State of Louisiana Versus Emile Pierce

STATE OF LOUISIANA NO. 22-KA-399

VERSUS FIFTH CIRCUIT

EMILE PIERCE COURT OF APPEAL

STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 99-5283, DIVISION "H"
HONORABLE DONALD L. FORET, JUDGE PRESIDING

October 31, 2022

STEPHEN J. WINDHORST
JUDGE

Panel composed of Judges Marc E. Johnson,
Stephen J. Windhorst, and John J. Molaison, Jr.

SENTENCE VACATED; REMANDED
SJW
JJM

DISSENTS WITH REASONS
MEJ

COUNSEL FOR PLAINTIFF/APPELLANT,
STATE OF LOUISIANA
Honorable Paul D. Connick, Jr.
Thomas J. Butler
Darren A. Allemand

COUNSEL FOR DEFENDANT/APPELLEE,
EMILE PIERCE
Ashwini Velchamy
Shanita Farris

WINDHORST, J.

The State of Louisiana has appealed the district court’s August 16, 2022

resentencing of defendant, Emile Pierce, a third-felony offender, under State v.

Dorthey, 623 So.2d 1276 (La. 1993). For the following reasons, we vacate the

district court’s August 16, 2022 sentence and remand for resentencing.

FACTS and PROCEDURAL HISTORY

This court previously set forth a summary of the proceedings in this case in

State v. Pierce, 22-154 (La. App. 5 Cir. 8/1/22), — So.3d —, 2022 WL 3025590,

writ denied, 22-1184 (La. 8/11/22), 343 So.3d 702, the essence of which follows.

On October 17, 2001, defendant, Emile Pierce, was convicted of armed

robbery in violation of La. R.S. 14:64, which he committed on July 21, 1999. On

November 5, 2001, defendant was sentenced by the trial judge to fifty years

imprisonment. On May 23, 2002, after the State filed a multiple bill and the district

court found defendant to be a third-felony offender, the trial judge vacated his

original fifty-year sentence and resentenced him pursuant to La. R.S.

15:529.1(A)(1)(b)(ii) to mandatory life imprisonment without parole. Defendant

appealed, and on April 8, 2003, this court affirmed his conviction and

sentence. State v. Pierce, 02-1267 (La. App. 5 Cir. 4/8/03), 846 So.2d 55.

Defendant did not seek rehearing with this court and did not apply to the Louisiana

Supreme Court for writs in his direct appeal. Defendant later unsuccessfully sought

post-conviction relief.

After the Louisiana Supreme Court decided State ex rel. Esteen v. State, 16-

0949 (La. 1/30/18), 239 So.3d 233, rehearing denied, 16-949 (La. 3/13/18), 239

So.3d 266, thereby abrogating State v. Dick, 06-2223 (La. 1/26/07), 951 So.2d 124,

defendant filed a pro se motion to correct illegal sentence in the district court.1 In

1 By this time, the original sentencing judge who had presided over the trial had retired (“the trial judge”),
and there was a different district court judge who resentenced defendant (“the district judge”).

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his motion, defendant argued that he was entitled to be resentenced under the more

lenient penalty provisions enacted by 2001 La. Acts. 403,2 which reduced the

sentencing range for a third felony offender under certain circumstances.

Specifically, defendant argued that because the second predicate offense used by

the State to adjudicate him a third-felony offender was for simple escape, a

nonviolent offense, his life sentence must “be deemed rendered ‘retroactively

excessive and illegal’ pursuant to the Act No. 403 Louisiana Legislature 2001

Regular Session mandatory ameliorative sentencing guidelines, that dictate a La.

R.S. 15:529.1(A)(1)(b)(ii) multi-bill ‘life sentence’” can only be prescribed to an

offender whose underlying felony conviction and both predicate felony convictions

are defined as crimes of violence under La. R.S. 14:2(B).3 In essence, defendant

argued that, applying Esteen and the ameliorative sentencing guidelines in 2001

La. Acts No. 403, under La. R.S. 15:529.1, he was no longer a “triple mandatory

lifer,” but rather, an “ordinary triple offender” and entitled to be resentenced

accordingly.

The State responded to the motion and conceded that defendant was entitled

to resentencing under the ameliorative changes to the law enacted by 2001 La. Acts

No. 403. In particular, the State contended that under Esteen and La. R.S. 15:308,

defendant was entitled to be resentenced to not less than 66 years imprisonment

without parole and to not more than 198 years imprisonment without parole as a

third-felony offender pursuant to Act. No. 403 of 2001, but was not entitled to the

application of any other, more recent changes to La. R.S. 15:529.1. Defendant filed

an objection to the State’s response.

2 In 2001, the Legislature reduced the penalties for a variety of offenses formerly carrying life sentences
and third and fourth felony offender mandatory life penalties. See 2001 La. Acts 403 (eff. June 15, 2001).
Act 403 § 6 provided that the amendment “shall only have prospective effect.” Despite the general rule
that ameliorative legislation is to be applied prospectively, the Legislature subsequently enacted La. R.S.
15:308 by 2006 La. Acts 45, which provided for retroactive application.
3 La. R.S. 14:2(B) enumerates the offenses that are included as “crimes of violence.” The offense of
armed robbery is included as a crime of violence, and simple escape is not.

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Defendant then retained counsel, who sought to have defendant resentenced

under State v. Dorthey, 623 So.2d 1276 (La. 1993) and its progeny. A resentencing

hearing was held in the district court on March 8, 2022. At the hearing, the State

reiterated defendant’s history of violence, i.e., defendant’s instant crime being an

armed robbery committed against a female victim with a knife, and that he had two

prior armed robbery convictions and a prior attempted armed robbery conviction,

while armed with a firearm.

At the conclusion of the March 8, 2022 resentencing hearing, the district

judge granted the motion to correct illegal sentence and vacated defendant’s earlier

sentence. The district judge, citing Dorthey, supra, chose a lenient deviation from

the statutory minimum sentence provided in La. R.S. 15:529.1 and resentenced

defendant to “time served,” ordering defendant’s immediate release. The State

timely appealed the district court’s resentencing of defendant.

On appeal, this court held that the sentence of “time served” did not constitute

the requisite fixed term of imprisonment. State v. Pierce, supra. As a result, the

district court’s March 8, 2022 resentencing of defendant to “time served” was

vacated, and this case was remanded to the district court with instructions to

resentence defendant to a fixed term of imprisonment.

On remand, on August 16, 2022, the district judge resentenced defendant to

imprisonment at hard labor for twenty-two (22) years with credit for time served and

ordered defendant released. Thereafter, the State filed a motion for appeal and an

emergency motion to maintain stay in case number 22-KM-382. This court granted

that motion and stayed the district judge’s August 16, 2022 order releasing defendant

for forty-five days. Upon the State’s filing of a motion to extend this stay, we

extended the stay until November 2, 2022.

Defendant’s Resentencing

The district judge’s August 16, 2022 resentencing of defendant was based on

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the testimony and evidence presented at defendant’s prior sentencing on March 8,

2022. At the March 8, 2022 hearing, defendant argued that a sixty-six-year sentence

(i.e., the mandatory minimum within the statutory sentencing range) was

unconstitutionally excessive because due to mitigating circumstances. Defendant

contended that he had documentation that he will not be a danger if released; that no

one was injured during the incident; that he had shown tremendous rehabilitation at

Angola; and the United States Supreme Court indicated that convictions by non-

unanimous juries were unconstitutional under Ramos v. Louisiana, 590 U.S. —, 140

S.Ct. 1390, 206 L.Ed.2d 583 (2020).

Defendant testified at his March 8, 2022 resentencing hearing to the

following. He was forty-nine years old, born in New Orleans, and his parents

divorced when he was young. Before the age of ten, he lived with three aunts and

an uncle due to his erratic and unstable family situation. He never attended the same

school for two consecutive years, and when he got to the sixth grade, they promoted

him to high school because he was too old to be in middle school. He eventually

dropped out of school.

Defendant testified about his parents and the effect their lives had on him. His

mother was a “street life” type of woman who used drugs, including cocaine and

pills, and was put in jail at least twice during his childhood for committing

burglaries. Defendant claimed that when he was a child, his mother’s criminal

background exposed him to a lot of characters who he described as “street guys” and

“dope-fiend-type dudes.” His father was “messed up” from his time in Vietnam

where he saw the “worst of the worst” and was an alcoholic, which contributed to

his unstable childhood. He lived in a foster home when he was fourteen years old

for six months while his father was in jail.

Defendant testified regarding his involvement with drugs and crime at a young

age. He started using cocaine when he was fourteen years old and that at fifteen

22-KA-399 4

years old, he was using drugs regularly. He indicated that he was stealing and

shooting cocaine all day as a teenager. He was seventeen years old when he pled

guilty to his first armed robbery in 1990 and received a ten-year sentence. He began

serving that sentence at Winnfield but was transferred to Angola after he escaped

from Winnfield. He did not use drugs in prison and at the time of his release, he did

not think he had drug issues. But a couple of months after his release, he started

using drugs again because his wife was doing so also.

Approximately five months after release from his first prison sentence and

while on parole, he committed another armed robbery on July 21, 1999. At the time

of this armed robbery, he had been awake for two days at the time and was under the

influence of cocaine. Defendant did not plead guilty to the 1999 armed robbery

charge because he believed that he only committed a simple robbery or purse

snatching. He maintained that he was not the same man he was in 1999, and that the

Lord came into his life and changed him.

Defendant also testified regarding his time in prison, including that he finished

his GED and numerous rehabilitation programs and learned to make jewelry. He

completed anger management programs, a drug abuse program, money

management, job placement assistance, problem solving, decision making, victim

awareness and restitution, and a re-entry program.

During his testimony, defendant also discussed his TIGER score, which courts

use as a risk assessment gauge regarding the threat level of an offender trying to re-

enter society, and his plan if released. Defendant introduced into evidence his

offender annual assessment by the Department of Public Safety and Corrections

Services to show that his TIGER score was low. Defendant’s re-entry plan includes

working a construction job for his nephew and eventually starting his own business.

In addition, his sister has agreed to let him live with her if he is released.

22-KA-399 5

Defendant acknowledged that prior to the 1999 armed robbery, he committed

two counts of armed robbery and one count of attempted armed robbery in 1989. On

Christmas Eve in 1989, he robbed a woman and her husband of their vehicle while

armed with a gun. That same year, he also attempted to commit armed robbery of a

woman and a man at their business while he was armed with a gun. On New Year’s

Eve in 1989, he robbed another woman of her vehicle while armed with a gun. He

pled guilty to those crimes in April of 1990. He also pled guilty to simple escape

while incarcerated.

Christina Teekel, defendant’s sister, testified at the resentencing hearing and

verified that their childhood was unstable, that their mother was a convicted felon

and did a lot drugs, and that they were exposed to a great deal of violence and

criminals when they were children. She stated that she went to thirty-seven schools

before she got to eighth grade. She also confirmed that if defendant was released,

he could live with her at her house, where she had lived for thirty-four years and that

no one else lived there presently. Ms. Teekel also testified that she works with her

son who owns a construction company, and that defendant would have a job there if

he was released.

After resentencing defendant, the district judge issued detailed written

reasons for judgment explaining his reasons for a lenient deviation from the statutory

minimum sentence of La. R.S. 15:529.1. The court indicated it considered the

Louisiana Supreme Court’s pronunciations that “a court may only depart from the

minimum sentence if it finds that there is clear and convincing evidence in the

particular case before it which would rebut this presumption of constitutionality,”

and that a defendant must clearly and convincingly show that “he is so exceptional,

which in this context means that because of unusual circumstances this defendant is

a victim of the legislature’s failure to assign sentences that are meaningfully tailored

22-KA-399 6

to the culpability of the offender, the gravity of the offense, and the circumstances

of the case.” State v. Johnson, 709 So.2d 672, 676 (La. 1998).

The district judge found that, based on testimony of the witnesses and the

exhibits presented, there was clear and convincing evidence defendant “was so

exceptional that the legislature failed to assign a sentence meaningfully tailored to

his culpability and circumstances.” The district judge cited the following facts as

“unusual circumstances” in support of the lenient departure from the statutory

minimum: (1) defendant’s highest grade of schooling was the sixth grade and

defendant’s sister testified that she attended thirty-seven schools before she reached

eighth grade; (2) defendant developed a drug addiction by the age of fourteen and

was shuffled around foster and family members’ homes due to his parents’ own

substance abuse and criminal convictions; (3) when defendant committed the 1999

armed robbery, he was sleep deprived and abusing narcotics; (4) defendant took

responsibility for his crime and the only defense he made to the crime is that he was

charged with the wrong one; (5) defendant was convicted by a non-unanimous jury

that deliberated for several hours; (6) defendant’s prior convictions, which formed

the basis for the habitual offender bill, were committed as either a juvenile or a young

adult; (7) defendant has only spent five months of his adult life out of prison; (8)

defendant zealously represented himself at trial and during the last twenty years of

his litigation; (9) defendant provided the court with certificates of completion for (a)

anger management; (b) behavioral management; (c) 100 hours of pre-release classes,

which include personal development, job placement assistant, decision making,

employment skills, money management, victim awareness, counseling, and job

placement assistance; and (d) his successful completion of the GED program; (10)

defendant has learned a trade and has become an accomplished jeweler while

imprisoned at Angola; (11) as of October 25, 2021, defendant has a low Tiger Risk

Score; (12) defendant has a stable and sufficient place to live with family when

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released; and (13) defendant has employment upon his release with his nephew’s

construction business until he is able to find employment as a jeweler.

The district judge also found that defendant’s case likely imposed what he

called a “trial tax,” which he explained meant that the trial judge had imposed a

sentence as a punishment for going to trial instead of accepting a plea bargain.

Defendant had been offered a plea deal by the State that may have resulted in a

sentence of twenty-five years, which the defendant declined. After trial, defendant

was sentenced by the trial judge to fifty years.

LAW and ANALYSIS

The State appealed the district judge’s judgment resentencing and release of

the defendant. In response to defendant’s motion to correct illegal sentence filed in

the district court, the State conceded that under Esteen and La. R.S. 15:308,

defendant was entitled to be resentenced. The State, however, informed the district

judge that the sentencing range was not less than sixty-six years imprisonment

without parole and not more than one hundred ninety-eight years imprisonment

without parole as a third felony offender. In the instant appeal, the State asserts the

district judge erred in sentencing defendant, a third felony offender and repeat armed

robber, to “22 years imprisonment with credit for time served” under Dorthey (the

equivalent of a “time already served” sentence) despite the mandatory minimum

sentence for a third felony offender being 66 years imprisonment.

In support of its position, the State points out that defendant is a repeat armed

robber who has targeted women in his criminal offenses and who until recently was

serving a life sentence as a third felony offender. The State asserts that while

defendant was entitled to be resentenced under Esteen, the district judge erroneously

invoked Dorthey and its progeny and not only departed downwardly from the sixty-

six-year mandatory minimum, but also took the unprecedented step of resentencing

defendant to twenty-two years with credit for time served and ordering his release.

22-KA-399 8

The State argues that given the extraordinarily high standards of Dorthey,

defendant’s violent criminal history, the facial inadequacy of the district judge’s

reasons, and the record of the Dorthey hearing, the district judge erred in departing

downwardly from the mandatory minimum sentence set forth by the legislature.

Defendant argues that the district judge acted within its discretion in finding

the mandatory minimum sentence of sixty-six years would be unconstitutionally

excessive because he established by clear and convincing evidence that his situation

had exceptional circumstances, and that a sixty-six year sentence would not be

meaningfully tailored to the circumstances of his case.

Both the legislature and the judiciary have important roles in sentencing

individuals for their crimes. The Louisiana Constitution gives the legislature the

sole authority to define conduct as criminal and provide penalties for such conduct.

La. Const. art. 3, § 1 State v. Dorthey, 623 So.2d at 1280; State v. Taylor, 479 So.2d

339, 341 (La. 1985). Acting pursuant to this authority, the legislature passed the

Habitual Offender Law. Considering that Louisiana courts have found the Habitual

Offender Law in its entirety constitutional, courts must presume that the minimum

sentences it imposes upon habitual offenders are also constitutional. Dorthey, 623

So.2d at 1281 (Marcus, J., concurring); State v. Young, 94-1636 (La. App. 4th Cir.

10/26/95), 663 So.2d 525.

In view of the above, the legislature’s determination of an appropriate

minimum sentence should be afforded great deference by the judiciary. State v.

Johnson, 97-1906 (La. 3/4/98), 709 So.2d 672, 676. Despite this great deference,

the Louisiana Supreme Court has found that a mandatory minimum sentence under

the Habitual Offender Law may be reviewed for constitutional excessiveness.

Dorthey, 623 So.2d at 1280-81. In State v. Johnson, the Louisiana Supreme Court

outlined the criteria a defendant must satisfy to show that a mandatory minimum

sentence under the Habitual Offender Law is constitutionally excessive. It held that

22-KA-399 9

to rebut the presumption that a mandatory minimum sentence is constitutional,

defendant must clearly and convincingly show that the defendant is “exceptional,

which ... means that because of unusual circumstances, this defendant is a victim of

the legislature’s failure to assign sentences that are meaningfully tailored to the

culpability of the offender, the gravity of the offense and the circumstances of the

case.” Johnson, 709 So.2d at 676. A sentencing court should exercise its authority

to declare excessive a mandatory minimum sentence only under rare circumstances.

State v. Lindsey, 99-3256 (La. 10/17/00), 770 So.2d 339, 345, cert. denied, 532 U.S.

1010, 121 S.Ct. 1739, 149 L.Ed.2d 663 (2001).

When evaluating whether defendant has rebutted the presumption that the

mandatory minimum sentence is constitutional, it is important to consider the

Habitual Offender Law’s purpose, particularly to deter and punish a recidivist who

is to be punished for the instant crime in light of his continuing disregard for the

laws of our state. Johnson, 709 So.2d 676-77. Taking into account the legislature’s

constitutional authority to enact statutes such as the Habitual Offender Law, the

sentencing court is only allowed to determine whether the particular defendant

before it has proven that the mandatory minimum sentence is so excessive in his case

that it violates our constitution. Id. Applying these principles, we evaluate whether

defendant clearly and convincingly established that the sixty-six year minimum

sentence required by the Habitual Offender Law was excessive under the facts and

circumstances of this case. In addition, while recognizing that the minimum is

presumed constitutional, we examine the reasons given by the district judge for

departing from the mandatory minimum sentence and finding defendant an

exceptional and rare case.

First, the district judge relied on a number of circumstances from defendant’s

childhood in finding his situation exceptional, including the lack of education,

family instability, his parents’ substance abuse, his parents’ criminal activity, and

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defendant’s own drug addiction by the age of fourteen. While these are very

unfortunate circumstances, we cannot say these are the types of circumstances that

make defendant an “exceptional case” warranting a lenient departure from the

legislature’s statutorily-created sentencing range. See, State v. Boyer, 10-693 (La.

3 Cir. 3/16/11), 56 So.3d 1119. This court has previously concluded that evidence

of substance abuse issues, a tumultuous and tragic childhood, criminal parents, and

age are not sufficient to rebut the presumption of constitutionality of a minimum

mandatory sentence. State v. Guillard, 04-899 (La. App. 5 Cir. 4/26/05), 902 So.2d

1061, 1079.

The district judge also relied on the fact that defendant was convicted by a

non-unanimous jury that deliberated for several hours. The United States Supreme

Court and the Louisiana Supreme Court have held that the jury-unanimity rule in

Ramos, supra, does not apply retroactively. Edwards v. Vannoy, 593 U.S. ––, 141

S.Ct. 1547, 1554, 209 L.Ed.2d 651 (2021); State v. Reddick, 21-1893 (La. 10/21/22),

— So.3d —. This pertains to an entirely different issue and is not a relevant factor

to consider in determining whether defendant’s case warranted a downward

departure from the sentencing range. Defendant’s conviction and sentence became

final long before Ramos was decided and does not apply. The fact that defendant’s

conviction would not be valid under the Ramos holding today is not pertinent to

whether defendant’s sentence makes a measurable contribution to the acceptable

goals of punishment, amounts to nothing more than the purposeful imposition of

pain and suffering, or is grossly disproportionate to the severity of the crime.

Whether a sentence imposed is too severe depends on the circumstances of the case

and the background of the defendant. Dorthey, supra. A sentence violates La.

Const. art. 1, § 20, if it is grossly out of proportion to the seriousness of the offense

or nothing more than a needless infliction of pain and suffering. Id.

22-KA-399 11

Defendant’s abuse of narcotics and sleep deprivation was also a factor in the

district judge’s determination that defendant presented exceptional circumstances.

We conclude that defendant’s choice to abuse narcotics does not support the district

judge’s finding that defendant is an exceptional case warranting a lenient departure

from the sentencing range mandated by the legislature. Nor is defendant’s state of

voluntary intoxication at the time of the crime a proper defense to armed robbery.

State v. Taylor, 01-452 (La. App. 5 Cir. 11/14/01), 802 So.2d 779, 783; State v.

Sheppard, 618 So.2d 1204, 1209 (La. App. 5 Cir. 5/12/93), writ granted, cause

remanded, 624 So.2d 1209 (La. 1993).

The district judge also stated that defendant took responsibility for his crime

and that the only defense he made was that he was charged with the wrong one. This

does not suffice as taking full responsibility for his crime because he continues to

assert that he did not commit the crime of armed robbery with which he was

convicted. The victim testified at trial that defendant had a knife and thrust it toward

her when demanding her purse. Two other witnesses testified that defendant had

something in his hand, held something up to the victim, and threatened her.

Furthermore, if defendant was sleep deprived and abusing narcotics at the time of

the crime as he claims, the testimony of the other witnesses is far more reliable.

Other reasons for the district judge’s finding that defendant’s case is

exceptional included that defendant’s prior convictions were for crimes committed

as a juvenile or young adult and that he has only spent five months of his adult life

out of prison. These facts do not make defendant’s case exceptional. Age is an

insufficient justification for a downward departure from a mandatory minimum

sentence. State v. Hernandez, 02-892 (La. App. 5 Cir. 1/28/03), 839 So.2d 281, 284;

State v. Jefferson, 01-1139 (La. App. 5 Cir. 3/13/02), 815 So.2d 120, 125.

The district judge further relied on defendant’s representation of himself, his

rehabilitation during his time in prison, the completion of his GED, the learning of

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a trade, his low TIGER score, and that he has a place to live and employment upon

his release. These factors, which occur after sentencing and while serving the

sentence, are not considered in sentencing a defendant. Such evidence related to

rehabilitation during imprisonment are taken into consideration by the parole board

in determining whether a prisoner is deserving of parole. See La. R.S. 15:574.4.

Indeed, as the State has pointed out, there is a specific statute providing for parole

consideration in cases similar to defendant’s situation here. Pursuant to Act 122 of

2021 and Act 750 of 2022, Subsection A(2) of La. R.S. 15:574.4 now provides that:

Notwithstanding the provisions of Paragraph (1) of this Subsection or
any other law to the contrary, unless eligible for parole at an earlier
date, a person committed to the Department of Public Safety and
Corrections for a term or terms of imprisonment with or without
benefit of parole for thirty years or more shall be eligible for parole
consideration upon serving at least twenty years of the term or
terms of imprisonment in actual custody and upon reaching the age
of forty-five. This provision shall not apply to a person serving a life
sentence unless the sentence has been commuted to a fixed term of
years. The provisions of this Paragraph shall not apply to any person
who has been convicted of an offense that is both a crime of violence
as defined in R.S. 14:2(B) and a sex offense as defined in R.S. 15:541
when the offense was committed on or after January 1, 1997. The
provisions of this Paragraph shall not apply to any person who has
been convicted of a crime of violence as defined in R.S. 14:2(B) or
a sex offense as defined in R.S. 15:541 when the offense was
committed on or after August 1, 2014. La. R.S. 15:574.4(A)(2)
(emphasis added) (as amended by Act 122 of 2021, effective August 1,
2021, and Act 750 of 2022, effective August 1, 2022).

Under this statute, it appears defendant may be parole eligible once he is

legally resentenced in that he falls within Subsection A(2) because he has served at

least twenty years of his imprisonment and has reached the age of forty-five. He

therefore may have the opportunity to present to the parole board that he is

rehabilitated, is not a threat for future criminal activity, has a plan for housing and

employment upon release, and deserves a chance at parole release. See La. R.S.

15:574.4.

Considering the totality of the circumstances, we agree with the state that the

district judge erred in imposing a sentence less than the minimum mandated by the

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Habitual Offender Law. We do not find that this case falls within a class of offenders

sufficiently narrow to qualify as exceptional, or the rare situation which permits a

lenient departure from the statutorily-mandated sentencing range. It is not the

sentencing judge’s role to question the legislature’s wisdom in setting mandatory

minimum punishments for criminal offenses. Hernandez, 839 So.2d at 284. The

sentencing court is only permitted to determine whether the particular defendant has

proven that the mandatory minimum sentence is so excessive in his case that it

violates the constitution.

We do not find that the mandatory minimum sentence in this case violates the

constitution. Defendant’s criminal history involves the use of weapons and threats

of violence on innocent individuals. 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. State v. Lawson, 04-334 (La. App. 5 Cir. 9/28/04), 885

So.2d 618, 622. Prior criminal activity is one of the factors to be considered by the

district judge in sentencing a defendant. State v. Washington, 414 So.2d 313, 315

(La.1982); Lawson, 885 So.2d at 623. The circumstances of this defendant, an

unstable and precarious childhood, parents with criminal convictions, substance

abuse, his age when he committed the violent crimes, and his rehabilitative potential

could potentially describe most habitual offenders who endure difficult young lives

but are able to rehabilitate while in the prison system.

Furthermore, a review of Louisiana cases indicates that a sixty-six year

sentence in defendant’s case is not unreasonable. In State v. Evans, 09-477 (La.

App. 5 Cir. 12/29/09), 30 So.3d 958, writ denied, 10-363 (La. 3/25/11), 61 So.3d

653, this court upheld a forty-five year enhanced sentence where defendant was

found to be a third-felony habitual offender upon his possession with intent to

distribute cocaine conviction. Defendant had prior convictions for violent and

potentially lethal armed robberies, and for possession of cocaine.

22-KA-399 14

In State v. Arceneaux, 18-642 (La. App. 5 Cir. 4/24/19), 271 So.3d 362, this

court held that defendant’s fifty-five year enhanced sentence as a third-felony

offender, which was imposed after resentencing pursuant to Esteen, supra, was

unconstitutionally excessive. In that case, however, defendant had an underlying

conviction of distribution of cocaine with predicate convictions of theft over $500,

now a misdemeanor rather than a felony, and simple robbery. This court considered

that defendant sold $20 worth of crack cocaine to an undercover police officer, and

the amount indicated that the defendant was a low level street drug pusher not a

major drug dealer. By comparison, the violent predicate felonies in the case before

us are far more grave.

In State v. Mathis, 18-678 (La. App. 5 Cir. 4/3/19), 268 So.3d 1160, writ

denied, 19-731 (La. 11/5/19), 281 So.3d 677, pursuant to Esteen, defendant was

found entitled to resentencing under the more lenient penalty provisions that were

enacted by the legislature in 2001 La. Acts 403. This court held that defendant’s

ninety-nine-year sentence as a fourth-felony offender, two of which were armed

robbery convictions, was not unconstitutionally excessive. Defendant attached

certificates to his motion to show that he had completed numerous programs while

incarcerated and testified that he was a changed man. This court found in Mathis,

supra, this insufficient to show by clear and convincing evidence that a lenient

departure from the mandatory minimum ninety-nine year sentence was justified.

In State v. Johnson, 19-63 (La. App. 5 Cir. 9/4/19), 279 So.3d 526, defendant

was also found entitled to resentencing under the more lenient penalty provisions

that were enacted by the legislature in 2001 La. Acts 403. As in this case, the State

agreed that defendant was entitled to resentencing, and that the sentence should be

not less than 66 years of imprisonment and not more than 198 years of imprisonment.

Defendant was resentenced as a third-felony offender (two of which were armed

22-KA-399 15

robbery convictions) to sixty-six years imprisonment without the benefit of parole,

probation, or suspension of sentence. This court affirmed that sentence.

Courts have also upheld a 99-year sentence and an enhanced life sentence for

armed robbery with a knife. See State v. Bruce, 10-121 (La. App. 5 Cir. 11/9/10),

54 So.3d 87, writ denied, 10-2756 (La. 4/29/11), 62 So.3d 109, where the defendant,

who entered a store and robbed the night clerk armed with a knife, was convicted of

armed robbery and sentenced to ninety-nine years at hard labor; he was later

adjudicated a third-felony offender and received a sentence of life imprisonment at

hard labor; State v. Carter, 570 So.2d 234, 235 (La. App. 5 Cir. 1990), where the

defendant, who robbed a pizza delivery man while armed with a knife, was convicted

of armed robbery and sentenced to 99 years imprisonment at hard labor; this was the

defendant’s third-felony conviction.

In considering the specific aspects relative to this defendant’s case, the facts

set forth in this court’s previous opinion show that defendant robbed a female while

armed with a knife. State v. Pierce, 02-1267 (La. App. Cir. 4/8/03), 846 So.2d 55.

Although defendant contends he did not have a knife, the victim testified that he did,

and other witness testimony corroborated the victim’s testimony. This court found

sufficient evidence to support the armed robbery conviction. Id.

In addition, as to defendant’s background, the record reflects that defendant

had a history of violence, including convictions for two counts of armed robbery,

one count of attempted armed robbery, and simple escape. Defendant committed

the prior armed robberies and the attempted armed robbery with a gun, and the

instant crime occurred approximately five or six months after he was released.

Further, at defendant’s original habitual offender sentencing, the trial judge

sentenced defendant to life imprisonment at hard labor. A trial judge’s

determination based on conclusions of credibility and weight of the testimony, is

entitled to great deference and will not be disturbed on appeal unless there is no

22-KA-399 16

evidence to support the ruling. State v. Higgins, 2003-1980 (La. 4/1/05), 898 So.2d

1219, 1233. The trial judge is best situated to determine a fair and appropriate

sentence for criminal conduct, which determination should be upheld unless the

record shows that broad sentencing discretion is abused. State v. Aguliar-Benitez,

21-174 (La. 10/10/21), 332 So.3d 618, 620. In this case, the trial judge who viewed

all the evidence at defendant’s trial was best situated to determine an appropriate

sentence for defendant. Although based on amendments, a life sentence is no longer

appropriate, we find that a reduction from life imprisonment to twenty-two years

fails to take into consideration the sentencing discretion of the trial judge who heard

and had firsthand observation of the trial evidence.

We therefore find that defendant has not rebutted the presumption that the

mandatory minimum sentence is constitutional or shown that the mandatory

minimum sentence shocks the sense of justice. He also has not shown clearly and

convincingly that he is exceptional, or that his case involves rare circumstances.

Accordingly, we find the district judge erred by disregarding the mandatory

minimum sentence required by the Habitual Offender Law when resentencing

defendant, and we therefore vacate the sentence and remand for resentencing

consistent with the principles enunciated in this opinion and Johnson, supra.

DECREE

For the reasons stated above, we vacate the district judge’s August 16, 2022

resentencing of defendant to twenty-two years at hard labor with credit for time

served and remand this matter to the district court for resentencing in accordance

with the principles enunciated in this opinion and Johnson, supra.

SENTENCE VACATED; REMANDED

22-KA-399 17

STATE OF LOUISIANA NO. 22-KA-399

VERSUS FIFTH CIRCUIT

EMILE PIERCE COURT OF APPEAL

STATE OF LOUISIANA

JOHNSON, J., DISSENTS WITH REASONS

I, respectfully, dissent from the majority opinion. I find that the district court

has resentenced Defendant, Emile Pierce, in accordance with the principles

enumerated in State v. Johnson, 97-906 (La. 3/4/98), 709 So.2d 672, 676. See State

v. Pierce, 22-154 (La. App. 5 Cir. 8/1/22), writ denied, 22-1184 (La. 8/11/22), 343

So.3d 702 (Wicker, J., concurring). The State acknowledged that Mr. Pierce’s right

“to argue [. . .] that the sentence imposed is excessive or seek a downward

departure below the statutorily mandated sentence” pursuant to Dorthey, 623 So.2d

at 1280, and to seek the ameliorative benefits provided by La. R.S. 15:308,

pursuant to Esteen, 239 So.3d at 238. See State v. Jarvis, 20-877 (La. 1/12/21),

308 So.3d 290, 291.

Upon careful review of the record, I find that Mr. Pierce has proven by clear

and convincing evidence that he is exceptional. The district court did not err in

finding that the statutory mandatory minimum sentence of sixty-six years for a

third-time felon is unconstitutionally excessive in this case. He is entitled to a

downward departure in sentence under Dorthey pursuant to Jarvis, supra. Further,

the district court did not abuse its broad discretion in finding that a sentence of

twenty-two years imprisonment is the longest sentence not constitutionally

excessive in Mr. Pierce’s case. Under the totality of the circumstances, I find that

the district court did not err when it found that a sentence that fell within the range

22-KA-399 1

of twenty-two to sixty-six years was not meaningfully tailored to Mr. Pierce’s

culpability, the gravity of his offense, or the circumstances of his case.

[T]he Legislature's determination of an appropriate minimum

sentence should be afforded great deference by the judiciary. State v. Morin, 16-64

(La. App. 5 Cir. 10/26/16), 203 So.3d 1109, 1114 (citing State v. Johnson, 709

So.2d at 676). However, it is also well-established that the review of sentencing,

particularly the review of sentences imposed in criminal cases for constitutional

excessiveness, is a function of the judiciary. Dorthey, supra at 1280. A sentence

that is within statutory limits, such as a mandatory minimum sentence provided by

the Habitual Offender Law, “‘may violate a defendant’s constitutional right against

excessive punishment.’” Id.; State v. Poupart, 88 So.3d at 1144–45. “[T]he

judiciary has the authority, in the rare case, to declare a sentence within these

statutory limits excessive under the facts of a particular case.” Johnson, 709 So.2d

at 676.

To be found exceptional, Mr. Pierce had to clearly and convincingly show

that he is exceptional, which in this context means that because of unusual

circumstances, he is a victim of the legislature's failure to assign sentences that are

meaningfully tailored to the culpability of the offender, the gravity of the offense,

and the circumstances of the case. See Johnson, supra. In the reasons for judgment

issued on March 14, 2022 in support of the March 8, 2022 district court ruling

sentencing Mr. Pierce to time served, the court made the following findings:

This Court found there was clear and convincing evidence
through the testimony of the witnesses and the Exhibits
presented that Emile Pierce is so exceptional that the legislature
failed to assign a sentence meaningfully tailored to his
culpability and circumstances.
Specifically, the Court found the following facts amount
to “unusual circumstances” required by Johnson and Young to
prove Mr. Pierce’s exceptionalness:
(1) The highest grade of schooling Mr. Pierce completed was
the sixth (6th) grade. His sister astonishingly testified under
oath that she attend [sic] thirty-seven (37) schools before she
reached eighth (8th) grade.

22-KA-399 2

(2) Mr. Pierce developed a drug addiction by the age of
fourteen (14) and was shuffled around foster and family
members’ homes due to his parents’ own substance abuse and
criminal convictions.
(3) When Mr. Pierce committed the crime, he was sleep
deprived and abusing narcotics.
(4) Mr. Pierce took responsibility for his crime. In fact, Mr.
Pierce admitted to committing a robbery, and in his own words,
“made a statement on himself” to police officers after his arrest.
The only defense Mr. Pierce has made to his crime is that he
was charged with the wrong one.
(5) Mr. Pierce was convicted by a non-unanimous jury that
deliberated for several hours.
(6) Mr. Pierce’s prior convictions, which formed the basis for
the multiple offender bill, were committed as either a juvenile
or a young adult.
(7) Mr. Pierce has only spent five (5) months of his adult life
out of prison.
(8) Mr. Pierce zealously represented himself at Trial and during
the last twenty (20) years of his litigation.
(9) Mr. Pierce provided the Court with certificates of
completion for (1) anger management; (2) behavioral
management; (3) 100 hours of pre-release classes, which
include personal development, job placement assistant, decision
making, employment skills, money management, victim
awareness, counseling, and job placement assistance; and (4)
his successful completion of the GED program.
(10) Mr. Pierce has learned a trade and has become an
accomplished jeweler while imprisoned at Angola.
(11) As of October 25, 2021, Mr. Pierce has a low Tiger Risk
Score.
(12) When released, Mr. Pierce will be living with his sister,
Christina Teekel, in her home of thirty-three (33) years in
Walker, Louisiana. His sister lives alone in her home and has
more than sufficient space to accommodate her brother for as
long as he chooses.
(13) Upon his release, Mr. Pierce will be working for his
nephew’s construction business until he is able to find
employment as a jeweler.

This Court found that in consideration of the totality of
the Above-mentioned facts, a sentence within the statutory
range of La. R.S. 15:529.1 would be unconstitutionally
excessive to the “unusual circumstances” of Emile Pierce’s case
and make no measureable contribution to acceptable goals of
punishment.

In its consideration of what sentence to impose, this Court
considered the Fifth Circuit’s ruling in State v. Stevenson, which
held that a defendant’s record of non-violent or violent offenses
cannot be the sole reason, or even the major reason, for
declaring a mandatory minimum sentence excessive. Stevenson,
839 So. 2d 340, 344 (La. App. 5 Cir. 2003); citing Johnson, 709

22-KA-399 3

So. 2d at 676. Further, this Court considered the Fifth Circuit’s
direction that a trial court may not depart from the legislatively
mandated minimum simply because of some subjective
impression or feeling about a defendant. Stevenson, 839 So. 2d
at 344 citing State v. Bell, 709 So. 2d 921, 927 (La. App. 5 Cir.
1998). Lastly, this Court looked back to the Louisiana Supreme
Court’s decision in State v. Johnson, which clarified State v.
Dorthey in ruling that a Judge must sentence a defendant to the
longest sentence which is not constitutionally excessive.
Johnson, 709 So. 2d at 677.

This Court has stated on the Record that it has no interest
in the outcome of this case, and it is simply trying to do the right
thing. In instituting its sentence, this Court did not take lightly
the fact that Mr. Pierce has been convicted of a violent crime,
regardless of what Mr. Pierce has argued. Further, this Court
mentioned on the Record that no one can definitely determine
Mr. Pierce’s future actions. However, Emile Pierce made ten
(10) court appearances during this Court’s fourteen (14) month
tenure. Despite having a public defender appointed to his case,
Mr. Pierce represented himself during the hearings, filed his
own motions, and demonstrated a thorough understanding of
Louisiana Law. This Court has gotten to know Mr. Pierce, not
only as a well prepared and extremely knowledgeable pro se
litigant, but also as a person. This Court found Mr. Pierce and
his family members extremely credible and honest in their
representations and testimony. Considering all Mr. Pierce has
accomplished while incarcerated and his current re-entry
opportunities, this Court found that keeping him incarcerated
would amount to nothing more than the purposeful imposition
of pain and suffering and is grossly out of proportion to the
severity of the crime.

Lastly, this Court found that Mr. Pierce’s case likely
involved a “Trial Tax” – terminology used to describe a Court’s
punishment of a Mr. Pierce for invoking their right to trial and
not accepting a plea bargain. Mr. Pierce’s proposed plea
bargain by the State was twenty- five (25) years, significantly
less than his original fifty (50) year sentence. Mr. Pierce chose
not to accept the proposed plea bargain because it was over
three (3) times the maximum sentence of simple robbery – the
crime Mr. Pierce believed he actually committed.
Coupled with the fact that Mr. Pierce represented himself at
trial, this Court found the high probability of a “Trial Tax” to be
a significant factor in determining what would be the longest
sentence not constitutionally excessive in this case.

Therefore, in consideration of Louisiana jurisprudence
and the totality of Mr. Pierce’s “unusual circumstances”, this
Court ruled that the longest sentence not constitutionally
excessive in this case is the twenty-two years Emile Pierce has
already served.

22-KA-399 4

After a three-hour hearing, in addition to having observed and interacted

with Mr. Pierce at a total of ten hearings over a fourteen-month hearing, the district

court judge found that Mr. Pierce demonstrated by clear and convincing evidence

that he is exceptional. Specifically, he found that the longest sentence he could

impose that was not prohibited by La. Const. art. 1, § 20 as excessive was twenty-

two years.

With regard to his culpability, the court made the following findings: 1) Mr.

Pierce was a substance abuse addict since adolescence; 2) he had only spent five

months of his adult life outside of confinement; and 3) he thought the crime he had

committed was simple robbery. The majority correctly notes that his impaired state

at the time the crime provides grounds for discrediting his testimony. However,

from the time the police initially questioned him, he never denied he committed a

crime. I doubt that, in insisting he committed a lesser crime and contradicting the

victim and other witnesses, he found favor with the jury or the judge who

sentenced him in 2001 and 2002. As the majority noted, voluntary intoxication is

not a defense, but the trial court did not commit clear error when it surmised it

lessened his blameworthiness.

Further, the armed robberies Mr. Pierce committed, though crimes of

violence, do not place him among the worst offenders. Though I am mindful of his

victims’ suffering, he did not physically harm anyone in the commission of his

crimes. The district court did not commit clear error when it found that an

examination of the gravity of Mr. Pierce’s offenses weighed in his favor.

Finally, I find that that the district court did not err when it found Mr. Pierce

exceptional because of the unusual circumstances of Mr. Pierce’s case. The process

of resentencing him pursuant to Esteen has provided him with a unique opportunity

-- Mr. Pierce has been able to prove that both he and his circumstances have

changed. The district court’s clear contemplation of Mr. Pierce’s nature and

22-KA-399 5

background, as well as the nature of the crimes he has committed, before rendering

its sentencing decision was thorough and unsentimental. I would affirm the district

court’s determination that a sentence of sixty-six years – a constructive life

sentence in this case – is constitutionally excessive in this case. See Johnson at

676-77.

In Mr. Pierce’s case, the district court found that the state constitution

prohibited the mandatory minimum sentence indicated by the Habitual Offender

Law. The court’s next task was then to establish the maximum sentence that would

not be constitutionally excessive. “A punishment is constitutionally excessive if it

makes no measurable contribution to acceptable goals of punishment and is

nothing more than the purposeless imposition of pain and suffering and is grossly

out of proportion to the severity of the crime.” Dorthey, supra. 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. State v. Arceneaux, 18-

642 (La. App. 5 Cir. 4/24/19), 271 So.3d 362, 366.

La. R.S. 15:1199.24 states that the mission of incarceration in our criminal

justice system is to enhance public safety. The top goals and priorities of

4
La. R.S. 15:1199.2 provides (in pertinent part):
A. The mission of incarceration in the criminal justice system is to enhance public safety through
the safe and secure incarceration of offenders, effective probation and parole supervision, and
proven rehabilitative strategies that successfully reintegrate offenders into society, as well as
assisting individuals and communities victimized by crime. The goals and priorities of
incarceration in the criminal justice system involve a commitment to public safety and
rehabilitation and are:
(1) To protect the citizens of the state of Louisiana.
(2) To punish conduct which is defined as criminal by the legislature.
(3) To deter future conduct which is defined as criminal by the legislature.
(4) To rehabilitate offenders so that they may be reintroduced into society as law-abiding
citizens.
(5) To provide safety to both corrections staff and offenders.
(6) To provide basic services.
(7) To provide opportunities for change.
(8) To provide opportunities for restitution.
(9) To provide effective strategies for reentry into society following incarceration.
[...]
D. The legislature recognizes that an essential component of reducing recidivism is providing an
individual with the necessary occupational skills to afford him the opportunity to earn a living,
support his family, and contribute to his community.
E. The legislature also recognizes that in addition to occupational skills development, it is
absolutely essential to provide proper substance abuse counseling, mentoring, and other

22-KA-399 6

incarceration involve a commitment to public safety and rehabilitation; to protect

the state’s citizens, to punish and deter criminal conduct as defined by the

legislature and “to rehabilitate offenders so that they may be reintroduced into

society as law-abiding citizens.” Id. (Emphasis added).

Mr. Pierce has made great strides while incarcerated. He has become sober,

received counseling, learned a trade, and several other valuable life skills. He has

a plan that involves starting a new life in a different geographical location from the

area where he grew up in extreme dysfunction and committed armed robberies as a

drug-addicted juvenile and young adult. He has family members who are willing to

provide him with housing and employment. It is clear that additional time in prison

would make “no measurable contribution to acceptable goals of punishment” and

would be the purposeful imposition of pain and suffering. “The inquiry of whether

a sentence is grossly disproportionate, however, focuses on whether ‘a

person deserves such punishment, not simply on whether punishment would serve

a utilitarian goal.’” State v. Johnson, 16-259 (La. App. 4 Cir. 12/21/16), 207

So.3d 1101, 1105, writ denied, 17-119 (La. 2/2/18), 233 So.3d 616 quoting

programs to assist individuals as they return to their communities with a focus on breaking the
cycle that prevents them from moving forward with their lives.
[...]
G. Successful offender reentry and reintegration into the community is a matter of critical
importance to the public's safety, but reentry is often unsuccessful due to the barriers ex-
offenders face upon release. Those barriers include, but are not limited to, a lack of education
and job skills, employment prohibition in selected occupations, mental health and substance
abuse problems, access to valid identification documents, child support enforcement
regulations, access to public housing and other public benefits, and strained or fragile family
and community ties.
H. The ability of ex-offenders to obtain employment after incarceration and become productive
members of their communities is essential to reducing recidivism rates; however, successfully
finding employment is often difficult due to the reluctance of many employers to hire individuals
with criminal backgrounds.
I. Without successful reentry into the community, recidivism is likely to occur, causing
detrimental effects to public safety, communities, families, taxpayers, and ex-offenders.
J. Offender reentry is a crime prevention strategy, which serves to reduce crime and the number
of crime victims and ultimately ensures opportunities for safer communities. Successful reentry
is also a cost savings measure which results in savings to state and local criminal justice
systems.
K. The Department of Public Safety and Corrections has taken steps to implement offender
reentry initiatives and is reaching out to other agencies and communities to form partnerships
which are necessary to ensure continued support and success.

22-KA-399 7

Rummel v. Estelle, 445 U.S. 263, 288, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980)

(POWELL, J., dissenting) (emphasis in original).

After “a sentencing judge finds clear and convincing evidence
which justifies a downward departure from the minimum sentence
under the Habitual Offender Law, he is not free to sentence a
defendant to whatever sentence he feels is appropriate under the
circumstances. Instead, the judge must sentence the defendant to the
longest sentence which is not constitutionally excessive. This requires
a sentencing judge to articulate specific reasons why the sentence he
imposes instead of the statutory mandatory minimum is the longest
sentence which is not excessive under the Louisiana Constitution.”

State v. Johnson, 97-1906 (La. 3/4/98), 709 So.2d 672, 677.

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. 12/27/07), 975 So.2d 646,

656. 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.

Casimer, 12-678 (La. App. 5 Cir. 3/13/13); 113 So.3d 1129, 1138. The issue on

appeal is whether the trial court abused its discretion, not whether another sentence

might have been more appropriate. Id.

“Compliance with sentencing guidelines pursuant to LSA–C.Cr.P. art. 894.1

is not required when the sentence imposed is statutorily prescribed under the

Habitual Offender Law.” State v. Otero, 09-468 (La. App. 5 Cir. 1/26/10), 31

So.3d 1125, 1132, writ denied, 10-0489 (La. 9/24/10), 45 So.3d 1072. However,

the factors outlined in that article provided a useful framework for us to follow the

district court’s reasoning. The court determined that Mr. Pierce proved by clear

and convincing evidence that the sentence he was ultimately given for the armed

robbery conviction, admittedly a crime of violence, was not one he deserved, or

one specifically tailored with regards to his culpability. See Id. Once the district

22-KA-399 8

court determined that the mandatory minimum was constitutionally excessive, it

was appropriate to weigh the aggravating and mitigating circumstance outlined in

Art. 894.1 to particularize the sentence to the defendant. See State v. Smith, 433

So.2d 688, 698 (La. 1983) (“The record must reflect that [the judge] adequately

considered these guidelines in particularizing the sentence to the defendant.”).

Pearson, supra, charges this Court, with the task of considering the

sentences of similarly situated defendants. I note that, in State v. Abbott, 94-1046

(La. App. 4 Cir. 02/23/95), 650 So.2d 1223, the Fourth Circuit affirmed a district

court order sentencing a second felony offender convicted of three counts of armed

robbery to 17.5 years where the statutory minimum was 33 years. After

considering the facts of the case, the youth of the defendant, and his prior

convictions, the appellate court found that the lower court the district court

satisfied the requirements of Dorthey and the downward departure was justified

despite the fact that the defendant in Abbott used a gun to rob three people.

In another case, the Third Circuit found in State v. Cole, 12-1404 (La. App.

3 Cir. 4/24/13), 156 So.3d 75, that the district court’s downward departure from

habitual offender sentence for armed robbery as fourth felony offender was not

clear error. The court found that the record and the jurisprudence supports the

sentencing judge's conclusion that there were several factors which clearly and

convincingly established Defendant was exceptional. Thus, due to the particular

circumstances of his case, the legislature failed to fashion a meaningful sentence to

match the culpability of the offender and the gravity of the offenses. However, the

court vacated the sentence and remanded the matter so the district court could

articulate specific reasons why it found that the mandatory minimum habitual

offender sentence was not appropriate in that case. The defendant in Cole, who

had robbed a motel guest while wielding a paring knife, was fifty years old at the

time of sentencing. His predicate convictions were for petty theft. Cole was

22-KA-399 9

sentenced to ten years at hard labor before the state filed a habitual offender bill of

information. A mitigation specialist testified that the defendant had not hidden his

identify, used a “minimal weapon”, and had been gainfully employed in a

leadership position, and his former employers thought highly of him. The Cole

court noted that his “particular life imprisonment [would impose] an undue burden

on the taxpayers of the state, who must feed, house, and clothe this defendant for

life [and, as] defendant ages, these costs will only increase due to the need for

geriatric health treatments.” Id. at 82. The appellate court suggested “a severe

sentence in this case, for example, a sentence of not less than 20 years, in

conformity with La. R.S. 15:529(A)(1)(c)(i), but not more 30 years at hard labor,

would meet all of the societal goals of incarceration and be constitutional in this

case.” Id.

I find Mr. Pierce’s situation to be similar to those of the defendants in Abbott

and Cole, supra. He has held himself accountable for his crimes, and he has

endeavored to better himself by defeating his addiction and learning a trade. He

has family and community support. I cannot say that the district court abused its

discretion when it found that the State’s continued incarceration of Mr. Pierce

would serve no satisfactory purpose. Mr. Pierce’s advanced age, low TIGER risk

score, certificates of completion entered into evidence, and the testimony at the

hearing supports the district court’s findings that Mr. Pierce has been sufficiently

punished and rehabilitated, has gained the tools he needs to successfully reintegrate

into society, and, therefore, he has taken advantage of all the state penal system has

to offer. See La. R.S. 1199.2.5

“[T]he trial court is best situated to determine a fair and appropriate sentence

for the criminal conduct, which determination should be upheld unless the record

5
See note 1, supra.

22-KA-399 10

shows that broad sentencing discretion is abused.” State v. Aguliar-Benitez, 21-174

(La. 10/10/21), 332 So.3d 618, 620. The supreme court in Aguliar-Benitez agreed

with the dissent in part and reversed the ruling of our majority opinion to the extent

that it vacated the 75-year sentence imposed by the trial court for sexual battery (of

a child under the age of 13) following remand from [Aguliar-Benitez’s first appeal]

on the grounds of unconstitutional excessiveness. The dissent in part opined that

the majority’s ruling in that case was “an unwarranted overstep into the trial

judge’s courtroom, made more abrasive by not so subtle inferences that surely, the

trial judge is incapable of reaching a just and legal result through his or her own

effort, observation, and reasoning.” State v. Aguliar-Benitez, 20-32 (La. App. 5 Cir.

12/30/20), 308 So.3d 1259, 1275, writ granted, 21-174 (La. 5/25/21),

and rev'd, 21-174 (La. 10/10/21); 332 So.3d 618. The Aguliar-Benitez concurrence

in part also noted that “this Court's role is not to decide whether a more lenient

punishment for a defendant's crime might have been more appropriate, but only to

determine whether the district court abused its vast sentencing discretion to the

point where it shocks one's conscience to allow such a sentence to stand.” Id. The

opposite must also be true – it is not our role to decide whether a more stringent

punishment for a defendant’s crime may be more appropriate, if the sentence is one

calculated by using sentencing guidelines provided by the jurisprudence and

otherwise legal.

Further, the majority argues that the first trial judge’s sentencing

discretion should be given more weight in considering Mr. Pierce’s resentencing.

I disagree. The majority and the State admit that the life sentence ordered by the

first trial judge is no longer appropriate. Mr. Pierce has successfully argued that

he was entitled to a review of his sentence under Dorthey. An appellate court’s

deference to the first sentencing judge, in this instance, would render the

Dorthey review meaningless. Additionally, in 2002, before the law at the time

22-KA-399 11

offered no other option but to sentence Mr. Pierce to life imprisonment once Mr.

Pierce was adjudicated a third-felony offender, the district court sentenced Mr.

Pierce to fifty years imprisonment without benefits. But, twenty years ago, less

information was available, or widely known, regarding the culpability of youth

offenders based on the maturation of the human brain occurring at age 25. Lila

Kazemian, Ph. D., Pathways of Desistance From Crime Among Juveniles and

Adults: Applications to Criminal Justice Policy and Practice, National Institute

of Justice Website (November 2021),

https://www.ojp.gov/pdffiles1/nij/301503.pdf. An exploration of the benefits

and effects of mass incarceration versus its costs has also taken place in recent

years. See Louisiana Justice Reinvestment Task Force Report and

Recommendations, Louisiana Supreme Court website, www.doc.la.gov/justice-

reinvestment-task-force (last visited October 27, 2022). Most importantly, the

original trial judge could not foresee Mr. Pierce’s commitment to rehabilitation.

In 2001 and 2002, it made sense to err on the side of caution when evaluating of

Mr. Pierce’s risk of recidivism and the threat he posed to public safety. No one

would have been able to predict that Mr. Pierce would reach a point where his

continued incarceration made no “measurable contribution to acceptable goals of

punishment,” would amount to nothing more than “the purposeful imposition of

pain and suffering,” and be “grossly out of proportion to the severity of the

crime.” The issue on appeal is whether the trial court abused its discretion, not

whether another sentence might have been more appropriate. State v. Rodas, 15-

792 (La. App. 5 Cir. 9/22/16), 202 So.3d 518, 527, writ denied, 16-1881 (La.

9/6/17); 224 So.3d 980. The district court’s finding that twenty-two years is the

longest possible sentence that is not excessive in Mr. Pierce’s case is supported

by the record and should not be disturbed.

22-KA-399 12

Last, the fact that further injury to Mr. Pierce may be avoided or lessened

by a successful parole campaign does not change the fact that a sentence of

sixty-six years would be grossly disproportionate to his crimes and would serve

no “measurable contribution to acceptable goals of punishment.” Dorthey,

supra. Further, based on the district court’s findings, I find that it would also be

cruel and unusual punishment to place Mr. Pierce under the supervision of the

Department of Corrections. Considering his low Tiger-risk score, parole would

unnecessarily place financial burdens and other restrictions on Mr. Pierce that

would make caring for himself and contributing to his family’s welfare and the

community difficult6 in the future.

A judge must tailor each sentence to the nature and culpability of each

defendant, and to the nature of the crime while applying statutory guidelines.

The legislature passed 2017 La. Acts 282 and mandated that judges consider

whether mandatory minimum sentences under La. R.S. 15:529.1 would be

constitutionally excessive pursuant to Dorthey. I do not opine that setting forth

jurisprudence that a trial judge has wide discretion when sentencing defendants,

except in instances where the defendants may benefit, was the intention of the

legislature. The instant case is the extremely rare instance where the district

court found that the range of sentences found constitutional in most cases for the

crime of armed robbery committed by a habitual offender were excessive, and

therefore, a violation of Mr. Pierce’s constitutional rights. Because Mr. Pierce

proved himself exceptional – a considerable feat considering the instant offense

and one of the predicate offenses were armed robberies, crimes of violence – I

do not find it appropriate to disturb the trial court’s rulings and instead defer to

the statutory mandatory minimums, or even the original sentencing judge, in this

case.

6
See note 1, supra.

22-KA-399 13

Considering the foregoing, I would affirm the district court’s August 1,

2022 judgment and find that the court did not commit legal error in finding Mr.

Pierce’s sentence constitutionally excessive or abuse its discretion in sentencing

Mr. Pierce to twenty-two years for his conviction.

22-KA-399 14

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
INTERIM CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON LINDA M. WISEMAN
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
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GRETNA, LOUISIANA 70054 (504) 376-1400

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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
OCTOBER 31, 2022 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

22-KA-399
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE DONALD L. FORET (DISTRICT JUDGE)
DARREN A. ALLEMAND (APPELLANT) THOMAS J. BUTLER (APPELLANT) ASHWINI VELCHAMY (APPELLEE)
SHANITA FARRIS (APPELLEE)

MAILED
HONORABLE PAUL D. CONNICK, JR.
(APPELLANT)
DISTRICT ATTORNEY
TWENTY-FOURTH JUDICIAL DISTRICT
200 DERBIGNY STREET
GRETNA, LA 70053