State v. Kennon

• Decision Date: 22 May 2019
• Docket Number: No. 52,661-KA,52,661-KA
• Citation: 273 So.3d 611
• Parties: STATE of Louisiana, Appellee v. Keddrick KENNON, Appellant
• Court: Court of Appeal of Louisiana — District of US

273 So.3d 611

STATE of Louisiana, Appellee

v.Keddrick KENNON, Appellant

No. 52,661-KA

Court of Appeal of Louisiana, Second Circuit.

Judgment rendered May 22, 2019

LOUISIANA APPELLATE PROJECT, By: Peggy Sullivan, Counsel for Appellant

KEDDRICK KENNON, Pro Se

J. SCHUYLER MARVIN, District Attorney, HUGO A. HOLLAND, JR., JOHN M. LAWRENCE, Assistant District Attorneys, Counsel for Appellee

Before MOORE, GARRETT, and BLEICH (Ad Hoc), JJ.

GARRETT, J.,

The defendant, Keddrick Kennon, was convicted of one count of distribution of cocaine and one count of possession of cocaine. On appeal, his convictions were affirmed and his sentences were affirmed as amended. He subsequently pled guilty to being a second felony offender; the trial court vacated his previous sentences and imposed an agreed upon sentence of 60 years at hard labor. Because he was not sentenced on both convictions, the defendant filed a writ application which we granted, vacating the sentence and remanding for resentencing. On remand, the trial court sentenced the defendant to 60 years at hard labor for the habitual offender adjudication based upon the cocaine distribution conviction and five years at hard labor for the cocaine possession conviction. The sentences were imposed concurrently. The defendant now appeals his 60-year sentence at hard labor as excessive. We affirm the defendant's adjudication as a second felony offender and the sentences imposed upon him.

FACTS

The facts pertaining to the defendant's convictions were set forth in detail in State v. Kennon , 50,511 (La. App. 2 Cir. 4/13/16), 194 So.3d 661, writ denied , 16-0947 (La. 5/19/17), 220 So.3d 747. To briefly summarize, an inmate serving as a trustee for the Minden Police Department agreed to work as a confidential informant ("CI") in controlled drug purchases in January and February 2014. As the result of several transactions with the CI, the defendant was charged by bill of information with three counts of distribution of a Schedule II controlled dangerous substance ("CDS"), cocaine, in violation of La. R.S. 40:967(A)(1), and one count of distribution of an imitation CDS, in violation of La. R.S. 40:971.1. Following a jury trial, the defendant was acquitted on one count of cocaine distribution and the imitation CDS distribution charge. He was convicted of one count of cocaine distribution, as well as one count of possession of cocaine as a responsive verdict to the third charge of cocaine distribution. He was sentenced to 30 years at hard labor on the distribution conviction and five years at hard labor on the possession conviction, to run consecutively. This court affirmed his convictions, amended his distribution sentence to be served without benefit of parole, probation or suspension of sentence for the first two years, and, as amended, affirmed his sentences.

On June 3, 2016, the state charged the defendant as a fourth felony offender.¹ On August 1, 2016, pursuant to a plea agreement, the defendant pled guilty to being a second felony offender, his previous sentences were vacated, and he was resentenced to 60 years at hard labor.² The trial court informed him that he had 30 days to appeal his sentence.

On March 1, 2018, the defendant filed a motion to correct illegal sentence claiming that the trial court failed to (1) specify the class of multiple offender (second, third or fourth) he was adjudicated, and (2) impose determinate sentences for the two convictions. The trial court denied the motion, and the defendant made a writ application to this court. We denied the writ as to the classification, finding that the record indicated that the defendant pled guilty to being a second felony offender. However, we granted the writ as to the determinate sentences issue because the defendant received only one sentence, the agreed upon 60-year sentence, despite the trial court vacating both of his previously imposed sentences. We set aside the 60-year sentence and remanded the case to the trial court for resentencing. State v. Kennon , 52,343 (La. App. 2 Cir. 7/20/18).

The resentencing hearing was held on September 10, 2018. Initially, the defendant represented himself and questioned whether the "new law comes into effect" regarding his "multi-bill." The trial court informed him that he would be able "to seek relief based upon whatever the law is there." The trial court then appointed the public defender to represent the defendant at the hearing and temporarily passed the case. After consulting with the defendant, the public defender argued that the defendant should be "subject to retroactivity of the new habitual law under Esteen v. State . "³ The trial court held that, under the habitual offender bill of information, it would sentence the defendant on the cocaine distribution conviction according to the "agreed upon time of sixty years at hard labor." As to the cocaine possession conviction, the trial court sentenced him to five years at hard labor, to be served concurrently and with credit for time served. The trial court also informed the defendant that he had 30 days to appeal "this sentence."

On October 16, 2018, the defendant filed a pro se motion for appeal, which the trial court granted. It also appointed the Louisiana Appellate Project ("LAP") to represent the defendant.

ARGUMENTS

In the brief filed on his behalf by LAP, the defendant acknowledges that, as a rule, an agreed upon sentence cannot be appealed, pursuant to La. C. Cr. P. art. 881.2, and that the law in effect at the time of the commission of the offense determines the penalty under the habitual offender law, La. R.S. 15:529.1. Furthermore, the defendant admits that the sentencing range for a second felony offender would have been 15 to 60 years at hard labor at both the time of the offense in 2014 and his adjudication as a second felony offender in 2016. In both 2014 and 2016, had he been adjudicated a fourth felony offender, the penalty would have been life imprisonment without parole, probation or suspension of sentence. The defendant further states that, if he had been convicted of the same crime with the same criminal history, he would have been facing a sentencing range of 20 years to life imprisonment in 2018. Nonetheless, the defendant points out recent amendments which significantly reduced the sentencing exposure under La. R.S. 40:967 and La. R.S. 15:529.1. He requests that his 60-year sentence be reviewed for constitutional excessiveness pursuant to State v. Dorthey , 623 So.2d 1276 (La. 1993). The defendant argues that this sentence is excessive because it is grossly out of proportion to the severity of the crime and is not representative of the strides the State of Louisiana has made to reform sentencing. He asserts that, although he agreed to a sentence of 60 years, in light of the changes to the law in the two years since his initial agreement, as well as the fact that he was being resentenced, the trial court should have considered whether his sentence was constitutionally excessive.

The defendant also filed a pro se brief, which primarily copies the LAP brief. Additionally, the defendant cites portions of the 2017 version of La. R.S. 15:529.1 and makes arguments regarding the possible sentencing ranges in effect at the time of his 2018 resentencing hearing. He erroneously asserts that, as a fourth felony offender in 2018, he would have faced only a maximum of 20 years.

The state contends that, pursuant to La. C. Cr. P. art. 881.2, the defendant is precluded from appealing or seeking review of the sentence because it was imposed in conformity with a plea agreement. It also observes that the defendant received a considerable benefit from the plea agreement.

LAW

A 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. La. C. Cr. P. art. 881.2(A)(2). Where a specific sentence or sentencing cap has been agreed upon as a consequence of a plea bargain, a sentence imposed within the agreed range cannot be appealed as excessive if that right has not been specifically reserved. State v. Taylor , 44,205 (La. App. 2 Cir. 5/13/09), 12 So.3d 482.

However, 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. 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. Fizer , 43,271 (La. App. 2 Cir. 6/4/08), 986 So.2d 243. Further, when the trial court fails to specifically advise the defendant that he has the right to appeal his sentence or that he was waiving that right, the sentence may be reviewed on appeal. State v. Brown , 50,138 (La. App. 2 Cir. 9/30/15), 181 So.3d 170.

After resentencing, it is appropriate for this court to review the entirety of the record, including the transcripts of both the original sentencing hearing and the resentencing hearing, to determine whether an adequate factual basis for the trial court's sentence exists and whether the trial court abused its discretion in sentencing. State v. Darnell , 51,499 (La. App. 2 Cir. 8/9/17), 243 So.3d 1162, writ denied , 17-1526 (La. 5/25/18), 242 So.3d 1231 ; State v. Billingsley , 2013-11 (La. App. 3 Cir. 10/9/13), 123 So.3d 336.

Ordinarily, appellate review of sentences for excessiveness is a two-step process, the first being an analysis of the trial court's compliance with the sentencing guidelines of La. C. Cr. P. art. 894.1. State v. Bass , 49,804 (La. App. 2 Cir. 7/8/15), 169 So.3d 831. Nevertheless, when a specific sentence has been agreed upon, there is no need for the trial judge to give reasons for the sentence, as normally required by La. C. Cr. P. art. 894.1. State v. Fizer , supra . Further, when a defendant fails to file a motion to reconsider sentence in the lower court, appellate review is limited to an analysis of the sentence for...