State v. Kennon

• Decision Date: 09 September 2020
• Docket Number: 2019-KO-00998
• Citation: 340 So.3d 881
• Parties: STATE of Louisiana v. Keddrick KENNON
• Court: Louisiana Supreme Court

340 So.3d 881

STATE of Louisiana
v.
Keddrick KENNON

No. 2019-KO-00998

Supreme Court of Louisiana.

September 9, 2020

PER CURIAM:^*

The facts underlying these convictions are straightforward. In 2014, a police informant made two controlled drug purchases from defendant in Minden. The transactions were captured on hidden camera. On January 24, the informant purchased two small bags of cocaine from defendant with $350 provided by the police. The transaction occurred in front of the home of defendant's mother. On February 6, the informant purchased a small bag of cocaine and a small bag of what was described as methamphetamine from defendant, this time in defendant's home, with $350 provided by the police. The bag that was supposed to contain methamphetamine turned out to contain bunk.

A Webster Parish jury found defendant guilty of distribution of cocaine and possession of cocaine. In comparison to the facts, the procedural history after the verdicts is labyrinthine. The district court sentenced defendant to serve two terms of imprisonment at hard labor: 30 years and five years, to run consecutively. The court of appeal affirmed the convictions and sentences (as amended to reflect that the first two years of the 30-year sentence for distribution of cocaine are to be served without parole eligibility). State v. Kennon , 50,511 (La. App. 2 Cir. 4/13/16), 194 So.3d 661 ( Kennon-1 ), writ denied , 16-0947 (La. 5/19/17), 220 So.3d 747.¹

On June 3, 2016, the State filed a habitual offender bill of information, alleging that defendant is a fourth-felony offender with predicate felony convictions for distribution of cocaine, possession of cocaine, and attempted possession of cocaine with intent to distribute. Defendant admitted he is a second-felony offender (based on the attempted possession of cocaine with intent to distribute predicate) and received an agreed-upon sentence of 60 years imprisonment at hard labor. The district court, however, had vacated both sentences before it imposed the 60-year sentence.

Defendant filed a motion to correct an illegal sentence, which the district court denied. Because defendant received a single 60-year sentence despite being convicted of two crimes, the court of appeal granted defendant's application for supervisory writs. The court of appeal vacated the habitual offender sentence and remanded for resentencing. State v. Kennon , 52,343 (La. App. 2 Cir. 7/20/18) (unpub'd). On remand, the trial court reimposed the originally agreed-upon sentence of 60 years imprisonment at hard labor as a second-felony offender for distribution of cocaine. The district court also sentenced

340 So.3d 884

defendant to a concurrent term of five years imprisonment at hard labor for the possession of cocaine conviction.

The court of appeal affirmed the sentences. State v. Kennon , 52,661 (La. App. 2 Cir. 5/22/19), 273 So.3d 611 ( Kennon-2 ). The court of appeal found that it could review the sentence, although it was imposed pursuant to a plea agreement, because the district court informed defendant at his original habitual offender sentencing and at the resentencing that followed remand that he had 30 days to appeal the sentence.

The court of appeal then found defendant was correctly sentenced under the habitual offender statute, as it existed at the time defendant committed the underlying criminal act, and that a subsequent legislative amendment that reduced the sentencing range "is an improper metric to find a sentence excessive." Kennon-2 , 52,661, p. 7, 273 So.3d at 617. The court of appeal noted that, although defendant agreed to receive the maximum sentence authorized for a second-felony offender, he could have received a mandatory life sentence if found to be a fourth-felony offender, as the State had originally alleged. While recognizing that the penalty range was reduced by a 2017 amendment to the Habitual Offender Law,² the court of appeal found the amendment applied prospectively only and did not constitute a reason to find defendant's sentence imposed under the pre-2017 law is excessive.³ Finally, the court of appeal found defendant's sentence is not excessive. The court of appeal noted that defendant's criminal history reflects defendant's involvement in the drug trade, spans 20 years, and includes two parole revocations, before the court concluded:

When viewed in the light of the harm done to society, the sentence the defendant agreed to, while the maximum allowed for a second felony offender, cannot be said to shock the sense of justice. The defendant has obviously failed to benefit from prior leniency afforded him in sentencing and has not been successfully rehabilitated despite the many opportunities given to him. As noted by the trial court, the defendant's drug activity has continued to pose a dangerous threat to the community. For these reasons, the agreed upon 60-year sentence has been shown to be meaningfully tailored to the culpability of this defendant and, accordingly, we affirm it.

Kennon-2 , 52,661, p. 12, 273 So.3d at 619.

Defendant argues in this court that his 60-year habitual offender sentence is reviewable despite it being imposed originally

340 So.3d 885

pursuant to a plea agreement, and that it is excessive in violation of the prohibition against cruel, excessive, or unusual punishment contained in La. Const. Art. 1, § 20. The State takes the contrary views. For the reasons that follow, we find the 60-year sentence is both reviewable and excessive, and therefore we set it aside. However, because the sentence was negotiated as part of a plea agreement in which defendant admitted his status as a second-felony offender, we also set aside the habitual offender adjudication, we restore the parties to the status quo ante by reinstating the unenhanced sentences (30 years and 5 years, to run consecutively) that were affirmed as amended in Kennon-1 , and we remand to the district court for further proceedings.

As a general matter, sentences imposed in accordance with plea agreements are unreviewable. La.C.Cr.P. art. 881.2(A)(2) ("The defendant cannot appeal or seek review of a sentence imposed in conformity with a plea agreement which was set forth in the record at the time of the plea."); State v. Curry , 400 So.2d 614, 616 (La. 1981) ("The sentence ... was the result of plea bargaining culminating in a plea of guilty with the sentence to be given understood and agreed to. Under these circumstances we believe there was no necessity of listing enumerated reasons and that the defendant cannot complain of excessive length."). Defendant argues this general prohibition does not apply because he was not informed he was waiving his right to appellate review of the sentence, and he was informed of the time in which to appeal.

The record shows that during the original plea colloquy held on August 1, 2016, the district court advised defendant that he was waiving the right to appeal, but, after imposing sentence, the court also informed defendant he had 30 days to appeal his sentence. On remand after the court of appeal set aside the sentence, the district court once again informed defendant that he had 30 days to appeal the sentence after resentencing him. Citing jurisprudence within its circuit, the court of appeal found the district court's statements sufficient to preserve defendant's right to appellate review of his sentence. Kennon-2 , 52,661, p. 5, 273 So.3d at 616, citing State v. Thomas , 51,364 (La. App. 2 Cir. 5/17/17), 223 So.3d 125, writ denied , 17-1049 (La. 3/9/18), 238 So.3d 450 ; State v. Brown , 50,138 (La. App. 2 Cir. 9/30/15), 181 So.3d 170 ; State v. Fizer , 43,271 (La. App. 2 Cir. 6/4/08), 986 So.2d 243. Under that jurisprudence, "when the right to appeal has been mentioned by the district court during the plea colloquy, even though there is an agreed sentence or sentence cap, the defendant's sentence may be reviewed." Thomas , 51,364, p. 9, 223 So.3d at 130.

While the district court's advisements of the time to appeal were made after the sentences were imposed and did not occur during either plea colloquy, there is an even clearer indication here that the parties and the court intended for defendant to be able to seek appellate review of the sentence. On remand, the district court appointed a public defender to represent defendant and to advance arguments with regard to the sentence on defendant's behalf. Although the district court ultimately rejected those arguments and resentenced defendant to the same 60-year term of imprisonment, the court clearly stated that it wanted to preserve the record for appellate review.

Defendant was resentenced after the Habitual Offender Law, La.R.S. 15:529.1, was amended by 2017 La. Acts 282. Among the arguments advanced by defendant before he was resentenced is a claim that he should be resentenced under the amended law. The district court and the court of appeal rejected this claim but

340 So.3d 886

did not have the benefit of this Court's decision in State v. Lyles , 19-0203 (La. 10/22/19), 286 So.3d 407, which was decided after. Defendant now argues he is entitled to be resentenced under Lyles because his conviction was not yet final until after November 1, 2017, because appellate review of the habitual offender sentence was ongoing. The State disagrees.

In State v. Lyles , this court considered whether...