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Date: 11-24-2017

Case Style:

STATE OF LOUISIANA V. DANIAL LEWAYNE LAFLEUR -AKA- DANIEL LAFLEUR -AKA- DANIEL LEE LAFLEUR -AKA DANIAL LEFLEUR

Case Number: 17 00284-KA

Judge: Hon. Marc T. Amy Hon. Elizabeth A. Pickett Hon. Billy Howard Ezell

Court: STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

Plaintiff's Attorney: Hon. Jeffrey M. Landry
Andrea Barient

Defendant's Attorney: Edward Kelly Bauman
La Appellate Project

Description: In the early evening of October 31, 2013, on Halloween, the victim, David
Savoy, and his family were out trick-or-treating. Mr. Savoy was sitting in his truck
in a neighbor‟s driveway after his wife and children had gotten of the truck. As
Mr. Savoy sat waiting, Defendant approached the truck, pointed a rifle at Mr.
Savoy, and asked Mr. Savoy something about Defendant‟s baby and a neighbor‟s
swimming pool. Mr. Savoy testified Defendant stood about ten yards away and
held the gun on him for about ten to fifteen seconds. Defendant then lowered the
rifle and walked away. Mr. Savoy said he did not know what Defendant was
asking him and that he was in fear for his life.
PRO SE ASSIGNMENT OF ERROR NUMBER ONE
We will address Defendant‟s pro se assignment of error number one first,
since should there be merit to Defendant‟s assertion that the evidence was
insufficient to sustain the conviction, Defendant would be entitled to an acquittal of
the charge of aggravated assault with a firearm. State v. Hearold, 603 So.2d 731
(La.1992). In this case, Defendant‟s complaint regarding his sentence would be
moot.
Defendant argues that the State failed to prove all the elements of the
offense, specifically that there was no evidence that the gun discharged or that the
gun was even capable of discharging. Louisiana Revised Statutes 14:37.4
provides:
A. Aggravated assault with a firearm is an assault committed
with a firearm.
B. For the purposes of this Section, “firearm” is defined as an
instrument used in the propulsion of shot, shell, or bullets by the
action of gunpowder exploded within it.
3
C. Whoever commits an aggravated assault with a firearm
shall be fined not more than ten thousand dollars or imprisoned for not
more than ten years, with or without hard labor, or both.
An assault is defined as “an attempt to commit a battery, or the intentional
placing of another in reasonable apprehension of receiving a battery.” La.R.S.
14:36.
The analysis for such insufficiency claims is well-settled: When the issue of
sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing
court is whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the
crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99
S.Ct. 2781 (1979). In order for this court to affirm the conviction, the record must
reflect that the State had satisfied its burden of proving all the elements of the
crime beyond a reasonable doubt.
We note that prior to May 25, 2012, Defendant may have been correct in his
assertion that to be guilty of aggravated assault with a firearm, the firearm must
have been discharged. However, in 2012, the Louisiana Legislature amended
La.R.S. 14:37.4 to exclude the phrase “by the discharge of” and added the word
“with,” thereby eliminating the element of “discharge” of a firearm. 2012 La. Acts
No. 320, § 1. Defendant committed the act of pointing a rifle at the victim in
October 2013.
A discharge of the firearm is not an element of the offense in this case. See
State in interest of A.J., 14-595 (La.App. 4 Cir. 10/1/14), 151 So.3d 659, where the
juvenile took a gun to school. The juvenile was adjudicated a delinquent with
illegal carrying of a firearm by a student on school property and aggravated assault
with a firearm. While the juvenile did not allege insufficient evidence as in the
4
current case, testimony established that he flashed the gun and pointed it at the feet
of his girlfriend as she talked to another boy. The girl testified she was afraid
when she saw the gun.
Defendant attempts to support his argument that discharge of the firearm
was necessary to complete the offense of aggravated assault with a firearm by
referencing La.Code Crim.P. art. 893.3(C), which is a sentencing enhancement
provision used when a firearm is actually discharged during the commission of a
felony or a misdemeanor. This provision is not applicable to the offense charged
in this case.
As previously noted, Defendant pointed a rifle at the victim as the victim sat
in his vehicle. Defendant admits in brief to this court that he pointed the rifle at the
victim. Defendant‟s girlfriend, with whom he was living, testified that on the
evening of the incident it appeared Defendant was waiting for Mr. Savoy. When
he saw Mr. Savoy drive by, he picked up his rifle and said he was going to
“confront” Mr. Savoy. While Defendant argues that he was only joking and that
the victim was his former best friend, Mr. Savoy testified that he had met
Defendant only a few times through his family‟s association with Defendant‟s
girlfriend. Mr. Savoy testified that he feared for his life and that he remained
fearful even after Defendant left the scene.
We find that, considered in a light most favorable to the prosecution, the
State met its burden of proving all the elements of the offense of aggravated assault
with a firearm beyond a reasonable doubt. Defendant pointed the rifle at Mr. Savoy
with the intent to cause him to be in reasonable apprehension of receiving a
battery. There is no merit to this assignment of error.
5
ATTORNEY-FILED ASSIGNMENT OF ERROR
Defendant argues that the trial court did not take into consideration his
mental illness as a mitigating factor when he imposed the maximum sentence. He
argues that he has been diagnosed with schizophrenia, paranoia, and was, at the
time of the incident, “non-compliance with medication.” Defendant argues that
maximum sentences are generally reserved for the worst offenders, and
considering the firearm was not discharged and no one was harmed, he did not
deserve a maximum sentence.
In State v. Foster, 02-910 (La.App. 4 Cir. 12/11/02), 834 So.2d 1188, the
defendant alleged his sentence was excessive because the trial court did not
consider his mental illness as a mitigating factor when sentencing him.
Concerning the allegation of excessive sentences, the fourth circuit stated:
Article I, section 20 of the Louisiana Constitution explicitly
prohibits excessive sentences. State v. Baxley, 94-2982, p. 4,
(La.5/22/95), 656 So.2d 973, 977. Although a sentence is within the
statutory limits, the sentence may still violate a defendant‟s
constitutional right against excessive punishment. State v. Brady, 97-
1095, p. 17 (La.App. 4 Cir. 2/3/99), 727 So.2d 1264, 1272; State v.
Francis, 96-2389, p. 6 (La.App. 4 Cir. 4/15/98), 715 So.2d 457, 461,
grant of post conviction relief on other grounds affirmed, 2001-1667
(La.App. 4 Cir. 2/6/02), 809 So.2d 1132. However, the penalties
provided by the legislature reflect the degree to which the criminal
conduct is an affront to society. Baxley, 94-2982 at p. 10, 656 So.2d
at 979, citing State v. Ryans, 513 So.2d 386, 387 (La.App. 4
Cir.1987). A sentence is constitutionally excessive if it makes no
measurable contribution to acceptable goals of punishment, is nothing
more than the purposeless imposition of pain and suffering, and is
grossly out of proportion to the severity of the crime. State v.
Johnson, 97-1906, pp. 6-7 (La.3/4/98), 709 So.2d 672, 677: State v.
Webster, 98-0807, p. 3 (La.App. 4 Cir. 11/10/99), 746 So.2d 799, 801,
reversed on other grounds sub nom. State v. Lindsey, 99-3302
(La.10/17/00), 770 So.2d 339. A sentence is grossly disproportionate
if, when the crime and punishment are considered in light of the harm
done to society, it shocks the sense of justice. Baxley, 94-2982 at p. 9,
6
656 So.2d at 979; State v. Hills, 98-0507, p. 5 (La.App. 4 Cir.
1/20/99), 727 So.2d 1215, 1217.
In reviewing a claim that a sentence is excessive, an appellate
court generally must determine whether the trial judge has adequately
complied with statutory guidelines in La. C. Cr. P. article 894.1, and
whether the sentence is warranted under the facts established by the
record. State v. Trepagnier, 97-2427, p. 11 (La.App. 4 Cir. 9/15/99),
744 So.2d 181, 189; State v. Robinson, 98-1606, p. 12 (La.App. 4 Cir.
8/11/99), 744 So.2d 119, 127. If adequate compliance with La. C. Cr.
P. article 894.1 is found, the reviewing court must determine whether
the sentence imposed is too severe in light of the particular defendant
and the circumstances of the case, keeping in mind that maximum
sentences should be reserved for the most egregious violators of the
offense so charged. State v. Ross, 98-0283, p. 8 (La.App. 4 Cir.
9/8/99), 743 So.2d 757, 762; State v. Bonicard, 98-0665, p. 3
(La.App. 4 Cir. 8/4/99), 752 So.2d 184, 185.
However, in State v. Major, 96-1214 (La.App. 4 Cir. 3/4/98),
708 So.2d 813, this court stated:
The articulation of the factual basis for a sentence is the
goal of Art. 894.1, not rigid or mechanical compliance
with its provisions. Where the record clearly shows an
adequate factual basis for the sentence imposed,
resentencing is unnecessary even when there has not
been full compliance with Art. 894.1. State v. Lanclos,
419 So.2d 475 (La.1982). The reviewing court shall not
set aside a sentence for excessiveness if the record
supports the sentence imposed. La. C. Cr. P. art.
881.4(D).
96-1214 at p. 10, 708 So.2d at 819.
In State v. Soraparu, 97-1027 (La.10/13/97), 703 So.2d 608, the
Louisiana Supreme Court stated:
On appellate review of sentence, the only relevant
question is “ „whether the trial court abused its broad
sentencing discretion, not whether another sentence
might have been more appropriate.‟ ” State v. Cook, 95-
2784, p. 3 (La.5/31/96), 674 So.2d 957, 959 (quoting
State v. Humphrey, 445 So.2d 1155, 1165 (La.1984)),
cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d
539 (1996). For legal sentences imposed within the range
provided by the legislature, a trial court abuses its
discretion only when it contravenes the prohibition of
excessive punishment in La. Const. art. I, § 20, i.e., when
it imposes “punishment disproportionate to the offense.”
7
State v. Sepulvado, 367 So.2d 762, 767 (La.1979). In
cases in which the trial court has left a less than fully
articulated record indicating that it has considered not
only aggravating circumstances but also factors
militating for a less severe sentence, State v. Franks, 373
So.2d 1307, 1308 (La.1979), a remand for resentencing is
appropriate only when “there appear[s] to be a substantial
possibility that the defendant‟s complaints of an
excessive sentence ha[ve] merit.” State v. Wimberly, 414
So.2d 666, 672 (La.1982).
Id.
Id. at 1193-95 (alterations in original).
The fourth circuit further discussed the defendant‟s mental illness as a
mitigating factor, as follows:
The trial court gave no reasons for sentencing, nor indicated in
any way that it had considered the sentencing factors in La. C. Cr. P.
article 894.1. Defendant argues that his mental illness was a
mitigating factor the trial court should have considered. In State v.
Legendre, 522 So.2d 1249 (La.App. 4 Cir.1988), this court vacated
the five-year maximum sentence for second degree battery imposed
on a defendant with a long history of mental illness who had been
diagnosed as a paranoid schizophrenic and treated with various
medications which he continually resisted taking. This court found
that the trial court should have considered the defendant‟s mental
illness as a mitigating factor, citing several Louisiana Supreme Court
decisions for the proposition that “Louisiana caselaw [sic] does
indicate that mental illness should be used as a mitigating
circumstance.” 522 So.2d at 1252. This court stated that “[w]hen
persons with recognized, diagnosed mental illnesses are convicted of
crimes, that condition should be considered to mitigate the type and
length of sentence imposed on the offender, even if he has been ruled
legally sane.” 522 So.2d at 1253.
In State v. Taylor, 91-2496 (La.App. 4 Cir. 3/29/94), 635 So.2d
416, this court cited Legendre for the proposition that Louisiana
jurisprudence indicates that mental illness should be used as a
mitigating factor in sentencing. In Taylor, however, this court
affirmed the defendant‟s sentence, noting that the defendant failed to
introduce evidence that he was suffering from depression at the time
of the offense. Hospital records showed that the defendant was
diagnosed as suffering from moderate depression one year before the
crime. However, defendant did not exhibit any signs of depression
when examined some six months after the crime by a psychiatrist
appointed to a sanity commission.
8
Id. at 1195 (footnote omitted) (second alteration in original).
While the fourth circuit vacated the defendant‟s sentence on other grounds,
the fourth circuit concluded:
Defendant‟s sole argument as to his excessive sentence claim is
that the trial court failed to consider his mental illness in sentencing
him. The trial court failed to consider any mitigating or aggravating
factor for the record when sentencing defendant. As previously
discussed, defendant‟s sentences must be vacated because of the trial
court‟s failure to observe the 24-hour delay between denial of
defendant‟s motions for new trial and in arrest of judgment.
Defendant did not prove by any objective evidence that he suffered
from mental illness at the time he perpetrated any of the offenses for
which he was convicted. However, the record suggests that defendant
may suffer from and/or may have suffered in the past from a serious
mental illness, paranoid schizophrenia. Therefore, the trial court must
consider whatever evidence there is of defendant‟s mental illness as a
factor when resentencing him.
Id. at 1196.
In the current case, at the sentencing hearing, after the trial court asked
defense counsel if he and Defendant had a chance to review the presentence
investigation report, Defendant began to contest certain facts listed in the report
and concluded with calling the prosecutor an “imbecile right there on a malicious
prosecution.” The trial court had also officiated at an order of protection hearing
instituted by Defendant‟s girlfriend, and Defendant commenced attacking the trial
court for whatever outcome resulted from the order of protection hearing. The
Defendant called the trial court “sick”, and said “you need to drop that dress that
you‟re wearing right now, get your ass up off of that stand and send me another
judge ‟cause I want you recused.” Defendant continued his tirade as the trial court
attempted to calm him down. Eventually, the trial court ordered Defendant to be
quiet or his mouth would be duct-taped shut. However, Defendant continued to
9
insult the State during its argument regarding what sentence would be most
appropriate for Defendant. Finally, the following occurred:
MR. LAFLEUR: - - you‟re not - - no, don‟t say Mr. Lopez. I ain‟t
married to that tall, beautiful - -
THE COURT: Mr. Lafleur, - -
MR. LAFLEUR: - - prostitute that you and Judge Gunnell‟s - -
THE COURT: Mr. Lafleur, - -
MR. LAFLEUR: - - f - - king over that desk.
THE COURT: Mr. - - you‟re going to do what, sir?
MR. LAFLEUR: I said - - I said who you and Judge Gunnell‟s f- -
king over that desk to award her such favor. It‟s all over the internet.
THE COURT: I was going to give you a suspended sentence.
MR. LAFLEUR: It‟s all over the internet. It‟s all over the public
radio.
THE COURT: Ten years hard labor, period. Take him away.
As in Foster, in the current case, there is nothing in the sentencing record to
indicate that the trial court gave consideration to Defendant‟s mental illness when
it sentenced Defendant to the maximum sentence for the offense of aggravated
assault with a firearm.
At the July 10, 2015 sanity commission hearing, Patrick Hayes, a board
certified psychiatrist, testified regarding his evaluation of Defendant‟s competency
to proceed to trial. Doctor Hayes submitted an extensive report to the trial court
which included Defendant‟s mental health history and a recommendation as to his
ability to proceed to trial. In the report, the doctor summarized as follows:
Mr. Lafleur‟s deficits are not complete, but can be ascribed to serious,
persisting mental illness. While he has sufficient cognitive and
intellectual capabilities to understand the factual process, his untreated
affective and psychotic illness yields mixed or manic symptoms,
10
delusional symptoms, and psychotic paranoia of an intensity severe
enough to render him not competent to stand trial at this time. In
other words, his legal self-service is materially impacted in a negative
manner by his mental illness.
At the hearing, the doctor testified that Defendant‟s “symptoms of illness are such
that they will likely be exacerbated by a trial.” Noting Defendant‟s propensity to
not comply with medication, the doctor recommended that Defendant be
committed to Eastern Louisiana Mental Health System.
James Anderson, a medical doctor specializing in psychiatry, agreed with
Doctor Hayes‟ evaluation. In Doctor Anderson‟s report, submitted into evidence,
he stated:
The records indicate that Mr. Lafleur has a history of
psychiatric hospitalizations, a diagnosis of schizophrenia, paranoia,
and non-compliance with medication. His medical records document
that he was hospitalized in July and November 2005 with suicidal
ideation, auditory hallucinations, and alcohol, methamphetamine and
cocaine abuse. In February 2011 he was hospitalized with depression,
auditory hallucinations, homicidal ideation, alcohol abuse and THC
abuse. In addition to psychosis the records document a history of
traumatic brain injury.
At the hearing, regarding Defendant‟s mental illness, Doctor Anderson
testified:
“[C]onsidering the nature of his charges and the legal history that I
reviewed, his history of polysubstance abuse, his psychiatric history
that included hallucinations and homicidal ideation and the fact that
he was noncompliant with medication at that point in time, it was my
opinion that he should not be - - that he needed inpatient treatment - -
he needed treatment, first of all, and it wouldn‟t be outpatient
treatment because he wouldn‟t be compliant so it was my opinion that
he be admitted to the state forensic hospital.
As noted above, the trial court began the sentencing hearing by asking if
Defendant had an opportunity to review the presentence investigation report and
would he like to make a statement. At this point, Defendant more or less took over
the hearing. The only other person to address to any degree of the sentence was
11
the State‟s attorney, who pointed out Defendant‟s criminal history and
recommended a substantial sentence. The only indication the trial judge had
considered a sentence, prior to Defendant‟s outburst, was the statement that he was
going to give Defendant a suspended sentence. 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, it was noted that in order to fashion an appropriate sentence for a
defendant, the trial court should take into consideration the nature of the crime, the
nature and background of the offender, and the sentence imposed for similar
crimes by the same court and other courts.
The only information regarding Defendant‟s background came from the
presentence investigation report. The report indicated that Defendant was
essentially raised by his grandparents and had no relationship with his parents or
siblings. There was evidence of physical and emotional abuse. Defendant began
doing drugs and alcohol at a very early age. He dropped out of high school in the
ninth grade but obtained his GED. At the time of the report, Defendant was thirtynine
years old.
The report also contained a summary of his mental health history, taken
from the reports submitted by Doctor Hayes and Doctor Anderson. The
presentence investigation report also noted Defendant‟s criminal history, which
was as follows: 1999, aggravated assault, one year unsupervised probation; 2001,
an arrest in Texas for assault with bodily injury of a family member, dismissed;
2003, aggravated assault, six months in the parish jail, suspended, one year
unsupervised probation; 2006, driving while intoxicated in Texas, sixty-three days
jail, twelve months‟ probation; and the current offense.
12
Except for the above information, nothing was revealed at the sentencing
hearing which supported the trial court‟s imposition of the maximum sentence
other than Defendant‟s bad behavior towards the trial court, the prosecutor, and
even his own counsel. In State v. Sibley, 09-1104, p. 7 (La.App. 3 Cir. 6/2/10), 41
So.3d 581, 585-86 (alterations in original), while examining whether the trial court
failed to consider Mr. Sibley‟s mental illness as a mitigating factor when it
imposed an alleged excessive sentence, this court noted:
Louisiana Code of Criminal Procedure Article 894.1(C) states,
“[t]he court shall state for the record the considerations taken into
account and the factual basis therefore in imposing sentence.” The
goal of Article 894.1 is the “articulation of the factual basis for a
sentence . . . not rigid or mechanical compliance with its provisions.”
Therefore, “where an adequate factual basis for the sentence imposed”
is evidenced in the record, “remand is unnecessary, even where there
has not been full compliance with Article 894.1.” State v. Lanclos,
419 So.2d 475, 478 (La.1982); State v. Pleasant, 99-2349 (La.App. 4
Cir. 11/8/00), 772 So.2d 910, writ denied, 00-3349 (La.10/26/01), 799
So.2d 1159. A remand for resentencing on a fuller statement of
reasons is necessary only when there appears “to be a substantial
possibility that the defendant‟s complaints of an excessive sentence
[have] merit.” State v. Wimberly, 414 So.2d 666, 672 (La.1982)
(emphasis added).
In Sibley Id., the defendant received two sentences of thirty years each, one
for attempted first degree murder and one for armed robbery, to be served
concurrently. This court found that the trial court more than adequately addressed
mitigating and aggravating factors, and, although it did not specifically state that it
was considering the defendant‟s alleged mental illness, the trial court did note that
it was uninformed as to whether the defendant‟s problem developed before or after
his military service. There was testimony at the sentencing hearing by the
defendant‟s mother that the defendant was “messed up” after his military service,
an evaluation was submitted to the trial court from a medical doctor stating that the
defendant suffered from schizoaffective and posttraumatic stress disorders, and the
13
trial court discussed the defendant‟s criminal and social history. The trial court
further noted the defendant received a significant benefit when he pled guilty in
exchange for the State dismissing several other charges that were associated with
the two current convictions. This court concluded there were sufficient facts in the
record to support the defendant‟s sentences, and there was no merit to the
defendant‟s contention that the trial court failed to consider mitigating evidence.
In State v. Legendre, 522 So.2d 1249 (La.App. 4 Cir.), writ denied, 523
So.2d 1321 (La.1988), the defendant was convicted of second degree battery and
sentenced to the maximum sentence of five years at hard labor. As in the current
case, the defendant alleged that the trial court failed to consider as a mitigating
factor his mental illness; thus, the maximum sentence was excessive. The fourth
circuit stated:
The Louisiana Constitution prohibits the imposition of
excessive punishment. La. Const. Art. I, Section 20. Trial judges are
vested with wide discretion in imposing sentences; however, that
discretion is not unbridled. State v. Quebedeaux, 424 So.2d 1009,
1014 (La.1982); appeal after remand 446 So.2d 1210 (La.1984). A
sentence may be found to be unconstitutionally excessive when
considered in light of the particular defendant and the circumstances
of the particular crime even if it falls within the statutory limit. Id.
This principle is especially relevant when the maximum penalty
has been imposed. Maximum sentences are considered particularly
suspect because they are reserved for the most serious violation of the
charged offense and the worst kind of offender. State v. Santee, 464
So.2d 922, 926 (La.App. 4th Cir.1985). Maximum sentences can be
justified only in cases classified as “extreme” by the factual
circumstances of the offense and the apparent dangerous proclivities
of the defendant. State v. Ransome, 441 So.2d 425, 428 (La.App. 2d
Cir.1983). “Nothing else will justify the great sentencing discretion
given the trial judge in Louisiana.” State v. Jones, 398 So.2d 1049,
1053 (La.1981).
La.C.Cr.P. art. 894.1(C) requires that the trial judge state for the
record the considerations taken into account and the factual basis
therefor in imposing sentence. The judge in the instant case made the
following statement at the sentencing hearing:
14
The defendant stands convicted of the crime of
second degree battery. The Court has considered
sentence pursuant to Code of Criminal Procedure, Article
894.1 A and B, and in accordance with Code of Criminal
Procedure, Article 894.1 C, hereby states for the record
the considerations taken into account and the factual
basis, therefor, in imposing sentence.
The defendant is 44 years old, divorced, and has an
18 year old son who lives with the victim in this case.
He also has two daughters whose whereabouts are
unknown. The defendant has a long history of mental
problems and has been in and out of hospitals on
numerous occasions. He has been diagnosed as chronic
paranoid schizophrenic and has been treated with various
medications which he continually resists.
While this defendant has no previous convictions
he has been arrested eight times for offenses ranging
from theft to assault and battery. He has an extremely
violent disposition and has attacked his wife and other
family members, according to the pre-sentence report, on
numerous occasions.
In the instant case, the defendant kicked in the
door of his sister‟s house, threw a glass table top at her
and then choked her and threw her against the wall
inflicting injuries upon her. The defendant‟s main
problem, according the pre-sentence report, lies in his
lack of insight to his illness and his refusal to take
prescribed medication away from the hospital.
The reporting person finds that the defendant is a
threat to the community itself and recommends that he be
incarcerated as long as legally possible.
It is, therefore, the sentence of this Court that the
defendant, Ridge Legendre, serve five years at hard labor
in the custody of the Department of Corrections.
Appellate review of the sentence imposed is confined to
consideration of whether the trial judge abused his great discretion
when the judge has complied with La.C.Cr.P. art. 894.1 by stating the
individual considerations and factual bases for the sentence. State v.
Finley, 432 So.2d 243, 245 (La.1983). Review of abuse of discretion
is controlled by the following factors, examined in light of the criteria
provided in article 894.1 (A) and (B): (1) nature of crime, (2) nature
and background of offender and (3) sentences imposed for similar
15
crimes by the same court and other courts. Id. Defendant‟s personal
history, such as age, marital status, dependents, family stability,
employment, mental, emotional and physical health, is one of the
factors to be taken in account in sentencing decisions. State v.
Crawford, 410 So.2d 1076, 1078 (La.1982).
La.C.Cr.P. art. 894.1, which provides guidelines for
determining whether a defendant should be subjected to imprisonment
or suspension or probation, does not specifically list mental illness as
a mitigating circumstance to be taken into account to reduce a
sentence. However, Louisiana caselaw does indicate that mental
illness should be used as a mitigating circumstance. In State v. Price,
403 So.2d 660 (La.1981), the court found that the defendant had
proven that he had suffered from a “deranged mental condition”,
which “[did] not absolve defendant of criminal responsibility for his
actions, but [did] tend to excuse or explain his behavior.” Id. at 664.
The court found that that factor should have been weighed in
sentencing. See also State v. Hart, 397 So.2d 518 (La.1981), where
the court indicated that the fact the defendant was diagnosed as
schizophrenic should have served as a mitigating circumstance in
sentencing.
More recently, the Louisiana Supreme Court has indicated that
the mitigating circumstances set out in La.C.Cr.P. art. 905.5, which
expressly applies only to decisions regarding capital punishment,
should be used as mitigating circumstances in other sentencing
decisions. In State v. Lodrige, 414 So.2d 759 (La.1982), the court
lists the mitigating circumstances from that article, stating that they
were applicable in that case, which involved the appeal of a six-year
sentence at hard labor for attempted aggravated burglary. Id. at 761.
One of the mitigating circumstances specifically listed in C.Cr.P. art.
905.5 is the following: “The offense was committed while the
offender was under the influence of extreme mental or emotional
disturbance.”
Id. at 1251-53 (alterations in original).
The fourth circuit concluded its analysis by vacating the sentence and
remanding, stating:
When persons with recognized, diagnosed mental illnesses are
convicted of crimes, that condition should be considered to mitigate
the type and length of sentence imposed on the offender, even if he
has been ruled legally sane. Incarceration of a mental patient in a
penal institution for the maximum period of time applicable to the
crime is not in keeping with the standards established by courts of this
state, or with the theory of punishment and retribution.
16
Id. at 1253.
Interestingly, upon remand of Legendre, the trial court imposed the same
sentence. On appeal, the fourth circuit noted the trial court‟s reasoning, as follows:
The Court of Appeals had remanded for
reconsideration of sentence. Upon such reconsideration,
the Court has found insufficient reason to alter the
sentence originally imposed.
Mental problems notwithstanding, the defendant
was found to be competent by a duly appointed sanity
commission. His crime was atrocious and clearly
illustrated a dangerous proclivity set forth in the presentence
report.
With due respect it is not accurate to say that this
Court did not consider the defendant‟s mental condition
as a mitigating factor. This factor was simply
outweighed by the extremely dangerous conduct
involved. This Court is not without sympathy for the
defendant, but the Court cannot permit sympathy to color
its judgment or bias against the needs of the community.
State v. Legendre, 548 So.2d 1277, 1278 (La.App. 4 Cir. 1989). This time, the
fourth circuit affirmed the sentence, stating that “[t]he trial judge clearly stated that
he considered the defendant‟s mental condition as a mitigating factor, but felt that
condition was outweighed by the aggravating circumstances of an extremely
„atrocious‟ act. The trial court obviously took into consideration the defendant‟s
mental illness.” Id.
We find that the trial court abused its considerable discretion when it
sentenced Defendant to the maximum sentence without any articulation of the
aggravating or mitigating factors, particularly considering that there was strong
evidence of Defendant‟s mental illness. While Defendant did have a criminal
history, the facts of the case were not near as “atrocious” as in Legendre. As noted
above in the fact section, Defendant accused the victim of some misperceived
17
occurrence between the victim and Defendant‟s son. Defendant pointed the rifle at
the victim, then lowered the rifle and walked away. Defendant‟s behavior in the
courtroom the day of sentencing was a strong indication of his mental illness, and
the trial court‟s admission that it was going to give Defendant a suspended
sentence suggests that the trial court may have initially considered Defendant‟s
mental illness but then reacted adversely to Defendant‟s profaned exclamations.
For these reasons, we vacate the sentence and remand the matter to the trial court
to sentence Defendant, giving consideration to Defendant‟s mental illness.
PRO SE ASSIGNMENT OF ERROR NUMBER TWO
Defendant argues he was denied his right to represent himself. In State v.
Daigle, 07-928, pp. 7-8 (La.App. 3 Cir. 1/30/08), 974 So.2d 869, 873, this court
stated:
This court‟s position on issues of an accused‟s right to counsel
and right to represent himself and whether these rights had been
violated is well established. In [State v.]Whatley, [03-655 (La.App. 3
Cir. 11/5/03),] 858 So.2d [751] at 765-66, this court quoted with
approval [State v.] Hayes, 95-1170 (La.App. 3 Cir. 3/6/96), 670 So.2d
[683] at 685-86, as follows:
A criminal defendant is guaranteed the right to
counsel by both the state and federal constitutions. U.S.
Const. amend. VI; La. Const. art. I, § 13. Absent a
knowing and voluntary waiver of the right to counsel, no
person may be imprisoned unless represented by counsel
at trial. State v. Smith, 479 So.2d 1062 (La.App. 3
Cir.1985), citing Argersinger v. Hamlin, 407 U.S. 25, 92
S.Ct. 2006, 32 L.Ed.2d 530 (1972).
Before a defendant may waive his right to counsel,
the trial court must determine whether the defendant‟s
waiver of counsel is intelligently and voluntarily made,
and whether his assertion of his right to represent himself
is clear and unequivocal. State v. Hegwood, 345 So.2d
1179 (La.1977). The determination of whether there has
been an intelligent waiver of the right to counsel depends
upon the facts and circumstances surrounding the case,
including the background, experience, and conduct of the
18
accused. State v. Harper, 381 So.2d 468 (La.1980).
Although a defendant should be made aware of the
dangers and disadvantages of self-representation, there is
no particular formula which must be followed by the trial
court in determining whether a defendant has validly
waived his right to counsel. State v. Carpenter, 390 So.2d
1296 (La.1980). However, the record must establish that
the accused knew what he was doing and that his choice
was made “with eyes open.” Id. at 1298, citing Faretta v.
California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562
(1975).
In the current case, a minute entry dated July 9, 2014, indicates that
Defendant advised the trial court he desired to represent himself. The trial court
advised him against self-representation. Defendant then told the trial court he
wished for counsel to be appointed. The trial court appointed Public Defender
David Marcantel to represent Defendant. On September 10, 2014, a minute entry
indicates that Defendant again requested that he represent himself. The trial court
advised Defendant of the procedure on how to request self-representation. At this
hearing, the State asked for a sanity commission to be appointed. The trial court
advised Defendant that a sanity commission would indicate whether he had the
capacity to represent himself. A sanity commission hearing date was set for
November 10, 2014. Defendant was deemed incompetent to assist in his defense at
trial and was admitted to Eastern Louisiana Mental Health System for treatment.
He was deemed competent to proceed to trial on October 2, 2015. On December
15, 2015, after trial commenced, Defendant sought to fire defense counsel. The
trial court denied the request for new counsel but stated that Defendant could assist
Mr. Marcantel.
On July 10, 2015, the date scheduled for the first sanity commission hearing,
the trial court stated to Defendant‟s defense counsel, David Marcantel, the
following:
19
All right. Let me put some things on the record. Mr.
Marcantel, I - - I thank you for coming. I asked you to come in case
- - in case he - - well, I have the docket number, yeah. This is State of
Louisiana - - the docket number is CR 702-13, Daniel [sic] Lewayne
Lafleur, thirty-first Judicial District Court. I - - when I last had Mr.
Lafleur in the courtroom on his - - I‟m appointed by the Supreme
Court on all of his matters, his custody case, his protective order, and
also these criminal charges, and last when I had him in court, he
indicated to me that he wanted to - - he wanted to represent himself
and not represent you - - and be represented by you, and I indicated to
him that he‟d have to file a written motion and send you a certified
letter, and I understand he has not done that.
MR. MARCANTEL: That‟s correct.
The above was the extent of any request for self-representation in the record
before this court. Defendant has shown nothing to substantiate that the trial court
denied him the right to self-representation. There is no merit to this assignment of
error.
PRO SE ASSIGNMENT OF ERROR NUMBER THREE
Defendant argues that the jury was illegal. He contends that pursuant to
La.Code Crim.P. art. 782, he should have had a jury of twelve since he was
sentenced to hard labor rather than the six that composed his jury. As noted above,
the aggravated assault with a firearm statute provided for a range of punishment of
“not more than ten years, with or without hard labor[.]” La.R.S. 14:37.4.
However, La.Code Crim.P. art. 782(A) provides:
Cases in which punishment may be capital shall be tried by a
jury of twelve jurors, all of whom must concur to render a verdict.
Cases in which punishment is necessarily confinement at hard labor
shall be tried by a jury composed of twelve jurors, ten of whom must
concur to render a verdict. Cases in which the punishment may be
confinement at hard labor shall be tried by a jury composed of six
jurors, all of whom must concur to render a verdict.
20
The trial court had discretion on whether to sentence Defendant to hard labor
pursuant to the statute. Accordingly, Defendant was entitled to a jury of only six
members.
We find there is no merit to this assignment of error.
PRO SE ASSIGNMENT OF ERROR NUMBER FOUR
Defendant argues that the State failed to take him to trial in a timely manner,
so he is entitled to have the bill of information quashed. He points out that he was
charged on October 31, 2013, but did not go to trial until December 15, 2016,
approximately a year and two months past the time limitation.
Louisiana Code Criminal Procedure Article 578 provides:
A. Except as otherwise provided in this Chapter, no trial shall
be commenced nor any bail obligation be enforceable:
(1) In capital cases after three years from the date of institution
of the prosecution;
(2) In other felony cases after two years from the date of
institution of the prosecution; and
(3) In misdemeanor cases after one year from the date of
institution of the prosecution.
B. The offense charged shall determine the applicable
limitation.
In Defendant‟s case, he was charged with a non-capital felony.
Accordingly, the State had two years from the date of institution of prosecution in
which to take Defendant to trial. However, La.Code Crim.P. art. 579, in pertinent
part, provides:
A. The period of limitation established by Article 578 shall be
interrupted if:
. . . .
21
(2) The defendant cannot be tried because of insanity or
because his presence for trial cannot be obtained by legal process, or
for any other cause beyond the control of the state; or
. . . .
B. The periods of limitation established by Article 578 shall
commence to run anew from the date the cause of interruption no
longer exists.
In this case, a sanity commission was ordered on July 10, 2015. For more
than one year, all proceedings were stayed. La.Code Crim.P. art. 642. Defendant
was deemed capable to assist in his own defense on October 2, 2015. Accordingly,
the time delay in which to take Defendant to trial was reset after the cause of the
interruption ceased to exist, and the State then had until October 2, 2017, in which
to take Defendant to trial.
We find there is no merit to this assignment or error.
PRO SE ASSIGNMENT OF ERROR NUMBER FIVE
Defendant argues the State impermissibly submitted evidence of
Defendant‟s other crimes without filing a notice of intent prior to trial. Defendant
argues the State admitted the evidence of his prior convictions for the purpose of
proving that he committed the charged offense in violation of La.Code Evid.
404(B). However, the only time Defendant‟s prior convictions were mentioned
during trial was during cross-examination of Defendant. Louisiana Code of
Evidence Article 609.1(A) and (B) provides that a witness may be questioned
about the fact of prior convictions with details of the conviction being admissible
only under limited circumstances.
We find there is no merit to this assignment of error.
As for the remainder of Defendant‟s pro se allegations of error committed by
the State or by the trial court, the assertions are all variations of the above
22
discussed assignments of error, or the allegations are conclusory and
unsubstantiated. Therefore, we will not discuss these assignments of error

Outcome: We find no merit to Defendant‟s pro se assignments of errors. However, we
do find merit to Defendant‟s assertion that the maximum sentence of ten years at hard labor was constitutionally excessive under the circumstance of the case.

Therefore, we vacate the sentence and remand the case to the trial court for
resentencing to consider Defendant‟s mental illness at the time of the offense as a mitigating factor.

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