NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA

COURT OF APPEAL

L v FIRST CIRCUIT

NO. 2019KA0031

STATE OF LOUISIANA VERSUS TIMOTHY LEE ELLIOT

Judgment Rendered: JUL 2 2 2019

Appealed from the 32nd Judicial District Court In and for the Parish of Terrebonne State of Louisiana Docket No. 726876

The Honorable Judge Juan C. Pickett Presiding

J. Christopher Erny Counsel for Plaintiff/Appellee Houma, Louisiana State of Louisiana

Gwendolyn Brown Counsel for Defendant/ Appellant Baton Rouge, Louisiana Timothy Lee Elliot

W BEFORE: WELCH, CHUTZ AND LANIER, JJ

I LANIER, J.

The defendant, Timothy Lee Elliot, was charged by bill of information with simple criminal damage to property ( where damage amounts to five hundred dollars but less than fifty thousand dollars), a violation of La. R.S. 14: 56( A)( 1).

He pled not guilty and, following a jury trial, was found guilty as charged. The

State filed a habitual offender bill of information.' At a hearing on the matter, the

defendant was adjudicated a fourth -or -subsequent -felony habitual offender and sentenced to twenty years imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. The State filed a motion to reconsider

sentence.

The trial court granted the motion and resentenced the defendant to forty years imprisonment at hard labor without benefit of probation or suspension of

sentence. 3 The defendant filed a counseled and a pro se motion to reconsider

sentence, both of which were denied. The defendant now appeals, designating three assignments of error.' For the following reasons, we affirm the enhanced sentence.

FACTS5

On December 14, 2015, the defendant was an inmate at the Terrebonne

Parish Jail. The defendant was locked in this cell, but the food and service hatch on

the cell door was open. An inmate outside of the cell exchanged words with the

defendant and closed the hatch on the door. Angered, the defendant stood on the

back of the toilet in his cell, reached toward the ceiling, and pulled out the speaker and its wiring from the ceiling. The defendant then used the speaker or speaker

cover to strike the cell door window several times, causing a large fracture to the window. The jail' s video camera system recorded most of the defendant' s actions

in the cell.

The defendant testified at trial. He denied pulling the speaker from the ceiling. He stated that when he entered the cell, the speaker had already been pulled out and the speaker parts had been placed under the bunk. The defendant

admitted that he struck the window on the cell door, but denied having the intent to break it.

ASSIGNMENTS OF ERROR NOS. 1, 2 and 3

In these related assignments of error, the defendant argues, respectively, his sentence is unconstitutionally excessive; the trial court erred in granting the State' s motion to reconsider sentence; and the trial court erred in denying the defendant' s motion to reconsider sentence.

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). 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. State v. Andrews, 94- 0842 ( La. App. 1st Cir. 5/ 5/ 95), 655

91 So. 2d 448, 454. 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. Holts, 525 So. 2d 1241, 1245

La. App. 1st Cir. 1988). 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. Brown,

2002- 2231 ( La. App. 1 st Cir. 5/ 9/ 03), 849 So. 2d 566, 569.

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 there has not been full compliance with La. Code Crim. P. art. 894. 1. State v. Lanclos, 419 So. 2d 475, 478 ( La. 1982). The

trial judge should review the 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). Even

when a trial court assigns no reasons, the sentence will be set aside on appeal and

remanded for resentencing only if the record is either inadequate or clearly indicates that the sentence is excessive. See La. Code Crim. P. art. 881. 4( D); State

v. Harris, 601 So. 2d 775, 779 ( La. App. 1 st Cir. 1992). State v. Knight, 2011-

0366 ( La. App. 1st Cir. 9/ 14/ 11), 77 So. 3d 302, 304, writ denied, 2011- 2240 ( La.

2/ 17/ 12), 82 So. 3d 283. 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).

The defendant suggests in brief that the trial court offered no reason for its

decision to double his twenty-year sentence. This is incorrect. We address first the trial court' s reasoning for increasing the defendant' s twenty-year sentence. At

the habitual offender hearing, the defendant suggested that none of his prior convictions were crimes of violence, and that battery of a correctional officerb was not listed under La. R.S. 14: 2 as a crime of violence. The state disagreed, arguing that the definition of a crime of violence under La. R.S. 14: 2 includes the use of

force upon the person of another, and that by the very nature of the crime of battery of a correctional officer, it was a crime of violence. The trial court stated it was of

the opinion that the defendant had never been convicted of a crime of violence and,

accordingly, sentenced the defendant to twenty years imprisonment at hard labor, pursuant to La. R. S. 15: 529. 1 ( A)(4)( a).

The habitual offender hearing was held on August 17, 2017. The trial court

further noted, correctly, that whether the defendant was sentenced under the law at that time ( August of 2017) or under the new law,7 the defendant was subject to the same sentencing exposure. Both prior to and subsequent to November 1, 2017, La.

R.S. 15: 529. 1( A) remained virtually identical with the following provisions: 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:8

The State objected to the sentence and filed a motion to reconsider sentence.

At the hearing on this matter, the trial court noted that State v. Smith, 45, 430 ( La. App. 2nd Cir. 8/ 11/ 10), 47 So. 3d 553, 555- 56, writ denied, 2010- 2384 ( La. 3/ 4/ 11), 58 So.3d 474, found that battery of a correctional facility employee was a crime of violence. See also State v. Oliphant, 2012- 1176 ( La. 3/ 19/ 13), 113 So. 3d 165, 170 ( noting that because the list of enumerated crimes in La. R.S. 14: 2( B) is

merely illustrative, not exhaustive, unlisted offenses may be denominated as crimes of violence under the general definition of the term provided by the statute).

Accordingly, the trial court granted the State' s motion to reconsider sentence and resentenced the defendant to forty years imprisonment at hard labor without benefit of probation or suspension of sentence. The trial court also correctly pointed out that even with this prior conviction designated as a crime of violence, the same

habitual offender law provision ( La. R.S. 15: 529. 1( A)(4)( a)) was still applicable,

resulting in the same sentencing exposure ( twenty years to life) under either

version of the law.

A pro se motion and a counseled motion to reconsider this new sentence

were then filed. A hearing was held on the matter, and the trial court denied both motions. The defendant argues in brief that his sentence is excessive because all of

his prior offenses are non-violent offenses, except for his previous conviction of

battery of a correctional officer, which occurred more than sixteen years before the instant offense. Further, according to the defendant, the current offense, which consisted of his breaking glass and a speaker in his cell, occurred only after he was provoked by a fellow inmate who closed the hatch hole to his cell, " causing him grave distress."

We find no abuse of discretion by the trial court. In denying both the defendant' s and defense counsel' s motion to reconsider sentence, the trial court

noted in pertinent part:

The Court was of the opinion, when I made the ruling previously, that the State met its burden of proof beyond a reasonable doubt that Mr. Elliott had been previously convicted of six prior felonies - one of which was a crime of violence.

Specifically, the evidence was sufficient to support the finding that Mr. Elliott was found guilty on March 30, 2016 of Simple Criminal Damage to Property, where the amounts were more than 500. 00 but less than $ 50, 000. 00; and he is the same person whose previously convicted for Battery of a Correctional Employee; Simple Burglary; Illegal Possession of Stolen Things over $ 500. 00; Simple Arson; Attempted Simple Escape - all as outlined in the Bill of Information - the Habitual Offender Bill of Information, filed by the State.

Accordingly, the Court adjudged Mr. Elliott as a six -time felony offender, with one prior crime of violence felony conviction.

Having considered Mr. Elliott' s previous convictions, the Court was of the opinion that there is an undue risk that during any period of a lesser sentence, that Mr. Elliott would commit another crime; that Mr. Elliott was in dire need of correctional treatment; that a lesser sentence would deprecate the seriousness of the offense; and therefore, the Court sentenced Mr. Elliott to a term of 40 years, which was less than the life sentence.

While the classification of a defendant' s instant or prior offenses as non-

violent should not be discounted, this factor has already been taken into account under the Habitual Offender Law for third and fourth offenders. State v. Johnson,

97- 1906 ( La. 3/ 4/ 98), 709 So. 2d 672, 676. Moreover, the defendant was not

sentenced to forty years imprisonment for the offense of damaging property in his cell or for mostly non-violent offenses. Rather, he received this enhanced sentence because of his continued lawlessness as a repeat offender, having six felony convictions.

Under the Habitual Offender Law, a defendant with multiple felony convictions is treated as a recidivist who is to be punished for his instant crime in

light of his continuing disregard for the laws of our state. He is subjected to a

longer sentence because he continues to break the law. Johnson, 709 So. 2d at 672, 677; State v. Spikes, 2017- 0087 ( La. App. 1st Cir. 9/ 15/ 17), 228 So. 3d 201, 206.

Finally, we note that twice in his brief the defendant suggests that even the minimum twenty-year sentence was excessive. He notes that Louisiana

jurisprudence mandates that if the sentencing is found to be constitutionally excessive, then the trial judge must impose a sentence that is less than the statutory minimum. Later, he states that the trial court gave no reason for why it doubled his twenty-year term - " a term that itself rises to the level of constitutional

excessiveness given this offense and this offender[.]"

In State v. Dorthey, 623 So. 2d 1276, 1280- 81 ( La. 1993), the Louisiana Supreme Court opined that if a trial judge were to find that the punishment

mandated by La. R.S. 15: 529. 1 makes no " measurable contribution to acceptable

goals of punishment" or that the sentence amounted to nothing more than " the purposeful imposition of pain and suffering" and is " grossly out of proportion to the severity of the crime", he has the option, indeed the duty, to reduce such sentence to one that would not be unconstitutionally excessive.

In Johnson, 709 So. 2d at 676- 77, the Louisiana Supreme Court reexamined

the issue of when Dorthey permits a downward departure from the mandatory minimum sentences in the Habitual Offender Law. To rebut the presumption that

the 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. See Johnson, 709 So. 2d at 676- 78.

s Considering the trial court' s review of the circumstances, the defendant' s criminal history, and the nature of the crimes, we find no abuse of discretion by the trial court. The trial court provided ample justification in imposing a forty -year sentence on the defendant. To the extent the defendant is suggesting he is exceptional, he has not proven by clear and convincing evidence that he is exceptional such that the sentence would not be meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case. See Johnson, 709 So.2d at 676. Accordingly, the sentence imposed by the trial court is not grossly disproportionate to the severity of the offenses and, therefore, is not unconstitutionally excessive. The trial court did not err in granting the State' s motion to reconsider sentence; nor did it err in denying the defendant' s motion to reconsider sentence.

These assignments of error are without merit.

CONVICTION AND SENTENCE AFFIRMED.

STATE OF LOUISIANA 2019 KA 0031

FIRST CIRCUIT VERSUS COURT OF APPEAL

TIMOTHY LEE ELLIOT STATE OF LOUISIANA

Welch, J. dissenting.

Oro I respectfully disagree with the majority' s conclusion that the defendant' s sentence was not unconstitutionally excessive. The defendant broke a speaker and

a window in his cell at the parish jail, which resulted in damages totaling approximately $ 2, 200. 00. For this, the defendant was sentenced to forty years imprisonment at hard labor without benefit of probation or suspension of sentence.

Considering the defendant' s age, this sentence is, in reality, a life sentence. I

believe this sentence is unconstitutionally excessive because it is shocking and grossly disproportionate to the seriousness of the offense. Futhermore, this

sentence also punishes the taxpayers of this State as it forces the taxpayers to bear

the extensive cost of incarcerating the defendant for a purposeless and needless extended period of time. Therefore, I would vacate the defendant' s habitual

offender sentence of forty years and remand for the trial court to impose a sentence that is constitutional.

Notably, all of the defendant' s prior offenses ( simple arson, illegal

possession of stolen things, attempted simple escape, and simple burglary) are non- violent offenses, with the exception of his previous conviction of battery of a correctional officer, which occurred more than sixteen years before the instant

offense. In addition, most of his convictions were related to his incarceration.

Considering the defendant committed a single crime of violence more than sixteen years ago, that the instant conviction was for a the relatively minor offense of damaging property in his cell, his forty -year sentence is grossly disproportionate to the severity of the offence and therefore, is unconstitutionally excessive.

In State v Hayes, 97- 1526 ( La. App. 1St Cir. 6/ 25/ 99), 739 So. 2d 301, this Court found that the defendant' s life sentence was constitutionally excessive and remanded for resentencing. Hayes was convicted of theft ( over $ 500). He was

adjudicated a third -felony habitual offender and sentenced to life imprisonment.

Hayes' s sole crime of violence was a simple robbery committed in 1991, wherein he pushed a minor and stole his bicycle. All of Hayes' s other convictions were

non-violent, consisting of thefts, several counts of issuing worthless checks, and check forgery. We noted that none of Hayes' s crimes involved a dangerous

weapon. We further noted that this particular life imprisonment " imposed an

undue burden on the taxpayers of the state, who must feed, house, and clothe this

defendant for life." Id. at 303. Hayes was ultimately sentenced to thirty years imprisonment at hard labor. State v. Hayes, 2002- 1268 ( La. App. 1st Cir. 3/ 5/ 03), 845 So. 2d 542, writ denied, 2004- 0047 ( La. 12/ 17/ 04), 888 So. 2d 860.

From the Louisiana Department of Public Safety and Corrections Services Fact Sheet, as of December 31, 2018, the Budget and Cost Data Summary for Corrections Services for the fiscal year 2018- 2019, indicates that the average total

cost per offender per day at a Louisiana adult correctional institution is about 62. 63 and the annual cost is approximately $ 22, 860. 00. The total cost, thus, to

house this defendant for an additional forty years would be approximately 914,400. 00 ( in today' s dollars, not including future inflation).' In the recent case of State v. Thompkins, 2018- 2104 ( La. 6/ 17/ 19), _

So. 3d _, 2019 WL 2513773 ( per curiam), our Louisiana Supreme Court vacated

the enhanced forty -five-year sentence of the defendant, who had been adjudicated a fourth or subsequent felony habitual offender. Having been convicted of obscenity, the Court noted that, absent the habitual offender bill, the punishment could have

OA been merely a monetary fine. Instead, the defendant received what was effectively a life sentence, given his age and the lengthy term imposed. In no way diminishing the offensiveness of the defendant' s conduct, the Court, in recognizing its duty to overturn a sentence that inflicts excessive retribution on the offender because of its

disproportionate nature, found the forty -five-year sentence to be unconstitutionally excessive and remanded for resentencing. See State v. Wilson, 37, 555 ( La. App. 2" d Cir. 11/ 6/ 03), 859 So. 2d 957, writ denied, 2003- 3232 ( La. 6/ 4/ 04), 876 So. 2d 73 ( where second circuit found life sentence excessive, and suggested a sentence of

no more than thirty years would be constitutional, wherein defendant was adjudicated fourth -felony habitual offender for conviction of instant offense which was crime of violence and other three prior convictions were non- violent). See

also State v. Bruce, 2011- 991 ( La. App. 5th Cir. 10/ 30/ 12), 102 So. 3d 1029, 1034-

37, writ denied, 2012- 2568 ( La. 4/ 26/ 13), 112 So. 3d 839.

Similarly, the defendant herein committed only one crime of violence over sixteen years ago and his forty -year sentence is grossly disproportionate to the severity of the offense and, therefore, is unconstitutionally excessive. In addition,

by sentencing the defendant to an additional forty years for such a relatively minor offense does nothing more than contribute to the exorbitant cost of incarcerating prisoners at the expense of Louisiana' s taxpayers.

Thus, I respectfully dissent.

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