State v. Charles

• Decision Date: 05 May 2021
• Docket Number: 20-498
• Citation: 318 So.3d 356
• Court: Court of Appeal of Louisiana — District of US
• Parties: STATE of Louisiana v. Trivual A. CHARLES a/k/a Trivual Batiste a/k/a Trivual Charles

318 So.3d 356

STATE of Louisiana

v.Trivual A. CHARLES a/k/a Trivual Batiste a/k/a Trivual Charles

20-498

Court of Appeal of Louisiana, Third Circuit.

May 5, 2021

Peggy J. Sullivan, Louisiana Appellate Project, P. O. Box 2806, Monroe, Louisiana 71207-2806, (318) 855-6038, COUNSEL FOR APPELLANT: TRIVUAL A. CHARLES A/K/A TRIVUAL BATISTE A/K/A TRIVUAL CHARLES

Donald D. Landry, District Attorney, 15th Judicial District, Burleigh G. Doga, Assistant District Attorney, P. O. Box 288, Crowley, Louisiana 70526, (337) 783-9471, COUNSEL FOR APPELLEE: STATE OF LOUISIANA

Court composed of John D. Saunders, Candyce G. Perret, and Jonathan W. Perry, Judges.

PERRY, Judge.

Defendant, Trivual A. Charles, appeals his twenty-year sentence for possession of a firearm by a convicted felon. We affirm.

FACTS AND PROCEDURAL HISTORY

On December 18, 2015, Officer Crystal Miller of the Rayne Police Department responded to a report of a stolen bicycle. When Officer Miller approached the area of 700 Holt Street in Rayne, she saw Defendant on the porch. At that time, Defendant, who was not involved with the stolen bicycle, had an outstanding warrant for his arrest. Officer Miller requested backup and waited until three fellow officers arrived.

When the officers informed Defendant he was under arrest, he told them if they were taking him to jail, then they were taking him naked. At this point, Defendant began to remove his clothing. After Defendant removed his jacket and shirt, he attempted to remove his pants but was stopped. Officer Jacob Venable then pulled Defendant's pants up and handcuffed him; at about that same time, Sergeant Joseph Credeur, one of the other officers at the scene, picked up Defendant's jacket and placed it in the patrol car. The officers then transported Defendant to the Rayne Police Department for booking.

As Defendant was booked, Officer Venable searched the clothing that had been brought from the scene. When searching Defendant's jacket, a Taurus .38 revolver was found in the pocket with two spent casings and one live round in the chamber. Nothing else was found inside the jacket.

On February 22, 2016, the State filed a bill of information charging Defendant with possession of promethazine on the premises of Rayne Police Department, a violation of La.R.S. 14:402,¹ and with possession of a firearm by a convicted felon, a violation of La.R.S. 14:95.1. The State severed the charge of possession of contraband on the premises of the police department from the bill of information, and Defendant proceeded to a trial by jury on the remaining count of possession of a firearm by a convicted felon. On August 1, 2017, a unanimous jury convicted Defendant of possession of a firearm by a convicted felon. Thereafter, the State dismissed the severed charge of possession of contraband on the premises of the police department.

On October 12, 2017, the trial court held a sentencing hearing and sentenced Defendant to the maximum term of imprisonment of twenty years² without the benefit of probation, parole, or suspension of sentence. In State v. Charles , 18-222 (La.App. 3 Cir. 5/1/19), 270 So.3d 859, this court vacated Defendant's sentence and remanded for resentencing because the record failed to show that the trial court considered the guidelines provided in La.Code Crim.P. art. 894.1.

On remand, the trial court held a sentencing hearing on August 22, 2019, and again imposed a sentence of twenty years at hard labor and ordered the sentence served without benefit of probation, parole, or suspension of sentence. On September 26, 2019, Defendant filed a motion to reconsider sentence; the trial court denied the motion without a hearing. Defendant filed a motion for appeal on October 2, 2019, and that, too, was denied. Thereafter, on July 13, 2020, the trial court granted Defendant's second motion for appeal seeking a review of the resentencing.

Defendant is now before this court alleging that the trial court failed to state an adequate basis for the twenty-year maximum sentence of incarceration it imposed; thus, he argues his sentence is unconstitutionally harsh and excessive.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all criminal appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find one error patent involving the sentence imposed.

Under the sentencing provision of La.R.S. 14:95.1(B), the trial court was required to impose a fine of not less than one thousand dollars nor more than five thousand dollars for Defendant's conviction of possession of a firearm by a convicted felon. The trial court failed to impose the mandatory fine, rendering the sentence for possession of a firearm by a convicted felon illegally lenient. This court has noted in previous opinions that if the trial court imposed an illegally lenient sentence, we would not correct the error unless the State raised the issue. State v. Mayfield , 18-420 (La.App. 3 Cir. 12/6/18), 261 So.3d 101, writ denied , 19-46 (La. 5/28/19), 273 So.3d 316 ; State v. Aguillard , 17-798 (La.App. 3 Cir. 4/11/18), 242 So.3d 765, writ denied , 18-1207 (La. 3/6/19), 266 So.3d 897 ; State v. Goodeaux , 17-441 (La.App. 3 Cir. 11/2/17), 231 So.3d 124, writ denied , 17-2143 (La. 9/14/18), 252 So.3d 488 ; State v. Celestine , 11-1403 (La.App. 3 Cir. 5/30/12), 91 So.3d 573 ; and State v. Smith , 10-830 (La.App. 3 Cir. 2/9/11), 58 So.3d 964, writ denied , 11-503 (La. 9/30/11), 71 So.3d 279 ; see also , State v. Brown , 19-771, p. 2 (La. 10/14/20), 302 So.3d 1109, 1110 (per curiam), where the supreme court stated the following in dicta:

Furthermore, the State did not complain on appeal that the sentences were illegally lenient. Therefore, the court of appeal erred in finding as an error patent that they were indeterminate and in vacating them, absent any complaint by the State that the district court failed to apply the mandatory firearms enhancement.

Because the State has not raised the issue of Defendant's illegally lenient sentence, we will not correct Defendant's sentence to impose the mandatory fine.

DISCUSSION

Defendant alleges the trial court again failed to state an adequate basis for the sentence imposed by not considering the aggravating and mitigating factors set forth in La.Code Crim.P. art. 894.1. Defendant further argues that the sentence of twenty years at hard labor without benefit of probation, parole, or suspension of sentence was unconstitutionally harsh and excessive. Thus, Defendant asks this court to order the imposition of a sentence that is not unconstitutionally excessive, and which takes into consideration the mitigating factors present in this case.

In State v. Charles , 270 So.3d at 868-70 (alterations in original), we reviewed the trial court's originally imposed sentence, stating:

We note ... that none of the twenty aggravating circumstances enumerated [in La.Code Crim.P. art. 894.1 ] are present in this case and no other aggravating circumstances were present. Defense counsel also presented mitigating factors that should be considered by the trial court in imposing sentence, including Defendant's mental health issues. The only reasoning articulated by the trial court was:

You're charged with La.R.S. 14:95.1. Whoever is found guilty of committing the crime of felon in possession of a firearm shall be imprisoned at hard labor for not less than ten years³ [ ]nor more than twenty (20), without benefit of parole, probation or suspension of sentence. You are a fifth felony offender, which I consider to be a career criminal, and I'm going to sentence you to twenty (20) years without parole, probation or suspension of sentence.

And you have two (2) years post-conviction relief; that's two years from the date this judgment becomes final to appeal anything done today.⁴

This was the full extent of the trial court's remarks concerning sentencing Defendant. The brevity of the trial court's reasons for imposing the maximum sentence provides no insight or ability for this court to review the propriety of the trial court's sentence and does not reflect that the trial court considered the statutory guidelines mandated by La.Code Crim.P art. 894.1.

La.C.Cr. P. Art. 894.1 [D] enumerates aggravating and mitigating factors to be considered by the trial court in imposing sentence, and requires that the trial judge "state for the record the considerations taken into account and the factual basis thereof in imposing sentence." The purpose of the statute is to afford a reviewing court some insight into the reasoning process of the sentencing judge, so that the propriety of the sentence can be better evaluated.State v. Price , 403 So.2d 660 (La.1981). The trial judge need not state for the record his consideration of each of the aggravating and mitigating circumstances enumerated in the article. However, the record must reflect that the judge did consider these guidelines in particularizing the sentence to the defendant.State v. Quebedeaux , 424 So.2d 1009 (La.1982). The record should reflect that the trial court considered not only the seriousness of the crime and the defendant's criminal history, but also the defendant's personal history (age, mental status, dependents, family ties, employment record, emotional and physical health), and his potential for rehabilitation. State v. Quebedeaux , supra ; State v. Jones , 398 So.2d 1049 (La.1981). The judge should indicate that he considered not only the factors militating for incarceration, but also any factor mitigating against it. State v. Ray , 423 So.2d 1116 (La.1982).

State v. See , 462 So.2d 1369, 1372 (La.App. 3 Cir. 1985), writ denied, writ granted in part, judgment set aside in part , 467 So.2d 525 (La.1985) (emphasis added).

[This court] has also said:

It is not necessary for the trial court to articulate every factor presented in Art. 894.1, but the record must reflect that the trial court adequately considered them in particularizing the sentence to the defendant. State v. Cottingin , 476

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