State of Louisiana Versus Miguel A. Ramirez

STATE OF LOUISIANA NO. 22-KA-92

VERSUS FIFTH CIRCUIT

MIGUEL A. RAMIREZ COURT OF APPEAL

STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 19-5947, DIVISION "L"
HONORABLE DONALD A. ROWAN, JR., JUDGE PRESIDING

November 02, 2022

JOHN J. MOLAISON, JR.
JUDGE

Panel composed of Judges Robert A. Chaisson,
Stephen J. Windhorst, and John J. Molaison, Jr.

AFFIRMED
JJM
RAC
SJW

COUNSEL FOR PLAINTIFF/APPELLEE,
STATE OF LOUISIANA
Honorable Paul D. Connick, Jr.
Thomas J. Butler
Anne M. Wallis

COUNSEL FOR DEFENDANT/APPELLANT,
MIGUEL A. RAMIREZ
Prentice L. White

MOLAISON, J.

The defendant/appellant in this criminal matter, Miguel Ramirez, seeks

review of his sentences on the basis of constitutional excessiveness. For the

reasons that follow, we affirm.

PROCEDURAL HISTORY

On January 23, 2020, the Jefferson Parish District Attorney’s Office filed a

bill of information charging the defendant with one count of unauthorized entry of

an inhabited dwelling where a person was present, with the intent to use force or

violence upon the person of another or to vandalize, deface, or damage the

property of another, 1 (count 1); one count of cruelty to the infirm2 upon Allen

Bourgeois (count 2), and; battery of Kristen White with a person 13 years or

younger present3 (count 3). The defendant pled not guilty to all charges at his

arraignment on February 13, 2020. He proceeded to a jury trial on July 20, 2021,

at the conclusion of which he was found guilty of unauthorized entry of an

inhabited dwelling as to count 1, and guilty as charged on counts 2 and 3.

On October 25, 2021, the trial court denied the defendant’s motion for a new

trial. On that same date, the defendant was sentenced to concurrent six-year

sentences on counts 1 and 2, with the first year for count 2 to be served without the

benefit of parole, probation, or suspension of sentence. For count 3, the defendant

received a three-year sentence that ran concurrently with his other sentences. On

October 29, 2021, the defendant filed a motion for reconsideration of sentence. On

November 30, 2021, the trial court granted the defendant’s motion for appeal. The

defendant’ motion for reconsideration of sentence was later denied on February 18,

2022.4

1
This charge is a violation of La. R.S. 14:62.8.
2
This charge is a violation of La. R.S. 14:93.3.
3
This charge is a violation of La. R.S. 14:35.3I.
4
Although the motion was considered after the motion for appeal had been granted, the
jurisdiction to do so is recognized in La. C.Cr.P. art. 916(3).

22-KA-92 1

FACTS

The testimony at trial established that on the evening of October 6, 2019, the

defendant and the mother of his three children, Ms. White, were returning from a

trip to Texas when they stopped to watch drag races in New Orleans east. While

there, the defendant punched Ms. White in the face after an argument.5 Eventually,

the defendant and Ms. White proceeded to the home of her grandmother, Gwen

Bourgeois, and her husband Allen Bourgeois,6 who lived in the Bridge City area of

Jefferson Parish. Mrs. and Mr. Bourgeois routinely took care of Ms. White’s and

the defendant’s children. Between 10:30 and 11:00 p.m., the defendant and Ms.

White arrived at the Bridge City residence, waking up Mrs. and Mr. Bourgeois.

While the defendant carried out one child to his car, Ms. White told Mrs. and Mr.

Bourgeois that the defendant had punched her earlier in the evening and had also

physically assaulted her during their stay in Texas. Ms. White showed them an

injury she had sustained in her mouth. Mr. Bourgeois then placed a 9-1-1 call to

police and relayed what Ms. White had told him.7

While the phone call to police was made, the defendant waited outside in the

car. Mrs. Bourgeois told the defendant to move his car as he was no longer

welcome in her home. The defendant called Mr. Bourgeois to say the he wanted to

get the rest of his children from the home, and Mr. Bourgeois responded that he

could not do so until the police arrived. Mr. Bourgeois testified that he next heard

Mrs. Bourgeois screaming that the defendant was in the house and he had pushed

her to the floor. Mr. Bourgeois then armed himself with a shotgun from his closet

and loaded it with a single shell before confronting the defendant in the hall and

5
Although the defendant apparently was never prosecuted in Orleans Parish for the attack on Ms.
White, the record shows that a warrant was issued for his arrest in connection with the October 6, 2019
incident.
6
Gwen Bourgeois was Ms. White’s biological grandmother, but Mr. Bourgeois was only related
by his marriage. Ms. White said that she considered both Mrs. and Mr. Bourgeois to be her grandparents.
7
The 9-1-1 call, which was authenticated by JPSO, was entered into evidence and played for the
jury.

22-KA-92 2

telling him to leave. The defendant grabbed the gun and threw it down, then hit

Mr. Bourgeois in the face with what Mr. Bourgeois believed was something from

the defendant’s pocket. Mr. Bourgeois stated he was knocked unconscious for a

short time and that, when he awoke, the defendant was on his back, repeatedly

beating him. Mr. Bourgeois estimated that the defendant hit him “over 20 times.”

He saw Ms. White’s daughter holding on to her mother’s leg and the daughter was

very afraid.8 After getting off of Mr. Bourgeois, the defendant grabbed Ms. White

and went toward the door. Mr. Bourgeois got up, retrieved his gun and followed

outside, where he saw the defendant throwing his daughter into the car and pushing

Ms. White before closing the door of his vehicle. At that time, Mr. Bourgeois told

the defendant not to leave and, when the defendant proceeded to go, Mr. Bourgeois

shot at him because he feared that the defendant would kill Ms. White and the

children. Following that, Mr. Bourgeois went back to lay down in the hallway until

police arrived. Mr. Bourgeois identified the defendant in court as the person who

beat him inside of his home.

Mr. Bourgeois was brought to the hospital and treated for multiple injuries

that included a “facial contusion, close fracture of a nasal bone,” and a lumbar

strain. He authenticated photos that were taken of his injuries, which were entered

into evidence. Mr. Bourgeois testified that he was 66-years-old at the time the

defendant attacked him.9

At trial, Jefferson Parish Sheriff’s Office (“JPSO”) Deputy Mark Giammaria

testified that he responded to a 9-1-1 call regarding a complaint of domestic abuse

on October 6, 2019, in the Bridge City area of Jefferson Parish. Upon arriving on

8
While the attack ensued, Mrs. Bourgeois placed a 9-1-1 call to police. The call was
authenticated by JPSO and introduced into evidence.
9
La. R.S. 14:93.3(C) provides:
For the purposes of this Section, a person who is aged is any individual sixty years of age or
older.

22-KA-92 3

the scene, Deputy Giammaria was advised by dispatch that someone had been shot.

He proceeded into the residence on 15th Street and encountered two people in the

home, Mrs. Bourgeois and her husband, Mr. Bourgeois, who was lying on the

ground in the hallway and was “bleeding significantly.” Deputy Giammaria

observed that Mr. Bourgeois had a “significant” laceration to his head, a swollen

and bruised eye, a “disfigured” nose, a cut on his arm, and a contusion on the back

of his head. Deputy Giammaria described Mrs. Bourgeois as being “[a]nxious, in

pain, scared” and “upset.” Both Mrs. and Mr. Bourgeois identified the person who

had caused the injuries as “Miguel.”

After driving away from the Bourgeois’ house, the defendant became aware

of the gunshot wound to his leg and he proceeded to a friend’s house in Kenner to

get advice on whether he should go to a hospital. When the friend was not home,

Ms. White convinced the defendant to go to Ochsner Hospital in Kenner for the

treatment of his injury.

While at the hospital, Ms. White was interviewed by Sergeant Sean

Williams of the JPSO Criminal Investigation Unit who was the lead investigator

for this case. Williams’ summary of the interview recounts that Ms. White told him

that she refused to leave New Orleans east with the defendant but that he hit her in

the face then dragged her to his car against her will. After arriving at her

grandparents’ house, she asked them to call the police. The defendant then entered

the home without permission and attacked Mr. Bourgeois. Ms. White stated that

the attack was so violent that she told Mr. Bourgeois to get a gun to defend

himself, which he did. The defendant grabbed Ms. White while she was holding

their daughter and dragged her outside of the house. The defendant then forced Ms.

White into the back seat of the car against her will. At the time of her interview

with Sergeant Williams, Ms. White expressed her intent to pursue simple

kidnapping and domestic abuse battery charges against the defendant. Sergeant

22-KA-92 4

Williams testified at trial that at the time of his interview with Ms. White in the

hospital, he saw that she had scratches and scrapes, and a mark on her right arm.

He also documented an injury to her lip.

Ms. White’s testimony at trial, in many respects, contradicted the account

she gave to her grandparents and to police. Ms. White indicated during her

testimony that she still lived with the defendant and had traveled to the trial with

him. She also stated that the defendant had full custody of their children at the time

of the incident because of her heroin addiction. In relevant parts, Ms. White

asserted that she had provoked the physical assault by the defendant in New

Orleans east and had voluntarily left with the defendant after he punched her. She

said that she lied to her grandparents about the defendant physically abusing her.

Ms. White testified that she changed the facts she told to police because she did not

want for Mr. Bourgeois to get into any trouble for shooting the defendant. Ms.

White claimed that the defendant did not physically force her to leave the

Bourgeois’ house on the night of the assault, but that she wanted to leave there.

Ms. White also testified as a defense witness that Mr. Bourgeois had twice

previously threatened to kill the defendant and that Mr. Bourgeois frequently used

racial slurs in referring to the defendant.

At trial, the defendant admitted to punching Ms. White in the face while in

New Orleans East during an argument, but claimed that she voluntarily went to her

grandparents’ home after that to pick up their children. He claimed that he had

initially entered the Bridge City residence with permission, but was yelled at by

Mrs. Bourgeois to leave the driveway. After waiting in his car for Ms. White, the

defendant called Mr. Bourgeois about leaving with his daughter. After Mr.

Bourgeois refused, the defendant went back inside and was met by Mrs. Bourgeois,

who stood in front of him arguing while he walked down the hallway. The

defendant stated that as he made his way into the bedroom where his daughter was,

22-KA-92 5

Mrs. Bourgeois fell down and began screaming that the defendant had pushed her.

He saw Mr. Bourgeois go to the closet and pull out a gun, after which he

confronted the defendant and said he would kill him. The defendant claimed that

Mr. Bourgeois hit the defendant with the gun and the two began struggling while

falling to the floor in the hallway. He testified that he hit Mr. Bourgeois

approximately six times, but then stopped. He acknowledged his belief at trial that

his violence toward Mr. Bourgeois had gone too far. He then got Ms. White, who

left willingly, and his daughter, placing them both in his car. As the defendant got

into the car, he heard a gunshot and saw Mr. Bourgeois about 10 feet away. Similar

to Ms. White’s testimony, the defendant asserted that he believed in the past that

Mr. Bourgeois would kill him, and also that Mr. Bourgeois had used racial slurs

against him.

After being shot, the defendant first thought about going to a friend’s house

because he did not want to become involved with the police. However, Ms. White

convinced him to go to the hospital where he was treated. After he was discharged

from the hospital, a deputy brought the defendant to the detective bureau to give a

statement.

ASSIGNMENT OF ERROR

The six-year sentence10 imposed by the district court in this case was

constitutionally excessive in light of his absence of a prior criminal history and the

facts of the case.

LAW AND ANALYSIS

The Eighth Amendment to the U.S. Constitution and Article I, §20 of the

Louisiana Constitution prohibit the imposition of excessive punishment. State v.

10
In his motion for reconsideration of sentence, the defendant did not specifically challenge the
sentence imposed for each count, but argued that the trial court should instead re-sentence him to
“eighteen months at hard labor on each count to run concurrent.” On appeal, the defendant does not
identify which six-year sentence he contends is excessive. Accordingly, we will review the sentences for
both counts 1 and 2, for which the six-year concurrent sentences were imposed.

22-KA-92 6

Nguyen, 06-969 (La. App. 5 Cir. 4/24/07), 958 So.2d 61, 64, writ denied, 07-1161

(La. 12/7/07), 969 So.2d 628. A sentence is considered excessive, even if it is

within the statutory limits, if it is grossly disproportionate to the severity of the

offense or imposes needless and purposeless pain and suffering. Nguyen, 958

So.2d at 64. In reviewing a sentence for excessiveness, the appellate court must

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

whether the penalty is so disproportionate as to shock the sense of justice. State v.

Taylor, 06-839 (La. App. 5 Cir. 3/13/07), 956 So.2d 25, 27, writ denied, 06-0859

(La. 6/15/07), 958 So.2d 1179 (citing State v. Lobato, 603 So.2d 739, 751 (La.

1992); State v. Pearson, 07-332 (La. App. 5 Cir. 12/27/07), 975 So.2d 646, 655-

56).

In the instant case, the trial judge indicated at sentencing on October 25,

2021, that he remembered the details of the defendant’s trial. Specifically, the

judge recalled the brutality of the defendant’s attack and the injuries that Mr.

Bourgeois sustained. He also recounted the defendant’s admission that he “got

carried away.” The judge stated that he was bound by guidelines of La. C.Cr.P.

art. 894.1 to impose imprisonment under certain circumstances, and found that the

following criteria were met: there was an undue risk that during the period of the

suspended sentence or probation that the defendant would commit another crime;

the defendant was in need of a correctional treatment or custodial environment that

could be provided most effectively by the commitment to an institution, and any

lesser sentence would deprecate the seriousness of the offense. The trial judge also

made clear on the record his impression that the defendant’s conduct during the

commission of the offenses manifested deliberate cruelty to Mr. Bourgeois and that

the defendant knowingly created a risk of death or great bodily harm to more than

one person by his actions.

22-KA-92 7

The possible sentence for the defendant’s conviction on count 1 was a fine

of not more than one thousand dollars, or imprisonment with or without hard labor

for not more than six years, or both. For his conviction on count 2, the potential

sentence was a fine of not more than ten thousand dollars or imprisonment with or

without hard labor for not more than ten years, or both, with at least one year of the

sentence imposed served without benefit of parole, probation, or suspension of

sentence when the court finds that the act of cruelty to persons was intentional and

malicious. Accordingly, while the defendant’s sentence on count 1 was the

maximum amount of jail time, his sentence for count 2 was a little over half of the

maximum sentence that could have been imposed. Thus, both sentences were

within the statutory limits. The trial court did not impose a fine upon the defendant

for either count. In addition, it was within the trial judge’s purview to sentence the

defendant to consecutive sentences, but he did not do so.

The trial court is given wide discretion in the imposition of sentences within

the statutory limits, and the sentence imposed will not be set aside as excessive

absent a manifest abuse of that discretion. 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. However, there is no requirement that specific

matters be given any particular weight at sentencing. State v. Tracy, 02-0227 (La.

App. 5 Cir. 10/29/02), 831 So.2d 503, 516, writ denied, 02-2900 (La. 4/4/03), 840

So.2d 1213. On review, an appellate court does not determine whether another

sentence may have been more appropriate, but whether the trial court abused its

discretion. State v. Free, 46,894 (La. App. 2 Cir. 1/25/12), 86 So.3d 29, 31. The

appellate court should not set aside a sentence for excessiveness if the record

supports the sentence imposed. State v. Pearson, 07-332, 07-333, 07-539 (La. App.

5 Cir. 12/27/07), 975 So.2d 646, 656.

22-KA-92 8

In State v. Bradley, 12-79 (La. App. 5 Cir. 9/11/12), 101 So.3d 986, 993-94,

this Court reviewed a defendant’s conviction for unauthorized entry of an inhabited

dwelling, who received six years’ imprisonment at hard labor, in light of his claim

that the sentence was constitutionally excessive. In that case, where we affirmed

the sentence, we undertook a survey of similar cases and noted the following,

which is also relevant to the instant matter:

In State v. Jupiter, 06-93 (La.App. 5 Cir. 6/28/06), 934 So.2d
884, defendant kicked in the door of his girlfriend's apartment, entered
it without her permission, struck her, and then fled. He was convicted
of unauthorized entry of an inhabited dwelling, among other things,
and sentenced to six years imprisonment at hard labor. On appeal,
defendant contended that he was not the most egregious of offenders,
and that this incident involved a family argument that escalated. This
Court upheld the sentence, noting that defendant was charged with
numerous other crimes in connection with this case.

Likewise, in State v. Williams, 32,993 (La.App. 2 Cir. 3/1/00),
754 So.2d 418, cited approvingly by this Court in Jupiter, defendant
went to his girlfriend's apartment, kicked the door in, entered, and
physically restrained his girlfriend. The Second Circuit found that
sentencing defendant to five years at hard labor for unauthorized entry
of an inhabited dwelling was not constitutionally excessive, noting
that the trial court concluded that defendant was in need of
correctional treatment and a lesser sentence would deprecate the
seriousness of the offense.

Also, in State v. Butler, 06-645 (La.App. 5 Cir. 12/27/06), 948
So.2d 296, this Court upheld a five-year hard labor sentence for a
defendant who was convicted of unauthorized entry of an inhabited
dwelling, noting that defendant entered his girlfriend's home despite a
restraining order and without her authorization, confronted her with a
knife, and left only because she called the police. This Court further
noted that the restraining order and supporting documents showed that
the defendant had a propensity toward violence to the victim, and that
defendant had a similar conviction in another state.

With regard to count 2, our review of sentences for similar crimes shows that the

defendant actually received a lesser sentence than those in some reported cases.

For example, in State v. Echeverria, 02-2592 (La. App. 1 Cir. 6/27/03), 858 So.2d

632, 636, writ denied sub nom. State ex rel. Echeverria v. State, 03-2332 (La.

8/20/04), 882 So.2d 580, the defendant received a seven-year sentence after

shoving his 84-year-old grandmother into kitchen furniture with both hands,

22-KA-92 9

thereby causing her unjustifiable pain and bruises. In State v. Deubler, 17-334 (La.

App. 5 Cir. 12/27/17), 236 So.3d 752, 758, writ denied, 18-0457 (La. 1/8/19), 259

So.3d 1025, the defendant was convicted of attacking his 84-year-old mother. She

reported to police that her son had “roughed [her] up,” hit her with a small baseball

bat, strangled her with her own shirt collar, and threatened to use a knife “on” her.

In that case the defendant was given a seven-year sentence, which was later

enhanced under a multiple offender bill, which we affirmed.

In the instant matter the record reflects that on October 6, 2019, the

defendant first committed a battery upon Ms. White by punching her in the face.

For that assault, a warrant was issued for the defendant’s arrest for domestic abuse

battery and simple kidnapping although it does not appear that he was prosecuted

for these crimes. Later that same evening, as evidenced in the second 9-1-1 call

entered into evidence, the defendant re-entered the Bourgeois’ home without

permission and injured Mrs. Bourgeois’ hand while she attempted to get the

defendant to leave. When calling police Mrs. Bourgeois reported that she was on

the floor and could not get back up.11 Mr. Bourgeois testified at trial that the

defendant knocked him unconscious before beating him repeatedly, causing

numerous injuries, in an act of violence that the defendant admitted had gone too

far. As initially reported to police, the defendant dragged Ms. White and their four-

year-old daughter over the bodies of her grandparents and out of the home before

forcing them into his car. After a review of the entire record, the trial court’s

reasons for judgment, sentences imposed for similar crimes, and the fact that the

defendant received only a little over half of the maximum sentence on what was

arguably the more serious charge, also taking into account that the defendant

received no fines and his sentences were run concurrently, we do not find that the

11
Mrs. Bourgeois did not give a formal statement to police and passed away prior to trial.
However, her 9-1-1 call, wherein she described the defendant’s attack, was entered into evidence. The
defendant was not charged with battery upon Mrs. Bourgeois.

22-KA-92 10

sentences imposed were unconstitutionally excessive. The sentences were not

grossly disproportionate to the severity of the offenses, nor do they shock our sense

of justice.

ERROR PATENT REVIEW

In accordance with La. C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337

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

reviewed the record for errors patent. As correctly pointed out by the defendant,

while the minute entry from sentencing indicates that he was advised of the time

limitation for filing for post-conviction relief, the transcript does not. When there is

a discrepancy between the minute entry or commitment and the transcript, the

transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La. 1983); State v. Pham,

12-635 (La. App. 5 Cir. 5/16/13), 119 So.3d 202, 227-28.

If a trial court fails to advise pursuant to La. C.Cr.P. art. 930.8, the appellate

court may correct this error by informing the defendant of the applicable

prescriptive period for post-conviction relief by means of its opinion. State v.

Francis, 17-651 (La. App. 5 Cir. 5/16/18), 247 So.3d 199, 205. Accordingly, we

advise defendant by way of this opinion that no application for post-conviction

relief, including applications which seek an out-of-time appeal, shall be considered

if it is filed more than two years after the judgment of conviction and sentence has

become final under the provisions of La. C.Cr.P. arts. 914 or 922.

We found no additional errors which required correction.

DECREE

Accordingly, for the foregoing reasons, the defendant’s convictions and

sentences are affirmed.

AFFIRMED

22-KA-92 11

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)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400

(504) 376-1498 FAX
www.fifthcircuit.org

NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
NOVEMBER 2, 2022 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

22-KA-92
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE DONALD A. ROWAN, JR. (DISTRICT JUDGE)
ANNE M. WALLIS (APPELLEE) THOMAS J. BUTLER (APPELLEE) PRENTICE L. WHITE (APPELLANT)

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