State Of Louisiana VS Charles Vincent Daughtry, Jr.

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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO. 2014 KA 0213 STATE OF LOUISIANA VERSUS CHARLES VINCENT DAUGHTRY JR. Judgment rendered September 19, 2014. ****** Appealed from the 22nd Judicial District Court in and for the Parish of St. Tammany, Louisiana Trial Court No. 534874-1 Honorable Peter J. Garcia, Judge ****** WALTER P. REED DISTRICT ATTORNEY COVINGTON, LA AND KATHRYN LANDRY SPECIAL APPEALS COUNSEL BATON ROUGE, LA ATTORNEYS FOR STATE OF LOUISIANA UEU T. VO CLARK MANDEVILLE, LA ATTORNEY FOR DEFENDANT-APPELLANT CHARLES VINCENT DAUGHTRY JR. ****** BEFORE: KUHN, PElTIGREW, AND WELCH, JJ. PETTIGREW, J. Defendant, Charles Vincent Daughtry1 Jr." .was charged by bill of information with 1 two counts of simple burglary of an inhab!t,ed dwelling, violations of La. R.S. 14:62.2. He pied not guilty and, following a jury trialr was found guilty as charged on both counts. Subsequently, the State filed a habitual offen~er bill of information, and the 2 trial court adjudicated defendant a fourth-felony habit.ual offender. On count one, the trial court sentenced defendant as a fourth-felony habitual offender to the mandatory term of life imprisonment at hard labor; ..without the beQefit of parole, probation, or suspension of sentence. Qn count twor the trii?i <;ourt $entenced defendant to ten years . , at hard labor. These sentences were ord~r.ed to run concurrently. denied defendant's motion to reconsider .his _s~ntences. The trial court Defendant now alleges two assignments of error, both of which relate to his habitual offender sentence. For the following reasons, we affirm defendant's convictions, habitual offender adjudication, and sentences. We also remand with instructions. FACTS On April 23, 2013, Karen Wintz's home on Joyce Drive in Mandeville was broken into while she and her family were not present The perpetrator kicked in her back door to enter the home. The house's bedrooms were ransacked, and the perpetrator took multiple items of jewelry from the family's jewelry boxes. On April 26, 2013, Kelly Doolittle's home on Montgomery Street in Mandeville was broken into in a similar way. While she and her husband were away, someone kicked in their back door, ransacked their bedrooms, and made off with multipl~ it~ms of jewelry. 1 The same instrument also charged a Robert J. Klein with the same offenses, but the district attorney amended the bill of information with respect to Klein only. In excliange for his testimony against defendant, Klein pied guilty to two reduced charges of simple burglary. Klein's case is not at issue in this appeal. 2 The State's habitual offender bill of information asked that· defendant be sentenced pursuant to La. R.S. 15:529.1(A)(3)(b), the provision relevant to third-felony habitual offenders, but it actually listed four instances of alleged predicate offenses. Those offenses were: 1) an April 4, 1985 conviction in Orleans Parish for simple burglary of an inhabited dwelling (six counts) under case number 306911; 2) a July 22, 1991 conviction in Jefferson Parish for simpie burglary of an inhabited dwelling (six counts) under case number 90-5579; 3) a January 24, 2001 conviction in St. Tammany Parish for simple burglary of an inhabited dwelling (two counts) under case number 321158; and 4) a January 24, 2001 conviction in St. Tammany Parish for illegal possession of stolen things valued over $500 under case number 321155. 2 None of the victims ever saw who committed the robberies. Pursuant to a neighborhood canvass related to the Montgomery Street burglary, the police spoke with a neighbor who had noted the llcense p!a(e nurnber of a suspicious white van she had seen in the neighborhood. 3 Based upon ttii~: inforrr121t!onr the police discovered that the white van was registered to defend~nt's :::.Lst~~r 1 who lived: in Texas. ' ;, The police ' questioned defendant about the Joyce Drive and Montgomery Street burglaries. He admitted to committing both and gave the_. interviewin9 detectives explicit details about . . how he first knocked on the homes' front doors to make sure no one was present before he proceeded to the homes' back doors to make his entrance there. Defendant admitted that he looked primarily for jewelry in these burglaries. EXCESSIVE SENTENCE In related assignments of error, defendant asserts that the trial court erred in denying his motion to reconsider sentence, .which alleged that his habitual offender sentence is unconstitutionally excessive. Article I, Section 20 of the Louisiana Constitution prohibits the imposition of excessive punishment. Although a sentence may be within statutory limits, it may violate a defendant's constitutional right against ~xcessive punishment and is subject to appellate review. State v. Sepulvado, 367 So.2d 762, 767 (La. 1.979). A sentence is constitutionally excessive if it is grossly disproportionate to the severity of the offense or is nothing more than a purposeless and needless infliction of pain and suffering. State v. Hurst, 99-2868, p. 10 (La. App. 1 Cir. 10/3/00), 797 So.2d 75, 83, writ denied, A sentence is grossly disproportionate if, 2000-3053 (La. 10/5/01), 798 So.2d 962. when the crime and punishment are considered in light 'cit the harm done to society, it shocks the sense of justice. State v. Hogan, 480 Sb.2d 288, 291 (La. 1985). A trial court is given wide discretion in the imposition of sentences within statutory limits, and 3 Klein, defendant's co-conspirator, testified at trial that as defendant committed the Montgomery Street burglary, he was approached by a woman while he was sitting in a white van. The record is not explicit about whether this woman was the same neighbor who reported the suspicious van. 3 the sentence imposed by it should not bE· ?et ~side as excessive m the absence of , . manifest abuse of discretion. See. State v" L,obatQr 603 $o.2d 739, 751 (La. 1992). : " ¢ 4' ' In the instant case, defendant vvas 'S;(;~nh.:riced as a fourth-felony habitual offender under the provisions of La., RS. 15:529.1(A)(4)(b). That section states, in pertinent part, that if a defendant's fourth felony and two of his prior felonies are crimes punishable by imprisonment for twelve. years or more, he shall be imprisoned for the remainder of his natural life, without the. benefit of parole, probation, or suspension of sentence. See La. R.S. 15:529.l(A)(4)(b),. Here, defendant's fourth felony - simple burglary of an inhabited dwelling - is punishable.by imprisonment for twelve years. See La. R.S. 14:62.2. Similarly, at least two of his p.re.oicate convictions - his six Orleans Parish, six Jefferson Parish, and two St. Tammany Parish (docket number 321158) convictions - were for simple burglary of an inhabi~~d dwelling. Therefore, defendant's 9f life impnsonment at fourth-felony habitual offender sentence benefit of parole, probation, or susp~nsion. of hard labor, without the sentencer was mandatory under La. R.S. 15:529. l(A)( 4)(b). Even though a sentence is the mandatory minimum sentence, it may still be excessive if it makes no "measurable contribution to acceptable goals of punishment" or amounts to nothing more than the "purposeful imposition of pain and suffering" and is "grossly out of proportion to the severity of the crime." State v. Dorthey, 623 So.2d 1276, 1280-1281 (La. 1993). In State v. Johnson; 97-1906 1 p. 8 (La. 3/4/98), 709 Court found that to rebut the presumption of So.2d 672, 676, the Louisiana Supreme . I,. the constitutionality of a mandatory and convincingly" show that he is .,, . mfnfrnum 'sentence, exte~tional,: ~-hl~h· ' ¢ ~ the defendant must "clearly means' that because of unusual I circumstances, the defendant is. a vi:ctirn··of the iegisiature's failure to assign sentences that are meaningfully tailored to the culpabi-iity of the offender, the gravity of the offense, and the circumstances of the case, Departures downward from the minimum sentence should only occur in rare situations. Johnson, 97-1906 at 9, 709 So.2d at 677. . 4. In the instant case, defendant contends that his sentence on count one is excessive due to his prior convictions·, nature as non"'.violent property crimes, his age (sixty-one years old)r his status as a hr~roin addi~t, and his cooperation with the police upon his arrest. Defendant asserts that the triai court did not adequately tailor his habitual offender sentence in a wav that c.onsiderec] ail of these circumstances. ' . We have reviewed the record and :fimt tn?lt it. supports the sentence imposed. . ' : .. . . Based on our review, we cannot say ' ... ' that ~~it: trial cour:t erred or abused its discretion in imposing the mandatory sentence under .~a. R.S. 1_5~529.1(A)(4)(b). .· The mitigating i factors cited by defendant in his brief are not sufficient to warrant a downward departure from the minimum mandatow; sentence of life imprisonment at hard labor, without the benefit of parole, probation, or suspension of sentence. Moreover, we do not find that defendant has "clearly and convincingly" shown that he is "exceptional." Johnson, 97-1906 at 8, 709 So.2d at 676 .. He has failed to cite any unusual or exceptional circumstances to show that he is a victim of the legislature's failure to assign a sentence meaningfully tailored to his culpability, to the circumstances of his case, and to his status as a fourth-felony habitual offender. Through his behavior, defendant has shown a propensity toward repeated criminality over a period of nearly thirty years. Therefore, there was no reason for the trial court to deviate from the mandatory minimum sentence. Accordingly( we find no abuse of discretion in the sentence imposed on count one. These assignments of error lack merit REVIEW FOR ERROR In accordance with La. Code Crim. ·P. art:: . 92rJ(2),we are limited in our review for unassigned errors to those errors discoverable· by a mere inspection of the pleadings and proceedings, without inspection of the evidence. See State v. Price, 2005-2514, p. 18 (la. App. 1 Cir. 12/28/06), 952 So.2d 112, 123 (en bane), writ denied, 2007-0130 (La. 2/22/08), 976 So.2d 1277. After a careful review of the record, we have found a sentencing error with respect to count two" 5 For his unenhanced sentence on count ·tw9, defendant was subject to a sentence of imprisonment at hard labor for..not less than o~e year, without the benefit of parole, probation, or suspension of sentence, nor. ' more .:! than twelve years. ', . See La. R.S . 14:62.2. The trial court sentenced def~ndant t(l :ten years at hard labor on thls count, but it failed to impose the first year of that .sem.qri~e without the benefit of parole, ' ¢ ¢ ¢ I ' ¢ probation, or suspension of sentence .. H?weyer, pursuant to La. R.S. 15:301.l(A), if a criminal statute requires that all or a part of a sentence imposed for a violation of that statute be served without the benefit of parole, probation, or suspension of sentence, each sentence that is imposed under that statute shall be deemed to contain the provisions relating to the service of the sentence without the benefit of parole, probation, or suspension of sentence.· Only the first year of defendant's simple burglary sentence can be imposed without the benefit of parole, probation, or suspension of sentence, so no discretion is required in restricting these benefits. See State v. Boowell, 406 So.2d 213, 215-216 (La. 1981). As a result, the provisions of La. R.S. 15:301.l(A) operate as a matter of law in this case. Therefore, the first year of defendant's ten-year sentence on count two 1s deemed to contain the restrictions of parole, probation, and suspension of sentence. We remand this matter to the district court for correction of the minute entry and commitment order, in accordance with this opinion. CONVICTIONS, HABITUAL OFFENDER ADJUDICATION, AND SENTENCES AFFIRMED; REMANDED WITH INSTRUCTIONS~ .. 6

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