STATE OF LOUISIANA VERSUS HAROLD OZENE A/K/A JAMIE OZENE A/K/A HAROLD J. BOOTE A/K/A HAROLD J. OZENE A/K/A HAROLD BOUTTE

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

12-1104

STATE OF LOUISIANA

VERSUS

HAROLD OZENNE A/K/A JAMIE
OZENNE A/K/A HAROLD J.
BOOTTE A/K/A HAROLD J.
OZENNE A/K/A HAROLD BOUTTE

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. CR129663
HONORABLE EDWARD D. RUBIN, DISTRICT JUDGE

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JIMMIE C. PETERS
JUDGE

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Court composed of Jimmie C. Peters, Elizabeth A. Pickett, and Phyllis M. Keaty,
Judges.

SENTENCE VACATED AND REMANDED FOR RESENTENCING.

Michael Harson
District Attorney

Fifteenth Judicial District
P.O. Box 3306
Lafayette, LA 70502-3306
(337) 232-5170
COUNSEL FOR APPELLANT:
State of Louisiana

Alan P. Haney
Assistant District Attorney
Fifteenth Judicial District
P. O. Box 4308
Lafayette, LA 70502
(337) 291-7009
COUNSEL FOR APPELLANT:
State of Louisiana

Edward K. Bauman
Louisiana Appellate Project
P. O. Box 1641
Lake Charles, LA 70602-1641
(337) 491-0570
COUNSEL FOR DEFENDANT/APPELLEE:
Harold Ozenne a/k/a Jamie Ozenne; Harold J. Bootte; Harold J. Ozene;
Jamie Ozenne; Harold Boutte; Harold Bootte

PETERS, J.

The trial court adjudicated the defendant, Harold Ozenne,1 as an habitual

offender and sentenced him pursuant to La.R.S. 15:529.1 to serve ten years at hard

labor. The State of Louisiana (state) perfected this appeal, asserting that the

sentence imposed is illegally lenient. For the following reasons, we vacate the

sentence imposed by the trial court and remand the matter to the trial court for

resentencing.

DISSCUSSION OF THE RECORD

This marks the third time this matter has been before us, and we adopt the

procedural history found in State v. H.O.,2 an unpublished opinion bearing docket

number 11-1312, p. 1 (La.App. 3 Cir. 3/7/12), writ denied, 12-756 (La. 9/21/12),

98 So.3d 327:

On December 14, 2010, Defendant was found guilty of
attempted cruelty to a juvenile, a violation of La.R.S. 14:93. He was
sentenced to five years at hard labor. Defendant appealed this
conviction, and we affirmed it. See State v. H.O., 11-725 (La.App. 3
Cir. [3/7/12]), ___ So.3d ___ [, writ denied, 12-756 (La. 9/21/12), 98
So.3d 327].

On January 31, 2011, the State charged Defendant with being a
habitual offender, with five prior convictions starting in 1992. He was
adjudicated a habitual offender on May 19, 2011, and sentenced to ten
years imprisonment at hard labor. On May 20, 2011, the State filed a
Motion to Correct Illegal Sentence and a Motion for an Appeal,
asserting that the sentence was illegally lenient. On the same date, the
trial court granted the State’s Motion for an Appeal. On July 28,
2011, the trial court denied the State’s Motion to Correct Illegal
Sentence.

1
The defendant is known by a number of other names, including Jamie Ozene, Harold J.
Boote, Harold J. Ozene, and Harold Boutte.
2
Pursuant to court rules in effect at the time this opinion was rendered, the initials of the
child and the defendant were used in order to protect the child’s identity. Since that opinion, the
supreme court in State v. R.W.B., 12-453 (La. 12/4/12), 105 So.3d 54, ruled that La.R.S.
46:1844(W) allows for the use of initials to protect the identity of a crime victim who is under
the age of eighteen years, but does not extend to the defendant or witnesses involved in the case.

In that opinion, a panel of this court vacated the sentence imposed and remanded

the matter to the trial court based on the panel’s finding of an error patent on the

face of the record. Specifically, this court found that the trial court had failed to

advise the defendant of his right to remain silent, his right to a hearing, and his

right to have the state prove its case at the habitual offender hearing. See State v.

Robertson, 94-1570 (La.App. 3 Cir. 11/2/95), 664 So.2d 687.

On remand, the trial court addressed these omissions at an April 19, 2012

hearing. In response, the defendant again admitted that he was the same person

who committed the offenses set forth in the bill of information charging him with

being an habitual offender. All convictions were obtained in Lafayette Parish,

Louisiana, and included a May 12, 1992 conviction for aggravated battery; a

November 2, 1998 conviction for possession of cocaine; a May 21, 2001

conviction for distribution of cocaine; a November 30, 2009 conviction for

possession of cocaine; and a April 29, 2010 conviction for possession of cocaine.

Thus, by his own admission, he was a six-time convicted felon.

After adjudicating the defendant an habitual offender for the second time,

the trial court again imposed a ten-year hard-labor sentence. In doing so, the trial

court provided no written or oral reasons. After the trial court rejected its motion

to correct an illegally lenient sentence, the state perfected this appeal, addressing

only that issue.

OPINION

The state argues that because the defendant is a sixth-felony offender,

La.R.S. 15:529.1(A)(4)(a) requires the imposition of a minimum sentence of

twenty years. We agree.

2

Louisiana Revised Statutes 15:529.1(A)(4) provides in part:

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:

(a) 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[.]

The longest incarceration period prescribed for a conviction of attempted cruelty to

a juvenile is five years. La.R.S. 14:93(D), La.R.S. 14:27(D)(3). Thus, the

minimum incarceration sentence required by La.R.S. 15:529.1(A)(4)(a) in the

defendant’s case is twenty years.

This case also does not meet the requirements of the rare instance where a

departure from the mandatory sentence may be warranted due to an

unconstitutionally excessive sentence in violation of the Eight Amendment of the

United States Constitution (Louisiana Constitution Article 1, § 20), pursuant to

State v. Dorthey, 623 So.2d 1276 (La.1993). After Dorthey, the supreme court in

State v. Johnson, 97-1906, pp. 7-8 (La. 3/4/98), 709 So.2d 672, 676, explained the

circumstances under which such a departure might occur:

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.

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
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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. So 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.

Instead, to rebut the presumption that the mandatory minimum
sentence is constitutional, the defendant must clearly and
convincingly show that:

[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.

[State v.] Young, 94-1636 at pp. 5-6, [(La.App. 4 Cir. 10/26/95),] 663
So.2d [525] at 528 (Plotkin, J., concurring).

See also State v. Lindsey, 99-3302 (La. 10/17/00), 770 So.2d 339, cert. denied, 532
U.S. 1010, 121 S.Ct. 1739 (2001).

In the instant case, the defendant presented nothing to rebut the mandatory

minimum presumption at the May 19, 2011 habitual offender hearing. In

sentencing the defendant to less than the mandatory minimum, the trial court

provided no reasons to justify the departure from the sentencing requirements of

La.R.S. 15:529.1(A)(4)(a). Nor did it provide any reasons for rejecting the state’s

motion to correct the illegal sentence filed pursuant to La.Code Crim.P. art. 881.5.

On appeal, the state asserts that we should simply sentence the defendant to

twenty years, and cites State v. Bourda, 10-1553 (La.App. 3 Cir. 6/8/11), 70 So.3d

82, writ denied, 11-2122 (La. 2/17/12), 82 So.3d 282, as authority for that position.

We find the Bourda decision distinguishable from the case at hand. In Bourda, the

defendant was sentenced to an illegally lenient sentence, but the only sentence

available to the trial court under La.R.S. 15:529.1(A)(1)(b)(ii) as it read at that time
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was a sentence of life imprisonment. Thus, finding the record devoid of any

evidence which would justify a departure from the single mandated sentence, and

rather than reversing and remanding the matter to the trial court in accordance with

Johnson, 709 So.2d 672, we vacated the sentence and rendered a sentence of life

imprisonment. In the matter now before us, La.R.S. 15:529.1(A)(4)(a) provides a

minimum sentence of twenty years.

We also reject the defendant’s argument in his brief that the state failed to

prove that the ten-year cleansing period of La.R.S. 15A:529.1(C) had not elapsed,

and that the trial court failed to enumerate the number of felonies proved by the

state when sentencing him. We find that the record before us establishes, without

the requirement of additional evidence, that at no time between the defendant’s six

convictions was there a ten-year cleansing period.

Because the trial court is free to consider any sentence greater than twenty

years, but less than life imprisonment pursuant to La.R.S. 15:529.1(A)(4)(a), we

find it necessary to vacate the sentence imposed and remand the matter to the trial

court with instructions to sentence the defendant in accordance with the

requirements of La.R.S. 15:529.1(A)(4)(a).

DISPOSITION

For the foregoing reasons, we vacate the defendant’s sentence and remand

the matter to the trial court for resentencing consistent with this opinion.

SENTENCE VACATED AND REMANDED FOR RESENTENCING.

This opinion is NOT DESIGNATED FOR PUBLICATION.
Uniform Rules—Courts of Appeal, Rule 2—16.3.

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