State v. BurfordState v. Burford
Gretchen Nuss Burford and her husband, Kevin J. Burford, defendants herein, pled guilty to the attempted armed robbery of Johnny May, a retired merchant. Both received hard labor sentences. She received 30 years while he was sentenced to 40 years. Both now appeal claiming the sentences are excessive. Finding no error, we affirm both the convictions and sentences.
FACTS
Johnny May, a retired merchant, was awake in his home in Gloster, Louisiana, in rural DeSoto Parish late in the evening of February 20, 2003 when he heard a knock at his front door. May‘s wife, an Alzheimer patient, was already in bed. May did not know the woman at the door, the defendant, Gretchen Nuss Burford. Gretchen was wearing a wig and a pair of glasses. She told May that her car had broken down, and she asked to use his telephone. May let her in to make the telephone call, locking the security door behind her.
Gretchen made a telephone call later traced to the Kickapoo Corner Store. Shortly afterwards, there was another knock on the door. As the defendant went toward the door, May saw a masked man holding a pistol. The masked man was Kevin Burford, who had known May from childhood, and had been in May‘s store many times.
May wrestled with Gretchen, keeping her from opening the door, and keeping her between him and the man with a gun. Kevin Burford called out to open the door or he would shoot through it. During the struggle, they bumped into a grandfather clock. May apparently released the girl to save the clock from falling over. During the struggle, he told Gretchen that he had a gun down the hall, and when he released her, he rushed down the hall to his bedroom where his wife was sleeping. Once in the room, he pushed the panic button on the security alarm, and then he armed himself with a .357 caliber revolver. He fired the revolver once down the hall to let the attackers know he was armed. At the sentencing hearing, he testified that he did not know whether Kevin Burford came into his home. As far as he knew, Gretchen Burford was not armed.
When the police arrived, the attackers were gone. May was not able to identify the two, and the police did not recover any evidence to provide any leads to their identity. The case was unresolved for several months until the Burfords and one Jimmy Peck were arrested on federal bank robbery charges stemming from the burglary of two Shreveport ATM machines and an armed robbery in the Shreveport home of another elderly couple.1
The Burfords were charged with attempted armed robbery and aggravated burglary. After pre-trial delays, both agreed to plead guilty to the one count of attempted armed robbery. In consideration for the guilty plea, the state agreed to dismiss the aggravated burglary charge. No sentence or sentencing cap was agreed upon, but the sentences would be subject to their PSI reports.
During their guilty pleas, the hearings on which were held separately, each was advised of their rights that they were waiving with their guilty pleas together with the terms of the plea agreement. The court minutes show that each defendant pled guilty to attempted armed robbery in docket No. 038938, and the charges of aggravated burglary in docket No. 038938, attempted armed robbery in docket No. 038937, and attempted aggravated burglary in docket No. 038937, were dismissed. There is no pleading in this record relating to docket No. 038937.
Prior to his sentencing, Kevin Burford filed an “Objections to Pre-Sentence Report,” correcting several inconsequential errors in the PSI, including the wrong middle initial of his name, that he is 33 years old instead of 34, that he received an honorable discharge from the Marine Corps in 1992, that he tried marijuana only when he was 28, and he was not a user as the PSI could be construed to depict. Also, he was previously charged with theft, but the charges were dismissed after an investigation showed he was wrongfully accused. He said he was offered reinstatement into the Shreveport Police Department but refused.
Burford presented several letters to the judge in support of leniency. A letter from Burford‘s nine-year-old daughter stated: “I think Gretchen is the reason my Daddy did those things.” A letter from his ex-wife stated that he had been a good father to their child. There were similar letters from his former father-in-law and former mother-in-law, the child‘s grandparents. Burford also submitted a letter admitting his fault in the crime and asking for leniency.
There were no pleadings or letters filed in support of Gretchen Burford prior to her sentencing.
The Burfords were each sentenced on August 5, 2004. They did not produce any evidence or testimony on their behalf. However, the victim Johnny May testified about the facts of the crime and the impact upon him and his wife.
Gretchen Burford was sentenced first. When asked by the trial court if there was any information that needed to be explained or supplemented on her behalf, Gretchen Burford‘s counsel stated only that she had completed and discharged a substance abuse program with the federal probation office, and she was working with a 4-H program and running a German Shepherd rescue program.
During Gretchen Burford‘s sentencing, the trial court noted that she did not want to accept blame for what she had done, citing her statement in the PSI, “I got myself into a bad relationship. I didn‘t know how to get myself out.” The trial court stated that it was “absolutely unpersuaded” by any of the mitigating factors in her case, referring to her as “a domestic terrorist.” It stated that any lesser sentence than the one he was about to impose “would deprecate the seriousness of her crime.” After reviewing the factors in
The trial court ordered the statements from Kevin Burford‘s family filed into the record. It noted that Burford had accepted responsibility for his actions. After reviewing the factors in
Gretchen Burford timely filed a motion to reconsider sentence in which she sought leniency, and for the first time claiming that she “was abused and intimidated by her husband, Kevin Burford.” She also asserted that she had entered the plea, with an agreement by the state for co-operation with the understanding that she would testify against the co-defendants without exposure to excessive sentencing or “a lot of time” for her help, and that she was still co-operating with the state and providing them with information up to the time of her sentencing.
In support of her motion for reconsideration, Gretchen Burford attached numerous letters and statements from family and friends in support and requesting that the court reduce her punishment, and a June 10, 2003 letter from Sheila Baxter, with Cornerstone Counseling, detailing her interviews of Gretchen, and her conclusions that “Gretchen‘s actions were almost totally controlled by Kevin.” The trial court denied the motion for reconsideration without a hearing.
Kevin Burford‘s motion for reconsideration merely asked the trial court to reconsider the sentence pursuant to
DISCUSSION
The record shows that after the appeal was lodged, the state failed to timely file its brief, even after a seven-day notice was filed. The state‘s untimely brief minimally addresses the defendant‘s assignments of error.
In addition to some specific errors discussed below, both defendants argue that their sentences are excessive.
The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in
Second, whether the sentence imposed is too severe depends on the circumstances of the case and the background
As a general rule, maximum sentences are appropriate in cases involving the most serious violation of the offense and the worst type of offender. State v. Grissom, 29,718 (La.App. 2 Cir. 8/20/97), 700 So.2d 541; State v. Walker, 573 So.2d 631 (La.App. 2 Cir.1991). However, in cases where the defendant has pled guilty to an offense which does not adequately describe his conduct, the general rule does not apply and the trial court has great discretion in imposing the maximum sentence possible for the pled offense. This is particularly true in cases where a significant reduction in potential exposure to confinement has been obtained through a plea bargain and the offense involves violence upon a victim. State v. Black, 28,100 (La.App. 2 Cir. 2/28/96), 669 So.2d 667.
KEVIN BURFORD‘S SENTENCE
By his assignments of error, Kevin Burford argues his sentence is constitutionally excessive, and rendered without fully applying the sentencing guidelines set forth in
In his motion for reconsideration of the sentence, Kevin Burford asserted only that his 40-year hard labor sentence is excessive. On appeal, he additionally argues the trial court failed to comply with
Armed robbery carries a hard labor sentence of not less than 10 years and not more than 99 years, all without benefit of parole, probation or suspension of sentence. (
Prior to imposing sentence, the court reviewed Kevin Burford‘s personal history contained in the PSI report in open court. Applying
The 40-year sentence without benefit of probation, parole or suspension of sentence in this case is very near the statutory maximum, and is undoubtedly a very, very harsh sentence for a first felony offender. The trial court, however, carefully considered the facts and circumstances of this crime before imposing the sentence. The court articulated the aggravating circumstances for imposing the long sentence, and it found no mitigating circumstances. In this latter regard, we add our observation that the defendant is a fully mature, 33-year-old man, a former police officer, and a Marine Corps veteran with no apparent mental or social disabilities. There is no evidence he was suffering from economic hardship. He knew the consequences of his actions. While the sentence imposed for this offense compels us to carefully scrutinize the trial court‘s reasons in light of the seriousness of the crime, we cannot say, in this particular case, that the 40-year sentence shocks our sense of justice, although it is surely near the limit of conscionability. A trial court has broad discretion to sentence within the statutory limits. Absent a showing of manifest abuse of that discretion, an appellate court may not set aside a sentence as excessive. State v. Guzman, 99-1528, 99-1753 (La.5/16/00), 769 So.2d 1158, writ granted, 99-1753 (La.12/17/99), 751 So.2d 865 affm‘d 99-1753 (La.5/16/00), 769 So.2d 1158. For these reasons, we conclude that the sentence is not unlawful or unconstitutional. These assignments are therefore without merit.
GRETCHEN BURFORD‘S SENTENCE
Gretchen Burford alleges the court made nine errors regarding her sentencing. Several of the alleged sentencing errors are interrelated and will be considered together.
However before turning to these assignments of error, we note that there are some facts asserted in Gretchen‘s appellate brief for purposes of the excessive sentence claim that are in reality issues regarding the validity of the plea agreement. Gretchen Burford states that she entered the plea agreement with the understanding that she would not receive “a lot of time” in her sentence. We have no evidence in the record of a sentencing agreement as part of the plea agreement. Also, counsel notes that prior to accepting Gretchen‘s guilty plea to attempted armed robbery, the court indicated that the sentence would be subject to probation, parole or suspension of sentence. Our review of the record corroborates that the court discussed with counsel the minimum and maximum sentence for attempted armed robbery, and further stated that the requirement (in an armed robbery conviction) that the sentence be served “without benefit of probation and parole or suspension of sentence does not apply.” (Emphasis ours). The court then asked Ms. Burford if she understood “the discussion and what the penalty range is, that it will be based on the presentence investigation.”
The court is required under
Subsequently, the court went on to sentence Gretchen Burford to 30-years at hard labor without mentioning that the sentence is without benefit of probation, parole or suspension of sentence. Ms. Burford‘s appellate counsel has submitted a lengthy but thoroughly researched appellate brief alleging several assignments of error, and she has included additional scholarly research and evidence arguing that the defendant has diminished culpability arising from her husband‘s abusive domination and control over her.
We begin with defendant‘s contention that the court relied on facts outside the record supporting the conviction to enhance the sentence. By assignments three and four, Ms. Burford alleges that the trial court erred when it imposed a sentence based upon facts outside the scope of the factual basis for the guilty plea or by using those additional facts as aggravating circumstances to increase the sentence, thereby violating the holding of Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). The alleged additional fact upon which the court based its sentence in whole or in part, argues defendant, is the court‘s conclusion that Gretchen has refused to take responsibility for her actions. This conclusion was based on Gretchen‘s written statement: “I got myself into a bad relationship. I did not know how to get myself out.” The court read this statement as proof of what it found most disturbing about today‘s society, that is, that no one wants to accept blame for the things they have done. It paraphrased Gretchen‘s remarks as her stating that “I take no responsibility for anything I did.” The court went on to characterize Gretchen as a “domestic terrorist.”
In Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), the defendant pled guilty to kidnaping and the
Blakely does not apply in this case. The court relied on a presentence investigation pursuant to
By assignments one, two, five, six and nine, the defendant argues that the court imposed an excessive sentence and erred in denying her motion for reconsideration of sentence, in finding that imprisonment is necessary in this case, in ignoring certain mitigating factors and in using improper items as aggravating factors.
The trial court stated that it found no mitigating factors. Gretchen contends the trial court failed to consider several mitigating circumstances, as required by
Gretchen argues that the trial court failed to consider her allegations that she was abused and intimidated by her husband to the extent that she felt forced to participate in the several crimes. It is noteworthy that these allegations were not presented to the trial court prior to or during her sentencing. Instead, this claim was first presented to the trial court in Gretchen Burford‘s motion to reconsider her sentence. Be that as it may, the trial court was not convinced that Gretchen was under such control and influence by Kevin that her will was not her own. Stated differently, the court was unpersuaded that Gretchen‘s allegations of Kevin‘s abuse, domination and control provided an
Our law recognizes varying degrees of culpability or blameworthiness in the commission of crimes, as is evident from the relatively broad discretion sentencing courts have in selecting a sentence from the legislatively created sentencing range. While our law sometimes categorically recognizes diminished culpability in special cases, such as mental retardation, for the most part, these matters are decided on a case-by-case basis depending on the evidence. In this case, the documentation presented on the motion for reconsideration and on appeal has not been introduced as evidence and subjected to trial scrutiny. Accordingly, Gretchen has shown no abuse of discretion by the trial court in not considering belatedly raised claims.
The defendant also argues that the trial court erred in calling Gretchen Burford a “domestic terrorist.” While the sentencing court perhaps should not have made such a comment, it obviously reflects the degree to which the court was offended by the callous criminal acts of the defendants. The record does show she was actively involved in a “crime spree” involving armed robberies of a bank, ATM customers, and an attempted armed robbery inside of a home. There is no showing that the trial court‘s statement constitutes any reversible error.
Gretchen also argues the trial court was in error to consider the dismissed aggravated burglary charge, because her entry into the Mays’ home was with Mr. Mays’ consent, and therefore her entry with an undeclared felonious intent is not “unauthorized” as required by the definition of burglary, citing State v. Smith, 1998-2078 (La.10/29/99), 748 So.2d 1139, 1143. Since the aggravated burglary could not have been maintained against her, she argues, its dismissal should not have a major consideration in sentencing her.
This argument overlooks the fact Gretchen Burford was also actively involved in Kevin Burford‘s attempt to force his way into the home. By trying to open the door against the homeowner‘s wishes, she was clearly a principal in her husband‘s armed efforts to enter the home to commit a theft therein. The trial court did not abuse its discretion in considering the dismissed charges.
A review of the record shows the PSI alone provided a factual basis to support the trial court‘s sentence of Gretchen Burford. Also, there is no evidence that the trial court did not comply with
As stated above, constitutional review turns upon whether the sentence is illegal, grossly disproportionate to the severity of the offense or shocking to the sense of justice. State v. White, 37,815 (La.App. 2 Cir.12/17/03), 862 So.2d 1123. A sentence violates
We recognize that the 30-year sentence in this case for a first offender is very harsh. However the offense committed in this case was very serious. The trial court‘s sentence of 30 years at hard labor for a well-planned attempted armed robbery of a home occupied by an elderly and disabled couple, which was but one of a string of armed robberies planned and executed by Gretchen and her husband Kevin, does not shock this court‘s sense of justice.
By assignment of error number seven, Gretchen argues that the trial court erred in its failure to consider that cost of incarcerating Gretchen Nuss Burford would be approximately $30,000 per year, for a total of $900,000, assuming no increase in cost over the next 30 years, and that this incarceration and cost thereof would serve neither the state nor the victim in this matter.
The defendant argues on the narrow and unique facts of this case, the cost of incarceration for 30 years is a factor which militates in favor of a reduced sentence.
The state argues the trial court found a need for correctional treatment and any lesser sentence would deprecate the seriousness of the defendant‘s actions.
For the proposition that the trial court erred in not considering the cost of incarceration as a factor to “militate” in favor of a reduced sentence, Gretchen provides no statutory authority requiring a trial court to consider the cost of incarceration in reducing a defendant‘s sentence. The two cases she cites, State v. Wilson, 37,555 (La.App. 2 Cir. 11/6/03), 859 So.2d 957, writ denied 04-0089 (La.6/4/04), 876 So.2d 73 and State v. Hayes, 97-1526 (La.App. 1 Cir.1999), 739 So.2d 301, writ denied 99-2136 (La.6/16/00), 764 So.2d 955, involve the discussion of life sentences for habitual offenders who had committed relatively minor crimes. In both, the appellate courts, while finding the life sentences to be excessive, noted that it was unfair to taxpayers to pay to incarcerate the two defendants for the rest of their lives. These cases do not support Gretchen Burford‘s argument that a trial court must consider the cost of incarceration.
This assignment is therefore without merit.
By assignment of error number eight, Gretchen argues that she did not receive the sentence she was promised in that she was told she would not get “a lot of time” if she pled guilty. As stated at the outset of this opinion, the record does not show any evidence of such a promise to induce her to plead guilty, and, this is not a sentencing issue but a question of whether the guilty plea is deficient.2 In the present case, this court has no evidence in the record to even consider Gretchen Burford‘s claim of being misled in her plea. This matter should be handled by an application for post conviction relief.
For the foregoing reasons, the defendants’ convictions and sentences are affirmed.
AFFIRMED.
APPLICATION FOR REHEARING
Before WILLIAMS, CARAWAY, DREW, MOORE and LOLLEY, JJ.
Rehearing denied.
WILLIAMS, J., would not consider a rehearing.