State Of Louisiana VS Brian Anthony Scott
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL IJI FIRST CIRCUIT J 2012 KA 1740 STATE OF LOUISIANA VERSUS BRIAN ANTHONY SCOTT On Appeal from the 32nd Judicial District Court Parish of Terrebonne Louisiana Docket No 601 Division D 902 Honorable David W Arceneaux Judge Presiding 7oseph L Waitr r District Attorney Attorneys for Appellee State of Louisiana Jason P Lyons Jason A Dagate Assistant District Attorneys Houma LA Bertha M Hillman Attorney for Louisiana Appellant Defendant Brian Anthony Scott Appellate Project Thibodaux LA BEFORE PARRO WELCH AND KLINE J7 udgment rendered aPR 2 9 20 3 Judge William F Kline Jr retired is serving as judge ad hoc by special appointment of the Louisiana Supreme Court PARRO The defendant Brian Anthony Scott was charged by bill of information with simple burglary in violation of LSA 14 He entered a plea of not guilty After a S R 62 trial by jury the defendant was found guilty as charged The state filed a habitual offender bill of information the trial court adjudicated the defendant a fourth or subsequent felony habitual offender and the defendant was sentenced to life imprisonment at hard labor without the benefit of probation parole or suspension of sentence The defendant now appeals raising the constitutionality of the sentence For the following reasons we affirm the conviction habitual offender adjudication and sentence STATEMENT OF FACTS On April 2 2011 items were stolen from an old storage barn at the Montegut Recreation Center in Terrebonne Parish The barn had been partially fenced to prevent ins break Danny Picou the grounds supervisor contacted the sheriff office after s noticing that the fencing was down and that items were missing including a chair rack a basketball goal and a cast iron sink Surveillance footage allowed law enforcement personnel to develop a description of the vehicle suspected to be used by the perpetrator Due to a traffic violation on April 6 the police stopped a vehicle matching the description a white van with damage on the front driver side and a peeled decal s on the driver door due to a traffic violation The defendant and Elizabeth Davis and s her two children were the occupants of the vehicle The defendant and Davis agreed to be questioned at the sheriff office and after being advised of and waiving his s Miranda rights the defendant admitted to taking the items ASSIGNMENT OF ERROR In the sole assignment of error the defendant argues that in this case there are compelling reasons for a downward departure from the mandatory life sentence The defendant notes that his prior convictions did not involve crimes of violence and that one of the predicate convictions the 1992 conviction for the offense of illegal Z The habitual offender adjudication was based on a 1992 conviction of illegal possession of stolen things a 1995 conviction of possession of marijuana with intent to distribute a 2000 conviction of simple burglary of an inhabited dwelling and 2007 convictions on fourteen counts on illegal possession of stolen things 2 possession of stolen things valued between one hundred and five hundred dollars was no longer classified as a felony at the time of the instant offense While conceding that ten years did not elapse between the convictions the defendant notes that three of the offenses occurred more than ten years prior to his commission of the instant offense and that only one of the predicates was a violation of the Uniform Controlled Dangerous Substances Law The defendant also notes in the instant case that he was forty two years old when the crime was committed and that he admitted to taking the items and told the officers where they could be recovered Referencing the growth of Louisiana s prison industrial complex the facts of the case and his criminal history the defendant argues that his life sentence makes no meaningful contribution to acceptable goals of punishment and is nothing more than a needless imposition of punishment and a waste of scant economic and human resources The defendant concludes that the sentence is grossly out of proportion to the severity of the crime At the outset we note that our review of the record shows that it does not contain a written motion to reconsider sentence However the defense counsel objected after the habitual offender sentencing stating Please note our objection to the sentence as constitutionally excessive I like to make an oral motion to reconsider d sentence at this time See LSA art 881 Under LSA art 881 P Cr C B 1 P Cr C 1 the defendant must set forth the specific grounds on which the motion to reconsider is based However in order to preserve a claim of constitutional excessiveness the defendant need not aliege any more specific ground than that the sentence is excessive If the defendant does not allege any specific ground for excessiveness or present any argument or evidence not previously considered by the court at original sentencing then the defendant does not lose the right to appeal the sentence the defendant is simply relegated to having the appellate court consider the bare claim of excessiveness State v Mims 619 So 1059 La 1993 per curiam Thus 2d 60 this court will consider the defendant sbare claim of excessiveness The Eighth Amendment to the United States Constitution and Article I Section The defendant is not arguing that the cleansing period lapsed as to any of the predicate convictions but merely argues that the lengthy time period between the predicate offenses and the instant offense should be considered a mitigating factor 3 20 of the Louisiana Constitution punishment prohibit the imposition of cruel or excessive 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 one sense of justice State v Andrews 94 s 0842 La App 1st Cir 5655 So 448 454 95 2d We note that the instant offense and the 2000 predicate conviction of simple burglary of an inhabited dwelling are punishable by imprisonment for up to twelve years and the 1995 conviction of possession of marijuana with intent to distribute constitutes a violation of the Uniformed Controlled punishable by imprisonment for more than ten years Dangerous Substances Law S B S R 62 R LSA 14 LSA 2 62 14 and LSA 40 Thus without even considering the predicate S B R 966 3 convictions for illegal possession of stolen things the defendant was subject to a mandatory sentence of life imprisonment pursuant to LSA 15 The S 1 R 529 b 4 A legislature has the unique responsibility to define criminal conduct and to provide for the penalties to be imposed against persons engaged in such conduct The penalties provided by the legislature reflect the degree to which the criminal conduct affronts society State v Baxley 94 La 5 656 So 973 979 Imposition of a 2982 95 22 2d sentence although within the statutory limit may violate a defendant constitutional s right against excessive punishment 1979 State v Sepulvado 367 So 762 767 La 2d Thus imposition of a minimum sentence required under a particular statute might also violate a defendant constitutional protection against excessive punishment s See State v Dorthey 623 So 1276 1280 La 1993 2d 81 In Dorthey the Louisiana Supreme Court considered a constitutional challenge to the Habitual Offender Law In that case the supreme court observed that it is the s legislature prerogative to determine the length of the sentence imposed for crimes classified as felonies Furthermore courts are charged with applying punishments unless they are found to be unconstitutional these State v Dorthey 623 2d So at 1278 The supreme court provided in Dorthey that the judiciary maintains 4 the distinct responsibility for reviewing sentences imposed in criminal cases for constitutional excessiveness Thus if a trial court determines that the habitual offender punishment mandated by LSA 15 makes no measurable contribution to S 1 R 529 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 the court has the option indeed the duty to reduce such a sentence to one that would not be constitutionally excessive State v Dorthey 623 2d So at 1280 81 In State v Johnson 97 La 3 709 So 672 the Louisiana 1906 98 4 2d Supreme Court reexamined the issue of when Dorthey permits a downward departure from a mandatory minimum sentence The court held that a trial judge may not rely solely upon the nonviolent nature of the instant crime or past crimes as evidence which justifies rebutting the presumption of constitutionality Further the court held that to rebut the presumption that the mandatory minimum sentence was constitutional the defendant had to clearly and convincingly show that he is exceptional which in this context means that because of unusual circumstances this defendant is a victim of the legislature failure to s assign sentences that are meaningfully tailored to the culpability of the offender the gravity of the offense and the circumstances of the case State v Johnson 709 So at 676 2d The defendant has not presented any particular or special circumstances that would support a deviation from the mandatory life sentence provided in LSA S R 1 529 15 Based on the record before us we find that the defendant has failed to show that he is exceptional or that the mandatory life sentence is not meaningfully tailored to his culpability the gravity of the offense and the circumstances of the case Thus we find that a downward departure from the mandatory life sentence was not required in this case The mandated life sentence imposed is not excessive and the sole assignment of error lacks merit CONVICTION HABITUAL OFFENDER ADJUDICATION AND SENTENCE AFFIRMED 5
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