Judgment rendered September 25, 2019. Application for rehearing may be filed within the delay allowed by Art. 992, La. C. Cr. P.
No. 52,949-KA
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
STATE OF LOUISIANA Appellee
versus
KENNETH PAUL FORD Appellant
Appealed from the Fourth Judicial District Court for the Parish of Ouachita, Louisiana Trial Court No. 17F0438
Honorable Clarence Wendell Manning, Judge
LOUISIANA APPELLATE PROJECT Counsel for Appellant By: Douglas Lee Harville
ROBERT STEPHEN TEW Counsel for Appellee District Attorney
MICHAEL J. FONTENOT Assistant District Attorney
Before WILLIAMS, MOORE, and COX, JJ. COX, J.
This criminal appeal arises from the Fourth Judicial District Court,
Ouachita Parish, Louisiana. Kenneth Paul Ford was convicted of two counts
of simple burglary and was sentenced to 12 years’ imprisonment at hard
labor for both convictions. The sentences were ordered to be served
concurrently. Ford now appeals his sentences. For the following reasons,
we affirm his convictions and sentences.
FACTS
On April 4, 2017, Ford was charged by bill of information with two
counts of simple burglary. The bill alleged that these crimes occurred on
February 11, 2017. The bill further alleged that the burglaries were of a
2012 GMC Sierra and a 2003 Ford F350. The trial commenced on August
16, 2017. Evidence at trial showed that on February 11, 2017, Ford was
seen on the property of Car Zone USA (hereinafter referred to as “Car
Zone”).
According to the testimony of Dewayne Dillard, an employee of Car
Zone, at around 6:00 p.m. on February 11, 2017, Ford met Dillard at Car
Zone. After the meeting, Dillard noticed Ford pumping gas at a gas station
next door to Car Zone. Robert Fuller, the owner of Car Zone, testified that
he received a phone call later that evening about suspicious activity on his
property. When Fuller arrived on the property, he saw a truck that did not
belong to Car Zone parked between his property and the adjacent gas station.
The truck’s hood was up, and there was an ATV in the back of the truck.
Fuller discovered that a 2012 GMC Sierra owned by Car Zone had been
vandalized. All four doors of the vehicle were open and the trim was ripped
out. Inside the vehicle, Fuller found a pack of cigarettes, a screwdriver on the backseat floorboard, and a cellphone on the backseat. Fuller walked
around the property and located two additional vehicles: a Chevrolet
Suburban and a Ford Expedition. Each of these vehicles had their back
hatches open, doors open, and the lights on inside. According to Mr. Fuller,
a Ford F350 also had its radio “popped out of it and the wires and stuff
hanging and the radio was on the floor.” Fuller found Ford inside a black
Lincoln Navigator, with the doors closed. Ford informed Fuller that his
vehicle had broken down and he was waiting on parts for his vehicle.
However, when pressed, Ford could not identify who he had called for the
parts. Dillard testified that sometime thereafter he returned to the property.
Dillard also saw the cellphone on the backseat of the GMC Sierra. Dillard,
who had Ford’s cellphone number, used his phone to dial Ford’s phone
number and the phone on the seat rang.
While still surveying the lot, Fuller called the police. When the police
arrived, Fuller and the officers viewed the surveillance footage. The footage
showed Ford near the vehicles with the hatches open. The footage did not
show Ford enter the 2003 Ford F350, but this vehicle was located directly
behind the vehicles with the open hatches.
Fuller testified that the person he observed on February 11, 2017, was
the same person he observed on the video surveillance footage, and the same
person he saw in open court. At the conclusion of the trial, Ford was found
guilty as charged on two counts of simple burglary.
On December 18, 2017, Ford was sentenced pursuant to a pre-
sentence investigation report. In accordance with La. C. Cr. P. art 894.1, the
trial court found that the present offenses were Ford’s third felony
conviction. The trial court considered Ford’s criminal history and noted that 2 he had previously been convicted of three counts of illegal possession of
stolen things in two separate incidents, both of which resulted in probation
revocations. The trial court also noted that Ford has prior misdemeanor
convictions for issuing worthless checks, failure to pay child support,
careless operation of a vehicle, failure to report an accident, and theft. All
but one of the misdemeanor convictions resulted in probation revocations or
unsatisfactory terminations. The trial court noted that on the date of
sentencing, Ford had outstanding bench warrants for illegal possession of
stolen things, aggravated assault, domestic abuse battery, and theft of utility
services. The trial court recited the facts of the case and found, as
aggravating factors, that there was an undue risk that Ford would commit
another crime during any period of a suspended sentence or probation; that
Ford is in need of correctional treatment or a custodial environment that
could be provided most effectively by a commitment to an institution; and,
that any lesser sentence would deprecate the seriousness of the offense.
Pursuant to the pre-sentence investigation report, the trial court
considered Ford’s social history. The trial court noted that Ford graduated
from high school in 1989, obtained an associate’s degree in mechanical
science, and completed a program in automotive technology. Additionally,
the trial court stated that Ford has maintained employment. The trial court
also noted that Ford has abused drugs in the past and restitution was not
requested by the victim. In further aggravation, the trial court pointed out
that Ford’s criminal history revealed that he committed crimes for economic
gain although he had the ability to earn income. Ford was then sentenced to
concurrent sentences of 12 years at hard labor. Trial counsel filed an
untimely motion to reconsider sentence, where he argued that Ford’s 3 sentence was unduly harsh. The trial court denied Ford’s motion. This
appeal ensued.
DISCUSSION
Excessive Sentence
Ford argues that the trial court erred by imposing an
unconstitutionally harsh sentence. Ford argues that his 12-year maximum
sentence is excessive. Given that he suffers from a drug addiction and that
many of his crimes are related to his addiction, Ford contends that the
sentence, which was made without comment from him or his attorney, fails
to provide him a reasonable opportunity to seek treatment for his drug
addiction and to re-enter society as a productive member. Additionally,
Ford contends that he is not the worst of offenders and as such, the
maximum sentence is excessive.
In response, the State asserts that the trial court took into account the
entirety of Ford’s criminal history, and as this was his third felony
conviction, the sentence was warranted. The State notes that Ford could
have been charged with up to six counts of simple burglary but was only
charged with two. The State argues that the trial court gave Ford concurrent
sentences instead of consecutive. Thus, Ford could have received more jail
time.
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Judgment rendered September 25, 2019. Application for rehearing may be filed within the delay allowed by Art. 992, La. C. Cr. P.
No. 52,949-KA
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
STATE OF LOUISIANA Appellee
versus
KENNETH PAUL FORD Appellant
Appealed from the Fourth Judicial District Court for the Parish of Ouachita, Louisiana Trial Court No. 17F0438
Honorable Clarence Wendell Manning, Judge
LOUISIANA APPELLATE PROJECT Counsel for Appellant By: Douglas Lee Harville
ROBERT STEPHEN TEW Counsel for Appellee District Attorney
MICHAEL J. FONTENOT Assistant District Attorney
Before WILLIAMS, MOORE, and COX, JJ. COX, J.
This criminal appeal arises from the Fourth Judicial District Court,
Ouachita Parish, Louisiana. Kenneth Paul Ford was convicted of two counts
of simple burglary and was sentenced to 12 years’ imprisonment at hard
labor for both convictions. The sentences were ordered to be served
concurrently. Ford now appeals his sentences. For the following reasons,
we affirm his convictions and sentences.
FACTS
On April 4, 2017, Ford was charged by bill of information with two
counts of simple burglary. The bill alleged that these crimes occurred on
February 11, 2017. The bill further alleged that the burglaries were of a
2012 GMC Sierra and a 2003 Ford F350. The trial commenced on August
16, 2017. Evidence at trial showed that on February 11, 2017, Ford was
seen on the property of Car Zone USA (hereinafter referred to as “Car
Zone”).
According to the testimony of Dewayne Dillard, an employee of Car
Zone, at around 6:00 p.m. on February 11, 2017, Ford met Dillard at Car
Zone. After the meeting, Dillard noticed Ford pumping gas at a gas station
next door to Car Zone. Robert Fuller, the owner of Car Zone, testified that
he received a phone call later that evening about suspicious activity on his
property. When Fuller arrived on the property, he saw a truck that did not
belong to Car Zone parked between his property and the adjacent gas station.
The truck’s hood was up, and there was an ATV in the back of the truck.
Fuller discovered that a 2012 GMC Sierra owned by Car Zone had been
vandalized. All four doors of the vehicle were open and the trim was ripped
out. Inside the vehicle, Fuller found a pack of cigarettes, a screwdriver on the backseat floorboard, and a cellphone on the backseat. Fuller walked
around the property and located two additional vehicles: a Chevrolet
Suburban and a Ford Expedition. Each of these vehicles had their back
hatches open, doors open, and the lights on inside. According to Mr. Fuller,
a Ford F350 also had its radio “popped out of it and the wires and stuff
hanging and the radio was on the floor.” Fuller found Ford inside a black
Lincoln Navigator, with the doors closed. Ford informed Fuller that his
vehicle had broken down and he was waiting on parts for his vehicle.
However, when pressed, Ford could not identify who he had called for the
parts. Dillard testified that sometime thereafter he returned to the property.
Dillard also saw the cellphone on the backseat of the GMC Sierra. Dillard,
who had Ford’s cellphone number, used his phone to dial Ford’s phone
number and the phone on the seat rang.
While still surveying the lot, Fuller called the police. When the police
arrived, Fuller and the officers viewed the surveillance footage. The footage
showed Ford near the vehicles with the hatches open. The footage did not
show Ford enter the 2003 Ford F350, but this vehicle was located directly
behind the vehicles with the open hatches.
Fuller testified that the person he observed on February 11, 2017, was
the same person he observed on the video surveillance footage, and the same
person he saw in open court. At the conclusion of the trial, Ford was found
guilty as charged on two counts of simple burglary.
On December 18, 2017, Ford was sentenced pursuant to a pre-
sentence investigation report. In accordance with La. C. Cr. P. art 894.1, the
trial court found that the present offenses were Ford’s third felony
conviction. The trial court considered Ford’s criminal history and noted that 2 he had previously been convicted of three counts of illegal possession of
stolen things in two separate incidents, both of which resulted in probation
revocations. The trial court also noted that Ford has prior misdemeanor
convictions for issuing worthless checks, failure to pay child support,
careless operation of a vehicle, failure to report an accident, and theft. All
but one of the misdemeanor convictions resulted in probation revocations or
unsatisfactory terminations. The trial court noted that on the date of
sentencing, Ford had outstanding bench warrants for illegal possession of
stolen things, aggravated assault, domestic abuse battery, and theft of utility
services. The trial court recited the facts of the case and found, as
aggravating factors, that there was an undue risk that Ford would commit
another crime during any period of a suspended sentence or probation; that
Ford is in need of correctional treatment or a custodial environment that
could be provided most effectively by a commitment to an institution; and,
that any lesser sentence would deprecate the seriousness of the offense.
Pursuant to the pre-sentence investigation report, the trial court
considered Ford’s social history. The trial court noted that Ford graduated
from high school in 1989, obtained an associate’s degree in mechanical
science, and completed a program in automotive technology. Additionally,
the trial court stated that Ford has maintained employment. The trial court
also noted that Ford has abused drugs in the past and restitution was not
requested by the victim. In further aggravation, the trial court pointed out
that Ford’s criminal history revealed that he committed crimes for economic
gain although he had the ability to earn income. Ford was then sentenced to
concurrent sentences of 12 years at hard labor. Trial counsel filed an
untimely motion to reconsider sentence, where he argued that Ford’s 3 sentence was unduly harsh. The trial court denied Ford’s motion. This
appeal ensued.
DISCUSSION
Excessive Sentence
Ford argues that the trial court erred by imposing an
unconstitutionally harsh sentence. Ford argues that his 12-year maximum
sentence is excessive. Given that he suffers from a drug addiction and that
many of his crimes are related to his addiction, Ford contends that the
sentence, which was made without comment from him or his attorney, fails
to provide him a reasonable opportunity to seek treatment for his drug
addiction and to re-enter society as a productive member. Additionally,
Ford contends that he is not the worst of offenders and as such, the
maximum sentence is excessive.
In response, the State asserts that the trial court took into account the
entirety of Ford’s criminal history, and as this was his third felony
conviction, the sentence was warranted. The State notes that Ford could
have been charged with up to six counts of simple burglary but was only
charged with two. The State argues that the trial court gave Ford concurrent
sentences instead of consecutive. Thus, Ford could have received more jail
time.
When a defendant fails to file a motion to reconsider sentence in the
trial court, appellate review is limited to an analysis of the sentence for
constitutional excessiveness. State v. Mims, 619 So. 2d 1059 (La.
1993); State v. Jones, 52,672 (La. App. 2 Cir. 5/22/19), 273 So. 3d 585. La.
C. Cr. P. art. 881.1(E) precludes a defendant from presenting sentencing
4 arguments to the court of appeal which were not presented to the trial
court. State v. Pittman, 52,027 (La. App. 2 Cir. 4/11/18), 248 So. 3d 573.
Constitutional review is decided upon whether a sentence is illegal,
grossly disproportionate to the severity of the offense, or shocking to the
sense of justice. State v. Lobato, 603 So. 2d 739 (La. 1992); State v. Jones,
supra. A sentence violates La. Const. art. I, § 20, if it is grossly out of
proportion to the seriousness of the offense or nothing more than a
purposeless infliction of pain and suffering. State v. Dorthey, 623 So. 2d
12796 (La. 1993); State v. Jones, 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. Jones, supra; State v. Little,
50,776 (La. App. 2 Cir. 8/10/16), 200 So. 3d 400, writ denied, 16-1664 (La.
6/16/17), 219 So. 3d 341.
Whoever commits the crime of simple burglary shall be fined not
more than $2,000, imprisoned with or without hard labor for not more than
12 years, or both. La. R.S. 14:62.
The trial court did not err when sentencing Ford to 12 years at hard
labor on each count. As stated earlier, the trial court found that this was
Ford’s third felony conviction. Ford had an extensive criminal history that
included convictions for issuing worthless checks, failure to pay child
support, careless operation of a vehicle, failure to report an accident, and
theft. Most of these offenses resulted in a probation revocation. At the time
of trial, Ford had bench warrants out for illegal possession of stolen things,
aggravated assault, domestic abuse battery, and theft of utility services.
While it was true that Ford had a substance abuse problem, he had graduated 5 from high school, received an associate’s degree, and retained employment
throughout most of his criminal history. The trial court made note of the fact
that Ford’s crimes were done for economic gain, even though he was
employed. This indicated an undue risk for future criminal activity. As
such, the trial court’s sentence was not excessive. In fact, Ford’s sentence
could have been more severe. Ford received a conviction on two counts of
simple burglary. The trial court sentenced him to 12 years’ imprisonment
for each conviction. The sentences were to run concurrently. It was within
the trial court’s discretion to require these sentences to run consecutively.
By not ordering the sentences to run consecutively, the trial court showed
restraint in its sentencing of Ford.
We find that Ford’s sentence is not constitutionally excessive. Given
his lengthy criminal history, the sentence does not shock the sense of justice,
nor is it grossly disproportionate to the severity of the offense. This
assignment of error is without merit.
CONCLUSION
For the foregoing reasons, Kenneth Ford’s convictions and sentences
are affirmed.
AFFIRMED.