State of Louisiana v. Jamar Dewayne Trotter

• Court: Louisiana Court of Appeal
• Decided: June 29, 2022
• Docket: 54,496-KA
• Status: Published

Opinion

Judgment rendered June 29, 2022. Application for rehearing may be filed within the delay allowed by Art. 922, La. C. Cr. P.

No. 54,496-KA

COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA

*****

STATE OF LOUISIANA Appellee

versus

JAMAR DEWAYNE TROTTER Appellant

Appealed from the First Judicial District Court for the Parish of Caddo, Louisiana Trial Court No. 382,341

Honorable Donald E. Hathaway, Jr., Judge

LOUISIANA APPELLATE PROJECT Counsel for Appellant By: Douglas Lee Harville

JAMES E. STEWART, SR. Counsel for Appellee District Attorney

JASON WAYNE WALTMAN VICTORIA T. WASHINGTON ALEX L. PORUBSKY Assistant District Attorneys

Before MOORE, STONE, and ROBINSON, JJ. MOORE, C.J.

The defendant, Jamar Dewayne Trotter, threatened a delivery driver

with a gun while his accomplice took a case of liquor from the driver’s

delivery truck. Trotter was charged by bill of information with two counts:

armed robbery and the use of a firearm enhancement; the firearm

enhancement was later dropped.1 Following trial, a unanimous jury found

him guilty of armed robbery. Trotter, who had three prior felony

convictions, was sentenced to 45 years at hard labor without benefit of

probation, parole, or suspension of sentence. He appealed, alleging that the

trial court erred by imposing an excessive sentence.

For the following reasons, we vacate the 45-year sentence and remand

for resentencing.

FACTS

On October 22, 2020, Roderick Phillips, a delivery driver for

Southern Glazer’s Wine and Spirits, made a delivery to a liquor store on

Mansfield Road in Shreveport. While he was in the store, another delivery

driver, Christopher Demming, told Phillips that there was a person acting

suspiciously behind his delivery truck. Phillips went to the back of his truck

where he saw a black male carrying a case of Hennessy brandy taken from

his truck toward an older model silver Monte Carlo. He attempted to wrestle

the case from the thief. In the struggle, Phillips’s attention was directed

toward the Monte Carlo, where he saw the defendant, Trotter,

1 The state also filed a separate bill of information under a different docket number charging Trotter with possession of a firearm by a convicted felon, apparently based on the same evidence. After Trotter was sentenced for armed robbery, the state dismissed this charge. standing behind the passenger side of the vehicle pointing a black pistol at

him. Trotter ordered Phillips to “let it go”; Phillips released his grip on the

case, and raised his arms over his head. The two robbers drove off in the

silver Monte Carlo. Phillips walked back to the store and called the police.

A police unit spotted the silver Monte Carlo parked at a residence.

Officers looked into the vehicle through the windows and saw a black pistol

in the cup holder and an AR-15 assault rifle on the passenger seat. When the

homeowner came out, police questioned him and he gave permission to

search the house. The two suspects were hiding in the attic.2 Police

obtained a warrant to impound the Monte Carlo, and it was subsequently

searched; in addition to the two firearms noted above, another rifle was

found in the vehicle.

Phillips identified Trotter as the gunman in a photographic lineup;

Demming also identified him as the gunman, in a different lineup. At trial,

Phillips testified that the black pistol found in the Monte Carlo appeared to

be the pistol pointed at him by the defendant. Following trial, a unanimous

jury found Trotter guilty as charged of armed robbery.

The court did not order a presentence investigation (“PSI”) prior to

sentencing.

At the start of the brief sentencing hearing, defense counsel asked the

court to consider the fact that, “as bad as this was,” “no one got hurt, and it

was a small amount of alcohol, a small amount of loss.”

The court stated that Trotter had three prior felony convictions: simple

burglary in 2016, illegal possession of a stolen firearm in 2017, and

2 The record is unclear whether the two men came out of the attic before or after they were discovered. 2 possession of a Schedule II CDS in 2021. The court did not mention La. C.

Cr. P. art. 894.1 prior to imposing sentence, or note any aggravating or

mitigating factors that a PSI might have provided. The court imposed a

sentence of 45 years at hard labor without benefit of probation, parole, or

suspension of sentence and cast the defendant for costs of the proceedings

plus a $50 fee to the Indigent Defender’s Office to be paid through inmate

banking.

After imposing this sentence, the court advised Trotter “that you have

two years to file for any post-conviction relief once your sentences become

final.” He designated the armed robbery as a crime of violence and stated

that Trotter would receive credit for time served. On the state’s motion, the

court then dismissed the separate bill charging Trotter with possession of a

firearm by a convicted felon during the instant offense.3

Ending the proceedings, the court stated: “And just for the record, on

Mr. Trotter, I considered the factors in Code of Criminal Procedure Arts.

893 and 894 in arriving at a just sentence.”

Subsequently, Trotter filed a “motion to reconsider and vacate

unconstitutionally excessive sentence.” The record does not show a ruling

on this motion. This appeal followed.

DISCUSSION

Trotter’s sole assignment of error is that the court erred by imposing a

45-year hard labor sentence that is excessive in this case.

3 This is the separate bill noted in fn. 1, supra. Since both these charges were based on the same evidence and therefore subject to a claim of double jeopardy, we surmise that the prosecutor decided to drop the firearm enhancement charge on the initial bill, but did not drop the possession of a firearm charge until after sentencing. 3 The state maintains that the trial judge did not abuse its wide

discretion in imposing the 45-year “midrange” sentence, given the facts of

the case and Trotter’s criminal history. It further argues that, because the

trial court is in the best position to consider the aggravating and mitigating

factors in a case, it is given wide discretion in imposing a sentence within

statutory limits. An excessive sentence determination, the state argues, is

made by examining whether the trial court took cognizance of the criteria set

forth in La. C. Cr. P. art. 894.1; neither rigid nor mechanical compliance

with the provisions of that article is required. It contends that Trotter

offered, at sentencing, no mitigating evidence of which the trial court should

have taken notice. Trotter got a break, it infers, because the state did not file

a fourth felony offender bill with a sentencing range of 20 years to life.

In reviewing a sentence for excessiveness, an appellate court uses a

two-step process. First, the record must show that the trial court took

cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The

articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art.

894.1, not rigid or mechanical compliance with its provisions. State v. Bell,

53,712 (La. App. 2 Cir. 1/13/21), 310 So. 3d 307; State v. Kelly, 52,731 (La.

App. 2 Cir. 6/26/19), 277 So. 3d 855, writ denied, 19-01845 (La. 6/3/20),

296 So. 3d 1071.

The trial court is not required to list every aggravating or mitigating

circumstance so long as the record reflects that it adequately considered the

guidelines of the article. State v. Smith, 433 So. 2d 688 (La. 1983); State v.

Bell, supra. The important elements which should be considered are the

defendant’s personal history (age, family ties, marital status, health,

employment record), prior criminal record, seriousness of the offense, and 4 the likelihood of rehabilitation. State v. Jones, 398 So. 2d 1049 (La. 1981);

State v. Bell, supra; State v. Thompson, 50,392 (La. App. 2 Cir. 2/24/16),

189 So. 3d 1139, writ denied, 16-0535 (La. 3/31/17), 217 So. 3d 358. There

is no requirement that specific matters be given any particular weight at

sentencing. State v. Bell, supra; State v. Brown, 51,352 (La. App. 2 Cir.

5/2/17), 223 So. 3d 88; State v. Lathan, 41,855 (La. App. 2 Cir. 2/28/07),

953 So. 2d 890.

Second, the court must determine whether the sentence is

constitutionally excessive. A sentence violates La. Const. art. I, § 20, if it is

grossly out of proportion to the severity of the crime or nothing more than a

purposeless and needless infliction of pain and suffering. State v. Dorthey,

623 So. 2d 1276 (La. 1993); State v. Bell, supra. 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; State v. Bell, supra.

The trial court has wide discretion in the imposition of sentences

within the statutory limits and such sentences should not be set aside as

excessive in the absence of a manifest abuse of that discretion. State v.

Williams, 03-3514 (La. 12/13/04), 893 So. 2d 7; State v. Bell, supra. A trial

judge is in the best position to consider the aggravating and mitigating

circumstances of a particular case, and, therefore, is given broad discretion

in sentencing. State v. Bell, supra; State v. Allen, 49,642 (La. App. 2 Cir.

2/26/15), 162 So. 3d 519, writ denied, 15-0608 (La. 1/25/16), 184 So. 3d

1289. On review, an appellate court does not determine whether another

sentence may have been more appropriate, but whether the trial court abused

its discretion. State v. Bell, supra; State v. Kelly, supra. 5 The penalty for armed robbery is imprisonment at hard labor for not

less than 10 years and for not more than 99 years, without benefit of parole

probation, or suspension of sentence. La. R.S. 14:64(B). By providing a

wide statutory range for a sentence, the legislature intended for the district

court to have vast discretion to sentence a defendant according to the

particular facts of the crime committed. State v. Sepulvado, 367 So. 2d 762,

766 (La. 1979). The district court’s sentencing discretion, however, has

limits; the court cannot punish a defendant with a sentence, regardless of

whether it is within the statutory limits, if it is grossly disproportionate to the

severity of the offense or imposes needless and purposeless pain and

suffering on the convicted. State v. Wilmot, 13-994 (La. App. 5 Cir.

5/14/14), 142 So. 3d 141, 148; State v. Nguyen, 06-969 (La. App. 5 Cir.

4/24/07), 958 So. 2d 61, writ denied, 07-1161 (La. 12/7/07), 969 So. 2d 628

(citing State v. Lobato, 603 So. 2d 739 (La. 1992)).

The record shows that after sentencing Trotter filed a motion to

reconsider sentence, but the record does not reflect a ruling on that motion.

The appeal moved forward although the motion was still pending in district

court.

In State v. Lathan, 41,855 (La. App. 2 Cir. 2/28/07), 953 So. 2d 890,

writ denied, 07-0805 (La. 3/28/08), 978 So. 2d 297, the court held that an

appellate court “may review Defendant’s sentence for constitutional

excessiveness in spite of the pending motion to reconsider sentence.”

Similar to this case, in Lathan, the appeal went forward even though the

hearing and a ruling were still pending. Judge Sexton, writing for the panel,

reasoned:

6 According to La. C. Cr. P. art. 916(3), the trial court retains jurisdiction to “take other appropriate action pursuant to a properly made or filed motion to reconsider sentence” even after an order of appeal is entered. Further, La. C. Cr. P. art. 881.1(C) states that “the trial court may resentence the defendant despite the pendency of an appeal or the commencement of execution of that sentence.” In addition, no provision within the Code of Criminal Procedure prohibits an appellate court from reviewing a sentence for constitutional excessiveness in spite of the trial court’s failure to rule on a motion to reconsider sentence. Further, an appellate court may review a sentence for constitutional excessiveness even if the defendant fails to file a motion to reconsider sentence. Therefore, this court may review Defendant’s sentence for constitutional excessiveness in spite of the pending motion to reconsider sentence. Should the trial court later rule upon Defendant’s motion to reconsider sentence, Defendant may seek appellate review of that decision pursuant to La. C. Cr. P. art. 914(B)(2).

(Emphasis added.)

On the other hand, in State v. Stock, 16-552 (La. App. 5 Cir. 2/22/17),

212 So. 3d 1268, after ruling on the appellant’s other assignments of error

regarding his trial, conviction, and habitual offender adjudication, the court

noted in its error patent review that the appellant’s motion to reconsider his

original sentences was still pending in district court. Unlike in Lathan,

supra, the defendant in Stock did not assign any errors pertaining to his

original sentences upon which the motion to reconsider was based. The

court remanded the matter for the trial court to consider defendant’s motion

to reconsider his original sentences.

The court in State v. Stock distinguished State v. Lathan, based on the

fact that the defendant in Lathan included an assignment (among others)

alleging that his sentence was constitutionally excessive, whereas the

appellant in Stock did not raise any assignments regarding his original

sentences which were the focus of his motion to reconsider.

7 In this case, Trotter’s sole assignment of error is that the trial court

erred when it imposed an excessive, 45-year sentence without benefits, in an

armed robbery where no shots were fired and no bodily harm occurred. He

further argues that the lack of a PSI, his youthful age, and his previous

nonviolent criminal record were not considered by the court. Appellate

counsel maintains that, while under Lathan, supra, this court may review the

sentence for constitutional excessiveness, which is the second step of the

two-step excessive sentence analysis, we still must remand the case for a

hearing on the motion to reconsider.

After review of the record, we conclude that, unlike Lathan, supra,

the record in this case does not show that the sentencing court adequately

considered the guidelines of La. C. Cr. P. art. 894.1. Under these

circumstances, our ability to review the sentence imposed in this case for

constitutional excessiveness is undermined.

In Lathan, the defendant was convicted of manslaughter for killing a

burglar in his apartment, and was sentenced to 27 years at hard labor. Prior

to sentencing, the court ordered a PSI.

At the sentencing hearing, in which Lathan argued for a lenient

sentence, the trial court discussed several of the circumstances of the

offense. First, the court expressed its belief, as did the jury, that Lathan

killed the burglar because he was angry toward the victim, a man whom he

believed had burglarized his apartment before; the evidence showed that

Lathan had also told others he was going to kill the victim. Nevertheless,

the sentencing transcript showed that, pursuant to Art. 894.1, the court

considered several mitigating factors, including Lathan’s age, his first-felony

status, his work history, a criminal history showing only misdemeanors that 8 occurred several years ago, the PSI report, the community support for

Lathan and his family, and his conduct as a model prisoner while

incarcerated. On the other hand, there were aggravating factors considered

by the court: he manifested deliberate cruelty by shooting the victim and

leaving him, and he created a risk of death or great bodily harm to others by

shooting someone in a neighborhood with houses and people. The court

found that there would be an undue risk that Lathan would commit another

crime during a period of suspended sentence or probation; he was in need of

correctional treatment or a custodial environment; and a lesser sentence

would deprecate the severity of the crime.

In short, the sentencing transcript in Lathan, supra, showed that the

court was cognizant of the sentencing considerations of La. C. Cr. P. art.

894.1 when it pronounced its sentence. In fact, the 27-year sentence was

more lenient than that recommended by the PSI, which urged the court to

impose the harshest penalty allowed by law.

The record in this case does not show that the trial court adequately

considered the guidelines of La. C. Cr. P. art. 894.1 in particularizing the

sentence to Trotter. The court did not refer to any of the specific

aggravating or mitigating circumstances listed in the article. Nor did it

discuss Trotter’s background, personal life, education, employment, family,

or other relevant facts. Of course, we believe that this was largely due to the

fact that there was no PSI which could have greatly assisted the court.

Trotter asked the court to consider the fact that there was no actual violence

or shooting during the incident, and the value of the property stolen was

under $200. The court did not acknowledge or respond to the request, but

recited Trotter’s three prior convictions and, without further discussion, 9 imposed a 45-year hard labor sentence without benefits, payment of the

costs of the proceedings, and a $50 fee to the Indigent Defender’s Office. It

then mentioned the time limit for post-conviction relief, and designated the

conviction as a crime of violence. At the prosecution’s request, the other

charge stemming from this offense was dismissed.

Ending the proceedings, the court stated: “And just for the record, on

Mr. Trotter, I considered the factors in Code of Criminal Procedure Articles

893 and 894 in arriving at a just sentence.”4

We recognize that the court intended to refer to La. C. Cr. P. art.

894.1; however, its statement merely reflects superficial consideration of the

factors in the article. While a trial court is not required to consider each and

every factor or give certain weight to specific factors, the record does not

reflect which factors, if any, the trial court actually considered. A

defendant’s prior convictions are an important consideration in sentencing.

Curiously, a defendant’s criminal history is not listed among the specific

aggravating factors in La. C. Cr. P. art. 894.1, while his lack of a criminal

history is listed as a mitigating factor in the article.

We therefore find that the record does not contain an adequate factual

basis to support the sentence imposed, which is for all practical purposes a

life sentence. It contains no information about Trotter, including his

personal life, family, education, employment background, or any other

possible mitigating or aggravating factors. As noted above, a PSI would

have greatly aided the court in this regard and in sentencing Trotter. All we

4 Although clearly the court intended to reference Art. 894.1 of the Code of Criminal Procedure, for the record, Art. 893 concerns suspension or deferral of sentence or probation in felony cases, while Art. 894 concerns suspension or deferral of sentences or probation in misdemeanor cases. 10 know about Trotter is his age at the time of the offense, 25, and his prior

convictions, but we do not know the circumstances of these convictions,

e.g., were they guilty pleas entered in exchange for lesser charges?

Therefore, we are constrained to conclude that the sentence in this case was

imposed in violation of La. C. Cr. P. art. 894.1.

Unlike the situation in State v. Lathan, supra, because the first prong

of the two-step analysis for constitutional excessiveness of a sentence has

not been satisfied in this case, we pretermit discussion of whether the

sentence is constitutional. We cannot determine whether Trotter is the worst

or most egregious offender worthy of a de facto life sentence without

knowing the basis upon which the trial court imposed those sentences.

Error Patent Review

Our review of the record disclosed that the trial court inadvertently

erred when it advised Trotter that he had “two years to file for any post-

conviction relief once these sentences become final.” La. C. Cr. P. art. 930.8

requires that the two-year period commences when the “conviction and

sentence” has become final.

CONCLUSION

For the foregoing reasons, Trotter’s 45-year sentence at hard labor is

vacated, and we remand the matter to the trial court for resentencing.

SENTENCE VACATED; REMANDED FOR RESENTENCING.