State of Louisiana v. Joshua Markell James

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

23-206

STATE OF LOUISIANA

VERSUS

JOSHUA MARKELL JAMES

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APPEAL FROM THE
SIXTEENTH JUDICIAL DISTRICT COURT
PARISH OF IBERIA, NO. 19-CR-0292
HONORABLE KEITH RAYNE JULES COMEAUX, DISTRICT JUDGE

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D. KENT SAVOIE
JUDGE

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Court composed of D. Kent Savoie, Van H. Kyzar, and Sharon Darville Wilson,
Judges.

AFFIRMED.

Hon. M. Bofill Duhe
District Attorney
Sixteenth Judicial District Court
W. Claire Howington
Assistant District Attorney
300 Iberia Street, #200
New Iberia, Louisiana 70560
(337) 369-4420
COUNSEL FOR PLAINTIFF/APPELLEE:
State of Louisiana

Richard Allen Spears
Attorney At Law
101 Taylor Street
New Iberia, Louisiana 70560
(337) 367-1960
COUNSEL FOR DEFENDANT/APPELLANT:
Joshua Markell James

SAVOIE, Judge.

Defendant, Joshua Markell James, was charged by bill of information filed

on March 8, 2019, with attempted second degree murder, a violation of La.R.S.

14:30.1 and 14:27, and criminal conspiracy to commit second degree murder, a

violation of La.R.S. 14:30.1 and 14:26.

On November 17, 2020, Defendant pled guilty as charged. The trial court

ordered a pre-sentence investigation (PSI) and a certified criminal history.

On August 9, 2022, the trial court held a sentencing hearing. The trial court

sentenced Defendant to thirty-five years at hard labor on the charge of attempted

second degree murder and twenty years at hard labor on the charge of conspiracy

to commit second degree murder. Additionally, the trial court ordered the

sentences to be served concurrently and gave Defendant credit for all time served

from the date of arrest.

Although he did not orally object to the sentences when announced,

Defendant filed a written motion to reconsider sentence as well as a motion for

appeal on August 12, 2022. In his motion to reconsider sentence, Defendant

claimed error in the trial court’s unwillingness to consider his age in accordance

with United States Supreme Court case, Miller v. Alabama, 567 U.S. 460, 132 S.Ct.

2455 (2012). On August 19, 2022, the trial court denied Defendant’s motion to

reconsider sentence; however, the trial court granted the motion for appeal.

Defendant now appeals his sentence, arguing it is unconstitutionally

excessive.1

For the following reasons, Defendant’s sentence is affirmed.

1
In the issues presented for review, Defendant only challenges the attempted second
degree murder sentence.

FACTS

Since this case resulted from a plea agreement, the facts in the record are not

fully developed. However, the State set forth the following factual basis at the plea

hearing:

[O]n the date alleged in the Bill of Information, in Iberia Parish,
Joshua Markell James along with Jaonne Augustine made a plan to
ambush and kill Isaiah Scott. They had the specific intent to kill Isaiah
Scott and armed themselves with high caliber weapons to do so. They
laid in wait at a particular location for Isaiah Scott to walk by. When
an individual who they thought was Isaiah Scott walked by, they both
fired multiple times at the individual, striking that person on at least
five occasions. That person turned out to be a juvenile with the initials
K. K., date of birth 1/23/2002. By making the plans to kill Isaiah Scott
and taking acts in furtherance of that conspiracy, they violated the
conspiracy to commit second degree murder statute. And additionally,
by actually shooting K. K., Jr., they committed an attempted second
degree murder. Augustine was armed with a .223 AR-15 style rifle
and the defendant, Joshua James, was armed with a Glock 9
millimeter.

ERRORS PATENT

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

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

no errors patent present.

DISCUSSION

In his sole assignment of error, Defendant contends the thirty-five-year

sentence imposed by the trial court is unconstitutionally excessive. Specifically,

Defendant alleges the trial court failed to apply the factors set forth in La.Code

Crim.P. art. 894.1 and to appropriately tailor the sentence to Defendant for the

crime of attempted second degree murder.2

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Louisiana Code of Criminal Procedure Article 894.1 sets forth both mitigating and
aggravating factors the trial court should consider when imposing a sentence.

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At the sentencing hearing, the State and defense counsel presented

arguments before the trial court. The State noted several aggravating factors,

including Defendant’s violent character, deliberate cruelty to the victim, and

pending criminal charges. In conclusion, the State argued that Defendant was a

violent individual who needed to be removed from society and asked for the

maximum sentence.

In opposition to the State’s argument, defense counsel presented mitigating

factors for consideration by the trial court. Defense counsel informed the court of

Defendant’s lack of criminal history. Defense counsel also stated that Defendant

was a youthful offender who did not have a fully developed brain and, thus, could

not appreciate his actions. Moreover, defense counsel contended Defendant did

not act alone nor was there any reason to believe he had been the Alpha male or the

leader of the pack. Defense counsel concluded his argument by asking the trial

court to impose a lesser sentence for Defendant.

After the presentation of arguments, the trial court stated the following:

ALL RIGHT. THE COURT HAS CONSIDERED THE
FACTS OF THE CASE ESPECIALLY AND GIVE GREAT
WEIGHT TO THE FACTS OF THE CASE. THIS CASE AND
ALSO THE CASE THAT WAS DISMISSED BECAUSE AS MR.
VINES HAS POINTED OUT, IT SHOWS A PROPENSITY TO
VIOLENCE BY THIS INDIVIDUAL. HE OPENLY CONSPIRED
AND PARTICIPATED IN ATTEMPTED MURDER OF AN
INDIVIDUAL WHO HE HAD NO BEEF WITH. HE HAD NO
DISPUTE WITH THIS INDIVIDUAL. THIS IS AN INNOCENT
YOUNG MAN WALKING IN THE MIDDLE OF THE NIGHT AS
THEY LAY IN WAIT FOR SOMEBODY ELSE, AND HE
HAPPENED TO GET THE WRATH OF MR. JAMES AND MR.
AUGUSTINE. ADDITIONALLY BECAUSE SOMEONE WAS
TALKING ABOUT THE INCIDENT FOR WHICH HE PLEAD
GUILTY, HIM AND MR. AUGUSTINE AGAIN AFTER SOME
SHORT PERIOD OF TIME AFTER THAT LAY IN WAIT WITH
DANGEROUS WEAPONS AGAIN, AND MR. AUGUSTINE ON
THIS PARTICULAR OCCASION PULLED THE TRIGGER AND
SHOT AND KILLED ANOTHER INDIVIDUAL. THAT MATTER

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HAS BEEN DISMISSED CONCERNING MR. JAMES, BUT THE
COURT HAS TO CONSIDER HIS DANGEROUS PROPENSITY
IN DETERMINING THE PROPER SENTENCE.

THE COURT HAS CONSIDERED THE PROVISIONS OF
ARTICLE 894.1 AND FIND [sic] THE FOLLOWING
APPLICABLE: NUMBER ONE, THE DEFENDANT’S CONDUCT
DURING THE COMMISSION OF THE OFFENSE MANIFESTED
DELIBERATE CRUELTY TO THE VICTIM. SHOOTING
SOMEBODY IS DELIBERATE CRUELTY. IT’S ALMOST THE
ULTIMATE CRUELTY. NUMBER TWO, THE OFFENDER
SHOULD HAVE KNOWN THAT THE VICTIM OF THE
OFFENSE WAS PARTICULARLY VULNERABLE, OKAY? AND
IT GOES ON TO SAY TO EXTREME YOUTH, ADVANCED AID,
DISABILITY OR ILL HEALTH. WELL, THE YOUNG MAN WAS
A JUVENILE, SO HE HAD EXTREME YOUTH. HE WAS
PROBABLY A LITTLE BIT NAIVE, AND LYING IN WAIT FOR
SOMEBODY, HIDING AND THEN AMBUSHING THEM IS
DELIBERATE CRUELTY, AND THEY’RE VULNERABLE.
PEOPLE DON’T EXPECT TO BE SHOT WALKING DOWN THE
STREET. NUMBER THREE, LET’S SEE, THE NEXT ONE
WOULD WILL BE THE OFFENDER KNOWINGLY CREATED A
RISK OF DEATH -- NO, THAT’S NOT IT. THE OFFENDER
USED THREATS OF OR ACTUAL VIOLENCE IN THE
COMMISSION OF HIS OFFENSE. ATTEMPTED SECOND-
DEGREE MURDER HAS TO HAVE ACTUAL VIOLENCE
TOWARDS THE PERSON. SUBSEQUENT TO THE OFFENSE,
THE OFFENDER USED OR CAUSED OTHERS TO USE
VIOLENCE, FORCE, OR THREATS WITH THE INTENT TO
INFLUENCE THE INSTITUTION, CONDUCT, OR OUTCOME OF
THE CRIMINAL PROCEEDINGS. HE KILLED SOMEONE WHO
WAS TALKING ABOUT THE MURDER WHO COULD’VE
POSSIBLY BEEN A WITNESS, POSSIBLY A LEAD TO OTHER
EVIDENCE THAT COULD HAVE BEEN USED IN THE
PROSECUTION OF MR. JAMES. SO, YOU KNOW, THAT IS
DEFINITELY APPLICABLE. THE OFFENSE RESULTED IN A
SIGNIFICANT PERMANENT INJURY OR SIGNIFICANT
ECONOMIC LOSS TO THE VICTIM OR HIS FAMILY. THE
VICTIM IN THE FIRST CASE THAT MR. JAMES
PARTICIPATED AND ACTIVELY [] SHOT THE VICTIM; HE
GOT SHOT FIVE TIMES. ANYONE WHO GETS SHOT FIVE
TIMES AND SURVIVES IS GOING TO HAVE SOME
SIGNIFICANT INJURIES AND LONG-LASTING EFFECTS
FROM THE SHOOTER. HE USED A DANGEROUS WEAPON IN
THE COMMISSION OF THE OFFENSE. THE OFFENSE
INVOLVED MULTIPLE VICTIMS AND INCIDENTS WHERE
SEPARATE SENTENCES HAVE NOT BEEN IMPOSED. HE GOT
THE BENEFIT OF GETTING A CHARGE DISMISSED AS A

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RESULT OF HIS CONFESSION AT THE SCENE AND OTHER
THINGS AND AS A RESULT OF THIS PLEA AGREEMENT.

YOU KNOW, I FIND VERY LITTLE OTHER THAN HIS
YOUTH THAT IS BENEFICIAL TO THE DEFENDANT AND HIS
LACK OF A PREVIOUS CRIMINAL HISTORY. THOSE TWO
THINGS OPERATE IN HIS FAVOR, AND THAT’S PROBABLY
THE ONLY REASON I’M NOT GIVING HIM THE MAXIMUM
SENTENCE IN THIS PARTICULAR CASE BECAUSE THE
COURSE OF THAT ACTIVITY IS SERIOUS, AND I FIND THAT
THERE IS AN UNDUE RISK THAT DURING THE PERIOD OF A
SUSPENDED SENTENCE ON PROBATION THE DEFENDANT
WILL COMMIT ANOTHER CRIME, THAT THE DEFENDANT IS
IN NEED OF CORRECTIONAL TREATMENT OR A
CUSTODIAL ENVIRONMENT THAT CAN BE PROVIDED
MOST EFFECTIVELY BY HIS COMMITMENT TO AN
INSTITUTION, AND A LESSER SENTENCE WILL DEPRECATE
THE SERIOUSNESS OF THE DEFENDANT’S CRIME.

The judge subsequently sentenced Defendant to thirty-five years at hard

labor for the crime of attempted second degree murder and twenty years at hard

labor for the crime of conspiracy to commit second degree murder. The trial court

also ordered the sentences to run concurrently.

After the trial court announced the sentences, defense counsel raised an

objection to the trial court’s use of La.Code Crim.P. art. 894.1. According to

defense counsel, the trial court did not properly apply La.Code Crim.P. art. 894.1

when the court considered the benefit Defendant received from having his other

case dismissed. The trial court explained to defense counsel that the court had the

authority to consider any arrest records or facts of previous criminal activity when

sentencing a defendant. Defense counsel did not raise the issue in his motion to

reconsider or in his brief to this court.

Regarding Defendant’s motion to reconsider, Louisiana Code of Criminal

Procedure Article 881.1 provides the mechanism for preserving the review of a

sentence by motion to reconsider sentence:

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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.

In his motion to reconsider sentence, Defendant asserted that he “[sought]

reconsideration based on the Court’s unwillingness to consider his age in

accordance with the holding of the United States Supreme Court in Miller v.

Alabama.” 3 However, in brief to this court, Defendant contends the trial court

failed to consider his age, Defendant’s immediate confession, his acceptance of

responsibility, and his lack of criminal history. In accordance with La.Code

Crim.P. art. 881.1, Defendant is precluded from raising those arguments not made

in the motion to reconsider. Therefore, we will review Defendant’s claim of

excessiveness only as it relates to his age.

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

3
Miller dealt with mandatory life imprisonment without parole for juvenile homicide
offenders, and Defendant was eighteen, the age of majority, at the time he committed the
offenses.

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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:

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.

State v. Soileau, 13-770, pp. 4–5 (La.App. 3 Cir. 2/12/14), 153 So.3d 1002, 1005–

06 (alteration in original), writ denied, 14-452 (La. 9/26/14), 149 So.3d 261.

Defendant pled guilty to attempted second degree murder. An attempted

second degree murder occurs when an offender has the specific intent to kill and

commits an overt act to accomplish his objective. La.R.S. 14:27(A); 14:30.1(A)(1).

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Lying in wait with a dangerous weapon constitutes an attempt. La.R.S. 14:27(B)(1).

Attempted second degree murder requires at least ten years but at most fifty years

of imprisonment. La.R.S. 14:27(D)(1)(a). Thus, Defendant received a sentence

that was fifteen years less than the maximum.

As noted in the sentencing transcript, the trial court considered Defendant’s

age and lack of criminal history as well as the seriousness of the offense and

Defendant’s propensity for violence prior to imposing the thirty-five-year sentence.

Jurisprudence reflects the court’s affirmation of similar sentences for

youthful offenders. In State v. Watson, 46,380 (La.App. 2 Cir. 6/22/11), 71 So.3d

479, the second circuit upheld a thirty-four-year sentence for attempted second

degree murder. The sixteen-year-old defendant shot the victim in the chest, thighs,

buttocks, back, and foot. The gunshot wounds nearly took the victim’s life, and he

sustained life-long injuries. The trial court imposed the thirty-four-year sentence

and reasoned that any lesser sentence would depreciate the seriousness of the

offense. The defendant appealed, claiming it was excessive due to his age and lack

of adult criminal record. The appellate court affirmed the trial court’s sentence

because although the defendant was sixteen at the time of the offense, he had a

juvenile record and changed the victim’s life forever.

In State v. Owens, 606 So.2d 876 (La.App. 2 Cir. 1992), the second circuit

affirmed a defendant’s thirty-year sentence for attempted second degree murder.

The twenty-five-year-old defendant fired multiple shots in a crowded bar. Before

imposing the thirty-year sentence, the trial court accounted for defendant’s age and

status as a first offender. However, the trial court emphasized the seriousness of

the offense. The defendant appealed and claimed his sentence was excessive. The

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appellate court affirmed the sentence because of the defendant’s character and the

serious nature of the offense.

In 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, this court upheld a thirty-year

sentence for attempted second degree murder. The defendant fired several shots

toward the victims. Fortunately, the victims survived their injuries. Although the

trial court considered the defendant’s youth and lack of criminal history, the court

imposed the thirty-year sentence due to the severity of the injuries suffered by the

victims and the possibility of the victims succumbing to their injuries. The

defendant appealed and claimed her sentence was excessive. This court upheld the

sentence because the victims posed no threat to the defendant.

Here, Defendant and a co-conspirator planned to kill Isiah Scott. They laid

in wait for him one night while armed with their guns. When they believed they

had spotted Mr. Scott walking by, they fired multiple shots. To their surprise, the

victim was not Mr. Scott; he was a juvenile that sustained injuries due to their

violence. Even though Defendant contends his thirty-five-year sentence is

excessive due to his age, this court has previously recognized in State v. Miller, 12-

1401 (La.App. 3 Cir. 6/5/13), 114 So.3d 670, that youth alone does not justify the

imposition of a lesser sentence.

In the present case, the trial court clearly considered Defendant’s youthful

age as a factor when imposing the sentence. As previously mentioned, Defendant

faced imprisonment for up to fifty years for the crime, but he received a thirty-five-

year sentence. Likewise, Defendant benefited from the plea agreement, which

dismissed his additional charges. Based on the facts of this case, we cannot find

9

that the trial court abused its discretion in imposing the thirty-five-year sentence

for Defendant’s conviction of attempted second degree murder.

For these reasons, Defendant’s assignment of error lacks merit.

DECREE

Defendant’s sentence is affirmed.

AFFIRMED.

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