State of Louisiana v. Sam Clark, Jr.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

19-136
STATE OF LOUISIANA
VERSUS
SAM CLARK, JR.
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APPEAL FROM THE

TWENTY-SEVENTH JUDICIAL DISTRICT COURT
PARISH OF ST. LANDRY, NO. 16-K-1269-D
HONORABLE D. JASON MECHE, DISTRICT JUDGE

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VAN H. KYZAR
JUDGE

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Court composed of Sylvia R. Cooks, Shannon J. Gremillion, and Van H. Kyzar,
Judges.

AFFIRMED

Douglas Lee Harville

Louisiana Appellate Project

P.O. Box 52988

Shreveport, LA 71135-2988

(318) 222-1700

COUNSEL FOR DEFENDANT/APPELLANT:
Sam Clark, Jr.

Sam Clark, Jr.

In Proper Person

David Wade Correctional Center

670 Bell Hill Rd

Homer, LA 70140

COUNSEL FOR DEFENDANT/APPELLANT:
Sam Clark, Jr.

Earl B. Taylor

District Attorney

Kathleen E. Ryan

Assistant District Attorney

Twenty-Seventh Judicial District Court

P. O. Drawer 1968

Opelousas, LA 70571

(337) 948-0551

COUNSEL FOR PLAINTIFF/APPELLEE:
State of Louisiana

KYZAR, Judge.

Defendant, Sam Clark, Jr., appeals his sentence of forty years incarceration at
hard labor following his conviction for manslaughter for the killing of his former
wife. For the reasons set forth, we affirm the conviction and sentence.

FACTS AND PROCEDURAL HISTORY

On June 20, 2016, Defendant, Sam Clark, Jr., was charged by bill of
indictment with the second degree murder of his wife, Kimberly Perkins Clark, in
violation of La.R.S. 14:30.1. Jury selection began on September 24, 2018.
Following a two-day trial, Defendant was found guilty of the responsive verdict of
manslaughter on September 26, 2018.

On November 13, 2018, the trial court sentenced Defendant to forty years at
hard labor. Defendant filed a “Motion to Reconsider Sentence” on December 7,
2018, arguing that his sentence was excessive, as follows:

In sentencing the defendant, the Court failed to take into
consideration all of the mitigating factors pursuant to the sentencing
guidelines and sentenced the defendant to a term of imprisonment in
excess of a term that would be considered reasonable for the facts of

this case and, therefore, is cruel and unusual punishment.

The defendant seeks reconsideration of this sentence as being
excessive under the circumstances.

A hearing was held on Defendant’s motion on January 24, 2019. Counsel for
Defendant presented no new evidence during the hearing but urged “that the court
reconsider the forty year period based on the evidence that was submitted to the court
at the prior sentencing.” The trial court denied the motion, noting that “in [its] mind
it should have been murder and [it] felt that sentence fit what the facts showed during
the case.”

The facts as presented during the trial and as noted by the trial court at

sentencing show that Defendant shot his wife twice in the back of the head, then

threw her body off a bridge, where she ultimately died from drowning. At trial,
Defendant successfully argued that the murder occurred in sudden passion when
Defendant learned that his wife was cheating on him and was planning to leave him.

Defendant now appeals, arguing only that his sentence is excessive.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for
errors patent on the face of the record. After reviewing the record, we find there are
no errors patent.

DISCUSSION

In his sole assignment of error, Defendant contends his sentence is excessive.
His predominant argument herein is most succinctly summed up in the final
paragraph of his brief to this court:

That is, the Trial Court seemed to have determined before trial

and before any evidence was adduced that it would impose a harsh

sentence upon Mr. Clark, should he receive a lesser verdict. Because it

appears that the sentence in this case, 40 years of imprisonment, the

maximum possible sentence, was imposed in part to punish Mr. Clark

for exercising his right to a jury trial, a trial that resulted in a lesser-

included verdict, this maximum sentence serves no purpose, is

excessive, and must be reversed.

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.

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Defendant’s motion to reconsider sentence filed with the trial court failed to
allege any complaint regarding judicial pre-determination of his sentence.
Accordingly, Defendant is precluded from raising such an argument for the first time
on appeal. However, we will proceed with a review of Defendant’s claim for bare
excessiveness based on the claims raised in the motion for resentencing and the more
general allegations set forth in Defendant’s brief.

Louisiana courts have laid out the following guidelines with regard to
reviewing claims of excessive sentence:

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, “[nJo 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); 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:

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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 (LaApp. 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, 13-771, 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.

In State v. Baker, 06-1218 (La.App. 3 Cir. 4/18/07), 956 So.2d 83, writ denied,
07-320 (La. 11/9/07), 967 So.2d 496, and writ denied, 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, p. 4 (La.App. 5 Cir. 12/16/98), 726 So.2d 57, 58, writ denied, 99-433 (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 sentence
imposed for similar crimes[.]”

Defendant was convicted of the manslaughter of his wife, a crime which by
relevant definition “would be murder . . . but the offense is committed in sudden
passion or heat of blood immediately caused by provocation sufficient to deprive an
average person of his self-control and cool reflection.” La.R.S. 14:31(A}(1). While
all homicides are, to some extent, heinous, the uncontested evidence presented at
trial established that Defendant shot his wife in the back of the head twice before
throwing her off a bridge whilst she was still breathing, with drowning being her
official cause of death. Defendant disposed of the gun used to shoot his wife in the

head and went back to the bridge, presumably to make sure she was dead, as the trial

court surmised at sentencing. He initially denied any involvement in the crime.

Evidence presented to the trial court as to the Defendant’s nature and
background did show that he had been self-employed and provided for his family
for ten years prior to killing his wife. The trial court, however, noted this was
Defendant’s third felony conviction, as he previously pled guilty to felony criminal
damage to property in 1982. Defendant also pled guilty to second degree battery
stemming from an incident in 2000. The trial court further noted that Defendant had
a prior conviction wherein he had originally been charged with domestic abuse by
strangulation and domestic abuse by aggravated assault but ultimately pled guilty to
misdemeanor domestic abuse battery. The victim in that event was also Defendant’s
wife.

We find no merit to Defendant’s assertions that the trial court did not
adequately consider the mitigating factors set forth in La.Code Crim.P. art 894.1.
As noted above, the trial court indeed considered certain of the mitigating factors
argued by Defendant, though it did not consider all of the aggravating factors listed.
Consideration of every factor, or whether they are applicable, is not required of the
trial court in sentencing. State v. Lanclos, 419 So.2d 475 (La.1982). “The
articulation of the factual basis for a sentence is the goal of Article 894.1, not rigid
or mechanical compliance with its provisions.” /d. at 478. Accordingly, we find
that the trial court adequately considered the nature of the crime and the nature and
background of Defendant in imposing the sentence in the present case.

The mere fact that the sentence is the maximum statutory penalty is not
dispositive that the sentence is cruel or unusual. This court has previously upheld
maximum sentences for manslaughter. In 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, this court
affirmed a forty-year sentence for a twenty-seven year old first offender who claimed

self-defense based upon prior interactions with the victim. There, as in the instant

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case, the defendant was found guilty of manslaughter as a responsive verdict to a
second degree murder charge. Similarly, this court upheld a maximum sentence for
a defendant convicted of manslaughter in response to a second degree murder charge
while claiming self-defense in State v. Fox, 15-692 (La.App. 3 Cir. 2/3/16), 184
So.3d 886, writ denied, 16-404 (La. 3/13/17), 216 So.3d 800.

In acase that is somewhat similar factually, State v. Plauche, 09-400 (La.App.
3 Cir. 1/6/10), 32 So.3d 852, writ denied, 10-302 (La. 9/24/10), 45 So.3d 1070, this
court upheld the imposition of the maximum sentence of forty years for
manslaughter under circumstances where the defendant shot his wife in the neck two
weeks after learning she was having an affair. After shooting his wife, he failed to
offer her any aid, allowing her to “waddle” on the floor on her back in pain, later
succumbing to her wounds. In mitigation, the trial court noted that the defendant
had no history of criminal activity, the circumstances were unlikely to reoccur, and
that imprisonment would impose excessive hardship on the defendant’s children.
The trial court concluded that although the jury had convicted the defendant of
manslaughter, the facts were more akin to a second degree murder, the crime with
which he was originally charged.

As noted during the hearing on Defendant’s motion to reconsider, the trial
court in the instant case clearly believed Defendant’s actions constituted second
degree murder and that Defendant benefited from his manslaughter conviction,
which reduced his sentence from mandatory life imprisonment to not more than forty
years. Additionally, the trial court noted Defendant returned to where he had
dumped the victim’s body to dispose of the gun with which he had shot her hours
later. In Fox, this court noted as part of the basis in affirming the defendant’s
maximum sentence that “the defendant received the benefit of being convicted for

the lesser offense of manslaughter, which has a significantly reduced sentencing

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exposure than the original charge of second degree murder.” 184 So.3d at 896. “In
considering the nature of the offense, both the trial court and the reviewing court
may assess whether the crime for which defendant has been convicted adequately
describes his conduct when the conviction is for a lesser included responsive offense
to the crime charged.” State v. Lewis, 09-1404, p. 8 (La. 10/22/10), 48 So.3d 1073,
1078.

Given that Defendant shot his wife twice in the back of the head, dumped her
body off a bridge where she ultimately died of drowning in the water below, returned
at a later time to dispose of the gun used in the crime, and initially lied to police
about his involvement, we find that the trial court did not abuse its discretion in
imposing a maximum sentence.

DECREE
Defendant’s conviction and sentence of forty years at hard labor in the custody

of the Louisiana Department of Corrections with credit for time served is affirmed.

AFFIRMED.