State of Louisiana v. Freeman Eric Tucker

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

22-735

STATE OF LOUISIANA

VERSUS

FREEMAN ERIC TUCKER

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APPEAL FROM THE
TENTH JUDICIAL DISTRICT COURT
PARISH OF NATCHITOCHES, NO. C-28863
HONORABLE LALA BRITTAIN SYLVESTER, DISTRICT JUDGE

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JONATHAN W. PERRY
JUDGE

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Court composed of Shannon J. Gremillion, Jonathan W. Perry, and Charles
G. Fitzgerald, Judges.

Fitzgerald, J., concurs without assigning reasons.

CONVICTION AFFIRMED; SENTENCE
AFFIRMED, IN PART, AND VACATED,
IN PART, CASE REMANDED,
WITH INSTRUCTIONS.

G. Paul Marx
Louisiana Appellate Project
Post Office Box 82389
Lafayette, Louisiana 70598-2389
(337) 237-2537
COUNSEL FOR DEFENDANT/APPELLANT:
Freeman E. Tucker

Billy Joe Harrington
District Attorney, Tenth Judicial District
J. Chris Guillet
Assistant District Attorney
200 Church Street
Natchitoches, Louisiana 71457
(318) 357-2214
COUNSEL FOR APPELLEE:
State of Louisiana

PERRY, Judge.

A unanimous jury convicted Freeman Eric Tucker (“Defendant”) of

possession of a firearm by a convicted felon, a violation of La.R.S. 14:95.1. For the

following reasons, we affirm Defendant’s conviction, affirm Defendant’s sentence,

in part, vacate Defendant’s sentence, in part, and remand the matter for a hearing

pursuant to La.Code Crim.P. art. 875.1.

FACTS AND PROCEDURAL HISTORY

On July 16, 2019, Defendant possessed a firearm after having previously been

convicted of armed robbery. Defendant was charged by bill of information on

August 12, 2019, with aggravated assault, a violation of La.R.S. 14:37; attempted

carjacking, violations of La.R.S. 14:27 and La.R.S. 14:64.2; illegal carrying of a

weapon, a violation of La.R.S. 14:95; and resisting an officer, a violation of La.R.S.

14:108. On February 11, 2020, the State dismissed the charges of aggravated assault

and attempted carjacking. An amended bill of information filed on February 12,

2020, reflected the remaining charges of illegal carrying of a weapon and resisting

an officer and added the charge of possession of a firearm by a convicted felon, a

violation of La.R.S. 14:95.1. The trial court granted Defendant’s pro se motion to

quash as to the charges of illegal carrying of a weapon and resisting an officer on

February 21, 2020, and the State was ordered to separate the felony from the

misdemeanor charges. Another amended bill of information was filed on July 9,

2020, indicating the offenses of illegal carrying of a weapon and resisting an officer

were transferred to trial court docket number C28863-1B, leaving the charge of

possession of a firearm by a convicted felon.

Trial by jury commended on April 11, 2022, and Defendant was found guilty

of possession of a firearm by a convicted felon on April 12, 2022. On August 29,

2022, Defendant was sentenced to serve twenty years at hard labor without benefit

of probation, parole, or suspension of sentence and to pay a fine of $5,000.00. The

trial court ordered the sentence to run consecutively to any parole time. A “Motion

for Appeal and Designation of Record” was filed on August 29, 2022, and was

granted.

APPELLANT’S ASSIGNMENTS OF ERROR

Defendant is now before this court alleging two assignments of error

regarding his conviction and sentence:

I. The trial court erred in finding that the State met its burden of
proving that the arrest of Freeman E. Tucker was based on probable
cause. All police knew when they arrested him was that he is a black
man and [he] ran away from police when they approached him
walking down the street.

II. The trial court erred in giving any weight to an unadjudicated and
actually dismissed charge of Attempted Carjacking as evidence in
support of a maximum sentence on the offense of conviction.

APPELLANT’S ARGUMENTS

Defendant argues the trial court erred in finding probable cause existed for his

arrest. He alleges that all police knew when they arrested him was that he was a

black man and that he ran away from police when they approached him walking

down the street.

Defendant also raises the following issues in his second assigned error: 1) the

trial court erred in giving any weight to an unadjudicated and dismissed charge of

attempted carjacking as evidence in support of a maximum sentence; 2) the

$5,000.00 fine is insupportable because he is presumed indigent; 3) the trial court

failed to hold a hearing in accordance with La.Code Crim.P. art. 875.1, which

mandates a hearing for determination of whether payment in full of the aggregate

amount of the fine imposed would cause substantial financial hardship to Defendant

or his dependents; and 4) his maximum sentence is excessive.

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APPELLEE’S POSITION

The State argues law enforcement had reasonable suspicion to stop Defendant,

and probable cause to arrest him. The State further argues the trial court had

sufficient grounds to impose its sentence on Defendant.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed by this

court for errors patent on the face of the record. After reviewing the record, we find

there is one error patent regarding the trial court’s failure to hold a hearing pursuant

to La.Code Crim.P. art. 875.1. Since the error has been raised as an issue within

Defendant’s assignment of error number two, we will address it as such.

ASSIGNMENT OF ERROR NUMBER ONE

In his first assignment of error, Defendant contends the trial court erred in

finding that the State met its burden of proving that his arrest was based on probable

cause because all police knew when they arrested him was that he was a black man

and that he ran away from police when they approached him walking down the street.

The State argues officers had reasonable suspicion to stop Defendant and, finding

he was armed, had reason to check his criminal history which revealed he was a

convicted felon.

Despite these contentions, our review of the proceedings in this matter reveals

the legality of Defendant’s arrest has been previously considered by this court. A

Motion to Suppress was filed on July 17, 2020. Therein, Defendant argued his arrest

was illegal and all evidence seized as a result thereof should be suppressed. A

hearing on the motion was held on September 22, 2020. Testimony indicated police

were dispatched when a woman called 911 and reported that a black male pulled a

handgun on her while she was in her car and beat on the window in an attempt to get

her to roll down her window. Officer Sean Lodrigue (“Officer Lodrigue”) testified

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he was patrolling in the area nearby when he heard the call from dispatch. Officer

Lodrigue recalled dispatch describing the perpetrator as an older black male. Officer

Lodrigue later stated he did not recall dispatch saying the man was wearing a suit,

and he did not recall how the man was actually dressed. When driving through the

area of the reported crime within minutes of receiving the call from dispatch, Officer

Lodrigue saw an older black male walking toward him. When the man saw Officer

Lodrigue, the man took off running through the grass and went over a fence. Officer

Lodrigue subsequently located the man. He yelled through the open car window for

the man to stop, and the man took off running again. As Officer Lodrigue, who was

now on foot, rounded the last building before an open field, he saw the man on the

ground being handcuffed by two officers. According to Officer Lodrigue,

reasonable suspicion to suspect the man had been involved in a crime was based on

him being a black man who ran for no reason.

Officer Zack McConnell (“Officer McConnell”) testified that dispatch

described the suspect as a black male in a gray suit. Defendant was a black man

wearing jeans, work boots, and a button-down shirt. When asked what articulable

facts other than the victim’s description he had to detain Defendant, Officer

McConnell stated, “Due to the fact that a crime was just committed in the area that

Mr. Tucker was walking. And also due to the fact that as officers tried to approach

Mr. Tucker to ask him various questions, he then proceeded to take off running from

officers.” At the time he was apprehended, Defendant possessed a handgun, a taser,

and a knife.

The State argued there was ample evidence to detain Defendant, “of course,

search incident to arrest.” Additionally, Defendant matched the general description

of the perpetrator. Moreover, Defendant’s flight and jumping over fences were

sufficient to justify a reasonable suspicion. Defense counsel argued Defendant did

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not match the description given by the victim, as he was not wearing a gray suit.

The only articulable facts were that Defendant was black, and he ran when he saw

police. Moreover, without being told to stop and answer questions, Defendant did

nothing wrong by turning and going in a different direction. The trial court

subsequently denied the motion to suppress, finding the officers had reasonable

suspicion.

Defendant sought supervisory review of the trial court’s ruling, arguing the

State failed to prove probable cause for an arrest inasmuch as he did not commit a

crime in the presence of officers, and the officers did not testify to sufficient

articulable facts that amounted to reasonable suspicion because he was walking

down the street in the middle of the day in clothing that did not match the description

given by dispatch.

This court held:

WRIT DENIED: Defendant seeks review of the trial court’s
September 22, 2020 denial of his Motion to Suppress. Defendant’s writ
application failed to include the certification for evidentiary
attachments required by Third Circuit Internal Rule 32. Additionally,
the transcript of the preliminary examination was not introduced at
the hearing on Defendant’s Motion to Suppress. Therefore, that
transcript and any reference to testimony given at that hearing were not
considered by this court.

Police had reasonable suspicion to stop Defendant and probable
cause to arrest him. Cf. State v. Greenwell, 32,249 (La.App. 2 Cir.
8/18/99), 746 So.2d 29; State v. Price, 14-127 (La.App. 3 Cir. 6/4/14),
139 So.3d 1259, writ denied, 14-1429 (La. 2/6/15), 158 So.3d 815;
State v. Robertson, 14-612 (La.App. 1 Cir. 11/25/14), 168 So.3d 451.
Accordingly, Defendant’s writ application is denied.

State v. Tucker, 20-568 (La.App. 3 Cir. 1/7/21) (unpublished writ ruling) (emphasis

added).

In brief to this court, Defendant asserts the application for supervisory writs

was not complete because it did not contain the transcript of the hearing on the

motion to suppress. Consequently, he alleges this court did not consider the

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transcript of the suppression hearing and he argues the law of the case doctrine is,

therefore, inapplicable. He urges this court to reconsider its prior ruling in light of

the transcript of the motion to suppress and testimony presented at trial. Defendant

further argues the lack of specifics in the description of the perpetrator as a black

man renders the stop illegal because the generic description did not distinguish him

from anyone else. Moreover, the inference that he was the perpetrator overlooked

the fact that he was on parole and could have run merely because he possessed a

firearm. Defendant addresses Officer McConnell’s trial testimony that the

complainant described the perpetrator as a black male wearing a gray suit, and

Defendant was not wearing a gray suit when he was apprehended. Defendant then

sets forth the law regarding investigatory stops and flight but does not connect those

statements to his case.

Defendant’s suggestion that this court did not consider the transcript of the

hearing on the motion to suppress is incorrect. The transcript of the hearing was

included in Defendant’s writ application, and this court did consider the testimony

presented at said hearing. This court, however, did not consider the transcript of

the preliminary examination or any argument referencing that hearing because the

transcript was not introduced at the hearing on the suppression motion.

When analyzing the issues presented in Defendant’s writ application, this

court was aware that Officer McConnell testified that dispatch said the suspect was

wearing a gray suit and that Defendant was not wearing a gray suit at the time of

his arrest. Officer McConnell’s trial testimony was not markedly different. Officer

McConnell said the complainant described the suspect as a black male wearing a

gray suit. However, Officer McConnell testified Defendant had dreadlocks and

wore a gray shirt, a tie, jeans, and work boots at the time he was apprehended.

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When asking this court to revisit the ruling on the motion to suppress,

Defendant does not address the testimony of any trial witness other than Officer

McConnell and does not argue this court’s prior ruling finding police had

reasonable suspicion to stop him and probable cause to arrest him was clear error.

As this court explained in State v. Dickerson, 14-170, p. 9 (La.App. 3 Cir.

6/4/14), 140 So.3d 904, 909, writ denied, 14-1466 (La. 3/13/15), 161 So.3d 638:

Under the “law of the case” doctrine, prior decisions of the
appellate court are considered binding and may not be reconsidered on
appeal absent clear error. Juneau v. State, 06-1653 (La.App. 3 Cir.
5/2/07), 956 So.2d 728, writ denied, 07-1177 (La.9/14/07), 963 So.2d
1004; State v. Molineux, 11-275 (La.App. 4 Cir. 10/19/11), 76 So.3d
617, writ denied, 11-2556 (La.3/30/12), 85 So.3d 117. “[T]he [law of
the case] doctrine is discretionary and should not be applied where it
would effectuate an obvious injustice or where the former appellate
decision was clearly erroneous.” Juneau, 956 So.2d at 733 (quoting
Trans La. Gas Co. v. La. Ins. Guar. Ass’n, 96-1477 (La.App. 1 Cir.
5/9/97), 693 So.2d 893, 896) (alternations in original).

Further, in State v. Dugas, 21-85, p. 11 (La.App. 3 Cir. 5/11/22) (unpublished

opinion), writ denied, 22-947 (La. 9/7/22), 345 So.3d 426, it was noted, “[T]his court

has continued to apply the doctrine as a discretionary tool of judicial economy . . . .

The present case provides another illustration of the need for the use of the doctrine

in some form.” We further note this court’s decision in Dugas is supported by the

supreme court’s statement in Day v. Campbell-Grosjean Roofing & Sheet Metal

Corp., 260 La. 325, 330–31, 256 So.2d 105, 107 (1971), “Nevertheless, the law-of-

the-case principle is applied merely as a discretionary guide: Argument is barred

where there is merely doubt as to the correctness of the former ruling, but not in

cases of palpable former error or so mechanically as to accomplish manifest

injustice.”

After reviewing the arguments put forth by Defendant relating to the

circumstances surrounding his arrest and all evidence seized as a result thereof, we

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find no error in the prior decision of this court and find no manifest injustice will

occur by relying on the ruling in Defendant’s writ. We, therefore, decline to revisit

the ruling on the motion to suppress.

ASSIGNMENT OF ERROR NUMBER TWO

In his second assignment of error, Defendant challenges his maximum

sentence, which includes a $5,000.00 fine. According to Defendant: 1) the trial

court erred in giving any weight to an unadjudicated and dismissed charge of

attempted carjacking as evidence in support of a maximum sentence; 2) the

$5,000.00 fine is insupportable because he is presumed indigent; 3) the trial court

failed to hold a hearing in accordance with La.Code Crim.P. art. 875.1, which

mandates a hearing for determination of whether payment in full of the aggregate

amount of the fine imposed would cause substantial financial hardship to Defendant

or his dependents; and 4) his maximum sentence is excessive.

Possession of a firearm by a convicted felon is punishable by imprisonment

at hard labor for not less than five nor more than twenty years without the benefit of

probation, parole, or suspension of sentence and a fine of not less than $1,000.00 nor

more than $5,000.00. La.R.S. 14:95.1(B).

When imposing Defendant’s sentence, the trial court stated the following:

This Court has taken notice of and has weighed in its decision today the
defendant’s social history and his considerable prior criminal record
which includes no less than the following serious felony convictions:
Simple Burglary, Illegal Possession of Stolen Things, Felony-Grade
Theft, two-counts of Armed Robbery, one-count of First-Degree
Robbery. This Court also notes that your 1984 conviction of Illegal
Possession of Stolen Things was reduced from a charge of Armed
Robbery, a violent crime. Mr. Tucker, of your considerable criminal
history, this court notes most of all that your first conviction in 1978,
when you were 19 years old, you received a probated sentence, in other
words, a second chance. To this Court, the purpose of probation is to
assist in reducing the incidence and impact of crime by probationers in
the community, and that purpose is premised on several core
beliefs . . . . To sum it up, probation is a privilege and an opportunity
to change. It is clear that not only did you not appreciate the privilege

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of probation, but probation taught you nothing about the danger you
repeatedly placed yourself [sic] by participating in your violent crime.
Further, you have shown that you have no sense of individual
responsibility. In 1983, after a mere two years of completing your
probation for your first conviction, you were charged with Armed
Robbery and drug offenses. Pleading down to Illegal Possession of
Stolen Things, you received a two-year flat DOC sentence on June 6th,
1984, but before those two years were up, you were arrested for Theft
and given yet another two years hard labor. Then, again, before those
two years were up, you were arrested and convicted of Armed Robbery
and First-Degree Robbery and received a serious sentence of 120 years.
In 2017, you somehow got out on parole and, with only two years of
parole under your belt and no respect or appreciation for that parole,
you pull a gun on an unsuspecting woman in a Natchitoches parking lot
knowing you are on parole and putting yourself at risk to return and
complete that 120 years. You are now 63 years old; age has not matured
you at all to leave your life of violent crime behind you. Most would
think that convicted criminals in their sixties would find themselves too
old to keep up with violent crime. With you, it’s your fountain of youth.
Any less of a sentence that [sic] I render today would deprecate the
seriousness of not only your crime, but of the danger you are to the
public.

The trial court then ordered Defendant to serve twenty years at hard labor

without benefit of probation, parole, or suspension of sentence, to run consecutively

to his parole time, and to pay a fine of $5,000.00. Defense counsel made a general

objection. However, no motion for reconsideration was filed.

In State v. Barling, 00-1241, 00-1591, pp. 10–11 (La.App. 3 Cir. 1/31/01),

779 So.2d 1035, 1041–42, writ denied, 01-838 (La. 2/1/02), 808 So.2d 331, this

court addressed review of a sentence following a general objection and the failure to

file a motion for reconsideration:

The failure to timely file a written motion to reconsider sentence
or to orally urge any specific ground for reconsideration at sentencing
precludes a defendant from objecting to the sentence imposed. State v.
Moore, 98-1423 (La.App. 3 Cir. 3/3/99); 734 So.2d 706. See also State
v. King, 95-344 (La.App. 3 Cir. 10/4/95); 663 So.2d 307, writ denied,
95-2664 (La.3/15/96); 669 So.2d 433. La.Code Crim.P. art. 881.1
(emphasis added) serves as the basis for this restriction and provides,
in pertinent part:

A. (1) Within thirty days following the imposition
of sentence or within such longer period as the trial court

9

may set at sentence, the state or the defendant may make
or file a motion to reconsider sentence.
(2) The motion shall be oral at the time of
sentencing or in writing thereafter and shall set forth the
specific grounds on which the motion is based.
....

D. 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.

In cases where courts have held that an oral objection alone is
sufficient to preserve the issue for review, the oral objection contained
the basis for the motion, such as excessiveness of sentence. See State
v. Caldwell, 620 So.2d 859 (La.1993); State v. Trahan, 98-1442
(La.App. 4 Cir. 12/1/99); 752 So.2d 921. Therefore, since Defendant’s
oral motion did not set forth any specific grounds to support his claim
of excessive sentences, we are relegated to a bare claim of
excessiveness. State v. Mims, 619 So.2d 1059 (La.1993), after remand,
626 So.2d 856 (La.App. 2 Cir.1993), writ denied, 93-2933 (La.
2/11/94); 634 So.2d 373.

Because defense counsel entered a general objection, this court is relegated to a bare

claim of excessiveness. Thus, Defendant waived review of his claim that the trial

court erred in giving any weight to an unadjudicated and dismissed charge of

attempted carjacking as evidence in support of a maximum sentence.

[Louisiana Constitution Article] I, § 20 guarantees that, “[n]o law
shall subject any person to cruel or unusual punishment.” To constitute
an excessive sentence, the reviewing court must find the penalty so
grossly disproportionate to the severity of the crime as to shock our
sense of justice or that the sentence makes no measurable contribution
to acceptable penal goals and is, therefore, nothing more than a needless
imposition of pain and suffering. State v. Campbell, 404 So.2d 1205
(La.1981). The trial court has wide discretion in the imposition of
sentence within the statutory limits and such sentence shall not be set
aside as excessive absent a manifest abuse of discretion. State v.
Etienne, 99-192 (La.App. 3 Cir. 10/13/99); 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).

10

Barling, at 1042–43 (alteration in original).

In deciding whether a sentence is shocking or makes no
meaningful contribution to acceptable penal goals, an appellate court
may consider several factors including the nature of the offense, the
circumstances of the offender, the legislative purpose behind the
punishment and a comparison of the sentences imposed for similar
crimes. State v. Smith, 99-0606 (La.7/6/00); 766 So.2d 501.

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.

As for the nature of the offense, Defendant was convicted of being a felon in

possession of a firearm. “It is unlawful for any person who has been convicted of

. . . a crime of violence as defined in R.S. 14:2(B) which is a felony . . . to possess a

firearm or carry a concealed weapon.” La.R.S. 14:95.1(A). Defendant was

previously convicted of armed robbery, which is a crime of violence as well as a

felony. See La.R.S. 14:2(A)(4) and (B)(21); 14:64.

[Louisiana Revised Statutes 14:95.1] was passed in the interest of the
public and as an exercise of the police power vested in the legislature.
Its purpose is to limit the possession of firearms by persons who, by
their past commission of certain specified serious felonies, have
demonstrated a dangerous disregard for the law and present a potential
threat of further or future criminal activity. State v. Amos, 343 So.2d
[166] at 168 [(La.1977)].

State v. Eberhardt, 13-2306, 14-209, pp. 10–11 (La. 7/1/14), 145 So.3d 377, 384. In

addition to the firearm, Defendant possessed a taser and a knife at the time he was

apprehended.

As for the circumstances of the offender, Defendant was nineteen years old

when he began committing crimes and is now sixty-three years old. Defendant has

twice been on parole and committed crimes before his parole was completed.

Furthermore, Defendant is considered a fourth-felony offender and has a history of

committing violent crimes.

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This court discussed similar sentences in State v. Charles, 20-498, pp. 18–21

(La.App. 3 Cir. 5/5/21), 318 So.3d 356, 366–67 (alteration in original), noting that

in 2010 La. Acts No. 815, § 1 the legislature increased the maximum sentence in

La.R.S. 14:95.1 from fifteen to twenty years:

Generally, maximum sentences are reserved for the worst
offenders and the worst offenses. State v. Delaughter, 29,974 (La.App.
2 Cir. 12/10/97), 703 So.2d 1364, writ denied, 98-18 (La. 5/1/98), 805
So.2d 201, abrogated in part on other grounds by State ex rel. Olivieri
v. State, 00-172, 00-1767 (La. 2/21/01), 779 So.2d 735, certs denied,
533 U.S. 936, 121 S.Ct. 2566, 150 L.Ed.2d 730 (2001) and 534 U.S.
892, 122 S.Ct. 208, 151 L.Ed.2d 148 (2001). Our review of
comparative cases reveals that similar sentences to Defendant’s have
been imposed for similar cases and offenders.

In State v. Jones, 01-539 (La.App. 3 Cir. 10/31/01), 799 So.2d
772, writ denied, 01-3310 (La. 12/13/02), 831 So.2d 975, the defendant
argued his maximum sentence for possession of a firearm by a felon,
fifteen years at hard labor without benefit of probation, parole, or
suspension of sentence, the maximum sentence at that time, and the
minimum fine of $1,000.00, was excessive. The trial court noted
defendant had seven previous convictions, five of which were felonies;
found there was an undue risk of defendant committing a crime if not
incarcerated; noted the defendant had no remorse; and that a lesser
sentence would deprecate the seriousness of the crime. This court
found no error in the sentence, considering defendant’s five prior felony
convictions and the nature of his latest conviction.

In State v. Caffrey, 08-717 (La.App. 5 Cir. 5/12/09), 15 So.3d
198, writ denied, 09-1305 (La. 2/5/10), 27 So.3d 297, the defendant was
sentenced to fifteen years at hard labor without the benefit of parole,
probation, or suspension of sentence, the maximum sentence at that
time, for possessing a firearm as a convicted felon. The defendant
argued that he was not the worst type of offender and that he only had
one prior conviction for possession of cocaine. In denying
reconsideration of the sentence, the trial court noted the gun in question
was fully loaded, defendant had a “less than cooperative attitude”
throughout trial and sentencing, and defendant was “less than
remorseful with regard to his actions.” Id. at 204. The fifth circuit
found that the sentence was not constitutionally excessive, taking into
account the defendant’s prior conviction for possession of cocaine and
his guilty pleas to possession of cocaine and possession of marijuana
on the same date that he pled guilty to being a felon in possession of a
firearm.

In State v. Warmack, 07-311 (La.App. 5 Cir. 11/27/07), 973
So.2d 104, the fifth circuit upheld a fifteen-year sentence, again the
maximum sentence at that time, for the defendant’s possession of a

12

firearm by a convicted felon. The defendant had three prior convictions
for various drug offenses. Additionally, the defendant ran from the
police, and the gun he possessed was fully loaded.

In State v. Contreras, 17-735 (La.App. 4 Cir. 5/30/18), 247 So.3d
858, writ denied, 18-1172 (La. 12/17/18), 259 So.3d 341, the defendant
received a twenty-year sentence without benefit of probation, parole, or
suspension of sentence, plus a $1,000.00 fine for possession of a
firearm by a convicted felon. The defendant claimed the sentence was
excessive. In a footnote, the fourth circuit stated:

Because the statutory maximum changed in 2011
from fifteen years to twenty years, there is a lack of
jurisprudence where the defendant was sentenced to the
maximum of twenty years but considerable case law
[exists] upholding the maximum sentence of fifteen years
for felon in possession of a firearm where the defendant
has prior convictions. See State v. Crawford, 03-1494 (La.
App. 5 Cir. 4/27/04), 873 So.2d 768 (the defendant had
previous convictions for crimes of violence and a
propensity for recidivism, and thus the trial judge did not
abuse his discretion in imposing the maximum sentence
on the defendant); State v. Taylor, 2004-689 (La. App. 5
Cir. 12/14/04), 892 So.2d 78 (the defendant had numerous
felony convictions and the trial court did not abuse its
discretion in imposing the maximum fifteen-year
sentence).

Id. at 872 n.6. The fourth circuit concluded that this defendant’s
maximum sentence was not excessive.

In State v. Abram, 32,627 (La.App. 2 Cir. 10/27/99), 743 So.2d
895, 903, writ denied, 00-121 (La. 9/29/00), 769 So.2d 549, the
defendant received a fifteen-year sentence, the maximum sentence then
available, for possession of a firearm by a convicted felon. The trial
court noted that the defendant had amassed an extensive criminal
record. Upon reviewing the defendant's lengthy criminal history, the
trial court felt that any lesser sentence would deprecate the seriousness
of the offense. The second circuit found that in consideration of
defendant’s criminal history, the defendant’s sentence was not an abuse
of the trial court’s discretion and did not shock the court’s sense of
justice.

The court affirmed Charles’s twenty-year sentence, noting he was forty-five years

old, had five felony convictions, and was approached by police because there was a

warrant for his arrest.

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Having reviewed the record and the sentences imposed in similar cases, we

find Defendant’s twenty-year sentence is not unconstitutionally excessive.

Defendant’s final arguments are that the trial court erred in failing to conduct

a hearing in accordance with La.Code Crim.P. art. 875.1, which he suggests cannot

be waived. Defendant further asserts the $5,000.00 fine is insupportable because he

is presumed indigent when incarcerated, a fact of which Defendant suggests this

court can take judicial notice.

Louisiana Code of Criminal Procedure Article 875.1 (emphasis added)

provides:

A. The purpose of imposing financial obligations on an offender
who is convicted of a criminal offense is to hold the offender
accountable for his action, to compensate victims for any actual
pecuniary loss or costs incurred in connection with a criminal
prosecution, to defray the cost of court operations, and to provide
services to offenders and victims. These financial obligations should
not create a barrier to the offender’s successful rehabilitation and
reentry into society. Financial obligations in excess of what an
offender can reasonably pay undermine the primary purpose of the
justice system which is to deter criminal behavior and encourage
compliance with the law. Financial obligations that cause undue
hardship on the offender should be waived, modified, or forgiven.
Creating a payment plan for the offender that is based upon the ability
to pay, results in financial obligations that the offender is able to comply
with and often results in more money collected. Offenders who are
consistent in their payments and in good faith try to fulfill their financial
obligations should be rewarded for their efforts.

B. For purposes of this Article, “financial obligations” shall
include any fine, fee, cost, restitution, or other monetary obligation
authorized by this Code or by the Louisiana Revised Statutes of 1950
and imposed upon the defendant as part of a criminal sentence,
incarceration, or as a condition of the defendant's release on probation
or parole.

C. (1) Notwithstanding any provision of law to the contrary,
prior to ordering the imposition or enforcement of any financial
obligations as defined by this Article, the court shall conduct a hearing
to determine whether payment in full of the aggregate amount of all the
financial obligations to be imposed upon the defendant would cause
substantial financial hardship to the defendant or his dependents. The
court may consider, among other factors, whether any victim of the
crime has incurred a substantial financial hardship as a result of the

14

criminal act or acts and whether the defendant is employed. The court
may delay the hearing to determine substantial financial hardship for a
period not to exceed ninety days, in order to permit either party to
submit relevant evidence.

(2) The defendant or the court may waive the judicial
determination of a substantial financial hardship required by the
provisions of this Paragraph. If the court waives the hearing on its own
motion, the court shall provide reasons, entered upon the record, for
its determination that the defendant is capable of paying the fines, fees,
and penalties imposed without causing a substantial financial hardship.

D. (1) If the court determines that payment in full of the
aggregate amount of all financial obligations imposed upon the
defendant would cause substantial financial hardship to the defendant
or his dependents, the court shall do either of the following:

(a) Waive all or any portion of the financial obligations, except
as provided in Paragraph E of this Article.

(b) Order a payment plan that requires the defendant to make a
monthly payment to fulfill the financial obligations.

(2)(a) The amount of each monthly payment for the payment plan
ordered pursuant to the provisions of Subsubparagraph (1)(b) of this
Paragraph shall be determined by the court after considering all relevant
factors, including but not limited to the defendant’s average gross daily
income for an eight-hour work day.

(b) If the court has ordered restitution, half of the defendant’s
monthly payment shall be distributed toward the defendant's restitution
obligation.

(c) Except as provided in Paragraph E of this Article, during any
periods of unemployment, homelessness, or other circumstances in
which the defendant is unable to make the monthly payment, the court
or the defendant’s probation and parole officer is authorized to impose
a payment alternative, including but not limited to substance abuse
treatment, education, job training, or community service.

(3) If, after the initial determination of the defendant’s ability to
fulfill his financial obligations, the defendant’s circumstances and
ability to pay his financial obligations change, the state, the defendant,
or the defendant’s attorney may file a motion with the court to
reevaluate the defendant’s circumstances and determine, in the same
manner as the initial determination, whether a modification of the
monthly financial obligation imposed pursuant to this Article is
appropriate under the circumstances.

E. Notwithstanding any other provision of this Article or any
other provision of law to the contrary, a court may not waive nor forgive

15

restitution due to a crime victim unless the victim to whom restitution
is due consents to such an action.

F. If, at the termination or end of the defendant’s term of
supervision, any restitution ordered by the court remains outstanding,
the balance of the unpaid restitution shall be reduced to a civil money
judgment in favor of the person to whom restitution is owed, which may
be enforced in the same manner as provided for the execution of
judgments in the Code of Civil Procedure. For any civil money
judgment ordered under this Article, the clerk shall send notice of the
judgment to the last known address of the person to whom the
restitution is ordered to be paid.

G. The provisions of this Article shall apply only to defendants
convicted of offenses classified as felonies under applicable law.

H. Notwithstanding any provision of this Article or any other law
to the contrary, if the financial obligations imposed upon a defendant
would cause substantial financial hardship to the defendant or his
dependents, the court shall not order that the defendant be incarcerated
for his inability to meet those financial obligations. This provision shall
apply to defendants convicted of traffic offenses, misdemeanor
offenses, or felonies under applicable law.

This version of La.Code Crim.P. art. 875.1 became effective on August 1,

2022, shortly before Defendant was sentenced on August 29, 2022. We find

Defendant’s claim that the hearing provided for could not be waived is based on a

prior version of La.Code Crim.P. art. 875.1(C) (emphasis added),1 which provided:

1
Louisiana Code of Criminal Procedure Article 875.1 was enacted by 2017 La. Acts No.
260 and § 3 set forth an effective date of August 1, 2018. The effective date was extended to
August 1, 2019, by 2018 La. Acts No. 668, §§ 4, 6. See also 2018 La. Acts No. 137. 2019 La.
Acts No. 253, § 2 stated that it amended 2017 La. Acts No. 260, § 3 as amended by 2018 La. Acts
Nos. 137 and 668 to provide for an effective date of August 1, 2021. Act 253 amended La.Code
Crim.P. art. 885.1, which provides for the suspension of driving privileges. However, in 2020
House Concurrent Resolution 2, the legislature said Article 875.1 became effective on August 1,
2019, inasmuch as 2019 La. Acts No. 253 inadvertently did not amend the effective date of the
changes made to Article 875.1 by 2018 La. Acts No. 668. The legislature went on to suspend the
provisions of Article 875.1, with the suspension lasting from May 31, 2020, through August 1,
2021. (A concurrent resolution suspending a law has the force and effect of law. See La.Const.
art. 3, § 20; Louisiana Chem. Ass’n v. State through Louisiana Dep’t of Revenue, 16-501, p. 11
(La.App. 1 Cir. 4/7/17), 217 So.3d 455, 463, writ denied, 17-761 (La. 9/22/17), 227 So.3d 826.)
In 2021 La. Acts No. 313, the legislature enacted La.Code Crim.P. art. 875.2 with an effective date
of August 1, 2022, and further stated:

Section 2. Code of Criminal Procedure Article 875.1 is hereby repealed in
its entirety.

Section 3. (A) Notwithstanding Section 3 of Act No. 260 of the 2017
Regular Session or any other Act to the contrary, the provisions of Act No. 260 of

16

C. (1) Notwithstanding any provision of law to the contrary, prior
to ordering the imposition or enforcement of any financial obligations
as defined by this Article, the court shall determine whether payment
in full of the aggregate amount of all the financial obligations to be
imposed upon the defendant would cause substantial financial hardship
to the defendant or his dependents.

(2) The defendant may not waive the judicial determination of a
substantial financial hardship required by the provisions of this
Paragraph.

See also State v. Jarratt, 53,525 (La.App. 2 Cir. 6/24/20), 299 So.3d 1202.

Although Defendant committed his offense before the version of La.Code

Crim.P. art. 875.1 took effect on August 1, 2022, Article 875.1 is a procedural statute

that applies to all actions subsequent to its effective date. See State v. Brossette, 163

La. 1035, 113 So. 366 (1927). This conclusion is supported by Jarratt and State v.

Smith, 53,827 (La.App. 2 Cir. 3/3/21), 315 So.3d 407.

In Jarratt, the second circuit discussed La.Code Crim.P. art. 875.1, noting the

defendant was sentenced on September 9, 2019, and La.Code Crim.P. art. 875.1

became effective August 1, 2019. Thus, it was applicable to Jarratt’s case.

the 2017 Regular Session shall become effective on August 1, 2022, except as
provided by Subsection B of this Section.

(B) It is the intent of the legislature that the provisions of Act No. 260 of
the 2017 Regular Session that enacted Code of Criminal Procedure Article 875.1
and that amended and reenacted Code of Criminal Procedure Article 885.1(A), (C),
and (D) and 894.4 shall never become effective.

....

Section 5. (A) The provisions of Sections 1 and 2 of this Act shall become
effective on August 1, 2022.

(B) The provisions of Sections 3, 4, and this Section of this Act shall
become effective on August 1, 2021.

2022 La. Acts No. 219 § 1 amended and reenacted Article 875.1 and invalidated the enactment of
La.Code of Crim.P. art. 875.2 and the repeal of Article 875.1. Due to the language of 2019 La.
Acts No. 253, § 2; House Concurrent Resolution 2; and 2021 La. Acts No. 313, §§ 3 and 5, we
shall not discuss whether La.Code Crim.P. art. 875.1 became effective on August 1, 2019, or if it
was effective between August 1, 2021, and August 1, 2022.

17

In Smith, the second circuit again found La.Code Crim.P. art. 875.1 was

applicable, noting Smith had been sentenced on November 7, 2019. Smith’s

attorney objected to the sentence but did not file a motion to reconsider sentence.

The second circuit reviewed the sentence for constitutional excessiveness. The court

went on to consider Smith’s claim that the restitution imposed was not supported by

the record and, despite Smith’s failure to raise the issue, the court noted that La.Code

Crim.P. art. 875.1 was applicable to the case.

This court has also considered sentencing issues not raised in an objection or

motion to reconsider sentence. For example, in State v. Ross, 18-453 (La.App. 3

Cir. 3/13/19), 269 So.3d 1052, writ denied, 19-581 (La. 1/22/20), 291 So.3d 1041,

this court addressed Ross’s claim that the trial court’s order of restitution was not

supported by the record even though Ross’s motion to reconsider sentence asserted

only a general excessiveness claim.

Based on the purpose of La.Code Crim.P. art. 875.1, as set out in subsection

(A) thereof, and the cases set forth above, we find Defendant need not object on the

basis that the trial court failed to comply with La.Code Crim.P. art. 875.1 or include

such a claim in a motion to reconsider sentence to preserve the matter for review on

appeal. Moreover, this court may review Defendant’s claims as to the $5,000.00

fine in the interest of justice. See Uniform Rules—Courts of Appeal, Rule 1–3.

This court must also discuss waiver of the determination provided for in

La.Code Crim.P. art. 875.1. At the time Jarratt and Smith were decided, the judicial

determination of financial hardship could not be waived. As of August 1, 2022, the

determination may now be waived by a defendant or the trial court. A waiver by the

trial court must be made on the record. The article does not declare that a defendant’s

waiver must be made of record. However, we believe that to allow an implied waiver

by a defendant would be contrary to the stated purpose of the article. We find

18

guidance in Bearden v. Georgia, 461 U.S. 660, 672–73, 103 S.Ct. 2064, 2073 (1983)

(emphasis added), in which the Supreme Court placed the burden on the court to

inquire as to a defendant’s failure to pay restitution:

We hold, therefore, that in revocation proceedings for failure to
pay a fine or restitution, a sentencing court must inquire into the reasons
for the failure to pay. If the probationer willfully refused to pay or
failed to make sufficient bona fide efforts legally to acquire the
resources to pay, the court may revoke probation and sentence the
defendant to imprisonment within the authorized range of its sentencing
authority. If the probationer could not pay despite sufficient bona fide
efforts to acquire the resources to do so, the court must consider
alternate measures of punishment other than imprisonment. Only if
alternate measures are not adequate to meet the State’s interests in
punishment and deterrence may the court imprison a probationer who
has made sufficient bona fide efforts to pay. To do otherwise would
deprive the probationer of his conditional freedom simply because,
through no fault of his own, he cannot pay the fine. Such a deprivation
would be contrary to the fundamental fairness required by the
Fourteenth Amendment.

Furthermore, courts have not put the onus on a defendant to raise his indigency

when default time has been imposed pursuant to La.Code Crim.P. art. 884, which

requires the trial court to impose a specific term of imprisonment when it imposes a

fine or costs that are not paid.2 The issue has been considered an error patent:

The record indicates that Defendant is indigent. During the
pre-plea, guilty plea, and sentencing proceedings, he was represented
by a court-appointed attorney; and, on appeal, he is represented by the
Louisiana Appellate Project. This court finds these facts are
presumptive evidence of indigence. See State v. Jones, 535 So.2d 3
(La.App. 4 Cir.1988). Although we are amending the sentence to delete
the fine and payment to the Public Defender’s Office, the order to pay
$150.00 costs for the crime lab (presumably court costs) still remains.[3]
Therefore, we likewise delete the portion of the sentence providing for
a jail term in the event of default of payment of costs. The trial court is
instructed to note the amendment in its court minutes.

2
Louisiana Code of Criminal Procedure Article 884 now provides that its provisions do
not apply if the court has determined, pursuant to La.Code Crim.P. art. 875.1, that payment in full
of the aggregate amount of all financial obligations imposed upon a defendant would cause
substantial financial hardship to the defendant or his dependents.
3
The fine and payment to the Public Defender’s Office were illegal.

19

State v. Belton, 11-948, pp. 4–5 (La.App. 3 Cir. 3/7/12), 88 So.3d 1159, 1162. See

also State v. Duke, 11-688 (La.App. 3 Cir. 2/1/12), 84 So.3d 722, writ denied, 12-373

(La. 9/21/12), 98 So.3d 324; State v. Jackson, 53,497 (La.App. 2 Cir. 5/20/20), 296

So.3d 1156; State v. George, 94-2215 (La.App. 4 Cir. 4/26/95), 654 So.2d 813, writ

denied, 95-1221 (La. 10/13/95), 661 So.2d 495.

For the reasons discussed, we find Defendant was entitled to a hearing

pursuant to La.Code Crim.P. art. 875.1 prior to imposition of the fine.

Defendant also claims that his $5,000.00 fine is insupportable because he is

presumed indigent due to his incarceration, and this court can take judicial notice of

his indigency. Courts have found representation by court-appointed counsel and the

Louisiana Appellate Project as presumptive evidence of indigency when deleting

default time. See Belton, 88 So.3d 1159. However, in State v. Dickerson, 579 So.2d

472, 483 (La.App. 3 Cir.), writ granted in part on other grounds, 584 So.2d 1140

(La.1991), this court stated: “[W]e find that the trial court’s imposition of a fine

upon the indigent defendant in this case, which did not provide for a jail term in the

event of default of payment of the fine, is not excessive and is not an illegal

sentence.” Additionally, in State v. Williams, 598 So.2d 708, 710 (La.App. 5 Cir.),

writ denied, 604 So.2d 996 (La.1992), the fifth circuit stated, “The defendant’s

further contention that an indigent may not be sentenced to pay a fine and costs,

however, is an inaccurate statement of law. An indigent defendant may not be

sentenced to additional jail time for failure to pay a fine or costs.” Thus, we find

Defendant’s contention that imposition of a fine is illegal because he is indigent to

be without merit.

Before imposition of the $5,000.00 fine, the trial court should have held a

hearing pursuant to La.Code Crim.P. art. 875.1 to determine Defendant’s ability to

pay a fine. Because a hearing was not held, we vacate the $5,000.00 fine and we

20

remand the matter to the trial court for the required hearing. We do not find the

twenty-year sentence should be vacated inasmuch as the sentence is not excessive

and the sentence cannot be increased in lieu of Defendant’s inability to pay a fine.

DECREE

Defendant’s conviction is affirmed. Defendant’s sentence is affirmed, in part,

as to his sentence of twenty years at hard labor, and vacated, in part, as to the fine

imposed. We remand this case for a hearing pursuant to La.Code Crim.P. art. 875.1

to determine Defendant’s ability to pay a fine.

CONVICTION AFFIRMED; SENTENCE AFFIRMED, IN PART, AND
VACATED, IN PART, CASE REMANDED, WITH INSTRUCTIONS.

21