State of Louisiana v. Jarman Gerard Jones

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

10-786

STATE OF LOUISIANA

VERSUS

JARMAN GERARD JONES

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APPEAL FROM THE
SIXTEENTH JUDICIAL DISTRICT COURT
PARISH OF IBERIA, NO. 08-776
HONORABLE JAMES R. MCCLELLAND, DISTRICT JUDGE

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PHYLLIS M. KEATY
JUDGE

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Court composed of Marc T. Amy, Shannon J. Gremillion, and Phyllis M. Keaty,
Judges.

AFFIRMED.

J. Phil Haney
District Attorney
Walter J. Senette, Jr.
Assistant District Attorney
300 Iberia Street, Suite 200
New Iberia, Louisiana 70560
(337) 369-4420
Counsel for:
State of Louisiana

Paula C. Marx
Louisiana Appellate Project
Post Office Box 80006
Lafayette, Louisiana 70598-0006
(337) 991-9757
Counsel for Defendant/Appellant:
Jarman Gerard Jones

Jarman Gerard Jones
In Proper Person
Avoyelles Correctional Center
1630 Prison Road
Cottonport, Louisiana 71327
Defendant/Appellant

KEATY, Judge.

Defendant, Jarman Gerard Jones, appeals his adjudication as a fourth felony

offender and his sentence of thirty years at hard labor, with credit for time served.

For the following reasons, we affirm the trial court’s adjudication and sentence.

FACTS AND PROCEDURAL HISTORY

On or about March 31, 2007, the victim, Denise LeBlanc (LeBlanc), and two

of her friends went to the Buck Wild Saloon in New Iberia, Louisiana, in LeBlanc’s

1994 Honda Accord. Upon their arrival, LeBlanc put the car keys in her front pocket

and the trio entered the bar. Approximately forty-five minutes later, LeBlanc

prepared to leave and noticed that her vehicle was missing from the parking lot and

that the keys were missing from her pocket. She then reported the car as stolen to the

Iberia Parish Sheriff’s Office.

On April 1, 2007, the vehicle was involved in a pursuit spanning two parishes,

St. Landry and Jefferson Davis. The driver of the vehicle, Defendant, was arrested

and booked in both parishes. On April 5, 2007, during a recorded interview,

Defendant admitted to taking LeBlanc’s vehicle, claiming he found the keys on the

ground.

Although initially booked in St. Landry Parish, Defendant was later transferred

to the Iberia Parish jail. Following an investigation, he was arrested on April 3, 2008,

for unauthorized use of a motor vehicle, in violation of La.R.S. 14:68.4. At his

June 4, 2008 arraignment, Defendant pled not-guilty, requested counsel and reserved

his right to a jury trial. On February 3, 2009, after presiding over a hearing on a

motion for other crimes evidence and a La.Code Crim.P. art. 767 hearing,1 the trial

1
Louisiana Code of Criminal Procedure Article 767 prohibits the State from referring to a
defendant’s confession or inculpatory statement in its opening statement unless the statement has

1

court found the evidence admissible except for certain lines in a Boykin colloquy2

that all counsel agreed to exclude.

On February 5, 2009, a petit jury found Defendant guilty as charged. After the

jury was released, the State filed a multiple offender bill of information in open court,

alleging that Defendant had been convicted of four felonies including the February 5,

2009 conviction, and that he should be sentenced as a habitual offender pursuant to

La.R.S. 15:529.1. Defendant pled not guilty. The trial court advised defense counsel

that she had fifteen days to file an objection.

On April 2, 2009, the trial court conducted a multiple offender hearing.

Because no objections were filed, the only issue at the hearing was the identity of

Defendant as being the same person who was previously convicted of the felonies

giving rise to the State filing the multiple offender bill. As it presided over both

hearings, the trial court took judicial notice that the defendant at the multiple offender

hearing was the same defendant convicted of unauthorized use of a motor vehicle on

February 5, 2009 in docket number 08-776.

The State filed the bill of information, minute entry, and Boykin colloquy for

each of three felonies it was alleging Defendant had been convicted of prior to his

February 5, 2009 conviction. Defense counsel did not object to the exhibits being

filed and the trial court called for them to be entered. The State then called Officer

Patrick Freyou to the stand. Officer Freyou had the opportunity to supervise a man

been previously ruled admissible in the case.
2
“Boykin colloquy” stems from the Supreme Court’s “three right articulation” rule, requiring
that there be “an express and knowing waiver” of a defendant’s privilege against compulsory self-
incrimination, right to trial by jury, and right to confront his accusers when taking a guilty plea.
State ex rel. Jackson v. Henderson, 255 So.2d 85, 89 (La.1971), citing Boykin v. Alabama, 395 U.S.
238, 89 S.Ct. 1709 (1969). Without such waiver, the guilty plea cannot be taken. Id. The waiver
cannot be presumed. Id.

2

named Jarman Jones in his capacity as a probation/parole officer with the State of

Louisiana. He positively identified Defendant as the man he supervised. He then

testified that he supervised Defendant after he was granted parole for docket numbers

98-490 and 03-1948, unauthorized use of a motor vehicle and possession of cocaine,

respectively. He recited Defendant’s birthday and social security number.

The State then asked Officer Freyou to read certain lines from the transcripts

of the Boykin colloquies of the three prior felonies; each time, Officer Freyou read

a name, date of birth, and social security number. The biographical data read each

time was identical to the biographical data he had previously testified belonged to

Jarman Jones, whom he had identified earlier in the hearing as Defendant. Officer

Freyou also testified that he was familiar with Defendant’s signature and, when

shown a condition of probation form, positively identified the signature thereon as

belonging to Defendant. He also confirmed that the biographical information on a

pre-sentence investigation belonged to Defendant.

After the hearing, the trial court found that the State proved, beyond a

reasonable doubt, that Defendant was previously convicted of attempted simple

burglary in docket number 97-743, unauthorized use of a motor vehicle in docket

number 98-490, possession of cocaine in docket number 03-1948, and unauthorized

3

use of a motor vehicle in docket number 08-776,3 and that Defendant was a fourth

felony offender.

On April 23, 2009, the trial court sentenced Defendant to thirty years at hard

labor with credit for time served after all counsel confirmed that pursuant to La.R.S.

14:68.4 and La.R.S. 15:529.1, the minimum sentence was twenty years and the

maximum was life. In its oral reasons for ruling, the trial court stated that it had

considered Defendant’s “extensive criminal record” and that it found that “there is an

undue risk that [Defendant] will commit another crime as [he has] shown that [he]

commit[s] one crime after another.” The trial court continued, stating “that a lesser

sentence would deprecate the seriousness of [the] crime because not only did

[Defendant] commit the crime of unauthorized use of a motor vehicle, upon the police

attempting to stop [him, Defendant] led them on a chase through several different

parishes.”

The trial court found that Defendant “knowingly created a risk of great bodily

harm to not only [himself] but to the police that were trying to stop [him] and to all

motorists who may have been on the highway while that chase was going on.” It

found that Defendant was “persistently involved in similar offenses,” that he had “no

respect for the property of others,” and that there were no mitigating circumstances

applicable to Defendant’s case under La.Code Crim.P. art. 894.1.

3
When the Clerk read the multiple offender bill into the record she indicated that the docket
number for Jarman Jones’s February 5, 2009 conviction was 08-1846. At the multiple offender
hearing, the State referred to the February 5, 2009 conviction as being in docket number 08-1846,
and in issuing its finding, the trial court stated: “With the conviction in this Docket Number of Iberia
Number 08-1846 the defendant has thereby become a fourth felony offender.”

All docket numbers on the minute entries, transcripts, and captions in the record indicate that
the docket number correlating to Defendant’s February 5, 2009 conviction is 08-776. For purposes
of this opinion, we will refer to the docket in which Defendant was convicted on February 5, 2009
as 08-776.

4

Counsel for Defendant made an oral motion for reconsideration of sentence and

the trial court denied the motion but gave Defendant credit for time served. No other

objections or motions were made at that time.

On October 1, 2009, Defendant filed a post-conviction relief form, seeking an

out of time appeal and appointment of appellate counsel. He was granted an out of

time appeal on November 13, 2009.

Defendant is now before this court on appeal arguing four assignments of error:

in his pro se brief, he seeks a review for errors patent and asserts that his sentence is

excessive. Through counsel he argues that the State failed to prove Defendant’s

conviction in docket number 98-490, that his thirty-year sentence is excessive, and

that the trial court erroneously allowed dissimilar and highly prejudicial evidence to

be introduced at trial.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for

errors patent on the face of the record. After carefully reviewing the record in this

case, we find that there are no errors patent.

DISCUSSION

State’s Failure to Prove Defendant’s Conviction

Defendant argues that the State did not submit evidence of sentencing in docket

number 98-490, unauthorized use of a motor vehicle, and, therefore, the State failed

to prove that Defendant was convicted of that predicate offense for purposes of the

habitual offender law. As such, Defendant concludes that the State did not prove

beyond a reasonable doubt that he was a fourth felony offender.

5

The State answers, asserting that because Defendant did not file a written

objection to the habitual offender bill as required by La.R.S. 15:529.1(D)(1)(b), he

has waived his right to raise the sufficiency of the evidence used to adjudicate him

a fourth felony offender on direct appeal. Louisiana Revised Statutes

15:529.1(D)(1)(b) (emphasis added) provides:

Except as otherwise provided in this Subsection, the district
attorney shall have the burden of proof beyond a reasonable doubt on
any issue of fact. The presumption of regularity of judgment shall be
sufficient to meet the original burden of proof. If the person claims
that any conviction alleged is invalid, he shall file a written response
to the information. A copy of the response shall be served upon the
prosecutor. A person claiming that a conviction alleged in the
information was obtained in violation of the constitutions of Louisiana
or of the United States shall set forth his claim, and the factual basis
therefor, with particularity in his response to the information. The
person shall have the burden of proof, by a preponderance of the
evidence, on any issue of fact raised by the response. Any challenge to
a previous conviction or adjudication of delinquency which is not made
before sentence is imposed may not thereafter be raised to attack the
sentence.

This court in State v. Kittlin, 97-92 (La.App. 3 Cir. 6/4/97), 695 So.2d 1137,

found that a defendant who did not file written objections nor make an objection

during the adjudication hearing did not preserve his claim for review. The defendant

argued that the evidence presented by the State was insufficient because the Boykin

colloquies for two of the predicate convictions were not valid. We explained:

Although he raised other objections to the plea colloquies used, this
particular objection was not raised in either the written objections or
during the adjudication hearing itself. According to the supreme court,
a “defendant remains bound by his failure to raise his present complaint
at the time he was adjudicated a multiple offender.” State v. Hall,
94-3147 (La.6/2/95); 654 So.2d 1085. Furthermore, La.R.S.
15:529.1(D)(1)(b) states that “[a]ny challenge to a previous conviction
or adjudication of delinquency which is not made before sentence is
imposed may not thereafter be raised to attack the sentence.”
Consequently, the Defendant is barred from challenging the validity of
his prior guilty pleas on the grounds alleged in his appeal.

6

Id. at 1139. Despite our ruling, however, we proceeded with a review of the

defendant’s claim and found that even if his objection had been preserved, the claim

had no merit.

In a more recent case, State v. Nelson, 07-701 (La.App. 3 Cir. 1/30/08), 977

So.2d 1061, writ denied, 08-494 (La. 10/3/08), 992 So.2d 1009, and writ denied, 08-

497 (La. 10/3/08), 992 So.2d 1009, this court noted that the defendant failed to object

to any of the evidence presented at the habitual offender proceedings and failed to

make any generalized objection after being adjudicated a habitual offender. As such,

we concluded that the defendant was precluded from raising the issue of the

sufficiency of the evidence used to adjudicate him as a habitual offender.

Other appellate courts have ruled similarly on this issue. In State v. Braziel,

42,668, pp. 6-7 (La.App. 2 Cir. 10/24/07), 968 So.2d 853, 858-59 (citation and

footnote omitted), the second circuit court held, “[w]here the record does not contain

a written objection to the multiple offender bill of information, the issue is not

preserved for appellate review unless an oral objection is made at the hearing.”

Similarly, in State v. Briscoe, 99-1841, p. 7 (La.App. 4 Cir. 1/17/01), 779 So.2d

30, 36, writ denied, 01-996 (La. 10/4/02), 826 So.2d 1113 (citation omitted), the

fourth circuit court stated, “[a]n oral objection is sufficient to preserve objection that

trial court erred in adjudicating the defendant a habitual offender on the ground that

a predicate conviction was based on an invalid guilty plea.” In Briscoe, counsel for

the defendant objected to the introduction of the evidence produced by the State as to

his two predicate convictions, alluding to the possibility of collaterally attacking the

guilty pleas on appeal. On appeal, however, the court concluded that defense

counsel’s action did not set forth a claim and factual basis with particularity as

7

required by La.R.S. 15:529.1(D)(1)(b), and thus, the defendant was barred from

raising the issue on appeal.

In the instant case, Defendant challenges the sufficiency of the evidence used

to adjudicate him as a multiple offender, claiming that the State did not prove he had

been sentenced for one of three predicate offenses. As noted in the habitual offender

bill of information found in the record, the State alleged that the Defendant had been

convicted of four felonies: 1) attempted simple burglary on October 14, 1997; 2)

unauthorized use of a motor vehicle on December 7, 1998; 3) possession of cocaine

on May 6, 2005; and, 4) unauthorized use of a motor vehicle on February 5, 2009.

The record is void of a written response to the habitual offender bill of

information filed by Defendant as required by La.R.S. 15:529.1(D)(1)(b). Also, the

transcript of the habitual offender hearing indicates that the trial court confirmed that

an objection had not been filed by Defendant and that the only issue before the court

was the identity of Defendant as being the same person who was previously convicted

of the crimes set forth in the bill of information.

The State proceeded with the filing of exhibits in support of Defendant’s status

as a fourth felony offender, including docket number 98-490. As proof of Defendant’s

conviction in docket number 98-490, the State offered a certified copy of the bill of

information, charging him with unauthorized use of a motor vehicle, a minute extract

from December 7, 1998, reflecting Defendant’s conviction of the charge, and the

transcript of his guilty plea taken December 7, 1998.

In response to the exhibits offered, counsel for Defendant stated:

Well, let me be very careful in what I’m about to say. I want to
make sure I have it straight in my mind. We have no objections to their
introduction as far as the documents as they speak for themselves. What

8

we’re objecting to is Mr. Duhe’s character - description of what the
document’s prove and/or disprove.

Next, Officer Freyou, Defendant’s probation/parole officer, testified that he was

first assigned to supervise Defendant when he was granted parole on January 7, 2008

for his conviction in docket number 98-490. Officer Freyou also identified Defendant

as the same person he supervised under that docket number. Officer Freyou confirmed

that the information obtained from Defendant, his date of birth and social security

number, were the same as those found in the proceeding of the Defendant’s guilty plea

transcript in docket number 98-490. Counsel for Defendant did not object to

Mr. Freyou’s testimony. Following the trial court’s ruling, however, defense counsel

objected to the trial court’s finding that the State proved Defendant to be a fourth

felony offender beyond a reasonable doubt.

Considering the record at hand, Defendant did not preserve the issue for review

on appeal. Defendant did not file a written response to the habitual offender bill of

information as required by La.R.S. 15:529.1(D)(1)(b). Although Defendant objected

to the State’s description of what the documents proved and to the trial court’s ruling,

he did not specifically address whether the State had established his conviction for the

predicate offense. As such, Defendant did not set forth a claim and factual basis with

particularity as required by La.R.S. 15:529.1(D)(1)(b). Briscoe, 779 So.2d 30.

Without a contemporaneous objection to preserve the issue, Defendant waived the

right to appellate review of that issue.

Although the State did not submit minutes or the transcript of sentencing to

prove that Defendant was sentenced in docket number 98-490, the testimony of

Officer Freyou indicates that Defendant was, in fact, sentenced. According to Officer

Freyou, he was assigned to supervise Defendant while on parole for his conviction in

9

docket number 98-490. If Defendant had never been sentenced for his conviction in

docket number 98-490, he would not have been on parole. Defendant did not object

to Officer Freyou’s testimony, nor did he allege that he was never sentenced.

As noted by the supreme court in State v. Mays, 05-2555, p. 2 (La. 5/26/06), 929

So.2d 1231, 1232, “[t]his Court has repeatedly stated that [La.] R.S. 15:529.1(F) does

not require the state to use a specific type of evidence to carry its burden at an habitual

offender hearing; prior convictions may be proved by any competent evidence.” See

State v. Quinn, 09-1382 (La.App. 3 Cir. 5/12/10), 38 So.3d 1102, writ denied, 10-1355

(La. 1/7/11), 53 So.3d 885.

Although Mr. Freyou’s testimony in the instant case involved the identity of the

Defendant, his testimony also shows that Defendant was sentenced in docket number

98-490. Officer Freyou did not directly address Defendant’s sentence or the fact that

Defendant was sentenced, but one can easily infer from his testimony that Defendant

was sentenced since he was on parole. Accordingly, there is no merit in Defendant’s

claim that the State did not prove he was sentenced in docket number 98-490.

This assignment of error is without merit.

Excessive Sentence

In his next assignment of error, Defendant argues that a thirty-year sentence is

excessive for a conviction of unauthorized use of a motor vehicle on the facts relied

upon by the State—that Defendant simply picked up some keys and drove off in the

victim’s car. Defendant asserts there was no violence involved in taking the victim’s

vehicle, the vehicle had not been broken into or hot-wired, and the victim was

nowhere near the vehicle when the offense occurred. Defendant also contends that the

trial court failed to consider mitigating circumstances, including the fact he had a child

10

and sick mother who need his assistance. Lastly, Defendant maintains that none of the

prior offenses upon which his adjudication as a fourth felony offender was based were

violent. For these reasons, Defendant concludes that his case warrants the minimum

twenty-year sentence or a deviation below the minimum.

In opposition to Defendant’s claim of excessiveness, the State correctly avers

that Defendant’s oral motion to reconsider sentence did not provide any grounds for

reconsideration and that his pro se written motion for reconsideration was not filed

timely.4 As such, the State contends Defendant is barred from raising the

excessiveness of his sentence on appeal.

A motion to reconsider sentence must be based upon a specific ground,

including claims of excessiveness. La.Code Crim.P. art. 881.1(E). In State v. Mims,

619 So.2d 1059, 1059-60 (La.1993), the supreme court addressed this requirement,

explaining:

Under Article 881.1 Defendant must file a motion to reconsider
and set forth the “specific grounds” upon which the motion is based in
order to raise an objection to the sentence on appeal. However, in order
to preserve a claim of constitutional excessiveness, the defendant need
not allege any more specific ground than that the sentence is excessive.
If the defendant does not allege any specific ground for excessiveness or
present any argument or evidence not previously considered by the court
at original sentencing, then the defendant does not lose the right to appeal
the sentence; the defendant is simply relegated to having the appellate
court consider the bare claim of excessiveness.

Because Defendant failed to effectively assert specific grounds for the reconsideration

of his sentence, we address his claim as a bare claim of excessiveness.

This court has set forth the following standard to be used in reviewing excessive

sentence claims:

4
Even if Defendant’s pro se motion for reconsideration had been filed timely, it did not
address the issues Defendant is now seeking to argue on appeal.

11

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. 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.
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,

1042-43, writ denied, 01-838 (La. 2/1/02), 808 So.2d 331 (citations omitted).

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

meaningful contribution to acceptable penal goals, this court has 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. 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 (citation omitted).

The penalty for unauthorized use of a motor vehicle is not more than ten years

imprisonment, with or without hard labor, or a fine of not more than $5,000, or both.

La.R.S. 14:68.4. The applicable sentence enhancement provision of La.R.S.

15:529.1(A) provides:

(4) If the fourth or subsequent felony is such that, upon a first
conviction the offender would be punishable by imprisonment for any
term less than his natural life then:

12

(a) The person shall be sentenced to imprisonment for the fourth
or subsequent felony for a determinate term not less than the longest
prescribed for a first conviction but in no event less than twenty years
and not more than his natural life[.]

Because the underlying conviction for unauthorized use of a motor vehicle is

punishable by a term of imprisonment less than Defendant’s natural life, pursuant to

La.R.S. 15:529.1(A)(4)(a), Defendant’s enhanced sentencing exposure is twenty years

to life imprisonment. Defendant’s thirty-year sentence is in the lower range of

possible sentences.

At sentencing, the State stressed that the evidence of Defendant’s prior felonies

introduced at the habitual offender hearing clearly indicated a pattern of criminal

behavior consistent throughout Defendant’s adult life. Considering Defendant’s

continuing criminal activity, the lack of any attempt to reform, and the likelihood of

being a repeat offender if released back into society, the State maintained that a

significant hard labor sentence was appropriate.

Counsel for Defendant did not offer any evidence for the trial court to consider

at sentencing. The trial court confirmed that Defendant was twenty-nine years old,

and that Defendant had written a letter to the court. It then stated:

I have considered your extensive criminal record in this matter.

I suspect you must have some other problem, maybe drugs, alcohol
or a combination of substance abuse problems that make you the danger
to society that you are.

I’ve considered the sentencing guidelines found in Code of
Criminal Procedure Article 894.1 and I find that there is an undue risk
that you will commit another crime as you have shown that you commit
one crime after another, I cannot imagine how many crimes you may
have committed that were not solved and that you were found guilty of,
and certainly, you are a fourth offender and those are the ones that I will
consider.

13

That you need correctional treatment or a custodial environment
that can be provided most effectively by your commitment to an
institution; that a lesser sentence would deprecate the seriousness of your
crime because not only did you commit the crime of unauthorized use of
a motor vehicle, upon the police attempting to stop you, you led them on
a chase through several different parishes as I recall the testimony at trial.
And I find that knowingly created a risk of great bodily harm to not only
yourself but to the police that were trying to stop you and to all motorists
who may have been on the highway while that chase was going on.

I find that you’ve been persistently involved in similar offenses of
this nature where you seem to have no respect for the property of others
and I note specifically your previous unauthorized use of a motor vehicle
conviction and your previous attempted burglary conviction.

I’ve also reviewed Article 894.1 for any mitigating circumstances
and I fail to see that there are any mitigating circumstances that would be
applicable in this case. For a man who is 29 years of age, you have
amassed an amazing criminal record.

Defendant urges this court to find that his thirty-year sentence is excessive and

that his sentence should be reduced to no more than the minimum time allowed by

law, twenty years. A court must consider several factors when determining whether

or not to depart from the minimum sentence imposed pursuant to La.R.S. 15:529.1.

The supreme court explained:

The Legislature enacted the Habitual Offender Law pursuant to its
sole authority under Article 3, § I of the Louisiana Constitution to define
conduct as criminal and to provide penalties for such conduct. This
Court has repeatedly held that the statute is constitutional and therefore,
the minimum sentences the statute imposes upon multiple offenders are
presumed to be constitutional, and should be accorded great deference by
the judiciary. However, courts have the power to declare a sentence
excessive under Article I, Section 20 of the Louisiana Constitution even
though it falls within the statutory limits provided by the Legislature.

In State v. Dorthey, [623 So.2d 1276, 1280 (La.1993),] we held
that this power extends to the minimum sentences mandated by the
Habitual Offender Law and that the trial court must reduce a defendant’s
sentence to one not constitutionally excessive if the trial court finds that
the sentence mandated by the Habitual Offender Law “makes no
measurable contribution to acceptable goals of punishment” or is nothing
more than “the purposeful imposition of pain and suffering” and “is

14

grossly out of proportion to the severity of the crime.” State v. Dorthey,
supra at 1280-1281.

Thereafter, in a series of writ grants, we acted to curtail the district
court’s use of Dorthey in cases in which it appeared that the courts were
simply substituting their judgment of what constituted an appropriate
penalty for that of the Legislature.

This effort culminated in [State v.] Johnson, [97-1906 (La. 3/4/98),
709 So.2d 672,] where we set out guidelines for when and under what
circumstances courts should exercise their discretion under Dorthey to
declare excessive a minimum sentence mandated by the Habitual
Offender Law. We held that “[a] court may only depart from the
minimum sentence if it finds that there is clear and convincing evidence
in the particular case before it which would rebut [the] presumption of
constitutionality” and emphasized that “departures downward from the
minimum sentence under the Habitual Offender Law should occur only
in rare situations.” State v. Johnson, supra at 676, 677. To rebut the
presumption that the mandatory minimum sentence is constitutional,
Defendant must clearly and convincingly show that:

[he] is exceptional, which in this context means that because
of unusual circumstances this defendant is a victim of the
legislature’s failure to assign sentences that are
meaningfully tailored to the culpability of the offender, the
gravity of the offense, and the circumstances of the case.

Id. (Citing State v. Young, 94-1636 (La.App. 4 Cir. 10/26/95), 663 So.2d
525, 529 (Plotkin, J., concurring)).

In making this determination, we held that “while a defendant’s
record of non-violent offenses may play a role in a sentencing judge’s
determination that a minimum sentence is too long, it cannot be the only
reason, or even the major reason, for declaring such a sentence
excessive.” Id. This is because the defendant’s history of violent or
non-violent offenses has already been taken into account under the
Habitual Offender Law for third and fourth offenders, which punishes
third and fourth offenders with a history of violent offenses more
severely than those with a history of non-violent offenses. Id.

In addition, we held that the trial judge must keep in mind the
goals of the statute, which are to deter and punish recidivism, and, we
instructed that the sentencing court’s role is not to question the wisdom
of the Legislature in requiring enhanced punishments for multiple
offenders, but rather to determine whether the particular defendant before
it has proven that the minimum sentence is so excessive in his case that
it violates Louisiana’s constitution. Id. at 677.

15

Finally, we held that if a trial judge finds clear and convincing
evidence which justifies a downward departure, he is not free to sentence
the defendant to whatever sentence he feels is appropriate under the
circumstances, but must instead sentence the defendant to the longest
sentence which is not constitutionally excessive. Id.

State v. Lindsey, 99-3302, 99-3256, pp. 4-5 (La. 10/17/00), 770 So.2d 339, 342-43,

cert. denied, 532 U.S. 1010, 121 S.Ct. 1739 (2001) (citations omitted).

Subsequent to the Lindsey ruling, courts have been reluctant to deviate from the

sentence imposed by the trial court. In State v. Quinn, 38 So.3d 1102, the defendant

was convicted of possession of cocaine, adjudicated a fourth offender, and sentenced

to the mandatory minimum of twenty years. The trial court considered the defendant’s

criminal history which included two convictions for simple robbery, two convictions

for possession of cocaine, and a conviction for false imprisonment. The trial court

also noted that the defendant could not be given a suspended sentence or probation,

that he was in need of correctional treatment, and that a lesser sentence would

deprecate the seriousness of the offense. Lastly, the trial court declined to find the

defendant was exceptional under Dorthey, 623 So.2d 1276, due to his criminal history

and because he had committed several crimes of violence. On appeal, finding that the

minimum sentence is presumed to be constitutional pursuant to the supreme court’s

ruling in Lindsey, 770 So.2d 339, this court concluded that the defendant’s sentence

was not excessive.

In State v. Murphy, 09-805 (La.App. 5 Cir. 2/23/10), 34 So.3d 886, writ denied,

10-690 (La. 10/15/10), 45 So.3d 1110, the defendant was convicted of possession of

a controlled substance in the form of a psychoactive drug. He was found to be a fourth

felony offender and was sentenced to thirty years at hard labor. On appeal, the

defendant complained that his sentence was unconstitutionally excessive, considering

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that the underlying offense was relatively minor. The court affirmed the sentence,

finding that the defendant’s prior convictions for distribution of narcotics showed a

continuing pattern that was not forestalled by previous convictions and terms of

imprisonment.

In State v. Briggs, 09-148 (La.App. 4 Cir. 8/19/09), 19 So.3d 517, writ denied,

09-1964 (La. 4/5/10), 31 So.3d 355, the defendant was sentenced to twenty years as

a fourth offender, the minimum possible sentence for his conviction of attempted

possession of crack cocaine. On appeal, the defendant argued that the minimum was

excessive considering the relatively minor nature of the offense and the non-violent

nature of his prior offenses. His three underlying prior convictions included simple

possession of cocaine, theft of property valued between $100 and $500, and

possession of stolen property. In affirming the sentence on appeal, the court reasoned:

Rejecting a similar argument regarding the relatively minor nature
of an offense involving a small amount of cocaine, this court in State v.
Jones, 07-0533, pp. 10-13, (La.App. 4 Cir. 12/28/07), 975 So.2d 73 at pp.
80-81, reasoned that “[t]he defendant did not produce any evidence to
rebut the presumption of constitutionality. His only argument on appeal
is that the sentence is extreme for possession of a small amount of
cocaine.” See also State v. Fleming, 2004-1218 (La.App. 5 Cir. 4/26/05),
902 So.2d 451 (rejecting a similar argument).

Insofar as the non-violent nature of the Mr. Briggs’ underlying
convictions, “the defendant’s history of violent or non-violent offenses
has already been taken into account under the Habitual Offender Law for
third and fourth offenders, which punishes third and fourth offenders
with a history of violent offenses more severely than those with a history
of non-violent offenses.” Lindsey, 99-3302, 99-3256, p. 5, 770 So.2d at
343 (citing Johnson, supra).

Id. at 519-20.

Considering the facts of the instant case in light of jurisprudence discussed

herein, Defendant’s sentence is not excessive, nor does it warrant a departure below

the statutory minimum sentence of twenty years. Although the instant offense may be

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considered relatively minor and the predicate offenses are not crimes of violence,

Defendant’s convictions show the type of continuing pattern of criminal activity for

which La.R.S. 15:529.1 was intended to deter and punish. See Murphy, 34 So.3d 886

and Lindsey, 770 So.2d 339. Additionally, the trial court’s imposition of a near-

minimum sentence reflects its consideration of potential mitigating factors.

Accordingly, Defendant’s sentence is affirmed.

Dissimilar Evidence

In his final assignment of error, Defendant argues that the trial court erred in

allowing dissimilar, highly prejudicial evidence of other crimes with minimal to no

probative value to be introduced at trial in docket number 08-776.

On February 3, 2008, the State filed a “Notice of Intent to Use and Motion for

Pretrial Determination of Admissibility of Other Crimes Evidence.” At a hearing held

that same day, the State introduced a certified copy of a bill of information and Boykin

colloquy from Iberia Parish, docket number 98-490, State v. Jarman Jones. Next,

Officer Freyou testified that he supervised Defendant’s parole in docket number 98-

490 wherein Defendant was convicted of unauthorized use of a motor vehicle on

December 7, 1998.

The factual basis set forth in Defendant’s plea in docket number 98-490 was

read aloud by Officer Freyou. Counsel for Defendant did not contest the evidence

presented by the State or call any witnesses on Defendant’s behalf.

The State also argued that under La.Code Evid. art. 404(B), it was entitled to

use the evidence submitted for the following reasons:

He’s been clearly identified by Mr. Freyou as the person who was
convicted under Iberia Docket 98-490.

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The recitation of the factual basis and the admission by the defendant of
being responsible and guilty of unauthorized use of a motor vehicle, that
any issues arising at trial dealing with 404-B issues, lack of knowledge,
mistake, accident, intent, all of the 404-B systems, are all matters that are
relevant for this similar type offense and charge during that trial.

And for that limited purposes [sic], it is available and should be available
to the state to use.

Defense counsel did not offer any argument to refute the State’s request to use the

evidence at trial.

The trial court subsequently held, “[b]ased upon the showing, I find that the

evidence is admissible under 404-B for the knowledge, intent, systems exceptions that

are given in 404-B.” Defendant did not object to the trial court’s ruling. Counsel then

proceeded to redact two sections of the Boykin colloquy that contained inadmissible

evidence of other crimes.

At trial, the State called Officer Freyou to testify again about Defendant’s prior

conviction for unauthorized use of a motor vehicle in docket number 98-490. A

certified copy of the bill of information and guilty plea colloquy were introduced into

evidence with no objection from Defendant. Officer Freyou then read aloud the

factual basis for Defendant’s guilty plea with no objection made by Defendant.

Now on appeal, Defendant alleges for the first time that the State’s introduction

of other crimes evidence should not have been allowed by the trial court because there

was no system to the two offenses and no probative value in the prior offense to

establish knowledge or intent. Article 841 of the Louisiana Code of Criminal

Procedure provides, in pertinent part, “[a]n irregularity or error cannot be availed of

after verdict unless it was objected to at the time of occurrence. ” There was no

objection raised by Defendant to the trial court’s ruling allowing the introduction of

his prior offense or when it was introduced at trial. Accordingly, in the absence of a

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contemporaneous objection at time of the trial, Defendant may not argue the issue on

appeal, and thus, the issue is not considered herein. State v. Todd, 03-1230 (La.App.

3 Cir. 2/4/04), 866 So.2d 1040, writ denied, 04-588 (La. 7/2/04), 877 So.2d 143.

This assignment of error is without merit.

DECREE

For the foregoing reasons, the adjudication and sentence of the trial court is

affirmed.

AFFIRMED.

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