State of Louisiana v. Kevin Gaines

• Court: Louisiana Court of Appeal
• Decided: February 28, 2024
• Docket: 55,473-KA
• Status: Published

Opinion

Judgment rendered February 28, 2024. Application for rehearing may be filed within the delay allowed by Art. 922, La. C. Cr. P.

No. 55,473-KA

COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA

*****

STATE OF LOUISIANA Appellee

versus

KEVIN GAINES Appellant

Appealed from the First Judicial District Court for the Parish of Caddo, Louisiana Trial Court No. 340,106

Honorable Donald Edgar Hathaway, Jr., Judge

LOUISIANA APPELLATE PROJECT Counsel for Appellant By: Edward Kelly Bauman

JAMES E. STEWART, SR. Counsel for Appellee District Attorney

JASON WAYNE WALTMAN ALEX L. PORUBSKY VICTORIA T. WASHINGTON Assistant District Attorneys

Before PITMAN, STONE, and ROBINSON, JJ. ROBINSON, J.

Kevin Gaines appeals his aggregate sentence of 170 years,

complaining that it is excessive. We conclude that Gaines is not entitled to a

second appeal of his sentence, and affirm his sentence for a second time.

PROCEDURAL HISTORY

Following a bench trial, Gaines was found guilty as charged of one

count of pornography involving a juvenile under the age of 13 in violation of

La. R.S. 14:81.1(E)(1)(a) and (E)(5)(a), and three counts of molestation of a

juvenile under the age of 13 in violation of La. R.S. 14:81.2(A)(1) and

(D)(1). The crimes involved three separate victims on separate occasions.

For each molestation conviction, Gaines was sentenced to 50 years of

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

suspension of sentence. For the pornography conviction, he was sentenced

to 20 years of imprisonment at hard labor without the benefit of probation,

parole, or suspension of sentence. The court ordered all four sentences to be

served consecutively, which resulted in a total sentence of 170 years.

Gaines was also ordered to pay a fine of $10,000.

Gaines appealed his sentence, arguing that his total sentence is

excessive because of the consecutive sentences. This court concluded that

there was an adequate factual basis for the sentences imposed for the

pornography conviction and the molestation conviction concerning the same

victim, and that those two sentences were not constitutionally excessive.

This court then noted that on error patent review, the sentences for the two

remaining molestation convictions were illegal because the sentences of 50

years exceeded the maximum 40-year sentence available when those crimes

were committed. Accordingly, those two sentences were vacated, and the matter was remanded for resentencing. State v. Gaines, 54,383 (La. App. 2

Cir. 5/25/22), 338 So. 3d 1212 (“Gaines I”).

On June 6, 2022, the trial court resentenced Gaines to 40 years at hard

labor without benefits on the two remaining molestation convictions. The

sentences were ordered to be served consecutively with each other.

Five months later, the supreme court granted the State’s writ

application and reversed this court’s ruling on error patent review. State v.

Gaines, 22-00993 (La. 11/16/22), 349 So. 3d 990 (“Gaines II”). The

supreme court concluded that the 50-year sentences were within the penalty

range for those crimes when they were committed. Noting that the trial

court had already resentenced Gaines in accordance with this court’s

instructions, the supreme court vacated those sentences and reinstated the

sentences originally imposed by the trial court. The matter was remanded to

this court for further consideration of Gaines’s assignment of error which

had been partially pretermitted by this court.

On remand, this court considered whether the aggregate sentence of

170 years was excessive. This court determined that the trial court had

adequately complied with La. C. Cr. P. art. 894.1 when sentencing Gaines.

Next, this court concluded that each 50-year sentence for the two

molestation convictions, as well as the total sentence of 170 years, were not

excessive. Finally, this court recognized that the factors articulated by the

trial court provided justification for the decision to order the sentences to be

served consecutively, and the trial court did not abuse its great discretion in

imposing consecutive sentences. Accordingly, Gaines’s sentences were

affirmed, and this matter was remanded to the trial court to reinstate the

sentences that were originally imposed. State v. Gaines, 54,383 (La. App. 2 2 Cir. 2/22/23), 358 So. 3d 194, writ denied, 23-00363 (La. 6/21/23), 362 So.

3d 428 (“Gaines III”).

On March 28, 2023, the trial court vacated the sentences imposed on

June 6, 2022, and reinstated the original sentences that were to run

consecutively. Gaines filed a motion to reconsider sentence on April 19,

2023, in which he alleged that his sentence was unconstitutional. The

motion was denied.

DISCUSSION

Gaines has again appealed his sentence, arguing that his 170-year

aggregate sentence is constitutionally excessive. The State contends that this

court has already concluded that his sentences are not constitutionally

excessive. Thus, because his sentences are final, Gaines no longer has any

right of review. The State is correct.

There is a constitutional right to appeal (or to other review on the

record) in criminal cases in Louisiana when the defendant is to be subjected

to imprisonment or fine. La. Const. art. I, § 19; State v. Clark, 19-1077 (La.

5/1/20), 295 So. 3d 935.

However, as this court stated in State v. Bryant, 53,078, p. 5 (La. App.

2 Cir. 11/20/19), 285 So. 3d 513, 517, writ denied, 20-00077 (La. 7/31/20),

300 So. 3d 392:

The Constitution of the State of Louisiana does not provide for a second direct appeal. Once an appellate court renders judgment, and that judgment becomes final, the criminal defendant no longer has a right to appeal the decision, but is limited to seeking supervisory review. La. C. Cr. P. art. 912.1(C)(1); La. C. Cr. P. art. 922; State v. Jackson, 39,515 (La. App. 2 Cir. 3/2/05), 895 So. 2d 695, 698.

If an application for a writ of review is timely filed with the supreme

court, the judgment of the appellate court from which the writ of review is 3 sought becomes final when the supreme court denies the writ. La. C. Cr. P.

art. 922(D). The supreme court denied the writ in Gaines III on June 21,

2023. It is clear that what Gaines seeks is a second appeal of his sentence

which was affirmed and became final in Gaines III.

It is of no moment that the trial court reinstated the original sentences

on March 28, 2023, as the trial court lacked the authority to alter Gaines’

sentences. “[F]ollowing the affirmance of an appealed sentence, the

sentencing judge no longer retains jurisdiction to modify a legal sentence.”

State v. Howard, 53,104, p. 3 (La. App. 2 Cir. 1/15/20), 289 So. 3d 1176,

1178, writ denied, 20-00400 (La. 6/22/20), 297 So. 3d 722. La. C. Cr. P. art.

912(C) provides that the judgments or rulings from which a defendant may

appeal include, but are not limited to, a judgment which imposes sentence.

No sentence was imposed on March 28, 2023. Instead, the trial court

was tasked only with the ministerial duty of reinstating Gaines’s original

sentences. We note that in Gaines II, the supreme court had already vacated

the sentences imposed on June 6, 2022, and reinstated the original sentences

imposed when it reversed this court’s error patent ruling.

In conclusion, Gaines’s sentence became final following the denial of

the writ in Gaines III. He no longer has any right to a review of that

sentence on appeal. His sentences are AFFIRMED.