State of Louisiana v. Dudley Melancon, Jr. -Aka- Dudley Melancon

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

17-944

STATE OF LOUISIANA

VERSUS

DUDLEY MELANCON, JR.
-AKA- DUDLEY MELANCON

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 20942-16
HONORABLE DAVID ALEXANDER RITCHIE, DISTRICT JUDGE

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SHANNON J. GREMILLION
JUDGE

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Court composed of Shannon J. Gremillion, Phyllis M. Keaty, and D. Kent Savoie,
Judges.

CONVICTION AND SENTENCE AFFIRMED.

John F. DeRosier
Fourteenth Judicial District Attorney
Carla S. Sigler
Assistant District Attorney
Elizabeth B. Hollins
Assistant District Attorney
901 Lakeshore Drive, Suite 800
Lake Charles, LA 70601
(337) 437-3400
COUNSEL FOR APPELLEE:
State of Louisiana

Paula C. Marx
Louisiana Appellate Project
P. O. Box 82389
Lafayette, LA 70598-2389
(337) 991-9757
COUNSEL FOR DEFENDANT/APPELLANT:
Dudley Melancon, Jr.

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GREMILLION, Judge.

Defendant, Dudley Melancon Jr., was charged as a habitual offender on

December 27, 2016. The bill of information alleged Defendant was previously

convicted of second degree battery, a violation of La.R.S. 14:34.1, on March 9, 2009,

and of simple robbery, violations of La.R.S. 14:65, on September 15, 2015, and on

August 31, 2016. 1 The August 31, 2016 conviction for simple robbery is now

pending before this court in docket number 17-943. All three felonies are statutorily

identified as crimes of violence. La.R.S. 14:2(B)(6) and (23).

At the March 24, 2017 hearing on the habitual offender bill, appointed counsel

requested the trial court defer the matter pending appellate resolution of both simple

robbery convictions. The trial court denied the request and sentenced Defendant to

life imprisonment without benefit of probation, parole, or suspension of sentence.

Defendant filed a pro se motion to reconsider his sentence on May 5, 2017,

on grounds his September 29, 2015 conviction in St. Landry Parish was the subject

of a pending appeal. The trial court denied the motion in written reasons on August

14, 2017. Defendant now seeks review of his habitual offender adjudication and his

statutorily-mandated life sentence.

ASSIGNMENT OF ERROR NUMBER ONE

Defendant argues the trial court erred in sentencing him to life in prison

without benefit of probation, parole, or suspension of sentence where his predicate

offenses are simple robbery and second degree battery, with imposed sentences of

no more than seven years at hard labor. Defendant presented no witnesses at the

habitual offender hearing.

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This court’s opinion in State v. Melancon, 16-191 (La.App. 3 Cir. 12/7/16), 208 So.3d
400, writ denied, 17-26 (La. 9/15/17), 225 So.3d 485, shows the date of one of Defendant’s simple
robbery convictions as September 29, 2015.

Louisiana Revised Statutes 15:529.1(A)(3)(b) provides that a third felony

offender “shall be imprisoned for the remainder of his natural life, without benefit

of parole, probation, or suspension of sentence” when the three felonies are classified

as crimes of violence pursuant to La.R.S. 14:2(B). Simple robbery and second

degree battery are classified as crimes of violence. La.R.S. 14:2(B)(23) and (6).

Thus, La.R.S. 15:529.1 requires Defendant to be sentenced to life imprisonment

without benefits.

Although a trial court should give great deference to a statutory sentence, it

may:

declare a sentence excessive under Article I, Section 20 of the
Louisiana Constitution, although it falls within the statutory limits
provided by the Legislature. State v. Sepulvado, 367 So.2d 762, 767
(La.1979). In State v. Dorthey, supra, this Court recognized that this
power extends to the minimum sentences mandated by the Habitual
Offender Law. Id. at 1280-81. However, this power should be exercised
only when the court is clearly and firmly convinced that the minimum
sentence is excessive.

State v. Johnson, 97-1906, p. 6 (La. 3/4/98), 709 So.2d 672, 676. The trial court

may only depart from the statutory minimum “if it finds that there is clear and

convincing evidence” to rebut a “presumption of constitutionality.” Id. The non-

violent nature of a defendant’s criminal history by itself does not rebut that

presumption. In order for a defendant to rebut the presumption, he must clearly and

convincingly show that:

[he] is exceptional, which in this context means that
because of unusual circumstances this defendant is a
victim of the legislature's failure to assign sentences that
are meaningfully tailored to the culpability of the offender,
the gravity of the offense, and the circumstances of the
case.

Young, 94-1636 at pp. 5-6, 663 So.2d at 528. (Plotkin, J., concurring).

Further, “the trial judge must also keep in mind the goals of the Habitual Offender

Law . . . to deter and punish recidivism.” Johnson, 709 So.2d at 677. Once the trial
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court determines that a sentence is excessive, it “must sentence the defendant to the

longest sentence which is not constitutionally excessive . . . . [and] articulate specific

reasons why the sentence he imposes instead of the statutory mandatory minimum

is the longest sentence which is not excessive under the Louisiana Constitution.” Id.

The Johnson court determined the defendant did not bear his burden of proving by

clear and convincing evidence that his sentence was excessive, and it remanded the

matter for resentencing to the statutorily-mandated term.

Defendant pled guilty to second degree battery in Lafayette Parish and was

sentenced to five years at hard labor on March 9, 2009, as the result of an incident

on November 1, 2008. Lieutenant Judith Estorge of the Lafayette Police Department

testified that Defendant ordered a gunman to shoot the victim during an attempted

drug deal. When the victim unsuccessfully tried to exchange a watch and money for

drugs, Defendant told the shooter, “That’s bull shit. Pop him.” Lieutenant Estorge

testified the victim was in the driver’s seat of a vehicle, and he had a passenger with

him. As he drove away from the scene, he was hit twice in the back.

According to the plea agreement, the sentence was to run concurrently to a

sentence on a prior conviction for aggravated assault, a misdemeanor.

Apparently, Defendant was placed on probation for second degree battery;

documents submitted during the habitual offender hearing showed his probation was

revoked on July 21, 2009.

Defendant was charged with first degree robbery in St. Landry Parish as the

result of an incident on December 30, 2013. He drove a getaway car for another

man who gave a note to a truck stop casino cashier, demanded money, and robbed

her of approximately $1,800. This was almost the exact amount found on Defendant

at the time of his arrest. State v. Melancon, 16-191 (La.App. 3 Cir. 12/7/16), 208

So.3d 400, writ denied, 17-26 (La. 9/15/17), 225 So.3d 485. He was convicted by a
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jury on September 29, 2015, of simple robbery (as a principal) and sentenced to five

years at hard labor.

At the March 24, 2017 habitual offender hearing, however, Glen Marcantel of

the St. Landry Parish District Attorney’s Office testified he prosecuted Defendant,

who “went into a casino and he presented a cashier with a note saying give me

everything or you’ll be dead, something to that effect.” No evidence was submitted

on Defendant’s behalf to show this court’s opinion portrayed a different set of facts.

Additionally, Angela Aymond of the Probation and Parole Department testified at

the hearing that Defendant voluntarily revoked his parole after he was arrested on

the St. Landry Parish charge.

Defendant was next charged with first degree robbery in Calcasieu Parish after

an incident on May 7, 2014. He robbed the victim of a bank bag and its contents.

He never contested the fact he committed a simple robbery; he went to trial to defend

the allegation that he led the victim to believe he had a dangerous weapon. A jury

rendered a responsive verdict of guilty of simple robbery on August 31, 2016. The

trial court sentenced Defendant to serve seven years at hard labor, with credit for

time served and to run concurrently to any other sentence Defendant may have been

serving at the time. The conviction led to the filing of the habitual offender bill

seeking to adjudicate Defendant a third felony offender.

At the habitual offender hearing, Defendant argued for a downward departure

from the mandatory life sentence pursuant to State v. Dorthey, 623 So.2d 1276

(La.1993). He noted that he was never proven to have a weapon in any of the three

crimes. Further, he contended his life imprisonment would impose an undue

financial burden on Louisiana taxpayers. While he believed the legislative purpose

would be served by sentencing him “to a lengthy prison sentence,” he thought a life

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sentence would be excessive, one that shocks the conscience, and “simply

vengeance[.]” He offered no witness testimony or any other evidence.

The State, on the other hand, noted the plain language of the habitual offender

statute that requires a life sentence after the third felony involving a crime of

violence. Counsel noted Defendant’s willingness to instruct his accomplice to kill a

victim who was actually shot twice. He noted Defendant had been incarcerated

much of the time between the predicate offenses.

Defendant cites State v. Wilson, 37,555 (La.App. 2 Cir. 11/6/03), 859 So.2d

957, writ denied, 03-3232 (La. 6/4/04), 876 So.2d 73, to support his argument for a

less-than-life sentence. The defendant in Wilson was convicted of first degree

robbery as his fourth felony offense. However, his three prior felonies were non-

violent crimes for issuing worthless checks and for illegal possession of stolen

things. Those offenses led to sentences of six months, ten months, and two years.

The six-month sentence and the two-year sentence were suspended and revoked for

failure to report to the probation officer, and the ten-month sentence was ordered to

be served concurrently. The defendant was forty-two years old and homeless. He

was depressed about the death of his son in a train accident approximately nine

months prior to the robbery. The defendant had a history of drug and alcohol abuse.

He was drunk when he committed the robbery, and he “felt ‘hopeless.’” Id. at 964.

His victim never felt threatened by him.

The second circuit found “a sentence less than life would afford him at least

some opportunity to overcome his problems while incarcerated and offer him a

modicum of hope.” Id. The court considered the taxpayer cost of life imprisonment

would only increase as the defendant aged. Based on “clear and convincing evidence

that this defendant is a victim of the legislature’s failure to assign sentences that are

meaningfully tailored to the culpability of the offender, the gravity of the offense,
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and the circumstances of the case[,]” the court vacated his life sentence and

remanded the matter to the trial court for resentencing. Id.

Defendant’s situation here is distinguishable from Wilson, 859 So.2d 957.

Defendant, twenty-nine years old, merely argued the financial burden on the

taxpayers is too great to support a life sentence. He offered no evidence to show he

was exceptional or the product of any unusual circumstances. In the second degree

battery conviction, the victim and his passenger were placed in great danger by the

actions of Defendant and his accomplice. Defendant apparently received probation

as a result of this violent crime, but he failed to take advantage of that opportunity

to change his life. Defendant acted as a principal to a casino robbery during his

second felony, the first simple robbery offense. Defendant’s victim in his third

felony, another simple robbery less than six months after the casino robbery, testified

that Defendant said he was going to kill her. She said, “He made me believe that I

was gonna [sic] die.”

Accordingly, Defendant has shown no justification for a downward departure

from the mandatory life sentence required for a third felony offender convicted of

three crimes of violence.

ASSIGNMENT OF ERROR NUMBER TWO

Defendant also contends the trial court erred in denying his motion to continue

the habitual offender hearing and sentencing. He claims the trial court should have

granted a continuance to protect his rights.

A discussion occurred at the beginning of the hearing about who actually

represented Defendant. A representative of Defendant’s previously-hired counsel

explained a fee dispute had arisen between counsel and Defendant’s mother. The

trial court noted that the Public Defender’s Office was appointed prior to the hearing,

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and he felt that appointment resolved the issue of who represented Defendant at the

hearing.

Appointed counsel then asked the trial court to defer the hearing pending

resolution of Defendant’s writ application to the Louisiana Supreme Court

concerning his St. Landry Parish conviction for simple robbery. The trial court

refused to delay the hearing for that purpose and noted Defendant’s objection.

Defendant never indicated any other reason to continue the hearing. In his

appeal, he identifies no problem with his representation, no rights violated by going

forward with the hearing, and no resulting prejudice. Since that hearing, the

Louisiana Supreme Court has denied Defendant’s writ application on the first simple

robbery conviction. Melancon, 225 So.3d 485.

Defendant has failed to show how any of his rights were denied or how any

prejudice resulted from the failure to grant a continuance of the hearing. This

assignment of error lacks merit.

DECREE

Defendant’s adjudication as a third felony offender and his mandatory life

sentence are affirmed.

CONVICTION AND SENTENCE AFFIRMED.

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