STATE v. DEROUEN (2026)

Defendant/Appellant, James Nicholas Derouen, appeals his sentence of fifteen years at hard labor for possession of a firearm by a convicted felon, a violation of La.R.S. 14:95.1. For the reasons that follow, we affirm Defendant's sentence as amended and vacate in part.

FACTS AND PROCEDURAL POSTURE

Defendant was arrested on October 13, 2023, for killing his brother, James Nelson Derouen (Nelson), in a dispute. According to the police report, Defendant informed the police officers that Nelson had put a rifle to his face, in response to which Defendant pulled a revolver. Nelson attempted to grab the revolver, and the revolver discharged.

A grand jury convened on February 6, 2024, and returned a true bill indicting Defendant for possession of a firearm by a convicted felon. No true bill was returned on the homicide. The record reflects that Defendant had been convicted of aggravated assault on a peace officer in November 2018.

In exchange for an agreement by the State to not charge him as a habitual offender, Defendant entered a guilty plea on August 6, 2025. The trial court ordered preparation of a presentence investigative report.

Defendant's sentencing hearing was held on November 3, 2025. At this hearing, the State was allowed to introduce the victim impact testimony of Defendant's ex-sister-in-law, Susan Eldridge, who testified to the effects the loss of Nelson has had on her family. Defendant did not, however, object to the introduction of this testimony. The trial court found that a factor aggravating Defendant's offense was the use of a dangerous weapon. The trial court also commented that, “There is some truth to the fact that Mr. Nick Derouen may have been threatened by Nelson Derouen, but there's also some truth that Mr. Holtzclaw [prosecutor] said that had he not had a gun[,] he would either be dead or he would have walked away[.]”

At the conclusion of the hearing, the trial court sentenced Defendant to serve fifteen years at hard labor without benefit of probation, parole, or suspension of sentence, against which Defendant was credited with time he had served before sentencing. He was also ordered to pay a $1,000.00 fine or serve two days in jail.

Defendant made a general objection following sentencing but did not file a motion for reconsideration of sentence. A timely motion for appeal was filed.

Defendant's sole assignment of error asserts that the sentence is constitutionally excessive.

ANALYSIS AND DISCUSSION

Louisiana Code of Criminal Procedure Article 920 mandates that we review all errors “discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence.” We find two such errors patent.

As noted above, Defendant was fined $1,000.00 or ordered to spend two days in jail. The trial court did not state that the two-day sentence was in default of paying the fine, but this court has found such to be the case in the past. See State v. Matt, 11-1539 (La.App. 3 Cir. 6/6/12), 91 So.3d 1252. However, Defendant was represented by appointed counsel and is presumed indigent. 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; State v. Holloway, 10-74 (La.App. 3 Cir. 10/6/10), 47 So.3d 56. In such cases, we have routinely vacated the portion of the sentence requiring service of default time. As we explained in State v. Major, 03-249, pp. 2-3 (La.App. 3 Cir. 3/2/05), 898 So.2d 548, 550–51:

It is well-settled that “[a]n indigent person may not be incarcerated because he is unable to pay a fine which is part of his sentence. Bearden v. Georgia, 461 U.S. 660, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983).” State v. Zabaleta, 96-2449, p. 1 (La. 3/7/97), 689 So.2d 1369. The need for incarceration raises an issue when fines or costs are not paid, because La.Code Crim.P. art. 884 requires that, when a trial court imposes a fine or costs, it must also impose a specified term of imprisonment in the event the defendant defaults on payment of the fine or costs. Because an indigent person may not be incarcerated for failure to pay a fine, the supreme court has vacated “the portion of ․ [a] sentence which provides for a jail term in the event of default of payment of a fine ․” Zabaleta, 689 So.2d 1369.

Accordingly, we vacate the portion of Defendant's sentence imposing two days in jail in default of paying the $1,000.00 fine.

A second error occurred when the trial court advised Defendant that he had two years to seek post-conviction relief and that the two-year period would commence thirty days from the date of sentencing. Louisiana Code of Criminal Procedure Article 930.8 states, “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 Defendant that the two-year period for filing post-conviction relief began thirty days from the date of sentencing, Defendant should be notified of the correct period for filing post-conviction relief. This court has recently joined our colleagues of the first, second, and fifth circuits in advising defendants of the proper time limit in its opinions. State v. Washington, 24-308 (La.App. 3 Cir. 2/12/25), 406 So.3d 579, writ denied, 25-985 (La. 1/21/26), 424 So.3d 1093.

Accordingly, Defendant is advised that his application for post-conviction relief must be filed within two years of this judgment becoming final pursuant to La.Code Crim.P. art. 922.

In his sole assignment of error, Defendant contends that his fifteen-year sentence is constitutionally excessive. He notes that the sentence imposed was double the time he would have served had he accepted an earlier plea bargain of seven and a half years. The trial court allowed a victim impact statement from his brother's widow, even though Defendant pleaded guilty to a victimless crime. However, given that no reasons were given at sentencing by Defendant to support his objection to the sentence and that no motion to reconsider his sentence was filed, we are limited to a review of the sentence for bare excessiveness. La.Code Crim.P. art. 881.1; State v. Barling , 00-1241, 00-1591 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035, writ denied, 01-838 (La. 2/1/02), 808 So.2d 331.

Article 1, § 20 of the Louisiana Constitution prohibits the imposition of cruel or unusual punishment. An excessive sentence is one “so grossly disproportionate to the severity of the crime as to shock our sense of justice” or that “makes no measurable contribution to acceptable penal goals” and is, therefore, “nothing more than a needless imposition of pain and suffering.” State v. Brown, 94-1290, p. 9 (La. 1/17/95), 648 So.2d 872, 877. The relevant question this court must ask is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. 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).

Louisiana Revised Statutes 14:95.1(B)(1) provides, “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.” Thus, the sentence imposed on Defendant represents two-thirds of the maximum the trial court could have imposed.

In State v. Baker, 06-1218 (La.App. 3 Cir. 4/18/07), 956 So.2d 83, writ denied, 07-320 (La. 11/9/07), 967 So.2d 496, and writ denied, 07-1116 (La. 12/7/07), 969 So.2d 626, this court adopted the fifth circuit's three-factor test enunciated in State v. Lisotta, 98-648 (La.App. 5 Cir. 12/16/98), 726 So.2d 57, writ denied, 99-433 (La. 6/25/99), 745 So.2d 1183, to evaluate whether the trial court abused its sentencing discretion. Under the Lisotta test, an appellate court should consider the nature of the crime, the nature and background of the offender, and the sentences imposed for similar crimes.

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. “The sentencing court is charged with viewing every circumstance surrounding the offense committed, and should impose a sentence fitting the defendant's conduct.” State v. Lemelle, 502 So.2d 130, 132 (La.App. 3 Cir. 1987).

Defendant was approximately fifty-three years old at the time of the offense, had a GED, and was disabled. Defendant's prior felony, aggravated assault on a peace officer, is a crime of violence La.R.S. 14:2(B)(32). Defendant was sentenced in November 2018 to serve five years, which was suspended, and he was placed on three year supervised probation. Regarding the current offense, the deceased's ex-wife testified at the sentencing hearing that this was “not the first time [Defendant] had a gun. Not the first time [Defendant] shot at people.” She also stated that Defendant did “not deserve to be out to hurt someone else, because [he] will.”

The final factor in the analysis is a comparison of the sentences imposed for similar crimes. “While a comparison of sentences imposed for similar crimes may provide some insight, ‘[i]t is well settled that sentences must be individualized to the particular offender and to the particular offense committed.’ ” State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ denied, 03-562 (La. 5/30/03), 845 So.2d 1061 (quoting State v. Batiste, 594 So.2d 1, 3 (La.App. 1 Cir. 1991). Furthermore, it is the trial court's responsibility to particularize the sentence because the trial court “remains in the best position to assess the aggravating and mitigating circumstances presented by each case.” Cook, 674 So.2d at 958.

In State v. Hodge, 56,696 (La.App. 2 Cir. 3/27/26), 431 So.3d 1239, the defendant pleaded guilty to possession of a firearm by a convicted felon as the result of a traffic stop during which police found a firearm in a backpack. The defendant was sentenced to eighteen years at hard labor, without benefit of probation, parole, or suspension of sentence. When addressing the excessiveness of the defendant's sentence, the second circuit noted that in December 2019, the defendant was charged with home invasion and battery of a dating partner, but he was allowed to plead guilty to unauthorized entry of an inhabited dwelling, resulting in only probation and the dismissal of the battery charge. In July 2019, he was convicted of misdemeanor possession of marijuana, and, in 2018, a charge of battery of a dating partner was dismissed. The court further stated:

The district court was fully aware of Hodge's family obligations, work history, and efforts at self-improvement since incarceration. However, Hodge had a criminal history, which resulted in a favorable plea bargain and probation, but only months after completing probation he was found in possession of a Hi-Point pistol, forming the basis of the instant offense. Despite making bail shortly after this arrest and going two years without incident, he bolted from trial and frustrated officers’ attempts to bring him back to justice – conduct that obviously had a negative effect on his sentencing. On this record, despite the court's minimal recitation, we find adequate compliance with Art. 894.1 and adequate factual support for the sentence imposed.

Regarding the constitutional claim, we note the sentencing range for illegal possession of a firearm or carrying a concealed weapon by a person convicted of certain felonies is not less than 5 nor more than 20 years at hard labor, without benefits. La. R.S. 14:95.1(B)(1). We acknowledge the sentence imposed, 18 years, while not the maximum, is somewhat longer than those imposed in other recent cases in which the firearm was not discharged. See, e.g., State v. Sloan, 55,856 (La. App. 2 Cir. 10/2/24), 400 So. 3d 1066, writ denied, 24-01362 (La. 2/19/25), 400 So.3d 933 (15 years); State v. Adams, 55,696 (La. App. 2 Cir. 5/22/24), 387 So. 3d 914 (12 years); State v. Edwards, 55,822 (La. App. 2 Cir. 10/2/24), 400 So. 3d 274 (10 years); State v. Johnson, 53,086 (La. App. 2 Cir. 11/20/19), 285 So. 3d 1168 (10 years). However, the court very clearly stated its displeasure at Hodge's effort to elude justice. There was also the extended magazine on the Hi-Point pistol, the presence of small children in the car, and evidence that somebody in the car was smoking marijuana. The sentence, though severe, reflects the district court's valid concern over gun violence and the need to keep weapons out of the hands of felons. We perceive no abuse of the court's discretion. The assigned error lacks merit.

Id. at 1243–44.

Defendant in the present matter discharged a firearm in apparent self-defense and received a sentence of fifteen years. Thus, his case is also distinguishable from that of Hodge, who merely possessed a firearm and received an eighteen-year sentence. It was clear from the record that the trial court recognized that Defendant was offered an unenviable bargain (emphasis added):

There is some truth to the fact that Mr. Nick Derouen may have been threatened by Nelson Derouen, but there's also some truth that Mr. Holtzclaw [the prosecutor] said that had he not had a gun he would either be dead or he would have walked away. So that's what makes this sentencing difficult is that there was an alleged -- another weapon out there. And apparently that's why Mr. Nick Derouen was not indicted on Second Degree Murder.

Two other factors in the present matter deserve discussion. The trial court allowed Defendant's ex-sister-in-law to give a victim's impact statement. Her wrenchingly emotional testimony weighed in the trial court's decision on sentencing. We find this inappropriate. Nelson was not a victim of the crime of possession of the firearm; he was another armed individual whose homicide was apparently justified under La.R.S. 14:20.

Before the trial court pronounced sentence, counsel for the State and Defendant presented arguments. The State argued that “the offense resulted in a significant permanent injury or significant economic loss to the victim or his family.” La.Code Crim.P. art. 894.1(B)(9). It also argued that Defendant's use of a dangerous weapon constituted an aggravating circumstance pursuant to La.Code Crim.P. art. 894.1.(B)(10). The trial court adopted these aggravating factors in imposing sentence.

Again, no one was victimized by Defendant possessing the firearm. Nelson was not innocent in his own shooting. In a state that accepts– even encourages– the carry of concealed firearms without a permit, one who points a gun at someone should not be surprised when one is pointed back.

Louisiana Revised Statutes 14:95.1 provides that it is unlawful for anyone who has been convicted of a crime of violence, such as aggravated assault on a peace officer, or other specifically listed offenses “to possess a firearm or carry a concealed weapon.” The possession of the firearm is an element of the offense. Because possession of the firearm is an element of the offense it may not be used to enhance his sentence. See State v. Griffin, 525 So.2d 705 (La.App. 1 Cir. 1988).

Considering all the relevant factors, we conclude that the trial court erred in imposing a fifteen-year sentence on Defendant. The trial court considered a victim's impact statement that should not have been received. An element of the offense of possession of a firearm by a convicted felon was improperly considered an aggravating circumstance. Defendant's sentence is hereby amended to seven and one-half years.

DECREE

The sentence of fifteen years at hard labor without the benefit of probation, parole, or suspension of sentence is amended to seven and one-half years. Defendant's fine of $1,000.00 is affirmed. We vacate the portion of Defendant's sentence that imposed two days in jail in default of paying the fine, as Defendant is presumed indigent.

Defendant is advised that his application for post-conviction relief must be filed within two years of this judgment becoming final pursuant to La.Code Crim.P. art. 922.

SENTENCE AFFIRMED IN PART, AMENDED IN PART, AND VACATED IN PART.

GREMILLION, Judge.

Wilson, J., concurs in part, dissents, in part, and assigns written reasons.