STATE v. ESPINOZA (2026)

On August 22, 2025, Defendant, Kevin Ray Espinoza, pled guilty to possession of a firearm or carrying a concealed weapon by a convicted felon. He was sentenced to fifteen years without the benefit of probation, parole, or suspension of sentence, with credit for time served. Espinoza appeals asserting a single assignment of error – his sentence is excessive. For the reasons discussed below, we find that his sentence is not excessive.

FACTS

Espinoza was the passenger in a car that was stopped for a traffic violation. When the car stopped, Espinoza ran from the car, leading police on a foot chase. Espinoza was seen throwing items while he was running. After he was apprehended, police collected a handgun, drugs, and drug paraphernalia. Espinoza was later identified as a felon in possession of a concealed weapon.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent. We find an error patent concerning default time imposed for nonpayment of a fine and an error patent regarding the deadline given for filing an application for post-conviction relief.

First, the trial court ordered Espinoza to pay “a fine of One Thousand Dollars ($1,000.00) or two days in jail.” Though the trial court did not label the two days in jail as default time, this court may interpret it as such. State v. Matt, 11-1539 (La.App. 3 Cir. 6/6/12), 91 So.3d 1252 (this court interpreted jail time imposed “in lieu” of a fine as default time even though the trial court did not refer to it as default time).

When a defendant is presumed indigent, this court has routinely deleted the portion of the sentence requiring service of default time. State v. Major, 03-249 (La.App. 3 Cir. 3/2/05), 898 So.2d 548. State v. Sanders, 20-359 (La.App. 3 Cir. 2/3/21) (unpublished opinion) (2021 WL 359690). Representation by appointed counsel at trial and on appeal has been found to be presumptive evidence of indigence. State v. Mallette, 15-1131 (La.App. 3 Cir. 6/8/16), 193 So.3d 603, writ denied, 16-1301 (La. 6/16/17), 221 So.3d 837. Espinoza was represented by appointed counsel at trial and continues to be represented by appointed counsel on appeal; thus, we presume he is indigent. We vacate the default time imposed by the trial court based on the presumption of indigency. The trial court is instructed to note the amendment in the court minutes. The fine itself is not vacated. Major, at 551.

Second, the trial court gave incorrect advice concerning the time for filing an application for post-conviction relief. At his guilty plea proceeding, Espinoza was advised:

All right. The law requires that I tell you that there is a two year limitation to file for post conviction relief. If you think any state, federal or constitutional right has been violated you have two years to file for post conviction relief. That two year period starts thirty days after your sentence. Now, I'm just going to let you know that right now. I'll explain it more when we sentence you.

There is no indication in the sentencing transcript that the matter was further discussed. La.Code Crim.P. art. 930.8 states in pertinent part, “No application for post-conviction relief, including applications which seek an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final under the provisions of Article 914 or 922.” (emphasis added). Because the trial court advised Espinoza that the two-year period for filing post-conviction relief began thirty days after sentencing, Espinoza should be notified of the correct deadline for filing post-conviction relief. We do so now in this opinion. See State v. Cheatham, 25-629 (La.App. 3 Cir. 3/25/26), 433 So.3d 157.

ASSIGNMENT OF ERROR

In his only assignment of error, Espinoza contends his sentence for possession of a firearm or carrying a concealed weapon by a person convicted of certain felonies is excessive. Espinoza made a general objection to his sentence at the time it was imposed and did not file a motion to reconsider sentence. Per La.Code Crim.P. art. 881.1(E) and State v. Barling, 00-1241, 00-1591 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035, writ denied, 08-838 (La. 2/1/02), 808 So.2d 331, a bare excessiveness review is warranted.

The law regarding excessive sentence claims is well-settled:

The Eighth Amendment to the United States Constitution and La. Const. art. I, § 20 prohibit the imposition of cruel or excessive punishment. “ ‘[T]he excessiveness of a sentence becomes a question of law reviewable under the appellate jurisdiction of this court.’ ” State v. Dorthey, 623 So.2d 1276, 1280 (La.1993) (quoting State v. Sepulvado, 367 So.2d 762, 764 (La.1979)). Still, the trial court is given wide discretion in imposing a sentence, and, absent a manifest abuse of that discretion, we will not deem as excessive a sentence imposed within statutory limits. State v. Pyke, 95–919 (La.App. 3 Cir. 3/6/96), 670 So.2d 713․ The only relevant question for us to consider on review is not whether another sentence would be more appropriate, but whether the trial court abused its broad discretion in sentencing a defendant. State v. Cook, 95–2784 (La.5/31/96), 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).

The fifth circuit, in [State v.] Lisotta, [98-646 (La.App. 5 Cir. 12/16/98),] 726 So.2d [57] at 58, [writ denied, 99-433 (La. 6/25/99), 745 So.2d 1183,] stated that the reviewing court should consider three factors in reviewing the trial court's sentencing discretion:

1. The nature of the crime,

2. The nature and background of the offender, and

3. The sentence imposed for similar crimes by the same court and other courts.

State v. Whatley, 03-1275, pp. 5–6 (La.App. 3 Cir. 3/3/04), 867 So.2d 955, 958–59 (first alteration in original).

Espinoza's fiance, Nicole Bourque, testified at the sentencing hearing that she and Espinoza had been engaged since 2020 and had been in a relationship for more than ten years. She asked the court to impose a lenient sentence because she is disabled and depends on Espinoza to help care for their children and maintain their home. She acknowledged knowing of both Espinoza's criminal history and the facts underlying the present offense.

At the sentencing hearing, the State detailed Espinoza's criminal history of previous convictions in 2014 for possession of marijuana, playing a gaming device while under the age of twenty-one, and another possession of marijuana. Espinoza had a conviction in 2015 for domestic abuse battery first offense. He had convictions in 2016 for simple criminal damage to property-felony, simple battery that originated as a simple robbery, aggravated second degree battery, aggravated battery, and battery of a correctional facility employee. He was convicted in 2018 for aggravated flight while in possession of stolen things and in 2021 for simple battery. The 2016 felony convictions were the predicates for the charge for possession of a firearm or carrying a concealed weapon by a convicted felon. Defense counsel deferred to the pre-sentence investigation report but did point out that when Espinoza was interviewed, he talked about his “extensive issues growing up” and history of drug use.

The district court stated the following before imposing sentence:

The Court has considered Mr. Espinoza was allegedly physically abused by his mother as a child. He did not have a relationship with his father until he was an adult․ He says he used synthetic marijuana, marijuana and methamphetamines․ He received substance abuse treatment previously․ He was involved with the Blood Gang at age thirteen․ Works as a tree technician for various tree companies. He is of non-denominational faith and attends religious services at Iberia Parish Jail․ His criminal history ․ He has numerous felony convictions. Numerous felony convictions were dismissed as a result of this plea․ There was no violent crime here. He ran away from the police, and they caught him, and he had drugs and a weapon on him. But a lesser sentence would de[pr]ecate the seriousness of the offense, and a sentence of jail time is what Mr. Espinoza needs.

Espinoza argues that due to his age, adverse childhood experiences, family history, and other mitigating factors, the court should have sentenced him to a lesser sentence. Espinoza claims he received the maximum sentence. Espinoza also asserts that he was not aware he could not possess a firearm due to his felony conviction.

Analysis

Louisiana Revised Statutes 14:95.1(B) stated, at the time of the offense:

Whoever is found guilty of violating the provisions of this Section shall be imprisoned at hard labor for not less than five nor more than twenty years without the benefit of probation, parole, or suspension of sentence and be fined not less than one thousand dollars nor more than five thousand dollars.

Espinoza pled guilty to the charge of possession of a firearm or carrying a concealed weapon by a convicted felon. Multiple charges were dismissed. He was then sentenced to a midrange sentence of fifteen years. Espinoza did not receive a maximum sentence as he claims.

Regarding the nature of the offense, the fifth circuit has said that possession of a firearm by a convicted felon “reflects a disregard for the law.” State v. Haynes, 23-494, p. 7 (La.App. 5 Cir. 7/31/24), 392 So.3d 1160, 1165. In State v. Beckendorf, 24-242 (La. App. 5 Cir. 2/26/25), 406 So.3d 729, writ denied, 25-379 (La. 5/20/25), 409 So.3d 222, the defendant was convicted by a jury of possession of a firearm by a convicted felon, based on a prior 2020 conviction for possession of a controlled dangerous substance without a prescription. He was sentenced to eighteen years at hard labor without benefit of probation, parole, or suspension of sentence and fined $1,000. On appeal, he argued the sentence was excessive and insufficiently individualized. The fifth circuit affirmed the sentence, finding the trial court properly considered the defendant's extensive criminal history, which included negligent homicide, drug offenses, obstruction of justice, aggravated flight, burglary, and prior firearm-related offenses. The court concluded that the defendant's criminal background justified the sentence imposed.

In State v. Stewart, 24-50 (La.App. 5 Cir. 10/30/24), 398 So.3d 812, writ denied, 24-1445 (La. 2/19/25), 400 So.3d 931, the defendant was convicted of two counts of possession of a firearm by a convicted felon and received concurrent twenty-year sentences without benefits. The charges arose after firearms and ammunition were discovered concealed inside a wall at a residence where the defendant had lived for approximately two years. The State established qualifying predicate felonies, including a 2013 federal conviction for conspiracy to distribute and possession with intent to distribute large quantities of cocaine and a 2013 state conviction for possession of heroin.

On appeal, he argued that the sentences were excessive because his criminal history did not include violent offenses, and he had demonstrated rehabilitation and community involvement. The fifth circuit affirmed his sentences, finding that the trial court properly considered the factors of La.Code Crim.P. art. 894.1. The trial court emphasized the defendant's extensive drug-related criminal history, including convictions for possession of controlled dangerous substances, possession of heroin, possession of marijuana (second offense), and federal drug-trafficking offenses involving substantial quantities of cocaine, and the fact that the recovered firearms were loaded. The court concluded that the sentences were justified by the defendant's criminal background and were consistent with sentences imposed on similarly situated offenders.

Similar to Beckendorf and Stewart, Espinoza has an extensive criminal history. The trial court found that his sentence was justified by his criminal background. Espinoza's sentence is consistent with the sentences imposed for similar offenders in the above cases. Thus, his sentence is not excessive, and this assignment is without merit.

The portion of Espinoza's sentence requiring him to serve two days in jail in default of payment of his fine is stricken, and the trial court is instructed to note the amendment in the court minutes. Espinoza's sentence should be affirmed as amended. Additionally, by this opinion, Espinoza is advised of the time period for filing an application for post-conviction relief.

AFFIRMED IN PART, VACATED IN PART, WITH INSTRUCTIONS.

DAVIS, Judge.