State of Louisiana v. McKartney Young

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

17-1108

STATE OF LOUISIANA

VERSUS

MCKARTNEY YOUNG

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NOS. 18591-14 & 6713-15
HONORABLE CLAYTON DAVIS, DISTRICT JUDGE

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SHANNON J. GREMILLION
JUDGE

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Court composed of John D. Saunders, Elizabeth A. Pickett, and Shannon J.
Gremillion, Judges.

SENTENCE VACATED AND REMANDED.

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

Todd S. Clemons
Todd Clemons & Associates
1740 Ryan Street
Lake Charles, LA 70601
(337) 477-0000
COUNSEL FOR DEFENDANT/APPELLEE:
McKartney Young

GREMILLION, Judge.

The State of Louisiana appeals the sentence imposed on Defendant/Appellee,

McKartney Young, who was adjudicated a third felony offender pursuant to La.R.S.

15:529.1. The State contends that the sentence was illegally lenient. For the reasons

that follow, we vacate Defendant’s sentence and remand the matter to the trial court

for resentencing in accordance with this opinion.

FACTS

Defendant was indicted by a Calcasieu Parish grand jury with Possession of a

Controlled Dangerous Substance—Schedule II (cocaine) with intent to distribute, a

violation of La.R.S. 40:967, and Possession of a Controlled Dangerous Substance—

Schedule V (codeine) with intent to distribute, a violation of La.R.S. 40:970. Plea

negotiations ensued Defendant’s entry of a plea of not guilty. Despite the fact that he

had not reached an agreement with the State on the recommended sentences,

Defendant entered a guilty plea and was sentenced to five years imprisonment on each

charge. 1 These sentences were to run concurrently with each other and with a

probation violation he was serving at the time.

The State then charged Defendant with being a fourth habitual offender

pursuant to La.R.S. 15:529.1. Defendant denied the charge. At the hearing on the

habitual offender charge, the trial court adjudicated Defendant a habitual offender,

vacated the sentences imposed at Defendant’s entry of the guilty pleas, and sentenced

Defendant to twenty years imprisonment without benefit or probation, parole, or

suspension of sentence.

Defendant filed a motion for new trial and reconsideration of sentence, which

the trial court granted. At the new trial on the habitual offender bill, the State

introduced evidence to prove that Defendant had been convicted in 2005 of simple

1
During the hearing pursuant to Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709 (1969), the
State announced its intention to charge Defendant as a habitual offender. Defendant nonetheless
pleaded guilty.

burglary and possession of a Controlled Dangerous Substance—Schedule IV, in 2011

of possession of a Controlled Dangerous Substance—Schedule II, and of the 2015

guilty pleas referenced above. According to the testimony of Defendant’s attorney at

the time of his plea, while the State regularly threatened defendants with being

charged as habitual offenders if they rejected a plea offer, Defendant’s case was the

first and only time he had actually seen the State carry through with such a threat

following the entry of a guilty plea. Testimony was also adduced that Defendant had

been charged with involvement in a homicide, but the State had dismissed the charges

for lack of evidence. That attorney also testified that the State’s offer of

recommending a sentence of twenty years before the pleas were taken was so high

because the State felt that Defendant “had beat a murder charge.”2 Defendant also

pointed out to the trial court that the relevant statute, La.R.S. 15:529.1, had been

amended in 2017 to lessen the minimum sentence for a fourth and subsequent non-

violent offender from thirty years to twenty years. See 2017 La. Acts No. 82.

The trial court again adjudicated Defendant a habitual offender. The following

discussion occurred:

THE DEFENDANT:

Judge Davis. I’m sorry. Yeah. I’m just here just asking for
one more chance to show leniency, man. I just had a two-week-old
kid. And the things I did in the past, I ain’t going to do them no
more, and I’m just asking you for one more chance.

MR. CLEMONS:

And, judge, I would like to -- my client’s, also, father is
dying with stage 3 -- stage 4 cancer, judge. I just wanted to point
that out to the Court.

THE COURT:
Well, I am convinced based on the testimony and based on,
you know, things -- information swirls around. Somehow, I
remember, some sort, along the way the hint or the suggestion that
the murder charge incident was driving a lot of the activities in this

2
Defendant has been charged again with the homicide. At the time of the hearing of the new
trial on the habitual offender charge, a motion to quash the charge was pending.
2

case, you know, on these unrelated drug charges. Plus we do have
testimony from the last hearing that -- from the attorney that
confirmed that. That’s very troubling that that would be a driving
force on unrelated drug charges that are nonviolent.

I accept that, and that’s part of my decision today to
maintain the prior 5 years DOC on all matters to run concurrent,
that along with the compelling argument made regarding the
change in the law.

Obviously, we can’t go back and apply that retroactively,
but I wish we could because -- the legislature has done that
because it makes so much sense to reduce the timeline or
timeframe to allow or to prevent prosecutors from imposing this
Habitual Offender Law. And, finally, the obvious facts that these
are all drug related, they’re not crimes of violence, that is a
compelling reason as well.

So I’m comfortable that this is appropriate, the right thing to
do. It’s constitutionally mandated for the Court to take note of all
these matters and avoid an excessive sentence under these
circumstances. Okay?

MR. GASPARD:

And, Judge, just for the record, is he -- he’s being sentenced
as to both charges, the possession of CDS II of intent to distribute
cocaine and --

THE COURT:

Well, you know, on that matter, that’s -- that’s an odd -- an
odd set of circumstances. I don’t -- pardon me?

DEPUTY CLERK:

Where are those other charges that we’re talking about,
because the only thing we have is the third and subsequent --

MR. GASPARD:

Oh, I’m sorry.

DEPUTY CLERK:

-- habitual offender?

MR. GASPARD:

It’s -- it’s going to be under a different docket number that
he pled to.

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DEPUTY CLERK:

What is it?

MR. GASPARD:

It’s going to be under -- let’s see -- docket No. 18591-14,
that’s what he had pled to, and then that was the underlying --some
of the underlying charges for the habitual offender bill.

THE COURT:

From --

MR. CLEMONS:

And then you --
THE COURT:

-- a technical standpoint --

MR. CLEMONS:

-- vacated that sentence.

THE COURT:

-- all I’m doing is sentencing him under the habitual --

MR. CLEMONS:

Right.

THE COURT:

-- one -- one matter; is that right? I’m a little --

MR. CLEMONS:

The record is really confusing, Judge, but I just think what --
if it’s clear that your sentence is 5 years concurrent, even if it’s 2
matters, I think the record will be clear, and I think that’s what I
heard you say, so.

THE COURT:

Well, the intent is that on everything that he faces, including
the habitual offender bill, that it’s going to be 5 years DOC to run
concurrent with -- to run concurrent with --

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MR. CLEMONS:

With each other, but you also said the probation. Previous,
you said probation violation concurrent as well. That’s what you
said originally.

THE COURT:

Well, I -- my -- yes.

MR. CLEMONS:

I just want to have the record clear.

THE COURT:

If that’s in the mix, yes.

MR. CLEMONS:

Right. I just wanted to have the record to be clear, even if
it’s still in the mix, which you’re right, it may be a moot point
since you already said it once, so.

And, Judge, if we can just ask the record to reflect --

THE COURT:

Hang on. Let’s make sure -- are you okay?

DEPUTY CLERK:

Okay. what is the sentence for the habitual offender?

THE COURT:

5 years DOC to run concurrent with any other probation
violations or --

MR. CLEMONS:

Drug sentences.

THE COURT:

-- prior sentences on this defendant or pending.

MR. CLEMONS:

Drug case, right.

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THE COURT:

Any sentence he is serving --

MR. CLEMONS:

Before you, right.

THE COURT:

-- before me --

MR. CLEMONS:

Right.

THE COURT:

-- is concurrent with this habitual offender sentence that I
am imposing.

MR. CLEMONS:

And, Judge, I would just ask can you make the record clear
that he receive credit for all time served under these docket
numbers?

THE COURT:

Yes, sir.

MR. CLEMONS:

Thank you.

MR. GASPARD:

I’d like to note the State’s objection for the record, Judge --

THE COURT:

Yes, sir.

MR. GASPARD:

-- give notice for appeal and request a transcript of the
hearing.

THE COURT:

Yes, sir.

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DEPUTY CLERK:

And then credit for time served -- what all docket numbers
are you asking for? He said for all docket numbers.

MR. CLEMONS:

Right. I can give you the ones I have, the 18591-14.

DEPUTY CLERK:

That’s going to be after --

MR. CLEMONS:

Then we have the 6713-15 is the habitual offender. I think
that may be the only two.

THE COURT:

That makes sense. But back to the issue of cocaine versus
codeine, he pled to both.

MR. CLEMONS:

Correct.

THE COURT:

So the idea that the Court should go back and cherry-pick
one or the other and ignore one or the other doesn’t make much
sense to me. I understand why, because codeine is much less than
the cocaine, but that’s just -- that would simply be the Court
manipulating what he pled guilty to. The cocaine is 2 to 30.
Codeine is zero to 5.

MR. CLEMONS:

Correct.

THE COURT:

In any event, it’s going to be a maximum of 5 years DOC
concurrent, credit for time served on the habitual so --

MR. CLEMONS:

Thank you.

THE COURT:

-- for the reasons I’ve already stated.

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DEPUTY CLERK:

(Inaudible.)

THE COURT:

Yeah. I’m not disturbing anything I’ve already done, just --
I’m just running concurrent. The sentencing -- the sentence on that
-- on that -- on February 12 (sp) is, what, 5 years?

MR. CLEMONS:

5 years, correct.

THE COURT:

Yeah.

The State now appeals the sentence, which it contends is illegally lenient.

ANALYSIS

The hearing on the adjudication took place in September 2017. Until

November 1, 2017, the minimum sentence for a third and subsequent non-violent

habitual offender would have been twenty years for possession of Controlled

Dangerous Substance—Schedule II with intent to distribute. La.R.S.

15:529.1(A)(3)(a). The constitutionality of a mandatory minimum sentence is

presumed and rebutting that presumption by clear and convincing evidence is a

defendant’s burden. State v. Johnson, 97-1906 (La. 3/4/98), 709 so.2d 672. A

downward departure from the statutory minimum sentence requires that a defendant

prove that, in his unusual circumstance, the statutory minimum sentence is not crafted

to address his culpability, the seriousness of the offense, or the particular

circumstances of the case. Id. Even given those findings, a trial court is not

empowered to pass whatever sentence it feels is appropriate; it “must sentence the

defendant to the longest sentence which is not constitutionally excessive. This

requires a sentencing judge to articulate specific reasons why the sentence he

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

at 677.

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The record in this matter lacks sufficient clarity to allow us to adequately

review this matter to determine what specific findings the trial court found were

proven by Defendant. Based upon the colloquy quoted above, it appears that the trial

court may have been swayed by Defendant’s contention that the State vindictively

prosecuted him on the two possession charges, but that is not clear. The trial court

may have been influenced by Defendant’s status as a new father, but that, too, is

unclear. Defendant’s father’s health may have played a role in the trial court’s

downward departure, but whether it did remains a matter of conjecture. The trial

court did not articulate its reasons adequately. Furthermore, La.R.S. 15:529.1 requires

that a specific sentence be enhanced.

Therefore, we vacate Defendant’s sentence and remand the matter to the trial

court for resentencing. The trial court is instructed to provide specific reasons for

sentencing, and said reasons should include any factors supporting a downward

departure from the statutory minimum and any facts that demonstrate Defendant is

“exceptional” so that such a downward deviation is appropriate. Further, the trial

court must state which underlying sentence is being enhanced under the habitual

offender law.

DECREE

Defendant’s sentence is vacated. This matter is remanded to the trial court for

resentencing. The trial court is instructed to articulate with specificity the findings of

fact supporting any downward departure from the statutory minimum sentence

imposed pursuant to La.R.S. 15:529.1, as it provided at the time of sentencing, in

accordance with this opinion. The trial court is also instructed to state which sentence

is being enhanced pursuant to La.R.S. 15:529.1.

SENTENCE VACATED AND REMANDED.

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