State of Louisiana v. Dietrich Jamal Thibodeaux AKA Dietrich Thibodeaux AKA Dietrich J. Thibodeaux Etc.

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

12-300

STATE OF LOUISIANA

VERSUS

DIETRICH JAMAL THIBODEAUX

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. 129664
HONORABLE EDWARD D. RUBIN, DISTRICT JUDGE

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JAMES T. GENOVESE
JUDGE

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Court composed of John D. Saunders, Elizabeth A. Pickett, and James T.
Genovese, Judges.

SENTENCE VACATED; REMANDED WITH INSTRUCTIONS.

Annette Roach
Louisiana Appellate Project
Post Office Box 1747
Lake Charles, Louisiana 70602-1747
(337) 436-2900
COUNSEL FOR DEFENDANT/APPELLANT:
Dietrich Jamal Thibodeaux

Michael Harson
District Attorney - Fifteenth Judicial District
Alan P. Haney - Assistant District Attorney
Post Office Box 4308
Lafayette, Louisiana 70502
(337) 291-7009
COUNSEL FOR APPELLEE:
State of Louisiana

GENOVESE, Judge.

In this criminal case, Defendant, Dietrich Jamal Thibodeaux, after having

been convicted of numerous felonies, was adjudicated a habitual offender and

sentenced to fifty years imprisonment without the benefit of parole, probation, or

suspension of sentence. The State appealed Defendant’s sentence, alleging trial

court error in deviating from the mandatory sentence proscribed by law for a fourth

felony offender. For the following reasons, we vacate the trial court sentence and

remand the case for resentencing in accordance with law.

FACTS

Defendant’s underlying conviction in this habitual offender case is

aggravated battery, which occurred in October 2008. At the habitual offender

hearing, the State alleged six predicate convictions, as follows: possession of

cocaine, April 1991; second degree battery, November 1997; possession of

cocaine, July 1997; possession of cocaine, September 1997; distribution of

cocaine, October 2002; and possession of cocaine, February 2010. The State

offered certified minute entries and bills of information on each of the convictions.

Defendant, through counsel, stipulated to the authenticity of the State’s proof of

the above offenses and to his identity.

Defendant then presented the testimony of Elizabeth Comeaux, his mother,

who testified that as a child, Defendant witnessed extremely violent behavior in his

family, including his father being murdered when he was five years old and his

uncle killing the man who killed his father. She further testified that Defendant’s

stepfather was extremely abusive, and Defendant took to alcohol and drugs as a

teenager to cope with that environment.

Defendant also presented the testimony of Dr. Craig Forsyth, a professor of

sociology and criminal justice and head of the Criminal Justice Department at

University of Louisiana. After he was accepted as an expert in sociology by the

trial court, Dr. Forsyth testified as to how a person’s behavior is formed by their

social environment and how Defendant’s behavior could be attributed to his

upbringing. At the conclusion of the hearing, the trial court vacated the ten-year

sentence imposed upon Defendant on the conviction for aggravated battery and

sentenced Defendant to fifty years imprisonment without benefit of parole,

probation, or suspension of sentence.

PROCEDURAL HISTORY

Defendant was convicted by the trial court of aggravated battery, a violation

of La.R.S. 14:34, on November 16, 2010. Defendant was sentenced to ten years

imprisonment at hard labor on December 16, 2010. On January 31, 2011,

Defendant was charged as a habitual offender pursuant to La.R.S. 15:529.1

(Habitual Offender Law). On September 29, 2011, Defendant was adjudicated a

habitual offender and sentenced to fifty years imprisonment without the benefit of

parole, probation, or suspension of sentence.

The State timely perfected an appeal, alleging that the trial court erred when

it deviated from the mandatory sentence proscribed by the Habitual Offender Law

for a fourth felony offender.

ASSIGNMENTS OF ERROR

The State presents two issues: “[w]hether the trial court erred in sentencing

the [D]efendant under [La.R.S. 15:529.1(A)(4)(a)] or [La.R.S. 15:529.1(A)(3)(a)]

instead of [La.R.S. 15:529.1(A)(4)(b);]” and “[w]hether the trial court erred in

sentencing the [D]efendant to fourteen (14) years as a habitual offender[,] which is

below the mandatory minimum sentence of life in prison.” Obviously, the State

inadvertently erred when it stated in brief that the trial court sentenced Defendant

to fourteen years. Defendant was actually sentenced to fifty years. Nevertheless,

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the crucial and pertinent issue is whether the trial court erred in sentencing

Defendant under the Habitual Offender Law. We find that there are procedural

irregularities which warrant a reversal of the habitual offender sentence and a

remand.

At the adjudication hearing, the State offered State’s Exhibits 1–7 to the trial

court, and the trial court was advised that Defendant acknowledged and confessed

to the predicate offenses. The defense then presented its two witnesses.

Thereafter, the trial court stated, “All right. The Court will vacate the previous

sentence of ten (10) years that was meted out to this [D]efendant[,] and I’m going

to order the [D]efendant to serve fifty (50) years at hard labor without the benefit

of parole, probation or suspension of sentence.”

In brief, citing State v. Dean, 588 So.2d 708 (La.App. 4 Cir. 1991), writ

denied, 595 So.2d 652 (La.1992), the State argues that although it “is impossible to

know exactly which part of the Habitual Offender Law the [D]efendant was

sentenced under[,]” the trial court did not have the discretion to find Defendant not

guilty of being a habitual offender or only guilty of being a second or third

offender after the State had proven its accusation that he was a fourth felony

offender, which triggered the enhancement section of the statute. We note that

with respect to habitual offenders, the applicable sentencing provision is the one in

effect when the underlying offense was committed. State v. Parent, 03-653

(La.App. 5 Cir. 10/28/03), 860 So.2d 170, writ denied, 03-3169 (La. 5/21/04), 874

So.2d 171.

In the instant case, the offense was committed in 2008; accordingly, two

possible relevant provisions are La.R.S. 15:529.1(A)(1)(c)(i) or (c)(ii), which

provided:

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(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; or

(ii) If the fourth felony and two of the 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 a violation of the
Uniform Controlled Dangerous Substances Law punishable by
imprisonment for ten years or more, or of any other crime 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.

Further, this court, in State v. Smith, 07-468, p. 10 (La.App. 3 Cir.

10/31/07), 969 So.2d 694, 701, writ denied, 07-2484 (La. 5/16/08), 980 So.2d 707

(alteration in the original), discussed departure from mandatory penalties as

follows:

[A] court may depart from mandatory penalties provided
by the legislature for an offense upon a showing by the
defendant 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.” State v. Johnson, 97-1906, p. 8
(La.3/4/98), 709 So.2d 672, 677 (internal quotation
marks and citation omitted); see also State v. Dorthey,
623 So.2d 1276, 1280-81 (La.1993) (holding that a 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. Lemons, 06-1051, p. 1 (La. 11/17/06), 942 So.2d 33, 33-34.

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We cannot speculate as to what grounds the trial court determined the

appropriate sentence to be in this case. The trial court did not so state. Did the

trial court sentence Defendant under La.R.S. 15:529.1(A)(1)(c)(i), did he accept

the expert’s testimony and determine in this particular case that Defendant was

exceptional, or did he take issue with one or more of the predicate convictions

during the witnesses’ testimonies? There is nothing in the record reflecting the

trial court’s response to these pertinent questions, and there is nothing in the record

to support the trial court’s inexplicable departure from the mandatory penalty.

The habitual offender statute, La.R.S. 15:529.1(D)(3)(emphasis added),

provided:

When the judge finds that he has been convicted of a prior
felony or felonies or adjudicated a delinquent as authorized in
Subsection A, or if he acknowledges or confesses in open court, after
being duly cautioned as to his right, that he has been so convicted or
adjudicated, the court shall sentence him to the punishment prescribed
in this Section, and shall vacate the previous sentence if already
imposed, deducting from the new sentence the time actually served
under the sentence so vacated. The court shall provide written
reasons for its determination. Either party may seek review of an
adverse ruling.

In addition to the mandate to provide reasons for its determination, the Habitual

Offender Law also requires the trial court to state for the record whether a

defendant is a second, third, or fourth felony offender. La.R.S.15:529.1(D)(2)(a),

(b), and (c).

Lastly, in his response to the State’s appeal of the sentence, Defendant notes

a procedural irregularity. He argues that the record in the current case does not

contain a motion for reconsideration of sentence as required by La.Code Crim.P.

art. 881.2(B). Accordingly, the issue of the sentence is not properly before this

court. Following the imposition of the sentence, the prosecutor only stated, “Your

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Honor, I’d like to give our notice of appeal.” There was no formal objection by the

State put on the record regarding the sentence.

In State v. Jefferson, 01-1139 (La.App. 5 Cir. 3/13/02), 815 So.2d 120,

reversed on other grounds, 02-1038 (La. 1/10/03), 838 So.2d 724, the fifth circuit

examined a scenario very similar to the current case wherein the State did not file a

motion to reconsider a less than minimum sentence imposed on a habitual offender

or object to the sentence at the time of the sentencing. As in the instant case, the

State merely moved for an appeal. After examining La.Code Crim.P. art. 881.1(B)

and (D) and the legislative intent behind La.R.S. 15:301.1, the fifth circuit stated:

Recently[,] the Supreme Court ruled that R.S. 15:301.1 has
retroactive application. State v. Williams, 00-1725 (La.11/28/01), 800
So.2d 790. The Williams court also considered the authority of the
appellate courts to amend or order amended an illegally lenient
sentence when the state did not object below or complain on appeal of
the leniency. Although the procedural facts of Williams can be
distinguished from the case at bar, because in the instant matter the
state does complain of the sentence on appeal, we find Williams
enlightening and applicable to the instant matter.

The Williams opinion called into question the line of cases
represented by State v. Jackson, 452 So.2d 682 (La.1984), and State v.
Fraser, 484 So.2d 122 (La.1986), and concluded that a defendant does
not have a constitutional or statutory right to an illegal sentence. In
this regard, the Supreme Court concluded that when an illegal
sentence is corrected, even though the corrected sentence is more
onerous, there is no violation of the defendant’s constitutional rights.

In analyzing R.S. 15:301.1 the Williams court found that the
provisions of paragraphs A and C were self-activating, but paragraph
B requires the court or the state to move to correct the sentence. In
this regard, the Supreme Court noted that paragraph B addresses
sentencing restrictions other than parole, probation or suspension of
sentence. Paragraph B is applicable in the instant case because the
sentencing problem of which the state complains is nonconformity
with statutory provisions. As we interpret Williams, the state is
exempt from the need to file either a contemporaneous objection
pursuant to LSA-C.Cr.P. art. 841 or a motion to reconsider sentence
pursuant to LSA-C.Cr.P. art. 881.1 because of the legislative
enactment of R.S. 15:301.1B. State v. Williams, supra at p. 11, fn. 8,
800 So.2d at 798. While the Supreme Court does not specifically refer
to LSA-C.Cr.P. art 881.2 in its analysis, we find that article 881.2
must be read in conjunction with article 881.1, which is specifically

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mentioned. Accordingly, we consider the matter properly before us,
and we will review the state’s appeal.

Id. at 123-24 (footnote omitted).

In the instant case, considering the stipulations as to Defendant’s identity

and the predicate offenses, there was no issue as to the adjudication of Defendant

as a habitual offender. The only remaining issue before the trial court was the

sentencing of Defendant as a habitual offender. As soon as the trial court

sentenced Defendant to fifty years without benefits, the State immediately gave

notice to the trial court of its intent to appeal. Since this was the only remaining

issue before the trial court, we deem that to be the equivalent of an objection by the

State to the trial court’s sentence. Therefore, we consider the State’s appeal to be

properly before us.

Defendant further argues that even though he is the Appellee, the record

should be reviewed for errors patent. He states an error patent is found in the

habitual offender hearing in that the record fails to show that Defendant was duly

cautioned as to his rights, specifically his right to remain silent prior to pleading

guilty to being a multiple offender. However, in State v. Moore, 12-102, p. 1 (La.

5/25/12), 90 So.3d 384, 385, the supreme court stated “that a habitual offender

hearing should not be considered part of the record for purposes of error patent

review and that a defendant must assign as error any perceived defect in the

proceedings to preserve appellate review of the claimed error.”

As stated above, considering our thorough review of the record, we find that

it is not possible for this court to determine on what grounds the trial court

sentenced Defendant. Consequently, we must vacate Defendant’s sentence and

remand the matter to the trial court with instructions that when resentencing

Defendant, the trial court is to comply with the mandated analysis set forth in State

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v. Johnson, 97-1906 (La. 3/4/98), 709 So.2d 672, which requires the trial court to

articulate reasons for imposing a downward departure from a mandatory minimum

sentence in the case of a habitual offender.

DISPOSITION

Defendant’s sentence is vacated, and the matter is remanded to the trial court

with instructions that when resentencing Defendant, the court shall comply with

the mandated analysis as set forth in Johnson, 709 So.2d 672.

SENTENCE VACATED;
CASE REMANDED WITH INSTRUCTIONS.

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