State of Louisiana v. Travis Bourda

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

KA 10-1553

STATE OF LOUISIANA

VERSUS

TRAVIS BOURDA

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. CR125729
HONORABLE GLENNON P. EVERETT, DISTRICT JUDGE

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BILLY HOWARD EZELL
JUDGE

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Court composed of Elizabeth A. Pickett, Billy Howard Ezell, and Phyllis M. Keaty,
Judges.

SENTENCE VACATED; SENTENCE IMPOSED; REMANDED.

Michael Harson
District Attorney, Fifteenth Judicial District Court
P.O. Box 3306
Lafayette, LA 70502-3306
(337) 232-5170
Counsel for Plaintiff/Appellant:
State of Louisiana

Edward Kelly Bauman
Louisiana Appellate Project
P. O. Box 1641
Lake Charles, LA 70602-1641
(337) 491-0570
Counsel for Defendant/Appellee:
Travis Bourda

Alan P. Haney
Assistant District Attorney
Fifteenth Judicial District Court
P. O. Box 4308
Lafayette, LA 70502
(337) 291-7009
Counsel for Plaintiff/Appellant:
State of Louisiana

EZELL, JUDGE.

Defendant, Travis Bourda, was convicted of possession of marijuana with

intent to distribute on October 14, 2009. He was sentenced to serve eight years at

hard labor. On October 14, 2009, the State filed a bill of information charging the

Defendant as a habitual offender. On August 9, 2010, Defendant entered a plea of not

guilty to being a habitual offender.

The bill of information charging the Defendant as a habitual offender

enumerated five prior felonies and the underlying conviction. However, at the

hearing on August 9, 2010, the State amended the bill to charge him as a third felony

offender, with the predicate offenses stated to be carnal knowledge of a juvenile

under docket number 98188447 and distribution of marijuana under docket number

97179300.

After completion of the hearing, the trial judge found that the State had proven

the Defendant to be a third felony offender, vacated his original sentence, and

sentenced him to serve fourteen years at hard labor. From this ruling, the State

appeals, arguing that the sentence rendered by the trial court is illegally lenient.

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 reviewing the record, we find there are

two errors patent.

First, the trial court imposed an illegally lenient sentence. This error is raised

by the State as its sole assignment of error, and it will be discussed below.

Next, the record before this court does not indicate that the trial court advised

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

by La.Code Crim.P. art. 930.8. Thus, the trial court is directed to inform the

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Defendant of the provisions of Article 930.8 by sending appropriate written notice to

the Defendant within ten days of the rendition of this opinion and to file written proof

in the record that the Defendant 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.

ASSIGNMENT OF ERROR

Louisiana Revised Statutes 15:529.1 provided at the time of the offense in

2009:

A. (1) Any person who, after having been convicted within this
state of a felony or adjudicated a delinquent under Title VIII of the
Louisiana Children’s Code for the commission of a felony-grade
violation of either the Louisiana Controlled Dangerous Substances Law
involving the manufacture, distribution, or possession with intent to
distribute a controlled dangerous substance or a crime of violence as
listed in Paragraph (2) of this Subsection, or who, after having been
convicted under the laws of any other state or of the United States, or
any foreign government of a crime which, if committed in this state
would be a felony, thereafter commits any subsequent felony within this
state, upon conviction of said felony, shall be punished as follows:

....

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

....

(ii) If the third felony and the two prior felonies are felonies
defined as a crime of violence under R.S. 14:2(B), a sex offense as
defined in R.S. 15:540 et seq. when the victim is under the age of
eighteen at the time of commission of the offense, or as a violation of
the Uniform Controlled Dangerous Substances Law punishable by
imprisonment for ten years or more, or any other crimes punishable by
imprisonment for twelve years or more, or any combination of such
crimes, the person shall be imprisoned for the remainder of his natural
life, without benefit of parole, probation, or suspension of sentence.

In State v. Lindsey, 99-3302, pp. 4-9 (La. 10/17/00), 770 So.2d 339, 342-46,

(footnotes omitted)(alteration in original) the supreme court stated:

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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.
State v. Johnson, supra, at 675; State v. Dorthey, 623 So.2d 1276, 1280
(La.1993); State v. Taylor, 479 So.2d 339, 341 (La.1985). 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. State v. Johnson, supra; State v. Dorthey, supra.
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. State v. Johnson,
supra at 676; State v. Sepulvado, 367 So.2d 762, 767 (La.1979).

In State v. Dorthey, 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 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. See, e.g., State v. Handy,
96-2505 (La.1/5/97), 686 So.2d 36; State v. Bastian, 96-2453
(La.12/13/96), 683 So.2d 1220; State v. Randleston, 96-1646
(La.10/4/96), 681 So.2d 936; State v. Wilson, 96-1600 (La.10/4/96),
680 So.2d 1169; State v. Johnson, 96-1263 (La.6/28/96), 676 So.2d
552; State v. Gordon, 96-0427 (La.5/10/96), 672 So.2d 669; State v.
Kelly, 95-2335 (La.2/2/96), 666 So.2d 1082; State v. Lombard, 95-2107
(La.11/27/95), 662 So.2d 1039.

This effort culminated in Johnson, 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, the defendant must clearly and convincingly
show that:

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[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.

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.

In light of the above, we now must determine whether the life
sentences imposed by the trial court in each of the consolidated cases
were excessive.

Defendant Lindsey

Defendant Lindsey argues that his life sentence is
unconstitutionally excessive because his prior convictions, i.e. attempted
simple burglary, attempted burglary, and simple burglary, did not
involve crimes of violence. However, as the Fourth Circuit recognized,
his fourth conviction, for simple robbery, did involve a crime of
violence under La. R.S. 14:2(13) and thus was a sufficient basis for the
imposition of a life sentence under La. R.S. 15:529.1. Defendant
Lindsey argues that while simple robbery under other circumstances
would not be out of proportion with a life sentence, as applied to him,
it is excessive because he engaged in the simple robbery as an impulse,
in a moment of anger, over an employment problem. Further, he argues

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that over five years had elapsed since his last conviction, no weapon was
involved, and the victim received only minor injuries.

Defendant Lindsey argues that these factors are important based
on the United States Supreme Court’s holding in Solem v. Helm, 463
U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983). In Solem, the Court
considered a mandatory life term under South Dakota’s recidivist law,
imposed upon defendant after he was found guilty of uttering a “no
account” check for $100, his seventh felony conviction. The Court
agreed with a lower federal court that the sentence was grossly
disproportionate under the Eighth Amendment. Id., 463 U.S. at
283-284, 103 S.Ct. at 3006. The Court announced “as a matter of
principle,” that a “criminal sentence must be proportionate to the crime
for which the defendant has been convicted.” Id., 463 U.S. at 290-291,
103 S.Ct. at 3009-3010. While agreeing that “a State is justified in
punishing a recidivist more severely than it punishes a first offender,”
nevertheless, the Court explained that the defendant’s “status [ ] cannot
be considered in the abstract,” noting that his prior convictions all were
nonviolent, relatively minor and that they didn’t involve crimes against
the person. Id., 463 U.S. at 296-297, 103 S.Ct. at 3013.

However, Lindsey’s prior criminal history does not put him on par
with the offender in Solem, because his instant conviction for simple
robbery was a crime of violence and because the victim suffered injuries
to her person. Further, as the appellate opinion indicates, the trial court
apparently found that Lindsey’s self-serving characterization of the
events as an impulsive action of a disgruntled employee fail to
distinguish him as that rare and atypical case for whom the Legislature's
enactment of R.S. 15:529.1(A)(1)(b)(ii) should not apply.

We agree with the lower courts that Lindsey’s sentence was not
excessive. He has not carried his burden under Johnson. In fact, he is
exactly the type of offender that the Habitual Offender Statute intends
to punish so severely. He is sentenced to life imprisonment because he
continues to commit felony after felony. The fact that his last felony
was the only violent crime against a person is not an “unusual
circumstance” that would support a downward departure. A person
with three prior non-violent felony convictions who then proceeds to
commit a felony involving violence against a person has shown that his
criminal conduct is becoming worse. The goals of the Habitual
Offender Statute, to deter and punish recidivism, are satisfied by
imposing a life sentence against such a person. Therefore, for all the
above reasons, we affirm his conviction and sentence.

Defendant Webster

Defendant Webster had two prior convictions for simple burglary
and his latest conviction was for purse snatching, defined as a “crime of
violence” under La. R.S. 14:2(13). As such the trial court found him to
be a third felony offender and sentenced him under La. R.S. 15:529.1(A)

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1(b)(ii) to life imprisonment without benefit of probation or suspension
of sentence. In imposing this sentence, the trial court stated:

The [c]ourt further finds that the Dorthey rule,
D-O-R-T-H-E-Y, would not be triggered in this case as the
[c]ourt is not aware of any circumstances that would cause
the [c]ourt to deviate from the mandatory sentence.

The appellate majority disagreed with the trial court’s determination
under Dorthey, concluding:

The life sentence imposed in the instant case is
clearly excessive. Although purse snatching, La.Rev.Stat.
14:55.1, is regarded as a violent felony, thus triggering the
“t h re e s t ri k es ” p r o v i s i o n o f L a . R e v . S t a t .
15:529.1(A)(1)(b)(ii), it appears the least heinous of those
enumerated in La.Rev.Stat. 14:2(13), which defines
“violent felony” for the purpose of the multiple offender
statute. Furthermore, the defendant committed the
underlying crime in the least reprehensible manner. He
was unarmed, the criminal act was limited to reaching out
to snatch the purse, the victim was not harmed, and her
property was recovered immediately following the offense.
Finally, the defendant’s prior convictions for simple
burglary were nearly ten years old when he committed the
instant offense.

In view of the circumstances, we find the life
sentence imposed by the trial court to be grossly out of
proportion to the severity of the crime.

746 So.2d at 801-02.

However, the court of appeal failed to analyze this case under the
test we enunciated in Johnson, and, in fact, did not even mention
Johnson. Because Johnson contains the governing law for determining
whether or not the mandatory penalty of life imprisonment dictated by
the Habitual Offender Statute is excessive, we remand this case to the
court of appeal for reconsideration in light of Johnson.

CONCLUSION

A sentencing court should exercise its authority to declare
excessive a minimum sentence mandated by the Habitual Offender
Statute only under rare circumstances, as set forth in State v. Johnson.
Defendant Lindsey’s arguments, that this particular crime of violence
against a person was really just an impulsive, employment-related
dispute, that no weapon was involved, and that the victim suffered only
minor injuries, were not accepted by the trial court as sufficient reasons
for a downward departure from the mandatory minimum sentence and

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we agree. The fact that he has only committed one “crime of violence,”
his latest crime, does not justify a downward departure. In sum, Lindsey
failed to carry his burden under Johnson. Finally, because the court of
appeal in State v. Webster failed to analyze the case under the law as set
forth in Johnson, that case must be remanded for reconsideration.

This court, in State v. Boutte, 10-928, pp. 3-4 (La.App. 3 Cir. 3/9/11), ___

So.3d___, ______, stated (alteration in original):

The maximum incarceration period for a conviction for monetary
instrument abuse is ten years at hard labor. La.R.S. 14:72.2. Because the
maximum sentence is a term less than the defendant’s natural life, the
penalty for his fourth offense adjudication is “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.” La.R.S.
15:529.1(A)(1)(c). Thus, the defendant’s twenty-year hard labor
sentence is the statutory minimum for his adjudication. Nevertheless, the
defendant asserts in this assignment of error that the sentence is
excessive and that the trial court erred in not deviating from the statutory
minimum and imposing a lesser sentence that would not be
constitutionally excessive.

Although the minimum sentences imposed upon multiple
offenders pursuant to the Habitual Offender Law are presumed
constitutional, a court has the power to declare such a sentence
excessive under Article I, Section 20 of the Louisiana Constitution.
State v. Lindsey, 99 -3302 (La. 10/ 17/00), 770 So.2d 339. “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
this presumption of constitutionality.” State v. Johnson, 97 -1906, p. 7
(La.3/4/98), 709 So.2d 672, 676. To rebut the presumption of
constitutionality, the defendant must show that he is “exceptional, which
in this context means that because of unusual circumstances [he] 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. at 676.

As pointed out by the state, the defendant presented no evidence
to show that his particular case was so exceptional that it deserved a
downward departure from the mandatory minimum sentence as set forth
in La.R.S. 15:529.1. Therefore, we find no merit in this assignment of
error.

At Defendant’s habitual offender hearing, the only witness to testify was Gary

Westscot, the agent who supervised the Defendant from January 2008 until the

satisfactory termination of his parole on October 11, 2008. Mr. Westscot testified as

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to the two underlying convictions and identified the records pertinent to the charges.

The underlying convictions were for carnal knowledge of a juvenile and distribution

of marijuana.

The Defendant did not cross-examine the witness or put on any evidence. At

the conclusion of the hearing, the trial judge ruled:

THE COURT: All right. I find that the State has carried its burden
and I will make the -- I will hereby vacate the original sentence in
Docket Number -- what was the original docket number in the
possession with intent to distribute?

MR. HANEY: Judge, that’s Docket Number 123852.

THE COURT: Docket Number 123852. That sentence, if I recall
correctly, was eight years at hard labor. I hereby vacate that sentence
and I sentence Mr. Bourda to serve fourteen years, fourteen years at hard
labor.

Mr. Bourda, look at me, sir, please just one second. Now, sir, the
State of Louisiana is requesting significant[sic] more time than I have
sentenced you today. But it is within my discretion, in my view, to do
that.

The State of Louisiana’s position is that because of your prior
convictions, you may be subject to a life sentence. I am going to note for
the record on your behalf that I believe a life sentence under the
circumstances in these cases, a drug case, a carnal knowledge case, and
another drug case would be an unconstitutional sentence regardless of
whether the statute is interpreted in that manner with respect to these
particular sentences. I believe that fourteen years is more than enough
considering the underlying charge was possession with intent to
distribute marijuana, and that the amount of marijuana involved was not
significant.

Now, sir, at this particular time, now, I am relieving Mr. Martel
of any additional representation of you. I’m going to allow him to
withdraw as counsel.

In his ruling, the trial judge made no reference to Dorthey, 623 So.2d 1276, or

to the analysis mandated by State v. Johnson, 97-1906 (La. 3/4/98), 709 So.2d 672,

and his reasons for ruling ignore the mandated analysis. More significantly, the

Defendant presented no evidence which would tend to reflect that he is exceptional

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so as to rebut the presumption that the mandatory minimum sentence is constitutional,

which is necessary to justify a downward departure from the sentence mandated by

La.R.S. 15:529.1(A)(1)(b)(ii).

This court could opt to reverse and remand this case to the trial court for

reconsideration of the court’s ruling, with instructions to utilize the analytical

approach mandated by Johnson, 709 So.2d 672, however we find that approach

would be superfluous. As the record is devoid of any evidence which would support

a finding that the Defendant is “exceptional” so as to justify a departure from the

mandated sentence, there is nothing for the trial court to utilize in performing a

Johnson analysis.

CONCLUSION

The trial court is directed to inform the Defendant of the 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 written proof in the record

that the Defendant received the notice.

Accordingly, the sentence imposed on the Defendant is vacated, and a sentence

of life imprisonment is imposed by this court in accordance with La.R.S.

15:529.1(A)(1)(b)(ii). Further, the case is remanded to the trial court with

instructions to make a minute entry imposing a sentence of life imprisonment in

accordance with the ruling of this court.

SENTENCE VACATED; SENTENCE IMPOSED; REMANDED.

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