State of Louisiana v. Brian Michael Hughes

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

20-495

STATE OF LOUISIANA

VERSUS

BRIAN MICHAEL HUGHES

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APPEAL FROM THE
THIRTY-FIFTH JUDICIAL DISTRICT COURT
PARISH OF GRANT, NO. 16-490
HONORABLE WARREN DANIEL WILLETT, DISTRICT JUDGE

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CANDYCE G. PERRET
JUDGE

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Court composed of John D. Saunders, Candyce G. Perret, and Jonathan W. Perry,
Judges.

AFFIRMED.

Paula Corley Marx
Louisiana Appellate Project
Post Office Box 82389
Lafayette, LA 70598-2389
(337) 991-9757
COUNSEL FOR DEFENDANT/APPELLANT:
Brian Michael Hughes

James Patrick Lemoine
District Attorney
Post Office Box 309
Colfax, LA 71417-0309
(318) 627-3205
COUNSEL FOR APPELLEE:
State of Louisiana

James D. White, Jr.
Assistant District Attorney
200 Main Street
Colfax, LA 71417
(318) 627-2971
COUNSEL FOR APPELLEE:
State of Louisiana

PERRET, Judge.

Brian Michael Hughes, Defendant, was adjudicated a fourth felony offender

and sentenced to twenty years at hard labor, a sentence he now appeals as

excessive. For the following reasons, we affirm.

FACTS AND PROCEDURAL BACKGROUND:

Defendant was arrested at Grant Junior High School for criminal trespassing

and was subsequently found to be in possession of roughly two grams of

methamphetamine. Defendant was charged by bill of information with possession

of methamphetamines, a violation of La.R.S. 40:967(C). He was found guilty as

charged and sentenced to five years at hard labor. Defendant appealed, and this

court found insufficient evidence to support Defendant’s conviction, vacating both

his conviction and sentence. State v. Hughes, 17-458 (La.App. 3 Cir. 11/29/17),

258 So.3d 179. The supreme court reversed this court’s ruling, reinstated

Defendant’s conviction and sentence, and affirmed them. State v. Hughes, 18-6

(La. 6/26/19), 284 So.3d 619.

While Defendant’s initial appeal was pending before this court in docket

number 17-458, the State filed a Habitual Offender Bill of Information on April 21,

2017, asserting that Defendant was a fourth habitual offender due to the following

three prior felonies:

A. Possession with intent to distribute CDS I, in violation of
R.S. 40:966A-1, Grant Parish Louisiana, Docket #08-215, said
conviction occurring on May 8, 2008;

B. Attempted Possession of a Firearm, in violation of R.S.
14:95.1 & 14:27, Grant Parish Louisiana, in Docket #10-633, said
conviction occurring January 13, 2011;

C. Conspiracy to produce/manufacture CDS II, in violation
of R.S. 40:967a(1) 14:26, in Grant Parish Louisiana, in Docket #13-
175, said conviction occurring on August 15, 2013.

The trial court adjudicated Defendant a fourth habitual offender, vacated

Defendant’s five-year sentence imposed on April 13, 2017, and sentenced him to

natural life at hard labor.

After Defendant’s original conviction and sentence were reinstated and

affirmed by the supreme court, Defendant appealed the trial court’s fourth habitual

offender adjudication and sentence to this court, docket number 19-547. On

appeal, this court determined that the trial court applied the wrong version of

La.R.S. 15:529.1 in sentencing Defendant as a habitual offender. State v. Hughes,

19-547 (La.App. 3 Cir. 2/5/20) (unpublished opinion). Pursuant to State v. Lyles,

19-203 (La. 10/22/19), 286 So.3d 407, 2017 La. Acts No. 282 was applicable to

Defendant, whose conviction became final on June 26, 2019. Accordingly,

Defendant’s sentence was vacated, and the case was remanded to the trial court for

resentencing.

On July 9, 2020, a hearing was held to resentence Defendant pursuant to this

court’s February 5, 2020 ruling. The trial court noted that a twenty-year sentence

was mandated under the applicable version of La.R.S. 15:529.1. Following the

trial court’s pronouncement, Defendant requested that he be granted a lesser

sentence because, due to the ameliorative changes that lowered the maximum

penalty for a violation of La.R.S. 40:967(C), the current maximum sentence for his

possession of methamphetamine would only be two years, not five, based on the

amount he possessed. Noting that it was considering Defendant’s criminal history

and not just the current conviction, the trial court refused to grant a downward

departure and maintained the mandated twenty-year sentence.

On July 30, 2020, Defendant filed a “Motion to Reconsider Sentence” that

argued his sentence was “excessive, especially given his age; lack of any prior

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violent or aggravated convictions; ordering fines and cost[s] on top of a maximum

sentence of incarceration[,] and failure of the Court to consider the accolades

accomplished during his incarceration.” The trial court denied the motion, noting

“Evidence was available to Defendant but was not presented or introduced at the

sentencing.”

Defendant now appeals his twenty-year sentence, contending the trial court

failed to properly consider the ameliorative changes to La.R.S. 40:967 and failed to

comply with La.Code Crim.P. art. 894.1 while imposing an excessive sentence.

For the following reasons, we affirm Defendant’s sentence.

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:

Defendant has assigned two errors on appeal: the trial court failed to

properly consider ameliorative changes to La.R.S. 40:967 and the trial court failed

to properly consider the mandates of La.Code Crim.P. art. 894.1 when determining

his sentence. As Defendant argues his assignments of error together, we will do

the same.

Under La.Code Crim.P. art. 881.1(E), a defendant may only raise the

specific grounds raised in his motion to reconsider sentence on appeal. Defendant

timely filed a motion to reconsider sentence in which he argued the mandatory

sentence he received was excessive in light of his youth, lack of prior violent or

aggravated convictions, the court’s imposition of costs, and the court’s failure to

“consider the accolades accomplished during his incarceration.” Additionally, at

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the sentencing hearing, the Defendant himself specifically requested that he be

given less than twenty years as he considered that sentence to be excessive in light

of the small amount of methamphetamine he was convicted of possessing.

Defendant was sentenced as a fourth habitual offender. The sentence for

subsequent offenders applicable to Defendant is found under La.R.S.

15:529.1(A)(4)(b), which provides:

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.

Accordingly, the trial court possessed a single legal sentence it could impose upon

Defendant, twenty years at hard labor. Sentencing Defendant to anything less

would require a downward departure from a mandatory sentence, as noted by the

State during sentencing.

Defendant’s motion to reconsider fails to specifically request a downward

departure under State v. Dorthey, 623 So.2d 1276 (La.1993). However, we will

address Defendant’s argument regarding a downward departure under the facts of

this case because Defendant asked the trial court to sentence him to less than the

mandated twenty years and argued in his motion to reconsider that his sentence

was excessive specifically due to his youth and the underlying crime.

In State v. Johnson, 97-1906 (La. 3/4/98), 709 So.2d 672, the supreme court

noted that under Dorthey, there is a presumption that a mandatory sentence is

constitutional. However, although “the Legislature’s determination of an

appropriate minimum sentence should be afforded great deference[,]” “courts have

the power to declare a sentence excessive under Article I, Section 20 of the

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Louisiana Constitution, although it falls within the statutory limits provided by the

Legislature.” Johnson, 709 So.2d at 676. The judiciary’s power to declare a

sentence excessive “should be exercised only when the court is clearly and firmly

convinced that the minimum sentence is excessive.” Id.

In making this determination, the court must consider whether clear and

convincing evidence exists in the case that rebuts a presumption that the minimum

sentence is constitutional. Doing so requires more than simply considering the

nature of the instant or past crimes:

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
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.

Johnson, 709 So.2d at 676. Instead, to secure a downward departure from a

mandatory sentence, a defendant must prove by clear and convincing evidence 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.” Johnson, 709 So.2d at

676 (quoting State v. Young, 94-1636, pp. 5-6 (La.App. 4 Cir. 10/26/95), 663 So.2d

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525, 531 (Plotkin, J., concurring), writ denied, 95-3010 (La. 3/22/96), 669 So.2d

1223).

In the instant case, Defendant’s argument supporting his request for a

downward departure focuses on his youth (Defendant is currently thirty-two years

old), the lack of violent crimes in his criminal history, and his history of substance

abuse. As noted above, the Johnson court was quite clear that a lack of violent

crimes could not be the only or primary basis for a downward departure. The

sentence under La.R.S. 15:529.1(A)(4)(b) already takes into consideration

Defendant’s lack of violent crimes. Furthermore, the trial court clearly considered

Defendant’s age when it previously sentenced Defendant to life imprisonment,

noting Defendant had not yet reached the age of thirty yet already had four felony

convictions in Grant Parish. Finally, the trial court found at the prior sentencing

hearing that it did not believe Defendant’s substance abuse was the only cause of

his conduct, stating: “there’s something else. There’s something else that’s not

right.” The trial court felt that Defendant’s actions were designed to attract

attention, even if the attention was “not in [Defendant’s] best interest.”

Defendant also argued that because the current maximum sentence for

possession of methamphetamine in the quantity he possessed is two years, he felt

“twenty (20) years is still an excessive sentence. And I’d like to ask for a lesser

sentence.” In sentencing Defendant, the trial court made it clear that Defendant

was not being punished solely for his current offense but for his history of

felonious activity. This is in-line with the Johnson court’s review of the purpose 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

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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.

Johnson, 709 So.2d at 677.

Although he did not submit evidence in his favor, Defendant told the court

that he completed a drug program at Angola, completed a one-hundred-hour class,

graduated two courses with Crossroads Prison Ministries, and received several

certificates. While the trial court took those statements into consideration, despite

any supporting documents being admitted into evidence, the trial court ultimately

found the mandated sentence appropriate in this case. We further note that

Defendant did not present evidence at any of his three sentencing hearings (the

underlying felony, the original habitual offender hearing, and the habitual offender

remand) that would support a finding that he is exceptional.1

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At the original sentencing hearing for Defendant’s underlying conviction, the trial court
gave reasons for sentencing:

With respect to sentencing guidelines, um, to be quite frank, I really don’t
have a lot of information to go through all these various factors in the sentencing
guidelines. Mr. Hughes did not wish to have a pre-sentence investigation
performed, therefore, as far as his age, his education, his work history, whether he
uh, has participated in rehab, any of that stuff that the Court might have available
to it to make a - - a determination of what an appropriate sentence would be, I do
not have. And there’s probably a good reason for that. . . . And the reason I told
you five (5) years, Mr. Hughes, was because of this, criminal history. You’re a
young man who has been in my court too many times in the short time I’ve been
here. . . . you’re not going to do anything - - you’re not going to successfully
complete probation. You’re not probation eligible.

Additionally, at the original habitual offender hearing, the trial court also noted: “Um, by
my calculations, Mr. Hughes has not yet attained the age of thirty (30), and he has four (4)
felonies in Grant Parish, there’s been references to other felonies in other parishes. All of his
supervision cases have ended unsuccessfully with revocation.”

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Because Defendant has failed to show that he is exceptional as is required by

Johnson and Young, he has failed to meet his burden of proving he deserves a

downward departure from the mandatory twenty-year sentence imposed.

On appeal Defendant also contends that the trial court failed to consider

ameliorative changes to the underlying crime, which reduced the maximum penalty

for a first offense from five years to two years. According to Defendant the

“amendment to [La.R.S.] 40:967 represents a shift in policy for possession of a

small amount of drugs and demonstrates the legislature has chosen to impose more

lenient sentencing provisions for this category of offenses.” However, Defendant

has already benefited from ameliorative changes to the laws affecting his case;

specifically, the 2017 amendments to the Habitual Offender Law decreased

Defendant’s sentencing exposure from a range of twenty years to life

imprisonment to a mandated twenty-year sentence. See Hughes, 19-547.

Moreover, to the extent the maximum penalty for the underlying offense was

decreased, the end result for a fourth offender remained the same: twenty years at

hard labor. We find no error in the trial court’s sentence.

Lastly, Defendant contends that the trial court failed to adequately consider

the factors of La.Code Crim.P. art. 894.1 when it imposed a sentence. The trial

court specifically stated that it had the duty to “determine whether or not the

sentence that is imposed is constitutionally appropriate for the offense.”

Furthermore, the trial court told Defendant, “based upon those prior convictions as

well as the instant conviction, I feel that the twenty (20) years that is mandated by

statute is constitutionally appropriate for your situation.” Defendant contends that

this was a “mechanical application of [La.]R.S. 15:529.1,” and that the trial court

“continued to unduly focus on the criminal history of Mr. Hughes, without

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consideration of all applicable sentence factors.” Although the trial court did not

specify what factors it was considering in imposing Defendant’s sentence, this

court has previously held that “[w]hen there is a constitutional mandatory sentence,

a trial court need not justify, under La. C. Cr. P. art. 894.1, a sentence it is legally

required to impose.” State v. Cawthorne, 18-155, p. 6 (La.App. 3 Cir. 10/3/18),

257 So.3d 717, 724 (quoting State v. Little, 50,776, p. 4 (La.App. 2 Cir. 8/10/16),

200 So.3d 400, 403, writ denied, 16-1664 (La. 6/16/17), 219 So.3d 341), writ

denied, 18-1899 (La. 4/8/19), 267 So.3d 607. The trial court found no reason to

grant Defendant a downward departure where La.R.S. 15:529.1 allowed for only

one penalty; thus, there was no need to justify the sentence under La.Code Crim.P.

art. 894.1. We find no merit to Defendant’s assignment of error.

DECREE:

Given the mandatory sentence under La.R.S. 15:529.1, Defendant’s failure

to prove that he was exceptional under Dorthey, and the fact that Defendant has

already benefited from a reduction in his sentencing exposure by ameliorative

changes to the Habitual Offender Law, we affirm Defendant’s conviction and

sentence.

AFFIRMED.

This opinion is NOT DESIGNATED FOR PUBLICATION.
Uniform Rules—Courts of Appeal, Rule 2-16.3.

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