State v. Honea

268 So. 3d 1117
CourtLouisiana Court of Appeal
DecidedDecember 21, 2018
DocketNO. 2018 KA 0018
StatusPublished
Cited by1 cases

This text of 268 So. 3d 1117 (State v. Honea) 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. Honea, 268 So. 3d 1117 (La. Ct. App. 2018).

Opinion

PETTIGREW, J.

The defendant, Avery Honea, was charged by grand jury indictment with armed robbery with a firearm, a violation of La. R.S. 14:64, and use of a firearm in the commission of an armed robbery, a violation of La. R.S. 14:64.3.1 The defendant pled not guilty and, following a jury trial, was found guilty as charged (on both charges). For the armed robbery conviction, the defendant was sentenced to 45 years imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence; for the additional penalty of use of a firearm in the commission of the armed robbery, the defendant was sentenced to 5 years imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence. The sentences were ordered to run consecutively. The defendant filed a motion to reconsider sentence, which was denied. The defendant now appeals, designating three assignments of error. We affirm the convictions and sentences.

FACTS

In the early morning hours of December 11, 2013, Ivan Graham and Bryton Montelaro went to the house of the defendant, who was Ivan's cousin. Demarcus James and Aaron Hargrove were also at the defendant's *1120house. The men made plans to rob Jared Vincent, who sold marijuana from his apartment in Baton Rouge. Jared lived with his friend, Leonard Wyatt. Demarcus and Ivan texted Jared and set up deals to purchase marijuana. With Ivan driving a Dodge Ram truck, all five men went together to Jared's apartment. The defendant, Demarcus, and Aaron, who apparently were all armed, got out of the truck, while Ivan and Bryton stayed in the truck. A short time later, shots were fired inside Jared's apartment. Jared was killed, and Leonard was shot in the back, but survived. Demarcus had also been shot; he was dropped off that night at a hospital in Gonzales.2 It appears Leonard's gun was taken from the apartment that night.

The defendant did not testify at trial.

ASSIGNMENTS OF ERROR NOS. 1 AND 2

In these related assignments of error, the defendant argues, respectively, that the trial court erred in denying his motion to reconsider sentence and that his sentence is unconstitutionally excessive.

The Eighth Amendment to the United States Constitution and Article I, § 20, of the Louisiana Constitution prohibit the imposition of cruel or excessive punishment. Although a sentence falls within statutory limits, it may be excessive. State v. Sepulvado, 367 So.2d 762, 767 (La. 1979). A sentence is considered constitutionally excessive if it is grossly disproportionate to the seriousness of the offense or is nothing more than a purposeless and needless infliction of pain and suffering. A sentence is considered grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. State v. Andrews, 94-0842 (La. App. 1 Cir. 5/5/95), 655 So.2d 448, 454. The trial court has great discretion in imposing a sentence within the statutory limits, and such a sentence will not be set aside as excessive in the absence of a manifest abuse of discretion. See State v. Holts, 525 So.2d 1241, 1245 (La. App. 1 Cir. 1988). Louisiana Code of Criminal Procedure article 894.1 sets forth the factors for the trial court to consider when imposing sentence. While the entire checklist of Article 894.1 need not be recited, the record must reflect the trial court adequately considered the criteria. State v. Brown, 2002-2231 (La. App. 1 Cir. 5/9/03), 849 So.2d 566, 569.

The articulation of the factual basis for a sentence is the goal of Article 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with Article 894.1. State v. Lanclos, 419 So.2d 475, 478 (La. 1982). The trial judge should review the defendant's personal history, his prior criminal record, the seriousness of the offense, the likelihood that he will commit another crime, and his potential for rehabilitation through correctional services other than confinement. See State v. Jones, 398 So.2d 1049, 1051-52 (La. 1981). Even when a trial court assigns no reasons, the sentence will be set aside on appeal and remanded for resentencing only if the record is either inadequate or clearly indicates that the sentence is excessive. See La. Code Crim. P. art. 881.4(D) ; State v. Knight, 2011-0366 (La. App. 1 Cir. 9/14/11), 77 So.3d 302, 304, writ denied, 2011-2240 (La. 2/17/12), 82 So.3d 283. On appellate review of a sentence, the relevant question is whether the trial court abused its broad sentencing discretion, not whether another *1121sentence might have been more appropriate. State v. Thomas, 98-1144 (La. 10/9/98), 719 So.2d 49, 50 (per curiam).

With a maximum sentencing exposure of 104 years imprisonment, the defendant was sentenced to fifty years at hard labor (45 years for the armed robbery conviction, plus 5 years to be served consecutively under the additional penalty provision of armed robbery with the use of a firearm) without the benefit of parole, probation, or suspension of sentence. See La. R.S. 14:64(B) and La. R.S. 14:64.3(A). The defendant argues in brief that his (cumulative) 50-year sentence is excessive because he was only 17 years old at the time of the offense, he was not the primary planner or major participant in the offense, and he will likely be confined for the remainder of his natural life.

Considering the nature of the crime, and the fact that the imposed (cumulative) sentence was 54 years less than the statutorily allowed maximum sentence(s), we find no abuse of discretion by the trial court. The sentence is not apparently severe and is supported by the record. The defendant engaged in a course of criminal conduct that resulted in one victim being shot (but who survived), and another victim being shot and killed. See Knight, 77 So.3d at 306. Under these facts, it appeared the defendant could have faced a charge for second degree murder (and a second charge for attempted second degree murder).

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Bluebook (online)
268 So. 3d 1117, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-honea-lactapp-2018.