State v. DeWoody

645 So. 2d 290, 1994 La. App. LEXIS 2883, 1994 WL 597431
CourtLouisiana Court of Appeal
DecidedNovember 3, 1994
DocketNos. 26,502-KA, 26,503-KA and 26,504-KA
StatusPublished
Cited by5 cases

This text of 645 So. 2d 290 (State v. DeWoody) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. DeWoody, 645 So. 2d 290, 1994 La. App. LEXIS 2883, 1994 WL 597431 (La. Ct. App. 1994).

Opinion

|1JONES, Judge Pro Tem.

Defendant, Phillip Wayne DeWoody, was charged by bill of information with two counts of violating LSA-R.S. 14:64, armed robbery, one count of violating LSA-R.S. 14:110(0, aggravated escapé, and one count of violating LSA-R.S. 14:44.1, second degree kidnapping.

The charges against the defendant arose from a series of events beginning August 3, 1993. On that day, DeWoody used a dangerous weapon to rob two Lincoln Parish residents at their home. He was apprehended after a manhunt and brought to the Lincoln Parish Detention Center (LPDC). On October 20, 1993, he escaped from that facility by threatening the corrections officers with a prison-made knife; to effect his escape, he kidnapped one of the officers.

On November 16, 1993, the defendant pled guilty as charged to all of the charges against him. He was sentenced on December 7,1993 to ninety-nine years without benefit of parole, probation or suspension of sentence on each of the aimed robbery charges, sentences to run concurrently; to ten years at hard labor on the aggravated escape charge, to run consecutively with the armed robbery sentences; and to forty years without benefit of parole, probation or suspension of sentence on the second degree kidnapping charge, sentence to run consecutively with the others. Each of these sentences is the maximum under the respective statutes.

Defendant’s timely motion to reconsider sentence was denied and he appealed, urging only that his sentences are constitutionally excessive under Article I, Section 20 of the 1974 Louisiana Constitution.

Sentences may be constitutionally excessive, even when within the statutory [292]*292limits, if they are “grossly out of proportion to the severity of the crime” or “nothing more than the purposeless imposition of pain and suffering.” State v. Brogdon, 457 So.2d 616, 625 (La.1984), cert. denied in Brogdon v. Louisiana, 471 U.S. 1111, 105 S.Ct. 2345, 85 L.Ed.2d 862 (1985). As a general rule, maximum sentences are appropriate only for the most serious violations or the worst types of offenders. State v. Harden, 506 So.2d 1265 (La.App. 2d Cir.1987), writ denied, 512 So.2d 438 (La.1987). However, a sentence will |2not be set aside absent a showing of manifest abuse of the trial court’s wide sentencing discretion. State v. Eason, 624 So.2d 934, 935 (La.App. 2d Cir.l993).

In the instant case, the trial court provided a number of reasons for the sentences imposed. First, the court considered DeWoody’s significant criminal history, both as a juvenile and as an adult. This history included a conviction for simple burglary and a dismissed charge of sexual battery. Notably, the defendant had a prior conviction for armed robbery; for this 1984 offense he was sentenced to fifteen years at hard labor without benefit of parole, probation, or suspension of sentence. His 2½ year sentence for the burglary conviction was ordered served consecutively with the armed robbery sentence. However, DeWoody was early-released in June 1993; the armed robberies sub judioe occurred less than two months later.

Next, the trial judge articulated what he felt were aggravating circumstances in each of the offenses which warranted an upward departure from the 30-year concurrent sentence or 51-year consecutive sentence recommended by the Felony Sentencing Guidelines. La.S.G. 209(B). The trial judge was required to consider the Guidelines, State v. Smith, 93-0402 (La. 7/5/94), 639 So.2d 237 (on rehearing) but may exceed the maximum sentences suggested by them when the crimes are not typical.

During the armed robberies, DeWoody created a risk of death or great bodily harm to three persons, one of whom was a two-year-old girl. Defendant tied up one of the victims and held a knife to the throat of another while he searched their home for firearms and money. While armed with the knife, he’made sexual advances toward the female victim and threatened to kidnap her.

The factual circumstances here are to a substantial degree similar to those in other cases where maximum sentences for armed robbery have been upheld. See State v. Berry, 630 So.2d 1330, 1334 (La.App. 4th Cir. 1993); State v. Wimberly, 618 So.2d 908 (La.App. 1st Cir.1993) cert. denied 624 So.2d 1229 (La.1993); State v. Tenner, 593 So.2d 1317 (La.App. 1st Cir.1991) cert, granted, modified (maximum sentences upheld but run concurrently rather than consecutively) 599 So.2d 1091 (La.1992); State v. Grillette, 588 So.2d 1338 (La.App. 2d Cir.1991).

As stated in State v. Douglas, 389 So.2d 1263, 1267 (La.1980):

This court does not lightly consider the matter of a 99-year sentence imposed without hope of release on parole. There may be sound arguments against the frequent use of such sentences, but these arguments address themselves to the reasoned discretion of the sentencing judge. The function of the reviewing court is not merely to substitute this court’s judgment for that of the trial court, but to determine whether the court below manifestly abused its discretion.

Like the Douglas court, we are reluctant to say that imposition of the maximum sentences for armed robbery under the circumstances of this case was an abuse of the trial court’s wide discretion. These sentences were properly run concurrently. Tenner, supra.

Defendant’s maximum sentences for aggravated escape and second degree kidnapping are likewise supported by the record. During his escape from LPDC, De-Woody used a crude edged weapon to make his way past one corrections officer and out of his cell. Once free, he entered the prison booking office, where he assaulted another officer by placing the weapon to her throat and threatened to kill her unless he was released. Holding this officer captive with the weapon, DeWoody forced his way out of the secure area of the jail, repeating his [293]*293threats until the other officers allowed them outside.

The trial court noted the risk of death or great bodily harm to more than one person posed by DeWoody’s escape and the violence with which the escape was effected. Further, the court noted the “great fear” De-Woody caused the officer he kidnapped and his persistent attempts to escape from lawful custody. In addition, the trial court found that DeWoody showed no concern for the welfare of his victims and that his actions were premeditated.

These facts support the imposition of maximum sentences. LSA-R.S. 14:110(C)(2) requires the sentence for aggravated escape to run consecutively with any sentence imposed for the crimes for which an escaping criminal was being held; this sentence was imposed in accordance with law.

|4The sentence for second degree kidnapping was run consecutively to the sentence for escape. LSA-C.Cr.P. Art. 883 states:

If the defendant is convicted of two or more offenses based on the same act or transaction, or constituting parts of a common scheme or plan, the terms of imprisonment shall be served concurrently unless the court expressly directs that some or all be served consecutively. (Emphasis added.)

It is generally within the trial court’s discretion to order sentences to run consecutively rather than concurrently. State v. Derry, 516 So.2d 1284 (La.App. 2d Cir.1987), writ denied, 521 So.2d 1168 (La.1988).

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645 So. 2d 290, 1994 La. App. LEXIS 2883, 1994 WL 597431, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-dewoody-lactapp-1994.