State of Louisiana v. Trabillion Hawthorne

Judgment rendered January 11, 2023.
Application for rehearing may be filed
within the delay allowed by Art. 922,
La. C. Cr. P.

No. 54,871-KA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

STATE OF LOUISIANA Appellee

versus

TRABILLION HAWTHORNE Appellant

*****

Appealed from the
First Judicial District Court for the
Parish of Caddo, Louisiana
Trial Court No. 361,835

Honorable Christopher T. Victory, Judge

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LOUISIANA APPELLATE PROJECT Counsel for Appellant
By: Edward K. Bauman

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

REBECCA ARMAND EDWARDS
BRITTANY B. ARVIE
Assistant District Attorneys

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Before PITMAN, THOMPSON, and HUNTER, JJ.

THOMPSON, J.

Trabillion Hawthorne was convicted of armed robbery and was

adjudicated a second felony habitual offender. This court affirmed his

conviction and habitual offender adjudication, but vacated his original

illegally lenient sentence and remanded the matter to the trial court for

resentencing. At his resentencing hearing, Hawthorne requested a

downward deviation from the mandatory minimum sentence of 49½ years.

At the conclusion of his resentencing hearing, the trial court sentenced him

to the mandatory minimum sentence of 49½ years at hard labor, without

benefit of parole, probation, or suspension of sentence. Hawthorne now

appeals his sentence, arguing that the trial court erred by failing to conduct a

hearing on his motion to reconsider sentence, mistakenly believed it lacked

the discretion to deviate downward from the mandatory minimum sentence,

and that his sentence is unconstitutionally excessive. We affirm his

conviction and sentence.

FACTUAL BACKGROUND

The facts of this case were previously set forth in State v. Hawthorne,

53,932 (La. App. 2 Cir. 9/22/21), 327 So. 3d 606, writ denied, 21-01710 (La.

1/12/22), 330 So. 3d 618, as follows:

On the morning of September 28, 2016, Deborah Coleman and
LaToya Taylor arrived for work at the Wyndham Garden hotel
located on East 70th Street in Shreveport, Louisiana. Coleman
was the general manager of the hotel. Taylor was the front desk
manager.

Surveillance video from several cameras at the hotel captured
the following incident. At approximately 7:28 a.m., a dark-
skinned male wearing a dark hoodie and gloves entered the
hotel through a side entrance. He approached Coleman at the
check-in counter, pointed a silver revolver at her, and handed a
plastic bag to her. Taylor was standing nearby at her work area
at the time. Both women opened their cash drawers. Because

Coleman’s drawer was empty, she pointed to Taylor, who had a
drawer containing cash. The suspect moved to the counter area
across from Taylor and pointed the revolver at her as she
handed cash and coin rolls to him. The suspect then fled from
the hotel through the side entrance.

Anthony Moore, a hotel employee who witnessed the robbery,
watched the suspect leave the hotel, run across the parking lot,
and then go behind a nearby business. Moore thought the
suspect threw something in a dumpster behind the business.
Moore observed the suspect run across a street to the Haystack
Apartments complex before losing sight of him.

Officers from the Shreveport Police Department (“SPD”) who
were called to the scene were advised that the suspect was a
black male about 5’9” with a slender build and wearing a
hoodie jacket, black pants, and gloves. Nothing was found in
the dumpster behind the restaurant. A police K-9 unit tracked a
suspected car but it did not amount to anything. A suspect was
not developed that day. A few days later, a detective received a
tip about an individual, but that individual did not resemble the
robber on the surveillance video.

Two years later, in October of 2018, Wyosha Scott, who was
the former girlfriend of Hawthorne, posted a photo of
Hawthorne on Facebook next to a photo of the suspect from the
Wyndham robbery. This information was forwarded to Cody
Roy, an investigator with SPD’s armed robbery unit. After Roy
found a photo of Hawthorne and compared it to the video, he
thought Hawthorne was the suspect.

On October 16, 2018, Roy obtained an arrest warrant for
Hawthorne, who was taken into custody on that date.
Hawthorne told Roy that he was living in the Haystack
Apartments on September 28, 2016. Using a law enforcement
database for pawned items, Roy found that Hawthorne had sold
a chrome revolver two months after the robbery. A photo lineup
was shown to Coleman, who identified Hawthorne as the
person who had robbed her.

PROCEDURAL HISTORY

On November 14, 2018, a bill of information was filed charging

Hawthorne with armed robbery. On January 28, 2020, trial was held, and

Hawthorne was convicted by a unanimous jury of armed robbery.

On June 25, 2020, a habitual offender bill was filed. With a prior

felony conviction for purse snatching in December 2011, Hawthorne was
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determined to be a second felony offender. He was sentenced to 33 years at

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

Hawthorne appealed his conviction. On appeal, this Court determined that

Hawthorne’s original habitual offender sentence of 33 years was illegally

lenient. This Court affirmed the conviction and habitual offender

adjudication, but vacated his sentence and remanded it to the trial court for

resentencing under the habitual offender statute in effect at the time he

committed the armed robbery. Hawthorne, supra.

On November 29, 2021, a resentencing hearing was held. The trial

judge asked defense counsel whether he had any facts regarding mitigating

factors to present. Counsel for Hawthorne made a brief statement, noting

that Hawthorne was a young man, age 23, when he committed the armed

robbery. Counsel noted that the original sentencing judge’s calculations

were incorrect, and the mandatory minimum is higher than the sentence that

was imposed after trial, but argued that the original sentence was reasonable

and more appropriate under the particular circumstances. Counsel argued

that imposing the mandatory minimum sentence or more would place

Hawthorne in jail until he was 75 years old and stated: “I would ask that you

deviate down and stay with the 33-year sentence.”

Hawthorne also spoke on his own behalf at the resentencing hearing.

He stated: “Well, I’ve got a family that’s waiting for me. I got kids. I just

want them to see me do better. I became a better man. I became a man of

God. And I can’t do 49 years, 33 years. I just ask that you have mercy on

me.”

The trial judge noted the appropriate sentence range for Hawthorne as

a second felony offender, pursuant to La. R.S. 15:529.1(A)(1), is not less
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than 49½ years and not more than 198 years. The trial judge also noted that

he considered both mitigating and aggravating factors enumerated in La. C.

Cr. P. art. 894.1, and found the following aggravating circumstances:

Hawthorne knowingly created a risk of death or great bodily harm to more

than one person, he used actual violence in the commission of the offense,

and he used a firearm in the commission of the armed robbery. The trial

judge did not find any mitigating circumstances.

The trial judge sentenced Hawthorne to 49½ years at hard labor,

without benefit of probation, parole, or suspension of sentence, with credit

for time served. The trial judge stated: “[t]hat is the minimum I can give

you, so that’s where I am bound by the written law to start. So I give you

49½ years.” This appeal followed.

LAW AND ARGUMENT

On appeal, Hawthorne asserts three assignments of error:

Assignment of Error No. 1: The trial court failed to conduct a hearing
to determine if the minimum sentence imposed was constitutionally
excessive when raised by Hawthorne in his motion to reconsider
sentence.

Hawthorne argues that the trial court erred by failing to conduct a

hearing on his request for a downward departure from the mandatory

minimum habitual offender sentence. Hawthorne argues that while

deviations below the mandatory minimum are rare, when judges find a

punishment excessive, they have “the option, indeed the duty, to reduce such

a sentence to one that would not be constitutionally excessive.” State v.

Dorthey, 623 So. 2d 1276 (La. 1993). Hawthorne asserts that without a

Presentence Investigation Report (PSI) or a hearing on his motion to

reconsider sentence, the trial court was without any evidence to determine

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whether his sentence was unconstitutionally excessive or whether a

downward departure was warranted. We disagree.

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. Burns,

53,920 (La. App. 2 Cir. 6/30/21), 322 So. 3d 928, writ denied, 21-0112 (La.

11/23/21), 328 So. 3d 78; State v. Nabors, 53,357 (La. App. 2 Cir. 4/22/20),

295 So. 3d 974, writ denied, 20-00709 (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, 06-2554 (La. 5/11/07), 955 So. 2d 1277, citing State v. Johnson, 97-

1906 (La. 3/4/98), 709 So. 2d 672.

In Johnson, supra, the supreme court explained:

[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 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. Dorthey, supra at 1281 (Marcus, J.,
concurring); Young, supra. A court may only depart from the
minimum sentence if it finds that there is clear and convincing
5

evidence in the particular case before it which would rebut this
presumption of constitutionality.

La. C. Cr. P. art. 881.1(D) provides:

The trial court may deny a motion to reconsider sentence
without a hearing, but may not grant a motion to reconsider
without a contradictory hearing. If the court denies the motion
without a hearing, the party who made or filed the motion may
proffer the evidence it would have offered in support of the
motion.

Thus, a trial court is not required to conduct a hearing when it denies

the defendant’s motion to reconsider sentence. State v. Williams, 46,468 (La.

App. 2 Cir. 9/21/11), 72 So. 3d 966; State v. Vance, 45,250 (La. App. 2d Cir.

5/19/10), 36 So. 3d 1152.

We find that Hawthorne essentially participated in a Dorthey hearing

at his resentencing hearing, following this Court’s determination on his prior

appeal that his 33-year sentence was illegally lenient. At the resentencing

hearing, Hawthorne specifically requested a downward departure from the

mandatory minimum, in accordance with Dorthey, supra. Upon hearing the

request and arguments in support of his position, the trial court still found

that Hawthorne failed to show any basis to support a finding that the

mandatory minimum sentence is unconstitutionally excessive. Hawthorne

did not provide clear and convincing evidence that he is an exceptional

defendant. Hawthorne was convicted by a unanimous jury of committing an

armed robbery in a hotel lobby, by threatening two employees with a firearm

and taking money from the hotel’s register. He is not a victim of the

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

gravity of the offense or the culpability of the offender, such that a

downward departure is warranted. This assignment of error is without merit.

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Assignment of Error No. 2: The trial court was of the erroneous view it
was without the authority to deviate from the statutory minimum
provided by La. R.S. 15:529.1.

Hawthorne argues that the trial court believed it lacked authority to

deviate from the mandatory minimum sentence. Hawthorne contends that

the resentencing judge held the erroneous view that he must be sentenced to

hard labor for not less than 49½ years and for not more than 198 years,

without any ability to deviate downward in the event he found the

mandatory minimum to be unconstitutionally excessive. He argues that the

trial judge should not have denied the motion to reconsider sentence without

a hearing.

Hawthorne cites Fourth Circuit jurisprudence in support of his

argument that the trial court should have conducted a hearing on his motion

to reconsider sentence and that it erroneously believed it was without

authority to deviate from the mandatory minimum sentence. In State v.

Pernell, 13-0180 (La. App. 4 Cir. 10/2/13), 127 So. 3d 18, writ denied, 13-

2547 (La. 4/4/14), 135 So. 3d 640, the Fourth Circuit found error patent due

to the trial court’s failure to rule on an outstanding motion to reconsider a

mandatory life sentence imposed for the defendant’s second degree murder

conviction. The Fourth Circuit remanded the matter with specific

instructions for the trial court to hold a hearing on the motion to reconsider

sentence under the criteria established in Sepulvado, supra and Johnson,

supra. Contrary to the specific instruction to hold a hearing, the trial court

on remand summarily denied the motion reconsider sentence. The trial court

believed that, because the second degree murder statute provided only one

penalty (mandatory life sentence), it had no discretion to review the sentence

for excessiveness. State v. Pernell (Pernell II), 14-0678 (La. App. 4 Cir.
7

10/15/14), 151 So. 3d 940. Finding that reasoning to be legal error, the

Fourth Circuit again remanded the matter for a full evidentiary hearing on

the motion to reconsider sentence.

Unlike the Pernell cases, the instant matter does not involve a pending

motion to reconsider sentence that the trial court failed to rule on prior to an

appeal.1 Further, Hawthorne had a hearing at resentencing where he availed

himself of the opportunity to argue for a downward departure from the

mandatory minimum sentence. The resentencing judge did not express the

mistaken belief that he was without authority to deviate downward from the

mandatory minimum sentence. He did not give any indication that he had

misgivings about imposing the mandated minimum sentence. Rather, he

specifically noted that he found no mitigating factors that might call into

question the constitutionality of the mandatory minimum sentence of 49½

years. Finding an absence of sufficient justification to deviate from the

sentencing range, the court imposed the minimum sentence available to it.

This assignment of error is without merit.

Assignment of Error No. 3: The minimum sentence under the habitual
offender law of 49½ years at hard labor without benefits is
constitutionally excessive.

Hawthorne argues that Louisiana’s judiciary maintains the distinct

responsibility of reviewing sentences imposed in criminal cases for

constitutional excessiveness. Hawthorne argues that no PSI was ordered by

the court, and no mitigating circumstances were presented on his behalf

because he was denied a hearing on his motion to reconsider sentence.

Therefore, he argues that this Court does not have a complete record to

1
See also, State v. Small, 13-1334 (La. App. 4 Cir. 8/27/14), 147 So. 3d 1274,
writ denied, 14-1930 (La. 4/24/15), 169 So. 3d 354.
8

review to determine whether he is an exceptional case and his sentence is

excessive.

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

proportion to the seriousness of the offense or nothing more than a

purposeless and needless infliction of pain and suffering. State v. Smith, 01-

2574 (La. 1/14/03), 839 So. 2d 1; Dorthey, supra; State v. Capers, 43,743

(La. App. 2d Cir.12/3/08), 998 So. 2d 885, writ denied, 09-0148 (La.

10/2/09), 18 So. 3d 102.

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. Capers, supra.

Because the sentence imposed for the habitual offender adjudication is

prescribed by statute, the trial court’s compliance with La. C. Cr. P. art.

894.1 is not required. It would be an exercise in futility for the trial court to

discuss the factors enumerated in Article 894.1 when the court has no

discretion in sentencing a defendant. State v. Washington, 37,321 (La. App.

2d Cir. 8/20/03), 852 So. 2d 1206, writ denied, 03-2652 (La. 5/14/04), 872

So. 2d 510.

Since the Habitual Offender Law in its entirety is constitutional, the

minimum sentences it imposes upon multiple offenders are also presumed to

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

State v. Bates, 37,282 (La. App. 2 Cir.10/16/03), 859 So. 2d 841, writ

denied, 04-0141 (La. 5/21/04), 874 So. 2d 173. The legislature’s

determination of an appropriate minimum sentence should be afforded great

deference by the judiciary. Johnson, supra; Capers, supra. Courts have the

power to declare a sentence excessive under La. Const. art. I, § 20, although
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it falls within the statutory limits provided by the legislature. This power

extends to the minimum sentences mandated by the Habitual Offender Law.

However, this power should be exercised only when the court is clearly and

firmly convinced that the minimum sentence is excessive. Johnson, supra;

Capers, supra.

A trial court may reduce a defendant’s sentence to one not

unconstitutionally excessive if the trial court finds that the sentence

mandated by the Habitual Offender Law “makes no measurable contribution

to acceptable goals of punishment,” or is nothing more than “the purposeful

imposition of pain and suffering” and is “grossly out of proportion to the

severity of the crime.” Johnson, supra. A sentencing judge must always

start with the presumption that a mandatory minimum sentence under the

Habitual Offender Law is constitutional. 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. Johnson, supra; State v. Lindsey, 99-3302 (La. 10/17/00),

770 So. 2d 339; State v. Roland, 49,660 (La. App. 2 Cir. 2/27/15), 162 So.

3d 558, 568, writ denied, 2015-0596 (La. 2/19/16), 186 So. 3d 1174.

There is nothing in the record to show that Hawthorne satisfied or

could satisfy his burden of showing clearly and convincingly that the

mandatory minimum sentence is unconstitutionally excessive in this case.

There is no requirement that the sentencing court order a PSI, and a

defendant is not entitled to one by right. La. C. Cr. P. art. 875; State v.

Barrett, 51,921, p. 10 (La. App. 2 Cir. 4/11/18), 247 So. 3d 164, 171.

Additionally, because the trial court imposed the mandatory minimum, it is

not required to justify that sentence in accordance with La. C. Cr. P. art.
10

894.1. Despite this, the trial court did consider the factors provided in

Article 894.1, and noted multiple aggravating circumstances in this case,

including violent threats to two individuals with the use of a firearm. The

trial court did not find any mitigating circumstances.

The trial court heard Hawthorne’s argument for a downward

deviation, as well as his own plea for mercy on the basis that he has a family

and is endeavoring to become a better man. Notwithstanding, Hawthorne

failed to establish unusual circumstances that clearly and convincingly

showed him to be exceptional. Hawthorne’s sentence is presumed

constitutional, and he failed to rebut that presumption. His sentence of 49½

years, the minimum mandatory sentence, is not constitutionally excessive.

This assignment of error is likewise without merit.

CONCLUSION

For the foregoing reasons, we affirm Trabillion Hawthorne’s

conviction and sentence.

AFFIRMED.

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