State of Louisiana v. Charles Edward Jackson -Aka- Charles E. Jackson

• Court: Louisiana Court of Appeal
• Decided: December 9, 2015
• Docket: KA-0015-0557
• Status: Unknown

Opinion

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

15-557

STATE OF LOUISIANA

VERSUS

CHARLES EDWARD JACKSON A/K/A CHARLES E. JACKSON

**********

APPEAL FROM THE NINTH JUDICIAL DISTRICT COURT PARISH OF RAPIDES, NO. 316,659 HONORABLE JOHN C. DAVIDSON, DISTRICT JUDGE

PHYLLIS M. KEATY JUDGE

Court composed of John D. Saunders, Jimmie C. Peters, and Phyllis M. Keaty, Judges.

AFFIRMED AS AMENDED. J. Phillip Terrell District Attorney Brian D. Cespiva Assistant District Attorney Post Office Drawer 1472 Alexandria, Louisiana 71309 (318) 473-6650 Counsel for Appellee: State of Louisiana

Edward J. Marquet Louisiana Appellate Project Post Office Box 53733 Lafayette, Louisiana 70505-3733 (337) 237-6841 Counsel for Defendant/Appellant: Charles Edward Jackson KEATY, Judge.

Defendant, Charles Edward Jackson, appeals his sentence for attempted

second degree murder. For the following reasons, we affirm as amended.

FACTS AND PROCEDURAL BACKGROUND

Defendant attempted to kill Imad Isa on April 28, 2013, while possessing a

firearm. This occurred in Alexandria, Louisiana, during the early morning hours at

a convenience store which Isa owns and where he was working at that time.

Specifically, Defendant entered the store, purchased gin from Isa, and left.

Defendant returned a few minutes later and complained that Isa gave him the

wrong type of gin. Isa told Defendant that he could not return or exchange the gin

since the bottle had already been opened. Defendant exited the store again, got

into his car, and drove around to the back of the store. Defendant subsequently

walked to the front of the store with a gun, pointed it towards the store and Isa, and

fired multiple shots. Although the bullets went into the store, none of them hit Isa.

Defendant was charged with attempted second degree murder, in violation of

La.R.S. 14:27 and 14:30.1. He was also charged with possession of a firearm by a

convicted felon, in violation of La.R.S. 14:95.1, because he had previously been

convicted of two prior felonies. Following a three-day jury trial which began on

August 12, 2014, Defendant was found guilty on both charges. He was sentenced

to serve forty years at hard labor for his attempted second degree murder

conviction and twenty years at hard labor for his possession of a firearm by a

convicted felon conviction. He received credit for time already served, and the

remainder of his sentences was ordered to run concurrently without the benefit of

probation, parole, or suspension of sentence. On October 29, 2014, Defendant filed a Motion for Reconsideration of

Sentence pursuant to La.Code Crim.P. art. 881.1, asking the trial court to review

and “amend his sentence of 40.” Although he failed to state any basis for his

motion, he indicated that he wanted to preserve the issue for appellate review.

Defendant’s motion was denied on November 13, 2014, since he “failed to

articulate a claim upon which relief can be granted[.]” He subsequently appealed

his sentence.

On appeal, and in his only assignment of error, Defendant contends that his

forty-year sentence was constitutionally excessive.

DISCUSSION

I. 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 one error patent. The trial court’s minutes conflict with the sentencing

transcript with respect to which conviction the $1,000.00 fine was imposed.

Specifically, the trial court’s minutes state:

Court sentenced accused for MURDER 2, ATTEMPTED. Accused is to pay a fine of 1000.00 - Concurrent. . . . Due by September 29th 2014. Default 30 days Parish Prison. . . . Court sentenced accused for FIREARM POSS. BY FELON. Accused is to pay a fine of 1000.00 - Concurrent. . . . Due by September 29th 2014. Default 30 days Parish Prison.

The sentencing transcript states:

[O]n Attempted Second Degree Murder I’m gonna sentence Mr. Jackson to forty years without benefit of parole, probation, or suspension of sentence. On Possession of a Firearm I’m gonna sentence Mr. Jackson to twenty years, this is all at hard labor without benefit of parole, probation or suspension of sentence. I order that he pay a thousand dollar fine due and payable today or do thirty days parish time. All of this is to run concurrent.

2 With respect to attempted second degree murder, neither La.R.S. 14:27 nor

14:30.1 allows for imposition of a fine. “[W]hen the minutes and the transcript

conflict, the transcript prevails.” State v. Wommack, 00-137, p. 4 (La.App. 3 Cir.

6/7/00), 770 So.2d 365, 369, writ denied, 00-2051 (La. 9/21/01), 797 So.2d 62.

Accordingly, we order the trial court to amend its sentencing minute entry to

correctly reflect that the $1,000.00 fine was not imposed on the attempted second

degree murder sentence.

II. Excessive Sentence

In his only assignment of error, Defendant contends that his forty-year

sentence at hard labor without the benefit of probation, parole, or suspension of

sentence is constitutionally excessive. After the imposition of his sentence,

Defendant filed a motion to reconsider sentence although he failed to state a

specific ground for relief. The “[f]ailure . . . 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.” La.Code Crim.P. art. 881.1(E). We used the foregoing statute to bar a

defendant’s excessive sentence claim in State v. Bamburg, 00-675 (La.App. 3 Cir.

11/2/00), 772 So.2d 356. We based our holding upon the fact that the defendant

failed to object to the sentence imposed at the sentencing hearing and he failed to

timely file a motion to reconsider sentence. Id. According to Bamburg, 772 So.2d

356, and La.Code Crim.P. art. 881.1(E), we find that Defendant waived review of

his excessive sentence claim.

This court, however, has reviewed excessive sentence claims where no

objection was made, no motion to reconsider sentence filed, or, at a minimum, a

3 defendant objected to the excessiveness of the sentence without stating a ground

for his objection. See State v. Johnlouis, 09-235 (La.App. 3 Cir. 11/4/09), 22

So.3d 1150, writ denied, 10-97 (La. 6/25/10), 38 So.3d 336, cert. denied, 562 U.S.

1150, 131 S.Ct. 932 (2011); State v. Thomas, 08-1358 (La.App. 3 Cir. 5/6/09), 18

So.3d 127. We will, therefore, review Defendant’s claim as a bare claim of

excessiveness.

The standard utilized in reviewing an excessive sentence claim is as follows:

[Louisiana Constitution Article] 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 determine whether a sentence shocks our sense of justice or makes no

measurable contribution to acceptable penal goals, this court has suggested that the

following factors be considered:

[T]he 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

4 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.

In this case, we will only address Defendant’s attempted second degree

murder sentence since he failed to argue anything with respect to his sentence for

possession of a firearm by a convicted felon. Defendant’s attempted second degree

murder conviction carries a sentence of no less than ten and no more than fifty

years imprisonment at hard labor without the benefit of probation, parole, or

suspension of sentence. La.R.S. 14:27(D)(1)(a). His forty-year sentence, however,

is ten years below the maximum sentence allowed by law. “Maximum sentences

are reserved for the most serious violations and the worst offenders.” State v.

Farhood, 02-490, p. 11 (La.App. 5 Cir. 3/25/03), 844 So.2d 217, 225 (citing State

v. Sullivan, 02-35 (La.App. 5 Cir. 4/30/02), 817 So.2d 335). Defendant’s sentence

falls at the higher end of the permissible range.

As discussed above, the first two Smith, 846 So.2d 786, factors deal with the

nature of the offense and the circumstances of the offender. Defendant’s brief

focuses on the nature of the offense, including the lack of physical injury. We note

that while physical injury, or lack thereof, is relevant, it is not the only

predominant consideration. See La.Code Crim.P. art. 894.1(A) and (B). 1 The

1 Louisiana Code of Criminal Procedure Article 894.1(A) lists the circumstances that “should” warrant imposition of a sentence of imprisonment whereas La.Code Crim.P. art. 894.1(B) lists the grounds that “shall be accorded weight” when determining suspension of sentence or probation. It is unnecessary for the sentencing court to give any particular weight to any single factor. See State v. Ware, 41,343 (La.App. 2 Cir. 9/27/06) (unpublished opinion). We note that although a conviction for attempted second degree murder does not allow for the benefit of parole, probation, or suspension of sentence, the factors listed in La.Code Crim.P. art. 894.1(B) are instructive.

5 sentencing transcript reflects that the trial court also considered Defendant’s

“deliberate cruelty” in shooting his gun into a store “in the direction of the store

owner” along with the risk of death or great bodily harm created by his actions. As

to the offender’s circumstances, the trial court noted Defendant’s extensive

criminal history and that he was approximately thirty years old. “While the trial

judge need not articulate every aggravating and mitigating circumstance outlined

in art. 894.1, the record must reflect that he adequately considered these guidelines

in particularizing the sentence to the defendant.” State v. Smith, 433 So.2d 688,

698 (La.1983).

The third Smith, 846 So.2d 786, factor deals with sentences imposed for

similar crimes. In that regard, we look to State v. Odom, 511 So.2d 1214 (La.App.

2 Cir.), writ denied, 515 So.2d 446 (La.1987), a factually similar case. In Odom,

the defendant was riding in the passenger seat of one vehicle while watching the

victim get into another vehicle. Thereafter, the victim drove away, and the

defendant chased him in his vehicle from behind. During the pursuit, the

defendant fired multiple shots at the victim’s vehicle. The bullets hit the car but

missed the victim, leaving him uninjured. When reviewing the defendant’s

sentence, the appellate court took note of the trial court’s reasons for sentencing,

stating that the trial court “extensively articulated [its] reasons for imposing the

maximum penalty of fifty years at hard labor[.]” Id. at 1219. The appellate court

could not “conclude that the circumstances . . . amount to one of the worst of

attempted murders. . . . [and] that a significant amount of time has passed since

defendant’s last offense[.]” Id. at 1220. The appellate court also emphasized the

defendant’s extensive criminal history. It ultimately affirmed the defendant’s

conviction and sentence.

6 Another factually similar case is State v. Dussett, 12-356 (La.App. 5 Cir.

12/18/02), 106 So.3d 1203, writ denied, 13-154 (La. 6/21/13), 118 So.3d 410,

wherein the victim was shot at multiple times by two individuals because of the

victim’s conversation with law enforcement about a shooting and murder the

victim had previously witnessed. The victim managed to escape from these two

individuals without being hit with bullets. After the defendant was convicted for

attempted first degree murder, he was sentenced to forty years at hard labor.2 In

upholding the sentence, the appellate court reasoned that even though:

The instant case differs from the foregoing cases in that the victim here was not physically injured. . . . the fact that [the victim] was not injured should not diminish defendant’s punishment. Given defendant’s criminal history and the malicious intent with which he acted, . . . the record supports the imposition of the maximum sentence.

Id. at 1209. The appellate court further noted that the defendant had an extensive

criminal history.

Considering the foregoing jurisprudence and law, Defendant’s excessive

sentence argument, which he bases on the victim’s lack of physical injury, does not

carry much weight. Defendant’s crime and criminal history is similar to those

discussed in Odom, 511 So.2d 1214, and Dussett, 106 So.3d 1203. Given the great

discretion accorded to the trial courts in sentencing, we cannot say that

Defendant’s sentence is constitutionally excessive considering the nature of the

offense, his criminal history, and sentences handed down by similar courts for

similar conduct. Accordingly, the trial court did not abuse its discretion and

Defendant’s assignment of error is without merit.

2 Although attempted first degree murder is a higher level offense, it carries the same sentencing range as attempted second degree murder. See La.R.S. 14:27, 14:30, and 14:30.1.

7 DECREE

Defendant, Charles Edward Jackson’s forty-year sentence for attempted

second degree murder is affirmed. We further order the trial court to amend its

sentencing minute entry to correctly reflect that the $1,000.00 fine was not

imposed on the attempted second degree murder sentence.

AFFIRMED AS AMENDED.

This opinion is NOT DESIGNATED FOR PUBLICATION. Uniform Rules—Courts of Appeal, Rule 2–16.3.