State of Louisiana v. Kevin Joseph Auguillard, Jr.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

23-460

STATE OF LOUISIANA

VERSUS

KEVIN JOSEPH AUGUILLARD, JR.

**********

APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. CR 178112
HONORABLE MICHELE S. BILLEAUD, DISTRICT JUDGE

**********

CANDYCE G. PERRET
JUDGE

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Court composed of Shannon J. Gremillion, Candyce G. Perret, and Gary J. Ortego,
Judges.

SENTENCES VACATED; SENTENCES IMPOSED; REMANDED.

Donald Dale Landry
District Attorney, Fifteenth Judicial District
Frederick L. Welter
Assistant District Attorney, Fifteenth Judicial District
Post Office Box 3306
Lafayette, LA 70502
(337) 232-5170
COUNSEL FOR APPELLANT:
State of Louisiana

Douglas Lee Harville
Louisiana Appellate Project
Post Office Box 52988
Shreveport, LA 71135-2988
(318) 222-1700
COUNSEL FOR APPELLEE/DEFENDANT:
Kevin Joseph Auguillard, Jr.

PERRET, Judge.

On appeal, the State argues the district court erred in sentencing the defendant,

Kevin Joseph Auguillard, Jr. (“Defendant”), by departing downward from the

minimum mandated sentences under La.R.S. 15:529.1(A)(4)(a) without sufficient

evidence. 1 Because we find the record devoid of any evidence to support a finding

that the Defendant is so exceptional as to justify a departure from the minimum

mandated sentences for armed robbery and attempted first degree murder, we vacate

that part of the habitual offender sentences and hereby impose the mandatory

minimum sentences of ninety-nine years for armed robbery and fifty years for

attempted first degree murder. In all other respects, Defendant’s sentences are

affirmed.

Additionally, we remand this matter to the district court to: (1) amend the May

13, 2022 sentencing minutes to correctly reflect that the $1,000.00 fine was imposed

as part of the sentence for possession of a firearm by a convicted felon; and (2)

amend the minutes of the January 25, 2023 resentencing to reflect the district court’s

adjudication of Defendant as a fourth habitual offender for attempted first degree

murder and armed robbery.

FACTS AND PROCEDURAL HISTORY

On July 10, 2020, Defendant attempted to engage in a drug transaction with

Ryan James Living, the victim, while at Big Boy’s Convenience Store in Lafayette,

Louisiana. After a physical altercation arose, Defendant produced a firearm from

his waistband and shot Mr. Living.

1
Louisiana Revised Statutes 15:529.1(A)(4)(a) provides, “The person shall be sentenced to
imprisonment for the fourth or subsequent felony for a determinate term not less than the longest prescribed
for a first conviction but in no event less than twenty years and not more than his natural life.”

On January 20, 2022, a unanimous jury convicted Defendant of: (1) attempted

first degree murder, in violation of La.R.S. 14:27 and 14:30; (2) possession of a

firearm by a convicted felon, in violation of La.R.S. 14:95.1; and (3) armed robbery,

in violation of La.R.S. 14:64.

On May 3, 2022, the State filed a habitual offender bill of information, seeking

to enhance the sentences for attempted first degree murder and armed robbery.

Thereafter, on May 13, 2022, the district court sentenced Defendant to thirty years

for attempted first degree murder, twenty-five years for armed robbery, and twenty

years for possession of a firearm by a convicted felon, in addition to a $1,000.00 fine.

Said sentences were to run concurrently and to be served at hard labor without

benefit of probation, parole, or suspension of sentence.

On January 25, 2023, the district court held an evidentiary hearing wherein

the State proved Defendant was a fourth felony offender.2 At the same proceeding,

the district court vacated the sentences previously imposed for attempted first degree

murder and armed robbery and sentenced Defendant to thirty-five years on both

counts. Said sentences were to be served at hard labor without the benefit of parole,

probation, or suspension of sentence and were to run concurrently to each other and

with a sentence previously imposed for possession of a firearm by a convicted felon.

After the announcement of the sentences, the State objected.

On February 22, 2023, the State filed a motion to reconsider sentence, which

the district court denied on February 28, 2023. The State now appeals, arguing the

district court erred in imposing illegally lenient sentences for attempted first degree

2
Defendant had three prior felony convictions, which included theft, theft of a motor
vehicle, and assault by drive-by shooting.

2

murder and armed robbery and granting a downward departure from the statutory

minimum without sufficient evidence.

ERRORS PATENT

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

errors patent on the face of the record. After reviewing the record, we find there is

one potential error patent regarding the habitual offender sentences imposed for

armed robbery and attempted first degree murder. However, because the State

challenges the legality of the sentences imposed on those counts in its appeal, we

will address the legality of those sentences as an assigned error.

The minutes of sentencing are also in need of correction. First, the May 13,

2022 minutes of the original sentencing indicate the district court imposed a

$1,000.00 fine but do not indicate on which count the fine was imposed. The

transcript of the original sentencing hearing indicates the $1,000.00 fine was

imposed as part of the sentence for possession of a firearm by a convicted felon.3

Thus, we order the district court to amend the original sentencing minutes to

correctly reflect that the $1,000.00 fine was imposed as part of the sentence for

possession of a firearm by a convicted felon. Second, the January 25, 2023 minutes

of the habitual offender sentencing do not reflect the district court’s finding as to

Defendant’s adjudication as a habitual offender. The minutes set forth the evidence

presented, and the new sentences imposed, but do not state that the district court

adjudicated Defendant as a fourth habitual offender. The transcript, however,

indicates the district court found Defendant to be a fourth felony offender as to armed

robbery and attempted first degree murder. Accordingly, we order the district court

3
At the January 25, 2023 habitual offender sentencing, the district court stated that the
sentence imposed for possession of a firearm by a convicted felon remained the same.

3

to amend the minutes of the January 25, 2023 resentencing to reflect the adjudication

of Defendant as a fourth habitual offender on armed robbery and attempted first

degree murder.

DISCUSSION

In its assignments of error, the State argues that the district court erred in

imposing illegally lenient sentences for armed robbery and attempted first degree

murder and granting a downward departure from the statutory minimum without

sufficient evidence. Specifically, the State argues that because Defendant had three

prior felony convictions, including a crime of violence, the district court ordered

illegally lenient sentences by not following the sentencing requirements under the

habitual offender statute. The State contends Defendant was out on parole for his

conviction of assault by a drive-by shooting when he committed the offenses, and as

such, Defendant should have been sentenced according to the habitual offender

statute. Moreover, the State argues the Defendant failed to show by clear and

convincing evidence that he was exceptional as to warrant a downward departure

from the statutory minimum sentences; therefore, the district court abused its

discretion. Thus, the State requests for this court to amend Defendant’s sentences

to reflect the mandatory minimum sentences required by the habitual offender statute.

In opposition, Defendant argues that the district court did not order illegally

lenient sentences. According to Defendant, the district court gave a reasoned

explanation for the downward departure from the statutory minimum sentences and

argued that the imposition of the statutory minimum sentences was unconstitutional.

Defendant argues that although the district court noted the escalation of his crimes,

the district court also considered mitigating factors, such as his age, drug use, and

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supportive family, before imposing the sentences. As such, Defendant contends the

district court did not abuse its sentencing discretion.

Louisiana’s habitual offender statute, La.R.S. 15:529.1, states, in pertinent

part:

A. Any person who, after having been convicted within this state
of a felony, or who, after having been convicted under the laws of any
other state or of the United States, or any foreign government of a crime
which, if committed in this state would be a felony, thereafter commits
any subsequent felony within this state, upon conviction of said felony,
shall be punished as follows:

....

(4) If the fourth or subsequent felony is such that, upon a first
conviction the offender would be punishable by imprisonment for any
term less than his natural life then the following sentences apply:

(a) The person shall be sentenced to imprisonment for the fourth
or subsequent felony for a determinate term not less than the longest
prescribed for a first conviction but in no event less than twenty years
and not more than his natural life.

Defendant was convicted of armed robbery, in violation of La.R.S. 14:64, and

attempted first degree murder, in violation of La.R.S. 14:27 and 14:30. Armed

robbery carries a sentencing range of ten to ninety-nine years. La.R.S. 14:64(B). As

first degree murder is punishable by life imprisonment, attempted first degree

murder carries a sentencing range of ten to fifty years. La.R.S. 14:30(C)(2) and

14:27(D)(1)(a). Thus, pursuant to a fourth felony offender under the habitual

offender law, the minimum mandatory sentence required for armed robbery was

ninety-nine years and the minimum mandatory sentence required for attempted first

degree murder was fifty years. La.R.S. 15:529.1(A)(4)(a).

In State v. Mosley, 51,168 (La.App. 2 Cir. 6/21/17), 223 So.3d 158, the second

circuit addressed an issue related to the downward departure from the habitual

offender statute’s sentencing requirement. The defendant was convicted of

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attempted first degree murder of his ex-wife as a fourth felony offender and was

sentenced to life imprisonment at hard labor. The defendant sought review of the

sentence, arguing it was unconstitutionally excessive due to the non-violent nature

of his previous felony crimes. The second circuit affirmed the sentence and wrote,

in pertinent part:

The test imposed by the reviewing court in determining the
excessiveness of a sentence is two-pronged. First, the record must show
that the trial court took cognizance of the criteria set forth in La. C. Cr.
P. art. 894.1. The trial court is not required to list every aggravating or
mitigating circumstance so long as the record reflects that it adequately
considered the guidelines of the article. State v. Smith, 433 So.2d 688
(La. 1983); State v. Watson, 46,572 (La. App. 2 Cir. 09/21/11), 73 So.3d
471. The articulation of the factual basis for a sentence is the goal of
La. C. Cr. P. art. 894.1, not rigid or mechanical compliance with its
provisions. Where the record clearly shows an adequate factual basis
for the sentence imposed, remand is unnecessary even where there has
not been full compliance with La. C. Cr. P. art. 894.1. State v. Lanclos,
419 So.2d 475 (La. 1982); State v. Swayzer, 43,350 (La. App. 2 Cir.
08/13/08), 989 So.2d 267, writ denied, 08-2697 (La. 09/18/09), 17
So.3d 388.

The second portion of the test requires that a determination be
made regarding the constitutional excessiveness of a sentence. A
sentence violates La. Const. art. I, § 20, if it is grossly out of proportion
to the seriousness of the offense or nothing more than a purposeless and
needless infliction of pain and suffering. State v. Smith, 01-2574 (La.
01/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La. 1993);
State v. Bonanno, 384 So.2d 355 (La. 1980). A sentence is considered
grossly disproportionate if, when the crime and punishment are viewed
in light of the harm done to society, it shocks the sense of justice. State
v. Weaver, 01-0467 (La. 01/15/02), 805 So.2d 166; State v. Washington,
46,568 (La.App. 2 Cir. 09/21/11), 73 So.3d 440, writ denied, 11-2305
(La. 04/27/12), 86 So.3d 625.

As a general rule, maximum or near maximum sentences are
reserved for the worst offenders and the worst offenses. State v.
Williams, 48,525 (La.App. 2 Cir. 11/20/13), 128 So.3d 1250.

The trial judge is given wide discretion in the imposition of
sentences within the statutory limits, and the sentence imposed should
not be set aside as excessive in the absence of a manifest abuse of that
discretion. State v. Williams, 03-3514 (La. 12/13/04), 893 So.2d 7;
State v. Diaz, 46,750 (La. App. 2 Cir. 12/14/11), 81 So.3d 228.

6

As a fourth-felony offender, Mosely was subject to a sentence of
not less than 50 years, nor more than life imprisonment at hard labor
without the benefit of parole, probation, or suspension of sentence. La.
R.S. 14:27; La. R.S. 14:30; La. R.S. 15:529.1. Mosely asked for
leniency based on his age, 39 years old, and his willingness to
rehabilitate himself.

Before imposing Mosely’s sentence, the trial court noted its
review of the sentencing factors enumerated in La. C. Cr. P. art. 894.1
and determined the following factors applied: (1) Mosely’s conduct
manifested deliberate cruelty to his victim; (2) Mosely used violence to
carry out his crime; (3) the offense resulted in significant permanent
injury and economic loss to his victim; and (4) Mosely used a
dangerous weapon in the commission of his offense. The trial court
found Mosely’s actions to be especially heinous given the previous
relationship between Mosely and Nekedra.

Nekedra gave an emotional statement to the trial court detailing
the extent of her injuries and impact of Mosely’s actions on her life.
Nekedra described her hospital stay following the attack, the physical
and psychological trauma she continues to suffer as a result of the
assault, and the scars to her face, neck, and arms that persist as a
constant reminder of what Mosely did to her. Nekedra takes depression
and anxiety medication, and is under the care of a psychiatrist. She
suffers permanent nerve damage to her head and hand as a result of the
lacerations she sustained.

The trial court sentenced Mosely to life imprisonment without
the benefit of probation or suspension of sentence, stating the following:

The Court has made a considered review of the record in
this case, a considered review of the evidence, and I find that this
is one of the worst, most personal offenses inflicted against
another person in my fairly substantial history of dealing with
crimes of violence as a lawyer and as a judge. And I do find that
based on Mosely’s criminal history in conjunction with the
gravity of those offenses that the constitutionally exceptional
remedy and sanction of the maximum possible sentence is
appropriate in this case.

We find the record supports Mosely’s sentence of life
imprisonment. The trial court detailed applicable aggravating
factors in support of the sentence. Despite the fairly benign
nature of Mosely’s predicate offenses, the horrifying details of
Mosely’s attempt to murder his wife by repeatedly slashing her
body with a box cutter support the trial court’s characterization
of Mosely as one of the worst offenders. As such, considering
the nature of the crime and the horrendous injuries inflicted upon
Nekedra, the life sentence does not shock the sense of justice.

7

Mosley, 223 So.3d 170-71.

Additionally, in State v. Stevenson, 02-769 (La.App. 5 Cir. 1/28/03), 839

So.2d 340, writ denied, 03-833 (La. 10/31/03), 857 So.2d 472, the fifth circuit

addressed an issue related to the excessiveness of the sentence required by the

habitual offender statute. The defendant was found guilty of armed robbery, and the

State sought to enhance the sentence under the habitual offender statute. Following

adjudication as a fourth felony offender, the defendant was sentenced to life

imprisonment at hard labor. The defendant appealed, arguing his sentence was

unconstitutionally excessive in consideration of his age and non-violent history of

drug offenses. In affirming Defendant’s sentence and conviction, the fifth circuit

discussed, in pertinent part:

Both the United States and the Louisiana Constitutions prohibit
the imposition of excessive or cruel punishment. U.S. Const. Amend.
VIII; La. Const. of 1974, art. I, § 20. A sentence is constitutionally
excessive, even if it is within the statutory limits, if it is grossly
disproportionate to the severity of the offense or is nothing more than
the needless and purposeless imposition of pain and suffering. State v.
Wickem, 99-1261 (La.App. 5th Cir.4/12/00), 759 So.2d 961, 968, writ
denied, 00-1371 (La.2/16/01), 785 So.2d 839. If the trial judge finds
that an enhanced punishment mandated by the Habitual Offender Law,
La. R.S. 15:529.1, makes “no measurable contribution to acceptable
goals of punishment” or that the sentence amounts to nothing more than
“the purposeful imposition of pain and suffering” and is “grossly out of
proportion to the severity of the crime,” the court has the option and
duty to reduce such sentence to one that would not be constitutionally
excessive. State v. Dorthey, 623 So.2d 1276, 1280 (La.1993).

It is presumed that a mandatory minimum sentence under the
Habitual Offender Law is constitutional. State v. Johnson, 97-1906
(La.3/4/98), 709 So.2d 672, 676. A court may only depart from the
mandatory sentence if it finds clear and convincing evidence that would
rebut the presumption of constitutionality. Id. The burden is on the
defendant to rebut the presumption of constitutionality by showing:

[h]e 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,

8

the gravity of the offense, and the circumstances of the
case.

State v. Johnson, 709 So.2d at 676, quoting State v. Young, 94-1636
(La.App. 4th Cir.10/26/95), 663 So.2d 525, 528, writ denied, 95-3010
(La.3/22/96), 669 So.2d 1223.

There must be substantial evidence to rebut the presumption of
constitutionality. The “trial court may not depart from the legislatively
mandated minimum simply because of some subjective impression or
feeling about the defendant.” State v. Bell, 97-1134 (La.App. 5th
Cir.2/25/98), 709 So.2d 921, 927, writ denied, 98-0792 (La.9/16/98),
721 So.2d 477. Additionally, a defendant’s record of non-violent
offenses cannot be the sole reason, or even the major reason, for
declaring a mandatory minimum sentence excessive. State v. Johnson,
709 So.2d at 676. The Louisiana Supreme Court explained:

[t]his is because the defendant’s history of violent or non-
violent offenses has already been taken into account under
the Habitual Offender Law for third and fourth offenders,
which punishes third and fourth offenders with a history
of violent offenses more severely than those with a history
of non-violent offenses.

State v. Lindsey, 99-3256 c/w 99-3302 (La.10/17/00), 770 So.2d 339,
343, cert. denied, 532 U.S. 1010, 121 S.Ct. 1739, 149 L.Ed.2d 663
(4/30/01). Although Lindsey was decided under the old scheme of the
Habitual Offender Law, its rationale is still viable. The 2001
amendments to La. R.S. 15:529.1 still maintain a gradation of
punishment based on the non-violent and violent nature of the
defendant’s underlying and predicate offenses. The amended version
of La. R.S. 15:529.1 is simply more lenient in that life sentences are
mandated less often.

In the present case, the Defendant made no showing of
exceptional circumstances to justify a downward departure from the
mandatory 99 year to life sentence. No evidence was presented at the
time of sentencing and no argument was made at sentencing regarding
a downward departure from the required minimum sentence. Rather,
the Defendant merely relies, on appeal, on the fact that his past three
offenses were non-violent drug offenses. As stated above, the mere fact
that a defendant’s predicate convictions were non-violent does not
warrant an automatic downward departure from a mandatory life
sentence.

In Lindsey, supra, defendant was convicted of simple robbery
which is classified as a crime of violence. However, his prior
convictions consisted of non-violent crimes: attempted simple burglary,
attempted burglary and simple burglary. The Supreme Court stated that

9

the defendant was the exact type of offender that the Habitual Offender
Statute intends to punish so severely. The court stated:

[h]e is sentenced to life imprisonment because he
continues to commit felony after felony. The fact his last
felony was the only violent crime against a person is not
an “unusual circumstance” that would support a
downward departure. A person with three prior non-
violent felony convictions who then proceeds to commit a
felony involving violence against a person has shown that
his criminal conduct is becoming worse. The goals of the
Habitual Offender Statute, to deter and punish recidivism,
are satisfied by imposing a life sentence against such a
person.

State v. Lindsey, supra at 344.

Additionally, in State v. Baker, 00-1050 (La.App. 5th
Cir.11/15/00), 776 So.2d 1212, 1218-1219, writ denied, 01-0044
(La.11/16/01), 802 So.2d 621, this Court determined that a record of
non-violent offenses coupled with the fact that the defendant was an
admitted drug addict was insufficient to rebut the presumption of the
constitutionality of the defendant’s enhanced life sentence under the
multiple offender statute.

In the present case, we find that the Defendant clearly failed to
carry the burden of proof necessary for this Court to follow Dorthey
and impose a sentence less than the minimum. This Court has upheld
mandatory life sentences on the basis that the defendants have failed to
offer evidence to rebut the presumption of constitutionality of their life
sentences. See, State v. Armstrong, 99-925 (La.App. 5th Cir.2/16/00),
756 So.2d 533, 538, writ denied, 00-2419 (La.6/1/01), 793 So.2d 182,
and State v. Bell, supra. This assignment of error lacks merit.

Stevenson, 839 So.2d 343-45 (alterations in original).

In the present case, at sentencing, defense counsel argued in favor of the

downward deviation from the statutory minimum stating:

MR. MCCANN:

Your Honor, the particular part of the statute is 529.1, Subsection
4, Subsection a, as in apple. Kevin Auguillard does -- he is an
exceptional person under this particular provision because of his
criminal record. His first two felonies were actually quite minor, even
though they were charged as felonies, one of them, and frankly I’m not
even sure how they got to the felony value to get there because it was a
cell phone. It was a single cell phone and he was -- and he plead guilty

10

to it and he was sent to prison for four years for a single cell phone.
The second felony theft was an automobile. Again, not a crime of
violence, not something that really reaches out and deserves a potential
enhancement of life in prison. The third one is the only crime of
violence. It was the assault by drive-by shooting, and no one was
injured.

Now the facts of this case are particularly relevant. Even though
the jury found him guilty of attempted second-degree murder, you’ve
got to remember, he didn’t shoot the man in the head, he didn’t shoot
him in the chest, he shot him in the side. Now the fact that it really --
it affected Mr. Living is because the bullet went through his lower
intestines and it caused about five or six holes, okay? If the bullet
would have gone through and through it wouldn’t have even caused
that much damage, and Mr. Living wouldn’t have a colostomy bag right
now. But for our purposes, his shooting was somewhat as a secondary
thought.

If you remember what the video reflected, he was actually
walking away when he put the gun like that and he pulled the trigger,
almost as if he intended to miss, but he struck him and now we’re here.
And for an attempted armed robbery, which he did not even collect the
money on I might add, we actually talked about that the other day in
conference. That he didn’t even grab the money and he didn’t run away
from the money, he left it sitting on the ground and he left -- got in his
automobile and drove off.

THE COURT:

Mr. McCann, I’m going to correct you. I think he was convicted
of armed robbery.

MR. MCCANN:

He was convicted of armed robbery. He wasn’t convicted of
attempted armed robbery, but he left the money on the ground. I
understand that. Okay. My point, and my only point, is this, the
question is does his background satisfy the statute in the spirit of the
statute. And I love it when lawyers get to argue the spirit when the
words don’t work. But in this case the spirit works because I mean, can
you -- the State wants you to put Kevin Auguillard in prison for
basically 99 years. Well, they couldn’t do that except for the fact that
his first charge was a cell phone. And then the second was an
automobile. And it doesn’t make sense that he’s -- he would be
penalized that severely for his -- two of his three prior predicates are so
minor.

I’m asking that the Court simply, as a habitual offender sentence,
leave it at 30 years the way it is because leaving it at 30 years, he has

11

to serve his time day for day. Day for day at 30 years essentially adds
seven and a half years to his penalty. And that would seem to be a
sufficient punishment for the crime for his conviction.

Thereafter, the district court stated the following regarding Defendant’s

sentencing:

THE COURT:

All right. Well, based on the evidence submitted today and the
testimony, I do find, Mr. Auguillard, that you are a fourth felony
offender. You having been previously convicted of theft, felony theft
under Docket Number 136682, and again, another felony theft charge
under Docket Number 140011. You were also convicted of aggravated
assault by drive-by shooting under Docket Number 168382. This was
a crime of violence. I find that all the convictions link in that there’s
more -- there’s no more than five years between the end of each
conviction and the new offense, and so therefore I find that he is a fourth
felony offender. His fourth and current convictions are for attempted
first-degree murder, which is a crime of violence, possession of a
firearm by a convicted felon, and armed robbery, which again, is a
crime of violence.

MR. WELTER:

Just to be clear, Judge, we’re not seeking the habitual offender
enhancement on the possession of a firearm by a convicted felon.

THE COURT:

Okay. All right, thank you for that. Based on your criminal
record, the criminal activity that you’ve participated in has escalated in
volatility through your career, and that’s a concern. I do find that you
are a danger to our community. In mitigation, however, I’m going to
take into consideration your age, the fact that you do have a very loving,
supportive family it appears from today’s testimony. I also take into
consideration your drug use and the effects that that could have on you.
And I’m also taking [into] consideration the fact that your first two
convictions were for theft. The first one being that of theft of a cell
phone and two iPods. The second being a theft of an automobile.

The sentencing range, as stated by the State, for a fourth felony
offender is not less than the longest prescribed for a first conviction, but
in no event less than 20 years and not more than your natural life.
Attempted first-degree murder carries a sentence of ten to 50 years
without benefit of probation, parole, or suspension of sentence, and
armed robbery carries a sentence of ten to 99 years without benefit of
probation, parole, or suspension of sentence. Considering all of the

12

aggravating and mitigating factors previously mentioned I find that the
punishment mandated by the habitual offender statute makes no
measurable contribution to the acceptable goals of punishment and that
the sentence of a minimum of 99 years would amount to nothing more
than purposeful imposition of pain and suffering, and would be grossly
out of proportion to the severity of the crime and would be
constitutionally excessive. But make no mistake, Mr. Auguillard, what
you did was abhorrent, and Mr. Living had to live with the damage that
you caused for the rest of his life. You have changed his life forever.
And I’ve taken that into consideration as well.

To me the more serious offense here is the attempt [sic] first-
degree murder and the damage that you did to Mr. Living. So with that
in mind I’m going to vacate your previous sentence of 30 years on the
two counts, and that was imposed on May 13, 2022, I’m going to now
resentence you in accordance with the habitual offender statute with the
following exceptions, as previously mentioned. As to count 1, the
attempted first-degree murder, I’m going to sentence you to 35 years
hard labor without benefit of probation, parole, or suspension of
sentence. In regards to count 3, armed robbery, I’m going to sentence
you to 35 years hard labor without benefit of probation, parole, or
suspension of sentence. As to count 2, that will remain at 20 years hard
labor without benefit of probation, parole, or suspension of sentence.
Those sentences are to run concurrent with one another. You will also
be given credit for the time served of 257 days that you served under
previous sentence, as well as all the time that you served under Docket
Number 178112 prior to your conviction. You have two years from the
date this sentence becomes final within which to file for post-conviction
relief.

In Johnson, 709 So.2d 676-77, the supreme court addressed enhanced

punishments for multiple offenders and stated, as follows:

When determining whether the defendant has met his burden of
proof by rebutting the presumption that the mandatory minimum
sentence is constitutional, the trial judge must also keep in mind the
goals 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 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

13

has proven that the mandatory minimum sentence is so excessive in his
case that it violates our constitution.

In light of the jurisprudence, we find Defendant failed to meet his burden of

proof required for a downward departure, as Defendant did not present any evidence

other than the non-violent nature of his two prior offenses to demonstrate how the

mandatory minimum sentences were so excessive that they violated the constitution.

Moreover, Defendant failed to cite any unusual or exceptional circumstances to

show that he is a victim of the legislature’s failure to assign a sentence meaningfully

tailored to his culpability and to the circumstances of his case. Although the district

court considered the non-violent nature of Defendant’s first felony convictions, his

family support, and drug usage, the Defendant’s record demonstrates his propensity

for violence, as Defendant was convicted of three violent crimes, which included

theft, theft of a motor vehicle, and assault by drive-by shooting. Moreover, the State

showed Defendant leniency by not seeking enhancement under the habitual offender

statute for the possession of a firearm by a convicted felon conviction. Under these

facts, we find that the district court abused its discretion in downward departing from

the statutory minimum sentences under the habitual offender statute.

A defendant in a criminal case “does not have a constitutional right or a

statutory right to an illegally lenient sentence.” State v. Williams, 00-1725, p. 6 (La.

11/28/01), 800 So.2d 790, 796. “An illegal sentence may be corrected at any time

by the court that imposed the sentence or by an appellate court on review.” La.Code

Crim.P. art. 882(A). In State v. Bourda, 4 10-1553 (La.App. 3 Cir. 6/8/11), 70 So.3d

4
In Bourda, the defendant was convicted of possession of marijuana with intent to
distribute. The State filed a bill of information charging the defendant as a habitual offender. The
district court found the State had proven the defendant to be a third felony offender and sentenced
him to serve fourteen years at hard labor. The State appealed, arguing that the sentence rendered
by the district court was illegally lenient.

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82, writ denied, 11-2122 (La. 2/17/12), 82 So.3d 282, this court chose to impose the

mandatory minimum sentence of life imprisonment rather than remand to the district

court for reconsideration of its ruling. Specifically, this court stated as follows:

This court could opt to reverse and remand this case to the trial
court for reconsideration of the court’s ruling, with instructions to
utilize the analytical approach mandated by Johnson, 709 So.2d 672,
however[,] we find that approach would be superfluous. As the record
is devoid of any evidence which would support a finding that the
Defendant is “exceptional” so as to justify a departure from the
mandated sentence, there is nothing for the trial court to utilize in
performing a Johnson analysis.

Similarly, in this case, the Defendant presented no evidence to rebut the

presumption of constitutionality given to La.R.S. 15:529.1(A)(4)(a). Because the

record is devoid of any evidence to justify a departure from the minimum mandated

sentences, and because the State proved Defendant was a fourth felony offender,

La.R.S. 15:529.1(A)(4)(a) mandates Defendant receive the following minimum

sentences: (1) for armed robbery, a sentence of ninety-nine years at hard labor,

without the benefit of parole, probation, or suspension of sentence, and (2) for

attempted first degree murder conviction, a sentence of fifty years at hard labor,

without the benefit of parole, probation, or suspension of sentence.

DECREE

For the foregoing reasons, we vacate that part of the habitual offender

sentences for armed robbery and attempted first degree murder and hereby impose

the mandatory minimum sentences of ninety-nine years for armed robbery and fifty

years for attempted first degree murder. In all other respects, Defendant’s sentences

are affirmed.

Additionally, we remand this matter to the district court to: (1) amend the May

13, 2022 sentencing minutes to correctly reflect that the $1,000.00 fine was imposed

15

as part of the sentence for possession of a firearm by a convicted felon; and (2)

amend the minutes of the January 25, 2023 resentencing to reflect the district court’s

adjudication of Defendant as a fourth habitual offender for attempted first degree

murder and armed robbery.

SENTENCES VACATED; SENTENCES IMPOSED; REMANDED.

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