State of Louisiana v. Kenneth Lakieth Milligan

• Court: Louisiana Court of Appeal
• Decided: November 5, 2008
• Docket: KA-0008-0571
• Status: Unknown

Opinion

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

08-571

STATE OF LOUISIANA

VERSUS

KENNETH LAKIETH MILLIGAN

**********

APPEAL FROM THE SEVENTH JUDICIAL DISTRICT COURT PARISH OF CONCORDIA, NO. 05-1199 HONORABLE LEO BOOTHE, DISTRICT JUDGE

OSWALD A. DECUIR JUDGE

Court composed of Ulysses Gene Thibodeaux, Chief Judge, and Oswald A. Decuir and Marc T. Amy, Judges.

Thibodeaux, Chief Judge, concurs and assigns written reasons.

AFFIRMED.

John Frederick Johnson District Attorney Seventh Judicial District 4001 Carter Street, Suite 9 Vidalia, La 71373 (318) 336-5526 Counsel for Appellee: State of Louisiana

Ann S. Siddall Assistant District Attorney 4001 Carter Street, Suite 9 Vidalia, LA 71373 (318) 336-5526 Counsel for Appellee: State of Louisiana Charles D. Jones Jones & Charles 141 Desiard Street, Suite 315 Monroe, LA 71201 (318) 325-2644 Counsel for Defendant/Appellant: Kenneth Lakieth Milligan DECUIR, Judge.

The Defendant, Kenneth Lakieth Milligan, was charged by bill of information

with possession of cocaine in violation of La.R.S. 40:967. The Defendant entered a

plea of guilty and was sentenced to serve five years with the Louisiana Department

of Corrections. The Defendant is now before this court on appeal, asserting that his

sentence is excessive.

In his only assignment of error, the Defendant contends the sentence imposed

is excessive and shows little regard for the sentencing guidelines of La.Code Crim.P.

art. 894.1. The Defendant argues that the trial court departed from the Louisiana

Sentencing Guidelines, Section 101(A), and sentenced him much more harshly than

the other co-defendants in the case. The Defendant additionally asserts that the trial

court failed to consider certain mitigating circumstances. He asserts that he is a

single father of an infant whose mother has recently died; he is employed, and he is

enrolled at Northwestern University. The Defendant further asserts the trial court

failed to consider that his criminal conduct was the result of circumstances unlikely

to recur, his character and attitude indicate he is unlikely to commit another crime,

and imprisonment would impose excessive hardship on his dependents.

Our review of the record shows that while defense counsel mentioned certain

considerations at the sentencing hearing, no evidence was offered to prove any of

these potentially mitigating factors. In fact, no testimony or evidence of any kind was

offered on the Defendant’s behalf at the sentencing hearing.

Additionally, the Defendant did not file a motion to reconsider sentence as

mandated by La.Code Crim.P. art. 881.1 for purposes of appeal. “Under Article

881.1, a defendant must file a motion to reconsider the sentence setting forth the

specific grounds upon which the motion is based in order to raise an excessive

sentence claim on appeal. State v. Mims, 619 So.2d 1059 (La.1993).” State v. Theriot, 04-897, p. 8 (La.App. 3 Cir. 2/9/05), 893 So.2d 1016, 1021. Accordingly,

without the required motion, this court will conduct only a bare excessive sentence

review. State v. Stevens, 06-818 (La. App. 3 Cir. 1/31/07), 949 So.2d 597.

The Defendant pled guilty to possession of cocaine in an amount greater than

twenty-eight grams but less than two hundred grams. The penalty range for this

offense is a term of imprisonment of not less than five years, nor more than thirty

years, and a fine of not less than fifty thousand dollars, nor more than one hundred

fifty thousand dollars. La.R.S. 40:967(F)(1)(a). The Defendant was sentenced to

serve five years, the minimum sentence. “A minimum sentence compelled by

Louisiana law is presumed not to be excessive or violative of the guidelines.” State

v. Drane, 36,230, p. 11 (La.App. 2 Cir. 9/18/02), 828 So.2d 107, 114, writ denied, 02-

2619 (La. 3/28/03), 840 So.2d 566. The record before us is void of any evidence to

rebut that presumption. Accordingly, we find the five year minimum sentence

imposed in this case is not excessive.

We find no merit to the arguments presented by the Defendant in this appeal.

Additionally, in accordance with La.Code Crim.P. art 920, we have reviewed this

appeal for errors patent on the face of the record and find none. For the above and

foregoing reasons, the Defendant’s conviction and sentence are affirmed.

This opinion is NOT DESIGNATED FOR PUBLICATION. Rule 2-16.3, Uniform Rules, Courts of Appeal.

2 STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

THIBODEAUX, Chief Judge, concurring.

Though the Defendant has been arrested on previous felony charges, this

is his first felony conviction. Were it not for the provisions of La.R.S. 40:967(G), this

Defendant’s transgression, while serious, would warrant a suspension of the imposed

sentence.

For the foregoing reason, I respectfully concur.