State v. Jones

107 So. 3d 861, 2013 WL 440363
CourtLouisiana Court of Appeal
DecidedFebruary 6, 2013
DocketNos. 12-864, 12-863
StatusPublished
Cited by1 cases

This text of 107 So. 3d 861 (State v. Jones) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Jones, 107 So. 3d 861, 2013 WL 440363 (La. Ct. App. 2013).

Opinion

AMY, Judge.

_[jA jury convicted the defendant of attempted second degree murder and aggravated assault with a firearm. A panel of this court affirmed the defendant’s conviction for attempted second degree murder. However, the matter was remanded for re-sentencing on the defendant’s ultimate status as an habitual offender given a finding that the original sentence was indeterminate. On remand, the trial court adjudicated the defendant a third felony offender on both the attempted second degree murder conviction and the aggravated assault with a firearm conviction. The trial court imposed concurrent life sentences for each adjudication. The defendant appeals the sentences as excessive. For the following reasons, we affirm.

Factual and Procedural Background

The State provided evidence indicating that an altercation involving the defendant, Wayne Jones, and his former girlfriend arose over possession of a dog the defendant claimed was his property. The State asserted that the defendant blocked the vehicle of his former girlfriend with that of his own and, after exiting his own vehicle with a gun, fired numerous shots into her vehicle. The victim was shot multiple times, including one shot which lodged in her chest.

In January 2010, a jury convicted the defendant of one count of attempted second degree murder, a violation of La.R.S. 14:27 and La.R.S. 14:30.1, and one count of aggravated assault with a firearm, a violation of La.R.S. 14:37.4, in relation to these events. Thereafter, and acting upon the State’s habitual offender bill, the trial court found the defendant to be a third felony offender. It ordered the defendant to serve life imprisonment without benefit of probation, parole, or suspension of sentence.

The defendant filed separate appeals from the convictions and from the habitual offender proceedings. The matters were consolidated on appeal for briefing purposes. _[gln the original appeal, a panel of this court found no merit in the defendant’s sole assignment of error regarding the sufficiency of the evidence offered in support of the attempted second degree murder conviction. See State v. Jones, 11-399 (La.App. 3 Cir. 11/2/11), 76 So.3d 1274. However, on error patent review, the court determined that the trial court imposed an indeterminate sentence on the habitual offender proceedings. Id. It noted that the State charged the defendant as a habitual offender and sought to enhance both convictions, but that the language employed by the trial court in doing so lacked indication that the defendant was sentenced on both counts. Id. Accordingly, the court vacated the habitual offender sentence originally imposed and remanded the matter to the trial court for resentencing. Id. It instructed the trial court to clarify which count or counts it was enhancing and to impose separate sentences for each. Id.

[863]*863Pursuant to the appellate order, the trial court resentenced the defendant in May 2012. The transcript of the hearing indicates that the trial court found the defendant to be a third habitual offender on each underlying charge and sentenced him to life imprisonment on each. The trial court ordered that the sentences are to run concurrently.

The defendant appeals1 and, in his sole assignment of error, the defendant asserts that: “The sentences of life in prison on each count, even though ordered to be served concurrently, are excessive under the facts and circumstances of this case.”

^Discussion

Errors Patent

Pursuant to La.Code Crim.P. art. 920, we have reviewed this matter for errors patent on the face of the record. The record contains no such errors.

Excessiveness of the Sentences

In a single assignment of error, the defendant asserts that the two concurrent life sentences imposed are excessive. As noted by the State, the defendant in this case only lodged an objection to the sentence insofar as, after sentencing, defense counsel stated: “Your Honor, we object to the Court’s ruling.” The defendant did not file or otherwise make a motion to reconsider his sentences as required by La.Code Crim.P. art. 881.1.2 See State v. Barling, 00-1241 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035 (wherein a panel of this court concluded that the failure to file a written motion to reconsider sentence or to orally urge a specific ground for reconsideration at sentencing precludes the defendant from objecting to the sentence imposed pursuant to La.Code Crim.P. art. 881.1), writ denied, 01-838 (La.2/1/02), 808 So.2d 331. In a case such as the present one, where a defendant’s verbal objection did not set forth specific grounds to support the claim of excessive sentence, the court is relegated to a bare claim of exces-siveness on review. Id. See also State v. A.B.M., 10-648 (La.App. 3 Cir. 12/8/10), 52 So.3d 1021.

On remand, the trial court imposed consecutive life sentences after it adjudged the defendant a third habitual offender on two counts. This sentence is within the |4permissible sentencing guidelines of La. R.S. 15:529.1(A), which provides, in pertinent part:

(3) If the third felony is such that upon a first conviction, the offender would be punishable by imprisonment for any term less than his natural life then:
(a) The person shall be sentenced to imprisonment for a determinate term not less than two-thirds of the longest possible sentence for the conviction and not more than twice the longest possible [864]*864sentence prescribed for a first conviction; or
(b) If the third felony and the two prior felonies are felonies defined as a crime of violence under R.S. 14:2(B), a sex offense as defined in R.S. 15:540 et seq. when the victim is under the age of eighteen at the time of commission of the offense, or as a violation of the Uniform Controlled Dangerous Substances Law punishable by imprisonment for ten years or more, or any other crimes punishable by imprisonment for twelve years or more, or any combination of such crimes, the person shall be imprisoned for the remainder of his natural life, without benefit of parole, probation, or suspension of sentence.

As can be seen by reference to La.R.S. 15:529.1(A)(S)(b),3 the defendant’s life sentences are, in fact, mandatory.

In State v. Lindsey, 99-3302, pp. 4-5 (La.10/17/00), 770 So.2d 339, 342-43, cert. denied, 532 U.S. 1010, 121 S.Ct. 1739, 149 L.Ed.2d 663 (2001), the supreme court explained as follows with regard to the mandatory nature of the habitual offender law:

The Legislature enacted the Habitual Offender Law pursuant to its sole authority under Article 3, § I of the Louisiana Constitution to define conduct as criminal and to provide penalties for such conduct. State v. Johnson, [97-1906 (La.3/4/98), 709 So.2d 672], 675; State v. Dorthey, 623 So.2d 1276, 1280 (La.1993); State v. Taylor, 479 So.2d 339, 341 (La.1985). This Court has repeatedly held that the statute is constitutional and therefore, the minimum sentences the statute imposes upon multiple offenders are presumed to be constitutional, and should be accorded great deference by the judiciary. State v. Johnson, supra; State v. Dorthey, supra.

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216 So. 3d 313 (Louisiana Court of Appeal, 2017)

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Bluebook (online)
107 So. 3d 861, 2013 WL 440363, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-jones-lactapp-2013.