State of Louisiana v. Ben James Thompson

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

12-83

STATE OF LOUISIANA

VERSUS

BEN JAMES THOMPSON

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF VERMILION, NO. 46373
HONORABLE DURWOOD WAYNE CONQUE, 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
Shannon J. Gremillion, Judges.

Painter, J., dissents and assigns written reasons.

AFFIRMED AND REMANDED
FOR EVIDENTIARY HEARING.

Michael Harson
District Attorney – 15th Judicial District Court
P. O. Box 3306
Lafayette, LA 70502-3306
Telephone: (337) 232-5170
COUNSEL FOR:
Plaintiff/Appellee - State of Louisiana

Ted L. Ayo
Assistant District Attorney – 15th Judicial District Court
100 North State Street – Suite 215
Abbeville, LA 70510
Telephone: (337) 898-4320
COUNSEL FOR:
Plaintiff/Appellee - State of Louisiana

Yigal Bander
André Robert Bélanger
Manasseh, Gill, Knipe & Bélanger
8075 Jefferson Highway
Baton Rouge, LA 70809
Telephone: (225) 383-9703
COUNSEL FOR:
Defendant/Appellant - Ben James Thompson

THIBODEAUX, Chief Judge.

Defendant Ben James Thompson was convicted of armed robbery with

the use of a firearm, a violation of La.R.S. 14:64 and 14:64.3, after a bench trial.1

The trial court sentenced Defendant to twenty-five years at hard labor

without benefit of probation, parole, or suspension of sentence. The trial court also

sentenced him to an additional five years for using a firearm, which the court ordered

to run consecutively to his sentence for armed robbery. The trial court denied

Defendant’s Motion to Reconsider Sentence.

Defendant contends he did not validly waive his right to trial by jury, and

he asserts that his sentence is excessive. For the following reasons, we conditionally

affirm Defendant’s conviction and sentence and remand this case to the trial court for

an evidentiary hearing to determine whether Defendant knowingly and intelligently

waived his right to trial by jury.

I.

ISSUES

We shall consider whether:

(1) Defendant validly waived his right to a trial by jury; and

(2) Defendant’s sentence for armed robbery is excessive.

II.

FACTS AND PROCEDURAL HISTORY

The State charged Defendant with armed robbery with the use of a

firearm. Defendant allegedly entered the Food-N-Fun in Kaplan, Louisiana while

armed with a gun and demanded money from the cashier. Defendant stipulated that

he entered and robbed the cashier at the convenience store, but he denied he was
1
Before the start of the trial, defense counsel filed a Motion and Order to Waive Jury Trial.
The trial court granted the motion.

armed with a weapon. He also contested that he used force or intimidation while

committing the offense.

III.

LAW AND DISCUSSION

Waiver of Trial by Jury

In his first assignment of error, Defendant contends he did not validly

waive his right to trial by jury. Though the trial court granted Defendant’s Motion,

Defendant now contends nothing in the record establishes he knowingly and

intelligently waived his right to a jury trial.

The Motion at issue reads as follows:

ON MOTION OF, of [sic] BEN JAMES
THOMPSON, defendant herein, through undersigned
Counsel and on suggesting to the Court that the trial of
this matter, on the charge of Armed Robbery, is
scheduled for trial on July 11, 2011 before the Honorable
Durwood Conque; and further that the defendant received
notice of the trial date on or about Tuesday, May 17,
2011 and that he desires to waive the jury in this matter
and be tried before the Judge alone.

IT IS THEREFORE ORDERED, that the jury be
waived for the trial of this matter and that this matter be
tried before the Court.

Defense counsel signed the Motion, and Judge Edward Broussard signed

the order granting the Motion.2

The verification of the Motion, signed by Defendant, reads:

BEFORE ME, the undersigned Notary Public
personally came and appeared BEN JAMES
THOMPSON, who is the mover in the foregoing Motion
and Order to Waive Jury Trial, who declared that he has
read the same and that all of the allegations contained
therein are true and correct.

Defendant asserts that nothing in the Motion or in the verification

indicates that the right to a jury trial was explained to him, that he was told ten of

2
Judge Broussard neither presided over Defendant’s trial nor imposed his sentence.
2

twelve jurors would have to agree to a guilty verdict, or that he understood the

consequences of his actions. Additionally, he points out that the order granting the

waiver was not signed by the judge who presided over his trial but rather by Judge

Broussard. Further, the trial court did not mention the waiver in Defendant’s

presence.

Defendant contends the State has the burden of proving a valid waiver of

the right to a jury trial, and he argues that the record does not support a finding that a

valid waiver exists. Thus, he asserts that his conviction and sentence should be

reversed and the matter remanded for further proceedings.3

The State contends no jury was present at the commencement of trial,

and Defendant voiced no objection to the lack thereof because he had knowingly and

intelligently waived his right to a jury trial. The State contends that the waiver was

irrevocable.

In State v. Morris, 607 So.2d 1000, 1001 (La.App. 3 Cir. 1992),

judgment set aside on other grounds, 615 So.2d 327 (La.1993), this court set forth the

general rule regarding waiver of a defendant’s right to a jury trial:

Our Louisiana Constitution of 1974, Art. I, section
17 entitles an accused to a trial by jury which he may
relinquish except in capital cases. La.C.Cr.P. art. 780
repeats this right and provides that a defendant “may
knowingly and intelligently waive a trial by jury and
elect to be tried by the judge. At the time of arraignment
the defendant in such cases shall be informed by the
court of his right to waive trial by jury.” While one who
is entitled to a jury trial may waive that right, such
waiver shall not be presumed but must be established by
a contemporaneous record setting forth the articulated
appraisal of that right followed by a knowing and
intelligent waiver by the accused. State v. Smith, 447
So.2d 4 (La.App. 3 Cir.1984).

3
Defendant cites State v. Dorsey, 00-114 (La.App. 3 Cir. 6/7/00), 768 So.2d 109, in support
of his claim that the State bears the burden of proof. Defendant’s assertion is partially correct in that
the State bears the burden of proof on remand in an evidentiary hearing to determine whether a valid
waiver of the right to trial by jury was made. Id. at 110.
3

In State v. Pierre, 02-2665, p. 1 (La. 3/28/03), 842 So.2d 321, 322, the

supreme court stated:

Although it remains the preferred method for the district
court to advise a defendant of her right to trial by jury in
open court before obtaining a waiver, such a practice is
not statutorily required. See La.C.Cr.P. art. 780; State v.
Kahey, 436 So.2d 475, 486 (La.1983); State v. Muller,
351 So.2d 143, 146-47 (La.1977). Likewise, it is
preferred but not necessary, for the defendant to waive
her right to jury trial personally. State v. Wolfe, 98-0345,
pp. 6-7 (La.App. 4th Cir.4/21/99), 738 So.2d 1093, 1097.
Counsel may waive the right on the defendant’s behalf,
provided that the defendant’s decision to do so was made
knowingly and intelligently. Id.; Kahey, 436 So.2d at
486-87.

The issue of valid waiver of the right to trial by jury has been discussed

by courts on numerous occasions. In Pierre, 842 So.2d at 322, the supreme court

stated:

In the instant case, the record reflects that counsel
waived a jury trial on the defendant’s behalf. On the
second day of trial, the district court memorialized the
defendant’s earlier waiver in her presence. At this time,
defense counsel stated that he and his client had
discussed the waiver at length and on several occasions,
and that both agreed to the waiver. In these
circumstances, the court of appeal erred in its
determination that the defendant did not waive her right
to a jury trial knowingly and intelligently.

In State v. Dorsey, 00-114, p. 1 (La.App. 3 Cir. 6/7/00), 768 So.2d 109,

109-10, this court discussed its opinion in State v. Dorsey, an unpublished opinion

bearing docket number 98-610 (La.App. 3 Cir. 12/9/98), as follows:

In an unpublished opinion we found that the record failed
to show that the Defendant waived his right to a jury
trial. The record showed that after being advised of this
right at arraignment, the Defendant was given 15 days to
decide what he wanted to do. His attorney filed a written
motion for a bench trial, but it was signed only by the
attorney. The motion was not filed in open court, nor
was there any record evidence that it was signed in open
court. It was mailed to the judge from the attorney’s
office and apparently signed in chambers. From these
facts, we found that the record was silent as to a knowing
and intelligent waiver. We cited law that such a waiver
4

cannot be presumed. Because the filing of a formal
motion by the Defendant’s counsel was some indicia in
the record of a waiver, we remanded for an evidentiary
hearing to determine whether the Defendant knowingly
and intelligently waived his right to a jury trial.

Similarly, in State v. Zeringue, 03-697 (La.App. 5 Cir. 11/25/03), 862

So.2d 186, writ denied, 03-3523 (La. 4/23/04), 870 So.2d 298, the fifth circuit

concluded that a letter from defense counsel to the judge stating that the defendant

chose to waive his right to a jury trial was not sufficient evidence that the defendant

knowingly and intelligently waived his right to jury trial. The fifth circuit noted there

was nothing indicating that defense counsel extensively discussed the right with the

defendant or that he understood his right and knowingly and intelligently waived it.

Additionally, the trial court had not accepted the waiver in the defendant’s presence.

In State v. Onstead, 03-1413 (La.App. 5 Cir. 5/26/04), 875 So.2d 908,

appeal after remand, 05-410 (La.App. 5 Cir. 1/17/06), 922 So.2d 622, the trial

transcript indicated defense counsel intended to waive a jury trial on the defendant’s

behalf by stating: “we would waive a jury trial in the matter and request that Mr.

Onstead be tried by the Judge alone.” Id. at 917. The fifth circuit noted that defense

counsel did not refer to any discussion with Onstead on the issue; thus, there was no

indication on the record that Onstead knowingly and intelligently waived his right to a

jury trial.

Though the facts of these cases differ slightly from Defendant’s case, the

similarities within them indicate that questions remain as to whether Defendant

knowingly and intelligently waived his right to a trial by jury. Specifically, the

minutes of the motion hearing do not indicate that he was informed of his right to trial

by jury at arraignment. The remaining minutes also fail to mention the right to trial

by jury. The trial court did not accept the waiver in Defendant’s presence, and the

Order attached to the Motion was not signed by the judge who tried him. Further, the

transcript of Defendant’s trial does not indicate the trial court discussed the waiver
5

filed in the record or inquired about his waiver of trial by jury. Although Defendant

signed the verification of the Motion, nothing indicates defense counsel extensively

discussed the right to jury trial with him or that he understood his right and knowingly

and intelligently waived it.

Because the filing of a formal motion by Defendant’s counsel is some

indicia in the record of a waiver, though inconclusive, we remand this case to the trial

court for an evidentiary hearing to determine whether he knowingly and intelligently

waived his right to a jury trial. See State v. Nanlal, 97-786 (La. 9/26/97), 701 So.2d

963.

In State v. R.W.W., 06-1253, pp. 13-14 (La.App. 3 Cir. 3/7/07), 953

So.2d 131, 138-39, this court discussed the remand procedure for evidentiary

hearings:

For the above reasons, the defendant’s convictions
are conditionally affirmed on the evidence in the record
on appeal. However, the case is remanded to the trial
court for an evidentiary hearing to determine whether the
jury reviewed the transcripts of the victims’ interviews
during deliberations and whether the defendant preserved
this issue for review by timely objecting. If the trial
court finds the question preserved and a sufficient
La.Code Crim.P. art. 793 violation, the trial court must
set aside the convictions and sentences and grant the
defendant a new trial. The defendant may appeal from
any adverse ruling on this issue, and in the absence of
such appeal, this court affirms the defendant’s
convictions.

In accordance with the provisions outlined in State v. R.W.W., 953 So.2d

131, we conditionally affirm Defendant’s conviction and sentence.4 We remand the

case to the trial court to conduct an evidentiary hearing on the question of whether

Defendant validly waived his right to a jury trial. If the evidence shows Defendant

did not validly waive his right to a jury trial, the trial court must set aside his

conviction and sentence and grant him a new trial. Defendant may appeal from any

4
A more thorough discussion of our grounds for affirming Defendant’s sentence may be
found in the “Excessive Sentence” section of this Opinion.
6

adverse ruling on this issue. In the absence of such appeal, this court affirms his

conviction and sentence for armed robbery with the use of a firearm.

Excessive Sentence

Defendant contends a sentence totaling thirty years at hard labor without

benefit of probation, parole, or suspension of sentence for a robbery where a gun was

neither fired, pointed, nor brandished, the victim was not physically injured, and the

entire incident lasted less than a minute, is grossly disproportionate and

unconstitutionally excessive.

This court has set forth the following standard to be used when 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. 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, writ denied, 01-838
(La.2/1/02), 808 So.2d 331 (alteration in original)
(citations omitted).

In order to decide whether a sentence shocks the
sense of justice or makes no meaningful contribution to
acceptable penal goals:

[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
7

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.

State v. Clayton, 10-1303, pp. 3-4 (La.App. 3 Cir. 5/4/11), 64 So.3d 418, 422, writ

denied, 11-1015 (La. 11/4/11), 75 So.3d 923.

The trial court convicted Defendant of armed robbery with the use of a

firearm. Armed robbery is punishable by imprisonment at hard labor for not less than

ten and not more than ninety-nine years without benefit of probation, parole, or

suspension of sentence. La.R.S. 14:64(B). Further, La.R.S. 14:64.3(A) provides that

upon conviction of armed robbery with the use of a firearm, a defendant be

imprisoned for an additional period of five years at hard labor without benefit of

probation, parole, or suspension of sentence. The additional penalty imposed is to be

served consecutively to the sentence imposed under La.R.S. 14:64. Defendant was

sentenced to serve twenty-five years at hard labor without benefit of probation, parole,

or suspension of sentence. He was also sentenced to an additional five years for using

a firearm, which was ordered to run consecutively to his sentence for armed robbery.

Courts around our state, including this one, have found that similar

sentences for armed robbery were not excessive. In State v. Smith, 01-2574 (La.

1/14/03), 839 So.2d 1, the supreme court affirmed a forty-year sentence imposed on a

first offender for a conviction of armed robbery. The supreme court noted “[t]his

sentence is within the thirty-five to fifty-year range this Court has found acceptable

8

for first offenders convicted of armed robbery. State v. Thomas, 98-1144, p. 2 (La.

10/9/98), 719 So.2d 49, 50; State v. Augustine, 555 So.2d 1331, 1332 (La.1990) and

the cases cited therein.” Id. at 4.

In State v. Gordon, 11-898 (La.App. 3 Cir. 2/22/12), 85 So.3d 242, this

court found the first felony offender’s sentence of forty years for armed robbery was

not excessive. In State v. Jefferson, 40,439 (La.App. 2 Cir. 1/27/06), 920 So.2d 984,

the second circuit found the first-offender’s sentence of thirty years for armed robbery

plus an additional five years for a firearm enhancement was not excessive. Similarly,

in State v. Price, 04-812 (La.App. 5 Cir. 3/1/05), 909 So.2d 612, the fifth circuit found

a forty-year sentence for armed robbery with a firearm was not unreasonably

excessive. Finally, in State v. Hartwell, 03-1214 (La.App. 5 Cir. 1/27/04), 866 So.2d

899, writ denied, 04-448 (La. 6/25/04), 876 So.2d 832, the fifth circuit found

concurrent terms of thirty-five years imprisonment plus an additional five years for

the use of a firearm was not excessive for a first offender found guilty of two counts

of armed robbery.

The State did not present any evidence indicating the Defendant had any

prior convictions, and no pre-sentencing investigation was ordered. We presume,

then, that the trial court considered the Defendant to be a first offender. Further, the

only information provided regarding Defendant’s circumstances were his own

remarks to the trial court at the sentencing hearing. At that time, Defendant stated:

I would like to just, first of all, issue a formal apology to
Ms. Theresa Abshire. I was mourning the death of a best
friend at that time, and I let drugs and alcohol take over
my life. I never intended to hurt anybody, but, in any
case, I did. And for that, I’m sorry.

Defendant argues that his sentence of twenty-five years is harsh;

however, under the provisions of La.R.S. 14:64(B), Defendant could have received up

9

to ninety-nine years of imprisonment at hard labor for his crime. 5 Sadly, Defendant’s

reliance on drugs and alcohol placed him in this position. Though we sense that he is

remorseful, past jurisprudence dictates that Defendant’s sentence is well within the

reasonable limits for the crime and is not excessive.

IV.

DISPOSITION

We conditionally affirm Defendant’s conviction and sentence for armed

robbery but remand the case to the trial court for an evidentiary hearing on the issue of

whether Defendant validly waived his right to a trial by jury. If the evidence shows

Defendant did not validly waive his right to a jury trial, the trial court must set aside

his conviction and sentence and grant him a new trial. Defendant may appeal from

any adverse ruling on this issue, and in the absence of such appeal, this court affirms

Defendant’s conviction and sentence for armed robbery with the use of a firearm.

AFFIRMED AND REMANDED FOR EVIDENTIARY HEARING.

5
Moreover, an additional five years at hard labor would have been mandatorily added
because Defendant used a firearm in the commission of the crime. La.R.S. 14:64.3(A).
10

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

12-83

STATE OF LOUISIANA

VERSUS

BEN JAMES THOMPSON

PAINTER, Judge, dissents and assigns written reasons.

The majority proposes to conditionally affirm Defendant’s conviction and

sentence and remand the matter for an evidentiary hearing to determine whether

Defendant validly waived his right to a jury trial. I disagree that the affirmation of the

conviction and sentence should be conditional. I would find that no remand is

necessary because I am of the opinion that the evidence is sufficient to show that the

waiver was valid.

In this case, Defendant, through counsel, filed a Motion and Order to Waive

Jury Trial, indicating that he wished to waive the jury and have the matter tried by a

judge. Defendant signed a verification of the motion which “declared that he has read

the same and that all of the allegations contained therein are true and correct.”

Defendant was present at the start of his trial, and he made no objection to the fact that

no jury was present. Even so, Defendant now contends that the waiver is not valid

because there is nothing in the record to establish that the waiver was knowing and

intelligent.

In State v. Wolfe, 98-345 (La.App. 4 Cir. 4/21/99), 738 So.2d 1093, writ denied,

99-1460 (La. 12/10/99), 756 So.2d 281, cert. denied, 529 U.S. 1115, 120 S.Ct. 1976

(2000), in finding that the waiver of trial by jury was valid even though the trial court

did not confer with defendant prior to acceptance of the waiver, the fourth circuit relied

upon the fact that the defendant made no objection to his counsel’s oral waiver of the
Page 1 of 2

right to trial by jury when responding to the court’s inquiry as to the mode of trial. The

fourth circuit also noted that the Louisiana Supreme Court has affirmed a waiver in

similar circumstances. See State v. Phillips, 365 So.2d 1304 (La.1978).

In this case, Defendant had the opportunity to object to the waiver at two distinct

points and failed to do so. First, he signed a verification of a Motion and Order to

Waive Jury Trial, and then he did not object to the fact that no jury was present at the

start of his trial. Therefore, I would find the waiver valid and affirm Defendant’s

conviction and sentence.

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