State of Louisiana v. Jimmy F. Kuykendall, Jr.

• Court: Louisiana Court of Appeal
• Decided: September 27, 2023
• Docket: 55,288-KA
• Status: Published

Opinion

Judgment rendered September 27, 2023. Application for rehearing may be filed within the delay allowed by Art. 922, La. C. Cr. P.

No. 55,288-KA

COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA

*****

STATE OF LOUISIANA Appellee

versus

JIMMY F. KUYKENDALL, JR. Appellant

Appealed from the First Judicial District Court for the Parish of Caddo, Louisiana Trial Court No. 387,262

Honorable Erin Leigh Waddell Garrett, Judge

PAULA CORLEY MARX Counsel for Appellant

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

ROSS STEWART ERICA N. JEFFERSON JOHN CLAUDE PHILLIPS Assistant District Attorneys

Before STONE, THOMPSON, and HUNTER, JJ. HUNTER, J.

Defendant, Jimmy Franklin Kuykendall, Jr., was charged by bill of

information with violation of a protective order, third offense, in violation of

La. R.S. 14:79(B)(2), and possession of methamphetamine, in violation of

La. R.S. 40:967(C)(2). A unanimous six-person jury found defendant guilty

as charged. He was sentenced to serve two years at hard labor for violation

of the protective order, and five years at hard labor for the possession of

methamphetamine. The sentences were ordered to be served consecutively.

For the following reasons, we affirm defendant’s convictions and the

sentence imposed for violation of a protective order. We vacate the sentence

imposed for possession of methamphetamine, and we remand this matter to

the trial court for resentencing in accordance with this opinion.

FACTS

In July 2021, defendant, Jimmy Franklin Kuykendall, Jr., and the

victim, Lori Fox, were involved in a romantic relationship and had been

cohabiting in Greenwood, Louisiana for approximately one year. Defendant

began experiencing what Ms. Fox described as “really bad mood swings,”

and she suspected he was using illegal drugs. Ms. Fox ended the

relationship and asked defendant to move out of the residence. Defendant

complied; however, he left some of his personal belongings in the residence.

Thereafter, defendant began placing numerous threatening telephone calls

and voicemail messages to Ms. Fox, which caused her to fear for her safety.

Ms. Fox sought a protective order which was granted on July 13,

2021; the order was effective through July 13, 2022. The court found

defendant “represents a credible threat to the physical safety of a family

member, household member, or dating partner.” Defendant was prohibited from contacting Ms. Fox and/or being within 100 yards of her. Further,

defendant was prohibited from harassing, assaulting, stalking, following,

tracking, or monitoring Ms. Fox. The prohibition also included contacting

Ms. Fox via a third-party, public posting, or any other means of

communication such as writings, telephone, electronic text, email, or social

media messages unless defendant had express written permission from the

court. The order allowed defendant 30 days to remove his belongings from

the residence, and the court specified procedures by which defendant was

allowed to “return to the residence at the date and time to be agreed upon by

[Ms. Fox] and a law enforcement agency to recover his personal clothing

and necessities provided he or she is accompanied by a law enforcement

officer to ensure the protection and safety of the parties.”1

Defendant violated the protective order on two occasions. On July 23,

2021, defendant went to Ms. Fox’s residence to retrieve his belongings

without contacting the Caddo Parish Sheriff’s Office (“CPSO”).

Subsequently, on October 19, 2021, defendant arranged with the CPSO and

Ms. Fox to recover his belongings from the house. He went to the residence

accompanied by a CPSO deputy and Ms. Fox’s pastor, who purportedly

served as a “facilitator.” While defendant was at the residence, Ms. Fox

advised the CPSO defendant had recently contacted her by email several

times. Defendant was arrested and subsequently pled guilty to two counts

1 The order further provided, “Should [defendant] fail to make these arrangements timely and recover his property, Ms. Fox has no further obligation to maintain the property and may remove it from her premises and seek recovery of those expenses from [defendant].” Defendant’s property was listed in the order as follows: a king-sized bed, a dresser mirror, two dressers, two nightstands, a couch, a love seat, two televisions, an entertainment center, a desk and chair, a bar and four stools, a dining room table, a green file cabinet, a coffee table, two end tables, a Kirby vacuum cleaner, clothing, and “2 storage buildings of contents boxes of personal effects.”

2 of violating the protective order related to the July and October 2021

incidents.

On January 23, 2022, Ms. Fox and her ex-husband were in the yard at

her residence near a storage shed where some of defendant’s belongings

were stored. Ms. Fox received a telephone call from an unknown telephone

number and allowed the call to go to voicemail. Shortly thereafter, she

listened to her voicemail messages and discovered defendant had left a

message inquiring about identity of the person who was “stealing” his

property. Ms. Fox looked up and saw defendant sitting in his truck in her

driveway. She called 9-1-1 and reported defendant was in violation of the

protective order. Defendant moved his truck and parked it on the other side

of the road, but still within 100 yards of Ms. Fox’s residence.

Corporal Page of the CPSO responded to the 9-1-1 call. He

determined the location where defendant moved his truck was within 100

yards of Ms. Fox’s person and residence. Cpl. Page confirmed the telephone

number on defendant’s phone corresponded with the telephone call and

voicemail message Ms. Fox had received. Another officer, Deputy Mark

McLaughlin, conducted a “pat down” of defendant’s person and found a

“glass smoking pipe with residue,” a pocketknife, and a “baggie” containing

methamphetamine in his pockets. A subsequent search of the area around

defendant’s vehicle and where defendant was sitting when officers arrived

revealed another baggie of methamphetamine in a cigarette pack.

Defendant was placed under arrest and charged with violation of a

protective order, third offense, in violation of La. R.S. 14:79(B)(2), and

possession of methamphetamine of two grams or more, but less than 28

3 grams, in violation of La. R.S. 40:967(C)(2). Following a trial, defendant

was found guilty as charged. He was sentenced to serve two years at hard

labor for violation of the protective order and five years at hard labor for

possession of methamphetamine. The sentences were ordered to be served

consecutively.

The trial court also issued a permanent protective order, prohibiting

defendant from coming with 500 feet of Ms. Fox and from contacting her or

her immediate family members. Additionally, the court ordered defendant

not to own or possess any firearms “for the rest of the existence of this

protective order, which is a permanent basis.” The court also denied

defendant’s motions for post-verdict judgment of acquittal, new trial, and to

reconsider sentences.

Defendant now appeals.

DISCUSSION

Defendant contends the trial court erred in imposing maximum

consecutive sentences. He argues the sentences are unconstitutionally

excessive for a “homeless 60-year-old offender.” He maintains he is not

violent, and he did not inflict, or threaten to inflict, any physical harm upon

Ms. Fox. According to defendant, he went to Ms. Fox’s residence to retrieve

his personal property, and he acknowledges he did not follow “the proper

procedures” for doing so. He asserts he called Ms. Fox on the telephone and

remained in his truck. Defendant also concedes he is a drug addict, and he

was in possession of “a little over eight grams” of methamphetamine at the

time of his arrest.

4 The law pertaining to excessive sentence claims is well-settled.2 In

cases involving multiple offenses and sentences, the trial court has limited

discretion to order that the multiple sentences are to be served concurrently

or consecutively. State v. Dale, 53,736 (La. App. 2 Cir. 1/13/21), 309 So. 3d

1031; State v. Sandifer, 53,276 (La. App. 2 Cir. 1/15/20), 289 So. 3d 212;

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. When two or more

convictions arise from the same act or transaction, or constitute parts of a

2 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 a factual basis for a sentence is the goal of article 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 La. C. Cr. art. 894.1. 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 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, writ denied, 17-1154 (La. 5/11/18), 241 So. 3d 1013; 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. 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. As noted recently by the supreme court in State v. Allen, 22-00508 (11/1/22), 348 So. 3d 1274, a sentence may be excessive under La. Const. art. I, § 20 even if it falls within the statutory range established by the Legislature. State v. Johnson, 97-1906 (La. 3/4/98), 709 So. 2d 672, 676; State v. Sepulvado, 367 So. 2d 762, 767 (La. 1979). 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, the 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 common scheme or plan, the terms of imprisonment shall be served

concurrently unless the court expressly directs that some or all be served

consecutively. La. C. Cr. P. art. 883. 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. Dale, supra; State

v. Hebert, 50,163 (La. App. 2 Cir. 11/18/15), 181 So. 3d 795. It is within

the court’s discretion to make sentences consecutive rather than concurrent.

State v. Dale, supra; 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.

When consecutive sentences are imposed, the court shall state the

factors considered and its reasons for the consecutive terms. Among the

factors to be considered are the defendant’s criminal history, the gravity or

dangerousness of the offense, the viciousness of the crimes, the harm done

to the victims, whether the defendant constitutes an unusual risk of danger to

the public, the potential for defendant’s rehabilitation, and whether the

defendant has received a benefit from a plea bargain. State v. Dale, supra;

State v. Wing, 51,857 (La. App. 2 Cir. 2/28/18), 246 So. 3d 711. A

judgment directing that sentences arising from a single course of conduct be

served consecutively requires particular justification from the evidence of

record. State v. Dale, supra; State v. Mitchell, 37,916 (La. App. 2 Cir.

3/3/04), 869 So. 2d 276, writ denied, 04-0797 (La. 9/24/04), 882 So. 2d

1168; State v. Strother, 606 So. 2d 891 (La. App. 2 Cir. 1992), writ denied,

612 So. 2d 55 (La. 1993).

As a general rule, maximum or near maximum sentences are reserved

for the worst offenders and the worst offenses. State v. Cozzetto, 07-2031

6 (La. 2/15/08), 974 So. 2d 665; State v. Sims, 53,791 (La. App. 2 Cir.

6/30/21), 322 So. 3d 902.

La. R.S. 14:79(B)(2) provides, in pertinent part:

On a second or subsequent conviction for violation of protective orders *** regardless of whether the current offense occurred before or after the earlier convictions, the offender shall be fined not more than one thousand dollars and imprisoned with or without hard labor for not less than fourteen days nor more than two years. At least fourteen days of the sentence of imprisonment imposed under this Paragraph shall be without benefit of probation, parole, or suspension of sentence. If a portion of the sentence is imposed with benefit of probation, parole, or suspension of sentence, the court shall require the offender to participate in a court-monitored domestic abuse intervention program as defined by R.S. 14:35.3.

La. R.S. 40:967 provides, in pertinent part:

C. Possession. It is unlawful for any person knowingly or intentionally to possess a controlled dangerous substance as classified in Schedule II unless such substance was obtained directly or pursuant to a valid prescription or order from a practitioner, as provided in R.S. 40:978 while acting in the course of his professional practice, or except as otherwise authorized by this Part. Any person who violates this Subsection with respect to: *** (2) An aggregate weight of two grams or more but less than twenty-eight grams shall be imprisoned, with or without hard labor, for not less than one year nor more than five years and, in addition, may be sentenced to pay a fine of not more than five thousand dollars.

In the instant case, in imposing the sentences, the trial court noted it

had considered the factors set forth in La. C. Cr. P. art. 894.1, and it

considered defendant’s actions egregious because he violated the protective

order three times, all within a relatively short amount of time. The court

stated:

[T]here was a protective order after a hearing that was issued and immediately violated and convicted, and then he got out and he violated it again within a three-month period, and then

7 he got out and then did it again within a one-month period. And to me, I don’t think it gets any worse than that.

No, you might not have, you know, caused her bodily harm, but the fact that you had no, sort of, I guess, respect or wherewithal to follow the order that was issued by a legitimate court, not once, not twice, but three times, it shows a blatant disregard for the court system, for the order of the court, and quite frankly, most importantly, that the safety of the victim in this case. ***

And for that reason, I feel like Article 894.1 goes through, you know, the victim and the egregiousness, and really, kind of, details each and every circumstance and in 33 enumerated factors. And to me, I believe, that the victim in this case most assuredly meets all of the qualifications for this being a max – maximum sentence requirement in this particular case.

*** [I]t’s not just the fact that you violated the protective order three times or the way that you’re looking at me right now with a smirk on your face. It is the amount of time within which you did it. And then I watched you throughout the jury trial not give one ounce of compassion or empathy or look like you thought you did anything wrong, and I still don’t think you think you did. ***

Based on that, I’m going to max you out at two years on the *** violation of the protective order, third offense, and I’m also going to max you out on the five-year hard labor in the possession of Schedule II greater than two grams, and I’m going to run those consecutive, and I’m not going to give you the benefit of any drug treatment.

Herein, the primary focus of the trial court’s sentencing stemmed

from defendant’s conduct in repeatedly violating the protective order. Given

defendant’s repetitious violation of the order, we find the maximum sentence

of two years at hard labor is not constitutionally excessive.

However, in imposing the sentence for possession of

methamphetamine, the trial court failed to articulate, under the guidelines of

La. C. Cr. P. art. 894.1, any basis for imposing the maximum sentence.

Although each and every factor in article 894.1 need not be articulated, the

record must support the sentence imposed. State v. Rachel, 428 So. 2d 805

8 (La. 1983); State v. Molinet, 393 So. 2d 721 (La. 1981). The record does not

clearly show an adequate factual basis for the sentence imposed for this

offense (possession of methamphetamine) and this offender. Specifically,

there is no indication the trial court considered defendant’s personal history

(age, family ties, marital status, health, employment record), seriousness of

the offense, the likelihood of rehabilitation, and defendant’s prior criminal

history, other than the emphasis the court placed on his prior violations of

the protective order. Because we have so little information before us upon

which to base a review of the excessiveness of the sentence imposed for

possession of methamphetamine, the defendant’s sentence for that offense is

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

accordance with the provisions of La. C. Cr. P. art. 894.1.

Furthermore, this record does not reflect reasons why consecutive

sentences were imposed for two charges arising out of the same incident.

There is no indication the criminal behavior of this defendant, although

perplexing, did not constitute a single course of conduct. The record reveals

defendant sat in front of the victim’s house, and simultaneously, was in

possession of methamphetamine. Additionally, the record does not indicate

this defendant is a grave risk to the community or public safety which

requires consecutive sentences. See, State v. Gant, 54,837 (La. App. 2 Cir.

1/11/23), 354 So. 3d 824; State v. Simpson, 50,334 (La. App. 2 Cir. 1/13/16),

186 So. 3d 195. In State v. Green, 16-0107 (La. 6/29/17), 225 So. 3d 1033,

1042, cert. denied, 138 S. Ct. 459, 199 L. Ed. 2d 338 (2017), the Louisiana

Supreme Court stated:

Here, defendant’s conduct transpired within a very short period at one location. Thus, we find the presumption in favor of

9 concurrent sentences applies, and the issue is whether the trial court abused its discretion by imposing consecutive terms. Absent well-articulated reasons from the sentencing court, we decline to say whether it was an abuse of discretion to impose consecutive terms. Thus, we will remand the matter to the trial court to consider whether defendant indeed poses a grave risk to public safety and, at a minimum, to articulate reasons for the consecutive terms. ***

The presumption of concurrent sentences applies to the record before

us, and absent well-articulated reasons for imposing consecutive sentences,

we pretermit the issue of whether the trial court abused its discretion in

imposing consecutive sentences. Consequently, we remand this matter to

the trial court for resentencing in accordance with the provisions of La. C.

Cr. P. art. 883.

ERRORS PATENT

An error patent review indicates that the sentence imposed is illegally

lenient. The trial court failed to impose the mandatory fines set forth in La.

R.S. 14:79(B)(2), which requires fine of not more than $1,000. Defendant

was represented by indigent defender counsel during his trial and is now

represented by the Louisiana Appellate Project. Defendant is not prejudiced

in any way by the trial court’s failure to impose the mandatory fine. La. C.

Cr. P. art. 882(A) provides that an illegally lenient sentence may be

corrected at any time by an appellate court on review, despite the failure of

either party to raise the issue. State v. Dowles, 54,483 (La. App. 2 Cir.

5/25/22), 339 So. 3d 749. This court, however, is not required to take such

action. 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; State v. Jamerson, 43,822 (La.

App. 2 Cir.1/14/09), 1 So. 3d 827; State v. Griffin, 41,946 (La. App. 2 Cir.

10 5/2/07), 956 So. 2d 199. Given defendant’s apparent indigent status, we

decline to impose such a fine at this juncture.

The trial court also failed to order at least 14 days of the sentence be

served without benefits. When the trial court fails to order a sentence be

served without benefits as statutorily mandated, the sentence will be

automatically served without benefits for the requisite time period. State v.

Dowles, supra. La. R.S. 14:79 statutorily mandates at least 14 days of the

sentence for violation of a protective order sentence be served without

benefits. However, the trial court’s failure to declare the sentence be served

without benefits is harmless and self-correcting.

Additionally, the record reveals the trial court imposed a permanent

protective order, which prohibits defendant from owning or possessing a

firearm “for the rest of the existence of this protective order, which is a

permanent basis.” La. R.S. 46:2136(F)(2)(a) provides:

For any protective order granted by the court which directs the defendant to refrain from abusing, harassing, or interfering with the person as provided in R.S. 46:2135(A)(1), the court may grant the order to be effective for an indefinite period of time as provided by the provisions of this Paragraph on its own motion or by motion of the petitioner. The indefinite period shall be limited to the portion of the protective order which directs the defendant to refrain from abusing, harassing, or interfering with the person as provided in R.S. 46:2135(A)(1).

Thus, we remand this matter to the trial court to fix a definitive period of

time for which the prohibition for possession of firearms will remain in

effect.

CONCLUSION

For the foregoing reasons, we affirm defendant’s convictions and the

sentence imposed for violation of a protective order. We vacate the sentence

11 imposed for possession of methamphetamine, and we remand this matter to

the trial court for resentencing in accordance with this opinion.

CONVICTIONS AFFIRMED; SENTENCE FOR VIOLATION OF A PROTECTIVE ORDER AFFIRMED; SENTENCE FOR POSSESSION OF METHAMPHETAMINES VACATED; REMANDED WITH INSTRUCTIONS.