State Of Louisiana VS Kelvin W. Kaigler
Annotate this Case
Download PDF
NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2010 KA 0924 STATE OF LOUISIANA VERSUS KELVIN W KAIGLER x Judgment Rendered December 22 2010 APPEALED FROM TIIE TWENTY SECOND JUDICIAL DISTRICT COURT IN AND FOR THE PARISH OF ST TAMMANY STATE OF LOUISIANA DOCKET NUMBER 417797 DIVISION C THE HONORABLE RICHARD A SWARTZ JUDGE Walter P Reed Attorneys for Appellee District Attorney Covington Louisiana State of Louisiana and Kathryn W Landry Special Appeals Counsel Baton Rouge Louisiana Frederick IL Kroenke Baton Rouge Louisiana Attorney for DefendantAppellant Kelvin W Kaigler BEFORE WHIPPLE McDONALD AND McCLENDON JJ WDONALD J The defendant Kelvin W Dreads Kaigler was charged by bill of information with one count of possession of cocaine a violation of La R S C 967 40 and pled not guilty charged Following a jury trial he was found guilty as fie was sentenced to five years at hard labor He now appeals contending the trial court imposed an unconstitutionally excessive sentence upon him and trial counsel rendered ineffective assistance of counsel by failing to move for reconsideration of sentence For the following reasons we affirm the conviction and sentence FACTS On August 6 2006 St Tammany Parish Sheriff Department Deputy Ryan s Terrebonne conducted a traffic stop of a vehicle on Peters Road in St Tammany Parish Sonya Nores was driving the vehicle the defendant was the frontseat passenger and Corey Paige and Monique Florane were rearseat passengers Deputy Terrebonne ordered Nores to exit the vehicle and as she exited he observed a clear glass tube with a burnt wire mesh and a white residue substance on the s driver side floor of the vehicle Based on his experience as a police officer Deputy Terrebonne recognized the pipe as a crack pipe fie also subsequently recovered a rock of cocaine from the driver sside floor of the vehicle Deputy e Terrebonn also ordered the defendant to exit the vehicle and after he exited Deputy Terrebonne observed another crack pipe on the passenger sside floor of the vehicle The State introduced both crack pipes and the rock of cocaine into evidence at trial Scientific analysis detected the presence of cocaine in the crack pipes 2 St Tammany Parish Sheriffs Department Lieutenant Randy Sm was also ith present at the traffic stop involving the defendant The vehicle was a stolen new car and was very clean inside Lieutenant Smith testified he saw a glasstube pipe on the floorboard of the frontpassenger seat where the defendant had been sitting s Nores testified she was driving the vehicle that was stopped on the day in question She indicated she and her passengers including the defendant had been smoking cocaine looking for cocaine talking about cocaine She testified she saw the defendant smoking crack with a crack pipe in the vehicle According to Nores when the police signaled her to stop the vehicle the defendant stated verybody e be cool get rid of your stuff Corey Paige testified he was in the vehicle that was stopped on the day in question According to Paige Nores and the defendant were both smoking drugs on the front seat of the vehicle The defendant conceded he was in the vehicle that was stopped on the day in question He also conceded lie and Nores both used cocaine together He denied however that there were any crack pipes in the vehicle when he got into the vehicle Thereafter he testified Nores may have been truthful about her own smoking of cocaine in the vehicle but she was lying about his smoking of cocaine in the vehicle He also claimed Paige was lying about him smoking drugs in the vehicle The defendant indicated he sold drugs at the Port of New Orleans EXCESSIVE SENTENCE INEFFECTIVE ASSISTANCE OF COUNSEL In assignment of error number 1 the defendant concedes he possessed cocaine by possessing the cocaine residue in the crack pipe but argues possession of 3 such a small amount does not justify or explain the harsh sentence he received In assignment of error number 2 he argues trial counsel rendered ineffective assistance of counsel by failing to move for reconsideration of his sentence We will address the defendant claim of excessive sentence even in the s absence of a timely motion to reconsider sentence or a contemporaneous objection because it would be necessary to do so as part of the analysis of the ineffective assistance of counsel claim See State v Bickham 98 1839 pp 78 La App l st Cir 6 739 So 887 891 92 99 5 2 2d The Louisiana Code of Criminal Procedure sets forth items which must be considered by the trial court before imposing sentence La Code Crim P art 1 894 The trial court need not recite the entire checklist of Article 894 1 but the record must reflect that it adequately considered the criteria In light of the criteria expressed by Article 894 1 a review for individual excessiveness should consider the circumstances of the crime and the trial court stated reasons and factual basis s for its sentencing decision State v Hurst 99 2868 p 10 La App 1st Cir 00 3 10 797 So 75 83 writ denied 2000 3053 La 1015101 798 So 962 2d 2d Remand for full compliance with Article 894 is unnecessary when a sufficient 1 factual basis for the sentence is shown State v Harper 20070299 p 15 La App l st Cir 9 970 So 592 602 writ denied 20071921 La 2 07 5 2d 08 15 976 So 173 2d The Louisiana Constitution of 1 art I 974 20 prohibits the imposition of excessive punishment Although a sentence may be within statutory limits it may violate a defendant constitutional right against excessive punishment and is s subject to appellate review Generally a sentence is considered excessive if it is 4 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 to society it is so disproportionate as to shock one sense of justice A trial s judge is given wide discretion in the imposition of sentences within statutory limits and the sentence imposed should not be set aside as excessive in the absence of manifest abuse of discretion Hurst 992868 at pp 1011 797 So 2d at 83 A claim of ineffectiveness of counsel is analyzed under the two pronged test developed by the United States Supreme Court in Strickland v Washington 466 S U 668 104 S 2052 80 L 674 1984 Ct 2d Ed In order to establish that his trial attorney was ineffective the defendant must first show that the attorney s performance was deficient which requires a showing that counsel made errors so serious that Amendment he was not functioning as counsel guaranteed by the Sixth Secondly the defendant must prove that the deficient performance prejudiced the defense This element requires a showing that counsel errors s were so serious that the defendant was deprived of a fair trial the defendant must prove actual prejudice before relief will be granted It is not sufficient for the defendant to show that the error had some conceivable effect on the outcome of the proceeding Rather lie must show that but for the counsel unprofessional s errors there is a reasonable probability the outcome of the trial would have been different Further it is unnecessary to address the issues of both counsel s performance and prejudice to the defendant if the defendant makes an inadequate 5 showing on one of the components State v Serigny 610 So 857 85960 La 2d App 1 st Cir 1 w denied 614 So 1263 La 1993 992 rit 2d Any person who violates La R 40 as to any controlled S 967 2 C dangerous substance classified in Schedule 11 other than pentazocine shall be imprisoned with or without hard labor for not more than five years and in addition may be sentenced to pay a fine of not more than five thousand dollars La R 40 Cocaine is a controlled dangerous substance classified in S 967 2 0 Schedule I1 See La R 40 Schedule II A S 964 4 The defendant was sentenced to five years at hard labor He was not fined In imposing sentence the trial court noted there was an undue risk that during a period of suspended sentence or probation the defendant would commit another crime and a lesser sentence than the sentence the court would impose would deprecate the seriousness of the offense that the sentence imposed run concurrently Thereafter the defense requested with the s defendant other conviction A thorough review of the record reveals the trial court adequately considered the criteria of Article 894 and did not manifestly abuse its discretion in imposing 1 sentence See La Code Crim P art 894 A 1 1 3 A Further under La Code Crim P art 894 the fact that t offender was persistently 12 B 1 he involved in similar offenses not already considered as criminal history or as a part of a multiple offender adjudication was also an aggravating factor The record does not provide details concerning the conviction referenced by the defense The minutes however indicate the defendant faced charges under seven different docket numbers Additionally the trial transcript reflects that following the defendant conviction for the instant offense the State s indicated it was going forward with trial I 6 Additionally the sentence imposed was not grossly disproportionate to the severity of the offense and thus was not unconstitutionally excessive Maximum sentences may be imposed 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 962040 p 4 La App 1st Cir 11 97 7 703 So 698 701 writ denied 980039 La 5 719 So 459 2d 98 15 2d The defendant poses an unusual risk to the public safety due to his past conduct of repeated criminality He candidly testified he was a drug dealer at the Port of New Orleans In regard to the def ineffective assistance of counsel claim s endant we note even assuming arguendo defense counsel performed deficiently in failing to timely move for reconsideration of the sentence the defendant suffered no prejudice from the deficient performance because this court has considered the s defendant excessive sentence argument and found that his sentence was not excessive Finding no merit in the defendant arguments the sentence is affirmed s CONVICTION AND SENTENCE AFFIRMED rl
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
