STATE OF LOUISIANA v. KEITH KISACK (2026)

Defendant, Keith Kisack, appeals the district court's judgment which denied Defendant's motion to reconsider the life sentence imposed arising out of his fourth felony offender adjudication. Defendant's fourth felony offense resulted from his 2014 conviction for possession of contraband (La. R.S. 14:402(E)(7)). For the reasons that follow, we vacate the judgment and remand for resentencing consistent with this opinion.

FACTUAL AND PROCEDURAL HISTORY 1

This Court discussed the relevant background pertinent to the present appeal in a previous appeal, State v. Kisack, 2023-0605, pp. 1-2 (La. App. 4 Cir. 2/16/24), 384 So.3d 990, 992 (Kisack II), as follows:

In a prior appeal in this matter, defendant, Keith Kisack, sought review of the district court's denial of his motion to reconsider sentence. Upon review, this Court found the district court failed to adequately comply with the requirements of La. C.Cr.P. art. 894.1 in its consideration and denial of defendant's motion to reconsider sentence. State v. Kisack, [20]22-0495 (La. App. 4 Cir. 11/16/22), 352 So.3d 127 (“Kisack I”). Accordingly, this Court vacated and remanded to the district court for a ruling on the merits of defendant's motion to reconsider sentence, reserving defendant's right to appeal his sentence once the district court ruled. Id. at 5, 352 So.3d at 130.

Subsequent to this Court's remand, the district court held two hearings in this case and issued two divergent rulings on January 19, 2023 and February 2, 2023, respectively. In its January 19, 2023 ruling, the district court resentenced defendant to a five-year sentence on his underlying conviction of possession of contraband and to a ten-year sentence as a habitual offender. Then, at a February 2, 2023 hearing on a motion to reconsider filed by the State, the district court set aside its January 19, 2023 ruling and sentenced defendant to life imprisonment.

Defendant appealed the district court's February 2, 2023 ruling sentencing him to life imprisonment on the multiple offender adjudication. Upon review, the Kisack II Court found the district court still had not complied with this Court's prior remand order in Kisack I to apply the requirements of La. C.Cr.P. art. 894.1 in its sentencing. Accordingly, the Kisack II Court remanded the matter to the district court, ordering it “to hold a hearing, with defense counsel and defendant present, at which the district court shall comply with the statutory requirements of La. C.Cr.P. art. 894.1 by assessing the aggravating and mitigating factors prior to ruling on defendant's motion to reconsider sentence.” 2023-0605, p. 2, 384 So.3d at 992.

On remand, the district court conducted a hearing with all parties present and heard oral argument. At the hearing's conclusion, the district court effectively denied Defendant's motion for reconsideration, ordering that Defendant's life sentence “shall remain in effect․.” from which this third appeal on Defendant's resentencing arises.

This appeal will address whether Defendant's sentence was excessive based on this Court's order to apply the statutory requirements of La. C.Cr.P. art. Art. 894.1 in Kisack II.

ASSIGNMENTS OF ERROR

Defendant's assignments of error contend the following: 1) the life sentence imposed based on his his fourth felony adjudication for possessing a cell phone is excessive; and 2) the district court did not satisfy this Court's order in Kisack II to apply the statutory requirements of La. C.Cr.P. art. 894.1; and accordingly, the matter should be remanded to a different division of court to reconsider the life sentence assessed.

DISCUSSION

Assignment of Error No. 1: Excessive Sentence

The excessiveness of a sentence is a question of law, and the sentence imposed by the trial court may not be set aside on review absent an abuse of discretion. See State v. Curley, 2023-0498, p. 17 (La. App. 4 Cir. 3/18/24), 401 So.3d 23, 36 (citation omitted). “The reviewing court must determine whether the district court adequately complied with the sentencing guidelines set forth in La. C.Cr.P. art. 894.1 and whether the sentence is warranted in light of the particular circumstances of the case.” State v. Randall, 2010-1027, p. 5 (La. App. 4 Cir. 6/22/11), 69 So.3d 683, 686. Further, courts must “keep[ ] in mind that maximum sentences should be reserved for the most egregious violators of the offense so charged.” Id., pp. 5-6, 69 So.3d at 686 (citations omitted).

This Court discussed the State's prohibition against “cruel, excessive, or unusual punishment” in State v. Johnson as follows:

Our state constitution prohibits any law that subjects an individual to “cruel, excessive, or unusual punishment.” La. Const. art. 1, § 20. The Louisiana Constitution differs from the Eighth Amendment to the U.S. Constitution in its explicit prohibition of excessive sentences. Cf. U.S. Const. Amend VIII (“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”). This “deliberate inclusion by the redactors of the Constitution of a prohibition against ‘excessive’ as well as cruel and unusual punishment broadened the duty of this court to review the sentencing aspects of criminal statutes.” State v. Baxley, [19]94–2982, p. 4 (La. 5/22/95), 656 So.2d 973, 977 (citing State v. Goode, 380 So.2d 1361, 1363 (La. 1980)).

A sentence is excessive and therefore unconstitutional if “it makes no measurable contribution to acceptable goals of punishment and is nothing more than the purposeless imposition of pain and suffering and is grossly out of proportion to the severity of the crime.” See State v. Dorthey, 623 So.2d 1276, 1280 (La. 1993) (internal citation omitted). Thus, even though an imposed sentence may be within the statutory sentencing range, and therefore “legal,” it may still violate a defendant's constitutional right against excessive punishment. See id., at 1280; State v. Sepulvado, 367 So.2d 762, 767 (La. 1979). And, although we give great deference to the legislature's authority to determine the appropriate punishment for a crime, we emphasize that “no penalty is per se constitutional.” Solem v. Helm, 463 U.S. 277, 290, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983); see also State v. Pernell, [20]14–0678, p. 4 (La. App. 4 Cir. 10/15/14), 151 So.3d 940, 944.

It is Defendant's position that the maximum life sentence imposed based on his fourth felony adjudication ² as a result of his 2014 conviction for possession of contraband shocks the conscience and is excessive under the circumstances involved in this case. Defendant emphasizes that the contraband, a cell phone, was only used to communicate with his attorney and not for a violent purpose, and moreover, the offense was then only punishable by up to five years imprisonment. Defendant also points out that the other three underlying convictions comprising his multiple offender adjudication, illegal discharge of a firearm, aggravated battery, and the possession of a firearm by a felon (federal), were obtained by guilty pleas and tendered in 1993, 1995, and 2001, respectively.³

The State counters that in addition to the predicate offenses that encompassed Defendant's multiple offender adjudication, the district court also properly considered Defendant's criminal history. This history includes multiple arrests, not all of which resulted in prosecution or convictions. The State also represents that Kisack has a history of violent behavior while in jail for other crimes.

Pursuant to the remand and evidentiary hearing as ordered in Kisack II, supra, the district court denied Defendant's motion to reconsider sentence, reasoning as follows:

THE COURT:

All right. Considering all of the factors that have been laid out by the higher court, as well as all factors that have been weighed out in the matter by all previous trial matters and trial courts, this court hereby finds that the sentence shall remain in effect and will allow the defendant to lodge his objection and seek whatever relief he may have. Good luck to you sir.

(E) Clearly, the trial court did not specifically reference La. C.Cr.P. art. 894.1 in resentencing Defendant. However, “the articulation of the factual basis for a sentence is the goal of Article 894.1, not rigid or mechanical compliance with its provisions.” State v. Gibson, 2015-1390, p. 10 (La. App. 4 Cir. 7/6/15), 197 So.3d 692, 699. Based on the above colloquy, the district court summarily complied with the statutory requirements of La. C.Cr.P. art. 894.1 by considering the factors previously “laid out” by the higher court and the district courts in this matter. In doing so, the district court apparently accepted the State's position that Defendant's lengthy prior criminal history—outside of the four predicate multiple offender convictions—justified the life sentence imposed. However, we find flaws in the trial court's reliance on the factors considered by previous courts and the State's emphasis on Defendant's criminal history to justify the life sentence imposed.

The trial court's reliance on other courts to justify the life sentence imposed is problematic because not only had prior courts been found not to have applied the the 894.1 factors in resentencing, but also had issued divergent rulings. In particular, Kisack II noted the district court sentenced Defendant to a five-year sentence on the underlying possession of contraband conviction and a ten-year sentence on the fourth felony offender adjudication in its January 19, 2023 ruling;⁴ and thereafter, on February 2, 2023, set aside the January 19, 2023 ruling and sentenced defendant to life imprisonment on the fourth felony offender adjudication. Moreover, at each of these sentencings, the district court did not apply specific aggravating and/or mitigating factors statutorily required by La. C.Cr.P. art. 841.1 in its sentencing.

Further, the trial court's apparent reliance on the State's argument that Defendant's violent criminal arrest history warranted the maximum sentence is flawed where the State did not offer independent evidence that Defendant committed the offenses. This Court recognizes that “[i]t is well-established that a trial court, in sentencing a defendant, may consider other offenses, regardless of whether defendant was convicted of the offenses, if there is a showing that the defendant did in fact perpetrate the other offenses.” State v. Mitchell, 2021-0488, p. 8 (La. 4 Cir. 12/15/21), 334 So.3d 449, 454 (citation omitted). In this case, although the State provided the trial court with a list of Defendant's prior arrests for crimes of violence and firearm offenses, it provided no objective evidence that Defendant committed the offenses. Our jurisprudence provides a caveat against justification for sentences premised on crimes for which a defendant has not been tried and convicted. See State v. Perkins, 639 So.2d 1199, 1200 (La. 1994). Perkins finds that although a court may properly consider prior arrests and police reports in sentencing, it notes a trial court does not have “unbridled authority” to consider prior arrests when the defendant may have been innocent of the charged offenses. Id. (citation omitted). Instead, Perkins espouses the primary factor in sentencing is the existence of aggravating factors in the present offense. Id. Moreover, Perkins questions the reliance on offenses for which a defendant has not been convicted in determining aggravating factors at sentencing. Id. Similarly, see also Kisack I, 2022-0495, p. 5, 352 So.3d at 130, espousing that “[t]he list of factors that the trial court must consider [in sentencing] does not include pending criminal charges against the defendant.”

As put forth in State v. Kennon, 2003-0994, p. 15 (La. 4/14/04), 871 So.2d 31, 325-26:

A defendant is not convicted of being a habitual offender. Rather a defendant is adjudicated as a habitual offender as a result of prior felony convictions. The sentence to be imposed following a habitual offender adjudication is simply an enhanced penalty for an underlying conviction.

The enhancement herein—-life imprisonment—is not only the maximum penalty allowed, but is also the most severe penalty permitted by law, outside of capital punishment. “[M]aximum sentences are to be reserved for the most egregious and blameworthy of offenders within a class.” See State v. Toney, 2021-0131, p. 8 (La. App. 4 Cir. 11/3/21), 331 So.3d 398, 403.

When we apply the Perkins precepts to the present matter and give primary consideration to Defendant's predicate multiple offender convictions in our consideration as to whether the life sentence imposed was excessive, we first note the absence of any aggravating factors cited, such as the viciousness of the crime(s) or the harm done to the victim(s), associated with those convictions. Particularly, the State cited no actual violent behavior or any overt security threat in connection with Defendant's conviction on the possession of contraband offense. Additionally, neither the State nor the district court articulated or identified with specificity any aggravating factors or exceptional acts of violence arising out of Defendant's other multiple offender felony convictions for illegal discharge of a firearm, aggravated battery, or possession of a firearm.

Based on the lack of citation to evidence regarding specific aggravating factors arising out of Defendant's multiple offender adjudication convictions and the lack of any corroborating evidence that Defendant committed the unadjudicated violent offenses, the evidentiary record does not support that Defendant is the most “egregious offender within a class” to warrant the maximum sentence of life imprisonment. Under these circumstances, the district court's enhanced life sentence for Defendant's fourth multiple offender adjudication shocks the conscious, is excessive, and constitutes an abuse of the district court's discretion. Accordingly, Defendant's argument that the life sentence imposed is constitutionally excessive has merit.

Resentencing

Louisiana Code of Criminal Procedure Art. 881. 4(A) provides that “[i]f the appellate court finds that a sentence must be set aside on any ground, the court shall remand for resentence by the trial court. The appellate court may give direction to the trial court concerning the proper sentence to impose.”

Where a sentence has been found to violate the constitution, the trial court's duty is to impose “the longest sentence that is not constitutionally excessive.” See State v. Ross, 2015-113, p. 22 (La. App. 4 Cir. 12/21/16), 207 So.3d 511, 524. Based on the facts of this case, we find the longest sentence that is not constitutionally excessive is twenty years, the statutory minimum for a fourth felony offender adjudication. Accordingly, we vacate the life sentence imposed, remand for resentencing, and direct the district court to consider imposition of a sentence of no more than twenty-years.

Assignment of Error No. 2: Failure to Apply La. Cr.C.P. art. 894.1 Factors

Having determined that Defendant's sentence is excessive, we pretermit discussion of Defendant's remaining assignment of error.

DECREE

Based on the foregoing reasons, we find the life sentence imposed arising out of Defendant's fourth felony offender adjudication is excessive. We therefore vacate the sentence and direct the district court on remand to consider resentencing Defendant to a period not to exceed twenty years.

JUDGMENT VACATED; REMANDED FOR RESENTENCING

FOOTNOTES

2.   Louisiana Revised Statute 15:529.1 provides, in pertinent part:A. Any person who, after having been convicted within this state of a felony, or who, after having been convicted under the laws of any other state or of the United States, or any foreign government of a crime which, if committed in this state would be a felony, thereafter commits any subsequent felony within this state, upon conviction of said felony, shall be punished as follows:․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.

3.   Defense counsel also cited Defendant's “litany of medical issues” as mitigating factors at the motion for reconsideration hearing.

4.   Notably, the district court's ten-year sentence on the fourth felony adjudication is a downward departure from the statutory minimum of a twenty-year sentence for a fourth felony offender as provided in La. R.S. 15:529.1.

Judge Sandra Cabrina Jenkins