State of Louisiana v. Dustin K. Runyon

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

06-823

STATE OF LOUISIANA

VERSUS

DUSTIN K. RUNYON

************

APPEAL FROM THE
SEVENTH JUDICIAL DISTRICT COURT,
PARISH OF CATAHOULA, NOS. 03-0736 and 03-0817,
HONORABLE LEO BOOTHE, DISTRICT JUDGE

************

MICHAEL G. SULLIVAN
JUDGE

************

Court composed of Oswald A. Decuir, Jimmie C. Peters, and Michael G. Sullivan,
Judges.

AFFIRMED.

John F. Johnson
District Attorney
Bradley R. Burget
Assistant District Attorney
4001 Carter Street, Suite 9
Vidalia, Louisiana 71373
(318) 336-5526
Counsel for:
State of Louisiana

G. Paul Marx
Louisiana Appellate Project
Post Office Box 82389
Lafayette, Louisiana 70598-2389
(337) 237-2537
Counsel for Defendant/Appellant:
Dustin K. Runyon

SULLIVAN, Judge.

Dustin Runyon was convicted of manslaughter and attempted second degree

murder. He was sentenced to forty years at hard labor for his manslaughter

conviction and forty years at hard labor with ten years of the sentence being without

the benefit of parole, probation, or suspension of sentence for his attempted second

degree murder conviction. The two sentences were ordered to run concurrently.

On appeal, Defendant’s conviction for manslaughter was upheld, but his

conviction for attempted second degree murder was reversed on the basis that the

evidence supported only a verdict of aggravated battery. Therefore, a conviction for

the lesser offense of aggravated battery was entered, and the matter was remanded for

resentencing on that conviction. Defendant’s sentence of forty years, the maximum,

on his conviction for manslaughter was found to be excessive under the facts of this

case, and the matter was remanded for resentencing on that conviction as well. State

v. Runyon, 05-36, 05-104 (La.App. 3 Cir. 11/2/05), 916 So.2d 407, writ denied, 06-

1348 (La. 9/1/06), 936 So.2d 207.

On remand, the trial court sentenced Defendant to ten years for his aggravated

battery conviction and thirty years for his manslaughter conviction and ordered that

the sentences run consecutively. Defendant was given thirty-six months to file a

motion to reconsider sentence, but no motion to reconsider sentence was filed.

Defendant contends that the trial court erred in imposing the same sentence on

remand of the case in direct violation of this court’s order and that his two sentences

are excessive because they total forty years.

Facts

The facts are taken from this court’s opinion in the original appeal:

On the night of March 8, 2003, Defendant Runyon, his sister,
Jamie Bailey, her boyfriend, Defendant McDonald, and friends William

Meredith and Keith Warren went fishing at Larto Lake in Catahoula
Parish. After they were there for about three and one-half to four hours,
the victims, Mr. Dulworth and Mr. Wiley, and their friend, Amy Denny,
arrived. An altercation occurred between the two parties, which resulted
in Mr. Wiley’s death and Mr. Dulworth being seriously injured.

Defendants Runyon and McDonald, Mr. Warren, Mr. Meredith,
and Ms. Bailey presented themselves to the Catahoula Sheriff’s
Department the evening of March 10, 2003, after learning Mr. Wiley
died as a result of injuries inflicted during the altercation. They all made
statements to the police. Defendant Runyon’s and Defendant
McDonald’s audio statements were played for the jury during the trial.
Mr. Dulworth, Ms. Denny, and Defendant Runyon testified at trial about
the events that transpired that night upon their arrival at Larto Lake.

Mr. Dulworth testified that, earlier in the day, he, Ms. Denny, her
brother Barrett, and Mr. Wiley went to a camp at Larto Lake. In the
evening, they left the camp and went to Noble’s Bar. Mr. Dulworth
testified that he consumed alcohol at the camp, but not at the bar
because he was only eighteen years old at the time. He also testified that
Mr. Wiley consumed alcohol at the camp and at the bar and was
intoxicated. The group of four left the bar around 9:00 p.m. Barrett
Denny was dropped off at home. The other three, who were in Ms.
Denny’s car, picked up Mr. Wiley’s truck, a jacked-up 4x4 Chevy
Blazer, to go mud riding. Mr. Wiley drove to the dam near the bridge
“where all the kids go.” Mr. Dulworth testified that upon their arrival,
they saw a couple of vehicles down by a fire. Thinking it might be
someone they knew, Mr. Wiley drove down the hill and turned around
in the water. Mr. Dulworth testified that Mr. Wiley “cut a little donut”
in the water; Ms. Denny testified that Mr. Wiley spun his tires. Ms.
Bailey and Defendant McDonald were fishing nearby. Mr. Wiley pulled
up to the couple and asked if they were catching any fish; he was not
belligerent, mean, or condescending. While Mr. Wiley was talking to
the couple, Defendant Runyon, Mr. Meredith, and Mr. Warren, who
were fishing on the other side of the lake, came over to where Mr. Wiley
had stopped.

According to Mr. Dulworth, one of these three men was worried
that Mr. Wiley might have run over Ms. Bailey and/or Defendant
McDonald, and “a little argument” arose. Mr. Dulworth testified that he
did not recall Mr. Wiley’s response to the bickering because he was not
paying close attention to what was going on, but he testified he would
have noticed if Mr. Wiley had gotten loud. Mr. Dulworth testified that
one of the three guys told them to go to the other side of the road and
that he understood the comment to mean they wanted to fight.

Ms. Denny testified she was sitting between Mr. Wiley and Mr.
Dulworth and Mr. Wiley did not get mad, scream, or curse at the guys.

2

One of the three guys repeatedly told Mr. Wiley that he almost ran over
Ms. Bailey and Defendant McDonald. According to Ms. Denny, Mr.
Wiley was apologetic and said he did not mean to scare the couple. She
identified Defendant Runyon as the most vocal of the group and testified
that he told them they could handle things across the bridge. According
to Ms. Denny, Mr. Wiley agreed to go to the other side of the bridge, but
“he kind of laughed . . . like it was a joke.” Mr. Wiley drove down the
road, turned around, drove back, then pulled his truck off on the other
side of the road.

Mr. Dulworth testified that, as they were sitting there, the others
told them to come back. Ms. Denny testified that, when they got to the
location where they were told to go, no one was there, so they went back
up to the bridge and stopped near the back of Defendants’ trucks. Mr.
Wiley pulled his truck in front of their trucks and got out; Mr. Dulworth
followed. Mr. Wiley and Mr. Dulworth then walked over to the
Defendants and their friends. Mr. Wiley and the others argued back and
forth, but according to Mr. Dulworth, Mr. Wiley was not being loud or
obnoxious. Mr. Dulworth returned to the cab of the truck to get a
cigarette from Ms. Denny. When Mr. Dulworth walked back to the
others, Mr. Wiley was walking toward his truck saying, “We’re
leaving.” As Mr. Dulworth started climbing back in the truck, he heard
one of the guys tell Mr. Wiley to “suck my dick.” Mr. Wiley then
climbed back out of the truck and followed the guys down the hill. As
Mr. Wiley was walking down the hill, Mr. Dulworth heard him say “I
have permission to whip your ass” in response to the comment.

Ms. Denny testified that the conversation got louder when she and
Mr. Dulworth went to the truck to get a cigarette. As she was climbing
back in the truck, Mr. Dulworth told her to call her cousin Casey.
According to Ms. Denny, Mr. Dulworth said this because “there was
five of them—and Daniel and Willis.” Mr. Dulworth and Ms. Denny
testified that they did not hear anyone ask Mr. Wiley to leave them alone
or that they be allowed to leave.

According to Mr. Dulworth, Mr. Wiley had no gun, knife, pipe,
or object of any kind with him. He saw Mr. Wiley and Mr. Warren, the
guy who made the “suck” comment, fighting down by the water. Mr.
Dulworth saw Mr. Wiley push Mr. Warren, but he does not know who
made the initial contact. According to Mr. Dulworth, Defendant
Runyon ran toward Mr. Wiley, picked up what appeared to be a log, and
hit Mr. Wiley “across the back, or head.” Mr. Dulworth then tackled
Defendant Runyon; they fell into the fire and rolled off of it. Mr.
Dulworth testified he stayed on top of Defendant Runyon, fighting him,
to keep him on the ground. He does not remember if he hit Defendant
Runyon. He also testified that he had no knife or weapon in his hand
and that he never reached for anything while he fought with Defendant
Runyon.

3

While on top of Defendant Runyon, Mr. Dulworth felt something
repeatedly hitting him in the back and began to feel weak. He got off
Defendant Runyon. While he was lying on the ground, Mr. Meredith,
who had his hand out, came up and told him to stay on the ground or he
would get cut. Mr. Dulworth testified that he saw something in Mr.
Meredith’s hand, although he said it could have been his finger. Later,
he testified that he did not know if Mr. Meredith had anything in his
hand. In his statement to police, Mr. Dulworth said he saw a knife in
Mr. Meredith’s hand.

Mr. Dulworth testified he then saw Mr. Warren running out of the
water from near Mr. Wiley. Defendants Runyon and McDonald and
their friends ran to their trucks and left. As they were leaving, Mr.
Dulworth heard Mr. Wiley hit the water. He made his way over to him
but could not do anything for him because he himself was “passing in
and out.” Mr. Dulworth testified he told Ms. Denny to call for help.

Mr. Dulworth does not know who stabbed him or Mr. Wiley. At
trial, he confirmed that, in his statements to police, he suggested that the
guy he was wrestling, Defendant Runyon, was not the one who stabbed
Mr. Wiley because he had tackled him. A knife found on the scene was
shown to Mr. Dulworth at trial, but he did not recognize it. The knife
was sent to a laboratory for testing; it was not analyzed before trial due
to the facility’s backlog.

Mr. Dulworth knew his step-brother for about four years before
his death. He testified that he did not know him to be quick to react or
to fight when drunk. According to Mr. Dulworth, Mr. Wiley was funny
and laughing when drunk. Ms. Denny, who grew up with Mr. Wiley,
described him as sweet, lovable, like a “big teddy bear.” She, too, had
never known him to get in fights or cause trouble, and she testified that
his behavior did not change when he drank. Other witnesses also
testified that Mr. Wiley was a gentle giant and not a fighter or a bully.
However, none of these witnesses testified that they had been around
him when he was intoxicated.

Dr. Karen Ross, an assistant coroner and forensic pathologist with
the Jefferson Parish Coroner’s Office, performed an autopsy on Mr.
Wiley. According to Dr. Ross, Mr. Wiley was 6'1" and weighed 312
pounds. The cause of his death was blood loss which resulted from
seven sharp force injuries inflicted on him. He had one wound on the
back of his left upper arm, which was three and one-quarter inches long
and five inches deep. Another wound on the back of his arm was
three-quarter by one-half inch long and one and three-quarter inches
deep. A cut on his back was two and three-quarter inches long and one
and three-quarter inches deep. A stab wound on his face and chin was
one inch long; it went through his lip, the periosteum (the soft tissue
lining the jaw), the floor of the mouth, then entered his “upper chest,

4

lower neck region.” Dr. Ross testified that significant force was
required to penetrate through the periosteum of the jaw. Mr. Wiley had
a wound on his right upper neck, which was five inches deep that went
through the muscles of the right side of his neck and transected some of
the smaller branches of the subclavian artery and the left subclavian
artery and vein. According to Dr. Ross, this wound also took a lot of
force to inflict.

Mr. Wiley also had a cut on his head, which Dr. Ross testified
differs from a stab wound in that it is longer than it is deep. When asked
whether she could determine what caused this cut, Dr. Ross testified it
was “a single edged instrument such as a knife.” However, she
acknowledged during questioning by the State that it was “possible” that
this wound could have been caused by the “sharp edge” of a log.

Dr. Clinton McGehee, the surgeon who cared for Mr. Dulworth,
testified Mr. Dulworth had four stab wounds to his back, three to the left
of his midline and one to the right. The three wounds on his left side
were on his upper torso, in the area just above his belt, and close to the
spine. The wound on the right side was four inches or more on the right
side of the spine.

As a result of his injuries, Mr. Dulworth’s left lung collapsed and
blood collected in the left side of his chest. He also had a penetrating
injury to his spleen which was one of the deepest wounds Dr. McGehee
has ever seen. Because the skin on the back is fairly thick and Mr.
Dulworth is a big, muscular guy, Dr. McGehee felt this particular wound
required a great deal of force to inflict. The other wounds on the left
side of his back were smaller and not large enough for Dr. McGehee to
determine the depth. Although Dr. McGehee acknowledged it was
possible that one stab wound caused both of these smaller injuries, he
felt they were more likely caused by different wounds. He testified there
was no way to make a definitive determination. The wound on the right
side of Mr. Dulworth’s back did not result in any intra thoracic injuries
or intra abdominal injuries; therefore, Dr. McGehee felt that wound did
not penetrate all the way into the chest cavity. Both the injury that
caused the collapsed lung and the one that pierced Mr. Dulworth’s
spleen were potentially fatal.

Dr. McGehee was asked hypothetically if Mr. Dulworth had
someone pinned face down on the ground and that person had a knife in
their right hand, whether the person could reach around and inflict the
wound on Mr. Dulworth’s right side. Dr. McGehee did not think the
person could inflict the wounds on either side because Mr. Dulworth is
a “big guy,” and he did not think the person’s arm could go that far
back. In a demonstration with counsel, Dr. McGehee indicated that it
might be possible if the person was “really cooperative.”

5

Runyon, 916 So.2d at 412-16.
Sentence

Did the Trial Court violate this Court’s Order?

Defendant urges that the trial court imposed the same sentence on him in

violation of this court’s order. He claims that the trial court rejected this court’s

holding that co-defendant McDonald was the instigator in the fight, rendering this

court’s opinion “moot.” In support of this claim, he refers to this court’s opinion

where we stated:

Defendant Runyon did initiate the violence into this situation;
however, he played a limited role in Mr. Wiley’s death. He inflicted the
wound on Mr. Wiley’s head, but Defendant McDonald, unbeknownst to
Defendant Runyon, subsequently inflicted six stab wounds. All seven
wounds contributed to Mr. Wiley’s death, but the nature and severity of
the wounds inflicted by Defendant McDonald would have contributed
more to Mr. Wiley’s demise than the single wound inflicted by
Defendant Runyon. Defendant Runyon’s involvement pales in
comparison to that of Defendant McDonald. For these reasons, we find
Defendant Runyon is not one of our worst offenders, and the sentence
imposed on him is excessive. Accordingly, we vacate his sentence and
remand the case for re-sentencing.

Id. at 424. Contrary to Defendant’s contention, this passage reveals that he initiated

the violence, but then played a limited role in the death of Mr. Wiley.1

1
We observe that Defendant may erroneously be referring to that portion of our opinion
where co-defendant McDonald’s claim that he acted in self-defense in stabbing Mr. Wiley and
Mr. Dulworth was addressed:

Furthermore, a rational trier of fact could have also determined that
Defendant McDonald was the aggressor in stabbing Mr. Dulworth and that Mr. Wiley
was legitimately intervening in this attack on his step-brother. An aggressor who
provokes the situation which ultimately places him in danger is precluded from
claiming the right to self-defense, unless he withdraws from the situation in a manner
that evidences his intent to terminate the conflict. La.R.S. 14:21. There is no
evidence that Defendant McDonald withdrew from his confrontation with Mr. Wiley
until he had inflicted all of his fatal wounds. There was evidence, however, that
Defendant McDonald could not have reasonably believed his life was in imminent
danger, when he stabbed Mr. Dulworth and Mr. Wiley.

State v. Runyon, 916 So.2d at 426.

6

Defendant claims that the trial court erred in resentencing him to the same term

because this court previously held his forty-year sentence was excessive. He

acknowledges that the trial court reduced his manslaughter sentence by ten years but

claims that the imposition of consecutive sentences violates this court’s order because

it is “a fiction without any substantial difference and amounts to a rhetorical change

in the result of the trial court without any substance or affect [sic].”

In Defendant’s first appeal, his forty-year sentence for manslaughter was found

to be excessive and resentencing for that conviction was ordered. Defendant was

subsequently resentenced to thirty years at hard labor for manslaughter which sentence

was to run consecutively to the ten-year sentence imposed for the conviction of

aggravated battery. While the “net effect” of the sentences on the two charges is forty

years, the trial court did reduce the manslaughter sentence by ten years, which

complies with this court’s order.

Further, there was no violation of North Carolina v. Pearce, 395 U.S. 711, 89

S.Ct. 2072 (1969), which prohibits a harsher sentence being imposed after a defendant

successfully has his original conviction reversed on appeal. In State v. Freeman, 577

So.2d 216 (La.App. 1 Cir.), writ denied, 580 So.2d 668 (La.1991), the defendant was

originally sentenced as a habitual offender to concurrent sentences of twenty-four

years at hard labor for simple burglary and twenty years at hard labor for theft. His

habitual offender adjudication was later vacated, and he was subsequently resentenced

to consecutive sentences of twelve years at hard labor for simple burglary and ten

years at hard labor for theft. The first circuit found no Pearce violation, stating:

Initially, we note that there is no Pearce violation because the
defendant did not receive increased sentences upon resentencing.
Although the trial court ordered the instant sentences to run
consecutively, rather than concurrently (as it had done at the original

7

sentencing hearing), there is no indication that the trial court was being
vindictive. Instead, by imposing sentences totaling twenty-two years at
hard labor, the trial court was obviously trying to come as close to its
original sentencing scheme (a total of twenty-four years at hard labor) as
possible. (FN1)

__________________________

¹As the United States Supreme Court has recognized, the Pearce presumption is restricted to
circumstances “in which there is a ‘reasonable likelihood’ . . . that the increase in sentence is the
product of actual vindictiveness on the part of the sentencing authority.” Alabama v. Smith, 490 U.S.
794, 109 S.Ct. 2201, 2205, 104 L.Ed.2d 865 (1989) (citations omitted). W here the court “merely
impose[s] the same sentence for the same conduct,” the sentence has not been increased and the Pearce
presumption is inapplicable. United States v. Cataldo, 832 F.2d 869, 875 (5 th Cir.1987), cert. denied,
485 U.S. 1022, 108 S.Ct. 1577, 99 L.Ed.2d 892 (1988).

Id. at 218-19.

We find no merit in Defendant’s argument that the trial court violated this

court’s order.

Excessive Sentence

Defendant urges that he was guilty of two counts of aggravated battery at worst

and that the trial court’s imposition of a sentence which equals the maximum sentence

of forty years for manslaughter is excessive. He further claims:

The failure to abide by the terms of the Court of Appeal ruling in
this case is reversible error, particularly where the defendant shows
remorse and rehabilitation and where the Trial Court reiterated his
original sentencing considerations despite the Court of Appeal holding
that those did not justify a 40 year term of imprisonment.

Defendant is obviously challenging the length of his sentences, as well as their

consecutive nature. See State v. Dixon, 04-1019 (La.App. 5 Cir. 3/15/05), 900 So.2d

929.

Louisiana Code of Criminal Procedure Article 881.1(E) provides:

Failure to make or file a motion to reconsider sentence or to
include a specific ground upon which a motion to reconsider sentence
may be based, including a claim of excessiveness, shall preclude the state
or the defendant from raising an objection to the sentence or from urging
any ground not raised in the motion on appeal or review.

8

The record does not contain a written motion to reconsider sentence and does not

indicate that Defendant orally objected to his sentence at the sentencing hearing.

However, the record does reflect that after being sentenced Defendant stated, “Note

my appeal . . . I will file an appeal on this.” This statement is insufficient to constitute

an oral motion to reconsider sentence. See State v. Green, 94-617 (La.App. 3 Cir.

12/7/94), 647 So.2d 536, and State v. Sabathe, 93-860 (La.App. 5 Cir. 2/23/94), 633

So.2d 761. Accordingly, Defendant is precluded from raising any objection to his

sentences on appeal. La.Code Crim.P. art. 881.1(E). However, this court has

reviewed sentences for bare excessiveness in the interest of justice when no motion

to reconsider was filed. See State v. Jeansonne, 06-263 (La.App. 3 Cir. 5/31/06), 931

So.2d 1258, 1262-63, where this court set forth the standard to be employed in

determining whether a sentence is excessive:

[Louisiana Constitution Article I], § 20 guarantees
that, “[n]o law shall subject any person to cruel or unusual
punishment.” To constitute an excessive sentence, the
reviewing court must find the penalty so grossly
disproportionate to the severity of the crime as to shock our
sense of justice or that the sentence makes no measurable
contribution to acceptable penal goals and is, therefore,
nothing more than a needless imposition of pain and
suffering. State v. Campbell, 404 So.2d 1205 (La.1981).
The trial court has wide discretion in the imposition of
sentence within the statutory limits and such sentence shall
not be set aside as excessive absent a manifest abuse of
discretion. State v. Etienne, 99-192 (La.App. 3 Cir.
10/13/99); 746 So.2d 124, writ denied, 00-0165
(La.6/30/00); 765 So.2d 1067. The relevant question is
whether the trial court abused its broad sentencing
discretion, not whether another sentence might have been
more appropriate. State v. Cook, 95-2784 (La.5/31/96); 674
So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136
L.Ed.2d 539 (1996).

State v. Barling, 00-1241, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d
1035, 1042-43, writ denied, 01-838 (La. 2/1/02), 808 So.2d 331.

9

In order to decide whether a sentence shocks the sense of justice
or makes no meaningful contribution to acceptable penal goals, we have
held:

[A]n appellate court may consider several factors including
the nature of the offense, the circumstances of the offender,
the legislative purpose behind the punishment and a
comparison of the sentences imposed for similar crimes.
State v. Smith, 99-0606 (La.7/6/00); 766 So.2d 501. While
a comparison of sentences imposed for similar crimes may
provide some insight, “it is well settled that sentences must
be individualized to the particular offender and to the
particular offense committed.” State v. Batiste, 594 So.2d
1 (La.App. 1 Cir. 1991). Additionally, it is within the
purview of the trial court to particularize the sentence
because the trial judge “remains in the best position to
assess the aggravating and mitigating circumstances
presented by each case.” State v. Cook, 95-2784
(La.5/31/96); 674 So.2d 957, 958.

State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789,
writ denied, 03-0562 (La. 5/30/03), 845 So.2d 1061.

At the resentencing proceeding, the trial court stated the following reasons in

support of the sentences it imposed:

All right. As indicated at the previous sentencing, there are several
factors involving Mr. Runyon. Mr. Runyon was the one that initiated the
matter. He struck Mr. Wiley, the victim, with some sort of weapon. He
also was involved in attacking the young Dulworth boy from behind.
None of the victims had any weapons or any deadly weapons. There are
several egregious factors which I had recited at the previous sentencing
which I will incorporate in this on both matters.

Defendant then read a letter to the court informing the court of his progress

during confinement and stated that he never wanted any of this to happen to his family

or any of the families involved. Thereafter, the trial court stated:

All right. That’s very commendable. I think the statements and concerns
you related probably didn’t dwell enough or reflect on what happened to
the Wiley family and what happened to the victim in this matter.

....

10

And I think more regrets and remorse should be shown; they’re the ones
that suffered.

....

And I know your family also has some problems. I’m sure the Wileys
would swap places with you right now. Let him be sitting there and you
be where he is in a heartbeat. But what you related to the Court during
your statement is commendable. And you’re headed in the right
direction.

The trial court also incorporated the reasons provided at the original sentencing

as reasons for the sentences imposed at resentencing. At the original sentencing, the

trial court stated:

Mr. Runyon, there’s several factors involved. We are directing our
attention now to the Manslaughter charge. There were several
aggravating, very egregious circumstances here. Number one, in regard
to you, you’re the one that initiated the violence. You struck the victim
with some sort of weapon, purportedly a log. That was the first stage in
Daniel Wiley’s eventual death, and the demise of that young man. You
showed no remorse. You, also, attacked the young Dulworth boy from
behind, or at least --

....

THE COURT:

And the wounds found and testified to by the expert witnesses who
did the autopsy were consistent with your story. And this was a young
man barely of the age of majority. A young, naive boy who was
attempting to protect his brother. And you viciously attacked him. Of
course, he was just trying to remove you when you struck the victim,
Daniel Wiley, with a device that we’ve already mentioned. He had no
weapon, as it turned out. He had nothing. There were no deadly
weapons involved. You initiated the deadly weapons into this particular
scenario. And you did it on both victims. And these are several of the
factors that are involved in your sentence.

Manslaughter

On the manslaughter conviction, Defendant faced a sentence of no more than

forty years at hard labor. La.R.S. 14:31. A thirty-three-year sentence for manslaughter

has been held not to be excessive for a first-offender defendant who was a principal

11

to a drive-by shooting. State v. Bowman, 95-667 (La.App. 4 Cir. 7/10/96), 677 So.2d

1094, writ denied, 96-2070 (La. 1/31/97), 687 So.2d 400.

We find no abuse of discretion by the trial court in its imposition of a thirty-year

sentence, ten years less than the maximum, for manslaughter in this case.

Aggravated Battery

The trial court imposed the maximum sentence of ten years at hard labor for

Defendant’s aggravated battery conviction. Defendant could have also been ordered

to pay a fine of not more than $5,000 in addition to his prison sentence. La.R.S.

14:34. As noted in the original appeal of this case:

In State v. Burnaman, 03-1647, p. 5 (La.App. 3 Cir. 5/12/04), 872 So.2d
637, 641, this court considered the appropriateness of the imposition of
maximum sentences, explaining:

[M]aximum sentences are usually reserved for the most
egregious and blameworthy of offenders. State v. LeBlanc,
578 So.2d 1036 (La.App. 3 Cir.1991), writ denied, 620
So.2d 833 (La.1993). In reviewing the imposition of a
maximum sentence, the First Circuit has held:

This Court has stated that maximum
sentences permitted under statute may be
imposed only for the most serious offenses and
the worst offenders, State v. Easley, 432 So.2d
910, 914 (La.App. 1 Cir.1983), or when the
offender poses an unusual risk to the public
safety due to his past conduct of repeated
criminality. See State v. Chaney, 537 So.2d
313, 318 (La.App. 1 Cir.1988), writ denied,
541 So.2d 870 (La.1989). A trial court’s
reasons for imposing sentence, as required by
La.Code Crim. P. art. 894.1, are an important
aid to this court when reviewing a sentence
alleged to be excessive. State v. McKnight,
98-1790 at p. 25, 739 So.2d [343] at 359
[(La.App. 1 Cir.1999)].

State v. Runyon, 916 So.2d at 423-24.

12

We find no abuse of discretion by the trial court in its imposition of the

maximum sentence for aggravated battery in light of the fact that Defendant instigated

the attack on an unarmed victim2 and Defendant has shown limited remorse.

Consecutive Sentences

Defendant next contests the trial court’s imposition of consecutive sentences.

Challenges to the imposition of consecutive sentences have been considered by this

court in reviews for bare excessiveness. State v. Day, 05-287 (La.App. 3 Cir. 11/2/05),

915 So.2d 950. In State v. Vollm, 04-837 (La.App. 3 Cir. 11/10/04), 887 So.2d 664,

this court stated that the defendant’s failure to present the issue of the consecutive

nature of his sentences in his motion to reconsider relegated him to a bare claim of

constitutional excessiveness on appeal. However, we went on to review the

imposition of consecutive sentences, finding the trial court did not abuse its discretion

in imposing them.

In Vollm, additional factors to be considered when assessing whether the trial

court abused its discretion in imposing consecutive sentences were identified:

Louisiana Code of Criminal Procedure Article 883 states in
relevant part: “If the defendant is convicted of two or more offenses
based on the same act or transaction, or constituting parts of a common
scheme or plan, the terms of imprisonment shall be served concurrently
unless the court expressly directs that some or all be served
consecutively.” (Emphasis added.) The Louisiana Supreme Court has
recognized that although concurrent sentencing is favored, it is within the
trial judge’s discretion to impose sentences consecutively based on
factors including the defendant’s criminal record, the severity or violent
nature of the crimes, or the danger the defendant poses to the public.
State v. Thomas, 98-1144 (La.10/9/98), 719 So.2d 49.

Where the trial court does impose consecutive penalties, it “must
articulate particular justification for such a sentence beyond a mere
articulation of the standard sentencing guidelines set forth in La.C.Cr.P.

2
Defendant acknowledged that Mr. Dulworth had put up his knife before Mr. Dulworth had
pinned him on the ground.

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art. 894.1” State v. Merritt, 03-946, p. 28 (La.App. 3 Cir. 3/17/04), 875
So.2d 80, 97 (quoting State v. Dempsey, 02-1867, p. 5 (La.App. 4 Cir.
4/2/03), 844 So.2d 1037, 1040, writ denied, 03-1917(La.6/25/04), 876
So.2d 823).

Id. at 669.

The two offenses in this case arose out of the same course of conduct; therefore,

concurrent sentences are favored. However, the trial court had the discretion to

impose consecutive sentences. Defendant initiated a violent attack of four armed men

against two unarmed men in which the first victim, Mr. Wiley, was killed, and he

exhibited little or no remorse to the trial court for his actions. We find no error with

the trial court’s imposition of consecutive sentences.

Errors Patent

All appeals are reviewed for errors patent on the face of the record. No errors

patent were found on review.

Disposition

The sentences imposed by the trial court are affirmed.

AFFIRMED.

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