State of Louisiana Versus Jeremy M. Dubourg ( 2023 )

STATE OF LOUISIANA NO. 22-KA-342
VERSUS FIFTH CIRCUIT
JEREMY M. DUBOURG COURT OF APPEAL
STATE OF LOUISIANA
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 21-341, DIVISION "E"
HONORABLE FRANK A. BRINDISI, JUDGE PRESIDING
March 01, 2023
MARC E. JOHNSON
JUDGE
Panel composed of Judges Marc E. Johnson,
Robert A. Chaisson, and Stephen J. Windhorst
HABITUAL OFFENDER SENTENCE VACATED;
REMANDED WITH INSTRUCTIONS
MEJ
RAC
SJW
COUNSEL FOR DEFENDANT/APPELLANT,
JEREMY M. DUBOURG
Bruce G. Whittaker
COUNSEL FOR PLAINTIFF/APPELLEE,
STATE OF LOUISIANA
Honorable Paul D. Connick, Jr.
Thomas J. Butler
Anne M. Wallis
Zachary P. Popovich
Gabrielle Hosli
JOHNSON, J.
Defendant, Jeremy M. Dubourg, appeals his six-year habitual offender
sentence rendered in the 24th Judicial District Court, Division “E”. For the
following reasons, we vacate Defendant’s habitual offender sentence and remand
the matter to the trial court with instructions.
PROCEDURAL HISTORY
On March 8, 2021, the Jefferson Parish District Attorney filed a bill of
information charging Defendant with battery of a dating partner by strangulation in
violation of La. R.S. 14:34.9(L). On March 17, 2021, Defendant was arraigned
and pleaded not guilty.
Several motions and notices were filed. On February 14, 2022, the bill was
amended to change the date from on or about January 18, 2021, to on or about
January 17 to 18, 2021.1 On February 15, 2022, trial began, and a 12-person jury
unanimously found Defendant guilty as charged. On March 9, 2022, Defendant
filed a motion for post verdict judgment of acquittal and a motion for new trial.
Both were denied on March 10, 2022. Also on March 10, 2022, after denying the
motions, the trial judge sentenced Defendant to three years imprisonment at hard
labor.
On March 18, 2022, Defendant filed a motion for appeal, wherein he
appealed the February 15, 2022 conviction, the sentence imposed on March 10,
2022, and the habitual offender adjudication and sentence on May 25, 2022.2 On
1
The date or time of the commission of an offense need not be alleged in the indictment, unless
the date or time is essential to the offense. La. C.Cr.P. art. 468. The date of the charged offense of
battery of a dating partner by strangulation is not an essential element. See La. R.S. 14:34.9(L). The
amendment regarding the date range of the offense did not alter the substance of the charge against
defendant. As such, he did not need to be re-arraigned after the amendment.
2
The filing of the motion for appeal was premature as to the habitual offender bill. It is noted
that the motion for appeal was filed prior to the habitual offender bill adjudication and sentence, and even
prior to the filing of the habitual offender bill. The motion was predicted and included the accurate dates
of the habitual offender bill adjudication and sentence. The premature filing of the motion for appeal was
cured by the subsequent re-sentencing. See State v. Williams, 02-852 (La. App. 5 Cir. 1/28/03), 839
So.2d 348, 357, writ denied, 03-596 (La. 6/6/03), 845 So.2d 1089; State v. Roussel, 00-192 (La. App. 5
Cir. 7/25/00), 767 So.2d 811, 812 n.2, writ denied, 00-2558 (La. 10/5/01), 798 So.2d 960.
22-KA-342 1
April 21, 2022, the State filed a habitual offender bill of information, wherein it
alleged that on May 16, 2019, Defendant pleaded guilty to and was sentenced to
two years imprisonment at hard labor for battery of a dating partner by
strangulation in violation of La. R.S. 14:34.9(L).3
On May 25, 2022, the trial judge adjudicated Defendant a second-felony
offender. The judge vacated the original sentence and imposed an enhanced
sentence of six years imprisonment at hard labor. Defendant’s motion for appeal
was granted on May 27, 2022, and the instant appeal followed.
ASSIGNMENT OF ERROR
On appeal, Defendant alleges that the trial court abused its discretion by
imposing an excessive sentence.
LAW AND ANALYSIS
Errors Patent Review
The record was reviewed for errors patent, according to La. C.Cr.P. art.
920;4 State v. Oliveaux, 312 So.2d 337 (La. 1975); and State v. Weiland, 556 So.2d
175 (La. App. 5th Cir. 1990). The following error mandates corrective action,
which requires us to pretermit our discussion of Defendant’s assignment of error.
In this matter, the trial court sentenced Defendant to three years
imprisonment. La. R.S. 14:35.3(C) provides in part:
On a first conviction, notwithstanding any other provision of
law to the contrary, the offender shall be fined not less than three
hundred dollars nor more than one thousand dollars and shall be
imprisoned for not less than thirty days nor more than six months. At
least forty-eight hours of the sentence imposed shall be served without
benefit of parole, probation, or suspension of sentence.
3
The certified conviction packet shows that Defendant pleaded guilty to battery of a dating
partner by strangulation in violation of La. R.S. 14.34.9(K), which was the subsection regarding
strangulation at the time of the prior offense.
4
La. C.Cr.P. art. 920(2) states that an error patent is “[a]n error that is discoverable by an
inspection of the pleadings and proceedings and without inspection of the evidence.”
22-KA-342 2
La. R.S. 14:35.3(C) provides that, at least, 48 hours of the sentence imposed
shall be served without benefit of parole, probation, or suspension of sentence.
Here, the record reflects that Defendant’s original sentence was not imposed with
the restriction of benefits for any period of time. La. R.S. 15:301.1(A) provides
that the statutory restrictions, even if they are not recited at sentencing, are deemed
to be contained in the sentence and are therefore statutorily effective. State v.
Thomas, 20-97 (La. App. 5 Cir. 11/4/20), 306 So.3d 568, 578.
Generally, when a trial court does not mention the restriction of benefits,
such conditions are deemed to exist by operation of law under La. R.S. 15:301.1.
State v. Shelby, 18-186 (La. App. 5 Cir. 12/27/18), 263 So.3d 1223, 1228 (citing
State v. Williams, 00-1725 (La. 11/28/01), 800 So.2d 790, 801). However, in this
case, the trial court’s failure to impose the statutory restrictions is not cured by La.
R.S. 15:301.1 because the portion of the sentence to be served without the benefit
of parole, probation, or suspension of sentence is left to the discretion of the trial
court. Nevertheless, the trial court vacated the sentence prior to resentencing
Defendant as a second-felony offender, and this issue pertaining to the original
sentence is now moot. See Thomas, 306 So.3d at 579.
However, we find that Defendant’s enhanced sentence is also illegally
lenient. La. R.S. 14:35.3(C) provides that at least 48 hours of the sentence
imposed shall be served without benefit of parole, probation, or suspension of
sentence. The trial court imposed an enhanced sentence of six years imprisonment
but did not restrict any benefits. While La. R.S. 15:529.1(G) requires all habitual
offender sentences to be imposed without benefit of probation or suspension of
sentence, it does not impose a parole restriction. Rather, when a defendant is
sentenced as a habitual offender, it is the penalty provision for the underlying
offense that imposes a parole restriction. State v. Ard, 20-221 (La. App. 5 Cir.
4/28/21), 347 So.3d 1046, 1060.
22-KA-342 3
In State v. Smith, 09-100 (La. App. 5 Cir. 8/25/09), 20 So.3d 501, this Court
found on errors patent review that the defendant received an illegally-lenient
sentence because the trial judge did not impose the disability against parole. This
Court stated that because the trial court did not restrict parole in any way in
imposing the enhanced sentence and the statute required an exercise of the trial
court’s sentencing discretion in limiting parole eligibility, it vacated the
defendant’s sentence and remanded the case for resentencing in accordance with
the underlying statute. Id. at 509. Upon finding this sentencing error patent, this
Court pretermitted the majority of the defendant’s assigned errors,5 including an
error that his sentence was excessive. Id. at 502. See also State v. Clifton, 17-538
(La. App. 5 Cir. 5/23/18), 248 So.3d 691.
As previously stated, when a trial court does not mention the restriction of
benefits, such conditions are deemed to exist by operation of law under La. R.S.
15:301.1. Williams, supra. Here, the trial court’s failure to impose the statutory
restrictions are not cured by La. R.S. 15:301.1 because the portion of the sentence
to be served without the benefit of parole is left to the discretion of the trial court.
Ard, supra. Therefore, we vacate Defendant’s sentence and remand the matter to
the trial court for resentencing. We order the trial court to impose Defendant’s
enhanced sentence in accordance with the provisions of the underlying statute, La.
R.S. 14:35.3(C), as it relates to the restriction of parole. See Ard, supra; State v.
Napoleon, 11-530 (La. App. 5 Cir. 1/24/12), 87 So.3d 127. We further order the
trial judge that upon resentencing Defendant, the trial judge provide an advisal
regarding the prescriptive period in compliance with La. C.Cr.P. art. 930.8(A). See
Smith, 20 So.3d at 510.
5
This Court addressed the defendant’s assignment of error regarding a non-unanimous jury
verdict and affirmed the conviction. This Court pretermitted addressing the following assignments:
excessive sentence, failure to comply with La. C.Cr.P. art. 894.1, and denial of motion to reconsider
sentence, in the alternative, if the motion to reconsider is deemed untimely, counsel was ineffective for
failing to preserve the defendant’s rights to object to the sentence.
22-KA-342 4
Accordingly, we pretermit discussion of whether Defendant’s enhanced
sentence is excessive at this time.
DECREE
For the foregoing reasons, we vacate Defendant’s habitual offender sentence
and remand the matter to the trial court with the above-mentioned instructions.
HABITUAL OFFENDER SENTENCE VACATED;
REMANDED WITH INSTRUCTIONS
22-KA-342 5
SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON LINDA M. WISEMAN
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
JOHN J. MOLAISON, JR.
CORNELIUS E. REGAN, PRO TEM 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
MARCH 1, 2023 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT
REPRESENTED BY COUNSEL, AS LISTED BELOW:
22-KA-342
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE FRANK A. BRINDISI (DISTRICT JUDGE)
ANNE M. WALLIS (APPELLEE) DARREN A. ALLEMAND (APPELLEE) THOMAS J. BUTLER (APPELLEE)
MAILED
BRUCE G. WHITTAKER (APPELLANT) GABRIELLE HOSLI (APPELLEE)
ATTORNEY AT LAW HONORABLE PAUL D. CONNICK, JR.
LOUISIANA APPELLATE PROJECT (APPELLEE)
POST OFFICE BOX 791368 ZACHARY P. POPOVICH (APPELLEE)
NEW ORLEANS, LA 70179 ASSISTANT DISTRICT ATTORNEYS
TWENTY-FOURTH JUDICIAL DISTRICT
200 DERBIGNY STREET
GRETNA, LA 70053