State of Louisiana v. Kelby Meaux A/K/A Kelby D. Meaux

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

21-522

STATE OF LOUISIANA

VERSUS

KELBY MEAUX
A/K/A KELBY D. MEAUX

**********
ON APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF VERMILION, NO. 63873,
HONORABLE LAURIE A. HULIN, DISTRICT JUDGE

**********
JONATHAN W. PERRY
JUDGE
**********

Court composed of John E. Conery, Jonathan W. Perry, and J. Larry Vidrine,*
Judges.

AFFIRMED.

*
Honorable J. Larry Vidrine participated in this decision by appointment of the Louisiana
Supreme Court as Judge Pro Tempore.

Gwendolyn K. Brown
Attorney at Law
Louisiana Appellate Project
P. O. Box 64962
Baton Rouge, Louisiana 70896
(225) 229-6311
COUNSEL FOR APPELLANT:
KELBY MEAUX A/K/A KELBY D. MEAUX

Donald Dale Landry
District Attorney
15th Judicial District
John Ghio
Assistant District Attorney
P.O. Box 3306
Lafayette, Louisiana 70502
(337) 232-5170
COUNSEL FOR APPELLEE:
STATE OF LOUISIANA

PERRY, Judge.

Defendant, Kelby Meaux, was charged by bill of information on November

11, 2018, with one count of attempted second degree murder of Dominique

Zaunbrecher, in violation of La.R.S. 14:27 and 14:30.1; one count of attempted

second degree murder of Jace Trahan, in violation of La.R.S. 14:27 and 14:30.1; and

one count of aggravated criminal damage to property, in violation of La.R.S 14:55.

On November 16, 2020, Defendant withdrew his previous plea of not guilty

and pled no contest to one count of attempted second degree murder of Dominique

Zaunbrecher. Pursuant to the plea agreement, the remaining charges were dismissed,

and the trial court ordered a presentence investigation (PSI). Defendant reserved his

right to appeal the sentence as excessive but waived any application for post-

conviction relief.

On May 6, 2021, Defendant was sentenced to twenty years at hard labor

without the benefit of parole, probation, or suspension of sentence. Neither defense

counsel nor Defendant objected to the sentence imposed at the sentencing hearing

or made a motion to reconsider the sentence. A motion to appeal was timely filed

on June 2, 2021, which was granted by the trial court.

Defendant now appeals his sentence and asserts three assignments of error:

(1) the trial court erred in imposing an excessive sentence; (2) the trial court erred in

failing to comply with the sentencing mandates of La.Code Crim.P. art. 894.1; and

(3) ineffective assistance of counsel for the failure to file a motion to reconsider

sentence to preserve his right to object to the excessiveness of his sentence on

specific grounds.

FACTS

At the time of Defendant’s no contest plea, the State gave the following factual

basis for the charged offense:

Your Honor, if this matter would have gone to trial, the State would
have proved here in Vermilion Parish, on November 11, 2018, Mr.
Kelby Meaux did attempt to murder one Dominique Zaunbrecher by
shooting her in the torso.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, we review all appeals for errors

patent on the face of the record. After reviewing the record, we have determined

there are no errors patent.

ASSIGNMENT OF ERROR NO. 1
(Excessive Sentence)

In his first assignment of error, Defendant argues his twenty-year sentence is

excessive. Defendant also contends that if his trial counsel’s failure to make or file

a motion to reconsider sentence deprives him of review of his sentence, trial counsel

was ineffective.

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.

....

B. The motion shall be oral at the time of sentence or shall be in
writing thereafter and shall set forth the specific grounds on which the
motion is based.

....

E. Failure to make or file a motion to reconsider sentence or to
include a specific ground upon which a motion to reconsider sentence

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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.

Under some jurisprudence, Defendant’s failure to make or file a motion to

reconsider sentence would preclude him 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. 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.

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.
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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:

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, 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 (second alteration

added). Along the same lines, 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 Lisotta, 726 So.2d 57.

Because Defendant failed to make or file a motion to reconsider sentence, we

will review Defendant’s claim as a bare excessiveness claim under Baker.

Regarding the nature of the offense, Defendant is contesting his twenty-year

sentence for the attempted second degree murder of his ex-girlfriend whom he shot

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in the torso. This crime is, by definition, a crime of violence under La.R.S. 14:2(B).

Attempted second degree murder carries a sentencing range of “not less than ten nor

more than fifty years without benefit of parole, probation, or suspension of

sentence.” La.R.S. 14:27(D)(1)(a). As such, Defendant’s sentence represents the

mid-range of the sentencing range. Prior to sentencing, the victim submitted an

impact statement to request a sentence of at least twenty-five years, noting that she

was diagnosed with post-traumatic stress disorder, anxiety, depression, and sleep

apnea because of the shooting.

At the time of sentencing, the trial court found Defendant was a twenty-one-

year-old first felony offender. Defendant testified that he and the victim dated for

several years before they ended their relationship. He further testified that he

obtained a high school degree, was employed as a carpenter, and recently became a

new father. Defendant indicated that four months prior to the offense, his mother

scheduled a doctor’s appointment for him to seek mental health treatment. The

appointment was scheduled for the day after the offense. Defendant asserted that he

had since been diagnosed with and treated for bipolar disorder, schizophrenia,

anxiety, depression, post-traumatic stress disorder, and dissociative identity

disorder.

Finally, this court has long upheld mid-range sentences for first offenders

convicted of attempted murder. We note similar sentences were upheld in State v.

Wommack, 00-137 (La.App. 3 Cir. 6/7/00), 770 So.2d 365, writ denied, 00-2051 (La.

9/21/01), 797 So.2d 62; State v. Clark, 06-508 (La.App. 3 Cir. 9/27/06), 940 So.2d

799, writ denied, 06-2857 (La. 9/21/07), 964 So.2d 324; State v. Sampy, 07-1059

(La.App. 3 Cir. 3/5/08), 978 So.2d 553, writ denied, 08-845 (La. 11/10/08), 996

So.2d 1066; and State v. Williams, 16-579 (La.App. 3 Cir. 4/5/17), 216 So.3d 107.
5

The defendant in Williams was a first offender who received a twenty-five-year

sentence; Sampy involved a thirty-year sentence for attempted second degree murder

for a first offender who was simultaneously convicted of attempted manslaughter.

The defendant in Wommack, also a first offender, received a twenty-one-year

sentence. The defendant in Clark was the only one who was not a first offender, and

the court there imposed a twenty-five-year sentence. These cases reflect this court’s

longstanding affirmation of mid-range sentences for first offenders convicted of

attempted murder and support the imposition of a lesser twenty-year sentence.

After considering Defendant’s sentence and taking into account the Lisotta

factors, the Defendant has failed to prove the trial court abused its discretion in

sentencing him to twenty years for attempted second degree murder. After all, the

relevant question is whether the trial court abused its broad sentencing discretion,

not whether another sentence might have been more appropriate. See Cook, 674

So.2d 957.

ASSIGNMENTS OF ERROR NO. 2 AND 3
(Sentencing Mandates and Ineffective Assistance of Counsel)

In Defendant’s second assignment of error, he alleges the trial court erred in

failing to comply with the sentencing mandates in La.Code Crim.P. art. 894.1. In

his third assignment of error, Defendant contends defense counsel was ineffective

because he failed to make or file a motion to reconsider sentence to preserve his right

to object to the excessiveness of his sentence on the specific grounds in La.Code

Crim.P. art. 894.1. Because the assignments of error are intertwined, we will address

them together.

As discussed, defense counsel did not make or file a motion to reconsider the

sentence. Therefore, the trial court’s failure to comply with the sentencing mandates

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in La.Code Crim.P. art. 894.1 was not raised at the trial court level and cannot be

raised for the first time on appeal. Jackson, 146 So.3d 631. Accordingly, we are

precluded from reviewing this argument.

However, because trial counsel’s failure to make or file a motion to reconsider

sentence deprives Defendant of review of the trial court’s compliance with La.Code

Crim.P. art. 894.1, we will consider whether Defendant was denied effective

assistance of counsel.

Generally, the issue of ineffective assistance of counsel is a
matter more properly addressed in an application for post conviction
relief, filed in the trial court where a full evidentiary hearing can be
conducted. State v. Prudholm, 446 So.2d 729 (La.1984); State v.
Johnson, 557 So.2d 1030 (La.App. 4 Cir.1990); State v. Reed, 483
So.2d 1278 (La.App. 4 Cir.1986). Only if the record discloses sufficient
evidence to rule on the merits of the claim do the interests of judicial
economy justify consideration of the issues on appeal. State v. Seiss,
428 So.2d 444 (La.1983); State v. Ratcliff, 416 So.2d 528 (La.1982);
State v. Garland, 482 So.2d 133 (La.App. 4 Cir.1986); State v. Landry,
499 So.2d 1320 (La.App. 4 Cir.1986).

The defendant’s claim of ineffective assistance of counsel is to
be assessed by the two part test of Strickland v. Washington, 466 U.S.
668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Fuller, 454 So.2d
119 (La.1984). The defendant must show that counsel’s performance
was deficient and that he was prejudiced by the deficiency. Counsel’s
performance is ineffective when it can be shown that he made errors so
serious that counsel was not functioning as the “counsel” guaranteed to
the defendant by the Sixth Amendment. Strickland, supra, 466 U.S. at
686, 104 S.Ct. at 2064. Counsel’s deficient performance will have
prejudiced the defendant if he shows that the errors were so serious as
to deprive him of a fair trial. To carry his burden, the defendant “must
show that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been
different. A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Strickland, supra, 466 U.S. at
693, 104 S.Ct. at 2068. The defendant must make both showings to
prove that counsel was so ineffective as to require reversal. State v.
Sparrow, 612 So.2d 191, 199 (La.App. 4 Cir.1992).

This Court has recognized that if an alleged error falls “within
the ambit of trial strategy” it does not “establish ineffective assistance
of counsel.” State v. Bienemy, 483 So.2d 1105 (La.App. 4 Cir.1986).
Moreover, as “opinions may differ on the advisability of a tactic,
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hindsight is not the proper perspective for judging the competence of
counsel’s trial decisions. Neither may an attorney’s level of
representation be determined by whether a particular strategy is
successful.” State v. Brooks, 505 So.2d 714, 724 (La.1987).

State v. Griffin, 02-1703, pp. 8-10 (La.App. 4 Cir. 1/15/03), 838 So.2d 34, 40, writ

denied, 03-809 (La. 11/7/03), 857 So.2d 515.

Defendant argues defense counsel was ineffective for failing to make or file a

motion to reconsider sentence. The failure to make or file a motion to reconsider

sentence does not necessarily constitute ineffective assistance of counsel.

Nevertheless, a defendant may have a basis to claim ineffective assistance when he

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

would have been different. State v. Blake, 03-1465 (La.App. 3 Cir. 5/5/04), 872

So.2d 602. Furthermore, in State v. Francis, 99-208 (La.App. 3 Cir. 10/6/99), 748

So.2d 484, writ denied, 00-544 (La. 11/13/00), 773 So.2d 156, this court noted that

where the record was sufficient to resolve the claim and the claim was raised by

assignment of error on appeal, it may be considered. In the present case, the record

is sufficient to address the claim of ineffective assistance of counsel for failure to

make or file a motion to reconsider the sentence.

Louisiana Code of Criminal Procedure Article 894.1(C) requires the trial court

to “state for the record the considerations [of La.Code Crim.P. art. 894.1(B)] taken

into account and the factual basis therefor in imposing sentence.” Nevertheless,

“[w]here the record clearly shows an adequate factual basis for the sentence

imposed[, the supreme] court has held that remand is unnecessary, even where there

has not been full compliance with Article 894.1.” State v. Lanclos, 419 So.2d 475,

478 (La.1982) (citing State v. Boatright, 406 So.2d 163 (La.1981); State v.

McDonald, 404 So.2d 889 (La.1981); State v. Martin, 400 So.2d 1063 (La.1981);

8

and State v. Douglas[, 389 So.2d 1263 (La.1980)]). See also State v. Parker, 49,009,

p. 21 (La.App. 2 Cir. 5/15/14), 141 So.3d 839, 852 (“the failure to state the factual

basis for a sentence is not grounds for reversal where the basis is apparent from the

record.”)

Furthermore, due to the trial judge’s unique position of reviewing
subjective factors not available on appeal, he is given a wide discretion
in the imposition of sentences within the statutory limits, and a sentence
imposed by him should not be set aside as excessive in the absence of
a manifest abuse of his discretion.

State v. Maxie, 438 So.2d 1199, 1201 (La.App. 3 Cir. 1983), writ denied, 443 So.2d

1118 (La.1984).

“While the trial judge need not articulate every aggravating and mitigating

circumstance outlined in art. 894.1, the record must reflect that he adequately

considered these guidelines in particularizing the sentence to the defendant.” State

v. Smith, 433 So.2d 688, 698 (La.1983) (citing State v. Ray, 423 So.2d 1116

(La.1982); State v. Keeney, 422 So.2d 1144 (La.1982); State v. Duncan, 420 So.2d

1105 (La.1982)).

In this case, Defendant claims the trial court’s compliance with La.Code

Crim.P. art. 894.1 was inadequate to support his sentence. Specifically, Defendant

argues the trial court should have given more significance to his mental health issues

at the time of the incident. The State maintains that the trial court’s considerations

during sentencing were in accordance with La.Code Crim.P. art. 894.1. Further, the

State points out that Defendant fails to introduce any new information that might

have been raised at the sentencing hearing.

In sentencing Defendant, the trial court made the following observations:

YOUR HONOR: All right. In review of the evidence submitted
to this Court, I hereby find -- I hereby find that Mr. Kelby Meaux is a

9

21-year-old white male and has been classified as a first felony
offender.

I hereby find that, due to the nature of the crime, in consideration
of Article 893 as well as 890.3, he is not provided with the benefit of
having a suspension of sentence and therefore will serve his sentence at
hard labor without the benefit of probation, parole, or suspension of
sentence.

I really don’t have any evidence to suggest that he was not in his
right mind at the time of the crime. The crime is one of the most violent
crimes and, by the grace of God, Ms. Zaunbrecher was not killed. Had
she been killed, he would be serving life without benefit. But obviously,
God intervened and she is with us today.

You showed total disregard for her, total disregard for someone
you supposedly loved at some point. So you had no mercy on her. I
don’t know why I should have any mercy on you.

Now, I will say I will consider your mental health as a mitigating
factor. However, it does not excuse your actions. I will consider your
youth as a mitigating factor. However, it does not excuse your actions.

I see from the PSI and from the victim’s impact statement there
was a prior history of domestic violence and a very volatile relationship
between both the defendant and the victim, which the Court will take
into consideration for sentencing.

From the sentencing transcript, it is clear the trial court considered

Defendant’s mental health and youth as mitigating factors. The trial court found

Defendant was a first offender but noted a history of domestic violence between

Defendant and the victim. Therefore, we find the trial court’s compliance with

La.Code Crim.P. art. 894.1 was adequate.

Even considering Defendant’s age, mental health issues, and lack of criminal

history, we further find his twenty-year sentence does not shock the sense of justice

and is not disproportionate to the severity of the offense under these facts and

circumstances. Defendant has not proven counsel’s failure to make or file a motion

to reconsider sentence would have resulted in a lesser sentence. Therefore, we find

the failure to make or file a motion to reconsider sentence to preserve Defendant’s
10

right to object to the excessiveness of his sentence on the specific grounds in

La.Code Crim.P. art. 894.1 did not result in ineffective assistance of counsel.

DISPOSITION

For the foregoing reasons, Defendant’s conviction and sentence are affirmed.

AFFIRMED.

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