State v. Wimberly

618 So. 2d 908, 1993 WL 146150
CourtLouisiana Court of Appeal
DecidedApril 23, 1993
Docket92 KA 0920
StatusPublished
Cited by12 cases

This text of 618 So. 2d 908 (State v. Wimberly) 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. Wimberly, 618 So. 2d 908, 1993 WL 146150 (La. Ct. App. 1993).

Opinion

618 So.2d 908 (1993)

STATE of Louisiana
v.
Gregory WIMBERLY.

No. 92 KA 0920.

Court of Appeal of Louisiana, First Circuit.

April 23, 1993.

*909 Office of Dist. Atty., Amite, for plaintiff-appellee.

Gregory Wimberly, defendant-appellant in proper person.

Before WATKINS, CRAIN and GONZALES, JJ.

*910 CRAIN, Judge.

Gregory Wimberly was indicted with six counts of armed robbery, violations of La. R.S. 14:64. After initially entering not guilty pleas, he pled guilty as charged on all counts and was sentenced to concurrent terms of ninety-nine years at hard labor on each count, without benefit of parole, probation, or suspension of sentence. Defendant did not appeal his conviction but filed a post-conviction relief application in the district court, which was denied. Defendant's application for writ of review was denied by the Louisiana Supreme Court. Defendant then filed an application for a writ of habeas corpus in the federal courts, apparently claiming the trial court erred when it sentenced defendant without stating any reasons for the sentence.[1] Rather than participating in a hearing in the federal court, the state agreed to resentence defendant. The state trial court resentenced defendant to ninety-nine years at hard labor without benefit of parole, probation, or suspension of sentence. Representing himself, defendant appealed. This court found patent error in the trial court's failure to impose a separate sentence for each count. State v. Wimberly, No. 90 KA 0398 (La.App. 1st Cir. Dec. 18, 1990) (unpublished). We vacated the sentence and remanded for resentencing, whereupon the trial court resentenced defendant on each count to concurrent terms of ninety-nine years at hard labor, without benefit of parole, probation, or suspension of sentence. Representing himself, defendant again has appealed, urging four assignments of error.[2]

Because defendant pled guilty, the facts of the offenses were not fully developed. On January 1, 1977, defendant and Dennis Taylor purchased beverages at a convenience store. After leaving, the two men decided to commit a robbery at the store. They returned and robbed the cashier and several customers. Both men were armed during the robberies, defendant with a pellet gun and Taylor with a .38 caliber revolver. Defendant held his gun on the cashier and robbed the cashier, while Taylor robbed at least ten customers. During the robberies, the customers were forced to lie on the floor.

EXCESSIVE SENTENCES

In the first assignment of error, defendant asserts the sentences imposed upon him are excessive and not supported by the record. Defendant also claims the court did not comply with the sentencing guidelines of La.C.Cr.P. art. 894.1. Defendant further argues that the penalty provision in Louisiana for armed robbery is excessive when compared to the possible sentence in other states.

The penalty for armed robbery is imprisonment at hard labor for not less than five years and for not more than ninety-nine years, without benefit of parole, probation, or suspension of sentence. La.R.S. 14:64(b). Thus, the imposition of ninety-nine year terms of imprisonment for each count is within the statutory requirements.

The trial judge has wide discretion, though not unbridled, in the imposition of a sentence within statutory limits. See State v. Sepulvado, 367 So.2d 762 (La. 1979). Article I, section 20, of the Louisiana Constitution prohibits the imposition of excessive punishment. A sentence will be determined to be excessive if it is grossly disproportionate to the crime, or is nothing *911 more than the needless imposition of pain and suffering. The determination turns upon the punishment and the crime in light of the harm to society and whether or not the penalty is so disproportionate that it shocks our sense of justice. State v. Waguespack, 589 So.2d 1079, 1086 (La.App. 1st Cir.1991), writ denied, 596 So.2d 209 (La. 1992). Maximum sentences may be imposed only in cases involving the most serious offenses and worst offenders. State v. Thomas, 572 So.2d 681, 684 (La.App. 1st Cir.1990), writ denied, 604 So.2d 994 (La. 1992).

Given compliance with the sentencing criteria of La.C.Cr.P. art. 894.1, the sentence will not be set aside in the absence of manifest abuse of discretion. Article 894.1 (prior to its amendment by 1991 La.Acts, No. 22) requires the trial court to weigh both aggravating and mitigating circumstances in imposing sentence. While the trial court is not required to articulate every such circumstance in imposing sentence, the record must reveal adequate consideration of the guidelines enumerated in article 894.1. Waguespack, 589 So.2d at 1086.

Before resentencing defendant, the court extensively considered the article 894.1 factors. The court noted that the armed robbery statute required imprisonment and did not allow for probation. The court determined that a lesser penalty would deprecate the seriousness of the offenses, in which eleven people were held at gunpoint and forced to lie on the floor. Because defendant used a gun during the robberies, the court concluded that defendant intended serious harm. The court found no ground tending to excuse or justify defendant's conduct and found the victims did not induce or facilitate the commission of the robberies. After hearing defendant's testimony that he had prior misdemeanor convictions for theft of an automobile (valued under a hundred dollars) and carrying a concealed weapon (each conviction resulting in thirty days of imprisonment), the court found that defendant had a history of criminal activity and had not led a law-abiding life for a substantial period of time before commission of the offenses.

The court also indicated that, in determining the appropriate sentences to impose, it had considered the entire record, including the guilty plea transcript and information presented by the state and mitigating evidence introduced by defendant at the sentencing hearing. At the hearing, the prosecutor who had represented the state at the guilty pleas testified that, at the time of the pleas, a first degree murder charge was pending against defendant. The murder charge was based upon events which occurred after the robberies. After committing the robberies at the convenience store, defendant and Taylor fled to a drive-in theater. When an employee (who may have been a security guard) of the theater observed a gun and money in defendant's vehicle, the employee pulled a weapon on defendant and Taylor. In response, either defendant or Taylor or both men fired at the theater employee. The shot(s) missed, but struck and killed a woman who was issuing tickets. Defendant was never tried for the murder; and the former assistant district attorney did not know why.

Defendant testified concerning his accomplishments. He pled guilty to these robberies in 1977 and has remained incarcerated since his original sentencing. While in the state penitentiary, defendant has completed his high school education and has served as an inmate counsel substitute. He has participated in several organizations at the prison, including the Angola Lifer's Association, Vet's Incarcerated, and the Civic Affairs Panel. He also has taken several courses, in addition to the coursework required for receiving his G.E.D. He indicated that participation in these organizations and courses is voluntary and club activities occur after the inmate has finished the work required by the prison.

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Cite This Page — Counsel Stack

Bluebook (online)
618 So. 2d 908, 1993 WL 146150, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-wimberly-lactapp-1993.