State of Louisiana v. Courtland E. King

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

24-367

STATE OF LOUISIANA

VERSUS

COURTLAND E. KING

**********

APPEAL FROM THE
THIRTIETH JUDICIAL DISTRICT COURT
PARISH OF VERNON, NO. 97169
HONORABLE C. ANTHONY EAVES, DISTRICT JUDGE

**********

WILBUR L. STILES
JUDGE

**********

Court composed of Elizabeth A. Pickett, Ledricka J. Thierry, and Wilbur L. Stiles,
Judges.

AFFIRMED WITH INSTRUCTIONS.

Annette Fuller Roach
Louisiana Appellate Project
P.O. Box 6547
Lake Charles, LA 70606-6547
(337) 436-2900
COUNSEL FOR DEFENDANT/APPELLANT:
Courtland E. King

Terry W. Lambright
District Attorney, Thirtieth Judicial District
William R. Thornton
Assistant District Attorney
P. O. Box 1188
Leesville, LA 71446
(337) 239-2008
COUNSEL FOR STATE/APPELLEE:
State of Louisiana

STILES, Judge.

On January 3, 2022, Defendant Courtland King was charged by bill of

information with one count of possession of cocaine, with an aggregate weight of

twenty-eight grams or more, and one count of possession of methamphetamine, with

an aggregate weight of twenty-eight grams or more. On September 7, 2023, a

unanimous jury found Defendant guilty of the responsive verdict of attempted

possession of cocaine, with an aggregate weight of twenty-eight grams or more, and

guilty as charged of possession of methamphetamine, with an aggregate weight of

twenty-eight grams or more. The State filed a habitual offender bill of information

on September 13, 2023, charging Defendant as a fourth or subsequent felony

offender. After a hearing held February 21, 2024, the trial court found Defendant to

be a fourth or subsequent felony offender. On March 26, 2024, the trial court

sentenced Defendant to sixty years at hard labor for attempted possession of cocaine,

with an aggregate amount of twenty-eight grams or more, and sixty years at hard

labor for possession of methamphetamine, with an aggregate weight of twenty-eight

grams or more. The sentences were ordered to run concurrently with one another,

and each is to be served without probation or suspension of sentence. Defendant now

appeals both his conviction as a habitual felony offender and his sentences.

FACTS AND PROCEDURAL HISTORY

On March 12, 2021, at approximately 2:00 a.m., Louisiana State Trooper

Isaac Davis was working patrol when he observed a vehicle cross the fog line twice.

Trooper Davis stopped the vehicle and made contact with Defendant, the driver of

the vehicle. Defendant initially gave Trooper Davis a false name and told him that

he did not have a driver’s license with him. After checking the name given to him

by Defendant and realizing that Defendant did not match the photo associated with

that name, Trooper Davis asked Defendant for his real name. Defendant then gave

his correct name and birthdate. Trooper Davis learned that Defendant was driving

under a suspended license and had two active warrants against him.

Defendant gave Trooper Davis permission to search his vehicle. While

searching the front driver’s side area of the vehicle, Trooper Davis found a bag of

methamphetamine hidden under the floormat. Trooper Davis placed Defendant

under arrest and returned to continue his search of the vehicle, whereupon he

discovered a vacuum sealed brick of cocaine, a bag of loose cocaine, and another

bag of methamphetamine on the passenger side hidden under the floormat where the

center console meets the dashboard.

The State filed a Bill of Information on January 3, 2022, charging Defendant

with possession of cocaine, with an aggregate weight of twenty-eight grams or more,

in violation of La.R.S. 40:967(C), (D), and (B)(1)(b), and possession of

methamphetamine, with an aggregate weight of twenty-eight grams or more, in

violation of La.R.S. 40:967(C), (D), and (B)(1)(b). On September 7, 2023, after a

three-day jury trial, the jury found Defendant guilty of the responsive verdict of

attempted possession of cocaine, with an aggregate weight of twenty-eight grams or

more, and guilty as charged of possession of methamphetamine, with an aggregate

weight of twenty-eight grams or more.

On September 13, 2023, the State filed a Habitual Offender Bill of

Information Fourth or Subsequent Felony Offender against Defendant pursuant to

La.R.S. 15:529.1(A)(4)(a). A hearing was held on February 21, 2024, after which

the trial court found Defendant to be a fourth or subsequent felony offender for the

purposes of the habitual offender statute and scheduled a sentencing hearing for a

later date. Subsequently, on March 26, 2024, the trial court sentenced Defendant to

2

concurrent sentences of sixty years at hard labor on each count, to be served without

probation or suspension of sentence. Defendant filed a motion to reconsider sentence

which was denied by written ruling on April 17, 2024. A second motion to reconsider

sentence was filed on behalf of Defendant and was denied by written ruling on May

1, 2024.

Defendant has appealed, asserting two assignments of error:

1) The trial court erred in finding that the State had proven the predicate
convictions set forth in the Habitual Offender Bill of Information as the
evidence submitted as to the fifth predicate conviction established that
this conviction violated the sequencing requirement of La.R.S.
15:529.1(A).

2) The sentences imposed in this case violate the Eighth Amendment
of the Constitution of the United States and La. Const. Art. I, § 20, as
they are nothing more than cruel and unusual punishment and, thus,
excessive.

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 one error

patent and one error in the minutes of sentencing. Additionally, we note that in

assignment of error number one, Defendant alleges an error patent involving a

sequencing error in his habitual offender adjudication. We address that error patent

under our discussion of assignment of error number one.

Regarding the first error patent, we find that the trial court did not accurately

advise Defendant of the time period for filing post-conviction relief. At sentencing,

the trial court informed Defendant he had “two years from when [his] sentence

becomes final to assert any claim for post conviction relief.” (Emphasis added).

According to La.Code Crim.P. art. 930.8(A), the time period for filing post-

3

conviction relief is “two years after the judgment of conviction and sentence has

become final[.]” (Emphasis added).

A similar issue arose in State v. Folse, 23-1299, p. 11 (La.App. 1 Cir. 9/20/24),

___ So.3d ___ (2024 WL 4245979), wherein the court allowed its opinion to serve

as notice to the defendant of the correct time limitation for filing an application for

post-conviction relief, finding that the trial court’s failure to inform the defendant of

the prescriptive period for applying for post-conviction relief “is not grounds to

reverse the sentence or remand for resentencing.” Following the example set by the

court in Folse, this opinion shall serve as notice to Defendant that he has two years

from the time his judgment of conviction and sentence become final under the

provisions of La.Code Crim.P. art. 914 or 922 to file for post-conviction relief.

La.Code Crim.P. art. 930.8(A).

Next, we find that the minutes of sentencing are in need of correction.

According to the transcript of Defendant’s March 26, 2024 sentencing hearing, the

trial court ordered both sentences to be served without benefit of probation or

suspension of sentence. The minutes of sentencing, however, additionally state that

the trial court imposed the sentences without benefit of parole. “[W]hen the minutes

and the transcript conflict, the transcript prevails.” State v. Wommack, 00-137, p. 4

(La.App. 3 Cir. 6/7/00), 770 So.2d 365, 369, writ denied, 00-2051 (La 9/21/01), 797

So.2d 62. Accordingly, we instruct the trial court to amend the court minutes to

delete the denial of parole on each of the sentences imposed.

ASSIGNMENT OF ERROR NUMBER ONE

In his first assignment of error, Defendant asserts that the State failed to prove

the sequencing requirement for one of the predicate convictions charged in his

habitual offender bill. Specifically, Defendant asserts that “the fifth predicate

4

conviction . . . was invalid as a predicate conviction as the conviction for that offense

occurred approximately seven months after the commission of the current offenses.”

According to Defendant, “La.R.S. 15:529.1(A) requires that the conviction for the

predicate offense occur prior to the commission of the offenses being enhanced.”

Defendant asks this court to vacate his habitual offender adjudication and sentence.

In its brief, the State “concedes that the fifth predicate offense was improperly

included in support of its habitual offender bill of information.” However, the State

contends that the fifth predicate offense was “superfluous and irrelevant to the trial

court’s determination that the defendant was a fourth or subsequent felony offender.”

According to the bill of information filed in this matter on January 3, 2022,

the offenses of possession of cocaine and possession of methamphetamine were

committed on March 12, 2021. The habitual offender bill of information, as well as

documents introduced at the habitual offender hearing, indicate that Defendant was

subsequently convicted of the fifth predicate offense (aggravated assault with a

firearm) on October 14, 2021. Because the conviction for the fifth prediction offense

occurred after the commission of the instant offenses, the sequencing requirement

of La.R.S. 15:529.1(A) was not complied with.

This court addressed this type of error in State v. Webb, 14-149, pp. 22-23

(La.App. 3 Cir. 10/1/14), 149 So.3d 310, 324-25 (alterations in original), writ denied,

14-2319 (La. 9/11/15), 176 So.3d 1036:

In challenging the trial court’s finding that he is a fourth habitual
offender, Defendant asserts that the trial court wrongfully used his
instant three convictions of illegal possession of stolen firearms to
enhance as a fourth offense his instant conviction for possession of a
firearm by a convicted felon. Defendant relies upon La.R.S.
15:529.1(A), which states:

Any person who, after having been convicted within
this state of a felony, or who, after having been convicted

5

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[.]

Defendant further asserts:

[Louisiana Revised Statutes] 15:529.1(A) allowed the
Trail [sic] court to enhance the sentence of Carl James
Webb, Jr., for his instant conviction for possession of a
weapon by a convicted felon based on convictions that the
State proved Mr. Webb had before he was convicted of the
instant charges. However, the [t]rial [c]ourt erred by using
Mr. Webb’s instant convictions for three counts of illegal
possession of a stolen firearm to enhance Mr. Webb’s
instant conviction for possession of a weapon by a
convicted felon.

The error complained of by Defendant is a violation of the
requirement that “for sentence enhancement purposes, the subsequent
felony [(the felony being enhanced)] must be committed after the
predicate conviction or convictions.” State v. Johnson, 03-2993, p. 18
(La. 10/19/04), 884 So.2d 568, 578 (emphasis added), superseded by
statute on other grounds as stated in Butler v. Cain, 327 Fed.Appx. 455
(5th Cir.2009). In the instant case, Defendant was convicted of three
counts of illegal possession of stolen firearms (the predicate
convictions) on the same day that he was convicted of possession of a
firearm by a convicted felon (the felony being enhanced). Thus, the trial
court erroneously used Defendant’s three instant convictions of illegal
possession of stolen firearms as predicates to enhance his instant
sentence for possession of a firearm by a convicted felon since the
felony being enhanced was not committed after Defendant’s
convictions of the predicate offenses and is, therefore, a violation of the
sequencing procedure set forth in La.R.S. 15:529.1(A).

Like the defendant in Webb, the present Defendant did not raise the

sequencing issue in the trial court. After reviewing the jurisprudence, the court in

Webb found the error was an error patent that could be recognized without an

objection and found the error affected such a basic due process right that it could be

raised for the first time on appeal. Finding it was legal error to adjudicate Webb a

fourth felony offender, this court vacated his habitual offender adjudication and

sentence and remanded the matter for further proceedings.

6

As in Webb, we find it appropriate to address the sequencing error despite the

fact that it was not asserted in the trial court. Unlike Webb, however, the remaining

predicate convictions alleged in the instant habitual offender bill were sufficient to

adjudicate Defendant a fourth habitual offender.

In State v. Cooper, 96-119, pp. 14-15 (La.App. 3 Cir. 7/17/96), 678 So.2d 59,

67-68, writ denied, 96-2121 (La. 1/24/97), 686 So.2d 857, this court noted a

sequencing error in the habitual offender bill but found the error was harmless:

Also, defendant complained that one of his prior convictions did not
occur in the proper sequence for use in a habitual offender adjudication.
Defendant is correct in his assertion; however, the state proved five
prior felony convictions when it only needed to prove three. Even if
defendant’s fourth felony conviction, for forgery, is not considered a
prior conviction, the remaining four convictions are more than adequate
to support the fourth habitual offender adjudication. . . . Therefore, this
assignment of error does not present reversible error and is without
merit.

As in Cooper, the State charged Defendant with five prior felony convictions

when it only needed to prove three. Additionally, like the court in Cooper, the trial

court in the present case adjudicated Defendant a “fourth or subsequent” offender.

Consequently, even without using the fifth predicate conviction, the State set forth

more than enough predicates to adjudicate Defendant as a fourth habitual offender.

Similarly, in State v. Lindsey, 50,324, pp. 12-13 (La.App. 2 Cir. 2/24/16), 189

So.3d 1104, 1112, the second circuit found harmless error when the habitual

offender bill contained a sequencing error:

In this case, the habitual offender bill listed four predicate
felonies, including the conviction for aggravated second degree battery,
and the instant offense of jumping bail. Lindsey was charged with
jumping bail based upon the failure to appear at the April 2, 2014
sentencing hearing on the conviction of aggravated second degree
battery. At the time of the offense upon which the habitual offender bill
of information was based, jumping bail on April 2, 2014, Lindsey had
not yet been sentenced on the conviction of aggravated second degree
battery, and his conviction was not yet final. As such, the conviction of

7

aggravated second degree battery could not be used as a predicate
offense in habitual offender bill of information. However, the habitual
offender bill listed three other prior felony convictions and the instant
offense of jumping bail. As such, the bill of information still supported
the adjudication as a fourth-felony habitual offender, which carries the
same minimum sentence of 20 years’ imprisonment. The inclusion of
the conviction of aggravated second degree battery in the habitual
offender bill of information is harmless error.

As stated above, the habitual offender bill of information filed in the present

case supports Defendant’s adjudication as a fourth or subsequent habitual offender

even without using the problematic fifth predicate felony. Additionally, as in Lindsey,

the same minimum sentence of twenty years applies with or without the fifth

predicate felony conviction in the present case. La.R.S. 15:529.1(A)(4)(a).

Although Defendant does not specifically argue against the applicability of

the harmless error analysis, he asserts that it is appropriate to set aside his habitual

offender adjudication and sentence “as it is uncertain what affect the use of the fifth

predicate conviction had in the court’s determination of the appropriate sentences to

impose on the convictions currently before the court on review.” In response, the

State contends that Defendant has failed to prove he was prejudiced by the erroneous

inclusion of the fifth predicate conviction in the habitual offender bill. Furthermore,

as discussed in Assignment of Error Number Two, the trial court gave ample reasons

for the sentences imposed, including Defendant’s significant criminal history.

Considering Cooper, 678 So.2d 59, and Lindsey, 189 So.3d 1104, we find that

the sequencing error in the instant habitual offender bill of information was harmless

error. Thus, this assignment of error is without merit. It is noted that Defendant has

asked this court that if it concludes the error was harmless, this court order that the

record be clarified to state that Defendant was a fourth felony offender for habitual

offender purposes. Since both the transcript and minutes of sentencing state that the

8

trial court adjudicated Defendant a fourth or subsequent habitual offender, we find

that no further clarification is necessary.

ASSIGNMENT OF ERROR NUMBER TWO

In his second assignment of error, Defendant argues that the two sentences

imposed in the present case, concurrent sentences of sixty years each, are

constitutionally excessive. He asserts that other similarly situated or worse offenders

have received half the sentences he received and that the trial court failed to consider

his youthfulness, family life, facts of the case, and his cooperation with law

enforcement.

Defendant was convicted of one count of attempted possession of cocaine,

with an aggregate weight of twenty-eight grams or more, and one count of

possession of methamphetamine, with an aggregate weight of twenty-eight grams or

more, both of which are violations of La.R.S. 967(C) and (D). At the time these

offenses were committed, the offense of possession of methamphetamine, with an

aggregate weight of twenty-eight grams or more, was punishable by imprisonment

at hard labor for one to twenty years and a possible fine of not more than $50,000.00.

La.R.S. 40:967(B)(1)(b). Because Defendant was convicted of the responsive

verdict of attempted possession of cocaine, with an aggregate weight of twenty-eight

grams or more, the possible penalty for that offense was up to ten years at hard labor

and a possible fine of not more than $25,000.00. La.R.S. 14:27(D)(3) and La.R.S.

40:979.

As a fourth habitual offender, Defendant was subject to the following penalty

provision:

(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:

9

(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.

(b) If the fourth felony and no prior felony is defined as a crime
of violence under R.S. 14:2(B) or as a sex offense under R.S. 15:541,
the person shall be imprisoned for not less than twenty years nor more
than twice the longest possible sentence prescribed for a first conviction.
If twice the possible sentence prescribed for a first conviction is less
than twenty years, the person shall be imprisoned for twenty years.

(c) If the fourth felony and two of the prior felonies are felonies
defined as a crime of violence under R.S. 14:2(B), or a sex offense as
defined in La.R.S. 15:541 when the victim is under the age of eighteen
at the time of the commission of the offense, the person shall be
imprisoned for the remainder of his natural life, without benefit of
parole, probation, or suspension of sentence.

La.R.S. 15:529.1(A)(4).

Since one of the predicates—simple robbery—was a crime of violence, the

most lenient of the above penalty provisions, Section (4)(b), is not applicable. La.R.S.

14:2(B)(23). At the same time, since the instant offense is not a crime of violence or

a sex offense, the most onerous of the above penalty provisions, Section (4)(c), is

not applicable. Consequently, as the trial court stated at sentencing, Section (4)(a)

from the above penalty provisions is the penalty provision that applies to the present

case. Thus, the possible punishment for each of Defendant’s offenses increased upon

his adjudication as a fourth habitual offender to a minimum sentence of twenty years

at hard labor and a maximum sentence of life imprisonment at hard labor. La.R.S.

15:529.1(A)(4)(a) and (G). The trial court sentenced Defendant on each count to

sixty years at hard labor, said sentences to run concurrently with one another.

Sentencing Proceeding

At the sentencing hearing, the trial court noted that while Defendant had been

convicted of attempted possession of cocaine, with an aggregate weight of twenty-

10

eight grams or more, and possession of methamphetamine, with an aggregate weight

of twenty-eight grams or more, the record indicated that the cocaine and

methamphetamine found in his possession each weighed over two hundred grams.

The trial court also noted that it had reviewed the Presentence Investigation Report

(PSI), which indicated that Defendant was a fifth felony offender. The trial court

further stated:

I’ve looked at the PSI, and substantial grounds do not exist that tend to
justify or excuse Mr. King’s criminal conduct in this matter. As I stated
earlier, the defendant did not act under strong provocation by anybody.
He’s approximately 30 years of age. He is single. He is in good health
from the PSI. I couldn’t discern an employment history.

When Defendant interjected that he had a clothing business, the trial court

acknowledged he has a business which manufactures and sells clothing. The trial

court further noted that Defendant completed the eleventh grade at Pineville High

School and that he denied having a history of drug or alcohol abuse.

The trial court then summarized Defendant’s extensive criminal history:

Mr. King is a fifth time felony offender, is what the PSI says. Mr. King
has an extensive criminal history in at least - - in several jurisdictions.
In 4/30/2010, unauthorized use of a moveable, that looks like it was
Nolle Prosequi with Alexandria PD. 8/4/2010, first degree robbery,
parol [sic] violation, probation violation in 3/3/2011, he pled guilty to
the reduced charge of simple burglary. The other charges are unknown.
He was sentenced to seven years DOC - -

....

Okay. Simple robbery, his probation was revoked and - - his
probation was revoked, and I believe, the PSI indicates it on 9/24/2012.
Then, Alexandria PD on 4/27/2011, failure to pay some sort of fine. He
was found guilty on 5/3/2011, and sentenced to four days confinement.
Alexandria PD, 1/24/2012, possession with intent to distribute, but it
was continued without date. Rapides Sheriff’s Department on
6/12/2012, failure to pay a fine, unknown disposition. Alexandria PD,
9/4/2012, unauthorized use of movable, resisting an officer, disposition
unknown. Alexandria PD, 9/25/2012, second degree robbery, failure to
pay a fine, probation violation, disposition unknown. Alexandria PD,
10/30/2012, introduction of contraband, possession of Marijuana, pled

11

guilty to the introduction of contraband, other charges Nolle Prosequi,
sentenced to serve one year DOC. Alexandria PD, 2/17/2014, contempt
of court, found guilty at trial, served ten days of confinement.
Alexandria PD, 3/11/2014, armed robbery, criminal damage to property,
contempt of court. 7/6/2015, Ninth JDC, which is Alexandria, Rapides,
pled guilty to the amended charge of theft $750 to $1,000, that’s a
felony, criminal damage to property, a felony, disposition of contempt
of court unknown, sentenced to three years, and one year to serve in the
Rapides Parish Jail, credit for time serve[d]. Rapides Sheriff’s
Department, 4/3/2014, introduction of contraband, Nolle Prosequi on
7/6/2015. Allen Parish Sheriff’s Office, 11/12/2015, illegal possession
of stolen things, felony, resisting an officer, misdemeanor, driving
under suspension, misdemeanor, speeding, misdemeanor. That’s in the
33rd JDC, he pled no contest to amended charge of unauthorized use of
motor vehicle, other charges dismissed, sentenced two years DOC,
suspended with two years probation. APD, 10/28/2016, resisting officer,
improper lane usage, expired vehicle registration, no driver’s license on
person. He pled guilty all counts, and sentenced to 22 days confinement.
3/27/2017, simple burglary, illegal carrying of a weapon, possession of
Schedule II, illegal carry of a weapon, misdemeanor, dismissed - -

....

Okay. Louisiana State Police Troop E, 3/28/2017, fugitive,
disposition unknown. Alexandria PD, 6/4/2019, possession of Schedule
II, felony, illegal possession of weapons, felony, possession of a firearm
by a convicted felon, felony, hit and run, contempt of court, three counts,
Ninth JDC, he pled guilty to amended aggravated assault with a firearm,
disposition of other charges unknown. He was sentenced six months in
Vernon Parish Jail (sic) credit for time served. APD, contempt of court,
disposition unknown. Louisiana State Police Troop E, contempt of
court, disposition unknown. Louisiana State Police Troop E, possession
with intent to distribute Meth, this is in 3/12/2021, possession with
intent distribute [sic] Cocaine, driving under suspension, improper lane
usage, resisting an officer, jumping bail. That’s this case here, in which,
the jury found you guilty of the attempt of possession. Then after that
date Rapides Sheriff’s Department on 3/18/2021, contempt of court,
Alexandria PD, speeding, and some other traffic offenses. He pled
guilty.

After this summary of Defendant’s criminal history, the trial court noted that

on July 20, 2022, Defendant was arrested for possession with the intent to distribute

methamphetamine and possession of methamphetamine in excess of 400 grams,

charges which were still pending at the time of sentencing. Thus, the trial court noted

that even after being arrested on the current charges, Defendant was again arrested

12

on other drug charges. It was the trial court’s opinion that Defendant was not likely

to respond favorably to probationary treatment. The trial court then continued:

The defendant is in need of correctional treatment or a custodial
environment. A lesser sentence will deprecate the seriousness of the
defendant’s offenses. On each of these sentences due to the nature of
the Habitual Offender filed the possible sentence is anywhere from 20
years to life in prison on each one of these offenses, because of his
extensive criminal record. His criminal record, which include [sic]
many arrest [sic], and many felony convictions, and also, many many
unknown dispositions on numerous other felony arrests.

After Defendant was sentenced, he filed two motions to reconsider sentence.

In the first motion, Defendant argued:

[I]n imposing its sentence the Court erred in failing to give due
consideration to the Defendant’s age, which, as established by the Pre-
Sentence Investigation report, was the age of 30 at the time of the
offense, and the Court failed to give due consideration to several other
of the guidelines as described in Code of Criminal Procedure 894.1,
including but not limited to the fact that the offenses in question were
not crimes of violence, nor were they sex offenses, and no actual harm
resulted to any individual, the evidence at the trial failed to establish
who was the actual owner of the drugs involved, and there having been
a co-defendant, both of whom were found guilty, no evidence was ever
definitively introduced to determine who was the actual owner, no
weapons were involved in the offenses, there is no proof that Defendant
had in the past, or would have derived any substantial income from the
offense, and any other guidelines not given due consideration by the
Court, and therefore the Court imposed an unnecessarily lengthy and
harsh sentence on the Defendant.

The trial court denied the motion by written ruling dated April 17, 2024.

On April 24, 2024, Defendant filed another motion to reconsider sentence,

asserting that when imposing the sentences, the trial court referred to and relied upon

“certain convictions and/or criminal conduct in the defendant’s background” which

had “been reduced from felony to misdemeanor charges, or the matters did not result

in convictions.” The trial court denied this second motion by written ruling dated

May 1, 2024, stating, “Another Motion to Reconsider has previously been denied.”

13

Defendant’s Argument on Appeal

Defendant, age thirty at the time the offenses were committed, contends that

even though he had several prior arrests and convictions, most of the charges carried

minimal sentences, with a maximum sentence of ten years or less and punishable

with or without hard labor. Noting that the maximum sentences for his current

underlying offenses were twenty years and ten years, Defendant asserts that the

sixty-year sentences imposed in this case were three and six times greater than the

maximum sentences that could have been imposed for the underlying offenses.

Defendant also cites several cases in which lesser sentences were imposed for fourth

habitual offenders.

State’s Argument in Response

Arguing that Defendant failed to prove the trial court abused its wide

discretion in imposing Defendant’s sentences, the State asserts Defendant has failed

to allege any relevant facts not already considered by the trial court prior to

imposition of sentence. As for Defendant’s claim that the trial court failed to

consider his family life, the State responds that at the habitual offender/sentencing

hearing, it “noted that the outstanding warrants which initially led to the defendant’s

arrest were for failure to pay child support for five different children by three

different mothers.” Finally, the State cites cases wherein similar sentences were

imposed for fourth habitual offenders.

Law and Analysis

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.

14

1/31/01), 808 So.2d 331, a panel of this court discussed the review of
excessive sentence claims, stating:

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

15

In State v. Decuir, 10-1112, p. 2-3 (La.App. 3 Cir. 4/6/11), 61 So.3d 782, 785-

86 (alterations in original), this court discussed how to go about particularizing a

sentence:

Louisiana Code of Criminal Procedure Article 894.1 contains a
series of factors to be considered by the trial court in sentencing a
defendant. In considering these sentencing guidelines, the trial court
must “state for the record the considerations taken into account and the
factual basis therefor in imposing sentence.” La.Code Crim.P. art.
894.1(C). However, to comply with La.Code Crim.P. art. 894.1(C), the
trial court “need not articulate every circumstance or read through a
checklist of items.” State v. Anderson, 95-1688, p. 4 (La.App. 3 Cir.
5/8/96), 677 So.2d 480, 483. Still, the record should establish that the
trial court adequately considered the codal guidelines in particularizing
a defendant’s sentence. Id. That is to say, “the record must show that
the trial court took cognizance of the criteria set forth in La. C. Cr. P.
art. 894.1.” State v. Ellis, 42,520, p. 23 (La.App. 2 Cir. 9/26/07), 966
So.2d 139, 152, writ denied, 07-2190 (La.4/4/08), 978 So.2d 325.

The trial judge is not required to list every aggravating or
mitigating circumstance so long as the record reflects that
he adequately considered the guidelines of the article.
State v. Smith, 433 So.2d 688 (La.1983); State v. Dallas,
36,397 (La.App.2d Cir.11/6/02), 830 So.2d 1113. 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. The important elements
which should be considered are the defendant’s personal
history (age, family ties, marital status, health,
employment record), prior criminal record, seriousness of
offense, and the likelihood of rehabilitation. State v. Jones,
398 So.2d 1049 (La. 1981); State v. Strange, 28,466
(La.App.2d Cir. 6/26/96), 677 So.2d 587; State v. Hudgins,
[519 So.2d 400 (La.App. 2d Cir. 1988), writ denied, 521
So.2d 1143 (1988)].

State v. Scott, 36,763, p. 3 (La.App. 2 Cir. 1/29/03), 836 So.2d 1180,
1182. However, “[t]here is no requirement that specific matters be
given any particular weight at sentencing.” Ellis, 966 So.2d at 153.

Despite the mandates of La.Code Crim.P. art. 894.1, our courts
have held that:

[F]ailure to comply with article 894.1 does not
automatically render a sentence invalid. Where the record
clearly shows an adequate factual basis for the sentence
imposed, remand is unnecessary, even where there has not

16

been full compliance with La.C.Cr.P. art. 894.1. State v.
Delaughter, 29,974 (La.App.2d Cir. 12/10/97), 703 So.2d
1364, writ denied, 98-0018 (La.5/1/98), 805 So.2d 201,
1998 WL 234691. The question is whether the record
presented is sufficient to demonstrate that the trial court
did not abuse its discretion. State v. Davis, 448 So.2d 645
(La.1984).

State v. Smith, 34,325, p. 2 (La.App. 2 Cir. 12/20/00), 775 So.2d 640,
642. Sentences also will not be overturned for failure to comply with
statutory guidelines where the sentencing court implicitly considered
the factors set forth in La.Code Crim.P. art. 894.1. State v. Thibodeaux,
502 So.2d 296, 298 (La.App. 3 Cir.), writ denied, 505 So.2d 1140
(La.1987).

Although the trial court in this case did not specifically state that it was

considering the factors set forth in La.Code Crim.P. art. 894.1, it did implicitly

consider such factors, especially Defendant’s age, employment record, prior

criminal record, and the likelihood of rehabilitation. The trial court reviewed the PSI

detailing Defendant’s extensive criminal history, and noted that even after his arrest

for the current charges, Defendant was again arrested for possession and possession

with intent to distribute over 400 grams of methamphetamine. Defendant asserted in

his motions to reconsider sentence that the trial court erroneously referred to his prior

misdemeanor offenses and to charges that did not result in convictions. However, he

has not argued such on appeal. Rather, Defendant attempts to minimize the

significance of his criminal history by asserting that most of his convictions were

relative felonies that carried minimal sentences.

Defendant cites State v. Stokes, 19-128 (La.App. 5 Cir. 9/4/19), 279 So.3d 517,

as an example of a case wherein a sixty-year habitual offender sentence was found

to be excessive. Stokes was convicted of possession with the intent to distribute

cocaine, was adjudicated a fourth habitual offender, and was sentenced to life

imprisonment. On appeal, Stokes’ habitual offender adjudication was reduced to a

17

third habitual offender and he was again sentenced to life imprisonment. Because of

ameliorative changes in the law, Stokes’ life sentence was vacated and his case was

remanded for resentencing. Stokes was then resentenced to a sixty-year sentence as

a third habitual offender. In a bare-excessiveness review, the court of appeal found

the sixty-year sentence to be excessive, noting: Stokes possessed fifty rocks of crack

cocaine valued at $10.00 each; his prior convictions consisted of attempted simple

burglary and simple burglary, neither of which were crimes of violence; and his

underlying conviction of possession with intent to distribute cocaine was his only

drug offense. The court also discussed numerous cases where third habitual

offenders received forty-five years or less.

We find that Stokes is distinguishable from the present case. The defendant in

Stokes was ultimately found to be a third habitual offender with a maximum sentence

of sixty years, whereas the present Defendant was adjudicated a fourth habitual

offender with a possible maximum sentence of life imprisonment.

Defendant also cites several cases wherein lesser sentences were imposed in

similar circumstances. In State v. Jackson, 52,057 (La.App. 2 Cir. 8/15/18), 253

So.3d 907, writ denied, 18-1558 (La. 3/25/19), 267 So.3d 596, a thirty-year sentence

was upheld for possession of cocaine, fourth habitual offender, where there was a

long history of drug distribution. As in the present case, Jackson faced a sentencing

range of twenty years to life. Additionally, like the present Defendant, Jackson had

an extensive criminal history, had both his probation and parole revoked on several

occasions, and had other drug distribution charges pending.

In State v. Henry, 42,416 (La.App. 2 Cir. 9/19/07), 966 So.2d 692, writ denied,

07-2227 (La. 8/29/08), 989 So.2d 95, the appellate court upheld a twenty-five year

sentence for possession of alprazolam, fourth habitual offender, when the sentencing

18

range was twenty years to life. Henry was actually a fifth felony offender whose

prior criminal history did not include crimes of violence or drug offenses. Unlike

Henry, the present Defendant’s criminal history includes both crimes of violence

and drug offenses.

Both Defendant and the State cite State v. Cooley, 22-140 (La.App. 3 Cir.

10/5/22) (unpublished opinion) (2022 WL 5061602), wherein the defendant received

mandatory life sentences for two of his convictions (aggravated battery and

possession with the intent to distribute methamphetamine) and concurrent twenty-

five year sentences for the remainder of his convictions for attempted possession of

temazepam (CDS IV), attempted possession of zolpidem tartrate (CDS IV), and

attempted possession of tramadol (CDS IV). Pertinent to this case is the fact that

Cooley received the maximum sentence of life imprisonment for possession of

morphine sulfate (CDS II) as a fourth habitual offender. This court affirmed

Cooley’s sentences noting, “The trial court indicated that it reviewed the mitigating

facts but focused on the defendant’s ongoing lifestyle as a drug offender and

sentenced the defendant in compliance with the habitual offender law.” Id. at p. 10.

In addition to Cooley, the State cites State v. Brown, 22-483 (La.App. 3 Cir.

11/16/22), 353 So.3d 919, writ denied, 22-1791 (La. 5/2/23), 359 So.3d 1279, in

support of its argument that Defendant’s sentences are not excessive. In Brown, this

court affirmed eighty-year sentences for a fourth habitual offender convicted of

possession with the intent to distribute cocaine, possession of methamphetamine,

and illegal carrying of a weapon while in possession of a controlled dangerous

substance.

Based on the foregoing, we find the trial court did not abuse its
sentencing discretion. The record demonstrates that Defendant has a
lengthy criminal history, and he has been given numerous opportunities

19

to reform and has failed to do so. Further, the record supports the trial
court’s reasoning that lesser sentences would deprecate the seriousness
of the offenses and that there is an undue risk during the period of a
suspended sentence or probation that Defendant would commit another
crime. The trial court thoroughly detailed the factors it found in
aggravation and the fact that no mitigating factors existed. The
sentences are not out of proportion to the seriousness of the offenses,
nor do they shock the sense of justice. Therefore, the trial court did not
err in sentencing Defendant to concurrent sentences of eighty years at
hard labor for counts one through three and forty years at hard labor for
count four.

Id. at 934.

Considering the cases discussed above, we find that the trial court did not

abuse its discretion by imposing concurrent sixty-year sentences in the present case.

The sentences were mid-range sentences and were ordered to run concurrently.

Furthermore, Defendant’s criminal history is consistent with defendants who have

received the same or longer sentences. As noted by the trial court, Defendant has

repeatedly committed offenses even after being given probation, supporting the

finding that Defendant would not likely respond well to probation. Rather, the trial

court found Defendant is in need of correctional treatment, and a lesser sentence

would deprecate the seriousness of the offenses. Furthermore, we note the supreme

court’s repeated admonition that the relevant question in reviewing a sentence for

excessiveness is “whether the trial court abused its broad sentencing discretion, not

whether another sentence might have been more appropriate.” State v. Aguliar-

Benitez, 21-174, p. 5 (La. 10/12/21), 332 So.3d 618, 620 (quoting State v. Cook, 95-

2784, p. 3 (La. 5/31/96), 674 So.2d 957, 959, cert. denied, 519 U.S. 1043, 117 S.Ct.

615 (1996)).

For these reasons, we find the trial court did not abuse its broad sentencing

discretion and this assignment of error lacks merit.

20

CONCLUSION

Defendant’s convictions and sentences are affirmed. We advise Defendant

that in accordance with La.Code Crim.P. art. 930.8, no application for post-

conviction relief shall be considered if it is filed more than two years after the

judgment of conviction and sentence become final under the provisions of La.Code

Crim.P. arts. 914 or 922. We further instruct the trial court to amend the court

minutes to delete the denial of parole on each of the sentences imposed.

AFFIRMED, WITH INSTRUCTIONS.

21