State v. Long

106 So. 3d 1136, 12 La.App. 5 Cir. 184, 2012 WL 6176481, 2012 La. App. LEXIS 1605
Louisiana Court of Appeal·Decided December 11, 2012·No. No. 12-KA-184·Published·Cited by 138 cases

Opinion

JUDE G. GRAVOIS, Judge.

| ^Defendant, Michael P. Long, appeals his multiple offender sentence for armed robbery, arguing that it is excessive. For the following reasons, we affirm defendant’s multiple offender sentence and remand the matter to the trial court for correction of an error patent as noted herein.

PROCEDURAL HISTORY

This is defendant’s second appeal. In the first appeal, State v. Long, 11-313, 11-314 (La.App.12/13/11), 81 So.3d 875, writ denied, 12-0251 (La.8/22/12), 97 So.3d 367, this Court affirmed defendant’s conviction for armed robbery, but vacated his multiple offender sentence of 99 years, finding that it was indeterminate because the trial court failed to impose the mandatory five-year firearm enhancement sentence required by LSA-R.S. 14:64.3. This Court remanded the case to the trial court for [1138] resentencing, pretermitting discussion of ^defendant’s assignment of error that his sentence was constitutionally excessive, and reserving his right to appeal the newly imposed sentence.

On remand, the trial court again sentenced defendant to 99 years imprisonment at hard labor as a third felony offender, to be served without the benefit of parole, probation, or suspension of sentence. The trial court further sentenced defendant under the firearm enhancement statute, LSA-R.S. 14:64.3, to an additional five-year term of imprisonment at hard labor, without the benefit of parole, probation, or suspension of sentence, to be served consecutively to his 99-year sentence. Although defendant objected to the harshness of the newly imposed sentence, the objection was denied. Defendant now appeals, arguing that his habitual offender sentence is excessive.

FACTS

The facts of the offense were detailed in this Court’s previous opinion, State v. Long, supra, and are not reiterated here.

COUNSELED ASSIGNMENT OF ERROR

Defendant contends that although his 99-year sentence is less than the maximum 198 years that could have been imposed, and falls within the sentencing range for a third felony offender, it is nevertheless excessive. Defendant further suggests that the trial court failed to articulate the reasons for its sentence as required by the sentencing guidelines set forth in LSA-C.Cr.P. art. 894.1. Defendant also asserts that the trial court considered incorrect facts from the trial in the original sentencing, and, more particularly, it erred in considering co-defendant Patterson’s actions as sentencing factors for defendant’s sentence.

I/The State responds that defendant did not file a motion to reconsider sentence pursuant to LSA-C.Cr.P. art. 881.1,1 limiting this Court’s review of his sentence for constitutional excessiveness only. The State notes that defendant’s sentence is not excessive because it is one-third of the maximum penalty that he could have received; the trial court considered defendant’s felony record and the facts of the case; and the sentence imposed was not outside the bounds of the statute. Additionally, the State asserts that other courts have upheld the constitutionality of similar sentences with like circumstances, citing State v. Howard, 43-227 (La.App. 2 Cir. 6/11/08), 987 So.2d 330, writ denied, 08-1608 (La.4/3/09), 6 So.3d 766.

On August 23, 2010, defendant was originally sentenced to 99 years at hard labor, without the benefit of parole, probation or suspension of sentence. At the sentencing hearing, and after providing a detailed overview of the testimony adduced at trial, the trial court stated:

The Court heard your testimony; the jury heard it, but rejected it. The (sic) found you guilty of armed robbery.
The Court, in its considerations, has considered the sentencing guidelines, the Code of Criminal Procedure Article 894.1, and it is this Court’s belief that you did, in fact, commit this armed robbery, that you did it to people that you knew and that you’d been in contact with.
[1139] And that I believe under 894.1(A)(1) that there is an undue risk that during the period of a suspended sentence or probation, the defendant will commit another crime; two, the Defendant is in need of a correctional treatment or custodial environment that can be provided most effectively by his commitment to an institution; and three any lesser sentence will deprecate the seriousness of this offense; and also under (b)(1), the offender’s conduct during the commission of the offense manifests a deliberate cruelty to the victim or victims, and that there were threats during the commission of this offense, and that the offender used a dangerous weapon in the commission of the offense.
| Jt’s going to be the sentence of this Court, based on your conduct and threats that were made to the victims in which they testified that they feared for their lives, and based on your testimony and the Court’s knowledge of your prior criminal history, I took that into account.
I don’t like armed robbery, Mr. Long. I don’t like it [at] all. I especially don’t like it in a situation where, although you may not have a had a dangerous weapon, because we saw the gun that came into Court, your co-perpetrator came in with a loaded weapon, stole X amount of dollars out of this place, and these were people that you knew, you terrorized the people, you didn’t have to.

Defendant objected to the excessiveness of his sentence, to which the trial court replied: “the Court doesn’t feel it is excessive based on his extensive criminal history, and based on the offense that he used his knowledge to gain entrance into a locked bar, in that particular residence, and used a co-perpetrator, who was a juvenile, to come in behind him with a loaded weapon to terrorize two people that he knew in a bar, and bring the bartender in the back at gunpoint, his co-perpetrator, to steal, and flee.” Defendant’s original sentence was later vacated and defendant was re-sentenced as a third felony offender to 99 years imprisonment, to which he objected.

On remand, the trial court again re-sentenced defendant to 99 years imprisonment, plus an additional five-year consecutive sentence for the firearm enhancement under LSA-R.S. 14:64.3.2 Defendant objected to the imposition of a harsher sentence than that originally imposed by the court. The trial court responded that defendant was a three-time felony offender and could have been sentenced to 297 years, but that the court chose to sentence him on the “low end.”

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State v. Long, 106 So. 3d 1136, 12 La.App. 5 Cir. 184, 2012 WL 6176481, 2012 La. App. LEXIS 1605 (La. Ct. App. 2012).

106 So. 3d 1136 (State v. Long) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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