State of Louisiana v. Davis Dwayne Freeman

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

13-1009

STATE OF LOUISIANA

VERSUS

DAVIS DWAYNE FREEMAN

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APPEAL FROM THE
THIRTY-FIRST JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON DAVIS, NO. CR-185-13
HONORABLE C. STEVE GUNNELL, DISTRICT JUDGE

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PHYLLIS M. KEATY
JUDGE

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Court composed of J. David Painter, Phyllis M. Keaty, and John E. Conery, Judges.

AFFIRMED.

Kevin D. Millican
Assistant District Attorney
Post Office Box 1388
Jennings, Louisiana 70546
(337) 824-1893
Counsel for Appellee:
State of Louisiana

Brent A. Hawkins
Louisiana Appellate Project
Post Office Box 3752
Lake Charles, Louisiana 70602
(337) 502-5146
Counsel for Defendant/Appellant:
Davis Dwayne Freeman

KEATY, Judge.

Defendant, Davis Dwayne Freeman, appeals his sentence as excessive. For

the following reasons, we affirm.

PROCEDURAL BACKGROUND

Defendant, along with two co-defendants, Robert Simpson and Anthony

Jones, broke into a house and stole various items, including guns, a computer, a

TV, a wallet, and a generator. Thereafter, Defendant was charged with simple

burglary, a violation of La.R.S. 14:62. Defendant entered a plea of not guilty.

Following a jury trial, Defendant was found guilty as charged. Defendant was

sentenced to serve ten years at hard labor with credit for time served. A motion to

reconsider sentence was filed and denied. A motion for appeal was filed and was

subsequently granted.

On appeal, Defendant asserts that the trial court failed to adequately consider

mitigating factors when imposing his sentence and that his ten-year sentence is

excessive.

DISCUSSION

I. 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, there are no

errors patent.

II. First Assignment of Error

In his first assignment of error, Defendant contends his sentence is excessive

because the trial court failed to adequately consider mitigating factors when

imposing a sentence of ten years at hard labor.

Uniform Rules—Courts of Appeal, Rule 1–3 provides:

The scope of review in all cases within the appellate and
supervisory jurisdiction of the Courts of Appeal shall be as provided
by LSA-Const. Art. 5, § 10(B), and as otherwise provided by law.
The Courts of Appeal will review only issues which were submitted to
the trial court and which are contained in specifications or
assignments of error, unless the interest of justice clearly requires
otherwise.

Louisiana Code of Criminal Procedure Article 881.1(E) further provides:

Failure to make or file a motion to reconsider sentence or to
include a specific ground upon which a motion to reconsider sentence
may be based, including a claim of excessiveness, shall preclude the
state or the defendant from raising an objection to the sentence or
from urging any ground not raised in the motion on appeal or review.

In State v. Blue, 09-1111 (La.App. 3 Cir. 11/5/08), 34 So.3d 447, the

defendant alleged that the trial court failed to give sufficient consideration to

mitigating factors in fashioning its sentence. The trial court noted that in the

defendant’s Motion to Reconsider Sentence, he ―merely alleged that his sentence

was excessive.‖ Id. at 451. Therefore, the trial court declined to consider the

defendant’s claim that the trial court failed to sufficiently consider mitigating

factors at sentencing.

In the present case, Defendant merely alleged that his sentence was

excessive in his Motion to Reconsider Sentence. Therefore, this court will not

consider Defendant’s claim that the trial court failed to sufficiently consider

mitigating factors.

III. Second Assignment of Error

In his second assignment of error, Defendant contends the trial court’s

sentence of ten years at hard labor is excessive given the circumstances of the case

and facts pertaining to Defendant. Defendant was found guilty as charged of one

count of simple burglary. Defendant received a sentence of ten years at hard labor.

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The sentencing range for simple burglary is imprisonment with or without hard

labor for not more than twelve years.

The sentencing guidelines under La.Code Crim.P. art. 894.1 aid trial courts

in determining sentences. Louisiana Code of Criminal Procedure Article 894.1(A)

states:

When a defendant has been convicted of a felony or
misdemeanor, the court should impose a sentence of imprisonment if
any of the following occurs:

(1) There is an undue risk that during the period of a suspended
sentence or probation the defendant will commit another crime.

(2) The defendant is in need of correctional treatment or a
custodial environment that can be provided most effectively by his
commitment to an institution.

(3) A lesser sentence will deprecate the seriousness of the
defendant’s crime.

Louisiana Code of Criminal Procedure Article 894.1(C) requires that the

trial court state for the record the considerations taken into account and the factual

basis for the sentence imposed. There is no requirement that the trial court refer to

every aggravating and mitigating factor listed in La.Code Crim.P. art. 894.1(B), as

long as the record indicates that the trial court adequately considered those

guidelines in particularizing the defendant’s sentence. State v. Maze, 09-1298

(La.App. 3 Cir. 5/5/10), 36 So.3d 1072. If the trial court fails to adequately

address the factors listed in La.Code Crim.P. art. 894.1, there is no need for

resentencing as long as an adequate factual basis for the sentence is found in the

record. State v. Williams, 02-707 (La.App. 3 Cir. 3/5/03), 839 So.2d 1095. We

will discuss this further in the excessive sentence analysis.

The law is well settled concerning the standard to be used in reviewing

excessive sentence claims:

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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. 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).

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.

Even when a sentence falls within the statutory sentencing range, it still may

be unconstitutionally excessive. In determining whether a sentence shocks the

sense of justice or makes no meaningful contribution to acceptable penal goals, this

court has suggested that several factors may be considered:

[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
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.

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A sentencing hearing was held in this matter. At the hearing, the trial court

stated on the record that it reviewed the pre-sentence investigation report, went

over the facts of the case, and considered mitigating and aggravating factors. The

mitigating factors were that Defendant was twenty-four years old and did not have

a juvenile criminal history. The trial court noted that Defendant had an adult

criminal history as he had been convicted of multiple counts of simple burglary,

theft, and unauthorized entry of an inhabited dwelling. In 2008, he was sentenced

to six years in the custody of the Department of Corrections. That sentence was

suspended, and he was out on probation when this simple burglary occurred. In

April 2013, Defendant admitted to violating the terms of his probation, and the

original sentence of six years was ordered executed.

In regards to Defendant, the trial court determined:

Your involvement in criminal activity demonstrates to this
Court that you cannot live in society and that this community must be
protected from you. You are certainly in need of correctional
treatment in a custodial environment for a significant period of time.
Anything less would deprecate from the seriousness of the offense,
would not promote - - would not promote respect for the law, and
would not provide a just punishment for the crime for which you stand
convicted. This Court has an obligation to protect the public from you
and will do so by removing you from society.

The trial court prepared written reasons for Defendant’s sentence which reiterated

the aforementioned aggravating and mitigating factors in consideration of his

sentence, including the fact that this was Defendant’s second felony offense.

Defense counsel alleges the following mitigating factors were not considered

by the trial court: Defendant did not cause the victim serious harm or threat of

harm to anyone; Defendant and co-defendants were not armed; Defendant acted

out of strong provocation by co-defendant; and, that there is nothing in the record

to support or suggest that since Defendant had originally been placed on probation,

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he had participated in any other criminal conduct. However, we find that the trial

court properly considered the mitigating factors.

To support the excessive sentence claim, Defendant re-urges the mitigating

factors that he alleges were not considered by the trial court. Defendant contends

his sentence is excessive because he is not one of the most egregious and

blameworthy offenders. Defendant argues that he was not the ringleader, he did

not participate in the planning of the offense, and he was clearly a follower.

In support of how this court should review the sentence, Defendant cites to a

fourth circuit case, State v. Stanfield, 10-854, pp. 3-4 (La.App. 4 Cir. 01/19/11), 56

So.3d 428, 430-31, writ denied, 11-266 (La. 6/3/11), 63 So.3d 1007, in which the

court stated:

In reviewing a claim that a sentence is excessive, an appellate
court generally must determine whether the trial judge has adequately
complied with statutory guidelines in La.Code Crim.P. art. 894.1, and
whether the sentence is warranted under the facts established by the
record. State v. Trepagnier, 97-2427, p. 11 (La.App. 4 Cir. 9/15/99),
744 So.2d 181, 189. If adequate compliance with La.C.Cr.P. art.
894.1 is found, the reviewing court must determine whether the
sentence imposed is too severe in light of the particular defendant and
the circumstances of the case, keeping in mind that maximum
sentences should be reserved for the most egregious violators of the
offense so charged. State v. Bonicard, 98-0665, p. 3 (La.App. 4 Cir.
8/4/99), 752 So.2d 184, 185.

In Stanfield, the fourth circuit affirmed a ten-year sentence by the trial court

following a conviction of simple burglary where the trial court did not state reasons

for the sentence. The fourth circuit found it sufficient that the trial court heard

eyewitness testimony, the defendant was on parole at the time of the offense, and

the State intended to file a multiple offender bill to support the sentence. As we

stated earlier, Smith provides factors which aid an excessive sentence analysis.

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With regard to the nature of the crime, the record indicates that several items

were taken, including multiple guns, a TV, and a generator. ―Although

commission of the offense does not necessarily involve physical injury or even

physical danger to the victim, it constitutes an invasion of an individual’s home—a

place where he or she should be able to feel totally safe from the evils of the

world.‖ State v. Jacobs, 10-292, p. 10 (La.App. 3 Cir. 10/6/10), 48 So.3d 1218,

1225.

Concerning the nature and background of the offender, Defendant

participated in a simple burglary while on probation from an earlier conviction for

the same offense. Among the items taken during the commission of this crime

were several guns. Defendant admitted to violating probation and had begun his

formally suspended sentence when he was sentenced in this case. The trial court

stated its reasons for imposing the sentence at the sentencing hearing and in written

reasons.

In considering sentences in similar cases, reviewing courts have upheld

upper-range sentences for simple burglary for offenders in similar circumstances to

those of Defendant. For example, in Jacobs, this court held that the defendant’s

ten-year sentence for simple burglary of an inhabited dwelling, a violation of

La.R.S. 14:62.2, was not excessive. The trial court noted that the defendant stole

multiple items, used a stolen credit card to make fraudulent purchases, was not

remorseful, and had a marijuana addiction. The court considered the mitigating

factors that the defendant did not have any prior convictions and that the house was

empty when burglarized. In comparing sentences of similar crimes, the trial court

noted that there were many cases wherein reviewing courts upheld sentences in the

upper limits for situations that were similar to the defendant’s situation.

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In State v. Washington, 11-490 (La.App. 3 Cir. 11/2/11), 76 So.3d 1264, this

court found that a ten-year sentence at hard labor for simple burglary of an

inhabited dwelling was not excessive where the defendant acted as the getaway

driver. As the defendant acted as a getaway driver, two co-defendants entered and

burglarized a home. The homeowner testified to being shot at and having

irreplaceable items lost. The trial court noted that the defendant had prior

convictions.

In comparing the sentences imposed by the trial court for similar activity,

Defendant points to the favorable sentence received by co-defendant, Simpson,

after he agreed to testify against him, and argues that his sentence is excessive. We

reject this argument given the general rule that ―the fact that a co-defendant has

received a more lenient sentence does not necessarily indicate that the penalty

imposed on the defendant is excessive.‖ State v. Weary, 03-3067, p. 42 (La.

4/24/06), 931 So.2d 297, 324, cert. denied, 549 U.S. 1062, 127 S.Ct. 682 (2006),

writs granted on other grounds, 07-1152 (La. 3/24/08), 977 So.2d 941, 08-2673

(La. 6/26/09), 12 So.3d 968.

We find that the trial court adequately complied with its statutory

requirements under La.Code Crim.P. art. 894.1. Thus, the record is complete

enough to satisfy the requirements. Further, Defendant’s sentence is not

unconstitutionally excessive. The trial court did not abuse its discretion in

fashioning Defendant’s sentence for simple burglary. Accordingly, Defendant’s

assignment of error lack merit.

DECREE

The trial court’s ruling regarding Defendant’s sentence is affirmed.

AFFIRMED.

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

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