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Date: 01-24-2020

Case Style:

State of Louisiana v. Dana Combs

Case Number: 53,285-KA

Judge: D. Milton Moore III

Court: COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA

Plaintiff's Attorney: JAMES E. STEWART, SR.
District Attorney

JOSHUA K. WILLIAMS
CHARLES K. PARR
Assistant District Attorneys

Defendant's Attorney:

Description:


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On January 29, 2017, Corporal Jesse Alexander of the Shreveport
Police Department responded to a reported shooting at the La Tierra
Apartments located at 6121 Tierra Drive in Shreveport. When he arrived at
the complex, Cpl. Alexander found Jaldell Riley lying in the parking lot
suffering from gunshot wounds to his leg and back.
The victim, Riley, testified at trial that he and Combs got into a verbal
altercation, and Riley asked Combs if he wanted to fight. Combs declined,
saying that Riley was too big. Combs left the scene and returned. Combs’s
mother stepped in between Combs and Riley to break it up. Combs then
pulled out a gun. Riley ran and Combs began shooting. Riley was hit and
fell to the ground. When Riley looked up, he saw Combs standing with a
2

gun in his hand. Riley testified that he did not have a weapon, say he had a
weapon, or make any movements to suggest that he had a weapon.
Riley did not live in the La Tierra Apartments, and denied that he had
followed Combs to a store on the day in question. He also denied that he
threatened Combs by telling him, “this is my area,” “these are my bricks,”
and “you better have your gun.” He admitted that he is a convicted felon
and was incarcerated at the time of trial.
Detective Logan McDonald of the Shreveport Police Department’s
homicide unit also responded to the shooting. He identified evidence from
the crime scene at trial, and testified regarding video surveillance footage of
the incident that he viewed. He said he observed Combs walk toward the
victim, Riley, who was wearing a red jacket, exchange words with him,
make hand gestures, and then Combs began shooting at Riley, chasing him
around a vehicle while continuously firing. Det. McDonald testified that
Combs’s mother, Felecia Alexander, attempted to intervene.
The jury unanimously convicted Combs as charged.
Prior to sentencing, defense counsel made three filings seeking to
raise certain mitigating circumstances for the court’s consideration when
imposing sentence. In the first, styled “Defendant’s Statement on
Sentencing,” counsel asked the court to consider that Combs was only 21
years old and had only one prior felony conviction, for simple robbery. The
victim, Riley, was older, taller, and heavier than Combs, and he had bullied
and threatened him, thereby provoking him to the point that his actions were
justified. Additionally, Combs’s mother received so many threats after the
incident that she feared retaliation if she testified. Conversely, Combs did
not threaten any of the witnesses to the shooting.
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Defense counsel then filed “Defendant’s Supplement to His Statement
on Sentencing,” which stated that in December 2014, Combs and his mother
were victims of a shooting in which their home and car were shot multiple
times. Counsel argued that the prior shooting contributed to Combs’s state
of mind in the instant offense.
Finally, a third filing, styled “Defendant’s Second Supplemental
Statement on Sentencing,” contained a police report of the earlier shooting,
as well as one in which Combs’s mother had reported that Riley planned to
“shoot up her residence again or have one of his followers do it.” Since the
present offense, Combs’s mother stated that she received so many threats
that she was forced to change her residence twice. Counsel argued that these
threats made after the present offense constituted “bullying, threatening,
terrorizing, and possible witness intimidation and tampering.”
At the conclusion of the sentencing hearing, the court sentenced
Combs to 10 years at hard labor without the benefit of probation, parole, or
suspension of sentence. The court ordered that there be no fine, no court
costs, and no habitual offender classification. The sentence was ordered to
be served consecutively with any other sentence. At the time of the instant
offense, Combs was on parole for simple robbery.
Trial counsel filed a motion to reconsider sentence, where his sole
objection was the court’s order that the sentence be served consecutively to
any other sentence, and he re-urged the mitigating factors outlined in
defendant’s statements on sentencing. The motion was denied, and this
appeal followed.


4

DISCUSSION
In his sole assignment of error, Combs alleges that the trial court erred
by imposing an unconstitutionally harsh and excessive sentence in
circumstances where Combs possessed the firearm only after Riley, a violent
felon, claimed to be armed and threatened him and told him he had better
shoot him if he had a gun.
Urging the same mitigating factors he submitted to the court prior to
sentencing, Combs notes he was 21 years old at the time of the offense with
only a single prior felony conviction. He maintains that Riley, a known
criminal, provoked him and followed him home from a store. Physically,
Riley is much larger than him, Combs argues, and he (Riley) acted like he
was armed by putting his hands in his pockets. As a past victim of gun
violence and recipient of threats, Combs had a heightened fear that Riley
might harm him or his family. Also, Combs argues that the sentence
imposed fails to contemplate or account for a reasonable combination of
rehabilitation and punishment. Therefore, his sentence is excessive and
should be reversed.
The state argues that Combs’s arguments should not be considered as
he objected only to the consecutive nature of the sentence in his motion to
reconsider. The mitigating factors he now urges were presented to the trial
court prior to sentencing. Furthermore, the state contends that the evidence
showed that Combs was not provoked when he illegally possessed a firearm,
and thus his self-defense argument is misplaced.
We review sentences for excessiveness by a two-step process. First,
we review whether the district court complied with the sentencing guidelines
of La. C. Cr. P. art. 894.1. Second, we review the sentence for constitutional
5

excessiveness. State v. Mims, 619 So. 2d 1059 (La. 1993); State v. Pittman,
52,027 (La. App. 2 Cir. 4/11/18), 248 So. 3d 573; State v. Bailey, 50,097
(La. App. 2 Cir. 9/30/15), 180 So. 3d 442.
When a defendant files no motion to reconsider sentence, and then
appeals the sentence, review of that sentence is limited to constitutional
excessiveness. This same rule extends to the defendant’s failure to include
any specific ground on which a motion to reconsider sentence may be based,
including a claim of excessiveness, and thus precludes the state or the
defendant from urging any ground on appeal that was not raised in the
motion to reconsider. La. C. Cr. P. art. 881.1(E).
A sentence violates La. Const. art. I, § 20, if it is grossly out of
proportion to the seriousness of the offense or nothing more than a
purposeless and needless infliction of pain and suffering. State v. Dorthey,
623 So. 2d 1276 (La. 1993); State v. Davis, 52,453 (La. App. 2 Cir.
2/27/19), 265 So. 3d 1194. A sentence is considered grossly
disproportionate if, when the crime and punishment are viewed in light of
the harm done to society, it shocks the sense of justice. State v. Weaver, 01
0467 (La. 1/15/02), 805 So. 2d 166; State v. Boehm, 51,229 (La. App. 2 Cir.
4/5/17), 217 So. 3d 596.
A trial court has wide discretion to sentence within the statutory
limits. Absent a showing of manifest abuse of that discretion, a sentence
will not be set aside as excessive. On review, an appellate court does not
determine whether another sentence may have been more appropriate, but
whether the trial court abused its discretion. Davis, supra; Boehm, supra.
The statutory sentencing range for Combs’s conviction of possession
of a firearm or carrying a concealed weapon by a convicted felon is
6

imprisonment at hard labor for not less than 10, nor more than 20 years,
without the benefit of probation, parole, or suspension of sentence and a fine
of not less than $1,000 nor more than $5,000. La. R.S. 14:95.1. Combs
received the statutory minimum 10-year sentence; however, the court
ordered that this sentence be served consecutively to any other sentence.
Presumably, Combs must serve out his sentence for simple robbery for
which he was paroled.
The record shows that Combs filed a timely motion to reconsider
sentence, wherein his sole objection was the requirement that the sentence
be served consecutively to any other sentence. Combs asked the court to
make the sentence concurrent. The court denied the motion.
On appeal, counsel argues that the sentence of 10 years of
imprisonment without benefits and to be served consecutively to any other
sentence serves no purpose and is excessive. Because there was no
objection or claim that the 10-year sentence was excessive or illegal in
Combs’s motion to reconsider, we consider in this appeal only whether the
requirement that the sentence be served consecutive to any other sentence
was excessive, and whether the sentence is illegal, grossly disproportionate
to the severity of the offense, or shocking to the sense of justice. La. C. Cr.
P. art. 881(E); Pittman, supra; State v. Lobato, 603 So. 2d 739 (La. 1992);
State v. Davis, 50,149 (La. App. 2 Cir. 11/18/15), 181 So. 3d 200; State v.
Scott, 50,920 (La. App. 2 Cir. 11/16/16), 209 So. 3d 248, writ denied, 17
0353 (La. 11/13/17), 229 So. 3d 478.
The record reflects that the court adequately complied with La. C. Cr.
P. art. 894.1. The court stated that it reviewed the sentencing guidelines of
the article and found as aggravating factors that the instant offense involved
7

the use of a firearm, a dangerous weapon, while Combs was on parole at the
time he committed the instant offense. As a mitigating factor, the court
considered Combs’s lack of significant prior criminal history.
As noted above, a sentence violates La. Const. art. I, § 20, if it is
grossly out of proportion to the seriousness of the offense or nothing more
than a purposeless infliction of pain and suffering. Such a sentence shocks
one’s sense of justice. In this case, the evidence showed that Combs
engaged in a verbal dispute with an unarmed Jaldell Riley. He realized
Riley was too big to fight, so he left the scene, but returned with a weapon
and began shooting. When Riley attempted to flee, Combs chased him
around a vehicle continuously firing and hitting Riley’s leg and back.
Combs’s own mother tried to prevent the incident and encouraged Combs to
turn himself in to authorities.
Combs argues that he was provoked and feared for his own safety.
However, he left the scene and returned with a gun. He had other
alternatives, but made the choice to shoot Riley, endangering not only him,
but other bystanders as well, including his mother.
While Combs does not have an extensive criminal history, his only
prior felony conviction is simple robbery, which is classified as a crime of
violence, and for which he was on parole when he committed the instant
offense. Combs received a benefit by not being charged as a habitual
offender, decreasing his sentencing exposure. Moreover, his sentence is
within statutory guidelines. He is not eligible for probation, parole, or
suspension of sentence, and he received the minimum sentence under the
statute. Consequently, Combs’s sentence does not shock our sense of
justice.
8

We conclude that the trial court did not abuse its discretion in
imposing a 10-year hard labor sentence without the benefit of probation,
parole, or suspension of sentence.
Additionally, we find no abuse of discretion by the trial court by
ordering that the sentence be served consecutively to that for any other
offense. La. C. Cr. P. art. 883 states that where a defendant is convicted of
two or more offenses based on the same act or transaction, or constituting
parts of a common scheme or plan, his or her sentences shall be served
concurrently unless the court expressly directs that some or all be served
consecutively. In other situations, the code article directs that the sentences
shall be served consecutively unless the court directs otherwise. In this
instance, the two convictions, simple robbery and possession of a firearm by
a felon, are of a different nature and occurred at different times under
unrelated circumstances. The trial court was well within its discretion to
order the instant sentence to run consecutively to any other sentence the
defendant may serve.
Accordingly, the assignment of error is without merit.
Under the authority of La. C. Cr. P. art. 920 (2), we note that Combs’s
sentence is illegally lenient. The trial court failed to impose the mandatory
fine of $1,000-$5,000. La. R.S. 14:95.1. An illegal sentence may be
corrected at any time by the court that imposed the sentence or by an
appellate court on review. La. C. Cr. P. art. 882(A). However, this court is
not required to take such action. Here, the state did not object to the error,
Combs is not prejudiced by the omission of the mandatory fine, and he is
indigent. Accordingly, under these circumstances, no correction of the
9

sentence to include such a fine is warranted. State v. Reynolds, 49,258 (La.
App. 2 Cir. 10/1/14), 149 So. 3d 471.

Outcome: For the foregoing reasons, we affirm the defendant’s conviction and
sentence.

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