STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
14-9
STATE OF LOUISIANA
VERSUS
TONY JACKSON AKA LEOANRDO JACKSON AKA LEON JACKSON AKA LEONARDO MARICE JACKSON AKA LEONARD MAURICE JACKSON AKA LEONARD JACKSON AKA LEONARDO JACKSON AKA LEONARDO M. JACKSON AKA LEONARD M. JACKSON
**********
APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. 117,895 HONORABLE GLENNON P. EVERETT, DISTRICT JUDGE
PHYLLIS M. KEATY JUDGE
Court composed of Sylvia R. Cooks, J. David Painter, and Phyllis M. Keaty, Judges.
AFFIRMED; REMANDED WITH INSTRUCTIONS. Michael Harson District Attorney Alan P. Haney Assistant District Attorney Post Office Box 4308 Lafayette, Louisiana 70502 (337) 291-7009 Counsel for Appellee: State of Louisiana
Edward K. Bauman Louisiana Appellate Project Post Office Box 1641 Lake Charles, Louisiana 70602 (337) 491-0570 Counsel For Defendant/Appellant: Tony Jackson KEATY, Judge.
Defendant, Tony Jackson, was convicted by a jury of armed robbery of the
Olive Garden restaurant located in Lafayette, Louisiana, in violation of La.R.S.
14:64. After a sentencing hearing, Defendant was sentenced to fifty years at hard
labor with fifteen years of the sentence to be served without the benefit of
probation, parole, or suspension of sentence. Defendant appeals his conviction and
sentence alleging that: (1) the jury erred in finding him guilty of committing the
armed robbery of the restaurant beyond a reasonable doubt and (2) the trial court
imposed an excessive sentence. For the following reasons, we affirm and remand
with instructions.
FACTS & PROCEDURAL HISTORY
On October 25, 2007, as the restaurant was closing for the evening, the
Olive Garden in Lafayette, Louisiana, was robbed by two armed gunmen wearing
ski masks and gloves. The gunmen moved the employees who remained at the
restaurant to the back office and demanded money. They took money from the
business‟ safe and the manager‟s wallet, totaling an estimated $854.00, and left the
restaurant. Shortly thereafter, Officer Ron Czajkowski of the Lafayette Police
Department spotted a vehicle with no lights on and sought to stop the vehicle.
When the officer attempted to make the stop, a car chase ensued. The two
occupants of the vehicle thereafter abandoned the automobile behind a local
business and escaped on foot.
On December 21, 2007, Defendant was charged by a bill of information with
one count of armed robbery and one count of possession of a firearm by a
convicted felon, a violation of La.R.S. 14:95.1. Alexis Almaguer was also charged
in the armed robbery as a co-defendant. Victoria Roberts, Almaguer‟s girlfriend, was arrested for accessory after the fact to armed robbery. The charges against
Victoria were later dismissed. On December 27, 2007, Defendant entered a plea of
not guilty to the charge of armed robbery. Count two of the bill of information, the
charge of possession of a firearm by a felon, was severed for trial. Defendant‟s
trial by jury on the sole count of armed robbery began on January 31, 2012.
Following trial, the jury reached a unanimous verdict of guilty. On May 29, 2012,
Defendant was sentenced to fifty years at hard labor with fifteen years of the
sentence to be served without benefit of probation, parole, or suspension of
sentence. Thereafter, the State, on its own motion, dismissed the second count
pertaining to the possession of a firearm by a felon.
On September 17, 2013, a Motion for an Out of Time Appeal was filed on
behalf of Defendant and granted by the trial court. For the reasons set forth herein,
we affirm Defendant‟s conviction and sentence. We remand to the trial court with
instructions to provide Defendant with written notice of the provisions of La.Code
Crim.P. art. 930.8.
ASSIGNMENTS OF ERROR
This court is charged with reviewing trial court proceedings for errors patent
on the face of the record. La.Code Crim.P. art. 920. In so doing, we note one such
error. The record reflects that the trial court provided Defendant with erroneous
information pertaining to the time period for filing for post-conviction relief. At
sentencing, Defendant was advised that he had two years from the date of
sentencing to apply for post-conviction remedies. However, in accordance with
La.Code Crim.P. art. 930.8, the prescriptive period for filing for post-conviction
relief is two years from the date upon which a defendant‟s conviction and sentence
become final as per La.Code Crim.P. arts. 914 or 922.
2 In accordance with La.Code Crim.P. art. 930.8, the trial court is ordered to
inform Defendant, by written notice, within ten days of the rendition of this
opinion, of the prescriptive period for the application for post-conviction relief.
Thereafter, the trial court shall file written proof in the record of these proceedings
that Defendant received such notice. State v. Roe, 05-116 (La.App. 3 Cir. 6/1/05),
903 So.2d 1265, writ denied, 05-1762 (La. 2/10/06), 924 So.2d 163.
I. Defendant’s First Assignment of Error
The trial court erred in finding Tony Jackson guilty of armed robbery beyond a reasonable doubt.
In his first assignment of error, Defendant contends that the trial court erred
in finding him guilty of armed robbery as the evidence was insufficient to conclude
that he was guilty of the offense charged beyond a reasonable doubt. For the
reasons set forth herein, we find that Defendant‟s first assignment of error is
without merit.
This court has stated the following regarding the standard for reviewing a
claim of insufficient evidence. The standard of review in a sufficiency of the
evidence claim is “whether, viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found proof beyond a reasonable
doubt of each of the essential elements of the crime charged.” State v. Leger, 05-
11, p. 91 (La. 7/10/06), 936 So.2d 108, 170, cert. denied, 549 U.S. 1221, 127 S.Ct.
1279 (2007). The foregoing Jackson 1 standard of review is now legislatively
embodied in La.Code Crim.P. art. 821. It does not allow the appellate court “to
substitute its own appreciation of the evidence for that of the fact-finder.” State v.
Pigford, 05-477, p. 6 (La. 2/22/06), 922 So.2d 517, 521. The appellate court‟s
1 Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781 (1979).
3 function is not to assess the credibility of witnesses or reweigh the evidence. State
v. Smith, 94-3116 (La. 10/16/95), 661 So.2d 442.
It is well settled that the fact finder‟s role is to weigh the credibility of
witnesses. State v. Ryan, 07-504 (La.App. 3 Cir. 11/7/07), 969 So.2d 1268. An
appellate court should not second guess the credibility conclusions of the trier of
fact, but rather, should defer to the rational credibility and evidentiary
determinations of the jury. Id. The appellate court may impinge on the fact
finder‟s discretion and its role in determining the credibility of witnesses “only to
the extent necessary to guarantee the fundamental protection of due process of
law.” State v. Mussall, 523 So.2d 1305, 1310 (La.1988). As stated herein, upon
viewing evidence in the light most favorable to the prosecution, the question for
the appellate court is whether, on the evidence presented at trial, “„any rational trier
of fact could have found the essential elements of the crime beyond a reasonable
doubt.‟” State v. Strother, 09-2357, p. 10 (La. 10/22/10), 49 So.3d 372, 378
(quoting Jackson, 443 U.S. 307).
In those cases relying on circumstantial evidence, the fundamental principle
of review means that when a jury “reasonably rejects the hypothesis of innocence
presented by the defendant‟s own testimony, that hypothesis falls, and the
defendant is guilty unless there is another hypothesis which raises a reasonable
doubt.” State v. Captville, 448 So.2d 676, 680 (La.1984). In the present case,
Defendant avers that his co-defendant, Almaguer, lied about his participation in the
robbery to protect his stepbrother, Mario Teharis.
A review of the evidence considered by the jury reveals the testimony by
Defendant‟s co-defendant, Almaguer, Almaguer‟s girlfriend, Victoria, the general
manager and assistant manager of the Olive Garden restaurant, several members of
4 the Lafayette Police Department as well as a DNA analyst with the Acadiana
Crime Lab who was accepted as an expert in DNA analysis.
The prosecution‟s main witness was Defendant‟s co-defendant, Almaguer.
Almaguer testified that on the day of the robbery, he and Defendant went to the
apartment of Almaguer‟s girlfriend, Victoria, after work. Almaguer stated that the
two men stayed for a couple of hours. Sometime thereafter, they decided to rob the
restaurant. Almaguer testified that the two men entered the restaurant wearing
masks and gloves. According to Almaguer, both men were armed with guns.
Almaguer stated that when they left Victoria‟s apartment, his gun was already in
the vehicle, but he did not know where Defendant‟s gun was located. He further
stated that the masks were already in the vehicle as he had previously purchased
them for Halloween.
After entering the restaurant, both men demanded money. The men took
money from the restaurant safe as well as the manager‟s wallet. Almaguer stated
that the two men quickly left the restaurant in Almaguer‟s automobile driving
towards the Acadiana Mall. They then stopped the vehicle and took off on foot
and headed in different directions. Almaguer positively identified Defendant as
the man who accompanied him into the Olive Garden restaurant and participated
with him in the robbery of that business. Almaguer was unequivocal in his
testimony that his stepbrother, Teharis, did not commit the robbery of the Olive
Garden restaurant with him. Under cross-examination, Almaguer admitted that
Teharis was at Victoria‟s apartment where he was visiting his girlfriend, Tess
Roberts, but that Teharis did not assist with the plans for the robbery. Almaguer
testified that Teharis and Tess were still at Victoria‟s apartment when he and
Defendant left to commit the crime.
5 The prosecution also presented the testimony of Michelle Stelly, the
restaurant‟s assistant manager. Stelly testified that two people wearing masks
entered the restaurant. She stated she thought, based on the voice of one of the
robbers, that he was black. She testified that the masked person told the manager,
Michael McQuade, to get down and crawl to the corner office. She stated that she
then saw another masked man, armed with a gun, wearing white tennis shoes with
some kind of blue mark on them. She also noticed that the other man was wearing
black “distressed” dress shoes. She further testified that she was unable to identify
either man because they both wore masks.
McQuade, the restaurant‟s general manager, testified that at about 10:40 p.m.
on the night of the robbery, two people wearing masks entered the restaurant.
McQuade stated that he was counting money with his assistant manager in the cash
booth area. He was sealing the last deposit, an estimated $855.00, when he heard
someone yell to give him the money. McQuade stated that the first robber put a
gun to his head and demanded all of the money. McQuade told the robber that the
rest of the money was located in his office. He indicated that the robber made him
crawl to his office where he opened the safe. Once the safe was opened, the first
robber threw the manager to the ground and started to go through the contents of
the safe. According to McQuade, the robbers took “a couple of things” along with
his wallet. According to the manager, the entire incident lasted about six to seven
minutes. After the robbers left the restaurant, McQuade called 911 to report the
crime.
Victoria, Almaguer‟s girlfriend, testified that at the time of the robbery, she
was living on Jeffrey Drive in Lafayette. She stated that both men were at her
apartment on the date in question. Contrary to Almaguer‟s testimony, she testified
6 that Teharis was not at her apartment that day. Victoria stated that the men arrived
at her apartment dressed in work clothes and stayed for about two or three hours.
She saw Almaguer the next morning around 5:00 a.m. Victoria also encountered
the police that same morning. The police had a search warrant and searched her
apartment. Victoria testified that about a month before the robbery, she, Teharis,
Almaguer, and Defendant all went out to eat at the Olive Garden restaurant. She
further stated there were no discussions that night of robbing the restaurant, and
further, she was not involved in the planning of the robbery.
On cross-examination, Victoria stated that the two men came to her home at
about 5:30 p.m. that afternoon and stayed for about an hour. Defendant left for the
store at approximately 7:30 p.m. Victoria stated that she did not see Defendant at
her apartment again. She stated that she did not let Defendant back into her
apartment that night. Victoria adamantly stated that Teharis was not at her
apartment on the night of the robbery. She indicated that she would be surprised to
know that Defendant had secreted himself in her bathroom closet in possession of
$854.00.
During the course of the trial, several Lafayette Police Officers testified on
behalf of the prosecution. Officer Czajkowski testified that he was on patrol on the
night of the robbery. He received a dispatch regarding the robbery, and, on his
way to the restaurant, he observed a vehicle approaching him without its headlights
on. He began following the vehicle whereupon he observed two men exit the
vehicle and run into some woods nearby. Officer Czajkowski stayed with their
vehicle, and the suspects were not apprehended. Officer Czajkowski described the
suspects as two black males. When questioned if he observed any items in the
vehicle, Officer Czajkowski testified he saw a money or bank bag on the back seat.
7 Officer Terrance Olivier indicated that he was the first officer at the scene of
the robbery and that the manager‟s wallet was recovered from the vehicle
abandoned by the two suspects after they fled on foot. Detective Judith Estorge
testified that she obtained a search warrant for the premises of Victoria‟s apartment
located on Jeffrey Drive. Pursuant to the search of the premises, Detective Estorge
confiscated $854.00 in cash, a pair of size ten black shoes, a pair of white tennis
shoes, two pairs of blue jeans, a pair of gloves, a black sweatshirt, one box of forty
caliber bullets, and one box of twenty-two caliber bullets. Detective Craig Mouton
also collected evidence from the vehicle as well as DNA samples from Defendant
and Almaguer. From the vehicle, Detective Mouton recovered two prescription
bottles belonging to Almaguer, black gloves, yellow gloves, and two black ski
masks. Detective Mouton testified that several items of evidence were sent to the
Acadiana Crime Lab for processing for DNA. Detective Mouton also testified that
shoes discovered during the search matched the description of the shoes worn by
the robbers as reported by Stelly. While testifying, Detective Mouton identified
Defendant as one of the persons from whom he took a reference swab for DNA
testing.
Sergeant Blair Dore of the Lafayette Police Department testified that he
searched the apartment on Jeffrey Drive pursuant to a search warrant on
October 25, 2007. He testified that he located a box under the lavatory with money
in it and took some DNA evidence and photographs. He further testified that he
located a person hiding on the top shelf of a bathroom closet. He identified
Defendant as that person. Additionally, Officer Beau Guidry, as he searched the
apartment, discovered a Glock handgun hidden in a box of cereal.
8 The jury also heard the testimony of Stephanie Buford, Almaguer‟s mother.
She testified that she owns a green Infiniti automobile and that her son had use of it.
She testified that she did not see Teharis on the evening of October 25, 2007, but
that Teharis had slept at her home the night before. There was a conflict in the
testimony between Almaguer and his mother. Almaguer testified that Teharis was
with him the night of the robbery. Buford insisted that Teharis was at her house
that night.
The State‟s final witness was DNA analysis expert, Carolyn Booker, an
employee of the Acadiana Crime Lab. Booker tested eighteen items in connection
with this case. Booker tested a black glove found on the floorboard of the vehicle
as well as a yellow glove confiscated from the passenger side of the Infiniti.
Booker concluded with “reasonable scientific certainty” that Defendant was the
source of the DNA found on these gloves. On a mask found on the front
floorboard of the vehicle, Booker discovered a mixture of DNA from three people.
Additionally, Booker tested DNA found on the mask found on the back passenger
side of the automobile as well as the Glock firearm. Her testimony reflects that she
could not exclude either Almaguer or Defendant as contributors to the DNA found
on those items.
Defendant contends that Almaguer is identifying him as his co-defendant to
protect his stepbrother, Teharis. After examining Teharis‟s profile, DNA expert
Booker explained that all three men could not be excluded as contributors to the
mask found on the passenger side of the vehicle. Although Booker could not tell
the jury when each man deposited his DNA on the mask, she explained that if
more than one person put the mask on, she would be able to detect more than one
person‟s DNA. However, Booker clearly testified that the DNA found on the left
9 black glove with the red lining and on the left yellow glove was “the DNA from
one single person and it matched the DNA from Tony Jackson.”
The defense called Almaguer on cross-examination, and he again testified,
contrary to his mother, that Teharis was at Victoria‟s apartment on the day of the
robbery. He denied that he had ever seen Teharis driving the green Infiniti.
Defendant presented his own DNA expert, Gina Pineda. She reviewed the
DNA analysis conducted by the Acadiana Crime Lab. She testified that she
reviewed the lab‟s results, interpreted those results, and made her own conclusions.
She then compared Teharis‟s reference profile with not only the masks and gloves
but also the steering wheel. She concluded that Teharis came into contact with the
vehicle‟s steering wheel, but just as the State‟s expert, Booker, she could not tell
when Teharis came into contact with the steering wheel or how his DNA got there.
Pineda did confirm that the DNA testing performed by the Acadiana Crime Lab
was standard and usual in its methods.
Defendant contends that no rational trier of fact could have found him guilty
of the crime charged of armed robbery. A review of the testimony received at trial
viewed in a light most favorable to the prosecution clearly supports the finding of
the jury.
It is well settled that “[a]s a general matter, when the key issue is the
defendant‟s identity as the perpetrator, rather than whether the crime was
committed, the state is required to negate any reasonable probability of
misidentification.” State v. Neal, 00-674, p. 11 (La. 6/29/01), 796 So.2d 649, 658,
cert. denied, 535 U.S. 940, 122 S.Ct. 1323 (2002). It is also well settled that a
witness‟s testimony alone is sufficient to support a verdict as long as that testimony
was believed by the trier of fact and that the testimony does not contain internal
10 contradictions or irreconcilable conflicts with physical evidence. State v. Dorsey,
10-216 (La. 9/7/11), 74 So.3d 603, cert. denied, __U.S.__, 132 S.Ct. 1859 (2012).
In Dorsey, 74 So.3d at 634 (citations omitted), our supreme court concluded that,
A victim‟s or witness‟s testimony alone is usually sufficient to support the verdict, as appellate courts will not second-guess the credibility determinations of the fact finder beyond the constitutional standard of sufficiency. In the absence of internal contradiction or irreconcilable conflict with the physical evidence, one witness‟s testimony, if believed by the fact finder, is sufficient support for a requisite factual conclusion.
The record is not devoid of contradictory testimony. Almaguer testified that
Teharis was at Victoria‟s apartment on the night of the robbery. Almaguer‟s
mother testified that Teharis was at her home. However, as explained in State v.
Bender, 598 So.2d 629, 636 (La.App. 3 Cir.), writ denied, 605 So.2d 1125
(La.1992):
When a witness is impeached, this simply means the jury, as the trier of fact, was presented with evidence which it could consider and weigh in determining the credibility, or believability, of a witness. Simply because the witness may have been impeached by prior inconsistent statements does not mean that the jury was prohibited from believing anything said by the witness. The inconsistencies in the witness‟s statements are one of any number of factors the jury weighs in determining whether or not to believe a witness‟s trial testimony.
Co-defendant Almaguer‟s testimony alone was sufficient to convict Defendant of
armed robbery.
At the outset it should be noted that Defendant was unequivocally identified
by his co-defendant, Almaguer, as the person who perpetrated the crime of armed
robbery of the Olive Garden restaurant on October 25, 2007. Almaguer‟s
girlfriend placed the two men together at her apartment the night of the robbery.
Almaguer‟s testimony was corroborated by the DNA evidence connecting
Defendant to the vehicle, masks, and gloves found by the police in the vehicle and
11 in the apartment of Almaguer‟s girlfriend. Clothing worn by the robbers, as
described by eyewitnesses, was found at the girlfriend‟s apartment by police
during their search of the premises. The State‟s DNA expert testified that DNA
from Defendant was present on two of the gloves. Perhaps, most compelling is the
discovery of Defendant hiding in Victoria‟s bathroom behind a blanket and a pack
of toilet tissue in close proximity to a sum of cash within a dollar or two of the
amount of money taken in the robbery.
The jury heard the testimony of Almaguer that Teharis was at Victoria‟s
apartment the night of the robbery as well as Victoria‟s testimony that she did not
see Teharis that night. Almaguer‟s mother told the jury that Teharis was at her
house the night of the crime. The jury considered Defendant‟s hypothesis of
innocence contending that Teharis was Almaguer‟s criminal partner that night.
The jury rejected Defendant‟s theory of the crime. A reviewing court errs by
substituting its appreciation of the evidence and credibility of witnesses for that of
the fact finder and thereby overturning a verdict on the basis of an exculpatory
hypothesis of innocence presented to, and rationally rejected by, the jury. State v.
Calloway, 07-2306 (La. 1/21/09), 1 So.3d 417. With respect to a jury‟s rejection
of a hypothesis of innocence, our supreme court in Calloway, 1 So.3d at 422
(citations omitted), concluded:
[W]e have repeatedly cautioned that due process, rational fact finder test of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed. 2d 560 (1079), does not permit a reviewing court to substitute its own appreciation of the evidence for that of the fact finder or to second guess the credibility determinations of the fact finder necessary to render an honest verdict. A reviewing court may intrude on the plenary discretion of the fact finder “only to the extent necessary to guarantee the fundamental protection of due process of law.” Thus, as Judge Pettigrew emphasized, when a jury reasonably and rationally rejects the exculpatory hypothesis of innocence offered by a defendant‟s own testimony, an appellate court‟s task in reviewing the
12 sufficiency of the evidence under the Due Process Clause is at an end unless an alternative hypothesis “is sufficiently reasonable that a rational juror could not „have found proof of guilt beyond a reasonable doubt.‟”
The jury‟s decision to reject Defendant‟s hypothesis regarding the
commission of the crime was based upon its rational credibility and evidentiary
determinations. Accordingly, the jury‟s verdict should not be overturned. Thus,
Defendant‟s first assignment of error lacks merit
II. Defendant’s Second Assignment of Error
The trial court erred in imposing an excessive sentence.
Defendant contends that the trial court erred by imposing an excessive
sentence. It is noteworthy that counsel for Defendant acknowledges that no motion
was filed on Defendant‟s behalf requesting that Defendant‟s sentence be
reconsidered. Additionally, it is noted that Defendant made no objection to the
sentence when it was imposed. In State v. Batiste, 09-521 (La.App. 3 Cir 12/9/09),
25 So.3d 981, our court found that where there has been no motion to reconsider
sentence as per La.Code Crim.P. art. 881.1(E), the review of one‟s sentence is
limited to a bare claim of excessiveness. In addition, the failure to file such motion
prevents Defendant from addressing the trial court‟s alleged failure to comply with
La.Code Crim.P. art. 894.1 which requires the trial court to state for the record the
considerations taken into account and the factual basis for imposing its sentence.
State v. Evans, 09-477 (La.App. 5 Cir. 12/29/09), 30 So.3d 958, writ denied, 10-
363 (La. 3/25/11), 61 So.3d 653. This court in State v. Bamburg, 00-675 (La.App.
3 Cir. 11/2/00), 772 So.2d 356, found that because the defendant failed to object to
his sentence at the sentencing hearing and did not timely file a motion to
reconsider his sentence, his claim that his sentence was excessive was barred.
13 Contrarily, our court has “reviewed claims of excessiveness where no objection
was made and no motion to reconsider sentence was filed.” State v. Johnlouis, 09-
235, p. 21 (La.App. 3 Cir. 11/4/09), 22 So.3d 1150, 1163, writ denied, 10-97 (La.
6/25/10), 38 So.3d 336, cert. denied, __U.S.__, 131 S.Ct. 932 (2011). We elect to
review Defendant‟s claim that his sentence was excessive.
The trial court, upon imposing sentence, stated that it had reviewed the pre-
sentence investigation, particularly Defendant‟s prior criminal record. The trial
court acknowledged it considered the aggravating and mitigating circumstances as
per the applicable provisions of the Louisiana Code of Criminal Procedure. The
trial court then sentenced Defendant to fifty years at hard labor. Fifteen of the fifty
years must be served without benefit of probation, parole, or suspension of
sentence.
Although Defendant‟s pre-sentence investigation report was not originally a
part of the appellate record, this court obtained a copy of the report for review.
The report provides a picture of a forty-six-year-old man with a lengthy juvenile
record dating back to when he was only thirteen years old. His adult criminal
history characterizes him as a third-felony offender. His criminal background
includes numerous arrests and convictions for crimes against the person, including
offenses committed as a juvenile for which he was tried as an adult. Defendant
pled guilty in 1999 to attempted robbery and carjacking in Florida. He received
probation which was subsequently revoked. He was sentenced again in 1999 to a
probated sentence for robbery and vehicle theft. This probated sentence was also
subsequently revoked. The report further reflects Defendant has two pending
armed robbery charges that are factually similar to the Olive Garden robbery.
14 Defendant‟s pre-sentence investigation report recommended a sentence
significantly more severe than the sentence imposed by the trial court.
Louisiana Revised Statutes 14:64(B) provides the penalty for the crime of
armed robbery as follows: “Whoever commits the crime of armed robbery shall be
imprisoned 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.”
Defendant‟s sentence in this case falls within the middle range of acceptable
sentences under the statute.
La. Const. art. 1, § 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, 51 9U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).
State v. Barling, 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035,
1042-43, writ denied, 01-838 (La. 2/1/02), 808 So.2d 331.
[E]ven when a sentence falls within the statutory sentencing range, it still may be unconstitutionally excessive, and in determining whether a sentence shocks the sense of justice or makes no meaningful contribution to acceptable penal goals, this court has suggested that several factors may be considered:
[An] appellate court may consider several factors including the nature of the offense, the circumstances of the offender, the legislative purpose behind the punishment and a comparison of the sentences imposed for similar crimes. State v. Smith, 99-0606 (La.7/6/00); 766 So.2d 501. While a comparison of sentences
15 imposed for similar crimes may provide some insight, “it is well settled that sentences must be individualized to the particular offender and to the particular offense committed.” State v. Batiste, 594 So.2d 1 (La.App. 1 Cir.1991). Additionally, it is within the purview of the trial court to particularize the sentence because the trial judge “remains in the best position to assess the aggravating and mitigating circumstances presented by each case.” State v. Cook, 95-2784 (La.5/31/96); 674 So.2d 957, 958.
State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ denied, 03-562 (La.5/30/03), 845 So.2d 1061.
State v. Decuir, 10-1112, pp. 12-13 (La.App. 3 Cir. 4/6/11), 61 So.3d 782, 791.
According to our supreme court, sentences “within the thirty-five to fifty-
year range . . . [are] acceptable for first offenders convicted of armed robbery.”
State v. Smith, 01-2574, p. 7 (La. 1/14/03), 839 So.2d 1, 4. Additionally, the
Louisiana Supreme Court has described armed robbery as a “pernicious offense”
which “creates a great risk of emotional and physical harm to the victim, to
witnesses, and, at times, even to the offender.” State ex rel. Sullivan, Sr. v. Maggio,
432 So.2d 854, 856 (La.1983). Considering the seriousness of an armed robbery
offense in general, the seriousness of the armed robbery offense committed in the
present case, and Defendant‟s prior criminal history, we find that the trial court did
not abuse its discretion in its imposition of sentence.
Lastly, Defendant alleges that his co-defendant, Almaguer, was the more
culpable of the two defendants and alleges that his co-defendant orchestrated the
criminal undertaking. There is no finding by the jury regarding comparable
culpability. Defendant‟s co-defendant pled guilty to armed robbery and possession
of a firearm by a felon, and his sentences for his crimes were imposed by the trial
court. The fact that the co-defendant‟s sentence was less than that of Defendant is
not equivalent to Defendant being penalized for maintaining his innocence as
16 suggested by counsel. Similarly, the law does not seek to penalize defendants for
the errors or omissions of their counsel. Rather, the law provides a necessary
orderly and structured manner in which to afford due process to those accused of
criminal wrongdoing.
Defendant asserts that he received a harsher sentence than his co-defendant.
As we stated in State v. Lofton, 97-383, p. 5 (La.App. 3 Cir. 10/8/97), 701 So.2d
712, 715, writ denied, 98-389 (La. 6/5/98), 720 So.2d 679, “it is well settled that a
sentence must be individualized as to each defendant. Even when dealing with co-
defendants or other defendants with similar records, there is no requirement that
the sentences be the same.”
We find that, although the reasons provided by the trial court were scant, the
trial court clearly stated that it reviewed Defendant‟s pre-sentence investigation
report and considered all of the aggravating and mitigating factors as per the
applicable statute. Further, this court has considered Defendant‟s long criminal
history, the pre-sentence report and its recommendations regarding sentencing, and
the testimony of the various witnesses at trial regarding Defendant‟s involvement
in this violent crime. We conclude Defendant received an individualized sentence
that is not excessive under the law. In accordance with La.Code Crim.P. art.
881.4(D), this court finds that the record supports the sentence imposed upon
Defendant. Therefore, we shall not set aside Defendant‟s sentence for
excessiveness. For these reasons, this assignment lacks merit.
DECREE
We hereby affirm Defendant‟s conviction for armed robbery. We also
affirm the sentence imposed by the trial court. In accordance with La.Code Crim.P.
art. 930.8, we order the trial court to inform Defendant, by written notice, within
17 ten days of the rendition of this opinion, of the prescriptive period for the
application for post-conviction relief. Thereafter, the trial court shall file written
proof in the record of these proceedings that Defendant received such notice.
AFFIRMED; REMANDED WITH INSTRUCTIONS.