State of Louisiana v. Ramon L. Ellender

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

18-891

STATE OF LOUISIANA

VERSUS

RAMON L. ELLENDER

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APPEAL FROM THE
THIRTY-SIXTH JUDICIAL DISTRICT COURT
PARISH OF BEAUREGARD, NO. CR-2016-37
HONORABLE C. KERRY ANDERSON, DISTRICT JUDGE

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ULYSSES GENE THIBODEAUX
CHIEF JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders, and
Phyllis M. Keaty, Judges.

CONVICTION AND SENTENCE AFFIRMED.

James R. Lestage
District Attorney – 36th Judicial District
Richard Alan Morton
Assistant District Attorney – 36th Judicial District
124 South Stewart Street
DeRidder, LA 70634
Telephone: (337) 463-5578
COUNSEL FOR:
Plaintiff/Appellee - State of Louisiana

Martin E. Regan, Jr.
Barry S. Ranshi
Regan Law, P.L.C.
2125 St Charles Avenue
New Orleans, LA 70130
Telephone: (504) 522-7260
COUNSEL FOR:
Defendant/Appellant - Ramon L. Ellender

THIBODEAUX, Chief Judge.

Defendant, Ramon L. Ellender, appeals his conviction by a six-person

jury for his fifth offense of driving while intoxicated. He was sentenced to fifty

years at hard labor under the habitual offender statute. His appeal focuses on

insufficiency of the evidence, excessive sentence, and an improper jury

composition.

We affirm his conviction and sentence.

I.

ISSUES

We must decide:

(1) whether there was sufficient evidence to convict
Defendant;

(2) whether the trial court deprived Defendant of a
twelve-person jury and unconstitutionally
convicted him by a six-person jury; and

(3) whether Defendant’s sentence is unconstitutionally
excessive.

II.

FACTS AND PROCEDURAL HISTORY

Defendant, Ramon L. Ellender, was charged by Bill of Information

with “Driving While Intoxicated, Fifth Offense,” in violation of La.R.S. 14:98 and

14:98.4. A six-person jury unanimously found Defendant guilty as charged. The

State filed a bill charging Defendant as a habitual offender under La.R.S. 15:529.1.

Prior to jury selection, the State and Defendant stipulated to Defendant’s four prior

DWI convictions, which were not subject to the ten-year cleansing period.

Defendant filed a “Motion for Arrest of Judgment,” alleging that his

conviction should be reversed and that he should receive a new, twelve-person jury

trial because La.R.S. 14:98.4(C) requires individuals who receive probation,

parole, or suspension of sentence on a prior DWI, fourth offense, to serve a hard

labor sentence of not less than ten nor more than thirty years. The trial court found

that Defendant was properly tried by a six-person jury. In its written reasons, the

trial court noted that the State and defense counsel had discussed the makeup of the

jury prior to selection, that La.R.S. 14:98.4(C) was never discussed, and that

everyone agreed that the proper jury size was a six-person jury.

The trial court, citing State v. Brown, 11-1044 (La. 3/13/12), 85 So.3d

52, ruled that Defendant had not waived his right to object to an improper jury

composition because La.Code Crim.P. art. 859 lists errors in jury composition as a

ground for arrest of judgment, an exception to the contemporaneous objection rule.

The trial court further cited the supreme court’s ruling in State v. Dahlem, 14-1555

(La. 3/15/16), 197 So.3d 676, which held that a similarly-situated defendant was

not entitled to a twelve-person jury because the bill of information did not

specifically charge him with the sentencing provision that required a hard labor

sentence.

Defendant then filed a “Motion for New Trial,” as did his defense

counsel. Following a hearing, the trial court denied both of the motions. After a

hearing and multiple memoranda submitted by defense counsel and the State, the

trial court issued a written ruling and adjudicated Defendant “a fifth felony

offender subject to sentencing under La.R.S. 15:529.1.” Subsequently, Defendant

was sentenced to fifty years at hard labor, the first two years to be served without

benefit of probation, parole, or suspension of sentence; the remainder to be served

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without probation or suspension of sentence; and the sentence to run consecutively

with any other sentence that Defendant may have. Defendant was also fined

$5,000 as required by La.R.S. 14:98.4.

Defendant filed a “Motion to Reconsider Sentence,” alleging that his

sentence was “excessive and based, at least partially, on evidence[] in dispute.”

The trial court denied the motion. The State also filed a “Motion to Reconsider

Sentence,” arguing that Defendant should have been sentenced under the habitual

offender law as it stood when the offense was committed in 2015, not under the

2017 amendments to the law. Following a hearing, the trial court noted that

Defendant’s sentence, which remained unchanged, was imposed in accordance

with the language of La.R.S. 15:529.1 as it stood at the time of the offense. The

trial court noted:

So what that does for Mr. Ellender’s case is it
changes the sentencing range in his case from 20 to 60
years under the habitual offender law that took effect by
the 2017 amendments to go back to the law in effect as of
October of 2015, which makes the habitual offender
sentencing range 20 to life.

The other thing it does, as long as the bill of
information was filed prior to November 1, 2017, is it
changes the cleansing period back to the ten-year prior
cleansing period as opposed to the five-year cleansing
period which took effect as of the 2017 amendment. And
in this case the habitual offender bill of information was
filed prior to that date; and, therefore, the ten-year
cleansing period applies to Mr. Ellender’s case. And
most, if not all, of the legal arguments raised by the
defense as to some of the prior convictions being within
ten years but not within five years of one another is now
a moot issue in the Court’s opinion legally; because the
cleansing period is back to one of ten years as it applies
to Mr. Ellender’s case.

III.

3

LAW AND DISCUSSION

Evidence and Testimony

The State’s first witness was Ms. Mary Benson. Ms. Benson testified

that on October 9, 2015, she was standing on the sidewalk on West North Street,

when she saw a red truck speed past her followed by a “little grey car.” She said

she believed the grey car rear-ended the red truck before the car turned around and

sped past her going in the opposite direction. She said she saw the grey car hit

multiple signs near or on the road both times it passed, noting parts of the car came

off when the vehicle hit the signs. Ms. Benson testified that there were signs on

both sides of the street, noting “[w]hen he went up the street he knocked that sign

down; and when he c[a]me back down the other side, on [the] other side where the

school bus c[a]me down, the school bus sign, they tore that sign down; and that

church sign, they tore it down.” Ms. Benson clarified that “the car did all the

damage.” She identified Defendant as the person driving the grey BMW shortly

after the incident, and she identified him in open court as the driver of the vehicle.

Mary Benson’s 911 Call

Ms. Benson called 911 at 6:40 p.m. and told the operator that a white

guy was driving a little BMW going around one hundred miles per hour. She

stated that the BMW hit the back of a red Ford truck, turned around at the bank,

then came back and almost tore up a woman’s car. She stated that the bottom of

the car should be torn up, and there was debris all over the road.

Ms. Benson testified that she was about twenty to twenty-five feet

away from the vehicle at the time of the incident, and she had no doubt that the

Defendant was driving the BMW, “[f]ast, flying like a bat out of hell.” Ms.

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Benson also identified Defendant in a six-man photo lineup roughly a year after the

incident. On cross-examination, Ms. Benson testified that she knew “exactly what

both [drivers] look[ed] like.” Defense counsel then introduced video from

Corporal Edward Kuzmik’s body camera when the officer first spoke with Ms.

Benson following her 911 call.

Body Camera Footage of Corporal Kuzmik

After discussing the sequence of events with Ms. Benson and the

silver car parts stuck in the broken sign, Corporal Kuzmik entered his vehicle and

proceeded to Defendant’s residence where he was met by Sergeant Davidson, who

told him they were taking Defendant to Ms. Benson for a possible identification.

Sergeant John Davidson, a patrol shift supervisor for the DeRidder

Police Department with twelve years of law enforcement experience, testified that

he was dispatched to West North Street for a hit-and-run involving a silver BMW.

He stated that he subsequently remembered a silver BMW parked on John Henry

Jones Street, about two blocks from the scene of the incident. He testified that he

and two other officers, Corporals David Stanard and Gene Clark, proceeded to

where he knew the silver BMW was parked, which was Defendant’s home.

Reserve Officer Mike Perkins also responded to Defendant’s residence shortly

thereafter. They arrived at Defendant’s residence on John Henry Jones Street less

than fifteen minutes after responding to the location of the incident on West North

Street.

Upon arriving at Defendant’s residence, they found a silver BMW

with damage matching the description of the hit-and-run. Sergeant Davidson took

photographs of the damage to the car which were later introduced into evidence.

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Sergeant Davidson testified that Defendant was the only person to make himself

known at the residence on John Henry Jones. He noted that the engine of the

BMW was still giving off heat while he was taking photos of it, indicating that it

had been recently driven. Sergeant Davidson noted that the car had damage to the

trim and front fender as well as a flat tire. He also noted that the car was still in

drive, the windows were down, and the key was still in the ignition in the “on”

position, indicating someone had turned it off just enough to kill the engine

without totally disengaging. This was corroborated by Corporal Clark. Sergeant

Davidson testified he left to assist another officer on a separate call but

subsequently observed part of Corporal Kuzmik’s interview with Defendant. He

also stated that he was familiar with Defendant from having worked a prior call

involving him, and that Defendant had previously worked around the police

department as a trustee.

Sergeant Davidson further testified that he believed Defendant was

intoxicated, because he knew what Defendant was like when he was sober, and he

was not acting sober. He testified that Defendant had an unsteady gait and that his

speech appeared “a little off” during his interview. Corporal Clark testified that

Defendant was unsteady on his feet and “had bloodshot, watery eyes . . . slurred

speech and a strong odor of alcoholic beverages.” Officer Perkins testified that

Defendant seemed off-balanced, had slurred speech, and smelled of alcohol.

Upon arrival at Defendant’s residence, Corporal Stanard approached

the trailer home and noted that the front door was wide open and that Defendant

“was completely naked, laying face-down on a couch in the living room with his

clothes to his feet.” Corporal Stanard stated that Defendant was detained,

handcuffed, and read his Miranda rights at that point. Corporal Stanard testified

6

that Defendant’s walk was unsteady and they were holding him up to keep him

from falling and injuring himself. He also noted that he could smell alcohol

coming from Defendant.

Reserve Officer Michael Perkins responded to the location of the

incident and then proceeded to John Henry Jones Street to back up Corporals

Stanard and Clark while Corporal Kuzmik spoke to the witness at the scene.

Officer Perkins testified that he placed Defendant in the back of his police unit and

escorted him to 208 West North Street, where Ms. Benson identified him as the

driver of the grey BMW that she saw hit the sign. At that time, Corporal Kuzmik

informed Defendant of his charges, and Officer Perkins transported him back to the

police department. After transporting Defendant to the police department, Officer

Perkins sat in on Corporal Kuzmik’s interview with him. Officer Perkins noted

that the interview was recorded by Corporal Kuzmik’s body camera. He testified

that Defendant never asked for an attorney or attempted to stop the interview.

Corporal Edward Kuzmik of the DeRidder Police Department’s

detective division testified that he was dispatched to the scene at 6:49 p.m., in

response to a hit-and-run and reckless-driver call. Upon his arrival, he removed

car parts and debris from the road near the intersection of Carlisle Street and North

Street. He said the sign at the intersection was completely knocked down, and a

sign for the Sweet Home Baptist Church, approximately five feet from the stop

sign, was destroyed. After speaking to Ms. Benson, Corporal Kuzmik proceeded

to Defendant’s residence. Once there, he was directed by Sergeant Davidson to

return to North Street to see if Ms. Benson identified Defendant as the driver of the

BMW she witnessed hit the signs. After Ms. Benson identified Defendant as the

driver of the BMW, Corporal Kuzmik took photos of the damage and debris on

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North Street before heading to the police department to interview Defendant.

Noting that the camera normally used to video interviews was not working,

Corporal Kuzmik testified that he recorded Defendant’s interview with his body

camera.

Defendant’s Statement to Corporal Kuzmik

Defendant’s statement, recorded on Corporal Kuzmik’s body camera,

was played for the jury and lasted roughly twelve minutes. Defendant initially told

Corporal Kuzmik he was thirty-six years old and that his date of birth was

September 19, 1949. When asked if he meant 1979, Defendant agreed. 1

Defendant put his head down while Corporal Kuzmik read him his Miranda rights

and appeared to be asleep until Corporal Kuzmik touched his shoulder. Corporal

Kuzmik asked Defendant about a scratch on his chin, which Defendant stated was

from a razor. He claimed to have shaved around two or three in the afternoon.

When asked how much he had had to drink, Defendant stated he had two bottles of

whiskey. He told Corporal Kuzmik he started drinking around 3:00 p.m. and

finished around 3:30 p.m.

Defendant stated he owned a truck and not a car multiple times while

Corporal Kuzmik tried to ask if he was driving the grey BMW, then stated, “God

Damn, I’m asking you a question. I have a truck.” He then stated the BMW was

his wife’s car and that she was driving it. Defendant was then unable to tell

Corporal Kuzmik where his wife was or why a witness identified him as driving

the BMW. He stated, “The fair answer is: I was in bed sleeping.” He then stated

1
Corporal Kuzmik testified at trial that they subsequently learned that Defendant’s date of
birth was actually September 19, 1969, and that he was forty-six, not thirty-six.

8

that he went to bed at 8:30, seemingly confused by the officers asking him if he

went to sleep at 8:30 a.m. or p.m.

When Corporal Kuzmik asked if Defendant was driving the grey

BMW that was sitting in his driveway, Defendant appeared unable to comprehend

or answer the question. Defendant acknowledged he was pretty intoxicated.

Defendant then stated he was already on parole for a fourth offense DWI and

should not be drinking. He then reiterated that he was at home sleeping.

Corporal Kuzmik identified a trio of forms used to substantiate Ms.

Benson’s subsequent identification of Defendant from a six-person photographic

lineup on December 1, 2016. Following Defendant’s statement, Corporal Kuzmik

arrested him for reckless operation, hit and run, and driving under suspension and

had him booked into the parish jail. Corporal Kuzmik testified the failure to

initially charge Defendant with a DWI was an oversight on his part.

Corporal Kuzmik noted that Defendant had a flushed face, glassy

eyes, and a “moderately strong odor of alcohol” when he first encountered him.

He also noted that during the interview, he had to wake Defendant up; that

Defendant’s speech was slurred and that both his nose and ears were flushed.

Corporal Kuzmik acknowledged telling Defendant he “was drunker than Cooter

Brown.” He also noted that Defendant believed he had gone to sleep at 8:30 p.m.

awoke at 11:45 p.m.; however, the interview was taking place at 7:25 p.m. As

with all of the other officers, Corporal Kuzmik confirmed that at no point did

Defendant ever mention any physical injuries, medical issues, or other ailments

which may have affected his speech, coordination, or ability to function. At that

point, the State rested its case and defense counsel chose not to present a case in

chief. The jury subsequently returned a unanimous verdict of guilty as charged.

9

Insufficiency of the Evidence

Defendant contends there was insufficient evidence to prove his

identity as the driver of the vehicle involved in the hit and run. Furthermore, he

contends this is a circumstantial evidence case in which the State failed “to

disprove the reasonable hypothesis that the [D]efendant got intoxicated at his

house, where the police found him.” Defendant’s characterization of his case as a

purely circumstantial evidence case is incorrect and Defendant himself told law

enforcement that he drank two bottles of whiskey between 3:00 and 3:30 p.m.,

three hours before the hit and run.

The analysis for a sufficiency claim is well settled:

When the issue of sufficiency of evidence is raised
on appeal, the critical inquiry of the reviewing court is
whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime
proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, rehearing
denied, 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126
(1979), State ex rel. Graffagnino v. King, 436 So.2d 559
(La.1983); State v. Duncan, 420 So.2d 1105 (La.1982);
State v. Moody, 393 So.2d 1212 (La.1981). It is the role
of the fact finder to weigh the respective credibility of the
witnesses, and therefore, the appellate court should not
second guess the credibility determinations of the triers
of fact beyond the sufficiency evaluations under the
Jackson standard of review. See State ex rel.
Graffagnino, 436 So.2d 559 (citing State v. Richardson,
425 So.2d 1228 (La.1983)). In order for this Court to
affirm a conviction, however, the record must reflect that
the state has satisfied its burden of proving the elements
of the crime beyond a reasonable doubt.

State v. Kennerson, 96-1518, p. 5 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367, 1371.

In order to convict an accused of driving while
intoxicated, the prosecution need only prove that
defendant was operating a vehicle and that defendant was
under the influence of alcohol or drugs. State v.
Edwards, 591 So.2d 748 (La.App. 1 Cir.1991). Some

10

behavioral manifestations, independent of any scientific
test, are sufficient to support a charge of driving while
intoxicated. Id.; State v. Pitre, 532 So.2d 424 (La.App. 1
Cir.1988), writ denied, 538 So.2d 590 (La.1989). It is
not necessary that a conviction of D.W.I. be based upon a
blood or breath alcohol test, and the observations of an
arresting officer may be sufficient to establish the
defendant’s guilt. Intoxication is an observable condition
about which a witness may testify. State v. Allen, 440
So.2d 1330 (La.1983).

State v. Iles, 96-256, pp. 7-8 (La.App. 3 Cir. 11/6/96), 684 So.2d 38, 42.

Furthermore, because Defendant was charged under La.R.S. 14:98.4

with a fourth or subsequent offense, the State was required to prove Defendant’s

prior valid convictions. However, defense counsel stipulated to the validity of

Defendant’s prior convictions. The State, therefore, only needed to prove

Defendant was operating a vehicle while under the influence of alcohol or drugs.

Ms. Benson positively identified Defendant as the driver on at least

three occasions: less than an hour after witnessing the accident, more than a year

later when she picked Defendant out of a six-person photographic lineup, and in

open court at trial. Accordingly, the State provided direct evidence Defendant was

the driver of the grey BMW when it was involved in a hit and run on North Street

at approximately 6:40 p.m.

Although Defendant attacks the State’s failure to “conduct a standard

field sobriety test, draw the [D]efendant’s blood, or even offer him the option of

taking a standard breathalyzer test,” this court has long recognized such tests are

not necessary to support a conviction for driving while intoxicated. As this court

noted in Iles, 684 So.2d at 42, “the observations of an arresting officer may be

sufficient to establish the defendant’s guilt. Intoxication is an observable condition

about which a witness may testify.” Every law enforcement officer who came into

11

contact with Defendant on October 9, 2015, testified that he exhibited

characteristics of being intoxicated when they came into contact with him around

7:00 p.m. He was described as having slurred speech and difficulty walking, and

smelling of alcohol. Furthermore, Corporal Kuzmik noted that Defendant had

glassy eyes and that both his nose and his ears were flushed.

In his statement, which was played for the jury’s benefit, Defendant

acknowledged that he was intoxicated and stated that he drank two bottles of

whiskey about three hours before he went to sleep. Furthermore, Defendant could

not accurately state his own age or date of birth and appeared to have trouble

forming coherent statements. Observations of the law enforcement officers and the

jury’s own observations of Defendant’s intoxication were more than sufficient to

find that he was intoxicated.

Finally, Defendant contends that the State failed to disprove the

hypothesis that Defendant got intoxicated at his home between the time of the hit

and run and the time that law enforcement found him asleep, naked, on his couch

less than thirty minutes later. This hypothesis was presented to the jury at trial and

rejected. Furthermore, Defendant’s own statement to police indicated that he

became intoxicated hours before the accident. Defendant’s timeline is

questionable, given his claim during the interview at 7:25 p.m. that he had gone to

sleep at 8:30 p.m., an impossibility since that time had not yet occurred; but

significantly, it evidences a state of confusion consistent with intoxication. Thus,

in “viewing the evidence in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789

(1979). Accordingly, this assignment of error lacks merit.

12

Jury Composition

Defendant contends that the trial court deprived him of his

constitutional right to due process by trying him before a six-person jury rather

than a twelve-person jury. We disagree. The Bill of Information in this case,

states that Ramon L. Ellender, on or about October 9, 2015: “Did willfully and

unlawfully violate R.S. 14:98 and R.S. 14:98.4, Driving While Intoxicated, Fifth

Offense, by the intentional operation of a motor vehicle while under the influence

of an alcoholic[] beverage[] (a felony).” The Bill of Information then outlines four

other DWI convictions: 1992 in Sulphur, 1996 in Lake Charles, 2002 in

DeRidder, and 2012 in DeRidder.

At the time of Defendant’s 2015 offense, La.R.S. 14:98 provided in

pertinent part:

A. (1) The crime of operating a vehicle while
intoxicated is the operating of any motor vehicle, aircraft,
watercraft, vessel, or other means of conveyance when
any of the following conditions exist:

(a) The operator is under the influence of alcoholic
beverages.

Pursuant to La.R.S. 14:98.4, enacted in 2015 (emphasis added), a

fourth offense violation was a relative felony, punishable by imprisonment with or

without hard labor:

A. (1) Except as modified by Subparagraphs (a)
and (b) of this Paragraph, or as provided by Subsections
B and C of this Section, on a conviction of a fourth or
subsequent offense violation of R.S. 14:98, regardless of
whether the fourth offense occurred before or after an
earlier conviction, the offender shall be fined five
thousand dollars and imprisoned, with or without hard
labor, for not less than ten years nor more than thirty
years. Two years of the sentence of imprisonment shall
be imposed without benefit of parole, probation, or
suspension of sentence. Except in compliance with R.S.

13

14:98.5(B)(1), the mandatory minimum sentence cannot
be served on home incarceration.

Relative felonies are tried by a six-person jury, pursuant to La.Const.

art. 1, § 17, which in 2015 provided in pertinent part (emphasis added):

(A) Jury Trial in Criminal Cases. A criminal
case in which the punishment may be capital shall be
tried before a jury of twelve persons, all of whom must
concur to render a verdict. A case in which the
punishment is necessarily confinement at hard labor
shall be tried before a jury of twelve persons, ten of
whom must concur to render a verdict. A case in which
the punishment may be confinement at hard labor or
confinement without hard labor for more than six months
shall be tried before a jury of six persons, all of whom
must concur to render a verdict.

Thus, according to the Bill of Information, Defendant was charged

with a relative felony that required a six-person jury under the constitution.

Defendant contends, however, that because he was on parole for a prior DWI

fourth offense when he was arrested for his current conviction, La.R.S. 14:98.4(C)

requires him to serve his time at hard labor, which requires a twelve-person jury.

Pursuant to La.R.S. 14:98.4(C) (emphasis added):

If the offender has previously received the benefit
of parole, probation, or suspension of sentence on a
conviction of a fourth or subsequent offense violation of
R.S. 14:98, then on a subsequent conviction of a fourth or
subsequent offense, notwithstanding any other provision
of law to the contrary and regardless of whether the
offense occurred before or after an earlier conviction, the
offender shall be fined five thousand dollars and
imprisoned at hard labor for not less than ten nor more
than thirty years. No part of the sentence shall be
imposed with benefit of parole, probation, or suspension
of sentence, and no portion of the sentence shall be
imposed concurrently with the remaining balance of any
sentence to be served for a prior conviction for any
offense.

14

Neither the Bill of Information nor any discussion by the parties or the

trial court suggested the invocation of La.R.S. 14:98.4(C). In fact, all agreed and

worked together to select the six-person jury required under the indicting language.

Notwithstanding, Defendant cites State v. Jenkins, 406 So.2d 1352

(La.1981) to support his contention that his conviction is null based on an

insufficient jury. The Jenkins court stated, “We have consistently held that the

verdict returned by a jury composed of fewer than the correct number of jurors is

null.” Id. at 1353. Defendant also argues State v. Johnson, 10-196 (La.App. 3 Cir.

11/24/10), 52 So.3d 273, where the defendant was charged and convicted of DWI

fourth offense in violation of La.R.S. 14:98. There, the defendant contested his

conviction on the grounds that trying him before a six-person jury was a nullity, as

La.R.S. 14:98(E)(4)(a) at the time required that a defendant, who had previously

been required to participate in substance abuse treatment or home incarceration, be

sentenced to mandatory hard labor. A panel of this court held:

Because Defendant, charged with fourth offense
DWI, was previously required to participate in substance
abuse treatment and was placed on home incarceration
the law mandates he be tried before a jury of twelve
persons. As Defendant was tried before a jury of only six
persons, contrary to the provisions of our State
Constitution requiring trial by twelve jurors for his
offense, his conviction is null and is hereby set aside; his
sentence is vacated; and the matter is remanded for a new
trial. Defendant’s assignment of error asserting his
sentence is excessive is moot.

Johnson, 52 So.3d at 275.

Based upon Jenkins and Johnson, Defendant’s contention that he

should have received a new trial before a twelve-person jury would appear to have

merit. However, the supreme court has since created an exception to the rule that

this court applied in Johnson; namely, where as here, a defendant is ultimately

15

sentenced as a habitual offender, the empaneling of a six-person jury before trial

does not lead to a reversal if the Bill of Information on its face indicates only a

relative felony. More specifically, in the very similar case of State v. Dahlem, 197

So.3d 676, the Louisiana Supreme Court articulated as follows (emphasis added):

It is imperative to note that the bill of information
sets the parameters and dictates the mode of trial. Based
solely upon the information on the face of the bill of
information, the defendant in this case was properly tried
before a six person jury, as the sentencing range for a
fourth offense DWI, as listed in this particular bill of
information, is not mandatory hard labor. Specifically,
La. R.S. 14:98(E)(1)(a), in effect at the time of
defendant’s offense, provided that operating a vehicle
while intoxicated, fourth offense, carried the following
penalty range with or without hard labor:

. . . on a conviction of a fourth or
subsequent offense, notwithstanding any
other provision of law to the contrary and
regardless of whether the fourth offense
occurred before or after an earlier
conviction, the offender shall be
imprisoned with or without hard labor for
not less than ten years nor more than thirty
years and shall be fined five thousand
dollars. Two years of the sentence of
imprisonment shall be imposed without
benefit of probation, parole, or suspension of
sentence. (emphasis added).

Given that the enhanced sentence to which the
evidence made defendant subject was not apparent on the
face of the bill of information, we specifically decline to
create a duty requiring a trial judge to look beyond the
face of the bill of information or the indictment, and the
Title 14 penalty range. Nor is it the responsibility of a
trial judge to interrogate the district attorney or
independently investigate as to what evidence might be
introduced that would require a different jury
composition at the outset of a case. Doing so would be
inappropriate and contrary to the efficient administration
of criminal justice, and effectively result in bad policy.

Id. at 683.

16

In Dahlem, the supreme court stated in a footnote:

We agree with Judge Kuhn’s concurrence in the
court of appeal’s opinion, which states:

....[T]rial of the defendant by a six-person
jury was dictated by law in this case. The
district attorney, in the exercise of his
discretion, elected to charge the defendant
pursuant to La. R.S. 14:98 with a fourth-
offense DWI. Under La. R.S.
14:98(E)(1)(a), the punishment for fourth-
offense DWI is imprisonment with or
without hard labor for not less than ten years
and not more than thirty years and a
$5,000.00 fine. In accordance with La.
Const. art. I, sec. 17(A), such a case “shall
be tried before a jury or six persons, all of
whom must concur to render a verdict.” See
also La.C.Cr.P. art. 782(A).

In reliance on these constitutional and
statutory provisions, the State, the defense,
and the trial court worked together to select
a six-person jury to try this case. Although,
the State later presented evidence at trial in
connection with predicate # 3 which, if
accepted, allowed for a sentence at hard
labor under La. R.S. 14:98(E)(4)(a),
sentencing of the defendant under this
sentencing enhancement provision was only
a possibility, but never a certainty. Thus, as
a practical matter, this case was required to
be tried in a six-person jury forum since
there was only a possibility that the
defendant could receive a sentence at hard
labor. In Louisiana, a twelve-person jury is
required only when the potential sentence is
necessarily confinement at hard labor. La.
Const. art. I, sec. 17(A); La.C.Cr.P. art.
782(A). Thus, the defendant’s trial was
conducted in accordance with the jury
composition rules applicable to La. R.S.
14:98(E)(1)(a), wherein the actual conduct
prescribed is a fourth-offense DWI, and the
sentence to be imposed may be with or
without hard labor.

17

State v. Dahlem, 13-0577, p. 1 (La.App. 1 Cir. 6/18/14),
148 So.3d 591, 600-01 (Kuhn, J., concurring).

Dahlem, 197 So.3d at 689, note 12.

Similarly, in the present case, the Bill of Information states that

Ramon L. Ellender: “Did willfully and unlawfully violate R.S. 14:98 and R.S.

14:98.4, Driving While Intoxicated, Fifth Offense.” As shown above, in 2015,

La.R.S. 14:98.4, stated that, for a fourth or subsequent offense, “the offender shall

be fined five thousand dollars and imprisoned, with or without hard labor, for not

less than ten years nor more than thirty years.” La.R.S. 14:98.4(A)(1) (emphasis

added). Likewise in 2015, La.Const. art. 1, § 17, provided that such a case shall be

tried before a six-person jury. Here, as in Dahlem, the State, the defense, and the

trial court worked together to select a six-person jury because that is what was

indicated on the Bill of Information. While Defendant was ultimately sentenced

under a habitual offender statute, La.R.S. 15:529.1, “the enhanced sentence to

which the evidence made defendant subject was not apparent on the face of the bill

of information,” which “sets the parameters and dictates the mode of trial.” See

Dahlem, 197 So.3d at 683. Accordingly, we find no merit in Defendant’s second

assignment of error.

Excessiveness of Sentence

Defendant argues that his sentence is unconstitutionally excessive.

Following his July 3, 2018 sentencing, Defendant timely filed a “Motion to

Reconsider Sentence” on July 30, 2018, asserting only that “the sentence is

excessive and based, at least partially, on evidence[] in dispute.” The motion was

denied without reasons the same day. The motion does not explain upon what

purportedly disputed evidence Defendant thinks his sentence is based.

18

Louisiana Code of Criminal Procedure Article 881.1 provides the

mechanism for preserving the review of a sentence on appeal:

A. (1) In felony cases, within thirty days
following the imposition of sentence or within such
longer period as the trial court may set at sentence, the
state or the defendant may make or file a motion to
reconsider sentence.

....

E. Failure to make or file a motion to reconsider
sentence or to include a specific ground upon which a
motion to reconsider sentence may be based, including a
claim of excessiveness, shall preclude the state or the
defendant from raising an objection to the sentence or
from urging any ground not raised in the motion on
appeal or review.

Louisiana courts have laid out the following guidelines regarding

excessive sentence review:

Sentences within the statutory sentencing range
can be reviewed for constitutional excessiveness. State v.
Sepulvado, 367 So.2d 762 (La.1979). In State v. Barling,
00-1241, 00-1591, 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, a panel of this court discussed the review
of excessive sentence claims, stating:

La. Const. art. 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. 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);

19

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).

Further, in reviewing the defendant’s sentences,
the appellate court should consider the nature of the
crime, the nature and background of the offender, and the
sentences imposed for similar crimes. State v. Lisotta,
98-648 (La.App. 5 Cir. 12/16/98), 726 So.2d 57 (citing
State v. Telsee, 425 So.2d 1251 (La.1983)), writ denied,
99-433 (La. 6/25/99), 745 So.2d 1183. In 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, a
panel of this court observed that:

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[, cert. denied, 519 U.S.
1043, 117 S.Ct. 615 (1996)].

State v. Soileau, 13-770, pp. 4-5 (La.App. 3 Cir. 2/12/14), 153 So.3d 1002, 1005-

06, writ denied, 14-452 (La. 9/26/14), 149 So.3d 261.

Furthermore, in State v. Baker, 06-1218 (La.App. 3 Cir. 4/18/07), 956

So.2d 83, writs denied, 07-320 (La. 11/9/07), 967 So.2d 496, and 07-1116 (La.

12/7/07), 969 So.2d 626, this court adopted the fifth circuit’s three-factor test from

State v. Lisotta, 98-648 (La.App. 5 Cir. 12/16/98), 726 So.2d 57, writ denied, 99-

20

433 (La. 6/25/99), 745 So.2d 1183, which established that an appellate court

should consider the nature of the crime, the nature and background of the offender,

and the sentences imposed for similar crimes. Given the general nature of

Defendant’s motion to reconsider, we will review Defendant’s claim as a mere

excessiveness of sentence claim in light of the Baker factors.

Nature of the Offense

At the time of the offense, La.R.S. 14:98(A)(1)(a) relevantly defined

Defendant’s offense as “operating any motor vehicle . . . when . . . [t]he operator is

under the influence of alcoholic beverages.” As previously noted, a defendant

convicted of fourth or subsequent offense DWI faced imprisonment, “with or

without hard labor, for not less than ten years nor more than thirty years.” The first

two years were to be imposed without benefit of probation, parole, or suspension

of sentence. However, because of Defendant’s prior DWI history, he ultimately

fell into a category of offenders who were required to serve their sentence at hard

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

circumstances of Defendant’s crime indicate a danger to the community, as he was

seen hitting another vehicle while driving, and then destroying two signs on

opposite sides of the road.

Nature and Background of Defendant

Defendant was forty-six years old at the time of the instant offense,

and he had been in trouble with the law for virtually the entirety of his adult life,

nearly thirty years. As noted by the trial court at sentencing:

The Court finds that the defendant has a substantial
criminal history. In fact, Mr. Ellender has spent virtually
all of his adult life either incarcerated or on supervised

21

probation or parole. In addition to Louisiana, he has also
been arrested and/or convicted in several other states,
including Texas, Mississippi, California, and Wyoming.

....

By this Court’s count, the defendant has been
arrested for driving under the influence 12 times and
convicted in at least nine of those instances. The
defendant has also been arrested and/or convicted of
multiple drug and other offenses, including 13 felonies
and 17 misdemeanors. The Court finds that subjecting
the defendant to supervision has thus far proven totally
ineffective, because most of the defendant’s offenses
were committed while he was under probation or parole
supervision.

....

It is, therefore, the opinion of this Court that the
defendant’s pattern of repeated offenses indicates a high
likelihood he will reoffend if released from incarceration,
placing himself and others in the community at
substantial risk of bodily harm. Because of this
likelihood and in consideration of Mr. Ellender’s
considerable criminal history spanning his entire adult
life, it is the opinion of the Court that the Defendant is in
need of a lengthy custodial environment.

Sentences Imposed for Similar Crimes

As noted above, the penalty range for DWI fourth offense at the time

of Defendant’s offense was not less than ten years nor more than thirty years.

However, Defendant was adjudicated a fifth felony offender under La.R.S.

15:529.1(A)(4)(a), which held “[t]he person shall be sentenced to imprisonment for

the fourth or subsequent felony for a determinate term not less than the longest

prescribed for a first conviction but in no event less than twenty years and not more

than his natural life.” Furthermore, La.R.S. 15:529.1(G) specifically stated “[a]ny

sentence imposed under the provisions of this Section shall be at hard labor

without benefit of probation or suspension of sentence.”

22

Under La.R.S. 15:529.1(A)(4)(a) as it stood at the time of Defendant’s

offense, Defendant faced a sentencing range of thirty years to life. Accordingly,

Defendant’s fifty-year sentence represents the relative low-end of his potential

sentencing range.2 Although we did not find any prior cases wherein a fifty-year

sentence was upheld on a DWI conviction, this court has previously upheld

sentences of greater than twenty years without a habitual offender enhancement.

In State v. Holloway, 10-74 (La.App. 3 Cir. 10/6/10), 47 So.3d 56, this

court upheld a twenty-two-year, unenhanced sentence for DWI fourth offense

where the defendant’s criminal history included dismissal of a second DWI fourth

offense. This court also cited numerous cases where other Louisiana courts had

upheld sentences of greater than twenty years without habitual offender

enhancement: State v. Ladner, 619 So.2d 1144 (La.App. 1 Cir.), writ denied, 625

So.2d 1029 (La.1993) (twenty-year sentence for fourth offense DWI with history

of misdemeanors and failed supervision); State v. Edwards, 591 So.2d 748

(La.App. 1 Cir. 1991), writ denied, 94-452 (La. 6/21/96), 675 So.2d 1072 (twenty-

four-year sentence for fourth offense DWI where the defendant was actually on his

eighth DWI conviction); State v. Davis, 588 So.2d 1234 (La.App. 1 Cir. 1991)

(twenty-five-year sentence for the defendant’s eighth DWI in eight years, which

occurred while on probation for a DWI third offense); and State v. Wiltcher,

41,981 (La.App. 2 Cir. 5/9/07), 956 So.2d 769 (twenty-five-year sentence for DWI

fourth offense where the defendant had a twenty-year criminal history).

As noted by this court in Barling, 779 So.2d 1035, the trial court has

great discretion in shaping sentencing, and appellate courts should respect that

discretion absent an abuse of discretion. Defendant’s lengthy criminal history and

2
Traditionally, a life sentence has been the functional equivalent of ninety-nine years.

23

long-term refusal to address his addiction issues were addressed by the trial court,

which found Defendant unlikely to respond to anything short of incarceration.

Given that Defendant’s sentence is at the relatively low-end of his potential

sentencing range, we cannot find that the trial court abused its discretion in

sentencing a fifth felony offender with at least nine DWI convictions to fifty years

at hard labor.

IV.

CONCLUSION

Based upon the foregoing, the evidence is sufficient to support the

conviction and the sentence in this case. Accordingly, Mr. Ellender’s conviction

and sentence are affirmed.

CONVICTION AND SENTENCE AFFIRMED.

24