State of Louisiana v. Taurean Jackson

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

11-923

STATE OF LOUISIANA

VERSUS

TAUREAN JACKSON

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APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 302,847
HONORABLE JOHN C. DAVIDSON, DISTRICT JUDGE

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J. DAVID PAINTER
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders,
and J. David Painter, Judges.

Thibodeaux, Chief Judge, dissents with written reasons.

AFFIRMED AS AMENDED.

Beth S. Fontenot, Attorney at Law
Louisiana Appellate Project
P. O. Box 3183
Lake Charles, LA 70602-3183
COUNSEL FOR DEFENDANT-APPELLANT:
Taurean Jackson

James C. “Jam” Downs, District Attorney
John T. Giordano, Assistant District Attorney
Ninth Judicial District
P. O. Drawer 1472
Alexandria, LA 71309
COUNSEL FOR THE STATE OF LOUISIANA

PAINTER, Judge.

Defendant, Taurean Jackson, appeals the thirty-year sentence he received after

being found to be a fourth felony offender upon his conviction of theft of goods

between $300.00 and $500.00, a violation of La.R.S. 14:67.10. For the reasons that

follow, we amend the sentence to delete that portion which prohibits the benefit of

parole and affirm the sentence in all other respects.

FACTS AND PROCEDURAL HISTORY

On April 3, 2010, Defendant stole $508.00 worth of merchandise from

Dillard’s Department Store in Alexandria, Louisiana. Defendant was charged by bill

of information with theft of goods between $300.00 and $500.00, a violation of

La.R.S. 14:67.10. 1 On April 5, 2011, a jury found Defendant guilty as charged.

Defendant was sentenced to two years at hard labor; however, the State filed a

habitual offender bill charging Defendant as a fourth offender. The bill charged that

Defendant had been previously been convicted of the following offenses:

unauthorized use of a motor vehicle, a violation of La.R.S. 14:68.4, for which he was

sentenced to pay a fine; possession of CDS, Schedule II, a violation of La.R.S.

40:967(C), for which he was ordered to pay a fine; possession with intent to distribute

CDS, Schedule I, in violation of La.R.S. 40:966(A)(1)(G), for which he was sentenced

to five years; and battery of correctional facility employee (while in custody of DOC),

a violation of La.R.S. 14:34.5, for which he was sentenced to six months.

Following a habitual offender hearing, the trial court found Defendant to be a

fourth felony offender. On September 12, 2011, the trial court vacated the two-year

sentence and imposed a thirty-year at hard labor sentence to be served without the

benefit of probation, parole, or suspension of sentence. No motion to reconsider

sentence was filed.

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A simple criminal damage to property charge was severed.

Defendant contends that his thirty-year sentence is excessive and that the trial

court illegally imposed the sentence without the benefit of parole. We do not find that

the sentence is excessive, but we do amend the sentence to delete that portion which

prohibits the benefit of parole.

DISCUSSION

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 that there is an

error patent in that the trial court ordered the sentence to be served without the benefit

of parole. Defendant asserts that neither the underlying statute, La.R.S. 14:67.10, nor

La.R.S. 5:529.1(A)(2)(c)(i) prohibited parole; thus, the trial court erred in ordering the

sentence to be served without the benefit of parole, citing State v. Bordelon, 09-1245

(La.App. 3 Cir. 5/5/10), 37 So.3d 480, writ denied, 10-1745 (La. 2/4/11), 56 So.3d

990. The State concedes that Defendant is correct. Therefore, we hereby amend the

sentence to delete that portion which prohibits the benefit of parole. The trial court is

ordered to note the amendment in the court minutes.

Excessiveness of Sentence

Defendant asserts that his sentence is excessive. He argues that his current

offense was not a crime of violence, the merchandise was recovered by the store, and

no one was hurt during the incident. He further asserts that “the current amended

sentencing scheme for Theft of Good, the value of the merchandise taken by Mr.

Jackson is only $9.00 above the misdemeanor grade of the offense.” Defendant points

out that the trial court gave “scant reasons” to support the sentence imposed.

The State responds that the trial court adequately considered the factors set

forth in La.Code Crim.P. art. 894.1, including but not limited to the number of arrests,

misdemeanor and felony convictions, probation and parole violations and other

criminal history.

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Since Defendant did not object to his sentence or file a motion to reconsider

sentence, he is relegated to a bare claim of excessiveness.

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

excessive sentence claims:

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. State v. Campbell, 404 So.2d 1205
(La.1981). 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. State v. Etienne,
99-192 (La.App. 3 Cir. 10/13/99); 746 So.2d 124, writ denied, 00-0165
(La.6/30/00); 765 So.2d 1067. The relevant question is whether the trial
court abused its broad sentencing discretion, not whether another
sentence might have been more appropriate. State v. Cook, 95-2784
(La.5/31/96); 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615,
136 L.Ed.2d 539 (1996).

State v. 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.

To decide whether a sentence shocks one’s 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. State v. Smith, 99-0606 (La.7/6/00), 766 So.2d 501.
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.” State v.
Batiste, 594 So.2d 1 (La.App. 1 Cir.1991). 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. Cook, 95-
2784 (La.5/31/96), 674 So.2d 957, 958.

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.

At the time of the commission of the offense, the penalty for a conviction of

theft of goods valued between $300.00 and $500.00 was two years with or without
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hard labor. La.R.S. 14:67.10. Based upon the sentencing transcript before this court,

it appears that the trial court sentenced Defendant under the penalty provisions

provided for in La.R.S. 15:529.1(A)(2)(c)(i), which provide a sentence of no less than

twenty years with a maximum of life imprisonment.

In imposing the habitual offender sentence, the trial court stated in pertinent

part that:

Based upon the . . . number of felony convictions; based upon the . . . fact
that he has picked up these . . . convictions at a young age; and a review
of his history, prior criminal history, including a misdemeanor
conviction.

The record does not indicate that a pre-sentencing investigation report was ordered.

The legislative purpose for sentencing under the habitual offender provision

was set forth by the court in State v. Everett, 00-2998 (La. 5/14/02), 816 So.2d 1272.

The Everett court stated that “[t]he purpose of the Habitual Offender Law is to deter

and punish recidivism.” Id. at 1276. Additionally, in State v. Johnson, 97-1906 (La.

3/4/98), 709 So.2d 672, the court explained, in pertinent part:

Since the Habitual Offender Law in its entirety is constitutional, the
minimum sentences it imposes upon multiple offenders are also
presumed to be constitutional. Dorthey, supra at 1281 (Marcus, J.,
concurring); State v. Young, 94-1636 (La.App. 4th Cir. 10/26/95), 663
So.2d 525.

....

A trial judge may not rely solely upon the non-violent nature of the
instant crime or of past crimes as evidence which justifies rebutting the
presumption of constitutionality. While the classification of a
defendant's instant or prior offenses as non-violent should not be
discounted, this factor has already been taken into account under the
Habitual Offender Law for third and fourth offenders. LSA-R.S.
15:529.1 provides that persons adjudicated as third or fourth offenders
may receive a longer sentence if their instant or prior offense is defined
as a “crime of violence” under LSA-R.S. 14:2(13). Thus the
Legislature, with its power to define crimes and punishments, has already
made a distinction in sentences between those who commit crimes of
violence and those who do not. Under the Habitual Offender Law those
third and fourth offenders who have a history of violent crime get longer
sentences, while those who do not are allowed lesser sentences.

Id. at 675-76.

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Sentences imposed for similar crimes

In State v. Oliver, 03-416 (La.App. 5 Cir. 9/30/03), 857 So.2d 1227, writ

denied, 04-2139 (La. 5/20/05), 902 So.2d 1042, the defendant was convicted of theft

between $100.00 and $500.00. The defendant was sentenced to two years at hard

labor. The State filed a habitual offender bill, and the defendant was found to be a

fourth felony offender. She was sentenced to twenty years at hard labor. On appeal,

the defendant challenged the sentence as excessive. The court upheld the sentence,

stating, in pertinent part:

The record in the present case appears to indicate the defendant was
engaged in a scheme, wherein she stole large house ware items from
local retailers. The defendant’s conduct in the instant case suggests that,
but for the vigilant surveillance of the store personnel, defendant would
have stolen more houseware items from this retailer. Besides the
economic impact on the merchant, these instances of shoplifting also
exact an economic toll on the public at large. See, State v. Fleury, 799
So.2d at 475.

Additionally, the record indicates that at least two of defendant’s
underlying felony offenses, used for enhancement in this case, were also
felony theft convictions (i.e., one for merchant theft between $100 and
$500 and one for general theft over $500). Although convicted twice
before for theft, she continued to engage in this illegal activity. The right
of states to enact more onerous penalties for those who cannot bring their
conduct within social norms has been sanctioned by the Supreme Court.
See, Solem v. Helm, 103 S.Ct. at 3013; Rummel v. Estelle, 100 S.Ct. at
1136. Defendant also had a third conviction for cruelty to a juvenile,
wherein she was convicted of beating her three-year-old child with an
electrical cord. Defendant appears to be the type of recidivist offender
the legislature contemplated in enacting harsher penalties for multiple
felony offenses.

Id. at 1231.

In State v. Frank, 94-923 (La.App. 5 Cir. 3/1/95), 652 So.2d 121, the defendant

was convicted of theft of goods valued at $100.00 to $500.00. The state filed a

multiple bill of information, charging the defendant as a fourth felony offender. After

a hearing, the trial court found the defendant to be a fourth felony offender, and the

defendant was sentenced to serve twenty years at hard labor. On appeal, the

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defendant challenged the sentence as excessive. The court upheld the sentence, noting,

in pertinent part:

It is well settled that a sentence should not be set aside absent
manifest abuse of discretion. State v. Davis, supra; State v. Anseman,
607 So.2d 665 (La.App. 5 Cir.1992), writ denied, 613 So.2d 989 and 613
So.2d 990 (La.1993); State v. Payne, 612 So.2d 153 (La.App. 5
Cir.1992). Although the trial judge was not explicit in his reasons for
sentencing, it is clear from the record that he was aware of the nature of
the crime of which defendant was convicted, as well as the fact that
defendant was a career criminal with a total of fourteen prior convictions
(mostly felonies) including one for burglary. The sentence the judge
imposed was not only within the statutory limits but was, in fact, the
minimum sentence. Therefore, considering the totality of the
circumstances, we cannot say that this sentence constitutes a manifest
abuse of his discretion.

Id. at 123.

In State v. Ballay, 99-906 (La.App. 5 Cir. 2/29/00), 757 So.2d 115, writ denied,

00-908 (La. 4/20/01), 790 So.2d 13, the defendant appealed his conviction of theft of

goods between $100.00 and $500.00 and sentence of life imprisonment as a fourth

felony offender. The defendant argued his sentence was excessive. The court

affirmed the sentencing explaining, in pertinent part:

The defendant was adjudicated a fourth felony offender. As a
fourth felony offender, the defendant faced the following penalty as
provided by La.R.S. 15:529.1(A)(1)(c)(i):

(c) 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:

(i) 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; (Emphasis added).

The defendant was originally convicted of theft of goods, which,
according to La.R.S. 14:67.10(B)(2), is punishable by a maximum of two
years imprisonment. However, based on the sentencing provisions in
La.R.S. 15:529.1(A)(1)(c)(i), the defendant faced an enhanced sentencing
exposure of twenty years to life imprisonment.

It is well settled that a sentence should not be set aside absent
manifest abuse of discretion. State v. Anseman, 607 So.2d 665, 674

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(La.App. 5 Cir.1992), writ denied, 613 So.2d 989 (La.1993). In
reviewing claims of an excessive sentence, an appellate court uses a two-
step process. First, the record must show adequate consideration of the
criteria set forth in La.C.Cr.P. art. 894.1. State v. Smith, 433 So.2d 688,
698-699 (La.1983). The trial court is not required to list every
aggravating and mitigating circumstance so long as the record reflects
adequate consideration of the guidelines of La.C.Cr.P. art. 894.1. State
v. Smith, supra; State v. Gene, 587 So.2d 18, 24-25 (La.App. 2
Cir.1991), writ denied, 604 So.2d 993 (La.1992). The articulation of the
factual basis for the sentence is the goal of La.C.Cr.P. art. 894.1.
Remand is unnecessary when a sufficient factual basis for the sentence is
shown in the record. State v. Lanclos, 419 So.2d 475, 478 (La.1982).

Recent jurisprudence supports the imposition of the maximum
sentence under this statute where the defendant’s criminal record is
extensive. State v. Tran, 97-640 (La.App. 5 Cir. 3/11/98), 709 So.2d
311, 318; State v. Conners, 577 So.2d 273, 274 (La.App. 3 Cir.1991).
The records reflects that the trial court was aware of the nature of the
crime for which defendant was convicted and was aware of the fact that
defendant was a career criminal with a total of thirty-three felony
convictions and seventy-seven felony arrests. For procedural reasons,
those convictions could not be used to enhance defendant's sentence
through a multiple offender proceeding. The judge nevertheless felt that
defendant's extensive criminal record was a basis for imposing the
maximum sentence allowed under the statute. Considering the foregoing,
the trial court did not abuse its wide discretion in sentencing defendant to
the maximum term. Therefore, we find that the sentence is not excessive
based on the facts presented in this case.

Id. at 134-35.

Here, the thirty-year sentence is in the lower range, and, based on the facts of

this case, we cannot say that the trial court abused its discretion in handing down this

sentence. The sentence is, therefore, affirmed.

DECREE

For all of the foregoing reasons, Defendant’s thirty-year sentence is affirmed.

That portion of the sentence prohibiting the benefit of parole is deleted, and the trial

court is ordered to note said amendment in the court minutes.

AFFIRMED AS AMENDED.

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