Judgment rendered April 22, 2020. Application for rehearing may be filed within the delay allowed by Art. 922, La. C. Cr. P.
No. 53,405-KA No. 53,406-KA No. 53,407-KA (Consolidated Cases)
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
STATE OF LOUISIANA Appellee
versus
DOUGLAS SCOTT HOLLEY Appellant
Appealed from the Twenty-Sixth Judicial District Court for the Parish of Bossier, Louisiana Trial Court No. 216315
Honorable Allen Parker Self, Jr., Judge
LOUISIANA APPELLATE PROJECT Counsel for Appellant By: Peggy J. Sullivan
JOHN SCHUYLER MARVIN Counsel for Appellee District Attorney
JOHN MICHAEL LAWRENCE RICHARD RUSSELL RAY Assistant District Attorneys
Before MOORE, STONE, and McCALLUM, JJ. STONE, J.
In this criminal case, Douglas Holley (“Holley”) was found guilty as
charged of two counts of attempted first degree murder; two counts of
manufacture or possession of a bomb; and one count of aggravated arson.
He was sentenced to a cumulative term of 105 years of imprisonment at hard
labor, 92 years of which were without benefit of probation, parole, or
suspension of sentence. Holley now appeals his convictions and sentences.
For the reasons stated hereinafter, his convictions for attempted first
degree murder are reduced to convictions for attempted second degree
murder, and his remaining convictions are affirmed. The sentences for
manufacture or possession of a bomb are hereby modified to delete the
restriction of benefits. His remaining sentences are affirmed.
FACTS
The victims in this case, Robert Hewlett and Tracy Hewlett, own and
operate a horse farm. Additionally, Robert Hewlett is a veterinarian (“Dr.
Hewlett”). For several years preceding the incident, Holley was the
groundskeeper for the Hewletts’ farm, and he lived in a rent house on the
Hewlett property. The Hewletts trusted Holley – he had access to their
home when they were away and had access to all of the farm. Holley even
celebrated Christmas and Thanksgiving with the Hewletts.
Holley owned a horse named Charlie; she lived in a fenced area near
his rent house. Charlie became sick with colic, and Dr. Hewlett advised that
he could not help Charlie and suggested that euthanasia would be best for
her. After Charlie’s death, Holley spiraled into an enduring, vengeful rage
toward Dr. Hewlett, blaming him for Charlie’s suffering and death. Holley plotted an elaborate vengeance against Dr. Hewlett for this
perceived wrongdoing. Holley manufactured two pipe bombs, which
included fishing weights as shrapnel for additional lethality. While the
Hewletts were away from home he planted them under the subfloor of the
Hewletts’ pier and beam home, directly under the Hewletts’ bed. When the
Hewletts arrived home, on December 19, 2015, Holley waited until 3:00 AM
– a time when he figured they would be in bed. Holley was correct. The
Hewletts were in bed, and Holley remotely detonated the two pipe bombs.
The blast made a hole through the floor of the Hewletts’ bedroom and
through the box spring of their bed. Miraculously, however, the high-
density foam mattress protected the Hewletts from the blast; they were
thrown out of the bed but physically unharmed. Ms. Hewlett, however, later
received counseling for posttraumatic stress disorder and anxiety.
The investigation quickly revealed that bombs had caused the
explosion in the Hewletts’ bedroom. Shrapnel was found embedded in
objects throughout the Hewletts’ bedroom. Shrapnel had even made holes in
the plumbing pipes beneath the Hewletts’ bedroom floor. Remnants of the
bombs, including pieces of galvanized steel, exploded PVC pipe, deformed
aluminum sheet metal, wire pieces with alligator clips attached, a modified
extension cord with hot glue on it, burnt black electrical tape, and a
destroyed timer were discovered at the blast site. Items recovered from the
blast site tested positive for triacetone triperoxide (“TATP”), a type of
primary high explosive.
Holley’s rent house was searched and was found to contain a plethora
of bomb-making materials which were consistent with those recovered from
the blast site. Holley’s cell phone revealed that he had researched bomb- 2 making, and had taken pictures of his bombs and bomb-making materials.
Holley’s diary and cell phone contained notes wherein he detailed Charlie’s
sickness and death, and his gruesome, murderous intentions toward Dr.
Hewlett.
Holley admitted in the videotaped interview that he had previously
worked on the insulation underneath the Hewletts’ home, that he held Dr.
Hewlett responsible for Charlie’s death, and wanted revenge. He also
admitted that he used his cell phone to research bombs, rocket igniters, and
various bombing events.
Holley was arrested for the bombing, and the prosecution filed
numerous charges against him, including those on which he has been
convicted. On March 28, 2018, Holley moved to dismiss the public
defender appointed to represent him. Holley stated that after discussing the
merits of his case with his appointed attorney, he did not feel that the
attorney would “argue and fight for him.” The trial court ascertained that
Holley was 56 years old and had completed high school, but had no legal
education or training and had never represented himself in court before.
Holley confirmed that he could read, write, and speak the English language,
and was not under the influence of drugs or alcohol. Holley stated that he
understood the nature of the charges against him, and the penalties. Holley
also stated that he understood that he would be “extremely disadvantaged”
by his lack of legal knowledge and experience and admitted that he knew
nothing about criminal prosecutions or trial and had no access to a law
library. Despite acknowledging these disadvantages, Holley maintained that
he felt as though he had no choice but to represent himself.
3 The trial court emphasized that Holley would be held to the same
standard as attorneys and that the trial court was not permitted to give him
legal advice or assistance. The trial court strongly urged Holley not to
represent himself, but found that Holley had freely and voluntarily decided
to waive his right to counsel and represent himself at trial. The trial court
appointed an attorney to serve as standby counsel in the event Holley had
any legal questions.
Trial began June 20, 2018. Holley declined the state’s offer of a 40-
year agreed sentence in exchange for a plea of guilty as charged to all five
counts. Trial continued with the presentation of testimony and evidence.
The jury returned a verdict of guilty as charged on five counts.
Neither side requested polling. The trial court ordered a presentence
investigation report.
At sentencing, the trial court reviewed Holley’s personal, educational,
and criminal history, noting that he was a first-felony offender who was
gainfully employed with the Hewletts for several years. The trial court
noted the general facts and evidence of this case, specifically that Holley
was angry after his horse’s death and sought revenge for his loss by
manufacturing and detonating two bombs in an attempt to murder Robert
and Tracy Hewlett. The trial judge noted that Holley’s personal comments
made in his private “diary” entries were chilling and frightening and stated
his belief that the Hewletts would never be safe. The trial judge stated that,
after considering the evidence presented at trial and the information in
Holley’s presentence investigation report, he concluded that it was necessary
to remove Holley from normal society.
4 For the attempted first degree murders of Robert Hewlett and Tracy
Hewlett, Holley was sentenced to serve consecutive sentences of 45 years at
hard labor, without benefit of probation, parole, or suspension of sentence.
For the two counts of manufacture or possession of bomb, Holley was
sentenced to serve concurrent sentences of 15 years at hard labor, without
benefit of probation, parole, or suspension of sentence. The trial court
ordered that these sentences will run concurrently to the sentences for
attempted murder. For aggravated arson, Holley was sentenced to serve 15
years at hard labor, with 2 years to be served without benefit of probation,
parole, or suspension of sentence, and, a $10,000.00 fine. The trial court
ordered that this sentence is to run consecutively to the sentences for
attempted murder.
DISCUSSION
Double jeopardy
Holley argues that he suffered a double jeopardy violation because the
state prosecuted him for both felony murder based on aggravated arson and
for the underlying felony of aggravated arson. In opposition, the state
argues that the bill charged Holley with attempted first degree murder based
on two independent aggravating factors – aggravated arson and the killing of
more than one person – so the state could prove either one to reach a
conviction. The state argues that there was no double jeopardy violation
because the evidence was sufficient to establish that Holley acted with
specific intent to kill more than one person, and thus the alternative
aggravating factor (aggravated arson) was unnecessary for a proper
conviction. The prosecution also argues that Holley waived his right to
claim double jeopardy by failing to assert it in a timely motion to quash. 5 Holley was charged with attempted first degree murder pursuant to
La. R.S.14:30 and La. R.S.14:27. First degree murder includes the killing of
a human being with the specific intent to kill two or more persons. La.
R.S.14:30(A)(3). First degree murder also includes the killing of a human
being with specific intent to kill while engaged in aggravated arson. La.
R.S.14:30(A)(1). Either way, the penalty for first degree murder is
mandatory life in prison without probation, parole, or suspension of sentence
(unless the prosecution seeks and obtains the death penalty). The
prosecution did not and could not seek the death penalty in this case because
there was no actual murder, merely attempted murder. Second degree
murder includes the killing of a human being with the specific intent to kill.
La. R.S.14:30.1 (A)(1). The penalty for second degree murder is mandatory
life in prison without parole, probation, or suspension of sentence. The
relevant provision of the attempt statute provides the same exact penalty for
attempted first degree murder and attempted second degree murder, as
follows:
[I]f the offense so attempted is punishable by…life imprisonment, he shall be imprisoned at hard labor for not less than 10 nor more than 50 years without benefit of parole, probation, or suspension of sentence.
La. R.S. 14:27(D)(1)(a).
The Federal Constitution and the Louisiana Constitution prohibit
placing a person twice in jeopardy for the same offense. U.S. Const. Amend
V; La. Const. art. I, § 15; La. C. Cr. P. art. 591; State v. Hardyway, 52,513
(La. App. 2 Cir. 2/27/19), 266 So. 3d 503, 512, writ denied, 19-00522 (La.
10/21/19), 280 So. 3d 1156. The guarantee against double jeopardy
provides three central constitutional protections: (1) protection against a
6 second prosecution for the same offense after acquittal; (2) protection
against a second prosecution for the same offense after conviction; and (3)
protection against multiple punishments for the same offense. State v.
Crandell, 05-1060 (La. 3/10/06), 924 So. 2d 122.
In Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L.
Ed. 306 (1932), the U.S. Supreme Court set out a precise rule of law to
determine whether a double jeopardy violation has occurred. “The
applicable rule is that, where the same act or transaction constitutes a
violation of two distinct statutory provisions, the test to be applied to
determine whether there are two offenses or only one, is whether each of
[the statutes that define a crime charged] requires proof of a fact which the
other does not.” Blockburger v. United States, supra. (Emphasis added).
Louisiana’s separate “same evidence” test is no longer used in determining
whether a double jeopardy violation exists. State v. Frank, 16-1160 (La.
10/18/17), 234 So. 3d 27.
Double jeopardy bars separate punishment of lesser included offenses
once the defendant is convicted of the greater offense. State v. Price, 39,582
(La. App. 2 Cir. 3/23/05), 899 So.2d 633. The double jeopardy clause
prohibits prosecution for both a felony murder and the underlying felony.
State v. Thomas, 50,929 (La. App. 2 Cir. 8/10/16), 201 So. 3d 263, 278, writ
denied, 16-1642 (La. 9/6/17), 224 So. 3d 980. To remedy a violation of
double jeopardy, the reviewing court normally vacates the conviction and
sentence of the less severely punishable offense, and affirms the conviction
and sentence of the more severely punishable offense. Price, supra.
In Thomas, supra, cited by the defense, this Court found that the
prosecution for second degree felony murder and the underlying felony of 7 aggravated burglary constituted a double jeopardy violation because there
was insufficient evidence to support a finding of second degree murder
based on specific intent. Id. In State v. Hardyway, supra, the defendant was
charged with attempted first degree murder, based on armed robbery, and
separately, armed robbery. The bill of information and the jury instructions
listed only the enumerated felony of armed robbery to support the offense
for attempted first degree murder, thereby making armed robbery a required
element of the offense. This Court held that because the armed robbery
provided the sole basis for the attempted first degree murder conviction, the
prosecution and conviction for both felonies constituted a double jeopardy
violation.
Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d
435 (2000), held that the Sixth Amendment right to a jury trial requires that
every fact which is essential to the punishment imposed upon the defendant
(other than prior convictions) must be proven to a jury beyond a reasonable
doubt, as reflected by the verdict. In Apprendi, the defendant was convicted
of a crime which carried a sentencing range of 5 to 10 years. After the
conviction, but before sentencing, the prosecution moved under the New
Jersey hate crime law to increase the penalty range to 10 to 20 years. The
New Jersey procedure for sentencing enhancement under the hate crime
statute allowed the matter to be tried by a judge, and prescribed a
preponderance of the evidence burden of proof. The United States Supreme
Court found this scheme unconstitutional because it deprived Apprendi of
his Sixth Amendment right to have the jury determine whether or not the
State had proven (beyond a reasonable doubt) his violation of the hate crime
8 statute, a fact which if so proven would increase the limits of the applicable
sentencing range.
In this case, Holley was charged with attempted first degree murder in
that he attempted to kill a human being: (1) with specific intent to kill while
engaged in aggravated arson; and/or (2) with the specific intent to kill more
than one person. The verdict forms for each count of attempted first degree
murder, which are contained in the record, do not specify whether the jury
found Holley guilty on each count of attempted first degree murder by
reason of his specific intent to kill while engaged in aggravated arson, his
specific intent to kill more than one person, or both. Accordingly, the
verdict form does not preclude the possibility that the jury found Holley
guilty of attempted first degree murder only by reason of his specific intent
to kill while engaged in aggravated arson. This, coupled with the fact that
Holley was also convicted and sentenced for aggravated arson, clearly
creates the possibility that Holley’s convictions for attempted first degree
murder and aggravated arson violated the prohibition against double
jeopardy. Thus, given Holley’s aggravated arson conviction, the
combination of Holley’s jury trial and double jeopardy rights requires that,
for a valid conviction of attempted first degree murder, the jury verdict had
to state or necessarily imply that the jury found that Holley had the specific
intent to kill more than one person. U.S. Const. Amend. V & VI; Crandell,
supra; Apprendi, supra. The jury verdict form did not do so.
The state contends that we should nonetheless affirm Holley’s
convictions and sentences for both attempted first degree murder and
aggravated arson because the evidence was sufficient to support a jury
verdict for attempted first degree murder based on specific intent to kill 9 more than one person. Doing so would violate Holley’s Sixth Amendment
right to a jury verdict finding each essential element of the offense proven
beyond a reasonable doubt. Apprendi, supra.
The prosecution also argues that Holley waived the right to claim
double jeopardy by failing to do so in a timely motion to quash. This
argument is without merit because double jeopardy is a “jurisdictional
defect,” and therefore cannot be waived even via unqualified guilty plea.
State v. Dubaz, 468 So.2d 554 (La. 1985). If the defendant cannot waive
double jeopardy via unqualified guilty plea, he cannot waive it by pleading
not guilty but failing to raise the issue in a timely motion to quash.
However, we find that the protection against double jeopardy and the
right to a jury verdict on each element of the offense, in this case, can be
satisfied without reversing any of Holley’s convictions, but instead reducing
his convictions for attempted first degree murder to attempted second degree
murder.
As charged in Holley’s amended bill of indictment, attempted second
degree murder is a lesser included offense of attempted first degree murder.
Therefore, the jury’s verdict finding Holley guilty of attempted first degree
murder necessarily included findings that the prosecution proved beyond a
reasonable doubt every element of attempted second degree murder, without
necessity of a finding of aggravated arson. Moreover, the punishment for
attempted second degree murder and attempted first degree murder is
exactly the same: 10 to 50 years of imprisonment at hard labor without
probation, parole, or suspension of sentence. La. R.S. 14:27(D)(1)(a).
Accordingly, we reduce Holley’s convictions for attempted first degree
10 murder to convictions for attempted second degree murder. Holley’s
sentencing exposure remains completely unchanged.
Waiver of right to counsel
Holley’s appellate counsel acknowledges that Holley had a right to
self-representation and that the trial court advised Holley of the dangers and
disadvantages of self-representation, but asserts that Holley did not really
want to represent himself. During the Faretta hearing, Holley stated his
feelings that he had no choice because, after conversations with his
appointed counsel, he did not feel that the court-appointed attorney was
going to advocate for him in the manner that Holley desired. Faretta v.
California, 422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975). The state
argues that the record shows that the trial court conducted a proper hearing
regarding Holley’s request to represent himself and that nothing in the
record shows that the trial court forced Holley to represent himself.
A defendant may waive his or her Sixth Amendment right to counsel.
For the waiver to be valid, the defendant must: (1) know of the right to
counsel; and (2) knowingly and intelligently relinquish it by a clear and
unequivocal waiver. Faretta v. California, supra; State v. Mingo, 51,647
(La. App. 2 Cir. 9/27/17), 244 So. 3d 629, 638, writ denied, 17-1894 (La.
6/1/18), 243 So. 3d 1064. The defendant must be made aware of the dangers
and disadvantages of self-representation. Id. The trial court must determine
whether the defendant is competent to waive counsel and is voluntarily
exercising informed free will. Faretta v. California, supra, 422 U.S. at 835,
95 S. Ct. at 2541; State v. Santos, 99-1897 (La.9/15/00), 770 So. 2d 319,
321.
11 The trial court’s colloquy with the defendant in determining the
validity of a waiver of the right to counsel is not required to follow a
particular formula. State v. Leger, 05-0011 (La. 7/10/06), 936 So. 2d 108,
147-48, cert. denied, 549 U.S. 1221, 127 S. Ct. 1279, 167 L. Ed. 2d 100
(2007). Whether the waiver of right to counsel was knowingly made
depends on the facts and circumstances of the case, including the
defendant’s background, experience, and conduct. Id. There must be a
showing of clear abuse of discretion for a trial court’s ruling on a
defendant’s right to counsel to be upset, as the trial court had the opportunity
to observe the defendant in court appearances and motions, and was familiar
with the defendant. State v. Johnson, 52,965 (La. App. 2 Cir. 9/25/19), 280
So. 3d 1245, 1250; State v. LaGarde, 07-288 (La. App. 5 Cir. 10/30/07), 970
So. 2d 1111, 1120, writs denied, 07-1650 (La. 5/9/08), 980 So. 2d 684 and
07-2412 (La. 5/16/08), 980 So. 2d 706.
In this case, the trial court ascertained Holley’s age and education and
discussed his understanding of the serious nature of the charges and
penalties that Holley faced. Also, the trial court thoroughly explained the
disadvantages that Holley would face in self-representation against the
state’s attorneys, and that the court would not give Holley any legal advice.
Holley acknowledged that he had no legal education or training, had no
access to legal resources, and had no understanding of the legal process.
Holley also acknowledged that he would be held accountable as any trained
lawyer for understanding the rules and procedures of the trial process.
Throughout the hearing, Holley repeatedly expressed his feeling that he must
represent himself.
12 This record demonstrates that Holley made an unequivocal request to
represent himself at trial and that the trial court conducted an extensive
colloquy with Holley about his understanding of the dangers and
disadvantages of self-representation for these serious charges and penalties.
On this record, there is no showing that the trial court abused its discretion in
finding that Holley knowingly, intelligently, and freely choose to waive his
right to counsel and choose to represent himself. This assignment is without
merit.
Excessive sentence
Holley argues that as a first-felony offender, with no remarkable
history for violence or problems, there is nothing in his case to indicate that
he could not be rehabilitated or that he would be a danger to society upon
release. Holley acknowledges that he was angry with Robert Hewlett and
held him responsible for his horse’s death, but insists that he would move on
from that anger and that he should not be removed from society. Holley
complains that the trial court failed to specify why some of the sentences
were run consecutively rather than concurrently. Finally, Holley complains
that the cumulative term of 105 years is constitutionally excessive in light of
the fact that the Hewletts were not physically harmed and that there was no
significant property damage.
Holley did not file a La. C. Cr. P. art. 881.1 motion to reconsider
sentence; therefore, appellate review is limited to the bare claim that the
sentence is constitutionally excessive. State v. Mims, 619 So. 2d 1059 (La.
1993); State v. Jones, 41,449 (La. App. 2 Cir. 9/20/06), 940 So. 2d 61; State
v. Duncan, 30,453 (La. App. 2 Cir. 2/25/98), 707 So. 2d 164. A sentence
violates La. Const. art. I, § 20, if it is grossly out of proportion to the 13 seriousness of the offense or nothing more than a purposeless and needless
infliction of pain and suffering. State v. Dorthey, 623 So. 2d 1276 (La.
1993); State v. Boehm, 51,229 (La. App. 2 Cir. 4/5/17), 217 So. 3d 596. A
sentence is considered grossly disproportionate if, when the crime and
punishment are viewed in light of the harm done to society, it shocks the
sense of justice. State v. Weaver, 01-0467 (La. 1/15/02), 805 So. 2d 166.
The trial court has wide discretion in imposing sentence within the
statutory range. A sentence will not be set aside as excessive unless the
defendant shows the trial court abused its discretion. State v. Hardy, 39,233
(La. App. 2 Cir. 1/26/05), 892 So. 2d 710; State v. Young, 46,575 (La. App.
2 Cir. 9/21/11), 73 So. 3d 473, writ denied, 11-2304 (La. 3/9/12), 84 So. 3d
550. The reviewing court does not determine whether another sentence
would have been more appropriate, but whether the trial court abused its
discretion. State v. Esque, 46,515 (La. App. 2 Cir. 9/21/11), 73 So. 3d 1021,
writ denied, 11-2347 (La. 3/9/12), 84 So. 3d 551.
In cases involving multiple offenses and sentences, the trial court has
limited discretion to impose the sentences concurrently or consecutively, but
the justification for consecutive sentences must be supported by the record.
La. C. Cr. P. art. 883; State v. Butler, 51,922 (La. App. 2 Cir. 4/11/18), 247
So. 3d 1006, 1011; State v. Nixon, 51,319 (La. App. 2 Cir. 5/19/17), 222 So.
3d 123, writ denied, 17-0966 (La. 4/27/18), 239 So. 3d 836; State v.
Robinson, 49,677 (La. App. 2 Cir. 4/15/15), 163 So. 3d 829, writ denied, 15-
0924 (La. 4/15/16), 191 So. 3d 1034. Concurrent sentences arising out of a
single course of conduct are not mandatory, and consecutive sentences under
those circumstances are not necessarily excessive. State v. Lynn, 50,575
(La. App. 2 Cir. 5/18/16), 196 So. 3d 607. Factors to be considered include: 14 the gravity and viciousness of the offense, the harm done to the victims, the
risk of danger to the public, the offender’s criminal history, and potential for
rehabilitation. State v. Austin, 49,061 (La. App. 2 Cir. 7/16/14), 146 So. 3d
716, writ denied, 14-2323 (La. 9/18/15), 178 So. 3d 140.
For each conviction of attempted murder (whether first degree or
second degree), Holley faced a potential sentence of 10-50 years at hard
labor, without benefit of parole, probation, or suspension of sentence. La.
R.S. 14:30; La. R.S. 14:27. For each conviction for manufacture or
possession of a bomb, Holley faced a potential sentence of 0-20 years at
hard labor, with an optional maximum fine of $10,000.00. La. R.S. 14:54.3.
Finally, aggravated arson carries a penalty of a fine up to $25,000 and 6 to
20 years imprisonment at hard labor; two of those years must be without
parole, probation, or suspension of sentence. La. R.S. 14:51.
Here, the state presented a comprehensive case with exhaustive
testimony regarding the extensive and overwhelming evidence of Holley’s
guilt. The record here is more than sufficient to support the punishment
imposed, thus the trial court’s decision not to recite the details of Holley
actions in order to justify these sentence terms or the order to impose them
to run consecutively does not constitute an abuse of discretion or require
remand. The trial court acknowledged Holley’s personal history and his
lack of criminal history. The trial court also noted that Holley was a trusted
employee at the Hewletts’ horse farm, as he had been given free rein of both
the facilities and the Hewletts’ personal home and had also been included in
family holiday events. The trial court made clear that the magnitude of
Holley’s crimes, borne out of a six-month long rage that was detailed in the
“Charlie” journal, and which the court found chilling and frightening, 15 overshadowed any mitigating factors here. The fact that the Hewletts
miraculously escaped any physical harm does not negate the emotional
trauma that they have suffered. None of the sentences were for the
maximum terms available; yet, Holley’s conduct surely places him in the
category of one of the worst offenders.
Viewing Holley’s actions in light of the harm done to society, these
sentences, for a total of 105 years, are not disproportionate and do not shock
the sense of justice. There is no showing that the trial court abused its
discretion in imposing these sentence terms or in imposing consecutive
terms. This assignment is without merit.
Our reduction of Holley’s convictions for attempted first degree
murder to convictions for attempted second degree murder does not warrant
remand for resentencing. The sentencing range is exactly the same for both
crimes. La. R.S. 14:27(D). Furthermore, based on the evidence, Holley
could properly have been convicted of attempted first degree murder and
aggravated arson, had the verdict form given the jury the opportunity to
specify the aggravating factor or factors it found in support of attempted first
degree murder.
Error Patent
The sentences imposed for manufacture or possession of a bomb were
illegally harsh in that the trial court ordered that they be served without
benefit of probation, parole, or suspension of sentence. La. R.S. 14:54.3
does not restrict these benefits. The sentences will be amended accordingly.
CONCLUSION
Holley’s convictions for aggravated arson and two counts of
manufacturing a bomb are AFFIRMED. We MODIFY Holley’s convictions 16 for two counts of attempted first degree murder by reducing them to
conviction of two counts of attempted second degree murder.
The sentences imposed for the manufacture or possession of a bomb
are MODIFIED in that we remove the restriction of benefits. Otherwise,
Holley’s sentences are AFFIRMED.