State of Louisiana v. Kenneth G. Billingsley

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

13-11

STATE OF LOUISIANA

VERSUS

KENNETH G. BILLINGSLEY

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 31468-10
HONORABLE D. KENT SAVOIE, DISTRICT JUDGE

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MARC T. AMY
JUDGE

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Court composed of Sylvia R. Cooks, Marc T. Amy, and Phyllis M. Keaty, Judges.

AFFIRMED.

John F. DeRosier
District Attorney
Karen C. McLellan
Assistant District Attorney
Post Office Box 3206
Lake Charles, LA 70602-3206
(337) 437-3400
COUNSEL FOR APPELLEE:
State of Louisiana

Edward K. Bauman
Louisiana Appellate Project
Post Office Box 1641
Lake Charles, LA 70602-1641
(337) 491-0570
COUNSEL FOR DEFENDANT/APPELLANT:
Kenneth G. Billingsley

Kenneth G. Billingsley
Louisiana State Penitentiary
Camp D - Eagle 3
Angola, LA 70712
IN PROPER PERSON

AMY, Judge.

The defendant in this case was convicted of armed robbery and armed

robbery with a firearm, and subsequently adjudicated a second felony offender. A

panel of this court affirmed the defendant’s conviction and habitual offender

determination, but vacated the defendant’s sentence as indeterminate and

remanded the matter for resentencing. The trial court resentenced the defendant to

seventy years at hard labor as a habitual offender and imposed a five-year sentence

for armed robbery with a firearm. Both sentences were to be served without

benefit of probation, parole, or suspension of sentence and to be served

consecutively to each other and to the defendant’s sentence for a probation

violation. The defendant appeals. For the following reasons, we affirm.

Factual and Procedural Background

A jury found the defendant, Kenneth G. Billingsley, guilty of armed robbery,

a violation of La.R.S. 14:64, and armed robbery with a firearm, a violation of

La.R.S. 14:64.3. The facts of the defendant’s crime were set forth in State v.

Billingsley, 11-790, pp. 2-4 (La.App. 3 Cir. 3/14/12), 86 So.3d 865, 867-68

(Billingsley I), writ denied, 12-821 (La. 9/28/12), 98 So.3d 827: 1

On the evening of April 9, 2008, the victims were sitting in Ms.
[Robin] Decote’s[2] truck at the Goosport Recreation Center. They
had just left work and Ms. [Stephanie] Foreman wanted to smoke a
cigarette before she was dropped off at home. As they were talking,
they noticed a group in the playground of the recreation center, three
men and a woman. Two of the men approached the truck and
attempted to engage the two victims in small talk. Ms. Decote
politely informed the men they were not interested in talking with
them. The men, together with the other two people, left the
playground.

1
For clarity, we have included in this opinion an identifier for each of the defendant’s
prior appeals, i.e., Billingsley I, Billingsley II, Billingsley III.
2
Ms. Decote’s name is also spelled as “Ducote” in the record.

However, within a few minutes the two men returned to the
truck. Defendant approached the passenger side where Ms. Foreman
sat, put a gun to her head, and demanded money. At the same time,
the other robber, Mr. [Brian] Paul, put a gun to Ms. Decote’s head and
demanded money. Ms. Foreman gave Defendant her purse, which
contained about ninety dollars, and he ran off. Ms. Decote was able to
convince Mr. Paul she did not have any money, and he ran off.
Although Ms. Decote did not get a good look at the second robber,
she saw a very distinctive tattoo across the back of his hand: “Eddie.”

After the two men ran away, Ms. Decote and Ms. Foreman
attempted to follow the second robber. While they did not find Mr.
Paul, they came upon the two other persons who were in the park with
Defendant and Mr. Paul. Ms. Decote got out of the truck and talked
to the young man, got his name, and convinced him to let her take him
home. During this time, Ms. Foreman called the police, and after they
dropped the boy off, they returned to Goosport Recreation Center and
met the police. They then went to the police station and gave
statements.

Gregory Single . . . with the Lake Charles Police Department,
was on duty the night of the robbery. He met with the victims and got
the name of the young man Ms. Decote had taken home after the
robbery. He went to the young man’s house and spoke with him and
his mother. The young man said he was in the playground with a man
he only knew as “K.J.” The boy and his mother provided the
information which led to Defendant. Officer Single obtained
Defendant’s address and went to his house, which was just a few
blocks from the recreation center. There, the officer was told by
Defendant’s mother that he was in bed, sleeping. However, she gave
the officer permission to search the house. A search of Defendant’s
room located two old guns tucked behind a dresser and a gun under
the mattress. The officer also found eighty-three dollars tucked into a
shoe in Defendant’s bedroom. The next day, Ms. Foreman was shown
a photographic lineup, and she positively identified Defendant as the
man who held a gun to her head and took her purse the previous night.

Mr. Paul confessed to the police that he was the man who
attempted to rob Ms. Decote, and he named Defendant as the one who
robbed Ms. Foreman at gunpoint. However, at Defendant’s trial, Mr.
Paul adamantly insisted that he could not remember the person who
was with him the night Ms. Decote and Ms. Foreman were robbed.
He did not remember ever telling the police that Defendant was other
robber. Mr. Paul had pled guilty to robbing Ms. Decote and was
sentenced prior to Defendant’s trial.

Finally, Sharonda Caldwell, Defendant’s mother, testified. She
stated that Defendant’s nickname was “K.J.,” short for Kenneth,
Junior. She further stated that he had been out with his girlfriend,

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Jasmine Williams, the night of the robbery. She said the girlfriend
dropped him off at home around ten o’clock that night and he had
gone straight to bed.

Subsequent to his conviction for armed robbery and armed robbery with a

firearm, the State instituted habitual offender proceedings against the defendant.

The trial court adjudicated the defendant as a second felony offender and imposed

a sentence of seventy-five years at hard labor, without the benefit of probation,

parole, or suspension of sentence.

The defendant appealed. A panel of this court affirmed the defendant’s

underlying conviction in Billingsley I. However, in State v. Billingsley, 11-1425,

p. 2 (La.App. 3 Cir. 3/14/12), 86 So.3d 872, 873 (Billingsley II), which addressed

the defendant’s habitual offender proceedings, the panel found that the “trial court

failed to impose a separate five-year sentence to run consecutively to the habitual

offender sentence, rendering Defendant’s sentence indeterminate.” The panel

vacated the defendant’s sentence and remanded the matter to the trial court for

resentencing.

At the resentencing hearing, the trial court imposed a habitual offender

sentence of seventy years at hard labor without benefit of probation, parole, or

suspension of sentence. For the defendant’s armed robbery with a firearm

conviction, the trial court sentenced the defendant to five years at hard labor

without benefit of probation, parole, or suspension of sentence, to be served

consecutively to the defendant’s habitual offender sentence and his probation

violation.

3

The defendant appeals, asserting that his sentence is unconstitutionally

excessive.3

Discussion

Errors Patent

Pursuant to La.Code Crim.P. art. 920, all criminal appeals are reviewed for

errors patent on the face of the record. Such a review was performed in Billingsley

II, 86 So.3d 872, and we note no additional errors patent here.

Excessive Sentence—Aggravating and Mitigating Factors

The defendant asserts that his sentence is unconstitutionally excessive. As

part of his argument, he contends that the trial court failed to consider the

sentencing factors delineated in La.Code Crim.P. art. 894.1, including mitigating

factors, and that the trial court improperly considered evidence of other crimes for

which the defendant was charged but not convicted.

The defendant contends that the trial court inappropriately considered

charges of armed robbery, armed robbery with a firearm, and possession of stolen

goods that were dismissed before resentencing. A panel of this court discussed

such considerations in State v. J.S., 10-1233, p. 10 (La.App. 3 Cir. 5/11/11), 63

So.3d 1185, 1192, stating:

3
The defendant filed a separate appeal under docket number 13-52, which was originally
consolidated with the instant appeal. However, that appeal was dismissed on April 24, 2013.
See State v. Billingsley, 13-52 (La.App. 3 Cir. 4/24/13), 110 So.3d 731 (unpublished opinion)
(Billingsley III).

Further, in the instant appeal, the defendant requests that this court instruct the trial court
to order that the defendant be given credit for time served pursuant to La.Code Crim.P. art. 880.
We note that the defendant has neither assigned this request as error nor included any argument
concerning this issue in his brief to this court. Accordingly, this court considers his request
abandoned pursuant to Uniform Rules—Courts of Appeal, Rule 2.12-4. See State v. Martin, 11-
32 (La.App. 3 Cir. 6/1/11), 66 So.3d 608, writ denied, 11-1441 (La. 12/16/11), 76 So.3d 1201.
However, we observe that credit for time served pursuant to La.Code Crim.P. art. 880 occurs by
operation of law. State v. Carthan, 99-512 (La.App. 3 Cir. 12/8/99), 765 So.2d 357, writ denied,
00-359 (La. 1/12/01), 778 So.2d 547.

4

When evaluating a defendant’s criminal history, trial courts may
consider evidence at sentencing that would otherwise be inadmissible
at trial. State v. Myles, 94-217 (La. 6/3/94), 638 So.2d 218. The trial
court may consider records of prior arrests, hearsay evidence of
suspected criminal activity, conviction records, and evidence of
uncharged offenses or offenses that were nolle prossed. State v.
Emerson, 31,408 (La.App. 2 Cir. 12/9/98), 722 So.2d 373, writ
denied, 99-1518 (La.10/15/99), 748 So.2d 470.

The evidence the defendant complains of consists of “offenses that were nolle

prossed” and would therefore be appropriate for consideration by the trial court.

We find no merit to this argument.

The defendant also contends that the trial court failed to adequately consider

the aggravating and mitigating factors delineated in La.Code Crim.P. art. 894.1 and

the mitigating circumstances that have arisen since his original sentencing.

A list of factors to be considered by the trial court in determining a

defendant’s sentence is delineated by La.Code Crim.P. art. 894.1. The trial court

need not list every aggravating or mitigating circumstance as long as the record

reflects that he adequately considered the factors contained in the article. State v.

Smith, 433 So.2d 688 (La.1983). “The articulation of the factual basis for a

sentence is the goal of La.C.Cr.P. art. 894.1, not rigid or mechanical compliance

with its provisions. The important elements which should be considered are the

defendant’s personal history (age, family ties, marital status, health, employment

record), prior criminal record, seriousness of offense, and the likelihood of

rehabilitation.” State v. Decuir, 10-1112, p. 3 (La.App. 3 Cir. 4/6/11), 61 So.3d

782, 785 (quoting State v. Scott, 36,763 (La.App. 2 Cir. 1/29/03), 836 So.2d 1180).

However, the trial court is not required to give any specific factor any particular

weight at sentencing. Id.

5

Further, in cases where the trial court fails to comply with La.Code Civ.P.

art. 894.1, remand is unnecessary where the record clearly shows an adequate

factual basis for the sentence. State v. Smith, 34,325 (La.App. 2 Cir. 12/20/00),

775 So.2d 640. “The question is whether the record presented is sufficient to

demonstrate that the trial court did not abuse its discretion.” Id. at 642.

Although the transcript from the defendant’s resentencing does not contain

reference to the aggravating and mitigating factors delineated in Article 894.1, the

record indicates that the trial court was present at both the defendant’s first trial,

which ended in a mistrial, and his second trial, at which he was found guilty of

armed robbery and armed robbery with a firearm. Further, the trial court found

that the defendant had violated his probation from an earlier conviction for

possession of stolen property under $500 and that the defendant was a second

felony habitual offender.

Additionally, at the defendant’s original sentencing hearing, the trial court

heard testimony from one of the police officers involved in the case, the victims,

and the defendant’s mother and uncle. The victims testified about the effect of the

defendant’s actions on their lives. Ms. Foreman testified that “[w]hat happened

that day was the worst the worst [sic] day of my life.” Of particular note, the

victims testified that they had been contacted either by the defendant or by the

defendant’s “brother” 4 in what the State characterized as attempts to harass the

victims. A copy of the defendant’s letter contacting Ms. Decote was submitted

into evidence. Further, the police officer involved in the case testified that the

4
The defendant’s mother testified that she had “no idea” who the victims “were talking
about[,]” as the defendant was her only child. However, she could not say if the defendant had
any siblings on his father’s side.

6

defendant was listed as a suspect in thirteen offenses in the Lake Charles Police

Department’s computer system.

The defendant’s uncle and mother also testified at the original sentencing

hearing. The defendant’s uncle observed that the defendant was only twenty-two

years old at the time of his initial sentencing and asked for leniency. The

defendant’s mother echoed that sentiment, asking the court to be lenient on her

only child. The defendant also argued that he intended to complete his G.E.D., had

been attending self-improvement courses, including a course on anger

management, and was attending church.

The trial court originally imposed a seventy-five-year hard-labor sentence,

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

stated:

The Court has considered the records of these proceedings. I
don’t have the benefit of a presentence report[,] but I had the benefit
of going through the trial on two separate occasions. I have heard
what the defendant’s involvement was, his continual denial of same;
and . . . any lesser sentence would deprecate the seriousness of the
offense.

At the resentencing hearing, with regard to the defendant’s habitual offender

adjudication, the trial court imposed a seventy-year hard-labor sentence, without

benefit of probation, parole, or suspension of sentence. For the defendant’s

conviction for armed robbery with a firearm, the trial court also imposed the

separate five-year additional penalty, to be served without the benefit of probation,

parole, or suspension of sentence and to be served consecutively to the defendant’s

habitual offender sentence and his previous sentence for a probation violation.

The record does not indicate that the trial court discussed the aggravating

and mitigating factors contained in La.Code Crim.P. art. 894.1 at the resentencing

7

hearing. However, our review of the record, including the transcripts of both the

original sentencing hearing and the resentencing hearing, reveals an adequate

factual basis for the trial court’s sentence. Accordingly, we find that the record

presented is sufficient to demonstrate that the trial court did not abuse its discretion

and that the trial court adequately considered the sentencing factors contained in

La.Code Crim.P. art. 894.1. See State v. Stipe, 10-877 (La.App. 3 Cir. 3/9/11), 59

So.3d 480.

Further, we find no merit to the defendant’s contention that the trial court

did not place adequate weight on the accomplishments that the defendant has made

since his original sentencing. The defendant contends that he has enrolled in a

G.E.D. program, completed anger management and other self-improvement

courses, and has participated in several religious activities, including a discipleship

class. However, the trial court is not required to give specific matters any

particular weight in fashioning a sentence. Decuir, 61 So.3d 782. We also note

that the defendant participated in all of these programs after his arrest and

incarceration.

Thus, we find no error on the part of the trial court concerning the evidence

considered at sentencing and consideration of the sentencing guidelines.

Excessive Sentence—Constitutionality

The defendant also contends that his sentence is unconstitutionally

excessive. In 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, a panel

of this court discussed the review of excessive sentence claims, stating:

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

8

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).

Further, in 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, a panel of this court

discussed the considerations an appellate court should take into account when

reviewing excessive sentence claims, stating:

In deciding whether a sentence is shocking or makes no
meaningful contribution to acceptable penal goals, an 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.

The defendant was convicted of armed robbery and armed robbery with a

firearm and was subsequently adjudicated a second felony habitual offender.

Pursuant to La.R.S. 14:64(B), the potential sentence for armed robbery is

imprisonment “at hard labor for not less than ten years and for not more than

ninety-nine years, without benefit of parole, probation, or suspension of sentence.”

Louisiana Revised Statutes 15:529.1(A) provides that:

9

Any person who, after having been convicted within this state
of a felony, 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:

(1) If the second felony is such that upon a first conviction the
offender would be punishable by imprisonment for any term less than
his natural life, then the sentence to imprisonment shall be for a
determinate term not less than one-half the longest term and not more
than twice the longest term prescribed for a first conviction.

Accordingly, the defendant’s potential sentence was between 49 ½ years to 198

years at hard labor without the benefit of probation, parole, or suspension of

sentence. See State v. Carroll, 41,001 (La.App. 2 Cir. 4/12/06), 926 So.2d 827,

writ denied, 06-1470 (La. 12/15/06), 944 So.2d 1283. Further, pursuant to La.R.S.

14:64.3, the defendant was subject to a five-year additional penalty for his

conviction for armed robbery with a firearm.5

Pursuant to the habitual offender determination, the trial court imposed a

sentence of seventy years at hard labor without benefit of probation, parole, or

suspension of sentence. The trial court also imposed the five-year additional

penalty for armed robbery with a firearm, to run consecutively to the defendant’s

habitual offender sentence and his sentence in a probation revocation matter.

The defendant’s sentence is well within the statutory sentencing range. We

note that a sentence may violate the constitutional prohibition against excessive

sentences even when it is within the statutory limits. State v. Smith, 01-2574 (La.

1/14/03), 839 So.2d 1. However, we find that the defendant’s sentence is not
5
Louisiana Revised Statutes 14:64.3(A) states that “[w]hen the dangerous weapon used
in the commission of the crime of armed robbery is a firearm, the offender shall be imprisoned at
hard labor for an additional period of five years without benefit of parole, probation, or
suspension of sentence. The additional penalty imposed pursuant to this Subsection shall be
served consecutively to the sentence imposed under the provisions of R.S. 14:64.”

10

unconstitutionally excessive. The record indicates that the defendant, a second-

felony offender, held a gun to one victim’s head while an accomplice did the same

to the other victim. We also observe that sentences similar to the defendant’s have

been upheld for second-felony offenders convicted of armed robbery, even for

youthful offenders. See, e.g., Carroll, 926 So.2d 827.

Based on our review of the facts and circumstances of this case, we find that

the defendant’s sentence does not shock our sense of justice, nor is it grossly

disproportionate to the severity of the offense. Accordingly, we find that the trial

court did not abuse its discretion in fashioning the defendant’s sentence.

This assignment of error is without merit.

DECREE

For the foregoing reasons, the sentences of the defendant, Kenneth G.

Billingsley, which were imposed on April 13, 2012, are affirmed.

AFFIRMED.

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