Judgment rendered September 27, 2023. Application for rehearing may be filed within the delay allowed by Art. 922, La. C. Cr. P.
No. 55,265-KA
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
STATE OF LOUISIANA Appellee
Versus
SEBASTIAN BRASS Appellant
Appealed from the Fifth Judicial District Court for the Parish of Franklin, Louisiana Trial Court No. 2021555F
Honorable John Clay Hamilton, Judge
LOUISIANA APPELLATE PROJECT Counsel for Appellant By: Holli Herrle-Castillo
PENNY WISE DOUCIERE Counsel for Appellee District Attorney
CAROLINE E. HEMPHILL AMANDA M. WILKINS Assistant District Attorneys
Before STEPHENS, HUNTER, and ELLENDER, JJ.
HUNTER, J., dissents with written reasons. STEPHENS, J.
This criminal appeal arises out of the Fifth Judicial District Court,
Parish of Franklin, State of Louisiana, the Honorable John Clay Hamilton,
Judge, presiding. Defendant, Sebastian Brass, was charged by bill of
indictment with second degree murder, a violation of La. R.S. 14:30.1, and
obstruction of justice by tampering with evidence, a violation of La. R.S.
14:130.1. In accordance with a plea agreement, Brass pled guilty to
manslaughter and obstruction of justice. The trial court sentenced him to 40
years’ imprisonment at hard labor on the manslaughter conviction and 20
years on the obstruction of justice conviction, with the sentences to run
consecutively. Brass has appealed, urging excessiveness of his 60-year
cumulative sentence. Finding no error, we affirm.
FACTS/PROCEDURAL HISTORY
On August 24, 2021, Brass stabbed the victim, Kourtney Malone,1 in
the chest with a kitchen knife. Malone died as a result of the injuries
inflicted by Brass. After the stabbing, Brass gave the knife to his mother
and paid a witness to refrain from speaking to the police. In a statement to
officers, Brass admitted to stabbing Malone. He was charged by bill of
indictment with second degree murder, a violation of La. R.S. 14:30.1, and
obstruction of justice by tampering with evidence, a violation of La. R.S.
14:130.1.
On August 2, 2022, Brass and the State reached a plea agreement
whereby he agreed to plead guilty to manslaughter and obstruction of
justice, and the State agreed not to charge Brass as a habitual offender.
1 The record contains variations of the spelling of the victim’s first name, including “Kourtney,” “Kortney,” and “Courtney.” Additionally, sentencing was left to the trial court’s discretion. At the guilty
plea hearing, the State provided the following basis for the plea.2 On August
24, 2021, Brass committed the manslaughter of Kourtney Malone, and he
obstructed justice by providing a witness with “money to leave and also he
provided his mother with some knives which she put in her purse.”
In the guilty plea colloquy, the trial court determined that Brass had
completed the ninth grade and was not under the influence of alcohol or
drugs at the time of the plea. The court advised Brass that by pleading
guilty, he was waiving his rights to a jury trial, to challenge the State’s
evidence against him, to confront and cross-examine the witnesses against
him, to call witnesses on his own behalf, to testify, to remain silent, and to
appeal his conviction. Brass confirmed that he had discussed his case with
counsel, and he understood the rights that he was waiving. Brass also
acknowledged that he was pleading guilty because he was guilty, not as a
result of any threats, duress, or coercion.
The trial court sentenced Brass on October 4, 2022. Prior to imposing
sentence, the trial court denied a motion made by Brass’s attorney to take
judicial notice of and consider as a mitigating factor in sentencing the “level
of methamphetamine or other substance based on the serology in the
victim’s system at the time of his death.” The trial court complied with La.
C. Cr. P. art. 894.1 by setting forth the factors it considered and noted its
consideration of the pre-sentence investigation (“PSI”) report, law
enforcement reports, and victim impact statements on the record before
2 The Winnsboro Police Department’s Investigative Reports and the Franklin Parish Sheriff’s Office’s Arrest Report were also introduced in support of the factual basis of the plea. 2 sentencing Brass to 40 years’ imprisonment at hard labor on the
manslaughter conviction and 20 years’ imprisonment at hard labor on the
obstruction of justice conviction. The court ordered the sentences to run
consecutively under La. C. Cr. P. art. 883, “[b]ased on the detailed criminal
history of this defendant and [his] being a fourth felony offender[.]”
Brass has appealed his sentences as unconstitutionally excessive.
DISCUSSION
Brass argues that his consecutive sentences are excessive. In this
case, not only did the trial court impose the maximum penalty for each
conviction, it made the sentences consecutive. According to Brass, the
cumulative 60-year sentence is excessive by constitutional standards.
When, as in this case, a defendant fails to make a motion to reconsider
sentence, the appellate court’s review of the sentence is limited to a bare
claim of constitutional excessiveness. La. C. Cr. P. art. 881.1(E)(1); State v.
Mims, 619 So. 2d 1059 (La. 1993); State v. Taylor, 54,876 (La. App. 2 Cir.
1/11/23), 354 So. 3d 1257; State v. Cooksey, 53,660 (La. App. 2 Cir.
5/26/21), 316 So. 3d 1284, writ denied, 21-00901 (La. 10/12/21), 325 So. 3d
1074; State v. Flores, 52,639 (La. App. 2 Cir. 4/10/19), 268 So. 3d 1199,
writ denied, 19-00877 (La. 11/25/19), 283 So. 3d 496.
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 and needless infliction of pain and suffering. State v. Smith, 01-
2574 (La. 1/14/03), 839 So. 2d 1; 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 the light of the harm done to society, it shocks the sense of justice. 3 State v. Weaver, 01-0467 (La.1/15/02), 805 So. 2d 166; State v. Flores,
supra.
La. R.S. 14:31(B) provides in part that whoever commits
manslaughter shall be imprisoned at hard labor for not more than forty years.
La. R.S. 130.1(B)(2) provides that whoever commits the crime of
obstruction of justice when the obstruction of justice involves a criminal
proceeding in which a sentence of imprisonment necessarily at hard labor for
any period less than a life sentence may be imposed, the offender may be
fined not more than fifty thousand dollars, or imprisoned for not more than
twenty years at hard labor, or both.
In sentencing Brass, the trial court made a thorough C. Cr. P. art.
894.1 analysis and noted its consideration of the PSI report, law enforcement
reports, and victim impact statements, as well as 34 letters submitted in
support of the defendant.
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Judgment rendered September 27, 2023. Application for rehearing may be filed within the delay allowed by Art. 922, La. C. Cr. P.
No. 55,265-KA
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
STATE OF LOUISIANA Appellee
Versus
SEBASTIAN BRASS Appellant
Appealed from the Fifth Judicial District Court for the Parish of Franklin, Louisiana Trial Court No. 2021555F
Honorable John Clay Hamilton, Judge
LOUISIANA APPELLATE PROJECT Counsel for Appellant By: Holli Herrle-Castillo
PENNY WISE DOUCIERE Counsel for Appellee District Attorney
CAROLINE E. HEMPHILL AMANDA M. WILKINS Assistant District Attorneys
Before STEPHENS, HUNTER, and ELLENDER, JJ.
HUNTER, J., dissents with written reasons. STEPHENS, J.
This criminal appeal arises out of the Fifth Judicial District Court,
Parish of Franklin, State of Louisiana, the Honorable John Clay Hamilton,
Judge, presiding. Defendant, Sebastian Brass, was charged by bill of
indictment with second degree murder, a violation of La. R.S. 14:30.1, and
obstruction of justice by tampering with evidence, a violation of La. R.S.
14:130.1. In accordance with a plea agreement, Brass pled guilty to
manslaughter and obstruction of justice. The trial court sentenced him to 40
years’ imprisonment at hard labor on the manslaughter conviction and 20
years on the obstruction of justice conviction, with the sentences to run
consecutively. Brass has appealed, urging excessiveness of his 60-year
cumulative sentence. Finding no error, we affirm.
FACTS/PROCEDURAL HISTORY
On August 24, 2021, Brass stabbed the victim, Kourtney Malone,1 in
the chest with a kitchen knife. Malone died as a result of the injuries
inflicted by Brass. After the stabbing, Brass gave the knife to his mother
and paid a witness to refrain from speaking to the police. In a statement to
officers, Brass admitted to stabbing Malone. He was charged by bill of
indictment with second degree murder, a violation of La. R.S. 14:30.1, and
obstruction of justice by tampering with evidence, a violation of La. R.S.
14:130.1.
On August 2, 2022, Brass and the State reached a plea agreement
whereby he agreed to plead guilty to manslaughter and obstruction of
justice, and the State agreed not to charge Brass as a habitual offender.
1 The record contains variations of the spelling of the victim’s first name, including “Kourtney,” “Kortney,” and “Courtney.” Additionally, sentencing was left to the trial court’s discretion. At the guilty
plea hearing, the State provided the following basis for the plea.2 On August
24, 2021, Brass committed the manslaughter of Kourtney Malone, and he
obstructed justice by providing a witness with “money to leave and also he
provided his mother with some knives which she put in her purse.”
In the guilty plea colloquy, the trial court determined that Brass had
completed the ninth grade and was not under the influence of alcohol or
drugs at the time of the plea. The court advised Brass that by pleading
guilty, he was waiving his rights to a jury trial, to challenge the State’s
evidence against him, to confront and cross-examine the witnesses against
him, to call witnesses on his own behalf, to testify, to remain silent, and to
appeal his conviction. Brass confirmed that he had discussed his case with
counsel, and he understood the rights that he was waiving. Brass also
acknowledged that he was pleading guilty because he was guilty, not as a
result of any threats, duress, or coercion.
The trial court sentenced Brass on October 4, 2022. Prior to imposing
sentence, the trial court denied a motion made by Brass’s attorney to take
judicial notice of and consider as a mitigating factor in sentencing the “level
of methamphetamine or other substance based on the serology in the
victim’s system at the time of his death.” The trial court complied with La.
C. Cr. P. art. 894.1 by setting forth the factors it considered and noted its
consideration of the pre-sentence investigation (“PSI”) report, law
enforcement reports, and victim impact statements on the record before
2 The Winnsboro Police Department’s Investigative Reports and the Franklin Parish Sheriff’s Office’s Arrest Report were also introduced in support of the factual basis of the plea. 2 sentencing Brass to 40 years’ imprisonment at hard labor on the
manslaughter conviction and 20 years’ imprisonment at hard labor on the
obstruction of justice conviction. The court ordered the sentences to run
consecutively under La. C. Cr. P. art. 883, “[b]ased on the detailed criminal
history of this defendant and [his] being a fourth felony offender[.]”
Brass has appealed his sentences as unconstitutionally excessive.
DISCUSSION
Brass argues that his consecutive sentences are excessive. In this
case, not only did the trial court impose the maximum penalty for each
conviction, it made the sentences consecutive. According to Brass, the
cumulative 60-year sentence is excessive by constitutional standards.
When, as in this case, a defendant fails to make a motion to reconsider
sentence, the appellate court’s review of the sentence is limited to a bare
claim of constitutional excessiveness. La. C. Cr. P. art. 881.1(E)(1); State v.
Mims, 619 So. 2d 1059 (La. 1993); State v. Taylor, 54,876 (La. App. 2 Cir.
1/11/23), 354 So. 3d 1257; State v. Cooksey, 53,660 (La. App. 2 Cir.
5/26/21), 316 So. 3d 1284, writ denied, 21-00901 (La. 10/12/21), 325 So. 3d
1074; State v. Flores, 52,639 (La. App. 2 Cir. 4/10/19), 268 So. 3d 1199,
writ denied, 19-00877 (La. 11/25/19), 283 So. 3d 496.
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 and needless infliction of pain and suffering. State v. Smith, 01-
2574 (La. 1/14/03), 839 So. 2d 1; 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 the light of the harm done to society, it shocks the sense of justice. 3 State v. Weaver, 01-0467 (La.1/15/02), 805 So. 2d 166; State v. Flores,
supra.
La. R.S. 14:31(B) provides in part that whoever commits
manslaughter shall be imprisoned at hard labor for not more than forty years.
La. R.S. 130.1(B)(2) provides that whoever commits the crime of
obstruction of justice when the obstruction of justice involves a criminal
proceeding in which a sentence of imprisonment necessarily at hard labor for
any period less than a life sentence may be imposed, the offender may be
fined not more than fifty thousand dollars, or imprisoned for not more than
twenty years at hard labor, or both.
In sentencing Brass, the trial court made a thorough C. Cr. P. art.
894.1 analysis and noted its consideration of the PSI report, law enforcement
reports, and victim impact statements, as well as 34 letters submitted in
support of the defendant.
Regarding Brass’s criminal history, the trial court noted it included
aggravated burglary (2006); possession of cocaine (2008); domestic abuse
battery (2014); simple burglary (2014); criminal damage to property (2015);
aggravated assault with a knife and simple criminal damage to property
(2017); aggravated assault with a knife and crowbar (2018); aggravated
battery, aggravated flight from an officer, and battery involving a firearm
(2018); aggravated battery/aggravated assault with a box cutter (2019); and
aggravated battery (2021).
4 Defense counsel pointed out defendant’s medical and psychological
issues noted in the PSI report.3 Brass addressed the trial court and
apologized for his conduct, stating, “I’m just sorry everything went on like
this. It’s nothing much I could really say but when you just read that record
out and all those—I don’t even really know what to say. I’m sorry.”
Statements on behalf of the victim were made by his mother and
father. Andria Malone, the mother, expressed her pain and suffering
sustained as a result of her son’s death. Mrs. Malone related that she had
saved Brass’s life in the past when “four guys [were] going to kill him[.]”
According to Mrs. Malone, “If I knew then that he was going to kill my son,
I wish they would have killed him.” The father, Monyea Malone, stated that
he “helped raise” Brass, “changed his diapers,” and “taught him how to ride
a bicycle, what to do and what not to do.” Mr. Malone stated that he did not
hate Brass, but he had no remorse for him.
The specific aggravating factors set forth in La. C. Cr. P. art. 894.1
found applicable by the trial court were: (1) the defendant’s conduct in
stabbing the victim in the chest manifested deliberate cruelty; (2) the actual
violence and severity of the crime which caused the victim’s death; (3) the
defendant used a dangerous weapon and significant force in committing the
offense; (4) the defendant had been placed on probation for similar offenses
but had never successfully completed any term of probation; (5) the
defendant contemplated that his conduct would cause serious harm or death;
(6) there was no indication the defendant acted under strong provocation; (7)
3 The PSI report reflects that, in November 2019, Brass was admitted to a facility following “suicidal ideations and severe depression.” He was diagnosed with bipolar disorder and manic depression, for which he was prescribed medication. 5 there were no substantial grounds tending to excuse or justify the
defendant’s actions; (8) there is no indication the victim induced or
facilitated the defendant’s actions; (9) there is no possibility the defendant
could possibly compensate the victim for his death; (10) the defendant is the
father of ten children; however, they will not likely face hardship due to the
defendant’s incarceration because he was “neither raising nor supporting”
the children; and (11) the defendant benefited from the State’s agreement to
reduce the charge from second degree murder to manslaughter and to
dismiss a pending charge of aggravated assault.
The trial court also noted that pursuant to the terms of the plea
bargain, the State forfeited its right to charge Brass as a habitual offender.
The PSI showed that Brass would have been considered a fourth felony
offender and, as such, would have been exposed to the possibility of a life
sentence if sentenced as a habitual offender.
In mitigation, the trial court considered Brass’s lack of a juvenile
record and the number of letters it had received in his support.
Although the 60-year cumulative sentence is harsh, and had this Court
been tasked with sentencing the defendant, it may have considered a lesser
penalty, it is not this Court’s job to nitpick and “woulda, shoulda, coulda” in
vain. As set forth above, the trial court gave detailed reasons for imposing
the maximum penalties for each offense and for its decision to run the
sentences consecutively rather than concurrently.4 Therefore, we do not find
the sentence to be either grossly out of proportion to the seriousness of the
4 Although, in light of the prosecution’s agreement to forgo pursuing habitual offender proceedings against Brass, it is somewhat disingenuous for the trial court to nonetheless impose consecutive terms in part in consideration of “his being a fourth felony offender.” 6 offenses or nothing more than a purposeless and needless infliction of pain
and suffering. We cannot say that the sentence imposed in the instant case is
unconstitutionally excessive.
CONCLUSION
For the reasons set forth above, the convictions and sentences of the
defendant, Sebastian Brass, are affirmed.
AFFIRMED.
7 HUNTER, J., dissenting.
I believe the two maximum sentences of 40 years and 20 years,
totaling 60 years’ imprisonment, are equivalent to a life sentence, serve no
purpose other than to inflict pain and suffering, and make no meaningful
contribution to acceptable penal goals. Therefore, the sentences are
constitutionally excessive. These offenses arose out of a single course of
conduct, and the sentences should have been ordered to be served
concurrently. See, La. C. Cr. P. art. 883.
Consequently, I respectfully dissent.