State of Louisiana v. Felton Hurst, Jr.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

10-1204

STATE OF LOUISIANA

VERSUS

FELTON HURST, JR.

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APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 298,352
HONORABLE JOHN C. DAVIDSON, DISTRICT JUDGE

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ULYSSES GENE THIBODEAUX
CHIEF JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, J. David Painter, and
Phyllis M. Keaty, Judges.

CONVICTION OF ATTEMPTED AGGRAVATED
BATTERY IS REVERSED, AND SENTENCE IS SET
ASIDE. JUDGMENT OF ACQUITTAL FOR
AGGRAVATED BATTERY IS ENTERED.
SENTENCE FOR PURSE SNATCHING IS
AMENDED. ALL OTHER SENTENCES ARE
AFFIRMED.

James C. Downs
District Attorney - 9th Judicial District Court
Harold A. Van Dyke III
First Assistant District Attorney - 9th Judicial District Court
P. O. Drawer 1472
Alexandria, LA 71309
Telephone: (318) 473-6650
COUNSEL FOR:
Plaintiff/Appellee - State of Louisiana

Mark Owen Foster
Louisiana Appellate Project
P. O. Box 2057
Natchitoches, LA 71457-2057
Telephone: (318) 572-5693
COUNSEL FOR:
Defendant/Appellant - Felton Hurst, Jr.

Felton Hurst, Jr.
Louisiana State Penitentiary
Camp J/ Bass
Angola, LA 70712

THIBODEAUX, Chief Judge.

In 2009, Felton Hurst, Jr., was charged with the following counts: 1)

aggravated battery with a dangerous weapon, a violation of La.R.S. 14:34; (2)

aggravated battery with a dangerous weapon, a violation of La.R.S. 14:34; (3) simple

robbery, a violation of La.R.S. 14:65; (4) carjacking, a violation of La.R.S. 14:64.2;

(5) purse snatching, a violation of La.R.S. 14:65.1; and, (6) simple criminal damage

to property, a violation of La.R.S. 14:56(B).

After a bench trial, Hurst was found guilty of attempted aggravated

battery in count one, guilty as charged in counts two through five, and guilty of

simple criminal damage under $500.00 in count six. For these convictions Hurst

received the following consecutive sentences: (1) six months in parish jail; (2) ten

years at hard labor; (3) seven years at hard labor; (4) twenty years at hard labor,

without benefit of parole, probation, or suspension of sentence; (5) twenty years at

hard labor, without benefit of parole, probation, or suspension of sentence; and, (6)

six months. The trial court denied a motion to reconsider sentence.

I.

ISSUES

(1) We shall consider whether Hurst’s conviction of
attempted aggravated battery was a patent error
where Hurst was charged with an aggravated
battery;

(2) after concluding that the verdict of attempted
aggravated battery was non-responsive to the charge
of aggravated battery and is a non-crime, we shall
examine whether Hurst should be acquitted of the
aggravated battery because of double jeopardy
where the trial court explicitly acknowledged that it
had reasonable doubt as to whether Hurst committed
an aggravated battery;

(3) then, we shall consider whether Hurst’s sentence for
purse snatching was a patent error where the trial

court sentenced him to twenty years at hard labor
without the benefit of probation, parole, or
suspension of sentence; and,

(4) finally, we shall consider whether the maximum
consecutive sentences for Hurst’s convictions are
excessive where all of the convictions are based on
the same act or transaction and where the trial court
examined in detail factors warranting consecutive
sentences.

II.

FACTS

On the evening of June 7, 2009, the victim and her mother traveled to

Alexandria, Louisiana to go shopping and play bingo. After the victim parked her

vehicle on the side of Bingo World, Hurst approached the victim, began pulling on

the strap of her purse, and told her to give him her money. Hurst then punched the

victim in the left eye, and the two began to struggle and fight for her purse and keys.

Hurst gained possession of the victim’s purse. Hurst then retrieved the key, got into

the victim’s car, and attempted to leave. The victim and her mother continued to

struggle with Hurst through the opened door, trying to pull him from the car. When

Hurst managed to start the car, he put it in reverse, knocking the victim’s mother to

the ground. Hurst proceeded to smash the victim’s car into nearby vehicles. Two

civilians attempted to stop Hurst, and law enforcement arrived soon thereafter.

III.

LAW AND DISCUSSION

A) Errors Patent

(1) Non-responsive Verdict and Double Jeopardy

In State v. Mayeux, 498 So.2d 701 (La.1986), the defendant was charged

with aggravated battery, and the jury returned a verdict of attempted aggravated

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battery. The appellate court held that the attempted aggravated battery was a non-

responsive verdict. As a result, the appellate court reversed the conviction, set aside

the sentence, and ordered an acquittal to be entered for aggravated battery. State v.

Mayeux, 485 So.2d 256 (La.App. 3 Cir.), rev’d, 498 So.2d 701 (La.1986). The

supreme court affirmed the appellate court’s ruling vacating the conviction and

setting aside the sentence. Nevertheless, it reversed the appellate court’s ruling

ordering an acquittal:

[T]he verdict of the jury was unresponsive to the crime
charged and purported to convict of a crime not
specifically designated by our legislature. Further we
conclude it is beyond the scope of our appellate power to
modify the illegal verdict in any fashion. Accordingly, we
find the verdict to be wholly invalid and without legal
effect to convict or acquit the defendant of aggravated
battery or of lesser included responsive offense.

....

DOUBLE JEOPARDY

....

[W]e conclude the Fifth Amendment does not bar retrial
when a jury’s verdict, containing a nonwaivable defect,
must be set aside by an appellate court. The jury rendered
an illegal verdict. It purported to convict of a crime
unresponsive under art. 814 and unspecified in our criminal
law. It amounted simply to conviction of a non-crime. As
such it could operate neither as a conviction nor acquittal.
Naturally it should not have been received by the trial
judge. After having been received, the verdict may not be
modified or reformed on appeal. Accordingly, the
appropriate action is to set aside the conviction and remand
for retrial.

Mayeux, 498 So.2d at 704-05.

Following the supreme court’s decision, the defendant was retried and

convicted of aggravated battery. Eventually, the federal district court reversed the

conviction based on double jeopardy. Mayeux v. Belt, 737 F.Supp. 957 (W.D. La.

1990). The federal court concluded that the jury in the first trial was given a full
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opportunity to return a verdict on the greater charge but, instead, found the defendant

guilty of attempt. The court pointed out that the trial court had instructed the jury that

a verdict of attempt could be returned if the jurors were not convinced that Mayeux

was guilty of aggravated battery, and the jury acquitted Mayeux of aggravated

battery. The federal district court concluded that the second trial put the defendant

in jeopardy a second time.

In State v. Campbell, 94-1268 (La.App. 3 Cir. 5/3/95), 657 So.2d 152,

aff’d in part & vacated in part, 95-1409 (La. 3/22/96), 670 So.2d 1212, two

defendants were indicted for jury tampering. The jury returned a verdict of attempted

jury tampering. The defendants’ motion for arrest of judgment because the crime of

attempted jury tampering did not exist was denied. The defendants appealed.

This court explained that the elements of attempted jury tampering

“support a conviction for the completed offense, and that this is exactly what the

legislature desired in enacting the statute. Any attempt at jury tampering is subsumed

into the statute.” Id. at 155. Consequently, this court vacated the defendants’

convictions and set aside the sentences. Then, this court followed the federal court’s

decision in Mayeux, 737 F.Supp. 957, and ordered that acquittals be entered.

The State appealed. The supreme court affirmed this court’s ruling

vacating the convictions and setting aside the sentences based upon the non-

responsive verdicts. Campbell, 670 So.2d 1212. Nevertheless, the supreme court

reversed this court’s ruling that ordered acquittals on the original charges. Id. The

court explained that attempted jury tampering is jury tampering under Louisiana law.

Id. Thus, whether the defendants communicated or attempted to communicate with

a juror through an intermediary for the purpose of influencing the outcome of the

trial, “the jury’s return of the purportedly lesser verdicts of attempt [did not]

necessarily and implicitly” acquit the defendants of any material element of the
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crimes charged. Id. at 1214. Thus, the supreme court concluded that a retrial of the

defendants would not constitute double jeopardy. Id.

Here, Hurst was charged with an aggravated battery but was convicted

of attempted aggravated battery. This verdict was non-responsive. Furthermore,

attempted aggravated battery is not specified as a crime in Louisiana, making the

verdict illegal. Accordingly, we reverse the conviction of attempted aggravated

battery and set the sentence aside.

Like the defendant in Mayeux, Hurst was charged, among other things,

with aggravated battery. Like the Mayeux trial court, the trial court here found Hurst

guilty of attempted aggravated battery. Unlike Campbell, where the supreme court,

distinguishing Mayeux, concluded that attempted jury tampering is jury tampering,

attempted aggravated battery is certainly not an aggravated battery. Finally, unlike

Campbell or Mayeux, the trial judge specifically found: “I do have a reasonable

doubt as to whether or not an aggravated battery was committed . . . .” (emphasis

added).

Thus, we again express the sentiment previously articulated: “[w]hile

we would prefer to follow the ruling of the Louisiana Supreme Court in State v.

Mayeux, . . . we refuse to waste the limited judicial resources of this state in vain and

futile acts.” Campbell, 657 So.2d at 156. Therefore, we enter an acquittal on the

charge of aggravated battery.

(2) Excessive Sentence

The trial court imposed an illegally excessive sentence on the conviction

of purse snatching. The trial court sentenced Hurst to twenty years at hard labor

without the benefit of probation, parole, or suspension of sentence. Louisiana

Revised Statutes 14:65.1 does not prohibit the benefits of probation, parole, or

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suspension of sentence. Although the trial court has discretion to refuse to suspend

the sentence, the trial court does not have discretion to deny parole eligibility when

the penalty provision does not authorize such a denial. Accordingly, this court

amends Hurst’s sentence to delete the denial of parole. See State v. Yancy, 93-2798

(La. 5/31/96), 673 So.2d 1018; State v. Buckley, 02-1288 (La.App. 3 Cir. 3/5/03), 839

So.2d 1193. See also State v. Sanders, 04-17 (La. 5/14/04), 876 So.2d 42 (stating that

an appellate court should not rely on the self-activating provisions of La.R.S.

15:301.1 when the trial court imposes limits beyond those statutorily authorized).

This court also instructs the trial court to make an entry in the minutes reflecting this

change. See State v. Tate, 99-1483 (La. 11/24/99), 747 So.2d 519.

(3) Post-Conviction Relief

The record indicates that the trial court did not advise Hurst of the

prescriptive period for filing post-conviction relief as required by La.Code Crim.P.

art. 930.8. Thus, we order the trial court to inform Hurst of the provisions of Article

930.8 by sending appropriate written notice to Hurst within ten days of the rendition

of this opinion and to file written proof in the record that Hurst received the notice.

See 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.

(4) Minutes

The minutes of sentencing are in need of correction. The transcript of

the sentencing proceeding reflects that the trial court imposed Hurst’s sentence for

carjacking without the benefit of parole, probation, or suspension of sentence.

Nevertheless, the court minutes do not reflect this. “[I]t is well settled that when the

minutes and the transcript conflict, the transcript prevails.” State v. Wommack,

00-137, p. 4 (La.App. 3 Cir. 6/7/00), 770 So.2d 365, 369, writ denied, 00-2051 (La.
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9/21/01), 797 So.2d 62 (citing State v. Webster, 95-605 (La.App. 3 Cir. 11/2/95), 664

So.2d 624). Thus, we instruct the trial court to amend the minutes of sentencing to

correctly reflect the sentence the trial court imposed on the conviction of carjacking.

See State v. Perry, 08-1304 (La.App. 3 Cir. 5/6/09), 9 So.3d 342, writ denied, 09-

1955 (La. 6/25/10), 38 So.3d 352.

B) Excessive Sentence as Cruel or Unusual Punishment

(1) Imposition of Maximum Sentences

“No law shall subject any person . . . to cruel, excessive, or unusual

punishment.” La.Const. art. 1, § 20.

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

omitted). The following factors help to decide whether a sentence is shocking or

makes no meaningful contribution to acceptable penal goals: “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, 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 (citing State v. Smith, 99-606, 99-2015, 99-

2019, 99-2094 (La. 7/6/00), 766 So.2d 501). Although a comparison of sentences

imposed for similar crimes can be helpful, “it is well settled that sentences must be

individualized to the particular offender and to the particular offense committed.” Id.

(quoting State v. Batiste, 594 So.2d 1, 3 (La.App. 1 Cir. 1991)). Because the trial

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court is in the best position to evaluate the aggravating and mitigating factors of a

particular case, “it is within the purview of the trial court to particularize the

sentence.” Id. Finally, “[a]s a general rule, maximum sentences are appropriate in

cases involving the most serious violation of the offense and the worst type of

offender.” State v. Hall, 35,151, p. 4 (La.App. 2 Cir. 9/26/01), 796 So.2d 164, 169

(citing State v. Grissom, 29,718 (La.App. 2 Cir. 8/20/97), 700 So.2d 541; State v.

Walker, 573 So.2d 631 (La.App. 2 Cir. 1991)).

Here, the trial court considered more than the violent nature of Hurst’s

actions when it imposed maximum sentences. For each conviction, the trial court

provided in detail the various facts that impacted its decision to impose maximum

sentences. The court also cited related jurisprudence in support of its decision.

Moreover, the trial court considered Hurst’s criminal history that

included a conviction for purse snatching, multiple drug convictions, and a felon in

possession of a firearm conviction. The trial court also observed that Hurst’s conduct

created a risk of death or great bodily harm to more than one person, resulted in

significant injury to the victims, and showed no regard for the possible consequences

of his actions. Last, the trial court found that Hurst should have known that the

victims were incapable of effectively resisting him because of the surprise nature of

the attack. Considering the trial court’s thorough recitation of the aggravating facts

and the jurisprudence, the trial court did not err in imposing the maximum sentences

for these offenses.

(2) Imposition of Consecutive Sentences

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. Other
sentences of imprisonment shall be served consecutively
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unless the court expressly directs that some or all of them
be served concurrently.

La.Code Crim.P. art. 883. Before the trial court may impose consecutive sentences,

it “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 (citing

State v. Pittman, 604 So.2d 172 (La.App. 4 Cir. 1992), writ denied, 610 So.2d 796

(La.1993)). The following factors may be considered:

the defendant’s criminal history, the gravity or
dangerousness of the offense, the viciousness of the
crimes, the harm done to the victims, whether the
defendant constitutes an unusual risk of danger to the
public, the defendant’s apparent disregard for the property
of others, the potential for the defendant’s rehabilitation,
and whether the defendant has received a benefit from a
plea bargain.

State v. Thibodeaux, 05-1187, pp. 8-9 (La.App. 3 Cir. 3/1/06), 924 So.2d 1205, 1211,

writ denied, 06-700 (La. 10/6/06), 938 So.2d 65 (quoting 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) (citations omitted).

Here, before imposing consecutive sentences, the trial court first

acknowledged the application of Article 883. Next, the trial court noted that

Louisiana courts have adhered to the general rule of imposing concurrent sentences

for crimes arising from a single course of criminal conduct. The court also added that

under Article 883, consecutive sentences may be imposed on Hurst based on his

extensive criminal record, the violent nature of his conduct, and the obvious risk he

poses to public safety.

The trial court then discussed in great detail the factors it considered in

determining whether consecutive sentences were warranted:

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In State versus Massey [08-839 (La.App. 3 Cir. 12/10/08),
999 So.2d 343] the Third Circuit applied the factors to be
considered by the trial court when imposing consecutive
sentence. Number one, the defendant’s criminal history.
Mr. Hurst’s criminal history is extensive. He has previous
convictions of Purse Snatching, Possession Of Cocaine,
Attempted Possession Of A Firearm By A Convicted
Felon, Possession Of Marijuana Second Offense. In this
case he’s been convicted of Attempted Aggravated Battery,
Aggravated Battery, Simple Robbery, Carjacking, Purse
Snatching, and Simple Criminal Damage to Property Under
Five Hundred. The gravity . . . another factor is the gravity
or seriousness or dangerousness of the offense. Certainly
the victim impact statements have demonstrated the impact
this violent crime had and the continuing cause at ha, the
continuing pain it causes the victim.

The viciousness of the attack: Mr. Hurst attacked several,
attacked innocent women for several minutes, refusing to
stop, in fact getting into their car and still refusing to stop,
endangering several bystanders, hitting one of the victims
with the car, and refusing to stop until the tires of the car
were shot out.

The harm done to the victims: Both, ah, Jennifer Thomas
and Patricia Nelson have been forever changed by this
attack. Ms. Thomas is, Ms. Thomas is in counseling for
post-traumatic distress disorder and has purchased a
firearm for her personal safety. She no longer trusts
anybody and takes medi, medicine for anxiety. Patricia
Nelson lives with the fact she was run over by a car and is
scared when people approach her. She suffered serious
personal injury for which she continues to incur out of
pocket expenses.

Another factor is whether the Defendant constitutes an
unreasonable risk of danger to the public. Clearly Mr.
Hurst has demonstrated with his history that he’s, he’s an
unusual risk of danger to the public because he continues
to engage in violent crimes, particularly purse snatching.
Another factor is the Defendant’s apparent disregard for
the property of others. It goes without saying after sitting
through the trial that Mr. Hurst had no regard for the
vehicle he used to try to escape, he refused to stop, he
caused damage to the vehicle. He certainly had no regard
for the physical well being of the victims in this matter.

Another factor is the potential of the Defendant’s
rehabilitation. Mr. Hurst’s criminal history and his
continued commission of violent crimes indicates to this
court there is no potential for rehabilitation. He was
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previously on probation for purse snatching, had his
probation revoked. While on probation he committed three
more felonies including Attempted Possession of a Firearm
by a Convicted Felon. Applying the foregoing factors the
sentences in this case will run consecutive.

We conclude that the trial court adequately expressed its reasons for

imposing consecutive sentences. The record quoted above demonstrates the

particular justification required for the imposition of consecutive sentences.

Accordingly, this assignment of error is without merit.

IV.

CONCLUSION

Hurst’s conviction of attempted aggravated battery is reversed, and his

sentence is set aside. We order an acquittal to be entered for aggravated battery.

Hurst’s sentences for aggravated battery, simple robbery, carjacking, and simple

criminal damage under $500.00 are affirmed. Hurst’s sentence imposed on the

conviction of purse snatching is amended, deleting the portion of the sentence

prohibiting parole. The trial court is instructed to note the amendment in the court

minutes. Thus, Hurst’s sentence for purse snatching is affirmed as amended.

Additionally, the trial court is directed to inform Hurst of the provisions of article

930.8 by sending an appropriate written notice to Hurst within ten days of the

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

notice. Finally, the trial court is instructed to amend the minutes of sentencing to

correctly reflect the sentence imposed by the trial court on the conviction of

carjacking.

CONVICTION OF ATTEMPTED AGGRAVATED BATTERY IS

REVERSED, AND SENTENCE IS SET ASIDE. JUDGMENT OF

ACQUITTAL FOR AGGRAVATED BATTERY IS ENTERED. SENTENCE

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FOR PURSE SNATCHING IS AMENDED. ALL OTHER SENTENCES ARE

AFFIRMED.

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