State of Louisiana v. Gerald P. Burns

Judgment rendered June 30, 2021.
Application for rehearing may be filed
within the delay allowed by Art. 922,
La. C. Cr. P.

No. 53,920-KA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

STATE OF LOUISIANA Appellee

Versus

GERALD P. BURNS Appellant

*****

Appealed from the
First Judicial District Court for the
Parish of Caddo, Louisiana
Trial Court No. 347,306

Honorable Katherine Clark Dorroh, Judge

*****

LOUISIANA APPELLATE PROJECT Counsel for Appellant
By: Mary Constance Hanes

JAMES E. STEWART, SR. Counsel for Appellee
District Attorney

RICHARD SOL FEINBERG
JASON WAYNE WALTMAN
ALEX L. PORUBSKY
NANCY F. BERGER-SCHNEIDER
Assistant District Attorneys

*****

Before STEPHENS, THOMPSON, and HUNTER, JJ.

STEPHENS, J.

This criminal appeal by defendant Gerald Burns arises from the First

Judicial District Court, Caddo Parish, State of Louisiana, where a jury found

him guilty as charged of attempted first degree rape, in violation of La. R.S.

14:27 and 14:42, and armed robbery, in violation of La. R.S. 14:64.

Subsequently, Burns was adjudicated a third-felony habitual offender and

sentenced to 49½ years. He appealed his sentence. Pursuant to State v.

Lyles, 2019-00203 (La. 10/22/19), 286 So. 3d 407, this court ordered the

matter remanded to the trial court for resentencing.1 State v. Burns, 53,250

(La. App. 2 Cir. 1/15/20), 290 So. 3d 721. For the attempted first degree

rape conviction, Burns was sentenced to 25 years at hard labor, and for the

armed robbery conviction, he was sentenced under the Habitual Offender

1
In State v. Lyles, 2019-00203 (La. 10/22/19), 286 So. 3d 407, the Louisiana
Supreme Court considered the effects of Act 282 of 2017 and Act 542 of 2018 when
determining the correct cleansing period for predicate offenses in a habitual offender
proceeding. The Supreme Court found that the Legislature apparently created three
categories of defendants potentially affected by Acts 282 and 542:

1. There are persons ... whose convictions became final on or after
November 1, 2017, and whose habitual offender bills were filed before
that date. Those defendants would be eligible to receive the benefits of all
ameliorative changes made by Act 282.

2. There are persons whose convictions became final on or after
November 1, 2017, and whose habitual offender bills were filed between
that date and August 1, 2018 (the effective date of Act 542). Those
persons would be eligible to receive the benefit of the reduced cleansing
period, and they may also have colorable claims to the other ameliorative
changes provided in Act 282, although we need not decide that question
today.

3. Finally, there are persons whose convictions became final on or after
November 1, 2017, and whose habitual offender bills were filed on or after
August 1, 2018. They would receive the reduced cleansing period by
operation of Subsection K(2) added by Act 542 but their sentences would
be calculated with references to the penalties in effect of the date of
commission in accordance with Subsection K(2) added by Act 542.

Law to 66 years at hard labor, without benefit of probation, parole, or

suspension of sentence, to run concurrently. Burns now appeals his

resentencing. For the following reasons, we affirm Burns’ sentence.

FACTS AND PROCEDURAL HISTORY

The following factual and procedural background is taken from this

court’s appellate opinion in State v. Burns, supra:

On the afternoon of February 18, 2017, M.A. was reading a
book at a cemetery near downtown Shreveport when Gerald
Burns held her at gunpoint and took her cell phone. Burns
ordered M.A. to come back when she tried to walk away.
Burns next told M.A. to stand on a grave before ordering her to
strip off her clothing. When she refused to remove her
clothing, Burns ran at M.A., who screamed and attempted to
escape. Burns tackled M.A. and while the two struggled on the
ground, Burns tried to remove M.A.’s pants. After M.A. struck
Burns on the head several times with a piece of broken
headstone, she was able to run away and contact the police.
Burns, who was later found with a head injury, made
incriminating statements to the police. M.A. identified Burns in
a photo lineup.

On March 20, 2017, Burns was charged by bill of information
with the attempted first degree rape of M.A. in violation of La.
R.S. 14:27 and 14:42, and with armed robbery of the same
victim, in violation of La. R.S. 14:64. Following a jury trial on
October 24-25, 2018, Burns was found guilty as charged on
both counts.

On October 30, 2018, Burns filed a motion for post-verdict
judgment of acquittal. The trial court denied that motion on the
same day and proceeded with sentencing after Burns waived the
delays. Burns’s father, Gerald Williams, testified at the
sentencing hearing that Burns was bipolar and suffered from
schizophrenia. Williams explained that he lived near Burns and
supervised his son to ensure that he took medication for his
mental illness. Williams testified that he had been out of town
for a few weeks when the crimes against M.A. were committed.
Although a relative was supposed to watch Burns while
Williams was away, Burns would not listen to her.

At the sentencing hearing, defense counsel requested that the
trial court take judicial notice of a report prepared earlier by Dr.
Marc Colon for the purpose of a competency determination. Dr.
Colon noted in his report that Burns reported a history of

2

bipolar disorder, schizophrenia, and attention-
deficit/hyperactivity disorder (“ADHD”). Dr. Colon also noted
that deficits shown by Burns on a cognitive assessment were
consistent with schizophrenia and mild intellectual disability.

The trial court completed a review of the aggravating and
mitigating factors found in La. C. Cr. P. art. 894.1. The trial
court also considered Dr. Colon’s report. Burns was sentenced
to 25 years at hard labor without benefits for the attempted first
degree rape conviction. Burns was also sentenced to 25 years at
hard labor without benefits for the armed robbery conviction.
Both sentences were to be served concurrently, and credit was
given for time served. Burns was also ordered to pay court
costs and a fine of $50. Burns objected to the sentence.

On October 30, 2018, the State filed a habitual offender bill
charging Burns as a third-felony offender, with the armed
robbery and attempted first degree rape convictions used as the
third felony. The first predicate conviction was Burns’s guilty
plea on November 17, 2011, to simple burglary committed on
or about April 9, 2011, for which he was sentenced to one year
at hard labor. The second predicate conviction was Burns’s
guilty plea on May 21, 2015, to possession of a legend drug on
or about April 29, 2015, for which he was sentenced to one year
at hard labor, with the sentence suspended. The State would
later file an amended habitual offender bill which again charged
Burns as a third-felony offender and used the same predicate
offenses as in the original bill, but used only the armed robbery
conviction as his third felony. Burns pled not guilty to the
habitual offender charge.

On November 29, 2018, Burns filed a motion to reconsider and
vacate his sentences, arguing that the trial court’s analysis of
the aggravating and mitigating factors from La. C. Cr. P. art.
894.1 was inadequate to support his sentences. Although
defense counsel stated at a hearing on February 28, 2019, that
the trial court had denied this motion, there is no ruling on this
motion in the record.

Following multiple hearings, on April 8, 2019, the trial court
adjudicated Burns a third-felony offender as to his armed
robbery conviction and vacated his prior sentence for that
conviction. The trial court sentenced Burns to 49.5 years, with
his sentence to run concurrently with his sentence for the
attempted first degree rape conviction. In its ruling, the trial
court incorporated the La. C. Cr. P. art. 894.1 aggravating and
mitigating factors it had considered at the prior sentencing
hearing. The court also again took judicial notice of Dr.
Colon’s report.

3

On April 9, 2019, the trial court amended Burns’s habitual
offender sentence to be served without benefits. The trial court
also filed written reasons for Burns’s habitual offender sentence
as required by La. R.S. 15:529.1.

State v. Burns, supra at 722-723.

Burns subsequently appealed his sentence, and this court found:

Burns was convicted of armed robbery and attempted first
degree rape on October 25, 2018. The habitual offender bill of
information was filed five days later. Thus, Burns falls into the
third category of Lyles defendants.

Burns committed the armed robbery on February 18, 2017.
Under the Habitual Offender Law in effect at that time, he faced
a habitual offender sentence of “not less than two-thirds of the
longest possible sentence for the conviction and not more than
twice the longest possible sentence prescribed for a first
conviction[.]” La. R.S. 15:529.1(A)(3)(a). A person who
commits armed robbery shall be imprisoned at hard labor for
not less than 10 years and for not more than 99 years, without
benefits. La. R.S. 14:64(B). Thus, as a third-felony offender
whose third felony conviction was for armed robbery, Burns
faced a minimum habitual offender sentence of 66 years at hard
labor.

State v. Burns, supra at 725.

Accordingly, this court held Burns’ sentence of 49½ years was

illegally lenient under State v. Lyles, supra, vacated Burns’ sentence, and

remanded for resentencing. State v. Burns, supra.

Following remand, defense counsel filed a motion for downward

departure. Burns argued his mental illnesses, namely, bipolar disorder,

schizophrenia, attention deficit disorder, and mental retardation, support a

downward departure from the minimum sentence. He noted he is on

medication and his father looks after him but was out of town when this

offense occurred. Burns argued he is “exceptional” because his disorders

are manageable when he has family to properly supervise him and that he

4

should not be excessively punished because his father made the mistake of

leaving town and allowing someone else to care for him.

Burns further argued his two prior felonies are “atypical” of other

offenders. In 2011, Burns pled guilty to simple burglary of a vehicle. He

claimed he was caught by officers inside the vehicle when he could not

figure out how to work the electric door locks to exit the vehicle. No harm,

loss, or property damage resulted from the offense. In 2015, he pled guilty

to possession of a legend drug, Seroquel, for which he had a prescription,

and received a suspended sentence. Burns argued he was actually factually

innocent of that offense and that, due to a change in the law, the offense is

now a misdemeanor.2

Additionally, Burns asserted that due to changes in the Habitual

Offender Law, had he committed this armed robbery eight months later he

would have been entitled to a lesser sentence (noting the effective date of

November 1, 2017, for the amendments to La. R.S. 15:529.1(A)(3)(a) by

Acts 257 and 282.) He also referenced argument made at the initial

sentencing hearing wherein defense counsel asked the trial court to take

judicial notice of the findings of the doctors on the sanity commission

concerning Burns’ mental disorders, and further noted the victim suffered

“no physical injuries or loss of property,” which is a mitigating factor.

Burns argued that these factors render him a “victim of the

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

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

2
Effective August 1, 2018, former La. R.S. 40:1238.1 was redesignated La. R.S.
40:1060.13, which makes possession of a legend drug punishable by a fine of not more
than $500.00, imprisonment for not more than six months, or both.
5

of the case.” Thus, Burns submitted that he is a candidate for downward

departure. Defense counsel also filed a motion to quash the habitual

offender bill based on the fact that Burns’ prior felony conviction of

possession of a legend drug is now a misdemeanor.

At the sentencing hearing, the trial court vacated both the 25-year hard

labor sentence for attempted first degree rape and the enhanced 49½-year

sentence for the armed robbery conviction. The trial court then imposed the

same 25-year hard labor sentence for attempted first degree rape and

imposed the minimum sentence of 66 years without benefits on the third

felony offense of armed robbery, to run concurrently. The trial court denied

the motion for downward departure and the motion to quash as well as a

subsequent motion to reconsider sentence. This appeal by Burns ensued.

DISCUSSION

On appeal, Burns challenges the 66-year enhanced sentence on the

armed robbery conviction. Burns argues his mental illnesses and the nature

of his two prior felonies warrant a downward departure from the minimum

sentence under the Habitual Offender Law.

The state argues Burns fails to show by clear and convincing evidence

that his mental illness qualifies as an exceptional circumstance warranting a

downward departure from the constitutional minimum sentence. The state

submits the trial court carefully weighed the aggravating and mitigating

factors and was within its discretion in imposing the “bare” minimum

sentence in light of the egregious nature of Burns’ attack on M.A. and his

criminal history. The state points out that the trial court expressed its

considerations at all three sentencing hearings. Such considerations

included the fact that, although his father was his caretaker, Burns was living
6

independently. Further, Burns’ acts exhibited deliberate cruelty to M.A.

including threats, use of a weapon, and actual violence. The state further

cites the trial court’s statement at the sentencing on the multiple offender bill

that the “record shows no intent of stopping criminal activity on [Burns’]

part” and that he is in need of correctional treatment. Finally, the state

advises that the trial court took judicial notice of, and considered, Dr.

Colon’s findings in a sanity report in which Dr. Colon found Burns

competent to stand trial despite his mental disorders. The state argues the

constitutional minimum sentence is appropriate for this offender and Burns’

circumstances do not rise to a level warranting a downward departure under

State v. Dorthey, 623 So. 2d 1276 (La. 1993).

Whoever commits the crime of armed robbery shall be imprisoned at

hard labor for not less than 10 years and for not more than 99 years, without

benefit of parole, probation, or suspension of sentence. La. R.S. 14:64. No

person shall be eligible for parole consideration who has been convicted of

armed robbery and denied parole eligibility under the provisions of La. R.S.

14:64. La. R.S. 15:574.4(B)(1). Louisiana R.S. 14:2(B)(21) and (B)(34)

designate “armed robbery” and “armed robbery with a firearm” as crimes of

violence.

An excessive sentence claim is reviewed by examining whether the

trial court adequately considered the guidelines established in La. C. Cr. P.

art. 894.1, and whether the sentence is constitutionally excessive. State v.

Wing, 51,857 (La. App. 2 Cir. 2/28/18), 246 So. 3d 711. A review of the

sentencing guidelines does not require a listing of every aggravating or

mitigating circumstance. State v. Kelly, 52,731 (La. App. 2 Cir. 6/26/19),

277 So. 3d 855, writ denied, 2019-01845 (La. 6/3/20), 296 So. 3d 1071.
7

When the defendant’s motion to reconsider sentence raises only a

claim that the sentence imposed was constitutionally excessive, review of

the sentence on appeal is restricted to that claim. La. C. Cr. P. art. 881.1;

State v. Sewell, 53,571 (La. App. 2 Cir. 11/18/20), 307 So. 3d 362. A

sentence violates La. Const. art. I, § 20, if it is grossly out of proportion to

the seriousness of the offense and is nothing more than a purposeless and

needless infliction of pain and suffering. State v. Dorthey, supra; State v.

Bell, 53,712 (La. App. 2 Cir. 1/13/21), 310 So. 3d 307. A sentence is

considered grossly disproportionate if, when the crime and punishment are

viewed in light of the harm done to society, it shocks the sense of justice.

State v. Weaver, 2001-0467 (La. 1/15/02), 805 So. 2d 166; State v. Wing,

supra.

The trial court must state for the record the consideration and the

factual basis for the sentence imposed. La. C. Cr. P. art. 894.1(C). The

court must consider the defendant’s personal history, the defendant’s

criminal record, the seriousness of the offense, and the likelihood of

rehabilitation, but there is no requirement that specific matters be given any

particular weight at sentencing. State v. Boehm, 51,229 (La. App. 2 Cir.

4/5/17), 217 So. 3d 596. All convictions and all prior criminal activity may

be considered as well as other evidence normally excluded from the trial.

State v. Reese, 49,849 (La. App. 2 Cir. 5/20/15), 166 So. 3d 1175, writ

denied, 2015-1236 (La. 6/3/16), 192 So. 3d 760.

The trial court has wide discretion in imposing sentence within the

statutory limits, so absent a showing of an abuse of that discretion, a

sentence will not be set aside as excessive. State v. West, 53,526 (La. App. 2

Cir. 6/24/20), 297 So. 3d 1081. The reviewing court does not determine
8

whether another sentence would have been more appropriate, but whether

the trial court abused its discretion. State v. Dale, 53,736 (La. App. 2 Cir.

1/13/21), 309 So. 3d 1031.

As a third-felony habitual offender, Burns faced a sentencing range of

66-198 years at hard labor, without benefit of probation, parole, or

suspension of sentence. La. R.S. 14:64; La. R.S. 15:529.1; State v. Burns,

supra.

The Habitual Offender Law has been held to be constitutional;

therefore, the minimum sentences imposed under the statute are presumed to

be constitutional. State v. Bailey, 51,627 (La. App. 2 Cir. 9/27/17), 245 So.

3d 145, writ denied, 2017-1734 (La. 5/18/18), 242 So. 3d 570.

Nevertheless, under La. Const. art. I, § 20, the judiciary may determine that

a mandatory minimum is excessive in a particular case. State v. Johnson,

1996-1263 (La. 6/28/96), 676 So. 2d 552; State v. Dorthey, supra.

Downward departure from a mandatory minimum sentence may occur

in rare circumstances if the defendant rebuts the presumption of

constitutionality by showing clear and convincing evidence that he is

exceptional, namely, that he is a victim of the legislature’s failure to assign

sentences that are meaningfully tailored to the gravity of the offense, the

culpability of the offender and the circumstances of the case. State v.

Nabors, 53,357 (La. App. 2 Cir. 4/22/20), 295 So. 3d 974, writ denied,

2020-00709 (La. 10/6/20), 302 So. 3d 527; State v. Chandler, 41,063 (La.

App. 2 Cir. 9/8/06), 939 So. 2d 574, 585, writ denied, 2006-2554 (La.

5/11/07), 955 So. 2d 1277, citing State v. Johnson, 1997-1906 (La. 3/4/98),

709 So. 2d 672.

In State v. Johnson, supra, the supreme court explained:
9

[I]t is apparent that the Legislature’s determination of an
appropriate minimum sentence should be afforded great
deference by the judiciary. This does not mean, however, that
the judiciary is without authority to pronounce a constitutional
sentence if it determines that a mandatory minimum sentence is
excessive in a particular case. Instead, we have held that courts
have the power to declare a sentence excessive under Article I,
Section 20 of the Louisiana Constitution, although it falls
within the statutory limits provided by the Legislature. State v.
Sepulvado, 367 So. 2d 762, 767 (La. 1979). In State v.
Dorthey, supra, this Court recognized that this power extends to
the minimum sentences mandated by the Habitual Offender
Law. Id. at 1280-81. However, this power should be exercised
only when the court is clearly and firmly convinced that the
minimum sentence is excessive.

....

A sentencing judge must always start with the presumption that
a mandatory minimum sentence under the Habitual Offender
Law is constitutional. See State v. Dorthey, supra at 1281
(Marcus, J., concurring); State v. Young, supra. 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.

State v. Johnson, supra at 676.

The supreme court in State v. Johnson, supra, further held that “while

a defendant’s record of non-violent offenses may play a role in a sentencing

judge’s determination that a minimum sentence is too long, it cannot be the

only reason, or even the major reason, for declaring such a sentence

excessive.” State v. Lindsey, 1999-3302 (La. 10/17/00), 770 So. 2d 339,

343, citing State v. Johnson, supra. “This is because the defendant’s history

of violent or non-violent offenses has already been taken into account under

the Habitual Offender Law for third and fourth offenders, which punishes

third and fourth offenders with a history of violent offenses more severely

than those with a history of non-violent offenses.” Id.

The sentencing court, while mindful of the goals to deter and punish

recidivism, must determine whether the particular defendant before it has
10

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

Louisiana’s constitution. State v. Lindsey, supra. The fact that a

defendant’s last felony was the only violent crime conviction against a

person is not an “unusual circumstance” that would support a downward

departure. State v. Lindsey, supra. A person with prior nonviolent felony

convictions who then proceeds to commit a felony involving violence

against a person has shown that his criminal conduct is becoming worse. Id.

The record shows the trial court properly sentenced Burns under La.

R.S. 15:529.1. His sentencing range was 66-198 years, so the imposed term

of 66 years, the mandatory minimum, is statutorily compliant. By law, the

sentence was to be imposed without probation, parole, or suspension of

sentence.

Burns fails to meet his burden of proof to rebut the presumption of

constitutionality and to show clearly and convincingly that he is exceptional,

such that the minimum sentence is so excessive under the facts of his case

that it violates the state’s constitution.

In sentencing Burns, the trial court noted it had considered all of the

factors enumerated in La. C. Cr. P. art. 894.1(B). It further found the

following aggravating factors applied to Burns: the conduct during the

commission of the offense manifested deliberate cruelty to the victim;

threats or actual violence were used in the commission of the offense; and a

weapon/firearm was used in the commission of the offense. The trial court

found no mitigating circumstances other than Burns’ mental health and

diagnoses.

Notably, Burns pled not guilty rather than not guilty by reason of

insanity. The sanity commission found Burns competent to stand trial
11

despite his manageable mental disorders. Furthermore, we find it

disingenuous that Burns asserts his illnesses are manageable with medication

and his father’s supervision while he simultaneously seeks leniency on the

grounds that he was not medicated, nor under his father’s supervision when

he committed this horrific attack. Burns lives independently and is

responsible for his rent and bills. His father and other family members “look

out” for him. However, his father was out of town when this attack

occurred. The record does not establish that Burns is under constant

supervision, which is what would be required to prevent another offense

such as the one perpetrated on M.A. The trial court appropriately considered

the egregious nature of this offense. Burns held M.A. at gunpoint, took her

cellphone, and then ordered her to stand on a grave and strip off her clothes.

When M.A. ran, he chased and tackled her. M.A. beat Burns in the head

with a piece of a headstone to escape his grasp.

Burns has two prior felonies, albeit nonviolent ones. Nonetheless, he

is a third-felony offender, and the nature of his prior felonies is not taken

into consideration for classification of his status as a subsequent felony

offender. The same trial court judge presided over the trial and each of the

three sentencings of Burns. She was well acquainted with this matter and

expressed her belief that Burns’ crimes would escalate.

Finally, even had no habitual offender bill been filed, Burns would

have faced a maximum sentence of 99 years for armed robbery. On this

record, Burns has not demonstrated clearly and convincingly that he is

exceptional and, thus, deserving of a downward departure from the

minimum sentence. Burns’ claim that his sentence is constitutionally

excessive is without merit.
12

CONCLUSION

For the foregoing reasons, the conviction and sentence of Gerald

Burns is affirmed.

AFFIRMED.

13