State of Louisiana Versus Kevin Johnson ( 2023 )

STATE OF LOUISIANA NO. 22-KH-300
VERSUS FIFTH CIRCUIT
KEVIN JOHNSON COURT OF APPEAL
STATE OF LOUISIANA
ON APPLICATION FOR SUPERVISORY REVIEW FROM THE
TWENTY-NINTH JUDICIAL DISTRICT COURT
PARISH OF ST. CHARLES, STATE OF LOUISIANA
NO. 18,669, DIVISION "D"
HONORABLE M. LAUREN LEMMON, JUDGE PRESIDING
August 09, 2023
STEPHEN J. WINDHORST
JUDGE
Panel composed of Judges Jude G. Gravois,
Stephen J. Windhorst, and Cornelius E. Regan, Pro Tempore
ENHANCED SENTENCE VACATED; REMANDED FOR
RESENTENCING
SJW
JGG
CER
COUNSEL FOR PLAINTIFF/RELATOR,
STATE OF LOUISIANA
Jeffrey M. Landry
J. Taylor Gray
Marko Marjanovic
COUNSEL FOR DEFENDANT/RESPONDENT,
KEVIN JOHNSON
Prentice L. White
WINDHORST, J.
Appellant, the State of Louisiana, seeks review of the trial court’s deviation
in sentencing appellee/defendant, Kevin Johnson, to sixteen years imprisonment at
hard labor under State v. Dorthey, 623 So.2d 1276 (1993), despite the mandatory
minimum sentence for a fourth-felony offender being twenty years imprisonment.
For the following reasons, we deny defendant’s motion to dismiss, grant the State’s
writ application, vacate defendant’s enhanced sentence and remand for resentencing.
PROCEDURAL ISSUE
Defendant filed a motion to dismiss, arguing that the State’s writ application
should be dismissed because the trial court granted his “Motion to Appeal Verdict
and Sentence.” The State filed an opposition asserting that at the time this writ
application was filed, no appeal was lodged with this court and the State properly
sought supervisory review of defendant’s sentence.
Defendant’s appeal was lodged with this court on August 16, 2022.
Defendant’s appellate brief, filed on September 22, 2022, only sought review of his
conviction, not his sentence. Pursuant to La. C.Cr.P. art. 881.2, the State may appeal
or seek review of a sentence if the sentence imposed was not in conformity with the
applicable enhancement provisions under the Habitual Offender Law, La. R.S.
15:529.1. Consequently, we find no grounds to dismiss the State’s properly filed
writ application. Accordingly, defendant’s motion is denied and this court’s
designation of this writ application and the appeal as companion cases is
maintained.1
PROCEDURAL HISTORY and FACTS
On January 15, 2019, the St. Charles Parish District Attorney’s Office filed a
bill of information charging defendant, Kevin Johnson, with distribution of
1 On August 16, 2022, pursuant to this court’s May 2021 en banc policy, these cases were designated as
companion cases.
22-KH-300 1
methamphetamine, in violation of La. R.S. 40:967 A(1). On November 10, 2021, a
six-person jury unanimously found defendant guilty as charged.2
On February 16, 2022, the State filed a habitual offender bill of information,
alleging defendant to be a fourth-felony offender pursuant to La. R.S. 15:529.1.
Defendant pled not guilty.
On May 2, 2022, an evidentiary hearing on the habitual offender bill of
information was conducted. At the conclusion of the hearing, the trial court
adjudicated defendant as a fourth-felony offender and sentenced defendant to sixteen
years imprisonment at hard labor without the benefit of probation3 or suspension of
sentence under Dorthey.4 In imposing defendant’s sentence, the trial court stated its
reasons in pertinent part:
So 15:529.1A(4) says that if a fourth or subsequent felony is
such that -- 4(a) says, with the fourth felony, the person shall be
sentenced to imprisonment for a term not less than the longest
prescribed for a first conviction but in no event less than 20 years and
not more than his natural life.
And then if you go in the same statute to the (i), if the court finds
that a sentence imposed under the provisions of this section would be
constitutionally excessive pursuant to the criteria set forth in State v.
Dorothy [sic], then the Court shall state for the record the reasons for
such finding and shall impose a most severe sentence that is not
constitutionally excessive.
And the defense has argued that it is excessive especially taken
[sic] into consideration his age, now 61. He was 60 at the time of the
conviction. I will also note that he did not plead guilty. He went to
trial in this case.
He has a military history, availed himself of the programs in jail;
has been a lifelong addict; has family support; and cooperated with
law enforcement.
2 For the reasons stated more fully in the companion case, State v. Johnson, 22-383 (La. App. 5 Cir.
08/09/23), this court affirmed defendant’s conviction for distribution of methamphetamine.
3 The sentencing minute entry reflects that defendant’s sentence was to be served without the benefit of
probation, parole, or suspension of sentence. However, the sentencing transcript reflects that the trial court
ordered the enhanced sentence to be served without benefit of probation or suspension of sentence as
required by La. R.S. 40:967 and La. R.S. 15:529.1 G. Because we are vacating defendant’s enhanced
sentence and remanding for resentencing, this issue is moot.
4 The trial court imposed only the enhanced habitual offender sentence on May 2, 2022. La. R.S. 15:529.1
D(3) requires that a trial court vacate defendant’s previous sentence only “if already imposed” before
sentencing him as a habitual offender. State v. Turner, 09-1079 (La. App. 5 Cir. 07/27/10), 47 So.3d 455,
460 n.8; State v. Bell, 00-1084 (La. App. 5 Cir. 02/28/01), 781 So.2d 843, 845, writ denied, 01-776 (La.
04/26/02), 813 So.2d 1098. Here, sentence on the underlying offense was not already imposed.
22-KH-300 2
I agree that [defendant] has a lifelong addiction.
I also agree with Ms. Tappen [sic]5 who has so much courage, first
of all, to decide to become clean. That in itself takes courage against
this monster disease, not because she is in jail, as a free person, and
also decided to take the stand and risk her life for doing this. I have
to take that into consideration. I admire Ms. Tappen [sic] for her
progress and I’ve seen her around for a very long time.
Considering everything, include State v. Dorothy [sic], at this
time, I’m going to -- including the consideration of David Wedge, and
[defendant] outing that to law enforcement, and considering the
maximum sentence of then ten years and the $50,000 fine for this
conviction.
With the totality of the circumstances, I’m going to sentence
[defendant] to 16 years at hard labor without the benefit of probation
or suspension sentence.
The trial court further stated “And based on State v. Dorothy [sic], because of his
cooperation with Kadrina Tappen [sic] and his age, I came down from four years
from the 20 to 16. It’s still a lot more than what David Wedge is doing for
threatening to kill somebody. That was a -- I don’t need to go there.”
The State noticed its intent to seek supervisory review of defendant’s
enhanced sentence and this writ application followed.
LAW and LEGAL ANALYSIS
On appeal, the State raises three assignments of error: (1) the trial court erred
by deviating from the mandatory minimum for a fourth-felony offender and
sentencing defendant to sixteen years imprisonment; (2) the trial court erred by
failing to articulate how the mandatory minimum sentence for a fourth-felony
offender violates defendant’s constitutional rights; and (3) the trial court erred by
failing to articulate how the sixteen-year sentence it imposed is the longest that
would not be constitutionally excessive.
5 The documents and evidence in the record indicate that the Kadrina’s last name is spelled Tappan, not
Tappen as indicated in only the May 2, 2022 transcript. For consistency purposes, we use “Tappan” as the
correct spelling.
22-KH-300 3
The State argues that the evidence established that defendant has a lengthy
criminal history and is not an appropriate candidate for a downward departure under
Dorthey, supra. Despite being charged as a fourth-felony offender, the State asserts
that defendant was an eighth-felony offender with both drug and victim crimes. The
State contends that while the trial court relied on other mitigating factors to justify a
downward departure from the mandatory minimum sentence of twenty years, the
trial court ignored defendant’s lengthy criminal history and “his clear status as a
recidivist,” which the Legislature specifically enacted the Habitual Offender Law to
address. The State maintains that nothing in this case or in defendant’s history
accounts for “unusual circumstances” that would justify the mandatory minimum
sentence being unconstitutionally excessive. Thus, the State avers that defendant
does not present one of the “rare” situations contemplated as grounds for deviation
of the mandatory minimum sentence under the Habitual Offender Law.
Additionally, the State contends that the trial court (1) did not articulate how
the mandatory minimum sentence of twenty years for a fourth-felony offender
violates defendant’s rights by being excessive under the circumstances; (2) did not
note the presumption of constitutionality of the fourth-felony offender sentence; and
(3) did not determine that defendant had rebutted the presumption of
constitutionality. The State asserts that the trial court “appeared to treat the matter
as a simple balancing test, weighing mitigating factors against aggravating factors,”
which was inappropriate. In this case, defendant was required to prove by clear and
convincing evidence that the mandatory minimum sentence would result in a
sentence that is constitutionally excessive, which the State asserts no such showing
was made. Moreover, the State contends that the trial court did not articulate specific
reasons why the sentence imposed is the longest sentence which is not excessive
under the Louisiana Constitution. Accordingly, the State avers that the trial court
22-KH-300 4
abused its discretion in granting defendant’s request for a downward departure from
the mandatory minimum under Dorthey, supra.
In opposition, defendant contends that the trial court did not abuse its
discretion in considering the “unique” mitigating factors that were discussed during
the habitual offender hearing. Defendant asserts that at time of his conviction, he
was 60 years old, a drug addict, and his criminal record illustrates his inability to
overcome his addiction. Defendant contends that the law enforcement officers
testified that he was cordial and cooperative with them as they gathered information
for the pre-sentencing report, that he did not have any crimes of violence, and that
he did not engage in any egregious behavior that warranted a sentence at the high
end of the sentencing range. Defendant states that the testimony and evidence also
showed that he (a) participated in several programs while incarcerated; (b) he is a
native of the St. Charles Parish area; (c) he has family members willing to provide
him with a place to live; (d) he was honorably discharged from the United States
Army; and (e) he notified law enforcement that a fellow inmate threatened Ms.
Tappan’s life. Additionally, defendant asserts that Ms. Tappan testified that he
informed officers about the threat on her life.
Defendant contends that the trial court articulated each of the above factors it
considered in determining that the twenty-year mandatory minimum sentence was
“too severe for this defendant.” Defendant avers that the trial court was impressed
with Ms. Tappan, who was able to become “clean and sober” after a life of drug
addiction. Defendant contends that the trial court also mentioned his cooperation
with law enforcement in informing them about the threat to Ms. Tappan’s life, noting
that his sentence of sixteen years was “more than the sentence imposed on this
vengeful inmate, who was convicted of distribution of illegal drugs as well as
obstruction of justice.” Defendant contends that the trial court also heard how the
State did not file a habitual offender bill of information against the individual that
22-KH-300 5
threatened Ms. Tappan’s life. Accordingly, defendant avers that this court should
deny the State’s writ application, finding that the trial court’s articulated reasons for
deviation from the mandatory minimum sentence for a fourth-felony offender met
the requirements of Dorthey, supra, and State v. Johnson, 97-1906 (La. 03/04/98),
709 So.2d 672.
The Eighth Amendment to the United States Constitution and Article I, § 20
of the Louisiana Constitution prohibit the imposition of excessive punishment.
Although a sentence is within statutory limits, it can be reviewed for constitutional
excessiveness. State v. Smith, 01-2574 (La. 01/14/03), 839 So.2d 1, 4. A sentence
is considered excessive if it is grossly disproportionate to the offense or imposes
needless and purposeless pain and suffering. Id. 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. State v. Lawson, 04-334 (La.
App. 5 Cir. 09/28/04), 885 So.2d 618, 622.
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.
Williams, 03-3514 (La. 12/13/04), 893 So.2d 7, 16. The issue on appeal is whether
the trial court abused its discretion, not whether another sentence might have been
more appropriate. Id. at 16-17; State v. Dorsey, 07-67 (La. App. 5 Cir. 05/29/07),
960 So.2d 1127, 1130. The appellate court shall not set aside a sentence for
excessiveness if the record supports the sentence imposed. State v. Pearson, 07-332
(La. App. 5 Cir. 12/27/07), 975 So.2d 646, 656. 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. Id.Pursuant to its sole authority under the Louisiana Constitution Article 3, §1,
the Legislature enacted the Habitual Offender Law to define conduct as criminal and
22-KH-300 6
to provide penalties for such conduct. State v. Lindsey, 99-3302 (La. 10/17/00), 770
So.2d 339, 342, cert. denied, 532 U.S. 1010, 121 S.Ct. 1739, 149 L.Ed.2d 663(2001). The supreme court has repeatedly held that the habitual offender statute is
constitutional. Id. Consequently, the mandatory minimum sentences the statute
imposes upon habitual offenders are presumed to be constitutional and should be
accorded great deference by the judiciary. Id. Nevertheless, courts have the power
to declare a sentence excessive under the Louisiana Constitution Article 1, §20 even
though it falls within the statutory limits provided by the Legislature. Id.; Johnson,
709 So.2d at 676. However, the trial court should exercise its authority to declare a
mandatory minimum sentence excessive only under rare circumstances. Lindsey,
770 So.2d at 345.
In Dorthey, the Louisiana Supreme Court recognized that a mandatory
minimum sentence under the Habitual Offender Law may still be reviewed for
constitutional excessiveness. Dorthey, 623 So.2d at 1280-1281. The trial court may
reduce a defendant’s sentence to one not constitutionally excessive if the trial court
finds that the sentence mandated by the Habitual Offender Law “makes no
measurable contribution to acceptable goals of punishment” or is nothing more than
“the purposeful imposition of pain and suffering” and “is grossly out of proportion
to the severity of the crime.” Id.
In Johnson, the Louisiana Supreme Court re-examined Dorthey and outlined
the criteria a defendant must meet in order to show that a mandatory minimum
sentence under the Habitual Offender Law is constitutionally excessive. Johnson,
709 So.2d at 676. A trial court may only depart from the mandatory minimum
sentence if it finds that there is clear and convincing evidence in the particular case
before it which would rebut the presumption of constitutionality. Id.
In determining whether the defendant has met his burden, the trial court may
not rely solely upon the non-violent nature of the present crime or of past crimes as
22-KH-300 7
evidence which justifies rebutting the presumption of constitutionality. Id.
Although the classification of defendant’s instant or prior offenses as non-violent
should not be discounted, this factor has already been taking into account under the
Habitual Offender Law for third and fourth offenders. Id.; La. R.S. 15:529.1. The
Legislature, with its power to define crimes and punishments, has already made a
distinction in sentences between those who commit crimes of violence and those
who do not. Id. Consequently, while a defendant’s record of non-violent offenses
may play a role in a sentencing judge’s determination that a minimum sentence is
too long, it cannot be the only reason, or even the major reason, for declaring a
sentence excessive. Id.
The trial court must also keep in mind the goals of the Habitual Offender Law,
which are to deter and punish recidivism. Id. at 677. It is not the role of the trial
court to question the wisdom of the Legislature in requiring enhanced punishments
for habitual offenders. Id. Thus, the trial court is only allowed to determine whether
the particular defendant before it has proven that the mandatory minimum sentence
is so excessive in his case that it violates the constitution. Id.
Therefore, to rebut the presumption that a mandatory minimum sentence is
constitutional, the defendant must clearly and convincingly show that:
[he] is exceptional, which . . . 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.
Id., citing State v. Young, 94-1636 (La. App. 4 Cir. 10/26/95), 663
So.2d 525, 531 (Plotkin, J., concurring).
If the trial court finds clear and convincing evidence which justifies a deviation from
the mandatory minimum sentence under the Habitual Offender Law, it is not free to
sentence defendant to any sentence it feels is appropriate under the circumstances.
Johnson, 709 So.2d at 677. The trial court must make a sufficient showing on the
record and articulate how the imposition of the statutorily mandated minimum
22-KH-300 8
sentence would be constitutionally excessive under the facts of the particular case
and the trial court’s justification as to why the sentence imposed instead of the
statutory mandatory minimum sentence is the longest sentence which is not
excessive under the constitution. See State v. Gordon, 96-427 (La. 05/10/96), 672
So.2d 669, 669; Johnson, 709 So.2d at 677.
In the instant case, defendant was convicted of distribution of
methamphetamine in violation of La. R.S. 40:967 A(1). At the time of this offense,
La. R.S. 40:967 B(1)(a) provided that an individual who is convicted of distribution
of methamphetamine weighing less than twenty-eight grams shall be imprisoned,
with or without hard labor, for not less than one year nor more than ten years.
Subsequently, the State filed a habitual offender bill of information alleging
defendant to be a fourth-felony offender. After a contradictory hearing, defendant
was adjudicated a fourth-felony offender.6 Pursuant to La. R.S. 15:529.1 A(4), if
the fourth or subsequent felony is such that, upon a first conviction the offender
would be punishable by imprisonment for any term less than his natural life, then
the offender shall be sentenced to a determinate term not less than the longest
prescribed for a first conviction but in no event less than twenty years and not more
than his natural life. Consequently, defendant was subject to an enhanced sentence
of twenty years imprisonment to life imprisonment at hard labor without the benefit
of probation or suspension of sentence. The trial court sentenced defendant as a
fourth-felony offender to sixteen years imprisonment at hard labor without probation
or suspension of sentence under Dorthey.
6 The habitual offender bill of information alleged that defendant (1) pled no contest on October 6, 2015, to
distribution of cocaine in violation of La. R.S. 40:967 A(1) in case number 15-0477 in the 29th Judicial District
Court; (2) pled guilty on February 27, 2013, to possession of cocaine in violation of La. R.S. 40:967 C in
case number 12-0463 in the 29th Judicial District Court, and (3) pled guilty on December 20 2006, to
possession of cocaine in violation of La. R.S. 40:967 C in case number 06-CR-000474 in the 29th Judicial
District Court. The trial court found that the State met its burden and the testimony and evidence, including
defendant’s testimony, established that defendant was a fourth-felony offender. Defendant did not contest
the trial court’s ruling and he did not appeal this issue.
22-KH-300 9
Upon review of the facts and law, and the factors argued by defendant, we
find the reasons stated by the trial court for finding defendant exceptional are not
sufficient to warrant a downward deviation from the mandatory minimum sentence
of twenty years for a fourth-felony offender.7 The trial court stated in its reasons the
defendant’s age, military history, drug addition, family support, and the court’s
recognition that defendant went to trial as opposed to pleading guilty. These facts
do not constitute clear and convincing evidence that defendant is exceptional. Nor
did defendant’s eventual cooperative behavior during incarceration and his
participation in jail programs provided for his benefit make him exceptional at the
time he was sentenced. Further, these factors are rewarded when considered in
support of parole, and further, are used in calculation of diminution of sentence and
early release for good behavior under La. R.S. 15:571.4.
Additionally, the court’s consideration of (1) the assertion that the CI, Ms.
Tappan, to whom defendant sold methamphetamine, is now sober; and (2) the
sentence another individual received for threatening Ms. Tappan’s life, or whether
the State filed a habitual offender bill of information against that individual in a
different case, are not relevant factors that make defendant exceptional in this case.
We find that the various reasons stated by the trial court do not amount to
clear and convincing evidence sufficient to satisfy Johnson, supra. The habitual
offender statute and sentence for a fourth-felony offender are presumed to be
constitutional and to rebut this presumption, defendant was required to show by clear
and convincing evidence that he is exceptional. Defendant did not “clearly and
7 See State v. Boeh, 20-461 (La. App. 1 Cir. 04/16/21), 324 So.3d 653, 665, writ denied, 21-689 (La.
10/05/21), 325 So.3d 379; State v. Mathis, 18-678 (La. App. 5 Cir. 04/03/19), 268 So.3d 1160, writ denied,
19-731 (La. 11/05/19), 281 So.3d 677; State v. Noble, 13-1109 (La. App. 4 Cir. 02/12/14), 133 So.3d 703,
writ denied, 14-795 (La. 11/14/14), 152 So.3d 878; State v. Williams, 14-630 (La. App. 4 Cir. 12/18/14), 158
So.3d 107, 112-113; State v. Daughtry, 14-213 (La. App. 1 Cir. 09/19/14) 2014WL4668652 (unpublished
opinion)(not designated for publication), writ denied, 14-2074 (La. 05/01/15), 169 So.3d 370; State v. Noble,
12-1923 (La. 04/19/13), 114 So.3d 500, 501 (per curiam); State v. Nelson, 10-997 (La. App. 1 Cir. 12/22/10)
2010WL5442002 (unpublished opinion)(not designated for publication), writ denied, 11-180 (La. 06/03/11),
63 So.3d 1007; State v. Mead, 44,447 (La. App. 2 Cir. 07/01/09), 16 So.3d 470, 473-476, writ denied, 09-
2065 (La. 04/09/10), 31 So.3d 388; State v. Hebert, 05-1004 (La. App. 5 Cir. 04/25/06), 930 So.2d 1039,
1050-1051; State v. O’Neal, 36,431 (La. App. 2 Cir. 10/23/02), 830 So.2d 408; State v. Harbor, 01-1261
(La. App. 5 Cir. 04/10/02), 817 So.2d 223, 227-228, writ denied, 02-1489 (La. 05/09/03), 843 So.2d 388.
22-KH-300 10
convincingly” show that he is “exceptional.” He failed to cite any unusual or
exceptional circumstances to show that he is a victim of the legislature’s failure to
assign a sentence meaningfully tailored to his culpability, to the circumstances of his
case, and to his status as a fourth-felony offender. Through his behavior defendant
has shown a propensity toward repeated criminality over a long period of time.
Although the State filed a habitual offender bill of information alleging defendant to
be a fourth-felony offender, the testimony at the hearing indicated that defendant had
seven or eight felony convictions and defendant admitted that he had at least seven
convictions.
Moreover, although the trial court cited Dorthey in its reasons, the trial court
did not state sufficient reasons, nor does the record show, that the mandatory
minimum sentence violates defendant’s constitutional rights as excessive under
these facts, and thus did not justify its reduction of the sentence from twenty years
to sixteen years imprisonment upon its finding that sixteen years is the longest
sentence that would not be constitutionally excessive.
Accordingly, we find the trial court abused its discretion by deviating from
the mandatory minimum sentence required by the Habitual Offender Law when
sentencing defendant as a fourth-felony offender. We therefore vacate defendant’s
enhanced sentence and remand for resentencing consistent with the principles
enunciated in this opinion, Dorthey, supra and Johnson, supra.
DECREE
For the reasons stated above, we deny defendant’s motion to dismiss, grant
the State’s writ application, vacate defendant’s enhanced sentence and remand for
resentencing.
ENHANCED SENTENCE VACATED;
REMANDED FOR RESENTENCING
22-KH-300 11
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
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AUGUST 9, 2023 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT
REPRESENTED BY COUNSEL, AS LISTED BELOW:
22-KH-300
E-NOTIFIED
29TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE M. LAUREN LEMMON (DISTRICT JUDGE)
J. TAYLOR GRAY (RELATOR)
MAILED
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