STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT
ggasfia" W- 4 I PAC R."C'It 1) WIL 110 •
STATE OF LOUISIANA
VERSUS
JUSTIN DEWAYNE KIMBLE
Judgment Rendered: SEP 21 2023
ON APPEAL FROM THE 22nd JUDICIAL DISTRICT COURT, DIVISION F ST. TAMMANY PARISH, LOUISIANA DOCKET NUMBER 2349- F- 2019
HONORABLE VINCENT J. LOBELLO, JUDGE PRESIDING
Warren LeDoux Montgomery Attorneys for Plaintiff -Appellee District Attorney State of Louisiana and
Matthew Caplan J. Bryant Clark, Jr. Assistant District Attorneys Covington, Louisiana
Gwendolyn K. Brown Attorney for Defendant -Appellant Baton Rouge, Louisiana Justin Dewayne Kimble
BEFORE: i GREENE, J.
The State charged the defendant, Justin Dewayne Kimble, by amended bill of
information, with possession of less than two grams of a Schedule II controlled dangerous
substance ( CDS) ( fentanyl) ( Count I), a violation of La. R. S. 40: 967( C)( 1); possession of
two grams or more, but less than twenty eight grams, of a Schedule II CDS
methamphetamine) ( Count II), a violation of La. R. S. 40: 967( C)( 2); possession with
intent to distribute less than two and one- half pounds of marijuana ( Count III), a violation
of La. R. S. 40: 966( A) and ( B)( 2)( a); possession of a firearm or carrying a concealed
weapon by a person convicted of certain felonies ( Count IV), a violation of La. R. S.
14: 95. 1; illegal carrying of a weapon while in possession of a CDS ( 14 grams or more of
marijuana) ( Count V), a violation of La. R. S. 14: 95( E); and possession of less than two
grams of a Schedule I CDS ( acetyl fentanyl) ( Count VI), a violation of La. R. S.
40: 966( C)( 1)( a). The defendant pled not guilty on all counts.' After a trial, a jury
unanimously found him guilty as charged on all counts.
Thereafter, the trial court sentenced the defendant as follows: on Count I, to two
years imprisonment at hard labor; on each of Counts II and III, to five years imprisonment
at hard labor; on Count IV, to twenty years imprisonment at hard labor, without benefit
of probation, parole, or suspension of sentence; on Count V, to ten years imprisonment
at hard labor, without benefit of probation, parole, or suspension of sentence; and, on
Count VI, to two years imprisonment at hard labor.
The State then filed a habitual offender bill of information alleging that, as to
Counts I, II, III, V, and VI, the defendant was a second -felony habitual offender.2 After
a hearing, the trial court adjudged the defendant a second -felony habitual offender on
those counts and vacated the corresponding previously -imposed sentences. Based on
the adjudication, the trial court sentenced the defendant as follows: on Count I, to four
I A jury trial commences when the first prospective juror is called for examination. La. C. Cr. P. art. 761. The defendant was not arraigned on Count VI prior to the commencement of trial. Following the selection of the jury, the State notified the trial court that the defendant had not been arraigned on Count VI. Defense counsel waived reading of the bill and entered a plea of not guilty on Count VI. Accordingly, the defendant waived any irregularity in the arraignment on Count VI. See La. C.Cr. P. art. 555.
2 The State identified the predicate offense as the defendant's May 18, 2015 conviction for robbery in the second degree, under Alabama Circuit Court of Jefferson - Birmingham County Docket # 01 -CC -2014- 002851. The State did not include Count IV in the habitual offender bill of information.
N years imprisonment at hard labor, without benefit of probation or suspension of sentence;
on Count II, to eight years imprisonment at hard labor, without benefit of probation or
suspension of sentence; on Count III, to five years imprisonment at hard labor, without
benefit of probation or suspension of sentence; on Count V, to fifteen years imprisonment
at hard labor, without benefit of probation, parole, or suspension of sentence; and, on Count
VI, to four years imprisonment at hard labor, without benefit of probation or suspension of
sentence. The trial court ordered that the sentences imposed on Counts I - VI run
concurrently.
The defendant now appeals, challenging the sentences as excessive and arguing his
trial counsel rendered ineffective assistance by failing to file a motion to reconsider the
sentence to preserve review of the sentences for excessiveness. For the following reasons,
we affirm the convictions and sentences.
FACTS
On May 1, 2019, at 6: 01 a. m., Louisiana State Police Trooper Derek Clark stopped a
vehicle for a traffic violation on Interstate 12 in St. Tammany Parish. At the time of the
stop, Jamichael Peterman was driving the vehicle, and defendant, who owned the vehicle,
was riding as a passenger. Trooper Clark detected the odor of marijuana coming from the
vehicle and suspected that narcotics were present therein. The defendant refused to
consent to a search of the vehicle, but based on the odor of marijuana, Trooper Clark and
another State Police Trooper performed a search of the vehicle, finding numerous illegal
drugS,3 a scale, a gun magazine, and a 9mm semi- automatic pistol with an extended
magazine. Trooper Clark then arrested the defendant and Mr. Peterman.
At trial, Mr. Peterman testified he lived in Alabama, where he worked at a McDonald' s
restaurant and also sold marijuana on the side. According to Mr. Peterman, he and the
defendant drove to Houston, Texas, to buy approximately two pounds of marijuana to sell.
Mr. Peterman indicated the defendant helped " set up the buy" and helped him pay for the marijuana. Mr. Peterman stated he told the defendant not to bring his gun when the men
3 The officers found 0. 19 grams of fentanyl and acetyl fentanyl, 8. 25 grams of methamphetamine, and various bags and quantities of marijuana totaling 1. 6 pounds.
9 left Alabama, but the defendant said he would rather " get caught with [ the gun] than
without it."
The defendant testified at trial. He stated that he lived in Alabama; he admitted that
4 he was convicted of a felony when he was seventeen years old. According to the
defendant, Kavon Dunn, one of his friends, left the gun in the defendant's car. The
defendant claimed he did not know the gun was in the vehicle until Mr. Dunn called him
while he was in Louisiana and on his way to Houston. The defendant, however, conceded
he held the gun in Alabama and Louisiana and knew it was in the vehicle when he was in
Texas. 5 According to the defendant, he was driving Mr. Peterman to Texas to buy marijuana
in exchange for $300 and some of the marijuana. The defendant denied supplying any of
the money to buy the marijuana.
The defendant testified he was a drug user, not a drug dealer. He conceded he was
guilty of the offenses involving fentanyl, acetyl fentanyl, and methamphetamine, i.e., Counts
I, II, and VI, but stated he was not guilty of the charges involving the marijuana and the
firearm, i.e., Counts III, IV, and V. He claimed he had no intent to possess fentanyl and
thought the fentanyl and acetyl fentanyl were heroin when he purchased them. He denied
any ownership interest in the marijuana. He conceded, however, that his drugs were found
in his Crown Royal bag with a scale and a magazine for the gun. He further conceded that,
after his arrest on the instant charges, on May 12, 2020, he was arrested in Alabama with
a scale, marijuana, and 13 pills of suspected MDMA,6 and that, in July of 2021, he was
arrested in Alabama for possession of 10. 4 grams of fentanyl, 26 grams of
methamphetamine, hydrocodone pills, and two loaded firearms. The defendant claimed
those firearms did not belong to him, and he was in his sister's car at the time of his July 2021 arrest.
4 Alabama Probation and Parole Officer Meta Eatman testified she supervised the defendant after his May 18, 2015 guilty plea to robbery in the second degree. The defendant was released from probation for that offense in September of 2018.
5 The State presented testimony and a report from an expert in forensic DNA analysis that the defendant could not be excluded as a major contributor of DNA found on the firearm and the bullets in its magazine.
6 MDMA is a drug commonly known as ecstasy. See State v. Risner, 13- 2089 ( La. App. 1 Cir. 7/ 11/ 14), 2014 WL 3510295, * 1, writ denied, 14- 1543 ( La. 2/ 27/ 15), 159 So. 3d 1066.
4 EXCESSIVE SENTENCES; INEFFECTIVE ASSISTANCE OF COUNSEL
In assignment of error number one, the defendant contends the trial court erred in
imposing excessive sentences. In assignment of error number two, he contends the trial
court failed to comply with the sentencing mandates of La. C. Cr.P. art. 894. 1. In assignment
of error number three, he contends he was denied effective assistance of counsel because
his trial counsel failed to preserve the excessiveness of the sentences for review. The
defendant combines the assignments of error for purposes of argument. He argues the
evidence, facts, and his background do not support imposition of maximum or near
maximum sentences in this matter.
We will address assignments of error numbers one and two, even in the absence of
a timely motion to reconsider sentence' or a contemporaneous objection, because analysis
of the ineffective assistance of counsel claim requires such. See State v. Moore, 12- 0876
La. App. 1 Cir. 2/ 15/ 13), 2013 WL 595670, * 2 ( unpublished), writ denied, 13- 0600 ( La.
10/ 11/ 13), 123 So. 3d 1216.
Louisiana Code of Criminal Procedure article 894. 1 sets forth factors the trial court
must consider before imposing a sentence. The trial court need not recite the entire
checklist of La. C. Cr. P. art. 894. 1, but the record must reflect that it adequately considered
the criteria. Moore, 2013 WL 595670 at * 2. In light of the criteria expressed by La. C. Cr. P.
art. 894. 1, an appellate court's review for individual excessiveness should consider the
circumstances of the crime and the trial court's stated reasons and factual basis for its
sentencing decision. Id. Remand for full compliance with La. C. Cr.P. art. 894. 1 is
unnecessary when a sufficient factual basis for the sentence is shown. Id.
The Eighth Amendment to the United States Constitution and Louisiana Constitution
Article I, § 20 prohibit the imposition of excessive punishment. Although a sentence is
within statutory limits, it may violate a defendant's constitutional right against excessive
punishment and is subject to appellate review. State v. Alexander, 21- 1346 ( La. App. 1 Cir.
7/ 13/ 22), 344 So. 3d 705, 725. Generally, a sentence is considered excessive if it is grossly
An attorney's failure to file a motion to reconsider sentence in itself does not constitute ineffective assistance of counsel. However, if the defendant can show a reasonable probability that, but for attorney's error, his sentence would have been different, a basis for an ineffective assistance claim may be found. State v. Scott, 17- 0209 ( La. App. 1 Cir. 9/ 15/ 17), 228 So. 3d 207, 210, writ denied, 17- 1743 ( La. 8/ 31/ 18), 251 So. 3d 410.
5 disproportionate to the severity of the crime or is nothing more than the needless imposition
of pain and suffering. Id. A sentence is considered grossly disproportionate if, when the
crime and punishment are considered in light of the harm to society, it is so disproportionate
as to shock one's sense of justice. Id A trial court is given wide discretion in the imposition
of sentences within statutory limits, and an appellate court should not set aside the sentence
in the absence of an abuse of that discretion. State v. Allen, 05- 1622 ( La. App. 1 Cir.
3/ 29/ 06), 934 So. 2d 146, 156. The sources of information relied upon by the sentencing
court are varied and may include evidence usually excluded from the courtroom at the trial
of guilt or innocence, e.g., hearsay, arrest records, and conviction records. State v. Myles,
94- 0217 ( La. 6/ 3/ 94), 638 So. 2d 218, 219 ( per curiam, Allen, 934 So. 2d at 157.
A claim of ineffective assistance of counsel is more properly raised by an application
for post -conviction relief in the trial court where a full evidentiary hearing may be conducted.
However, in the interest of judicial economy, an appellate court may address the issue of
ineffective assistance, where the record discloses evidence needed to decide the issue, and
the defendant raises the issue by assignment of error on appeal. State v. Moody, 00- 0886
La. App. I Cir. 12/ 22/ 00), 779 So. 2d 4, 8, writ denied, 01- 0213 ( La. 12/ 7/ 01), 803 So. 2d
40; see State v. Mance, 00- 1903 ( La. App. 1 Cir. 5/ 11/ 01), 797 So. 2d 718, 720. A court
analyzes an ineffective assistance of counsel claim under the two- pronged test developed
by the United States Supreme Court in Strickland v. Washington, 466 U. S. 668, 104 S. Ct.
2052, 80 L. Ed. 2d 674 ( 1984). The defendant must show that (1) his attorney' s performance
was deficient, and ( 2) the deficiency prejudiced him. State v. Bias, 14- 1588 ( La. App. 1 Cir.
4/ 24/ 15), 167 So. 3d 1012, 1020- 21, writ denied, 15- 1051 ( La. 5/ 13/ 16), 191 So. 3d 1053.
To show prejudice, the defendant must demonstrate that, but for the attorney's
unprofessional errors, the proceeding would have resulted differently. Bias, 167 So. 3d at
1021. It is unnecessary to address both prongs of the Strickland test, if the defendant
makes an inadequate showing as to one prong. Id
As applicable here, the defendant was adjudicated a second -felony habitual offender
and, as to Counts I, II, III, V, and VI, faced a sentencing range not less than one-third the
longest term and not more than twice the longest term prescribed for a first conviction. La.
R R. S. 15: 529. 1( A)( 1). Any sentence imposed under La. R.S. 15: 529. 1 shall be at hard labor
without benefit of probation or suspension of sentence. La. R. S. 15: 529. 1( G).
As to Count I, possession of fentanyl, whoever possesses less than two grams of
a Schedule II CDS, 8 shall be imprisoned, with or without hard labor, for not more than
two years and, in addition, may be fined not more than five thousand dollars. La. R. S.
40: 967( C)( 1). As a second -felony habitual offender, the defendant faced a sentencing
range of not less than eight months and not more than four years. He was sentenced to
four years imprisonment at hard labor, without benefit of probation or suspension of
sentence.
As to Count II, possession of methamphetamine, whoever possesses two grams or
more, but less than twenty-eight grams, of a Schedule II CDS,9 shall be imprisoned, with
or without hard labor, for not more than one year nor more than five years and, in
addition, may be fined not more than five thousand dollars. La. R. S. 40: 967( C)( 2). As a
second -felony habitual offender, the defendant faced a sentencing range of not less than
twenty months and not more than ten years. He was sentenced to eight years
imprisonment at hard labor, without benefit of probation or suspension of sentence.
As to Count III, possession with intent to distribute marijuana, whoever possesses
an aggregate weight of less than two -and -one- half pounds of a substance classified in
Schedule I as marijuana, shall be imprisoned, with or without hard labor, for not less than
one year nor more than ten years and be fined not more than fifty thousand dollars. La.
R. S. 40: 966( A) and ( 13)( 2)( a). As a second -felony habitual offender, the defendant faced
a sentencing range of not less than forty months and not more than twenty years. He
was sentenced to five years imprisonment at hard labor. 10
As to Count V. illegal carrying of a weapon while in possession of a CDS ( 14 grams
or more of marijuana), as applicable here, the offender shall be fined not more than ten
8 Fentanyl is a Schedule II CDS. La. R. S. 40: 964, Schedule 11, ( 13)( 9).
I Methamphetamine is a Schedule II CDS. La. R. S. 40: 964, Schedule II, (C)( 2).
10 Louisiana Revised Statutes 40: 966( B)( 2)( a) also authorizes, but does not mandate, a fine. However, the habitual offender statute does not authorize the imposition of a fine. See State v. Warren, 16- 0411 La. App. 1 Cir. 9/ 19/ 16), 2016 WL 5078377, * 2, n. 4 ( unpub'd); State v. Thomas, 12- 0177 ( La. App. I Cir. 12/ 28/ 12), 112 So. 3d 875, 879- 80.
7 thousand dollars and imprisoned at hard labor for not less than five nor more than ten years,
without benefit of probation, parole, or suspension of sentence. La. R. S. 14: 95( E). As a
second -felony habitual offender, the defendant faced a sentencing range of not less than
forty months and not more than twenty years. He was sentenced to fifteen years
imprisonment at hard labor, without benefit of probation, parole, or suspension of
sentence."
As to Count VI, possession of acetyl fentanyl, whoever possesses less than two
grams of a Schedule I CDS, 12 shall be imprisoned, with or without hard labor, for not
more than two years and may, in addition, be fined not more than five thousand dollars.
La. R. S. 40: 967( C)( 1)( a). As a second -felony habitual offender, the defendant faced a
sentencing range of not less than eight months and not more than four years. He was
sentenced to four years imprisonment at hard labor, without benefit of probation or
suspension of sentence.
As to Count IV, possession of a firearm or carrying a concealed weapon by a person
convicted of a crime of violence which is a felony,13 whoever violates La. R. S. 14: 95. 1( A)
shall be imprisoned at hard labor for not less than five nor more than twenty years,
without the benefit of probation, parole, or suspension of sentence, and fined not less
than one thousand dollars nor more than five thousand dollars. La. R. S. 14: 95. 1( 8). On
Count IV, the defendant was sentenced to twenty years at hard labor imprisonment,
without benefit of probation, parole, or suspension of sentence. 14
The trial court ordered that the sentences imposed on Counts I - VI run concurrently.
The trial court noted that it considered the factors set forth in the Code of Criminal Procedure
and the Habitual Offender Law. The trial court specifically noted the defendant's history of
11 See footnote 10.
12 Acetyl fentanyl is a Schedule I CDS. La. R. S. 40: 964, Schedule I, ( A)( 56) ( prior to renumbering as authorized by 2022 La. Acts No. 46, § 2 and 2021 La. Acts No. 101, § 3).
13 Second- degree robbery is a crime of violence which is a felony. La. R. S. 14: 2( A)( 4) and ( B)( 35); La. R. S. 14: 64. 4( 6).
14 Assignment of error number one attacks all six sentences as excessive. Thus, the sentence on count IV must be reviewed for excessiveness even though it was not enhanced under the habitual offender law. La. Code Crim. P. art. 920( 1). The sentence on Count IV is addressed after discussing the enhanced sentences, because the enhanced sentences were subject to the same enhancement provisions under La. R.S. 15: 529. 1( A)( 1) and La. R. S. 15: 529. 1( G).
1*7 prior convictions and the seriousness of the present charges. Additionally, the trial court
found the presence and potential use of a firearm while the defendant was involved with
possessing, and possessing with intent to distribute, controlled dangerous substances to be particularly disturbing."
A thorough review of the record reveals the trial court adequately considered the
criteria of La. C. Cr.P. art. 894. 1 and did not manifestly abuse its discretion in imposing the
sentences herein. See La. C. Cr. P. art. 894. 1( A)( 1), ( 13)( 12), ( 13)( 20), and ( 13)( 21). Further,
the sentences imposed were not grossly disproportionate to the severity of the offenses and
thus were not unconstitutionally excessive.
Additionally, maximum sentences were warranted on Counts I, IV, and VI. Maximum
sentences may be imposed for the most serious offenses and the worst offenders or when
the offender poses an unusual risk to the public safety due to his past conduct of repeated
criminality. Moore, 2013 WL 595670 at * 4. The defendant's offenses herein were the most
serious offenses because, as noted by the trial court, the defendant illegally possessed a
firearm while possessing controlled dangerous substances. Guns and drugs frequently go
hand- in- hand. State v. Warren, 05- 2248 ( La. 2/ 22/ 07), 949 So. 2d 1215, 1229. This Court
has also noted that drugs and guns and violence often go together. State v. Barnes, 16-
0630 ( La. App. 1 Cir. 9/ 16/ 16), 203 So3d 1090, 1096, writ denied, 16- 1807 ( La. 9/ 15/ 17),
225 So. 3d 483. The defendant is the most serious offender, because he is a repeat offender
with a prior crime of violence who not only continues to break the law, but does so while
armed with a firearm.
As to the defendant's ineffective assistance of counsel claim, we note, even
assuming, arguendo, defense counsel performed deficiently in failing to timely move for
reconsideration of the sentences, the defendant suffered no prejudice from the deficient
performance, because this Court considered the defendant's excessive sentences argument
in connection with the ineffective assistance of counsel claim. See Moore, 2013 WL 595670
at * 4. These assignments of error are meritless.
E% 14 k: 7: Zi' 7
Under La. C. Cr. P. art. 920( 2), an appellate court is limited in its review to errors
discoverable by a mere inspection of the pleadings and proceedings without inspection of the evidence. State v. Loper, 10- 0582 ( La. App. 1 Cir. 10/ 29/ 10), 48 So. 3d 1263, 1269.
After a careful review of the record, we have found two patent errors.
On Count IV, the trial court failed to impose the mandatory fine of not less than one
thousand dollars nor more than five thousand dollars. La. R.S. 14: 95. 1( B). Accordingly,
the defendant's sentence on Count IV, which did not include the mandatory fine, is illegally
lenient. However, since the sentence is not inherently prejudicial to the defendant, and
neither the State nor the defendant has raised this sentencing issue on appeal, we decline
to correct this error. See Loper, 48 So3d at 1269.
On Count V, the bill of information charged the defendant with violating La. R.S.
14: 95( E), illegal carrying of weapons while in possession of a CDS, " by using, possessing or
having in [ his] immediate control any firearm, . . . namely a pistol, while unlawfully in the
possession of a controlled dangerous substance, to wit: [ flourteen ( 14) grams or more of
marijuana." Louisiana Revised Statutes 14: 95( E) provides an exception when the unlawfully
possessed CDS is " fourteen grams or less of marijuana[.]" Thus, Count V of the bill of
information was defective in failing to charge the defendant possessed more than fourteen
grams of marijuana. However, the bill of information fairly informed the defendant of Count
V, and he suffered no prejudice from the defect, because the quantity of marijuana involved
in this case was more than fourteen grams. Accordingly, this error is not reversible. See
La. C. Cr. P. art. 921 and State v. Templet, 05- 2623 ( La. App. 1 Cir. 8/ 16/ 06), 943 So. 2d 412,
420, writ denied, 06- 2203 ( La. 4/ 20/ 07), 954 So. 2d 158 ( noting that a defendant may not
complain of technical insufficiency in an indictment for the first time after conviction, when
the indictment fairly informed him of the charge against him and the he is not prejudiced
by the defect).
For the above reasons, we affirm the defendant's convictions and sentences.
CONVICTIONS AND SENTENCES AFFIRMED.