State v. Allen

388 So.3d 549

55,701 (La.App. 2 Cir. 5/22/24)

STATE of Louisiana, Appellee

v.Kevin O’Brien ALLEN, Appellant

No. 55,701-KA

Court of Appeal of Louisiana, Second Circuit.

Judgment Rendered May 22, 2024

Appealed from the Twenty-Sixth Judicial District Court for the Parish of Bossier, Louisiana, Trial Court No. 199,853, Honorable Michael Owens Craig, Judge

JANE HOGAN, Counsel for Appellant

J. SCHUYLER MARVIN, District Attorney, RICHARD RUSSELL RAY, Assistant District Attorney, Counsel for Appellee

Before PITMAN, HUNTER, and MARCOTTE, JJ.

PITMAN, J.

₁A jury found Defendant Kevin O’Brien Allen guilty as charged of two counts of distribution of a Schedule I Controlled Dangerous Substance, i.e., marijuana. The trial court sentenced him to concurrent 10-year sentences on each count, to run consecutively to any other sentence. The trial court then adjudicated Defendant a fifthfelony habitual offender and sentenced him to life in prison. The Louisiana Supreme Court granted Defendant’s application for post-conviction relief, vacated his sentence and remanded this matter to the trial court with instructions to resentence him to a term of imprisonment that is not constitutionally excessive. On remand, the trial court sentenced Defendant to serve 35 years at hard labor with credit for time served. For the following reasons, we affirm Defendant’s sentence.

FACTS

On June 14, 2013, the state charged Defendant with two counts of distribution of a Schedule I Controlled Dangerous Substance, in violation of La. R.S. 40:966, and alleged that he distributed marijuana on December 27, 2012, and March 13, 2013. A jury found him guilty as charged. The trial court sentenced him to concurrent sentences of ten years at hard labor on each count to be served consecutively with any other sentence. In State v. Allen, 49,642 (La. App. 2 Cir. 2/26/15), 162 So. 3d 519, writ denied, 15-0608 (La. 1/25/16), 184 So. 3d 1289, this court affirmed his convictions and sentences.

On June 16, 2015, the state charged Defendant as a fifth-felony habitual offender. Following a hearing, the trial court adjudicated him a fifth-felony habitual offender based on the predicate offenses of possession with intent to distribute marijuana; two convictions of possession of ₂marijuana, second offense; and possession of a Schedule II Controlled Dangerous Substance, i.e., methamphetamine. It vacated the ten-year sentences and resentenced him under La. R.S. 15:529.1 to life in prison. In State v. Allen, 50,869 (La. App. 2 Cir. 9/28/16), 206 So. 3d 1093, writ denied, 16-2046 (La. 9/15/17), 225 So. 3d 484, this court affirmed his habitual offender adjudication and sentence.

On October 29, 2021, Defendant filed an application for post-conviction relief and argued that he was denied effective assistance of counsel regarding his habitual offender sentencing. The trial court denied the application for post-conviction relief, and this court denied Defendant’s application for supervisory review. In State v. Allen, 22-00508 (La. 11/1/22), 348 So. 3d 1274, the Louisiana Supreme Court granted the writ. It stated that defense counsel failed to apprise the trial court of its duty to depart from the mandatory life sentence on the grounds that it was excessive and failed to present any mitigating evidence, including that none of the predicate offenses were violent or sexual in nature. Id. The supreme court vacated Defendant’s life sentence and remanded to the trial court with instructions to resentence him to a term of imprisonment that is not constitutionally excessive. Id. It noted that although "ameliorative sentencing changes may not apply retroactively, they may guide the court when imposing the new sentence." Id. In a footnote, it explained that "[i]n 2017, the Louisiana Legislature passed ameliorative amendments to the Habitual Offender Law, such that, if he were convicted today, [Defendant] would not be subject to a mandatory minimum life sentence, but rather a minimum 20-year sentence." Id.., citing La. R.S. 15:529.1(A)(4)(b).

₃A sentencing hearing was held on May 1, 2023. Defendant presented four witnesses. Rodney Guin, Defendant’s high school football coach, testified that he did not have any negative interactions with Defendant and that his family were loyal supporters of the team. On cross-examination, he stated that he has not had regular interactions with Defendant since his graduation in 2001 and that he was not aware of Defendant’s felony convictions or that he was in prison until he was contacted by the defense.

Sheryl Allen, Defendant’s sister, testified about Defendant’s personal history. She stated that he straggled as a student and did not have a father figure, but he enjoyed playing sports. She noted a change in his behavior around the age of 17 when he began spending time with the "wrong set of people" and using marijuana. She had never known Defendant to be violent or carry a gun. She noted that Defendant had been incarcerated for ten years and that she speaks to him on the phone and she, her children and her mother visit him in prison several times a year. She noticed positive changes in Defendant throughout his incarceration, including that he "found God." She testified that Defendant’s release from prison would help the family care for their disabled brother. She noted that he would also have a strong support system if released and that he could live with her. On cross-examination, she stated that she did not know if Defendant graduated from high school. She was aware that the state had charged Defendant with solicitation of murder but did not know that it dropped the charges after he was sentenced to life in prison.

Adrian Rocha testified that he was a policy specialist for the Crime and Justice Institute and assisted in the Justice Reinvestment Initiative, which assessed Louisiana’s criminal justice system and aimed to reduce the ₄incarceration rate of nonviolent offenders. He reviewed Defendant’s habitual offender bill and stated that under the current laws, possession of marijuana, second offense, is no longer a felony and that the sentencing guidelines for distribution of marijuana were restructured. He testified that under the ameliorative laws, Defendant would be a third-felony habitual offender subject to a sentencing range of 5 to 20 years. He also testified about his role in the Last Prisoner Project, which focuses on the intersection of cannabis and the criminal justice system, and stated that it has provided advocacy support to Defendant and will provide reentry services to him.

Rebecca Ohler, a mitigation specialist, testified that she met with Defendant and members of his family, reviewed his records, interviewed the director of the Louisiana Parole Project and researched community supports available to Defendant upon release. She learned that Defendant is from a large family in Haughton that is active in sports; that he was raised by a single mother who worked two jobs; that he had a difficult time in school and did not graduate from high school; and that his trusting nature resulted in him being involved with people who got in trouble. She stated that Defendant has two teenage children, and his son described him as a wonderful father whom he wants back in his life. She noted that the children have not had contact with Defendant since he was sentenced to life in prison. She met Defendant’s brother, who has a traumatic brain injury, and believed that Defendant would help care for him. Ohler discussed Defendant’s criminal history and noted that none of his convictions are for violent conduct. She described his employment history as "low-scaled labor jobs." She stated that while incarcerated, Defendant has sent money to his mother; was baptized; has completed programs involving mentorship, ₅sobriety, mental health and anger management; and has worked in the kitchen and as a field laborer. She reviewed his conduct record, which showed that he had not committed any violent attacks. She stated that pursuant to a department of corrections assessment tool, Defendant is classified as a low-risk offender. She discussed Defendant’s reentry plan and noted that he has been accepted into the Louisiana Parole Project, has support through the Last Prisoner Project and has job opportunities in Haughton. On cross-examination, Ohler testified that Defendant has not completed a GED course. She noted that while incarcerated, he was written up for intoxication and simple fights.

Throughout the sentencing hearing, references were made to the state charging Defendant with two counts of solicitation of murder and then dismissing these charges once he was sentenced to life in prison. The trial court stated that the charges would not factor into the sentence because they were unadjudicated. It also noted that Defendant is a fifth-felony habitual offender, not a third-felony habitual offender, because the Louisiana Supreme Court did not vacate his convictions for possession of marijuana, second offense. The trial court noted that the applicable sentencing range was 20 years to life in prison. It then took the matter under advisement.

On May 31, 2023, the trial court sentenced Defendant to 35 years at hard labor with credit for time served. The court stated:

[T]he Court is well familiar with Mr. Allen’s case insomuch as, um, I’ve been a party to the pretrial discussions with defense attorneys and the - the State, been the judge presiding over the jury trial that led to the conviction, the judge that presided over the hearings and trials on the habitual offender. I’ve reviewed the remanding documents from the Supreme Court finding that the life sentence that was given as a result of being a, um, a fourth or greater felony offender that existed at the time of Mr. Allen’s conviction, um, they found that to be unconstitutionally ₆excessive, remanded him back to this Court for consideration. Now, in the infinite wisdom of the - the legislature and of the Supreme Court the

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