Judgment rendered June 30, 2021. Application for rehearing may be filed within the delay allowed by Art. 922, La. C. Cr. P.
No. 53,949-KA
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
STATE OF LOUISIANA Appellee
versus
TIMOTHY GAY Appellant
Appealed from the First Judicial District Court for the Parish of Caddo, Louisiana Trial Court No. 204,582
Honorable John Mosely, Jr., Judge
LOUISIANA APPELLATE PROJECT Counsel for Appellant By: Edward K. Bauman
JAMES E. STEWART, SR. Counsel for Appellee District Attorney
SENAE HALL Assistant District Attorney
Before PITMAN, STONE, and BODDIE (Pro Tempore), JJ. BODDIE, J. (Pro Tempore)
In the present case, after having been convicted following a jury trial
for armed robbery of a convenience store on September 21, 1999, the
defendant, Timothy Gay, was adjudicated a third felony habitual offender.
The trial judge subsequently imposed a sentence of life imprisonment at hard
labor without the benefit of probation, parole, or suspension of sentence. On
September 17, 2020, pursuant to State ex rel. Esteen v. State, 16-0949 (La.
1/30/18), 239 So. 3d 233, Gay was resentenced under the Habitual Offender
Law to the mandatory statutory minimum of 66 years at hard labor, without
the benefit of probation, parole, or suspension of sentence. Gay filed this
appeal alleging that the sentence is constitutionally excessive. For the
following reasons, we affirm the sentence.
FACTS
On September 21, 1999, while masked and armed with a pistol, Gay
and an accomplice entered a convenience store on Line Avenue in
Shreveport, Louisiana, and stole $120 in cash and a carton of cigarettes.
Upon his arrest, Gay admitted to officers that they stole the getaway vehicle
in Waskom, Texas, and had used it for an armed robbery committed in the
Waskom area. Gay also admitted that he committed another armed robbery
of a convenience store in Shreveport.
After the jury found Gay guilty as charged, the state filed a habitual
offender bill of information based on his two 1993 convictions for felony
theft of cassette tapes and simple burglary of a truck. Gay, age 24, was
adjudicated a third-felony habitual offender under La. R.S. 15:529.1
(A)(1)(b)(ii). At that time, the habitual offender statute mandated a sentence
of life imprisonment without benefits for crimes classified under La. R.S. 14:2 as crimes of violence. “Armed Robbery” was formerly and
continues to be designated a crime of violence. La. R.S. 14:2(B)(21).
At sentencing, Gay argued that the court should impose less than the
mandatory sentence of life when his young age is taken into consideration.
In opposition, however, the prosecution noted that, in addition to Gay’s two
prior felony convictions, and the instant armed robbery conviction, he also
had multiple felony charges pending against him in other cases: burglary
(two counts), simple escape, battery of a police officer, aggravated perjury,
and another armed robbery.
In view of this criminal history, the instant conviction, and the
pending charges, the trial court found that Gay was on a crime spree, and
that a lesser sentence than the mandatory minimum of life imprisonment was
not warranted. The trial court sentenced Gay to life imprisonment without
benefits.
On appeal, Gay argued that the trial court erred by failing to impose a
sentence less than the mandatory minimum under the habitual offender
statute. State v. Gay, 34,371 (La. App. 2 Cir. 4/4/01), 784 So. 2d 714. This
court held that Gay’s sentence was not constitutionally excessive, noting that
Gay’s numerous offenses comprised “a one-man crime wave.” Id. at 716.
In view of Gay’s criminal history, including the instant armed robbery and
the other crimes to which Gay confessed, the panel concluded:
[H]e is a career criminal and a menace to society. He has no proper regard for the property or lives of others and is willing to put people in jeopardy of receiving great bodily harm or death in his pursuit of acquiring property through violent crime. ....
There is no clear and convincing demonstration that the mandated sentence is constitutionally excessive.
2 Id. at 717. Gay’s conviction and sentence were affirmed. Id.
On July 5, 2018, Gay filed a motion to correct an illegal sentence,
complaining that he was entitled to resentencing in light of Esteen, supra.
The trial court denied relief, but on supervisory review this court ruled that
the district court erred by failing to apply the 2001 ameliorative amendments
provided by La. R.S. 15:308(B) to Gay’s third-felony offender adjudication.
We reversed the ruling and remanded the matter to the district court for
application of the 2001 revisions of La. R.S. 15:529.1.
On November 4, 2019, the trial court resentenced Gay to 66 years at
hard labor without benefits, the mandatory statutory minimum under the
habitual offender statute. However, on August 14, 2020, since Gay was
resentenced without legal representation present, this court granted his writ,
vacated the sentence, and remanded the matter to the trial court to appoint
counsel for Gay before sentencing.
On September 17, 2020, Gay appeared with appointed counsel for
resentencing. Gay asked the trial court to consider granting him the benefit
of parole. The court sentenced Gay to the mandatory minimum of 66 years
at hard labor, without benefit of probation, parole, or suspension of sentence.
The sentence was imposed to run concurrently with any other sentence Gay
was serving with credit for time already served and notice of the delays to
appeal the sentence and to seek post-conviction relief.
On September 29, 2020, Gay filed a motion to reconsider sentence,
arguing that his sentence was constitutionally excessive and again asking the
trial court to grant him the benefit of parole eligibility, in light of paragraph
(G) of La. R.S. 15:529.1, which denies only the benefit of probation and
3 suspension of sentence, not parole. The court denied reconsideration, and
this appeal followed.
DISCUSSION
By his sole assignment of error, Gay alleges that the court imposed a
constitutionally excessive sentence.
Gay is currently 44 years old. He has served more than 20 years of
the original life sentence, now retroactively reduced to 66 years without
benefits. He has approximately 46 years remaining in his sentence, and he
will not be eligible for release until age 90, which, in effect, is a life
sentence.
Gay argues that the trial court “should have imposed the maximum
sentence found not to be constitutionally excessive, as opposed to the
mandatory minimum sentence.” The trial court was obligated, he maintains,
to construe the Louisiana Habitual Offender Law so as to avoid excessive
punishment, and to particularize the sentence imposed to the offender and
the offense. State v. Dorthey, 623 So. 2d 1276 (La. 1993). The 66-year
sentence for an offense committed at age 24, for $120.00 and some
cigarettes, is excessive. Gay contends that these facts show that this offense
was not the worst of offenses, and that his prior felony convictions for theft
of cassette tapes and burglary of a truck show that he is not the worst of
offenders. He further complains that his trial counsel remained silent during
the proceedings, making no attempt to show why a deviation from the
mandatory minimum was warranted in this case; nor did his attorney discuss
Gay’s personal history and his potential for rehabilitation.
The state argues that the 66-year term falls within the sentencing
range established by the legislature and serves the purpose of the law, 4 namely, to deter and punish recidivism. Gay failed to present clear and
convincing evidence that the mandatory minimum sentence in his case was
so excessive that it violated the constitution such that a downward departure
was warranted.
Gay was adjudicated as a third-felony habitual offender under La.
R.S. 15:529.1. In 2001 La. Act No. 403, the legislature amended La. R.S.
15:308(A) to provide more lenient penalty provisions for certain enumerated
crimes. These penalty provisions apply prospectively and retroactively to
June 15, 2001, and apply to any crime committed subject to the revised
penalties on and after such date. These more lenient penalty provisions
apply to habitual offenders convicted or sentenced under La. R.S.
15:529.1(A)(1)(b)(ii) and (c)(ii), provided that their application ameliorates
the person’s circumstances.
As amended, La. R.S. 15:529.1(A)(1)(b)(i) now provides that 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. La. R.S. 15:529.1(A)(1)(b)(ii) no longer authorized a life
sentence for a third-felony offender unless the third felony and the two prior
felonies were either (1) felonies defined as a crime of violence under La.
R.S. 14:2(13); (2) a sex offense as defined in La. R.S. 15:540 et seq. when
the victim is under the age of 18 at the time of the offense; or (3) a violation
of the Uniform Controlled Dangerous Substances Law punishable for 10
years or more or any other crime punishable by imprisonment for 12 years or
more. By contrast, the pre-2001 version required imposition of a life
5 sentence for a third-felony offender if the third felony or any of the prior
felony offenses fell into the categories listed above.
La. R.S. 15:529.1(G) states that any sentence imposed under the
habitual offender provisions shall be at hard labor without benefit of
probation or suspension of sentence. Regarding the imposition of a habitual
offender sentence without benefit of parole, the conditions imposed on the
sentence are determined by the sentencing provisions for the underlying
offense. State v. Hopkins, 52,660 (La. App. 2 Cir. 4/10/19), 268 So. 3d
1226, 1230, writ denied, 19-00841 (La. 9/24/19), 278 So. 3d 978. State v.
Sullivan, 51,180 (La. App. 2 Cir. 2/15/17), 216 So. 3d 175; State v.
Thurman, 46,391 (La. App. 2 Cir. 6/22/11), 71 So. 3d 468, writ denied, 11-
1868 (La. 2/3/12), 79 So. 3d 1025. The penalty for armed robbery is
imprisonment at hard labor for not less than 10 years and for not more than
99 years, without benefit of parole, probation, or suspension of sentence.
La. R.S. 14:64. Clearly, armed robbery mandates that the sentence be served
without benefit of parole, probation, or suspension of sentence. La. R.S.
14:64(B). Therefore, when armed robbery is the underlying conviction for
the third felony habitual offender adjudication, the habitual offender
sentence shall be served without benefit of parole.
As a third-felony habitual offender, Gay faced a sentencing range of
66-198 years at hard labor, without the benefit of parole, probation, or
suspension of sentence. La. R.S. 14:64; La. R.S. 15:529.1. The trial court
correctly sentenced Gay to the statutory minimum of 66 years at hard labor
without benefit of parole, probation, or suspension of sentence. We turn
now to Gay’s contention that his sentence is constitutionally excessive.
6 When the defendant’s motion to reconsider sentence raises only a
claim that the sentence imposed was constitutionally excessive, review of
the sentence on appeal is restricted to that claim. La. C. Cr. P. art. 881.1;
State v. Sewell, 53,571 (La. App. 2 Cir. 11/18/20), 307 So. 3d 362. A
sentence violates La. Const. art. I, § 20, if it is grossly out of proportion to
the seriousness of the offense and is nothing more than a purposeless and
needless infliction of pain and suffering. State v. Dorthey, supra; State v.
Bell, 53,712 (La. App. 2 Cir. 1/13/21), 310 So. 3d 307. A sentence is
considered grossly disproportionate if, when the crime and punishment are
viewed in light of the harm done to society, it shocks the sense of justice.
State v. Weaver, 01-0467 (La. 1/15/02), 805 So. 2d 166; State v. Wing,
51,857 (La. App. 2 Cir. 2/28/18), 246 So. 3d 711.
Initially, the trial court must state for the record the considerations and
the factual basis for the sentence imposed. La. C. Cr. P. art. 894.1(C). The
court must consider the defendant’s personal history, the defendant’s
criminal record, the seriousness of the offense, and the likelihood of
rehabilitation, but there is no requirement that specific matters be given any
particular weight at sentencing. State v. Boehm, 51,229 (La. App. 2 Cir.
4/5/17), 217 So. 3d 596. All convictions and all prior criminal activity may
be considered as well as other evidence normally excluded from the trial.
State v. Reese, 49,849 (La. App. 2 Cir. 5/20/15), 166 So. 3d 1175, writ
denied, 15-1236 (La. 6/3/16), 192 So. 3d 760.
The trial court has wide discretion in imposing sentence within the
statutory limits. Absent a showing of an abuse of that discretion, a sentence
will not be set aside as excessive. State v. West, 53,526 (La. App. 2 Cir.
6/24/20), 297 So. 3d 1081; State v. Mandigo, 48,801 (La. App. 2 Cir. 7 2/26/14), 136 So. 3d 292, writ denied, 14-0630 (La. 10/24/14), 151 So. 3d
600. A reviewing court does not determine whether another sentence would
have been more appropriate, but whether the trial court abused its discretion.
State v. Dale, 53,736 (La. App. 2 Cir. 1/13/21), 309 So. 3d 1031.
Because the Habitual Offender Law has been held to be constitutional,
mandatory minimum sentences imposed under the statute are presumed to be
constitutional. State v. Dorthey, supra; State v. Bailey, 51,627 (La. App. 2
Cir. 9/27/17), 245 So. 3d 145, 149, writ denied, 17-1734 (La. 5/18/18), 242
So. 3d 570. As such, the judiciary is required to give as much deference as
is constitutionally possible to the Legislature’s determination of the
appropriate minimum sentence for a habitual offender. State v. Johnson, 97-
1906 (La. 3/4/98), 709 So. 2d 672. As a result, departures from mandatory
minimum sentences by their nature must be exceedingly rare. Id.; State v.
Meadows, 53,329 (La. App. 2 Cir. 3/4/20), 293 So. 3d 681; State v. Bailey,
supra; State v. Little, 50,776 (La. App. 2 Cir. 8/10/16), 200 So. 3d 400, writ
denied, 16-1664 (La. 6/16/17), 219 So. 3d 341.
Nevertheless, under La. Const. art. I, § 20, the judiciary may
determine that a mandatory minimum sentence is excessive in a particular
case. State v. Johnson, supra; State v. Dorthey, supra. A sentencing judge
must always start with the presumption that a mandatory minimum sentence
under the Habitual Offender Law is constitutional. Id. A court may only
depart from the minimum sentence if it finds that there is clear and
convincing evidence in the particular case before it which would rebut the
presumption of constitutionality. Id. To rebut the presumption that his
minimum sentence is constitutional, the defendant must clearly and
convincingly demonstrate that his case is exceptional, which means that 8 because of unusual circumstances, he is a victim of the legislature’s failure
to assign sentences that are meaningfully tailored to the culpability of the
offender, the gravity of the offense, and the circumstances of the case. State
v. Johnson, supra; State v. Bailey, supra; State v. Gay, supra.
In making this determination regarding a downward departure, the
Louisiana Supreme Court stated in State v. Johnson, supra, that “while a
defendant’s record of nonviolent offenses may play a role in a sentencing
judge’s determination that a minimum sentence is too long, it cannot be the
only reason, or even the major reason, for declaring such a sentence
excessive.” State v. Lindsey, 99-3302 (La. 10/17/00), 770 So. 2d 339, 343,
citing State v. Johnson, supra. “This is because the defendant’s history of
violent or non-violent offenses has already been taken into account under the
Habitual Offender Law for third and fourth offenders, which punishes third
and fourth offenders with a history of violent offenses more severely than
those with a history of non-violent offenses.” Id.
Thus, the sentencing court, while mindful of the goals to deter and
punish recidivism, must determine whether the particular defendant before it
has proven that the minimum sentence is so excessive in his case that it
violates Louisiana’s constitution. State v. Lindsey, supra. The fact that a
defendant’s last felony was the only violent crime against a person is not an
“unusual circumstance” that would support a downward departure. State v.
Lindsey, supra. A person with prior nonviolent felony convictions who then
proceeds to commit a felony involving violence against a person has shown
that his criminal conduct is becoming worse. Id.
In the instant case, the record shows that the resentencing judge
properly sentenced Gay under La. R.S. 15:529.1(A)(1)(b)(ii), as amended in 9 2001. His sentencing range was 66-198 years, so the imposed term of 66
years of imprisonment at hard labor constitutes the mandatory minimum
under the statute. By law, the sentence was imposed without the benefit of
parole, probation, or suspension of sentence.
Typically, an appellate court’s first step in the two-step process for
review of a sentence for excessiveness is to determine if the record shows
that the trial court took cognizance of the criteria set forth in La. C. Cr. Pr.
art. 894.1. State v. Turner, 51,888 (La. App. 2 Cir. 2/28/18), 246 So. 3d 695.
In this case, the resentencing judge did not discuss the factors supporting the
sentence imposed at resentencing, however, because the sentence imposed
for the habitual offender adjudication is prescribed by statute, the trial court's
compliance with La. C. Cr. P. art. 894.1 is not required. State v. Dukes,
46,029 (La. App. 2 Cir. 1/26/11), 57 So. 3d 489, writ denied, 11-443(La.
3/2/12), 83 So. 3d 1033; State v Warfield, 37,616 (La. App. 2 Cir. 10/29/03),
859 So. 2d 307; State v. Owens, 32,642 (La. App. 2 Cir. 10/27/99), 743 So.
2d 890, writ denied, 00-0438 (La. 9/29/00), 769 So. 2d 553. It would be an
exercise in futility for the trial court to discuss the factors enumerated in that
article when the court had no discretion in sentencing the defendant. State v.
Johnson, 31,448 (La. App. 2 Cir. 3/31/99), 747 So. 2d 61, writ denied, 99-
1689 (La. 11/12/99), 749 So. 2d 653, cert. denied 529 U.S. 1114, 120 S. Ct.
1973, 146 L. Ed. 2d 802 (2000); State v. Warfield, supra; State v. Dukes,
supra. Moreover, we note that the same judge presided over the trial and
initial sentencing of the defendant, and he articulated the factual basis of the
sentence imposed at that time.
Although Gay’s two prior convictions were for non-violent offenses,
the trial court at the initial sentencing and this court on direct appeal 10 observed that Gay had numerous other arrests and pending offenses that also
included crimes of violence. We concluded that Gay’s behavior
demonstrated a trend of criminal behavior that was escalating and
established Gay’s propensity for violence. As noted by the Supreme Court
in State v. Lindsey, supra at 344, it is exactly this kind of criminal behavior
that the goals of the Habitual Offender Statute are intended to deter and
punish.
Gay did not present any argument or evidence supporting his claim
that a downward departure from the minimum sentence was warranted.
However, on appeal, Gay implies that his culpability for this offense was
somehow diminished and his punishment too severe because the robbery
resulted in a “get” of only $120 and a carton of cigarettes. This represents a
fundamental misunderstanding regarding the gravity of the offense of armed
robbery. It is not the value of the goods or the amount of money unlawfully
stolen that renders armed robbery one of the most serious offenses, but the
creation of circumstances posing imminent danger to human life,
particularly where a firearm is used. “[A] loaded gun, pointed at a robbery
victim, carries the inherent threat that death or great bodily harm is likely to
result.” State v. Lewis, 39,263 (La. App. 2 Cir. 1/26/05), 892 So. 2d 702,
quoting State v. Woods, 494 So. 2d 1258 (La. App. 2 Cir. 1986). Even
where the gun is unloaded or unworkable, “the likelihood of this serious
harm can come from the threat perceived by victims and bystanders. The
highly charged atmosphere of a pistol robbery is conducive to violence
regardless of whether the pistol is loaded or workable because the danger
created invites rescue and self-help.” Id.
11 We conclude, therefore, that Gay failed to meet his burden of proof to
rebut the presumption of constitutionality and to show, clearly and
convincingly, that he is exceptional, such that the minimum sentence is so
excessive under the facts of his case that it violates the state’s constitution.
Accordingly, Gay’s claim that his sentence is constitutionally excessive is
completely without merit.
CONCLUSION
For the foregoing reasons, Gay’s sentence of 66 years imprisonment
at hard labor without the benefit of parole, probation, or suspension of
sentence is affirmed.
AFFIRMED.