State of Louisiana v. Patrick Thomas

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

KA 08-1280

STATE OF LOUISIANA

VERSUS

PATRICK THOMAS

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APPEAL FROM THE
TWENTY-SEVENTH JUDICIAL DISTRICT COURT
PARISH OF ST. LANDRY, NO. 05K4942B
HONORABLE ELLIS J. DAIGLE, DISTRICT JUDGE

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SHANNON J. GREMILLION
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, J. David Painter, and
Shannon J. Gremillion, Judges.

AFFIRMED.

James Edward Beal
LA. Appellate Project
P.O. Box 307
Jonesboro, LA 71251-0307
(318) 259-2391
Counsel for Defendant/Appellant:
Patrick Thomas

Earl B. Taylor
District Attorney, 27th J.D.C.
P.O. Drawer 1968
Opelousas, LA 70571-1968
(337) 948-0551
Counsel for Plaintiff/Appellee:
State of Louisiana

Jennifer Ardoin
Assistant District Attorney
P.O. Drawer 1968
Opelousas, LA 70571
(337) 948-0551
Counsel for Plaintiff/Appellee:
State of Louisiana

GREMILLION, Judge.

The Defendant, Patrick Thomas, was charged by bill of information filed on

April 10, 2006, with aggravated battery, a violation of La.R.S. 14:34. After a jury

trial, Defendant was found guilty of second degree battery. Defendant was sentenced

on July 10, 2008 to five years at hard labor. Defendant is now before this court

asserting that his sentence is excessive. For the following reasons, we affirm.

FACTS

On the night of September 20, 2005, the victim, Ray Anthony Willis, was at a

nightclub called Added Attraction, also known as Butler’s. According to the victim,

a verbal argument ensued at that location between he and Defendant; the two had

been involved in physical altercations in the past. During Defendant’s testimony, he

denied that a verbal argument occurred at Added Attraction.

Later the same night, the victim and his friend, Mike Williams, proceeded to

another establishment called The Back. Defendant was there when the victim arrived.

According to the victim, another verbal altercation (but no physical altercation)

ensued between the two at The Back. Defendant testified that while he was at The

Back, the victim and Williams arrived. The two men approached him, and the victim

shoved a bottle in Defendant’s face and said, “Yeah, you gonna give me what I want.”

Defendant testified that he was irate, left The Back, and proceeded to the corner store

where the victim and Williams approached him and his brother. According to

Defendant, the victim tried to stab him with a broken bottle. Defendant testified that

he pulled out his pocket knife and while he and the victim were “tusslin’,” Defendant

“blocked” and “stucked” him twice in the back.

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The victim’s account of what occurred after leaving The Back varied

from Defendant’s. According to the victim, as he was walking down Madison Street,

Defendant exited a vehicle. The two approached each other, and Defendant pulled

out a knife and stabbed the victim in the neck. As the victim turned to run, Defendant

stabbed him twice more in the back and told him he should have killed him. The

victim was later taken to the hospital and was released the following day.

Dr. William Smith, the emergency room physician that treated the victim,

testified that one of the victim’s three wounds was in the left supra clavicular fossa,

and the other two were in the trapezius muscles. The victim also had a small

pneumothorax, “which is a drop - - collapse of the lung.” This injury required that

the victim be kept for observation, but it was not large enough to require invasive

treatment. Dr. Smith confirmed that, in his opinion, the victim’s injuries were

consistent with those caused by a stabbing. Finding no errors patent, we turn to the

only assignment of error.

EXCESSIVE SENTENCE

Defendant contends the sentence imposed by the trial court is clearly excessive

considering the facts of the case. Defendant argues that as a second offender, he

should have received a suspended sentence and probation. In support of his claim,

Defendant essentially contends that the victim stalked him by initially approaching

him prior to the first argument, and approaching him on the street. Finally,

Defendant points out that at the sentencing proceeding, there was testimony presented

that the victim entered Defendant’s cell and attacked him while both were

incarcerated after trial. Defendant asks that his sentence be vacated and the case

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remanded for resentencing at which the trial court should give weight to mitigating

factors.

At the time of the offense, a person convicted of second degree battery could

be fined not more than two thousand dollars or imprisoned, with or without hard

labor, for not more than five years, or both. La.R.S. 14:34.1. Defendant was

sentenced to serve five years at hard labor. A motion to reconsider sentence was not

filed in this case.

In State v. Baker, 08-54 p. 12-13 (La.App. 3 Cir. 5/7/08), 986 So.2d 682, 691-

92, this court stated:

Although defense counsel objected to the sentences at the
sentencing hearing, a review of the record shows that the defendant
failed to file a written motion for reconsideration of sentence as required
by La.Code Crim.P. art. 881.1. Thus, the defendant is precluded from
raising the excessiveness of his sentences on appeal. State v. Hillman,
613 So.2d 1053 (La.App. 3 Cir.), writ denied, 617 So.2d 1181
(La.1993). Although the defendant’s sentencing claims are barred
pursuant to La.Code Crim.P. art. 881.1, this court will review the
defendant’s sentences for aggravated criminal damage to property “for
bare excessiveness in the interest of justice.” State v. Davis, 06-922, p.
2 (La.App. 3 Cir. 12/29/06), 947 So.2d 201, 203 (citing State v. Graves,
01-156 (La.App. 3 Cir. 10/3/01), 798 So.2d 1090, writ denied, 02-29
(La. 10/14/02), 827 So.2d 420). This court has also reviewed claims
regarding the consecutive nature of sentences using a bare claim of
excessiveness analysis. Id.

The Eighth Amendment to the United States
Constitution and La. Const. art. 1, § 20 prohibit the
imposition of cruel or excessive punishment. “‘[T]he
excessiveness of a sentence becomes a question of law
reviewable under the appellate jurisdiction of this court.’”
State v. Dorthey, 623 So.2d 1276, 1280 (La.1993) (quoting
State v. Sepulvado, 367 So.2d 762, 764 (La.1979)).
Nevertheless, the trial court is given wide discretion in
imposing a sentence, and, absent a manifest abuse of that
discretion, we will not deem as excessive a sentence
imposed within statutory limits. State v. Pyke, 95-919
(La.App. 3 Cir. 3/6/96), 670 So.2d 713. “Maximum
sentences are reserved for the most serious violations and
the worst offenders.” State v. Farhood, 02-490, p. 11

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(La.App. 5 Cir. 3/25/03), 844 So.2d 217, 225. The only
relevant question for us to consider on review is not
whether another sentence would be more appropriate, but
whether the trial court abused its broad discretion in
sentencing a defendant. 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. Davenport, 07-254, pp. 3-4 (La.App. 3 Cir. 10/3/07), 967 So.2d 563,
565.

In State v. Hopkins, 96-1063, p. 7 (La.App. 3 Cir. 3/5/97), 692 So.2d 538, 541,

this court stated:

Normally, courts impose maximum sentences upon the most
serious violations of the described offense, and for the worst kind of
offender. State v. Sloan, 528 So.2d 252 (La.App. 3 Cir. 1988). Courts
have upheld maximum sentences for second degree battery in situations
of particularly violent attacks, or for offenders with violent criminal
records.

In this case, because the evidence supported the greater charge of
aggravated battery, we find that the sentence imposed was appropriate.
Because the conduct involved is not adequately described by the
conviction, the defendant need not be the “worst type of offender” to
receive the maximum sentence. State v. Holland, 544 So.2d 461
(La.App. 2 Cir. 1989), writ denied, 567 So.2d 93 (La.1990).

At the sentencing hearing, David Sonnier, who was in “A Block” with

Defendant the previous year, testified that the victim came into the block and started

“fussing with [Defendant] and he started fighting with [Defendant]” while Defendant

was sleeping. Defendant testified at the sentencing proceeding that during that

particular incident, the victim hit him in his jaw. A fight ensued, and both men were

injured. Defendant testified that he went to the doctor, but did not receive any

medical treatment. Deputy Calvin Moore, Warden of the St. Landry Parish Jail,

testified that the victim received twelve stitches in his mouth as a result of this

incident. Deputy Moore testified that it was “[u]nknown who started what,” but both

individuals were charged.

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Another witness, Patrick Bryant, testified at the sentencing hearing. Bryant

testified that he and Defendant were in an elevator in the courthouse together, and the

victim “come from outside” and told Defendant that he was a dead man walking.

At the request of defense counsel, the trial court stated it would consider the

incidents testified to at the sentencing proceeding. Prior to imposing Defendant’s

sentence, the trial court stated:

The defendant is 42 years of age and is classified as a second
felony offender, although he has approximately twenty-eight separate
encounters with law enforcement agencies beginning on January 3,
1984. Fifteen of those encounters were classified as encounters
concerning crimes against a person. The defendant was convicted of
four misdemeanors. The pre-sentence investigation states that the
victim reported that after the defendant stabbed him three times, he told
the victim, “You’re lucky I didn’t kill you.”

On October 28, 2008, the defendant allegedly beat the victim
while they were both incarcerated resulting in the victim requiring
twelve stitches in the facial or mouth area. There is pending a second
degree battery charge in that matter and as indicated or testified to by the
Warden today, apparently both inmates were charged with that
altercation or altercations.

There is an undue risk that during the period of a suspended
sentence or a probation, that the defendant will commit another crime.
The defendant is in need of correctional treatment or a custodial
environment that can be provided most effectively by his commitment
to an institution. A lesser sentence will deprecate the seriousness of the
defendant’s crime. There are no mitigating circumstances except - -
there are circumstances but there are not mitigating, in that there was the
second altercation between these individuals after the original
conviction or the conviction subject of this matter. There is certainly no
remorse by this defendant indicated by the second altercation.

Accordingly, the Court sentences the defendant as follows: five
years at hard labor with credit for time served.

Defendant received the maximum term of imprisonment, but no fine was

imposed. We reference two cases involving excessive sentence claims for

convictions of second degree battery. In State v. Bowie, 482 So.2d 90 (La.App. 4 Cir.

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1986), the fourth circuit found the sentencing judge did not abuse his discretion in

imposing the maximum five-year sentence for second degree battery where the

defendant threw a brick at the back of an unarmed police officer, which resulted in

the officer’s skull being fractured and his scalp torn. The defendant’s criminal record

showed arrests for thefts, forgeries, automobile theft, and sale and possession of

heroin. He had a prior conviction for possession of heroin as well as theft.

In State v. Smith, 452 So.2d 251 (La.App. 5 Cir. 1984), the fifth circuit

affirmed the imposition of the maximum five-year sentence for a defendant who,

upon being requested by a police officer to answer questions regarding an earlier

disturbance, struck the officer in the face. Other officers had to be called in before

the defendant could be subdued. Both the defendant and officers were injured in the

struggle. Along with numerous arrests, the defendant had prior convictions for

burglary, jail escape, and second-degree murder.

Considering Defendant’s criminal history, the fact that the evidence supported

the original, greater charge of aggravated battery, and the subsequent jailhouse fight

which demonstrates a patent lack of remorse, we find the imposition of the maximum

five-year sentence was not an abuse of the trial court’s sentencing discretion. We

affirm.

AFFIRMED.

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