Judgment rendered January 11, 2023. Application for rehearing may be filed within the delay allowed by Art. 922, La. C. Cr. P.
No. 54,871-KA
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
STATE OF LOUISIANA Appellee
versus
TRABILLION HAWTHORNE Appellant
Appealed from the First Judicial District Court for the Parish of Caddo, Louisiana Trial Court No. 361,835
Honorable Christopher T. Victory, Judge
LOUISIANA APPELLATE PROJECT Counsel for Appellant By: Edward K. Bauman
JAMES E. STEWART, SR. Counsel for Appellee District Attorney
REBECCA ARMAND EDWARDS BRITTANY B. ARVIE Assistant District Attorneys
Before PITMAN, THOMPSON, and HUNTER, JJ. THOMPSON, J.
Trabillion Hawthorne was convicted of armed robbery and was
adjudicated a second felony habitual offender. This court affirmed his
conviction and habitual offender adjudication, but vacated his original
illegally lenient sentence and remanded the matter to the trial court for
resentencing. At his resentencing hearing, Hawthorne requested a
downward deviation from the mandatory minimum sentence of 49½ years.
At the conclusion of his resentencing hearing, the trial court sentenced him
to the mandatory minimum sentence of 49½ years at hard labor, without
benefit of parole, probation, or suspension of sentence. Hawthorne now
appeals his sentence, arguing that the trial court erred by failing to conduct a
hearing on his motion to reconsider sentence, mistakenly believed it lacked
the discretion to deviate downward from the mandatory minimum sentence,
and that his sentence is unconstitutionally excessive. We affirm his
conviction and sentence.
FACTUAL BACKGROUND
The facts of this case were previously set forth in State v. Hawthorne,
53,932 (La. App. 2 Cir. 9/22/21), 327 So. 3d 606, writ denied, 21-01710 (La.
1/12/22), 330 So. 3d 618, as follows:
On the morning of September 28, 2016, Deborah Coleman and LaToya Taylor arrived for work at the Wyndham Garden hotel located on East 70th Street in Shreveport, Louisiana. Coleman was the general manager of the hotel. Taylor was the front desk manager.
Surveillance video from several cameras at the hotel captured the following incident. At approximately 7:28 a.m., a dark- skinned male wearing a dark hoodie and gloves entered the hotel through a side entrance. He approached Coleman at the check-in counter, pointed a silver revolver at her, and handed a plastic bag to her. Taylor was standing nearby at her work area at the time. Both women opened their cash drawers. Because Coleman’s drawer was empty, she pointed to Taylor, who had a drawer containing cash. The suspect moved to the counter area across from Taylor and pointed the revolver at her as she handed cash and coin rolls to him. The suspect then fled from the hotel through the side entrance.
Anthony Moore, a hotel employee who witnessed the robbery, watched the suspect leave the hotel, run across the parking lot, and then go behind a nearby business. Moore thought the suspect threw something in a dumpster behind the business. Moore observed the suspect run across a street to the Haystack Apartments complex before losing sight of him.
Officers from the Shreveport Police Department (“SPD”) who were called to the scene were advised that the suspect was a black male about 5’9” with a slender build and wearing a hoodie jacket, black pants, and gloves. Nothing was found in the dumpster behind the restaurant. A police K-9 unit tracked a suspected car but it did not amount to anything. A suspect was not developed that day. A few days later, a detective received a tip about an individual, but that individual did not resemble the robber on the surveillance video.
Two years later, in October of 2018, Wyosha Scott, who was the former girlfriend of Hawthorne, posted a photo of Hawthorne on Facebook next to a photo of the suspect from the Wyndham robbery. This information was forwarded to Cody Roy, an investigator with SPD’s armed robbery unit. After Roy found a photo of Hawthorne and compared it to the video, he thought Hawthorne was the suspect.
On October 16, 2018, Roy obtained an arrest warrant for Hawthorne, who was taken into custody on that date. Hawthorne told Roy that he was living in the Haystack Apartments on September 28, 2016. Using a law enforcement database for pawned items, Roy found that Hawthorne had sold a chrome revolver two months after the robbery. A photo lineup was shown to Coleman, who identified Hawthorne as the person who had robbed her.
PROCEDURAL HISTORY
On November 14, 2018, a bill of information was filed charging
Hawthorne with armed robbery. On January 28, 2020, trial was held, and
Hawthorne was convicted by a unanimous jury of armed robbery.
On June 25, 2020, a habitual offender bill was filed. With a prior
felony conviction for purse snatching in December 2011, Hawthorne was 2 determined to be a second felony offender. He was sentenced to 33 years at
hard labor, without benefit of parole, probation, or suspension of sentence.
Hawthorne appealed his conviction. On appeal, this Court determined that
Hawthorne’s original habitual offender sentence of 33 years was illegally
lenient. This Court affirmed the conviction and habitual offender
adjudication, but vacated his sentence and remanded it to the trial court for
resentencing under the habitual offender statute in effect at the time he
committed the armed robbery. Hawthorne, supra.
On November 29, 2021, a resentencing hearing was held. The trial
judge asked defense counsel whether he had any facts regarding mitigating
factors to present. Counsel for Hawthorne made a brief statement, noting
that Hawthorne was a young man, age 23, when he committed the armed
robbery. Counsel noted that the original sentencing judge’s calculations
were incorrect, and the mandatory minimum is higher than the sentence that
was imposed after trial, but argued that the original sentence was reasonable
and more appropriate under the particular circumstances. Counsel argued
that imposing the mandatory minimum sentence or more would place
Hawthorne in jail until he was 75 years old and stated: “I would ask that you
deviate down and stay with the 33-year sentence.”
Hawthorne also spoke on his own behalf at the resentencing hearing.
He stated: “Well, I’ve got a family that’s waiting for me. I got kids. I just
want them to see me do better. I became a better man. I became a man of
God. And I can’t do 49 years, 33 years. I just ask that you have mercy on
me.”
The trial judge noted the appropriate sentence range for Hawthorne as
a second felony offender, pursuant to La. R.S. 15:529.1(A)(1), is not less 3 than 49½ years and not more than 198 years. The trial judge also noted that
he considered both mitigating and aggravating factors enumerated in La. C.
Cr. P. art. 894.1, and found the following aggravating circumstances:
Hawthorne knowingly created a risk of death or great bodily harm to more
than one person, he used actual violence in the commission of the offense,
and he used a firearm in the commission of the armed robbery. The trial
judge did not find any mitigating circumstances.
The trial judge sentenced Hawthorne to 49½ years at hard labor,
without benefit of probation, parole, or suspension of sentence, with credit
for time served. The trial judge stated: “[t]hat is the minimum I can give
you, so that’s where I am bound by the written law to start. So I give you
49½ years.” This appeal followed.
LAW AND ARGUMENT
On appeal, Hawthorne asserts three assignments of error:
Assignment of Error No. 1: The trial court failed to conduct a hearing to determine if the minimum sentence imposed was constitutionally excessive when raised by Hawthorne in his motion to reconsider sentence.
Hawthorne argues that the trial court erred by failing to conduct a
hearing on his request for a downward departure from the mandatory
minimum habitual offender sentence. Hawthorne argues that while
deviations below the mandatory minimum are rare, when judges find a
punishment excessive, they have “the option, indeed the duty, to reduce such
a sentence to one that would not be constitutionally excessive.” State v.
Dorthey, 623 So. 2d 1276 (La. 1993). Hawthorne asserts that without a
Presentence Investigation Report (PSI) or a hearing on his motion to
reconsider sentence, the trial court was without any evidence to determine
4 whether his sentence was unconstitutionally excessive or whether a
downward departure was warranted. We disagree.
Downward departure from a mandatory minimum sentence may occur
in rare circumstances if the defendant rebuts the presumption of
constitutionality by showing clear and convincing evidence that he is
exceptional, namely, that he is a victim of the legislature’s failure to assign
sentences that are meaningfully tailored to the gravity of the offense, the
culpability of the offender, and the circumstances of the case. State v. Burns,
53,920 (La. App. 2 Cir. 6/30/21), 322 So. 3d 928, writ denied, 21-0112 (La.
11/23/21), 328 So. 3d 78; State v. Nabors, 53,357 (La. App. 2 Cir. 4/22/20),
295 So. 3d 974, writ denied, 20-00709 (La. 10/6/20), 302 So. 3d 527; State
v. Chandler, 41,063 (La. App. 2 Cir. 9/8/06), 939 So. 2d 574, 585, writ
denied, 06-2554 (La. 5/11/07), 955 So. 2d 1277, citing State v. Johnson, 97-
1906 (La. 3/4/98), 709 So. 2d 672.
In Johnson, supra, the supreme court explained:
[I]t is apparent that the Legislature’s determination of an appropriate minimum sentence should be afforded great deference by the judiciary. This does not mean, however, that the judiciary is without authority to pronounce a constitutional sentence if it determines that a mandatory minimum sentence is excessive in a particular case. Instead, we have held that courts have the power to declare a sentence excessive under Article I, Section 20 of the Louisiana Constitution, although it falls within the statutory limits provided by the Legislature. State v. Sepulvado, 367 So. 2d 762, 767 (La. 1979). In Dorthey, supra, this Court recognized that this power extends to the minimum sentences mandated by the Habitual Offender Law. Id. at 1280- 81. However, this power should be exercised only when the court is clearly and firmly convinced that the minimum sentence is excessive. .... A sentencing judge must always start with the presumption that a mandatory minimum sentence under the Habitual Offender Law is constitutional. Dorthey, supra at 1281 (Marcus, J., concurring); Young, supra. A court may only depart from the minimum sentence if it finds that there is clear and convincing 5 evidence in the particular case before it which would rebut this presumption of constitutionality.
La. C. Cr. P. art. 881.1(D) provides:
The trial court may deny a motion to reconsider sentence without a hearing, but may not grant a motion to reconsider without a contradictory hearing. If the court denies the motion without a hearing, the party who made or filed the motion may proffer the evidence it would have offered in support of the motion.
Thus, a trial court is not required to conduct a hearing when it denies
the defendant’s motion to reconsider sentence. State v. Williams, 46,468 (La.
App. 2 Cir. 9/21/11), 72 So. 3d 966; State v. Vance, 45,250 (La. App. 2d Cir.
5/19/10), 36 So. 3d 1152.
We find that Hawthorne essentially participated in a Dorthey hearing
at his resentencing hearing, following this Court’s determination on his prior
appeal that his 33-year sentence was illegally lenient. At the resentencing
hearing, Hawthorne specifically requested a downward departure from the
mandatory minimum, in accordance with Dorthey, supra. Upon hearing the
request and arguments in support of his position, the trial court still found
that Hawthorne failed to show any basis to support a finding that the
mandatory minimum sentence is unconstitutionally excessive. Hawthorne
did not provide clear and convincing evidence that he is an exceptional
defendant. Hawthorne was convicted by a unanimous jury of committing an
armed robbery in a hotel lobby, by threatening two employees with a firearm
and taking money from the hotel’s register. He is not a victim of the
legislature’s failure to assign sentences that are meaningfully tailored to the
gravity of the offense or the culpability of the offender, such that a
downward departure is warranted. This assignment of error is without merit.
6 Assignment of Error No. 2: The trial court was of the erroneous view it was without the authority to deviate from the statutory minimum provided by La. R.S. 15:529.1.
Hawthorne argues that the trial court believed it lacked authority to
deviate from the mandatory minimum sentence. Hawthorne contends that
the resentencing judge held the erroneous view that he must be sentenced to
hard labor for not less than 49½ years and for not more than 198 years,
without any ability to deviate downward in the event he found the
mandatory minimum to be unconstitutionally excessive. He argues that the
trial judge should not have denied the motion to reconsider sentence without
a hearing.
Hawthorne cites Fourth Circuit jurisprudence in support of his
argument that the trial court should have conducted a hearing on his motion
to reconsider sentence and that it erroneously believed it was without
authority to deviate from the mandatory minimum sentence. In State v.
Pernell, 13-0180 (La. App. 4 Cir. 10/2/13), 127 So. 3d 18, writ denied, 13-
2547 (La. 4/4/14), 135 So. 3d 640, the Fourth Circuit found error patent due
to the trial court’s failure to rule on an outstanding motion to reconsider a
mandatory life sentence imposed for the defendant’s second degree murder
conviction. The Fourth Circuit remanded the matter with specific
instructions for the trial court to hold a hearing on the motion to reconsider
sentence under the criteria established in Sepulvado, supra and Johnson,
supra. Contrary to the specific instruction to hold a hearing, the trial court
on remand summarily denied the motion reconsider sentence. The trial court
believed that, because the second degree murder statute provided only one
penalty (mandatory life sentence), it had no discretion to review the sentence
for excessiveness. State v. Pernell (Pernell II), 14-0678 (La. App. 4 Cir. 7 10/15/14), 151 So. 3d 940. Finding that reasoning to be legal error, the
Fourth Circuit again remanded the matter for a full evidentiary hearing on
the motion to reconsider sentence.
Unlike the Pernell cases, the instant matter does not involve a pending
motion to reconsider sentence that the trial court failed to rule on prior to an
appeal.1 Further, Hawthorne had a hearing at resentencing where he availed
himself of the opportunity to argue for a downward departure from the
mandatory minimum sentence. The resentencing judge did not express the
mistaken belief that he was without authority to deviate downward from the
mandatory minimum sentence. He did not give any indication that he had
misgivings about imposing the mandated minimum sentence. Rather, he
specifically noted that he found no mitigating factors that might call into
question the constitutionality of the mandatory minimum sentence of 49½
years. Finding an absence of sufficient justification to deviate from the
sentencing range, the court imposed the minimum sentence available to it.
This assignment of error is without merit.
Assignment of Error No. 3: The minimum sentence under the habitual offender law of 49½ years at hard labor without benefits is constitutionally excessive.
Hawthorne argues that Louisiana’s judiciary maintains the distinct
responsibility of reviewing sentences imposed in criminal cases for
constitutional excessiveness. Hawthorne argues that no PSI was ordered by
the court, and no mitigating circumstances were presented on his behalf
because he was denied a hearing on his motion to reconsider sentence.
Therefore, he argues that this Court does not have a complete record to
1 See also, State v. Small, 13-1334 (La. App. 4 Cir. 8/27/14), 147 So. 3d 1274, writ denied, 14-1930 (La. 4/24/15), 169 So. 3d 354. 8 review to determine whether he is an exceptional case and his sentence is
excessive.
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; Dorthey, supra; State v. Capers, 43,743
(La. App. 2d Cir.12/3/08), 998 So. 2d 885, writ denied, 09-0148 (La.
10/2/09), 18 So. 3d 102.
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. Capers, supra.
Because the sentence imposed for the habitual offender adjudication is
prescribed by statute, the trial court’s compliance with La. C. Cr. P. art.
894.1 is not required. It would be an exercise in futility for the trial court to
discuss the factors enumerated in Article 894.1 when the court has no
discretion in sentencing a defendant. State v. Washington, 37,321 (La. App.
2d Cir. 8/20/03), 852 So. 2d 1206, writ denied, 03-2652 (La. 5/14/04), 872
So. 2d 510.
Since the Habitual Offender Law in its entirety is constitutional, the
minimum sentences it imposes upon multiple offenders are also presumed to
be constitutional. State v. Johnson, 97-1906 (La. 3/4/98), 709 So. 2d 672;
State v. Bates, 37,282 (La. App. 2 Cir.10/16/03), 859 So. 2d 841, writ
denied, 04-0141 (La. 5/21/04), 874 So. 2d 173. The legislature’s
determination of an appropriate minimum sentence should be afforded great
deference by the judiciary. Johnson, supra; Capers, supra. Courts have the
power to declare a sentence excessive under La. Const. art. I, § 20, although 9 it falls within the statutory limits provided by the legislature. This power
extends to the minimum sentences mandated by the Habitual Offender Law.
However, this power should be exercised only when the court is clearly and
firmly convinced that the minimum sentence is excessive. Johnson, supra;
Capers, supra.
A trial court may reduce a defendant’s sentence to one not
unconstitutionally excessive if the trial court finds that the sentence
mandated by the Habitual Offender Law “makes no measurable contribution
to acceptable goals of punishment,” or is nothing more than “the purposeful
imposition of pain and suffering” and is “grossly out of proportion to the
severity of the crime.” Johnson, supra. A sentencing judge must always
start with the presumption that a mandatory minimum sentence under the
Habitual Offender Law is constitutional. A court may only depart from the
minimum sentence if it finds that there is clear and convincing evidence in
the particular case before it which would rebut this presumption of
constitutionality. Johnson, supra; State v. Lindsey, 99-3302 (La. 10/17/00),
770 So. 2d 339; State v. Roland, 49,660 (La. App. 2 Cir. 2/27/15), 162 So.
3d 558, 568, writ denied, 2015-0596 (La. 2/19/16), 186 So. 3d 1174.
There is nothing in the record to show that Hawthorne satisfied or
could satisfy his burden of showing clearly and convincingly that the
mandatory minimum sentence is unconstitutionally excessive in this case.
There is no requirement that the sentencing court order a PSI, and a
defendant is not entitled to one by right. La. C. Cr. P. art. 875; State v.
Barrett, 51,921, p. 10 (La. App. 2 Cir. 4/11/18), 247 So. 3d 164, 171.
Additionally, because the trial court imposed the mandatory minimum, it is
not required to justify that sentence in accordance with La. C. Cr. P. art. 10 894.1. Despite this, the trial court did consider the factors provided in
Article 894.1, and noted multiple aggravating circumstances in this case,
including violent threats to two individuals with the use of a firearm. The
trial court did not find any mitigating circumstances.
The trial court heard Hawthorne’s argument for a downward
deviation, as well as his own plea for mercy on the basis that he has a family
and is endeavoring to become a better man. Notwithstanding, Hawthorne
failed to establish unusual circumstances that clearly and convincingly
showed him to be exceptional. Hawthorne’s sentence is presumed
constitutional, and he failed to rebut that presumption. His sentence of 49½
years, the minimum mandatory sentence, is not constitutionally excessive.
This assignment of error is likewise without merit.
CONCLUSION
For the foregoing reasons, we affirm Trabillion Hawthorne’s
AFFIRMED.