Opinion
No. 2008 KA 1226.
February 13, 2009.
APPEALED FROM THE NINETEENTH JUDICIAL DISTRICT COURT IN AND FOR THE PARISH OF EAST BATON ROUGE, LOUISIANA TRIAL COURT NUMBER 02-04-0677 HONORABLE MIKE ERWIN, JUDGE PRESIDING.
Doug Moreau, Beau Higginbotham, Larry McAlpine, Dylan C. Alge, Attorneys for Appellee, State of Louisiana.
Jane L. Beebe, New Orleans, LA, Attorney for Defendant/Appellant, Donovan Thompson.
BEFORE: CARTER, C.J., WHIPPLE, AND DOWNING, JJ.
The defendant, Donovan Thompson, was charged by bill of information with unauthorized entry into an inhabited dwelling (count 1), a violation of LSA-R.S. 14:62.3, injuring or killing of a police animal (count 2), a violation of LSA-R.S. 14:102.8, and aggravated flight from an officer (count 3), a violation of LSA-R.S. 14:108.1(C). He pled not guilty. Following a trial by jury, the defendant was convicted as charged. The State filed an habitual offender bill, seeking to have the defendant sentenced as a second felony habitual offender under LSA-R.S. 15:529.1 on count 1. At the conclusion of the habitual offender hearing, the trial court adjudicated the defendant a second felony habitual offender and sentenced him to imprisonment at hard labor for six years, without benefit of probation, parole or suspension of sentence on count 1. The court ordered that this sentence be served without the benefit of good time and concurrent with the sixty-year sentence imposed that same date in an unrelated case (19th Judicial District Court docket # 08-04-0057). The court sentenced the defendant to imprisonment at hard labor for three years on count 2. On count 3, the defendant was sentenced to imprisonment at hard labor for two years. The court also ordered that this sentence be served without the benefit of probation, parole, suspension of sentence, and concurrent with the sixty-year sentence in docket # 08-04-0057.
The defendant now appeals, urging in a single assignment of error that the sentences imposed by the trial court in this case are excessive. We affirm the unauthorized-entry-into-an-inhabited-dwelling conviction, the habitual offender adjudication, and the injuring-or-killing-of-a-police-animal-conviction and sentence. We vacate the unauthorized-entry-into-an-inhabited-dwelling sentence and remand for resentencing on that conviction. We reverse the aggravated-flight-from-an-officer conviction, vacate the sentence and remand to the district court for a new trial on that offense.
FACTS
On December 16, 2003, Officer Jeremy Stanley of the Baton Rouge City Police Department was patrolling eastbound on Gus Young Avenue near Foster Drive in Baton Rouge, Louisiana, when he recognized the defendant seated in the driver's seat of a vehicle. Based upon his personal knowledge that a warrant existed for the defendant's arrest, Officer Stanley decided to stop the defendant. As Officer Stanley performed a U-turn to effectuate the traffic stop, the defendant drove away. Officer Stanley and Officer Mike Russo (another police officer who arrived in the area) engaged sirens and emergency lights as they continued to pursue the defendant. Driving erratically, the defendant led the officers on a high-speed chase through a residential area. The defendant disregarded several stop signs, drove into opposing traffic forcing several vehicles off the road into yards, and drove down a pedestrian walkway before jumping out of the vehicle and continuing on foot. The unoccupied vehicle continued to travel until it hit a fence.
After fleeing on foot, the defendant ran into a nearby residence. Baton Rouge City Police officers surrounded the residence, and the residence was cleared of all occupants other than the defendant. When the defendant was warned of the officer's intent to send in a canine to apprehend him, the defendant replied, "F — the police, you'd better send four or five of them in here because I've got something for that dog and I've got something for that dog." Once inside, the officers again warned the defendant that the canine would be used and the defendant stated, "I'll kill him if you send him over here." When the canine, Roscoe, approached to apprehend him, the defendant grabbed the dog by the collar, pulled the dog towards him and stabbed him above the left eye. The defendant attempted to stab the dog a second time, but the blade of the knife broke off. The defendant continued striking the dog in the side with the bladeless knife. The officers rushed in to apprehend the defendant and a major physical altercation ensued. At one point, the defendant kicked Officer Stefon Lewis across the room. The defendant was eventually subdued and placed under arrest.
REVIEW FOR ERROR
In his brief, the defendant asks that this court examine the record for error under LSA-C.Cr.P. art. 920(2). In conducting our review, we have found an error which requires that the conviction on the charge of aggravated flight from an officer be vacated and the matter remanded for trial of this charge.
The minutes and record reflect that defendant in this case was tried by a six-member jury on the joined charges of unauthorized entry into an inhabited dwelling, injuring or killing of a police animal and aggravated flight from an officer. Joinder of two or more offenses in a single bill of information is allowed by LSA-C.Cr.P. art. 493, provided that the offenses are triable by the same mode of trial. Offenses in which punishment is necessarily confinement at hard labor may be charged in the same indictment or information with offenses in which the punishment may be confinement at hard labor, provided that the joined offenses are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan. Cases so joined shall be tried by a jury composed of twelve jurors, ten of whom must concur to render a verdict. LSA-C.Cr.P. art. 493.2.
In this case, the defendant was charged in Count 1 with unauthorized entry into an inhabited dwelling, a crime punishable by imprisonment with or without hard labor. A six-person jury was required for trial on that offense. See La.Const. art. I, § 17(A); LSA-R.S. 14:62.3(B); LSA-C.Cr.P. art 782(A). In Count 2, the defendant was charged with the injuring or killing of a police animal, a crime also punishable by imprisonment with or without hard labor and triable by a jury of six. See La.Const. art. I, § 17(A); LSA-R.S. 14:102.8(D)(1); LSA-C.Cr.P. art 782(A). However, the punishment for the crime of aggravated flight from an officer, as charged in Court 3, is set forth in LSA-R.S. 14:108.1(E), as follows:
Whoever commits aggravated flight from an officer shall be imprisoned at hard labor for not more than two years. (Emphasis added.)
Louisiana Constitution article I, § 17(A) and Louisiana Code of Criminal Procedure art. 782(A) both provide that a case in which the punishment is necessarily confinement at hard labor shall be tried before a jury of twelve persons, ten of whom must concur to render a verdict. Thus, the crime of aggravated flight from an officer, an offense necessarily punishable at hard labor, requires a jury of twelve. See State v. Brown, 2002-2231, p. 6 (La.App. 1st Cir. 5/9/03), 849 So. 2d 566, 570.
Unanimous conviction by a twelve-person jury where La.Const. art. I, § 17(A) and LSA-C.Cr.P. art. 782(A) require a six-person jury has recently been held to constitute a trial error subject to harmless error analysis. State v. Jones, 2005-0226, p. 4 (La. 2/22/06), 922 So. 2d 508, 511. However, we are constrained to find that the absence in this case of at least ten concurring votes of a twelve person jury on the aggravated-flight-from-an-officer charge was not harmless error. See State v. Young, 2006-0234, p. 8 (La.App. 1st Cir. 9/15/06), 943 So. 2d 1118, 1123-24, writ denied, 2006-2488 (La. 5/4/07), 956 So. 2d 606. Since the defendant was tried by a jury of six for this offense, we are required to reverse the conviction and vacate the sentence.
Although we reverse the defendant's conviction and vacate the sentence for the offense of aggravated flight from an officer, we do not disturb the remaining convictions which were tried before the correct number of jurors. Because all of the offenses were so closely related, evidence of either one could have been offered as a part of the res gestae of the other. See State v. Brown, 2002-2231 at p. 10, 849 So. 2d at 573.
We also note two errors in the sentence imposed for the unauthorized-entry of-an-inhabited-dwelling conviction. Specifically, the trial court erred in denying diminution of sentence and restricting parole eligibility on this conviction. It is well settled that the trial court, with certain exceptions, has no role in determining eligibility for diminution of sentence. See LSA-R.S. 15:571.3(A)(C) State v. Hotard, 2004-1092, p. 1 (La. 10/15/04), 885 So. 2d 533, 534 (per curiam). An exception does exist under LSA-C.Cr.P. art. 890.1 whereby the trial court may deny diminution of sentence for good behavior if the crime for which the sentence is imposed is a crime of violence. However, unauthorized entry into an inhabited dwelling is not a crime of violence and does not subject the defendant to this exception. Thus, the denial of the defendant's right to receive credit against his sentence for good behavior was improper and constitutes an illegal sentence.
Additionally, under LSA-R.S. 14:62.3(B), parole eligibility is not restricted for a conviction of unauthorized entry into an inhabited dwelling. Further, LSA-R.S. 15:529.1 does not restrict parole eligibility. Nevertheless, the record reflects that the trial judge ordered that the sentence for this offense be served without benefit of parole. Thus, it is clear from the record that the trial court deviated from the statutory penalty provided for this offense.
Because of the sentencing discretion involved, we vacate the sentence on Count 1 and remand the matter to the trial court for resentencing in accordance with law and the views expressed herein.
EXCESSIVE SENTENCES
In his sole assignment of error, the defendant contends the trial court erred in imposing unconstitutionally excessive sentences. He argues that the trial court imposed the maximum sentence on each of the offenses, which he contends is cruel and unusual punishment.
Article I, Section 20 of the Louisiana Constitution prohibits the imposition of excessive punishment. Although a sentence may be within statutory limits, it may violate a defendant's constitutional right against excessive punishment and is subject to appellate review. State v. Sepulvado, 367 So. 2d 762, 767 (La. 1979); State v. Lanieu, 98-1260, p. 12 (La.App. 1st Cir. 4/1/99), 734 So. 2d 89, 97, writ denied, 99-1259 (La. 10/8/99), 750 So. 2d 962. A sentence is constitutionally excessive if it is grossly disproportionate to the severity of the offense or is nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey, 623 So. 2d 1276, 1280 (La. 1993). A sentence is grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. State v. Hogan, 480 So. 2d 288, 291 (La. 1985). A trial court is given wide discretion in the imposition of sentences within statutory limits, and the sentence imposed by it should not be set aside as excessive in the absence of manifest abuse of discretion. State v. Lobato, 603 So. 2d 739, 751 (La. 1992).
The Louisiana Code of Criminal Procedure sets forth items that must be considered by the trial court before imposing sentence. LSA-C.Cr.P. art. 894.1. The trial court need not cite the entire checklist of article 894.1, but the record must reflect that it adequately considered the guidelines. State v. Herrin, 562 So. 2d 1, 11 (La.App. 1st Cir.), writ denied, 565 So. 2d 942 (La. 1990). In light of the criteria expressed by article 894.1, a review for individual excessiveness should consider the circumstances of the crime and the trial court's stated reasons and factual basis for its sentencing decision. State v. Watkins, 532 So. 2d 1182, 1186 (La.App. 1st Cir. 1988). Remand for full compliance with article 894.1 is unnecessary when a sufficient factual basis for the sentence is shown. State v. Lanclos, 419 So. 2d 475, 478 (La. 1982).
As a general rule, maximum sentences are appropriate in cases involving the most serious violation of the offense and the worst type of offender. See State v. James, 2002-2079, p. 17 (La.App. 1st Cir. 5/9/03), 849 So. 2d 574, 586. The maximum sentence permitted under a statute may also be imposed when the offender poses an unusual risk to the public safety due to his past conduct of repeated criminality. See State v. Hilton, 99-1239, p. 16 (La.App. 1st Cir. 3/31/00), 764 So. 2d 1027, 1037, writ denied, 2000-0958 (La. 3/9/01), 786 So. 2d 113.
The procedural requirements for objecting to a sentence are provided in LSA-C.Cr.P. art 881.1, which provides, in pertinent part, as follows:
A. (1) In felony cases, within thirty days following the imposition of sentence or within such longer period as the trial court may set at sentence, the state or the defendant may make or file a motion to reconsider sentence.
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B. The motion shall be oral at the time of sentence or shall be in writing thereafter and shall set forth the specific grounds on which the motion is based.
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E. Failure to make or file a motion to reconsider sentence or to include a specific ground upon which a motion to reconsider sentence may be based, including a claim of excessiveness, shall preclude the state or the defendant from raising an objection to the sentence or from urging any ground not raised in the motion on appeal or review. (Emphasis added).
Initially, we note that the defendant did not file a motion to reconsider the sentences in this case. The record reflects that, at the time of sentencing, the defendant was also sentenced on several other offenses. At the conclusion of the sentencing on the various offenses, counsel for the defendant stated, "Judge, we're going to object as it being — the sentence as being excessive, and we'll file a motion to reconsider that." The defendant did not file a motion to reconsider the sentences imposed in this particular case. Therefore, the defendant is procedurally barred by LSA-C.Cr.P. art. 881.1(E) from raising any objection to these sentences on appeal, including a claim of excessiveness. State v. Felder, 2000-2887, p. 10 (La.App. 1st Cir. 9/28/01), 809 So. 2d 360, 369, writ denied, 2001-3027 (La. 10/25/02), 827 So. 2d 1173; State v. Duncan, 94-1563, p. 2 (La.App. 1st Cir. 12/15/95), 667 So. 2d 1141, 1143 (en banc per curiam).
Thereafter, the defense filed a motion to reconsider challenging only the 60-year sentence for possession with intent to distribute in 19th Judicial District Court docket number 08-04-0057 as excessive. See State v. Thompson, 2008KA1293.
Moreover, even if we were to review the remaining sentences we would not find them to be excessive. As previously noted, the defendant herein was sentenced, as a second felony offender, to imprisonment for six years at hard labor on the unauthorized entry of an inhabited dwelling conviction. Louisiana Revised Statute 14:62.3(B) provides that whoever commits the crime of unauthorized entry of an inhabited dwelling shall be fined not more than one thousand dollars or imprisoned with or without hard labor for not more than six years or both. Under LSA-R.S. 15:529.1(A)(1)(a), as a second felony habitual offender, the defendant faced imprisonment for a maximum of twelve years. Thus, contrary to the defendant's assertions, the six-year sentence imposed on the unauthorized-entry-of-an-inhabited-dwelling conviction is not a maximum sentence. The defendant did, however, receive the maximum sentence allowed on the injuring-or-killing-of-a-police-animal conviction.
As noted above, we have vacated the sentence for the aggravated-flight-from-an-officer conviction.
Prior to imposing sentence, the trial court reviewed the facts of the case and the defendant's criminal history, stating as follows:
Before entering the sentence the court will also note for the record that not only was Mr. Thompson found guilty in that bill of distribution — or, possession with intent to distribute cocaine, he was also found guilty of simple escape. That, in bill number 2-04-677 he was found guilty of unauthorized entry of an inhabited dwelling, the injuring or killing of a police dog, and aggravated flight from an officer. And then again in bill number 1-04-398 he was found guilty of another charge of simple escape, which is [sic] five other felony convictions that Mr. Thompson has received in the last year or so. Such actions by Mr. Thompson indicates [sic] to the court that he is a danger to the community. He is a danger to the police department. And if given a sentence any lighter than one that I intend to impose would deprecate the seriousness of the offenses for which he's been charged, and would probably indicate to Mr. Thompson that, "I can keep doing these things if I ever get out of jail", because I don't think Mr. Thompson ever learned a lesson.
After considering the circumstances presented herein and the reasons for sentencing given by the trial court, we find no abuse of discretion in the sentences imposed. Contrary to the defendant's claim, the sentences imposed in this case do not constitute cruel and unusual punishment. The enhanced sentence on the unauthorized-entry-of-an-inhabited-dwelling conviction is one-half of the possible sentence of imprisonment. Such a sentence is clearly supported by the record. Furthermore, the maximum sentence on the injuring-or-killing-of-a-police-animal conviction is neither grossly disproportionate to the severity of the offense, nor so disproportionate as to shock our sense of justice. The defendant, who has repeatedly shown absolutely no regard for the law, society, or law enforcement officials, is clearly the worst type of criminal offender, and he poses an unusual risk to public safety. Therefore, considering the nature of the offenses, coupled with the defendant's demonstrated propensity to continue criminal activity, we conclude that the sentences imposed in this case are not unconstitutionally excessive.
This assignment of error lacks merit.