State of Louisiana v. Terrell Stipe

• Court: Louisiana Court of Appeal
• Decided: March 9, 2011
• Docket: KA-0010-0877
• Status: Unknown

Opinion

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

10-877

STATE OF LOUISIANA

VERSUS

TERRELL STIPE

**********

APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF CALCASIEU, NOS. 18223-06 AND 18225-06 HONORABLE ALVIN TURNER, JR., DISTRICT JUDGE

MARC T. AMY JUDGE

Court composed of Marc T. Amy, Shannon J. Gremillion, and Phyllis M. Keaty, Judges.

AFFIRMED AND REMANDED WITH INSTRUCTIONS.

Ricky L. Babin District Attorney Donald D. Candell Assistant District Attorney Post Office Drawer 1899 Gonzales, LA 70707 (225) 644-3333 COUNSEL FOR APPELLEE: State of Louisiana

Margaret S. Sollars Louisiana Appellate Project 513 Country Club Boulevard Thibodaux, LA 70301-3711 (985) 446-2618 COUNSEL FOR DEFENDANT/APPELLANT: Terrell Stipe William J. Franklin Louisiana Appellate Project 3001 Old Minden Road Bossier City, LA 71112 (318) 746-7467 COUNSEL FOR DEFENDANT/APPELLANT: Terrell Stipe AMY, Judge.

The trial court convicted the defendant of one charge of carjacking and one

charge of armed robbery with the use of a firearm. For the armed robbery charge, and

upon remand from this court, the defendant was sentenced to forty-five years at hard

labor without benefit of probation, parole, or suspension of sentence with a five-year

enhancement for the use of a firearm, to be served without hard labor and without

benefit of probation, parole, or suspension of sentence. The five-year enhancement

was ordered to be served consecutively to the previous sentence. Both were ordered

to be served consecutively to a life sentence imposed for a previous conviction. The

defendant now appeals this sentence. For the following reasons, we affirm and order

an amendment of the sentencing minutes.

Factual and Procedural Background

The defendant, Terrell Stipe, was charged in Ascension Parish with one count

of carjacking, a violation of La.R.S. 14:64.2, and one count of armed robbery and

armed robbery with the use of a firearm, violations of La.R.S. 14:64 and 14:64.3. The

alleged offenses involved an incident which occurred on November 10, 2005 at a

Circle K gas station in Gonzales, Louisiana. After the defendant moved for a change

of venue, the case was transferred to Calcasieu Parish.

On November 30, 2006, after several days of testimony, the trial court found

the defendant guilty of armed robbery and carjacking and ordered a pre-sentence

investigation. The trial court initially sentenced the defendant to fifty years at hard

labor without benefit of probation, parole, or suspension of sentence on the armed

robbery charge and ten years at hard labor without benefit of probation, parole, or

suspension of sentence on the carjacking charge. It ordered that those sentences were to run concurrently with each other and with a prior attempted second degree

kidnapping sentence from Calcasieu Parish.1

On appeal, this court affirmed the convictions and the sentence for the

carjacking charge, but vacated the sentence for the armed robbery charge and

remanded to the trial court for re-sentencing with instructions to clearly set forth the

part of the sentence enhanced under La.R.S. 14:64.3 and the portion of the sentence

not to be served at hard labor. See State v. Stipe, 09-839 (La.App. 3 Cir. 2/3/10), 30

So.3d 387.

At the re-sentencing hearing, the defendant made a motion to recuse the trial

judge, which was denied as untimely. The trial court then resentenced the defendant

to forty-five years at hard labor without the benefit of probation, parole, or suspension

of sentence for the armed robbery charge and a five-year enhancement for the armed

robbery with use of a firearm charge. The trial court ordered that the five-year

enhancement be without hard labor. The trial court further ordered that the five-year

enhancement run consecutively to the forty-five-year sentence for the armed robbery

charge and that both sentences run consecutively to a life sentence imposed in St.

James Parish.

Immediately after re-sentencing, the defendant made a motion for

reconsideration, arguing that the sentence was inappropriate, overly harsh, and

unconstitutionally burdensome. The defendant also argued that the trial court failed

1 The defendant was charged in three cases for incidents occurring in St. James and Ascension Parishes. The record reveals that, in addition to this case, the defendant was convicted of attempted second degree kidnapping for charges arising out of an incident at Dutchtown High School. That case was also assigned to the trial judge in this case. The case was transferred from Ascension Parish to Calcasieu Parish. Further, the defendant was charged in St. James Parish for the murder of Keelan Irvin. The defendant was sentenced to life in prison on that charge subsequently to his conviction in this case.

2 to articulate the factors considered in connection with the imposition of sentence.

The trial court denied the motion for reconsideration.

The defendant appeals, challenging his sentence as unconstitutionally

excessive because the trial court failed to articulate particularized reasons for

imposing a fifty-year sentence for the armed robbery charge and the firearm

enhancement. Further, the defendant contends that the sentence is unconstitutionally

excessive because it was imposed consecutively to a life sentence imposed in an

unrelated case.

Discussion

Errors Patent

Pursuant to 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 that the sentencing

minutes require correction.

The transcript of the re-sentencing hearing held on April 1, 2010 reflects that

the trial court modified the five-year enhancement to be served without hard labor.

However, the court minutes of the re-sentencing hearing state, in pertinent part, that

“the Court sentences the defendant to serve five (5) years in the custody of the

Louisiana Department of Corrections, without benefit of probation, parole or

suspension of sentence. . . . ” In instances where the minutes and the transcript differ,

the transcript must prevail. State v. Kimbrough, 09-1564 (La.App. 3 Cir. 6/2/10), 38

So.3d 1258. Accordingly, the trial court is directed to correct the court minutes of the

sentencing hearing to reflect the sentence as imposed by the court.

3 Failure to Consider Sentencing Factors

The defendant alleges that the trial court failed to articulate reasons for

imposing a forty-five-year sentence for armed robbery with a five-year enhancement

for use of a firearm. Louisiana Code of Criminal Procedure Article 894.1 contains

a list of sentencing guidelines, which assists a sentencing court in particularizing a

sentence for a particular defendant and assists a reviewing court in determining

whether a sentence is excessive by providing an indication of whether the sentencing

court has adequately considered the statutory guidelines. State v. Cottingen, 476

So.2d 1184 (La.App. 3 Cir. 1985), appeal after remand, 496 So.2d 1379 (La.App. 3

Cir. 1986). The sentencing court is required to state for the record the factors

considered in imposing a sentence. La.Code Crim.P. art. 894.1(C). However, there

is no requirement that a sentencing court read through a checklist of factors nor

articulate every circumstance in order to comply with the requirements of La.Code

Crim.P. art. 894.1(C). State v. Williams, 96-37 (La.App. 3 Cir. 6/26/96), 677 So.2d

692. Further, a reviewing court need not remand the case for re-sentencing if an

adequate factual basis is found in the record. Id.

The record reveals that the trial court originally rendered the following reasons

for sentencing, parts of which were reiterated at the re-sentencing hearing:

This is the case of a thirty-two (32) year old male officially classified as a second felony offender who, on November 30, 2006[,] was found guilty of Carjacking, Aggravated Kidnapping and Armed Robbery with a Firearm after a bench trial conducted by this court. Sentencing was deferred and a Pre-Sentence Investigation Report was ordered and is filed herein and has been made available to the defendant and his counsel and is attached hereto and made a part of hereof by reference.[2]

2 The pre-sentence investigation revealed that, as noted above, the defendant had been arrested on charges of first degree murder, aggravated kidnapping and armed robbery in St. James Parish in 2006. The sentencing transcript and the re-sentencing transcript reflect that the defendant

4 The record reflects that the Aggravated Kidnapping was not obtained by Grand Jury Indictment. Thus, the court herein vacates that conviction.

The record reflects that on November 10, 2005, at approximately 2216 hours, officers were dispatched to the Circle K on Airline Highway in Gonzales, Louisiana in reference to an Armed Robbery. Prior to arrival, dispatch was advised that the victim, Lakeith Mitchell, was on Airline Highway in the Parish and that a deputy was bringing him back to the Circle K. Mr. Mitchell was transported to the Gonzales Police Department where he wrote a voluntary statement as to what happened.

....

The Department of Probation and Parole recommends Mr. Stipe be sentenced to the Department of Corrections for a period of ninety- nine (99) years at hard labor with credit for time served for the offense of Armed Robbery. The recommendation fails to state that a sentence for this offense shall be without the benefit of parole, probation or suspension of sentence.

The Probation Officer preparing the Pre-sentence Investigation Report contacted Investigator Billy Clark of the 23rd Judicial District Attorney’s Office who recommended Mr. Stipe be sentenced to the maximum incarceration for this offense. Warden Bobby Webre of the Ascension Parish Sheriff’s Office stated Mr. Stipe should be sentenced to the maximum penalty for this offense.

Afterward, the defendant moved for reconsideration, in part arguing that the

trial court had not articulated any reasons for its sentence. In denying the defendant’s

motion for reconsideration, the trial court stated:

What I did was looked at the facts of this particular case —and everyone realizes here it was a bench trial. I listened to the testimony in this, and I based this sentence upon the facts of that particular case as I found them, of this particular case, and the fact that he is a second felony—considered to be a second felony offender.

was convicted on those charges after the original sentencing hearing but prior to the resentencing hearing. The pre-sentence investigation also revealed that the defendant had been arrested for several offenses after 1997 including attempted second degree kidnapping, remaining after forbidden, speeding, driving without a license, driving while suspended and multiple fugitive holds.

5 But I could have imposed the maximum but you’re right, that would not have been right, because he’s not the type of person based on what I am aware of so far as the two trials that I participated in that deserved the maximum sentences for the offenses.

I did not impose the maximum in these instances.

The trial court noted that it had rejected the recommendations of the Department of

Probation and Parole, the sheriff’s department, and the district attorney that he impose

the maximum sentence of ninety-nine years for the armed robbery count.

Further, after re-sentencing, the defendant again moved for reconsideration,

arguing, in part, that the trial court had failed to articulate reasons for sentencing.

The trial court reiterated that it had considered the sentencing guidelines when

imposing the defendant’s sentence and that it was “of the opinion that the sentence

does fit the crimes for which the defendant was found guilty.”

The defendant asserts, in his brief to this court, that “it is impossible to

determine from the record what justification the Court used to impose its sentences.”

(Footnote omitted.) However, the sentencing court explicitly stated in ruling on the

reconsideration motion that it had considered the sentencing factors. Further,

although the sentencing court did not articulate each and every factor

considered—nor was it required to—it noted that the defendant was a thirty-three-

year-old second felony offender. The sentencing court was privy to a pre-sentence

investigation, which it previously filed into the record. We note that the trial court

was unable to take into consideration the defendant’s personal history because the

defendant refused to provide any personal information for the pre-sentence report.

Tellingly, the sentencing judge was the fact-finder in this case and presided over the

defendant’s attempted second degree kidnapping case. Finally, the sentencing judge

did not impose the maximum sentence in this case, but imposed a mid-range sentence

6 which it ordered to run concurrently with the ten-year sentence imposed in the

carjacking charge3 and consecutive to the life sentence imposed in the St. James

Parish matter.

After review of the record, including transcripts from both sentencing and re-

sentencing hearings, we find that the sentencing court did adequately consider the

sentencing guidelines and that an adequate factual basis therefor is found in the

record. Therefore, this assignment of error is without merit.

Consecutive Sentences

The defendant also asserts that the trial court erred in imposing an

unconstitutionally excessive sentence. He bases his argument on two prongs. First,

he argues that the offenses were essentially part of a common scheme or plan because

they “evidently occurred within a relatively short period of time” and that, under

La.Code Crim.P. art. 883, the trial court erred in not giving specific reasons for

ordering the sentences to run consecutively. Second, he argues that because the

sentence is imposed consecutively to a life sentence, that there is no chance of the

defendant’s release during his natural life even if his life sentence was commuted.

The defendant argues that such a sentence is nonsensical, makes no contribution to

the acceptable goals of punishment, and constitutes the purposeless and needless

imposition of pain and suffering prohibited by Article 1, Section 20 of the Louisiana

3 At re-sentencing, the trial court did not specifically address whether the armed robbery sentence was to run concurrently with the previously imposed carjacking sentence. Additionally, when the sentence was initially imposed, the trial court ordered that the armed robbery and carjacking sentences were to run concurrently with the sentence in a prior attempted second degree kidnapping case. The trial court did not address at re-sentencing whether the armed robbery sentence was to run concurrently or consecutively to that sentence. However, offenses arising from the “same act or transaction,” are to be served concurrently unless the trial court expressly directs otherwise. La.Code Crim.P. art. 883. Therefore, since the carjacking and armed robbery charges arose from the same act or transaction, and the trial court did not direct otherwise, they are presumed to run concurrently.

7 Constitution.

The defendant was convicted of armed robbery with the use of a firearm

enhancement, a violation of La.R.S. 14:64 and La.R.S. 14:64.3. A conviction of

armed robbery is punishable by imprisonment at hard labor for not less than ten years

and for not more than ninety-nine years, without benefit of parole, probation, or

suspension of sentence. La.R.S. 14:64(B). Further, La.R.S. 14:64.3(A), as applicable

in this case,4 provides that, upon conviction of armed robbery with use of a firearm,

“the offender shall be imprisoned for an additional period of five years without

benefit of parole, probation, or suspension of sentence.” The additional penalty shall

be served consecutively to the armed robbery sentence. Id.

Generally, sentences for offenses arising from the “same act or transaction, or

constituting parts of a common scheme or plan” are to be served concurrently unless

the sentencing court directs that they are to be served consecutively. La.Code Crim.P.

art. 883. However, sentences for offenses not arising from the same act or a common

scheme or plan are to be served consecutively, unless the trial court expressly directs

that they are to be served concurrently. Id.

In State v. Massey, 08-839 (La.App. 3 Cir. 12/10/08), 999 So.2d 343, a panel

of this court upheld the trial court’s imposition of consecutive sentences for indecent

behavior with a juvenile and attempted molestation of a juvenile. This court rejected

the defendant’s argument that the offenses were part of a common transaction or

common scheme or plan because the offenses occurred within a relatively short

period of time. This court quoted the trial court, which found that there were “‘two

distinct victims, two distinct events, even though they both took place during the

4 This statute was amended after the commission of the instant offense to require that the term of imprisonment be at hard labor.

8 same weekend camping trip[,]’” and therefore, there was “‘no justification for having

these sentences run concurrently.’” Massey, 999 So.2d at 349. See also State v.

Hymes, 04-320 (La.App. 5 Cir. 10/12/04), 886 So.2d 1157, writ denied, 04-3102 (La.

4/1/05), 897 So.2d 599.

In this case, the defendant points to no evidence in the record to support his

claim that these offenses were part of a common scheme or plan, other than a bare

assertion that the offenses occurred within a “relatively short period of time.” A

review of the record reveals that the victim in the St. James Parish case was Keelan

Irvin. The victim in the instant case was Lakeith Mitchell. The offenses in the former

case occurred in St. James Parish and were tried there; the offense in the instant case

occurred in Ascension Parish and was tried in Calcasieu Parish. The defendant was

arrested in the instant case in December 2005 and was not arrested in the St. James

Parish matter until August 2006. A review of the record shows that the two cases

involved different victims, occurred on different dates, occurred in different parishes,

and were tried separately.

The record does not support a conclusion that the offenses were part of the

same act or transaction or that they were part of common scheme or plan. Therefore,

the trial court was not required to articulate reasons for imposing consecutive

sentences. We find that the trial court did not abuse its discretion in ordering the

sentence in this matter to be served consecutively to the sentence in the St. James

Parish case and we have concluded that the defendant’s first assignment in this regard

is without merit.

In State v. Granger, 08-1480, pp. 3-4 (La.App. 3 Cir. 6/3/09), 11 So.3d 658,

660-61, quoting State v. Barling, 00-1241, 00-1591, (La.App. 3 Cir. 1/31/01), 779

9 So.2d 1035, writ denied, 01-0838 (La. 2/1/02), 808 So.2d 331, a panel of this court

stated, with regard to excessive sentence claims:

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).

However, a sentence that falls within the statutory limits may be excessive given the

circumstances. Williams, 677 So.2d 692.

The Louisiana Supreme Court has long held that imprisonment itself is not

necessarily cruel and unusual, even if the term of imprisonment is lengthy or if the

sentences are imposed consecutively. See State v. Donahue, 408 So.2d 1262

(La.1982). Further, courts have upheld consecutive sentences that result in terms of

imprisonment for longer than a defendant’s natural life. In State v. Wood, 08-1511

(La.App. 3 Cir. 6/3/09), 11 So.3d 701, a panel of this court held that three

consecutive, mandatory life sentences for second-degree murder arising from the

same incident were not unconstitutionally excessive.

Also, in Hymes, 886 So.2d 1157, a panel of the fifth circuit upheld a total

sentence of 138 years for multiple counts of armed robbery. In finding that the

defendant’s sentences were appropriate because of the separate and distinct nature of

the acts, the fifth circuit quoted the trial court’s reasons for denying the defendant’s

10 motion for reconsideration, stating “‘[e]ach sentence for each crime was the

appropriate sentence for that crime; Mr. Hymes just happened to commit a large

number of them.’” Id. at 1164.

In the instant case, the defendant was sentenced to a midrange penalty for

armed robbery, with a mandatory five-year enhancement for use of a firearm. The

trial court ordered that the sentence for armed robbery run concurrently with the

sentence for carjacking, but that it run consecutively to a sentence imposed in St.

James Parish. Although the sentence will likely result in a term of imprisonment

which is longer than the defendant’s natural life, we find that the sentence for each

charge is appropriate in light of the defendant’s criminal history and the violent

nature of the crime. Therefore, we find that the trial court did not abuse its discretion

in imposing sentence. This assignment of error lacks merit.

DECREE

For the foregoing reasons, we affirm the defendant’s sentence. The trial court

is directed to correct the sentencing minutes to reflect that the defendant’s five-year

sentence for the use of a firearm enhancement is to be served without hard labor.