State of Louisiana v. Elmer Pleasant, Jr. Convictions Affirmed; Sentences Vacated; Remanded.

Judgment rendered May 22, 2024.
Application for rehearing may be filed
within the delay allowed by Art. 922,
La. C. Cr. P.

No. 55,590-KA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

STATE OF LOUISIANA Appellee

versus

ELMER PLEASANT, JR. Appellant

*****

Appealed from the
Fifth Judicial District Court for the
Parish of Franklin, Louisiana
Trial Court No. 2015-224F

Honorable John Clay Hamilton, Judge

*****

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

PENNY WISE DOUCIERE Counsel for Appellee
District Attorney

CAROLINE HEMPHILL
AMANDA MICHELE WILKINS
Assistant District Attorneys

*****

Before STONE, THOMPSON, and HUNTER, JJ.

THOMPSON, J., concurs in part and dissents in part with written reasons.

HUNTER, J.

Defendant, Elmer Pleasant, Jr., was charged by bill of information

with possession of a firearm by a convicted felon and possession of a firearm

while in possession of a controlled dangerous substance. The trial court

subsequently resentenced defendant to serve consecutive sentences of 20

years at hard labor for possession of a firearm by a convicted felon and

seven years at hard labor for illegal possession of a firearm. For the

following reasons, we affirm in part defendant’s convictions, vacate

defendant’s sentences, and remand to the trial court for resentencing in

accordance with this opinion.

FACTS

On February 9, 2015, Sheriff Kevin Cobb of the Franklin Parish

Sheriff Office alongside his deputies were executing a search warrant when

they witnessed defendant frantically fleeing from the residence.1 During the

subsequent search of the residence, deputies discovered marijuana, cocaine,

and a pistol. Conveniently, the other occupants informed the officers the gun

belonged to the defendant.2 A few days later, defendant was arrested and

charged with possession of a firearm by a convicted felon, possession of

Schedule II controlled dangerous substance (“CDS”) and marijuana, and

illegal carrying of weapons.

On January 6, 2016, subject to the terms of a plea agreement with the

State, defendant appeared with counsel and entered guilty pleas to

possession of a firearm by a convicted felon and illegal possession of a

1
The residence was also occupied by three other individuals.
2
The record included an affidavit whereby another person acknowledged
possession/control of the firearm. However, there was no further mention of this by the
State or Defendant.

weapon. The parties agreed defendant would be sentenced to two ten-year

concurrent sentences and as a result the State would waive the right to

charge the defendant as a habitual offender. The State agreed to dismiss

defendant’s previous charge of possession of cocaine, and two prior

misdemeanor cases.3 The Court, utilizing the full knowledge of defendant’s

prior convictions and pending drug charges, deemed defendant nonviolent

and worthy of release on his own recognizance with instructions to return for

execution of sentence on May 10, 2016. However, on May 10, 2016,

defendant failed to appear.

Defendant remained a fugitive fleeing justice from May 10, 2016, to

September 20, 2022. Eventually, defendant was arrested and extradited to

Louisiana for sentencing on the pending charges in Franklin Parish.

On February 2, 2023, defendant filed a pro se motion to withdraw the

guilty plea entered on January 6, 2016. On February 8, 2023, Judge

Hamilton4 denied the motion without a hearing, noting defendant had been a

fugitive since his 2016 sentencing date. On May 16, 2023, defendant was

resentenced to serve 20 years at hard labor for the possession of a firearm by

a convicted felon and seven years at hard labor for the illegal possession of a

firearm with the sentences to now run consecutively. Defendant filed a

motion to reconsider sentence which was denied without a hearing.

Defendant now appeals.

3
The State did not dismiss the two prior counts of distribution of
methamphetamine and one count of distribution of marijuana.
4
Judge Hamilton replaced Judge Doughty, who ascended to the federal court.
2

DISCUSSION

Defendant contends the trial court abused its discretion in denying the

motion to withdraw his guilty pleas. According to defendant, he should have

been allowed to withdraw his plea because the agreed-upon sentence was

withdrawn.

Upon the motion of the defendant and after a contradictory hearing,

which may be waived by the State in writing, the Court may permit a plea of

guilty to be withdrawn at any time before sentencing.5 A defendant has no

absolute right to withdraw a guilty plea.6 The discretion to allow the

withdrawal of a guilty plea lies with the trial court and such discretion

cannot be disturbed unless an abuse or arbitrary exercise of that discretion is

shown. State v. McGarr, 52,641 (La App. 2 Cir. 4/10/19), 268 So. 3d 1189.

In this case, Judge Hamilton denied defendant’s motion to withdraw his

guilty plea and noted defendant had been absconding since his 2016

imposition date. Defendant now contends in his pro se motion the basis of

his flight was due to his dissatisfaction with his sentence and plea, his plan

to prove his innocence, and his intent to seek suppression of all evidence in

his case. Our review of the record reflects defendant did not raise the issue

of failure to hold a hearing on the motion to withdraw the guilty plea in the

trial court. Thus, defendant has not preserved this issue for appeal. State v.

Satterville, 53,809 (La. App. 2 Cir. 3/3/21), 315 So. 3d 425; see also La. C.

Cr. P. art. 841.

Under La. C. Cr. P. art. 556.1, a valid guilty plea must be a voluntary

choice by the defendant and not the result of force or threats. La. C. Cr. P.

5
La. C. Cr. P. art. 559
6
La. C. Cr. P. art. 559.
3

art. 556.1 also provides prior to accepting a guilty plea, the Court must

personally inform the defendant of the nature of the charge to which the plea

is offered, any mandatory minimum penalty, and the maximum possible

penalty. When the record establishes that an accused was informed of and

waived his right to a trial by jury, to confront his accusers, and against self-

incrimination, the burden shifts to the accused to prove that despite this

record, his guilty pleas was involuntary. State v. Clause, 2022-545 (La. App.

3 Cir. 1/25/23), 354 So. 3d 1269.

In order to properly exercise its discretion and in order for the

appellate court to review the exercise of discretion, the trial court should

conduct a hearing or inquiry on defendant’s motion to withdraw a guilty

plea. In determining whether a plea was knowingly, voluntarily, or

intelligently entered, the district court can look beyond the Boykin colloquy

and consider all relevant factors, such as the breach of a plea bargain,

inducement, misleading advice of counsel, strength of evidence of actual

guilt, or the like. State v. Clause, supra.

The record indicates the trial court informed defendant of his

constitutional rights.

The following colloquy ensued:

THE COURT: … By pleading guilty you’ll be
giving up the following constitutional rights. You
have the right to plead not guilty or maintain your
not guilty plea, and you have the right to a speedy
and public trial by a jury and to the assistance of
an attorney during the trial. You have the right to
require the State to meet its burden and to prove
every element of your offenses for which you’ve
been charged beyond a reasonable doubt. You
have the right to see, hear, confront, and cross-
examine, which means to ask questions of all
witnesses called to testify against you. You have
the right to testify during your trial and to require
4

the appearance of witnesses and evidence under
subpoena to appear and testify on your behalf. You
have the privilege against self-incrimination which
means you have the right to remain silent both
during this guilty plea and during the trial and you
cannot be forced to testify against yourself or to
plead guilty or present any evidence against
yourself. If you chose to remain silent and not
testify during your trial this would not be held
against you by the Judge or jury hearing your case.
If you were found guilty at trial you’d have the
right to appeal your conviction and the right to an
attorney on appeal. Do you understand these
constitutional rights?

MR. PLEASANT: Yes, sir.

THE COURT: Do you understand that by
pleading guilty you waive and give up those
rights?

MR. PLEASANT: Yes, sir.

THE COURT: Do you understand everything I’ve
said so far?

MR. PLEASANT: Yes, sir.

THE COURT: And do you also understand that
since you’re entering into a plea agreement as to
the exact charge and exact sentence you won’t be
allowed to appeal or seek review of the length or
severity of the sentence?

MR. PLEASANT: Yes, sir.

Then, the court asked Ms. Shields (Defense
Attorney) whether Mr. Pleasant has been
competent and able to discuss the case and
cooperate with her through representation. Ms.
Shields stated yes and that she advised him of the
nature of the charges and his legal and
constitutional rights.

(MR. BARHAM EXPLAINS THE FACTUAL
BASIS TO THE COURT.)

THE COURT: … upon the record before me I
find that the plea is entered into freely, voluntarily
with both an understanding of the nature of the
charges and the consequences of the plea including
5

Mr. Pleasant’s understanding of the plea
agreement. I also find that each has a factual basis
containing all the elements of the crime charged,
the plea is therefore accepted and the Court now
adjudges you guilty of the offenses charged. And
as we had talked about I’m going to set sentencing
for May the 10th of 2016. As we discussed, if you
come back to Court on May 10th for sentencing
I’m going to sentence you just like the plea
agreement says.

MR. PLEASANT: Yes, sir.

THE COURT: But I’m – because since we’re
going to release you on your own recognizance
with the pending charges that are still left, if you
don’t show up then I’m free to sentence you to any
– something higher than that, I could go to twenty
years on the possession of a firearm, I could go to
– I can’t remember what it is, but I could go to – I
could go higher than we agreed if you don’t – if
you don’t show up. Do you understand that?

MR. PLEASANT: Yes, sir.

Defendant fails to state any facts in the brief which support the

assertion his plea was involuntary or unknowingly given. The defendant

further fails to allege he was forced, threatened, or coerced by anyone to

enter the guilty plea. Our review of the record indicates the defendant

entered into the plea agreement voluntarily. Defendant also contends the

total sentence of 27 years at hard labor was excessive and is not supported

by the facts and circumstances of this case. Defendant asserts the harsh

nature of the sentence and the consecutive nature of their imposition resulted

in a sentence which is unconstitutionally harsh. I agree.

An appellate court uses a two-pronged test to determine whether a

sentence is excessive. First, the record must show the trial court is cognizant

of the criteria set forth in La. C. Cr. P. art. 894.1. The trial court is not

required to list every aggravating or mitigating circumstance so long as the

6

record reflects adequate consideration of the guidelines of the article.

Articulation of the factual basis for a sentence is the goal of Article 894.1,

not rigid or mechanical compliance with its provisions. State v. Wells,

54,890 (La. App. 2 Cir. 12/14/22), 352 So. 3d 584, writ denied, 23-00037

(La. 9/6/23), 369 So. 3d 1270. The elements which should be considered

include the defendant’s personal history (age, family ties, marital status,

health, employment record), prior criminal record, the seriousness of the

offense, and the likelihood of rehabilitation. State v. Jones, 398 So. 2d 1049

(La. 1981).

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

within the statutory limits, and the sentence imposed should not be set aside

as excessive in the absence of a manifest abuse of this discretion. On review,

an appellate court does not determine whether another sentence may have

been more appropriate, but whether the trial court abused its discretion. State

v. Jones, supra. When a defendant has received a reduction in the potential

length of incarceration by a plea agreement, the trial court’s discretion to

impose the maximum sentence is enhanced. State v. Edwards, 07-1058 (La.

App. 3 Cir. 3/12/08), 979 So. 2d 623.

Additionally, this Court must determine whether the sentence is

constitutionally excessive. A sentence can be constitutionally excessive,

even when it falls within statutory guidelines if: (1) the punishment is so

grossly disproportionate to the severity of the crime that, when viewed in

light of the harm done to society, it shocks the sense of justice; or (2) it

serves no purpose other than to needlessly inflict pain and suffering. State v.

Dorthey, 623 So. 2d 1276 (La. 1993); State v. Weaver, 01-0467 (La.

1/15/02), 805 So. 2d 166.
7

For context, the sentencing range for possession of a firearm by a

convicted felon is no less than ten years or more than twenty years at hard

labor. The sentencing range for illegal possession of a weapon is no less than

five years or more than ten years at hard labor.7

In this present case, defendant asserts the 27-year sentence for

possession of a firearm by a convicted felon and illegal possession of a

weapon is excessive and the imposition of consecutive sentences is

inappropriate in this case. Prior to imposition of the sentence, the Court

reviewed the presentence investigation (PSI) report and noted its reliance

thereon for the purposes of determining the appropriate sentence in

defendant’s case. It is further noteworthy no additional factors other than the

defendant’s absconsion served as the basis for a 17-year increase in his

adjusted sentence.8

The trial court intimately referenced defendant’s criminal history,

both before and after his guilty plea, his prior probation revocations, and the

defendant’s fleeing the state after imposition of sentence as the primary

reasons for the imposition of a 27-year sentence. Conversely, the record

shows mitigating factors including the defendant is a father to four children,

attended barber school in Texas and maintained consistent employment

associated therewith, and has eschewed felonious activities since his

imposition of the original sentence until the time of his arrest and subsequent

extradition. In addition, the Court noted several statutory mitigating

circumstances – lack of a victim other than the State, no pecuniary gain in

7
La. R.S. 14:95.1 and La. R.S. 14:95 respectively.
8
The nature of the crimes requires no probation, parole, or suspension of
sentence-thus exacerbating and underscoring the excessiveness of the sentence.

8

the commission of the offense, no risk of death to one or more persons, no

use of force or violence, and no permanent injury or economic loss of a

victim.

During the imposition of original sentence, the trial court was aware

of defendant’s age as well as the previous offenses committed.9 Prior to

sentencing, the trial court noted there were two pending charges for

distribution of methamphetamine and distribution of marijuana.10 In

addition, the trial court found defendant’s criminal conduct which continued

“without pause” after he fled to Texas and became a fugitive from justice

demonstrated an undue risk during any period of probation he would in fact

commit other crimes.11 The Court found defendant was seriously in need of

correctional treatment which could only be provided through a custodial

environment.12 Judge Hamilton summarized the primary grounds for the

sentences imposed as follows:

Therefore, based primarily on this defendant’s
extensive criminal history, non-stop from the
age of seventeen, the defendant’s failure to
complete successfully any probationary period
to which he was exposed and the fact that he
absconded the jurisdiction of this Court to avoid
putting into effect the agreement that he had made

9
Pleasant was 32 years of age at the time of original sentence and 40 and the time
of resentencing.
10
The State did not dismiss the charges of two counts of distribution of
methamphetamine and one count of distribution of marijuana in Docket No. 2015-483F
and he was released on his own recognizance and the case was continued pending
Defendant’s return for his sentencing hearing.
11
La C. Cr. P. art. 894.1 A (1) When a defendant has been convicted of a felony
or misdemeanor, the court should impose a sentence of imprisonment if any of the
following occurs: (1) There is an undue risk that during the period of a suspended
sentence or probation the defendant will commit another crime.
12
La. C. Cr. P. art 894 A (2) The defendant is in need of correctional treatment or
a custodial environment that can be provided most effectively by his commitment to an
institution.

9

with the State of Louisiana, the Court sentences
the defendant on the charge of possession of a
firearm by a convicted felon to a hard labor term of
twenty years with the Department of Corrections.
On the charge of illegal possession of a weapon
this Court sentences the defendant to serve a
period of seven years at hard labor with the
Department of Corrections, these sentences will
run consecutively with each other for a total prison
term of twenty-seven years. That’s the sentence of
this court.
(Emphasizes added.)

Although the trial court is given wide discretion to impose

sentencing, our review of the record and supporting jurisprudence evinces no

basis for the 27-year consecutive sentence imposed as the defendant’s

sentencing of 27 years for two crimes – possession of firearm by convicted

felon and illegal possession of firearm – is grossly disproportionate to the

severity of the crime. The trial court was well acquainted with the breadth

and depth of defendant’s criminal history at the time of imposition of the

plea agreement. Notwithstanding, it can be assumed the Court believed

defendant’s catalog of convictions and pending charges were not of such a

heinous nature as to merit immediate incarceration pending execution of his

sentence. However, even if the trial court considered defendant’s charges in

Texas,13 those charges are insufficient to justify such a brazen upward

deviation to a 27-year sentence. Further illuminating this position for purely

illustrative and exemplary context, had the defendant waived any delays in

his sentence, immediately begun the process for incarceration, rehabilitation,

and re-entry, and then while en route to the facility subsequently decided

13
Possession of marijuana, possession of controlled substance, failure to provide
truthful information as to identity, failure to identify as a fugitive/ intentionally giving
false information, fraudulent use of or possessing identifying information, all
misdemeanors and dismissals.

10

grabbing a deputy’s firearm and/or commandeering a state vehicle to

effectuate an aggravated escape was in his best interests, the maximum

sentence available in our current laws is a five to ten-year sentence.14

In reviewing a trial court’s sentencing discretion, three factors are

considered: 1) the nature of the crime; 2) the nature and background of the

offender; and 3) the sentence imposed for similar crimes by the same court

and other courts. However, there is no requirement that specific matters be

given any particular weight in sentencing. State v. Lasalle, 22-577 (La. App.

5 Cir. 8/18/23), 370 So. 3d 521, writ not considered, 24-00253 (La. 4/16/24.

Comparatively, defendant’s 27-year sentence for possession of a

firearm by convicted felon and illegal possession of firearm as a fourth

offender is excessive considering sentences imposed for similar crimes by

other courts are significantly less than those of the defendant. In State v.

Johnson, 09-862 (La. App. 3 Cir. 2/3/10), 28 So. 3d 1263, the defendant was

sentenced to ten years for possession of a firearm by a convicted felon and

five years for illegal possession of stolen firearm. The defendant committed

four felonies in the previous six years yet received the minimum possible

sentence for possession of a firearm by a convicted felon.

Given the scant circumstances, the best method to determine

excessiveness within the framework of our law and jurisprudence requires a

perspective from the fictional character, Sherlock Holmes, whereby he

14
La. R.S.14:110 C(2) Aggravated escape is the intentional departure of a person
from the legal custody of any officer of the Department of Public Safety and Corrections
or any law enforcement officer or from any place where such person is legally confined
when his departure is under circumstances wherein human life is endangered.
Whoever commits an aggravated escape as herein defined shall be imprisoned at
hard labor for not less than five years nor more than ten years and any such sentence shall
not run concurrently with any other sentence.
11

comments, "I know what is good when I see it."15 This standard of review

later was adapted by United States Supreme Court Justice Potter Stewart to

describe his threshold test for obscenity in Jacobellis v. Ohio.16

Applying this standard with full understanding of the arbitrariness of

its nature, our review of the three factors set forth in State v. Lasalle, supra,

indicates the sentence imposed was excessive. Moreover, the unwillingness

to jurisprudentially define what is considered abuse of discretion has led

courts to sentence according to their preference absent the seriousness of the

crime committed by a suspect. Herein, the 20-year sentence for possession

of firearm by a convicted felon does not provide defendant with any

possibility of probation, parole, or reduction of sentence. Nevertheless,

other defendants who have committed more heinous crimes than defendant

are being sentenced within the same range as defendant.

The nature of the crimes below and the sentences imposed indicate an

unbalanced footing within the sentencing guidelines. The inability to

interpret what constitutes an abuse of discretion has led to incomparable

sentencing based on the nature of the crime. Without a proper foundation,

trial court judges will continue to impose sentences which shock the

conscience. This Court’s interpretation of the worst offender/ worst crime

analysis indicates defendant is not the worst of offenders. However, by

imposing the maximum sentence, the trial court has implied this defendant is

the worst type of offender. The following cases seek to illustrate and thus

15
Arthur Conan Doyle, The Hound of the Baskervilles, reprinted in The
Illustrated Sherlock Holmes Treasury 527, 535 (Avenel Books 1976) (1902).

16
Jacobellis v. State of Ohio, 378 U.S. 184, 84 S. Ct. 1676, 12 L. Ed. 2d 793
(1964).
12

illuminate disparities and further how abuse of discretion cannot be viewed

as a whole but rather case by case. Let us provide the context.

A review of cases rendered by this Court reveal defendants have

received similar sentences after committing offenses which were

significantly more heinous. In State v. Dungan, 54,031 (La. App. 2 Cir.

9/22/21), 327 So. 3d 634, writ denied, 21-01679 (La. 1/26/22), 332 So. 3d

82, this Court affirmed the defendant’s consecutive sentences of 30 years at

hard labor for manslaughter and ten years at hard labor for obstruction of

justice. In Dungan, the defendant and her 71-year-old brother lived together

on a farm. The defendant stated the victim executed a will naming the

defendant as the primary beneficiary of his estate. Two weeks later, the

victim vanished, and the defendant alleged the victim left for work in Iowa.

The family became suspicious and suspected defendant was involved in the

disappearance. Law enforcement investigated for months and were not

immediately successful. Surprisingly, the defendant admitted after multiple

attempts she finally succeeded in killing the victim.

In State v. White, 53,444 (La. App. 2 Cir. 4/22/20), 293 So. 3d

1274, writ not considered, 21-00197 (La. 8/6/21), 322 So. 3d 246, this Court

affirmed the defendant’s 20-year at hard labor sentence for manslaughter. In

this case the defendant during an argument stabbed her boyfriend in the

shoulder with a steak knife. As her boyfriend ran out of the house, the

defendant stalked him, stabbed him in his knee, and struck an artery causing

him to bleed to death. The defendant then proceeded to walk back inside the

house, scrub the knife clean, and place the weapon in the dish drainer as if

the encounter never happened.

13

In State v. Dowles, 54,483 (La. App. 2 Cir. 5/25/22), 339 So.3d 749,

this Court affirmed the defendant’s consecutive sentences of 35 years at hard

labor for manslaughter and 15 years at hard labor for armed robbery. The

defendant’s original indictment was for one count of second-degree murder

and one count of conspiracy to commit armed robbery. After the defendant

and his codefendant agreed to rob Charley Island, the defendant drove his

codefendant to a point near the victim’s house for the purpose of committing

an armed robbery. The defendant observed his codefendant exit the vehicle

and meander toward the victim’s house where he then heard a gunshot.

Thereafter, the codefendant scurried back to the car and told the defendant to

“go go go.” The codefendant later informed the defendant he shot Charley

Island. The defendant was 17 years old at the time of commission of these

offenses.

In State v. Ware, 55,046 (La. App. 2 Cir. 5/10/23), 362 So.3d 1027,

this Court affirmed the defendant’s sentence to serve 20 year’s

imprisonment at hard labor, to run concurrently with any other sentence he

would be required to serve, and with credit for any time served for

manslaughter. In Ware, the defendant and three other young males camped

at an apartment complex, placed a call to order a pizza, and planned to rob

the delivery person who arrived with their order. When the unsuspecting

pizza delivery person arrived, the men pelted shots at the delivery vehicle.

The driver of the delivery car was killed by two of the shots fired by the

men. One of the assailants was armed with a 9-mm handgun and the fatal

shots were consistent with having been fired from an assault rifle used by

either two of the young males. Although he initially fled when his

accomplices opened fire, upon his return to the scene, the defendant fired at
14

least three shots from his weapon into the air. The defendant pled guilty to

manslaughter pursuant to a plea agreement with an agreed-upon sentencing

cap of 20 years.

In State v. Johnson, 54,954 (La. App. 2 Cir. 5/10/23), 361 So.3d 597,

this Court affirmed a 20-year sentence at hard labor following a guilty plea

to one count of aggravated second-degree battery and one count of home

invasion. In this case, Alexis Johnson (“Alexis”) called the Rayville Police

Department (“RPD”) complaining her ex-husband, the defendant, was in her

yard causing a disturbance. Officers from the RPD were dispatched to the

home. But by the time of their arrival, the defendant had already fled.

Shortly thereafter, the defendant returned to the house, kicked in the front

door, and exclaimed he was going to kill everyone present including

Alexis’s children and her live-in boyfriend (“Griffin”). The defendant began

by attempted to stab Alexis with a knife. However, he narrowly missed and

slit her shirt. As the defendant attempted a second deadly strike, Griffin

placed his hand in front of the victim resulting in a gash to his hand and a

slash on his back. Griffin then fled to the bedroom where he barricaded

himself. However, the defendant persisted in his attempt to break through

the door. Griffin then decided to flee, was subsequently caught by the

defendant, and stabbed several times before he was eventually able to escape

to the neighbor’s house. The defendant then dragged Alexis down the

hallway by her hair before her oldest son armed himself with a knife and

attempted to intervene. Despite this well-developed criminal spree, the

defendant entered a plea agreement whereby he was allowed to plead guilty

to second-degree battery and home invasion. The agreement limited the

15

defendant’s total exposure on both charges to a maximum of 20 years at

labor and stipulated each sentence would run concurrently.

In State v. Allen, 50,515 (La. App. 2 Cir. 4/13/16), 194 So.3d 649, this

Court affirmed the defendant’s sentence to serve 25 years at hard labor for

second degree cruelty to a juvenile. In this case, the defendant was driving a

car with her children, ages 20 months old and seven years old. The

defendant negligently positioned the 20-month-old child in the front

passenger seat against the door, and as she careened the car around a curve

at an excessive rate of speed, leant over and opened the passenger door

causing the child to be ejected from the vehicle. As a result, the child

suffered a broken arm and numerous abrasions. Although corrective surgery

was performed, the child’s arm remained paralyzed from the elbow down.17

The defendant was charged by bill of information with second degree cruelty

to juveniles. She eventually entered a plea agreement pleading guilty as

charged to second degree cruelty to juveniles. Under the terms of the

agreement, a sentencing cap of 28 year at hard labor was implemented. The

State agreed to remain silent as to sentencing and waived its right to charge

the defendant as a habitual offender. The sentence would run concurrently

with another sentence previously imposed and she would receive credit for

time served.

In State v. Fulford, 53,141 (La. App. 2 Cir. 1/15/20), 288 So. 3d 911,

this Court affirmed the defendant’s concurrent sentences of 12 years at hard

17
At the time of this offense, the defendant was already on probation after
pleading guilty to aggravated arson, in another act of violence on her part perpetrated
against her own children. The defendant set her mother’s house on fire while two of the
defendant’s young children were inside. The children were rescued from the dwelling.
The defendant was given an eight-year hard labor sentence for that offense, which was
suspended, and she was placed on supervised probation for five years.

16

labor, a fine and court costs for aggravated arson, and 4 years at hard labor

for aggravated cruelty to animals with no fine or costs. In this case, the

defendant was originally charged with aggravated arson, attempted first

degree murder, aggravated cruelty to animals and insurance fraud. The

charges arose from a fire set by the defendant in his mobile home occupied

at the time by defendant, his disabled wife, and her service dog. While his

wife was watching television, the defendant lit a paper towel and placed it in

the spare bedroom. When she complained of the smell of smoke, the

defendant went outside with the dog to inspect, only to return stating he

found nothing burning. Once smoke billowed throughout the mobile home,

the defendant stood outside at the door and told his wife to come to his voice

to get out safely. This is particularly insidious given defendant was aware

the wife suffered numerous medical conditions inclusive of walker-assisted

mobility. Despite her inability to find her glasses, she somehow managed to

scramble to the door without his assistance. As a result of the fire, the wife

sustained third-degree burns to her back and shoulder area. The disabled

wife’s service dog perished in the fire and its remains were later discovered

in the hallway near the master bedroom.

During the investigation, the defendant, a volunteer fireman, admitted

he had previously started two fires at two of his residences and one to his

vehicle because he was tired of making payments. He admitted using the

same method when setting the previous fires (lighting paper towels on fire).

He also admitted igniting the fire at the mobile home but denied initially

intending to kill his wife. He later agreed, however, he was trying to cease

her pain and suffering caused by her medical conditions.

17

The defendant pled guilty to aggravated arson and aggravated cruelty

to animals in exchange for the State’s dismissing the remaining charges of

attempted first degree murder and insurance fraud. There was no agreement

to sentencing except the sentence would run concurrently, and the Court

ordered a presentence investigation report (PSI).

In State v. Yetman, 54,883 (La. App. 2 Cir. 1/11/23), 354 So.3d 1262,

the defendant pled guilty to five counts of sexual abuse of an animal by

engaging in sexual contact and one count of possession of pornography

involving juveniles. In providing the factual basis for the defendant’s guilty

pleas, the State alleged in each incident, the defendant recorded a dog

licking his genitals. In providing the factual basis for the defendant’s guilty

plea to one count of possession of pornography involving juveniles, the State

expressed the defendant knowingly and intentionally possessed a photograph

depicting a male child under the age of 17 years old engaging in a sexually

performative acts inclusive of masturbation. Both the videos and photograph

were recovered from the defendant’s iCloud account. The defendant

affirmed the factual basis for each of his offenses were accurate. He was

sentenced to serve consecutive sentences of 20 years for sexual abuse of an

animal and 20 years at hard labor with five years to be served without

benefits for possession of pornography. The trial court noted sexual

behavior involving children and animals is particularly difficult to treat and

concluded a lesser sentence would deprecate the seriousness of the

defendant’s crimes and his offenses “shock the senses…[of] what a

reasonable person would consider as normal behavior.” Further adding to the

shocking nature of his offenses, the trial court stated the defendant was a

police officer at the time the offenses occurred with a previous commission
18

as a K9 officer. This Court affirmed the defendant’s convictions and

sentences.

In State v. Ward, (La. App. 2 Cir. 6/30/21), 324 So.3d 231, police

officers responded to the scene of a shooting in Winnsboro, Louisiana. As

they arrived, officers observed the defendant fleeing in a vehicle at high rate

of speed. The officers attempted to stop the defendant to no avail as he

refused to comply. After driving at speeds eclipsing 100 mph, crossing the

center line, and traveling into oncoming traffic on Highway 4, the defendant

finally halted the vehicle. Officers searched the vehicle and found a plastic

Glock pistol case and four magazines (two of which contained .40 caliber

ammunition matching the spent shell casings at the scene of the shooting).

On the driver’s side floorboard, officers also found a plastic bag of several

multi-colored tablets later determined to be methamphetamines.

Pursuant to a plea agreement, the defendant pled guilty to aggravated

flight from an officer and possession of methamphetamine. The State agreed

to dismiss the attempted second-degree murder charge, as well as another

unspecified charge. There was no sentencing agreement, but the parties

agreed the defendant would be sentenced by the trial court following the

submission of a PSI. After reviewing the PSI, the trial court determined the

defendant had previously been convicted of misdemeanor possession of

marijuana, and accordingly sentenced the defendant to an enhanced sentence

of 10 years at hard labor for the conviction of possession of

methamphetamine. As for the aggravated flight from an officer conviction,

the defendant was sentenced to 5 years at hard labor. The trial judge ordered

the sentences be served concurrently. This Court affirmed the convictions

and sentences.
19

In the present case, the sentences imposed were neither narrowly

tailored to the offenses committed nor the offender. The trial court’s

decision to go from the previously agreed-upon 10-year concurrent

sentences, without additional meritorious factors, to a 27-year consecutive

sentence for the crimes committed is excessive, particularly when compared

to sentences imposed relative to more heinous crimes by the same court. The

offenses committed by the exampled cases of defendants above involve

violence against person, property, including the risk of death to one or more

persons, force of violence, and permanent injury, all of which the trial court

specifically noted were not present when discussing the statutory mitigating

factors. This indicates the trial court lacked a true basis in sentencing

defendant to 27 years for two crimes occurring from of the same conduct or

transaction.18 Although the trial court determined the reasoning was based

on the defendant’s absconsion, the sentencing does not align with the crime

committed.

In Ward, the defendant received a sentence of 10 years for aggravated

flight from an officer and possession of methamphetamine arising from the

same conduct. The aggravated flight from an officer is similar in context to

defendant absconsion. The facts indicate the trial court used the defendant’s

absconsion as a factor in the upgrade of sentence from the original 10-year

concurrent sentence. Ward provides a basis for fleeing and it determined a

10-year sentence more intimately fits the crime based on two crimes arising

out of the same conduct.

18
The Court will later address the ability for the State to charge two separate
crimes arising out of the same conduct, transaction, or occurrence to which a defendant
must defend himself.
20

Contrarily, in the present case, the trial court determined absconsion,

absent any other remarkable crimes committed thereafter, was the basis for a

27-year consecutive sentence. However, simply absconding to avoid

execution of a sentencing hearing does not make the defendant the worst of

offenders to necessitate the imposition of the maximum sentence. In fact, the

trial court, having reviewed the criminal record in full, opined at the time of

imposition defendant was not the worst of offenders as defendant was

released on his own recognizance pending sentencing.19 Furthermore, with a

review of life expectancy vis-à-vis life sentences, a 27-year sentence is

analogous to a life sentence for this defendant who was 32+/- years old at

the time of the original sentencing and roughly 39 at the time of capture.

Our review of the record does not merit a 27-year sentence when

considering the profile of cases encompassing greater violence within the

sentencing range of defendant. The above cases are clearly heinous in nature

and justice was not temperamental or vindictive in those cases. As outlined

above, other cases have shown defendants who have committed more violent

crimes have not received maximum and near-maximum sentences. More

simply stated, a defendant can receive a similar sentence for acts against a

person such as aggravated second-degree battery, second degree cruelty to a

juvenile, and manslaughter than a defendant possessing an illegal firearm.

The quantum leap in sentencing is unjustifiable by any other measure

than punitive heartfelt messaging to others who dare abscond. No

penological purpose is served except to inflict harm. The fact many

jurisdictions do not expressly prohibit the sentencing practice at issue is not

19
The Court was also aware of other pending felony charges.
21

dispositive because it does not necessarily follow that the legislatures in

those jurisdictions have deliberately concluded that such sentences would be

appropriate.20

Moreover, the trial court imposed consecutive sentences based on

defendant’s criminal conduct as a fugitive demonstrated an undue risk

during any period of probation he would in fact commit other crimes.

According to La. C. Cr. P. art. 883, when the convictions for two or more

offenses are based on the same act or transaction, or are part of a common

scheme or plan, the terms of imprisonment shall be concurrent unless there

is a specific directive they be served consecutively. In this case, the record

does not clarify the reasons why consecutive sentences were imposed for

two charges arising out of the same act. There are no specific facts

indicating treatment of the defendant as a grave risk to the safety of the

community. 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. A sentence is

considered grossly proportionate if, when the crime and punishment are

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

As a general rule, maximum or near maximum sentences are reserved for the

worst offenders and the worst offenses. State v. Myrick, 54,606 (La. App. 2

Cir. 9/21/22), 349 So. 3d 92. The record does not reflect the defendant is the

worst of offenders or the crimes committed are the worst offenses.

This case is analogous to State v. Stewart, 03-976 (La. App. 5 Cir.

12/30/03), 862 So. 2d 1271. In Stewart, the Fifth Circuit Court of Appeal

20
Thompson v. Oklahoma, 487 U.S. 815, 108 S. Ct. 2687, 101 L. Ed. 2d 702
(1988).
22

held defendant could not challenge excessiveness of his sentence because he

was sentenced in conformity with a plea agreement. In Stewart, the plea

agreement stated defendant was to receive five years at hard labor on each

count to run concurrently and the State waived its right to multiple bill the

defendant. Similarly, in this case defendant received a 10-year sentence for

two charges to run concurrently and the State waived the habitual offender

implications. However, in Stewart, during the plea colloquy the Court

warned the defendant he could receive the maximum and the State could file

a multiple bill in the event he failed to appear. Subsequently, the defendant

failed to appear and the Court sentenced him under multiple bill to

imprisonment at hard labor for seven years, to run consecutively with the

five-year sentence on the other count resulting in a total of 12 years.

In this case, defendant was aware of the maximum sentence of the

possession of a firearm by a convicted felon but not the illegal possession of

a weapon. The Court made no mention of the State charging defendant as a

habitual offender if he failed to appear. Consequently, defendant failed to

appear which resulted in the maximum sentence of 20 years for the

possession of a firearm by a convicted felon and near maximum of seven

years for illegal possession of a firearm without a basis for such harsh

punishment absent the habitual offender charge.

In State v. Green, 16-0107 (La. 6/29/17), 225 So. 3d 1033, 1042, cert.

denied, 138 S. Ct. 459, 199 L. Ed. 2d 338 (2017), the Louisiana Supreme

Court stated:

Here, defendant’s conduct transpired within a very
short period at one location. Thus, we find the
presumption in favor of concurrent sentences
applies, and the issue is whether the trial court
abused its discretion by imposing consecutive
23

terms. Absent well-articulated reasons from the
sentencing court, we decline to say whether it was
an abuse of discretion to impose consecutive
terms. Thus, we will remand the matter to the trial
court to consider whether defendant indeed poses a
grave risk to public safety and, at a minimum, to
articulate reasons for the consecutive terms.

The presumption of concurrent sentences applies to the record before

us. Therefore, we find the trial court erred in imposing consecutive rather

than concurrent sentences. The imposition of the maximum sentence utilized

by the trial court in this case was unconstitutionally excessive. Since we

have so little information before us upon which to base a review of the

excessiveness of the sentence imposed for possession of a firearm by a

convicted felon and illegal possession of a weapon, the defendant’s

sentences are vacated, and we hereby remand this matter to the trial court for

resentencing in accordance with this opinion.

CONCLUSION

For the foregoing reasons, we affirm defendant’s convictions.

However, we vacate defendant’s sentences, and remand this matter to trial

court for resentencing in accordance with this opinion.

CONVICTIONS AFFIRMED; SENTENCES VACATED;
REMANDED.

24

THOMPSON, J., concurs in part and dissents in part.

I concur with the majority in affirming the convictions and in

reversing the consecutive nature of sentences, but dissent from vacating the

length of the sentences imposed by the trial court. While the defendant and

the state may have agreed to a recommended sentence, the ultimate length of

the sentence was left to the broad discretion of the trial court. This trial

court clearly put the defendant, who was being released on his own

recognizance pending sentencing, on notice the recommended sentence

would not be followed if he failed to show up for sentencing. In the record

before us, the colloquy of the court accepting Pleasant’s guilty plea on

January 6, 2016, when accepting Pleasant’s guilty pleas, makes that fact

abundantly clear:

Court: Okay. All right. Upon the record before me, I find that
the please is entered freely, voluntarily with both an
understanding of the nature of the changes and the
consequences of the pleas including Mr. Pleasant’s
understanding of the plea agreement. I also find that each has a
factual basis containing all the elements of the crime charged,
the plea is therefore accepted and the Court now—the pleas are
therefore accepted and the Court now adjudicates you guilty of
the offenses charged. And as we had talked about I’m going to
set sentencing for May the 10th of 2016. As we discussed, if
you come back to Court on May 10th for sentencing I’m
going to sentence you just like the plea agreement says.
Mr. Pleasant: Yes, sir.
Court: But I’m—because since we’re going to release you on
your own recognizance with the pending charges that are still
left, if you don’t show up then I’m free to sentence you to
any—something higher than that, I could go to twenty years
on the possession of a firearm, I could go to—I can’t
remember what it is, but I could go to—I could go higher than
we agreed if you don’t—if you did not show up. Do you
understand that?
Mr. Pleasant: Yes.
(Emphasis added).

1

Notably, when he entered his guilty pleas, Pleasant received the

considerable benefit of the State dismissing his other pending felony

charges and agreeing to not charge him as a habitual offender, which would

have enhanced the period of his incarceration. Pleasant now seeks to reap

the benefits resulting from a more lenient sentence, without being exposed

to the other previously dismissed charges being reinstituted or being

exposed to being sentenced as a habitual offender after absconding the

state. All that was required of Pleasant to benefit from the extremely

generous recommended sentences was to show up and accept it. Pleasant

refused to do so and, thus, subjected himself to exactly what the trial court

warned him would happen – sentencing in accordance with the law and

based upon the facts. That discretion is firmly rooted within the purview of

the trial court, and I disagree with the majority that the length of the

sentences, under these specific facts and circumstances with this defendant,

was excessive. Accordingly, I respectfully dissent on that issue, and concur

with the majority in affirming the convictions and reversing the consecutive

nature of the sentences for the reasons set forth in the opinion.

2