State of Louisiana v. Kenneth Fulford

• Court: Louisiana Court of Appeal
• Decided: January 15, 2020
• Docket: 53,141-KA
• Status: Published

Opinion

Judgment rendered January 15, 2020. Application for rehearing may be filed within the delay allowed by Art. 922, La. C. Cr. P.

No. 53,141-KA

COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA

*****

STATE OF LOUISIANA Appellee

versus

KENNETH FULFORD Appellant

Appealed from the Fifth Judicial District Court for the Parish of Richland, Louisiana Trial Court No. F-2018-97

Honorable Clay Hamilton, Judge

LOUISIANA APPELLATE PROJECT Counsel for Appellant Carey J. Ellis, III

JOHN M. LANCASTER District Attorney

AMANDA M. WILKINS Counsel for Appellee KENNETH D. WHEELER Assistant District Attorneys

Before STEPHENS, MCCALLUM, and THOMPSON, JJ. THOMPSON, J.

This criminal appeal arises from the Fifth Judicial District Court,

Richland Parish, the Honorable John Clay Hamilton presiding. The

defendant, Kenneth Fulford, pled guilty to aggravated arson and aggravated

cruelty to animals. He was sentenced to concurrent sentences of 12 years at

hard labor, a $500.00 fine and court costs for aggravated arson, and 4 years

at hard labor for aggravated cruelty to animals, with no fine or costs.1 No

motion to reconsider sentence was filed. The defendant now appeals

challenging only his sentences. For the following reasons, we affirm the

defendant’s convictions and sentences.

FACTS

Kenneth Fulford was initially charged by bill of information with

aggravated arson, attempted first degree murder, aggravated cruelty to

animals and insurance fraud. The charges arose from a fire set by Fulford on

April 6, 2017, in his mobile home that was occupied at the time by Fulford,

his disabled wife, Lisa, and her service dog. Fulford lit a paper towel on fire

and placed it in the spare bedroom while his wife was watching television.

When Mrs. Fulford smelled smoke, Fulford went outside with the dog to

check it out and returned stating he did not find anything burning. Once

smoke began to fill the mobile home, Fulford stood outside at the door and

told his wife to come to his voice to get out. Mrs. Fulford suffered from

numerous medical conditions and walked with a walker. At the time of the

fire, she could not find her glasses, but somehow managed to get to the door

1 As a part of the initial plea bargain, it was agreed that Fulford would pay $30,690.00 in restitution to State Farm for money paid by it as a result of the fire. However, during sentencing, the trial court declined to impose the requirement of restitution as part of Fulford’s sentence. without assistance and Fulford eventually helped her out of the mobile

home. Mrs. Fulford sustained third degree burns to her back and shoulder

area. Mrs. Fulford’s service dog perished in the fire and was found in the

hallway near the master bedroom. Fulford was a volunteer fireman and,

during the investigation, admitted that he had previously started fires twice

at two of his residences and to his truck because he was tired of making

payments on it. Fulford also admitted to using the same method for setting

the previous fires (lighting paper towels on fire). Fulford admitted setting

the instant fire, but denied that he intended to kill his wife. Fulford

subsequently agreed, however, that he was trying to end her pain and

suffering caused by her medical conditions.

A plea agreement was reached whereby, on December 12, 2018,

Fulford pled guilty to aggravated arson and aggravated cruelty to animals in

exchange for the state’s dismissing the remaining charges of attempted first

degree murder and insurance fraud. There was no agreement as to

sentencing except that the sentences would run concurrent, and the court

ordered a presentence investigation report. On February 20, 2019, Fulford

was sentenced to 12 years at hard labor and a fine of $500.00 plus court

costs on the aggravated arson conviction and 4 years at hard labor on the

cruelty to animals conviction, to run concurrent, with credit for time served.

No motion to reconsider sentence was filed. This appeal followed.

DISCUSSION

In his sole assignment of error, Fulford contends that, as a first-felony

offender, his concurrent sentences of 12 and 4 years at hard labor are

excessive. Fulford submits that the trial court failed to fully consider

mitigating factors including: 1) Fulford did not intend to hurt his wife or his 2 dog; 2) he attempted to help his wife when she came to the door; 3) the

numerous letters from friends and family, including his wife, requesting

leniency in sentencing; and 4) his family requested no jail time be imposed

on Fulford.

The state submits that Fulford is procedurally barred from challenging

his sentences due to his guilty plea and the court advised Fulford that he

could not appeal the length or severity of his sentence. Additionally, Fulford

failed to file a motion to reconsider sentence. Even if Fulford was not barred

from review of his sentence, the state argues that the sentences fall well

within the statutory sentencing ranges and the court adequately evaluated the

relevant factors under La. C. Cr. P. art. 894.1. Fulford intentionally set fire

to his home occupied by his disabled wife, with the intent to murder his wife

and killed her service dog. The state argues that at the last minute, Fulford

had a change of heart and helped his wife out of the door of the burning

trailer. The 12- and 4-year sentences do not shock the sense of justice.

Applicable law:

Where a specific sentence or a sentencing cap has been agreed upon

as a consequence of a plea bargain, a sentence imposed within the agreed

range cannot be appealed as excessive if that right has not been specifically

reserved; however, when the right to appeal has been mentioned by the trial

court during the plea colloquy, even though there is an agreed sentence or

sentencing cap, the defendant’s sentence may be reviewed. La. C. Cr. P. art.

881.2; State v. Conway, 50,596 (La. App. 2 Cir. 5/18/16), 196 So. 3d 635;

State v. Taylor, 44,205 (La. App. 2 Cir. 5/13/09), 12 So. 3d 482, 484; State

v. Fizer, 43,271 (La. App. 2 Cir. 6/4/08), 986 So. 2d 243; State v. Martin,

43,243 (La. App. 2 Cir. 6/4/08), 985 So. 2d 1253. 3 Where, however, there is no agreement as to a specific sentence or a

sentencing cap, the sentence is subject to appellate review. State v. Lindsey,

50,324 (La. App. 2 Cir. 2/24/16), 189 So. 3d 1104, 1109. Furthermore,

appeals are favored and there is a constitutional right in Louisiana to an

appeal. State v. Simmons, 390 So. 2d 504 (La. 1980); State v. Adger, 35,414

(La. App. 2 Cir. 12/5/01), 803 So. 2d 304, 308, writ denied, 03-2458 (La.

10/1/04), 883 So. 2d 997. In pursuing this appeal, Fulford is within his

rights.

An appellate court utilizes a two-pronged test in reviewing a sentence

for excessiveness: 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 trial judge

is not required to list every aggravating or mitigating circumstance so long

as the record reflects that he adequately considered the guidelines of the

article. State v. Smith, 433 So. 2d 688 (La. 1983); State v. DeBerry, 50,501

(La. App. 2 Cir. 4/13/16), 194 So. 3d 657, writ denied, 16-0959 (La. 5/1/17),

219 So. 3d 332. 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. Where the record clearly shows an adequate factual basis for the

sentence imposed, remand is unnecessary even where there has not been full

compliance with La. C. Cr. P. art. 894.1. State v. Lanclos, 419 So. 2d 475

(La. 1982); State v. DeBerry, 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. DeBerry, supra. There is no requirement that specific

matters be given any particular weight at sentencing. State v. DeBerry, 4 supra; State v. Shumaker, 41,547 (La. App. 2 Cir. 12/13/06), 945 So. 2d 277,

writ denied, 07-0144 (La. 9/28/07), 964 So. 2d 351.

Second, the court must determine whether the sentence is

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

it is grossly out of proportion to the seriousness of the offense or nothing

more than a purposeless and needless infliction of pain and suffering. State

v. Dorthey, 623 So. 2d 1276 (La. 1993); State v. Bonanno, 384 So. 2d 355

(La. 1980). 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. DeBerry, 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. 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. 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. Allen, supra. 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.

Jackson, 48,534 (La. App. 2 Cir. 1/15/14), 130 So. 3d 993.

When two or more convictions arise from the same act or transaction,

or constitute parts of a 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 5 arising out of a single course of conduct are not mandatory, and consecutive

sentences under those circumstances are not necessarily excessive. State v.

Allen, 52,318 (La. App. 2 Cir. 11/14/18), 260 So. 3d 703. It is within the

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

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. Here, the trial court ordered

the sentences to run concurrently.

La. R.S. 14:51(B) provides whoever commits the crime of aggravated

arson shall be imprisoned at hard labor for not less than 6, nor more than 20

years, and shall be fined not more than $25,000. 2 years of such

imprisonment at hard labor shall be without benefit of parole, probation, or

suspension of sentence. La. R.S. 14:51(B).

La. R.S. 14:102.1(B)(6) provides whoever commits the crime of

aggravated cruelty to animals shall be fined not less than $5,000, nor more

than $25,000 or imprisoned, with or without hard labor, for not less than one

1 year, nor more than 10 years, or both.

Application of law to facts:

Here, despite the trial court’s statement during the guilty plea

colloquy that Fulford could not appeal the length or severity of his

sentences, Fulford was advised at sentencing that he had the right to appeal

his sentence. Further, the record discloses no agreement as to a specific

sentence or cap. The court expressly stated that sentencing on both

convictions was “whatever the court deems to be appropriate” under the

statutes. Pleading guilty to a lesser charge, or in exchange for dismissal of

other charges, without pleading to a specific sentence or sentencing cap,

6 does not constitute agreeing to a sentence “set forth in the record at the time

of the plea,” and as such, is appealable for constitutional excessiveness.

In addition, Fulford’s failure to file a motion to reconsider sentence,

relegates his review to constitutional excessiveness. The trial court

adequately complied with La. C. Cr. P. art. 894 in this matter. Regarding

constitutional excessiveness, these midrange concurrent sentences are not

disproportionate to the severity of the offenses, nor do they shock the sense

of justice.

At sentencing, the trial court stated that it had reviewed the

presentence investigation report. The court specifically cited information in

the report concerning previous house fires set by Fulford and his last minute

change of heart, noting that Fulford “responded affirmatively to the question

of whether he set the fire to end his wife’s pain and suffering.” The court

then reviewed the factors of La. C. Cr. P. art. 894.1 and summarized the

offense, noting that Fulford did not enter the home as it filled thicker and

thicker with smoke, knowing of his wife’s diminished capacity to walk and

that the dog was inside. Fulford did nothing to assist his wife until she

appeared at the door. The court found that it was “clearly and undeniably”

forseeable that human life would be endangered and that the service dog was

tortured to the point of death by fire and smoke. The court found Fulford in

need of correctional treatment and that a lesser sentence would deprecate the

seriousness of this offense.

The court specifically acknowledged that it read and considered the

letters submitted on Fulford’s behalf. Of particular interest to the court was

that the “theme” of the letters requesting no incarceration was that help was

needed to care for Mrs. Fulford. The court stated: 7 [H]owever, the Court finds that what these family members and friends are suggesting is that rather than incarcerating this defendant for his criminal actions that he be placed in the position of caretaker of the very person that he exposed to possible harm by his own actions in setting fire to the house that she was in, knowing that her physical ability to egress that house was very limited.

The court further noted that a suspended sentence was not allowable

under the law and law enforcement officers had recommended the maximum

sentence under the law.

Fulford benefited enormously from the dismissal of an attempted first

degree murder charge, especially in light of his admission that he was trying

to end his wife’s suffering. Fulford, knowledgeable and experienced in fires

and arson, intentionally set fire to his home while his barely mobile wife sat

watching television. He did not enter the trailer and help her escape; rather,

he waited at the door calling to her and when she, amazingly, appeared,

Fulford pulled her from the home he set ablaze and abandoned. Fulford

knew that his wife’s service dog was inside the trailer and made no attempt

to save it. Concurrent sentences of 12 and 4 years at hard labor, plus the

nominal fine of $500 is not excessive.

Error Patent:

The applicable sentencing statute for aggravated arson, La. R.S.

14:51(B), requires that the first 2 years of the sentence be served without

benefit of probation, parole or suspension of sentence. The trial court stated

this restriction when advising Fulford of his sentencing exposure, but failed

to reiterate it upon imposition of sentence. This error does not require

corrective action as it is self-activating under La. R.S. 15:301.1. State v.

Kennon, 52,661 (La. App. 2 Cir. 5/22/19), 273 So. 3d 611 620; State v.

8 Casaday, 51,947 (La. App. 2 Cir. 4/11/18), 247 So. 3d 1057, writ denied,

18-0700 (La. 11/5/18), 255 So. 3d 1047; State v. Garner, 46,723 (La. App. 2

Cir. 11/2/11), 78 So. 3d 186. In addition, the minutes correctly reflect the

statutory restriction, thus, no correction to the minutes is required.

CONCLUSION

For the foregoing reasons, defendant’s convictions and sentences are

affirmed.