State of Louisiana Versus Julius Hankton ( 2021 )

STATE OF LOUISIANA NO. 20-KA-388
VERSUS FIFTH CIRCUIT
JULIUS HANKTON COURT OF APPEAL
STATE OF LOUISIANA
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 15-1798, DIVISION "L"
HONORABLE DONALD A. ROWAN, JR., JUDGE PRESIDING
July 03, 2021
STEPHEN J. WINDHORST
JUDGE
Panel composed of Judges Fredericka Homberg Wicker,
Stephen J. Windhorst, and John J. Molaison, Jr.
SENTENCES ON COUNTS ONE, TWO, THREE, FOUR, AND SIX
AFFIRMED; SENTENCE ON COUNT FIVE VACATED; CASE
REMANDED
SJW
JJM
DISSENTS WITH REASONS
FHW
COUNSEL FOR PLAINTIFF/APPELLEE,
STATE OF LOUISIANA
Honorable Paul D. Connick, Jr.
Thomas J. Butler
Andrea F. Long
Seth W. Shute
Douglas E. Rushton
Lynn Schiffman
COUNSEL FOR DEFENDANT/APPELLANT,
JULIUS HANKTON
Bruce G. Whittaker
WINDHORST, J.
Defendant/Appellant, Julius Hankton, seeks review of his sentences imposed
on remand. For the following reasons, we affirm defendant’s sentences on counts
one, two, three, four, and six, but vacate defendant’s sentence on count five, and
remand this matter for further proceedings on count five.
FACTS and PROCEDURAL HISTORY 1
On May 1, 2015, the Jefferson Parish District Attorney filed a bill of
information charging Hankton with one count of possession with intent to distribute
heroin in violation of La. R.S. 40:966(A) (count one), four counts of possession of a
firearm by a convicted felon in violation of La. R.S. 14:95.1 (counts two, three, five,
and six), and one count of possession of Oxycodone, in violation of La. R.S.
40:967(C) (count four). The six separate counts for which defendant was charged
all arose out of a single search warrant executed on March 19, 2015 at defendant’s
residence located in Metairie, Louisiana during which law enforcement seized a
significant amount of heroin packaged for sale, drug paraphernalia, multiple cell
phones, a large amount of cash, and four guns. Defendant pled not guilty to all
counts.
Trial commenced before a twelve-person jury on January 18, 2017 and
revealed the following. Gregory Morrow, a recovering heroin addict, testified that
in 2014 he was working with the Federal Bureau of Investigations (FBI) as a
confidential informant. While working with the FBI, Morrow purchased heroin
from defendant, who he knew as “Ju,” on November 7 and 19, 2014, and on
December 5, 2014, in quantities of one-half to one gram for approximately $50 to
$100.
1 This opinion replaces and supersedes a document mistakenly issued on June 9, 2021 as an opinion. The
June 9, 2021 document was recalled and is of no effect whatsoever.
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A video of the November 7, 2014 drug transaction between defendant and
Morrow was played for the jury. On the video, a vehicle driven by defendant was
shown pulling up to Morrow’s vehicle where the passenger of defendant’s vehicle
then handed Morrow a gram of heroin in exchange for $100. A second purchase
made by Morrow on November 19, 2014, from defendant was for half a gram of
heroin and was also recorded on video; however, Morrow testified that the video did
not capture defendant, who had given him the heroin and was out of sight of the
surveillance camera. On December 5, 2014, Morrow made a third purchase of
heroin from defendant near the Brother Martin football field. This third sale was not
captured on video because Morrow was instructed by defendant to exit his vehicle
and enter defendant’s vehicle, where defendant sold him the heroin out of the visual
field of the surveillance camera positioned in Morrow’s vehicle.
Stacey Taranto of the Jefferson Parish Sheriff’s Office testified that in 2014
and 2015 she was a member of the narcotics unit working as a Task Force Officer
with the FBI. She explained that she conducted surveillance of the controlled buys
about which Morrow had testified, and that in March of 2015, she participated in the
execution of a search warrant at defendant’s residence in Metairie, Louisiana.
Officer Taranto testified that during the November 19, 2014 controlled buy,
she observed a silver BMW pull into the meeting location set up between defendant
and Morrow. She then observed a black male, wearing a black sweatshirt with “O-
B-E-Y” written on it, exit the vehicle he was driving and conduct a hand-to-hand
drug transaction with Morrow. She further testified that during her surveillance of
the drug transactions conducted on November 19, 2014 and December 5, 2014, she
was able to obtain the license plate numbers from the vehicles driven by defendant
and discovered that the vehicle used in November was registered to a female named
Jasmine Chaney (defendant’s girlfriend), who resided in Metairie, Louisiana.
Further, the vehicle used in December 2014 was a rental car which had been rented
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under the name Jasmine Chaney. Officer Taranto testified that she performed a
traffic stop of the vehicle following the December 5, 2014 drug transaction and
confirmed defendant as the driver of the vehicle. A search of the vehicle driven by
defendant revealed a black sweatshirt with “O-B-E-Y” written on the front, a cell
phone, and two small bags of heroin.
Special Agent Christopher Bauer of the New Orleans Division of the FBI and
member of the Violent Crimes Task Force participated in the controlled buy on
November 19, 2014, during which he observed a silver BMW pull into the parking
lot at the meeting location alongside Morrow’s vehicle. He then observed a black
male wearing a sweatshirt with “O-B-E-Y” written across the front exit the BMW
and interact with Morrow. Special Agent Bauer also confirmed his participation in
the stop of defendant’s vehicle after the December 2014 controlled buy. Special
Agent Bauer indicated that defendant was arrested at the time of the stop, but was
subsequently released.
Special Agent Bauer testified that subsequent to defendant’s release, a warrant
was obtained for the search of defendant’s apartment. During the execution of the
search warrant, defendant was detained, and was found to have 26 small plastic
baggies containing heroin and eight pills that tested positive for Oxycodone in his
pants. Additionally, a Glock 17, Glock 29, Glock 21, an AK-47 rifle, ammunition,
multiple cell phones, a scale, and over $20,000 in cash were seized during the search
of the master bedroom in which defendant’s pants were located. Upon discovery of
the evidence, defendant admitted his ownership of “all the stuff in the house.”
FBI Special Agent Crystal Bender, also of the New Orleans Violent Crimes
Task Force, likewise testified regarding the various monitored phone conversations
between Morrow and defendant during which the narcotics transactions were
arranged, as well as the monitored video recordings of the controlled buys that took
place. Agent Bender explained that surveillance of the Metairie apartment was also
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conducted during which defendant was seen entering and exiting the residence. At
one time, defendant was seen exiting the apartment, approaching the driver of a
white sedan, leaning inside the vehicle, and retreating back into the apartment after
a couple of seconds.
Agent Bender further testified regarding a controlled buy between defendant
and an unnamed confidential informant on May 8, 2014, which was recorded on
video surveillance and played for the jury. Agent Bender identified defendant from
the video and confirmed that in exchange for $100, the confidential informant
received .31 grams of heroin. She explained that the quantity received was less than
the amount paid. A recorded phone conversation between defendant and the
confidential informant was played during which defendant explained that the reason
it was “short” was because it was “bricked up,” meaning it had been cut off of a
“solid piece.”
Sergeant Joshua Collins, an expert in the field of quantity, packaging, pricing,
and distribution of narcotics, testified that the 26 bags of heroin individually
packaged within a larger plastic bag weighing approximately 21 grams, the $20,000,
and the scale all found in defendant’s apartment are indicative of street-level
distribution.
A stipulation was accepted by the parties that Sergeant Joel O’Lear, an expert
in fingerprint examination and comparison, if called as a witness, would testify that
defendant’s fingerprints were those contained on the certified conviction packets,
establishing the prior felonies as alleged in counts two, three, five, and six.
The jury found defendant guilty as charged. The trial court sentenced
defendant on count one, to 50 years imprisonment at hard labor, with the first ten
years to be served without benefit of probation, parole, or suspension of sentence;
on each of counts two, three, five, and six, to 20 years imprisonment at hard labor to
be served without benefit of probation, parole, or suspension of sentence; and on
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count four, to two years imprisonment at hard labor. The trial court further ordered
defendant’s sentences on all counts to be served consecutively to each other.
On July 19, 2017, defendant filed a motion for out-of-time appeal, which was
granted by the trial court on July 24, 2017. On appeal, this Court affirmed
defendant’s convictions on all six counts. This Court affirmed the term of the
sentences imposed on each count, but vacated the consecutive nature of the
sentences, and amended the sentences by ordering that the sentences on each count
be served concurrently. State v. Hankton, 17-628 (La. App. 5 Cir. 7/31/18), 251
So.3d 1234, 1237, 1240, writ granted in part, 18-1457 (La. 5/20/19), 270 So.3d 569.
This Court also amended the sentence on count one to delete the parole restriction,
and as amended, affirmed all the sentences. Id.On appeal to the Louisiana Supreme Court, the Court granted defendant’s writ in
part, reversing the court of appeal’s decision only in that it amended the sentences,
and affirmed as amended. State v. Hankton, 18-1457 (La. 5/20/19), 270 So.3d 569.
The Supreme Court vacated defendant’s sentences and remanded the case to the trial
court for resentencing. Id. On remand, the Supreme Court ordered the trial court
“to resentence defendant to a punishment that is not unconstitutionally excessive and
to articulate its reasons for the sentences imposed, including as to whether some or
all of the sentences should be served consecutively.” Id.On remand, the trial court resentenced defendant on count one to 50 years
imprisonment at hard labor, with the first 10 years to be served without benefit of
probation or suspension of sentence (count one); on counts two, three, five, and six
to 20 years imprisonment at hard labor to be served without benefit of probation,
parole, or suspension of sentence; and on count four to 2 years imprisonment. The
trial court ordered defendant’s sentences on counts one, two, three, five, and six to
be served consecutively and count four to be served concurrently. These sentences
are substantially the same as the initial sentence, except that the sentence for
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possession of Oxycodone is 2 years instead of 4 years as in the initial sentence.
Defense counsel objected to the sentence and filed a motion for reconsideration, but
the motion was denied. This appeal followed.
LAW and ANALYSIS
In the instant appeal, post-resentencing, defendant asserts that the trial court
imposed an unconstitutionally excessive sentence. Defendant asserts that his
sentence of 130 years of imprisonment is unconstitutionally excessive because the
trial court imposed near maximum available sentences on each count and ordered
them to be served consecutively constituting needless and purposeless pain and
suffering. He argues that the trial court failed to justify ordering that sentences be
served consecutively under La. C.Cr.P. art. 883. He notes that he was 25 years old
at the time he committed the instant crimes, is a father of a young child, and that his
crimes are non-violent offenses. He further notes that this Court previously stated,
“The record contains scant evidence to support a finding that this case involved the
most serious violation of the offenses and the worst type of offender,” citing State v.
Hankton, 251 So.3d at 1247.
The State responds that the trial court did not abuse its broad sentencing
discretion and that the record supports the imposition of consecutive sentences in
five of the six counts. Below, we address whether the consecutive nature of
defendant’s sentence constitutes an excessive sentence.2
Error Patent in Sentencing
Ordinarily, we reserve discussion of errors patent until the end of an opinion,
but in this case it is logically discussed first. We reviewed the record for errors
patent pursuant to the mandates of La. C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d
2 Because defendant’s appeal focuses on the consecutive nature of his sentences, and this Court
previously considered and affirmed each of defendant’s individual sentences, we do not believe
it is necessary to address whether each individual sentence is excessive herein. Hankton, supra.
20-KA-388 6
337 (La. 1975); and State v. Weiland, 556 So.2d 175 (La. App. 5 Cir. 1990), and for
the following reasons, we find an error in the sentencing on count five.
Although the commitment minute entry and the Uniform Commitment Order
(UCO) indicate separate sentences on each count, the transcript from defendant’s
sentencing indicates otherwise for count five. The trial court must impose a separate
sentence for each separate count on which a defendant is convicted. See La. C.Cr.P.
art. 883; State v. Hebert, 02-1252 (La. App. 5 Cir. 4/8/03), 846 So.2d 60, 66. State
v. Narcisse, 01–49 (La. App. 5 Cir. 6/27/01), 791 So.2d 149, 155, writ denied, 01–
2231 (La. 6/14/02), 817 So.2d 1152. Patent sentencing error occurs when a trial
court, in sentencing for multiple counts, does not impose a separate sentence for each
count. State v. Joseph, 96-187 (La. App. 5 Cir. 11/14/96), 685 So.2d 237, 248, writ
granted in part and remanded, 96-2998 (La. 5/9/97), 693 So.2d 782.
When initially sentencing defendant on the four counts of felon in possession
of a firearm, the trial court mistakenly referred to count four, which is for the
possession of oxycodone, instead of count five. The sentencing transcript indicates
that the trial court sentenced defendant as follows:
Counts two, three, four, and six. I will sentence you to twenty years
at hard labor, Department of Corrections; that’s to be without
benefit of probation and parole, or suspension of sentence.
Counts two, three, four, and six are to be run consecutive.
Count four—I’m sorry, I might have got that wrong.
I’m sorry, it’s count two, three, five, and six, are to be run
consecutive. Those are the felon in possession of a firearm.
Count four is the possession of Oxycodone, Percocet.
I’ll sentence you to four years at hard labor, Department of
Corrections. I will run that concurrent.
As I state, counts one, two, three, five, and six, are to be run
consecutive to each other. Count four will be concurrent.
Based on the above, we find the transcript reflects that the trial court intended
defendant’s four counts of felon in possession of a firearm to receive the same
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sentence, which was twenty years at hard labor without the benefit of parole,
probation, or suspension of sentence. Specifically, we find that the trial court’s
statements that counts two, three, five, and six were to run consecutive reflect that
separate sentences were imposed for the felon in a possession of firearm counts.
However, while imposing the 20-year sentences on the felon in a possession
of a firearm counts, the trial court erroneously referred to count four, instead of count
five. Immediately noticing the oversight, the trial court made clear that count five—
not count four—was one of the counts to be served consecutively, but the court did
not actually sentence defendant on count five. As a result, we must vacate the
sentence on count five reflected in the commitment minute entry and the UCO, and
remand this matter for further proceedings on count five.
Excessiveness of the Remaining Sentences
The Eighth Amendment to the United States Constitution and Article I, § 20
of the Louisiana Constitution prohibit the imposition of excessive punishment. A
sentence is considered excessive, even if it is within the statutory limits, if it is
grossly disproportionate to the offense or imposes needless and purposeless pain and
suffering. State v. Dixon, 18-79 (La. App. 5 Cir. 8/29/18), 254 So.3d 828, 836, writ
not considered, 18-1909 (La. 2/18/19), 263 So.3d 1154, and writ denied, 18-1909
(La. 4/8/19), 267 So.3d 606. A sentence is grossly disproportionate if, when the
crime and punishment are considered in light of the harm done to society, it shocks
the sense of justice. Id.A trial judge has broad discretion when imposing a sentence and a reviewing
court may not set a sentence aside absent a manifest abuse of discretion. State v.
Dufrene, 12-716 (La. App. 5 Cir. 4/10/13), 115 So.3d 22, 26. In reviewing a trial
court’s sentencing discretion, three factors are considered: 1) the nature of the crime;
2) the nature and background of the offender; and 3) the sentence imposed for similar
crimes by the same court and other courts. State v. Pearson, 07-332 (La. App. 5 Cir.
20-KA-388 8
12/27/07), 975 So.2d 646, 656. The appellate court will not set aside a sentence for
excessiveness if the record supports the sentence imposed. La. C.Cr.P. art. 881.4 D.
In reviewing a sentence for excessiveness, the reviewing court shall consider
the crime and the punishment in light of the harm to society and gauge whether the
penalty is so disproportionate as to shock the court’s sense of justice, while
recognizing the trial court’s wide discretion. Courts also consider whether the
convictions arise out of a single course of criminal conduct. State v. Ortego, 382
So.2d 921 (La. 1980), cert. denied, 449 U.S. 848, 101 S.Ct. 135, 66 L.Ed.2d 58(1980). When two or more convictions arise from the same act or transaction, or
constitute parts of a common scheme or plan, the terms of imprisonment shall be
served concurrently unless the court expressly directs that some or all shall be served
consecutively. La. C.Cr.P. art. 883.
A trial judge retains discretion to impose consecutive sentences on the basis
of factors such as the offender’s past criminal acts, the violent nature of the charged
offenses, or the risk that the defendant may pose to the safety of the community.
State v. Baham, 14-653 (La. App. 5 Cir. 3/11/15), 169 So.3d 558, 571-72, writ
denied, 15-40 (La. 3/24/16), 190 So.3d 1189. If the trial court elects to impose
consecutive sentences for crimes arising from a single course of conduct, it must
articulate the reasons it feels the sentence is necessary. Id. Although the imposition
of consecutive sentences requires particular justification when the crimes arise from
a single course of conduct, consecutive sentences are not necessarily excessive. Id.The failure to articulate specific reasons for consecutive sentences does not require
remand if the record provides an adequate factual basis to support consecutive
sentences. State v. Blanchard, 03-612 (La. App. 5 Cir. 11/12/03), 861 So.2d 657, 664.
In determining a proper sentence, a trial judge is not limited to considering
only a defendant’s prior convictions, but may properly review all prior criminal
activity. State v. Arceneaux, 19-472 (La. App. 5 Cir. 1/29/20), 290 So.3d 313, 316,
20-KA-388 9
writ denied, 20-324 (La. 5/14/20), 296 So.3d 608. The sentencing court may rely on
sources of information usually excluded from the courtroom at the trial of guilt or
innocence, e.g., hearsay and arrests, and conviction records. State v. Myles, 94-217
(La. 6/3/94), 638 So.2d 218, 219. These matters may be considered even in the
absence of a proof the defendant committed the other offense. Arceneaux, 290 So.3d
at 316.
We recognize that this Court previously found defendant’s initial 132-year
sentence resulting from consecutive sentences unconstitutionally excessive.
Further, while La. C.Cr.P. art. 883 provides that the sentencing court need only
specifically state that sentences for crimes arising from a single event are to be
served consecutively, Louisiana courts have held that the sentencing court must give
reasons for consecutive sentences. State v. Baham, supra. The Louisiana Supreme
Court, after reviewing this case ordered the trial court “to resentence defendant to a
punishment that is not unconstitutionally excessive and to articulate its reasons for
the sentence imposed, including as to whether some or all of the sentence should be
served consecutively.” State v. Hankton, 270 So.2d at 569-70. Upon resentencing
defendant, the trial court considered the sentencing guidelines of La. C.Cr.P. art. 894.1,
including defendant’s extensive criminal history, the evidence at trial, defendant’s
history of distribution of heroin in the community, and that any lesser sentence
would deprecate the seriousness of the offenses.
On review of a trial court’s reasons or lack of reasons for consecutive
sentences for crimes arising from the same transaction, courts of appeal may also
consider factors evident from the trial record of the case. See Blanchard, supra. The
articulation of the factual basis for a sentence is the goal of La. C.Cr.P. art. 894.1,
not rigid or mechanical compliance with its provisions. Where the record clearly
shows an adequate factual basis for the sentence imposed, remand is unnecessary
even where there has not been full compliance with La. C.Cr.P. art. 894.1. State v.
20-KA-388 10
Lanclos, 419 So.2d 475 (La. 1982); State v. Hampton, 38,017 (La. App. 2 Cir.
1/28/04), 865 So.2d 284.
Looking to the record, we take into consideration generally the prohibited
substances which were sold by defendant; the store of prohibited substances later
seized pursuant to a warrant; the amounts and perniciousness of the drugs seized;
the facts and expert testimony which show that defendant was engaged in drug
dealing as an ongoing business; the alarming number of firearms seized; that
defendant’s wife and small child were living in his apartment; and the potential for
violence and serious harm to the public, including severe injury and homicides.
We further note that while the bill of information charges arose out of a single
event, i.e., the execution of the warrant on March 19, 2015, thorough evidence three
separate transactions (prior to seizures during execution of the warrant) was
introduced at trial showing that defendant sold heroin to undercover agents on
separate occasions.
Defendant’s criminal record shows that he is a repeat offender and career
criminal with a disregard for the law. Defendant has prior 2012 convictions of
aggravated battery, illegal possession of stolen firearm, illegal carrying of a firearm,
and possession of cocaine. Defendant also has 2017 convictions for manslaughter
and possession of heroin. The State indicated that defendant currently had a pending
case for three counts of second degree murder in an unrelated matter, and that
defendant was arrested for aggravated burglary on March 25, 2008, although those
charges were refused. The State further noted that there were other misdemeanor
arrests but did not provide specific information.
In addition, the evidence reflects that defendant was a serious drug dealer and
engaged in drug-related violence. Louisiana courts have recognized that the
legislature’s purpose in enacting laws that criminalize possession of a firearm while
also possessing a controlled substance was to prevent those engaged in drug use and
20-KA-388 11
distribution from engaging in the violent behavior. State v. Blanchard, 99-3439 (La.
1/18/01), 776 So.2d 1165, 1168-69. This statute was enacted not solely for the
protection of police officers but also for the protection of the general public. Id.Evidence at trial established that defendant had eight oxycodone pills, 26 baggies of
heroin, a scale, four firearms, and over $20,000 in cash in his apartment in which his
girlfriend and their four-year-old child were present. Defendant’s possession of four
loaded guns while in possession of a significant quantity of heroin could have
conceivably led to a violent outcome or injury to members of the public; thereby,
rendering the nature of these offenses far-reaching for sentencing purposes.
Defendant’s actions also illustrate a disregard for the welfare of others. State v.
Hankton, 251 So.3d at 1244, citing State v. Payne, 10-47 (La. App. 5 Cir. 1/25/11),
59 So.3d 1287, writ denied, 11-387 (La. 9/16/11), 69 So.3d 1141.
Further, the record supports the trial court’s reasoning that any lesser sentence
would deprecate the seriousness of these offenses, and that there is an undue risk
during the period of a suspended sentence or probation the defendant would commit
another crime. The evidence at trial established that defendant had an ongoing drug
distribution business involving the sale of heroin for a profit, in quantities
inconsistent with personal use.
In State v. Brown, the Louisiana Second Circuit Court of Appeal found that
an aggregate sentence of 170 years on convictions for illegal use of a weapon during
a crime of violence, three counts of possession of a firearm by a convicted felon,
intent to distribute a Schedule II controlled dangerous substance (CDS), and illegal
carrying of weapons while in possession of a CDS, which represented maximum
sentence for each offense, to be served consecutively, was not excessive, and, thus,
did not violate State Constitution. State v. Brown, 42,188 (La. App. 2 Cir. 9/26/07),
966 So.2d 727, 752-53, writ denied, 07-2199 (La. 4/18/08), 978 So.2d 347. In that
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case, defendant had an extensive criminal history involving crimes of violence and
narcotics-related offenses. Id. In particular, defendant was adjudicated a third
felony offender based on convictions for illegal use of a weapon during a crime of
violence and possession of a Schedule II CDS with intent to distribute, and a second
felony offender with regard to one of his convictions for possession of a firearm by
a convicted felon. Id.In light of the foregoing, and the trial court’s newly articulated consideration
of additional criminal charges pending against defendant, and on further
consideration of the record, we cannot say under these facts that defendant’s
aggregate 110-year sentence is unconstitutionally excessive, or that the trial court
abused its sentencing discretion in imposing consecutive sentences in this case. We
conclude that the determination that the sentences on the felon in a possession of a
firearm counts (counts one, two, three, and six) be served consecutively was within
the sound discretion of the trial court. Considering the defendant’s criminal history,
the seriousness of the offenses, the exposure and endangerment of a four-year-old
child, and the danger to the public, we conclude that the record supports the trial
judge’s sentence, and accordingly, we do not find defendant’s sentences
unconstitutionally excessive.
DECREE
For the reasons stated herein, we affirm defendant’s sentences on counts one,
two, three, four, and six. We vacate defendant’s sentence on count five and remand
this matter for further proceedings on count five.
SENTENCES ON COUNTS ONE, TWO, THREE, FOUR, AND
SIX AFFIRMED; SENTENCE ON COUNT FIVE VACATED;
CASE REMANDED
20-KA-388 13
STATE OF LOUISIANA NO. 20-KA-388
VERSUS FIFTH CIRCUIT
JULIUS HANKTON COURT OF APPEAL
STATE OF LOUISIANA
WICKER, J. DISSENTS WITH REASONS
For the following reasons, I respectfully dissent from the majority’s
opinion insofar as it finds that the trial judge did not abuse his discretion
in ordering the sentences for defendant’s four convictions for felon in
possession of a firearm in violation of La. R.S. 14:95.1 to be run
consecutively.
As this Court stated in its first opinion in this case, the record amply
justifies the individual sentences imposed by the trial court and the
individual sentences are not grossly disproportionate to the offenses or
impose needless and purposeless pain and suffering. State v. Hankton, 17-
628 (La. App. 5 Cir. 7/31/18), 251 So. 3d 1234, 1245, writ granted in
part, judgment rev’d in part, 18-1457 (La. 5/20/19), 270 So.3d 569.
However, although the individual sentences are supported, it remains my
position that “the aggregate of the four felon in possession of a firearm
convictions—all arising from the execution of one search warrant and
discovered together at the same time—is constitutionally excessive.” Id;
See also State v. Cann, 471 So.2d 701, 703 (La. 1985) (wherein the
Louisiana Supreme Court found that “although defendant was convicted
of four charges of distribution (one for marijuana and three for cocaine),
20-KA-388 1
each sale involved a relatively small amount of drugs, was separated from
the other sales by relatively short periods of time, and was made to the
same undercover policeman.” The Court determined that although each
sentence was supported, it was “the aggregate of the sentences that makes
them constitutionally excessive.”).
It is my opinion that removing the consecutive nature of defendant’s
sentences for his felon in possession of a firearm convictions would be
“supported by the jurisprudence, meet all of the societal goals of
incarceration for Defendant without imposing an undue financial burden
on the state, [would be] more proportionate to the crimes committed in the
instant case, and will eliminate the “purposeful imposition of pain and
suffering” element that is prohibited by the federal and state
constitutions.” State v. Hankton, 251 So.3d at1248.
Accordingly, for these reasons, I respectfully dissent.
20-KA-388 2
SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
NANCY F. VEGA
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON SUSAN S. BUCHHOLZ
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400
(504) 376-1498 FAX
www.fifthcircuit.org
NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
JULY 3, 2021 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT
REPRESENTED BY COUNSEL, AS LISTED BELOW:
20-KA-388
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE DONALD A. ROWAN, JR. (DISTRICT JUDGE)
ANDREA F. LONG (APPELLEE) THOMAS J. BUTLER (APPELLEE)
MAILED
BRUCE G. WHITTAKER (APPELLANT) HONORABLE PAUL D. CONNICK, JR.
ATTORNEY AT LAW DISTRICT ATTORNEY
LOUISIANA APPELLATE PROJECT DOUGLAS E. RUSHTON (APPELLEE)
1215 PRYTANIA STREET LYNN SCHIFFMAN (APPELLEE)
SUITE 332 SETH W. SHUTE (APPELLEE)
NEW ORLEANS, LA 70130 ASSISTANT DISTRICT ATTORNEYS
TWENTY-FOURTH JUDICIAL DISTRICT
200 DERBIGNY STREET
GRETNA, LA 70053