State of Louisiana v. Patrick Seth Jones

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

17-88

STATE OF LOUISIANA

VERSUS

PATRICK SETH JONES

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 8397-15
HONORABLE G. MICHAEL CANADAY, DISTRICT JUDGE

**********

SHANNON J. GREMILLION
JUDGE

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Court composed of Sylvia R. Cooks, Shannon J. Gremillion, and Van H. Kyzar,
Judges.

AFFIRMED.

Carey J. Ellis, III
Louisiana Appellate Project
P O Box 719
Rayville, LA 71269
(318) 728-2043
COUNSEL FOR DEFENDANT/APPELLANT:
Patrick Seth Jones

Patrick Seth Jones
Camp C - Wolf 1
Louisiana State Prison
Angola, LA 70712
In Proper Person

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

Tara B. Hawkins
Attorney at Law
P. O. Box 3756
Lake Charles, LA 70602
(337) 660-2232
COUNSEL FOR APPELLEE:
State of Louisiana

GREMILLION, Judge.

On January 19, 2015, two men, one masked and the other unmasked, robbed

the Royal Palace Casino and employees and patrons of the casino in Calcasieu

Parish. Defendant, Mr. Patrick Seth Jones, appeals his convictions on four counts

of armed robbery for being the masked gunman who perpetrated the robberies, as

well as his sentences for those crimes. For the reasons that follow, Defendant’s

convictions and sentences are affirmed.

FACTS

Mr. Daniel Lavergne entered the Royal Palace Casino on the night of

January 19, 2015, and shortly thereafter exited it. He repeated this behavior once

again, before entering the casino a third time and walking to the bar, where he

ordered a “Crown and Coke” from the assistant manager/cashier/bartender, Ms.

Sarah Bushnell. When he was told that he would be charged $6.00 for that drink,

Mr. Lavergne declined.

Another individual entered the casino wearing a mask, gloves, dark pants, a

red flannel shirt, and a jacket. The security guard, Ms. Clara Williams, told him he

must remove the mask to enter. This person struck Ms. Williams in the head,

grabbed her by the shirt, and hurled her to the floor. He then began to frisk Ms.

Williams, demanding to know where her gun was. By this time, the masked

individual had produced a gun himself.

Mr. Lavergne then moved to the doors to act as a lookout while the masked

man led Ms. Bushnell to the back. Ms. Bushnell and Ms. Williams opened the

casino safe for the masked robber. Mr. Lavergne robbed items from the other

casino customers. The two bandits fled in a dark SUV that had been backed into a

handicapped parking space just outside the main entrance. Ms. Bushnell then

called police.

Detective Shaun Stewart of the Sulphur Police Department investigated the

crime. Detective Stewart obtained the surveillance video from the casino and

contacted the Orange, Texas, Police Department. Members of that department

identified Mr. Lavergne as the unmasked perpetrator from his distinctive hair style,

facial hair, and neck tattoo. According to Detective Stewart, on May 4, 2015, he

interviewed Mr. Lavergne, who gave a statement implicating Defendant as the

masked gunman.

Additionally, Detective Stewart ascertained that Lavergne and Defendant

had been to the L’Auberge du Lac Casino in Lake Charles that same night.

Detective Stewart obtained surveillance video from that casino, and observed

Lavergne and Defendant departing the casino in a dark SUV such as the one

observed by Ms. Williams at the Royal Palace.

Defendant was arrested in Orange, Texas, in a convenience store parking lot.

He was driving a dark green Toyota Sequoia SUV.

On March 18, 2015, Defendant was charged by bill of information with four

counts of armed robbery, violations of La.R.S. 14:64, and four counts of armed

robbery with a firearm, violations of La.R.S. 14:64.3. On May 3, 2016, the State

amended the bill to combine the charges and reflect only four counts of armed

robbery with a firearm, violations of La.R.S. 14:64 and 14:64.3.

At trial, Mr. Lavergne recanted his identification of Defendant as the masked

perpetrator. Mr. Lavergne testified that he was subpoenaed to testify and was not

doing so as part of his plea agreement. When asked if another individual was with

him when he robbed the casino, Mr. Lavergne replied, “I’d rather not answer that.”

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Mr. Lavergne also denied giving a statement to Detective Stewart. Although Mr.

Lavergne stated that the signature on a rights form looked like his signature, he did

not recall giving a statement or signing the form. After being shown a transcript of

the May 4, 2015, statement he gave to Detective Stewart, Mr. Lavergne denied

giving the statement. Mr. Lavergne denied arriving at the L’Auberge du Lac in a

green Toyota Sequoia, and denied knowing how Defendant arrived there. Mr.

Lavergne testified that he could not recall how he had arrived at the Royal Palace.

He further testified that he was picked up from the Royal Palace by a taxi that

returned him to Orange, Texas.

Cell phone transcripts were introduced that contained text messages

exchanged between Mr. Lavergne and Defendant. These text messages discussed

splitting cash between the two men. Mr. Lavergne testified that the money

discussed represented Defendant’s winnings from playing blackjack at the Isle of

Capri Casino. Mr. Lavergne had received $13,000.00 in a personal injury

settlement, and he frequently carried substantial sums of cash. Defendant

borrowed money from Mr. Lavergne in order to play blackjack and agreed to split

his winnings with him.

Defendant testified at trial. He testified that after they left L’Auberge du

Lac, he and Mr. Lavergne drove back to Orange, Texas, and he allowed Mr.

Lavergne to borrow his Toyota Sequoia. Defendant testified that he had won

$7,000.00 at the Isle of Capri, and the text messages between him and Mr.

Lavergne concerned the equitable sharing of those winnings. He denied

participating in the Royal Palace robbery.

On May 6, 2016, Defendant was found guilty by a unanimous jury of four

counts of armed robbery with a firearm. On May 13, 2016, Defendant filed a

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Motion for New Trial. The trial court denied the motion for new trial on June 20,

2016, and Defendant waived the time delays for sentencing. On that same date, the

trial court imposed the following sentences: 1) Count one – fifty years at hard

labor, plus five years for the firearm enhancement; 2) Count two – twenty-five

years at hard labor, plus five years for the firearm enhancement; 3) Count three –

twenty years at hard labor, plus five years for the firearm enhancement; and 4)

Count four – fifty years at hard labor, plus five years for the firearm enhancement.

All sentences were ordered to run consecutively, for a total sentence of 165 years.

On June 29, 2016, Defendant filed a Motion for Appeal, which was granted

on July 26, 2016. Now before the court is a brief filed by Defendant alleging an

assignment of error as to the sufficiency of the evidence and an assignment of error

as to the excessiveness of the sentences.

ANALYSIS

Error patent

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

staff for errors patent on the face of the record. After reviewing the record, we find

that there are no errors patent; however, the sentencing minutes and the

commitment order require correction.

After imposing Defendant’s sentences and providing him information

regarding diminution of sentence, enhancement, and a prospective release date, the

trial court stated, “Based on the statutes, he’s not eligible for parole.” There are

two statutes at issue in this case, La.R.S. 14:64 and 14:64.3, both of which require

the sentence imposed to be without benefit of parole, probation, or suspension of

sentence. Neither the sentencing minutes nor the commitment order reflect that

Defendant’s sentences are to be served without the benefit of parole, probation, or

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suspension of sentence. “[W]hen the minutes and the transcript conflict, the

transcript prevails.” State v. Wommack, 00-137, p. 4 (La.App. 3 Cir. 6/7/00), 770

So.2d 365, 369, writ denied, 00-2051 (La. 9/21/01), 797 So.2d 62. Accordingly,

the trial court is ordered to correct the sentencing minutes and the commitment

order to reflect that all of Defendant’s sentences are to be served without the

benefit of parole, probation, or suspension of sentence. See State v. Clayton, 10-

1303 (La.App. 3 Cir. 5/4/11), 64 So.3d 418, writ denied, 11-1015 (La. 11/4/11), 75

So.3d 923.

Assignment or error number 1 (sufficiency of the evidence).

When the key issue is the defendant’s identity as the perpetrator, the

standard by which the sufficiency of the evidence should be reviewed has been

noted by this court:

As to the defendant’s assertions that the State failed to prove
beyond a reasonable doubt that he killed White, the supreme court in
State v. Hughes, 05-992, pp. 5-6 (La. 11/29/06), 943 So.2d 1047,
1051, held:

[W]hen the key issue is the defendant's identity as the
perpetrator, rather than whether the crime was
committed, the State is required to negate any reasonable
probability of misidentification. State v. Weary, 03-3067
(La.4/24/06), 931 So.2d 297; State v. Neal, 00-0674
(La.6/29/01), 796 So.2d 649. Positive identification by
only one witness is sufficient to support a conviction.
Weary, 03–3067 at p. 18, 931 So.2d at 311; Neal, 00–
0674 at p. 11, 796 So.2d at 658; State v. Mussall, 523
So.2d 1305, 1311 (La.1988). It is the factfinder who
weighs the respective credibilities of the witnesses, and
this court will generally not second-guess those
determinations. State v. Bright, 98-0398, p. 22
(La.4/11/00), 776 So.2d 1134, 1147.

State v. McCoy, 16-948, p. 2 (La.App. 3 Cir. 5/10/17), 219 So.3d 538, 541.

Although Mr. Lavergne identified Defendant as one of the robbers in his

statement to Detective Stewart, Mr. Lavergne denied making that statement when

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he testified at trial. Recently, this court addressed a case in which a key witness

recanted her initial identification of the defendant as the perpetrator in State v.

Fontenot, 16-226 (La.App. 3 Cir. 11/2/16), 207 So.3d 589. After noting that

La.Code Evid. art. 801(D)(1)(a) permits a prior inconsistent statement made by a

witness to be used as substantive evidence of guilt when the prior inconsistent

statement is corroborated, this court stated:

In the present case, the jury not only heard the evidence that
corroborated Sara’s initial statement to police identifying the
Defendant as the perpetrator, but the jury also heard evidence that
discredited Sara’s recantation at trial. At trial, Sara testified that she
waited until the Defendant was out of rehab to tell police he was not
the person who stole the truck. On cross-examination, however, she
admitted that she waited until after she and the Defendant were
married, shortly before trial, to recant her statement to police. We find
that this discredits her claim that she framed the Defendant only to
force him into rehab and bolsters the State’s theory that she changed
her story for the purpose of keeping her husband out of jail. The jury
heard the evidence as to Sara’s “scheme” and was able to make a
credibility determination. Additionally, Sara testified she stole the
truck, and the truck had a standard transmission. The owner of the
truck, however, testified the truck had an automatic transmission.
Based on the foregoing, we find that the evidence was sufficient for a
reasonable juror to find that the Defendant was the perpetrator.

Id. at 601.

As in Fontenot, the jury in the present case heard evidence that corroborated

Mr. Lavergne’s May 4, 2015, statement to police identifying Defendant as one of

the perpetrators: Defendant possessed an SUV that matched the description of the

SUV seen at the Royal Palace Casino at the time of the robbery; Mr. Lavergne and

Defendant both admitted that they drove to L’Auberge the night of the robbery in

Defendant’s green Toyota Sequoia; Mr. Lavergne testified about text messages

concerning the split of money between him and Defendant the morning after the

robbery; Detective Stewart testified about video footage showing Mr. Lavergne

and Defendant going into and leaving L’Auberge about an hour before the robbery;

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both Detective Stewart and Ms. Bushnell testified that the masked robber appeared

to be wearing layers of clothing; and Detective Stewart testified the pants worn by

Defendant in surveillance video obtained from the L’Auberge du Lac were similar

to the pants worn under the sweatpants of the masked robber.

The jury also heard evidence that discredited Mr. Lavergne’s recantation at

trial. Mr. Lavergne denied giving the statement at all, even though Detective

Stewart testified that Mr. Lavergne gave the statement, and the jury watched a

video of the statement. The jury was also able to evaluate Mr. Lavergne’s

explanation that he may have wanted to retaliate against Defendant for Defendant’s

accusation against him in another matter. The jury heard all of the evidence and

was able to make a credibility determination. Based on the reasonableness of the

jury’s credibility determination along with the other corroborating evidence, we

find that the evidence was sufficient for a reasonable jury to find beyond a

reasonable doubt that Defendant was the perpetrator.

For the foregoing reasons, this assignment lacks merit.

Assignment of error number 2 (excessiveness of sentence)

The penalty range for an armed robbery conviction is between ten and

ninety-nine years at hard labor without benefit of parole, probation, or suspension

of sentence. La.R.S. 14:64. Additionally, “[w]hen the dangerous weapon used in

the commission of the crime of armed robbery is a firearm, the offender shall be

imprisoned at hard labor for an additional period of five years without benefit of

parole, probation, or suspension of sentence.” La.R.S. 14:64.3. This enhancement

of sentence is to be served consecutive to the sentence imposed under La.R.S.

14:64. Id. Defendant was convicted of four counts of armed robbery with a

firearm; therefore, he faced a potential sentence, including the enhancement under

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La.R.S. 14:64.3, of 416 years at hard labor without benefit of parole, probation, or

suspension of sentence.

Defendant neither objected to the sentence nor did he file a motion to

reconsider the sentence. Pursuant to La.Code Crim.P. art. 881.1, his claim of

excessiveness of sentence is barred. This court has on many occasions, however,

considered bare claims of excessiveness, and we do so here.

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

958, the standard of review for bare claims of excessiveness of sentence was stated

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).

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:

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

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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.

The trial court initially noted that Defendant was a twenty-three-year-old

male with some college education who worked as a plant laborer. The court also

noted that it had received letters from Defendant’s family members asking for

leniency. Two victims, Ms. Williams and Ms. Bushnell, further gave statements at

the sentencing hearing. The State sought a minimum sentence of twenty years on

each count to be served consecutively plus the five-year firearm enhancement on

each count. The State noted that Defendant had a prior felony conviction for

burglary of a building in Texas, the impact of Defendant’s behavior on the victims,

the Defendant’s use of a firearm, the disingenuous testimony of Defendant at trial,

and Defendant’s lack of remorse.

On behalf of Defendant, defense counsel argued the following:

Your Honor, I certainly agree with Ms. Hawkins that armed
robbery is one of the most serious crimes there are [sic] and I certainly
have sympathy for the two ladies who spoke this morning. I know it
would be a horrible thing for them to have to endure.

Mr. -- first of all, Mr. Jones exercised his right to a trial, a trial
by jury. And, yet, he is being called disingenuous by testifying in his
own behalf, also that he allegedly does not accept responsibility for
his actions. He consistently has stated that he wasn’t present. And, I
was not there. I can’t say whether he was present or not. But, I do
know that there have been cases where juries have improperly
convicted persons based on a lot of -- a lot of evidence to the contrary.

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But, that being what it may, he has been convicted by a jury,
and he has been convicted of some very serious offenses. The Court
has had the opportunity to read the letters. I read them. They were
very uh -- really disturbing letters about a particular instance in Mr.
Jones’ background which was the suicide of his father when he was a
young teenager in his presence and how Mr. Jones’ behavior changed
substantially after that.

One of the letters even pointed out that, even though, if we for
the sake of argument state that it was Mr. Jones who committed the
offense, even though he did that, the -- this second individual did do
some heinous things, when the victim said, “Oh, I need my money.
That’s my car note” he returned the purse, returned the wallet, and
returned the money.

He is very young. His prior offense was a non-violent offense.
He is ascribed to circumstances as to -- as to the burglary, that it was a
burglary of a school building. There were no individual -- well, there
was no one who was physically affected, although it was certainly a
crime against property.

I would argue that any sentence that the Court issues should be
concurrent. All of these matters happened at the same time in the
same course of events as is set forth in the Code of Criminal
Procedure, and we would request as minimum of a sentence as
possible, and that they be concurrent, all counts be concurrent.

The trial court considered the factors listed in La.Code Crim.P. art. 894.1,

noting Defendant’s status as a second felony offender, noting that the offenses

involved crimes of violence, and noting deliberate cruelty to Ms. Williams, an

elderly woman, and Ms. Bushnell, a petite female:

The offender used threats or actual violence in the commission,
specifically as to Victim 1, Ms. Williams, and Victim 4, Ms. Bushnell.
Those numbers are arbitrarily set by the Court when I just wrote down
the names of the individuals.

Again, a lesser degree to Victim 2 who was pushed to the
ground when he attempted to try and leave the premises. Specifically,
Ms. Williams was struck, and Ms. Bushnell was dragged around the
facility in an effort to locate the funds.

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The trial court noted the economic loss suffered by the victims, as well as

the emotional trauma they suffered. After noting Defendant used a dangerous

weapon and noting his prior felony, the trial court stated:

He was the leader of this violation in concert with one or more
persons with respect to whom he occupied a position as organizer,
supervisor position, or a position of management? The Court basically
had the opinion in reviewing this that he controlled the robbery. It
appeared that based on Mr. -- what was seen, Mr. Lavergne was sent
in without any cover on a number of occasions until it appeared that it
was something the parties decided to do, and then Mr. Jones became
involved. And, you could tell from the video that he was calling
pretty much the shots during the course of the robbery. So, I do find
that he was the primary organizer.

....

Other aggravating circumstances have to do with the aggression
that was noted on the video, as well as verified by the testimony of the
victims. Also, it’s noted that the defendant testified. And, the content
based on the Court’s evaluation was one of anger with regard to going
through the trial. At no time has the defendant ever acknowledged he
was involved in the robbery, nor has he indicated any remorse or
responsibility.

As for mitigating factors, the trial court noted Defendant’s close family ties

and that Defendant returned money to Ms. Bushnell when she pleaded for him to

do so. After the trial court imposed the sentences, it noted that Defendant appeared

to have a lot of pent-up anger and that Defendant was a danger to society.

The sentences imposed are within the mid-range of those Defendant faced.

The imposition of those sentences to be served consecutively represents the only

issue that might render them excessive.

In State v. Thomas, 98-1144, pp. 1-2 (La. 10/9/98), 719 So.2d 49, 49-50, the

supreme court stated the following regarding the imposition of consecutive

sentences for crimes committed as part of a single transaction:

Although Louisiana law favors concurrent sentences for crimes
committed as part of a single transaction, La.C.Cr.P. art. 883; State v.

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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). . . .On
appellate review of sentence, 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, p. 3 (La.5/31/96), 674 So.2d 957, 959 (quoting State v.
Humphrey, 445 So.2d 1155, 1165 (La.1984)), cert. denied, [519] U.S.
[1043], 117 S.Ct. 615, 136 L.Ed.2d 539 (1996). In this context, a trial
court “abuses its sentencing discretion only when it contravenes the
prohibition of excessive punishment in La. Const. art. I, § 20, i.e.,
when it imposes ‘punishment disproportionate to the offense.” ’ State
v. Soraparu, 97-1027 (La.10/13/97), 703 So.2d 608 (quoting State v[.]
Sepulvado, 367 So.2d 762, 767 (La.1979)) (emphasis added). Even
granting the consecutive nature of the penalties imposed on all three
counts, the defendant’s total sentence remains within the 35 to 50 year
range this Court has found acceptable for first offenders convicted of
armed robbery. See, e.g., State v. Nealy, 450 So.2d 634, 640
(La.1984); State v. Walker, 449 So.2d 474 (La.1984); State v. Dunns,
441 So.2d 745, 746 (La.1983); State v. Huntsberry, 439 So.2d 432,
433 (La.1983).

Our colleagues on the Second Circuit Court of Appeal have identified

several factors that should be considered by a trial court in imposing consecutive

sentences for armed robbery: the defendant’s criminal history, the danger

represented by the offense, the viciousness of the crime, the harm to the victims,

whether the defendant poses an unusual risk to the public, the defendant’s potential

for rehabilitation, and whether the defendant benefited from a plea bargain. State v.

Coleman, 32,906, (La.App. 2 Cir. 4/5/00), 756 So.2d 1218, writ denied, 00-1572

(La. 3/23/01), 787 So.2d 1010. In its reasons for the sentences imposed, the trial

court articulated many of the factors set forth in Coleman: Defendant’s status as a

second felony offender, Defendant’s deliberate cruelty to two of the victims,

Defendant’s position as leader of the robbery, Defendant’s lack of remorse,

Defendant’s failure to accept responsibility, Defendant’s pent-up anger, and

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Defendant’s danger to society. Thus, the record supports the trial court’s

imposition of consecutive sentences. The Louisiana Supreme Court has often

noted “that sentence review under the Louisiana constitution does not provide an

appellate court with a vehicle for substituting its judgment for that of a trial judge

as to what punishment is more appropriate in a given case.” State v. Savoy, 11-

1174, p. 5 (La. 7/2/12), 93 So.3d 1279, 1283 (citing State v. Walker, 00-3200 (La.

10/12/01), 799 So.2d 461; State v. Cook, 95-2784 (La. 5/31/96), 674 So.2d 957,

cert. denied, 519 U.S. 1043, 117 S.Ct. 615 (1996); and State v. Humphrey, 445

So.2d 1155 (La.1984)).

DECREE

For the foregoing reasons, the convictions and sentences of Defendant,

Patrick Seth Jones, are affirmed. The trial court is ordered to correct the court

sentencing minutes and the commitment order to reflect that all of Defendant’s

sentences are to be served without the benefit of parole, probation, or suspension of

sentence.

AFFIRMED.

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