STATE OF LOUISIANA v. DAREN KITCHEN (2023)

A jury convicted the defendant, Daren Q. Kitchen, of aggravated second degree battery, aggravated criminal damage to property, and two counts of aggravated battery. The trial court sentenced the defendant to ten years imprisonment at hard labor on each count and ordered the sentences to run consecutively. The defendant appealed, and this Court affirmed the convictions and sentences. See State v. Kitchen, 17-0362 (La. App. 1 Cir. 9/15/17), 231 So.3d 849, writ denied, 17-1983 (La. 11/14/18), 256 So.3d 281. In the prior appeal, the defendant did not challenge his sentences. He later filed a supplemental application for post-conviction relief, however, arguing his sentences were excessive and his defense counsel provided ineffective assistance by failing to raise an excessive sentence issue as part of the appeal. After a hearing, the trial court denied the defendant's excessive sentence claim but granted him the right to seek review of the excessiveness of sentence on appeal.¹ Defendant then filed this appeal. We affirm the sentences.

EXCESSIVE SENTENCE CLAIM

On appeal, the defendant argues the trial court erred in imposing excessive sentences and in imposing consecutive sentences for offenses committed in a single transaction.

Both the United States and Louisiana Constitutions prohibit the imposition of excessive or cruel punishment. U.S. Const. amend. VIII; La. Const. art. I, § 20. Although a sentence falls within statutory limits, it may be excessive. State v. Sepuivado, 367 So.2d 762, 767 (La. 1979). A sentence is considered constitutionally 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 the sense of justice. State v. Livous, 18-0016 (La. App. 1 Cir. 9/24/18), 259 So.3d 1036, 1044, writ denied, 18-1788 (La. 4/15/19), 267 So.3d 1130. The trial court has great discretion in imposing a sentence within the statutory limits, and this Court will not be set aside such a sentence as excessive unless there is a manifest abuse of discretion. State v. Scott, 17-0209 (La. App. 1 Cir. 9/15/17), 228 So.3d 207, 211, writ denied, 17-1743 (La. 8/31/18), 251 So.3d 410. Louisiana Code of Criminal Procedure article 894.1 sets forth the factors the trial court must consider when imposing sentence. While the trial court need not recite the entire checklist of La. C.Cr.P. art. 894.1, the record must reflect that the trial court adequately considered the criteria. State v. Brown, 02-2231 (La. App. 1 Cir. 5/9/03), 849 So.2d 566, 569.

The goal of La. C.Cr.P. art. 894.1 is the trial court's articulation of the factual basis for a sentence, 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 the trial court has not fully complied with La. C.Cr.P. art. 894.1. State v. Lanclos, 419 So.2d 475, 478 (La. 1982); Scott, 228 So.3d at 211. The trial court 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. State v. Jones, 398 So.2d 1049, 1051-52 (La. 1981); Scott, 228 So.3d at 211. 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. State v. Thomas, 98-1144 (La. 10/9/98), 719 So.2d 49, 50 (per curiam).

The defendant argues that the trial court erred in imposing maximum sentences. He also argues the trial court erred in imposing consecutive sentences because the four offenses were based on the same act or transaction. The defendant argues his criminal history does not place him in the “worst possible offender” category; he suffers from post-traumatic stress disorder (PTSD), which began when he returned from a tour of duty in the army in Operation Desert Storm; and, he did not “actually hit the person” of two of the victims.

As a general rule, maximum sentences permitted by statute are to be reserved for the worst offenders and the worst offenses. State v. James, 02-2079 (La. App. 1 Cir. 5/9/03), 849 So.2d 574, 586. A court may also impose a maximum sentence when the offender poses an unusual risk to the public safety due to his past conduct of repeated criminality. See State v. Hilton, 99-1239 (La. App. 1 Cir. 3/31/00), 764 So.2d 1027, 1037, writ denied, 00-0958 (La. 3/9/01), 786 So.2d 113.

We note that the trial court did not impose maximum sentences for defendant's aggravated second degree battery or aggravated criminal damage to property convictions, both of which carry maximum sentences of 15 years. See La. R.S. 14:34.7(B) (prior to amendment by 2012 La. Acts, No. 40) and La. R.S. 14:55 (prior to amendment by 2014 La. Acts, No. 791). The trial court imposed maximum sentences only for the two aggravated battery convictions. See La. R.S. 14:34 (prior to amendment by 2012 La. Acts, No. 40). Accordingly, the defendant faced an overall maximum sentence (all consecutive sentences included) of 50 years. At any rate, the trial court provided reasons for imposing maximum sentences on the two aggravated battery convictions. In pertinent part, the trial court stated:

I have received the presentence report. I have reviewed it for the purpose of determining the appropriate sentences in the case.

․

The presentence investigation reflects that your record of prior offenses is lengthy and contains at least three - four prior felonies. &

․

The criminal history from Mr. Kitchen goes back to the [90s] and reflects that whether he was given probation or parole, he did not complete any of those types of supervisions without revocation. There is a substantial risk that he would commit other crimes while on probation to the extent that a suspended sentence is not even considered by the Court.

A sentence of imprisonment is required based on the crimes [committed] herein, and anything less than hard labor would deprecate the seriousness of his crimes against multiple victims. His conduct during the commission of the offenses in running a vehicle off the road intentionally affected occupants of each vehicle, knowingly and intentionally, and certainly manifested deliberate cruelty to the victims.

He knowingly created risk of death or great bodily harm to more than one person. And, in fact, the occupant in his own vehicle suffered great bodily harm. The fact that the occupants of the Gravois vehicle did not is not the fault of Mr. Kitchen, because he certainly was trying.

There is significant permanent injury to one victim and significant economic loss to Mr. Gravois. And there [are] significant mental health issues he created and caused for Ms. Morvant. The dangerous weapon used was the vehicle. Oddly, there's no evidence that this was done under the influence of any substance or impairment that may have caused him to  2 act out unnaturally. He did it [because] that's a natural response for Mr. Kitchen.

As for mitigation, the only mitigation has been his counseling programs Living In Balance and Thinking of a Change - Thinking For a Change programs. He helps out with bible study, and he attended anger management. But we have pending charges for other activities during his stay in the jail, which, though not convicted of, lessen the effect of mitigation.

I am aware of the diagnosis of PTSD. Mr. Kitchen was out - in and out of the prison system for 20 years and never availed himself of VA benefits to seek counseling for these things with any success. And now that he has four prior felonies, he's ineligible for VA consideration. But perhaps there will be some other types of counseling programs available. And I'm happy that you assisted people in preparation of their own legal pleadings and those types of things. That's great. But the fact is, you almost killed three people.

Based on the foregoing, we find the trial court provided ample justification for imposing the maximum sentences on the two counts of aggravated battery. See State v. Mickey, 604 So.2d 675, 679 (La. App. 1 Cir. 1992), writ denied, 610 So.2d 795 (La. 1993). The trial court noted in its reasons for sentencing that the defendant's conduct knowingly created a risk of death or great bodily harm to more than one person. As such, the record before us establishes the defendant poses a grave risk to public safety. See State v. Thompson, 543 So.2d 1132, 1135 (La. App. 1 Cir. 1989).

We also find the trial court did not abuse its discretion in imposing consecutive sentences. Regarding consecutive and concurrent sentences, La. C.Cr.P. art. 883 pertinently provides:

If the defendant is convicted of two or more offenses based on the same act or transaction, or constituting parts of a common scheme or plan, the terms of imprisonment shall be served concurrently unless the court expressly directs that some or all be served consecutively. Other sentences of imprisonment shall be served consecutively unless the court expressly directs that some or all of them be served concurrently.

It is within a trial court's discretion to order sentences to run consecutively rather than concurrently. Even if convictions arise from a single course of conduct, consecutive sentences are not necessarily excessive, and the trial court must take other facts into consideration in making this determination. See State v. Ortego, 382 So.2d 921, 923 (La. 1980), cert. denied, 449 U.S. 848, 101 S.Ct. 135, 66 LEd.2d 58 (1980); State v. Price, 95-0997 (La. App. 1 Cir. 6/28/96), 677 So.2d 705, 708. When consecutive sentences are imposed, the court shall state the factors considered and its reasons for the consecutive terms. Among the factors to be considered are: (1) the defendant's criminal history, (2) the gravity or dangerousness of the offense, (3) the viciousness of the crimes, (4) the harm done to the victims, (5) whether the defendant constitutes an unusual risk of danger to the public, (6) the potential for the defendant's rehabilitation, (7) multiplicity of acts, and (8) the defendant's lack of remorse. State v. Cirovola, 15-0032 (La. App. 1 Cir. 8/5/15), 2015 WL 4652546, *11, writ denied, 15-1604 (La. 9/6/17), 226 So.3d 434. However, if the record provides an adequate factual basis to support consecutive sentences, the trial court's failure to articulate specific reasons for consecutive sentences does not require remand. State v. Alexander, 21-1346 (La. App. 1 Cir. 7/13/22), 344 So.3d 705, 726.

Although the four offenses herein arose out of the same act or transaction, the consecutive sentences were justified in this case. In mitigation, the trial court noted the defendant's PTSD diagnosis and that in prison he attended anger management classes and helped with bible study. These factors aside, the trial court addressed the defendant's long criminal history, which consisted of at least four prior felonies. In noting the defendant had not completed probation or parole without revocation for his prior felonies, the trial court found there was a substantial risk the defendant would commit another crime while on probation. The trial court further noted the defendant intentionally ran a vehicle off the road, that such manifested deliberate cruelty to the victims, and he “almost killed three people.”

Based upon our review of the record, we find the trial court did not abuse its discretion in sentencing the defendant. In its detailed reasons for the sentences, the trial court clearly found the defendant was a risk to public safety. Given the defendant's extensive criminal history and the seriousness of the instant crimes, the sentences imposed were not grossly disproportionate to the severity of the offenses, and therefore, were not unconstitutionally excessive.

These assignments of error are without merit.

CONCLUSION

For the above reasons, we affirm the defendant's sentences.

SENTENCES AFFIRMED.

FOOTNOTES

1.   At the hearing, citing State v. Harris, 18-1012 (La. 7/9/20), 340 So.3d 845, 858, and for the limited purpose of allowing the defendant to seek review of the excessive sentence claim, the trial court found ineffective assistance of counsel based on defense counsel's failure to assert an excessive sentence claim on appeal.

2.   At this point, the trial court asked defense counsel if he wished to present anything in mitigation. Defense counsel asked the trial court to take note that the defendant was being treated for PTSD, and that several character reference letters were written on his behalf.

GREENE, J.

Holdridge, J. concurs