Judgment rendered April 22, 2020. Application for rehearing may be filed within the delay allowed by Art. 922, La. C. Cr. P.
No. 53,461-KA
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
STATE OF LOUISIANA Appellee
versus
FREDERICK D. LEE Appellant
Appealed from the First Judicial District Court for the Parish of Caddo, Louisiana Trial Court No. 200229
Honorable Charles Gordon Tutt, Judge
LOUISIANA APPELLATE PROJECT Counsel for Appellant By: Paula Corley Marx
JAMES E. STEWART, SR. Counsel for Appellee District Attorney
WILLIAM C. GASKINS CHARLES KENNETH PARR Assistant District Attorneys
Before PITMAN, STEPHENS, McCALLUM, JJ. McCALLUM, J.
Frederick Lee (“Lee”) appeals his sentence for armed robbery. He
argues that the sentencing judge failed to comply with La. C. Cr. P. art.
894.1. Additionally, he alleges that his sentence is unconstitutionally
excessive. Lee argues that his sentence of 90 years, with the benefit of
parole, is an unduly harsh and excessive sentence in light of mitigating
factors in his favor. For the reasons articulated below, we agree with the
trial court’s sentence in term of years. However, the trial court erred in
granting Lee the benefit of parole. Therefore, we must vacate the illegally
lenient sentence and remand to the trial court for reconsideration.
FACTUAL AND PROCEDURAL HISTORY
It is undisputed that Lee was previously convicted of two felonies
prior to his most recent conviction for armed robbery. In 1993, Lee pled
guilty to possession of cocaine. In 1995, Lee pled guilty to attempted first-
degree murder. Lee was charged with his most recent crime, armed robbery,
in 1998.
On November 23, 1998, Lee robbed Patricia Martin (“Ms. Martin”)
and her friend at an apartment complex in Caddo Parish. Ms. Martin and her
friend asked Lee for a ride at which point he asked if they had any money.
Ms. Martin then showed him thirty dollars. Lee demanded the money and
Ms. Martin refused. Lee then pulled out a handgun and put it to Ms.
Martin’s head. Ms. Martin still refused, at which point Lee struck her on the
neck, causing her to drop the money. Lee grabbed the money and fled. Ms.
Martin testified to those facts at trial and her friend corroborated the
testimony. On May 12, 2000, a jury, by unanimous verdict, found Lee
guilty as charged of armed robbery. On June 2, 2000, the trial court adjudged Lee a third-felony habitual
offender. Lee’s prior convictions for attempted first-degree murder and his
conviction for armed robbery qualified as crimes of violence. Under
Louisiana law at that time, in conformity with La. R.S. 15:529.1, a life
sentence was mandatory. This Court affirmed that sentence. State v. Lee,
35,333 (La. App. 2 Cir. 1/23/02), 807 So. 2d 359, writ denied, 2002-0644
(La. 1/31/03), 836 So. 2d 60.
In 2018, Lee filed a motion to correct illegal sentence. His motion
was based on 2001 legislative amendments to the habitual offender
sentencing law. In light of State ex rel. Esteen v. State, 2016-0949 (La.
1/30/18), 239 So. 3d 233, the law, as amended, was to apply retroactively.
For the crimes and sentence involved in Lee’s case, the amended law no
longer allowed for a life sentence. The trial court granted Lee’s motion and
resentenced Lee in accordance with the new guidelines.1
Because one of Lee’s previous convictions was not a crime of
violence, a life sentence was no longer allowed. Under the amended
guidance, the trial court could impose a sentence ranging from a minimum
of two-thirds the longest term up to a maximum of two times the longest
term. Therefore, Lee’s new sentencing range was a minimum of 66 years up
to a maximum of 198 years. The trial court sentenced Lee to 90 years with
the benefit of parole but without the benefits of probation or suspension of
sentence. Lee filed a motion to reconsider sentence which the trial court
denied. Lee then appealed, setting the matter before us.
1 We note that although a different judge granted Lee’s motion and ordered the resentencing, the original trial court judge that sentenced Lee in 2000 is the same trial court judge that resentenced Lee. 2 DICUSSION
Lee argues that the trial court was unconstitutionally excessive in its
sentencing. He alleges that the judge ignored the mitigating factors of his
age and rehabilitation. We utilize a two-prong test in reviewing an alleged
excessive sentence. First, we must ensure that the trial court took
cognizance of and considered the criteria set forth in La. C. Cr. P. art. 894.1.
Second, we must determine whether the sentence is constitutionally
excessive.
The trial court is not required to list every aggravating and mitigating
circumstance as long as the record indicates that it adequately considered the
guidelines. State v. Smith, 433 So. 2d 688 (La. 1983); State v. Payne, 52,310
(La. App. 2 Cir. 1/16/19), 262 So. 3d 498; State v. DeBerry, 50,501 (La.
App. 2 Cir. 4/13/16), 194 So. 3d 657, writ denied, 2016-0959 (La. 5/1/17),
219 So. 3d 332. Remand is unnecessary even when full compliance with La.
C. Cr. P. art. 894.1 is not met, as long as the record clearly shows an
adequate factual basis for the sentence. State v. Lanclos, 419 So. 2d 475
(La. 1982); State v. DeBerry, supra. The articulation of that factual basis is
the goal of the article, not a rigid, mechanical compliance with it.
On July 15, 2019, the trial court held the hearing to resentence Lee.
The same judge that originally sentenced Lee presided over the matter, and
was well familiar with Lee’s history and the circumstances necessitating the
resentencing. The focus of the hearing was to correct Lee’s sentence in
order to comply with the amended habitual offender sentencing guidelines.
The judge took into consideration Lee’s sincerity. Lee stated to the
court that at the time of the crime he lacked a sense of direction and that he
committed mistakes. Lee asserted that he had subsequently found that 3 direction and even acquired his GED. Lee further asserted that he was only
18 years old when he committed his first crime.
The judge considered Lee’s age at the time of his first felony.
However, he also noted that Lee was 20 years old when he committed his
second felony and 23 years old when he committed the armed robbery. He
further noted that Lee had his probation revoked as to his first felony and
had a total of ten arrests in the years after that conviction.
The trial judge had previously discussed and considered the guidelines
and factors mandated by La. C. Cr. P. art. 894.1. He found Lee in need of
correctional treatment or a custodial environment. He found that a lesser
sentence would deprecate the seriousness of the offense committed. The
judge also took note of the seriousness of the underlying crime. In
commission of the armed robbery, Lee battered the victim, Ms. Martin, and
threatened both her and her friend with a handgun.
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Judgment rendered April 22, 2020. Application for rehearing may be filed within the delay allowed by Art. 922, La. C. Cr. P.
No. 53,461-KA
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
STATE OF LOUISIANA Appellee
versus
FREDERICK D. LEE Appellant
Appealed from the First Judicial District Court for the Parish of Caddo, Louisiana Trial Court No. 200229
Honorable Charles Gordon Tutt, Judge
LOUISIANA APPELLATE PROJECT Counsel for Appellant By: Paula Corley Marx
JAMES E. STEWART, SR. Counsel for Appellee District Attorney
WILLIAM C. GASKINS CHARLES KENNETH PARR Assistant District Attorneys
Before PITMAN, STEPHENS, McCALLUM, JJ. McCALLUM, J.
Frederick Lee (“Lee”) appeals his sentence for armed robbery. He
argues that the sentencing judge failed to comply with La. C. Cr. P. art.
894.1. Additionally, he alleges that his sentence is unconstitutionally
excessive. Lee argues that his sentence of 90 years, with the benefit of
parole, is an unduly harsh and excessive sentence in light of mitigating
factors in his favor. For the reasons articulated below, we agree with the
trial court’s sentence in term of years. However, the trial court erred in
granting Lee the benefit of parole. Therefore, we must vacate the illegally
lenient sentence and remand to the trial court for reconsideration.
FACTUAL AND PROCEDURAL HISTORY
It is undisputed that Lee was previously convicted of two felonies
prior to his most recent conviction for armed robbery. In 1993, Lee pled
guilty to possession of cocaine. In 1995, Lee pled guilty to attempted first-
degree murder. Lee was charged with his most recent crime, armed robbery,
in 1998.
On November 23, 1998, Lee robbed Patricia Martin (“Ms. Martin”)
and her friend at an apartment complex in Caddo Parish. Ms. Martin and her
friend asked Lee for a ride at which point he asked if they had any money.
Ms. Martin then showed him thirty dollars. Lee demanded the money and
Ms. Martin refused. Lee then pulled out a handgun and put it to Ms.
Martin’s head. Ms. Martin still refused, at which point Lee struck her on the
neck, causing her to drop the money. Lee grabbed the money and fled. Ms.
Martin testified to those facts at trial and her friend corroborated the
testimony. On May 12, 2000, a jury, by unanimous verdict, found Lee
guilty as charged of armed robbery. On June 2, 2000, the trial court adjudged Lee a third-felony habitual
offender. Lee’s prior convictions for attempted first-degree murder and his
conviction for armed robbery qualified as crimes of violence. Under
Louisiana law at that time, in conformity with La. R.S. 15:529.1, a life
sentence was mandatory. This Court affirmed that sentence. State v. Lee,
35,333 (La. App. 2 Cir. 1/23/02), 807 So. 2d 359, writ denied, 2002-0644
(La. 1/31/03), 836 So. 2d 60.
In 2018, Lee filed a motion to correct illegal sentence. His motion
was based on 2001 legislative amendments to the habitual offender
sentencing law. In light of State ex rel. Esteen v. State, 2016-0949 (La.
1/30/18), 239 So. 3d 233, the law, as amended, was to apply retroactively.
For the crimes and sentence involved in Lee’s case, the amended law no
longer allowed for a life sentence. The trial court granted Lee’s motion and
resentenced Lee in accordance with the new guidelines.1
Because one of Lee’s previous convictions was not a crime of
violence, a life sentence was no longer allowed. Under the amended
guidance, the trial court could impose a sentence ranging from a minimum
of two-thirds the longest term up to a maximum of two times the longest
term. Therefore, Lee’s new sentencing range was a minimum of 66 years up
to a maximum of 198 years. The trial court sentenced Lee to 90 years with
the benefit of parole but without the benefits of probation or suspension of
sentence. Lee filed a motion to reconsider sentence which the trial court
denied. Lee then appealed, setting the matter before us.
1 We note that although a different judge granted Lee’s motion and ordered the resentencing, the original trial court judge that sentenced Lee in 2000 is the same trial court judge that resentenced Lee. 2 DICUSSION
Lee argues that the trial court was unconstitutionally excessive in its
sentencing. He alleges that the judge ignored the mitigating factors of his
age and rehabilitation. We utilize a two-prong test in reviewing an alleged
excessive sentence. First, we must ensure that the trial court took
cognizance of and considered the criteria set forth in La. C. Cr. P. art. 894.1.
Second, we must determine whether the sentence is constitutionally
excessive.
The trial court is not required to list every aggravating and mitigating
circumstance as long as the record indicates that it adequately considered the
guidelines. State v. Smith, 433 So. 2d 688 (La. 1983); State v. Payne, 52,310
(La. App. 2 Cir. 1/16/19), 262 So. 3d 498; State v. DeBerry, 50,501 (La.
App. 2 Cir. 4/13/16), 194 So. 3d 657, writ denied, 2016-0959 (La. 5/1/17),
219 So. 3d 332. Remand is unnecessary even when full compliance with La.
C. Cr. P. art. 894.1 is not met, as long as the record clearly shows an
adequate factual basis for the sentence. State v. Lanclos, 419 So. 2d 475
(La. 1982); State v. DeBerry, supra. The articulation of that factual basis is
the goal of the article, not a rigid, mechanical compliance with it.
On July 15, 2019, the trial court held the hearing to resentence Lee.
The same judge that originally sentenced Lee presided over the matter, and
was well familiar with Lee’s history and the circumstances necessitating the
resentencing. The focus of the hearing was to correct Lee’s sentence in
order to comply with the amended habitual offender sentencing guidelines.
The judge took into consideration Lee’s sincerity. Lee stated to the
court that at the time of the crime he lacked a sense of direction and that he
committed mistakes. Lee asserted that he had subsequently found that 3 direction and even acquired his GED. Lee further asserted that he was only
18 years old when he committed his first crime.
The judge considered Lee’s age at the time of his first felony.
However, he also noted that Lee was 20 years old when he committed his
second felony and 23 years old when he committed the armed robbery. He
further noted that Lee had his probation revoked as to his first felony and
had a total of ten arrests in the years after that conviction.
The trial judge had previously discussed and considered the guidelines
and factors mandated by La. C. Cr. P. art. 894.1. He found Lee in need of
correctional treatment or a custodial environment. He found that a lesser
sentence would deprecate the seriousness of the offense committed. The
judge also took note of the seriousness of the underlying crime. In
commission of the armed robbery, Lee battered the victim, Ms. Martin, and
threatened both her and her friend with a handgun.
The sentencing court has wide discretion in imposing a sentence
within statutory limits, and such a sentence will not be set aside as excessive
in the absence of manifest abuse of that discretion. State v. Williams, 2003-
3514 (La. 12/13/04), 893 So. 2d 7; State v. Duncan, 47,697 (La. App. 2 Cir.
1/16/13), 109 So. 3d 921, writ denied, 2013-0324 (La. 9/13/13), 120 So. 3d
280. The trial court is in the best position to consider the aggravating and
mitigating circumstances of a particular case. Thus, it is given broad
discretion in sentencing. State v. Cook, 1995-2784 (La. 5/31/96), 674 So. 2d
957, cert. denied, 519 U.S. 1043, 117 S. Ct. 615, 136 L. Ed. 2d 539 (1996).
The penalty for a conviction of armed robbery is imprisonment at hard
labor for 10 to 99 years, without benefit of parole, probation or suspension
of sentence. La. R.S. 14:64. Under the amended effective provisions of La. 4 R.S. 15:529.1, a third-felony offender “shall be sentenced to imprisonment
for a determinate term not less than two-thirds of the longest possible
sentence for the conviction and not more than twice the longest possible
sentence prescribed for a first conviction[.]” The sentence shall be imposed
without the benefit of probation or suspension of sentence. The benefit of
parole shall be determined by the sentencing provisions of the underlying
offense. La. R.S. 15:529.1(G); State v. Hopkins, 52,660 (La. App. 2 Cir.
4/10/19), 268 So. 3d 1226, 1230, writ denied, 2019-0841 (La. 9/24/19), 278
So. 3d 978. We again note that armed robbery does not allow the benefit of
parole.
In consideration of the seriousness of the crime committed, we find no
error in the trial court’s term of years. In accordance with the law of this
state and the conviction for armed robbery, as well as his previous
convictions, Lee’s sentencing range was 66 to 198 years, without the benefit
of parole, probation or suspension of sentence. The trial court sentenced Lee
less than half of the range allowed, 90 years.
The record undoubtedly shows an adequate factual basis for the
sentence imposed. Lee’s criminal history is one that shows an escalation to
more serious crimes. Lee’s previous sentences at hard labor failed to deter
his criminal behavior. He is an undue risk of harm to society and likely to
continue criminal behavior. We further note the serious actions and violence
he committed against Ms. Martin and her friend. Therefore, we find that his
sentence is not excessive and we agree with the trial court’s sentencing with
regard to the term of years.
However, the trial court committed an error patent. The sentencing
provisions for armed robbery do not allow for the benefit of parole. The trial 5 court sentenced Lee to 90 years with the benefit of parole. Therefore, that
sentence is illegally lenient.
Our jurisprudence is clear that when a trial court hands down an
illegally lenient sentence, we must vacate the sentence. See State v. Harris,
52,663 (La. App. 2 Cir. 8/14/19), 277 So. 3d 912; State v. Rutan, 53,005 (La.
App. 2 Cir. 11/20/19), 285 So. 3d 493. In accordance with those previous
decisions, we vacate and remand for the trial court to impose a new sentence
that remedies the error patent as discussed.
CONCLUSION
The sentence of the trial court is VACATED. We REMAND to the
trial court for reconsideration of a sentence consistent with this opinion.