State of Louisiana v. Jonathan Hopkins

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

14-688

STATE OF LOUISIANA

VERSUS

JONATHAN HOPKINS

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APPEAL FROM THE
THIRTIETH JUDICIAL DISTRICT COURT
PARISH OF VERNON, NO. 82827
HONORABLE VERNON BRUCE CLARK, DISTRICT JUDGE

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JOHN E. CONERY
JUDGE

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Court composed of Shannon J. Gremillion, Phyllis M. Keaty, and John E. Conery,
Judges.

AFFIRMED.

Paula C. Marx
Louisiana Appellate Project
Post Office Box 80006
Lafayette, Louisiana 70598-0006
(337) 991-9757
COUNSEL FOR DEFENDANT/APPELLANT:
Jonathan Hopkins

Honorable Asa Allen Skinner
District Attorney
Terry W. Lambright
Assistant District Attorney
30th Judicial District Court
Post Office Box 1188
Leesville, Louisiana 71496-1188
(337) 239-2008
COUNSEL FOR APPELLEE:
State of Louisiana

CONERY, Judge.

On February 9, 2012, a Vernon Parish grand jury indicted Defendant,

Jonathan Hopkins, for second degree murder and conspiracy, violations of La.R.S.

14:30.1 and La.R.S. 14:26. On January 8, 2014, Defendant entered a plea of guilty

to a lesser homicide, manslaughter. The conspiracy charge was dismissed.

On March 11, 2014, the trial court sentenced Defendant to twenty-five years

at hard labor. Defendant now appeals his sentence, assigning two errors. We find

that Defendant’s assignments of error lack merit and affirm his sentence.

FACTS AND PROCEDURAL HISTORY

Defendant entered a guilty plea based upon the following facts:

BY MR. SKINNER [State]:

Your Honor, on or about on the afternoon of December 28th,
2011, at the jail here in Vernon Parish, again, Kelly Lindsey was in
there for having failed to pay child support. Now, this defendant and
Octavius Riggins had got into it with Kelly and Kelly was challenged
by Jonathan over a tray of food or something and they got into a fight.
And, as a result of this defendant and Octavis Riggins hitting and
kicking Kelly Lindsey, he did in fact die that particular day and before
the deputies could get in there to render assistance. In that particular
bull pen there were, I think, approximately fifteen people in there --
maybe a little bit more. Your Honor, the State as part and partial [sic]
of the factual basis would introduce the entire record of these
proceedings also which would include all of the statements from those
that were willing to tell what they saw and from those that did see as
well as the defendant’s statement, as well as the Grand Jury
testimony, Your Honor.

BY MS. NELSON [Defendant]:

And, Your Honor, just so that the record is clear, Mr. Hopkins
did have some dispute with some of the specific facts that Mr. Skinner
just recited. I think he denies that there was any kicking, or that there
was -- the fight was over a food tray. But, bottom line is, we don’t
dispute the fact that there was a fight between him and Mr. Lindsey
and then Mr. Lindsey died as a result of that fight.

BY THE COURT:

And that there’s a factual basis that would exist for this plea . . .

BY MS. NELSON [Defendant]:

. . . that there is sufficient factual basis that exists to substantiate
that plea, yes.

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 that

there are no errors patent.

ASSIGNMENTS OF ERROR

On appeal, Defendant assigns the following errors:

1. The sentencing judge failed to articulate for the record sufficient
reasons to justify the sentence, and further failed to adequately
consider mitigating factors in this case.

2. The sentence is harsh and excessive to the degree that it is cruel
and unusual punishment considering the death in this case was akin to
an accident resulting from a fight in the jail, and Mr. Hopkins had no
intent to kill Kelly Lindsey.

DISCUSSION

Defendant combines both his assignments in a single argument. He argues

the trial court erred by finding that his remorse was the only mitigating

circumstance. Further, he argues that his twenty-five year sentence is excessive.

Defendant also argues that the trial court did not properly consider the sentencing

guidelines set forth in La.Code Crim.P. art. 894.1. However, this claim was not

raised in his motion to reconsider sentence; therefore, it will not be addressed. As

this court has explained:

Louisiana Code of Criminal Procedure Article 881.1(E)
requires a defendant to set forth the specific grounds on which a
motion to reconsider may be based. Failure to include a specific
ground upon which a motion to reconsider sentence may be based

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“shall preclude . . . the defendant from raising an objection to the
sentence or from urging any ground not raised in the motion on appeal
or review.” Id. In the present case, although the defendant generally
raised the issue of excessiveness in his motion to reconsider sentence,
he failed to specifically allege that the trial court failed to consider the
factors of La.Code Crim.P. art. 894.1. Accordingly, because that
claim was not specifically set forth in his motion to reconsider, it
cannot be reviewed in this appeal, State v. Landry, 09-260 (La.App. 3
Cir. 11/4/09), 21 So.3d 1148, writ denied, 09-2577 (La.5/21/10), 36
So.3d 229, and our review of the defendant’s sentence is restricted to
his bare claim of excessiveness. State v. Mims, 619 So.2d 1059
(La.1993).

State v. Prejean, 10-480, p. 2 (La.App. 3 Cir. 11/3/10), 50 So.3d 249, 251.

The law regarding excessive sentence claims is well-established:

This court discussed the standard of review applicable to claims
of excessiveness in State v. Whatley, 03–1275, pp. 5–6 (La.App. 3 Cir.
3/3/04), 867 So.2d 955, 958–59, as follows:

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).

The fifth circuit, in [State v.] Lisotta, 726 So.2d [57] at 58 [ (La.App.
5 Cir.1998) ], 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

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

State v. Larry, 14-253, p. 1 (La.App. 3 Cir. 10/1/14) (unpublished opinion). See

State v. Fontenot, 06-226 (La.App. 3 Cir. 7/12/06), 934 So.2d 935.

The maximum sentence for manslaughter is forty years. La.R.S. 14:31(B).

Defendant received a mid-range sentence. Employing the analysis set forth in

Whatley and Lisotta, we find that Defendant’s assignments of error lack merit.

We find that even though the trial court acknowledged that the killing in this

case was unintentional, the nature of the crime is obviously serious, as it is a

homicide. After hearing testimony from Defendant, the trial court observed:

BY THE COURT:

Okay. In reviewing the Article 894.1 Code of Criminal
Procedure factors, the Court found that the following was pertinent:
First, there are no substantial grounds which would tend to excuse or
justify this defendant’s criminal conduct nor did he act under strong
provocation by the victim or anyone else. I’ll get into a little more
detail about those particular issues in just a second. He is thirty-one
years of age. He’s divorced. He has three children. Two from his
wife and one from another woman. He is in good health. He has been
employed in the past and worked primarily as a barber. He has a high
school education. He has admitted to the use in the past of cocaine. He
is classified in the PSI as a 3rd felony offender and the report
indicates that his record is that on November the 8th, 2001, in the 30th
Judicial District Court, he was convicted of distribution of marijuana
and given a six-year suspended sentence and placed on supervised
probation for four years. On October the 11th, 2006, in the 36th
Judicial District Court in DeRidder, he was convicted of aggravated
flight from an officer, which is a felony, and given a two-year
Department of Correction[s] sentence. That was suspended and he
was placed on three years supervised probation and on December the
10th, 2009, his probation was revoked. On April the 13th, 2007, in the
36th Judicial District Court, he was convicted of simple escape
(felony grade) and given a two-year Department of Corrections
sentence. He also has on his record other convictions for domestic
abuse battery, disturbing the peace, possession of drug paraphernalia
and theft -- all of the misdemeanor grade. In reviewing the facts of
this case, the statements from the other inmates that were in the record
and the testimony at the sentencing hearing, the Court is convinced
that this was not an intentional killing. It was truly what I think comes

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under the definition of manslaughter. It was unintentional. This
defendant did go in -- did not go in with the intent to kill. However,
clearly his actions were a cause of the death and the cause of the death
of this individual. The damage is done. His fight was over a food tray.
And, based on the jail house inmate culture, this defendant had to
answer the call of the victim to stand up and fight about the food tray.
And the culture -- by the “culture” I mean, when apparently -- I didn’t
know they did it. I knew the culture was, if somebody calls you out,
you don’t back off otherwise you’re, you’re looked -- you’re viewed
by other inmates in a -- in a manner that is not very favorable. But, the
way they call them out here in the Vernon Parish jail at least is, if you
put your shoes on, that means you’re going to stand your ground and
I’m -- and you’re going to fight and you’re -- the other one is expected
to answer it and that’s what happened in this case. Mr. Hopkins
answered it by putting his shoes on and going to fight. Well, that may
be the jailhouse culture but that’s the most stupid thing that I can think
-- that I could think of one would do is fight over a food tray. Now,
this man died over a fight over a food tray. There’s no justification, no
explanation -- I don’t care what the jailhouse culture was. You’re in
trouble when you’re in jail in the first place and you’re going to
compound it by getting in a fight because some other stupid inmate
calls you out over a food tray and that’s what the victim in that case
was doing -- doing something stupid in the first place and a food tray
is not -- with food is not something that someone ought to be fighting
over, much less dying over in my opinion. This could have been
avoided very easily -- should have been avoided very easily, but two
men -- two grown men made childish decisions and the result is what
it is. He must now deal with the consequences -- both the victim’s
family and the defendant in this case. This victim is no longer here.
His family will never see him, never touch him, never be able to talk
to him. They’ll just have photos and memories to use and to go by.
Whereas, your family, sir, will be able to see you wherever you are.
They’ll be able to talk to you. They’ll be able to write to you. And,
ultimately, they may be able to even have you back home. The only
mitigating circumstances I can find in this case is you are remorseful
and I believe you’re genuinely remorseful for what happened to him.
I, I felt like that was what I saw when you testified and you also stated
the same in the letters, but using better judgment would have been the,
the better course to take. The sentencing of the Court based on all of
this is as follows: That you serve twenty-five years at hard labor with
the Louisiana Department of Corrections.

In addition, based upon the trial court’s remarks regarding the nature and

background of the offender, it appears Defendant has a criminal past that does not

include egregious felonies; however, his record includes aggravated flight and a

misdemeanor battery. Further, as to similar sentences for a similar crime, in State

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v. Montgomery, 525 So.2d 7 (La.App. 3 Cir.), writ denied, 525 So.2d 1046

(La.1988), this court affirmed a ten-year sentence for the unintentional

manslaughter of a husband by a wife; in State v. Lewis, 08-1317 (La.App. 5 Cir.

5/26/09), 16 So.3d 385, a fifth circuit majority overturned a thirty-year sentence for

a sixteen-year-old manslaughter defendant who shot his victim in the head, noting

a lack of premeditation. In remanding, the fifth circuit indicated that a twenty-year

sentence would not be excessive. During its discussion, the court observed:

In two cases involving another type of weapon or a physical
blow to the head, the courts upheld a sentencing range of 20 to 23
years: State v. Batiste, 07-482, pp. 1, 2 (La.App. 3 Cir. 10/31/07), 969
So.2d 704, 705 (The court upheld a 20-year sentence for a 33-year-old
defendant, who had the last opportunity to either drive off to avoid the
victim but who walked around to the other side of the vehicle where
the victim was and struck him in the head with one blow to the head.);
State v. Thomas, 08-113, p. 11, 14 (La.App. 5 Cir. 6/19/08), 988 So.2d
750, 757, 759 (This Court upheld a 23-year sentence for a defendant,
who severely beat the victim to death with a baseball bat.).

Id. at 396. However, the supreme court reinstated the thirty-year sentence, noting

evidence that the Defendant deliberately shot at the victim’s head during a melee

over a one-dollar cigar. State v. Lewis, 09-1404 (La. 10/22/10), 48 So.3d 1073. In

another case, this court reviewed and affirmed the twenty-five-year sentence of a

manslaughter defendant whose charge had been reduced from second degree

murder. The defendant was a first felony offender who shot the victim and a

second person during a struggle that arose from a drug transaction. State v. Ford,

94-1440 (La.App. 3 Cir. 4/5/95), 653 So.2d 107.

Viewing the facts of the present case in light of Lewis, Montgomery, and

Ford, we affirm Defendant’s sentence. The sentencing court considered the

requisite factors and had broad discretion. Defendant’s sentence was a mid-range

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sentence proportionate to the crime, and not outside the norms of Louisiana

jurisprudence.

DISPOSITION

Defendant’s assignments of error lack merit and his sentence is affirmed.

AFFIRMED.

This opinion is not designated for publication. Uniform Rules—Courts of Appeal,

Rule–2.16.3.

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