STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
10-292
STATE OF LOUISIANA
VERSUS
KEVIN PAUL JACOBS
**********
APPEAL FROM THE TWELFTH JUDICIAL DISTRICT COURT PARISH OF AVOYELLES, NO. 135608A HONORABLE MARK A. JEANSONNE, DISTRICT JUDGE
JIMMIE C. PETERS JUDGE
Court composed of Jimmie C. Peters, Billy Howard Ezell, and Shannon J. Gremillion, Judges.
CONVICTION AFFIRMED, SENTENCE AFFIRMED AS AMENDED, AND REMANDED WITH INSTRUCTIONS.
Gremillion, J., dissents in part and assigns written reasons. Charles A. Riddle, III District Attorney, Twelfth Judicial District Court Dan B. McKay, Jr. Assistant District Attorney, Twelfth Judicial District Court P. O. Box 1200 Marksville, LA 71351 (318) 253-6587 Counsel for Appellee: State of Louisiana
W. Jarred Franklin Louisiana Appellate Project 3001 Old Minden Road Bossier City, LA 71112 (318) 746-7467 Counsel for Defendant/Appellant: Kevin Paul Jacobs
Kevin Paul Jacobs Bossier Sheriff Correctional Facility 2984 Old Plain Dealing Rd Plain Dealing, LA 71064 Defendant/Appellant: In Proper Person PETERS, J.
The State of Louisiana charged the defendant, Kevin Paul Jacobs, with simple
burglary of an inhabited dwelling, a violation of La.R.S. 14:62.2. Following a bench
trial, the trial court found the defendant guilty as charged. Thereafter, the trial court
sentenced the defendant to serve ten years at hard labor without the benefit of
probation, parole, or suspension of sentence, with this sentence to run concurrently
with any other sentences previously imposed. After the trial court rejected the
defendant’s motion to reconsider his sentence, the defendant appealed his conviction
and sentence. On appeal, the defendant’s counsel raises two assignments of error,
and the defendant raises three pro se assignments of error. For the following reasons,
we affirm the conviction in all respects, amend the sentence imposed, and remand the
matter to the trial court with instructions.
DISCUSSION OF THE RECORD
The criminal charge against the defendant arises from a mid-January of 2006
burglary of the Marksville, Louisiana home of William J. Bennett. Judge Bennett1
had left his home for a weekend trip and, when he returned, he discovered a broken
window in the structure. Finding no reason for the broken window, Judge Bennett
looked through the home to see if anything was missing. Initially, he found nothing
out of place, but approximately two weeks later he received a letter from his credit
card company questioning some activity involving the card. This inquiry caused him
to perform a further search for missing items, but this time with the emphasis on his
wallet and the contents thereof. When he could not find his wallet, he contacted the
Marksville City Police and reported the apparent theft.
The ensuing investigation resulted in the arrest of Brandon Frelich, Camille
1 The victim in this criminal offense is one of two district judges in the Twelfth Judicial District. Swafford, and the defendant. At trial, Frelich became the principal witness against
the defendant.
Frelich testified that he met the defendant some time around Christmas in 2005
while buying drugs from the defendant. With regard to the offense itself, Frelich
testified that on or about January 14, 2006, at 3:00 or 4:00 in the morning, he and the
defendant went to Judge Bennett’s home with the intention of committing a burglary;
the defendant kicked in the window to Judge Bennett’s home; the two men entered
the home without permission; and the defendant took Judge Bennett’s wallet. Frelich
testified that Ms. Swafford was on the scene, acting as a “lookout” for the two men
while they were in the house.
Frelich testified that he next saw the wallet when he used a credit card from the
wallet to purchase gasoline at a local service station. According to Frelich, after
successfully purchasing gasoline with the victim’s credit card, he, the defendant, and
Ms. Swafford entered the local Walmart store and unsuccessfully attempted to
purchase merchandise with the credit card. After leaving Walmart, according to
Frelich, they threw the wallet and its contents into a ditch along a local road.
In his testimony, the defendant denied robbing Judge Bennett’s home. The
defendant asserted that he had been in North Carolina from December 24, 2005, until
January 9, 2006. He also testified that from January 13, 2006, until 11:00 a.m. on
January 14, 2006, he and Ms. Swafford were at a casino in Marksville. The defendant
asserted that he first met Frelich on January 14, 2006, when Frelich approached him
while he was sitting with Mrs. Swafford in her car and asked for a ride to Walmart in
exchange for buying them gasoline. According to the defendant, somewhere along
the way to Walmart he stopped the car at Frelich’s instruction, and Frelich retrieved
2 a wallet from a roadside ditch. He acknowledged that Frelich offered to purchase a
number of items for him and Ms. Swafford, but claimed that he and Ms. Swafford left
the store before Frelich attempted to check out with the merchandise. However, when
Frelich joined the couple in the parking lot, according to the defendant, he informed
them that he could not complete the transaction because the credit card had been
declined. In the defendant’s words, this was not a problem to him because Frelich
had already purchased the promised tank of gasoline. The defendant asserted that he
never saw Frelich again after that day.
In her testimony, Ms. Swafford supported some aspects of the defendant’s
testimony and contradicted him in other aspects.2 For example, she supported the
defendant’s testimony that he was in North Carolina when Frelich claims he first met
the defendant3 but did not support the defendant’s assertion that the encounter with
Frelich on the day the credit cards were used was his first time to meet Frelich.4
Ms. Swafford denied acting as lookout at the bruglary and asserted that her
only involvement in the criminal activity occurred when Frelich and the defendant
arrived in her automobile to pick her up to go to Walmart. She testified that the three
stopped on the way to Walmart to retrieve Judge Bennett’s wallet from the side of the
road.5 While she testified that she did not speak with the defendant concerning this
unusual event, she also testified that it “seemed” that both the defendant and Frelich
2 In general, Ms. Swafford’s testimony was rather rambling and difficult to follow. 3 She claims that the defendant called her to pick him up at the bus station upon his return in early January. 4 Mrs. Swafford asserted that she had seen the two men together on at least one occasion in the past. 5 Ms. Swafford testified that Frelich retrieved the wallet from the top of a utility box, and not simply from the side of the road.
3 had planned to retrieve the wallet. She also testified that all three individuals knew
that the credit card they were attempted to use was in the name of William Bennett.
In fact, Ms. Swafford asserted that she asked the two men if the card belonged to
Judge William Bennett and was told by the defendant that it belonged to Frelich’s
uncle. Additionally, Ms. Swafford seriously questioned the defendant’s contention
that he was a law-abiding citizen. According to Ms. Swafford, the defendant’s source
of income is questionable as he does not have a regular job. She assumed that the
defendant was “hustling,” or selling something illicit.
The evidence before the trial court also established that Frelich was a cocaine
addict and had that he had been convicted of simple burglary approximately two years
before his involvement in the burglary of Judge Bennett’s home. Furthermore, prior
to the defendant’s trial, Frelich had pled guilty to simple burglary of Judge Bennett’s
home and was serving a three-year hard labor sentence for that offense. According
to the trial record, this conviction was his fourth felony offense. The record
establishes that before the defendant’s trial, Ms. Swafford had pled guilty to identity
theft, a violation of La.R.S. 14:67.16, for her involvement with the misuse of Judge
Bennett’s credit card. Based on this plea, the trial court had sentenced her to serve
three years on probation.6
While both Frelich and Ms. Swafford entered their guilty pleas pursuant to plea
agreements with the state, the defendant had gone to trial on the charge of identity
theft and had been convicted of that charge by a jury. Thereafter, the trial court
sentenced him to serve ten years at hard labor for that conviction, and he appealed
that conviction and sentence. This court, in State v. Jacobs, 08-702 (La.App. 3 Cir.
6 The trial court record does not specify the underlying sentence that was suspended for imposition of the probationary sentence.
4 2/4/09), 2 So.3d 1289, affirmed his conviction but vacated the sentence and remanded
the matter to the trial court for resentencing.7
The trial court found the defendant guilty as charged. It concluded that the
defendant’s testimony was “suspect and questionable,” “very odd and suspicious,”
and ultimately that it was not “believable.” By contrast, it found Frelich and Ms.
Swafford’s testimony to be “largely consistent.”
OPINION
Errors Patent Review
Louisiana Code of Criminal Procedure Article 920(2) requires that all appeals
be examined for errors that are “discoverable by a mere inspection of the pleadings
and proceedings and without inspection of the evidence.” In performing this
examination of the record now before us, we find two such errors.
First, the trial court failed to advise the defendant of the prescriptive period for
filing post-conviction relief as required by La.Code Crim.P. art. 930.8. That being
the case, we must remand this matter to the trial court with instructions to properly
inform the defendant of the provisions of that article by providing him with written
notice. State v. Roe, 05-116 (La.App. 3 Cir. 6/1/05), 903 So.2d 1265, writ denied,
05-1762 (La. 2/10/06), 924 So.2d 163.
Second, only the first year of the defendant’s sentence may be without benefit
of probation, parole, or suspension of sentence. State v. Boowell, 406 So.2d 213
(La.1981), State v. Conley, 411 So.2d 448 (La.1982), and State v. Wilder, 499 So.2d
432 (La.App. 2 Cir. 1986). We amend the defendant’s sentence to reflect that only
the first year is without benefit of probation, parole, or suspension of sentence.
7 This court vacated the sentence because, at the time of the offense, La.R.S. 14:67.16(C)(2) provided for a maximum incarceration sentence of five years with or without hard labor.
5 Assignment of Error Number One and Pro Se Assignments of Error Numbers Two and Three
The defendant’s attorney asserts that “[t]here is insufficient evidence to prove
the guilt of defendant beyond a reasonable doubt for the offense of Simple Burglary
of an Inhabited Dwelling.” The defendant claims that the state failed to prove that he
participated in the burglary or that he took the wallet from the victim’s home. The
defendant urges that Frelich was not a credible witness and the trial court erred in
relying on his testimony to convict the defendant. The defendant contends that
Frelich testified against the defendant as a result of a plea bargain that substantially
benefitted Frelich; thus, Frelich had ample motivation for lying.
In his pro se brief the defendant also contends that there was insufficient
evidence, specifically arguing that during the early morning hours of January 14,
2006, he was at a casino in Marksville; that Frelich was not a credible witness; that
Frelich’s claim to have met the defendant during Christmas was impossible because
the defendant was out of state from Christmas Eve of 2005 until January 9, 2006; and
that a state’s witness had been tampered with by the district attorney.
The Louisiana Supreme Court has held that it is not the appellate court’s
function to second-guess the factfinder’s determination concerning the credibility of
witnesses:
The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). A determination of the weight of evidence is a question of fact, resting solely with the trier of fact who may accept or reject, in whole or in part, the testimony of any witnesses. A reviewing court may impinge on the factfinding function of the jury only to the extent necessary to assure the Jackson standard of review. It is not the function of an appellate court to assess credibility or re-weigh the evidence.
6 State v. Macon, 06-481, pp. 7-8 (La. 6/1/07), 957 So.2d 1280, 1285-86 (some citations omitted).
In the instant case, the trial court specifically found Frelich and Ms. Swafford to have
been more truthful than the defendant. The evidence in the record shows that Frelich
and Ms. Swafford had entered into plea bargains with the state prior to the
defendant’s trial. The trial court was aware of that information when it made its
credibility determination, and nothing in the record supports the defendant’s claim
that a state’s witness had been tampered with. The trial court cited the
inconsistencies in the defendant’s testimony as a basis for determining that the
defendant’s testimony was untrustworthy.
Under La.R.S. 14:62.2, “simple burglary of an inhabited home is the
unauthorized entry of any inhabited dwelling . . . used in whole or in part as a home
or place of abode by a person or persons with the intent to commit a felony or any
theft therein[.]” Pursuant to La.R.S. 14:67(A):
Theft is the misappropriation or taking of anything of value which belongs to another, either without the consent of the other to the misappropriation or taking, or by means of fraudulent conduct, practices, or representations. An intent to deprive the other permanently of whatever may be the subject of the misappropriation or taking is essential.
Because the evidence, when viewed in the light most favorable to the prosecution,
shows that the defendant entered Judge Bennett’s home without permission and with
the intent to commit a theft therein, there is sufficient evidence to support the
defendant’s conviction for simple burglary of an inhabited dwelling.
There is no merit in these assignments of error. The defendant’s conviction is
affirmed.
7 Pro Se Assignment of Error Number One
In this pro se assignment of error, the defendant asserts that he received
ineffective assistance of counsel because his attorney did not subpoena the correct
security records and security surveillance from the casino in Marksville, which the
defendant asserts would prove that he was in Marksville on January 14, 2006.
Claims of ineffective assistance of counsel are more properly raised in an application for post-conviction relief in the trial court because it provides the opportunity for a full evidentiary hearing under La. C. Cr. P. art. 930. State v. Lane, 40,816 (La.App. 2d Cir. 04/12/06), 927 So.2d 659, 669, writ denied, 2006-1453 (La. 12/15/06), 944 So.2d 1283. When the record is sufficient, however, allegations of ineffective assistance of trial counsel may be resolved on direct appeal in the interest of judicial economy. State v. Ratcliff, 416 So.2d 528 (La.1982); State v. Lane, supra.
State v. Eiskina, 42,492, p. 2 (La.App. 2 Cir. 9/19/07), 965 So.2d 1010, 1013.
Here there is not sufficient evidence in the record to resolve this claim of
ineffective assistance of counsel; specifically there is nothing in the record to
establish what records, if any, were subpoenaed, nor what the proper records would
establish. Accordingly, we do not address this claim of ineffective assistance of
counsel, leaving it for post-conviction relief.
Assignment of Error Number Two
In the second assignment of error filed by his attorney, the defendant asserts
that “[t]he sentence imposed is excessive for this offender and this offense.” The
defendant argues that his near-maximum sentence is excessive and claims that the
sentencing court failed to give adequate weight to his lack of a prior criminal history.
An excessive sentence is a penalty that is so grossly disproportionate to the
severity of the crime that it shocks our sense of justice or it makes no measurable
contribution to acceptable penal goals and, therefore, is nothing more than a needless
8 imposition of pain and suffering. State v. Campbell, 404 So.2d 1205 (La.1981). The
trial court is given wide discretion in imposing a sentence, and, absent a manifest
abuse of that discretion, the reviewing court should not deem as excessive a sentence
imposed within statutory limits. State v. Howard, 414 So.2d 1210 (La.1982); State
v. Pyke, 95-919 (La.App. 3 Cir. 3/6/96), 670 So.2d 713. Still, a sentence that falls
within the statutory limits may be excessive under the particular circumstances of a
given case. State v. Sepulvado, 367 So.2d 762 (La.1979). Additionally, “[m]aximum
sentences are reserved for the most serious violations and the worst offenders.” State
v. Farhood, 02-490, p. 11 (La.App. 5 Cir. 3/25/03), 844 So.2d 217, 225. The only
relevant question for the reviewing court to consider is not whether another sentence
would be more appropriate, but rather whether the trial court abused its broad
discretion in sentencing a defendant. State v. Cook, 95-2784 (La. 5/31/96), 674 So.2d
957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615 (1996).
The fifth circuit in State v. Lisotta, 98-648 (La.App. 5 Cir. 12/16/98), 726
So.2d 57, writ denied, 99-433 (La. 6/25/99), 745 So.2d 1183, set forth three factors
to be considered by the reviewing court in determining whether the trial court abused
its discretion in sentencing a defendant. Those factors are (1) the nature of the
offense at issue, (2) the nature and background of the defendant, and (3) sentences
imposed by the sentencing court and other courts for similar offenses.
We start this three-prong analysis by acknowledging that all criminal offenses
are repugnant to society, but some more repugnant than others. Simple burglary of
an inhabited dwelling is one of those offenses that the law considers more serious
than others, as evidenced by the range of incarceration sentences
available—imprisonment “at hard labor for not less than one year, without benefit of
9 parole, probation or suspension of sentence, nor more than twelve years.” La.R.S.
14:62.2. Although commission of the offense does not necessarily involve physical
injury or even physical danger to the victim, it constitutes an invasion of an
individual’s home—a place where he or she should be able to feel totally safe from
the evils of the world.
With regard to the nature and background of the defendant, the trial court
provided extensive oral reasons for sentencing the defendant as it did. In discussing
the aggravating circumstances it found present, the trial court noted that the defendant
used the ill-gotten gains of the burglary to commit another felony violation—identity
theft; that the defendant exhibited an angry attitude throughout the trial proceedings;
that the defendant expressed no remorse for his actions; and that he suffered from a
long-term marijuana addiction. In mitigation, the sentencing court noted the
defendant’s lack of prior convictions and the fact that the house was empty when it
was burglarized.
In considering the third factor of the Lisotta analysis, we do note that, while it
is not the maximum sentence that could imposed, the ten-year hard labor sentence is
clearly in the higher range. In comparing the sentences imposed by the trial court for
similar activity, the defendant points to the favorable sentences imposed on his co-
defendants after they agreed to testify against him. We reject this argument because
the general rule is that “the fact that a co-defendant has received a more lenient
sentence does not necessarily indicate that the penalty imposed on the defendant is
excessive.” State v. Weary, 03-3067, p. 42 (La. 4/24/06), 931 So.2d 297, 324.
In comparing the defendant’s sentence with sentences imposed for similar
crimes, we note that there are a number of cases wherein the reviewing courts have
10 upheld sentences in the upper limits for situations similar to that of the defendant.
See State v. Sharpley, 414 So.2d 329 (La.1982); State v. Edouard, 512 So.2d 579
(La.App. 3 Cir. 1987); State v. Morris, 98-236 (La.App. 5 Cir. 9/16/98), 719 So.2d
1076; State v. Johnson, 03-150 (La.App. 1 Cir. 9/26/03), 857 So.2d 586; State v.
Alsup, 42,636 (La.App. 2 Cir. 10/24/07), 968 So.2d 1152, writ denied, 07-2252 (La.
4/25/08), 978 So.2d 363; State v. Durham, 43,558 (La.App. 2 Cir. 10/15/08), 996
So.2d 642); and State v. Baker, 08-898 (La.App. 3 Cir. 2/409), 3 So.3d 666.
We find that the ten-year sentence imposed by the trial court is not illegal,
grossly disproportionate to the severity of the offense, or shocking to the sense of
justice. Thus, we find no merit in this assignment of error.
DISPOSITION
We affirm the defendant’s conviction in all respects. We amend the
defendant’s sentence to reflect that only the first year of the sentence is without
benefit of probation, parole, or suspension of sentence, and affirm the sentence as
amended. Finally, we remand the matter to the trial court with instructions to inform
the defendant of the provisions of La.Code Crim.P. art. 930.8 by sending appropriate
written notice to the defendant within ten days of the rendition of this opinion and to
file written proof that the defendant received the notice in the record of the
proceedings.
CONVICTION AFFIRMED, SENTENCE AFFIRMED AS AMENDED, AND REMANDED WITH INSTRUCTIONS.
11 10-292
GREMILLION, Judge, dissents in part and assigns written reasons.
Although I agree with the majority’s opinion in all other respects, I disagree
with the majority’s finding that Defendant’s sentence is not excessive. Defendant
argues that the sentencing court failed to give adequate weight to his lack of a prior
criminal history. Moreover, Defendant complains that Frelich, who had four prior
convictions, received a much more lenient sentence of three years.
At the sentencing hearing the trial court listened to argument by counsel and
a statement by Defendant. Thereafter, the trial court gave extensive oral reasons
wherein it discussed “the aggravating and mitigating circumstances.” The trial court
did so again at the hearing of Defendant’s motion for reconsideration of sentence.
The only prior offense discussed in the record is the identity theft conviction,
which arose from the use of a credit card contained in Judge Bennett’s stolen wallet.
Thus, the identity theft conviction arose from the same course of events as the instant
conviction. The only aggravating factors the sentencing court mentioned were
Defendant’s angry attitude throughout the trial proceedings and his marijuana use.
The trial court specifically found that the victim’s status as a district court judge was
irrelevant. In mitigation, the sentencing court noted Defendant’s general lawfulness
and the fact that the house was empty when it was burglarized.
However, at the reconsideration hearing, the defense stated that, in comparison,
Defendant’s sentence was excessive because of the favorable deals garnered by his
co-defendants; Frelich received a three-year sentence in exchange for testifying against Defendant, and Swafford received three years of probation.
The defense also pointed out that Frelich had a prior criminal record of acts
similar to the instant case, which would have motivated him to seek a plea agreement
in order to avoid a multiple offender adjudication. In contrast, Defendant had no
felony convictions, and overall, his criminal record was not excessive. The defense
argued that Defendant was a “fairly model citizen.”
The statutory penalty range for committing simple burglary of an inhabited
dwelling is imprisonment “at hard labor for not less than one year, without benefit of
parole, probation or suspension of sentence, nor more than twelve years.” La.R.S.
14:62.2. Thus, Defendant’s sentence is a high-range penalty.
After examining the jurisprudence, it is clear that, in simple burglary of
inhabited dwelling cases, sentences of ten years or greater are usually accorded to
defendants with extensive criminal histories or when the crime involved firearms.
State v. Baker, 08-898 (La.App. 3 Cir. 2/4/09), 3 So.3d 666 (the defendant stole a
shotgun and was a third felony offender); State v. Dunn, 30,346 (La.App. 2 Cir.
2/25/98), 708 So.2d 512 (the defendant, who was on probation at the time of the
offense, had an extensive criminal record involving similar crimes, and when he was
caught in the act, he wrestled a firearm away from the arresting officer while resisting
arrest); State v. Surtain, 529 So.2d 1375 (La.App. 5 Cir. 1988) (the defendant had a
prior felony conviction, as well as two misdemeanors; however, he was not
prosecuted as a multiple offender); State v. Sharpley, 414 So.2d 329 (La.1982)
(though it was the defendant’s first felony conviction, the defendant had an extensive
criminal history and had stolen firearms during the burglary); State v. Edouard, 512
So.2d 579 (La.App. 3 Cir. 1987) (the defendant had numerous misdemeanor
convictions, and it was likely the defendant would commit additional crimes if not
incarcerated). In contrast, appellate courts have affirmed sentences of nine years or less for
defendants convicted of simple burglary of an inhabited dwelling without an
extensive criminal history and without firearms being involved. In State v. Durham,
43,558 (La.App. 2 Cir. 10/15/08), 996 So.2d 642, the second circuit affirmed a nine-
year sentence in a case where the defendant had burglarized a home while the victim
was at work. The second circuit mentioned no aggravating or mitigating factors in
its analysis:
In the instant case, when defendant’s crime and punishment are viewed in light of the harm done to society by property crimes involving the disregard for the sanctity of people’s homes, the nine-year sentence does not shock the sense of justice. This hard labor term is not grossly disproportionate to defendant’s offense nor is it a purposeless and needless infliction of pain and suffering.
Id. at 649.
In State v. Alsup, 42,636 (La.App. 2 Cir. 10/24/07), 968 So.2d 1152, writ
denied, 07-2252 (La. 4/25/08), 978 So.2d 363, the second circuit affirmed an eight-
year sentence for simple burglary of an inhabited dwelling where the defendant was
a first felony offender with several misdemeanor convictions. The record showed that
the defendant had also committed new offenses while on bond for the simple burglary
charges.
In State v. Johnson, 03-150 (La.App. 1 Cir. 9/26/03), 857 So.2d 586, the first
circuit affirmed a nine-year sentence for simple burglary of an inhabited dwelling; the
defendant entered into a plea bargain wherein the State agreed not to charge him as
a habitual offender though the defendant had been on parole for aggravated burglary
at the time of the offense. Thus, defendants with more aggravating circumstances
have received less onerous sentences.
The foregoing review of the sentences imposed for similar offenses and
offenders indicates that, in the instant case, a sentence of ten years is constitutionally
excessive. Accordingly, I would find the trial court abused its discretion in sentencing Defendant and I would remand for resentencing. Thus, I respectfully
dissent.