State of Louisiana v. Demarco D. Hawkins

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

06-1599

STATE OF LOUISIANA

VERSUS

DEMARCO D. HAWKINS

**********

APPEAL FROM THE
SEVENTH JUDICIAL DISTRICT COURT
PARISH OF CONCORDIA, NO. 04-1636 AND 04-1702
HONORABLE LEO BOOTHE, DISTRICT JUDGE

**********

OSWALD A. DECUIR
JUDGE

**********

Court composed of Sylvia R. Cooks, Oswald A. Decuir, and James T. Genovese,
Judges.

AFFIRMED.

Paula C. Marx
Louisiana Appellate Project
P. O. Box 80006
Lafayette, LA 70598-0006
(337) 991-9757
Counsel for Defendant/Appellant:
Demarco D. Hawkins

Bradley R. Burget
First Assistant District Attorney
Seventh Judicial District
4001 Carter Street, Suite 9
Vidalia, LA 71373
(318) 336-5526
Counsel for Appellee:
State of Louisiana

DECUIR, Judge.

The Defendant, Demarco D. Hawkins, pled guilty to two counts of simple

burglary of an inhabited dwelling, violations of La.R.S. 14:62.2, and seventeen counts

of theft of a firearm, violations of La.R.S. 14:67.15. He was sentenced to twelve

years at hard labor on each count of simple burglary of an inhabited dwelling, the

sentences to run concurrently to one another and the first year to be served without

benefit of probation, parole or suspension of sentence, and to ten years at hard labor

on each count of theft of a firearm, the sentences to run concurrently to one another,

but consecutively to the sentences for simple burglary of an inhabited dwelling. The

Defendant lodged this appeal arguing that the trial court erred in ordering consecutive

sentences and that the consecutive sentences are excessive.

FACTS

On June 9, 2004, the Defendant broke into the homes of Ronnie and Johnnie

Hendricks and Ronnie Carroll, taking numerous items from the homes. During the

investigation of the crimes, an undercover confidential informant purchased a gun

from the Defendant that had been taken from the Hendricks’ home. A search warrant

was issued to search the Defendant’s home, and several items from the burglaries

were found in the home. The Defendant was subsequently arrested, charged, and

convicted for the crimes herein.

ASSIGNMENT OF ERROR NO. 1

By this assignment of error, the Defendant argues that the trial court erred in

ordering consecutive sentences when the theft of firearms occurred inside one of the

dwellings, all on the same day during the same episode.

Louisiana Code of Criminal Procedure Article 883 states, in pertinent 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.” As noted by this court in State v. Vollm, 04-

837, p. 6 (La.App. 3 Cir. 11/10/04), 887 So.2d 664, 669, “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.” See also State v. Walker, 00-3200 (La. 10/12/01), 799 So.2d 461.

The factors to be considered in ordering consecutive sentences were addressed

by this court in State v. Merritt, 03-946, pp. 28-29 (La.App. 3 Cir. 3/17/04), 875

So.2d 80, 97-98 as follows:

“[I]n cases involving offenders without prior felony record,
concurrent rather than consecutive sentences should be imposed,
particularly where the convictions arise out of the same course of
conduct. State v. Jacobs, 383 So.2d 342 (La.1980); State v. Cox, 369
So.2d 118 (La.1979).” State v. Brown, 627 So.2d 192, 199-200
(La.App. 3 Cir. 1993), writ denied, 93-3101 (La. 3/18/94), 634 So.2d
850.

Imposition of consecutive sentences requires particular
justification. State v. Dunbar, 94-1492 (La.App. 3 Cir. 5/31/95), 657
So.2d 429. “[T]he trial court must articulate particular justification for
such a sentence beyond a mere articulation of the standard sentencing
guidelines set forth in La.C.Cr.P. art. 894.1.” State v. Dempsey,
02-1867, p. 5 (La.App. 4 Cir. 4/2/03), 844 So.2d 1037, 1040.

Among the factors to be considered are the defendant’s
criminal history, State v. Ortego, [382 So.2d 921, cert.
denied, 449 U.S. 848, 101 S.Ct. 135, 66 L.Ed.2d 58
(1980)]; State v. Jacobs, 493 So.2d 766 (La.App. 2d
Cir.1986); the gravity or dangerousness of the offense,
State v. Adams, 493 So.2d 835 (La.App. 2d Cir. 1986), writ
denied, 496 So.2d 355 (La.1986); the viciousness of the
crimes, State v. Clark, 499 So.2d 332 (La.App. 4th Cir.
1986); the harm done to the victims, State v. Lewis, 430
So.2d 1286 (La.App. 1st Cir. 1983), writ denied, 435 So.2d
433 (La.1983); whether the defendant constitutes an
unusual risk of danger to the public, State v. Jett, 419 So.2d
844 (La.1982); the defendant’s apparent disregard for the

2

property of others, State v. Parker, 503 So.2d 643 (La.App.
4th Cir.1987); the potential for the defendant’s
rehabilitation, State v. Sherer, 437 So.2d 276 (La.1983);
State v. Lighten, 516 So.2d 1266 (La.App. 2d Cir.1987);
and whether the defendant has received a benefit from a
plea bargain, State v. Jett, supra; State v. Adams, supra.

State v. Coleman, 32,906, p. 42 (La.App. 2 Cir. 4/5/00), 756 So.2d
1218, 1247-48, writ denied, 00-1572 (La. 3/23/01), 787 So.2d 1010.

Relying on Merritt, this court in Vollm, 887 So.2d 664, reviewed the record to

determine whether the trial court articulated a particular justification for imposing

consecutive sentences beyond the standard sentencing guidelines set forth in La.Code

Civ.P. art. 894.1. This court concluded that the trial judge articulated a consideration

of the factors set forth in Thomas, stating a clear justification for exercising his

discretion to impose consecutive sentences for two charges of attempted first degree

murder.

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

06-667 (La. 11/17/06), 942 So.2d 526, the defendant received consecutive sentences

for second-degree murder and attempted second-degree murder that involved the

stabbing of two victims. This court did not address whether or not the trial court

articulated a particular justification for imposing consecutive sentences, but, instead,

referred to the factors to consider in determining whether consecutive sentences are

appropriate, as set forth in Walker, 799 So.2d 461. The Walker court focused on “.

. . the offender’s past criminality or other circumstances in his background or in the

commission of the crimes to justify treating him as a grave risk to the safety of the

community.” Id. at 461-62. Because of the violent nature of the offenses and the

defendant’s threat to society, this court, in Runyon, concluded that the trial court did

not abuse its discretion.

3

In his brief to this court, the Defendant maintains that the trial court did not

state any reasons for imposing consecutive sentences, and thus, the failure to do so

requires this court to vacate the sentences and remand for resentencing. We disagree

with the Defendant’s assertion, noting the trial court reasons for ruling as follows:

The Court, of course, as pointed out by one of the attorneys, has sat
through one trial involving a co-defendant and sat through a substantial
part of the trial involving Mr. Hawkins. The Court recalls Mr. Hawkins
basically tendering his plea of guilty when it became apparent that some
of his cohorts were about to testify against him.

The record reflects that Mr. Hawkins has prior offenses as
reflected by the presentence report. He has a history of felony theft,
history of simple burglary. The egregious nature of the offense and the
personal affect on the victims in this matter as pointed out by Mr.
Burget, these are not commercial items. These are not five and ten cent
dime store items or Wal-Mart items. These were items that involved
personal memories, some of departed family members. Mr. Hawkins’
refusal, constant refusal, to cooperate, to mitigate the loss to these
victims, and the serious nature of the offense and this history compels
the Court, Mr. Hawkins, to give you a serious sentence in this matter.

The Court feels that a term of about 22 years would be proper. . . .

Although the offenses were not crimes of violence as those described in the

jurisprudence, the Defendant had a past history of felony theft and simple burglary.

The trial court also expressed its concern that the Defendant had not cooperated to

mitigate the loss to the victims, resulting in an extensive emotional loss to the victims.

Further, the Defendant demonstrated a disregard for the victims’ property.

Accordingly, we find that the trial judge articulated a particular justification for

imposing consecutive sentences.

ASSIGNMENT OF ERROR NO. 2

By this assignment of error, the Defendant argues that the imposition of

consecutive maximum sentences resulted in excessive sentences. This court has set

forth the following standard to be used in reviewing excessive sentence claims:

4

La.Const. art. 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.

To decide whether a sentence shocks the sense of justice or makes no

meaningful contribution to acceptable penal goals, this court has held:

[An] 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,

03-562 (La. 5/30/03), 845 So.2d 1061.

The Defendant pled guilty to two counts of simple burglary of an inhabited

dwelling, violations of La.R.S. 14:62.2, and to seventeen counts of theft of firearms,

violations of La.R.S. 14:67.15. The penalty for simple burglary as stated in La.R.S.

14:62.2 is one to twelve years at hard labor, without benefit of parole, probation or

5

suspension of sentence. The penalty for theft of a firearm as provided in La.R.S.

14:67.15 is two to ten years, with or without hard labor, without the benefit of

probation, parole or suspension of sentence and a fine of one thousand dollars. Thus,

the Defendant received the maximum sentences for the offenses. However, the

sentences for simple burglary were ordered to run concurrently to each other, as were

the sentences for theft of a firearm. Therefore, the total time of imprisonment,

twenty-two years, is significantly less than the possible total maximum penalty

allowed.

In his brief to this court, the Defendant asserts that the crimes were not vicious,

that no violence was involved and that he has no history of violent crimes. Also, the

Defendant admits that he has had problems with drugs in the past and maintains that

he has a great potential for rehabilitation. Lastly, the Defendant contends that he does

not pose an unusual risk of danger to the public and has accepted responsibility for

his crimes and apologized to the victims for the pain he caused.

As noted in assignment of error number one, the trial court adequately stated

for the record the mitigating and aggravating circumstances taken into account in

determining the Defendant’s sentences. Although the Defendant eventually

apologized to the victims for his crime at the hearing on his motions to reconsider

sentence, the trial court observed that he had not cooperated in mitigating the damage

caused to the victims. Accordingly, we find that the Defendant has not shown that

the sentences imposed by the trial court were unconstitutionally excessive,

considering the circumstances of his case and the background of the Defendant.

For the foregoing reasons, the Defendant’s sentences are affirmed.

AFFIRMED.

6