State of Louisiana Versus Landon P Rogers
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Opinion
STATE OF LOUISIANA NO. 23-KA-558
VERSUS FIFTH CIRCUIT
LANDON P ROGERS COURT OF APPEAL
STATE OF LOUISIANA
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 20-333, DIVISION "E" HONORABLE FRANK A. BRINDISI, JUDGE PRESIDING
August 28, 2024
MARC E. JOHNSON JUDGE
Panel composed of Judges Marc E. Johnson, Scott U. Schlegel, and Timothy S. Marcel
AFFIRMED MEJ SUS TSM COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA Honorable Paul D. Connick, Jr. Thomas J. Butler Monique D. Nolan Carolyn Chkautovich Kristen Landrieu
COUNSEL FOR DEFENDANT/APPELLANT, LANDON ROGERS Jane C. Hogan JOHNSON, J.
Defendant, Landon P. Rogers, appeals the 24th Judicial District Court’s
judgments convicting him of armed robbery and sentencing him to 70 years
imprisonment without benefit of probation, parole, or suspension of sentence. For
the following reasons, we affirm Defendant’s conviction and sentence.
FACTS AND PROCEDURAL HISTORY
The following facts and evidence were adduced at trial.
In 2019, Connor Larson lived in an apartment in Metairie and drove a white
convertible Mercedes coupe. On November 14, he was at work at a bar in uptown
New Orleans when a co-worker pointed out to him two people, later identified as
Jhon Da-Silva Ferreira and Defendant, Landon Rogers. He noticed that they were
“out-of-place” and recalled he did not “directly recognize them”. Later, he
recognized Jhon, but he had never seen Defendant before.
After the end of his shift the next morning, Connor went to a nearby bar with
friends and co-workers. Connor returned to his home around five or six in the
morning. Shortly after settling into bed, Connor heard knocking, and his dogs
began barking. Connor thought it was his co-worker he had offered earlier to let
spend the night if he needed a place to crash, so he opened the door. Defendant
entered with a gun drawn, and Jhon was behind him.
Defendant and Jhon wore masks and gloves and made Connor sit on his
couch. Jhon and Defendant asked if he had any money or drugs in the apartment
and if so, where they were. The pair took turns holding him on the couch while the
other rummaged through his apartment.
In an effort to appease Jhon and Defendant, Connor offered to withdraw
money from the Regions Bank ATM down the street. Then, in response to their
continued inquiries about drugs, Connor offered to go to his mother Rochelle
Peiffer’s nearby apartment to retrieve her medication. He did not remember
23-KA-558 1 whether they went to his mother’s apartment or the bank first, but once they
arrived at his mother’s home, only he and Defendant went inside. Connor went to
his mother’s bedroom to retrieve a bag with bottles of pills. As they left, Defendant
looked in Connor’s brother’s room and took a computer from a desk.
The three men returned to Connor’s apartment. One of them watched
Connor as the other carried items out of the apartment to the car. Connor recalled
that at some point, he was hit across the face several times with the gun. Pictures of
Connor’s face, which “showed bruises and red marks”, were published to the jury.
Connor testified that they stripped him to his underwear, laughed at him, and
made fun of his physique. Near the end of the ordeal, Jhon and Defendant removed
their masks. Connor explained that if a gun was not pointed at him, then a knife
from his own apartment was used to threaten him and he was terrified. He testified
that Jhon and Defendant brought him to his bedroom, made him sit on the bed, and
held a gun to the back of his head before disappearing.
Afterwards, Connor used a neighbor’s phone to call his parents. Detectives
arrived at his apartment shortly thereafter. Connor went to the investigations
bureau to speak to the officers. There, he identified Defendant and Jhon from two
six-person lineups. Connor admitted that, at first, he was not completely honest or
cooperative with the detectives. First, he told the detectives that he had been
kidnapped and robbed but did not initially tell them about his connection to Jhon.
Later Connor explained that connection by recalling that, weeks prior, he bought
ecstasy from Jhon using counterfeit money and believed this incident was
retaliation. Connor acknowledged that he owed Jhon eight hundred dollars for the
ecstasy but stated that he never saw Defendant before and did not owe him money.
On November 15, Sergeant (then Detective) Daniel Lassus, Lieutenant
Frank Renaudin, Sergeant Marc Macaluso, Sergeant (then Detective) Edward Sens,
23-KA-558 2 and Detective Derek Adams responded to the scene. Lead investigator Sergeant
Lassus recalled that he spoke to Connor and his neighbor.
Initially, the victim said Defendant and Jhon went to his apartment around
5:15 a.m., and knocked on the door; when the victim opened it, Defendant forced
his way in with a small caliber pistol before demanding money and other items. He
explained that Connor told him that they put duct tape over his mouth when he
began to make noise. The sergeant testified that the pistol changed hands several
times and that a knife was also held to Connor. He explained that the suspects took
numerous items from the apartment and put them in bags. The detective stated that
they then got in the victim’s car. Defendant was in the front passenger seat, and
Jhon was in the back seat. Connor drove to a Regions Bank but could not use the
ATM because he did not have his card, which upset the suspects. Sergeant Lassus
testified that the victim said he told the suspects that there were drugs at his
mother’s house nearby. The suspects made Connor drive to his mother’s house,
where they took a shave kit containing pill bottles with her name on them. Connor
told Sergeant Lassus that the men returned to Connor’s residence and Jhon went
inside to retrieve the ATM card. Connor then drove back to the Regions Bank,
where he withdrew five hundred dollars. Connor gave them the money and the
card. Then the men returned to his apartment where he was made to undress and
lay down before the suspects fled. Sergeant Lassus explained that Conner initially
left out some details, but later admitted that he met Jhon once for a brief hand-to-
hand transaction to purchase ecstasy. Later, Connor identified the handgun used in
the incident. He also identified photographs of his belongings, including a
backpack, bag of marijuana, as well as duct tape and a jacket Defendant wore on
the morning of the incident.
From the photograph exhibits taken at the crime scene and admitted into
evidence, Sgt. Lassus identified Connor’s vehicle and first-floor apartment, bottles
23-KA-558 3 of pills taken by Defendant from the victim’s mother’s residence, and a laptop.
Sergeant Lassus stated the apartment’s appearance was consistent with how it was
described by the victim in his statement. Also, he did not see any signs of drug use
or distribution in the victim’s apartment.
Lieutenant Renaudin contacted the Regions Bank branch manager, who
provided photographs of the victim’s vehicle with three occupants at the bank’s
ATM at 7:23 a.m. on November 15, 2019. Sergeant Sens used an automated
license plate recognition system (ALPR system) to track the movements of the
victim’s white Mercedes and Defendant’s green Toyota 4Runner. The timeline
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STATE OF LOUISIANA NO. 23-KA-558
VERSUS FIFTH CIRCUIT
LANDON P ROGERS COURT OF APPEAL
STATE OF LOUISIANA
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 20-333, DIVISION "E" HONORABLE FRANK A. BRINDISI, JUDGE PRESIDING
August 28, 2024
MARC E. JOHNSON JUDGE
Panel composed of Judges Marc E. Johnson, Scott U. Schlegel, and Timothy S. Marcel
AFFIRMED MEJ SUS TSM COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA Honorable Paul D. Connick, Jr. Thomas J. Butler Monique D. Nolan Carolyn Chkautovich Kristen Landrieu
COUNSEL FOR DEFENDANT/APPELLANT, LANDON ROGERS Jane C. Hogan JOHNSON, J.
Defendant, Landon P. Rogers, appeals the 24th Judicial District Court’s
judgments convicting him of armed robbery and sentencing him to 70 years
imprisonment without benefit of probation, parole, or suspension of sentence. For
the following reasons, we affirm Defendant’s conviction and sentence.
FACTS AND PROCEDURAL HISTORY
The following facts and evidence were adduced at trial.
In 2019, Connor Larson lived in an apartment in Metairie and drove a white
convertible Mercedes coupe. On November 14, he was at work at a bar in uptown
New Orleans when a co-worker pointed out to him two people, later identified as
Jhon Da-Silva Ferreira and Defendant, Landon Rogers. He noticed that they were
“out-of-place” and recalled he did not “directly recognize them”. Later, he
recognized Jhon, but he had never seen Defendant before.
After the end of his shift the next morning, Connor went to a nearby bar with
friends and co-workers. Connor returned to his home around five or six in the
morning. Shortly after settling into bed, Connor heard knocking, and his dogs
began barking. Connor thought it was his co-worker he had offered earlier to let
spend the night if he needed a place to crash, so he opened the door. Defendant
entered with a gun drawn, and Jhon was behind him.
Defendant and Jhon wore masks and gloves and made Connor sit on his
couch. Jhon and Defendant asked if he had any money or drugs in the apartment
and if so, where they were. The pair took turns holding him on the couch while the
other rummaged through his apartment.
In an effort to appease Jhon and Defendant, Connor offered to withdraw
money from the Regions Bank ATM down the street. Then, in response to their
continued inquiries about drugs, Connor offered to go to his mother Rochelle
Peiffer’s nearby apartment to retrieve her medication. He did not remember
23-KA-558 1 whether they went to his mother’s apartment or the bank first, but once they
arrived at his mother’s home, only he and Defendant went inside. Connor went to
his mother’s bedroom to retrieve a bag with bottles of pills. As they left, Defendant
looked in Connor’s brother’s room and took a computer from a desk.
The three men returned to Connor’s apartment. One of them watched
Connor as the other carried items out of the apartment to the car. Connor recalled
that at some point, he was hit across the face several times with the gun. Pictures of
Connor’s face, which “showed bruises and red marks”, were published to the jury.
Connor testified that they stripped him to his underwear, laughed at him, and
made fun of his physique. Near the end of the ordeal, Jhon and Defendant removed
their masks. Connor explained that if a gun was not pointed at him, then a knife
from his own apartment was used to threaten him and he was terrified. He testified
that Jhon and Defendant brought him to his bedroom, made him sit on the bed, and
held a gun to the back of his head before disappearing.
Afterwards, Connor used a neighbor’s phone to call his parents. Detectives
arrived at his apartment shortly thereafter. Connor went to the investigations
bureau to speak to the officers. There, he identified Defendant and Jhon from two
six-person lineups. Connor admitted that, at first, he was not completely honest or
cooperative with the detectives. First, he told the detectives that he had been
kidnapped and robbed but did not initially tell them about his connection to Jhon.
Later Connor explained that connection by recalling that, weeks prior, he bought
ecstasy from Jhon using counterfeit money and believed this incident was
retaliation. Connor acknowledged that he owed Jhon eight hundred dollars for the
ecstasy but stated that he never saw Defendant before and did not owe him money.
On November 15, Sergeant (then Detective) Daniel Lassus, Lieutenant
Frank Renaudin, Sergeant Marc Macaluso, Sergeant (then Detective) Edward Sens,
23-KA-558 2 and Detective Derek Adams responded to the scene. Lead investigator Sergeant
Lassus recalled that he spoke to Connor and his neighbor.
Initially, the victim said Defendant and Jhon went to his apartment around
5:15 a.m., and knocked on the door; when the victim opened it, Defendant forced
his way in with a small caliber pistol before demanding money and other items. He
explained that Connor told him that they put duct tape over his mouth when he
began to make noise. The sergeant testified that the pistol changed hands several
times and that a knife was also held to Connor. He explained that the suspects took
numerous items from the apartment and put them in bags. The detective stated that
they then got in the victim’s car. Defendant was in the front passenger seat, and
Jhon was in the back seat. Connor drove to a Regions Bank but could not use the
ATM because he did not have his card, which upset the suspects. Sergeant Lassus
testified that the victim said he told the suspects that there were drugs at his
mother’s house nearby. The suspects made Connor drive to his mother’s house,
where they took a shave kit containing pill bottles with her name on them. Connor
told Sergeant Lassus that the men returned to Connor’s residence and Jhon went
inside to retrieve the ATM card. Connor then drove back to the Regions Bank,
where he withdrew five hundred dollars. Connor gave them the money and the
card. Then the men returned to his apartment where he was made to undress and
lay down before the suspects fled. Sergeant Lassus explained that Conner initially
left out some details, but later admitted that he met Jhon once for a brief hand-to-
hand transaction to purchase ecstasy. Later, Connor identified the handgun used in
the incident. He also identified photographs of his belongings, including a
backpack, bag of marijuana, as well as duct tape and a jacket Defendant wore on
the morning of the incident.
From the photograph exhibits taken at the crime scene and admitted into
evidence, Sgt. Lassus identified Connor’s vehicle and first-floor apartment, bottles
23-KA-558 3 of pills taken by Defendant from the victim’s mother’s residence, and a laptop.
Sergeant Lassus stated the apartment’s appearance was consistent with how it was
described by the victim in his statement. Also, he did not see any signs of drug use
or distribution in the victim’s apartment.
Lieutenant Renaudin contacted the Regions Bank branch manager, who
provided photographs of the victim’s vehicle with three occupants at the bank’s
ATM at 7:23 a.m. on November 15, 2019. Sergeant Sens used an automated
license plate recognition system (ALPR system) to track the movements of the
victim’s white Mercedes and Defendant’s green Toyota 4Runner. The timeline
established by the locations of those vehicles from the evening of November 14
through the morning of November 15 corroborated Connor’s statement.
Sergeant Sens observed a green Toyota 4Runner traveling approximately
twenty seconds behind the victim’s car as it crossed into Jefferson Parish on
November 15, 2019. He explained that the green vehicle also followed the victim
home around 9:50 p.m. the previous night and, about twenty minutes later, got on
I-10. The green vehicle was about one mile from the victim’s place of employment
around 10:30 p.m. on Thursday, November 14. The ALPR system showed the
green vehicle near the victim’s place of employment around 1:30 a.m. on Friday,
November 15. Around 5:09 a.m., the victim’s car was by his apartment, and the
green vehicle was about twenty seconds behind. The system reflected that at 6:58
a.m. on November 15, the victim’s vehicle was at Lake Avenue and Old Hammond
Highway traveling outbound. Defendant’s green vehicle was captured on the
Westbank at 8:15 a.m.
Sergeant Lassus explained that after the ALPR research, he conducted
several interviews. He stated that Connor initially left out some details, including
him buying drugs from co-defendant Jhon at some point. Connor later advised that
he met Jhon once for a brief hand-to-hand transaction to purchase ecstasy and that
23-KA-558 4 Connor did not get a good look at him then. Sergeant Lassus interviewed Connor
again on November 21, at which time he signed a photograph identifying the
handgun used in the incident. Connor also signed photographs of various items
from Defendant’s vehicle that belonged to him (including a backpack and a bag of
marijuana), as well as duct tape, and a jacket worn by Defendant on November 14 -
15. Sergeant Lassus confirmed that Connor identified Defendant and Jhon as the
perpetrators.
On November 26, Sergeant Lassus spoke to Jhon, who confirmed everything
he had learned, as a result of the investigation. At trial, Jhon Da-Silva Ferreira
acknowledged that he pled guilty to charges involving the kidnapping and armed
robbery of Connor, to the burglary of Ms. Peiffer’s home, and to various drug-
related charges. After confirming that he received a fifteen-year sentence for the
instant armed robbery, kidnapping, and simple burglary charges, and a twenty-year
sentence for the drug-related convictions, he refused to answer any other questions
and invoked what he believed was his Fifth Amendment privilege against self-
incrimination.
Sergeant Macaluso testified that Defendant’s green Toyota 4Runner was
located on November 18 in New Orleans. Defendant was arrested, two search
warrants for the vehicle were obtained, and the vehicle was towed to the
investigations bureau. Investigators found two bottles of pills (containing
hydrocodone and D-amphetamine salt, commonly known as Adderall) belonging
to Ms. Peiffer (the victim’s mother) in the car. The police also found a loaded
pistol in the front compartment of the center console and recovered several items
from the victim’s apartment in the vehicle: a bag of whey protein, a mesh Adidas
bag, toothpaste, a North Face bag which contained wires and a bag of marijuana, a
headset, and vape oils. The jacket Connor said Defendant wore and a roll of
Gorilla tape used to subdue Connor were also located inside the vehicle. Sergeant
23-KA-558 5 Lassus also identified Defendant’s voice on a jail call played for the jury and
explained that Defendant referred to Regions Bank on the call, but no one from law
enforcement had mentioned the bank to Defendant.
A unanimous jury found Defendant not guilty of second degree kidnapping
and simple burglary of an inhabited dwelling, but convicted him of the responsive
verdict of armed robbery, in violation of La. R.S. 14:64, after a two-day trial in
January 2023. A week later, the district court reviewed Defendant’s criminal
record, observed that he was “incorrigible” and not likely to “ever get any better,”
and sentenced Defendant to sixty years imprisonment.
A multiple offender bill was filed in September 2023. At the initial hearing
on the bill, the State offered a certified transcript of a February 2019 conviction in
Livingston Parish, wherein Defendant voluntarily pled guilty to possession of
marijuana with intent to distribute, and a penitentiary packet (“pen pack”) to prove
Defendant was the same person who was convicted of possession of marijuana
with intent to distribute previously in Livingston Parish. The defense objected to
the proof the State offered and argued that, in this case, the testimony of a witness
was required to show that Defendant and the person convicted of the 2019 charge
were the same person. The court took the matter under advisement, then denied
Defendant’s written motion to reconsider sentence and noted his objection to that
ruling.
The district court found that, under State v. Wade, 22-260 (La. App. 5 Cir.
2/27/23), 358 So.3d 937, it could consider the totality of the evidence presented
and found that the defendant convicted of the prior offense in 2019 and Defendant
were the same person. The court adjudicated Defendant a second felony offender,
vacated his previous sentence, and sentenced Defendant to seventy years without
the benefit of parole, probation or suspension of sentence. The instant appeal
followed.
23-KA-558 6 ASSIGNMENTS OF ERROR
On appeal, Defendant argues that 1) the evidence was insufficient to support
his conviction of armed robbery; 2) the trial court violated his rights to confront his
accusers and to due process when it allowed the State to question his co-
Defendant, who previously informed the court that he refused to testify,
extensively; 3) the evidence presented to support his multiple offender adjudication
was insufficient; and 4) the trial court abused its discretion when it failed to
consider the sentencing guidelines of La. C.Cr.P. art. 894.1, and imposed an
“excessive and disparate” sentence.
The State counters that it set forth sufficient evidence to support both
Defendant’s armed robbery conviction and his subsequent second felony offender
adjudication. Further, the State contends that co-defendant Jhon Da-Silva
Ferreira’s invocation of his Fifth Amendment privilege against self-incrimination
“did not add critical weight to [it’s] case in a form not subject to cross-examination
which prejudiced Rogers unfairly”. Last, because the defense failed to file a
motion to reconsider sentence after Defendant’s original sentence was vacated, and
his adjudication as a second felony offender, the State contends that this Court is
limited to a bare review for unconstitutional excessiveness, and the record supports
the sentence imposed by the trial court.
LAW AND DISCUSSION
SUFFICIENCY OF THE EVIDENCE
Defendant argues that there is insufficient evidence to support his
conviction. He contends that the only evidence was Connor’s testimony, which he
describes as self-serving and contradictory to the physical evidence. Defendant
asserts that Connor was willingly paying off a drug debt and opines that, based on
his acquittal of the other charges, the jury did not believe Connor’s testimony.
23-KA-558 7 The question of sufficiency of the evidence is properly raised in the trial
court by a motion for post-verdict judgment of acquittal pursuant to La. C.Cr.P. art.
821. State v. Nguyen, 22-286 (La. App. 5 Cir. 2/27/23), 359 So.3d 108, 118.
Defendant did not file such a motion in this case, but the failure to file a motion for
post-verdict judgment of acquittal does not preclude appellate review of the
sufficiency of the evidence. State v. Manuel, 20-172 (La. App. 5 Cir. 6/2/21), 325
So.3d 513, 538, writ denied, 21-926 (La. 10/12/21), 325 So.3d 1071.
In reviewing the sufficiency of the evidence, an appellate court must
determine if the evidence, whether direct or circumstantial, or a mixture of both,
viewed in the light most favorable to the prosecution, was sufficient to convince a
rational trier of fact that all of the elements of the crime have been proven beyond
a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61
L.Ed.2d 560 (1979); State v. Lane, 20-181 (La. App. 5 Cir. 1/27/21), 310 So.3d
794, 804. Circumstantial evidence consists of proof of collateral facts and
circumstances from which the existence of the main fact can be inferred according
to reason and common experience. State v. Gatson, 21-156 (La. App. 5 Cir. 12
12/29/21), 334 So.3d 1021, 1034. When circumstantial evidence is used to prove
the commission of an offense, La. R.S. 15:438 provides that “assuming every fact
to be proved that the evidence tends to prove, in order to convict, it must exclude
every reasonable hypothesis of innocence.” State v. Woods, 23-41 (La. App. 5 Cir.
11/15/23), 376 So.3d 1144, 1155, writ denied, 23-1615 (La. 5/29/24), 385 So.3d
700. This is not a separate test from the Jackson standard but rather provides a
helpful basis for determining the existence of reasonable doubt. Id.
The directive that the evidence be viewed in the light most favorable to the
prosecution requires the reviewing court to defer to the actual trier of fact’s rational
credibility calls, evidence weighing, and inference drawing. State v. Aguilar, 23-34
(La. App. 5 Cir. 11/15/23), 376 So.3d 1105, 1108. This deference to the fact-finder
23-KA-558 8 does not permit a reviewing court to decide whether it believes a witness or
whether the conviction is contrary to the weight of the evidence. State v.
McKinney, 20-19 (La. App. 5 Cir. 11/4/20), 304 So.3d 1097, 1102. Indeed, the
resolution of conflicting testimony rests solely with the trier of fact, who may
accept or reject, in whole or in part, the testimony of any witness. State v. Lavigne,
22-282 (La. App. 5 Cir. 5/24/23), 365 So.3d 919, 940, writ not considered, 23-
1119 (La. 10/10/23), 370 So.3d 1086. Thus, in the absence of internal contradiction
or irreconcilable conflicts with physical evidence, the testimony of one witness, if
believed by the trier of fact, is sufficient to support a conviction. State v. Sly, 23-60
(La. App. 5 Cir. 11/2/23), 376 So.3d 1047, 1072, writ denied, 23-1588 (La.
4/23/24), 383 So.3d 608.
Here, Defendant was convicted of armed robbery. Armed robbery is the
taking of anything of value belonging to another from the person of another or that
is in the immediate control of another, by use of force or intimidation, while armed
with a dangerous weapon. La. R.S. 14:64. To support a conviction for armed
robbery, the State must prove that there was (1) a taking, (2) of anything of value,
(3) from the person of or in the immediate control of another, (4) by use of force or
intimidation, (5) while armed with a dangerous weapon. State v. Collins, 04-1443
(La. App. 5 Cir. 7/26/05), 910 So.2d 454, 457-58. A gun used in connection with a
robbery is, as a matter of law, a dangerous weapon. State v. Williams, 12-687 (La.
App. 5 Cir. 5/16/13), 119 So.3d 228, 233, writ denied, 13-1335 (La. 12/2/13), 126
So.3d 500. A knife has also been found to be a dangerous weapon. State v.
Delagardelle, 06-898 (La. App. 5 Cir. 4/11/07), 957 So.2d 825, 830, writ denied,
07-1067 (La. 11/21/07), 967 So.2d 1154. Furthermore, the act of pointing a gun at
a victim is sufficient to prove the required element of force or intimidation for
purposes of armed robbery. Williams, supra. Further, “the overwhelming weight of
modern authority holds that a creditor who collects on a debt by the use of force
23-KA-558 9 commits the offense of robbery, which, in Louisiana, becomes an armed robbery
when the offender using force or intimidation is ‘armed with a dangerous
weapon.’” State v. Jackson, 09-2406 (La. 1/19/11), 55 So.3d 767, 772.
This Court addressed the credibility of a witness in State v. Cowart, 01-1178
(La. App. 5 Cir. 3/26/02), 815 So.2d 275, 284-85, writ denied, 02-1457 (La.
5/9/03), 843 So.2d 387. In that case, there was no physical evidence linking the
defendant to the crime, and a single witness identified the defendant as the
perpetrator of a shooting. At trial, the reliability of the eyewitness was attacked
because the witness had initially lied to the police, gave a description that did not
match the defendant, had perjured herself during motion hearings, and had changed
her story about the crime scene and the number of shots she heard. Despite this
long list of deficiencies, this Court held that it was within the jury’s discretion to
believe the witness’s testimony.
In State v. Thomas, 08-813 (La. App. 5 Cir. 4/28/09), 13 So.3d 603, writ
denied sub nom. State ex rel. Thomas v. State, 09-1294 (La. 4/5/10), 31 So.3d 361,
the defendant averred that the evidence was insufficient to support his conviction
for armed robbery because a witness’s testimony was not supported by the
evidence and was inconsistent. Specifically, those inconsistencies pertained to who
was present during the incident and the description of the gun used. This Court
stated that even assuming these discrepancies were not explained, they went to the
credibility of the witness, which is within the sound discretion of the trier of fact,
who may accept or reject, in whole or in part, the testimony of any witness. Id. at
607. This Court further explained that the witness’s testimony was corroborated by
another witness’s testimony. This Court concluded that the evidence was
sufficient. Id.
Here, the evidence presented was sufficient under the Jackson standard to
show that Defendant committed armed robbery. Defendant contends that Connor’s
23-KA-558 10 testimony was contradicted by physical evidence. He specifically asserts that the
pictures of Connor’s face after the incident do not show bruises from being hit
across the face with the gun. However, the photographs of Connor’s face were
viewed by the jury and they apparently found his testimony credible. Further, the
State did not have to prove beyond a shadow of a doubt that Connor was struck in
the face with the firearm in order for the jury to find that Defendant committed an
armed robbery. Defendant avers that Connor testified that he did not have drugs
but Connor actually had a bag of marijuana taken from his apartment -- the jury
heard that testimony also. The jury made a credibility determination and found the
evidence as to the armed robbery believable. Defendant suggests that Connor
willingly paid off his drug debt, but the record supports a conclusion that he and
Jhon used force and intimidation to collect on the debt owed to Jhon. See Jackson,
55 So.3d at 772.
Further, Defendant’s assertion that Connor’s testimony was uncorroborated
is incorrect. Connor testified that a gun was used and identified a picture of the gun
used during the robbery. A gun was found in Defendant’s vehicle three days after
the offense. Connor testified that Defendant and Jhon took various items from his
home, and a laptop and pill bottles with his mother’s name on them from her home
– police found those items in Defendant’s green Toyota 4Runner a few days after
the armed robbery. Additionally, photographs from the bank corroborated
Connor’s testimony that he and two individuals took his vehicle to the bank on the
morning of November 15, 2019. The ALPR system tracking of Connor’s vehicle
also corroborated his statements. Photographs from the ALPR system tracking
Defendant’s vehicle showed it followed Connor’s vehicle and was in the vicinity
of his workplace and apartment.
In conclusion, we find that the State sufficiently proved that Defendant
committed armed robbery. The State established that various items were taken
23-KA-558 11 from Connor’s apartment. Further, he withdrew hundreds of dollars from an ATM,
which he gave to Defendant. The jury accepted the evidence that Defendant had a
gun that was used to force Connor to cooperate, along with one of his own knives.
The jury’s finding that Defendant committed armed robbery is permissibly
supported by the testimony of one witness that is free of internal contradictions or
conflict with physical evidence. Sly, supra. Any other inconsistencies found in
Connor’s testimony in comparison with the other evidence presented goes to the
weight of the evidence and not its sufficiency. See State v. Cole, 15-358 (La. App.
5 Cir. 12/23/15), 182 So.3d 1192, 1199, writ denied, 16-179 (La. 2/10/17), 215
So.3d 700. Appellate courts have found that it is within the jury’s discretion to
credit the testimony of witnesses who initially lied to the police, perjured
themselves during motion hearing, and gave inconsistent accounts about details of
the crime. See Cowart, 815 So.2d at 284-85. The jury may even accept or reject, in
whole or part, the testimony of a witness who provided inconsistent accounts
regarding the number of people present during an incident, or the description of the
weapon used. See Thomas, 13 So.3d at 607. Considering the foregoing, this
assignment of error lacks merit.
RIGHT TO CONFRONT ACCUSERS AND CO-DEFENDANT’S INVOCATION OF FIFTH AMENDMENT PRIVILEGE ON THE WITNESS STAND
Defendant contends that the judge erroneously allowed the State to ask Jhon
multiple questions that added weight to its weak case despite his refusal to answer
questions. He avers that the State anticipated that Jhon would refuse to answer
questions as it requested that he be appointed an attorney prior to taking the stand.
He argues that his Sixth Amendment rights to confrontation and due process were
violated by the State’s repeated improper questioning of Jhon concerning his
alleged confession implicating Defendant.
23-KA-558 12 In response to the prosecutor’s initial questions, Jhon stated his name and
acknowledged that he was in prison because he pled guilty to charges involving the
kidnapping and armed robbery of Connor, the burglary of Connor’s mother’s
home, and drug charges. He agreed that he was sentenced to “fifteen years for the
armed robbery, kidnapping, and simple burglary, and then twenty years on the
drugs.” The prosecutor then asked Jhon if he and Defendant went into Connor’s
apartment to get his money he was owed from the prior drug deal. At that time,
Jhon stated he was pleading “the Fifth.” The judge informed Jhon that because he
already pled guilty, he did not have a Fifth Amendment privilege, and ordered him
answer the questions.
After a bench conference outside of the presence of the jury, the judge
permitted the prosecutor to treat Jhon as a hostile witness. Jhon continued to refuse
to answer any of the State’s questions.
The Sixth Amendment to the United States Constitution guarantees an
accused in a criminal prosecution the right to be confronted with the witnesses
against him. Additionally, the Confrontation Clause of the Louisiana Constitution
directly affords the accused the right to “confront and cross-examine the witnesses
against him.” La. Const. art. I, § 16; State v. Shorter, 23-128 (La. App. 5 Cir.
11/29/23), 377 So.3d 421, 432, writ denied, 23-1669 (La. 5/29/24), 385 So.3d 704.
The main and essential purpose of confrontation is to secure for the opponent the
opportunity of cross-examination. State v. Bell, 23-85 (La. App. 5 Cir. 10/31/23),
374 So.3d 986, 997. Cross-examination is the principal means by which
believability and truthfulness of testimony are tested and the cross-examiner has
traditionally been allowed to impeach, or discredit, the witness. Id.
Although defense counsel objected to every question the prosecution asked
Jhon besides the inquiry about his convictions and sentences, the defense never
objected at trial on the Confrontation Clause argument he now raises for the first
23-KA-558 13 time on appeal. To preserve the right to seek appellate review of an alleged trial
court error, a party must state an objection contemporaneously with the occurrence
of the alleged error as well as the grounds for that objection. See La. C.Cr.P. art.
841; State v. Anthony, 17-372 (La. App. 5 Cir. 12/30/20), 309 So.3d 912, 927, writ
denied, 21-176 (La. 10/12/21), 325 So.3d 1067, cert. denied, -- U.S. --, 143 S.Ct.
29, 214 L.Ed.2d 214 (2022). In failing to object at trial, Defendant waived the issue
for appellate review. See State v. Otkins-Victor, 15-340 (La. App. 5 Cir. 5/26/16),
193 So.3d 479, 533, writ denied sub nom. State ex rel. Otkins-Victor v. State, 16-
1495 (La. 10/15/18), 253 So.3d 1294 (This Court explained that for the first time
on appeal, the defendant argued that her Sixth Amendment right to confrontation
was violated by her inability to cross-examine the coroner and that she never raised
the issue that she was denied her right to confrontation by the coroner’s failure to
testify; thus, the issue was not properly preserved for appeal.).
Further, Confrontation Clause violations do not fit within the limited
category of constitutional errors that are deemed prejudicial in every case—the
violation of a defendant’s right to confrontation may constitute harmless error. Sly,
376 So.3d at 1076. The factors to be considered in determining whether the error
was harmless include the importance of the testimony of the witness in the State’s
case, whether the testimony is cumulative, the presence or absence of evidence
corroborating or contradicting the testimony, the extent of the cross-examination
permitted, and the overall strength of the State’s case. State v. Mullins, 14-2260
(La. 1/27/16), 188 So.3d 164, 171-72. Even if Defendant’s right to confrontation
was violated by the State’s presentation of Jhon as a witness while (improperly)
exercising his Fifth Amendment right against self-incrimination, the cumulative
nature of the unanswered questions compared to the other evidence presented, and
the overall strength of the State’s case rendered any error caused by the
23-KA-558 14 confrontation issue harmless. Further, the instructions the trial court provided to
the jury prior to deliberation explained that attorneys’ statements are not evidence.
SUFFICIENCY OF PROOF OF PRIOR FELONY CONVICTION
Defendant argues that because the State failed to call an expert to establish a
sufficient link between him and his alleged prior conviction, his habitual offender
adjudication and sentence must be vacated.
In this case, on September 7, 2023, the State filed a multiple bill wherein it
alleged that Defendant was previously charged in case number 18-FELN-037021
in section “E” in the 21st Judicial District Court in Livingston Parish for violating
La. R.S. 40:966(A), possession of marijuana with intent to distribute. The State
provided that Defendant pled guilty as charged in that case on February 4, 2019,
and was sentenced that day to five years imprisonment at hard labor. The State said
the sentence was suspended and that Defendant was placed on two years of active
probation.
At a hearing on September 7, 2023, the prosecutor offered into evidence a
transcript from the Livingston Parish case and a reporter’s certificate showing that
Defendant pled guilty to the Livingston Parish charge. Defense counsel replied,
“Well, I’m sure they have some proof that somebody named -- someone pled
guilty. I don’t know how they’re going to prove it’s the gentleman sitting in the
box.” The prosecutor then explained that she was offering into evidence certified
records from a hearing in Livingston Parish from February 4, 2019, where
Defendant pled guilty to possession with intent to distribute marijuana. Also, she
offered into evidence a certified copy of his pen pack. The judge asked if there
were fingerprints on the pen pack, and the prosecutor answered affirmatively. The
judge then asked if she was going to call a fingerprint expert. The prosecutor
explained that because the fingerprints were insufficient to determine a match, she
23-KA-558 15 obtained the transcript. Defense counsel objected, and the exhibits were admitted
into evidence.
Defense counsel expressed that he had never seen anyone do a multiple bill
without a fingerprint expert. He opined that in almost every case, a fingerprint
expert is called to testify. Counsel voiced concern for the admissibility of the
transcript without a witness. He questioned how they could know that the
individual listed in the transcript was the present Defendant. Counsel argued, “And
I would submit to you that the -- I would object to the entirety of this, one, because
how do we know this is the Landon Rogers sitting here. It could be any person
named ‘Landon Rogers.’ They have submitted no witnesses.” Counsel posited that
in previous cases where the fingerprints were not sufficient, a person from the prior
case such as the judge, prosecutor, or defense attorney was called as a witness. He
concluded that they did not know that the person described by the paperwork was
Defendant.
The prosecutor provided that the pen pack showed that Landon Rogers had a
2019 conviction and that it contained insufficient fingerprints. She explained, “A
creative way to get around that was to get the transcript of him pleading guilty
voluntarily to that conviction, and that is the reason for the court-certified
transcript and the pen pack.” The prosecutor argued that Defendant sat before the
judge for months and that the judge knew his birthday and name, which were
consistent with the pen pack and the waiver of rights in the transcript. The judge
took the matter under advisement.
At a hearing on September 12, 2023, the judge asked defense counsel if he
had anything to say, and counsel replied that for appeal purposes, he objected. He
then stated he also objected to the timeliness of the filing of the multiple bill. The
judge explained that he had a transcript from the prior conviction in Livingston
Parish and a pen pack. The judge referenced La. R.S. 15:529.1(F) in finding that
23-KA-558 16 the pen pack was “admissible as further proof.” The judge cited State v. Wade, 22-
260 (La. App. 5 Cir. 2/27/23), 358 So.3d 937. He explained that while there were
no fingerprints in the instant case, the State used other methods of evidence to
prove Defendant’s identity. The judge provided that he had a name, birthday, and
social security number in the pen pack. He mentioned that a specific type of
evidence was not required and that the transcript and pen pack were sufficient to
prove that Defendant was the same person convicted in the prior offense. The
judge then adjudicated Defendant a second-felony offender.
To prove that a defendant is a habitual offender, the State must establish by
competent evidence the defendant’s prior felony convictions and that defendant is
the same person who was convicted of the prior felonies. State v. Celestine, 20-170
(La. App. 5 Cir. 11/4/20), 306 So.3d 579, 587. Additionally, the State bears the
burden of proving that the predicate convictions fall within the “cleansing period”
prescribed by La. R.S. 15:529.1(C). Wade, 358 So.3d at 941. Once the State
establishes a prior felony conviction, then it must offer proof that the accused is the
same person who was convicted of the prior felony. State v. Castillo, 13-552 (La.
App. 5 Cir. 10/29/14), 167 So.3d 624, 647, writ denied sub nom. State ex rel.
Castillo v. State, 14-587 (La. 11/7/14), 152 So.3d 172, and writ denied, 14-2567
(La. 9/18/15), 178 So.3d 145. The defendant’s identity may be shown by a variety
of methods, including the testimony of witnesses, fingerprint analysis by an expert,
photographs in a duly authenticated record, or evidence of identical driver’s license
number, social security number, sex, race, and date of birth. Wade, supra. Merely
establishing that the defendant’s name and that of the person previously convicted
are the same is not sufficient evidence of identity under La. R.S. 15:529.1. State v.
Murphy, 09-805 (La. App. 5 Cir. 2/23/10), 34 So.3d 886, 889, writ denied, 10-690
(La. 10/15/10), 45 So.3d 1110. The State is not required to use a specific type of
evidence. Id.
23-KA-558 17 In State v. Westbrook, 392 So.2d 1043, 1045 (La. 1980), which involved a
conviction for driving while intoxicated (“DWI”), the Louisiana Supreme Court
found that documentation of the defendant’s name, driver’s license number, sex,
race, and date of birth was sufficient evidence for the State to carry its burden of
proving that the defendant was the same person previously convicted of a DWI.
See also State v. Neville, 96-137 (La. App. 4 Cir. 5/21/97), 695 So.2d 534, writ
denied, 97-1637 (La. 12/12/97), 704 So.2d 1180; State v. Henry, 96-1280 (La.
App. 4 Cir. 3/11/98), 709 So.2d 322, writ denied sub nom. State ex rel. Henry v.
State, 99-2642 (La. 3/24/00), 758 So.2d 143 (where the defendants were
adjudicated multiple offenders, and the appellate court found that sufficient proof
of identity was established despite the lack of photographs or fingerprints).
Here, the State admitted into evidence a pen pack for the prior offense in
Livingston Parish for possession with intent to distribute marijuana, as well as a
master record and arrest information relating to Defendant’s current armed robbery
conviction. The defendants in both cases are white males, have the same date of
birth, same address, same social security number, and same state identification or
SID number. In addition, a suspect rap sheet for the prior conviction contains a
photograph, which appears to show the same individual that the victim selected
from a lineup in the instant case.
Because the name, race, date of birth, address, social security number, and
state identification number are the same between Defendant and the person that
previously pled guilty to possession of marijuana with intent to distribute on
February 4, 2019, we find the State sufficiently established that the individuals
were one and the same. Further, the photographs reflect the same individual. Thus,
we find the district court did not err in adjudicating Defendant a second-felony
offender.
23-KA-558 18 REVIEW OF EXCESSIVE SENTENCE CLAIM
A “defendant should be sentenced in accord with the version of La. R.S.
15:529.1 [the multiple offender statute] in effect at the time of the commission of
the charged offense.” State v. Barnes, 23-208 (La. App. 5 Cir. 12/27/23), 379
So.3d 196, 204 n.6. At the time of the offense, La. R.S. 15:529.1(A)(1) provided
that if the second felony is such that upon a first conviction the offender would be
punishable by imprisonment for any term less than his natural life, then the
sentence to imprisonment shall be for a determinate term not less than one-third the
longest term and not more than twice the longest term prescribed for a first
conviction. As such, the enhanced sentencing range was thirty-three years to one
hundred ninety-eight years.
La. C.Cr.P. art. 881.1(B) provides that a motion for reconsideration of
sentence “shall be oral at the time of sentence or shall be in writing thereafter and
shall set forth the specific grounds on which the motion is based.” La. C.Cr.P. art.
881.1(E) provides that “[f]ailure to make or file a motion to reconsider sentence or
to include a specific ground upon which a motion to reconsider sentence may be
based, including a claim of excessiveness, shall preclude the state or the defendant
from raising an objection to the sentence or from urging any ground not raised in
the motion on appeal or review.” This Court has held that when the specific
grounds for objection to the sentences, including alleged non-compliance with La.
C.Cr.P. art. 894.1, are not specifically raised in the trial court, then these issues are
not included in the bare review for constitutional excessiveness, and the defendant
is precluded from raising these issues on appeal. State v. Kelson, 23-274 (La. App.
5 Cir. 12/27/23), 379 So.3d 779, 784.
Where a new sentence has been imposed following vacation of a prior
sentence, the defendant is required to file a new motion for reconsideration of
sentence in the trial court, in order to preserve appellate review of the newly-
23-KA-558 19 imposed sentence. State v. Robinson, 11-12 (La. App. 5 Cir. 12/29/11), 87 So.3d
881, 912, writ denied, 12-279 (La. 6/15/12), 90 So.3d 1059. The court cannot
assume that the defendant’s objections to the earlier sentence are equally
applicable to the new sentence imposed. Id. Because Defendant did not file a new
motion for reconsideration of his enhanced sentence with specifically alleged
grounds for objection, he is not entitled to a review of whether the trial court
complied with La. C.Cr.P. art. 894.1, and this Court is limited to a review of his
sentence of seventy years imprisonment for constitutional excessiveness.
The Eighth Amendment to the United States Constitution prohibits cruel and
unusual punishment. Article I, § 20 of the Louisiana Constitution also prohibits
cruel and unusual punishment but further explicitly prohibits excessive
punishment. State v. Ervin, 23-11 (La. App. 5 Cir. 8/30/23), 370 So.3d 1236, 1245,
writ denied, 23-1336 (La. 4/9/24), 382 So.3d 816. A sentence is considered
excessive, even when it is within the applicable statutory range, if it makes no
measurable contribution to acceptable goals of punishment and is nothing more
than the purposeful imposition of pain and suffering and is grossly out of
proportion to the severity of the crime. Id. A sentence is grossly disproportionate
if, when the crime and punishment are considered in light of the harm done to
society, it shocks the sense of justice. Barnes, 379 So.3d at 204.
The appellate court shall not set aside a sentence for excessiveness if the
record supports the sentence imposed. La. C.Cr.P. art. 881.4(D); State v. Corea-
Calero, 22-117 (La. App. 5 Cir. 12/28/22), 355 So.3d 697, 701. On appeal, the
relevant question is whether the trial court abused its broad sentencing discretion,
not whether another sentence might have been more appropriate. State v. Lasalle,
22-577 (La. App. 5 Cir. 8/18/23), 370 So.3d 521, 531.
In reviewing a trial court’s sentencing discretion, three factors are
considered: 1) the nature of the crime; 2) the nature and background of the
23-KA-558 20 offender; and 3) the sentence imposed for similar crimes by the same court and
other courts. Id at 532. However, there is no requirement that specific matters be
given any particular weight at sentencing. State v. Bridgewater, 22-517 (La. App.
5 Cir. 4/26/23), 362 So.3d 998, 1010. An appellate court cannot set aside a
sentence as excessive absent a manifest abuse of discretion. Id.
As to the first factor, the nature of the crime, the Louisiana Supreme Court
has recognized that armed robbery “is 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 v. Robinson, 22-310 (La. App. 5 Cir. 4/12/23), 361 So.3d
1107, 1116 (citing State v. Celestine, 12-241 (La. 7/2/12), 92 So.3d 335, 337 (per
curiam)); State v. Ross, 13-924 (La. App. 5 Cir. 5/28/14), 142 So.3d 327, 334. This
Court has also stated that armed robbery is a “serious offense against the person.”
Robinson, 361 So.3d at 1116.
In the instant matter, Defendant and Jhon went to Connor’s place of work
before ultimately following him home from a different bar in the early morning
hours to collect a debt owed to Jhon for drugs. The evidence at trial indicated that
Defendant was armed with a loaded gun, which was used to hit the victim in the
face several times and held to the back of the victim’s head, and that a knife may
also have been used. Defendant and Jhon held the victim on his couch while they
searched his apartment for drugs and money. The victim drove Defendant and Jhon
to the bank and his mother’s home in search of money and/or drugs. The victim
stated that at some point, he was duct taped and also forced to undress, and
ridiculed. The victim testified that he was terrified during the encounter.
As to the nature and background of the offender, Defendant was
approximately twenty-six years old at the time of the offense in 2019. At
sentencing, the State asserted that Defendant had five prior convictions for
burglaries, possession with intent to distribute marijuana, and felony theft from
23-KA-558 21 2012, 2013, and 2019. The judge specifically mentioned Defendant’s prior
convictions in sentencing Defendant and stated that he did not think Defendant
could be reformed. The judge further acknowledged that while the jury did not
convict Defendant of the other crimes, the judge believed Defendant was guilty of
the kidnapping and burglary.
The third factor requires consideration of sentences imposed for similar
crimes by this Court and other courts. This Court and other courts have upheld
similar and longer sentences for defendants convicted of armed robbery and
adjudicated second-felony offenders. In fact, similar sentences have been upheld
for defendants that were not multiple billed. See State v. Williams, 04-697 (La.
App. 5 Cir. 11/30/04), 889 So.2d 1135, writ denied, 05-395 (La. 5/13/05), 902
So.2d 1017; State v. Billiot, 13-1188 (La. App. 3 Cir. 4/2/14), 135 So.3d 1267,
writs denied, 14-936 (La. 11/26/14), 152 So.3d 902, and 14-949 (La. 11/26/14),
152 So.3d 903; State v. Reado, 12-409 (La. App. 1 Cir. 11/2/12), 110 So.3d 1082;
State v. Byrd, 491 So.2d 87 (La. App. 3 Cir. 1986), writ denied, 506 So.2d 1219
(La. 1987).
In State v. Callier, 39,650 (La. App. 2 Cir. 7/27/05), 909 So.2d 23, writ
denied, 06-308 (La. 9/1/06), 936 So.2d 196, the defendant was convicted of three
counts of armed robbery and adjudicated a second-felony offender. The defendant
faced a sentencing exposure of forty-nine and a half years to one hundred ninety-
eight years at hard labor without benefits for armed robbery as a second-felony
offender. Id. at 34. The trial court found that there was an undue risk that the
defendant would commit another offense if placed on probation or given a
suspended sentence. The court determined that the defendant was in need of
correctional treatment and that a lesser sentence would deprecate the seriousness of
the offense. The court observed that the defendant had a long criminal history
despite his youth, including crimes of violence and crimes against the person. In
23-KA-558 22 mitigation, the trial court noted that the gun used in the robbery was not fired and
that no one was physically injured. Id. at 35. The enhanced sentence of seventy
years imprisonment was upheld.
In State v. Billingsley, 13-11 (La. App. 3 Cir. 10/9/13), 123 So.3d 336, the
defendant, who was convicted of armed robbery and armed robbery with a firearm
and adjudicated a second-felony offender, faced a sentencing range of forty-nine
and a half years to one hundred ninety-eight years at hard labor. The trial court
imposed a sentence of seventy years at hard labor without benefit of parole,
probation, or suspension of sentence. The third circuit explained that the defendant
held a gun to one victim’s head while an accomplice did the same to the other
victim. The court upheld the sentences. Id. at 344.
In State v. Carroll, 41,001 (La. App. 2 Cir. 4/12/06), 926 So.2d 827, writ
denied, 06-1470 (La. 12/15/06), 944 So.2d 1283, the defendant was convicted of
armed robbery and adjudicated a second-felony offender. On appeal, he argued that
his seventy-five-year sentence was excessive. The applicable sentencing range for
a second-felony offender convicted of armed robbery was forty-nine and a half
years to one hundred ninety-eight years at hard labor without benefits. The trial
court found that there was an undue risk that the defendant would commit another
crime. The court also observed that the defendant was in need of correctional
treatment and that any lesser sentence would deprecate the seriousness of his
crime. The court commented that the defendant showed no remorse for his
conduct. The court took into consideration the victim’s statement and concluded
that this violent offense against the victim caused serious emotional trauma for her
and her family. The second circuit found that the sentence was not excessive. Id. at
830.
In State v. Gipson, 37,132 (La. App. 2 Cir. 6/25/03), 850 So.2d 973, 980,
writ denied, 03-2238 (La. 1/30/04), 865 So.2d 75, the defendant, as a second-
23-KA-558 23 felony offender, faced an enhanced sentencing range for his armed robbery
conviction of forty-nine and a half years to one hundred ninety-eight years at hard
labor without benefits. The trial court sentenced the defendant to seventy-five
years at hard labor without benefits. The defendant was actually a third-felony
offender with two previous, multiple-count armed robbery convictions. The trial
court stated that the defendant needed correctional treatment and that a lesser
sentence would deprecate the seriousness of the offense. The trial court also found
aggravating circumstances such as the fact that the defendant used a dangerous
weapon during the commission of the crime, he used threats of or actual violence
during the commission of the crime, and he made threats on the lives of the
victims. The appellate court concluded that the record supported the sentence. Id.
at 981.
In State v. Roshell, 42,398 (La. App. 2 Cir. 9/26/07), 966 So.2d 770, the
defendant was sentenced to eighty years imprisonment as a second-felony offender
after being convicted of armed robbery. The second circuit upheld the sentence. In
State v. Bruce, 10-121 (La. App. 5 Cir. 11/9/10), 54 So.3d 87, writ denied, 10-2756
(La. 4/29/11), 62 So.3d 109, the defendant was convicted of armed robbery and
adjudicated a second-felony offender. The defendant’s prior offenses included a
felony conviction for simple burglary in 2007, two simple robbery convictions in
1989 in which he robbed the same victim on two separate occasions, and another
conviction for burglary of an inhabited dwelling. This Court upheld his enhanced
sentence of one hundred years imprisonment. Id. at 98. See also State v. Leday, 11-
1022 (La. App. 5 Cir. 6/28/12), 97 So.3d 501, writ denied, 12-1765 (La. 3/1/13),
108 So.3d 788, where this Court found that a one-hundred-year-sentence for armed
robbery as a second-felony offender was not excessive, especially in consideration
of the fact that the defendant placed the victim at risk of death or great bodily harm
when he held a knife to the victim’s neck.
23-KA-558 24 Considering the nature of the crime, the nature and background of the
offender, and the sentences imposed for similar crimes by this Court and other
courts, we cannot find that the enhanced sentence imposed was unconstitutionally
excessive. Also, Defendant’s enhanced sentence of seventy years was just over a
third of the longest sentence that could have been imposed. Additionally, while
Defendant mentions that the judge did not order a PSI, the law does not provide an
absolute right to a PSI report. Rather, a PSI report is an aid to the trial court and is
ordered at its discretion. See La. C.Cr.P. art. 875; Ervin, 370 So.3d at 1247.
Further, while co-defendants convicted of the same crime need not be
sentenced equally, even where the co-defendants come from similar backgrounds
and might be similar in other respects, disparity of sentences is another factor to be
weighed by this Court in assessing an excessiveness claim. See State v. Smith, 433
So.2d 688, 698 (La. 1983). Here, the record is unclear, but according to the State’s
brief and the district court, Jhon had no prior convictions. Also, Jhon pled guilty,
while Defendant proceeded to trial. Therefore, Defendant’s argument regarding the
disparity in Jhon’s and Defendant’s sentences lacks merit – it is clear from the
record that the district court was disturbed by the details of what Connor endured
during those early morning hours of November 15, 2019. Further, there is no
requirement that co-defendants be sentenced equally. State v. Napoleon, 01-1222
(La. App. 5 Cir. 2/26/02), 811 So.2d 980, 984.
Finally, Defendant, citing State v. Harris, 18-1012 (La. 7/9/20), 340 So.3d
845, argues that he received ineffective assistance of counsel during sentencing
because his counsel failed to provide evidence of mitigating factors in his case.
Defense counsel did not file a sentencing memorandum, call any witnesses at
sentencing, or present arguments at the sentencing hearing. A defendant is entitled
to effective assistance of counsel under the Sixth Amendment to the United States
Constitution and Article I, § 13 of the Louisiana Constitution of 1974. Gatson, 334
23-KA-558 25 So.3d at 1039. To prove ineffective assistance of counsel, a defendant must satisfy
the two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct.
2052, 80 L.Ed.2d 674 (1984). State ex rel. Stevenson v. Hooper, 21-692, 2022 WL
189730 (La. App. 5 Cir. 1/20/22), writ denied, 22-370 (La. 5/24/22), 338 So.3d
1193. Under the Strickland test, the defendant must show: (1) that counsel’s
performance was deficient, that is, that the performance fell below an objective
standard of reasonableness under prevailing professional norms; and (2) that the
deficient performance prejudiced the defense. Fisher v. State, 21-718, 2022 WL
98173 (La. App. 5 Cir. 1/10/22), writ denied, 22-246 (La. 2/7/23), 354 So.3d 671.
An error is considered prejudicial if it was so serious as to deprive the defendant of
a fair trial, or “a trial whose result is reliable.” State v. Robinson, 23-277 (La. App.
5 Cir. 6/28/23), 368 So.3d 737, 742, writ denied, 23-1042 (La. 12/5/23), 373 So.3d
979. To prove prejudice, the defendant must demonstrate that, but for counsel’s
unprofessional conduct, the outcome of the trial would have been different. Id.
Generally, an ineffective assistance of counsel claim is most appropriately
addressed through an application for post-conviction relief filed in the district
court, where a full evidentiary hearing can be conducted, if necessary, rather than
by direct appeal. State v. Bethune, 21-25 (La. App. 5 Cir. 11/10/21), 330 So.3d
1236, 1246. However, when the record contains sufficient evidence to rule on the
merits of the claim and the issue is properly raised in an assignment of error on
appeal, it may be addressed in the interest of judicial economy. Id.
A basis for ineffective assistance of counsel may only be found if a
defendant can “show a reasonable probability that but for counsel’s error, his
sentence would have been different.” State v. Allen, 03-1205 (La. App. 5 Cir.
2/23/04), 868 So.2d 877, 879. Defendant argues that the following mitigating
factors existed but were not presented at sentencing: Defendant’s past criminal
history is non-violent and related to past substance abuse struggles; he is from a
23-KA-558 26 supportive family; his parents were married for thirty-five years; he was married
with two children; he was an honor graduate from the Youth Challenge Program;
and he was employed as a plumber and logger before his arrest.
A trial judge is in the best position to consider the aggravating and
mitigating circumstances of a particular case and, therefore, is given broad
discretion when imposing a sentence. State v. McMillan, 23-317 (La. App. 5 Cir.
12/27/23), 379 So.3d 788, 802. The issue on appeal is whether the trial court
abused its discretion, not whether another sentence might have been more
appropriate. Id. The review of sentences under La. Const. art. 1, § 20 does not
provide an appellate court with a vehicle for substituting its judgment for that of a
trial judge as to what punishment is most appropriate in a given case. Corea-
Calero, 355 So.3d at 701. While in the instant case the predicate offense was non-
violent, the instant offense is categorized as a crime of violence. In light of the
prior analysis regarding Defendant’s sentence and the factors the district court
considered before sentencing client, we find that Defendant has failed to
demonstrate a reasonable probability that his sentence would have been different
had trial counsel presented the mitigatory factors presented on appeal, considering
that he received a sentence of only seventy years when he faced a maximum
sentence of one hundred ninety-eight years. Accordingly, we find that the
ineffective assistance of counsel claim is without merit.
ERRORS PATENT
The record was reviewed for errors patent according to La. C.Cr.P. art. 920;
State v. Oliveaux, 312 So.2d 337 (La. 1975); and State v. Weiland, 556 So.2d 175
(La. App. 5th Cir. 1990).
The sentencing minute entries for January 27, 2023 and the September 12,
2023 state that “the Court informed the Defendant he has … two (2) years after
judgment of conviction and sentence has become final to seek post-conviction
23-KA-558 27 relief.” However, the sentencing hearings’ transcripts do not reflect that the court
advised Defendant of the time limits for applying for post-conviction relief. The
transcript prevails where there is an inconsistency between the minute entry and
the transcript. State v. Mejia, 23-161 (La. App. 5 Cir. 11/29/23), 377 So.3d 860,
892, writ denied, 23-1722 (La. 5/29/24), 385 So.3d 705 (citing State v. Lynch, 441
So.2d 732, 734 (La. 1983)).
If a trial court fails to advise, or provides an incomplete advisal, the
appellate court may correct this error by informing the defendant of the applicable
prescriptive period for post-conviction relief under La. C.Cr.P. art. 930.8 by means
of its opinion. State v. Becnel, 18-549 (La. App. 5 Cir. 2/6/19), 265 So.3d 1017,
1022. Accordingly, the Court advises Defendant that no application for post-
conviction relief, including applications which seek an out-of-time appeal, shall be
considered if it is filed more than two years after the judgment of conviction and
sentence has become final under the provisions of La. C.Cr.P. arts. 914 or 922. Id.;
See State v. Key, 23-167 (La. App. 5 Cir. 12/27/23), 379 So.3d 96, 127.
DECREE
Considering the foregoing, Defendant’s conviction for armed robbery in
violation of La. R.S. 14:64 and enhanced sentence of seventy years imprisonment
without the benefit of parole, probation, or suspension of sentence are affirmed.
AFFIRMED
23-KA-558 28 SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
SUSAN S. BUCHHOLZ FREDERICKA H. WICKER CHIEF DEPUTY CLERK JUDE G. GRAVOIS MARC E. JOHNSON STEPHEN J. WINDHORST LINDA M. WISEMAN JOHN J. MOLAISON, JR. FIRST DEPUTY CLERK SCOTT U. SCHLEGEL TIMOTHY S. MARCEL FIFTH CIRCUIT MELISSA C. LEDET JUDGES 101 DERBIGNY STREET (70053) DIRECTOR OF CENTRAL STAFF POST OFFICE BOX 489 GRETNA, LOUISIANA 70054 (504) 376-1400
(504) 376-1498 FAX www.fifthcircuit.org
NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY AUGUST 28, 2024 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:
23-KA-558 E-NOTIFIED 24TH JUDICIAL DISTRICT COURT (CLERK) HONORABLE FRANK A. BRINDISI (DISTRICT JUDGE) ANDREA F. LONG (APPELLEE) DARREN A. ALLEMAND (APPELLEE) MONIQUE D. NOLAN (APPELLEE) THOMAS J. BUTLER (APPELLEE) JANE C. HOGAN (APPELLANT)
MAILED HONORABLE PAUL D. CONNICK, JR. (APPELLEE) DISTRICT ATTORNEY CAROLYN CHKAUTOVICH (APPELLEE) KRISTEN LANDRIEU (APPELLEE) ASSISTANT DISTRICT ATTORNEYS TWENTY-FOURTH JUDICIAL DISTRICT 200 DERBIGNY STREET GRETNA, LA 70053
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State of Louisiana Versus Landon P Rogers, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-of-louisiana-versus-landon-p-rogers-lactapp-2024.