State of Louisiana v. Terry Johnson

Judgment rendered January 15, 2025.
Application for rehearing may be filed
within the delay allowed by Art. 922,
La. C. Cr. P.

No. 56,043-KA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

STATE OF LOUISIANA Plaintiff-Appellee

versus

TERRY JOHNSON Defendant-Appellant

*****

Appealed from the
First Judicial District Court for the
Parish of Caddo, Louisiana
Trial Court No. 392,330

Honorable Christopher T. Victory, Judge

*****

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

JAMES EDWARD STEWART, SR. Counsel for
District Attorney Plaintiff-Appellee

MARGARET RICHIE GASKINS
VICTORIA T. WASHINGTON
Assistant District Attorneys

*****

Before PITMAN, THOMPSON, and HUNTER, JJ.

HUNTER, J.

Defendant, Terry Johnson, was charged by bill of information with

two counts of armed robbery with a dangerous weapon, in violation of La.

R.S. 14:64.3, and possession of a firearm by a convicted felon, in violation

of La. R.S. 95.1. Pursuant to a plea agreement, defendant pled guilty to

possession of a firearm by a convicted felon, and the State dismissed the

armed robbery charges and agreed not to file a habitual offender bill of

information. Defendant was sentenced to serve 20 years at hard labor

without the benefit of probation, parole, or suspension of sentence and was

order to pay a fine in the amount of $5,000. For the following reasons, we

affirm defendant’s conviction and the 20-year sentence. We vacate the

$5,000 fine and remand this matter to the trial court with instructions to

conduct a hearing, pursuant to La. C. Cr. P. art. 875.1, to determine

defendant’s ability to pay a fine and to have the clerk of court prepare a

uniform order of commitment in accordance with La. C. Cr. P. art. 892.

FACTS

On November 9, 2022, Dustin Rachal was playing a game of dice at

the home of Joshua Dodson, when a person he described as “an older black

man” pointed a semi-automatic handgun at them and demanded their money.

Rachal and Dodson stated the robber, who was wearing a hat, took $120-140

from them and fled in a white SUV. Rachal pursued the SUV in his vehicle.

Soon thereafter, an officer with the Shreveport Police Department

observed a white SUV traveling on Jewella Avenue at a high rate of speed.

The SUV was followed by a silver truck driven by Rachal. As he

approached the officer, Rachal informed him he had just been robbed by a

person in the white SUV. The officer broadcasted the report over the police

radio, and another officer conducted a traffic stop of the suspect vehicle.

While standing outside of the vehicle, the police officer observed a handgun

protruding from beneath the front passenger seat. Defendant, Terry Johnson,

was identified as the person sitting in the front passenger seat. After he was

advised of his Miranda rights, defendant admitted he owned the firearm.

Defendant also stated he was a convicted felon, he was aware he was

prohibited from possessing a firearm, and he had purchased the firearm

because he “needed to protect himself.”

Rachal and Dodson identified defendant as the person who robbed

them and stated they knew defendant from “around the neighborhood.”1

Pursuant to the search incident to the arrest, the officers found $167 in cash

in defendant’s front pocket.

Defendant was charged by bill of information with two counts of

armed robbery with a dangerous weapon, in violation of La. R.S. 14:64.3,

and possession of a firearm by a convicted felon, in violation of La. R.S.

95.1. Pursuant to a plea agreement, defendant pled guilty to possession of a

firearm by a convicted felon, and the State agreed to drop the armed robbery

charges. Following a hearing, defendant was sentenced to serve 20 years at

hard labor without the benefit of probation, parole, or suspension of

sentence. He was also ordered to pay a fine in the amount of $5,000. The

trial court denied defendant’s motion to reconsider sentence.

1
Less than one month after the incident, Rachal and Dodd executed affidavits, in
which they attested defendant was not the person who robbed them. They stated they
misidentified defendant because they were intoxicated.

2

Defendant appeals.2

DISCUSSION

Defendant contends the sentence imposed, 20 years at hard labor

without the benefit of probation, parole, or suspension of sentence, in

addition to a $5,000 fine, is constitutionally excessive. He argues

considering the record as a whole, including the potential hardship a

prolonged incarceration would have on his family, his employment, mental

health diagnosis (bipolar disorder), substance abuse issues, eleventh grade

education, and his age (at the time of sentencing defendant was nearly 56

years-old), the maximum sentenced imposed is unwarranted.

In reviewing a sentence for excessiveness, an appellate court uses a

two-step process. First, the record must show that the trial court took

cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The

articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art.

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

53,712 (La. App. 2 Cir. 1/13/21), 310 So. 3d 307; State v. Kelly, 52,731 (La.

App. 2 Cir. 6/26/19), 277 So. 3d 855, writ denied, 19-01845 (La. 6/3/20),

296 So. 3d 1071. The trial court is not required to list every aggravating or

mitigating circumstance so long as the record reflects that it adequately

considered the guidelines of the article. State v. Smith, 433 So. 2d 688 (La.

1983); State v. Bell, supra; State v. Kelly, supra.

Second, the court must determine whether the sentence is

constitutionally excessive. A sentence violates La. Const. art. I, § 20, if it is

2
After the motion for appeal was granted, defendant filed a pro se motion to
clarify sentence. The trial court denied the motion, noting, “Motion is premature;
sentence currently being appealed.”
3

grossly out of proportion to the severity of the crime or nothing more than a

purposeless and needless infliction of pain and suffering. State v. Dorthey,

623 So. 2d 1276 (La. 1993); State v. Bell, supra. 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; State v. Bell, supra.

The trial court has wide discretion in the imposition of sentences

within the statutory limits, and such sentences should not be set aside as

excessive in the absence of a manifest abuse of that discretion. State v.

Williams, 03-3514 (La. 12/13/04), 893 So. 2d 7; State v. Bell, supra. A trial

judge is in the best position to consider the aggravating and mitigating

circumstances of a particular case and, therefore, is given broad discretion in

sentencing. Id.; State v. Allen, 49,642 (La. App. 2 Cir. 2/26/15), 162 So. 3d

519, writ denied, 15-0608 (La. 1/25/16), 184 So. 3d 1289. On review, the

appellate court does not determine whether another sentence may have been

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

Bell, supra; State v. Kelly, supra.

Whoever is found guilty of possession of a firearm or carrying

concealed weapon by a person convicted of certain felonies shall be

imprisoned at hard labor for not less than five nor more than 20 years

without the benefit of probation, parole, or suspension of sentence and be

fined not less than $1,000 nor more than $5,000. La. R.S. 95.1(B).

At the sentencing hearing, the trial court noted for the record it

considered the PSI report and the sentencing guidelines set forth in La. C.

Cr. P. art. 894.1. The trial court also recognized defendant’s criminal history

and noted in the past, defendant had violated his probation or parole on four
4

occasions. The court noted defendant was in need of correctional treatment

and stated any lesser sentence would deprecate the seriousness of the crime.

More specifically, the trial court stated aggravating factors applied because

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

than one person and used violence or threats of violence by holding two

victims at gunpoint while demanding money from them. Additionally, the

court noted defendant “has a long criminal history dating back to 1985,”

including burglary, multiple robberies, possession of a firearm by a

convicted felon, possession of controlled dangerous substances,

unauthorized entry of an inhabited dwelling, and armed robbery.

With regard to mitigating factors, the court noted defendant was

employed and had two children. The court stated defendant’s imprisonment

would create a hardship to him and his dependents. The court further noted

defendant’s history of substance abuse, and stated “the likelihood of

rehabilitation based on the criminal history is low.”

After reviewing this record, we find no abuse of discretion with regard

to the sentence imposed. The trial court took cognizance of the criteria set

forth in La. C. Cr. P. art. 894.1, and considered the aggravating and

mitigating circumstances in this case. The court noted defendant’s personal,

social, employment, and criminal history and considered the gravity of the

defendant’s offenses and the risk of harm created to the victims. Moreover,

defendant gained a substantial reduction in his sentence exposure, from a

potential sentence of 99 years for each count of armed robbery. In

reviewing the record and in light of the harm done to society, the 20-year

sentence does not ostensibly shock the sense of justice. Based on this

5

record, we cannot say the trial court abused its discretion in sentencing

defendant.

ERRORS PATENT

We have reviewed the record for errors patent in accordance with La.

C. Cr. P. art. 920 and we note there is an error in the proceedings regarding

the imposition of the $5,000 fine. Effective August 1, 2022, La. C. Cr. P.

art. 875.1 was amended and reenacted to require a financial hardship

hearing. La. C. Cr. P. art. 875.1 provides, in pertinent part:

***
C. (1) Notwithstanding any provision of law to the contrary,
prior to ordering the imposition or enforcement of any financial
obligations as defined by this Article, the court shall conduct a
hearing to determine whether payment in full of the aggregate
amount of all the financial obligations to be imposed upon the
defendant would cause substantial financial hardship to the
defendant or his dependents. The court may consider, among
other factors, whether any victim of the crime has incurred a
substantial hardship as a result of the criminal act or acts and
whether the defendant is employed. The court may delay the
hearing to determine substantial financial hardship for a period
not to exceed ninety days, in order to permit either party to
submit relevant evidence. (Emphasis added).

(2) The defendant or the court may waive the judicial
determination of a substantial hardship required by the
provisions of this Paragraph. If the court waives the hearing on
its own motion, the court shall provide reasons, entered upon
the record, for its determination that the defendant is capable of
paying the fines, fees and penalties imposed without causing a
substantial hardship.

D. (1) If the court determines that payment in full of the
aggregate amount of all financial obligations imposed upon the
defendant would cause substantial financial hardship to the
defendant or his dependents, the court shall do either of the
following:

(a) Waive all or any portion of the financial obligations,
except as provided in Paragraph E of this Article.
(b) Order a payment plan that requires the defendant to
make a monthly payment to fulfill the financial
obligations.
***
6

The imposition of a fine is mandatory under La. R.S. 14:95.1. We

note defendant was represented at trial by the indigent defendant’s officer

and by the Louisiana Appellate Project on appeal. Due to defendant’s

apparent indigent status, we find the trial court was required to conduct a

hearing pursuant to La. C. Cr. P. 875.1, prior to imposing the $5,000 fine.

There is no evidence in the record to establish defendant or the trial court

waived the determination of financial hardship. Because a hearing was not

held, we vacate the $5,000 fine, and we remand the matter to the trial court

with instructions to conduct a hearing in accordance with La. C. Cr. P. art.

875.1. See, State v. Jamison, 55,361 (La. App. 2 Cir. 11/29/23), 375 So. 3d

619; State v. Gant, 54,837 (La. App. 2 Cir. 1/11/23), 354 So. 3d 824.

We also note the record does not contain a uniform order of

commitment. La. C. Cr. P. art. 892(B) requires the clerk of court of the

district court to prepare “[a] copy of the Uniform Sentencing Commitment

Order in the format authorized by the Louisiana Supreme Court[.]”

Although the failure to comply with the provisions of Article 892 shall not

affect the validity of a prosecution, conviction, or sentence, See La. C. Cr. P.

art. 892(D), upon remand, we instruct the court to have the clerk create a

uniform commitment order in accordance with Article 892.

CONCLUSION

For the foregoing reasons, we affirm defendant’s conviction and the

20-year sentence imposed. We vacate the portion of the sentence imposing a

$5,000 fine and remand this case with instructions to conduct a hearing

pursuant to La. C. Cr. P. art. 875.1 to determine the defendant’s ability to

7

pay a fine and to have the clerk of court prepare a uniform order of

commitment in accordance with La. C. Cr. P. art. 892.

CONVICTION AFFIRMED; SENTENCE VACATED, IN
PART; REMANDED WITH INSTRUCTIONS.

8