STATE OF LOUISIANA v. JOHNNY MITCHELL SKIPPER (2025)

The defendant, Johnny Mitchell Skipper, was charged by amended bill of information with two counts of indecent behavior with a juvenile (counts one and two), in violation of La. R.S. 14:81(A)(2), and one count of obstruction of justice (count three), in violation of La. R.S. 14:130.1. The defendant pled not guilty and, following a jury trial, was convicted as charged on all counts. The defendant filed a motion in arrest of judgment, motion for new trial, and motion for post-verdict judgment of acquittal, all of which were denied. The trial court sentenced the defendant to consecutive terms of seven years imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence on each count of indecent behavior with a juvenile (counts one and two), and five years imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence for obstruction of justice (count three).¹

After his adjudication as a fourth-felony habitual offender, the trial court vacated the defendant's original sentences and sentenced the defendant to life imprisonment. The defendant appealed, and this court vacated his single sentence and remanded for resentencing due to several patent errors. State v. Skipper, 2023-0088 (La. App. 1st Cir. 9/15/23), 2023 WL 5993031 (unpublished). On remand, the trial court sentenced the defendant to concurrent terms of life imprisonment on each count and thereafter denied his motion to reconsider sentence.² The defendant again appeals, contending his enhanced sentences are unconstitutionally excessive. For the following reasons, we vacate the sentences and remand.

FACTS

This court set forth the pertinent facts in the defendant's prior appeal as follows:

On September 30, 2020, while incarcerated in the Livingston Parish Detention Center (“LPDC”) on unrelated charges, the defendant and A.M. spoke via a video call through the LPDC's communication system for inmates. A.M. is a female friend of one of the defendant's cousins. During this call, A.M. admitted to the defendant that she was only sixteen years old, despite previously telling him that she was older. At this point in the conversation, the defendant became agitated, walked away from the tablet, and ended the call. Shortly thereafter, they spoke on another video call and again discussed A.M.’s age.

Then, on October 6, 2020, the defendant talked to A.M. via a video call using another inmate's account. During this call, the defendant repeatedly asked A.M. to expose herself to him. A.M. refused the defendant's requests many times, but ultimately exposed one of her breasts to him.

On October 9, 2020, the defendant and A.M. spoke again via a video call through yet another inmate's account. During this call, the defendant again asked A.M. to expose herself to him numerous times. Despite telling him no at first, she eventually exposed her entire chest to him. After this, the defendant told A.M. to show him her vagina, and tried to explain to her how she could do so without other people seeing. A.M. refused, and the defendant repeatedly called her a “[p*ssy]” and told her to “stop playing.”

Detective Steven Lovett with the Livingston Parish Sheriff's Office testified that he was investigating the defendant. While monitoring the defendant's communications, Detective Lovett came across the defendant's conversations with A.M. and, based on the content of the videos, obtained an arrest warrant for the defendant for two counts of computer-aided solicitation of a minor, violations of La[.] R.S. 14:81.3. The defendant was arrested and re-booked into the LPDC on November 12, 2020. He again spoke to A.M. on the video call system on November 24, 2020, and tried to convince her to disregard any “court summons” and refuse to appear in court because as long as she did not appear in court, he would be able to go home.

Skipper, 2023 WL 5993031 at *1-2 (footnotes omitted).

DISCUSSION

In his sole assignment of error, the defendant argues that his three life sentences are unconstitutionally excessive under the circumstances. Specifically, he argues the trial court failed to adequately consider the aggravating and mitigating factors in La. C.Cr.P. art. 894.1 before imposing the maximum sentences.

Both the United States and Louisiana Constitutions prohibit the imposition of cruel or excessive punishment. U.S. Const. amend. VIII; La. Const. art. I, § 20. Although a sentence falls within statutory limits, it may be excessive. State v. Sepulvado, 367 So. 2d 762, 767 (La. 1979). A sentence is unconstitutionally excessive if it is grossly disproportionate to the severity of the offense or constitutes nothing more than a purposeless and needless infliction of pain and suffering. A sentence is grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks one's sense of justice. State v. Livous, 2018-0016 (La. App. 1st Cir. 9/24/18), 259 So. 3d 1036, 1044, writ denied, 2018-1788 (La. 4/15/19), 267 So. 3d 1130. The trial court has great discretion in imposing a sentence within the statutory limits, and such a sentence will not be set aside as excessive in the absence of an abuse of discretion. State v. Scott, 2017-0209 (La. App. 1st Cir. 9/15/17), 228 So. 3d 207, 211, writ denied, 2017-1743 (La. 8/31/18), 251 So. 3d 410.

Louisiana Code of Criminal Procedure article 894.1 sets forth the factors for the trial court to consider when imposing sentence. While the entire checklist of La. C.Cr.P. art. 894.1 need not be recited, the record must reflect the trial court adequately considered the criteria. Scott, 228 So. 3d at 211. The articulation of the factual basis for a sentence is the goal of La. C.Cr.P. art. 894.1, not rigid or mechanical compliance with its provisions. The trial court should review the defendant's personal history, his prior criminal record, his family dependents, the seriousness of the offense, the likelihood that he will commit another crime, and his potential for rehabilitation through correctional services other than confinement. Scott, 228 So. 3d at 211. Where the record clearly shows an adequate factual basis for the sentence imposed, the supreme court has held that remand is unnecessary, even where there has not been full compliance with La. C.Cr.P. art. 894.1. State v. Burks, 2018-1735 (La. App. 1st Cir. 5/31/19), 278 So. 3d 390, 395, writ denied, 2019-01186 (La. 3/9/20), 294 So. 3d 478. On appellate review of a sentence, the relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. Scott, 228 So. 3d at 211.

The factors guiding the decision of the trial court are necessary for an appellate court to adequately review a sentence for excessiveness and, therefore, should be in the record. State v. Shipp, 98-2670 (La. App. 1st Cir. 9/24/99), 754 So. 2d 1068, 1072. Otherwise, a sentence may appear to be arbitrary or excessive and not individualized to the particular defendant. State v. Green, 558 So. 2d 1263, 1268 (La. App. 1st Cir.), writ denied, 564 So. 2d 317 (La. 1990). When the reasons for an apparently severe sentence in relation to the particular defendant and the actual offense committed do not appear in the record, a sentence may be vacated and remanded for resentencing. Shipp, 754 So. 2d at 1072.

To aid the appellate court in this review in the context of a habitual offender proceeding, La. R.S. 15:529.1 directs the trial court to provide written reasons for its determination. State v. Baker, 2023-0815 (La. App. 1st Cir. 4/19/24), 389 So. 3d 839, 843. Here, although not fatal, the trial court did not provide such written reasons. We note that the defendant received maximum life sentences under the enhanced sentencing scheme, after he initially received a sentence of nineteen consecutive years, as previously explained. In arguing for a lesser sentence, the defendant asserts that the life sentences are excessive as his predicate convictions were based on crimes he committed as a teenager and, of his predicate convictions, only one involved a crime of violence. He further contends the sentences are not proportional to the severity of the instant offenses. While the defendant acknowledges he is a recidivist, he argues a life sentence should be imposed only for offenders who commit “the worst offenses such as murder or rape[.]”While the trial court may very well have considered these facts, there is no indication of such in the record before us.

The legislature passed the Habitual Offender Law to deter and punish recidivism. Under this statute, a defendant with multiple felony convictions is treated as a recidivist who is to be punished for the instant crime in light of his continuing disregard for the laws of our state. He is subjected to a longer sentence because he continues to break the law. See State v. Johnson, 97-1906 (La. 3/4/98), 709 So. 2d 672, 677.

Maximum sentences may be imposed for the most serious offenses and the worst offenders or when the offender poses an unusual risk to the public safety in light of his past repeated criminality. See State v. Parker, 2012-1550 (La. App. 1st Cir. 4/26/13), 116 So. 3d 744, 754, writ denied, 2013-1200 (La. 11/22/13), 126 So. 3d 478. The legislature has crafted the statutory scheme to take the seriousness of the offense into account. The underlying offense is assigned a sentencing range by the legislature, and the Habitual Offender Law computes an enhanced maximum sentence using a multiplier based upon the number of proven prior convictions. The minimum sentence within the range is generally a fraction of the maximum sentence or a fixed twenty years. See Baker, 389 So. 3d at 845. So, for example, for a fourth or subsequent offender, the Habitual Offender Law provides the following sentencing ranges:

(4) If the fourth or subsequent felony is such that, upon a first conviction the offender would be punishable by imprisonment for any term less than his natural life then the following sentences apply:

(a) The person shall be sentenced to imprisonment for the fourth or subsequent felony for a determinate term not less than the longest prescribed for a first conviction but in no event less than twenty years and not more than his natural life.

(b) If the fourth felony and no prior felony is defined as a crime of violence under R.S. 14:2(B), or as a sex offense under R.S. 15:541, the person shall be imprisoned for not less than twenty years nor more than twice the longest possible sentence prescribed for a first conviction. If twice the possible sentence prescribed for a first conviction is less than twenty years, the person shall be imprisoned for twenty years.

(c) If the fourth felony and two of the prior felonies are felonies defined as a crime of violence under R.S. 14:2(B), or a sex offense as defined in R.S. 15:541 when the victim is under the age of eighteen at the time of commission of the offense, the person shall be imprisoned for the remainder of his natural life, without benefit of parole, probation, or suspension of sentence.

La. R.S. 15:529.1(A)(4)(a)-(c).³ Absent the occasion when a life sentence is mandated, all fourth or subsequent offenders can be treated individually by the trial court when tailoring a sentence within the provided range. See Baker, 389 So. 3d at 845.

So, while it is true that the defendant herein was previously convicted of felonies, the same is true of all defendants found to be fourth offenders. The upper end of the sentencing range accounts for the severity of the offense the State seeks to enhance, while allowing for a lesser sentence if appropriate. A particular offender cannot be distinguished by simply pointing out that he falls within a category of like offenders. One can distinguish the offender by considering, among other things, those factors contained in La. C.Cr.P. art. 894.1.

As discussed above, the defendant was adjudicated a fourth-felony habitual offender. The habitual offender bill of information reflects the defendant pled guilty to simple burglary, in violation of La. R.S. 14:62, in January of 2014. While released on parole, he was arrested for possession of a firearm or carrying a concealed weapon by a person convicted of certain felonies, in violation of La. R.S. 14:95.1, and theft of a firearm, in violation of La. R.S. 14:67.15. He pled guilty to attempted possession of a firearm or carrying a concealed weapon by a person convicted of certain felonies and theft of a firearm in July of 2014. In July of 2014, the defendant also pled guilty to second degree battery, in violation of La. R.S. 14:34.1, which is defined as a crime of violence under La. R.S. 14:2(B)(6).⁴ The defendant committed the instant offenses, two counts of indecent behavior with a juvenile and one count of obstruction of justice, in October and November of 2020. When the defendant was brought before the court to answer the allegations contained in the multiple offender bill of information, he denied the predicate offenses. The State then proved the allegations at a hearing on December 1, 2022. As a fourth-felony habitual offender, facing a sentencing range of twenty years to life imprisonment on each count, the trial court sentenced him to the maximum sentence on each count. See La. R.S. 15:529.1(A)(4)(a).

At the resentencing hearing, defense counsel asked the trial court to impose sentences below the mandatory minimum based on the defendant's age and criminal history, noting:

[T]he first predicate [the State] alleged is from when Mr. Skipper was -- had just turned 17. He was four months into being 17, and it was a nonviolent simple burglary offense that he was arrested for. Today, that would be a juvenile offense, and it would have been routed through delinquency court. But, instead, Mr. Skipper was sentenced to one year at hard labor about eight days after he turned 18. The only violent predicate that the State alleges is a second degree battery from when Mr. Skipper was 18 ․ That was a jail fight, and the victim in that case, as alleged by this -- by the police report, was a 35-year-old who was also -- male, who was also an inmate. So it was Mr. Skipper at 18 against a 35-year-old, a second degree battery. That's the only violent predicate that the State alleges, so we would respectfully urge the Court to look at Mr. Skipper as a nonviolent -- as having a nonviolent record. And based on the facts and of the instant conviction and the consideration of all the aggravating and mitigating factors in Article 894[.l], we'd urge the Court to -- that a downward departure is constitutionally required, that a 20-year sentence is constitutionally excessive, and we would urge the Court for a just and fair sentence.

The State argued the maximum sentences were warranted.

After a thorough review of the record, it appears the trial court did not supply suitable reasons, either oral or written, for the sentence imposed.⁵ Accordingly, we question whether the trial court adequately complied with Article 894.1. The trial court may have good reasons for imposing the terms of imprisonment, but those reasons are not articulated and do not appear in the record before us. As such, a remand of this matter is necessary. While we do not specifically find this sentence to be excessive, by remanding the case for resentencing, we give the trial court an opportunity to state sufficient reasons to justify the imposition of the maximum sentence. See State v. Moses, 615 So. 2d 1030, 1035 (La. App. 1st Cir.), writ denied, 624 So. 2d 1223 (La. 1993). By remanding, we also allow for the defendant to inform the court, if he can, of factors that mitigate toward a lesser sentence. Accordingly, the instant sentences are vacated and the case is remanded to the trial court for resentencing.

PATENT ERROR

Pursuant to La. C.Cr.P. art. 920(2), this court routinely conducts a review of all appeals for error discoverable by mere inspection of the pleadings and proceedings and without inspection of the evidence. State v. Anthony, 2023-0117 (La. App. 1st Cir. 11/3/23), 378 So. 3d 766, 775, writ denied, 2024-00027 (La. 5/21/24), 385 So. 3d 242. After a careful review of the record, we have found one patent error.

The transcript reflects the trial court failed to advise the defendant of the prescriptive period for filing an application for post-conviction relief. Louisiana Code of Criminal Procedure article 930.8(C) directs the trial court to inform the defendant of the prescriptive period for filing an application for post-conviction relief at the time of sentencing. See State v. LeBoeuf, 2006-0153 (La. App. 1st Cir. 9/15/06), 943 So. 2d 1134, 1142, writ denied, 2006-2621 (La. 8/15/07), 961 So. 2d 1158. After resentencing the defendant, the trial court is instructed to properly advise him of the time period provided in La. C.Cr.P. art. 930.8 for applying for post-conviction relief. See State v. Thompson, 2010-2254 (La. App. 1st Cir. 6/10/11), 2011 WL 3423798, *1 (unpublished); State v. Flanagan, 2024-0025 (La. App. 1st Cir. 9/26/24), 2024 WL 4297820, *7 (unpublished).

CONCLUSION

For the above and foregoing reasons, the defendant's sentences are vacated and the matter is remanded.

SENTENCES VACATED; REMANDED.

I disagree with the majority's decision to vacate the defendant's sentences and to remand this case to the trial court for resentencing. According to longstanding Louisiana jurisprudence regularly followed today, where the record clearly shows an adequate factual basis for the sentence imposed, a remand to the trial court for full compliance with La. C.Cr.P. art. 894.1 is unnecessary. See State v. Lobato, 603 So.2d 739, 751 (La. 1992); State v. Lanctos, 419 So.2d 475, 478 (La. 1982); State v. Day, 391 So.2d 1147, 1151 (La. 1980); State v. Knight, 2011-0366 (La. App. 1 Cir. 9/14/11), 77 So.3d 302, 305, writ denied, 2011-2240 (La. 2/17/12), 82 So.3d 283. Further, under La. C.Cr.P. art. 881.4(D), even when the trial court assigns no reasons, the appellate court shall not set aside a sentence for excessiveness if the record supports the sentence imposed. See Knight, 77 So.3d at 304.

In this case, I think the record clearly supports the sentences imposed and it is unnecessary to remand to have the trial court restate for the record matters that are already apparent from the record. Day, 391 So.3d at 1151. In reviewing the defendant's criminal history, it is clear from the record he is the worst offender and poses a serious risk to the public. The record shows the defendant was convicted of a crime of violence and his instant convictions include two sex offenses and an obstruction of justice offense wherein he attempted to convince the juvenile victim not to cooperate in the court proceedings. The victim in this case was particularly vulnerable due to her young age and her friendship with the defendant's family member. The defendant began committing felonies as a teenager and has not stopped breaking the law, even while in jail.

Moreover, as noted by the majority in a footnote, the record reflects the defendant had numerous pending charges at the time of his original sentencing, and the trial court remarked he had “two pages o[n] my docket with numerous other alleged offenses.” The pending charges included second degree murder, obstruction of justice by tampering with evidence, and possession of a firearm or carrying a concealed weapon by a person convicted of certain felonies, among others. In sentencing the defendant, the trial court noted he was presumed innocent of those charges until proven guilty but found the charges demonstrated ongoing criminal activity. And, under La. C.Cr.P. art. 894.1(B)(12) and (21), notwithstanding the presumption of innocence, the trial court had explicit authority to consider the defendant's persistent involvement in similar offenses not already considered as criminal history or as a part of a multiple offender adjudication as well as any other relevant aggravating circumstances. See State v. Parfait, 96-1814 (La. App. 1 Cir. 5/9/97), 693 So.2d 1232, 1244, writ denied, 97-1347 (La. 10/31/97), 703 So.2d 20 (wherein the trial court properly considered the defendant's pending felony and misdemeanor charges in determining his sentence); State v. Jackson, 98-0004 (La. App. 1 Cir. 11/6/98), 724 So.2d 215, 221, writ denied, 98-3056 (La. 4/1/99), 741 So.2d 1283 (noting that prior criminal activity is one of the factors to be considered by the trial court in sentencing and is not limited to convictions); State v. Marchese, 430 So.2d 1303, 1308 (La. App. 1 Cir. 1983) (noting the sources of information from which a sentencing court may draw are extensive, and traditional rules of evidence are not bars to consideration of otherwise relevant information, including pending charges).

While I acknowledge the importance of the trial court's compliance with La. C.Cr.P. art. 894.1 in articulating sufficient reasons for sentencing, I find the record clearly shows an adequate factual basis for the sentences imposed in this case. See Lanclos, 419 So.2d at 478; cf. Baker, 2023-0815 (La. App. 1 Cir. 4/19/24), 389 So.3d 839, 846.¹ Therefore, relying on La. C.Cr.P. art. 881.4(D) and the well-established practice in Louisiana appellate courts of affirming a sentence adequately supported by the record, I would find the trial court did not abuse its discretion in sentencing the defendant to the maximum sentences in this case.

FOOTNOTES

1.   We note the defendant's original sentences were illegal insomuch as the applicable sentencing provisions did not authorize the court to restrict parole, probation, or suspension of sentence. See La. R.S. 14:81(H)(1) and 14:130.1(B); see also State v. Duhon, 2018-0593 (La. App. 1st Cir. 12/28/18), 270 So. 3d 597, 635-36, writ denied, 2019-0124 (La. 5/28/19), 273 So. 3d 315.

2.   The trial court failed to specify the sentences were to be served at hard labor and without the benefit of probation or suspension of sentence as mandated by La. R.S. 15:529.1(G). Pursuant to La. R.S. 15:301.1, the defendant's habitual offender sentence is deemed to contain the benefits restriction by operation of law. See State v. Williams, 2000-1725 (La. 11/28/01), 800 So. 2d 790, 799; State v. Passow, 2013-0341 (La. App. 1st Cir. 11/1/13), 136 So. 3d 12, 15. Thus, no corrective action is warranted by this court.

3.   This version of La. R.S. 15:529.1 was effective from August 1, 2019 to June 30, 2024.

4.   On May 8, 2014, while incarcerated, the defendant hit and kicked another inmate.

5.   We note the record reflects during the first habitual offender sentencing on December 1, 2022, the trial court remarked the defendant had “two pages o[n] my docket with numerous other alleged offenses.” The pending charges included charges of second degree murder, obstruction of justice by tampering with evidence, and possession of a firearm or carrying a concealed weapon by a person convicted of certain felonies, among others. We recognize that the trial court may consider the defendant's persistent involvement in similar offenses not already considered as criminal history or as a part of a multiple offender adjudication as well as any other relevant aggravating circumstances under La. C.Cr.P. art. 894.1(B)(12) and (21). See State v. Parfait, 96-1814 (La. App. 1st Cir. 5/9/97), 693 So. 2d 1232, 1244, writ denied, 97-1347 (La. 10/31/97), 703 So. 2d 20 (wherein this court discussed the defendant's pending felony and misdemeanor charges). However, those considerations must be balanced against the defendant's presumption of innocence. While the trial court noted that the defendant was presumed innocent of those pending charges until proven guilty, it then found the charges demonstrated ongoing criminal activity. If the defendant is found guilty of the referenced charges, he faces life in prison. It remains unclear however, how much these unresolved charges contributed to the life sentence imposed. Further, we note that the trial court did not mention any pending charges nor did the court provide any analysis or additional reasons for the life sentences imposed at the second habitual offender sentencing on November 13, 2023.

1.   The majority cites to and seemingly relies on Baker, 389 So.3d 839, wherein this Court vacated the defendant's sentences after finding the trial court failed to supply reasons for the sentences imposed. In my view, Baker is readily distinguishable from the instant case, and the majority's reliance on it is misplaced. While acknowledging a longstanding jurisprudence of “reticence toward remand when it is not apparent from the record that the trial court considered or reviewed the Article 894.1 criteria,” the Baker court justified its decision to remand by noting that courts have “remand[ed] within the context of post-conviction relief.” Baker, 349 So.3d at 845, n.8 (citing State v. Allen, 2022-00508 (La. 11/1/22), 348 So. 3d 1274 (per curiam) and State v. Thompson, 2022-01391 (La. 5/2/23), 359 So. 3d 1273 (per curiam)). The Allen and Thompson cases, however, involved claims of ineffective assistance of counsel at sentencing. The issue in the instant case is not whether counsel was ineffective at sentencing but, rather, whether the sentences imposed are supported by the record. Based on my record review, I would find that, although the trial court articulated only minimal sentencing reasons, the sentences are not apparently severe and are supported by the record. Accordingly, I think a remand for full compliance with La. C.Cr.P. art. 894.1 is unnecessary.

MILLER, J.

GREENE, J. dissents with reasons.