STATE OF LOUISIANA versus ANTONIO SEWELL
No. 53,571-KA
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
November 18, 2020
Application for rehearing may be filed within the delay allowed by Art. 922, La. C. Cr. P.
Honorable Katherine Clark Dorroh, Judge
Appealed from the First Judicial District Court for the Parish of Caddo, Louisiana, Trial Court No. 199992
* * * * *
STATE OF LOUISIANA Appellee
versus
ANTONIO SEWELL Appellant
* * * * *
LOUISIANA APPELLATE PROJECT Counsel for Appellant
By: Peggy J. Sullivan
JAMES E. STEWART, SR. Counsel for Appellee
District Attorney
RICHARD SOL FEINBERG
ALEX L. PORUBSKY
JASON WAYNE WALTMAN
Assistant District Attorneys
* * * * *
Before MOORE, STONE, and THOMPSON, JJ.
On July 27, 2000, Antonio Sewell was convicted of armed robbery. Sewell was subsequently adjudicated a third-felony habitual offender and sentenced to life imprisonment without benefits. His conviction and sentence were affirmed on appeal. State v. Sewell, 35,549 (La. App. 2 Cir. 2/27/02), 811 So. 2d 140, writ denied, 02-1098 (La. 3/21/03), 840 So. 2d 535.
On May 23, 2019, the trial court granted Sewell‘s motion to correct an illegal sentence pursuant to the 2001 amendments to
FACTS AND PROCEDURAL HISTORY
On January 16, 1999, Willie Ashley exited a convenience store on Jewella Avenue in Shreveport, and was approached by Sewell, who demanded Ashley‘s car. When Ashley refused, Sewell shot Ashley twice in the leg. Sewell then pointed the gun at Ashley‘s chest and demanded “everything.” Sewell took Ashley‘s driver‘s license, pager, money, and vehicle. As Sewell left the scene, his suspicious behavior alerted nearby law enforcement officers. As the officers attempted to stop Sewell, he fled on foot and was eventually apprehended. Ashley identified Sewell as his attacker, and Sewell was subsequently charged with armed robbery, in violation of
Sewell was convicted and adjudicated a third-felony habitual offender, pursuant to
On March 4, 2019, Sewell filed a motion to correct illegal sentence and argued that his life sentence was illegal in light of the more lenient sentencing provisions in
Sewell argued that under the new provision, he was no longer eligible for a life sentence under
On May 23, 2019, after consideration, the trial court determined that Sewell‘s sentence was illegal and placed Sewell‘s case on the docket for resentencing.
On November 13, 2019, Sewell appeared for resentencing. The trial court recited the procedural history of the case, the factual basis for the conviction and sentence, the basis for granting Sewell‘s motion to correct illegal sentence, and the mandatory sentencing range.
The trial court then reviewed the sentencing guidelines set forth in
On November 25, 2019, Sewell filed a motion to appeal his sentence, arguing that the sentence imposed was unconstitutionally harsh and excessive, and that he is entitled to a new trial, as the split jury vote of 10 to 2 by which he was convicted, was in violation of his constitutional right to a unanimous jury, Ramos v. Louisiana, supra. The motion was granted on December 3, 2019.
DISCUSSION
Excessive sentence
Sewell argues that his 75 years at hard labor, without benefit of probation, parole, or suspension of sentence was harsh and excessive because it was based solely on the facts of the offense, with no consideration of his personal or work history. Sewell disputes the trial court‘s finding of aggravating circumstances and asserts that no one else was present at the time of the robbery and that there was no significant injury or economic loss to the victim. Sewell further argues that his criminal history had already been considered in his adjudication as a third-felony habitual offender, and that his sentence does not further the ends of justice and is a needless imposition of pain and suffering.
An excessive sentence claim is reviewed by examining whether the trial court adequately considered the guidelines established in
A sentence violates
The trial court must state for the record the consideration and the factual basis for the sentence imposed.
The trial court has wide discretion in imposing a sentence within the statutory limits, so absent a showing of an abuse of that discretion, a sentence will not be set aside as excessive. State v. Mandigo, 48,801 (La. App. 2 Cir. 2/26/14), 136 So. 3d 292, writ denied, 14-0630 (La. 10/24/14), 151 So. 3d 600. The reviewing court does not determine whether another sentence would have been more appropriate, but whether the trial court abused its discretion. State v. Jackson, 48,534 (La. App. 2 Cir. 1/15/14), 130 So. 3d 993; State v. Esque, 46,515 (La. App. 2 Cir. 9/21/11), 73 So. 3d 1021, writ denied, 11-2347 (La. 3/9/12), 84 So. 3d 551.
Any sentence imposed under the habitual offender provisions shall be at hard labor without benefit of probation or suspension of sentence; the benefit of parole is determined by the sentencing provisions for the underlying offense.
The record shows that the trial court properly sentenced Sewell under
The trial court articulated the factual basis for the sentence and specified the facts that it found to be aggravating. Sewell used a firearm to threaten violence against the victim and then shot the victim twice before stealing his money and his vehicle. He then resisted the pursuing officers. The victim required surgery to remove a bullet that lodged in his pelvic bone. Sewell‘s habitual offender charges and adjudication revealed that he had a history of related conduct: burglary, unauthorized use a of a movable, and possession of a firearm by a convicted felon. Sewell‘s instant offense represented a clear escalation in violence that put multiple people at risk of significant harm or death. The sentence of 75 years may seem harsh; however, it is only 9 years above the mandatory minimum established by the legislature in the sentencing provisions for a third-felony habitual offender.
In light of the circumstances of this case, the sentence is not disproportionate to the harm Sewell caused the victim or the threatened to nearby citizens. Sewell fails to show that the sentence imposed
Ramos v. Louisiana
On May 15, 2020, Sewell filed a supplemental assigned error, relying on the recent ruling in Ramos v. Louisiana, supra, where the Supreme Court held that the Sixth Amendment right to jury trial requires a unanimous verdict to convict a defendant of a serious offense.
Sewell argues that the non-unanimous jury issue is properly before this Court because (1) the matter is on direct review due to his resentence on November 13, 2019; and, (2) the matter falls within the scope of appellate review because it constitutes an error patent and is raised as an assigned error.8 Sewell also contends that a violation of the constitutional right to a unanimous jury affects a defendant‘s substantial rights and implicates the reliability of the fact-finding process.9
Sewell asserts that the new interpretation of constitutional law established in Ramos applies to his case because of his non-unanimous jury verdict. Sewell argues that because his constitutional right to a unanimous trial was violated, he is entitled to a new trial.
In a similar case, State v. Brown, 19-370 (La. App. 5 Cir. 1/15/20), 289 So. 3d 1179, 1188, writ denied, 20-00276 (La. 6/22/20), 2020 WL 3453952, the defendant‘s convictions and sentences for second degree murder and armed robbery were affirmed and became final in 1997. In 2018, Brown was resentenced with parole eligibility pursuant to Montgomery v. Louisiana, --- U.S. ---, 136 S. Ct. 718, 193 L. Ed. 2d 599 (2016). Brown filed an appeal in which he only argued that he would be entitled to a new trial once Ramos was decided because his appeal was “still pending on direct review.”
The fifth circuit disagreed:
For the following reasons, however, we affirm his convictions’ finality. Issues related to his conviction are not properly before this court on the instant appeal, given that all such issues already have or should have been heard during his first appeal. This current appeal‘s sole focus is issues relevant to his resentencing.
State v. Brown, supra at 1182. The state supreme court denied Brown‘s writ, with Chief Justice Johnson concurring:
I concur in the denial of the defendant‘s writ application despite his conviction by a non-unanimous jury verdict in this case. After Mr. Brown was re-sentenced pursuant to Miller v.
Alabama 567 U.S. 460, 132 S. Ct. 2455, 183 L.Ed.2d 407 (2012) and Montgomery v. Louisiana, --- U.S. ---, 136 S. Ct. 718, 193 L. Ed. 2d 599 (2016), he was entitled to an appeal of his new sentence, not the underlying conviction.
La. C. Cr. P. art. 912(C)(1) . Therefore his 1996 conviction was final long before the United States Supreme Court‘s decision in Ramos v. Louisiana, --- U.S. ---, 140 S. Ct. 1390, 206 L. Ed. 2d 583 (2020). I write separately to emphasize that this writ denial does not preclude Mr. Brown from making a collateral challenge to his conviction by non-unanimous jury verdict underLa. C. Cr. P. arts. 930.3(1) and930.8(A)(2) .
State v. Brown, supra, 2020 WL 3453952, at p. 1.
Ramos applies only to matters currently pending on direct review. In the instant case, Sewell‘s conviction became final in 2003, after the state supreme court denied his challenge of this Court‘s 2002 opinion. The trial court reconsidered Sewell‘s sentence in light of the legislative changes and Esteen, supra, which was limited and did not include reconsideration of any issues regarding his conviction. As such, it is Sewell‘s resentencing that was pending on direct review when Ramos was decided, not Sewell‘s conviction, which remained final.
Additionally, Sewell has already had the benefit of an error patent review regarding his conviction in his prior appeal, which was affirmed by this Court in a 2002 opinion, and by the state supreme court in its 2003 writ denial. Thus, Sewell is not entitled to a second error patent review. The instant appeal is related to Sewell‘s resentencing. Any issue regarding Sewell‘s conviction is therefore outside the scope of this appeal.
CONCLUSION
For the foregoing reasons, Antonio Sewell‘s sentence is affirmed.
AFFIRMED.
Notes
If the third felony is such that upon a first conviction, the offender would be punishable by imprisonment for any term less than his natural life then:
(i) The person shall be sentenced to imprisonment for a determinate term not less than two-thirds of the longest possible sentence for the conviction and not more than twice the longest possible sentence prescribed for a first conviction; or
(ii) If the third felony and the two prior felonies are felonies defined as a crime of violence under La. R. S. 14:2(13), a sex offense as defined in La. R. S. 15:540 et seq., when the victim is under the age of 18 at the time of commission of the offense, or as a violation of the Uniform Controlled Dangerous Substances Law punishable by imprisonment for 10 years or more, or any other crime punishable by imprisonment for 12 years or more, or any other combination of such crimes, the person shall be imprisoned for the remainder of his natural life, without benefit of parole, probation, or suspension of sentence.