Opinion
NO. 19-KA-472
01-29-2020
STATE of Louisiana v. Darryl ARCENEAUX
COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Honorable Paul D. Connick, Jr., Metairie, Thomas J. Butler, Darren A. Allemand COUNSEL FOR DEFENDANT/APPELLANT, DARRYL ARCENEAUX, Kevin V. Boshea, Baton Rouge
COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Honorable Paul D. Connick, Jr., Metairie, Thomas J. Butler, Darren A. Allemand
COUNSEL FOR DEFENDANT/APPELLANT, DARRYL ARCENEAUX, Kevin V. Boshea, Baton Rouge
Panel composed of Judges Susan M. Chehardy, Marc E. Johnson, and Hans J. Liljeberg
JOHNSON, J. Defendant, Darryl Arceneaux, appeals for the third time, asserting that his newly imposed enhanced sentence, which resulted after a remand from this Court for resentencing, is unconstitutionally excessive. Upon review, we do not find Defendant's 40-year enhanced sentence as a third felony offender is excessive and, therefore, affirm his sentence.
The facts and procedural history of Defendant's conviction and sentence are fully set forth in this Court's prior two opinions – State v. Arceneaux , 99-1226 (La. App. 5 Cir. 2/29/00), 761 So.2d 833 (unpublished opinion), and State v. Arceneaux , 18-642 (La. App. 5 Cir. 4/24/19), 271 So.3d 362. In summary, Defendant was convicted in November 1998 of distribution of cocaine in violation of La. R.S. 40:967(A) and sentenced to 20 years imprisonment. In October 1999, he was adjudicated a third felony offender based on a 1994 conviction for theft over $500 and a 1992 conviction for simple robbery. As a result, his original 20-year sentence was vacated and he was resentenced as a multiple offender to life imprisonment. Eighteen years after his conviction was affirmed on appeal, Defendant filed a pro se motion to correct an illegal sentence in which he asserted his enhanced life sentence was illegal in light of the ameliorative provisions provided in 2001 La. Acts 403. The trial court granted his motion and resentenced Defendant in July 2018 as a third felony offender to 55 years imprisonment. On appeal, this Court found the 55-year enhanced sentence to be unconstitutionally excessive, vacated the sentence, and remanded the matter for resentencing.
State v. Arceneaux , 99-1226 (La. App. 5 Cir. 2/29/00), 761 So.2d 833 (unpublished opinion).
State v. Arceneaux , 18-642 (La. App. 5 Cir. 4/24/19), 271 So.3d 362.
On remand, on July 15, 2019, the trial court resentenced Defendant to 40 years imprisonment at hard labor without benefit of probation or suspension of sentence. Defendant subsequently filed a motion to reconsider sentence which was denied. This appeal followed.
In this third appeal, Defendant argues that his newly imposed 40-year enhanced sentence is unconstitutionally excessive and that the trial court erred in denying his motion to reconsider sentence. He asserts his 40-year sentence is excessive considering the fact his offense involved a single $20 drug sale that did not involve guns or violence. He also contends that the most lenient provisions of the sentencing law should have retroactive application, which he maintains is the 2017 amendments to the habitual offender law. Defendant further argues that the trial court erred in considering his entire criminal history as recounted by the State at the resentencing hearing because the State failed to offer any proof to support its assertions.
At the resentencing hearing, the State indicated it wanted to put Defendant's complete criminal history on the record. It proceeded to recount that Defendant had a conviction for simple robbery in 1992; a conviction for illegal carrying of a weapon as well as a three-year sentence for theft in 1994; convictions for simple burglary and felony theft in 1997; and convictions for illegal possession of stolen things, another count of illegal carrying of a weapon, and possession with intent to distribute a Schedule II substance in 1998. Defense counsel did not lodge an objection or state that any of the recited information was incorrect.
After hearing the arguments of counsel, the trial judge stated in pertinent part:
And I appreciate the argument that this is a twenty dollar piece of cocaine. However, as you know as well as I know, the habitual offender bill punishes not only for the current offense, but also for the prior criminal history. That's the point of the habitual offender bill. And while it may shock the senses that a twenty dollar piece of cocaine and somebody up in DOC for such a long time, it's not the twenty dollar piece of cocaine that has gotten him there. It is his prior criminal record as illustrated by the district attorney's recitation of crimes with simple robbery and three or four weapons charges.
I also appreciate the Fifth Circuit's discussion of whether or not the theft should have been a misdemeanor. However, we're talking about a value in 1994. That is - - how many - - twenty-five years ago?
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I mean, imagine the inflation in twenty-five years. So while I appreciate the theft charge is now a thousand dollars, twenty-five years ago, seven hundred dollars was indeed a felony. So while I appreciate the interpretation of the law, we're dealing with a situation that occurred in 1994, 1998.
I have read the opinion. I have taken into consideration the Fifth Circuit's opinion as to what sentencing should be. However, this Court feels based upon his extensive criminal record that the appropriate sentence is forty years at hard labor in the Department of Corrections, without benefit of probation or suspension of sentence.
In this Court's prior opinion, we discussed the ameliorative provisions applicable to Defendant. We explained that the 2001 amendments to La. R.S. 15:529.1 retroactively applied to Defendant through the 2006 enactment of La. R.S. 15:308 to give Defendant an enhanced sentencing range of 20-60 years as opposed to a mandatory life sentence. We further acknowledged that the 2017 amendments to La. R.S. 15:529.1 provided additional ameliorative provisions, but specifically found that the 2017 amendments did not retroactively apply to Defendant because of the express pronouncement by the legislature that the provisions were only to have prospective application. Arceneaux , 271 So.3d at 365-66.
In considering the constitutional mandates against an excessive sentence, which is one that is grossly disproportionate to the offense or one that imposes needless and purposeless pain and suffering, and the factors considered in determining whether a trial court abused its sentencing discretion, this Court found that Defendant's near maximum 55-year enhanced sentence was excessive. We noted that the jurisprudence showed that third felony offenders convicted of distribution of cocaine facing a sentencing range of 20-60 years received sentences ranging from 20 to 45 years. Based on the record before us at the time, this Court suggested that an enhanced sentence of 30 years would adequately punish Defendant and fulfill the purpose of the habitual offender law. Arceneaux , 271 So.3d at 367-69.
See Eighth Amendment to the U.S. Constitution and Article I, § 20 of the Louisiana Constitution.
State v. Smith , 01-2574 (La. 1/14/03), 839 So.2d 1, 4.
The three factors considered in reviewing a trial court's sentencing discretion are: (1) the nature of the crime; (2) the nature and background of the offender; and (3) the sentence imposed for similar crimes by the same court or other courts. State v. Pearson , 07-332 (La. App. 5 Cir. 12/27/07), 975 So.2d 646, 656.
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In selecting a proper sentence, a trial judge is not limited to considering only a defendant's prior convictions but may properly review all prior criminal activity. State v. Youngblood , 18-445 (La. App. 5 Cir. 5/22/19), 274 So.3d 716, 744. The sentencing court may rely on sources of information usually excluded from the courtroom at the trial of guilt or innocence, e.g. hearsay and arrests, as well as conviction records. State v. Myles , 94-217 (La. 6/3/94), 638 So.2d 218, 219. Because the scope of information available to the court for sentencing purposes is so broad, the defendant has a due process right to rebut prejudicially false or misleading information which may affect the sentencing determination. Id. These matters may be considered even in the absence of proof the defendant committed the other offenses. State v. Doyle , 43,438 (La. App. 2 Cir. 8/13/08), 989 So.2d 864, 870.
Although we suggested an enhanced sentence of 30 years in our previous opinion, we noted cases similar to the instant one where defendants received sentences ranging from 20 to 45 years. Defendant's new enhanced sentence falls within this sentencing range. Additionally, the extent of Defendant's prior criminal history was not contained in the prior appellate record. Specifically, it does not appear that Defendant's criminal history beyond his two predicate convictions upon which the multiple bill was based was made known until the State recounted it, without any objection, at the July 2019 resentencing hearing. The record is clear that upon resentencing the trial court carefully considered the nature of the offense, the purpose of the habitual offender law, and the background of Defendant, including his uncontroverted criminal record. Based on the record before us, we cannot say Defendant's 40-year enhanced sentence as a third felony offender is unconstitutionally excessive or that the trial court abused its sentencing discretion sentence in imposing such a sentence in this case.
We have reviewed Defendant's resentencing for errors patent in accordance with La. C.Cr.P. art. 920 and find several errors in the uniform commitment order (UCO) that require correction.
First, the transcript reflects that the sentence was to be served without benefit of probation or suspension of sentence – the trial court did not restrict parole eligibility. However, the UCO indicates that the amount of time to be served "without benefit" is 40 years without specifying to which benefits it is referring. Second, the UCO lists the adjudication date as October 15, 1999; however, the adjudication date was actually November 17, 1998. Third, the UCO indicates that the sentencing date was July 16, 2019; however, the sentencing date was actually July 15, 2019. Fourth, the UCO reflects that the habitual offender adjudication was July 16, 2019; however, the habitual offender adjudication date was actually October 15, 1999. And, finally, the UCO provides that the date the original sentence was vacated was July 16, 2019; however, the sentence was vacated on April 24, 2019.
To ensure accuracy in the record we remand this matter for correction of the UCO to reflect the correct dates as detailed above and to clarify that Defendant is parole eligible. Additionally, we instruct the Clerk of Court for the 24th Judicial District Court to transmit the original of the corrected UCO to the appropriate authorities and the Department of Corrections' legal department. See State v. Long , 12-184 (La. App. 5 Cir. 12/11/12), 106 So.3d 1136, 1142 (citing La. C.Cr.P. art. 892(B)(2) ).
DECREE
Based on the foregoing, we affirm Defendant's 40-year enhanced sentence and specifically find that it is not unconstitutionally excessive. We further remand the matter for correction of the uniform commitment order as noted above.