State Of Louisiana v. Joshua Tarez Willis ( 2020 )

NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA
COURT OF APPEAL
J FIRST CIRCUIT
a
Z 2019 KA 1236
STATE OF LOUISIANA
VERSUS
JOSHUA TAREZ WILLIS
DATE OF JUDGMENT.
FEB 2 61020
ON APPEAL FROM THE TWENTY-FIRST JUDICIAL DISTRICT COURT
NUMBER 35832, DIVISION E, PARISH OF LIVINGSTON
STATE OF LOUISIANA
HONORABLE BRENDA BEDSOLE RICKS, JUDGE
Scott M. Perrilloux Counsel for Appellee
District Attorney State of Louisiana
Jeffrey J. Hand
Brad J. Cascio
Patricia Amos
Assistant District Attorneys
Prentice Lang White Counsel for Defendant -Appellant
Baton Rouge, Louisiana Joshua Tarez Willis
BEFORE: McDONALD, THERIOT, AND CHUTZ, JJ.
CHUTZ, I
Defendant, Joshua Tarez Willis, was charged by bill of information with
aggravated assault upon a peace officer, a violation of La. R.S. 14: 37. 2 ( count one),
aggravated flight from an officer where human life is endangered, a violation of La.
R.S. 14: 108. 1 ( count two), resisting an officer with force or violence, a violation of
La. R.S. 14: 108. 2( A)(3) ( count three), possession of a schedule II controlled
dangerous substance ( cocaine), a violation of La. R. S. 40: 967( C)( 2) ( count four),
and possession of a firearm by a convicted felon, a violation of La. R.S. 14: 95. 1
count five). He pled not guilty. Counts three and four were dismissed before trial.
After a trial by jury, defendant was found guilty as charged of counts two and five,
and not guilty of count one. The trial court imposed concurrent terms of five years
count two) and twenty years ( count five) imprisonment at hard labor, the latter
sentence to be served without the benefit of probation, parole, or suspension of
sentence. The trial court also ordered defendant to pay a $ 1, 000 fine on count five.
Following a habitual offender adjudication, the trial court vacated defendant' s
sentence on count two and resentenced him to ten years imprisonment at hard labor
without the benefit of parole, probation, or suspension of sentence.' Defendant filed
unsuccessful motions to reconsider both his original sentence and his habitual
offender adjudication and sentence. Defendant now appeals. For the following
reasons, we affirm the convictions and sentences.
STATEMENT OF FACTS
On June 10, 2017, Livingston Parish Sheriff' s Office Deputy Ryan Bernard
observed defendant driving erratically from lane to lane on I- 12, swerving in his
1 When the trial court originally sentenced defendant on counts two and five, the court indicated
the sentences were concurrent. However, the sentencing transcript reflects that when the trial court
vacated the sentence on count two and imposed a ten- year habitual offender sentence, the court
did not state the sentence was concurrent to the sentence imposed on count five. Nevertheless,
because the sentences are for two offenses arising from the same act or transaction, the sentences
are concurrent under La. C. CrR art. 883, since the trial court did not " expressly" direct that they
be served consecutively.
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lane, and slowing to 50 MPH in a 70 MPH zone. Deputy Bernard initiated a traffic
stop of defendant' s vehicle. On being questioned, defendant was unable to provide
a driver' s license and gave Deputy Bernard a false name. After Deputy Bernard
walked back to his marked police vehicle, another deputy, who was present for the
traffic stop, yelled " gun," at which time defendant drove off. Defendant drove
through the median traveling westbound in the eastbound lane, lost control, went
back through the median traveling eastbound in the westbound lane, and then went
back through the median once more traveling eastbound on the eastbound side of I-
12. In total, defendant crossed the median on three separate occasions. During
Deputy Bernard' s pursuit, defendant accelerated to approximately 100 MPH, while
continuing to drive erratically and almost hitting another car driven by a civilian
motorist.
When defendant finally exited the interstate, he failed to stop at a stop sign
and could not control his vehicle, which ultimately " barrel rolled" several times.
Defendant then exited through the back hatch and ran away, running through several
yards. Defendant was eventually located in a nearby field and arrested. A gun was
recovered from defendant' s vehicle. Defendant stipulated to a prior felony
conviction.
EXCESSIVE SENTENCE
Assignment of Error Number One)
On appeal, defendant contends the trial court' s imposition of a maximum
sentence of 20 years imprisonment at hard labor without the benefit of parole,
probation, or suspension of sentence for being a felon in possession of a firearm is
excessive.2 Defendant also complains that the trial court' s basis for the sentence is
2 In the sole assignment of error asserted in his brief, defendant only identifies his habitual offender
sentence on count two (aggravated flight from an officer) as being excessive, but in his stated issue
for review, he also claims that his twenty-year sentence on count five (possession of a firearm by
a convicted felon) is excessive. In his argument, however, defendant only addresses his twenty-
year sentence on count five. Consequently, as defendant failed to brief the claim of excessiveness
with respect to the habitual offender sentence for aggravated flight from an officer, that claim is
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unknown since the mitigating and aggravating factors of La. Code Crim. P. art. 894. 1
were not detailed on the record by the court. The State argues defendant' s sentences
are not excessive.
The Eighth Amendment to the United States Constitution and Article I, § 20,
of the Louisiana Constitution prohibit the imposition of cruel or excessive
punishment.
Although a sentence falls within statutory limits, it may be excessive.
State v. Sepulvado, 367 So.2d 762, 767 (La. 1979); State v. James, 2016- 1250 ( La.
App. 1st Cir. 2/ 17/ 17), 215 So. 3d 269, 271. A sentence is considered
unconstitutionally 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 the sense
of justice. 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. State v. Spikes, 2017- 0087 ( La. App. 1st Cir.
9/ 15/ 17), 228 So. 3d 201, 204. Louisiana Code of Criminal Procedure article 894. 1
sets forth the factors for the trial court to consider when imposing sentence. While
the entire checklist of La. Code of Crim. P. art. 894. 1 need not be recited, the record
must reflect the trial court adequately considered the criteria. State v. Letell, 2012-
0180 ( La. App. 1st Cir. 10/ 25/ 12), 103 So. 3d 1129, 1138, writ denied, 2012- 2533
La. 4/ 26/ 13), 112 So. 3d 838.
The articulation of the factual basis for a sentence is the goal of La. Code
Crim. 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 the trial court has not fully complied with La. Code Crim.
deemed abandoned. See Uniform Rules of Louisiana Courts of Appeal, Rule 2- 12. 4( B)( 4); State
v. Ferguson, 2015- 0427 ( La. App. 1st Cir. 9/ 18/ 15), 181 So. 3d 120, 141, writ denied, 2015- 1919
La. 11/ 18/ 16), 210 So. 3d 282.
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P. art. 894. 1. State v. Lanclos, 419 So. 2d 475, 478 ( La. 1982); State v. Ducote,
2016- 1457 ( La. App. 1st Cir. 4/ 12/ 17), 222 So. 3d 724, 727. When determining a
sentence,
the trial court should review defendant' s personal history, his prior
criminal record, the seriousness of the offense, the likelihood that he will commit
another crime, and his potential for rehabilitation through correctional services other
than confinement. See State v. Jones, 398 So. 2d 1049, 1051- 52 ( La. 1981); State
V. Scott, 2017- 0209 ( La. App. 1st Cir. 9/ 15/ 17), 228 So. 3d 207, 211, writ denied,
2017- 1743 ( La. 8/ 31/ 18), 251 So. 3d 410. On appellate review of a sentence, the
relevant question is whether the trial court abused its broad sentencing discretion,
not whether another sentence might have been more appropriate. State v. Thomas,
98- 1144 ( La. 10/ 9/ 98), 719 So. 2d 49, 50 ( per curiam). Furthermore, this court has
stated that maximum sentences permitted under statute may be imposed only for the
most serious offenses and the worst offenders, or when the offender poses an unusual
risk to the public safety due to his past conduct of repeated criminality. State v.
Parker, 2012- 1550 ( La. App. 1st Cir. 4/ 26/ 13), 116 So. 3d 744, 754, writ denied,
2013- 1200 ( La. 11/ 22/ 13), 126 So. 3d 478.
The sentencing range for a violation of La. R.S. 14: 95. 1 is five to twenty years
imprisonment. La. R.S. 14: 95. 1( B). In this case, defendant received a term of
twenty years imprisonment at hard labor without the benefit of parole, probation, or
suspension of sentence. Defendant stipulated that he had previously been convicted
of simple robbery. The trial judge who presided over the trial made the sentencing
determination.
In determining what constitutes an appropriate sentence, Louisiana courts
have often considered the other offenses a defendant committed during the same
criminal transaction leading to the prosecution for possession of a firearm by a
convicted felon. See e. g., State v. Richardson, 2016- 0107 ( La. App. 3d Cir.
12/ 28/ 16), 210 So. 3d 340, 361 ( fifteen years imprisonment without the benefit of
Wi
probation or suspension of sentence not excessive due to " random, `` egregious'
nature" of offenses); State v. Wilson, 2014- 551 ( La. App. 5th Cir. 1/ 28/ 15), 167
So. 3d 903, 915 ( maximum sentence not unconstitutionally excessive where
defendant was previously convicted of possessing a dangerous weapon while
possessing a controlled dangerous substance, and committed egregious acts during
the offense); State v. Warmack, 2007- 311 ( La. App. 5th Cir. 11/ 27/ 07), 973 So. 2d
104, 109 ( maximum sentence not unconstitutionally excessive where defendant' s
conduct demonstrated complete disregard for police authority, defendant had prior
drug convictions, and had numerous opportunities to reform his life, but ran from
police, gave a false name at time of booking, and gun he pulled from his waistband
was loaded and ready to be discharged); State v. Jefferson, 2004- 1960 ( La. App.
4th Cir. 12/ 21/ 05), 922 So. 2d 577, 602- 04, writ denied, 2006- 0940 ( La. 10/ 27/ 06),
939 So. 2d 1276 ( maximum sentence not constitutionally excessive where defendant
possessed one or more firearms, shot a police officer four times, and had also
received a life sentence for attempted first degree murder); State v. Lindsey, 583
So. 2d 1200, 1205 ( La. App. 1st Cir. 1991), writ denied, 590 So.2d 588 ( La. 1992)
consecutive maximum sentences were not an abuse of discretion in light of
defendant' s criminal record and circumstances of offenses).
In this case, given the broad discretion afforded a trial court in sentencing, we
do not find defendants sentence unconstitutionally excessive. After first providing
Deputy Bernard with a false name, defendant attempted to flee from two deputies
conducting a lawful traffic stop. In doing so, he risked the lives of the deputies and
the general public by driving in the wrong direction on I- 12 multiple times while
approaching speeds of approximately 100 MPH. During defendant' s reckless
attempt to flee, his vehicle nearly collided with the vehicle of a civilian motorist, and
defendant ultimately lost control of his vehicle. Further, while defendant' s prior
conviction was for simple robbery, he pled guilty to that charge after initially being
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charged with armed robbery. Defendant' s behavior demonstrates a total disregard
for the safety of others and clearly poses an extreme danger to public safety.
Defendant' s sentence does not show a manifest abuse of discretion on the part of the
sentencing court. This assignment of error is without merit.
CONVICTIONS, HABITUAL OFFENDER ADJUDICATION, AND
SENTENCES AFFIRMED.
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STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
2019 KA 1236
STATE
VERSUS
JOSHUA TAREZ WILLIS
McDONALD, J., concurring.
I agree with the affirmance of the judgment in this case but write separately on
one issue. That is, I disagree with the majority's conclusion, in footnote two of the
opinion, that defendant abandoned his excessiveness argument on the aggravated
flight sentence. I think defendant's brief arguably does challenge both of his sentences
as excessive, but I also think both sentences are justified and not excessive. Further, I
note that a finding of excessiveness on the 10 -year aggravated flight sentence would
not change the length of time defendant would still have to serve on the longer 20 -year
firearm possession sentence.