State of Louisiana v. Billy J. Weldon

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

13-285

STATE OF LOUISIANA

VERSUS

BILLY J. WELDON

**********

APPEAL FROM THE
THIRTY-SIXTH JUDICIAL DISTRICT COURT
PARISH OF BEAUREGARD, NO. CR-2009-896
HONORABLE C. KERRY ANDERSON, DISTRICT JUDGE

**********

JAMES T. GENOVESE
JUDGE

**********

Court composed of Billy Howard Ezell, J. David Painter, and James T. Genovese,
Judges.

AFFIRMED.

Brent Hawkins
Louisiana Appellate Project
Post Office Box 3752
Lake Charles, Louisiana 70602-3752
(337) 502-5146
COUNSEL FOR DEFENDANT/APPELLANT:
Billy J. Weldon

David W. Burton
District Attorney — Thirty-Sixth Judicial District
Richard F. Blankenship
Assistant District Attorney
Post Office Box 99
DeRidder, Louisiana 70634
(337) 463-5578
COUNSEL FOR APPELLEE:
State of Louisiana

GENOVESE, Judge.

In this criminal case, Defendant, Billy J. Weldon, was convicted by a jury of

the responsive verdict of manslaughter. He only appeals his sentence of thirty-

eight years at hard labor, seven years of which were suspended with supervised

probation, alleging an excessive sentence. For the reasons that follow, we affirm

Defendant’s sentence.

FACTS AND PROCEDURAL HISTORY

On Sunday, August 23, 2009, Defendant and Kimberly Stephens, along with

Defendant’s infant son, traveled to a vacant lot off Granberry Road just south of

DeRidder, Louisiana. At that location, Defendant used cocaine and Ms. Stephens

ingested pills. Thereafter, Ms. Stephens attempted to perform oral sex on

Defendant; however, Defendant could not maintain an erection. Later, while she

was on her cell phone, Ms. Stephens threw something at Defendant, and Defendant

subsequently beat and stabbed her. Ms. Stephens’ body was found on Wednesday,

August 26, 2009. She died as the result of blunt force injuries to the head and stab

wounds to the neck. Defendant admitted being with Ms. Stephens and beating her.

At trial, there was also corroborating cell phone verification and DNA evidence.

Defendant was later arrested and was charged in an indictment with second

degree murder. He entered a plea of not guilty. Trial by jury commenced on

February 13, 2012; however, a mistrial was declared.

In Defendant’s second trial, the jury returned a verdict of guilty to the

responsive verdict of manslaughter. Defendant was sentenced to serve thirty-eight

years at hard labor with seven years suspended. He was placed on supervised

probation for five years, the first four of which were to be served on home

incarceration.

Defendant filed a motion to reconsider sentence and also a motion for

appeal. Defendant’s motion to reconsider sentence was denied; his appeal was

granted. Defendant is before this court asserting an excessive sentence as his lone

assignment of error.

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 no

actionable errors patent.1

ASSIGNMENT OF ERROR

In his only assignment of error, Defendant contends that the thirty-eight-year

sentence imposed by the trial court is not supported by the record and is

unconstitutionally excessive for a first offender.

DISCUSSION

Even though a penalty falls within the statutory sentencing
range, it may still be unconstitutionally excessive:

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. While a comparison of sentences
imposed for similar crimes may provide some insight, “it
is well settled that sentences must be individualized to

1
The trial court sentenced Defendant to serve thirty-eight years at hard labor, suspended
seven of those years, and placed him on five years supervised probation. Louisiana Revised
Statutes 14:31(B) provides that a person convicted of manslaughter “shall be imprisoned at hard
labor for not more than forty years.” It does not set forth any prohibition against parole,
probation, or suspension of sentence; however, La.Code Crim.P. art. 893 prohibits the court from
suspending the sentence, in whole or in part, and placing on probation persons convicted of
certain crimes of violence, including manslaughter. See La.R.S. 14:2(B)(4). Thus, the partially
suspended sentence imposed on Defendant is illegally lenient. Because the issue of an illegally
lenient sentence was not raised as an error, it is not before this court and will not be addressed.
State v. Celestine, 11-1403 (La.App. 3 Cir. 5/30/12), 91 So.3d 573.

2

the particular offender and to the particular offense
committed.” 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. 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 (citations
omitted). “[T]he trial judge need not articulate every aggravating and
mitigating circumstance outlined in art. 894.1[;] the record must
reflect that he adequately considered these guidelines in
particularizing the sentence to the defendant.” State v. Smith, 433
So.2d 688, 698 (La.1983). . . . “The appellate court shall not set aside
a sentence for excessiveness if the record supports the sentence
imposed.” La.Code Crim.P. art. 881.4(D).

State v. Tall, 12-280, pp. 7-8 (La.App. 3 Cir. 10/24/12), 100 So.3d 388, 394-95

(alterations in original).

Defendant was convicted of manslaughter, which is punishable by

imprisonment at hard labor for not more than forty years, and was sentenced to

serve thirty-eight years with seven years suspended. Before imposing sentence, the

trial court noted it had reviewed the entire record, including testimony from the

sentencing hearing and letters submitted subsequent thereto, the victim impact

statements, and the factors set forth in La.Code Crim.P. art. 894.1, and stated:

I do recognize that Mr. Weldon received a benefit by the verdict in
this matter. Mr. Weldon was facing and very well could have been
convicted of second-degree murder, which would have carried with it
a mandatory life sentence without any possibility of probation, parole,
or suspension of sentence. But the verdict reached of manslaughter,
in effect, capped the punishment at 40 years as opposed to life; and it
becomes my decision, then, to decide what, between zero and 40
years, is just in this matter.

I don’t know why the jury reached the verdict that they did,
whether they felt that the evidence was not sufficient for second-
degree murder or whether they felt that the drug-induced state
precluded you from forming the specific intent, which is a necessary
element of second-degree murder, or whether it was just some
compromise verdict among jurors trying to reach a decision in this
matter. That is not my job. But I must respect their verdict.

....

3

The Court finds that the following aggravating factors of
Article 894.1 of the Code of Criminal Procedure are applicable in this
matter. These are found in paragraph B.

Number one, the offender’s conduct during the commission of
the offense manifested deliberate cruelty to the victim. This was an
extremely violent death, where a lady’s head was beaten with
apparently a crescent wrench and her throat cut or stabbed.

Number five, the offender knowingly created a risk of death or
great bodily harm to more than one person. It is unfathomable and
unconscionable to me that you committed this act while in the
presence of your infant child and exposed your child to such a violent
rampage, where the life of the child could have been endangered.

Number six, the offender used threats of or actual violence in
the commission of the offense. Number nine, the offense resulted in a
significant permanent injury or significant economic loss to the victim
or her family. And, number ten, the offender used a dangerous
weapon in the commission of the offense. Number 19, the offender
used a firearm or other dangerous weapon while committing or
attempting to commit an offense which has as an element the use,
attempted use, or threatened use of physical force against the person
or property of another and which, by its very nature, involves a
substantial risk that physical force may be used in the course of
committing the offense. And 21, any other relevant aggravating
circumstances.

The Court must take into account the fact that you have taken
no responsibility for your actions in this matter. I understand that a
defendant has the right to maintain their [sic] innocence even after
conviction and through appeal, and I respect that; but[,] I cannot
consider that as a mitigating factor and actually consider it as an
aggravating factor once the jury has reached their decision.

The Court finds the following mitigating factors are applicable
in this case. Number 28, the defendant has no history of prior
delinquency or criminal activity or has led a law-abiding life for a
substantial period of time before the commission of the instant crime.
Number 33, any other relevant mitigating circumstances.

And this is a troubling factor for the Court, because it could just
as easily be considered an aggravating factor as a mitigating factor;
and that is that the offense was committed while under the influence
of drugs and/or alcohol. Certainly, that was a willful and voluntary
decision on your part. But at the same time, I do not believe that you
have a history of being a violent person; although, there was
testimony of prior outbursts with former spouses, but nothing
anywhere near the situation that occurred in this case.

4

I do not believe that you turned down Granberry Road with the
intent of committing murder. Nevertheless, that is what occurred in
this situation; and so that mitigating factor is balanced by the fact that
it was a voluntary act on your part to consume those drugs.

The law provides that whoever commits manslaughter shall be
imprisoned at hard labor for not more than 40 years. I believe that
although a 40-year sentence would be justified and probably upheld
by the courts as not being excessive in this matter, to me it would not
be justice to impose the maximum penalty in this matter without
taking into consideration all of the aggravating and mitigating factors.
But a substantially lenient sentence would totally deprecate the value
of Ms. Stephens’ life. And regardless of what sentence I impose upon
you, you will have a life to live. And whatever age you are when you
are released from incarceration, you will have family and friends and
a life to reconstruct and live. Ms. Stephens will never have that
possibility.

I am going to suspend some of the sentence to allow you to
safely reintegrate into society at some point.

In brief to this court, Defendant asserts the trial court’s suggestion that his

son was at risk of being harmed is not supported by the record and should not have

been considered as an aggravating factor. Defendant also asserts the trial court

should not have considered his failure to take responsibility for the crime as an

aggravating factor. Defendant further asserts the trial court may have had some

reservation about the verdict returned by the jury, and that reservation may have

been an “unstated factor” in determining his sentence.

In his motion to reconsider sentence, Defendant alleged the sentence

imposed was grossly out of proportion to the crime committed and asked the trial

court to sentence him to a lesser sentence. He did not allege that the trial court

improperly considered certain factors at the time he was sentenced. Thus, that

portion of Defendant’s claim is not properly before this court for review. La.Code

Crim.P. art. 881.1; State v. King, 10-1215 (La.App. 3 Cir. 4/6/11), 61 So.3d 810.

We will, however, review Defendant’s sentence for excessiveness.

5

In his brief to this court, Defendant discusses several cases wherein

defendants were convicted of manslaughter and sentenced to serve maximum

sentences and asserts that the facts of the cited cases are more egregious than those

in the case at bar. In his brief, Defendant sets forth the following:

In State v. Bailey, 07-130 (La.App. 3 Cir. 10/3/07), 968 So.2d
247, this Court upheld a 40-year maximum sentence when the
defendant and his accomplice armed themselves with firearms before
entering the sleeping victim’s residence, chased the victim from the
house and then shot the victim seventeen times when he returned.

In State v. Russell, 42-479 (La.App. 2 Cir. 9/26/07), 966 So.2d
154, writ denied, 07-2069 (La. 3/7/08), 977 So.2d 897, the second
circuit upheld a 40 year maximum sentence where a defendant shot
his father twice in the head after an argument and then buried the
body, burned his father’s personal affects and then lied about his
father’s whereabouts. In State v. Key, 46,119 (La.App. 2 Cir.
03/02/11), 58 So.3d 578, writ denied, 11-594 (La. 10/7/11), 71 So.3d
310, the court of appeal upheld a 40 year maximum sentence when
Defendant pled guilty to manslaughter after she beat an elderly man to
death with a lamp and then robbed him of his money, credit card and
vehicle[.] In State v. Jones, 41,628 (La.App. 2 Cir. 1/24/07), 948
So.2d 356, the second circuit upheld a 40-year maximum sentence
when the defendant entered the victim’s apartment with a handgun
and shot the victim in the head. In State v. Hall, 36,335 (La.App. 2
Cir. 9/18/02), 828 So.2d 120, the second circuit also upheld a 40-year
maximum sentence for a manslaughter committed when the defendant
stabbed the victim from behind with extreme force.

In State v. Jones, 01-630 (La.App. 4 Cir. 3/20/02), 814 So.2d
623, writ denied, [02-1111] (La. 11/15/02), 829 So.2d 424, the fourth
circuit upheld a 40-year maximum sentence for manslaughter and a
20-year maximum for attempted manslaughter when the defendant
fired multiple shots at two unarmed men, shooting both men in the
back and shooting one man when he was fleeing. In State v. Points,
00-1371 (La.App. 4 Cir. 4/11/01), 787 So.2d 396, writ denied,
01-1410 (La. 4/12/02), 812 So.2d 665, a maximum 40-year sentence
was upheld for a manslaughter committed when the defendant shot his
pregnant wife in front of her four children.[2] In State v. Williams,
99-2355 (La.App. 4 Cir. 12/13/00), 776 So.2d 604, writ denied,
01-1829 (La. 4/12/02), 812 So.2d 667, the fourth circuit upheld a
maximum 40-year sentence for a manslaughter committed when the
defendant armed himself with an AK 47 semi-automatic assault
weapon, kicked in the front door, and fired nineteen bullets,
endangering the terrified occupants, including a seven month old
infant and the victim’s invalid mother as well as neighbors.

2
We note that the defendant shot his pregnant mother-in-law, not his wife.
6

Defendant then discusses cases in which the maximum sentence was not

imposed for convictions of manslaughter and asserts that the offenders in those

cases actively and physically participated in the killing of their victims and

received lesser sentences than he did. In his brief, Defendant sets forth the

following:

In State v. Cotton, 10-409 (La.App. 5 Cir. 5/31/11), 67 So.3d
673, the fifth circuit upheld a 10-year sentence for a manslaughter
committed by a first time felony offender who stabbed the victim in
the throat and left him to drown in his own blood. In State v.
Hamilton, 39,168 (La.App. 2 Cir. 10/27/04), 886 So.2d 638, the
second circuit upheld a 12 1/2 year sentence for a manslaughter
committed when the defendant shot the unarmed victim twice - once
in the head and once in the chest - during a struggle. In State v.
Henderson, 40,257 (La.App. 2 Cir. 10/26/05), 914 So.2d 106, the
second circuit upheld a 16-year sentence for manslaughter when the
defendant, a first time felony offender, stabbed the victim in the chest
during a fight.

In State v. Thomas, 08-113 (La.App. 5 Cir. 6/19/08), 988 So.2d
750, the fifth circuit upheld a 23-year sentence for a manslaughter
when the defendant severely beat the victim with a baseball bat. In
State v. Batiste, 07-482 (La.App. 3 Cir. 10/31/07), 969 So.2d 704, this
Court upheld a 20 year sentence for a manslaughter committed when
the defendant, a first time felony offender, hit the victim in the head
with a stick. In State v. Couvillion, 05-5 (La.App. 5 Cir. 07/26/05),
910 So.2d 991, the fifth circuit upheld a 25 year sentence for
manslaughter when the defendant aided in the death of the victim by
punching the victim while a co-defendant drug the victim with a belt
around the victim’[s] neck. In State v. Wright, 10-577 (La.App. 5 Cir.
2/15/11), 61 So.3d 88, [writ denied, 11-560 (La. 9/30/11), 71 So.3d
283,] the court upheld a 25 year sentence for manslaughter when the
defendant aided in the manslaughter by being present during the
planning of the armed robbery of the victim, provided the gun that
was used to kill the victim, helped set up the armed robbery and was
present at the scene in the event his co-defendants needed help.

Defendant contends that his actions pale in comparison to cases where the

maximum sentence was imposed. He argues that considering the circumstances

surrounding the crime, drug abuse and rage, and his status as a first offender, his

sentence is excessive. He requests that his sentence be vacated and that this court

7

remand the matter to the trial court for imposition of a sentence of twenty years or

less.

In support of its argument that Defendant’s sentence is not excessive, the

State cites State v. Johnson, 38,415 (La.App. 2 Cir. 7/14/04), 878 So.2d 869, writ

denied, 05-589 (La. 1/13/06), 920 So.2d 222. In Johnson, the defendant was

convicted of manslaughter and sentenced to serve forty years at hard labor for

dragging his former girlfriend from her home and shooting her in the side and the

head.

The State also calls this court’s attention to State v. Bailey, 07-130 (La.App.

3 Cir. 10/3/07), 968 So.2d 247, and the cases this court cited therein. In Bailey,

968 So.2d at 254 (quoting State v. Jones, 05-735, p. 9 (La.App. 5 Cir. 2/27/06),

924 So.2d 1113, 1118, writ denied, 07-151 (La. 10/26/07), 966 So.2d 567)

(alteration in original), this court set forth the following pertinent case:

In State v. Lanieu, [98-1260 (La.App. 1 Cir.
4/1/99), 734 So.2d 89, writ denied, 99-1259 (La.10/8/99),
750 So.2d 962,] the defendant was charged with second
degree murder and convicted of manslaughter. The
defendant was sentenced to forty years at hard labor. In
Lanieu, the defendant shot the victim in the head twice
after an argument wherein the men cursed at each other
in front of the defendant’s home. After the shooting, the
defendant drove off in the victim’s car and dumped the
victim’s body in a field. The defendant claimed that
prior to the shooting he saw the victim reach down in the
car and saw the handle of what appeared to be a gun;
however, two witnesses provided that they did not see the
victim with a gun on that day. At sentencing, the trial
court noted that the defendant was a nineteen-year-old
first felony offender with no adult criminal history. The
PSI noted that the defendant had been arrested for
attempted second degree murder, but that the grand jury
pretermitted the case. The First Circuit concluded that
the sentence imposed was not grossly disproportionate to
the severity of the crime.

Based on the heinous nature of the offense, the circumstances of Defendant,

the legislative purpose behind the punishment, and a comparison of the maximum

8

sentences imposed in Key, 58 So.3d 578, and Hall, 828 So.2d 120, we find that the

trial court did not abuse its discretion in imposing a sentence of thirty-eight years

at hard labor, with seven years suspended, in the case at bar. Defendant’s

assignment of error lacks merit.

DISPOSITION

Defendant’s sentence is affirmed.

AFFIRMED.

9