STATE OF LOUISIANA v. JOHNNY VEDROS JR (2018)

The defendant, Johnny P. Vedros, Jr., was charged by bill of information with simple burglary, a violation of La. R.S. 14:62, and pled not guilty.¹ After a trial by jury, the defendant was found guilty as charged. The trial court denied the defendant's motion for new trial and motion for post-verdict judgment of acquittal. The defendant was sentenced to ten years imprisonment at hard labor. The defendant timely appealed, assigning as error the constitutionality of the sentence. For the following reasons, we affirm the conviction and sentence.

STATEMENT OF FACTS

On September 13, 2015, Deputy Cody Naquin of the Lafourche Parish Sheriff's Office (LPSO) was dispatched to 2776 Highway 307 in Thibodaux, Louisiana, the residence of Nelson Kraemer. Mr. Kraemer specifically reported that several boats and other items were missing from his property located in a wooded area. In response, Deputy Naquin and LPSO Detective Jeff Chamberlain set up surveillance cameras on Mr. Kraemer's property.² On October 1, 2015, Mr. Kraemer reported the instant offense, specifically indicating that his shed, which was ordinarily padlocked, had been broken into and that a large John Deere tractor engine that he stored therein had been taken.³ The next day, on October 2, 2015, the surveillance captured two men and a white pickup truck with the license plate in clear view on some of the images. Detective Chamberlain contacted the registered owner, Michael Bourgeois. During a recorded police interview on October 13, 2015, after being advised of his Miranda ⁴ rights, Bourgeois provided details that were consistent with information known to the police.

Bourgeois admitted that he and the defendant were on Mr. Kraemer's property on several occasions, and that they took items from the property. As to the instant offense, Bourgeois admitted that he gave the defendant a hammer, that the defendant used the hammer to remove the padlock from the shed door, and that they removed the motor and an air compressor, and loaded the items onto their vehicle before leaving the property. After Detective Chamberlain compared a photograph of the defendant to the individuals depicted in the surveillance photographs, warrants were issued for the defendant and Bourgeois' arrests. Bourgeois subsequently testified at trial consistent with his recorded statement, noting that he and the defendant scrapped and sold the boats and engine that they took from Mr. Kraemer's property to a scrap company.⁵ The defendant did not testify at trial.

EXCESSIVE SENTENCE

In his sole assignment of error, the defendant argues that the sentence imposed in this case is unconstitutionally excessive. The defendant contends that this court should consider the sentence in light of the fact that he is fifty-six years old, that the offense was non-violent, and that the stolen item (the motor) was recovered and returned to the owner. The defendant argues that under the circumstances, the sentence, which he describes as “almost maximum,” goes beyond any societal purpose in punishing the defendant and will exact needless pain and suffering on the defendant and his family.⁶

The record before this court does not contain a copy of a motion to reconsider sentence or evidence that the defendant objected to or moved for reconsideration of the sentence. Louisiana Code of Criminal Procedure article 881.1(A)(1) requires a defendant or the State to make or file a motion to reconsider sentence within thirty days of sentencing unless the trial court sets a longer period of time at the time of sentencing. Failure to make or file a motion to reconsider sentence or to include a specific ground upon which a motion to reconsider sentence may be based, including a claim of excessiveness, shall preclude the State or the defendant from raising an objection to the sentence or from urging any ground not raised in the motion on appeal or review. La. Code Crim. P. art. 881.1(E). As stated, the record before us does not include a motion to reconsider sentence, nor did the defendant enter an objection after the sentence was imposed. As the defendant failed to comply with La. Code Crim. P. art. 881.1, he is barred procedurally from having the assignment of error reviewed. See La. Code Crim. P. art. 881.1(E). State v. Thompkins, 2017-0210 (La. App. 1st Cir. 9/21/17), 232 So.3d 40, 2017 WL 4216263; see also State v. Duncan, 94-1563 (La. App. 1st Cir. 12/15/95), 667 So.2d 1141, 1143 (en banc per curiam).

CONVICTION AND SENTENCE AFFIRMED.

FOOTNOTES

1.   The defendant was also charged with four counts of theft, which were subsequently nolle prossed by the State.

2.   On September 17, 2015, weeks before the instant offense, the surveillance captured a male subject walking around the area.

3.   The instant offense specifically took place between September 30, 2015, and October 1, 2015, the day that Kraemer reported the offense.

4.   Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966).

5.   The police recovered Mr. Kraemer's John Deere motor from a scrap company and the employee who released the motor informed the police that the defendant's identification was used in the sale of the item.

6.   Before imposing sentence, the trial court ordered and reviewed a presentence investigation report. The report classified the defendant as a fourth-felony offender and detailed the defendant's lengthy criminal history, which includes the following crimes against the person: four convictions of simple battery, two convictions of violation of protective orders, and a conviction of aggravated flight from an officer. The report further included the following prior felonies offenses: a conviction of unauthorized entry of an inhabited dwelling, and two convictions of operating a vehicle while intoxicated, third offense. The defendant previously received the benefit of a suspended sentence, probation, and/or parole on the prior felony convictions.

THERIOT, J.