State of Louisiana Versus Michael Anthony Short

STATE OF LOUISIANA NO. 23-KA-473

VERSUS FIFTH CIRCUIT

MICHAEL ANTHONY SHORT COURT OF APPEAL

STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 19-6094, DIVISION "E"
HONORABLE FRANK A. BRINDISI, JUDGE PRESIDING

September 10, 2024

TIMOTHY S. MARCEL
JUDGE

Panel composed of Judges Marc E. Johnson,
Scott U. Schlegel, and Timothy S. Marcel

AFFIRMED; REMANDED FOR CORRECTION OF THE UNIFORM
COMMITMENT ORDER
TSM
MEJ
SUS

COUNSEL FOR PLAINTIFF/APPELLEE,
STATE OF LOUISIANA
Honorable Paul D. Connick, Jr.
Thomas J. Butler
Monique D. Nolan
Kristen Landrieu
Gabrielle Hosli

COUNSEL FOR DEFENDANT/APPELLANT,
MICHAEL ANTHONY SHORT
Bertha M. Hillman

MARCEL, J.

Defendant, Michael Anthony Short, appeals his sentence for one count of

introducing or possessing contraband in a correctional institution in violation of

La. R.S. 14:402. For the following reasons, we affirm defendant’s sentence.

However, we remand the matter for correction of the Uniform Commitment Order

as set forth in our error patent review.

PROCEDURAL HISTORY

This is defendant’s second appeal. The following statement of the case is

taken in part from our opinion rendered in the prior appeal. See State v. Short, 22-

263 (La. App. 5 Cir. 2/27/23), 359 So.3d 1004.

On February 14, 2020, the Jefferson Parish District Attorney filed a
bill of information charging defendant, Michael Anthony Short, with
one count of introducing or possessing contraband in the form of a
makeshift weapon into the Jefferson Parish Correctional Center, a
violation of La. R.S. 14:402. Defendant pled not guilty. On April 21,
2022, a six-person jury unanimously found defendant guilty as
charged.

On April 27, 2022, before sentencing, defendant filed a Motion for
New Trial and a Motion for Post-Verdict Judgment of Acquittal. At
the sentencing hearing later the same day, the trial court sentenced
defendant to ten years in the Department of Corrections. Immediately
after sentencing, the trial court denied defendant’s motion for new
trial and motion for post-verdict judgment of acquittal. Defendant
objected, and on May 2, 2022, he filed a Motion for Reconsideration
of Sentence and a Motion for Appeal. On May 4, 2022, the trial court
denied defendant’s motion for reconsideration and granted his motion
for appeal.

Short, 359 So.3d at 1005.

In his first appeal, defendant’s sole assignment of error was that his sentence

was constitutionally excessive. However, we pretermitted that assignment of error

on finding the trial court erred when it imposed sentence before ruling on

defendant’s post-verdict judgment of acquittal and motion for new trial. Based on

that finding, we vacated defendant’s sentence as well as the trial court’s rulings on

23-KA-473 1

the motions, and remanded for resentencing, preserving defendant’s right to appeal

any adverse rulings on his motions or the new sentence. Id.

On remand the trial court denied defendant’s motion for post-verdict

judgment of acquittal and motion for new trial, then proceeded to sentence

defendant to ten years at hard labor. In this appeal, defendant challenges the

excessiveness of the sentence imposed by the trial court.

FACTS

A fight occurred between multiple inmates in a housing unit within the

Jefferson Parish Correctional Center on September 19, 2019. Sergeant Jody Banks

was assigned to inmate security at the Jefferson Parish Correctional Center on that

day and testified at trial that the fight involved an attack on one inmate by other

inmates. He observed lacerations across the face and hands of the inmate victim,

which required attention at the medical unit. The inmate victim identified

defendant as one of his attackers.

Sergeant Banks searched defendant’s bunk area, where he found a

toothbrush with an attached razor blade. He testified that the contraband was

found beneath defendant’s bunk, inside of defendant’s legal work. When shown to

inmates participating in the attack, defendant stated, “[T]hat’s mine. That’s from

my bunk.” However, at trial, defendant denied any involvement in the attack,

claiming to be asleep in his bunk at the time of the incident. Defendant also denied

admitting to Sergeant Banks that the toothbrush was his.

DISCUSSION

In his only assignment of error, defendant avers the trial court erred when it

imposed the maximum sentence of ten years for his conviction of introduction into

or possession of contraband in a correctional institution. He argues that although

his sentence is within the statutory limits, it is constitutionally excessive under the

facts of this case and is grossly out of proportion to the severity of the crime.

23-KA-473 2

Defendant further argues that the trial court did not give proper consideration to the

guidelines of La. C.Cr.P. art. 894.1 because only one of the aggravating

circumstances of the article applied to him and that the other nineteen did not. In

response, the State argues defendant’s sentence is not constitutionally excessive

considering the contraband possessed by defendant (a make-shift knife/weapon)

created a dangerous situation for prisoners and prison guards. The State also

contends the trial judge thoroughly considered the aggravating and mitigating

circumstances of La. C.Cr.P. art. 894.1 as evidenced by a finding of aggravating

factors in his reasons for sentence.

Defendant was resentenced on April 26, 2023. At his resentencing hearing,

the following dialogue took place between the trial judge and defendant:

THE COURT: Look, Mr. Short, I appreciate you telling me what
you’ve been up to, and that’s good for you, but
you’ve already gotten a break from the D.A.’s
Office.

DEFENDANT: Yes, sir.

THE COURT: You know, in a perfect world, you would have
been multiple billed. I don’t know why they’re not
multiple billing you, but that’s not my business.
So -- under a multiple bill, you’d be looking at
twenty to forty –

DEFENDANT: Yes, sir.

THE COURT: -- and you wouldn’t get good time. So, I mean,
you got ten years, you know, that’s your break. I
mean, I hope you do real well in jail, I hope you do
as many programs as you can, but I’m not going to
change my sentence, not based on your record,
especially simple burglaries. I think some of those
simple burglaries were home burglaries, too, if I’m
not mistaken, if remember the trial. But simple
burglaries, those are victim crimes. Those are
serious crimes. And, you know, we know what the
problem is, you prob -- you got a drug habit.

23-KA-473 3

DEFENDANT: Drug addict, yes, sir, absolutely.

THE COURT: So, you know, it’s no secret. Unless you kick the
drugs, you’re never going to better – you’re never
going to be okay.

DEFENDANT: Yes, sir.

THE COURT: So I hope you do that. And I’m not going to
change my ten-year sentence. I think it’s
appropriate in this case given the facts of the case
and given the defendant’s record. So, ten years.
That’s without benefit. Is that without benefit?

THE STATE: No, sir.

Thereafter, the trial judge proceeded to sentence defendant to ten years at hard

labor.1

La. C.Cr.P. art. 881.1(B) provides that a motion to reconsider “shall be oral

at the time of sentence or shall be in writing thereafter and shall set forth the

specific grounds on which the motion is based.” La. C.Cr.P. art. 881.1(E) provides

that the “[f]ailure to make or file a motion to reconsider sentence or to include a

specific ground upon which a motion to reconsider sentence may be based,

1
Details as to defendant’s original sentence are included below:
At his original sentencing, the trial judge asked the State for defendant’s criminal history. He then stated
that given defendant’s record and the fact that the State was not going to multiple bill him, he felt justified
in giving him the maximum sentence. “I normally don’t hand out maximum sentences but in this case I
feel that I’m justified to do so.” He then stated,
Given his record, and given the fact that you’re not going to multiple bill him, I feel
justified in giving him the maximum sentence of ten years.

The fact that he was in prison when he was found in possession of a makeshift blade, a
knife-like weapon, there was a fight right before he was found in possession of it where someone
was using that weapon is what I gathered from the testimony

I normally don’t give out maximum sentences, but in this particular case I feel like I’m
justified in doing so. You got ten years Department of Corrections, Mr. Short.

***
All right. And let me just say that, after listening to the trial and listening to the
defendant’s testimony, I do believe the police officer’s testimony. I do believe the police officer’s
version of the offense that happened. I do believe that there was a fight that day. I do believe that
the defendant was involved in the fight. And I do believe that the defendant used that blade in the
fight. And I think it was an extremely dangerous situation that he put the prison guards in that
day. I mean, people got hurt -- someone got hurt and had to be rushed to the hospital. And I think
that he placed the prison guards in harm’s way that day. Therefore, I’m giving him the ten years.

23-KA-473 4

including a claim of excessiveness, shall preclude the state or the defendant from

raising an objection to the sentence or from urging any ground not raised in the

motion on appeal or review.” Failure to make or file a motion to reconsider

sentence, or to state the specific grounds upon which the motion is based, limits a

defendant to a review of the sentence for constitutional excessiveness only. State

v. Smith, 16-406 (La. App. 5 Cir. 8/30/17), 227 So.3d 337, 363, writs denied, 17-

1643 (La. 9/14/18), 252 So.3d 481, and 17-1660 (La. 9/14/18), 252 So.3d 482.

Further, when the specific grounds for objection to the sentences, including alleged

non-compliance with La. C.Cr.P. art. 894.1, are not specifically raised in the trial

court, then these issues are not included in the bare review for constitutional

excessiveness, and the defendant is precluded from raising these issues on appeal.

State v. Clark, 19-518 (La. App. 5 Cir. 6/24/20), 296 So.3d 1281, 1291, writ

denied, 21-62 (La. 3/9/21), 312 So.3d 585.

While defendant filed a motion to reconsider sentence after the imposition of

his original sentence, which was vacated, he did not file a motion to reconsider

sentence after resentencing on remand. Where a new sentence has been imposed

following vacation of a prior sentence, the defendant is required to file a new

motion for reconsideration of sentence in the trial court in order to preserve

appellate review of the newly-imposed sentence. State v. Evans, 09-477 (La. App.

5 Cir. 12/29/09), 30 So.3d 958, 965, writ denied, 10-363 (La. 3/25/11), 61 So.3d

653 (citing State v. Emerson, 04-156 (La. App. 1 Cir. 10/29/04), 888 So.2d 975,

979-80, writ denied, 05-89 (La. 4/22/05), 899 So.2d 557). The court cannot

assume that the defendant’s objections to the earlier sentence are equally

applicable to the new sentence imposed. Id. Also, defendant did not object or

argue below regarding La. C.Cr.P. art. 894.1. As such, we limit review for

constitutional excessiveness only.

23-KA-473 5

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

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

Calloway, 19-335 (La. App. 5 Cir. 12/30/19), 286 So.3d 1275, 1279, writ denied,

20-266 (La. 7/24/20), 299 So.3d 69. 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. State v. Woods,

18-413 (La. App. 5 Cir. 12/19/18), 262 So.3d 455, 460.

According to La. C.Cr.P. art. 881.4(D), the appellate court shall not set aside

a sentence for excessiveness if the record supports the sentence imposed. In

reviewing a sentence for excessiveness, the reviewing court shall consider the

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

penalty is so disproportionate as to shock the court’s sense of justice, while

recognizing the trial court’s wide discretion. Calloway, supra. The relevant

question on appeal is whether the trial court abused its broad sentencing discretion,

not whether another sentence might have been more appropriate. See State v.

Dixon, 19-7 (La. App. 5 Cir. 12/30/19), 289 So.3d 170, 174, writ denied, 20-143

(La. 7/17/20), 298 So.3d 176. The trial judge is afforded broad discretion in

sentencing, and a reviewing court may not set aside a sentence for excessiveness if

the record supports the sentence imposed. La. C.Cr.P. art. 881.4(D). The sentence

imposed should not be set aside as excessive in the absence of a manifest abuse of

discretion. State v. Hankton, 20-388 (La. App. 5 Cir. 7/3/21), 325 So.3d 616, 623,

writ denied, 21-1128 (La. 12/7/21), 328 So.3d 425.

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. Woods, supra; State v. Allen, 03-1205 (La. App. 5 Cir. 2/23/04), 868

So.2d 877, 880. However, there is no requirement that specific matters be given

23-KA-473 6

any particular weight at sentencing. Woods, supra. Generally, maximum

sentences are reserved for cases involving the most serious violations of the

offense charged and the worst type of offender. State v. Melgar, 19-540 (La. App.

5 Cir. 4/30/20), 296 So.3d 1107, 1115.

In this case, defendant was convicted of one count of introducing or

possessing contraband in a correctional institution in violation of La. R.S. 14:402,

which at the time of offense provided:

G. (1) Whoever violates any provision of this Section shall be fined
not less than five hundred dollars and not more than ten thousand
dollars and shall be imprisoned with or without hard labor for not
more than ten years. Notwithstanding any other law to the contrary,
whoever introduces contraband as defined in Paragraph (D)(1) of this
Section, upon the grounds of any state correctional institution, or
Paragraph (E)(5) of this Section, upon the grounds of any municipal
or parish prison or jail, shall be punished in accordance with the
penalties for the distribution of the controlled dangerous substance
provided in R.S. 40:961 et seq.

The penalty for introducing or possessing contraband in a correctional

institution provided a sentencing range of zero to ten years with or without hard

labor and a fine of five hundred to ten thousand dollars. Defendant was sentenced

to the maximum term of imprisonment for the conviction of introducing or

possessing contraband in a correctional institution.

Upon review, we find that defendant’s sentence is not constitutionally

excessive. Considering the nature of the crime, the record indicates that when

resentencing defendant, the trial judge referenced his original sentence and stated

he was not going to change the ten-year-sentence originally imposed, given the

facts of the case and defendant’s record. At defendant’s original sentencing, the

trial judge stated that he believed the police officer’s testimony that defendant used

the makeshift blade in the fight and created an extremely dangerous situation

where the victim was hurt and where he placed prison guards in harm’s way. The

23-KA-473 7

second circuit has stated that La. R.S. 14:402 was enacted “for the purpose of

fostering inmate and institutional security and a violation of its terms is a serious

offense, posing a grave threat to other inmates and prison officials.” See State v.

Elliott, 467 So.2d 1144, 1147 (La. App. 2 Cir. 1985); State v. Lawson, 434 So.2d

490 (La. App. 2 Cir. 1983). In the instant matter, the State presented evidence

through Sergeant Banks’ testimony that the victim was attacked by multiple

inmates (one of which was defendant) and suffered lacerations to his hands and

face which required medical treatment. The makeshift weapon was found with

defendant’s belongings, and defendant admitted it was his (although he testified

that it was not his at trial).

As to the nature and background of defendant, this Court stated in State v.

Garrison, 19-62 (La. App. 5 Cir. 4/23/20), 297 So.3d 190, 210, writ denied, 20-

547 (La. 9/23/20), 301 So.3d 1190, cert. denied, -- U.S. --, 141 S.Ct. 2864, 210

L.Ed.2d 967 (2021), “A trial court should consider the defendant’s personal history

such as age, family ties, marital status, health, employment record, as well as his

prior criminal record, seriousness of offense and the likelihood of rehabilitation in

determining an appropriate sentence.” (citing State v. Pettus, 10-777 (La. App. 5

Cir. 5/24/11), 68 So.3d 28, 30, writ denied, 11-1326 (La. 12/2/11), 76 So.3d 1176).

The record reflects that defendant had a lengthy criminal history. The trial judge

considered defendant’s criminal history on the record in both his original sentence

and in resentencing defendant. In resentencing defendant, the trial judge stated

that although he was sentencing defendant to ten years, he was getting a “break”

because he was not being multiple billed by the State. He stated that his burglaries

were “victim crimes” and that they were serious.

In State v. Boudreaux, 612 So.2d 179 (La. App. 1 Cir. 1992), writ denied,

93-163 (La. 3/26/93), 614 So.2d 1253, cited to by the State, the defendant was

sentenced to two and one-half years imprisonment for a violation of La. R.S.

23-KA-473 8

14:402, for being in possession of a pocket knife that was sewn into the sole of his

shoe while he was incarcerated. Id. at 180. At the time, the maximum sentence for

a violation of the statute was five years imprisonment at hard labor. The appellate

court found that the trial court considered the facts of the offense and the

defendant’s criminal record, including numerous arrests and convictions. The

court found that the sentence was not grossly disproportionate under the

circumstances. Id. at 182.

In State v. Williams, 490 So.2d 645 (La. App. 2 Cir. 1986) (per curiam),

cited to by the State, the defendant was sentenced to five years imprisonment at

hard labor, the maximum at the time, for a violation of La. R.S. 14:402. The

defendant was serving time as a condition of probation for previous convictions.

Based on information provided to officers by a confidential informant, the

defendant was searched upon returning to jail from a trustee assignment. The

defendant was found to be in possession of a tobacco cigarette sprinkled with PCP.

Id. The defendant argued that the five-year maximum sentence was excessive,

considering the very small amount of PCP found on his person. The appellate

court found that the trial court thoroughly considered aggravating and mitigating

circumstances under La. C.Cr.P. art. 894.1, considered the defendant’s past

criminal history and pre-sentence investigation, and concluded there was an

“undue risk” that he would commit other criminal acts if not incarcerated. The

appellate court stated that the small amount of PCP found on the defendant did not

minimize the seriousness of the offense and relied on the purpose of La. R.S.

14:402’s enactment. Id. (citing Elliott, supra; Lawson, supra). The appellate court

concluded that the sentence imposed was not excessive. Id. at 647.

The Louisiana Supreme Court has stated, “While comparisons with other

similar cases are useful in itself and sets the stage, …the focus of sentence review

remains on the character and propensities of the offender and the circumstances of

23-KA-473 9

the offense.” State v. LeBlanc, 09-1355 (La. 7/6/10), 41 So.3d 1168, 1173 (citing

State v. Telsee, 425 So.2d 1251 (La. 1983)). Furthermore, “[A]lthough a

comparison of sentences imposed for similar crimes may provide guidance, ‘[i]t is

well settled that sentences must be individualized to the particular offender and to

the particular offense committed.’” State v. Boudreaux, 11-1345 (La. App. 4 Cir.

7/25/12), 98 So.3d 881, 891, writ denied, 12-1907 (La. 11/9/12), 100 So.3d 841

(citing State v. Batiste, 594 So.2d 1, 3 (La. App. 1 Cir. 1991)). Moreover, the

relevant inquiry is not whether a different sentence might have been more

appropriate but whether the district court abused its broad sentencing discretion.

State v. Smith, 01-2574 (La. 1/14/03), 839 So.2d 1, 4.

In this mater, the trial court articulated the factual basis for determining the

sentence imposed, including defendant’s criminal history and lack of remorse for

his wrongdoing. Defendant attempted to shift the blame and failed to take

responsibility for his actions.

Considering, the harm caused by the contraband, the risk of harm to officers

and other inmates by the presence of a makeshift knife in the correctional center,

defendant’s lack of remorse, failure to take responsibility, his previous criminal

history, and the reason for which La. R.S. 14:402 was enacted, we find defendant’s

sentence was not constitutionally excessive. Defendant’s sole assignment of error

lacks merit.

ERROR PATENT REVIEW

The record was reviewed for errors patent according to 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. 5 Cir. 1990).

There is a discrepancy between the uniform commitment order (UCO) and

the transcript. As discussed, the sentence ordered by the court on April 27, 2022,

was vacated by this Court. See Short, supra. Defendant was resentenced on April

23-KA-473 10

26, 2023. The UCO generated from the nunc pro tunc sentencing minute entry on

May 2, 2023, provides that the sentence date is “4/27/22.” The sentence date

column should contain the new resentence date of April 26, 2023. See State v.

Davis, 15-118 (La. App. 5 Cir. 6/30/15), 171 So.3d 1223, 1230, writ denied, 15-

1492 (La. 9/22/17), 227 So.3d 820. We therefore remand the matter for correction

of the UCO to correct the resentencing date. We further direct the Clerk of Court

for the 24th Judicial District Court to transmit the original of the corrected UCO to

the institution to which defendant has been sentenced and the Department of

Corrections’ legal department.

CONCLUSION

Finding no merit to the assignment of error, we affirm defendant’s sentence.

We also remand for correction of the Uniform Commitment Order as set forth

above.

AFFIRMED; REMANDED
FOR CORRECTION OF
THE UNIFORM
COMMITMENT ORDER

23-KA-473 11

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
STEPHEN J. WINDHORST LINDA M. WISEMAN
JOHN J. MOLAISON, JR.
FIRST DEPUTY CLERK
SCOTT U. SCHLEGEL
TIMOTHY S. MARCEL 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
SEPTEMBER 10, 2024 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL
PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

23-KA-473
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE FRANK A. BRINDISI (DISTRICT JUDGE)
MONIQUE D. NOLAN (APPELLEE) THOMAS J. BUTLER (APPELLEE) BERTHA M. HILLMAN (APPELLANT)

MAILED
GABRIELLE HOSLI (APPELLEE)
HONORABLE PAUL D. CONNICK, JR.
(APPELLEE)
KRISTEN LANDRIEU (APPELLEE)
ASSISTANT DISTRICT ATTORNEYS
TWENTY-FOURTH JUDICIAL DISTRICT
200 DERBIGNY STREET
GRETNA, LA 70053