STATE OF LOUISIANA v. ERNEST RS DAY (2025)

The defendant, Ernest RS Day, was charged by an amended bill of information with four counts as follows: failure to register and notify as a sex offender or child predator, second offense (counts one and two), violations of La. R.S. 15:542.1.4(A)(2); and resisting a police officer with force or violence (counts three and four), violations of La. R.S. 14:108.2. Following a jury trial, on counts one and two, the defendant was found guilty of the responsive offense of failure to register and notify as a sex offender or child predator, first offense, violations of La. R.S. 15:542.1.4(A)(1); and on counts three and four, he was found guilty as charged. He filed a motion for post-verdict judgment of acquittal and a motion for new trial, both of which the trial court denied. The trial court sentenced the defendant to ten years imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence on counts one and two, and to three years imprisonment at hard labor on counts three and four; to be served concurrently.

The State filed a habitual offender bill of information seeking to enhance all four sentences. After stipulating to the allegations, the defendant was adjudicated a fourth-felony habitual offender. The trial court subsequently vacated the original sentences and resentenced him to twenty years imprisonment at hard labor without the benefit of probation or suspension of sentence on counts one and two, and to life imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence on counts three and four; to be served concurrently. The defendant now appeals, assigning error to the constitutionality of the life sentences on counts three and four, and to trial counsel's failure to file a motion to reconsider sentence. For the following reasons, we affirm the convictions, habitual offender adjudications, and sentences.

STATEMENT OF FACTS

On February 11, 2022, the defendant, a registered sex offender, failed to appear at the St. Tammany Parish Sheriff's Office (S.T.P.S.O.) for the annual renewal of his sex offender registration. Subsequently, a warrant was issued for the defendant's arrest.

On February 16, 2022, Deputy Benjamin Rushing and Deputy Ian Rogers with the S.T.P.S.O. went to the defendant's residence to execute the arrest warrant. After the defendant answered the door and went outside, the deputies informed him of the reason for them being there. When they attempted to place the defendant in handcuffs, he fled into a wooded area. Deputy Rogers called for backup assistance. Both deputies were injured in trying to subdue the defendant. Deputy Rushing testified that he sustained injuries wrestling on the ground with the defendant, and Deputy Rogers testified that he was injured while attempting to regain control over his Taser after it was grabbed by the defendant. After backup officers arrived, the defendant was subdued, handcuffed, and placed under arrest.

On November 17, 2022, the defendant was released from confinement. Four days later, on November 21, 2022, at the S.T.P.S.O., he began the sex offender registration process, providing a Slidell, Louisiana address. He was told to return on December 8, 2022, with required documentation noted in a checklist on his registration form, including his identification, verification of address, and payment for the cost of community and newspaper notification in the form of a money order. The defendant failed to appear on December 8, 2022, and an arrest warrant was issued due to the failure to appear and failure to provide the additional information needed to send notifications.

On January 9, 2023, Deputy Jody Campbell with the S.T.P.S.O. United States Marshals Fugitive Task Force was assigned to the case. Deputy Campbell located the defendant approximately one month later at a residence in Pearl River, Louisiana. Deputy Campbell and other officers of the Task Force set up a perimeter around the house. As Deputy Campbell drove to the back of the house, he observed the defendant running out of the back door toward a wood line. Deputy Campbell repeatedly announced, “Police. Stop[.]” The defendant ignored orders to stop and continued to flee. Deputy Campbell followed him into the wood line, gave chase, but lost sight of the defendant at a canal inlet. He ultimately located the defendant in the canal along the shoreline. The defendant was subdued and taken into custody, after other officers with the Task Force arrived in the area.

DISCUSSION

In assignment of error number one, the defendant challenges the enhanced sentences on counts three and four (the current offenses). He asserts that due to the trial court classifying his two convictions of resisting a police officer with force or violence as crimes of violence, the State was able to use two of his prior convictions, including a crime of violence and a sex offense, to enhance the sentences on the current offenses and thereby obtain a life sentence. He argues that under the facts and circumstances of the case, a life sentence is unconstitutionally excessive. In assignment of error number two, the defendant argues the failure of his trial counsel to file a motion to reconsider sentence should be deemed ineffective assistance of counsel and thus he should not be precluded from raising excessiveness on appeal.

The record does not contain an oral or written motion to reconsider the sentences. Louisiana Code of Criminal Procedure article 881.1(E) provides that the failure to file or make a motion to reconsider sentence precludes the defendant from raising an excessive sentence argument on appeal. Ordinarily, pursuant to the provisions of this article and the holding of State v. Duncan, 94-1563 (La. App. 1st Cir. 12/15/95), 667 So. 2d 1141, 1142-43 (en banc; per curiam), we would not consider an excessive sentence argument. However, in the interest of judicial economy, we may consider the defendant's argument that his sentences are excessive, even in the absence of a motion to reconsider sentence, in order to also address the defendant's claim of ineffective counsel.¹ State v. Scott, 2017-0209 (La. App. 1st Cir. 9/15/17), 228 So. 3d 207, 210, writ denied, 2017-1743 (La. 8/31/18), 251 So. 3d 410. In this instance, we choose to consider the defendant's argument as to ineffective assistance of counsel.

In Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984), the United States Supreme Court enunciated the test for evaluating the competence of trial counsel. Specifically, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Further, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Strickland, 466 U.S. at 687.

In evaluating the performance of counsel, the inquiry must be whether counsel's assistance was reasonable considering all the circumstances. Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim. Scott, 228 So. 3d at 210. Failure to file a motion to reconsider sentence in itself does not constitute ineffective assistance of counsel. However, if the defendant can show a reasonable probability that, but for counsel's error, his sentence would have been different, a basis for an ineffective assistance claim may be found. Id.

The defendant was adjudicated a fourth-felony offender after he stipulated to the predicates. He was sentenced under La. R.S. 15:529.1 to twenty years imprisonment at hard labor without the benefit of probation or suspension of sentence on counts one and two, and to life imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence on counts three and four; to be served concurrently. The applicable version of La. R.S. 15:529.1(A)(4)(c) provides,

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.

The defendant's fourth-felony habitual offender status is reached based on the following predicate convictions: failure to register as a sex offender, second offense in 2018; attempted disarming of a peace officer in 2011; failure to notify law enforcement of change of address in 2011; possession with intent to distribute marijuana in 2008; and a Florida conviction of lewd and lascivious battery on a victim younger than sixteen years of age in 2005. The trial court initially determined that the defendant's current felonies, both resisting a police officer with force or violence, are crimes of violence pursuant to La. R.S. 14:2(B). Then, the trial court determined that the defendant's prior felony conviction of attempted disarming of a peace officer is an enumerated crime of violence under La. R.S. 14:2(B)(36), and his prior felony conviction of lewd and lascivious battery on a victim younger than sixteen years of age, a Florida conviction, is a sex offense under La. R.S. 15:541.² See F.S.A. § 800.04(4)(a)(2). Thus, it appears that the defendant's life sentences on the current offenses were statutorily mandated under the Habitual Offender Law. See La. R.S. 15:529.1(A)(4)(c).

The defendant argues, however, that the trial court's determination that resisting a police officer with force or violence is a crime of violence mandated that his sentence be enhanced to a life sentence, but his actions that resulted in the convictions do not justify such a sentence. Specifically, he alleges that he made a panicked, scared decision to run from the police and that he never intended to punch, slap, or hit either deputy.

Pursuant to La. R.S. 14:108.2,

Resisting a police officer with force or violence is any of the following when the offender has reasonable grounds to believe the victim is a police officer who is arresting, detaining, seizing property, serving process, or is otherwise acting in the performance of his official duty:

(1) Using threatening force or violence by one sought to be arrested or detained before the arresting officer can restrain him and after notice is given that he is under arrest or detention.

(2) Using threatening force or violence toward or any resistance or opposition using force or violence to the arresting officer after the arrested party is actually placed under arrest and before he is incarcerated in jail.

(3) Injuring or attempting to injure a police officer engaged in the performance of his duties as a police officer.

(4) Using or threatening force or violence toward a police officer performing any official duty.

Louisiana Revised Statutes 14:2(B) defines “crime of violence” as an offense that has, as an element, the use, attempted use, or threatened use of physical force against the person or property of another, and that, by its very nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense or an offense that involves the possession or use of a dangerous weapon. While resisting a police officer with force or violence is not an enumerated crime of violence under La. R.S. 14:2(B), this list of enumerated crimes is merely illustrative, not exhaustive, unlisted offenses may be denominated as crimes of violence under the general definition of the term provided by the statute. See State v. Oliphant, 2012-1176 (La. 3/19/13), 113 So. 3d 165, 170. The defendant's alleged panic and fear do not redefine the violent nature of the encounter. After review, we find that the crime committed by the defendant, resisting a police officer with force or violence, is a felony and fits the definition of a crime of violence, and the trial court did not err in reaching this same conclusion. See State v. Dorsey, 2022-196 (La. App. 3rd Cir. 10/5/22), 349 So. 3d 703, 711 (finding that “the trial court properly designated Defendant's conviction for resisting an officer with force or violence as a crime of violence”).

The next question for us to answer is whether the sentence imposed is unconstitutionally excessive. The Eighth Amendment to the United States Constitution and Article I, § 20, of the Louisiana Constitution prohibit the imposition of cruel or excessive punishment. Although a sentence falls within statutory limits, it may be excessive. A sentence is considered unconstitutionally excessive if it is grossly disproportionate to the seriousness of the offense or is nothing more than a purposeless and needless infliction of pain and suffering. A sentence is considered 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. Anderson, 2022-0587 (La. App. 1st Cir. 12/22/22), 357 So. 3d 845, 852, writ denied, 2023-00352 (La. 9/6/23), 369 So. 3d 1267.

Louisiana Code of Criminal Procedure article 894.1 sets forth the factors for the trial court to consider when imposing a sentence. While the entire checklist of Article 894.1 need not be recited, the record must reflect the trial court adequately considered the criteria. State v. Baker, 2023-0815 (La. App. 1st Cir. 4/19/24), 3 89 So. 3d 839, 843. The sentencing judge should review the defendant's personal history, his prior criminal record, the seriousness of the offense, the likelihood that he will commit another crime, and his potential for rehabilitation through correctional services other than confinement. The articulation of the factual basis for a sentence is the goal of Article 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with Article 894.1. Anderson, 357 So. 3d at 852.

It has been frequently noted that the failure to articulate reasons as set forth in Article 894.1 when imposing a mandatory life sentence is not an error since articulating such reasons or factors would be an exercise in futility as the court has no discretion. State v. Dickerson, 2016-1336 (La. App. 1st Cir. 4/12/17), 218 So. 3d 633, 642, writ denied, 2017-1147 (La. 8/31/18), 251 So. 3d 1062. However, this comes with a caveat. In State v. Thompson, 2022-01391 (La. 5/2/23), 359 So. 3d 1273, 1275-76 (per curiam), which involved a mandatory life sentence under the Habitual Offender Law, the Louisiana Supreme Court still vacated and remanded the defendant's life sentence with instructions to the trial court to state for the record its considerations and factual basis when resentencing the defendant pursuant to Article 894.1(C).³ Thus, a sentence may be excessive even if it falls within the statutory range established by the Legislature. State v. Johnson, 97-1906 (La. 3/4/98), 709 So. 2d 672, 676; State v. Sepulvado, 367 So. 2d 762, 767 (La. 1979).

In State v. Dorthey, 623 So. 2d 1276, 1280-81 (La. 1993), the Louisiana Supreme Court held that this extends to the minimum sentences mandated by the Habitual Offender Law and that the trial court must reduce a 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.[ ]”

To rebut the presumption that the mandatory minimum sentence under the Habitual Offender Law is constitutional, the defendant must clearly and convincingly show that he is exceptional, which means that because of unusual circumstances this defendant is a victim of the legislature's failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case. It is not the role of the sentencing court to question the wisdom of the legislature in requiring enhanced punishments for multiple offenders. Instead, the sentencing court is only allowed to determine whether the particular defendant before it has proven that the mandatory minimum sentence is so excessive in his case that it violates the constitution. Departures downward from the minimum sentence under the Habitual Offender Law should occur only in rare situations. Johnson, 709 So. 2d at 676-77.

The defendant argues on appeal that due to the nature of the instant offenses, a life sentence without the benefit of probation, parole, or suspension of sentence is a needless imposition of pain and suffering. He contends his failure to register in February of 2022 was due to an oversight, and he failed to appear and pay for notifications in December of 2022 due to financial difficulties and the lack of transportation. He further states he panicked when he resisted arrest.

We find nothing unusual or unique about the defendant's circumstances that would justify a downward departure from the mandatory life sentences. Herein, the defendant's actions demonstrated a reckless disregard for the safety of the officers involved in arresting him on more than one occasion. His persistent refusal to obey the officers’ commands resulted in significant bodily injury to both officers. During the February 2022 encounter with the defendant, Deputy Rushing sustained an injury to his forehead and a knee injury, diagnosed as a Meniscus tear, that prevented him from being able to stand. He had to be carried from the scene and transported to the hospital. Deputy Rogers sustained a right shoulder complex injury due to his struggle with the defendant.

The defendant again avoided his registration duties in December of 2022, and placed officers in a dangerous position while pursuing him in a wood line at a canal inlet. Further, the defendant's criminal history includes a sex offense against a minor and the repeated disregard for the laws of sex offender registration.

We find the defendant has not proven by clear and convincing evidence that he is exceptional such that the minimum sentence under the Habitual Offender Law was not meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case. Accordingly, no downward departure from the presumptively constitutional mandatory minimum sentence is warranted in this case. See Anderson, 357 So. 3d at 853. Thus, the enhanced life sentences are not grossly disproportionate to the severity of the offenses, and therefore, are not unconstitutionally excessive. The record before us establishes an adequate factual basis for the sentences imposed. In its written reasons for sentencing, the trial court noted it considered the record and the argument of counsel. Because we find the sentences are not excessive, defense counsel's failure to file or make a motion to reconsider sentence, even if constituting deficient performance, did not prejudice the defendant. The claim of ineffective assistance of counsel, therefore, must fail. Scott, 228 So. 3d at 213. The assignments of error are without merit.

CONVICTIONS AFFIRMED, HABITUAL OFFENDER ADJUDICATION AFFIRMED, AND SENTENCES AFFIRMED.

FOOTNOTES

1.   A claim of ineffective assistance of counsel is more properly raised by an application for postconviction relief in the trial court where a full evidentiary hearing may be conducted. However, in the interest of judicial economy, an appellate court may address the issue of ineffective assistance, where the record discloses evidence needed to decide the issue, and the defendant raises the issue by assignment of error on appeal. State v. Kimble, 2023-0176 (La. App. 1st Cir. 9/21/23), 376 So. 3d 869, 875.

2.   We note that in using the defendant's Florida conviction of lewd and lascivious battery on a victim younger than sixteen years of age as a predicate offense, the trial court found it to be a sex offense under La. R.S. 15:541. Further, the defendant does not argue that this finding is incorrect on appeal.

3.   We note that in Thompson, none of the defendant's convictions were crimes of violence or sex offenses.

MILLER, J.