State of Louisiana v. Jimmy L. Bartie

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

14-51

STATE OF LOUISIANA

VERSUS

JIMMY L. BARTIE

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 22315-08
HONORABLE CLAYTON DAVIS, DISTRICT JUDGE

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JOHN D. SAUNDERS
JUDGE

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Court composed of John D. Saunders, James T. Genovese, and John E. Conery,
Judges.

AFFIRMED.

John Foster DeRosier
District Attorney, Fourteenth Judicial District
Karen C. McLellan
Assistant District Attorney
P. O. Box 3206
Lake Charles, LA 70602-3206
(337) 437-3400
COUNSEL FOR APPELLEE:
State of Louisiana

Peggy J. Sullivan
Louisiana Appellate Project
P. O. Box 2806
Monroe, LA 71207-2806
(318) 855-6038
COUNSEL FOR DEFENDANT/APPELLANT:
Jimmy L. Bartie

SAUNDERS, Judge.

This case returns to this court after a remand for resentencing. The prior

opinion related the background of the case:

On November 13, 2008, the defendant was indicted by a grand
jury as follows:

Count 1: Armed robbery with a firearm, in violation of
La.R.S. 14:64.3;

Count 2: Carjacking, in violation of La.R.S. 14:64.2;

Count 3: Aggravated kidnapping, in violation of La.R.S.
14:44;

Count 4: Armed robbery with a firearm, in violation of
La.R.S. 14:64.3;

Count 5: Attempted first degree murder, in violation of
La.R.S. 14:27 and 14:30;

Count 6: Armed robbery with a firearm, in violation of
La.R.S. 14:64.3;

Count 7: Attempted aggravated kidnapping, in violation
of La.R.S. 14:27 and 14:44; and

Count 8: Carjacking, in violation of La.R.S. 14:64.2.

Following a jury trial, the defendant was found guilty as
charged in Counts 1, 2, 3, 4, 5, 6, and 8 on September 8, 2011.

On November 2, 2011, the defendant was sentenced as follows:
aggravated kidnapping--life imprisonment; attempted first degree
murder--fifty years “without benefit”; two counts of carjacking--
twenty years “without benefit” on each count, to run concurrently
with each other and all other sentences; and three counts of armed
robbery--fifty years “without benefit,” on each count, to run
consecutively to each other and all other sentences. The defendant did
not object to his sentences or file a motion to reconsider his sentences.

The defendant is now before this court on appeal, arguing that
the evidence adduced at trial was insufficient to support his
convictions. The defendant also contends that his sentences of life
imprisonment plus a consecutive 150 years is excessive under the
facts and circumstance of the case.

State v. Bartie, 12-673, pp. 1-2 (La.App. 3 Cir. 12/5/12), 104 So.3d 735, 737, writ

denied, 13-39 (La. 8/30/13), 120 So.3d 256.

This court vacated Defendant‟s conviction and sentence for aggravated

kidnapping, found him guilty of the lesser-included offense of second degree

kidnapping, and remanded for resentencing. The court also vacated the sentences

for armed robbery with a firearm and remanded for resentencing. The other

convictions and sentences were affirmed. This court also remanded for disposition

for a count of the indictment, attempted aggravated kidnapping, for which no

verdict was returned. Id. at 738-39, 751.

On May 29, 2013, the trial court held the required hearing and amended the

fifty-year sentence on each of the armed robbery counts to run concurrently with

each other but consecutively to the attempted first degree murder sentence. The

five-year enhancement for use of a firearm was applied to each armed robbery

count. For the second degree kidnapping conviction, the trial court imposed a

sentence of forty years at hard labor concurrent to all other charges except

attempted first degree murder. In addition, the State dismissed the count of

attempted aggravated kidnapping that lacked a verdict. The carjacking counts are

concurrent with each other but consecutive to attempted first degree murder. Thus,

Defendant must serve a total of one-hundred and five years.

Defendant now returns to this court for review of his sentences.

FACTS:

The underlying facts of this case were succinctly recounted in the previous

appeal:

On the evening of October 27, 2008, and early morning of
October 28, 2008, the defendant and an accomplice committed a
string of violent crimes. The first victim was kidnapped at gunpoint
and forced to drive the defendant and his accomplice around town in
his own vehicle. He was later forced into the trunk where he rode
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around town until he was able to free himself and escape. Soon
thereafter, the second victim was robbed at gunpoint of his wallet.
Next, the third victim was driving down the road when she was struck
from behind by the defendant and his accomplice who were in the
vehicle belonging to the first victim. When she stopped to assess for
damage to her vehicle, the defendant and his accomplice held her at
gunpoint. They attempted to force the victim into the trunk but fled
the scene to avoid detection by an oncoming car, taking the victim‟s
vehicle and the vehicle belonging to the first victim. The fourth and
last victim was also struck from behind by the defendant and his
accomplice who were driving the vehicle belonging to the third
victim. The victim was also held at gunpoint. When he was
instructed to get in the truck, he attempted to escape and was shot in
the back.

Id. at 737.

ERRORS PATENT:

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed by

this court for errors patent on the face of the record. After reviewing the record,

we find two errors patent.

First, the trial court imposed an illegally lenient sentence for the conviction

of second degree kidnapping. Louisiana Revised Statutes 14:44.1 requires

imposition of a hard labor sentence of not less than five nor more than forty years

with at least two years of the sentence being served without benefit of parole,

probation, or suspension of sentence. The trial court failed to impose a portion of

the sentence without benefit of parole, probation, or suspension of sentence. This

rendered Defendant‟s sentence illegally lenient.

In State v. Jacobs, 08-1068, p. 2 (La.App. 3 Cir. 3/4/09), 6 So.3d 315, 317

writ denied, 09-755 (La. 12/18/09), 23 So.3d 931, this court, after recognizing the

trial court‟s failure to impose a mandatory fine as error patent, stated, “this court

will not recognize an illegally lenient sentence claim unless it is a raised error.”

Here, the illegally lenient sentence was not raised as error. Therefore, we will not

recognize the error.

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Second, there is an error patent regarding the advisement of La.Code

Crim.P. art. 930.8. Article 930.8 provides, in pertinent part:

No application for post-conviction relief, including applications
which seek an out-of-time appeal, shall be considered if it is filed
more than two years after the judgment of conviction and sentence has
become final under the provisions of Article 914 or 922[.]

Louisiana Code Criminal Procedure Article 914 provides:

A. A motion for an appeal may be made orally in open court or
by filing a written motion with the clerk. The motion shall be entered
in the minutes of the court.

B. The motion for an appeal must be made no later than:

(1) Thirty days after the rendition of the judgment or ruling
from which the appeal is taken.

(2) Thirty days from the ruling on a motion to reconsider
sentence filed pursuant to Article 881.1, should such a motion be
filed.

At sentencing, the trial court correctly advised Defendant, “[Y]ou have two

years from when this judgment of conviction and sentence becomes [sic] final to

file post-conviction.” However, when Defendant asked, “[t]hat would start today

here, huh?” The trial court incorrectly responded, “[Y]es.”

Accordingly, we direct the trial court to inform Defendant of the provisions

of La.Code Crim.P. art. 930.8 by sending appropriate written notice to Defendant

within thirty days of the rendition of this opinion. Further, we direct that written

proof be filed in the record that Defendant received the notice. State v. Roe, 05-

116 (La.App. 3 Cir. 6/1/05), 903 So.2d 1265, writ denied, 05-1762 (La. 2/10/06),

924 So.2d 163.

ASSIGNMENTS OF ERROR:

Defendant assigns two errors, but combines them in brief. In his first

assignment of error, he argues that the combined sentences, totaling one hundred

and five years, are excessive. In his second assignment of error, he argues the trial
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court failed to state sufficient reasons to support the sentence. We find merit in

neither assigned error.

Louisiana Code of Criminal Procedure Article 881.1 states:

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.

At the time the Defendant‟s sentences were imposed, defense counsel did

not object to the sentences, and no motion to reconsider sentence was subsequently

filed. In State v. Bamburg, 00-675 (La.App. 3 Cir. 11/2/00), 772 So.2d 356, the

defendant failed to object to the sentence imposed at the sentencing hearing and

did not timely file a motion to reconsider sentence; thus, this court found his claim

of excessiveness of sentence was barred. See also State v. Fletcher, 00-968

(La.App. 3 Cir. 12/6/00), 776 So.2d 1240, writ denied, 01-342 (La. 12/14/01), 803

So.2d 986; State v. Charles, 00-1611 (La.App. 3 Cir. 5/9/01), 787 So.2d 516, writ

denied, 01-1554 (La. 4/19/02), 813 So.2d 420; State v. Williams, 01-998 (La.App.

3 Cir. 2/6/02), 815 So.2d 908, writ denied, 02-578 (La. 1/31/03), 836 So.2d 59;

State v. Algere, 09-85 (La.App. 3 Cir. 6/3/09) (unpublished opinion); State v.

Robinson, 09-735 (La.App. 3 Cir. 12/9/09) (unpublished opinion); State v.

Stapleton, 09-891 (La.App. 3 Cir. 2/3/10) (unpublished opinion); State v. Gresham,

10-474 (La.App. 3 Cir. 11/3/10) (unpublished opinion), writ denied, 10-2699 (La.

4/25/11), 62 So.3d 90. Based on these cases, this court reasonably could find that

Defendant waived his right to seek review of his sentences.

However, this court has reviewed claims of excessiveness where no

objection was made and no motion to reconsider sentence filed. See State v. Davis,

06-922 (La.App. 3 Cir. 12/29/06), 947 So.2d 201; State v. H.J.L., 08-823 (La.App.

3 Cir. 12/10/08), 999 So.2d 338, writ denied, 09-606 (La. 12/18/09), 23 So.3d 936;
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State v. Thomas, 08-1358 (La.App. 3 Cir. 5/6/09), 18 So.3d 127; State v. Perry, 08-

1304 (La.App. 3 Cir. 5/6/09), 9 So.3d 342, writ denied, 09-1955 (La. 6/25/10), 38

So.3d 352; State v. Johnlouis, 09-235 (La.App. 3 Cir. 11/4/09), 22 So.3d 1150,

writ denied, 10-97 (La. 6/25/10), 38 So.3d 336, cert. denied, __ U.S. __, 131 S.Ct.

932 (2011); State v. Dial, 09-446 (La.App. 3 Cir. 12/9/09) (unpublished opinion);

State v. Quinn, 09-1382 (La.App. 3 Cir. 5/12/10), 38 So.3d 1102, writ denied, 10-

1355 (La. 1/7/11), 52 So.3d 885; State v. J.S., 10-391 (La.App. 3 Cir. 11/3/10)

(unpublished opinion); State v. Bergeron, 12-71 (La.App. 3 Cir. 10/3/12), 99 So.3d

90, writ denied, 12-2388 (La. 4/26/13), 112 So.3d 837; State v. Barnes, 12-667

(La.App. 3 Cir. 12/5/12), 103 So.3d 1254; State v. Mouton, 12-836 (La.App. 3 Cir.

2/27/13), 129 So.3d 49; State v. Acker, 12-1116 (La.App. 3 Cir. 4/3/13), 111 So.3d

535; State v. Arceneaux, 12-1047 (La.App. 3 Cir. 4/3/13), 111 So.3d 1177.

In an attempt to finalize this case that has already been to various levels of

our legal system, we choose to review Defendant‟s claim as a bare claim of

excessiveness.

The standard test for excessiveness claims is established:

The Eighth Amendment to the United States Constitution and
La. Const. art. I, § 20 prohibit the imposition of cruel or excessive
punishment. “ „[T]he excessiveness of a sentence becomes a question
of law reviewable under the appellate jurisdiction of this court.‟ ”
State v. Dorthey, 623 So.2d 1276, 1280 (La.1993) (quoting State v.
Sepulvado, 367 So.2d 762, 764 (La.1979)). Still, the trial court is
given wide discretion in imposing a sentence, and, absent a manifest
abuse of that discretion, we will not deem as excessive a sentence
imposed within statutory limits. State v. Pyke, 95-919 (La.App. 3 Cir.
3/6/96), 670 So.2d 713. However, “[m]aximum sentences are
reserved for the most serious violations and the worst offenders.”
State v. Farhood, 02-490, p. 11 (La.App. 5 Cir. 3/25/03), 844 So.2d
217, 225. The only relevant question for us to consider on review is
not whether another sentence would be more appropriate, but whether
the trial court abused its broad discretion in sentencing a defendant.
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).

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The fifth circuit, in [State v.] Lisotta, [98-646 (La.App. 5 Cir.
12/16/98),] 726 So.2d [57] at 58, stated that the reviewing court
should consider three factors in reviewing the trial court's sentencing
discretion:

1. The nature of the crime,

2. The nature and background of the offender, and

3. The sentence imposed for similar crimes by the same court
and other courts.

State v. Whatley, 03-1275, pp. 5-6 (La.App. 3 Cir. 3/3/04), 867 So.2d 955, 958-59.

The trial court did not provide any explicit reasoning at the resentencing

hearing. It did not give extensive reasons at the original sentencing either, but, in

the first appeal, this court observed:

The sentencing range for attempted first degree murder is ten to
fifty years at hard labor, without benefit of parole, probation, or
suspension of sentence. Thus, the defendant received the maximum
possible sentence. La.R.S. 14:30 and 14:27. The sentencing range for
carjacking is two to twenty years, without benefit of parole, probation,
or suspension of sentence. La.R.S. 14:64.2. Again, the defendant
received the maximum possible sentences for his two carjacking
convictions. Although the defendant received maximum sentences for
attempted first degree murder and carjacking, his sentences for these
crimes were ordered to run concurrently with his life sentence for
aggravated kidnapping, which has now been vacated.

At sentencing, victim Shakespeare addressed the court as
follows:

MR. SHAKESPEARE:

It‟s been a long road, you know, it‟s been three
years now, it‟s a good day that this day has finally came,
but I don‟t know, I just think that he should get what he
gave to me and everybody else, hard time, trouble. Even
though it‟s been three years from this, almost three years
and two days three days, you know, I go through
everything--I mean, I have problems every day, I mean,
from walking, running, playing with my kids, and it‟s
just hard, but, you know, I‟m just happy to be here and
get this over with and I trust that the justice system will
do the right thing. That‟s all I have to say. Thank you.

THE COURT:

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Well, you‟ve got a great attitude for someone who
has gone through hell, and I appreciate you[r] testifying
and speaking today.

MR. SHAKESPEARE:

Thank you.

THE COURT:

Thank you, sir.

The state subsequently stressed that the defendant was found
guilty as charged by a jury of his peers and urged the trial court to
impose the maximum sentences. The State addressed the defendant‟s
criminal history, including simple robbery and several other arrests,
and emphasized he had wreaked havoc on several individuals for no
reason. Lastly, the state maintained the defendant showed no respect
for human life, shooting one of the victims and leaving him for dead.
Defense counsel, on the other hand, contended that the defendant had
some degree of remorse with regard to “some of the instances.”
Given the opportunity, however, the defendant chose not to speak on
his behalf at sentencing. Defense counsel stated that the defendant
had no reason to say anything at sentencing.

Considering the serious nature and violence used in the
commission of the offenses, the trial court in its discretion could have
reasonably imposed consecutive sentences for one or more of these
offenses even though they constituted parts of a common scheme or
plan. “Although Louisiana law favors concurrent sentences for crimes
committed as part of a single transaction, La.C.Cr.P. art. 883; State v.
Underwood, 353 So.2d 1013, 1019 (La.1977), a trial judge retains
discretion to impose consecutive penalties on the basis of other
factors, including the offender‟s past criminality, violence in the
charged crimes, or the risk he or she poses to the general safety of the
community. State v. Williams, 445 So.2d 1171, 1182 (La.1984); State
v. Jacobs, 371 So.2d 727, 732-33 (La.1979) (on reh‟g).” State v.
Thomas, 98-1144, p. 1 (La.10/9/98), 719 So.2d 49, 49. Additionally,
with regard to the maximum sentences imposed on the defendant, the
courts agree that maximum sentences are typically reserved for the
most serious offenses and the most egregious offenders. See State v.
Baker, 08-54 (La.App. 3 Cir. 5/7/08), 986 So.2d 682. Accordingly,
we find the defendant‟s concurrent sentences for attempted first
degree murder and carjacking are not excessive.

Bartie, 104 So.3d at 749-50.

Similar reasoning applies here. Defendant‟s forty-year sentence for second

degree kidnapping is the maximum available pursuant to La.R.S. 14:44.1. The

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facts of this case, recited earlier, show that Defendant is the worst kind of offender

for this serious offense. The kidnapping at issue was part of a violent crime spree

that can fairly be described as egregious. Thus, the maximum term was not

excessive.

Regarding armed robbery with a firearm sentences, the trial court merely

added to each of them the five-year term mandated by La.R.S. 14:64.3. The court

also amended these sentences to be concurrent with each other and all other

charges except for attempted first degree murder. Again, we find the facts of the

case and the reasoning applied in the prior appeal demonstrate that Defendant was

an egregious offender and, thus, properly subject to the maximum sentences

available.

Defendant complains that the court did not elaborate any reasons at either

sentencing proceeding. We find this complaint meritless, as this court found

sufficient facts in the record to conduct a review in the prior appeal, and we find

that the current record contains enough facts to support the sentences.

Next, Defendant contends that his one-hundred-and-five-year sentence is

effectively a life term. Considering the number of violent offenses involved in

light of the reasoning this court applied in the prior opinion, the total term is not

excessive. Further, as this court pointed out the total term could have been longer,

as more of the sentences could have been made consecutive.

Defendant implies that that the many offenses he committed during his

crime spree constituted a single course of conduct and, thus, should have drawn

concurrent sentences. He cites La.Code Crim.P. art. 883, which states:

If the defendant is convicted of two or more offenses based on
the same act or transaction, or constituting parts of a common scheme
or plan, the terms of imprisonment shall be served concurrently unless
the court expressly directs that some or all be served consecutively.
Other sentences of imprisonment shall be served consecutively unless
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the court expressly directs that some or all of them be served
concurrently. In the case of the concurrent sentence, the judge shall
specify, and the court minutes shall reflect, the date from which the
sentences are to run concurrently.

Thereafter, Defendant acknowledges jurisprudence holding that concurrent

sentences are not mandatory even when they arise from a single course of conduct.

Defendant argues, notwithstanding that jurisprudence, because the trial court did

not state the factors considered when rendering consecutive sentence, his sentence

is in error.

Defendant did not raise this issue in his motion to reconsider and, thus,

failed to preserve it. Regardless, such a lack of reasons does not require remand

when the record supports consecutive sentences. State v. Hampton, 38,017

(La.App. 2 Cir. 1/28/04), 865 So.2d 284, writ denied, 04-834 (La. 3/11/05), 896

So.2d 57, writ denied, 04-2380 (La. 6/3/05), 903 So.2d 452. The amended

sentencing scheme has significantly shortened the total term that Defendant must

serve, although there may be no practical difference.

For the reasons discussed, Defendant‟s sentences are affirmed.

DECREE:

Defendant‟s sentences are affirmed. However, this court directs the trial

court to inform Defendant of the provisions of La.Code Crim.P. art. 930.8 by

sending appropriate written notice to Defendant within thirty days of the rendition

of this opinion and filing written proof in the record that Defendant received the

notice.

AFFIRMED.

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

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