State of Louisiana v. Jeremy Osborn

• Court: Louisiana Court of Appeal
• Decided: December 11, 2013
• Docket: KA-0013-0697
• Status: Unknown

Opinion

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

13-697

STATE OF LOUISIANA

VERSUS

JEREMY OSBORN

**********

APPEAL FROM THE TENTH JUDICIAL DISTRICT COURT PARISH OF NATCHITOCHES, NO. C17627 HONORABLE DEE A. HAWTHORNE, DISTRICT JUDGE

JOHN E. CONERY JUDGE

Court composed of Elizabeth A. Pickett, Billy Howard Ezell, and John E. Conery, Judges.

AFFIRMED.

Brent A. Hawkins Louisiana Appellate Project Post Office Box 3752 Lake Charles, Louisiana 70602-3752 (337) 502-5146 COUNSEL FOR DEFENDANT/APPELLANT: Jeremy Osborn Van Hardin Kyzar District Attorney Billy Joseph Harrington Assistant District Attorney 10th Judicial District Court Post Office Box 838 Natchitoches, Louisiana 71458-0838 (318) 357-2214 COUNSEL FOR APPELLEE: State of Louisiana CONERY, Judge.

Defendant, Jeremy Osborn, was charged in an indictment filed on March 28,

2011, with second degree murder, a violation of La.R.S. 14:30.1. Defendant

entered a plea of not guilty on April 15, 2011. On June 6, 2012, the State amended

the indictment to charge Defendant with manslaughter. Defendant then entered a

plea of guilty.

A sentencing hearing was held on December 14, 2012. On January 30, 2013

the sentencing hearing was reconvened, and Defendant was sentenced to serve

thirty years at hard labor. A motion to reconsider sentence was filed on February

13, 2013, and was denied on February 28, 2013, with written reasons.

A motion for appeal was filed on March 6, 2013, and was subsequently

granted. Defendant is now before this court asserting two assignments of error.

First, Defendant contends the trial court failed to adequately consider mitigating

factors when imposing his sentence, and second, he claims his thirty year sentence

is excessive. For the following reasons, we find these assignments of error lack

merit and affirm the sentence.

FACTS

Leon Norsworthy engaged in an altercation with Michael Shields and

several others outside Antoon’s Bar in Natchitoches, Louisiana, on March 10,

2011. The flight spilled over to a neighboring parking lot. The victim, Kasey

Ragan, Norsworthy’s girlfriend, was trying to break up the fight when she was

fatally shot by defendant, Jeremy Osborn.

Defendant pled guilty to a charge of manslaughter. At the sentencing

hearing, the trial court found that Defendant was not a participant in the dispute between Norsworthy and Shields, but intentionally went to a nearby vehicle to

retrieve a gun and fired it resulting in the death of the victim.

The trial judge carefully reviewed all the pertinent facts and circumstances

in her reasons for sentencing and thoroughly reviewed the aggravating and

mitigating factors before imposing a thirty-year hard labor sentence on the

defendant.

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, there is one

error patent.

Louisiana Code of Criminal Procedure Article 930.8 provides that a

defendant has two years after the conviction and sentence become final to seek

post-conviction relief. Louisiana Code of Criminal Procedure Article 930.8(C)

provides in pertinent part, “[a]t the time of sentencing, the trial court shall inform

defendant of the prescriptive period for post-conviction relief either verbally or in

writing.” In this case, the transcript of sentencing indicates that the trial court,

referring to post-conviction relief, informed Defendant that “[y]ou can file a [sic]

post-conviction relief within two years.” The notice is insufficient, as it does not

contain the language “after the conviction and sentence become final.” State v.

Celestine, 11-1403, p. 3 (La.App. 3 Cir. 5/30/12), 91 So.3d 573, 576.

Therefore, the trial court is ordered to instruct Defendant of the provisions of

La.Code Crim.P. art. 930.8 by sending appropriate written notice to Defendant

within ten days of the rendition of this opinion and to file written proof in the

record that it issued the notice to Defendant. State v. Roe, 05-116 (La.App. 3 Cir.

6/1/05), 903 So.2d 1265, writ denied, 05-1762 (La. 2/10/06), 924 So.2d 163.

2 ASSIGNMENTS OF ERROR

In his first assignment of error, Defendant contends that his sentence is

excessive because the trial court failed to adequately consider certain mitigating

factors when imposing its sentence of thirty years at hard labor. In his second

assignment of error, Defendant contends the trial court’s sentence of thirty years at

hard labor is excessive given the facts and circumstance of this case. The

assignments of error will be considered together, as they both pertain to the

sentence imposed.

The law is well settled concerning the standard to be used in reviewing

excessive sentence claims:

La. Const. art. 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. 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. The relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate.

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 (citations omitted).

Manslaughter is punishable by a term of imprisonment up to forty years at

hard labor. La.R.S. 14:31(B). Defendant’s thirty year sentence was well within

the sentencing range.

Even when a sentence falls within the statutory sentencing range, it still may

be unconstitutionally excessive. In determining whether a sentence shocks the

3 sense of justice or makes no meaningful contribution to acceptable penal goals, this

court has suggested that several factors may be considered:

[A]n appellate court may consider several factors including the 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. 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. Additionally, it is within the purview of the 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. 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 (citations omitted).

A sentencing hearing was held in this matter on December 14, 2012. At that

hearing, the trial court heard the testimony of Detective Jeff Townson, victim

impact evidence from Wayne Ragan and Tina Ragan, and the State introduced the

statements of several witnesses to the events at issue. The trial court reviewed all

of the evidence and testimony in detail, including listening to the taped statements

of the witnesses. The trial court subsequently gave the parties time to file briefs in

the matter and re-set the sentencing for January 30, 2013.

At final sentencing on January 30, 2013, the trial court exhaustively

reviewed the facts of the case, thoroughly applied all the sentencing guidelines,

and concluded:

I don’t think that, that Mr. Osborn went to Antoon’s that night to shoot and kill Kasey Reagan. But when you pick up a gun, when you go get a gun, it shows the intent and the intent to use the gun. Considering the above, after evaluation of all of the facts that the Court deems relevant, the Court is ready to sentence the defendant. Would you please stand, sir? Let me say this also. Mr. Osborn is a young man; he’s 27 years old today. . . . And the Court is required to consider all the facts, to consider all the kinds of crimes that we are, that are brought into our court before we make a decision what to do. And I understand that the Reagan family and all of their friends and

4 all of their close acquaintances have asked this Court to sentence Mr. Osborn to the maximum that he could be sentenced to. The maximum that he could be sentenced to is 40 years. . . . Mr. Osborne must serve at least 85% of the time to which I sentence him. And only then will he be eligible for consideration of parole. That doesn’t mean he’ll be paroled. So it’s a very long time. I’ve considered all these things. I’ve considered the different kinds of crimes I’ve had to address and the behavior that I’ve had to address. I was very concerned Mr. Noel, because until today I’ve heard no remorse. I’ve only heard him cry and say what am I going to do I’m in trouble which is different than remorse. And I’m sorry that he can’t today turn to this family and tell them he’s sorry.

Defendant belatedly apologized to the victim’s family. The court then pronounced

the sentence of thirty years at hard labor.

Defendant contends his sentence is excessive because it remains unclear

that he had the specific intent to inflict great bodily harm or kill anyone.

Defendant contends, pursuant to La.Code Crim.P. art. 894.1(B)(24) & (29), that he

acted under strong provocation and the circumstances resulting in Ragan’s death

are unlikely to “reoccur.” Louisiana Code of Criminal Procedure Article

894.1(B)(24) provides that the trial court should consider whether a defendant

acted under strong provocation, and, pursuant to subsection (B)(29), the trial court

should consider whether a defendant’s criminal conduct was the result of

circumstances unlikely to recur.

Defendant argues that he was conducting himself in a lawful manner prior

to arming himself. Additionally, it was not absurd for him to arm himself in light

of the attack on Michael Shields, as he could have been next. Defendant further

argues that Detective Townson’s testimony that Ragan was shot in close to

intermediate range could support his statement that he was in the process of

swinging the gun to try and scare the participants and stop the fight when the gun

5 accidently discharged.1 Defendant contends that punishing the ultimate result of

his conduct without adequately considering the different levels of provocation that

occurred on the evening at issue resulted in a sentence that is excessive. Defendant

asserts that the trial court failed to adequately consider the fact that the events at

issue evolved out of a series of events that are highly unlikely to “reoccur.”

Additionally, having been through this scenario, Defendant argues that he is much

more likely to be aware of the development of such a situation and not allow

something like this to happen again.

Defendant further argues that the trial court failed to adequately consider

the mitigating factors he presented and imposed an excessive sentence. Defendant

further asserts that, “given the circumstances, a highly intoxicated group involved

in a melee, where a gun is produced and Ms. [Ragan] was killed, a sentence of

thirty years and leaves him holding the bag for others who have culpability for the

death of Ms. [Ragan].” Defendant contends his sentence is excessive and argues

that his sentence needs to be proportionate to his role and the context of the events.

Defendant argues that he responded to the circumstances presented that evening.

In support of his arguments, Defendant cites State v. Brown, 08-442

(La.App. 3 Cir. 11/12/08), 997 So.2d 875, writ denied, 09-232 (La. 10/30/09), 21

So.3d 279. Therein, the defendant ordered his guests to leave his home. As the

victim was backing out of the home, the victim asked if he could retrieve his keys

and phone from inside the home. When the victim reached the front porch,

defendant fired a shot. As the victim began running, the defendant fired again.

The defendant was convicted of manslaughter, and this court affirmed his sentence

1 Detective Townson testified at the sentencing hearing and indicated that the muzzle of the gun did not make contact with Ragan’s body and was in intermediate to close range when she was shot.

6 of forty years. In this case, unlike Brown, Defendant claims that he did not

intentionally fire a weapon at anyone.

Defendant also cites State v. Batiste, 06-875 (La.App. 4 Cir. 12/20/06), 947

So.2d 810. In Batiste, the defendant and the victim argued over a twenty dollar bet

on a domino game. During the argument, the defendant retrieved a gun from his

truck and returned to the domino table. The defendant and the victim argued more,

the two scuffled, and defendant shot the victim. The defendant was convicted of

manslaughter, and the fourth circuit affirmed his sentence of twenty years.

Defendant further cites State v. Johnson, 94-1523 (La.App. 3 Cir. 5/3/95),

657 So.2d 178, writ denied, 95-1397 (La. 11/3/95), 662 So.2d 9. Therein, the

defendant was standing on the street when the victim drove up and engaged

defendant in conversation. The defendant stated that the victim appeared angry,

reached across his body, and appeared to be reaching for a weapon. At that point,

the defendant reached into his jacket, removed a gun, and fired into the victim’s

truck. The defendant was convicted of manslaughter, and this court affirmed his

sentence of twenty years.

Defendant asserts his conduct pales in comparison to that of the defendants

in Brown, 997 So.2d 875, Batiste, 947 So.2d 810, and Johnson, 675 So.2d 178.

A comparison of this case with other cases addressing the excessiveness of a

sentence imposed for manslaughter, however, supports affirmation of the sentence

imposed. In State v. McGhee, 10-583 (La.App. 3 Cir. 12/8/10), 52 So.3d 318, writ

denied, 11-62 (La. 5/20/11), 63 So.3d 973, the defendant was convicted of

manslaughter and sentenced to forty years at hard labor. During an altercation at a

bar, the defendant shot and killed a bystander. The defendant was twenty-six years

old at the time of the offense and had prior convictions for possession of cocaine

7 and domestic abuse battery. On appeal, this court found that the sentence was not

excessive.

In State v. Lewis, 09-1404 (La. 10/22/10), 48 So.3d 1073, a sixteen-year-old

male watched a fight between friends, Bush and Crain, as a bystander. During the

fight, he picked up a gun that had fallen out of Bush’s pocket and fired a single

shot into Crain’s temple. The sixteen-year-old was convicted of manslaughter and

sentenced to thirty years at hard labor. The supreme court affirmed defendant’s

sentence.

In State v. Weatherspoon, 06-539 (La.App. 5 Cir. 12/12/06), 948 So.2d 215,

writ denied, 07-462 (La. 10/12/07), 965 So.2d 398, the sixteen-year-old defendant

was a passenger in a vehicle that was struck by a bottle. Witnesses testified that

the defendant exited the vehicle and fired several shots into a crowd. A fourteen-

year-old boy was struck by a bullet and died as a result of his injuries. The

defendant was subsequently convicted of manslaughter and sentenced to thirty-five

years at hard labor. The fifth circuit affirmed the defendant’s sentence, noting that

he had a criminal history consisting of a juvenile adjudication for aggravated

assault.

In the instant case, the trial court provided detailed reasons for the sentence

imposed. The trial court thoroughly discussed the nature of the offense,

Defendant’s background, Defendant’s criminal history, and several of the factors

set forth in La.Code Crim.P. art. 894.1, including provocation and the likelihood

that Defendant’s actions would recur. Louisiana Code of Criminal Procedure

Article 894.1 does not require that the trial court assign any particular weight to

any specific matters at sentencing. This court cannot say the trial court failed to

8 adequately consider the issue of provocation and the likelihood that Defendant’s

actions would “reoccur.”

Based on the circumstances of the offense, Defendant’s criminal history,

and the jurisprudence, we find that the trial court did not abuse its considerable

discretion when it imposed a thirty year hard labor sentence. Accordingly, these

assignments of error lack merit.

DISPOSITION

Defendant’s sentence is affirmed. The trial court is ordered to instruct

Defendant of the provisions of La.Code Crim.P. art. 930.8 by sending appropriate

written notice to Defendant within ten days of the rendition of this opinion and to

file written proof in the record that it issued the notice to Defendant.