State of Louisiana v. Will Antonio Celestine

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

KA 19-43

STATE OF LOUISIANA

VERSUS

WILL ANTONIO CELESTINE

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 20529-17
HONORABLE G. MICHAEL CANADAY, DISTRICT JUDGE

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BILLY HOWARD EZELL
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Billy Howard Ezell,
and John E. Conery, Judges.

AFFIRMED.

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

Mary Constance Hanes
P.O. Box 4015
New Orleans, LA 70178
(504) 866-6652
COUNSEL FOR DEFENDANT/APPELLANT:
Will Antonio Celestine

Jeffrey M. Landry, Attorney General
J. Taylor Gray, Assistant Attorney General
P.O. Box 94005
Baton Rouge, LA 70804
(225) 326-6200
COUNSEL FOR OTHER APPELLEE:
Attorney General of the State of Louisiana

EZELL, Judge.

Defendant, Will Antonio Celestine, was charged by bill of information filed

on November 17, 2017, as a fourth habitual offender, a violation of La.R.S.

15:529.1. On January 8, 2018, Defendant was adjudicated a fourth felony offender

for the offense of attempted illegal use of a weapon, a violation of La.R.S. 14:27

and La.R.S. 14:94, and sentenced to life imprisonment without benefit of

probation, parole, or suspension of sentence.

On July 27, 2018, Defendant filed a “Notice of Appeal” and “Motion for

Appeal.” The motion for appeal was granted. Defendant is now before this court

asserting trial counsel rendered ineffective assistance at sentencing for failing to

file a motion to reconsider and/or request a downward departure from the sentence

of life without parole for attempted illegal use of a weapon. He also alleges his life

sentence is excessive.

FACTS

Defendant was convicted of attempted illegal use of a weapon in trial court

docket number 16636-15 on November 15, 2017, and was subsequently

adjudicated and sentenced as a habitual offender in trial court docket number

20529-17. The underlying offense occurred on May 16, 2015.

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 no

errors patent.

ASSIGNMENTS OF ERROR NUMBERS ONE AND TWO

In his first assignment of error, Defendant contends trial counsel rendered

ineffective assistance at sentencing because he failed to file a motion to reconsider

Defendant’s sentence and/or seek a downward departure from the mandatory life

sentence, which is to be served without benefit of parole. In his second assignment

of error, Defendant contends his sentence is excessive. Inasmuch as these two

assignments of error pertain to Defendant’s sentence, we will address them

collectively.

At the habitual offender hearing, the State set forth Defendant’s prior

convictions as follows:

16636-15 is the incident conviction wherein he was convicted
of one count attempted illegal use of [a] dangerous instrumentality,
one count of firearm by a felon, one count of unauthorized entry of an
inhabited dwelling. That conviction was on November 16th, 2017.

26093-13 was one count of obscenity wherein he was sentenced
to one year parish prison on February 26th, 2014.

And 39274-11 that was one count of attempted possession of a
firearm by a convicted felon, and he was sentenced to six years
department of corrections on February 26th, 2014.

14206-09 was one count of theft over $500 wherein he was
sentenced to five years DOC. That was suspended. He was placed on
five years active supervised probation on November 3rd, 2009. That
probation was revoked on October 28th, 2011. He was ordered to
serve the original five years DOC sentence.

In 16851-07 it was one count of attempted simple escape. He
was sentenced to serve three months parish prison on January 28th,
2008.

In 6669-07 was one count of theft over [$]500. He was
sentenced to four years DOC on January 28th, 2008.

In 10648-05 was one count of possession with intent to
distribute CDS II. He was sentenced to four years department of
corrections, suspended, three years active supervised probation
wherein on November 17th, 2005, that probation was also revoked on
January 28th, 2008. He was ordered to serve four years DOC.

In 17264-05 one count of aggravated flight wherein he was
sentenced to one year DOC. It was suspended. He was placed on three
years active supervised probation. He was also convicted on -- in that
matter of illegal possession of stolen things over [$]500. He was

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sentenced in that matter to four years DOC. It was suspended. He was
placed on two years active supervised probation. All of that occurred
on March 9th, 2005.

He was also revoked on January 28th, 2008, and sentenced to
serve four years department of corrections and one year department of
corrections concurrent on January 28th, 2008.

Defendant was then adjudicated a fourth felony offender.

The State subsequently called Don Dixon, the Lake Charles Chief of Police,

to testify. Chief Dixon testified he had dealt with Defendant for sixteen years.1 He

discussed Defendant’s escape from “JDC,” indicating a manhunt ensued. Chief

Dixon considered Defendant to be “the No. 1 menace to society since [he’d] been

chief of police . . . .” According to Chief Dixon, Defendant’s last arrest cost

$36,983.75 in overtime pay. Additionally, Defendant had thirty-eight criminal

files with law enforcement agencies.

Thereafter, the trial court stated it did not see any reason to address the

sentencing guidelines because the penalty was mandatory. After the State

indicated the trial court should address the sentencing guidelines, the court

discussed them as follows:

It says, when the defendant has been convicted of a felony, the
court shall impose a sentence of incarceration if any of the following
occurs:

There’s an undue risk during a period of a suspended sentence
he would commit another crime.

Historically it has been established that he has been convicted
of offenses as well as charged with a number of offenses. The court
answers that in the affirmative based on the totality of what has been
presented here today.

1
According to the habitual offender bill of information, Defendant was twenty-nine years
old on the date he committed the underlying offense.

3

Is he in need of correctional treatment or custodial environment
that can [be] provide[d] most effectively by his commitment to an
institution?

Again, with the totality of the CDS significant charges as well
as his failed opportunities on probation and the recent conviction for a
violent offense and the prior conviction of a violent offense, the court
would find that he is definitely in need of custodial commitment.

Would any lesser sentence deprecate the seriousness of the
crime?

As indicated from the totality, the court would answer that also
in the affirmative because of his history, crimes of violence and
habitual involvement with the criminal justice system.

In looking at this application of aggravating or mitigating,
offences [sic] that are considered violent, I would find that those --
that conduct manifests direct cruelty to victims, should know that the
victims are particularly vulnerable or incapable of resistance, offenses
in which it has appeared that he has used weapons or attempted to use
weapons, indicate that he is more familiar with those individuals that
they were aimed at. The court cannot say it was extreme youth-
advanced age, disability, or ill-health, but whether they were --
regardless if they were not armed and he was and went after those
individuals. That would be significant.

Has he offered or received something of valve [sic] for the
commission?

I have thefts over [$]500 on occasion, which would indicate
that’s also in the affirmative.

Has he used his position to facilitate the commission?

The court does not have any information with regard to that.
Has he created risk of death or great bodily harm to more than one
person?

That’s clear from the one case that the court was familiar with,
the jury trial, in which a number of people were outside a residential
area in which the crime for which he was -- attempted illegal use or
possession of dangerous weapons as found by the jury, noting also
that there were bullets found; and some testimony indicated that
firearms was [sic] shot. However, he was only found guilty of
attempted because it appeared that there was never a weapon that was
retrieved as a result of his apprehension.

Subsequent to the offense, not applicable.

4

History of these events would result in injuries to individuals’
economic losses?

As I indicated, they have some theft or taking charges. We have
weapon charges. He did use dangerous -- well, this was attempted use
of a dangerous weapon in -- but he was found to be in possession of a
weapon by a convicted felon. So, yes, that’s answered in the
affirmative.

Also been involved in controlled dangerous substance offenses?
As indicated, and those are significant as to possession with intent.

Other relevant aggravating circumstances, the manhunt, so to
speak, that was implemented in order to take him into custody.

If I understand correctly, he has other charges pending, as we
speak, does he not, Mr. Lampert?

MR. LAMPERT:

Yes, Your Honor.

THE COURT:

And those are also crimes of violence, are they not?

MR. LAMPERT:

Yes, Your Honor.

THE COURT:

The other relevant aggravating circumstances have to do
again with the totality of what has been presented as to this
20529-17 and his, since young age, involvement with the
criminal justice system.

In looking at mitigating circumstances, I find that his
history, prior delinquencies, criminal activity to be more
aggravating than mitigating. Is it unlikely to reoccur more
aggravating than mitigating? Is he likely to respond
affirmatively to probationary treatment more aggravating than
mitigating?

I’m not certain if he has any children or anybody that he
is responsible for.

Ms. Stagg?

5

MS. STAGG:

He does have -- you do have a child, right?

Yes, sir.

THE COURT:

Then it would appear that he may have a defendant [sic]
or two that may be dependent upon him to some extent. The
court does not have sufficient information, but obviously he
acknowledges a child that he would be taking care of.

Any other relevant mitigating circumstances the court
does not have before it.

At this time the defendant has previously been found
guilty, as indicated, of attempted illegal use of dangerous
weapon or instrumentalities in violation of 14:27 and 14:94,
Section A. . . .

In viewing the 20529-17, in the finding by the court that
the application of a fourth felony offender, with two of the prior
felonies defined as crimes of violence or controlled dangerous
substance with significant penalty, the court is mandated at
this time and finds it appropriate that Mr. Will Antonio
Celestine will be sentenced to imprisonment for the remainder
of his natural life to be served without benefit of parole,
probation, or suspension of sentence.

(Emphasis added.)

Defendant contends his life sentence is shocking. He notes the maximum

sentence that could be imposed for attempted illegal use of a weapon in 2015

without enhancement was one year. La.R.S. 14:27(D)(3); La.R.S. 14:94(B).

Additionally, as of August 1, 2017, the offense of illegal use of a weapon is no

longer considered a crime of violence. La.R.S. 14:2(29) (repealed by 2017 La.

Acts No. 281, § 3). Defendant further asserts he could have received a sentence as

low as twenty years with no restriction on parole as a fourth felony offender had he

committed the underlying offense on or after November 1, 2017, which was the

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effective date of the 2017 amendments to La.R.S. 15:529.1. See 2017 La. Acts No.

257; 2017 La. Acts No. 282.

Defendant asserts that, for these reasons, he would have received a lesser

sentence had trial counsel not performed deficiently at sentencing. Defendant

asserts that trial counsel’s failure to challenge his life sentence by filing a motion

to reconsider sentence and/or a motion for downward departure has resulted in the

waiver of his right to appeal the issue. Thus, he was denied effective assistance of

counsel. Defendant notes the issue must be decided on direct review, as it is not

cognizable in post-conviction proceedings.

Defendant cites State v. Hayes, 97-1526 (La.App. 1 Cir. 5/15/98), 712 So.2d

1019, in support of his claim. Therein, the defendant was convicted of theft by

misappropriating or taking over $500. He was adjudicated a third felony offender

and sentenced to life imprisonment at hard labor without benefit of probation,

parole, or suspension of sentence. Counsel did not object to the sentence or file a

motion to reconsider sentence. On appeal, the defendant asserted counsel was

ineffective for his failure to do so. The defendant’s criminal record contained the

following convictions: “two thefts under $100, one theft over $100, several counts

of issuing worthless checks, check forgery, simple robbery, and the instant offense,

one theft of over $500.” Id. at 1022. The simple robbery occurred when the

defendant pushed a minor and stole his bicycle. None of the defendant’s crimes

involved a dangerous weapon. When addressing the ineffective assistance claim,

the first circuit stated:

But for the failure to object, the sentence would have been
changed, if not in the district court, then on appeal. A sentence of life
imprisonment for this defendant, at his age and with his record, is
“disproportionate” to the harm done and shocks “one’s sense of
justice.” [State v.] Chaisson, 507 So.2d [248] at 250 [(La.App. 1 Cir.

7

1987)]. The life imprisonment imposes an undue burden on the
taxpayers of the state, who must feed, house, and clothe this defendant
for life. Mr. Hayes is a tenacious theft [sic]. He obviously needs
lengthy incarceration. However, a severe sentence, for example, one
between ten and twenty years, would have met all of the societal goals
of incarceration. All of Mr. Hayes’ offenses combined cannot support
a loss of liberty at age 34, for the rest of his life.

The failure to object to the life sentence was not a strategic
decision or a discretionary call, under the circumstances here. On
sentencing, counsel was not acting as the counsel required by the
United States Constitution, Amendment 6. The failure to object or
move for consideration waived not only defendant’s constitutional
right to a sentence that was not cruel and unusual punishment, but also
denied Mr. Hayes his right to appeal, to seek redress for the denial of
a constitutional right. The constitutionally deficient legal performance
rendered “the proceeding fundamentally unfair.” Lockhart v. Fretwell, 113 S.Ct. at 844. Considering the seriousness of the failure to object at
sentencing, and the prejudice suffered as a result, the denial of a
constitutionally fair sentence and the right to appeal a life sentence,
the defendant has established ineffective assistance of counsel. See
State v. Hamilton, 92–2639 pp. 4–11 (La.7/1/97); 699 So.2d 29, 32–
35, cert. denied, [522] U.S. [1124], 118 S.Ct. 1070, 140 L.Ed.2d 129
(1998). For these reasons, we vacate the sentence, and remand to the
district court for re-sentencing. See State v. Hamilton, 92–2639 at p.
11; 699 So.2d at 35.

Id. at 1022-23. The State applied for certiorari with the supreme court, which was

granted, and the matter was remanded to the court of appeal for reconsideration in

light of State v. Johnson, 97-1906 (La. 3/4/98), 709 So.2d 672. State v. Hayes, 98-

1603 (La. 12/11/98), 729 So.2d 584. On remand, the first circuit once again found

the defendant’s life sentence was excessive, as the thirty-four-year-old defendant

returned sixty-nine percent of the approximately $1000 taken, the crime of

violence involved the defendant pushing a minor and stealing his bicycle, none of

the defendant’s prior crimes involved a dangerous weapon, and the life sentence

would impose an undue burden on taxpayers. State v. Hayes, 97-1526 (La.App. 1

Cir. 6/25/99), 739 So.2d 301, writ denied, 99-2136 (La. 6/16/00), 764 So.2d 955.

8

Based on the reasoning set forth in Hayes, 712 So.2d 1019, Defendant

asserts there could have been no strategic reason for counsel not to file a motion to

reconsider his sentence and/or request a downward departure challenging the

imposition of his life sentence without parole. Defendant alleges counsel’s

performance was deficient and he was prejudiced by the deficiency because his

claim of excessiveness has merit.

Defendant then addresses the excessiveness of his sentence. Defendant

notes the underlying offense is punishable by a sentence of up to one year with or

without hard labor. La.R.S. 14:27; La.R.S. 14:94. Moreover, at the time the

offense was committed on May 16, 2015, La.R.S. 15:529.1(A) provided, in

pertinent part:

(4) If the fourth or subsequent felony is such that, upon a first
conviction the offender would be punishable by imprisonment for any
term less than his natural life then:

(a) The 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; or

(b) If the fourth felony and two of the prior felonies are felonies
defined as a crime of violence under R.S. 14:2(B), a sex offense as
defined in R.S. 15:540 et seq. when the victim is under the age of
eighteen at the time of commission of the offense, or as a violation of
the Uniform Controlled Dangerous Substances Law punishable by
imprisonment for ten years or more, or of any other crime punishable
by imprisonment for twelve years or more, or any combination of
such crimes, the person shall be imprisoned for the remainder of his
natural life, without benefit of parole, probation, or suspension of
sentence.

On or after November 1, 2017, La.R.S. 15:529.1(A) provided:

(4) If the fourth or subsequent felony is such that, upon a first
conviction the offender would be punishable by imprisonment for any
term less than his natural life then the following sentences apply:

9

(a) The 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.

(b) If the fourth felony and no prior felony is defined as a crime
of violence under R.S. 14:2(B) or as a sex offense under R.S. 15:541,
the person shall be imprisoned for not less than twenty years nor more
than twice the longest possible sentence prescribed for a first
conviction. If twice the possible sentence prescribed for a first
conviction is less than twenty years, the person shall be imprisoned
for twenty years.

(c) If the fourth felony and two of the prior felonies are felonies
defined as a crime of violence under R.S. 14:2(B), or a sex offense as
defined in R.S. 15:541 when the victim is under the age of eighteen at
the time of commission of the offense, the person shall be imprisoned
for the remainder of his natural life, without benefit of parole,
probation, or suspension of sentence.

Defendant’s life sentence was based on convictions of attempted illegal use

of a weapon, aggravated flight from an officer, and possession with intent to

distribute cocaine. However, if the underlying offense had been committed on or

after August 1, 2017, it could not be used as the basis for the habitual offender bill

because it was no longer considered a crime of violence as of that date and could

not be used to convert a one-year maximum sentence to a sentence of life without

parole. Moreover, if Defendant had committed the current offense on or after

November 1, 2017, he could not have received a mandatory life sentence as

La.R.S. 15:529.1(A)(4)(c) does not list drug offenses or crimes punishable by

imprisonment for twelve years or more as a basis for imposition of a life sentence

without benefit of parole. Defendant would be subject to a sentence of twenty

years to life and would be eligible for parole. La.R.S. 15:529.1(A)(4)(a).

Defendant notes the supreme court has said a defendant must be sentenced

in accordance with the sentencing provision in effect at the time of the commission

of the offense. State v. Sugasti, 01-3407 (La. 6/21/02), 820 So.2d 518. However,

10

in State v. Clark, 391 So.2d 1174 (La.1980), the supreme court noted a drastic

change in penalty is relevant and should be taken into consideration when

determining whether a sentence is excessive. Defendant notes the supreme court

stated:

Where there has been an ameliorative change in the penalty
provision of a statute that takes effect after the date of the offense, but
before trial or final judgment, it is the rule in this state that the penalty
provision in effect at the time of the offense is the applicable
provision. State v. Dreaux, 205 La. 387, 17 So.2d 559 (1944). See
also State v. Wright, [384 So.2d 399 (La.1980)]; State v. Paciera, 290
So.2d 681, 687-88 (La.1974). However, as pointed out in Gregg v.
Georgia, 428 U.S. 153, 173, 96 S.Ct. 2909, 2925, 49 L.Ed.2d 859,
874 (1976) (Opinion of Justices Stewart, Powell and Stevens) “an
assessment of contemporary values concerning the infliction of a
challenged sanction is relevant to the application” of the Eighth
Amendment’s ban against cruel and unusual punishment. It is no less
relevant to the inquiry of whether a particular penalty is excessive.
And it has been acknowledged that legislative enactments provide an
important means of ascertaining contemporary values. Id. at n. 19.
Inherent in mitigatory changes in penalty provisions of an offense is a
legislative determination that the present law is inappropriate,
Comment, Today’s Law and Yesterday’s Crime: Retroactive
Application of Ameliorative Criminal Legislation: 121 U.Pa.L.Rev.
120, 138 (1972), and that the lesser penalty is sufficient to meet the
legitimate ends of the criminal law. In re Estrada, 63 Cal.2d 740, 408
P.2d 948, 952, 48 Cal.Rptr. 172 (1965); People v. Oliver, 1 N.Y.2d
152, 134 N.E.2d 197, 201-02, 151 N.Y.S.2d 367, 373-74 (1956).

Id. at 1176 (footnote omitted).

Defendant also cites State v. Priest, 18-518 (La.App. 5 Cir. 2/6/19), 265

So.3d 993, writ denied, 19-418 (La. 5/20/19), 271 So.3d 201. Therein, the fifth

circuit found the defendant’s thirty-year sentence for possession of over 400 grams

of methamphetamine was unconstitutionally excessive, noting defendant was

homeless at the time of the incident and felt threatened and intimidated by other

men involved in the crime, his prior convictions were not drug offenses and only

one was a crime of violence, nothing in the record or the defendant’s criminal past

indicated he was a drug dealer or part of a drug distribution ring, and the

11

legislature had subsequently amended the sentencing range to lower the maximum

penalty. The fifth circuit stated the following as part of its analysis:

[I]f defendant had committed the instant offense approximately one
year later, he would have been subject to a maximum sentence of only
twenty years. In Acts 2017, No. 281, effective August 1, 2017, the
Legislature amended the sentencing range for possession of over four
hundred grams of methamphetamine by reducing it to a range of one
to twenty years. At the same time, the Legislature also repealed
Section (G) of La. R.S. 40:967 regarding the imposition of the
restriction of benefits for the instant crime of conviction. While the
amendments to La. R.S. 40:967 were not given retroactive effect, that
does not mean this Court cannot consider the expression of legislative
will at the time the amendment reducing the applicable penalties was
passed. See State v. Dixon, 17-422 (La. App. 5 Cir. 3/14/18), 241
So.3d 514, 527 (dissent) (citing State v. Jarreau, 05-355 (La. App. 4
Cir. 12/14/05), 921 So.2d 155, 162-63, writ denied, 06-131 (La.
6/14/06), 929 So.2d 1267).

Id. at 1006. Defendant asserts that for the same reasons, this court should consider

“the expression of legislative will when it amended La.R.S. 15:529.1(A)(4).”

The State asserts Defendant failed to offer any evidence to demonstrate his

attorney’s actions fell below an objective standard of reasonableness. The State

argues the facts of the case indicate Defendant would not have received a lesser

sentence. The State notes that although defense counsel erred in failing to object to

the sentence and Defendant’s appeal rights were technically waived, Defendant

sustained no “ill effects.” The State notes that a bare excessiveness review may be

conducted in cases in which no objection is made or motion to reconsider sentence

filed. The State argues the trial court did not abuse its discretion when imposing

sentence as Defendant had numerous prior convictions, including violent crimes.

Thus, Defendant’s claim that counsel was ineffective for failing to file a motion to

reconsider sentence lacks merit.

The State asserts Defendant failed to allege any evidence that would

substantiate his claim that he is entitled to a downward departure from the statutory

12

minimum sentence as he failed to demonstrate that he is exceptional. The State

additionally asserts there is no merit to Defendant’s contention that his attorney

provided ineffective assistance of counsel for failing to file a motion to reconsider

or request a downward departure.

The State addresses Defendant’s excessive sentence claim, noting in State v.

Washington, 37,321 (La.App. 2 Cir. 8/20/03), 852 So.2d 1206, writ denied, 03-

2652 (La. 5/14/04), 872 So.2d 510, the second circuit held the defendant’s life

sentence as a fourth felony offender for illegal use of a firearm was not excessive.

The State further cites State v. Lyles, 18-283 (La.App. 5 Cir. 12/27/18), 263 So.3d

930, writ granted, 19-203 (La. 5/20/19), 270 So.3d 570. Therein, the defendant

appealed his sentence of life imprisonment, arguing that he should have been

sentenced under the 2017 amendments to La.R.S. 15:529.1, and, in the alternative,

that his sentence was excessive. The fifth circuit addressed the issue, stating:

While La. R.S. 15:529.1 was revised in 2017 by Acts 257 and
282, it is well settled law that habitual offender proceedings do not
charge a separate crime, but merely constitute ancillary sentencing
proceedings such that the punishment for a new conviction is
enhanced, and jurisprudence, including that of this Court, has held
that the sentence to be imposed is that in effect at the time of the
commission of the offense. See State v. Parker, 03-924 (La. 4/14/04),
871 So.2d 317, 327 (“the punishment to be imposed on defendant, a
habitual offender, is that provided by La. R.S. 15:529.1 as it existed
on the date he committed the underlying offense.”); State v. Sugasti,
01-3407 (La. 6/21/02), 820 So.2d 518, 522 (“Everyone is presumed to
know the law, including the penalty provisions that apply. As such,
those who engage in criminal activity must face the consequences of
their actions, including the penalty provisions that apply as of the date
of the offense.”); State v. Williams, 03-571 (La. App. 5 Cir. 11/12/03),
862 So.2d 108, 119, writ denied, 04-0051 (La. 5/21/04), 874 So.2d
171 (“[T]his Court has consistently held that the date of the
commission of the offense controls the penalty to be applied in
multiple offender sentencing. From our earliest decisions on the
subject until our more recent pronouncement, we have been
unwavering on this issue.”).

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Id. at 936 (alteration in original). The fifth circuit also cited the 2018 addition of

La.R.S. 15:529.1(K)(1), which states, “[N]otwithstanding any provision of law to

the contrary, the court shall apply the provisions of this Section that were in effect

on the date that the defendant’s instant offense was committed.” Id. The supreme

court granted Lyles’ writ of certiorari to determine “[w]hether petitioner’s habitual

offender adjudication and sentence are governed by R.S. 15:529.1 as it existed at

the time of commission of his instant offense, as it was amended by 2017 La. Acts

282, or as it was amended by 2018 La. Acts 542.” State v. Lyles, 270 So.3d 570.

The State avers the trial court found the life sentence appropriate.

Additionally, the trial court did not abuse its broad sentencing discretion when

imposing the sentence.

Analysis

Attempted illegal use of a weapon and aggravated flight from an officer

were crimes of violence on May 16, 2015. La.R.S. 14:2(B)(29) and (39).

Moreover, possession with intent to distribute cocaine is a drug offense. Thus, the

mandatory penalty to be imposed after Defendant was adjudicated a fourth felony

offender was life imprisonment without benefit of probation, parole, or suspension

of sentence. La.R.S. 15:529.1(A)(4)(b).

Neither defense counsel nor Defendant requested a downward departure

from the mandatory sentence, objected to the sentence imposed, or filed a motion

to reconsider Defendant’s sentence. Thus, under some jurisprudence, Defendant is

precluded from appealing his sentence. See State v. Bamburg, 00-675 (La.App. 3

Cir. 11/2/00), 772 So.2d 356; State v. Williams, 01-998 (La.App. 3 Cir. 2/6/02),

815 So.2d 908, writ denied, 02-578 (La. 1/31/03), 836 So.2d 59; State v. Duplantis,

13-424 (La.App. 3 Cir. 11/27/13), 127 So.3d 143, writ denied, 14-283 (La.

14

9/19/14), 148 So.3d 949. This court has, however, previously reviewed claims of

excessiveness where no motion to reconsider sentence was filed or objection made,

performing a bare excessiveness review. State v. Jackson, 14-9 (La.App. 3 Cir.

6/18/14), 146 So.3d 631, writ denied, 14-1544 (La. 2/27/15), 159 So.3d 1066; State

v. Soriano, 15-1006 (La.App. 3 Cir. 6/1/16), 192 So.3d 899, writ denied, 16-1523

(La. 6/5/17), 219 So.3d 1111; State v. Price, 16-899 (La.App. 3 Cir. 4/5/17), 216

So.3d 304; State v. Debarge, 17-670 (La.App. 3 Cir. 2/7/18), 238 So.3d 491.

In this case, Defendant argues defense counsel was ineffective for failing to

file a motion to reconsider sentence and/or request a downward departure. In State

v. Farry, 16-211, pp. 2-3 (La.App. 3 Cir. 11/16/16), 207 So.3d 436, 438-39

(alterations in original), this court addressed a similar claim:

In State v. Christien, 09-890, p. 7 (La.App. 3 Cir. 2/3/10), 29
So.3d 696, 701, the court explained in pertinent part:

A claim for ineffective assistance of counsel is
properly raised in an application for post-conviction
relief because this allows the trial court to order a full
evidentiary hearing on the matter. State v. Burkhalter,
428 So.2d 449 (La.1983). However, where the record
contains sufficient evidence to decide the issue, and the
issue is raised by an assignment of error on appeal, it
may be considered by the appellate court. State v. Tapp,
08-1262 (La.App. 3 Cir. 4/1/09), 8 So.3d 804; See also
State v. James, 95-962 (La.App. 3 Cir. 2/14/96), 670
So.2d 461.

In State v. Cotton, 09-2397 (La. 10/15/10), 45 So.3d 1030, the
supreme court held that ineffective assistance of counsel claims
regarding sentencing are precluded from review on post-conviction.
The court wrote in pertinent part:

An [sic] habitual offender adjudication thus constitutes
sentencing for purposes of [State ex rel.] Melinie [v.
State, 93-1380 (La. 1/12/96), 665 So.2d 1172], and
La.C.Cr.P. art. 930.3, which provides no vehicle for post-
conviction consideration of claims arising out of habitual
offender proceedings, as opposed to direct appeal of the
conviction and sentence. La.C.Cr.P. art.

15

912(C)(1)(defendant may appeal from a judgment
“which imposes sentence”). A fortiori, respondent’s
claim that he received ineffective assistance of counsel at
his habitual offender adjudication is not cognizable on
collateral review so long as the sentence imposed by the
court falls within the range of the sentencing statutes. Cf.
La.C.Cr.P. art. 882.

Id. at 1030-31. Furthermore, in State v. Paulson, 15-454, pp. 9-10
(La.App. 4 Cir. 9/30/15), 177 So.3d 360, 367, the court explained in
pertinent part:

Generally, ineffective-assistance-of-counsel claims
are more properly raised in an application for post-
conviction relief where the district court can conduct a
full evidentiary hearing on the matter, if one is warranted.
See State v. Leger, 05-0011, p. 44 (La. 7/10/06), 936
So.2d 108, 142; see also State v. Small, 13-1334, p. 13
(La.App. 4 Cir. 8/27/14), 147 So.3d 1274, 1283.
Nevertheless, where the record contains evidence
sufficient to decide the issue, and it is raised on appeal by
an assignment of error, courts may consider the issue in
the interest of judicial economy. See Leger, 05-0011, p.
44, 936 So.2d at 142. A claim of ineffective assistance of
counsel at sentencing, however, is not cognizable on
collateral review, when, as here, the sentence imposed by
the trial judge is within the authorized range of the
sentencing statutes. See State v. Thomas, 08-2912 (La.
10/16/09), 19 So.3d 466 (“relator’s claims that the court
imposed an excessive sentence and that he received
ineffective assistance of counsel at sentencing are not
cognizable on collateral review”) (emphasis added). The
Louisiana Supreme Court has held that La. C.Cr.P. art.
930.3, which sets forth the grounds upon which post-
conviction relief may be granted, “provides no basis for
review of claims of excessiveness or other sentencing
error post-conviction.” State ex rel. Melinie v. State, 93-
1380 (La. 1/12/96), 665 So.2d 1172; see also State v.
Cotton, 09-2397, p. 2 (La. 10/15/10), 45 So.3d 1030,
1031 (per curiam) (claim that counsel rendered
ineffective assistance at habitual offender adjudication is
not cognizable on collateral review so long as sentence
imposed falls within range of sentencing statute).

Therefore, because Mr. Paulson’s ineffective-
assistance-of-counsel-at-sentencing claim is not
cognizable in a post-conviction proceeding, and because
the record provides sufficient evidence to decide the
issue, we must consider his ineffectiveness claim on

16

direct review. Cf. State v. Boyd, 14-0408, pp. 8-9
(La.App. 4 Cir. 2/11/15), 164 So.3d 259, 264 (finding
ineffective-assistance-of-counsel-at-sentencing claim
cognizable on direct review, but remanded for
evidentiary hearing because record was insufficient to
decide issue).

Because Defendant’s ineffective assistance of counsel claims cannot be

relegated to post-conviction relief and the record is sufficient to review the claims,

we find Defendant’s claims should be addressed in this appeal.

“In order to prove an attorney was ineffective, a defendant must show his

attorney was deficient, and he was prejudiced by the deficiency. Strickland v.

Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).” Farry, 207

So.3d at 439. “Failure to file a motion to reconsider does not necessarily constitute

ineffective assistance of counsel.” State v. Anderson, 13-42, p. 11 (La.App. 3 Cir.

7/3/13), 116 So.3d 1045, 1053, writ denied, 13-1806 (La. 5/16/14), 139 So.3d

1019. “Defendant may have a basis to claim ineffective assistance if he can show

a reasonable probability that but for defense counsel’s error, his sentence would

have been different.” Id. Moreover, “unless Defendant can show a downward

departure from the mandatory life sentence . . . was warranted, he cannot meet

Strickland’s prejudice test.” State v. Kight, 18-974, p. 4 (La.App. 3 Cir. 6/5/19),

275 So.3d 26, 30.

In State v. Johnson, 97-1906, pp. 5-9 (La. 3/4/98), 709 So.2d 672, 675-77

(first and second alterations added), the supreme court discussed sentencing below

the mandatory minimum sentence set forth by La.R.S. 15:529.1 as follows:

The Legislature has sole authority under the Louisiana Constitution to
define conduct as criminal and provide penalties for such conduct. La.
Const. art. III, § I; State v. Dorthey, [623 So.2d 1276] at 1280
[(La.1993)]; State v. Taylor, 479 So.2d 339, 341 (La.1985). Acting
pursuant to this authority, the Legislature passed the Habitual
Offender Law. This Court, on numerous occasions, has held this

17

statute to be constitutional. See, e.g., State v. Dorthey, supra; State v.
Badon, 338 So.2d 665, 670 (La.1976). Since the Habitual Offender
Law in its entirety is constitutional, the minimum sentences it imposes
upon multiple offenders are also presumed to be constitutional.
Dorthey, supra at 1281 (Marcus, J., concurring); State v. Young, 94-
1636 (La.App. 4th Cir. 10/26/95), 663 So.2d 525.

Given the above, it is apparent that the Legislature’s
determination of an appropriate minimum sentence should be afforded
great deference by the judiciary. This does not mean, however, that
the judiciary is without authority to pronounce a constitutional
sentence if it determines that a mandatory minimum sentence is
excessive in a particular case. Instead, we have held that courts have
the power to 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.

....

In State v. Dorthey, supra, this Court held that a trial court must
reduce a defendant’s sentence to one not constitutionally excessive if
the trial court finds that the sentence mandated by the Habitual
Offender Law “makes no measurable contribution to acceptable goals
of punishment”, or is nothing more than “the purposeful imposition of
pain and suffering” and is “grossly out of proportion to the severity of
the crime.” Id. at 1280-81. Finding a mandatory minimum sentence
constitutionally excessive requires much more, though, than the mere
utterance of the phrases above.

A sentencing judge must always start with the presumption that
a mandatory minimum sentence under the Habitual Offender Law is
constitutional. See State v. Dorthey, supra at 1281 (Marcus, J.,
concurring); State v. Young, supra. A court may only depart from the
minimum sentence if it finds that there is clear and convincing
evidence in the particular case before it which would rebut this
presumption of constitutionality.

A trial judge may not rely solely upon the non-violent nature of
the instant crime or of past crimes as evidence which justifies
rebutting the presumption of constitutionality. While the classification
of a defendant’s instant or prior offenses as non-violent should not be
discounted, this factor has already been taken into account under the
Habitual Offender Law for third and fourth offenders. LSA-R.S.
15:529.1 provides that persons adjudicated as third or fourth offenders

18

may receive a longer sentence if their instant or prior offense is
defined as a “crime of violence” under LSA-R.S. 14:2(13). Thus the
Legislature, with its power to define crimes and punishments, has
already made a distinction in sentences between those who commit
crimes of violence and those who do not. Under the Habitual Offender
Law those third and fourth offenders who have a history of violent
crime get longer sentences, while those who do not are allowed lesser
sentences. So while a defendant’s record of non-violent offenses may
play a role in a sentencing judge’s determination that a minimum
sentence is too long, it cannot be the only reason, or even the major
reason, for declaring such a sentence excessive.

Instead, to rebut the presumption that the mandatory minimum
sentence is constitutional, the defendant 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).

When determining whether the defendant has met his burden of
proof by rebutting the presumption that the mandatory minimum
sentence is constitutional, the trial judge must also keep in mind the
goals of the Habitual Offender Law. Clearly, the major reasons the
Legislature passed the Habitual Offender Law were to deter and
punish recidivism. Under this statute the defendant with multiple
felony convictions is treated as a recidivist who is to be punished for
the instant crime in light of his continuing disregard for the laws of
our state. He is subjected to a longer sentence because he continues to
break the law. Given the Legislature’s constitutional authority to enact
statutes such as the Habitual Offender Law, it is not the role of the
sentencing court to question the wisdom of the Legislature in
requiring enhanced punishments for multiple offenders. Instead, the
sentencing court is only allowed to determine whether the particular
defendant before it has proven that the mandatory minimum sentence
is so excessive in his case that it violates our constitution.

Finally, if a sentencing judge finds clear and convincing
evidence which justifies a downward departure from the minimum
sentence under the Habitual Offender Law, he is not free to sentence a
defendant to whatever sentence he feels is appropriate under the
circumstances. Instead, the judge 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

19

imposes instead of the statutory mandatory minimum is the longest
sentence which is not excessive under the Louisiana Constitution.
Requiring a sentencing judge to re-sentence a defendant in this
manner is in keeping with the judiciary’s responsibility to give as
much deference as constitutionally possible to the Legislature’s
determination of the appropriate minimum sentence for a habitual
offender.

We emphasize to sentencing judges that departures downward
from the minimum sentence under the Habitual Offender Law should
occur only in rare situations. As Chief Justice Calogero noted in a
prior case:

The substantive power to define crimes and prescribe
[sic] punishments lies in the legislative branch of
government. [citation omitted]. Our decision in State v.
Dorthey, 623 So.2d 1276 (La.1993), did not purport to
grant a district court the power to usurp that legislative
prerogative or to impose what the court believes is the
most appropriate sentence for a particular offender in a
particular case. Dorthey gives the district court the
authority to depart from the mandatory minimum
sentences provided by the legislature only in those
relatively rare cases in which the punishment provided
violates the prohibition of La. Const. art. I, § 20 against
excessive sentences.

State v. Hamilton, 95-2462 at p. 1 (La.2/2/96), 666 So.2d 655, 656
(Calogero, C.J., concurring); see also State v. Dorthey, supra (Marcus,
J., concurring) (noting that situations where sentencing courts should
sentence defendants below the minimum mandated by the Habitual
Offender Law are “rarely presented”).

There is nothing particularly unusual about Defendant’s circumstances that

would justify a downward departure from the mandatory sentence under La.R.S.

15:529.1. Defendant’s entire argument is based on the 2017 amendments to

La.R.S. 15:529.1 and La.R.S. 14:2 and a comparison of the sentence he received

with what he could have been sentenced to had he committed the underlying

offense after the effective dates of those amendments. We find that argument is

insufficient to prove Defendant is exceptional. State v. Walker, 04-1358 (La.App.

5 Cir. 4/26/05), 902 So.2d 526, writ denied, 05-2005 (La. 2/17/06), 924 So.2d

20

1014; State v. Harris, 02-873 (La.App. 5 Cir. 1/28/03), 839 So.2d 291, writ denied,

03-846 (La. 10/31/03), 857 So.2d 474; State v. Jerome, 03-126 (La.App. 5 Cir.

4/29/03), 845 So.2d 1194.

Furthermore, at the sentencing hearing the State presented Defendant’s prior

convictions and testimony from Chief Dixon regarding Defendant’s propensity to

commit crime. The trial court then addressed La.Code Crim.P. art. 894.1 and

noted Defendant had one child. The court found the life sentence was mandated

and “appropriate.” Thus, it was not likely the trial court would have reduced

Defendant’s sentence had counsel filed a motion to reconsider sentence or

requested a downward departure. The trial court could have been made aware in a

motion to reconsider sentence that the sentencing provisions had been amended,

which could be considered pursuant to Clark, 391 So.2d 1174. However, the Clark

court reiterated the rule that the penalty provision in effect at the time of the

offense is the applicable provision. Furthermore, Clark predates Sugasti, 820

So.2d 518, and its progeny. State v. Tickles, 18-221 (La.App. 1 Cir. 11/6/18)

(unpublished opinion).

Life sentences for habitual offenders have been affirmed on appeal. In State

v. Lewis, 576 So.2d 1106 (La.App. 3 Cir.), writ denied, 580 So.2d 669 (La.1991),

the defendant was convicted of distribution of cocaine, adjudicated a fourth

offender, and sentenced to life imprisonment. This court addressed the defendant’s

excessive sentence claim, stating:

In the past, the Louisiana Supreme Court has upheld life
sentences for fourth felony offenders. See State v. Green, 437 So.2d
302 (La.1983), writ denied, 443 So.2d 1121 (La.1984); State v.
Wheeler, 450 So.2d 695 (La.App. 4 Cir.1984).

When defendant was sentenced, the trial judge said:

21

“[t]he defendant was convicted of distribution of cocaine,
an offense for which the law provides a penalty of not
less than five, nor more than thirty years imprisonment. It
has been demonstrated that he is a habitual felony
offender for the fourth time. The record demonstrates that
the defendant, since his first conviction in 1976, has
never been a productive member of society, but continues
to commit criminal offenses soon after his release from
prison. Considering the provisions of the appropriate
Articles, the Court will sentence the defendant to
imprisonment for the rest of his natural life.”

The trial judge’s remarks concerning defendant’s propensity to
commit crimes, along with the fact that La.R.S. 15:529.1A(3)(b)
requires the judge to sentence defendant to life imprisonment is more
than adequate to justify the sentence defendant received. Therefore,
these assignments of error lack merit.

Id. at 1112 (alterations in original).

Defendant cited Hayes, 712 So.2d 1019, in support of his claims. In that

case, the first circuit found the defendant’s sentence was excessive. Hayes is

distinguishable in that the Defendant herein has a more significant criminal history

and more than one crime of violence.

Defendant failed to prove counsel was ineffective for failing to file a motion

to reconsider sentence and/or request a downward departure from the mandatory

life sentence without benefit of parole. Likewise, Defendant’s sentence is not

excessive. Accordingly, Defendant’s sentence is affirmed.

AFFIRMED.

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