State of Louisiana v. Danial Lewayne Lafleur -Aka- Daniel Lafleur -Aka- Daniel Lee Lafleur -Aka Danial Lefleur

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

KA 17-284

STATE OF LOUISIANA

VERSUS

DANIAL LEWAYNE LAFLEUR

-AKA- DANIEL LAFLEUR

-AKA- DANIEL LEE LAFLEUR

-AKA DANIAL LEFLEUR

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APPEAL FROM THE
THIRTY-FIRST JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON DAVIS, NO. CR-702-13
HONORABLE RONALD D. COX, DISTRICT JUDGE

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BILLY HOWARD EZELL
JUDGE

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Court composed of Marc T. Amy, Elizabeth A. Pickett, and Billy Howard Ezell,
Judges.

PICKETT, J., dissents and assigns reasons.

AFFIRMED WITH INSTRUCTIONS.

Edward Kelly Bauman
Louisiana Appellate Project
P.O. Box 1641
Lake Charles, LA 70602-1641
(337) 491-0570
COUNSEL FOR DEFENDANT/APPELLANT:
Danial Lewayne LaFleur

Jeffrey M. Landry
Attorney General
P.O. Box 94005
Baton Rouge, LA 70804
(225) 326-6200
COUNSEL FOR:
State of Louisiana

Andrea Barient
Assistant Attorney General
1885 North Third Street
Baton Rouge, LA 70802
(225) 326-6258
COUNSEL FOR:
State of Louisiana

Daniel LaFleur
4944 S. Sherwood Forest Blvd
Apt. 233
Baton Rouge, LA 71301
(318) 792-2345

EZELL, Judge.

In Defendant’s previous appeal, this court described the procedural history
of the case:
On December 17, 2013, Defendant Danial Lewayne Lafleur
was charged by a bill of information with one count of aggravated
assault with a firearm, a violation of La.R.S. 14:37.4. The State filed a
“Motion for Appointment of Sanity Commission,” and on September
10, 2014, the trial court ordered a sanity commission to determine
whether Defendant was competent to assist in his own defense. On
July 10, 2015, a sanity commission hearing was held regarding
Defendant's capacity to proceed to trial. It was determined that
Defendant was incapable of assisting in his defense at trial. Defendant
was ordered into treatment at the Eastern Louisiana Mental Health
System, Forensic Division. A mental competency hearing was held on
October 2, 2015. The trial court found Defendant to be competent to
proceed to trial. A jury trial commenced on December 15, 2015.
Defendant was found guilty as charged on December 16, 2015. A
presentence investigation report was ordered by the trial court.
Defendant was sentenced on March 16, 2016, to the maximum
sentence of ten years imprisonment at hard labor. Defendant filed a
timely “Motion to Reconsider Sentence,” in which he asserted that the
sentence was excessive under the circumstances of his case. The
motion was denied without a hearing on March 16, 2016.

Defendant has perfected a timely appeal. Defendant’s appellant
counsel asserts that the imposition of the maximum sentence of ten
years at hard labor was constitutionally excessive under the
circumstances of the case. For the following reasons, we find merit
with this assignment of error. Therefore, we vacate the sentence and
remand the case to the trial court for resentenc[ing]. However, we find
no merit to any of Defendant’s pro-se assignments of error.

State v. Lafleur, 16-467, p. 1 (La.App. 3 Cir. 1/4/17), 209 So.3d 927, 928-29.

On March 9, 2017, the trial court conducted a resentencing hearing and

sentenced Defendant to ten years at hard labor with three of those years suspended.

Also, the trial court ordered five years of probation. Defendant now appeals,

alleging the new sentence is illegal.

FACTS

The previous appeal recited the following facts:

In the early evening of October 31, 2013, on Halloween, the
victim, David Savoy, and his family were out trick-or-treating. Mr.

Savoy was sitting in his truck in a neighbor’s driveway after his wife
and children had gotten out of the truck. As Mr. Savoy sat waiting,
Defendant approached the truck, pointed a rifle at Mr. Savoy, and
asked Mr. Savoy something about Defendant’s baby and a neighbor’s
swimming pool. Mr. Savoy testified Defendant stood about ten yards
away and held the gun on him for about ten to fifteen seconds.
Defendant then lowered the rifle and walked away. Mr. Savoy said he
did not know what Defendant was asking him and that he was in fear
for his life.

Id. at 929.

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 there is

one error patent.

The trial court improperly advised Defendant he had “two years from this

day to file any post-conviction relief petitions.” Louisiana Code of Criminal

Procedure Article 930.8 provides the prescriptive period for filing post-conviction

relief is two years which begins to run when a defendant’s conviction and sentence

become final under the provisions of La.Code Crim.P. arts. 914 or 922. Therefore,

the trial court is instructed to correctly inform Defendant of the provisions of

Article 930.8 by sending appropriate written notice to Defendant within ten days of

the rendition of this opinion and to file written proof in the record that Defendant

received the notice.

ASSIGNMENT OF ERROR

In his sole assignment of error, Defendant argues that his sentence of ten

years with three suspended and five years of probation is excessive. In addition, he

complains that the trial court did not take his mental health into account as ordered

by this court. This court stated: “[W]e vacate the sentence and remand the case to

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the trial court for resentencing to consider Defendant’s mental illness at the time of

the offense as a mitigating factor.” Id. at 941.

Defendant’s counsel filed a written motion to reconsider sentence, which the

trial court denied in open court. The motion merely alleged excessiveness and did

not raise the mental health issue; also, at the resentencing hearing counsel did not

raise the trial court’s non-compliance with this court’s ruling. Therefore, we will

not address the trial court’s failure to consider Defendant’s mental health as a

mitigating factor.

The analysis for excessive-sentence claims is well-established. This court

has explained:

In State v. Fontenot, 06-226, pp. 7-5 (La.App. 3 Cir. 7/12/06),
934 So.2d 935, 940-41 (alteration in original), we stated that the
analysis for excessive sentence claims is well-settled and wrote:

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, 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.

....

Further, in State v. Whatley, 03-1275, p. 6
(La.App. 3 Cir. 3/3/04), 867 So.2d 955, 959, this court

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stated, “The fifth circuit, in [State v.] Lisotta, [98-648
(La.App. 5 Cir. 12/16/98),] 726 So.2d [57] at 58, [writ
denied, 99-433 (La.6/25/99), 745 So.2d 1183] 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. Brannon, 07-431, pp. 15-16 (La.App. 3 Cir. 12/5/07), 971 So.2d 511, 521-

22, writ denied, 07-2465 (La. 5/9/08), 980 So.2d 689 (alterations in original).

Regarding the nature of the crime, it can logically be viewed as one that

caused fear to the victim, as Defendant pointed a rifle at him. Regarding

Defendant’s nature and background, the prior opinion noted:

The only information regarding Defendant’s background came
from the presentence investigation report. The report indicated that
Defendant was essentially raised by his grandparents and had no
relationship with his parents or siblings. There was evidence of
physical and emotional abuse. Defendant began doing drugs and
alcohol at a very early age. He dropped out of high school in the ninth
grade but obtained his GED. At the time of the report, Defendant was
thirty-nine years old.

The report also contained a summary of his mental health
history, taken from the reports submitted by Doctor Hayes and Doctor
Anderson. The presentence investigation report also noted
Defendant’s criminal history, which was as follows: 1999, aggravated
assault, one year unsupervised probation; 2001, an arrest in Texas for
assault with bodily injury of a family member, dismissed; 2003,
aggravated assault, six months in the parish jail, suspended, one year
unsupervised probation; 2006, driving while intoxicated in Texas,
sixty-three days jail, twelve months’ probation; and the current
offense.

Except for the above information, nothing was revealed at the
sentencing hearing which supported the trial court’s imposition of the
maximum sentence other than Defendant’s bad behavior towards the
trial court, the prosecutor, and even his own counsel.

LaFleur, 209 So.3d at 934-35.

At the resentencing hearing, the trial court explained:

THE COURT:

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All righty.

The -- for the record, I guess I need to say that I -- I was
appointed by the Louisiana Supreme Court to sit on all of Mr.
Lafleur’s cases. In this particular case, the criminal matter, the Judge
recused himself, the district attorney’s office recused themselves, and
the general attorney [sic] was appointed, and I was appointed.

On the civil case, I was appointed on that. I contacted the
judicial administrator’s office and they indicated that the Supreme
Court wished for me to -- to handle all of his matters, and I had
advised him of that when I appeared in court.

The Court of Appeals’ opinion -- this matter was tried by the
jury. The jury returned a guilty verdict. I ordered a Presentence, and --
and the defendant was remanded to the Department of Corrections --
the custody of the Department of Corrections. The Court of Appeals’
opinion, as I said a little bit earlier, affirmed the conviction but sent it
back because I had indicated -- I had -- I had ordered him to serve the
maximum sentence. The Court of Appeals indicated that at the time
of the sentencing I was angry at the defendant for his many outbursts
in the courtroom. They even pointed out that I -- his outbursts
continued, and at one point during the sentencing, I advised him that if
he did not maintain order in this courtroom that I was going to have
his mouth duct taped. I was not angry at Mr. Lafleur. I was upset that
-- what had just happened.

We met -- I met with the assistant attorney general handling the
case and with Mr. Marcantel. When I got the Presentence Report, we
went over it. I indicated that I was -- I was considering a sentence in
jail that partially was suspended on -- conditioned that he not insult,
threaten, or have any other outbursts of the kind that we’ve been
having on and on. And in the particular case of -- of his civil matter,
the Court granted a protective order after hearings with a number of
people testifying, including the mother of his child, and I think her
family was here, everybody was here. Had a second hearing later after
that protective order stopped where he was -- he was continuing to
either threaten them or convey threats to them of -- of fear that they
were harming his child, and I granted a permanent injunction in the
civil case.

So I have the background of information that I had the civil
case by order of the Supreme Court, and it involved threats. I have
this case, and the Presentence involved a number of prior threats. I
advised Mr. -- and I’m not sure that Mr. Marcantel even had an
opportunity. Mr. Lafleur on the day of sentencing was very upset. I’m
not sure that he had -- you had -- you had a chance. I know you went
and met with him to show him the Presentence Report, but

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immediately upon coming in the courtroom, my assumption is he
understands I’m going to suspend a portion of his sentence on the
condition that he not threaten or -- and immediately he cursed and
threatened -- I think he called the assistant attorney general an
imbecile, and he threatened myself, and he threatened Judge Gunnell.
He was -- he was in a very angry manner at the sentencing. To me, at
the time, obviously, he did not want to partake in any conditions of
probation, and he would not comply with any conditions of probation.
So I gave him the maximum sentence.

This -- this recommendation by the attorney general’s office, I
mean, that’s -- I’m not sure that this will work unless Mr. -- we may
be back here on a motion to revoke probation if that -- if he continues
to threaten someone, but I’m going to follow the recommendation that
the attorney general’s office had made, and the Court sentences the
defendant to a term of seven years of which three of the seven are to
be suspended. He’s placed on probation for a five-year period of time
after his release, and the conditions of probation are as outlined in the
prepared order by the attorney general’s office.

This is another chance for -- at some period of time for him to
be released before the ten years is up. If you continue -- and -- and,
Mr. Lafleur, I’ve told you this in court before: If you continue to
threaten and insult court officials that your suspended sentence is not
available for you. Any part of a sentence cannot be suspended if
you’re not going to abide by the conditions.

So with that in mind, the sentence of the -- I follow all the
recommendations of the -- of the attorney general’s office. I’ve
changed the date on it ’cause it was set for February but Concordia
did not transport him here for the date and the time, but we had all
come before. They brought him yesterday. He’s here today. It’s
completed. I have signed that, and I have all the other orders in here,
and I dated it today, the 9th of March, 2017, and that will be the order
of the Court.

The record provides an explanation for both the prior sentence and the

current sentence, including the thinking behind the term of probation. The

transcript of the rehearing reveals a correction to the seven year sentence expressed

above when the defense counsel stated: “I think that what you orally stated was his

sentence doesn’t conform with this order[.]” To which the trial judge responded:

“Ten years hard labor of which three are suspended.” Thus, the trial court

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sentenced him to ten years at hard labor with three years suspended, not seven

years with a three-year suspended sentence.

The third Lisotta factor1 is a survey of sentences for similar crimes in this

and other courts. However, the legislature amended La.R.S. 14:37.4 in 2012 to

increase the maximum penalty from five years to ten years. The only case we have

found under the newer sentencing regime is the prior appeal of the present case.

When five years was the maximum sentence, various cases approved maximum or

near-maximum sentences: State v. Fomond, 05-540 (La.App. 3 Cir. 1/18/06), 921

So.2d 1103 (four years each on two concurrent counts); State v. Jackson, 43,818

(La.App. 2 Cir. 1/14/09), 1 So.3d 841 (four years and three months); and State v.

Johnson 39,813 (La.App. 2 Cir. 8/17/05), 908 So.2d 1261 (five years). We also

note State v. Qualls, 40,630, p. 36 (La.App. 2 Cir. 1/27/06), 921 So.2d 226, 248, a

habitual offender case in which the underlying offense was a violation of La.R.S.

14:37.4 (ten years for defendant who had “chronic difficulties with obeying the

law” and discharged a weapon near a large crowd).

Looking to the trial court’s reasoning, we note that if Defendant refrains

from illegal conduct after he is released, he could serve seven years in prison, three

years short of the maximum. We do not find Defendant’s sentence excessive.

DECREE

Defendant’s new sentence is affirmed. However, the trial court is instructed

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

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

1
State v. Lisotta, 98-648 (La.App. 5 Cir. 12/16/98), 726 So.2d 57, writ denied, 99-433 (La.
6/25/99), 745 So.2d 1183 (cited above in Brannon, 971 So.2d 511).

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this opinion and to file written proof in the record that Defendant received the

notice.

AFFIRMED WITH INSTRUCTIONS.

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

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STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

17-284

STATE OF LOUISIANA

VERSUS

DANIAL LEWAYNE LAFLEUR
-AKA- DANIEL LAFLEUR
-AKA- DANIEL LEE LAFLEUR
-AKA- DANIAL LAFLEUR

Pickett, J., dissents and assigns reasons.

In State v. Lafleur, 16-467 (La.App. 3 Cir. 1/14/17), 209 So.3d 941, this

court found this defendant’s ten year sentence to be constitutionally excessive. As

a result, we vacated the sentence, ordering:

[W]e vacate the sentences and remand the case to the trial court for
resentencing to consider Defendant’s mental illness at the time of the
offense as a mitigating factor.

On remand, the trial court resentenced the defendant, but the record before us

reflects the trial court did not take the defendant’s mental illness at the time of the

offense into account when resentencing the defendant. Therefore, I would again

vacate the defendant’s sentence and remand to the trial court to comply with this

court’s instructions.