State Of Louisiana VS Patrick W. Matthews
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2010 KA 1040 STATE OF LOUISIANA VERSUS PATRICK W MATTHEWS Judgment Rendered DEC 2 2 2010 Appealed from the Twenty Second Judicial District Court in and for the Parish of St Tammany State of Louisiana Trial Court Number 467460 Honorable August J Hand Judge Presiding Walter P Reed Counsel for Appellee Covington LA State of Louisiana Kathryn W Landry Baton Rouge LA Frank Sloan Counsel for DefendantAppellant Mandeville LA Patrick W Matthews BEFORE WHIPPLE McDONALD AND McCLENDON JJ W H IPPLE J The defendant Patrick W Matthews was charged by bill of information with simple burglary count one and two counts of theft counts two and three in violation of LSAR 14 and LSAR 14 The defendant entered a plea S 62 S 67 of not guilty After a trial by jury the defendant was found guilty as charged on all counts The trial court originally sentenced the defendant to ten years imprisonment at hard labor on count one and to seven years imprisonment at hard labor on each of counts two and three The State filed separate habitual offender bills of information as to counts one and two After a hearing the defendant was adjudicated a fourthfelony habitual offender under both habitual offender bills of information The trial court vacated the previous sentences imposed on counts one and two and sentenced the defendant to life imprisonment at hard labor without the benefit of probation parole or suspension of sentence on count one and twenty years imprisonment at hard labor without the benefit of probation or suspension of sentence on count two The trial court ordered that the sentences be served concurrently The defendant appeals contending that the enhanced life sentence imposed by the court on count one is excessive For the following reasons we affirm the convictions habitual offender adjudications and sentences STATEMENT OF FACTS On or about April 16 2009 the defendant and his coperpetrator Jason Blackwell went to the residence of Leonard and Beatrice Sollberger located on Bayou Liberty Road in Slidell Louisiana The Sollbergers daughter Kelsey Sollberger was home alone at the time After knocking on the door and ringing the doorbell Kelsey opened the door The defendant and Blackwell asked her about purchasing a vehicle on the property and she informed them that it was not While the minute entry states that the trial court restricted parole on count two the sentencing transcript indicates it did not Where as here there is a discrepancy the transcript prevails over the minute entry State v Lynch 441 So 2d 732 734 La 1983 0 for sale After Sollberger closed the door she heard noises outside as the defendant and Blackwell stole a welding machine from the property before leaving The welding machine belonged to Jerry Domecq and was being used by his son Robert Brown whom the Sollbergers had hired to add an elevator to their home Demecq had purchased the welding machine for seven hundred fifty dollars On the same date the defendant and Blackwell took tools from a tool shed owned by Lester Nunez Jr located on Laurent Road in Slidell Louisiana The next morning on or about April 17 Michelle Parker and her two sons were at their residence in Slidell when the defendant and Blackwell arrived and began ringing the doorbell knocking on the door and banging on the front windows of the home Parker contacted her husband Travis Parker and the police The defendant and Blackwell stole a generator from the back yard of the home before leaving the property Mr Parker had purchased the generator for approximately seven hundred fifty to eight hundred dollars The victims were recovering and rebuilding after Hurricane Katrina at the time of the offenses The victims property was recovered and returned ASSIGNMENT OF ERROR In the sole assignment of error the defendant argues that the life sentence imposed on count one is excessive Specifically the defendant notes that he has never been convicted of a crime of violence that his predicate offenses consist of simple burglary convictions and that he has a substance abuse problem that has never been properly addressed The defendant further argues that he should have been required to undergo substance abuse evaluation and counseling earlier in his criminal career and that he was not warned that he faced a potential life sentence for another simple burglary conviction The defendant notes that he was eighteen years of age at the time of his first guilty plea to simple burglary and twentytwo years old when he was sentenced to life imprisonment at hard labor in the instant 3 case The defendant contends that the life sentence imposed is grossly out of proportion to the crime and his criminal history as a serial burglar and that a minimum twentyyear sentence would be justifiable The defendant does not contest the sentences imposed on counts two or three The Eighth Amendment to the United States Constitution and Article I Section 20 of the Louisiana Constitution prohibit the imposition of 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 one s 95 sense of justice State v Andrews 940842 pp 8 9 La App I st Cir 5 655 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 1 894 sets forth the factors for the trial court to consider when imposing sentence While the entire checklist of LSAC art 894 need not be recited the record P Cr 1 must reflect the trial court adequately considered the criteria State v Brown 2002 2231 p 4 La App 1st Cir 5 849 So 2d 566 569 03 9 In State v Dorthey 623 So 2d 1276 128081 La 1993 the Louisiana Supreme Court recognized that if a trial judge determines that the punishment mandated by the Habitual Offender Law makes no measurable contribution to acceptable goals of punishment or that the sentence amounts to nothing more than the purposeful imposition of pain and suffering and is grossly out of proportion to the severity of the crime he is duty bound to reduce the sentence to one that would 4 not be constitutionally excessive However the holding in Dorthey was made only after and in light of express recognition by the court that the determination and definition of acts that are punishable as crimes is purely a legislative function It is the legislature prerogative to determine the length of the sentence imposed for s 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 In State v Johnson 971906 p 8 La 3 709 So 2d 672 676 the 98 4 Louisiana Supreme Court reexamined the issue of when Dorthey permits a downward departure from a mandatory minimum sentence 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 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 Johnson 971906 at p 8 709 So 2d at 676 A trial judge may not rely solely upon the nonviolent nature of a crime before the court or of past crimes as evidence that justifies rebutting the presumption of constitutionality Johnson 97 1906 at p 7 709 So 2d at 676 As noted by the defendant the predicate convictions used to enhance the sentences imposed on counts one and two consist of prior simple burglary convictions Regarding the sentence at issue as a fourth felony offender the defendant clearly was subject under LSAR 15 to a mandatory S 529 ii c 1 1A sentence of life imprisonment See LSAR 14 Contending the sentence is S 62B While 2 the trial court adjudicated the defendant a fourth felony habitual offender four prior simple burglary convictions support the multiple offender bills of information and the trial court found that the evidence presented by the State was sufficient to prove all four prior convictions 5 excessive the defendant cites State y Hayes 971526 p 4 La App 1st Cir 99 25 6 739 So 2d 301 303 04 writ denied 992136 La 616 764 So 2d 00 955 wherein this court found based on the facts and circumstances of the particular defendant therein clear and convincing evidence that the defendant was a victim of the legislature failure to assign sentences that are meaningfully s tailored to the culpability of the offender the gravity of the offense and the circumstances of the case In Hawes the defendant was convicted of theft by misappropriating or taking over five hundred dollars The criminal record of the defendant therein contained the following convictions two thefts under 100 one theft over 00 00 100 several counts of issuing worthless checks check forgery simple The simple robbery and the underlying offense one theft of over 500 00 robbery occurred when the defendant pushed a minor and stole his bicycle Although the defendant was a third felony habitual offender none of his crimes involved a dangerous weapon Pursuant to the version of LSAR S 15 529 A in effect at that time the defendant was sentenced to life 11 ii b imprisonment at hard labor without benefit of parole probation or suspension of sentence This court vacated the sentence and remanded to the district court for resentencing based on the defense counsel ineffectiveness in failing to object to s the constitutionally excessive sentence State v Hayes 97 1526 p 7 La App 1st Cir 5 712 So 2d 1019 1022 23 98 15 The State applied for a writ of certiorari and the Louisiana Supreme Court remanded the case to this court for reconsideration State v Hayes 981603 La 12 729 So 2d 584 98 11 reconsideration this court held that the life excessive sentence Hayes 97 1526 at p 4 739 So 2d at 304 was After constitutionally While recognizing the seriousness of the offense theft of approximately one thousand dollars we noted that the defendant in that case admitted the thefts after the police began to question Co him and returned six hundred ninetythree dollars which was the remainder of the money Thus the defendant returned approximately sixtynine percent of the money See Hays 971526 at pp 23 712 So 2d at 1020 In the instant case the defendant similarly possesses a history of non violent offenses including the instant offenses However as set forth by the Louisiana Supreme Court we are required to recognize that the defendant history of violent s or non violent offenses has already been taken into account under the Habitual Offender Law for third and fourth offenders which punishes third and fourth offenders with a history of violent offenses more severely than those with a history of nonviolent offenses Thus in our review we are bound by the legislature s dictates and the Louisiana Supreme Court ruling that downward departures from s mandatory minimum sentences should only be made in rare cases State v Lindsey 993302 99 p 5 La 10 770 So 2d 339 343 cert denied 3256 00 17 532 U 1010 121 S Ct 1739 149 L Ed 2d 663 2001 S Applying these precepts we find the circumstances of this case are distinguishable from those in Ham In this case the defendant invaded the victims residential property Notably these invasions occurred even though some of the victims were home at the time of the offenses The trial testimony also indicates in particular the effect of the defendant crimes upon one of the s victims Michelle Parker who was very distraught following the incident Considering the above we reject the defendant characterization of his offenses as s mere property crimes committed by a substance abuser Coperpetrator Blackwell pled guilty to the instant offenses and testified at trial While the police ultimately recovered the items stolen in this case the defendant did not voluntarily return any Specifically 3 the defendant therein went with the police to his vehicle and indicated that the money was in the glove compartment An envelope containing six hundred dollars was found in the glove compartment The police recovered ninetythree dollars from the defendant s person 7 of the stolen property and did not cooperate with the police or admit to the offenses unlike the circumstances in Hayes On review we find that the defendant in this case has not met his burden of rebutting the presumption of constitutionality Based on the record before us the defendant is not the type of offender contemplated by the Louisiana Supreme Court in Dorthey and Johnson warranting a downward deviation from the mandatory sentence Thus the defendant assignment of error lacks merit s CONVICTIONS HABITUAL OFFENDER ADJUDICATIONS AND SENTENCES AFFIRMED 8 STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2010 KA 1040 STATE OF LOUISIANA VERSUS PATRICK W MATTHEWS 0r mr J concurs and assigns reasons c While I am unable to find extraordinary circumstances in this case which would allow the application of the holding in State v Hayes 971526 La App 1 Cir 5 712 So 1019 I do not believe that the ends of justice are met 98 15 2d by a mandatory life sentence for this 22 year old defendant who did not invade any homes and whose past criminal history was limited to non violent crimes Thus I am constrained to follow the mandate of the legislature and reluctantly concur However I am compelled to note that the imposition of a life sentence for this particular defendant forever closes the door of hope negates any chance of the defendant becoming a contributing member of society and imposes an undue burden on the taxpayer who is required to feed house and clothe him for life
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