State v. Garner

250 So. 3d 1152
CourtLouisiana Court of Appeal
DecidedJune 27, 2018
DocketNo. 52,047–KA
StatusPublished
Cited by10 cases

This text of 250 So. 3d 1152 (State v. Garner) 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. Garner, 250 So. 3d 1152 (La. Ct. App. 2018).

Opinion

COX, J.

This criminal appeal arises from the First Judicial District Court, Caddo Parish, Louisiana. The defendant, Dalando Garner ("Garner"), was charged by bill of information with possession of a firearm or carrying of a concealed weapon by a convicted felon, in violation of La. R.S. 14:95.1. Following a jury trial, Garner was found guilty as charged and sentenced to 12 years at hard labor without the benefit of probation, parole, or suspension of sentence; he was also fined $1,000. Garner filed a motion to reconsider sentence, which was subsequently denied by the trial court. He now appeals, arguing that his sentence was excessive and his confession was not knowingly and intelligently made. For the following reasons, we affirm.

FACTS

On May 20, 2013, Shreveport officers with the Caddo-Shreveport Narcotics Task Force conducted a patrol around West Cedar Grove due to recent shootings in the area. During the patrol, Corporal Michael Gerbine observed two black males walking in the middle of the 200 block of West 72nd Street. Upon seeing Corporal Gerbine in his police vehicle, the two men quickly attempted to enter a nearby yard. Corporal Gerbine exited his vehicle and witnessed one of the men run behind a vehicle parked in the yard, remove a handgun from his waistband, and place it under the vehicle.

The man was arrested, and Corporal Gerbine recovered the handgun1 from under the vehicle. Corporal Gerbine advised the man of his Miranda rights, and the man informed him that he understood. The man was placed in Corporal Rodney Medlin's police vehicle and identified himself as Treviaun Garner (D.O.B. 12/30/94). Garner admitted that the handgun belonged to him and told the officer that he carried the weapon for protection because his cousin had recently been shot.

Garner was transported to the Shreveport City Jail, where he was fingerprinted, and it was determined that he had provided *1155a false name and date of birth. Garner's real name was Dalando Garner (D.O.B. 12/11/90). The name he had given the arresting officers belonged to his brother.

On June 25, 2013, Garner was charged by bill of information with possession of a firearm or carrying a concealed weapon by a convicted felon, having been previously convicted of aggravated battery on November 16, 2011. At arraignment, Garner pled not guilty and was later granted bail.

On February 8, 2017, prior to the commencement of trial, a free and voluntary hearing was held, and the trial court found that Garner was properly advised of his Miranda rights and made all subsequent statements freely and voluntarily. Thereafter, the jury found Garner guilty as charged. Garner filed motions for a new trial and post-verdict judgment of acquittal, which were denied. No presentence investigation report was ordered.

On March 2, 2017, Garner was sentenced to 12 years at hard labor without the benefit of probation, parole, or suspension of sentence. He was given credit for time served. He was also ordered to pay a $1,000 fine and $250 to the Indigent Defender's Office. On March 30, 2017, Garner filed a motion to reconsider sentence, which was denied. This appeal followed.

DISCUSSION

Garner argues that the sentence imposed by the trial court is excessive. Specifically, he asserts that the trial court erroneously considered his "use" of a firearm as an aggravating factor during his sentencing hearing.

In determining whether a sentence is excessive, the appellate court uses a two-prong test. First, the record must demonstrate that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. State v. Thomas , 51,364 (La. App. 2 Cir. 5/17/17), 223 So.3d 125, writ denied , 2017-1049 (La. 3/9/18), 238 So.3d 450. The trial court is not required to list every aggravating or mitigating circumstance so long as the record reflects adequate consideration of the guidelines of the article. Id. The important elements which should be considered are the defendant's personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of the offense, and the likelihood of rehabilitation. State v. Fontenot , 51,072 (La. App. 2 Cir. 1/11/17), 211 So.3d 1236. There is no requirement that specific matters be given any particular weight at sentencing. Id.

Second, the appellate court must determine whether the sentence is constitutionally excessive. A sentence violates La. Const. art. I, § 20, if it is grossly out of proportion to the seriousness of the offense or is nothing more than a purposeless and needless infliction of pain and suffering. State v. Turk , 50,990 (La. App. 2 Cir. 11/16/16), 210 So.3d 402, writ denied , 2016-2230 (La. 9/15/17), 225 So.3d 488. A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. Id.

A trial court has wide discretion to sentence within the statutory limits. State v. Scott , 50,920 (La. App. 2 Cir. 11/16/16), 209 So.3d 248, writ denied , 2017-0353 (La. 11/13/17), 229 So.3d 478 ). Absent a showing of manifest abuse of that discretion, a sentence will not be set aside as excessive. Id.

At the time Garner committed the offense, possession of a firearm or carrying a concealed weapon by a convicted felon was punishable at hard labor for not less than 10 nor more than 20 years without the benefit of probation, parole, or suspension of sentence, and a fine of not less than $1,000 nor more than $5,000.

*1156At sentencing, the trial court reiterated the facts of the case, highlighting that Garner hid the gun upon seeing police officers but admitted on video to having the gun in his possession. It found that Garner was in need of correctional treatment and that a suspended sentence would deprecate the seriousness of his crime.

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Bluebook (online)
250 So. 3d 1152, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-garner-lactapp-2018.