State of Louisiana v. Douglas Scott Holley

Judgment rendered April 22, 2020.
Application for rehearing may be filed
within the delay allowed by Art. 922,
La. C. Cr. P.

No. 53,405-KA
No. 53,406-KA
No. 53,407-KA
(Consolidated Cases)

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

STATE OF LOUISIANA Appellee

versus

DOUGLAS SCOTT HOLLEY Appellant

*****

Appealed from the
Twenty-Sixth Judicial District Court for the
Parish of Bossier, Louisiana
Trial Court No. 216315

Honorable Allen Parker Self, Jr., Judge

*****

LOUISIANA APPELLATE PROJECT Counsel for Appellant
By: Peggy J. Sullivan

JOHN SCHUYLER MARVIN Counsel for Appellee
District Attorney

JOHN MICHAEL LAWRENCE
RICHARD RUSSELL RAY
Assistant District Attorneys

*****

Before MOORE, STONE, and McCALLUM, JJ.

STONE, J.

In this criminal case, Douglas Holley (“Holley”) was found guilty as

charged of two counts of attempted first degree murder; two counts of

manufacture or possession of a bomb; and one count of aggravated arson.

He was sentenced to a cumulative term of 105 years of imprisonment at hard

labor, 92 years of which were without benefit of probation, parole, or

suspension of sentence. Holley now appeals his convictions and sentences.

For the reasons stated hereinafter, his convictions for attempted first

degree murder are reduced to convictions for attempted second degree

murder, and his remaining convictions are affirmed. The sentences for

manufacture or possession of a bomb are hereby modified to delete the

restriction of benefits. His remaining sentences are affirmed.

FACTS

The victims in this case, Robert Hewlett and Tracy Hewlett, own and

operate a horse farm. Additionally, Robert Hewlett is a veterinarian (“Dr.

Hewlett”). For several years preceding the incident, Holley was the

groundskeeper for the Hewletts’ farm, and he lived in a rent house on the

Hewlett property. The Hewletts trusted Holley – he had access to their

home when they were away and had access to all of the farm. Holley even

celebrated Christmas and Thanksgiving with the Hewletts.

Holley owned a horse named Charlie; she lived in a fenced area near

his rent house. Charlie became sick with colic, and Dr. Hewlett advised that

he could not help Charlie and suggested that euthanasia would be best for

her. After Charlie’s death, Holley spiraled into an enduring, vengeful rage

toward Dr. Hewlett, blaming him for Charlie’s suffering and death.

Holley plotted an elaborate vengeance against Dr. Hewlett for this

perceived wrongdoing. Holley manufactured two pipe bombs, which

included fishing weights as shrapnel for additional lethality. While the

Hewletts were away from home he planted them under the subfloor of the

Hewletts’ pier and beam home, directly under the Hewletts’ bed. When the

Hewletts arrived home, on December 19, 2015, Holley waited until 3:00 AM

– a time when he figured they would be in bed. Holley was correct. The

Hewletts were in bed, and Holley remotely detonated the two pipe bombs.

The blast made a hole through the floor of the Hewletts’ bedroom and

through the box spring of their bed. Miraculously, however, the high-

density foam mattress protected the Hewletts from the blast; they were

thrown out of the bed but physically unharmed. Ms. Hewlett, however, later

received counseling for posttraumatic stress disorder and anxiety.

The investigation quickly revealed that bombs had caused the

explosion in the Hewletts’ bedroom. Shrapnel was found embedded in

objects throughout the Hewletts’ bedroom. Shrapnel had even made holes in

the plumbing pipes beneath the Hewletts’ bedroom floor. Remnants of the

bombs, including pieces of galvanized steel, exploded PVC pipe, deformed

aluminum sheet metal, wire pieces with alligator clips attached, a modified

extension cord with hot glue on it, burnt black electrical tape, and a

destroyed timer were discovered at the blast site. Items recovered from the

blast site tested positive for triacetone triperoxide (“TATP”), a type of

primary high explosive.

Holley’s rent house was searched and was found to contain a plethora

of bomb-making materials which were consistent with those recovered from

the blast site. Holley’s cell phone revealed that he had researched bomb-
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making, and had taken pictures of his bombs and bomb-making materials.

Holley’s diary and cell phone contained notes wherein he detailed Charlie’s

sickness and death, and his gruesome, murderous intentions toward Dr.

Hewlett.

Holley admitted in the videotaped interview that he had previously

worked on the insulation underneath the Hewletts’ home, that he held Dr.

Hewlett responsible for Charlie’s death, and wanted revenge. He also

admitted that he used his cell phone to research bombs, rocket igniters, and

various bombing events.

Holley was arrested for the bombing, and the prosecution filed

numerous charges against him, including those on which he has been

convicted. On March 28, 2018, Holley moved to dismiss the public

defender appointed to represent him. Holley stated that after discussing the

merits of his case with his appointed attorney, he did not feel that the

attorney would “argue and fight for him.” The trial court ascertained that

Holley was 56 years old and had completed high school, but had no legal

education or training and had never represented himself in court before.

Holley confirmed that he could read, write, and speak the English language,

and was not under the influence of drugs or alcohol. Holley stated that he

understood the nature of the charges against him, and the penalties. Holley

also stated that he understood that he would be “extremely disadvantaged”

by his lack of legal knowledge and experience and admitted that he knew

nothing about criminal prosecutions or trial and had no access to a law

library. Despite acknowledging these disadvantages, Holley maintained that

he felt as though he had no choice but to represent himself.

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The trial court emphasized that Holley would be held to the same

standard as attorneys and that the trial court was not permitted to give him

legal advice or assistance. The trial court strongly urged Holley not to

represent himself, but found that Holley had freely and voluntarily decided

to waive his right to counsel and represent himself at trial. The trial court

appointed an attorney to serve as standby counsel in the event Holley had

any legal questions.

Trial began June 20, 2018. Holley declined the state’s offer of a 40-

year agreed sentence in exchange for a plea of guilty as charged to all five

counts. Trial continued with the presentation of testimony and evidence.

The jury returned a verdict of guilty as charged on five counts.

Neither side requested polling. The trial court ordered a presentence

investigation report.

At sentencing, the trial court reviewed Holley’s personal, educational,

and criminal history, noting that he was a first-felony offender who was

gainfully employed with the Hewletts for several years. The trial court

noted the general facts and evidence of this case, specifically that Holley

was angry after his horse’s death and sought revenge for his loss by

manufacturing and detonating two bombs in an attempt to murder Robert

and Tracy Hewlett. The trial judge noted that Holley’s personal comments

made in his private “diary” entries were chilling and frightening and stated

his belief that the Hewletts would never be safe. The trial judge stated that,

after considering the evidence presented at trial and the information in

Holley’s presentence investigation report, he concluded that it was necessary

to remove Holley from normal society.

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For the attempted first degree murders of Robert Hewlett and Tracy

Hewlett, Holley was sentenced to serve consecutive sentences of 45 years at

hard labor, without benefit of probation, parole, or suspension of sentence.

For the two counts of manufacture or possession of bomb, Holley was

sentenced to serve concurrent sentences of 15 years at hard labor, without

benefit of probation, parole, or suspension of sentence. The trial court

ordered that these sentences will run concurrently to the sentences for

attempted murder. For aggravated arson, Holley was sentenced to serve 15

years at hard labor, with 2 years to be served without benefit of probation,

parole, or suspension of sentence, and, a $10,000.00 fine. The trial court

ordered that this sentence is to run consecutively to the sentences for

attempted murder.

DISCUSSION

Double jeopardy

Holley argues that he suffered a double jeopardy violation because the

state prosecuted him for both felony murder based on aggravated arson and

for the underlying felony of aggravated arson. In opposition, the state

argues that the bill charged Holley with attempted first degree murder based

on two independent aggravating factors – aggravated arson and the killing of

more than one person – so the state could prove either one to reach a

conviction. The state argues that there was no double jeopardy violation

because the evidence was sufficient to establish that Holley acted with

specific intent to kill more than one person, and thus the alternative

aggravating factor (aggravated arson) was unnecessary for a proper

conviction. The prosecution also argues that Holley waived his right to

claim double jeopardy by failing to assert it in a timely motion to quash.
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Holley was charged with attempted first degree murder pursuant to

La. R.S.14:30 and La. R.S.14:27. First degree murder includes the killing of

a human being with the specific intent to kill two or more persons. La.

R.S.14:30(A)(3). First degree murder also includes the killing of a human

being with specific intent to kill while engaged in aggravated arson. La.

R.S.14:30(A)(1). Either way, the penalty for first degree murder is

mandatory life in prison without probation, parole, or suspension of sentence

(unless the prosecution seeks and obtains the death penalty). The

prosecution did not and could not seek the death penalty in this case because

there was no actual murder, merely attempted murder. Second degree

murder includes the killing of a human being with the specific intent to kill.

La. R.S.14:30.1 (A)(1). The penalty for second degree murder is mandatory

life in prison without parole, probation, or suspension of sentence. The

relevant provision of the attempt statute provides the same exact penalty for

attempted first degree murder and attempted second degree murder, as

follows:

[I]f the offense so attempted is punishable by…life
imprisonment, he shall be imprisoned at hard labor for not
less than 10 nor more than 50 years without benefit of parole,
probation, or suspension of sentence.

La. R.S. 14:27(D)(1)(a).

The Federal Constitution and the Louisiana Constitution prohibit

placing a person twice in jeopardy for the same offense. U.S. Const. Amend

V; La. Const. art. I, § 15; La. C. Cr. P. art. 591; State v. Hardyway, 52,513

(La. App. 2 Cir. 2/27/19), 266 So. 3d 503, 512, writ denied, 19-00522 (La.

10/21/19), 280 So. 3d 1156. The guarantee against double jeopardy

provides three central constitutional protections: (1) protection against a

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second prosecution for the same offense after acquittal; (2) protection

against a second prosecution for the same offense after conviction; and (3)

protection against multiple punishments for the same offense. State v.

Crandell, 05-1060 (La. 3/10/06), 924 So. 2d 122.

In Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L.

Ed. 306 (1932), the U.S. Supreme Court set out a precise rule of law to

determine whether a double jeopardy violation has occurred. “The

applicable rule is that, where the same act or transaction constitutes a

violation of two distinct statutory provisions, the test to be applied to

determine whether there are two offenses or only one, is whether each of

[the statutes that define a crime charged] requires proof of a fact which the

other does not.” Blockburger v. United States, supra. (Emphasis added).

Louisiana’s separate “same evidence” test is no longer used in determining

whether a double jeopardy violation exists. State v. Frank, 16-1160 (La.

10/18/17), 234 So. 3d 27.

Double jeopardy bars separate punishment of lesser included offenses

once the defendant is convicted of the greater offense. State v. Price, 39,582

(La. App. 2 Cir. 3/23/05), 899 So.2d 633. The double jeopardy clause

prohibits prosecution for both a felony murder and the underlying felony.

State v. Thomas, 50,929 (La. App. 2 Cir. 8/10/16), 201 So. 3d 263, 278, writ

denied, 16-1642 (La. 9/6/17), 224 So. 3d 980. To remedy a violation of

double jeopardy, the reviewing court normally vacates the conviction and

sentence of the less severely punishable offense, and affirms the conviction

and sentence of the more severely punishable offense. Price, supra.

In Thomas, supra, cited by the defense, this Court found that the

prosecution for second degree felony murder and the underlying felony of
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aggravated burglary constituted a double jeopardy violation because there

was insufficient evidence to support a finding of second degree murder

based on specific intent. Id. In State v. Hardyway, supra, the defendant was

charged with attempted first degree murder, based on armed robbery, and

separately, armed robbery. The bill of information and the jury instructions

listed only the enumerated felony of armed robbery to support the offense

for attempted first degree murder, thereby making armed robbery a required

element of the offense. This Court held that because the armed robbery

provided the sole basis for the attempted first degree murder conviction, the

prosecution and conviction for both felonies constituted a double jeopardy

violation.

Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d

435 (2000), held that the Sixth Amendment right to a jury trial requires that

every fact which is essential to the punishment imposed upon the defendant

(other than prior convictions) must be proven to a jury beyond a reasonable

doubt, as reflected by the verdict. In Apprendi, the defendant was convicted

of a crime which carried a sentencing range of 5 to 10 years. After the

conviction, but before sentencing, the prosecution moved under the New

Jersey hate crime law to increase the penalty range to 10 to 20 years. The

New Jersey procedure for sentencing enhancement under the hate crime

statute allowed the matter to be tried by a judge, and prescribed a

preponderance of the evidence burden of proof. The United States Supreme

Court found this scheme unconstitutional because it deprived Apprendi of

his Sixth Amendment right to have the jury determine whether or not the

State had proven (beyond a reasonable doubt) his violation of the hate crime

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statute, a fact which if so proven would increase the limits of the applicable

sentencing range.

In this case, Holley was charged with attempted first degree murder in

that he attempted to kill a human being: (1) with specific intent to kill while

engaged in aggravated arson; and/or (2) with the specific intent to kill more

than one person. The verdict forms for each count of attempted first degree

murder, which are contained in the record, do not specify whether the jury

found Holley guilty on each count of attempted first degree murder by

reason of his specific intent to kill while engaged in aggravated arson, his

specific intent to kill more than one person, or both. Accordingly, the

verdict form does not preclude the possibility that the jury found Holley

guilty of attempted first degree murder only by reason of his specific intent

to kill while engaged in aggravated arson. This, coupled with the fact that

Holley was also convicted and sentenced for aggravated arson, clearly

creates the possibility that Holley’s convictions for attempted first degree

murder and aggravated arson violated the prohibition against double

jeopardy. Thus, given Holley’s aggravated arson conviction, the

combination of Holley’s jury trial and double jeopardy rights requires that,

for a valid conviction of attempted first degree murder, the jury verdict had

to state or necessarily imply that the jury found that Holley had the specific

intent to kill more than one person. U.S. Const. Amend. V & VI; Crandell,

supra; Apprendi, supra. The jury verdict form did not do so.

The state contends that we should nonetheless affirm Holley’s

convictions and sentences for both attempted first degree murder and

aggravated arson because the evidence was sufficient to support a jury

verdict for attempted first degree murder based on specific intent to kill
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more than one person. Doing so would violate Holley’s Sixth Amendment

right to a jury verdict finding each essential element of the offense proven

beyond a reasonable doubt. Apprendi, supra.

The prosecution also argues that Holley waived the right to claim

double jeopardy by failing to do so in a timely motion to quash. This

argument is without merit because double jeopardy is a “jurisdictional

defect,” and therefore cannot be waived even via unqualified guilty plea.

State v. Dubaz, 468 So.2d 554 (La. 1985). If the defendant cannot waive

double jeopardy via unqualified guilty plea, he cannot waive it by pleading

not guilty but failing to raise the issue in a timely motion to quash.

However, we find that the protection against double jeopardy and the

right to a jury verdict on each element of the offense, in this case, can be

satisfied without reversing any of Holley’s convictions, but instead reducing

his convictions for attempted first degree murder to attempted second degree

murder.

As charged in Holley’s amended bill of indictment, attempted second

degree murder is a lesser included offense of attempted first degree murder.

Therefore, the jury’s verdict finding Holley guilty of attempted first degree

murder necessarily included findings that the prosecution proved beyond a

reasonable doubt every element of attempted second degree murder, without

necessity of a finding of aggravated arson. Moreover, the punishment for

attempted second degree murder and attempted first degree murder is

exactly the same: 10 to 50 years of imprisonment at hard labor without

probation, parole, or suspension of sentence. La. R.S. 14:27(D)(1)(a).

Accordingly, we reduce Holley’s convictions for attempted first degree

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murder to convictions for attempted second degree murder. Holley’s

sentencing exposure remains completely unchanged.

Waiver of right to counsel

Holley’s appellate counsel acknowledges that Holley had a right to

self-representation and that the trial court advised Holley of the dangers and

disadvantages of self-representation, but asserts that Holley did not really

want to represent himself. During the Faretta hearing, Holley stated his

feelings that he had no choice because, after conversations with his

appointed counsel, he did not feel that the court-appointed attorney was

going to advocate for him in the manner that Holley desired. Faretta v.

California, 422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975). The state

argues that the record shows that the trial court conducted a proper hearing

regarding Holley’s request to represent himself and that nothing in the

record shows that the trial court forced Holley to represent himself.

A defendant may waive his or her Sixth Amendment right to counsel.

For the waiver to be valid, the defendant must: (1) know of the right to

counsel; and (2) knowingly and intelligently relinquish it by a clear and

unequivocal waiver. Faretta v. California, supra; State v. Mingo, 51,647

(La. App. 2 Cir. 9/27/17), 244 So. 3d 629, 638, writ denied, 17-1894 (La.

6/1/18), 243 So. 3d 1064. The defendant must be made aware of the dangers

and disadvantages of self-representation. Id. The trial court must determine

whether the defendant is competent to waive counsel and is voluntarily

exercising informed free will. Faretta v. California, supra, 422 U.S. at 835,

95 S. Ct. at 2541; State v. Santos, 99-1897 (La.9/15/00), 770 So. 2d 319,

321.

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The trial court’s colloquy with the defendant in determining the

validity of a waiver of the right to counsel is not required to follow a

particular formula. State v. Leger, 05-0011 (La. 7/10/06), 936 So. 2d 108,

147-48, cert. denied, 549 U.S. 1221, 127 S. Ct. 1279, 167 L. Ed. 2d 100

(2007). Whether the waiver of right to counsel was knowingly made

depends on the facts and circumstances of the case, including the

defendant’s background, experience, and conduct. Id. There must be a

showing of clear abuse of discretion for a trial court’s ruling on a

defendant’s right to counsel to be upset, as the trial court had the opportunity

to observe the defendant in court appearances and motions, and was familiar

with the defendant. State v. Johnson, 52,965 (La. App. 2 Cir. 9/25/19), 280

So. 3d 1245, 1250; State v. LaGarde, 07-288 (La. App. 5 Cir. 10/30/07), 970

So. 2d 1111, 1120, writs denied, 07-1650 (La. 5/9/08), 980 So. 2d 684 and

07-2412 (La. 5/16/08), 980 So. 2d 706.

In this case, the trial court ascertained Holley’s age and education and

discussed his understanding of the serious nature of the charges and

penalties that Holley faced. Also, the trial court thoroughly explained the

disadvantages that Holley would face in self-representation against the

state’s attorneys, and that the court would not give Holley any legal advice.

Holley acknowledged that he had no legal education or training, had no

access to legal resources, and had no understanding of the legal process.

Holley also acknowledged that he would be held accountable as any trained

lawyer for understanding the rules and procedures of the trial process.

Throughout the hearing, Holley repeatedly expressed his feeling that he must

represent himself.

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This record demonstrates that Holley made an unequivocal request to

represent himself at trial and that the trial court conducted an extensive

colloquy with Holley about his understanding of the dangers and

disadvantages of self-representation for these serious charges and penalties.

On this record, there is no showing that the trial court abused its discretion in

finding that Holley knowingly, intelligently, and freely choose to waive his

right to counsel and choose to represent himself. This assignment is without

merit.

Excessive sentence

Holley argues that as a first-felony offender, with no remarkable

history for violence or problems, there is nothing in his case to indicate that

he could not be rehabilitated or that he would be a danger to society upon

release. Holley acknowledges that he was angry with Robert Hewlett and

held him responsible for his horse’s death, but insists that he would move on

from that anger and that he should not be removed from society. Holley

complains that the trial court failed to specify why some of the sentences

were run consecutively rather than concurrently. Finally, Holley complains

that the cumulative term of 105 years is constitutionally excessive in light of

the fact that the Hewletts were not physically harmed and that there was no

significant property damage.

Holley did not file a La. C. Cr. P. art. 881.1 motion to reconsider

sentence; therefore, appellate review is limited to the bare claim that the

sentence is constitutionally excessive. State v. Mims, 619 So. 2d 1059 (La.

1993); State v. Jones, 41,449 (La. App. 2 Cir. 9/20/06), 940 So. 2d 61; State

v. Duncan, 30,453 (La. App. 2 Cir. 2/25/98), 707 So. 2d 164. A sentence

violates La. Const. art. I, § 20, if it is grossly out of proportion to the
13

seriousness of the offense or nothing more than a purposeless and needless

infliction of pain and suffering. State v. Dorthey, 623 So. 2d 1276 (La.

1993); State v. Boehm, 51,229 (La. App. 2 Cir. 4/5/17), 217 So. 3d 596. 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, 01-0467 (La. 1/15/02), 805 So. 2d 166.

The trial court has wide discretion in imposing sentence within the

statutory range. A sentence will not be set aside as excessive unless the

defendant shows the trial court abused its discretion. State v. Hardy, 39,233

(La. App. 2 Cir. 1/26/05), 892 So. 2d 710; State v. Young, 46,575 (La. App.

2 Cir. 9/21/11), 73 So. 3d 473, writ denied, 11-2304 (La. 3/9/12), 84 So. 3d

550. The reviewing court does not determine whether another sentence

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

discretion. State v. Esque, 46,515 (La. App. 2 Cir. 9/21/11), 73 So. 3d 1021,

writ denied, 11-2347 (La. 3/9/12), 84 So. 3d 551.

In cases involving multiple offenses and sentences, the trial court has

limited discretion to impose the sentences concurrently or consecutively, but

the justification for consecutive sentences must be supported by the record.

La. C. Cr. P. art. 883; State v. Butler, 51,922 (La. App. 2 Cir. 4/11/18), 247

So. 3d 1006, 1011; State v. Nixon, 51,319 (La. App. 2 Cir. 5/19/17), 222 So.

3d 123, writ denied, 17-0966 (La. 4/27/18), 239 So. 3d 836; State v.

Robinson, 49,677 (La. App. 2 Cir. 4/15/15), 163 So. 3d 829, writ denied, 15-

0924 (La. 4/15/16), 191 So. 3d 1034. Concurrent sentences arising out of a

single course of conduct are not mandatory, and consecutive sentences under

those circumstances are not necessarily excessive. State v. Lynn, 50,575

(La. App. 2 Cir. 5/18/16), 196 So. 3d 607. Factors to be considered include:
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the gravity and viciousness of the offense, the harm done to the victims, the

risk of danger to the public, the offender’s criminal history, and potential for

rehabilitation. State v. Austin, 49,061 (La. App. 2 Cir. 7/16/14), 146 So. 3d

716, writ denied, 14-2323 (La. 9/18/15), 178 So. 3d 140.

For each conviction of attempted murder (whether first degree or

second degree), Holley faced a potential sentence of 10-50 years at hard

labor, without benefit of parole, probation, or suspension of sentence. La.

R.S. 14:30; La. R.S. 14:27. For each conviction for manufacture or

possession of a bomb, Holley faced a potential sentence of 0-20 years at

hard labor, with an optional maximum fine of $10,000.00. La. R.S. 14:54.3.

Finally, aggravated arson carries a penalty of a fine up to $25,000 and 6 to

20 years imprisonment at hard labor; two of those years must be without

parole, probation, or suspension of sentence. La. R.S. 14:51.

Here, the state presented a comprehensive case with exhaustive

testimony regarding the extensive and overwhelming evidence of Holley’s

guilt. The record here is more than sufficient to support the punishment

imposed, thus the trial court’s decision not to recite the details of Holley

actions in order to justify these sentence terms or the order to impose them

to run consecutively does not constitute an abuse of discretion or require

remand. The trial court acknowledged Holley’s personal history and his

lack of criminal history. The trial court also noted that Holley was a trusted

employee at the Hewletts’ horse farm, as he had been given free rein of both

the facilities and the Hewletts’ personal home and had also been included in

family holiday events. The trial court made clear that the magnitude of

Holley’s crimes, borne out of a six-month long rage that was detailed in the

“Charlie” journal, and which the court found chilling and frightening,
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overshadowed any mitigating factors here. The fact that the Hewletts

miraculously escaped any physical harm does not negate the emotional

trauma that they have suffered. None of the sentences were for the

maximum terms available; yet, Holley’s conduct surely places him in the

category of one of the worst offenders.

Viewing Holley’s actions in light of the harm done to society, these

sentences, for a total of 105 years, are not disproportionate and do not shock

the sense of justice. There is no showing that the trial court abused its

discretion in imposing these sentence terms or in imposing consecutive

terms. This assignment is without merit.

Our reduction of Holley’s convictions for attempted first degree

murder to convictions for attempted second degree murder does not warrant

remand for resentencing. The sentencing range is exactly the same for both

crimes. La. R.S. 14:27(D). Furthermore, based on the evidence, Holley

could properly have been convicted of attempted first degree murder and

aggravated arson, had the verdict form given the jury the opportunity to

specify the aggravating factor or factors it found in support of attempted first

degree murder.

Error Patent

The sentences imposed for manufacture or possession of a bomb were

illegally harsh in that the trial court ordered that they be served without

benefit of probation, parole, or suspension of sentence. La. R.S. 14:54.3

does not restrict these benefits. The sentences will be amended accordingly.

CONCLUSION

Holley’s convictions for aggravated arson and two counts of

manufacturing a bomb are AFFIRMED. We MODIFY Holley’s convictions
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for two counts of attempted first degree murder by reducing them to

conviction of two counts of attempted second degree murder.

The sentences imposed for the manufacture or possession of a bomb

are MODIFIED in that we remove the restriction of benefits. Otherwise,

Holley’s sentences are AFFIRMED.

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