The opinion
STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
KA 22-483
STATE OF LOUISIANA
VERSUS
CASETTI DEWAYNE BROWN, JR.
**********
APPEAL FROM THE
THIRTIETH JUDICIAL DISTRICT COURT
PARISH OF VERNON, NO. 91528-AM-HAB
HONORABLE TONY ALAN BENNETT, DISTRICT JUDGE
**********
BILLY HOWARD EZELL
JUDGE
**********
Court composed of Sylvia R. Cooks, Chief Judge, Billy Howard Ezell and Sharon
Darville Wilson, Judges.
AFFIRMED AS AMENDED; REMANDED WITH INSTRUCTIONS.
Annette Fuller Roach
Louisiana Appellate Project
P.O. Box 6547
Lake Charles, LA 70606-6547
(337) 436-2900
COUNSEL FOR DEFENDANT:
Casetti Dewayne Brown, Jr.
Terry Wayne Lambright
District Attorney
William R. Thornton
Assistant District Attorney
Vernon Parish
P.O. Box 1188
Leesville, LA 71446
(337) 239-2008
COUNSEL FOR:
State of Louisiana
Casetti Dewayne Brown, Jr.
Camp C Bear 4
Louisiana State Penitentiary
Angola, La 70712
EZELL, Judge.
On September 6, 2017, Defendant, Casetti Dewayne Brown, Jr., 1 was
charged by bill of information with possession with the intent to distribute a
schedule II, controlled dangerous substance (CDS II) (cocaine), in violation
of La.R.S. 40:967(A)(1) and (A)(4)(b) (count one); possession of CDS II
(methamphetamine), in violation of La.R.S. 40:967(C) (count two); illegal carrying
of weapons in the presence of CDS, in violation of La.R.S. 14:95(E) (count three);
and possession of a firearm by a convicted felon, in violation of La.R.S.
14:95.1 (count four). The charges had an offense date of June 9, 2017. Defendant
pled not guilty to the charges.
On January 3, 2018, the State filed an amended bill of information. The
State added four additional charges, all with October 31, 2017 offense dates:
possession with intent to distribute CDS II (hydrocodone and oxycodone), in
violation of La.R.S. 40:967(A)(1) and (B)(1)(a) (count five); possession with intent
to distribute CDS II (cocaine), in violation of La.R.S. 40:967(A)(1) and
(B)(1)(a) (count six); possession with intent to distribute CDS I (synthetic
cannabinoids), in violation of La.R.S. 40:966(A)(1) and (B)(2)(a) (count seven);
and possession with intent to distribute CDS I (marijuana), in violation of La.R.S.
40:966(A)(1) and (B)(2)(a) (count eight). Defendant pled not guilty to all eight
counts.
On November 13, 2018, Defendant’s trial began with jury selection. On
November 16, 2018, the jury found Defendant guilty as charged on counts one,
1
The bills of information incorrectly spelled Defendant’s first name “Cassetti,” but
Defendant’s first name, as reflected on his pro se brief, is actually spelled “Casetti.” However,
for consistency, we will spell Defendant’s name correctly.
two, three, and four, but not guilty as to counts five and eight. The jury also
convicted Defendant on counts six and seven by non-unanimous verdicts.
On January 10, 2019, the State filed a habitual offender bill of information.
The State alleged Defendant was a third felony habitual offender regarding his
conviction for possession of a weapon by a convicted felon (count four) and a
fourth felony habitual offender for all other charges. The trial court held a habitual
offender hearing on February 27, 2019, where it adduced evidence regarding his
prior convictions. In its written ruling, the trial court adjudicated Defendant a third
felony offender with respect to count four and a fourth offender with respect to the
remaining charges.
On May 8, 2019, Defendant was sentenced as follows: count one, thirty-five
years at hard labor without the benefit of probation or suspension of sentence;
count two, twenty-five years at hard labor without the benefit of probation or
suspension of sentence; count three, thirty-five years at hard labor without the
benefit of parole, probation, or suspension of sentence; count four, thirty-five years
at hard labor without the benefit of parole, probation, or suspension of sentence;
count six, thirty-five years at hard labor without the benefit of probation or
suspension of sentence; count seven, six months in the parish jail. The trial court
ordered the first five sentences to be served consecutively to one another with the
sentence for count seven to be served concurrently to count six. Accordingly,
Defendant received an aggregate sentence of one hundred sixty-five years.
On June 4, 2019, Defendant filed a motion to reconsider sentence wherein
he alleged his aggregate sentence was excessive due to the consecutive running of
the individual sentences and for the trial court’s failure to consider his age. The
trial court denied the motion without written reasons.
2
Defendant appealed his convictions, habitual offender adjudication, and
habitual offender sentences, asserting numerous assignments of error. State v.
Brown, 19-682 (La.App. 3 Cir. 6/17/20), 299 So.3d 661, writ denied, 20-927 (La.
11/24/20), 305 So.3d 100, writ denied, 20-925 (La. 11/24/20), 305 So.3d 105. This
court vacated Defendant’s convictions and sentences on counts six and seven
pursuant to Ramos v. Louisiana, 590 U.S. ___, 140 S.Ct. 1390 (2020). Brown, 299
So.3d 661. On counts one through four, this court affirmed Defendant’s
convictions but remanded the matter to the trial court for resentencing after finding
the imposition of consecutive sentences rendered the sentences excessive. Id. The
Louisiana Supreme Court denied writs from both the State and Defendant.
On May 25, 2021, the trial court held a resentencing hearing in accordance
with this court’s remand order. On counts one through three, Defendant was
sentenced to eighty years at hard labor without the benefit of parole, probation, or
suspension of sentence, and on count four, he was sentenced to forty years at hard
labor without the benefit of parole, probation, or suspension of sentence. The trial
court ordered the sentences be served concurrently. Defendant generally objected
to the sentences.
Immediately following the pronouncement of Defendant’s sentences, the
trial court heard the State’s motion to reconsider sentence and took the matter
under advisement.2 Additionally, Defendant filed a motion to reconsider sentence
on June 24, 2021, in which he argued: (1) the imposed sentences violated North
Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072 (1969); and (2) the five-year
2
The State filed a motion prior to resentencing entitled “State’s Motion for Sentencing
and Reconsideration of Sentence Pursuant to La.Code Crim.P. art. 881.1” on February 2, 2021.
On April 19, 2021, the State filed another sentencing memorandum wherein it opined the trial
court could comply with this court’s opinion by first imposing concurrent sentences as ordered,
and then, after considering the State’s motion to reconsider, the trial court could again impose
consecutive sentences.
3
cleansing period had lapsed by the commission date of the current offenses. On
April 7, 2022, the trial court held a hearing on both motions to reconsider sentence.
Following arguments, the trial court denied both the State’s and Defendant’s
motions to reconsider sentence.
On April 12, 2022, Defendant filed a motion for appeal which was granted
by the trial court. Defendant is again before this court alleging two counseled
assignments of error and three pro se assignments of error. We find Defendant’s
habitual offender sentences should be affirmed.
FACTS
In Brown, 299 So.3d at 666, this court set forth the following facts:
At sentencing, the trial court summarized the relevant facts as
follows:
According to the offense reports, on June the 8th, 2017, a
search warrant was obtained by the Vernon Parish
Narcotics Task Force, based on the Task Force making
three controlled buys of crack cocaine from 1729 Nona
Street, Leesville, Louisiana[,] during the months of April
through June 2017. The controlled buys were made from
a known drug dealer, Casetti Brown, Jr. On June the 9th,
2017, agents executed the warrant and made contact with
Brown at the residence on Nona Street. During the
investigation, search, and questioning of Mr. Brown,
crack cocaine and weapons were found inside the
residence. Mr. Brown was charged with possession of
Schedule I with intent to distribute, possession of
Schedule II methamphetamine with intent to distribute,
possession of Schedule II cocaine with intent to
distribute, possession of a firearm by a convicted felon,
and possession of a firearm while in possession of a
controlled dangerous substance. On October the 31st,
2017, another search warrant was obtained due to
additional criminal activity supported by controlled
purchases of illegal narcotics from Casetti Brown, Jr. at
1729 Nona Street, Leesville, Louisiana. Mr. Brown had
bonded out on the earlier arrest and continued his
criminal activity. Contact was made by Vernon Parish
Narcotics Task Force, uh, and Casetti Brown, Jr., Jerry
Brown, and Steven Brown were secured without incident.
4
During the search, a substance was found that was field
tested and was positive for cocaine. Another substance
was found that was tested and was positive for
methamphetamine. Another firearm was found in the
residence and approximately 90 red-in-color seeds or
plants were found which is a type of a poisonous plant.
ERRORS PATENT
In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for
errors patent on the face of the record. After reviewing the record, we find there is
an error concerning both the parole restriction imposed on the sentences for
possession with the intent to distribute cocaine and the sentence for possession of
methamphetamine.
Although La.R.S. 15:529.1(G) requires all enhanced sentences to be
imposed without benefit of probation or suspension of sentence, it does not
authorize the trial court to impose enhanced sentences without benefit of
parole. “[T]he restrictions on parole eligibility imposed on multiple offender
sentences under La.R.S. 15:529.1 ‘are those called for in the reference statute.’”
State v. Tate, 99-1483, pp. 1-2 (La. 11/24/99), 747 So.2d 519, 520. At the time of
commission of the offenses, La.R.S. 40:967(B)(4)(b) required only the first two
years of a sentence for possession with the intent to distribute cocaine to be
imposed without the benefit of parole, and La.R.S. 40:967(C)(2) contained no
parole restriction for possession of methamphetamine. Accordingly, this court
amends Defendant’s sentence for possession with the intent to distribute cocaine to
require that only the first two years be served without the benefit of parole, and we
hereby strike the denial of parole eligibility from Defendant’s sentence for
possession of methamphetamine. Additionally, the trial court is instructed to make
5
an entry in the court minutes reflecting these changes. See State v. Willliams, 16-
140 (La.App. 3 Cir. 9/28/16), 201 So.3d 379.
ASSIGNMENT OF ERROR NUMBER ONE
In his first counseled assignment of error, Defendant claims “[t]he trial court
abused its discretion by imposing substantially harsher sentences than the
sentences originally imposed on each count, in violation of North Carolina v.
Pearce, 395 U.S. 711, and the Due Process Clause of the Fourteenth Amendment
of the Constitution of the United States.”
Before addressing the applicable law and Defendant’s arguments, we have
set forth the relevant discussion from Defendant’s original appeal to clarify any
confusion that may arise from this subsequent analysis:
In his fourth counseled assignment of error, Mr. Brown
contends that the trial court’s imposition of consecutive sentences,
totaling one-hundred sixty-five years at hard labor without benefit of
probation, parole, or suspension of sentence, was cruel and unusual
punishment and that, consequently, his sentences are unconstitutional.
Notably, this is the same argument presented in Mr. Brown’s motion
to reconsider sentence and is, therefore, properly before this court. Mr.
Brown points out that of his six convictions, five were enhanced under
the habitual offender law before being run consecutive and that four
of those convictions arise from the same June 9, 2017 arrest.
....
Mr. Brown argues the trial court’s failure to find that he posed
“an unusual risk to the public safety warranting more than the thirty-
five years” imposed on count one renders his consecutive sentences,
at least for counts one through four, excessive. He bases this
contention on State v. Sherer, 437 So.2d 276, 277 (La.1983), which
found:
Because the function of the consecutive sentence
should be similar to the sentence imposed on habitual or
dangerous offenders, sentences for crimes arising from a
single course of conduct should be concurrent rather than
consecutive, absent a showing that the offender poses an
unusual risk to the safety of the public. See State v.
Franks, 373 So.2d 1307 (La.1979); State v. Cox, 369
6
So.2d 118 (La.1979). Cf. La.C.Cr.P. art. 883. We cannot
presume that the sentencing judge viewed the defendant
as an unusual risk to the safety of the public because he
did not so state. Instead, the judge expressed his belief
that the defendant had become virtually rehabilitated and
should be released on parole at the earliest possible time.
For these reasons, the imposition of consecutive rather
than concurrent sentences totaling 12 years at hard labor
upon a defendant deemed parole-eligible by the
sentencing judge for crimes of criminal negligence,
rather than intentional offenses, arising from a single
course of conduct, are unexplained by the judge’s
statements and unillumined by this problematic record.
The trial court, during sentencing, stated several reasons for
why he felt Mr. Brown’s sentences should be consecutive, rather than
concurrent: (1) Mr. Brown had a lengthy criminal history of firearm
and drug charges; (2) while on bond for drug charges arising out of
the June 9, 2017 arrest, Mr. Brown continued to sell drugs; (3) despite
having no work history, Mr. Brown was able to post bond of over
$225,000 in roughly a week; (4) the volume of drugs and weapons
seized from Mr. Brown’s residence; and (5) Mr. Brown’s residence
contained multiple electronic scales and “every type of drug
paraphernalia needed to get people high.” Further, the trial court noted
that Mr. Brown, based upon his convictions, had been selling illegal
narcotics for over two decades and was “the true definition of a drug
dealer.” The trial court observed that even after conviction and
serving time, Mr. Brown started drug dealing again upon his release.
The trial judge also stated his belief that Mr. Brown had directed
counsel to ask questions designed to try and figure out the identities of
the confidential informants whose purchases led to the two search
warrants.
Mr. Brown asserts that these reasons “might justify consecutive
sentences for each of the two offense dates, but not for the charges
arising from the same search.” Because we have vacated the sentences
for counts six and seven, the sentences remaining before us all arise
from the same offense date and same course of conduct. Running
these four sentences consecutively leaves Mr. Brown with a one-
hundred-thirty-year sentence.
As noted in Sherer, consecutive sentences are similar in nature
to a habitual offender enhancement. Consequently, the imposition of
multiple consecutive, habitual offender enhanced sentences is suspect
without some evidence the defendant is an undue risk to the public.
Though the trial judge believed that Mr. Brown did pose such a risk,
we find, however, that the resulting one-hundred-thirty-year sentence
herein is not supported by the evidence presented at sentencing.
Moreover, the sentences were already enhanced under the
7
law. See La.R.S. 15:529.1. The trial court’s reasons do not justify
consecutive sentences on four crimes that all occurred simultaneously.
Additionally, the recently enacted Louisiana’s Justice
Reinvestment Reforms of 2017 implore us to seriously consider
Louisiana’s history of long-term incarceration. See 2017 La. Acts
Nos. 258, 260, 261, 262, 264, 265, 277, 280, 281, and 282. In keeping
therewith, we find the imposition of concurrent rather than
consecutive sentences for crimes arising out of the same conduct
would better serve the policy behind the Justice Reinvestment
Initiative of reducing sentences for certain drug offenses as well as
habitual offender penalties. See 2017 La. Acts Nos. 281 and 282.
Accordingly, we remand this matter to the trial court for
resentencing with concurrent sentences on counts one through four,
with the length of the sentences to be in accordance with the enhanced
sentencing provisions of the Habitual Offender Law, La.R.S. 15:529.1.
....
CONCLUSION
For the foregoing reasons, Mr. Brown’s convictions and
individual sentences in counts one through four are affirmed. Pursuant
to Ramos, Mr. Brown’s convictions and sentences on counts six and
seven are vacated. This case is further remanded to the trial court for
resentencing in order to sentence Mr. Brown on counts one through
four concurrently, with the length of the sentences to be in accordance
with the enhanced sentencing provisions of the Habitual Offender
Law, La.R.S. 15:529.1, and for a new trial on counts six and seven.
AFFIRMED IN PART; VACATED IN PART; AND
REMANDED.
Brown, 299 So.3d at 668-81 (emphasis added).
In his original appeal, Defendant challenged his sentences as constitutionally
excessive based on the consecutive nature of his sentences for counts one through
four which, in effect, resulted in an aggregate sentence of one hundred thirty years.
This court did not determine whether the individual sentences imposed were
constitutionally excessive but rather, this court found Defendant’s aggregate
sentence to be constitutionally excessive. We find that despite the dispositive
language in the opinion affirming Defendant’s convictions and individual
8
sentences, this court did not make such a determination in its analysis of whether
his sentences were constitutionally excessive. Therefore, the trial court did not
violate this court’s remand order at resentencing when it increased the individual
sentences Defendant received.
This court will now address Defendant’s argument that the trial court abused
its discretion by imposing harsher individual sentences on remand, in violation of
Pearce, 395 U.S. 711, and the Due Process Clause of the Fourteenth Amendment.
In Pearce, 395 U.S. at 723-26 (footnotes omitted)(alteration in original), the
United States Supreme Court discussed the constitutional limitations of a trial
court’s imposition of a more severe punishment after conviction upon retrial:
It can hardly be doubted that it would be a flagrant violation of
the Fourteenth Amendment for a state trial court to follow an
announced practice of imposing a heavier sentence upon every
reconvicted defendant for the explicit purpose of punishing the
defendant for his having succeeded in getting his original conviction
set aside. Where, as in each of the cases before us, the original
conviction has been set aside because of a constitutional error, the
imposition of such a punishment, “penalizing those who choose to
exercise” constitutional rights, “would be patently unconstitutional.”
United States v. Jackson, 390 U.S. 570, 581, 88 S.Ct. 1209, 1216, 20
L.Ed.2d 138. And the very threat inherent in the existence of such a
punitive policy would, with respect to those still in prison, serve to
“chill the exercise of basic constitutional rights.” Id., at 582, 88 S.Ct.,
at 1216. See also Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229,
14 L.Ed.2d 106; cf. Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21
L.Ed.2d 718. But even if the first conviction has been set aside for
nonconstitutional error, the imposition of a penalty upon the defendant
for having successfully pursued a statutory right of appeal or collateral
remedy would be no less a violation of due process of law. “A new
sentence, with enhanced punishment, based upon such a reason,
would be a flagrant violation of the rights of the defendant.” Nichols
v. United States, 106 F. 672, 679. A court is “without right to * * *
put a price on an appeal. A defendant’s exercise of a right of appeal
must be free and unfettered. * * * [I]t is unfair to use the great power
given to the court to determine sentence to place a defendant in the
dilemma of making an unfree choice.” Worcester v. Commissioner of
Internal Revenue, 1 Cir., 370 F.2d 713, 718. See Short v. United
States, 120 U.S.App.D.C. 165, 167, 344 F.2d 550, 552. “This Court
has never held that the States are required to establish avenues of
9
appellate review, but it is now fundamental that, once established,
these avenues must be kept free of unreasoned distinctions that can
only impede open and equal access to the courts. Griffin v. Illinois,
351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891; Douglas v. California, 372
U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811; Lane v. Brown, 372 U.S. 477,
83 S.Ct. 768, 9 L.Ed.2d 892; Draper v. Washington, 372 U.S. 487, 83
S.Ct. 774, 9 L.Ed.2d 899.” Rinaldi v. Yeager, 384 U.S. 305, 310-311,
86 S.Ct. 1497, 1500-1501, 16 L.Ed.2d 577.
Due process of law, then, requires that vindictiveness against a
defendant for having successfully attacked his first conviction must
play no part in the sentence he receives after a new trial. And since the
fear of such vindictiveness may unconstitutionally deter a defendant’s
exercise of the right to appeal or collaterally attack his first
conviction, due process also requires that a defendant be freed of
apprehension of such a retaliatory motivation on the part of the
sentencing judge.
In order to assure the absence of such a motivation, we have
concluded that whenever a judge imposes a more severe sentence
upon a defendant after a new trial, the reasons for his doing so must
affirmatively appear. Those reasons must be based upon objective
information concerning identifiable conduct on the part of the
defendant occurring after the time of the original sentencing
proceeding. And the factual data upon which the increased sentence is
based must be made part of the record, so that the constitutional
legitimacy of the increased sentence may be fully reviewed on appeal.
Louisiana adopted the Pearce rule in State v. Rutledge, 259 La. 543, 250
So.2d 734 (1971). Further, this court found the general principles set forth in
Pearce apply to circumstances in which only the original sentence is successfully
attacked. State v. Jenkins, 451 So.2d 1142 (La.App. 3 Cir. 1984).
In brief to this court, Defendant observes the individual sentences imposed
for counts one, three, and four are more than double the sentences the trial court
originally imposed. Additionally, Defendant argues that although the new
aggregate sentence is less than the original aggregate sentence, the trial court
ignored the spirit of this court’s opinion in Brown, 299 So.3d 661, by severely
sentencing Defendant without providing additional justification. Finally,
10
Defendant contends that each sentence must be individualized to the particular
offense, and as a result, “each sentence must stand on its own.”
In opposition, the State argues the trial court complied with this court’s
remand instructions to sentence Defendant to concurrent sentences “in accordance
with the enhanced sentencing provisions of the Habitual Offender Law, La.R.S.
15:529.1.” Further, the State contends the trial court justified the sentences by
declaring that Defendant was “an unusual risk to public safety, and it is my intent
that you do not sell any more drugs in Vernon Parish or anywhere else for that
matter.” Finally, the State points out that the time Defendant will spend in prison
was reduced from one hundred thirty years to eighty years, though his individual
sentences for counts one through four were increased.
We will now determine whether the trial court committed a Pearce violation
by increasing the individual sentences Defendant received on each count as
Defendant suggests, or whether the trial court acted within its discretion in
increasing the individual sentences Defendant received as a means of bringing its
original sentencing intentions to fruition as the State suggests.
In State v. Sims, 505 So.2d 755, 757 (La.App. 2 Cir.), writ denied, 508 So.2d
65 (La.1987) (emphasis added), the second circuit addressed the relevance of
comparing aggregate sentences:
If we compare the new individual sentences with the original
individual sentences in light of Pearce, we would be forced at least to
set aside the sentences imposed in counts one, two and three and again
remand for resentencing. If we are to compare the new aggregate
sentences against the original aggregate to determine if the penalty
imposed on resentencing is the same, harsher, or less, then we are
forced to compare apples and oranges with only apples. We conclude
that it is permissible in this multiple count situation to compare the
respective aggregate sentences rather than individual sentences. See
State v. Franks, [391 So.2d 1133 (La.1980), cert. denied, 450 U.S.
983, 101 S.Ct. 1520 (1981)]; State v. Jenkins, supra.
11
The Sims court concluded the new aggregate sentence was less severe than
the original aggregate sentence and then determined the new aggregate sentence
was not constitutionally excessive. Id.
In State v. Freeman, 577 So.2d 216 (La.App. 1 Cir.), writ denied, 580 So.2d
668 (La.1991), the defendant was originally sentenced as a habitual offender to
concurrent sentences of twenty-four years for simple burglary and twenty years for
theft. Subsequently, his habitual offender adjudication was vacated, and he was
resentenced to consecutive sentences of twelve years for simple burglary and ten
years for theft. Id. The first circuit found no Pearce violation, stating:
[T]he defendant did not receive increased sentences upon
resentencing. Although the trial court ordered the instant sentences to
run consecutively, rather than concurrently (as it had done at the
original sentencing hearing), there is no indication that the trial court
was being vindictive. Instead, by imposing sentences totaling twenty-
two years at hard labor, the trial court was obviously trying to come as
close to its original sentencing scheme (a total of twenty-four years at
hard labor) as possible.
Id. at 218-19 (footnote omitted).
This court addressed a situation contrary to the situation in the current case
in State v. Runyon, 06-823 (La.App. 3 Cir. 12/6/06), 944 So.2d 820, writ denied,
07-49 (La. 9/21/07), 964 So.2d 330. In Runyon, the defendant was sentenced to
concurrent terms of forty years for manslaughter and forty years for attempted
second degree murder. On appeal, this court upheld his manslaughter conviction
but reversed his attempted second degree murder conviction and entered a
judgment of aggravated battery. Id. This court also found his manslaughter
sentence to be excessive, and the matter was remanded for resentencing on both
convictions. Id. On remand, the trial court sentenced the defendant to ten years
for aggravated battery and thirty years for manslaughter and imposed the sentences
12
consecutively. Id. Though the new sentences were less than the sentences initially
imposed, the net effect was the same. This court held there was no Pearce
violation as the sentences were roughly the same amount of time in the aggregate.
Based on the foregoing, we find there was no Pearce violation even though
Defendant’s individual sentences were increased on remand. The trial court
increased the individual sentences Defendant received to reflect its original
sentencing intentions. The original sentences for counts one through four imposed
a term of incarceration of one hundred thirty years in the aggregate, whereas the
new sentences impose a term of incarceration of eighty years. Defendant received
a significant benefit from the reduction of actual incarceration time. Accordingly,
this assignment of error is without merit.
ASSIGNMENT OF ERROR NUMBER TWO
In his second counseled assignment of error, Defendant asserts his sentences
are constitutionally excessive because each of the sentences were enhanced under
the habitual offender laws and are in the higher range of sentencing possibilities.3
The State asserts the trial court did not abuse its discretion in sentencing Defendant
based on his extensive criminal history and the extreme risk he poses to public
safety.
Louisiana Code of Criminal Procedure Article 881.1(E) provides the
mechanism for preserving the review of a sentence on appeal:
Failure to make or file a motion to reconsider sentence or to
include a specific ground upon which a motion to reconsider sentence
may be based, including a claim of excessiveness, shall preclude the
state or the defendant from raising an objection to the sentence or
from urging any ground not raised in the motion on appeal or review.
3
We note that Defendant presents a very limited argument to bolster his excessive
sentence claim and even acknowledges that the number of drug convictions constitutes an
aggravating circumstance.
13
Although Defendant filed a motion to reconsider after his resentencing, he
failed to specifically allege that his sentences were constitutionally excessive.
Therefore, the appeal is limited to a bare excessiveness review. State v. Vice, 21-
143 (La.App. 3 Cir. 10/6/21), 329 So.3d 388.
Louisiana courts have laid out the following guidelines regarding excessive
sentence review:
Sentences within the statutory sentencing range can be
reviewed for constitutional excessiveness. State v. Sepulvado, 367
So.2d 762 (La.1979). In State v. Barling, 00-1241, 00-1591, p. 12
(La.App. 3 Cir. 1/31/01), 779 So.2d 1035, 1042-43, writ denied, 01-
838 (La. 2/1/02), 808 So.2d 331, a panel of this court discussed the
review of excessive sentence claims, stating:
La. Const. art. I, § 20 guarantees that, “[n]o law
shall subject any person to cruel or unusual punishment.”
To constitute an excessive sentence, the reviewing court
must find the penalty so grossly disproportionate to the
severity of the crime as to shock our sense of justice or
that the sentence makes no measurable contribution to
acceptable penal goals and is, therefore, nothing more
than a needless imposition of pain and suffering. State v.
Campbell, 404 So.2d 1205 (La.1981). The trial court has
wide discretion in the imposition of sentence within the
statutory limits and such sentence shall not be set aside as
excessive absent a manifest abuse of discretion. State v.
Etienne, 99-192 (La.App. 3 Cir. 10/13/99); 746 So.2d
124, writ denied, 00-0165 (La. 6/30/00); 765 So.2d 1067.
The relevant question is whether the trial court abused its
broad sentencing discretion, not whether another
sentence might have been more appropriate. State v.
Cook, 95-2784 (La. 5/31/96); 674 So.2d 957, cert.
denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539
(1996).
Further, in reviewing the defendant’s sentences, the appellate
court should consider the nature of the crime, the nature and
background of the offender, and the sentences imposed for similar
crimes. State v. Lisotta, 98-648 (La.App. 5 Cir. 12/16/98), 726 So.2d
57 (citing State v. Telsee, 425 So.2d 1251 (La.1983)), writ denied, 99-
433 (La. 6/25/99), 745 So.2d 1183. In State v. Smith, 02-719, p. 4
(La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ denied, 03-562
(La. 5/30/03), 845 So.2d 1061, a panel of this court observed that:
14
While a comparison of sentences imposed for similar
crimes may provide some insight, “it is well settled that
sentences must be individualized to the particular
offender and to the particular offense committed.” State
v. Batiste, 594 So.2d 1 (La.App. 1 Cir.1991).
Additionally, it is within the purview of the trial court to
particularize the sentence because the trial judge
“remains in the best position to assess the aggravating
and mitigating circumstances presented by each case.”
State v. Cook, 95-2784 (La. 5/31/96); 674 So.2d 957,
958.
State v. Soileau, 13-770, 13-771, pp. 4-5 (La.App. 3 Cir. 2/12/14), 153 So.3d 1002,
1005-06, writ denied, 14-452 (La. 9/26/14), 149 So.3d 261 (alteration in original).
Furthermore, in State v. Baker, 06-1218 (La.App. 3 Cir. 4/18/07), 956 So.2d
83, writ denied, 07-320 (La. 11/9/07), 967 So.2d 496, writ denied, 07-1116 (La.
12/7/07), 969 So.2d 626, this court adopted the fifth circuit’s three-factor test from
State v. Lisotta, 98-648 (La.App. 5 Cir. 12/16/98), 726 So.2d 57, writ denied, 99-
433 (La. 6/25/99), 745 So.2d 1183.
Regarding the nature of the offenses, on counts one through three, Defendant
was adjudicated a fourth felony habitual offender and sentenced to eighty years at
hard labor pursuant to La.R.S. 15:529.1(A)(4)(a). Counts one and two were
ordered to be served without the benefit of probation or suspension of sentence,
whereas count three was ordered to be served without the benefit of parole,
probation, or suspension of sentence. At the time of the offenses, La.R.S.
15:529.1(A)(4)(a) provided for a sentence of “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[.]” Therefore, the sentences for count one
(possession with the intent to distribute cocaine), count two (possession of
methamphetamine), and count three (illegal carrying of a weapon while in
15
possession of a CDS) fall within the statutory limits of not less than twenty years
but not more than life imprisonment.
On count four, Defendant was adjudicated a third felony habitual offender
and sentenced to forty years at hard labor without the benefit of parole, probation,
or suspension of sentence pursuant to La.R.S. 15:529.1(A)(3)(a). At the time of
the offense, La.R.S. 15:529.1(A)(3)(a) provided for a sentence of a “determinate
term not less than two-thirds of the longest possible sentence for the conviction and
not more than twice the possible sentence prescribed for a first conviction[.]” The
sentencing range for the underlying offense, possession of a firearm by a convicted
felon, was ten to twenty years at hard labor without the benefit of parole,
probation, or suspension of sentence. La.R.S. 14:95.1(B). Therefore, Defendant
received the maximum enhanced sentence for this conviction.
As to the nature and background of the offender, this court looks to the
comments made at his sentencing and resentencing hearings. The trial court noted
a lengthy history of felony and misdemeanor convictions, including numerous
firearm and drug convictions. Defendant was labeled “the true definition of a drug
dealer” as the trial court stated he had been selling drugs for over two decades
despite his various drug-related arrests. The trial court observed that even after
conviction and serving time, Defendant started dealing drugs again upon his
release. The PSI reflected no evidence of a work history, yet Defendant was able
to post bond of over $225,000 in roughly a week. Finally, the trial court noted that
Defendant had not and would not abide by the law. The trial court did not find any
mitigating evidence.
The final factor in Baker is a comparison of the sentences imposed for
similar crimes. As stated above, Defendant was given concurrent eighty-year
16
sentences for possession with the intent to distribute cocaine (count one) and
possession of methamphetamine (count two) as a fourth felony habitual offender.
The State directs this court’s attention to State v. Sullivan, 51,180, 51,181 (La.App.
2 Cir. 2/15/17), 216 So.3d 175, where the defendant was convicted of three counts
of distribution of cocaine and one count of distribution of methamphetamine. He
was later adjudicated a fourth felony habitual offender and sentenced to concurrent
terms of sixty years at hard labor on each count without the benefit of probation or
suspension of sentence. Id. The second circuit found the trial court did not abuse
its sentencing discretion as it “considered the aggravating and mitigating
circumstances, Sullivan’s personal history, the seriousness of the offenses, and the
likelihood of rehabilitation.” Id. at 185. Like Defendant, Sullivan was described
as an experienced drug distributer who demonstrated a lack of respect for the law
and a lack of desire to reform. Id.
However, the State also notes that Defendant did not receive the maximum
life sentences he could have received under La.R.S. 15:529.1(A)(4)(a). In State v.
Douglas, 10-2039 (La.App. 1 Cir. 7/26/11), 72 So.3d 392, writ denied, 11-2307
(La. 5/25/12), 90 So.3d 406, writ denied, 12-2508 (La. 5/3/13), 115 So.3d 474, the
defendant was convicted of attempted possession of cocaine, in violation of La.R.S.
40:967, adjudicated a fourth felony habitual offender, and sentenced to life
imprisonment. In affirming the defendant’s sentence, the first circuit held:
Based on his prior convictions, as a fourth-felony habitual
offender, the defendant was exposed to a penalty of imprisonment,
with or without hard labor, for a minimum of twenty years to a
maximum of life. See LSA–R.S. 40:967(C)(2); LSA–R.S. 14:27(D)(3)
and LSA–R.S. 40:979(A). See also LSA–R.S. 15:529.1(A)(1)(c)(i)
(prior to the 2010 amendments). As previously noted, the defendant
received the maximum sentence. This court has stated that maximum
sentences permitted under statute may be imposed only for the most
serious offenses and the worst offenders, State v. Easley, 432 So.2d
17
910, 914 (La.App. 1st Cir.1983), or when the offender poses an
unusual risk to the public safety due to his past conduct of repeated
criminality. See State v. Chaney, 537 So.2d 313, 318 (La.App. 1st
Cir.1988), writ denied, 541 So.2d 870 (La.1989).
Initially we point out that, in denying two separate motions for
reconsideration of the sentence, the trial court specifically noted that
all relevant aggravating and/or mitigating circumstances were taken
into consideration. Further, the evidence introduced at the habitual
offender hearing in this case established that the defendant has been
committing felony drug offenses since 1990. Considering the
defendant’s extensive criminal record, we find that the trial court
adequately considered the criteria of Article 894.1 and did not
manifestly abuse its discretion in imposing the statutory maximum
sentence upon the defendant. Such a sentence is clearly supported by
the record. The defendant, who has repeatedly committed felony drug
offenses, poses an unusual risk to public safety and is exactly the type
of recidivist that the Habitual Offender Law intends to punish
severely. The maximum sentence imposed in this case is not
unconstitutionally excessive.
Id. at 397.
A panel of this court recently upheld a life sentence for a defendant
convicted of possession of a Schedule II controlled dangerous substance and
adjudicated a fourth felony habitual offender pursuant to La.R.S. 15:529.1(A)(4)(a).
State v. Cooley, 22-140 (La.App. 3 Cir. 10/5/22) (unpublished opinion).
For count three, illegal carrying of a weapon while unlawfully in possession
of a controlled dangerous substance, Defendant also received an eighty-year
sentence as a fourth felony habitual offender. We find the trial court did not abuse
its sentencing discretion based on Defendant’s history of drug and firearm arrests
and convictions. Furthermore, based on the recommendation that the eighty-year
sentences for possession with the intent to distribute cocaine (count one) and
possession of methamphetamine (count two) are not excessive, we similarly find
the eighty-year sentence for count three is not excessive.
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Finally, Defendant received the maximum forty-year sentence for count
four, possession of a firearm by a convicted felon, as a third felony habitual
offender. As Defendant notes in his appellate brief, “Generally, maximum
sentences are reserved for the most serious violation of the offense and the worst
type of offender.” State v. Herbert, 12-228, p. 5 (La.App. 3 Cir. 6/13/12), 94 So.3d
916, 920, writ denied, 12-1641 (La. 2/8/13), 108 So.3d 78. However, we find
Defendant fits within that category based on his extensive criminal history and
disregard for public safety. In State v. Martin, 17-1100 (La.App. 1 Cir. 2/27/18),
243 So.3d 56, writ denied, 18-568 (La. 3/6/19), 266 So.3d 901, the defendant was
convicted of two counts of aggravated assault with a firearm, attempted aggravated
assault with a firearm, and possession of a firearm by a convicted felon. The
defendant was later adjudicated a second felony habitual offender with respect to
possession of a firearm by a convicted felon and sentenced to the maximum
sentence which the first circuit affirmed on appeal. Id.
At the time of the defendant’s underlying offense, felon in
possession of a firearm, the offense carried a sentence of
imprisonment at hard labor for not less than ten nor more than twenty
years without the benefit of probation, parole, or suspension of
sentence, and a fine of not less than one thousand dollars nor more
than five thousand dollars. La. R.S. 14:95.1B. As a second-felony
habitual offender, the defendant’s mandatory sentence was not less
than one-half the longest term and not more than twice the longest
term prescribed for a first conviction. La. R.S. 15:529.1A(1) (prior to
revision by 2017 La. Acts No. 282, § 1). Thus, the defendant’s
sentencing exposure was ten years to forty years without the benefit of
parole, probation, or suspension of sentence. See State v. Bruins, 407
So.2d 685, 687 (La. 1981). The defendant was sentenced to forty
years at hard labor without the benefit of probation or suspension of
sentence.
The defendant contends that this sentence is “beyond
excessive” based on the facts of the case and the wishes of his family
and the victims in this case that he receive mental health treatment.
Despite his contentions, the defendant did not present any testimony
or evidence prior to the imposition of his habitual offender sentence in
19
support of this argument. Given the facts of this case and the
defendant’s predicate convictions for drug-related felonies and simple
burglary, the sentence imposed by the district court was not grossly
disproportionate to the severity of the offense and, therefore, was not
excessive. This assignment of error is without merit.
Id. at 66-67 (footnote omitted).
Based on the foregoing, we find the trial court did not abuse its sentencing
discretion. The record demonstrates that Defendant has a lengthy criminal history,
and he has been given numerous opportunities to reform and has failed to do so.
Further, the record supports the trial court’s reasoning that lesser sentences would
deprecate the seriousness of the offenses and that there is an undue risk during the
period of a suspended sentence or probation that Defendant would commit another
crime. The trial court thoroughly detailed the factors it found in aggravation and
the fact that no mitigating factors existed. The sentences are not out of proportion
to the seriousness of the offenses, nor do they shock the sense of justice.
Therefore, the trial court did not err in sentencing Defendant to concurrent
sentences of eighty years at hard labor for counts one through three and forty years
at hard labor for count four.
Accordingly, Defendant’s sentences are not constitutionally excessive, and
this assignment of error is without merit.
PRO SE ASSIGNMENTS OF ERROR
NUMBERS ONE, TWO, AND THREE
In his first pro se assignment of error, Defendant challenges his adjudication
as a third felony habitual offender and a fourth felony habitual offender on the
contention that the State failed to prove the five-year cleansing period had not
lapsed. Similarly, in his second pro se assignment of error, Defendant argues the
“State failed to establish when the defendant was actually discharged from Federal
20
custody[.]” Finally, Defendant alleges the trial court failed to address certain
matters in his motion to reconsider sentence, specifically his argument that the
cleansing period had lapsed. Because these assignments of error are intertwined,
they will be discussed together.
In Brown, 299 So.3d at 678-79 (footnotes omitted), this court affirmed
Defendant’s habitual offender adjudication based on the following:
[T]he trial court erred in finding the applicable cleansing period was
ten years. However, the trial court calculated Mr. Brown’s cleansing
time as amounting to “just less than three (3) years” for the
convictions arising out of the June 3, 2017 arrest and “just over three
(3) years” for the convictions arising out of the October 31, 2017
arrest. The trial court calculated this time based upon a September 8,
1994 conviction, a September 8, 1995 conviction with a May 7, 1995
offense date, and a March 14, 2006 conviction with an August 14,
2003 offense date, as follows:
The time between the first conviction on
September 8, 1994 until the offense date of his second
felony of May 7, 1995 is zero (0) years, as he was still on
felony supervision. The time between the second
conviction of September 8, 1995 until the third
conviction offense date of August 14, 2003 is zero (0)
years, as he was still on felony supervision.
Mr. Brown was released from felony supervision on July
25, 2014. The instant offenses were committed June 9,
2017 and October 31, 2017.
As will be discussed below, Mr. Brown contends the use of the
July 25, 2014 date, the date he was released from federal custody, was
error. . . .
....
As stated above, the trial court erred in finding the applicable
cleansing period was ten years when it was actually five years. In its
habitual offender memorandum to the trial court, the State correctly
asserted there was a five-year cleansing period. Despite this, however,
we find the trial court did not err in finding Mr. Brown’s cleansing
period did not begin until his release from federal custody, as
Louisiana courts have unanimously and consistently held that
computation of the cleansing period is based upon actual date of
release from custody or supervision. See State v. Anderson, 349 So.2d
311 (La.1977); State v. Robinson, 549 So.2d 1282 (La.App. 3 Cir.
21
1989); State v. Thomas, 52,617 (La.App. 2 Cir. 5/22/19), 272 So.3d
999, writ denied, 19-1045 (La. 2/10/20), 292 So.3d 61; and State v.
Stock, 16-552 (La.App. 5 Cir. 2/22/17), 212 So.3d 1268.
There is no dispute that Mr. Brown was released from federal
custody on July 24, 2014 [the day the bill of indictment was
dismissed]. While the State bears the burden of proving the cleansing
period had not passed, the evidence produced at the hearing
established that Mr. Brown was not released from federal custody
until July 24, 2014. Accordingly, we find the trial court’s calculation
of Mr. Brown’s cleansing period was correct and the applicable five-
year cleansing period had not run when Mr. Brown was arrested in
June of 2017. This assignment of error, therefore, lacks merit.
Nevertheless, after affirming his habitual offender adjudication, this court
observed in a footnote that:
Mr. Brown’s supervised release on his March 14, 2006
conviction was revoked on October 28, 2010. However, sentencing
was “deferred until charges contained in violation #1 are disposed of.”
On February 29, 2012, Mr. Brown was then “sentenced to 24 months,
concurrent with sentence imposed in 2:10-cr-00291” of 150 months
incarceration, with eight years of supervised release and credit for
time served. The federal docket number 2:10-cr-00291 is the docket
number vacated in U.S. v. Brown, 567 F.App’x. 272. Given all of this
information, Mr. Brown is correct that he should have been released
from custody on his 2006 conviction no later than October 28, 2012,
given his revocation date, sentence, and not granting any good time
diminutions of sentence.
Id. at 679, n.7. Defendant sought review of this court’s determination that the five-
year cleansing period had not lapsed, and the supreme court denied writs in Brown,
305 So.3d 105.
At his resentencing hearing, Defendant orally moved to quash the habitual
offender bill based on his argument that the five-year cleansing period had lapsed
by the commission date of the current offenses. The trial court read directly from
this court’s opinion affirming Defendant’s habitual offender adjudication, denied
the motion, and proceeded with sentencing. On April 27, 2022, Defendant filed a
motion to correct illegal sentence and attached two-page documentation purporting
22
to show his actual release from federal custody was May 7, 2012. In written
reasons, the trial court again denied the motion, finding the claim was not before
the court because Defendant’s habitual offender adjudication had been affirmed on
appeal. Further, the trial court noted that “unless a pleading captioned as a motion
to correct illegal sentence points to a claimed illegal term in the petitioner’s
sentence, it is not cognizable under Article 882. See State v. Mead, [14-1051
(La.App. 4 Cir. 4/22/15),] 165 So.3d 1044[.]”
Defendant raises the same claim in his pro se brief to this court. On
September 28, 2022, this court received a “Motion for Leave to Amend Exhibits
Within Pro Se Supplemental Brief of Appellant Casetti Brown” wherein Defendant
attached additional documentation of his release date from federal custody.
However, because this court affirmed Defendant’s habitual offender
adjudication based on the information in the record at the time of his adjudication
hearing and because the trial court did not consider the documentation Defendant
attached to his motion to correct illegal sentence, this court will not consider
Defendant’s argument that the five-year cleansing period lapsed. Defendant may
seek review of the trial court’s denial of his motion to correct illegal sentence by
filing an application for supervisory writs. La.Code Crim.P. art. 912; State v.
Decay, 18-626 (La.App. 5 Cir. 2/27/19), 266 So.3d 578.
Accordingly, Defendant’s pro se assignments of error are without merit.
CONCLUSION
Defendant’s habitual offender sentences are hereby affirmed. This court
amends Defendant’s sentence for possession with the intent to distribute cocaine to
require that only the first two years be served without the benefit of parole, and we
hereby strike the denial of parole eligibility from Defendant’s sentence for
23
possession of methamphetamine. Additionally, the trial court is instructed to make
an entry in the court minutes reflecting these changes.
AFFIRMED AS AMENDED; REMANDED WITH INSTRUCTIONS.
24