State of Louisiana v. Kenneth K. Prejean

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

10-480

STATE OF LOUISIANA

VERSUS

KENNETH K. PREJEAN

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF VERMILION, NO. 48,526
HONORABLE EDWARD B. BROUSSARD, DISTRICT JUDGE

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DAVID E. CHATELAIN*
JUDGE

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Court composed of Marc T. Amy, Billy Howard Ezell, and David E. Chatelain,
Judges.

AMENDED IN PART; AFFIRMED AS AMENDED;
AND REMANDED WITH INSTRUCTIONS.

Michael Harson
District Attorney
Laurie A. Hulin
Assistant District Attorney
100 North State Street, Suite 215
Abbeville, Louisiana 70511
(337) 898-4320
Counsel for:
State of Louisiana

*
Honorable David E. Chatelain participated in this decision by appointment of the Louisiana
Supreme Court as Judge Pro Tempore.

G. Paul Marx
Attorney at Law
Post Office Box 82389
Lafayette, Louisiana 70598-2389
(337) 237-2537
Counsel for Defendant/Appellant:
Kenneth K. Prejean

CHATELAIN, Judge.

The defendant, Kenneth K. Prejean, appeals, asserting that his twenty-year

sentence for aggravated burglary is excessive. We amend in part to address two

errors patent, affirm as amended, and remand with instructions.

FACTS AND PROCEDURE

On September 18, 2007, the defendant knocked on the door of Bettye Miller’s

(hereafter Ms. Miller) home in Abbeville and asked where the Attaways lived.

Ms. Miller did not know where the Attaways lived, so she allowed the defendant to

use her cordless telephone while he was on her carport. The defendant returned to the

truck in which he had arrived, spoke to someone, and returned to the door. The

defendant then entered Ms. Miller’s home, said, “Give me the money,” and

brandished a knife. At that time, Ms. Miller gave the defendant $20.00 she had in her

purse and $106.00 she had been saving for her grandchildren. The defendant cut the

phone line before leaving Ms. Miller’s home.

On March 5, 2008, the State charged the defendant by bill of information with

aggravated burglary, a violation of La.R.S. 14:60. After the defendant entered a plea

of not guilty, a bench trial was held on August 25, 2009; on that date, the trial judge

found the defendant guilty as charged. On January 11, 2010, after considering a pre-

sentence investigation report, the trial judge sentenced the defendant to serve twenty

years at hard labor without benefit of parole, probation, or suspension of sentence.1

Thereafter, the defendant filed a motion to reconsider sentence, urging that his

sentence was excessive. On February 25, 2010, following a contradictory hearing,

the trial court denied the defendant’s request to reconsider the sentence imposed.

1
See our later errors patent discussion of the trial court’s imposition of sentence without
benefit of parole, probation, or suspension of sentence.

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EXCESSIVENESS OF SENTENCE

The defendant contends that the trial court failed to comply with La.Code

Crim.P. art. 894.1 when it imposed a twenty-year sentence where there were other

culpable co-defendants, the offense was committed under the influence of drug

intoxication, and the trial court did not specifically note the basis for its sentencing

choice. The defendant further argues that the sentence imposed was excessive.

Louisiana Code of Criminal Procedure Article 881.1(E) requires a defendant

to set forth the specific grounds on which a motion to reconsider may be based.

Failure to include a specific ground upon which a motion to reconsider sentence may

be based “shall preclude . . . the defendant from raising an objection to the sentence

or from urging any ground not raised in the motion on appeal or review.” Id. In the

present case, although the defendant generally raised the issue of excessiveness in his

motion to reconsider sentence, he failed to specifically allege that the trial court failed

to consider the factors of La.Code Crim.P. art. 894.1. Accordingly, because that

claim was not specifically set forth in his motion to reconsider, it cannot be reviewed

in this appeal, State v. Landry, 09-260 (La.App. 3 Cir. 11/4/09), 21 So.3d 1148, writ

denied, 09-2577 (La. 5/21/10), 36 So.3d 229, and our review of the defendant’s

sentence is restricted to his bare claim of excessiveness. State v. Mims, 619 So.2d

1059 (La.1993).

The sentencing court has broad discretion in imposing penalties for criminal

convictions:

A sentence which falls within the statutory limits may be
excessive under certain circumstances. To constitute an excessive
sentence, this Court must find that the penalty is so grossly
disproportionate to the severity of the crime as to shock our sense of
justice or that the sentence makes no reasonable contribution to
acceptable penal goals and therefore, is nothing more than the needless

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imposition of pain and suffering. The trial judge has broad discretion,
and a reviewing court may not set sentences aside absent a manifest
abuse of discretion.

State v. Guzman, 99-1753, 99-1528, p. 15 (La. 5/16/00), 769 So.2d 1158, 1167

(citations omitted). “The relevant question is whether the trial court abused its broad

sentencing discretion, not whether another sentence might have been more

appropriate.” State v. Barling, 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779

So.2d 1035, 1042, writ denied, 01-838 (La. 2/1/02), 808 So.2d 331.

Louisiana Revised Statutes 14:60 sets forth the sentencing range for aggravated

burglary, as follows: “Whoever commits the crime of aggravated burglary shall be

imprisoned at hard labor for not less than one nor more than thirty years.” Therefore,

in the present case, the defendant’s sentence is within the statutory range legislatively

provided for the crime of aggravated burglary and is two-thirds of the maximum

allowable sentence thereunder.

In deciding whether a sentence is shocking or makes no
meaningful contribution to acceptable penal goals, 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. 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.” 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. 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 (citations omitted).

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At sentencing, the trial court referenced the pre-sentence investigation report

and noted that the defendant had eight prior felony convictions2 and that several of

those involved crimes of violence. The trial court stated that it would accept the

Louisiana Department of Corrections’ sentencing recommendation and sentenced the

defendant accordingly. The trial court further recommended that the defendant

undergo substance abuse treatment during his period of incarceration.

When the defendant’s motion for reconsideration of sentence was heard,

defense counsel noted that the other participants involved in the present offense

received considerably lesser sentences.3 Accordingly, he urged this in support of his

argument that the defendant’s sentence was excessive.

There is no requirement that co-defendants receive equal sentences. See State

v. Taylor, 01-1638 (La. 1/14/03), 838 So.2d 729, cert. denied, 540 U.S. 1103, 124

S.Ct. 1036 (2004); State v. Rogers, 405 So.2d 829 (La.1981). Notwithstanding, in

State v. Quimby, 419 So.2d 951, 962 (La.1982), our supreme court stated:

This does not mean that disparity in sentences of co-defendants
with similar backgrounds, charged with similar participation in identical
crimes may not be considered as a factor in determining whether a
sentence is excessive and out of proportion to the severity of a crime.
It is only a factor to be considered along with all other appropriate
considerations when there is no reasonable basis in the record for the
disparity. State v. Sims, 410 So.2d 1082 (La.1982).

“In providing a wide range of criminal sanctions for violations of a statute, the

legislature obviously intends that the [trial court] shall exercise [its] sentencing

2
Although the defendant expressed surprise at the trial court’s statement in this regard, he
presented nothing to contradict the trial court’s appreciation of his criminal history. Moreover, the
record nonetheless reflects that the defendant was arrested thirty-four times since 1993; among the
crimes listed are: aggravated battery with a dangerous weapon; second degree battery; theft; illegal
possession of stolen goods; parole violation; manufacture, distribution, and possession of Schedule
I drugs; possession of marijuana; forgery; and unauthorized entry of an inhabited dwelling.
3
Even though defense counsel argued that two co-defendants received suspended sentences
and another received a one-year sentence, the record is void of any evidence to that effect.

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discretion to impose sentences gradated according to the individualized circumstances

of the offense and of the offender.” State v. Sepulvado, 367 So.2d 762, 766

(La.1979). Indeed, the individualization of a sentence cannot be accomplished

“without independently considering the merits of each case.” State v. Day, 414 So.2d

349, 352 (La.1982). Simply stated, “[d]isparities are inherent in a system where

punishment is tailored to fit the defendant and the crime.” Id.

Against that backdrop, it is clear that the trial court in the present case heeded

those statutory requirements and jurisprudential admonitions. As reflected in the

colloquy at the hearing on the defendant’s motion to reconsider sentence, the State,

without any assertion to the contrary by the defendant, emphasized that the defendant

was more culpable of this crime than his co-defendants. In making that assertion, the

State stressed that it was the defendant who approached the victim, entered her home

without her permission, brandished the knife, and stole from her. Accordingly, we

find our review of the record fully justifies the disparity in the sentences of the co-

defendants and exhibits that the trial court truly individualized the sentence to this

defendant.

We further find that a comparison of sentences for similarly situated defendants

and a like crime shows that the trial court’s sentencing choice in the present case

conforms with rather than deviates from those cases. See State v. Williams, 448 So.2d

659 (La.1984) (a twenty-one year old defendant with two prior convictions was

sentenced to twenty years for the aggravated burglary of a sixty-one year old woman

who resided alone); State v. Cormier, 534 So.2d 994 (La.App. 3 Cir. 1988), writ

denied, 587 So.2d 691 (La.1991) (a twenty-year sentence for a first-time offender for

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the aggravated burglary of the defendant’s great-grandmother’s home was not

excessive where the defendant armed himself with a hatchet).

For the foregoing reasons, we cannot say that the defendant’s twenty-year

sentence is excessive. Therefore, the defendant’s assignment of error lacks merit.

ERRORS PATENT REVIEW

Pursuant to La.Code Crim.P. art. 920, this court reviews all appeals for errors

patent on the face of the record. After carefully reviewing the record, we found two

errors patent—one concerning restrictions the trial court placed on the defendant’s

sentence and another regarding the notification the trial court provided the defendant

concerning the time limitation for filing an application for post-conviction relief.

Initially, we observe that the trial court imposed the defendant’s twenty-year

sentence for aggravated burglary without benefit of parole, probation, or suspension

of sentence. Louisiana Revised Statutes 14:60 provides that a person convicted of

aggravated burglary “shall be imprisoned at hard labor for not less than one nor more

than thirty years.” The statute does not restrict parole, probation, or suspension of

sentence. Notwithstanding, La.Code Crim.P. art. 893 prohibits the court from

suspending and placing on probation persons convicted of various crimes of violence,

including aggravated burglary. See La.R.S. 14:2(B)(20) (specifying aggravated

burglary as a crime of violence). It does not prohibit parole. La.Code Crim.P. art.

893. It is evident that the trial court erred when it ordered the defendant’s sentence

served without benefit of parole. Therefore, we amend the defendant’s sentence to

delete the denial of parole eligibility and instruct the trial court to make a minute

entry reflecting this amendment. State v. Batiste, 09-521 (La.App. 3 Cir. 12/9/09),

25 So.3d 981.

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Additionally, our review of the record shows that the trial court incorrectly

informed the defendant regarding the time limitation for filing an application for post-

conviction relief. Although the court minutes show that the trial court correctly

advised the defendant that he had two years from final judgment of conviction to file

for post-conviction relief, the sentencing transcript indicates that the trial court

incorrectly informed the defendant that the two-year period commenced from the date

of sentencing.

Louisiana Code of Criminal Procedure Article 930.8 provides that the time

period for filing an application for post-conviction relief is two years and that it

begins to run when the judgment of conviction and sentence become final under the

provisions of La.Code Crim.P. arts. 914 and 922. Because of the contradictory

information provided the defendant, we instruct the trial court to inform the defendant

of the correct provisions of Article 930.8 by sending written notice to him within ten

days of the rendition of this opinion and to file written proof in the record that the

defendant received the notice.

DECREE

For the foregoing reasons, we amend the defendant’s sentence to delete the

denial of parole eligibility and instruct the trial court to make an entry in the minutes

that reflects that change. Additionally, we order the trial court to inform the

defendant of the correct provisions of La.Code Crim.P. art. 930.8 by sending

appropriate written notice to the defendant within ten days of the rendition of this

opinion and to file proof in the record that the defendant received the notice. As

amended and for the foregoing reasons, we affirm the defendant’s sentence.

AMENDED IN PART; AFFIRMED AS AMENDED; AND REMANDED
WITH INSTRUCTIONS.

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