State v. KennersonState v. Kennerson
Dmitrc I. Burnes, Alexandria, for Edward Kennerson.
Before YELVERTON, GREMILLION and PICKETT, JJ.
PICKETT, Judge.
On the night of July 15, 1995, Defendant gathered three other men and drove them to the home of Wayne Bordelon in Avoyelles Parish. Bordelon‘s unlocked truck was parked in his driveway; his son‘s locked truck (registered in Bordelon‘s name) was also parked there. Kennerson and his accomplices entered both trucks, removed various items, then left. Bordelon did not realize he had been burglarized until the next morning.
Continuing their enterprise, the burglars went to the home of Dr. James Guillory, also in Avoyelles Parish. While two of his accomplices stayed in the yаrd to eat pears from Guillory‘s trees, Defendant and his other compatriot, a juvenile, entered a shed attached to the victim‘s carport and removed boxes of frozen meat. The burglars loaded it into Kennerson‘s car with the items taken from Bordelon‘s trucks, then left. Guillory did not realize the meat had been taken until the nеxt morning.
On October 3, 1995, Defendant, Charles Edward Kennerson, was charged by bill of information with two counts of simple burglary, in violation of
ASSIGNMENT OF ERROR NO. 1:
In his first assignment of error Defendant contends the trial court erred in resentencing him. He complains that the trial court failed to abide by the directions of this court‘s ruling in Kennerson, 695 So.2d 1367. This assignment lacks merit. Defendant misconstrues what this court previously ordered. This court stated, “[a] shorter sentence, to run concurrently, would be more appropriate under the circumstances of this case.” Id. at 1383. Further, in the conclusion of Kennerson this court held:
Accordingly, the defendant‘s convictions are affirmed, but defendant‘s adjudication and sentence as a third habitual offender should be reversed and vacated. The case is remanded to the trial court in order to resentence the defendant as a sеcond felony offender and in a manner not inconsistent with this opinion.
At resentencing the trial court sentenced Defendant as a second felony habitual offender as follows:
Accordingly, Mr. Kennerson, it‘s the sentence of the court that you be committed to the custody of the Louisiana Department of Corrections, tо serve at hard labor, for a period of 19 years on one count, one charge, and On the second count, a period of 19 years; this sentence to run concurrent with the previous sentence of 19 years, which this court has imposed.
You‘re given credit for time served.
Defendant argues that the trial court originally sentenced Defendant to two twenty (20) yеars prison sentences, to run consecutively, and that this court stated a shorter sentence is more appropriate. He asserts this court intended the trial court to adjust Defendant‘s sentence downward by more than just one year, from twenty (20) to nineteen (19) years.
The trial court, on resentencing, followed the dictatеs of this court. In Kennerson, this court held that, “[d]espite the fact that the individual sentences appear to be legally sound, their combined effect is disproportionate to the crimes committed.” Id. at 1382. This court‘s concern was the combined effect, not the length of the individual sentences. The trial court reduced the sentences by one year each and made them concurrent, rather than consecutive. This significantly reduced Defendant‘s prison term, by more than one-half. Defendant‘s total sentence was reduced from forty (40) years to nineteen (19) years. The trial court complied with the order of this court. Therefore, this assignment lacks merit.
ASSIGNMENT OF ERROR NO. 2:
In his second assignment, Defendant contends his new sentences are excessive and constitute cruel and unusual punishment. The trial court has great discretion in sentencing within the statutory limits. State v. Trahan, 425 So.2d 1222 (La.1983); Kennerson, 695 So.2d 1367. Absent a manifest abuse of discretion, a sentence should not be set aside. State v. Washington, 414 So.2d 313 (La.1982); Kennerson, 695 So.2d 1367.
In the case sub judice, the sentencing range on each count was from six (6) to twenty-four (24) years. Defendant, on resentencing, received nineteen (19) years on each count, to run concurrently. In Defendant‘s previous appeal he raised a constitutional excessiveness claim. This court found no error in the trial court sentencing Defendant to twenty (20) years on each count. This court‘s vacation of Defendant‘s sentences was based on the combined effеct of the sentences caused by the consecutive nature of the sentences. This court held, “[f]ocusing on the constitutional claim advanced by the defendant, the jurisprudence suggests that the defendant‘s individual sentences are neither shocking nor grossly disproportionate to the severity of the crimes committed.” Kennerson, 695 So.2d at 1382. This court has already held the individual sentence lengths were not constitutionally excessive when they were greater than they are now. Other courts have also upheld similar sentences as constitutional. See State v. Anderson, 609 So.2d 831 (La.1992); State v. Martin, 28,489 (La.App. 2 Cir. 8/21/96); 679 So.2d 557, writ denied, 96-2367 (La.2/7/97); 688 So.2d 498; State v. Jones, 537 So.2d 848 (La.App. 5 Cir.1989).
As stated above, this court vacated the sentences based on the consecutive nature of the sentenсes. Further, this court ordered the trial court to run the sentences concurrently, which the trial court did. Defendant was exposed to a sentence range of six (6) to forty-eight (48) years combined. Defendant received, on resentencing, nineteen (19) years on each count, to run concurrently. Even though Defendant‘s individual sentences are in the high range, which this court has previously found constitutional, his combined sentence is within the low range. Defendant‘s sentences are not constitutionally excessive. Thus, this assignment lacks merit.
ASSIGNMENT OF ERROR NO. 3:
In his third assignment, Defendant contends the trial court erred in denying his Motion for a New Trial which raised the issue that the State had not provided rеquested exculpatory evidence to Defendant prior to trial. We will address this issue on the merits, under statutory law, without addressing either the procedural question of
Defendant argues that the State withheld information that individuals with him during the time of the alleged crimes had entered into plea agreements with the State and that they would be testifying against him. He contends defense counsel was unaware of the information until trial and thus, was unable to properly cross-examine the witnesses. Defendant complains that this informаtion is exculpatory and should have been disclosed by the State prior to trial. Defendant asserts his claim as a Motion for a New Trial.1
(3) New and material evidence that, notwithstanding the exercise of reasonable diligence by the defendant, was not discovered before or during the trial, is available, and if the evidеnce had been introduced at the trial it would probably have changed the verdict or judgment of guilty;
Defendant filed a Motion for a New Trial after his first appeal but prior to resentencing. The trial court determined that the motion was timely filed because it was filed prior to sentencing. See
Also,
Defendant has failed to set forth and establish a ground for a new trial as required by
In his fourth assignment, Defendant argues the trial court erred in resentencing him as a second felony habitual offender, after this court vacated his original sentence, without conducting a hearing to determine whether he was in fact a second felony habitual offender. This assignment lacks merit.
In Kennerson, 695 So.2d 1367, Defendаnt contended that the State failed to prove his Texas convictions, Harris County and Jefferson County, were equivalent to Louisiana felonies. This court affirmed his conviction but vacated his sentence as a third habitual offender and remanded the case for resentencing.
This court held that the three (3) Jefferson County cоnvictions were treated as one conviction under the habitual offender bill. This court also found that two of the convictions were adequately proved at the habitual offender hearing to establish Defendant was a second habitual offender.
This court, in Kennerson, stated the following,
Based on this court‘s analysis, the Harris County convictions and one of the Jefferson County convictions were not shown to be equivalent to Louisiana felonies, as required by
La.R.S. 15:529.1 .As the Jefferson County convictions counted as one predicate offense, the defendant, at most, was proven to be a second habitual offender, and should be resentenced as such. Of course, the state would hаve the option of once again attempting to prove that the defendant is a third habitual offender, as double jeopardy does not apply to habitual offender adjudications.
Id. at 1379 (Citation omitted).
In conclusion, as stated previously, this court held,
Accordingly, the defendant‘s convictions are affirmed, but the defendant‘s adjudication and sentence as a third habitual offender shоuld be reversed and vacated. The case is remanded to the trial court in order to resentence the defendant as a second felony offender and in a manner not inconsistent with this opinion.
Defendant asserts the trial court should have conducted another habitual offender hearing to establish that he was a sеcond habitual offender. This court thoroughly reviewed the habitual offender proceeding and confirmed that the State had in fact proven that Defendant was a second habitual offender. The trial court was not required to conduct another habitual offender hearing in order to establish Defendant was a second habitual offender. This court vacated Defendant‘s sentence as a third habitual offender, not as a second habitual offender. This court instructed the trial court that they could sentence Defendant as a second habitual offender if the State chose not to attempt to prove Defendant was a third habitual offender. The trial court, in sentencing Defendant as a second habitual offender, complied with the mandates of this court. A second habitual offender hearing was not necessary since the State did not try to enhance Defendant‘s sentence as a third habitual offender. Therefore, this assignment lacks merit.
ASSIGNMENT OF ERROR NO. 5:
In his final assignment of error, Defendant asserts the trial court erred in basing Defendant‘s sentences on erroneous facts. Defendant argues this court should vacate and remand for resentencing due to the trial court misstating a single fact during the resentencing. The trial court stated,
Although the Court of Appeal said you are a “petty criminal,” breaking into someone‘s home, in the privacy of their home, and stеaling meat from a freezer, is not what this court considers to be a “petty crime,” due to the great risk of bodily harm that would have occurred, had the persons been there or awakened, during the burglary. (Emphasis added).
Defendant is correct. This is not an exact factual description of the relationship between the house and the shed where the meat was stolen from. The shed was not per se physically attached to the home, except by a continuous walkway, but it was in very
Q. Now, on the—would you describe the homе that you have in just sort of a general way. Is this a residence?
A. It‘s a 3 bedroom brick home with a garage with an extension of what you‘re referring to being a shed, it‘s a little storage area there.
Q. It‘s actually part of the house?
A. It‘s not connected completely. There‘s a separation between there, but there‘s a continuous concrete walk gоing to it and the freezer is located in that storage area.
Q. All right.
A. And that particular area was unlocked.
Q. All right. There‘s a storage area, and how big is that storage area?
A. The width of the—approximately, I‘m not sure, about 25 feet wide and the depth of it would be 7 or 8 feet.
The trial judge articulated very thoroughly the factual basis and factors considered in rendering Defendant‘s sentences. The trial judge‘s articulated reasons strongly support the sentences rendered. The great danger to the people in the home, referenced by the trial judge, was still present due to the close proximity of the home and shed.
Defendant has failed to establish any prejudice from the trial judge‘s minor, tеchnical misstatement of the relationship between the home and the shed. Absent any prejudice, this is harmless error. Therefore, this assignment is without merit.
For the above reasons, the conviction and resentencing is affirmed.
AFFIRMED.