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Date: 06-18-2020
Case Style:
STATE OF LOUISIANA Vs. FRIN WAYNE COWARD
Case Number: 19-869
Judge: Jonathan Perry
Court: STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
Plaintiff's Attorney: John F. DeRosier
District Attorney—Fourteenth Judicial District
Elizabeth B. Hollins
Assistant District Attorney
Defendant's Attorney:
Need help finding a lawyer for representation for appealing a sentence for second degree murder in Louisiana?
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Description:
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The basic facts of this case were set forth in a previous unpublished opinion
of this court. State v. Coward, 18-951 (La.App. 3 Cir. 6/5/19). We state those facts
here:
On the afternoon of March 8, 2017, the Calcasieu Parish Sheriff’s
Department responded to a 911 call regarding a shooting at a Vinton,
Louisiana residence. The caller reported that a man was on the ground.
Additional shots were heard on the call.
. . . .
[Sandra] Fruge testified at trial that she arrived at Defendant’s
residence in the early morning hours of March 8th to stay with
[Michael] Fountain, who was residing with Defendant. She explained
that she and Mr. Fountain slept until “10:00, 10:30” a.m. During the
course of the day, however, Defendant and Mr. Fountain began arguing,
with Defendant focusing on Mr. Fountain’s difficulties in addressing
his mother’s recent death. Ms. Fruge explained that Defendant
threatened Mr. Fountain during the argument, that he had a holstered
gun on his hip, and that he would pat his hip during the argument. Ms.
Fruge testified that although both men were violent, she did not see
Mr. Fountain become violent that day.
According to Mr. Fountain’s sister, Denise Dickerson
Authement (Ms. Dickerson), Mr. Fountain telephoned her repeatedly
during the course of the day and reported increasingly threatening
behavior by Defendant. During one call, Mr. Fountain reported that
Defendant “was pulling a gun out.” In his final call before the shooting,
he asked her to “[c]ome get [him].”
Ms. Fruge explained that as the argument escalated, she began
packing Mr. Fountain’s belongings in order to leave when she heard
gunshots and ran to the front porch. When asked what she saw once on
the porch, Ms. Fruge explained:
Mr. Coward was standing there and he was kind of looking
and I was like, “What are you doing? What’s going on?”
He put his gun up, he did like this and he pointed again,
and at that time I seen Mr. Fountain come across. He was
holding his neck and the back of his leg.
2
She confirmed that she then saw Mr. Fountain fall. Ms. Fruge
explained that she pushed Defendant “out of the way,” jumped from the
porch, and ran to Mr. Fountain, who told her “to run.” Ms. Fruge stated
that she then ran from the scene toward the roadway and explained that
as she “got up to run I heard more gunshots.” Ms. Fruge was able to
stop a passing vehicle and rode to a nearby store where she called
authorities.
Corporal [Donald] Lindenman explained in his trial testimony
that he ultimately transported Defendant to the hospital for collection
of blood and urine. During that drive, Defendant stated to him that he
and Mr. Fountain had argued, but that Ms. Fruge and Mr. Fountain had
left the residence when he heard gunshots and, after going outside, he
saw Mr. Fountain lying on the driveway. Defendant explained to
Corporal Lindenman that he attempted to stop the bleeding from the
“carotid artery” by applying pressure. However, the officer testified
that Defendant had no blood on his hands or clothing.
While Defendant did not initially admit that he was the shooter,
he admitted as such in a later interview, which was received into
evidence and reviewed by the jury. During that interrogation,
Defendant stated that during the argument, Mr. Fountain reached into a
boat located outside the home, retrieving a paddle. Defendant
explained that he was already armed with a gun at that time and that he
shot three times.
Id. at 1-4 (footnotes omitted).
Following the shooting death of Michael Fountain, the State charged
Defendant with second degree murder, a violation of La.R.S. 14:30.1. A jury
rejected Defendant’s claim of self-defense and unanimously convicted Defendant as
charged.
On appeal, this court affirmed Defendant’s conviction. This court
additionally found the trial court referenced the applicable sentence but did not
ultimately impose that sentence and remanded the matter to the trial court for
imposition of sentence.
On July 8, 2019, the trial court sentenced Defendant to life imprisonment at
hard labor without benefit of parole, probation, or suspension of sentence but then
3
reset the matter at defense counsel’s request.1
Defendant was again sentenced to
serve life imprisonment at hard labor without benefit of probation, parole, or
suspension of sentence on July 11, 2019. Defendant’s Motion for Reconsideration
of Sentence was denied. This appeal followed.
ERRORS PATENT REVIEW
In accordance with La.Code Crim.P. art. 920, we review all appeals for errors
patent on the face of the record. After reviewing the record, we find there are no
errors patent; however, the minutes of sentencing need correction.
The minutes of sentencing indicate the trial court sentenced Defendant to
“live” imprisonment rather than “life” imprisonment. To correct this typographical
error, the trial court is ordered to amend the minutes of sentencing to accurately
reflect the terms of Defendant’s confinement, i.e., to serve “life” imprisonment.
DISCUSSION
In his only assignment of error, Defendant contends a life sentence in this case
is excessive based on both constitutional and statutory grounds. He alleges the trial
court again failed to conduct a proper sentencing hearing, although it did impose a
sentence this time. Thus, the trial court’s sentence should be vacated, and the matter
remanded for a new hearing.
In addressing the trial court’s failure to impose sentence in Coward, this court
stated:
At the sentencing hearing, and after hearing argument regarding
defense counsel’s assertion that the mandatory life sentence was
unconstitutionally excessive as applied to Defendant, the trial court
stated:
[I]t should be noted that neither Defense or State has
presented anything post-trial to the Court as it relates to
any mitigating - - as Defense Counsel points out that the
1 Court minutes for that date indicate the sentence was vacated, but the transcript of the
proceeding does not.
4
statute takes away the Court’s discretion as it relates to this
charge. And the Court - - I do want to note that
Mr. Coward had no prior convictions in this matter to the
extent to which that mitigates. And under Louisiana
revised statute 1430.1 [sic], the punishment for second
degree murder is life imprisonment and [sic] hard labor
without the benefit of parole, probation, or suspension of
sentence. Again, a jury of Mr. Coward’s peers has made
that determination.
The trial court then advised Defendant of the prescriptive period for
filing post-conviction relief, and defense counsel renewed his previous
objection to the excessiveness of the sentence as applied to Defendant.
The transcript reveals no further statement regarding the sentence was
made by the trial court.
As the transcript shows, the trial court referenced the applicable
sentence but did not ultimately impose that sentence. Accordingly, we
remand this matter to the trial court for the imposition of sentence. This
determination pretermits discussion of Defendant’s second and third
assignments of error which address sentencing issues. On remand, the
trial court is reminded of the sentencing guidelines of La.Code
Crim.P. art. 894.1 if a downward departure from the mandatory life
sentence is again argued by Defendant. See State v. Dorthey, 623 So.2d
1276 (La.1993).
Coward, 18-951, p. 6 (alterations in original) (footnote omitted).
On remand, the parties made an appearance on the record on July 8, 2019, and
the judge immediately stated:
Let the Record reflect that Mr. Frin Wayne Coward is present,
and let the Record reflect that on[] February 24, 2018[,] Frin Wayne
Coward was found guilty of second degree murder by a jury of his
peers. At this time, this Court will sentence the defendant to life
imprisonment with hard labor without benefit of parole, probation, or
suspension of sentence.
Thereafter, counsel for Defendant asserted he was not given an opportunity to
address the court before the sentence was imposed. Counsel additionally asserted
he had not received notice that the sentencing hearing had been set for that date.
Counsel stated he would have argued for a downward departure from the mandatory
sentence, but he was not sufficiently prepared. He then informed the court that
Defendant was “an individual of advanced years,” had no prior record, and would
5
“be better off in Angola State -- or any DOC facility even if he had a sentence of 99
years versus a sentence of life without parole.” The State interrupted, insisting any
argument toward downward departure was improper at that time, as the judge had
just imposed sentence. Counsel for Defendant reiterated Defendant should not have
been sentenced without counsel having the opportunity to speak. He pointed out
that this court’s opinion in Coward specifically referred to the prospect of a
downward departure from the mandatory sentence being asserted by Defendant. He
then moved to proceed with his argument for downward departure or to continue the
proceedings due to the lack of notice. Counsel for Defendant further moved to
“rescind the re-sentencing” and have the matter reset with proper notice given to
him. The State did not think there was a requirement that Defendant be afforded an
opportunity to re-urge any arguments. The trial court subsequently granted defense
counsel’s request to “be given an opportunity to review this and make a presentation
to the Court” and reset the matter for July 11, 2019.
On July 11, 2019, the parties once again addressed this court’s ruling in
Coward. The State objected to the presentation of any evidence as to a downward
departure. Defense counsel noted it was not his intent to present evidence, as that
had previously been done. He went on to remind the trial court that this court
“explicitly said” that if Defendant argued for a downward departure, the trial court
needed to consider the factors set forth in La.Code Crim.P. art. 894.1. The trial court
followed with:
I want the record to reflect that on February 24th, 2018, Frin
Wayne Coward was found guilty of second-degree murder by a jury of
his peers. After consideration of 894.1 and the statutes dealing with
this matter, this Court is going to sentence the defendant to life
imprisonment at hard labor without benefit of probation, parole, or
suspension of sentences [sic] . . . .
Defense counsel objected to the sentence.
6
Defendant filed a Motion to Reconsider Sentence. In the first paragraph of
his motion, Defendant alleged his sentence violated the proportionality doctrine
under State v. Dorthey, 623 So.2d 1276 (La.1993), and “progeny pertaining to the
power of the sentencing courts to determine whether a sentence in a particular case,
with particular facts, would be unconstitutional if a general sentence scheme is
utilized, and whether a downward deviation from statutory minimum sentencing is
warranted.” Next, Defendant asserted the trial court failed to give consideration or
weight to mitigating factors, including those set forth in La.Code Crim.P. art. 894.1
and particularly the uncertainties in the evidence and proof of what precisely
occurred at the time the offense was committed, the fact that he was physically
confronted by a much larger and younger man at his home, his legal possession of a
firearm at his home, his advanced age and poor health, the length of the sentence,
and the conditions of life without parole imprisonment in the Louisiana Department
of Corrections. Defendant further argued his sentence was constitutionally
excessive. The motion was denied without a hearing.
In brief to this court, Defendant maintains the record does not reflect the trial
court vacated the sentence it imposed on July 8. Thus, it is unclear if the hearing
held on July 11 was done with proper authority because a motion to reconsider
sentence had not been filed yet. Defendant goes on to address errors in each
sentencing hearing conducted by the trial court after remand. Defendant argues the
trial court erred in the first sentencing hearing by failing to entertain any arguments
involving whether a life sentence was constitutional or whether a downward
departure was justified in this case. Defendant notes this argument assumes this
court will find the first sentencing hearing was the only valid sentencing hearing.
Defendant next asserts that at the second hearing, the trial court again failed
to articulate a sufficient factual basis to justify a life sentence. In this argument,
7
Defendant assumes this court will find the second sentencing hearing nullified the
trial court’s ruling in the first sentencing hearing. Defendant notes that at the second
hearing, the trial court did not state for the record pursuant to La.Code Crim.P. art.
894.1 what sentencing factors it considered and discuss the facts of the case,
including his age, the age of the victim, that the offense occurred at the Defendant’s
home where the victim was allowed to stay despite his drug use, that the shooting
was provoked, his lack of prior convictions, and testimony that the victim was in a
boxer stance just prior to the shooting. Because none of these facts were mentioned
at the second hearing, Defendant alleges there is nothing for this court to review to
determine if the trial court abused its sentencing discretion.
Defendant next addresses his Motion to Reconsider Sentence. Defendant
claims that therein defense counsel specifically raised “Dorthey relief” and the trial
court’s failure to give consideration or weight to mitigating factors. Defendant
claims, if the second sentencing was valid, the trial court erred in not granting the
Motion to Reconsider Sentence and in not holding a hearing to consider “Dorthey
relief.” Defendant asserts the trial court never considered whether a downward
departure was warranted in this case. Therefore, the matter should be remanded to
the trial court for consideration of arguments regarding whether a life sentence is
constitutional. Defendant alternatively asserts that, if the trial court followed the
proper procedures, the facts of the case prove, per Dorthey, that a life sentence is
constitutionally excessive. Thus, the sentence should be vacated, and the matter
remanded for a hearing consistent with “Dorthey relief.”
The first sentencing hearing was reset to a later date at the request of defense
counsel. Thus, the second sentencing proceeding was a continuation of the first
hearing and we have not considered Defendant’s claims relating to the first hearing.
We now address the sentence imposed.
8
In State v. Francois, 17-471, pp. 20-22 (La.App. 5 Cir. 3/14/18), 242 So.3d
806, 819-20, writ denied, 18-530 (La. 2/11/19), 263 So.3d 888, the fifth circuit
stated:
The Eighth Amendment to the United States Constitution and
Article I, § 20 of the Louisiana Constitution prohibit the imposition of
excessive punishment. Although a sentence is within statutory limits,
it can be reviewed for constitutional excessiveness. State v. Smith,
01-2574 (La. 1/14/03), 839 So.2d 1, 4. A sentence is considered
excessive if it is grossly disproportionate to the offense or imposes
needless and purposeless pain and suffering. Id. 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. State
v. Lawson, 04-334 (La. App. 5 Cir. 9/28/04), 885 So.2d 618, 622, writ
denied, 05-0244 (La. 12/9/05), 916 So.2d 1048. The appellate court
shall not set aside a sentence for excessiveness if the record supports
the sentence imposed. State v. Pearson, 07-332 (La. App. 5
Cir. 12/27/07), 975 So.2d 646, 656.
The penalty for second degree murder is life imprisonment at
hard labor, without benefit of parole, probation, or suspension of
sentence. La. R.S. 14.30.1. A mandatory minimum sentence is
presumed constitutional. State v. Royal, 03-439 (La. App. 5 Cir.
9/30/03), 857 So.2d 1167, 1174, writ denied, 03-3172 (La. 3/19/04),
869 So.2d 849. Further, Louisiana courts have consistently held that a
mandatory sentence of life imprisonment for second degree murder
does not constitute cruel and unusual punishment. State v. Graham,
422 So.2d 123 (La. 1982); State v. Lovick, 00-1833 (La. App. 5
Cir. 5/16/01), 788 So.2d 565, 573, writ denied, 01-1836 (La. 5/10/02),
815 So.2d 833.
In [State v.] Dorthey, [623 So.2d 1276 (La.1993)], the Louisiana
Supreme Court recognized that a mandatory minimum sentence under
the Habitual Offender Law may still be reviewed for constitutional
excessiveness. In State v. Johnson, 97-1906 (La. 3/4/98), 709 So.2d
672, 676, the Louisiana Supreme Court reexamined Dorthey and
outlined the criteria a defendant must meet in order to show that a
mandatory minimum sentence under the Habitual Offender Law is
constitutionally excessive. Although Dorthey involved a mandatory
enhanced sentence, this Court has applied the principles set out in
Dorthey to the review of mandatory life sentences other than those
imposed under the Habitual Offender Law. See State v. Temple, 01-
655 (La. App. 5 Cir. 12/12/01), 806 So.2d 697, 707, writ denied, 02-
234 (La. 1/31/03), 836 So.2d 58.
In order to rebut the presumption that a mandatory minimum
sentence 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
9
assign sentences that are meaningfully tailored to the culpability of the
offender, the gravity of the offense and the circumstances of the case.”
Johnson, 709 So.2d at 676. A sentencing court should exercise its
authority to declare excessive a mandatory minimum sentence only
under rare circumstances. State v. Lindsey, 99-3256 c/w 99-3302 (La.
10/17/00), 770 So.2d 339, 345.
Defendant was convicted of second degree murder, which carries a mandatory
penalty of life imprisonment. La.R.S. 14:30.1(B). He alleges the trial court did not
set forth a sufficient factual basis to justify imposition of that sentence. Although
the trial court mentioned La.Code Crim.P. art. 894.1 at the second sentencing
hearing, it did not state which factors it considered in formulating the sentence
imposed. “[F]ailing to articulate reasons for sentence under [La.Code Crim.P.] art.
894.1 when imposing a mandatory life sentence is not error. In such circumstances,
setting forth the factors considered in imposing sentence would be an exercise in
futility since the court has no discretion.” State v. Clem, 33,686, p. 12 (La.App. 2
Cir. 11/1/00), 779 So.2d 763, 770, writ denied, 00-3498 (La. 10/5/01), 798 So.2d
964.
The supreme court and this court have previously held the mandatory life
sentence for second degree murder is not unconstitutionally excessive. See State
v. Parker, 416 So.2d 545, 552 (La.1982); State v. Cofer, 16-871 (La.App. 3
Cir. 4/5/17), 216 So.3d 313, writ denied, 17-1150 (La. 5/11/18), 241 So.3d 1014;
State v. Chehardy, 12-1337 (La.App. 3 Cir. 5/1/13), 157 So.3d 21; State v. Boyer,
10-693 (La.App. 3 Cir. 2/2/11), 56 So.3d 1119, writ denied, 11-769 (La. 1/20/12),
78 So.3d 1382
; State v. Adams, 04-77 (La.App. 3 Cir. 9/29/04), 884 So.2d 694, writ
denied, 04-2709 (La. 2/25/05), 894 So.2d 1131, and writ denied, 04-2880
(La. 2/25/05), 894 So.2d 1132. In State v. Dunnagan, 16-187 (La.App. 1
2Certiorari granted in this matter was dismissed as improvidently granted. See Boyer
v. Louisiana, 569 U.S. 238, 133 S.Ct. 1702 (2013).
10
Cir. 9/20/16), 277 So.3d 378, the first circuit found a life sentence for a
sixty-eight-year-old first offender convicted of second degree murder was not
excessive. Defendant herein gave his date of birth during his interview with police
and was seventy years old at the time of the offense. He was also a first offender.
In light of the facts of the offense and the above-cited cases, we find the trial court
did not abuse its discretion when imposing the maximum sentence. Thus,
Defendant’s sentence is not excessive.
We next address Defendant’s request for a downward departure from the
mandatory sentence. Downward departure from the mandatory sentence was
mentioned at both the first and second sentencing hearings held on remand. At the
first sentencing hearing, defense counsel noted his intent to argue for a downward
departure, and his preference to do so by written memorandum.3
He then briefly
discussed Defendant. The matter was continued to July 11 so that defense counsel
could review the matter and make a presentation to the trial court.
Defense counsel addressed the issue at the second hearing, stating:
My understanding, Your Honor, is that we argued it previously. It was
not my intention to present evidence. Now, we’re kind of remote from
the trial date, here, but at least, Your Honor and I were here, and
Mr. Coward was here. . . . But such record -- as an evidentiary record
was made at that time, we just wanted to point out that the argument
was made about -- that would involve State v. Dorthey.
Because defense counsel suggested the request for downward departure had
previously been addressed, this court reviewed the initial sentencing hearing held on
May 18, 2018. There, defense counsel objected to the statutorily mandated sentence,
stating it was “constitutionally excessive as applied to an elderly first offender” such
as Defendant. Defense counsel explained his objection:
It’s made pursuant to the eighth and fourteenth amendments of the
federal constitution because it is a federal oral objection, alone, at this
3No written memorandum addressing the issue is included in the record.
11
time is sufficient to preserve it for federal purposes notwithstanding any
state, statutory, or jurisprudential law to the contrary, because the
defendant has a federal due process right to make out his defenses at
every stage of the proceedings.
Defendant himself subsequently addressed the court:
First of all, it was a very unfortunate set of circumstances that created
the day that the gentleman decided to take my life, and I used what force
I had, and seemed correct to deter him from moving forward towards
me.
Since all of this happened as a result of him being loaded with
narcotics and medicines and alcohol, which was not brought up in court,
he was agitated with an argument with his girlfriend. I knew both of
the people. I had given him a home. I had just helped him bury his
mother four days before. I bonded him out of jail three months before
then. I was trying to help the boy. He turned on me. It didn’t get
spoken in court, I didn’t get a chance to say it, Your Honor. Yes, I am
remorseful. I knew him since he was a young man. I knew his
grandfather well, I know his family. At one time I was married to his
half-sister. Yes, I do have remorse about that. But at the time, in that
particular set of circumstances, Your Honor, he growled and said, “Oh,
man, I’m going to beat you to death.” Now, that made the hair on the
back of my head stand up. I didn’t get a chance to say this in court.
And you know and I know the reason why. I’m not going to go into
the reason for that, but yes, I would have chosen a different direction of
defense for me if given the opportunity.
I do have remorse for the fact that the man died. I did not shoot
him to take his life. The first shot was below the waist on the leg, the
second shot was at the waist, and if he hadn’t been swinging that boat
paddle at me at the time his head would not have been down when the
third shot hit him in the neck. I’m sorry that it - - I pray to my Lord,
and He’s forgiven me. Now it’s time for man to forgive me.
After hearing from Defendant and the arguments of counsel, the trial court set
forth the applicable penalty. Defense counsel then renewed his objection to the life
sentence.
We note Defendant alleged a life sentence was excessive at the hearing held
on May 18, 2018, but never moved for a downward departure from the mandatory
sentence at the hearing or put on evidence that he was exceptional. Thus, the issue
was first raised by Defendant on appeal. Coward 18-951, p. 4.
12
On July 8, defense counsel mentioned Defendant’s age and status as a first
offender. The matter was then continued to July 11 to give Defendant a chance to
present evidence in support of his request for a downward departure. Defense
counsel chose not to present any evidence on that date. He subsequently raised the
issue in his Motion to Reconsider Sentence but merely cited to La.Code Crim.P. art.
894.1 and several mitigating factors he thought the trial court should consider. On
appeal, counsel asks for the matter to be remanded for a hearing on the Motion to
Reconsider so that evidence regarding a downward departure may be submitted.
Appellate courts have remanded for consideration of requests for downward
departure when a trial court does not consider a request because of an erroneous
view that it is without authority to consider such. See State v. Small, 13-1334,
(La.App. 4 Cir. 8/27/14), 147 So.3d 1274, writ denied, 14-1930 (La. 4/24/15), 169
So.3d 354. In State v. Pernell, 14-678, pp. 5-6 (La.App. 4 Cir. 10/15/14), 151 So.3d
940, 945 (footnote omitted), the fourth circuit discussed evidentiary hearings on
motions for downward departure:
“The importance of a full evidentiary hearing in the district court
on a claim of excessiveness can hardly be overstated.” [State
v. Conner], 09-1023, p. 5 [(La.App. 4 Cir. 2/3/10)]; 30 So.3d [1132] at
1135 n. 4. “The only opportunity for review of the sentencing decision
is on direct appeal as there is no post-conviction review available on
such claim.” Id. (citing State ex rel. Melinie v. State, 93-1380
(La.1/12/96); 665 So.2d 1172 (per curiam )). “Moreover, . . . there is
no post-conviction review available for ineffective assistance of
counsel at sentencing claims.” Id. (citing State v. Thomas, 08-2912
La.10/16/09); 19 So.3d 466). Thus, as all other avenues of review are
unavailable, a sentencing judge should permit a defendant to introduce
evidence and substantiate his claim at the hearing on the motion,
because, in the absence of evidence, there is nothing for this Court to
review on appeal. See id., 09-1023, p. 5; 30 So.3d at 1135 (citing State
v. Allen, 09-0813, p. 6 (La.App. 4 Cir. 1/13/10); 30 So.3d 1024, 1027).
Here, the sentencing judge was tasked “to explicitly determine
whether the defendant’s situation is one of those rare and exceptional
circumstances that would justify a downward departure from the
legislatively mandated and presumptively constitutional sentence of
life imprisonment at hard labor without the benefit of parole, probation,
13
or suspension of sentence.” [State v.] Pernell, 13-0180, p. 16
[(La.App. 4 Cir. 10/2/13)]; 127 So.3d [18] at 30. Rather than permitting
Mr. Pernell to rebut this presumption by introducing evidence and
adducing testimony, which Mr. Pernell’s counsel indicated he was
prepared to do, the sentencing judge summarily denied the motion to
reconsider. As such, the sentencing judge failed to comply with our
remand instructions that an evidentiary hearing be conducted on
Mr. Pernell’s motion.
The case at bar is distinguishable from these cases. This court did not order an
evidentiary hearing regarding the request for downward departure be held on
remand. Additionally, unlike the defendant in Pernell, Defendant herein was given
the opportunity to present evidence as to a downward departure on July 11, and
defense counsel did not take advantage of that occasion even though the matter was
reset for that date at his request so he could prepare to address the issue. Defendant
has not alleged that defense counsel was ineffective for his failure to address the
issue on July 11. We, therefore, decline to afford Defendant a third opportunity to
present evidence. Moreover, the trial court has made three attempts to impose a life
sentence, and it is clear that is the sentence it intends Defendant to serve.
In State v. Lambert, 18-777, 18-1024 (La.App. 4 Cir. 3/27/19), 267 So.3d 648,
writ denied, 19-736 (La. 1/22/20), --- So.3d ---, the defendant, who had been
convicted of aggravated rape and sentenced to life imprisonment, argued for a
downward departure due to his advanced age of sixty-five at the time of resentencing
and the fact that his previous convictions were for non-violent crimes should be
taken into consideration. The fourth circuit noted it had “consistently refused to
consider a defendant’s age and first-offender status as exceptional circumstances
when the crime committed is violent in nature.” Id. at 654. See also State v. Funes,
11-120 (La.App. 5 Cir. 12/28/11), 88 So.3d 490, writ denied, 12-290 (La. 5/25/12),
90 So.3d 408. Second degree murder is a crime of violence, and Defendant herein
shot the victim three times. See La.R.S. 14:2(B)(3).
14
Defendant does not cite a single case where a mandatory life sentence imposed
on a defendant convicted of second degree murder was found to be
unconstitutionally excessive on appellate review. Moreover, he does not present any
convincing evidence to support a downward departure from the mandatory life
sentence.
We note the Motion to Reconsider Sentence failed to set forth any evidence
or argument that would support a finding that Defendant is exceptional. Thus, we
find the trial court did not abuse its discretion in denying the motion. Louisiana
Code of Criminal Procedure Article 881.1(D) provides:
The trial court may deny a motion to reconsider sentence without
a hearing, but may not grant a motion to reconsider without a
contradictory hearing. If the court denies the motion without a hearing,
the party who made or filed the motion may proffer the evidence it
would have offered in support of the motion.
Because the trial court denied Defendant’s motion, it was not required to hold a
hearing thereon. See State v. Miller, 52,211 (La.App. 2 Cir. 8/15/18), 254 So.3d 23.
For the foregoing reasons, Defendant’s sentence is affirmed.
Outcome: Defendant’s sentence is affirmed. We order the trial court to correct the
sentencing minutes to accurately reflect the imposition of “life” imprisonment rather than “live” imprisonment.
Plaintiff's Experts:
Defendant's Experts:
Comments: