State v. Jackson

• Citation: 92 So.3d 1243
• Decision Date: 06 June 2012
• Docket Number: No. 11–923.,11–923.
• Parties: STATE of Louisiana v. Taurean JACKSON.
• Court: Court of Appeal of Louisiana (US)

92 So.3d 1243

STATE of Louisiana

v.Taurean JACKSON.

No. 11–923.

Court of Appeal of Louisiana, Third Circuit.

June 6, 2012.

Beth S. Fontenot, Attorney at Law, Louisiana Appellate, Lake Charles, LA, for Defendant–Appellant, Taurean Jackson.

James C. “Jam” Downs, District Attorney, John T. Giordano, Assistant District Attorney, Alexandria, LA, for the State of Louisiana.

Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JOHN D. SAUNDERS, and J. DAVID PAINTER, Judges.

PAINTER, Judge.

[3 Cir. 1]Defendant, Taurean Jackson, appeals the thirty-year sentence he received after being found to be a fourth felony offender upon his conviction of theft of goods between $300.00 and $500.00, a violation of La.R.S. 14:67.10. For the reasons that follow, we amend the sentence to delete that portion which prohibits the benefit of parole and affirm the sentence in all other respects.

FACTS AND PROCEDURAL HISTORY

On April 3, 2010, Defendant stole $508.00 worth of merchandise from Dillard's Department Store in Alexandria, Louisiana. Defendant was charged by bill of information with theft of goods between $300.00 and $500.00, a violation of La.R.S. 14:67.10.¹ On April 5, 2011, a jury found Defendant guilty as charged. Defendant was sentenced to two years at hard labor; however, the State filed a habitual offender bill charging Defendant as a fourth offender. The bill charged that Defendant had been previously been convicted of the following offenses: unauthorized use of a motor vehicle, a violation of La.R.S. 14:68.4, for which he was sentenced to pay a fine; possession of CDS, Schedule II, a violation of La.R.S. 40:967(C), for which he was ordered to pay a fine; possession with intent to distribute CDS, Schedule I, in violation of La.R.S. 40:966(A)(1)(G), for which he was sentenced to five years; and battery of correctional facility employee (while in custody of DOC), a violation of La.R.S. 14:34.5, for which he was sentenced to six months.

Following a habitual offender hearing, the trial court found Defendant to be a fourth felony offender. On September 12, 2011, the trial court vacated the two-year sentence and imposed a thirty-year at hard labor sentence to be served without the benefit of probation, parole, or suspension of sentence. No motion to reconsider sentence was filed.

Defendant contends that his thirty-year sentence is excessive and that the trial court illegally imposed the sentence without the benefit of parole. We do not find that [3 Cir. 2]the sentence is excessive, but we do amend the sentence to delete that portion which prohibits the benefit of parole.

DISCUSSION

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 that there is an error patent in that the trial court ordered the sentence to be served without the benefit of parole. Defendant asserts that neither the underlying statute, La.R.S. 14:67.10, nor La.R.S. 15:529.1(A)(2)(c)(i) prohibited parole; thus, the trial court erred in ordering the sentence to be served without the benefit of parole, citing State v. Bordelon, 09–1245 (La.App. 3 Cir. 5/5/10), 37 So.3d 480,writ denied,10–1745 (La.2/4/11), 56 So.3d 990. The State concedes that Defendant is correct. Therefore, we hereby amend the sentence to delete that portion which prohibits the benefit of parole. The trial court is ordered to note the amendment in the court minutes.

Excessiveness of Sentence

Defendant asserts that his sentence is excessive. He argues that his current offense was not a crime of violence, the merchandise was recovered by the store, and no one was hurt during the incident. He further asserts that “the current amended sentencing scheme for Theft of Good, the value of the merchandise taken by Mr. Jackson is only $9.00 above the misdemeanor grade of the offense.” Defendant points out that the trial court gave “scant reasons” to support the sentence imposed.

The State responds that the trial court adequately considered the factors set forth in La.Code Crim.P. art. 894.1, including but not limited to the number of arrests, misdemeanor and felony convictions, probation and parole violations and other criminal history.

Since Defendant did not object to his sentence or file a motion to reconsider sentence, he is relegated to a bare claim of excessiveness.

[3 Cir. 3]This court has set forth the following standard to be used in reviewing excessive sentence claims:

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).

State v. Barling, 00–1241, 00–1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035, 1042–43,writ denied,01–838 (La.2/1/02), 808 So.2d 331.

To decide whether a sentence shocks one's sense of justice or makes no meaningful contribution to acceptable penal goals, this court has held:

[A]n appellate court may consider several factors including the nature of the offense, the circumstances of the offender, the legislative purpose behind the punishment and a comparison of the sentences imposed for similar crimes. State v. Smith, 99–0606 (La.7/6/00), 766 So.2d 501. 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. 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.

At the time of the commission of the offense, the penalty for a conviction of theft of goods valued between $300.00 and $500.00 was two years with or without hard labor. La.R.S. 14:67.10. Based upon the sentencing transcript before this court, it appears that the trial court sentenced Defendant under the penalty provisions [3 Cir. 4]provided for in La.R.S. 15:529.1(A)(2)(c)(i), which provide a sentence of no less than twenty years with a maximum of life imprisonment.

In imposing the habitual offender sentence, the trial court stated in pertinent part that:

Based upon the ... number of felony convictions; based upon the ... fact that he has picked up these ... convictions at a young age; and a review of his history, prior criminal history, including a misdemeanor conviction.

The record does not indicate that a pre-sentencing investigation report was ordered.

The legislative purpose for sentencing under the habitual offender provision was set forth by the court in State v. Everett, 00–2998 (La.5/14/02), 816 So.2d 1272. The Everett court stated that “[t]he purpose of the Habitual Offender Law is to deter and punish recidivism.” Id. at 1276. Additionally, in State v. Johnson, 97–1906 (La.3/4/98), 709 So.2d 672, the court explained, in pertinent part:

Since the Habitual Offender Law in its entirety is constitutional, the minimum sentences it imposes upon multiple offenders are also presumed to be constitutional. [ State v.] Dorthey, supra [623 So.2d 1276] at 1281 [ (La.1993) ] (Marcus, J., concurring); State v. Young, 94–1636 (La.App. 4th Cir.10/26/95), 663 So.2d 525.

....

A trial judge may not rely solely upon the non-violent nature of the instant crime or of past crimes as evidence which 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 taken into account under the Habitual Offender Law for third and fourth offenders. LSA–R.S. 15:529.1 provides that persons adjudicated as third or fourth offenders may receive a longer sentence if their instant or prior offense is defined as a “crime of violence” under LSA–R.S. 14:2(13). Thus the Legislature, with its power to define crimes and punishments, has already made a distinction in sentences between those who commit crimes of violence and those who do not. Under the Habitual Offender Law those third and fourth offenders who have a history of violent crime get longer sentences, while those who do not are allowed lesser sentences.

Id. at 675–76.

Sentences imposed for similar crimes

[3 Cir. 5]In State v. Oliver, 03–416 (La.App. 5 Cir. 9/30/03), 857 So.2d 1227,writ denied,04–2139 (La.5/20/05), 902 So.2d 1042, the defendant was convicted of theft between $100.00 and $500.00. The defendant was sentenced to two years at hard labor. The State filed a habitual offender bill, and the defendant was found to be a fourth felony offender. She was sentenced to twenty years at hard labor. On appeal, the defendant challenged the sentence as excessive. The court upheld the sentence, stating, in pertinent part:

The record in the present case appears to indicate the defendant was engaged in a...