Opinion
2023 KA 0697
12-15-2023
STATE OF LOUISIANA v. DONALD E. TATE
Warren LeDoux Montgomery District Attorney Matthew Caplan Assistant District Attorney Covington, Louisiana and David Albert Weibaecher Franklinton, Louisiana Attorneys for Appellee State of Louisiana Gwendolyn K. Brown Louisiana Appellate Project Baton Rouge, Louisiana Attorney for Appellant Donald E. Tate
NOT DESIGNATED FOR PUBLICATION
On Appeal from the Twenty -Second Judicial District Court In and for the Parish of Washington State of Louisiana No. 19 -CRI -141209, Div. E The Honorable William H. Burris, Judge Presiding
Warren LeDoux Montgomery District Attorney Matthew Caplan Assistant District Attorney Covington, Louisiana and David Albert Weibaecher Franklinton, Louisiana Attorneys for Appellee State of Louisiana
Gwendolyn K. Brown Louisiana Appellate Project Baton Rouge, Louisiana Attorney for Appellant Donald E. Tate
BEFORE: WELCH, HOLDRIDGE, AND WOLFE, JJ.
The Honorable Guy Holdridge, retired, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.
HOLDRIDGE, J.
The defendant, Donald E. Tate, was charged by an amended bill of information with home invasion, a violation of La. R.S. 14:62.8 (count 1); and false communication with the intent to cause an emergency response, a violation of La. R.S. 14:126.1.1 (count 2). He pled not guilty to the charges and, following a jury trial, was found not guilty on count 1, and guilty as charged on count 2. He filed motions for post-verdict judgment of acquittal and a new trial, which were denied. The State filed a habitual offender bill of information. The trial court adjudicated the defendant a fourth-felony habitual offender and sentenced him to twenty years imprisonment at hard labor. The defendant made an oral motion to reconsider sentence, which was denied. The defendant then appealed, designating six assignments of error. In an unpublished opinion, this court affirmed the conviction, but vacated the habitual offender adjudication and enhanced sentence, and remanded for further proceedings. State v. Tate, 2020-0523 (La.App. 1 Cir. 4/16/21), 2021 WL 1478325 (unpublished), writ denied, 2021-00690 (La. 9/27/21), 324 So.3d 92.
The defendant's habitual offender adjudication is based on prior convictions for distribution of cocaine, false imprisonment while armed with a dangerous weapon, and first-degree robbery.
In vacating the original habitual offender adjudication and sentence, this court found merit in the fifth assignment of error raised in the original appeal, regarding the trial court's failure to inform the defendant of his right to a hearing and to remain silent at the hearing on the habitual offender bill of information. Tate, 2021 WL 1478325 at *7-8.
On remand, the defendant was re-adjudicated a fourth-felony habitual offender and again sentenced to twenty years imprisonment at hard labor. He filed a motion to reconsider sentence, which was denied. The defendant now appeals, assigning error to the constitutionality of the sentence and the denial of his motion to reconsider sentence. For the following reasons, we affirm the habitual offender adjudication and sentence.
A rendition of facts for this case is also set forth in Tate, 2021 WL 1478325 at * 1.
On March 18, 2019, the defendant called 911 and told the operator that his cousin, Asjuanas Magee, had pulled a shotgun on him. The defendant then called 911 several more times. Prior to the 911 calls, the defendant showed up at the residence of Natasha Magee, the then-girlfriend of Asjuanas and former girlfriend of the defendant. The defendant and Asjuanas got into a fight. Asjuanas threatened to get his shotgun and shoot the defendant, but Natasha stopped him from getting the gun, and the defendant left.
In response to the 911 calls, the police went to Natasha's house, but the defendant was not at the house and could not be found. The police did not find a gun in the house because Asjuanas, who was on parole, had tossed the shotgun into some bushes behind the house. The defendant was arrested the next day. The defendant did not testify at trial.
EXCESSIVE SENTENCE
In assignment of error number one, the defendant argues the trial court imposed a constitutionally excessive sentence. The defendant argues that the trial court should have deviated from the statutory mandatory minimum sentence in this case, as the facts and circumstances warranted a lighter sentence. In assignment of error number two, he thus argues the trial court erred in denying the motion to reconsider sentence.
The Eighth Amendment to the United States Constitution and Article I, § 20, of the Louisiana Constitution prohibit the imposition of cruel or excessive punishment. Although a sentence falls within statutory limits, it may be excessive. A sentence is considered unconstitutionally excessive if it is grossly disproportionate to the seriousness of the offense or is nothing more than a purposeless and needless infliction of pain and suffering. A sentence is considered grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks one's sense of justice. State v. Anderson, 2022-0587 (La.App. 1 Cir. 12/22/22), 357 So.3d 845, 852, writ denied, 2023-00352 (La. 9/6/23), 369 So.3d 1267.
The trial court has great discretion in imposing a sentence within the statutory limits, and such a sentence will not be set aside as excessive in the absence of a manifest abuse of discretion. Louisiana Code of Criminal Procedure article 894.1 sets forth the factors for the trial court to consider when imposing a sentence. While the entire checklist of La. Code Crim. P. art. 894.1 need not be recited, the record must reflect the trial court adequately considered the criteria. The sentencing judge should review the defendant's personal history, his prior criminal record, the seriousness of the offense, the likelihood that he will commit another crime, and his potential for rehabilitation through correctional services other than confinement. The articulation of the factual basis for a sentence is the goal of La. Code Crim. 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. Code Crim. P. art. 894.1. On appellate review of a sentence, the relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. Anderson, 357 So.3d at 852.
The sentencing range for false communication with the intent to cause an emergency response when an emergency response results, is not more than five years imprisonment, with or without hard labor. See La. R.S. 14:126.1.1 (B)(2). As a fourth-felony habitual offender, the defendant's applicable sentencing range was "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." See La. R.S. 15:529.1(A)(4)(a). Thus, the defendant's sentencing exposure was twenty years to life imprisonment. The trial court imposed the mandatory minimum sentence of twenty years, at hard labor.
The defendant argues in his appellate brief that the minimum sentence is excessive. He notes that the offense was not a crime of violence and was committed when he was newly released from prison and became involved in a "complicated situation with his cousin and girlfriend." He contends he was threatened with a weapon and called 911 for help, and argues twenty years at hard labor is unconscionable.
In State v. Dorthey, 623 So.2d 1276, 1280-81 (La. 1993), the Louisiana Supreme Court opined that if a trial judge were to find that the punishment mandated by La. R.S. 15:529.1 makes no "measurable contribution to acceptable goals of punishment" or that the sentence amounted to nothing more than "the purposeful imposition of pain and suffering" and is "grossly out of proportion to the severity of the crime," he has the option, indeed the duty, to reduce such sentence to one that would not be constitutionally excessive. In State v. Johnson, 97-1906 (La. 3/4/98), 709 So.2d 672, 676-77, the Louisiana Supreme Court reexamined the issue of when Dorthey permits a downward departure from the mandatory minimum sentences in the Habitual Offender Law. A sentencing court must always start with the presumption that a mandatory minimum sentence under the Habitual Offender Law is constitutional. A court may only depart from the minimum sentence if it finds clear and convincing evidence in the particular case before it, that rebuts this presumption of constitutionality. A trial court may not rely solely upon the nonviolent nature of the instant or prior offenses as evidence that justifies rebutting the presumption of constitutionality. While the classification of a defendant's instant or prior offenses as non-violent should not be discounted, this factor has already been considered under the Habitual Offender Law for third and fourth offenders. Johnson, 709 So.2d at 676.
To rebut the presumption that the mandatory minimum sentence is constitutional, the defendant must clearly and convincingly show that he is exceptional, which 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, the gravity of the offense, and the circumstances of the case. Given the legislature's constitutional authority to enact statutes such as the Habitual Offender Law, it is not the sentencing court's role to question the legislature's wisdom in requiring enhanced punishments for multiple offenders. Instead, the sentencing court is only allowed to determine whether the particular defendant before it has proven that the mandatory minimum sentence is so excessive in his case that it violates the constitution. Departures downward from the minimum sentence under the Habitual Offender Law should occur only in rare situations. Johnson, 709 So.2d at 676-77.
In asking the trial court to consider deviating below the minimum sentence allowed under the law, the defense counsel noted that the defendant completed many classes while incarcerated and attempted to better himself. In response, the State noted that the defendant was sentenced in 2014 for the distribution of cocaine and engaged in additional criminal activity after the expiration of the sentence in that case, in 2019. The State further noted that the defendant had prior convictions for false imprisonment while armed with a dangerous weapon and first-degree robbery. The State concluded that due to the defendant's repeated criminal activity which included crimes of violence, a downward departure would not be appropriate in this case.
In imposing the mandatory minimum sentence, the trial court found that this was not a case that warranted a downward departure. This court agrees with the trial court's assessment. As detailed in the presentence investigation report ordered prior to the original sentencing, the defendant has an extensive criminal history of arrests, including eight which resulted in convictions, dating back to 1991. Some of the defendant's convictions are for crimes against persons, including first degree robbery, simple battery, false imprisonment while armed with a dangerous weapon, and domestic abuse battery. Further, the defendant was admittedly newly released from prison at the time of the instant offense. Thus, the defendant has exhibited a continuing disregard for the laws of our state and is subjected to a longer sentence because he continues to break the law. Johnson, 709 So.2d at 677.
We find nothing unusual or unique about the defendant's circumstances that would justify a downward departure from the mandatory minimum twenty-year sentence. The defendant has not proven by clear and convincing evidence that he is exceptional such that the minimum sentence under the Habitual Offender Law was not meaningfully tailored to the culpability of the offender, the gravity of the offenses, and the circumstances of the case. Accordingly, no downward departure from the presumptively constitutional mandatory minimum sentence is warranted in this case. See Anderson, 357 So.3d at 854. Particularly considering that the defendant received the lowest sentence within the sentencing range that included a life sentence, we find the sentence imposed is not grossly disproportionate to the severity of the offense, and therefore, is not unconstitutionally excessive. The record before us clearly establishes an adequate factual basis for the sentence imposed. Thus, we find no error in the trial court's denial of the defendant's motion to reconsider sentence. The assignments of error are without merit.
CONCLUSION
For the above reasons, the defendant's habitual offender adjudication and sentence are affirmed.
HABITUAL OFFENDER ADJUDICATION AND SENTENCE AFFIRMED.