Opinion
NO. 2015 KA 0763
11-09-2015
STATE OF LOUISIANA v. DUHON ZENO
CAMILLE A. MORVANT, II DISTRICT ATTORNEY S. BENJAMIN CAILLOUET JOSEPH S. SOIGNET ASSISTANT DISTRICT ATTORNEYS THIBODAUX, LA ATTORNEYS FOR STATE OF LOUISIANA KEVIN V. BOSHEA METAIRIE, LA ATTORNEY FOR DEFENDANT-APPELLANT DUHON ZENO
NOT DESIGNATED FOR PUBLICATION Appealed from the 17th Judicial District Court in and for the Parish of Lafourche, Louisiana
Trial Court No. 510799
Honorable F. Hugh Larose, Judge
CAMILLE A. MORVANT, II
DISTRICT ATTORNEY
S. BENJAMIN CAILLOUET
JOSEPH S. SOIGNET
ASSISTANT DISTRICT ATTORNEYS
THIBODAUX, LA
ATTORNEYS FOR
STATE OF LOUISIANA
KEVIN V. BOSHEA
METAIRIE, LA
ATTORNEY FOR
DEFENDANT-APPELLANT
DUHON ZENO
BEFORE: PETTIGREW, HIGGINBOTHAM, AND CRAIN, JJ. PETTIGREW, J.
The defendant, Duhon Zeno, was charged by an amended bill of information on count one with possession of a firearm or carrying a concealed weapon by a convicted felon, a violation of La. R.S. 14:95.1, and on count two with illegal carrying of weapons while in possession of a Controlled Dangerous Substance (Hydrocodone), a violation of 14:95(E). He pled not guilty on both counts. Following a jury trial, the defendant was unanimously found guilty as charged on both counts. The trial court denied the defendant's subsequent motion for postverdict judgment of acquittal and motion for new trial. The defendant was immediately sentenced on count one to fifteen years imprisonment at hard labor without benefit of parole, probation, or suspension of sentence, and on count two to ten years at hard labor without benefit of parole, probation, or suspension of sentence. The trial court also imposed a one thousand dollar fine on count one, and ordered that the sentences be served concurrently. The trial court denied the defendant's motion for reconsideration of the sentences imposed. The defendant appealed, raising several assignments of error in a previous appeal. See State v. Zeno, 2014-0325 (La. App. 1 Cir. 9/19/14), 155 So.3d 4, writ denied, 2014-2167 (La. 5/22/15), 170 So.3d 983. This court affirmed the convictions, but vacated the sentences due to the trial court's failure to observe the statutorily mandated twenty-four hour delay before imposing sentences. Zeno, 155 So.3d at 20-21. On remand the trial court sentenced the defendant to the same terms of imprisonment originally imposed on both counts, to run concurrently, but stated that due to the defendant's lengthy incarceration period, it was going to suspend the imposition of the mandatory fine. The trial court denied the defendant's subsequent motion to reconsider sentence. The defendant now appeals, again assigning error to the trial court's denial of his motion to reconsider sentence, and to the alleged constitutionally excessive sentences imposed. For the following reasons, we affirm the sentences.
While the minutes reflect that on both counts the jury's verdict was 11-1, the oral jury polling at trial, found in the transcript, reflects a unanimous verdict on both counts. When there is a discrepancy between the minutes and the transcript, the transcript must prevail. State v. Lynch, 441 So.2d 732, 734 (La. 1983).
See La. Code Crim. P. art 873; State v. Augustine, 555 So.2d 1331, 1333-35 (La. 1990); State v. Coates, 2000-1013 (La. App. 1 Cir. 12/22/00), 774 So.2d 1223, 1226.
STATEMENT OF FACTS
The facts restated in this appeal were originally provided in the statement of facts in the previous appeal cited herein.
On March 15, 2012, at approximately 1:00 p.m., Agent Derrick Champagne, a narcotics agent with the Lafourche Parish Sheriffs Office, along with fellow agents David Melancon and Corey Brooks, were traveling southbound on Plantation Road in Thibodaux. As they neared the intersection of Plantation Road and Canal Boulevard, they noticed a white vehicle, being driven by the defendant, approach the intersection. The defendant did not bring his vehicle to a complete stop, nor did he activate his turn signal before making a left-hand turn onto Canal Boulevard. After turning onto Canal Boulevard, the agents caught up with the defendant, activated the squad car's emergency lights and sirens, and initiated a traffic stop. At some point before the defendant's vehicle came to a complete stop, Agent Champagne and Agent Melancon observed the defendant's passenger, Stanley Watkins, look back at the agents through the vehicle's rear window, and then turn and throw an unknown object out of the passenger side window.
Once both vehicles were stopped, Agent Melancon made contact with the defendant and advised him of the traffic stop; Agent Champagne approached the passenger; and Agent Brooks began searching for the unknown object that had been thrown from the passenger window of the defendant's vehicle. Agent Melancon asked Watkins to identify the object, but before Watkins could reply, the defendant interrupted saying, "he doesn't do any drugs, man." Agent Champagne also observed an open beer can in Watkins' lap. The agents instructed both men to exit the vehicle, and guided them towards the right rear section of the defendant's vehicle. Agent Champagne asked the defendant for consent to search the vehicle, which was given freely and voluntarily, and without fear, duress, or intimidation (as witnessed and testified to by Agent Melancon). Agent Champagne opened the right front passenger door, and observed a brown shaving kit bag partially underneath the driver's seat. When Agent Champagne asked the defendant what was in the bag, the defendant approached the car, sat in the driver's seat, and told Agent Champagne, "[m]y gun is in here from my house." Agent Champagne noted that the defendant did not appear surprised when the gun was discovered. The defendant was instructed to put down the bag and exit the vehicle.
Once the defendant was clear of the area, Agent Champagne opened the bag, and identified a .45 caliber handgun loaded with eight rounds. Additionally, a prescription pill bottle, containing six pills that Agent Champagne believed to be Hydrocodone, Aleve, and a "legend drug," was found inside the bag. The seized items were taken to the Criminal Operations Center where they were processed and stored by the evidence custodian.
Katie Troxler, a forensic scientist with the Louisiana State Police Crime Lab, was accepted at trial as an expert in the field of chemical analysis. Troxler testified that on April 5, 2012, she received a white plastic bottle containing the six pills seized by Agent Champagne during the defendant's traffic stop. During her first examination, Troxler, using a pharmaceutical database entry, verified the pills, which included Naproxen Sodium 220 milligrams (Aleve), Pantoprazole Sodium 40 (a gastrointestinal medication), and pills containing both 500 milligrams of Acetaminophen and 5 milligrams of Hydrocodone Bitartrate. Twelve months later, on April 5, 2013, only the pills previously identified as containing Hydrocodone were resubmitted for examination. Troxler performed a chemical analysis, whereby she again confirmed the pills contained Hydrocodone, a controlled dangerous substance.
Luke Adams, an officer with the Department of Probation and Parole, testified at trial. He testified that on November 6, 2006, the defendant was convicted of Possession of Hydrocodone and sentenced to five years at hard labor, but his sentence was suspended, and the defendant was placed on three years' supervised probation. Officer Adams was the defendant's probation supervisor, and testified that during the three-year period, the defendant's probation was never revoked. The probationary period was completed as scheduled, on November 6, 2009.
Greta Hood, a friend of the defendant, testified at trial. She indicated that on March 15, 20i2, the defendant was assisting her in gathering and packing her belongings, as she was moving from her apartment in Thibodaux. Hood testified that the gun in question, a Colt .45, belonged to her. She testified that a friend had given her the gun for protection, and that she kept it on the top shelf of her closet. Hood testified that because her grandchildren were coming over, and because she did not want the gun out while they were there, she placed the gun inside the defendant's shaving kit bag, which was located in her bathroom. Hood claimed, thereafter, she walked out of the house holding the bag, and placed it under the driver's seat of the defendant's vehicle. Hood testified she did not tell the defendant that she placed the gun in his car. Hood stated the defendant left the apartment before she did, and the next time she saw him was at the scene when he was stopped by the police officers.
ASSIGNMENTS OF ERROR NUMBERS ONE AND TWO
In a combined argument, the defendant contends the trial court erred in denying the motion to reconsider sentence (assignment of error number one), and that the sentences are unconstitutionally excessive and harsh (assignment of error number two). The defendant notes that at the original sentencing hearing, he informed the trial court of his background as a working man, regular church attendee, and family man. The defendant contends that the trial court did not give due consideration to the non-violent nature of his contact with the police at the time of the stop, the "questionable nature" of the stop, or Hood's trial testimony. The defendant argues that this case does not warrant the trial court's imposition of a "severe" sentence on count one and the statutory maximum term of imprisonment on count two. As mitigating circumstances, he specifically asserts that Hood's testimony tended to justify his conduct, that there was no evidence that he threatened or caused serious bodily harm, and that given his employment and family background, it is likely that he would have responded positively to probationary treatment. The defendant further notes that at resentencing, his counsel offered exhibits showing his positive prison ministry work, his completion of anger management and recovery programs, the absence of any write-ups while incarcerated, and documentation of his mother's poor medical condition. The defendant cites State v. Maschek, 97-0024 (La. App. 1 Gir. 12/29/97), 706 So.2d 512, in arguing that the trial court failed to cite and adequately comply with La. Code Crim. P. art. 894.1.
The Eighth Amendment to the United States Constitution and Article I, Section 20 of the Louisiana Constitution prohibit the imposition of excessive or cruel punishment. Although a sentence may fall within statutory limits, it may nevertheless violate a defendant's constitutional right against excessive punishment and is subject to appellate review. State v. Sepulvado, 367 So.2d 762, 767 (La. 1979). Generally, a sentence is considered excessive if it is grossly disproportionate to the severity of the crime or is nothing more than the needless imposition of pain and suffering. A sentence is considered grossly disproportionate if, when the crime and punishment are considered in light of the harm caused to society, it is so disproportionate as to shock one's sense of justice. State v. Reed, 409 So.2d 266, 267 (La. 1982).
The Code of Criminal Procedure sets forth items which must be considered by the trial judge before imposing sentence. La. Code Crim. P. art. 894.1. The judge must take cognizance of the mandatory sentencing guidelines of Article 894.1, but need not list every factor as long as the record shows ample consideration of the guidelines. State v. Smith, 433 So.2d 688, 698 (La. 1983). The articulation of the factual basis for a sentence is the goal of Article 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, this court has held that 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). The important elements which must be considered are the defendant's personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of the offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049, 1051-52 (La. 1981). In light of the criteria expressed in Article 894.1, a review of individual excessiveness should include consideration of the circumstances of the crime and the trial court's stated reasons and factual basis for its sentencing decision. State v. Hurst, 99-2868 (La. App. 1 Cir. 10/3/00), 797 So.2d 75, 83, writ denied, 2000-3053 (La. 10/5/01), 798 So. 2d 962.
The determination and definition of acts that are punishable as crimes is purely a legislative function. State v. Dorthey, 623 So.2d 1276, 1278 (La. 1993). It is the legislature's prerogative to determine the length of the sentence imposed for crimes classified as felonies. Moreover, courts are charged with applying these punishments unless they are found to be unconstitutional. Dorthey, 623 So.2d at 1278. Maximum sentences may be imposed only for the most serious offenses and the worst offenders, or when the offender poses an unusual risk to the public safety due to his past conduct of repeated criminality. State v. Miller, 96-2040 (La. App. 1 Cir. 11/7/97), 703 So.2d 698, 701, writ denied, 98-0039 (La. 5/15/98), 719 So.2d 459. Because of the wide discretion afforded the trial court in imposing sentence, a sentence within statutory limits will not be set aside as excessive in the absence of a manifest abuse of discretion. State v. Tate, 506 So.2d 546, 552 (La. App. 1 Cir.), writ denied, 511 So.2d 1152 (La. 1987).
Whoever commits the crime of possession of a firearm by a person convicted of certain felonies shall be imprisoned at hard labor for not less than ten nor more than twenty years without the benefit of probation, parole, or suspension of sentence and be fined not less than one thousand dollars nor more than five thousand dollars. La. R.S. 14:95.1(B). The penalty for possession of a firearm while in possession of a controlled dangerous substance is a fine of not more than $10,000 and imprisonment at hard labor for not less than five nor more than ten years without benefit of probation, parole, or suspension of sentence. La. R.S. 14:95(E). Thus, in this case the trial court imposed a mid-range sentence on count one, and the maximum term of imprisonment allowed by statute on count two.
The defendant argues that in imposing the sentences, the trial court did not give due to consideration to Hood's trial testimony. While the defendant contends that Hood's testimony showed that his actions were justified, the record reveals her testimony was in conflict with the testimony presented by Agent Champagne. As noted, Hood testified that she, unbeknownst to the defendant, placed the gun in the defendant's shaving kit bag and placed the bag under the seat of his vehicle. However, Agent Champagne testified that upon being questioned as to the contents of the bag, the defendant stated that a gun was in the bag and was not surprised when the gun was recovered. The jury apparently accepted Agent Champagne's testimony and rejected the defendant's hypothesis of innocence - that his friend placed the gun in his shaving kit bag and placed the bag in his vehicle without his knowledge.
In further arguing that the trial court in this case failed to comply with Article 894.1, the defendant relies on this court's holding in State v. Maschek, supra. In Maschek, the defendant pled guilty to production and manufacture of marijuana and possession of marijuana with intent to distribute. The trial court sentenced the defendant on each count to eight years at hard labor, but suspended the last five years of the sentences and ordered that the defendant be placed on supervised probation for that period, with special conditions. The sentences were made concurrent. The defendant was also ordered to pay a fine of $5000.00, plus costs. In finding an abuse of sentencing discretion in Maschek, this court in part considered the circumstances therein, including the defendant's lack of a prior criminal record, combined with her educational pursuits in school, her efforts to overcome her co-dependency with counseling, as well as her demonstrated remorse. In that case, there was no evidence of the undue risk cited by the trial court that the first-offense defendant therein would commit another crime. Maschek, 706 So.2d 517-18.
However, in the instant case, the record supports the trial court's finding that there is an undue risk that the defendant herein would commit another crime. The defendant was convicted of aggravated battery in 1985, of distribution of cocaine in 1993, and of possession of hydrocodone in 2006. As the trial court noted during the original sentencing proceeding, the defendant's 2006 conviction of possession of hydrocodone also involved the recovery of a gun (as in the instant case). As to the 2006 conviction, as further noted by the trial court, pursuant to a plea agreement the defendant pled guilty to the drug charge in exchange for the State not prosecuting the weapon charge. The trial court noted that while the defendant argued that he had turned over a new leaf, his criminal record exhibited otherwise.
A thorough review of the record reveals that the trial court did not manifestly abuse its discretion in imposing the sentences in this case. We find that the trial court adequately considered the circumstances of the case. Further, a review of the record indicates that the trial court was cognizant of the sentencing considerations of La. Code Crim. P. art. 894.1. The sentences imposed on defendant are not apparently severe in relation to the defendant or the offenses committed, nor do the sentences constitute a needless imposition of pain and suffering. Further, a maximum sentence on count two was warranted. The defendant poses an unusual risk to the public safety due to his continued association with illegal drugs and firearms. See Miller, 703 So„2d at 701, Thus, under the circumstances of this case we are unable to say that the trial judge abused his discretion in imposing the mid-range sentence on count one, to be served concurrent with the maximum sentence on count two. Accordingly, we find no error in the denial of the motion to reconsider sentence. Assignments of error numbers one and two are without merit.
PATENT ERROR REVIEW
Initially, we note that our patent error review is pursuant to La. Code Crim. P. art. 920, which provides that the only matters to be considered on appeal are errors designated in the assignments of error and "error that is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence." La. Code Crim. P. art. 920(2). In resentencing the defendant on the count one conviction of possession of a firearm or carrying a concealed weapon by a convicted felon, the trial court failed to impose the mandatory fine of not less than one thousand dollars nor more than five thousand dollars. See La. R.S. 14:95.1(B). The trial court specifically stated, "And that fine, under the circumstances of the Defendant's incarceration for a lengthy period of time, the Court is going to order that the fine, while I note that it's $1,000 minimum up to $5,000, I'm going to suspend the imposition of that sentence - that portion of the sentence." Thus, the trial court did not impose a fine. Although the failure to impose the fine is error under La. Code Crim. P. art. 920(2), it certainly is not inherently prejudicial to the defendant. Because the trial court's failure to impose the fine was not raised by the State either in the trial court or on appeal, we are not required to take any action; As such, we decline to correct the illegally lenient sentence imposed on count one. See State v. Price, 2005-2514 (La. App. 1 Cir. 12/28/06), 952 So.2d 112, 123-25 (en banc), writ denied, 2007-0130 (La. 2/22/08), 976 So.2d 1277.
SENTENCES AFFIRMED.
GRAIN, J., dissenting
In State v. Kondylis, 14-0196 (La. 10/3/14), 149 So. 3d 1210, the supreme court implicitly overruled that part of this court's decision in State v. Price, 05-2514 (La. App. 1 Cir. 12/28/06), 952 So. 2d 112, 123-25 (en banc), writ denied, 07-0130 (La. 2/22/08), 976 So. 2d 1277, which allowed this court to let a defendant's illegally lenient sentence stand. In Kondylis, the State did not object to an illegally lenient sentence that was not prejudicial to the defendant. Nevertheless, the supreme court remanded the matter to the trial court, ordering that it impose the statutorily mandated sentence unless it determined that the sentence given had been imposed pursuant to Louisiana Code of Criminal Procedure article 890.1. Kondylis, 149 So. 3d at 1211. Justice Hughes dissented for the same rationale underlying Price, that the State did not complain of the sentencing error. A majority of the supreme court clearly rejected that rationale. Kondylis is consistent with the supreme court's prior jurisprudence stating that it will not ignore patent errors favorable to a defendant when the State does not complain about them. See State v. Campbell, 03-3035 (La. 7/6/04), 877 So. 2d 112, 116. I therefore dissent from the majority's decision to let the defendant's illegally lenient stand in reliance on Price.
The defendant has no constitutional or statutory right to an illegally lenient sentence. See State v. Williams, 00-1725 (La. 11/28/01), 800 So. 2d 790, 797; see also Kondylis, 149 So. 3d at 1211. As an appellate court, we are authorized to correct an illegal sentence that involves no more than the ministerial correction of a sentencing error. See La. Code Crim. Pro. art. 882; State v. Haynes, 04-1893 (La. 12/10/04), 889 So. 2d 224 (per curiam). In general, imposition of a mandatory minimum fine can be considered nothing more than the ministerial correction of a sentencing error. Cf. State v. Robertson, 14-0252 (La. App. 1 Cir. 9/19/14), 2014 WL 4668685, *6. However, the record in this case clearly evidences that the trial court attempted to balance the defendant's time of imprisonment against the required fine. Under this circumstance, and because of the sentencing discretion involved, I believe it is necessary to vacate the defendant's sentences and remand for imposition of a legal sentence. Consequently, I would also pretermit consideration of the defendant's argument that the sentences imposed are constitutionally excessive.
The record reflects that in this case, the statutorily required fine was not omitted pursuant to either State v. Dorthey, 623 So. 2d 1276 (La. 1993), or Louisiana Code of Criminal Procedure article 890.1. --------