State of Louisiana v. Don Lee Johnson

Judgment rendered November 19, 2025.
Application for rehearing may be filed
within the delay allowed by Art. 922,
La. C. Cr. P.

No. 56,517-KA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

STATE OF LOUISIANA Appellee

versus

DON LEE JOHNSON Appellant

*****

Appealed from the
First Judicial District Court for the
Parish of Caddo, Louisiana
Trial Court No. 377,403

Honorable Ramona L. Emanuel, Judge

*****

THE HARVILLE LAW FIRM, LLC Counsel for Appellant
By: Douglas Lee Harville

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

CHRISTOPHER S. BOWMAN
ERIC M. WHITEHEAD
Assistant District Attorneys

*****

Before PITMAN, COX, and ROBINSON, JJ.

PITMAN, C. J.

Defendant Don Lee Johnson appeals his conviction for manslaughter,

a crime to which he pled guilty, and his sentence of 20 years at hard labor

without benefit of probation or suspension of sentence. He argues that he

was intellectually incapable of waiving his rights and voluntarily confessing

to the crime. He also argues that he received ineffective assistance of

counsel when his attorney failed to file a motion to suppress the confession.

For the following reasons, we affirm the conviction and sentence and

instruct Defendant to file for post-conviction relief on the issue of ineffective

assistance of counsel.

FACTS

Defendant is a man of very limited intellectual ability with the mental

capacity of a child of 10 to 12 years of age. Defendant was 21 years old and

homeless in April 2020 when his sister, Samantha Hobbs, who lived in

Vivian, Louisiana, asked him to live with her. Hobbs had a four-year-old

son and a three-month-old infant son, A.S. Hobbs worked at a convenience

store, sometimes as many as 12 hours a day, and she would leave the

children in Defendant’s care.

On May 1, 2020, Hobbs was at work, and Defendant was taking care

of both children. While he was feeding the infant, the older child kept

attempting to go outside. Defendant slammed the infant on the sofa twice

before he ran to get the four-year-old at the door. He stated that he noticed

white fluid coming from the infant’s nose, but that he wiped it off and never

mentioned the incident to anyone.

In the following days, the baby appeared to be ill. He quit eating and

was sleeping a lot more than usual. When he started to run a fever and began

vomiting, Hobbs took him to the emergency room at North Caddo Medical

Center on May 3. There were no visible signs of injury, and the doctor told

Hobbs to take the child to his usual physician for a follow-up visit. On

May 4, she took him to see Dr. Walker May, who told her the baby had a

virus and to return if he did not get any better by the next day. A.S. had a

fever of 102 on May 5, and Hobbs gave him Children’s Tylenol at 9:30 a.m.

His fever dropped to 98. At 2:30 a.m. on May 6, she fed the baby and

changed his diaper and put him to sleep.

The next morning Hobbs’s boss, Celeste, came to her house to ask if

she could come to work early, and Hobbs told her she needed to first check

on her baby. She went into the bedroom and found him blue and with foam

coming from his nose. Celeste called 911, placed the baby on the floor and

started performing CPR. The call was dispatched as a “deceased person”

call; and when the emergency crew arrived, the baby was on the floor

covered by a blanket.

An autopsy was performed and the coroner returned a cause of death

as subdural hematoma and subarachnoid hemorrhage as a result of abusive

head trauma caused by shaken baby syndrome occurring five days prior to

death. The ensuing investigation ruled out Hobbs as the perpetrator because

she had been at work on the day of the incident causing death and had taken

her child to the doctor multiple times because she did not know what was

wrong with him.

While the baby’s death was being investigated, Defendant went to

Arkansas to stay with his adoptive mother. On July 24, 2020, he was

returned to Louisiana at the request of the investigators; and, after having

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been read his Miranda warning and signing a waiver, he admitted to

throwing the baby onto the sofa.

Defendant was originally charged with second degree murder on

October 22, 2020, and he was arrested. On October 5, 2021, a hearing was

held regarding the free and voluntary nature of his confession, and it was

found to have been freely and voluntarily made. On January 4, 2022, a

sanity commission was requested, and the trial court appointed Jennifer

Russell, PhD, a licensed psychologist, and Joshua Sanderson, MD, a

psychiatrist, to the commission.

The sanity commission report issued in May 2022 by Dr. Russell

indicated that Defendant had received a certificate of completion from high

school where he attended special education classes. He worked at a lumber

yard and at a Tyson plant “hanging live chickens.” His adoptive mother was

consulted and stated that he had suffered from his mental disability his

whole life and that he could not function without the assistance of someone

else, that he was a kind boy who had never been in any trouble with the law

and that he had been diagnosed with Asperger syndrome. She also told the

psychiatrists and psychologists who interviewed him that he might not

understand questions asked of him but that he would pretend he did and

respond in a way that he thought they would want him to answer. The

testing performed showed that he had an IQ of 67, which placed him in the

first percentile when compared to others of similar age and within the

“Extremely Low” range associated with intellectual disability.

Dr. Sanderson found that Defendant was unable to assist his attorney

in his own defense because he could not demonstrate a factual or rational

understanding of the nature of the proceedings against him. He stated that
3

“the evaluation supports a recommendation that [Defendant] be found

unrestorable” and that “some of his cognitive and social deficits are

permanent and will continuously result in difficulties with rational

manipulation of information.”

The sanity commission report found that Defendant was incompetent

to assist in his defense or understand the charge against him but reached no

conclusion as to his sanity at the time of the crime. Defendant was sent to

the East Feliciana Forensic Facility for nine months, during which time he

received instruction on the functions of court personnel and assistance with

his mental health in hopes that he could be brought to a state of

understanding. In February 2023, the sanity commission report was issued,

which determined he understood the function of the judge, the district

attorney, the defense attorney, the jury, the charge against him and the effect

of a plea bargain agreement; thus, he was found competent to stand trial.

An amended bill of information was issued August 30, 2023, which

reduced the charge against Defendant to manslaughter “without any intent to

cause death or great bodily harm” when he committed second degree battery

of the baby. The district attorney offered a plea bargain agreement wherein

if he pled guilty, his sentence, which was potentially 10-40 years under La.

R.S. 14:31(B), would be capped at 25 years.

Defendant pled guilty to manslaughter the day the amended bill was

filed, and the trial court completed the Boykin examination and determined

that his guilty plea was knowing, voluntary and without any coercion and the

waiver of rights acknowledged. See Boykin v. Alabama, 395 U.S. 238, 89 S.

Ct. 1709, 23 L. Ed. 2d 274 (1969). The guilty plea was accepted by the trial

court.
4

On December 19, 2023, a sentencing hearing was held, and

sentencing was deferred. On January 29, 2024, Defendant was sentenced to

25 years in prison at hard labor without benefit of probation, parole or

suspension of sentence.1 Defendant filed a motion to reconsider sentence

and raised several issues related to his inability to function above the level of

a 10- to 12-year-old, emphasizing that he had no intent to harm the infant,

had no past criminal history, had no disciplinary problems in the past, that he

lacked the mental capacity to be left alone and in charge of minor children,

and that because of his disability, he would be unable to defend himself in

prison or in most environments. For these reasons, he asked the court to

reconsider his sentence and impose a lesser one, perhaps for time served.

At the hearing on the motion to reconsider sentence, Dr. Sanderson

testified that he performs forensic evaluations of people of all ages with

intellectual disabilities and autism. According to his testimony, Defendant,

at the age of 21 when the crime occurred, had an IQ of 67. He noted that a

person’s functioning IQ remains relatively stable throughout his lifetime.

He stated that his opinion differed from the report that found Defendant

competent to stand trial and stated that he did not believe Defendant could

be rehabilitated to the point of understanding the procedure and effect, i.e.,

he was “irrestorably incompetent.” He also noted that he never evaluated

Defendant for sanity at the time of the offense because “if I believe that

someone doesn’t understand . . . that would be unethical to get them to

discuss their behavior and thoughts at that time.”

1
La. R.S. 14:31(B), manslaughter, states that the sentence is to be served without
benefit of probation or suspension but does not include parole in that limitation.
5

Defendant’s adoptive mother, Kay Johnson, testified that Defendant

arrived at her home as a foster child at the age of six and turned seven a

month later. He left her home in 2020, shortly before the death of the baby.

She testified that he was bullied as a child but would not fight back or

protect himself. She stated that she would never have left him to care for

any children unless he had supervision and that she believed Hobbs placed

him in a position for which he was not qualified. She also stated he was

always appropriate when around children in the family and wanted to please

everyone. She testified that when Defendant finishes serving his sentence,

she would take him home and keep him there.

Defendant’s sister, Linda Lyle, appeared at the hearing and testified

that Defendant was never cruel or violent to anyone and that he was quick to

help anyone in need, but that given his mental ability, she would never ask

him to sit with any children without supervision because he was not capable

of doing so. She stated that he cannot take care of his own hygiene and does

not have the knowledge necessary to take care of children. She also stated

that if her mother was unable to care for Defendant after he leaves prison, he

could live with her.

The trial court considered the motion and on September 17, 2024,

imposed a sentence of 20 years at hard labor with credit for time served.2 It

noted that although mental health services were not available through the

Department of Corrections at that time, if they became available, Defendant

2
The trial court’s decision did not state that the sentence was to be served without
benefit of probation or suspension of sentence as required by La. R.S. 14:31(B), and the
sentence was not recorded in the minutes as required by La. C. Cr. P. art 871. There is no
commitment order in the record.
6

should receive them. The court specifically gave him notice of the right to

appeal and to pursue post-conviction relief. This appeal followed.

DISCUSSION

Guilty Plea

Defendant argues that the trial court erred when it found his guilty

plea was knowing and voluntary. He contends that his mental disability

makes him susceptible to manipulation, and he cannot understand the

abstract concepts that define the fundamental constitutional rights to which

he was entitled as a criminal defendant. Further, he argues that it was

undisputed that he lacked the capacity to assist in his defense until the sanity

commission found that he could be tried. Dr. Sanderson testified that his

disability is permanent and that he believed Defendant to be “irrestorable.”

For these reasons, Defendant contends that the trial court erred when it

accepted his guilty plea and considered he entered it knowingly, intelligently

and freely. He asserts that the trial court should reverse the conviction,

vacate the sentence and remand for further proceedings.

The state argues that an unqualified plea of guilty waives all

nonjurisdictional defects and precludes their review by appeal or post-

conviction relief. It contends that the only reviewable issues in this case are

the voluntariness of the plea and purported excessiveness of the sentence. In

this case, Defendant pled guilty after he was deemed to have regained

capacity and after a judicial determination of competency. The state argues

that the colloquy met all requirements of the Louisiana Code of Criminal

Procedure and Boykin, supra, and reflects that he understood the trial court’s

questions, the nature of the plea and penalty and was sufficiently informed

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by counsel. Further, he voluntarily waived all rights associated with

accepting the plea.

A guilty plea is invalid when the defendant is induced to plead guilty

by a plea agreement or by what the defendant reasonably believes is a plea

agreement and the terms of the bargain are not satisfied. State v. Knight,

54,236 (La. App. 2 Cir. 3/9/22), 335 So. 3d 502, writ denied, 22-00764 (La.

9/7/22), 345 So. 3d 426, citing State v. Hall, 637 So. 2d 645 (La. App. 2 Cir.

1994), writ denied, 94-1373 (La. 9/30/94), 642 So. 2d 868.

Where a defendant’s misunderstanding is not induced by or attributed

to representations made by the district attorney or the trial court, there are no

grounds for withdrawal of the plea. State v. Hall, supra. In the absence of

fraud, intimidation or incompetence of counsel, a guilty plea is not made less

voluntary or less informed by the considered advice of counsel. Id. A

misunderstanding between counsel and defendant does not have the same

implication as a breached plea bargain and does not render the guilty plea

not “free and voluntary,” nor is dissatisfaction with the sentence or expected

sentence after sentencing sufficient to invalidate a guilty plea if the plea was

entered into on advice of competent counsel and there is no indication that a

plea agreement had been broken. State v. Banks, 49,767 (La. App. 2 Cir.

4/15/15), 163 So. 3d 895, citing State v. Senterfitt, 00-415 (La. App. 3 Cir.

9/27/00), 771 So. 2d 198, writ denied, 00-2980 (La. 9/28/01), 798 So. 2d

107.

The due process clause of the Fourteenth Amendment protects an

individual’s right not to proceed to trial while legally incompetent. State v.

Taylor, 49,467 (La. App. 2 Cir. 1/14/15), 161 So. 3d 963, citing State v.

Odenbaugh, 10-0268 (La. 12/06/11), 82 So. 3d 215, cert. denied, 568 U.S.
8

829, 133 S. Ct. 410, 184 L. Ed. 2d 51 (2012). Mental incapacity to proceed

exists when, as a result of mental disease or defect, a defendant presently

lacks the capacity to understand the proceedings against him or to assist in

his defense. La. C. Cr. P. art. 641. Louisiana law presumes a defendant’s

sanity. La. R.S. 15:432; State v. Holmes, 06-2988 (La.12/2/08), 5 So. 3d 42,

cert. denied, 558 U.S. 932, 130 S. Ct. 70, 175 L. Ed. 2d 233 (2009).

Therefore, an accused bears the burden of proving by a preponderance of the

evidence that he lacks the capacity to stand trial. Id. Although a trial court

may receive expert medical testimony on the issue of a defendant’s

competency to proceed to trial, the ultimate decision of capacity rests with

the trial court. La. C. Cr. P. art. 647; State v. Holmes, supra. A reviewing

court owes the trial court’s determinations as to the defendant’s competency

great weight, and the trial court’s ruling thereon will not be disturbed on

appeal absent an abuse of discretion. State v. Anderson, 06-2987 (La.

9/9/08), 996 So. 2d 973, cert. denied, 556 U.S. 1165, 129 S. Ct. 1906, 173 L.

Ed. 2d 1057 (2009); Taylor, supra.

In this case, Defendant was deemed competent to stand trial and was

presented with a plea agreement which greatly reduced his exposure to

incarceration from a potential 40-year sentence to one capped at 25 years,

which was then reduced to 20 years. The trial court performed the Boykin

colloquy and determined that he had not been coerced by anyone to accept

the plea bargain agreement. He had counsel present to assist him on the day

he pled guilty, and the trial court determined that his guilty plea was

knowingly and voluntarily given. We give great weight to the trial court’s

decision that Defendant was competent at the time of the plea, and we find

9

no abuse of discretion in the acceptance of that guilty plea. For the

foregoing reasons, this assignment of error is without merit.

Excessive Sentence

Defendant argues his sentence is unconstitutionally excessive under

the circumstances of this case and that it serves no purpose and shocks the

conscience considering he had no intent to cause death or great bodily harm,

he has the mental capacity of a 10- to 12-year-old and he is unlikely to

engage in any future criminal conduct. He contends that the record on

appeal does not support the harsh sentence and the trial court failed to

establish that he deserved such a severe sentence. Given the fact that he

lacked the intent to cause death or great bodily injury, coupled with his

disability, Defendant argues the current sentence serves no purpose and is

merely punitive. He seeks constitutional review of his sentence on the basis

that 20 years at hard labor is excessive under the circumstances of this case

and is nothing more than a purposeless and needless imposition of pain and

suffering. For these reasons, he asserts his sentence should be vacated and

this matter remanded for resentencing.

The state argues that the manslaughter guilty plea was entered into

with an agreed-upon 25-year sentencing cap and that after all the hearings

held on sentencing and resentencing, the trial court’s sentence was informed

and measured with all relevant considerations. It argues the sentence was

not an abuse of the trial court’s discretion nor was it disproportionate to the

harsh crime committed. For these reasons the state contends that the

conviction by guilty plea and the sentence should be affirmed.

Appellate review of sentences for excessiveness is a two-pronged

inquiry. State v. Benavides, 54,265 (La. App. 2 Cir. 3/9/22), 336 So. 3d 114.
10

First, the record must show that the court complied with La. C. Cr. P.

art. 894.1. The court need not list every aggravating or mitigating factor so

long as the record reflects that it adequately considered the guidelines. State

v. Benavides, supra. When the record shows an adequate factual basis for

the sentence imposed, remand is unnecessary even in the absence of full

compliance with the article. Id. No sentencing factor is accorded greater

weight by statute than any other factor. Id. See also State v. Marshall,

55,470 (La. App. 2 Cir. 1/10/24), 380 So. 3d 140.

A sentence violates La. Const. art. 1, § 20, if it is grossly out of

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

purposeless and needless imposition of pain and suffering. State v.

Marshall, supra. A sentence is deemed grossly disproportionate if, when the

crime and punishment are viewed in light of the harm done to society, it

shocks the sense of justice or makes no reasonable contribution to acceptable

penal goals. Id. The sentencing court has wide discretion in imposing a

sentence within statutory limits, and such a sentence will not be set aside as

excessive in the absence of manifest abuse of that discretion. Id. The issue

is not whether some other sentence might have been more appropriate but

whether the district court abused its discretion. Id.

This court has repeatedly stated that where a specific sentence or a

sentencing cap has been agreed upon as a consequence of a plea bargain, a

sentence imposed within the agreed range cannot be appealed as excessive if

that right has not been specifically reserved; however, we also have stated

that when the right to appeal has been mentioned by the trial court during the

plea colloquy, even though there is an agreed sentence or sentencing cap, the

11

defendant’s sentence may be reviewed. State v. Taylor, 44,205 (La. App.

2 Cir. 5/13/09), 12 So. 3d 482.

In this case, when the trial court reconsidered the original sentence

imposed, it reduced Defendant’s sentence from 25 years to 20 years at hard

labor, within the parameters of the plea bargain agreement. Further, it

specifically granted this Defendant leave to appeal the decision and file for

any post-conviction relief. Therefore, the reconsidered sentence is

appropriately before this court, but we find no abuse of discretion in the trial

court’s imposed sentence. For these reasons, this assignment of error is

without merit.

Right to Appeal Ineffective
Assistance of Counsel on Direct Appeal

Defendant raised the issue of ineffective assistance of counsel on

appeal because his trial attorney failed to attempt to suppress his confession,

which was given six weeks after the baby’s death. He argues that he lacked

the mental capacity to understand the consequences of signing his waiver of

rights and of admission of the facts. Further, his attorney did not ask for a

sanity commission report regarding his mental capacity until almost two

years after the confession and after the trial court had already determined the

confession to be voluntary. When it was determined that he could not

participate in his own defense and did not understand the consequences of

his earlier confession, the attorney did not file a motion to suppress the

confession but counseled him to change his plea from not guilty to guilty of

the lesser charge of manslaughter. Thus, he argues, he received ineffective

assistance of counsel that violated his constitutional rights. He contends that

the legal and factual issues related to this claim are sufficiently developed in

12

the appeal and that justice and judicial economy demand that this issue be

addressed on direct appeal rather than through post-conviction relief.

The state argues that the issue of ineffective assistance of counsel for

failing to file a pretrial motion to suppress the confession is not a reviewable

issue. It contends that Defendant entered an unqualified guilty plea to the

amended charge of manslaughter and did not plead guilty under North

Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).

Claims of ineffective assistance of counsel are more properly raised in

an application for post-conviction relief in the trial court because this

provides the opportunity for a full evidentiary hearing under La. C. Cr. P.

art. 930. State v. Galloway, 54,704 (La. App. 2 Cir. 2/1/23), 354 So. 3d 919,

writ denied, 23-00366 (La. 5/31/23), 361 So. 3d 467.

Both the Louisiana and federal constitutions guarantee a criminal

defendant’s right to the effective assistance of counsel. U.S. Const. art. VI;

La. Const. art. 1, § 13; Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792,

9 L. Ed. 2d 799 (1963); State v. Brooks, 94-2438 (La. 10/16/95), 661 So. 2d

1333; State v. Bayles, 53,696 (La. App. 2 Cir. 11/17/21), 329 So. 3d 1149;

State v. Turner, 52,510 (La. App. 2 Cir. 4/10/19), 267 So. 3d 1202, writ

denied, 19-00873 (La. 9/24/19), 279 So. 3d 386; State v. Galloway, supra.

Under the standard for ineffective assistance of counsel set out in

Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674

(1984), adopted by the Louisiana Supreme Court in State v. Washington,

491 So. 2d 1337 (La. 1986), a reviewing court must reverse a conviction if

the defendant establishes that counsel’s performance fell below an objective

standard of reasonableness under prevailing professional norms, and

counsel’s inadequate performance prejudiced the defendant to the extent that
13

the trial was rendered unfair and the verdict suspect. State v. Ball, 19-01674

(La. 11/24/20), 305 So. 3d 90; State v. McGee, 18-1052 (La. 2/25/19),

264 So. 3d 445.

In a claim of ineffective assistance of counsel, the defendant must

show that counsel’s performance was deficient, committing errors so serious

that he or she was not functioning as the “counsel” guaranteed by the Sixth

Amendment and evaluated from counsel’s perspective at the time of the

occurrence. Strickland v. Washington, supra; State v. Paben, 43,415 (La.

App. 2 Cir. 8/13/08), 990 So. 2d 123.

Diminished mental or intellectual capacity does not in and of itself

render a defendant incapable of a knowing and voluntary waiver of his

rights. State v. Tart, 93-0772 (La. 2/9/96), 672 So. 2d 116, cert. denied,

519 U.S. 934, 117 S. Ct. 310, 136 L. Ed. 2d 227 (1996); State v. Taylor,

supra. However, in the face of such deficiencies, the state must rebut the

allegations despite the fact that the defendant ordinarily bears the burden of

proving mental illness, but the critical factor is still whether the defendant

was able to understand the rights explained to him and voluntarily give a

statement. Taylor, supra, citing Tart, supra. Any mental incapacity is an

important factor to consider in deciding the voluntariness of a confession.

Taylor, supra, citing State v. King, 41,084 (La. App. 2d Cir. 6/30/06),

935 So. 2d 815, writ denied, 06-1803 (La. 2/16/07), 949 So. 2d 411.

Voluntariness is determined on a case-by-case basis, under a totality-of-the

circumstances standard. Taylor, supra, citing Tart, supra; State v. Manning,

03-1982 (La. 10/19/04), 885 So. 2d 1044, cert denied, 544 U.S. 967, 125 S.

Ct. 1745, 161 L. Ed. 2d 612 (2005).

14

This court declines to address the issue of ineffective assistance of

counsel on direct appeal. We do not have the information needed to

determine why counsel chose not to file a motion to suppress the confession

or what the trial strategy was. This matter is more appropriately addressed

by filing an application for post-conviction relief in the trial court so that an

evidentiary hearing can be held and Defendant’s attorney can explain why

no motion to suppress the confession was filed despite the sanity

commission’s finding that he was incompetent more than two years after the

criminal act and that the psychiatrist’s opinion was that he was irrestorably

incompetent. For this reason, the assignment of error is without merit.

Defendant is instructed to file the application pursuant to La. C. Cr. P.

art. 926.

Error Patent

We note that there is an error patent in the record. The trial court

failed to correct the minutes after the motion to reconsider sentence was

granted and same should be amended to state that Defendant’s sentence is to

be served without benefit of probation or suspension of sentence as provided

in La. R.S. 14:31(B). That statute is self-activating and makes the denial of

benefits self-operative. State v. Williams, 00-1725 (La. 11/28/01),

800 So. 2d 790; State v. Neely, 35,993 (La. App. 2 Cir. 5/8/02), 818 So. 2d

829.

CONCLUSION

For the foregoing reasons, the conviction and sentence of Don Lee

Johnson are affirmed. Defendant may seek further relief in post-conviction

proceedings.

AFFIRMED.
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