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State v. Kennon

Court of Appeals of Louisiana, Second Circuit

May 22, 2019

STATE OF LOUISIANA Appellee
v.
KEDDRICK KENNON Appellant

          Appealed from the Twenty-Sixth Judicial District Court for the Parish of Webster, Louisiana Trial Court No. 89051 Honorable Parker Self, Judge

          LOUISIANA APPELLATE PROJECT Counsel for Appellant By: Peggy Sullivan

          KEDDRICK KENNON Pro Se

          J. SCHUYLER MARVIN Counsel for Appellee District Attorney

          HUGO A. HOLLAND, JR. JOHN M. LAWRENCE Assistant District Attorneys

          Before MOORE, GARRETT, and BLEICH (Ad Hoc), JJ.

          GARRETT, J.

         The defendant, Keddrick Kennon, was convicted of one count of distribution of cocaine and one count of possession of cocaine. On appeal, his convictions were affirmed and his sentences were affirmed as amended. He subsequently pled guilty to being a second felony offender; the trial court vacated his previous sentences and imposed an agreed upon sentence of 60 years at hard labor. Because he was not sentenced on both convictions, the defendant filed a writ application which we granted, vacating the sentence and remanding for resentencing. On remand, the trial court sentenced the defendant to 60 years at hard labor for the habitual offender adjudication based upon the cocaine distribution conviction and five years at hard labor for the cocaine possession conviction. The sentences were imposed concurrently. The defendant now appeals his 60-year sentence at hard labor as excessive. We affirm the defendant's adjudication as a second felony offender and the sentences imposed upon him.

         FACTS

         The facts pertaining to the defendant's convictions were set forth in detail in State v. Kennon, 50, 511 (La.App. 2 Cir. 4/13/16), 194 So.3d 661, writ denied, 16-0947 (La. 5/19/17), 220 So.3d 747. To briefly summarize, an inmate serving as a trustee for the Minden Police Department agreed to work as a confidential informant ("CI") in controlled drug purchases in January and February 2014. As the result of several transactions with the CI, the defendant was charged by bill of information with three counts of distribution of a Schedule II controlled dangerous substance ("CDS"), cocaine, in violation of La. R.S. 40:967(A)(1), and one count of distribution of an imitation CDS, in violation of La. R.S. 40:971.1. Following a jury trial, the defendant was acquitted on one count of cocaine distribution and the imitation CDS distribution charge. He was convicted of one count of cocaine distribution, as well as one count of possession of cocaine as a responsive verdict to the third charge of cocaine distribution. He was sentenced to 30 years at hard labor on the distribution conviction and five years at hard labor on the possession conviction, to run consecutively. This court affirmed his convictions, amended his distribution sentence to be served without benefit of parole, probation or suspension of sentence for the first two years, and, as amended, affirmed his sentences.

         On June 3, 2016, the state charged the defendant as a fourth felony offender.[1] On August 1, 2016, pursuant to a plea agreement, the defendant pled guilty to being a second felony offender, his previous sentences were vacated, and he was resentenced to 60 years at hard labor.[2] The trial court informed him that he had 30 days to appeal his sentence.

         On March 1, 2018, the defendant filed a motion to correct illegal sentence claiming that the trial court failed to (1) specify the class of multiple offender (second, third or fourth) he was adjudicated, and (2) impose determinate sentences for the two convictions. The trial court denied the motion, and the defendant made a writ application to this court. We denied the writ as to the classification, finding that the record indicated that the defendant pled guilty to being a second felony offender. However, we granted the writ as to the determinate sentences issue because the defendant received only one sentence, the agreed upon 60-year sentence, despite the trial court vacating both of his previously imposed sentences. We set aside the 60-year sentence and remanded the case to the trial court for resentencing. State v. Kennon, 52, 343 (La.App. 2 Cir. 7/20/18).

         The resentencing hearing was held on September 10, 2018. Initially, the defendant represented himself and questioned whether the "new law comes into effect" regarding his "multi-bill." The trial court informed him that he would be able "to seek relief based upon whatever the law is there." The trial court then appointed the public defender to represent the defendant at the hearing and temporarily passed the case. After consulting with the defendant, the public defender argued that the defendant should be "subject to retroactivity of the new habitual law under Esteen v. State."[3] The trial court held that, under the habitual offender bill of information, it would sentence the defendant on the cocaine distribution conviction according to the "agreed upon time of sixty years at hard labor." As to the cocaine possession conviction, the trial court sentenced him to five years at hard labor, to be served concurrently and with credit for time served. The trial court also informed the defendant that he had 30 days to appeal "this sentence."

         On October 16, 2018, the defendant filed a pro se motion for appeal, which the trial court granted. It also appointed the Louisiana Appellate Project ...


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