Opinion
NUMBER 2016 KA 1478
06-02-2017
STATE OF LOUISIANA v. KIRKLAN PIERSON
Hillar C. Moore, III District Attorney Dylan C. Alge Assistant District Attorney Baton Rouge, LA Counsel for Appellee State of Louisiana Frederick Kroenke Louisiana Appellate Project Baton Rouge, LA Counsel for Defendant/Appellant Kirklan Pierson
NOT DESIGNATED FOR PUBLICATION
On appeal from the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana
Docket Number 03-13-0537 Honorable Richard D. Anderson, Judge Presiding Hillar C. Moore, III
District Attorney
Dylan C. Alge
Assistant District Attorney
Baton Rouge, LA Counsel for Appellee
State of Louisiana Frederick Kroenke
Louisiana Appellate Project
Baton Rouge, LA Counsel for Defendant/Appellant
Kirklan Pierson BEFORE: WHIPPLE, C.J., GUIDRY, AND McCLENDON, JJ. GUIDRY, J.
The defendant, Kirklan Pierson, was charged by bill of information with armed robbery, a violation of La. R.S. 14:64. The defendant pled not guilty and, following a jury trial, was found guilty as charged. The State filed a habitual offender bill of information and, following a hearing on the matter, the trial court adjudicated the defendant a fourth-or-subsequent-felony habitual offender and sentenced him to ninety-nine years imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. The defendant filed a motion to reconsider sentence, which was denied. The defendant now appeals, designating one assignment of error. We affirm the conviction, habitual offender adjudication, and sentence.
According to a copy of his birth certificate in the record, the defendant's first name is spelled "Kirklin."
The defendant was also charged with possession of a firearm by a convicted felon, a charge severed and ultimately dismissed by the State following sentencing for the instant offense
The defendant has prior felony convictions for illegal possession of stolen things ($300.00 or more but less than $500.00); attempted simple burglary; unauthorized use of a motor vehicle; and attempted possession of MDMA. --------
FACTS
Edgardo Ruiz and his family lived in an apartment on Anne Marie Drive in Baton Rouge. On October 26, 2012, at about 7:00 p.m., Edgardo came home from work. He parked his pickup truck in the parking lot and began moving tools from the truck to his work van for safe-keeping. His wife and three children came outside to greet him. Edgardo's wife then went back inside with their youngest child, while their two other children, a boy and a girl, played inside the van as Edgardo moved his tools. A man wearing a black hoodie quickly approached Edgardo, put a gun to his head, and told Edgardo not to look at him. The man used his empty hand to search Edgardo's pockets. He took Edgardo's paycheck, cell phone, and wallet. The man then pushed Edgardo to the ground and fled. Several minutes after the incident, Edgardo found a piece of a fingernail in a pants pocket the man had searched. He gave this evidence to the police. DNA analysis of the fingernail revealed that it belonged to the defendant.
The defendant did not testify at trial.
ASSIGNMENT OF ERROR
In his sole assignment of error, the defendant argues his ninety-nine-year sentence is excessive. Specifically, the defendant contends the trial court should have deviated from the mandated statutory minimum sentence.
The Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of cruel or excessive punishment. Although a sentence falls within statutory limits, it may be excessive. State v. Sepulvado, 367 So. 2d 762, 767 (La. 1979). A sentence is considered constitutionally excessive if it is grossly disproportionate to the seriousness of the offense or is nothing more than a purposeless and needless infliction of pain and suffering. A sentence is considered 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. Andrews, 94-0842, pp. 8-9 (La. App. 1st Cir. 5/5/95), 655 So. 2d 448, 454. The trial court has great discretion in imposing a sentence within the statutory limits, and such a sentence will not be set aside as excessive in the absence of a manifest abuse of discretion. See State v. Holts, 525 So. 2d 1241, 1245 (La. App. 1st Cir. 1988). Louisiana Code of Criminal Procedure article 894.1 sets forth the factors for the trial court to consider when imposing sentence. While the entire checklist of La. C. Cr. P. art. 894.1 need not be recited, the record must reflect the trial court adequately considered the criteria. State v. Brown, 02-2231, p. 4 (La. App. 1st Cir. 5/9/03), 849 So. 2d 566, 569.
The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. C. Cr. P. art. 894.1. State v. Lanclos, 419 So. 2d 475, 478 (La. 1982). The trial judge should review the defendant's personal history, his prior criminal record, the seriousness of the offense, the likelihood that he will commit another crime, and his potential for rehabilitation through correctional services other than confinement. See State v. Jones, 398 So. 2d 1049, 1051-52 (La. 1981). On appellate review of a sentence, the relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. State v. Thomas, 98-1144 (La. 10/9/98), 719 So. 2d 49, 50 (per curiam).
The trial court adjudicated the defendant a "fifth"-felony habitual offender. As a fourth or subsequent habitual offender, the defendant was sentenced under La. R.S. 15:529.1(A)(4)(a) (the applicable law at the time of the offense), which provides that he be sentenced for a determinate term not less than the longest prescribed for a first conviction but in no event less than twenty years and not more than his natural life. The longest prescribed term for a first conviction of armed robbery is ninety-nine years imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. See La. R.S. 14:64(B). Accordingly, the defendant's ninety-nine-year sentence was the mandatory minimum sentence under La. R.S. 15:529.1 (A)(4)(a). The defendant suggests in brief that he should have been sentenced to some period less than ninety-nine years.
In State v. Dorthey, 623 So. 2d 1276, 1280-81 (La. 1993), the Louisiana Supreme Court opined that if a trial judge were to find that the punishment mandated by La. R.S. 15:529.1 makes no "measurable contribution to acceptable goals of punishment" or that the sentence amounted to nothing more than "the purposeful imposition of pain and suffering" and is "grossly out of proportion to the severity of the crime," he has the option, indeed the duty, to reduce such sentence to one that would not be constitutionally excessive. In State v. Johnson, 97-1906, pp. 6-9 (La. 3/4/98), 709 So. 2d 672, 676-77, the Louisiana Supreme Court re-examined the issue of when Dorthey permits a downward departure from the mandatory minimum sentences under the Habitual Offender Law.
A sentencing judge must always start with the presumption that a mandatory minimum sentence under the Habitual Offender Law is constitutional. A court may only depart from the minimum sentence if it finds that there is clear and convincing evidence in the particular case before it which would rebut this presumption of constitutionality. A trial judge may not rely solely upon the non-violent nature of the instant crime or of past crimes as evidence which justifies rebutting the presumption of constitutionality. While the classification of a defendant's instant or prior offenses as nonviolent should not be discounted, this factor has already been taken into account under the Habitual Offender Law for third and fourth offenders. Johnson, 97-1906 at p. 7, 709 So. 2d at 676.
To rebut the presumption that the 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 assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case. Given the legislature's constitutional authority to enact statutes such as the Habitual Offender Law, it is not the role of the sentencing court to question the wisdom of the legislature in requiring enhanced punishments for multiple offenders. Instead, the sentencing court is only allowed to determine whether the particular defendant before it has proven that the mandatory minimum sentence is so excessive in his case that it violates the constitution. Departures downward from the minimum sentence under the Habitual Offender Law should occur only in rare situations. Johnson, 97-1906 at pp. 8-9, 709 So. 2d at 676-77.
In the instant matter, the trial court presided over the habitual offender hearing on the same day that it sentenced the defendant. Further, the trial court ordered and reviewed a presentence investigation report. It is clear in its reasons for sentence that the trial court considered La. C. Cr. P. art. 894.1, and the defendant's personal and criminal history in determining that ninety-nine years was an appropriate sentence:
All right. After hearing the testimony and evidence presented, the court finds it's the same Kirklan Pierson who pled guilty to illegal possession of stolen things in 5-5-740 in the Nineteenth Judicial District Court on August 26, 2005. As I said, that was illegal possession of stolen things. He was placed on probation. The probation was later revoked, and he was sentenced to two years at hard labor. It's also the same Kirklan Pierson who in 3-06-340 of the Nineteenth JDC pled guilty to attempted simple burglary and who was sentenced to 18 months at hard labor. It's also the same Kirklan Pierson who on June 18, 2007, in docket no. 07-FELN-021649 of the Twenty-First Judicial District Court pled guilty to unauthorized use of a motor vehicle and was sentenced to two years in the Department of Corrections; and the same Kirklan Pierson who on December 10, 2008, in docket no. 10-08-234 of the Nineteenth JDC pled guilty to the responsive charge of attempted possession of MDMA and was sentenced to D.O.C. for two years; and is also the same Kirklan Pierson who on April 24th, 2014, in docket no. 3-13-537 of this court was convicted of armed robbery for an offense which occurred on or about October 26, 2012.
Accordingly, the court does find him to be a fourth felony offender pursuant to 15:529.1(A)(4)(a). Pursuant to that section of the habitual offender statute he is looking at a sentencing range of not less than the longest term of imprisonment prescribed for the first conviction but in no event less than twenty years and not more than his natural life.
He -- as I said, he was convicted and is to be sentenced today for the charge of armed robbery in 3-13-537. In that case on or about October 26, 2012, Sergeant Trosclair and Corporal Brown were dispatched to 2255 Anne Marie Drive in reference to an armed robbery. Edgardo or Edgardo Ruiz stated he was loading items into his work van in the parking lot of his apartment complex when an unknown black male approached him from behind. Mr. Ruiz stated that he was shoved to the ground and the defendant took out a black semiautomatic pistol, rummaged through his pockets. The assailant took the victim's wallet containing his I.D., debit card, an $800 check, and his cell phone and then fled on foot. Corporal Brown noted that the unknown suspect's fingernail was collected from Mr. Ruiz's pocket and sent it to the lab for DNA testing. On December 5, 2012, a CODIS match identified the fingernail belonging to the defendant.
On April 21, 2014, a trial began in this matter. On the final day of the trial, April 24, 2014, the defendant absconded and a bench
warrant and bond forfeiture were issued. The defendant was found guilty as charged.
On May 28, 2014, the defendant was brought in to answer to his bench warrant. He was held in contempt and given six months parish prison.
Armed robbery is considered a crime of violence and a crime against a person. A presentence investigation was ordered in this case, and the court has received that report and taken into consideration the factors set forth therein.
The defendant is 27 years old. He is a fifth felony offender.
The defendant provided the following social history during an interview conducted by Probation and Parole. He was born to Paula Pierson and Samuel Williams. He was raised by his mother and has a great relationship with her and has an okay relationship with his father. He has two siblings. He stated that he had a normal life and he and his siblings were never exposed to drugs or alcohol.
The defendant has two children, ages one and eight.
The defendant attended Staring Education Center. He dropped out of school in seventh grade to help his mother, who was suffering with a brain tumor. He advised that while he was in school, he made good grades and was never a disciplinary problem.
The defendant was raised in the Baptist religion.
The defendant stated that he smoked marijuana and abused prescription pills for about ten years. He stated that he last used in 2012. He advised that he's never received drug treatment but would like and needs such treatment.
When asked to provide a statement concerning the instant offense, the defendant advised that he doesn't remember committing the offense, but he is sorry that -- or if it happened.
There is nothing in the facts before us particularly unusual about the defendant's circumstances that would justify a downward departure from the mandatory minimum ninety-nine-year sentence imposed under La. R.S. 15:529.1. We note that defense counsel at the habitual offender hearing never raised the issue of Johnson (or Dorthey) during argument before the trial court or suggested that the defendant should receive less than the mandatory minimum sentence. About one month after the defendant was sentenced as a habitual offender, appellate defense counsel (different from the trial and habitual offender hearing counsel) filed a motion to reconsider sentence, never raising or addressing any Dorthey/Johnson issue. Finally, at the hearing on the motion to reconsider sentence, defense counsel (the same one who filed the motion to reconsider sentence) did not raise the Dorthey/Johnson issue, but simply informed the trial court, "I'm going to submit it on the motion." The extent of information provided by the defendant in his brief on appeal is that he has two children "for whom he is responsible," he dropped out of school to help his sick mother, and while he was in school, he had good grades and was not a discipline problem.
In the instant matter, no argument was made and no evidence was presented at the time of sentencing regarding a downward departure from the mandatory minimum sentence. We therefore find that the defendant failed to carry his burden under Johnson. See State v. Pierre, 03-1306, pp. 14-15 (La. App. 5th Cir. 2/23/04), 869 So. 2d 206, 215-16, writ denied, 04-0959 (La. 10/1/04), 883 So. 2d 1006; State v. Kirkland, 01-425, p. 12 (La. App. 5th Cir. 9/25/01), 798 So. 2d 263, 271, writ denied, 01-2967 (La. 10/14/02), 827 So. 2d 415. See also State v. Tassin, 08-752, p. 25 (La. App. 3d Cir. 11/5/08), 998 So. 2d 278, 294, writ denied, 08-2909 (La. 9/18/09), 17 So. 3d 385. The defendant has failed to clearly and convincingly show that, because of unusual circumstances, he was a victim of the legislature's failure to assign a sentence meaningfully tailored to his culpability, the gravity of the offense, and the circumstances of the case. Accordingly, there was no reason for the trial court to deviate from the provisions of La. R.S. 15:529.1(A)(4)(a) in sentencing him. See La. C. Cr. P. art. 921; State v. Lavy, 13-1025, p. 14 (La. App. 1st Cir. 3/11/14), 142 So. 3d 1000, 1010-11, writ denied, 14-0644 (La. 10/31/14), 152 So. 3d 150. The sentence is not unconstitutionally excessive.
The assignment of error is without merit.
CONVICTION, HABITUAL OFFENDER ADJUDICATION, AND SENTENCE AFFIRMED.