State of Louisiana v. Kimberly Sampy

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

07-1059

STATE OF LOUISIANA

VERSUS

KIMBERLY SAMPY

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. 103,883
HONORABLE DURWOOD W. CONQUE, DISTRICT JUDGE
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GLENN B. GREMILLION
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders, and
Glenn B. Gremillion, Judges.

AFFIRMED WITH INSTRUCTIONS.

Michael Harson
District Attorney, 15th JDC
Keith A. Stutes
Asst. District Attorney
P. O. Box 3306
Lafayette, LA 70502-3306
(337) 232-5170
Counsel for Plaintiff/Appellee:
State of Louisiana

Peggy J. Sullivan
Louisiana Appellate Project
P. O. Box 2775
Monroe, LA 71207-2775
(318) 387-6124
Counsel for Defendant/Appellant:
Kimberly Sampy

Kimberly Sampy
La. Corr. Institute for Women
P. O. Box 26
St. Gabriel, LA 70776
In Proper Person:
Kimberly Sampy

GREMILLION, JUDGE.

In this case, the defendant, Kimberly Sampy, was convicted by a jury

of one count of attempted second degree murder of Crystal Kessler, a violation of

La.R.S. 14:27 and 14:30.1, and one count of attempted manslaughter of Brian Sampy,

a violation of La.R.S. 14:27 and 14:31. She was sentenced to thirty years at hard

labor without the benefit of probation, parole, or suspension of sentence on the

conviction for attempted second degree murder and ten years at hard labor on the

conviction for attempted manslaughter, to be served concurrently with the thirty-year

sentence. Defendant filed a motion to reconsider the sentence of thirty years which

was denied by the trial court. She has now appealed claiming that her sentence of

thirty years is constitutionally excessive. For the following reasons, we affirm the

sentence of the trial court with instructions.

FACTS

On the date of the shooting, Defendant drove from her home in

Jacksonville, Florida, to Lafayette, Louisiana. While there was some conflict as to

why she made the trip, it is clear that she and her husband, Brian, had talked on the

telephone a day or two before the shooting. Brian was living in Lafayette with

Crystal at the time at the French Colony Apartments. It is also of note that both

Defendant and Crystal were pregnant by Brian at the time. Defendant’s and Brian’s

four-month-old daughter had died of Sudden Infant Death Syndrome a few weeks

prior to the shooting. Upon arriving in Lafayette, Defendant drove to The

Gentleman’s Club where Kessler worked as the bartender manager. Crystal and Brian

were at the club, but Defendant did not speak with them because the club was closing

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and the police were not allowing anyone to enter. Defendant drove to the French

Colony apartment building and remained in her car. When Brian and Crystal arrived

at the apartment, he parked his vehicle behind Defendant’s vehicle, blocking her in.

The parties’ stories differ somewhat at this point but it is clear that Brian called the

police at some point and had an argument with Defendant. Crystal remained seated

in the passenger side of the car and took no part in the argument. Defendant

eventually pulled out a gun and fired several shots, one striking Brian in the back of

the head as he was fleeing and one striking Kessler in the face and another striking

her in the neck as she was sitting in the car. Both Brian and Crystal survived the

gunshot wounds.

EXCESSIVE SENTENCE

In her sole assignment of error, Defendant contends that her thirty-year

sentence is excessive under the circumstances of the case. Although Defendant was

originally charged with attempted first degree murder, the jury found her guilty of the

attempted second degree murder of Crystal. Second degree murder carries a

punishment of life imprisonment. However, under La.R.S. 14:27, an attempt to

commit an offense that is punishable by life imprisonment carries a range of

imprisonment of not less then ten years nor more than fifty years at hard labor.

Accordingly, defendant received a midrange sentence.

At the sentencing hearing, the trial court noted it had reviewed the

presentence investigation report. According to the report, Defendant had no prior

criminal history. The report recommended a maximum sentence on each count to be

served consecutively. However, the trial court stated that it was taking into

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consideration mitigating and aggravating factors. The trial court noted Defendant’s

lack of a criminal history and her remorse, the fact that she had successfully

completed various anger management programs while she was incarcerated, her good

behavior while incarcerated, her youth, and the support of her family. As for the

aggravating factors, the trial court noted that the victims both suffered severe physical

and emotional injuries, particularly Brian who received a serious head injury from

which he may never completely recover. Moreover, Crystal was shot in the face

while she was sitting in the car. Both victims could have easily died. Finally, the

trial court noted that there were indications at trial that the acts were premeditated.

Defense counsel as well as Defendant (pro se) filed a motion to

reconsider the sentence. Defense counsel’s motion argued an excessive aggregate

sentence. However, the motion was based on an incorrect assumption that the

sentences were ordered to be served consecutively for a total of forty years

imprisonment. Defendant’s pro se motion raised the issue of excessive sentence

under the circumstances of her case, arguing that she was remorseful for her actions,

that she had no prior criminal history, and that she has a two-year-old child who

needs her mother.

At the sentencing hearing, which was not attended by Defendant, defense

counsel only corrected his misconception about the sentence and mentioned to the

trial court that he objected to the sentence. The trial court denied the motions to

reconsider the sentence.

In State v. Barling, 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01),

779 So.2d 1035, 1042-43, writ denied, 01-0838 (La. 2/1/02), 808 So.2d 331

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(alteration in original), this court set forth the following standard to be used in

reviewing excessive sentence claims:

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).

Moreover, in 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, this court held

that in order to decide whether a sentence shocks the sense of justice or makes no

meaningful contribution to acceptable penal goals, the following factors may be

considered:

[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.

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In mitigation, Defendant points out that she has no prior criminal record.

She claims she was distraught because her husband of five years had left her pregnant

and coping with the death of their daughter. She also says that she knew her husband

was having an affair with Crystal Kessler. She argues that the trial court placed more

weight on the victim impact statement and much less weight on the mitigating factors.

Finally, she argues that the sentence of thirty years without the benefit of parole is

nothing more than a cruel and unusual punishment.

However, we note that the imposition of a thirty-year sentence is not an

uncommon sentence for the offense of attempted second degree murder under similar

circumstances as the current case. In State v. McCoy, 34,835 (La.App. 2 Cir.

6/20/01), 792 So.2d 806, writ denied, 01-2186 (La. 6/21/02), 818 So.2d 790, the

second circuit affirmed a forty-year sentence imposed on the defendant who was

convicted of attempted second degree murder despite the fact that he did not have a

criminal history. In that case, the defendant had stalked a former girlfriend and laid

in wait for her before shooting her four times. In State v. Ethridge, 96-1050 (La.App.

3 Cir. 2/5/97), 688 So.2d 1274, we affirmed a sentence of forty-five years for

attempted second degree murder even though Ethridge had no prior criminal record.

The defendant fired six shots into the victim’s residence through a bedroom window

severely wounding the victim. In State v. Owens, 606 So.2d 876 (La.App. 2 Cir.

1992), Owens alleged his thirty-year sentence for attempted second degree murder

was excessive because he was only twenty-five and had no prior criminal history.

Owens had fired several shots at the victim in a crowded barroom. Our colleagues

on the second circuit affirmed.

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We are cognizant of Defendant’s situation. She was blocked in a parking

spot by her husband who brought his pregnant girlfriend to confront her, his pregnant

wife. She was at least threatened by her husband in that the police were on the way

and she would go to jail. Certainly, she was under a significant amount of stress as

she had just lost her young daughter and was apparently going to have to fend for

herself and her next child as her husband had abandoned her for the woman he

brought to the apartment building parking lot.

The trial court obviously took those factors into consideration when

sentencing her in regard to the shooting of Brian, as she received only a ten-year

sentence for that crime. But the facts surrounding the shooting of Crystal are quite

different. First, Defendant armed herself even though Brian was not armed and

Crystal presented no threat. By all accounts, Crystal was simply sitting on the

passenger side of the car and did not confront Defendant in any manner. She was

shot twice, both times in or near the face. In that regard, we find that the sentence is

not such that shocks our sense of justice, it makes a measurable contribution to

acceptable penal goals, and is not a needless imposition of pain and suffering.

Accordingly, we find that while we believe that the sentence is on the high side, we

cannot say that the trial court abused its discretion when it imposed a thirty-year

sentence for the attempted second degree murder of Crystal Kessler. This assignment

of error is without merit.

ERRORS PATENT

We review all appeals for errors patent on the face of the record in

accordance with La.Code Crim.P. art. 920. After reviewing the record, we find that

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there is one error patent. The record does not indicate that the trial court advised

Defendant of the prescriptive period for filing post-conviction relief as required by

La.Code Crim.P. art. 930.8. Thus, we direct the trial court to inform Defendant of the

provisions of Article 930.8 by sending appropriate written notice to her within ten

days of the rendition of this opinion and to file written proof that she received the

notice in the record of the proceedings. State v. Roe, 05-116 (La.App. 3 Cir. 6/1/05),

903 So.2d 1265, writ denied, 05-1762 (La. 2/10/06), 924 So.2d 163.

CONCLUSION

Defendant’s sentence of thirty years imprisonment at hard labor without

the benefit of probation, parole, or suspension of sentence for the crime of attempted

second degree murder of Crystal Kessler is affirmed. Further, the trial court is

directed to inform Defendant of the provisions of La.Code Crim.P. art. 930.8 by

sending appropriate written notice to her within ten days of the rendition of this

opinion and to file written proof that she received the notice in the record of the

proceedings.

AFFIRMED WITH INSTRUCTIONS.

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