence. The
remaining claims in the defendant' s application for post -conviction relief were denied by the trial
court, and on supervisory review, this court denied his writ application on the showing made. State
v. Odomes, 2023- 1155 ( La. App. 1st Cir. 1/ 29/ 24), 2024 WL 322083 ( unpublished).

4 Judge John E. LeBlanc, now retired, adjudicated and sentenced the defendant as a habitual
offender. Judge Rebecca N. Robichaux, Judge LeBlanc' s successor, granted the defendant' s out -
of time
- appeal.

W

UUMM

This court set forth the pertinent facts in the defendant' s prior appeal as

follows:

At trial, the state and defense stipulated that Deputy Haley
Burkett of the Lafourche Parish Sheriffs Office was a witness to a
pending obscenity charge against defendant. Deputy Burkett testified
that on March 15, 2010, she was working as a corrections officer for
the sheriffs office when she came into contact with defendant while
serving dinner on his cell block. Deputy Burkett was confronted by
defendant, who said that he wanted to speak with her about the
obscenity charge she previously had filed against him. Deputy Burkett
informed defendant that she could not speak to him at that time.
Defendant persisted, asking Deputy Burkett what she had seen that
made her accuse him of obscenity. Deputy Burkett repeated that she
would not speak with him about the matter. Deputy Burkett testified
that defendant became very angry at that point and called her a " bitch,"
stupid," and told her to " get off the block or [ she] was gonna see

another dick." As Deputy Burkett began to leave the cell block,
defendant moved closer to the bars of his cell and he told her,, " The
charges aren' t going to stick. I' m gonna get out. I' ll get you, girl."
Deputy Burkett stated that defendant' s remarks made her feel nervous
and scared. After meeting with her supervisor about the incident,

Deputy Burkett filed. a formal report alleging that defendant had
committed the offense of intimidation of a witness. On cross-
examination, Deputy Burkett admitted that defendant never specifically
told her not to go to court.

Deputy Burkett was the only witness to testify at defendant' s
trial. After deliberating, the jury returned a unanimous verdict finding
defendant guilty of intimidating a witness.
Odoms, 2012 WL 602407 at * I ( citations omitted).

In his sole assignment of error, the defendant asserts his life sentence for

intimidation of a witness as a fourth -felony offender is excessive under the

circumstances.

The trial court adjudicated the defendant a fourth -felony offender and

imposed a sentence of life imprisonment at hard labor without the benefit of

probation or suspension of sentence.' The defendant faced a sentencing range of

5 A defendant must be sentenced under the version of La. R.S. 15: 529. 1 in effect at the time of the
commission of the instant offense. See La. R.S. 15: 529. 1( K); State v. Parker, 2003- 0924 ( La.
4/ 14/ 04), 871 So. 2d 317, 326- 27.

3

twenty years to life imprisonment; thus, he received the maximum sentence. See La.

R. S. 15: 529. 1( A)( 1)( c)( i)( 2010 version).'

A thorough review of the record reveals the defendant did not orally move for

reconsideration of his maximum sentence at the time of sentencing, nor did he file a

written motion to reconsider the sentence.'

Louisiana Code of Criminal Procedure article 881. 1 provides, in pertinent

part:

A. (1)
In felony cases, within thirty days following the imposition
of sentence or within such longer period as the trial court may set at
sentence, the state or the defendant may make or file a motion to
reconsider sentence.

B. The motion shall be oral at the time of sentence or shall be in
writing thereafter and shall set forth the specific grounds on which the
motion is based.

E. Failure to make or file a motion to reconsider sentence or to
include a specific ground upon which a motion to reconsider sentence
may be based, including a claim of excessiveness, shall preclude the
state or the defendant from raising an objection to the sentence or from
urging any ground not raised in the motion on appeal or review.

One purpose of the motion to reconsider sentence is to allow the defendant to

raise any errors that may have occurred in sentencing while the district court still has

jurisdiction to change or correct the sentence. State v. Emerson, 2004- 0156 ( La.

App. I Cir. 10/ 29/04), 888 So.2d 975, 979, writ denied, 2005- 0089 ( La. 4/ 22/ 05),

6 Louisiana Revised Statutes 15: 529. 1( A)( 1) stated, in pertinent part:

c) If the fourth or subsequent 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 the fourth or subsequent
felony for a determinate term not less than the longest prescribed for a first
conviction but in no event less than twenty years and not more than his natural life

I The defendant claimed trial counsel' s failure to object to his habitual offender sentence resulted
in ineffective assistance of counsel in his application for post -conviction relief. However, he does
not argue ineffective assistance of counsel at sentencing in his appellate brief.
El

899 So.2d 557. The defendant may point out such errors or deficiencies, or may
present argument or evidence not considered in the original sentencing, thereby

preventing the necessity of a remand for resentencing. State v. Mims, 619 So. 2d
1059, 1059 ( La. 1993) ( per curiam).

The thirty -day deadline provided by La. Code Crim. P. art. 881. 1( A)( 1)

prohibits a trial court from reconsidering a defendant' s sentence once the deadline

has passed. An out -of t-ime motion to reconsider sentence is not contemplated by the
Code of Criminal Procedure nor allowed by the jurisprudence. State v. Ybarzabal,

2018- 0555 ( La. App. I Cir. 2/ 25/ 19), 2019 WL 926891, * 4 ( unpublished). Likewise,

a motion for appeal is not a substitute for a timely motion to reconsider sentence and

does not satisfy the requirements of La. Code Crim. P. art. 881. 1. Ybarzabal, 2019

WL 926891 at * 4.

Under La. Code Crim. P. arts. 881. 1( E) and 881. 2( A)( 1),$ the failure to make

or file a motion to reconsider sentence or to include a specific ground upon which a

motion to reconsider may be based shall preclude the defendant from raising an
objection to the sentence on appeal, including a claim of excessiveness. Ybarzabal,

2019 WL 926891 at * 4; State v. Ferguson, 2015- 0427 ( La. App. I Cir. 9/ 18/ 15),

181 So. 3d 120, 136- 37, writ denied, 2015- 1919 (La. 11/ 18/ 16), 210 So. 3d 282. Thus,

the defendant' s failure to urge a claim of excessiveness or any -other specific ground

for reconsideration of the sentence by oral or written motion at the trial court level

precludes our review of his claim of sentence excessiveness. Ybarzabal, 2019 WL

926891 at * 4; State v. Campbell, 2016- 1349 ( La. App. I Cir. 4/ 12/ 17), 217 So.3d

1197, 1198. Accordingly, we find review of this assignment of error is procedurally

8 Louisiana Code of Criminal Procedure article 881. 2(A)(1) provides the " defendant may appeal
or seek review of a sentence based on any ground asserted in a motion to reconsider sentence" and
also may seek review of a sentence which exceeds the maximum sentence authorized by the
statute under which the defendant was convicted and any applicable statutory enhancement
provisions."

R

barred. See State v. Smith, 2022- 0231 ( La. App. 1st Cir. 11/ 4/22), 354 So3d 697,

703.

CONCLUSION

For the above and foregoing reasons, we affirm the defendant' s habitual

offender adjudication and sentence.

HABITUAL OFFENDER ADJUDICATION AND SENTENGI
AFFIRMED. i

R!

STATE OF LOUISIANA

COURT OF APPPEAL

FIRST CIRCUIT

NUMBER 2023 KA 1363

STATE OF LOUISIANA

VERSUS

DERRICK ODOMES

consolidated with

NUMBER 2023 KA 1364

STATE OF LOUISIANA

VERSUS

DERRICK ODOMES

GUIDRY, C.J., concurs and assigns reasons.
Id

UIDRY, C.J., concurring.

Considering the nature of the defendant' s prior offenses and the sentencing

range of 20 years to life imprisonment to which the defendant was exposed, I find the

sentence imposed of life imprisonment to clearly be excessive. See State v. Johnson,

16- 0259 ( La. App. 4th Cir. 12/ 21/ 16), 207 So. 3d 1101, writ denied, 17- 0119 ( La.

2/ 2/ 18), 233 So. 3d 616 ( finding that despite being statutorily mandated, the

defendant' s life sentence for simple burglary of $15 from a vehicle was excessive).

The majority opinion properly does not reach the issue as defense counsel failed to

challenge the sentence as excessive, and therefore, failed to preserve the issue for

appellate review. See La. C. Cr. P. art. 881. 1( E). However, as there remains an

avenue by which the defendant may still seek relief, and indeed, the record before us

reveals that the defendant has challenged the effectiveness of counsel' s representation

by means of postconviction relief, I concur.

1