State of Louisiana v. Larry Joseph McKithern AKA - Larry McKithern AKA - Larry J. McKithern

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

15-931

STATE OF LOUISIANA

VERSUS

LARRY JOSEPH MCKITHERN
AKA - LARRY MCKITHERN
AKA - LARRY J. MCKITHERN

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 3678-11
HONORABLE CLAYTON DAVIS, DISTRICT JUDGE

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JIMMIE C. PETERS
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Jimmie C. Peters, and
John E. Conery, Judges.

AFFIRMED AS AMENDED.

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

Edward K. Bauman
Louisiana Appellate Project
P.O. Box 1641
Lake Charles, LA 70602-1641
(337) 491-0570
COUNSEL FOR DEFENDANT/APPELLANT:
Larry Joseph McKithern
a/k/a Larry Joseph McKithern
a/k/a Larry J. McKithern

Larry McKithern
a/k/a Larry Joseph McKithern
a/k/a Larry J. McKithern
Camp D - Eagle - 3
Louisiana State Prison
Angola, LA 70712
In Proper Person

PETERS, J.

The defendant, Larry J. McKithern, appeals the sentences imposed on him as

a habitual offender as being excessive. For the following reasons, we affirm the

sentence for armed robbery in all respects. We amend the sentence imposed for

aggravated arson and affirm it as amended.

DISCUSSION OF THE RECORD

The defendant was originally charged on July 21, 2009, by grand jury

indictment with armed robbery, a violation of La.R.S. 14:64, and aggravated arson,

a violation of La.R.S. 14:51. A jury found him guilty of both charges on

December 2, 2010, and at the conclusion of the trial, the State of Louisiana (state)

announced its intention to file a habitual offender bill.

The state did file a habitual offender bill, and at the March 9, 2011

sentencing hearing, the trial court adjudicated the defendant a second habitual

offender. After doing so, and pursuant to La.R.S. 15:529.1, the trial court

sentenced the defendant to 130 years on the armed robbery conviction and thirty

years on the aggravated arson conviction. Additionally, the trial court ordered that

the sentences run consecutively.

The defendant timely appealed his convictions, and on appeal, this court

affirmed his convictions but vacated his adjudication as a habitual offender. In

doing so, this court found that the state failed to provide adequate proof that the

ten-year cleansing period of La.R.S. 14:529.1(C), had not elapsed. After vacating

the original habitual offender sentence, this court remanded the matter to the trial

court with instructions for it to reconsider the defendant’s habitual offender status,

and if he was again adjudicated a habitual offender, to resentence him. State v.

McKithern, 11-1402, 11-1111 (La.App. 3 Cir. 5/2/12), 93 So.3d 684 and 697, writ

denied, 12-1653 (La. 3/1/13), 108 So.3d 782.

The trial court responded to the instructions on remand by holding a hearing

on May 19, 2014. Although the defendant was present in the courtroom at the

outset of the hearing, he was subsequently removed because of his unruliness, and

he appeared via audio-visual transmission from the Calcasieu Correctional Center

for the remainder of the hearing.

At the hearing on remand, the trial court found the cleansing period was not

exhausted and again adjudicated the defendant as a second felony habitual

offender. The trial court then sentenced the defendant to 110 years on the armed

robbery conviction and twenty years on the aggravated arson conviction. Both

sentences were ordered to be served without probation, parole, or suspension of

sentence and to run consecutive to one another.

After the defendant’s pro se motion to reconsider his sentences was rejected

by the trial court, the defendant filed this appeal. In his sole assignment of error,

the defendant asserts that the trial court erred by imposing excessive sentences.

Basically, the defendant asserts that the trial court failed to comply with the

requirements of La.Code Crim.P. art. 894.1; and particularly, La.Code Crim.P. art.

894.1(C), in that it did not “state any aggravating circumstances warranting such

severe sentences.”

OPINION

The underlying facts giving rise to the convictions in this matter were set

forth in the original opinion of this court, and reference is made herein for a more

expansive summary of those facts. McKithern, 93 So.3d 684. It is sufficient for

the purpose of this opinion to say that after a day of drinking, the defendant robbed

three men at knifepoint in their camper trailer. He then poured an accelerant on the

men and around the trailer, barricaded the door, and set it on fire. As the defendant

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left the trailer, the three men were able to exit the trailer before being severely

burned or killed.

The underlying offense giving rise to the habitual offender proceeding was a

manslaughter conviction in Plaquemines Parish on March 8, 1988, for which the

defendant was sentenced to eighteen years at hard labor. The remand in the prior

opinion was based on the fact that the state failed to show whether the defendant’s

discharge was actually eighteen years after sentencing or at an earlier or later date.

That being the case, it was unclear whether the later convictions fell outside or

inside the ten-year cleansing period of La.R.S. 15:529.1(C). On remand, the trial

court found that less than ten years had elapsed between the date of the

commission of the current offenses and the expiration of the sentence of the

previous conviction. That is not an issue in this appeal.

Louisiana Revised Statutes 14:64(B) provides that “[w]hoever commits the

crime of armed robbery shall be imprisoned 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.” Additionally, La.R.S. 14:51(B) provides:

Whoever commits the crime of aggravated arson shall be
imprisoned at hard labor for not less than six nor more than twenty
years, and shall be fined not more than twenty-five thousand dollars.
Two years of such imprisonment at hard labor shall be without benefit
of parole, probation, or suspension of sentence.

With regard to the habitual offender sentence, La.R.S. 15:529.1(A)(1)

provides:

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.

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Additionally, La.R.S. 15:529.1(G) provides that “[a]ny sentence imposed under the

provisions of this Section shall be at hard labor without benefit of probation or

suspension of sentence.”

The effect of these provisions on the defendant’s convictions and habitual

offender status is that he could have been sentenced to anywhere between 49.5 to

198 years for the armed robbery conviction and anywhere between ten and forty

years for the aggravated arson conviction. Additionally, the sentences would be

without benefit of probation or suspension of sentence. He was sentenced to 110

years on the armed robbery conviction, or a little more than one-half of the

maximum sentence available; and he was sentenced to twenty years on the

aggravated arson conviction, or exactly one-half of the maximum sentence

available, given his habitual offender status. Still, in practicality, the defendant

received a life sentence because he will not live long enough to serve 130 years in

prison.

This court has previously discussed the standard for reviewing excessive

sentence claims:

[Louisiana Constitution Article] 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. 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. The relevant question is whether the
trial court abused its broad sentencing discretion, not whether another
sentence might have been more appropriate.

State v. Barling, 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d
1035, 1042 (second alteration in original) (citations omitted), writ denied, 01-838
(La. 2/1/02), 808 So.2d 331.

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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. 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.

Regarding La.Code Crim.P. art. 894.1, this court, in State v. H.A., Sr., 10-95, pp.

25-26 (La.App. 3 Cir. 10/6/10), 47 So.3d 34, 50 (alteration in original), has

explained:

As noted in State v. Smith, 433 So.2d 688, 698 (La.1983) (citations
omitted), “[w]hile the 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.” This does not mean,
however, that the trial judge’s failure to comply with Article 894.1
renders a sentence invalid, as the goal of this article is articulation of
the factual basis for a sentence, “not rigid or mechanical compliance
with its provisions.” State v. Lanclos, 419 So.2d 475, 478 (La.1982).
Accordingly, if “the record clearly shows an adequate factual basis for
the sentence imposed[,] . . . remand is unnecessary, even where there
has not been full compliance with Article 894.1.” Id.

Additionally, La.Code Crim.P. art. 881.4(D) provides that “[t]he appellate court

shall not set aside a sentence for excessiveness if the record supports the sentence

imposed.”

In this case, the defendant is correct that during the sentencing hearing on

remand, the trial court did not orally refer to the sentencing guidelines under
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La.Code Crim.P. art. 894.1. We note that La.Crim.Code art. 894.1(B) only relates

to situations where there is the possibility of a suspended sentence. Here, the

defendant is not subject to probation or the suspension of sentence pursuant to

La.R.S. 15:529.1(G). However, the trial court had already had the opportunity to

sentence the defendant and was actually resentencing him in this proceeding. At

the original sentencing hearing on March 9, 2011, the trial judge had commented:

Well, he didn’t take a life here, but that was by the extreme
good fortune and reaction of the three people that he was trying to
burn up in the trailer. And I think that was proven beyond a
reasonable doubt.

Now, why he wasn’t charged with that, I don’t know. But his
so-called friends, he left in a trailer and started a fire and then tried to
blockade them inside, so that’s about as aggravated as it gets without
actually [sic] taking of lives.

Additionally, when the state’s counsel asked at the resentencing hearing if the

sentences imposed were “based on [the defendant’s] nature as a recidivist violent

felon,” the trial judge responded, “Correct.” Other than these comments, the trial

judge did not refer to the La.Code Crim.P. art. 894.1 factors or otherwise indicate

that he had considered them.

The record from the May 19, 2014 hearing, does show that the defendant’s

birth date is June 11, 1960, that he was he was forty-eight years old at the time of

his offenses, and that he had previously been charged with second degree murder,

but convicted of manslaughter in the Twenty-Fifth Judicial District Court on

March 4, 1988. The record also establishes that the defendant’s parole was

revoked on August 18, 2004, for new criminal activity on his part, and that he was

convicted of possession of stolen things over $500.00. The trial court found that

the state proved the defendant’s cleansing period had not been exhausted, and

properly adjudicated him a second felony habitual offender. Additionally,

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although there was some discussion concerning resentencing the defendant to the

same sentence originally imposed, the trial court actually imposed sentences thirty

years less than it had previously imposed.

Applying the factors of La.Code Crim.P. art. 894.1, we find that the

defendant’s conduct during the commission of these crimes manifested deliberate

cruelty to the victims, who were, as noted by the trial judge, alive only by “extreme

good fortune.” The defendant knowingly created a risk of death or of great bodily

harm to multiple persons, and he used a dangerous weapon while committing the

offenses. One of the defendant’s victims sustained non-burn injuries, and the other

sustained serious burns as a result of the fire. There are no mitigating factors

present to favor the defendant, and we find that the sentences are not excessive.

See State v. Fuller, 07-319 (La.App. 5 Cir. 2/19/08), 980 So.2d 45, writ denied, 08-

705 (La. 10/10/08), 993 So.2d 1282 (maximum sentence of ninety-eight years

without benefit of parole, probation, or suspension of sentence imposed on second

felony habitual offender for armed robbery); State v. Smith, 04-340 (La.App. 5 Cir.

10/26/04), 888 So.2d 280 (maximum sentence of ninety-eight years without benefit

of parole, probation, or suspension of sentence imposed on second felony habitual

offender for armed robbery with the underlying offense being theft over $500.00,

and a companion conviction of second degree kidnapping); and State v. Freeman,

00-238 (La.App. 3 Cir. 10/11/00), 770 So.2d 482, writ denied, 00-3101 (La.

10/5/01), 798 So.2d 963 (maximum sentence of ninety-eight years without benefit

of parole, probation, or suspension sentence imposed on second felony habitual

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1
offender for two armed robberies of the same business). Any lesser sentences

than those imposed would deprecate the severity of the defendant’s crimes.

However, we do find that the sentence imposed for the aggravated arson is

excessive in form. The trial court ordered that the complete sentence be imposed

without benefit of parole, probation, or suspension of sentence. The underlying

sentence for aggravated arson as set forth in La.R.S. 14:51(B), provides that only

two years of any sentence can be served without the benefits of parole, probation,

or suspension of sentence. However, La.R.S. 15:529.1(G) only allows for the

imposition of sentence without benefit of probation or suspension of sentence; it

does not preclude parole eligibility. Thus, we amend the sentence imposed to

provide that only two of the twenty years imposed may be served without benefit

of parole. We leave the remainder of the sentence as was imposed by the trial

court.

DISPOSITION

We affirm in full the habitual offender sentence imposed on the defendant

for the armed robbery offense. We amend the habitual offender sentence imposed

for the aggravated arson offense to limit the parole restriction to two years, and

affirm the habitual offender sentence as amended. We instruct the trial court to

note the amendment in the court minutes.

AFFIRMED AS AMENDED.

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

1
In Freeman, 770 So.2d at 491, the court noted that “[t]he jurisprudence is replete with
cases in which 198-year sentences have been approved for armed-robbery habitual offenders,”
citing State v. Donahue, 408 So.2d 1262 (La.1982); State v. Jolla, 337 So.2d 197 (La.1976);
State v. Gordon, 582 So.2d 285 (La.App. 1 Cir. 1991); State v. Franklin, 519 So.2d 292 (La.App.
5 Cir. 1988); and State v. Gordon, 477 So.2d 881 (La.App. 4 Cir. 1985).
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