STATE OF LOUISIANA * NO. 2022-KA-0495
VERSUS * COURT OF APPEAL KEITH KISACK * FOURTH CIRCUIT * STATE OF LOUISIANA *******
APPEAL FROM CRIMINAL DISTRICT COURT ORLEANS PARISH NO. 510-800, SECTION “C” Honorable Benedict Willard, Judge ****** Judge Daniel L. Dysart ****** (Court composed of Judge Daniel L. Dysart, Judge Sandra Cabrina Jenkins, Judge Rachael D. Johnson)
Jeff Landry ATTORNEY GENERAL J. Taylor Gray Grant L. Willis ASSISTANT ATTORNEYS GENERAL LOUISIANA DEPARTMENT OF JUSTICE P.O. Box 94005 Baton Rouge, LA 70804
COUNSEL FOR STATE/APPELLEE
Christopher A. Aberle LOUISIANA APPELLATE PROJECT P.O. Box 8583 Mandeville, LA 70470-8583
COUNSEL FOR DEFENDANT/APPELLANT
VACATED AND REMANDED NOVEMBER 16, 2022 DLD This is an appeal of the district court’s July 22, 2021 judgment denying SCJ Defendant’s, Keith Kisack, Motion to Reconsider Sentence. For the following RDJ reasons, we vacate the judgment and remand the matter to the trial court to conduct
further proceedings consistent with this opinion.
FACTS/PROCEDURAL HISTORY
Defendant was charged with and found guilty of possession of contraband
(namely, a cell phone) in prison. Thereafter, the State filed a multiple-offender bill
based on Defendant’s contraband charge and his prior felony convictions for
possession of a firearm by a felon (2001), aggravated battery (1995), and illegal
discharge of a firearm (1993). The penalty for a fourth-felony offender under the
multiple-offender statute is twenty (20) years to life. The court imposed the
maximum sentence of life in prison without the possibility of parole. Defendant
appealed and this Court ultimately amended the sentence to include the possibility
of parole but affirmed the lifetime term imposed by the trial court. See State v.
Kisack, 2015-0083 (La. App. 4 Cir. 3/30/16), 190 So.3d 806. On writ of certiorari,
the Louisiana Supreme Court found that the trial court failed to observe the
mandatory delay before sentencing Defendant to the maximum term of life
1 imprisonment, reversed this Court’s ruling in part to vacate the habitual offender
adjudication, and remanded the matter to the trial court to conduct further
proceedings consistent with its findings. See State v. Kisack, 2018-0797 (La.
10/18/17), 236 So.3d 1201 (per curium), cert denied, ___ U.S. ____, 138 S.Ct.
1175, 200 L.Ed.2d 322. A second multiple offender adjudication was conducted
and Defendant was again found to be a fourth-felony offender. After the
sentencing delay was explicitly waived, the trial court judge imposed a sentence of
life without the benefit of probation or suspension of sentence. Defendant then
filed a Motion to Reconsider Sentence and the trial court conducted a hearing on
July 22, 2021. At that time, Defendant had pending charges of second degree
murder, attempted second degree murder, and possession of a firearm by a
convicted felon. The trial judge denied Defendant’s Motion to Reconsider
Sentence without hearing argument on the merits, reasoning that the motion would
essentially become moot if Defendant was subsequently convicted on the pending
charges. This appeal timely followed.
STANDARD OF REVIEW
“An appellate court reviewing a claim of excessive sentence must determine
whether the trial court adequately complied with the statutory sentencing
guidelines, as well as whether the facts of the case warrant the sentence imposed.”
State v. Batiste, 06–0875, pps.18–19 (La. App 4 Cir. 12/20/06), 947 So.2d 810,
820–821; see also La. Code Crim. Proc. art. 894.1.
DISUCSSION/ERRORS PATENT
In accordance with La. C.Cr.P. art. 920, this Court reviews all criminal
appeals for errors patent. An error patent is one “that is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the
evidence.” La. C.Cr.P. art. 920(2).
Defendant assigns one error on appeal, namely that “[t]he district court erred
in deferring ruling on Defendant’s long-pending Motion to Reconsider Sentence
until after the resolution of an unrelated matter.” As such, Defendant argues that
this Court should remand the matter and instruct the trial court to make a final
ruling on his Motion to Reconsider Sentence. For the reasons that follow, we
disagree with Defendant’s assignment of error; however, we find that this matter
should be remanded for the trial court to rule upon the merits of Defendant’s
Motion to Reconsider Sentence.
The transcript of the trial court’s oral judgment states:
Motion to Reconsider is denied at this time…. Mr. Kennedy [defense counsel], at this time, I would reconsider your request in the event your client is found guilty of anything less than manslaughter on the open case.
I’m going to note your objection. And again, if he’s convicted [of second degree murder and sentenced to] life, this matter is moot. If he’s convicted of manslaughter and multiple billed, this matter is moot. If he’s convicted of anything less than that, sir, re-file your motion possibly. If it comes back not guilty, I’ll entertain a reconsideration of your re-file.
The district court did not defer ruling on Defendant’s Motion to Reconsider
Sentence. The trial judge plainly denied the Motion and advised defense counsel
to consider re-filing after the adjudication of Defendant’s pending charges.
Defendant’s contention that the trial court failed to provide a final, appealable
judgment on his Motion to Reconsider Sentence and effectively delayed his right
to appeal is without merit. The trial court’s denial of Defendant’s Motion was predicated upon the
result of pending, unrelated charges against Defendant rather than a meritorious
consideration of the aggravating and/or mitigating circumstances as required by
La. Code Crim. Proc. art. 894.1. The statute states that in sentencing a convicted
felon, “…[certain] grounds, while not controlling the discretion of the court, shall
be accorded weight in its determination…” See La. Code. Crim. Proc. art.
894.1(B). “The purpose of the sentencing guidelines is to afford a reviewing court
some insight into the reasoning process of the sentencing judge, so that the
propriety of the sentence can be better evaluated.” State v. Charles, 18-222, p. 12
(La. App. 3 Cir. 5/1/19), 270 So.3d 859, 868, quoting State v. See, 462 So.2d 1369,
1372 (La. App. 3 Cir. 1985), writ denied, writ granted in part, judgment set aside
in part, 467 So. 2d 525 (La.1985). “The record should reflect that the trial court
considered not only the seriousness of the crime and the defendant's criminal
history, but also the defendant's personal history (age, mental status, dependents,
family ties, employment record, emotional and physical health), and his potential
for rehabilitation.” Id. at 869, quoting State v. See, 462 So.2d 1369, 1372 (La.
App. 3 Cir.1985), writ denied, writ granted in part, judgment set aside in part, 467
So.2d 525 (La.1985); citing State v. Quebedeaux, 424 So.2d 1009 (La.1982). And
though “[i]t is not necessary for the trial court to articulate every factor presented
in Art. 894.1, the record must reflect that the trial court adequately considered
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STATE OF LOUISIANA * NO. 2022-KA-0495
VERSUS * COURT OF APPEAL KEITH KISACK * FOURTH CIRCUIT * STATE OF LOUISIANA *******
APPEAL FROM CRIMINAL DISTRICT COURT ORLEANS PARISH NO. 510-800, SECTION “C” Honorable Benedict Willard, Judge ****** Judge Daniel L. Dysart ****** (Court composed of Judge Daniel L. Dysart, Judge Sandra Cabrina Jenkins, Judge Rachael D. Johnson)
Jeff Landry ATTORNEY GENERAL J. Taylor Gray Grant L. Willis ASSISTANT ATTORNEYS GENERAL LOUISIANA DEPARTMENT OF JUSTICE P.O. Box 94005 Baton Rouge, LA 70804
COUNSEL FOR STATE/APPELLEE
Christopher A. Aberle LOUISIANA APPELLATE PROJECT P.O. Box 8583 Mandeville, LA 70470-8583
COUNSEL FOR DEFENDANT/APPELLANT
VACATED AND REMANDED NOVEMBER 16, 2022 DLD This is an appeal of the district court’s July 22, 2021 judgment denying SCJ Defendant’s, Keith Kisack, Motion to Reconsider Sentence. For the following RDJ reasons, we vacate the judgment and remand the matter to the trial court to conduct
further proceedings consistent with this opinion.
FACTS/PROCEDURAL HISTORY
Defendant was charged with and found guilty of possession of contraband
(namely, a cell phone) in prison. Thereafter, the State filed a multiple-offender bill
based on Defendant’s contraband charge and his prior felony convictions for
possession of a firearm by a felon (2001), aggravated battery (1995), and illegal
discharge of a firearm (1993). The penalty for a fourth-felony offender under the
multiple-offender statute is twenty (20) years to life. The court imposed the
maximum sentence of life in prison without the possibility of parole. Defendant
appealed and this Court ultimately amended the sentence to include the possibility
of parole but affirmed the lifetime term imposed by the trial court. See State v.
Kisack, 2015-0083 (La. App. 4 Cir. 3/30/16), 190 So.3d 806. On writ of certiorari,
the Louisiana Supreme Court found that the trial court failed to observe the
mandatory delay before sentencing Defendant to the maximum term of life
1 imprisonment, reversed this Court’s ruling in part to vacate the habitual offender
adjudication, and remanded the matter to the trial court to conduct further
proceedings consistent with its findings. See State v. Kisack, 2018-0797 (La.
10/18/17), 236 So.3d 1201 (per curium), cert denied, ___ U.S. ____, 138 S.Ct.
1175, 200 L.Ed.2d 322. A second multiple offender adjudication was conducted
and Defendant was again found to be a fourth-felony offender. After the
sentencing delay was explicitly waived, the trial court judge imposed a sentence of
life without the benefit of probation or suspension of sentence. Defendant then
filed a Motion to Reconsider Sentence and the trial court conducted a hearing on
July 22, 2021. At that time, Defendant had pending charges of second degree
murder, attempted second degree murder, and possession of a firearm by a
convicted felon. The trial judge denied Defendant’s Motion to Reconsider
Sentence without hearing argument on the merits, reasoning that the motion would
essentially become moot if Defendant was subsequently convicted on the pending
charges. This appeal timely followed.
STANDARD OF REVIEW
“An appellate court reviewing a claim of excessive sentence must determine
whether the trial court adequately complied with the statutory sentencing
guidelines, as well as whether the facts of the case warrant the sentence imposed.”
State v. Batiste, 06–0875, pps.18–19 (La. App 4 Cir. 12/20/06), 947 So.2d 810,
820–821; see also La. Code Crim. Proc. art. 894.1.
DISUCSSION/ERRORS PATENT
In accordance with La. C.Cr.P. art. 920, this Court reviews all criminal
appeals for errors patent. An error patent is one “that is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the
evidence.” La. C.Cr.P. art. 920(2).
Defendant assigns one error on appeal, namely that “[t]he district court erred
in deferring ruling on Defendant’s long-pending Motion to Reconsider Sentence
until after the resolution of an unrelated matter.” As such, Defendant argues that
this Court should remand the matter and instruct the trial court to make a final
ruling on his Motion to Reconsider Sentence. For the reasons that follow, we
disagree with Defendant’s assignment of error; however, we find that this matter
should be remanded for the trial court to rule upon the merits of Defendant’s
Motion to Reconsider Sentence.
The transcript of the trial court’s oral judgment states:
Motion to Reconsider is denied at this time…. Mr. Kennedy [defense counsel], at this time, I would reconsider your request in the event your client is found guilty of anything less than manslaughter on the open case.
I’m going to note your objection. And again, if he’s convicted [of second degree murder and sentenced to] life, this matter is moot. If he’s convicted of manslaughter and multiple billed, this matter is moot. If he’s convicted of anything less than that, sir, re-file your motion possibly. If it comes back not guilty, I’ll entertain a reconsideration of your re-file.
The district court did not defer ruling on Defendant’s Motion to Reconsider
Sentence. The trial judge plainly denied the Motion and advised defense counsel
to consider re-filing after the adjudication of Defendant’s pending charges.
Defendant’s contention that the trial court failed to provide a final, appealable
judgment on his Motion to Reconsider Sentence and effectively delayed his right
to appeal is without merit. The trial court’s denial of Defendant’s Motion was predicated upon the
result of pending, unrelated charges against Defendant rather than a meritorious
consideration of the aggravating and/or mitigating circumstances as required by
La. Code Crim. Proc. art. 894.1. The statute states that in sentencing a convicted
felon, “…[certain] grounds, while not controlling the discretion of the court, shall
be accorded weight in its determination…” See La. Code. Crim. Proc. art.
894.1(B). “The purpose of the sentencing guidelines is to afford a reviewing court
some insight into the reasoning process of the sentencing judge, so that the
propriety of the sentence can be better evaluated.” State v. Charles, 18-222, p. 12
(La. App. 3 Cir. 5/1/19), 270 So.3d 859, 868, quoting State v. See, 462 So.2d 1369,
1372 (La. App. 3 Cir. 1985), writ denied, writ granted in part, judgment set aside
in part, 467 So. 2d 525 (La.1985). “The record should reflect that the trial court
considered not only the seriousness of the crime and the defendant's criminal
history, but also the defendant's personal history (age, mental status, dependents,
family ties, employment record, emotional and physical health), and his potential
for rehabilitation.” Id. at 869, quoting State v. See, 462 So.2d 1369, 1372 (La.
App. 3 Cir.1985), writ denied, writ granted in part, judgment set aside in part, 467
So.2d 525 (La.1985); citing State v. Quebedeaux, 424 So.2d 1009 (La.1982). And
though “[i]t is not necessary for the trial court to articulate every factor presented
in Art. 894.1, the record must reflect that the trial court adequately considered
them in particularizing the sentence to the defendant.” Id., quoting State v. Kohl,
524 So.2d 781, 786 (La. App. 3 Cir. 1988), citing State v. Cottingin, 476 So.2d
1184 (La. App. 3 Cir. 1985). “The judge should indicate that he considered not
only the factors militating for incarceration, but also any factor mitigating against
it.” Id. at 870, quoting State v. See, 462 So.2d 1369, 1372 (La. App. 3 Cir.1985), writ denied, writ granted in part, judgment set aside in part, 467 So.2d 525
(La.1985); citing State v. Ray, 423 So.2d 1116 (La.1982).
Here, the trial court failed to consider any of the statutory factors when
denying Defendant’s Motion to Reconsider Sentence. Instead, argument on the
merits was disallowed by the court, reasoning that a conviction under the pending
charges would result in the imposition of a mandatory life-sentence and that any
disposition on the merits of Defendant’s Motion at that time would ultimately
become moot by way of a successive conviction. The list of factors that the trial
court must consider does not include pending criminal charges against the
defendant.
It is clear that the trial court’s denial of Defendant’s Motion to Reconsider
Sentence did not adequately comply with the requirements of Article 894.1. While
not bound to examine all of the factors contained listed in Article 894.1, the court
is required to consider both aggravating and mitigating factors. However, the
transcript does not contain or reflect any mention of Article 894.1 factors. It is
clear that the trial court’s ruling did not properly assess the militating/mitigating
factors as is statutorily required.
DECREE
For the foregoing reasons, the trial court’s July 22, 2021 judgment denying
Defendant’s Motion to Reconsider Sentence is vacated and remanded to the trial
court for ruling on the merits, reserving his right to appeal his sentence once the
trial court has ruled.
VACATED AND REMANDED