STATE v. HARRIS (2023)

The defendant, Demarquiez Davon Harris ¹ , was charged by bill of information with aggravated obstruction of a highway of commerce, a violation of La. R.S. 14:96 (count 1), and aggravated flight from an officer, a violation of La. R.S. 14:108.1(C) (count 2). The defendant pled not guilty,² and following a jury trial, was unanimously found guilty as charged. On count l, the trial court sentenced the defendant to ten years imprisonment at hard labor ³ , and on count 2, the trial court sentenced him to five years imprisonment at hard labor ⁴ . The trial court ordered the sentences to run concurrently.⁵

Subsequent to the defendant's conviction and sentencing, the district attorney filed an information accusing the defendant of previous convictions including aggravated battery, battery of a police officer, and possession with intent to distribute marijuana. The defendant denied the allegations therein. Following a hearing on the matter, the defendant was adjudicated a fourth-felony offender under La. R.S. 15:529.1.⁶ The trial court vacated the previous sentences and resentenced the defendant on count 1 to an enhanced sentence of twenty years imprisonment at hard labor without benefit of probation or suspension of sentence ⁷ and on count 2 to an enhanced sentence of life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. The sentences were ordered to run concurrently. The defendant filed a motion to reconsider sentence, which was denied. The defendant now appeals, designating one assignment of error. We affirm the convictions, habitual offender adjudications, and enhanced sentences.

FACTS

On April 9, 2017, at about 10:00 p.m., the defendant was speeding on the Causeway bridge. He had three passengers in the vehicle. Causeway Police attempted to conduct a traffic stop, but the defendant refused to stop and reached speeds of 117 miles per hour. During the high-speed pursuit, the defendant swerved in and out of traffic and crossed the yellow line near the railing. The police were able to box the defendant in. During this maneuver, the defendant hit the back of the police unit in front of him and finally came to a stop. According to one of the officers, the defendant said he ran because he did not have a driver's license.

The defendant did not testify at trial.

DISCUSSION

In his sole assignment of error, the defendant argues that his life sentence is unconstitutionally excessive. Specifically, the defendant contends the trial court should have departed from the mandatory minimum sentence.

The defendant was adjudicated a fourth-felony offender. He was sentenced under La. R.S. 15:529.1(A)(4)(a) to twenty years imprisonment at hard labor on count 1 and under La. R.S. 15:529.1(A)(4)(b) to mandatory life imprisonment at hard labor on count 2. The applicable version of La. R.S. 15:529.1(A)(4)(b)⁸ 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 as a violation of the Uniform Controlled Dangerous Substances Law punishable by imprisonment for ten years or more, or of any other crime punishable by Imprisonment for twelve years or more, or any combination of such crimes, the person shall be imprisoned for the remainder of his natural life, without benefit of parole, probation, or suspension of sentence.

In this case, the fourth felonies are aggravated flight from an officer, a crime of violence under La. R.S. 14:2(B), and aggravated obstruction of a highway of commerce, a crime punishable by imprisonment for twelve years or more. Two of the prior felonies are aggravated battery and battery of a police officer. These felonies are both classified as crimes of violence under La. R.S. 14:2(B).⁹ The other prior felony, possession with intent to distribute marijuana, is a violation of the Uniform Controlled Dangerous Substances Law punishable by imprisonment for ten years or more. When comparing La. R.S. 15:529.1(A)(4)(a) to La. R.S. 15:529.1(A)(4)(b), it is clear that La. R.S. 15:529.1(A)(4)(b) identifies those felonies that are weighted to further enhance the penalties otherwise applicable.

The Eighth Amendment to the United States Constitution and Article I, Section 20, of the Louisiana Constitution prohibit the imposition of cruel or excessive punishment. 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 one's sense of justice. State v. Livous, 2018-GO 16 (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 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. Brown, 2002-2231 (La. App. 1st Cir. 5/9/03), 849 So. 2d 566, 569. 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. Scott, 228 So. 3d at 211. The trial 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. State v. Spikes, 2017-0087 (La. App. 1st Cir. 9/15/17), 228 So. 3d 201, 204-05.

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), ––– So. 3d ––––, 2023 WL 3195133, *2, which involved a life sentence under the Habitual Offender Law, the Louisiana Supreme Court 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).

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.” Thompson, ––– So.3d at ––––, 2023 WL 3195133, *2.

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 that the trial court should have considered the nature and facts underlying the instant offense for which a life sentence was imposed. That is, both of the instant offenses arose from the same incident, and while serious offenses, they alone do not warrant a life sentence. We note that before it was required to resentence the defendant under the habitual offender bill, the trial court determined that an appropriate sentence was less than the maximum provided. The defendant contends he is a “youthful offender” at twenty-six years of age. The defendant further points out that in 2016, the law was amended so that persons seventeen or younger would be treated as juveniles for crimes of non-violence. The defendant suggests that under current laws, he would have been considered a juvenile for the drug charge, as he was seventeen years old when he committed the offense.

The defendant is referring to La. Ch.C. art. 804, which was amended in 2016, and provides in pertinent part that a “child” is any person under the age of twenty-one who commits a delinquent act on or after July 1, 2020, and before the person attains eighteen years of age. See La. Ch.C. art. 804(1)(c)(i). It is true that while ameliorative sentencing changes may not apply retroactively, they may guide the court when imposing the new sentence. Thompson, ––– So. 3d at ––––, 2023 WL 3195133, *2. But here, even without his prior drug conviction, the defendant would still be subject to mandatory life imprisonment as a third-felony offender because, as noted, his recent convictions involve weighted felonies (a crime of violence and a crime punishable by imprisonment for twelve years or more) and the predicate felonies are crimes of violence. See La. R.S. 15:529.1(A)(3)(b).

At sentencing, the trial court made the following findings:

The Court has reviewed Article 894.1, and makes the finding that there is an undue risk that during the period of a suspended sentence or probation, the defendant will commit another crime. That the defendant is in need of correctional treatment or a custodial environment that can be provided most effectively by his commitment to an institution and that any lesser sentence would deprecate from the seriousness of the defendant's crimes.

I have reviewed the list of mitigating factors and found that none in particular are applicable to these offenses.

Subsequently, at the hearing on the motion to reconsider sentence, the trial court specifically addressed Dorthey, finding there was no compelling evidence to apply Dorthey. In this regard, the trial court did not abuse its discretion.

The defendant received the enhanced sentence because of his continued lawlessness. See Johnson, 709 So. 2d at 677.¹⁰ Further, he has not pointed to any instances of how his circumstances are unusual or how he is exceptional. There is nothing particularly unusual about the defendant's circumstances that would justify a downward departure from the mandatory sentence under La. R.S. 15:529.1(A)(4)(b). To the contrary, the defendant has been remarkably prolific in his wrongdoing. He has amassed a criminal record that belies his young age.

The defendant has not shown by clear and convincing evidence that he is exceptional such that the sentence would not be meaningfully tailored to the culpability of the offender, the gravity of the offenses, and the circumstances of the case. See Johnson, 709 So. 2d at 676. Accordingly, no downward departure from the presumptively constitutional mandatory minimum sentence is warranted. The sentence imposed is not grossly disproportionate to the severity of the offense and, therefore, is not unconstitutionally excessive. Thus, the assignment of error is without merit.

CONVICTIONS, HABITUAL OFFENDER ADJUDICATIONS, AND ENHANCED SENTENCES AFFIRMED.

FOOTNOTES

1.   The defendant's date of birth is May 17, 1995. He was twenty-six years old when sentenced.

2.   After initially pleading not guilty, the defendant withdrew his pleas and pled guilty as charged on both counts. Subsequently, the trial court granted the defendant's motion to withdraw his guilty pleas.

3.   Under La. R.S. 14:96(B), whoever commits the crime of aggravated obstruction of a highway of commerce shall be imprisoned, with or without hard labor, for not more than fifteen years.

4.   Under La. R.S. 14:108.1(E)(1), whoever commits the crime of aggravated flight from an officer shall be imprisoned at hard labor for not more than five years and may be fined not more than two thousand dollars.

5.   At the sentencing hearing, the trial court ordered these sentences to run consecutively to a 262-month federal sentence the defendant is serving. There is no further information in the record regarding the defendant's federal sentence.

6.   The defendant has prior convictions for aggravated battery, battery of a police officer, and possession with intent to distribute marijuana. The defendant pled guilty to all three offenses on the same date. Each offense, however, was committed on a different date.

7.   We note that the sentence imposed by the trial court on count 1 is illegally lenient under La. R.S. 15:529.1. The trial court sentenced the defendant under La. R.S. 15:529.1(A)(4)(a) to twenty years imprisonment at hard labor. However, because aggravated obstruction of a highway of commerce is a crime punishable up to fifteen years, the defendant should have been sentenced under La. R.S. 15:529.1(A)(4)(b) to mandatory life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. See State v. Brumfield, 2017-0080 (La. App. 1st Cir. 9/21/17), 232 So. 3d 42, 51-52 writ denied, 2017-1790 (La. 6/15/18), 257 So. 3d 683. Pursuant to La. C.Cr.P. art. 882(A), an illegal sentence may be corrected at any time by the court that imposed the sentence or by an appellate court on review. However, we are not required to take such action. The State did not object to the error and the defendant was not prejudiced in any way by the failure to impose the mandatory sentence. State v. Hollingsworth, 2012-1035 (La. App. 1st Cir. 2/15/13), 2013 WL 595926, *3 (unpublished). Thus, we decline to remand the case for correction of the sentence.

8.   The version of La. R.S. 15:529.1 that was in effect from August 15, 2010 to October 31, 2017 is applicable to this case. However, the statute has been revised three times since - in 2017, 2018, and 2019.

9.   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.Louisiana Revised Statutes 14:2(B) also provides a list of offenses that qualify as crimes of violence. Pursuant to La. R.S. 14:2(B), aggravated battery, battery of a police officer, and aggravated flight from an officer are crimes of violence.

10.   The testimony and evidence at trial showed the defendant failed to appear for court in this case from October of 2017 until after his subsequent stop and arrest on October 22, 2020. In connection with that incident, it is alleged that he provided fake identification, fled from the stop, was pursued in an approximately twenty-five-minute high-speed chase, and received new charges.

MILLER, J.

Guidry, J. concurs.