State v. CunninghamState v. Cunningham
- Reporters:
- ,
- Before:
- Peatross, Moore, Lolley
Termaine Deon Cunningham appeals his concurrent sentences of 23 years, 11 years and 9 years at hard labor, following his trial and conviction on two counts of simple burglary and one count of illegal possession of stolen things valued at over $500, and his adjudication as a fourth felony offender on one of the simple burglary convictions. We affirm.
On Sunday morning, August 14, 2005, a group of men gathered for softball practice at Southern Hills Park in southwest Shreveport. They parked their vehicles in a lot visible from the field. During practice, one of the players noticed a person rummaging through a team member‘s Ford Explorer. Several of the players hurried to the parking lot, some 400 feet away, to stop the defendant. The defendant started to climb into a black 2005 Ford Expedition, but one of the players physically dragged him out and another sat on him while a third phoned the police. Shreveport Police Corporal J.P. Creighton arrived, arrested, Mirandized and searched him. The players had already recovered from the defendant‘s person a wallet and a bottle of cologne taken from one team member‘s Chevrolet Silverado; Cpl. Creighton allowed the owner to keep these items.
On the defendant‘s person, Cpl. Creighton found a single key with tag indicating
Once in custody, the defendant told Cpl. Creighton his name was Tyrone Ealy, gave him three different birth dates, and said he lived on Quinton Street; however, another officer checked that address and found it was not where the defendant lived. The defendant also said that the Expedition belonged to his 16-year-old brother, who worked at Rountree Ford.1 Only later did officers find that the defendant‘s name was Termaine Deon Cunningham.
Cunningham was charged by bill of information with illegal possession of stolen things valued at over $500 (the Ford Expedition) and two counts of simple burglary (breaking into the 1992 Ford Explorer and 1998 Chevy Silverado in the Southern Hills parking lot). He proceeded to a three-day trial in May 2006, after which the sixmember jury unanimously found him guilty as charged on all counts.
The state then charged Cunningham as a fourth felony offender, citing (1) a 1998 guilty plea to simple burglary, (2) a 1998 guilty plea to unauthorized use of a motor vehicle, and (3) a 2004 guilty plea to illegal possession of stolen things. At a hearing in December 2006, the state amended the bill to specify that the enhancement would apply to only one charge of simple burglary. After receiving evidence, the district court adjudicated Cunningham a fourth felony offender.
After a hearing in January 2007, the court sentenced Cunningham to 23 years at hard labor as a fourth offender on one count of simple burglary, to 11 years at hard labor on the other count of simple burglary, and to 9 years at hard labor on the illegal possession of stolen things. The court specified that all three sentences were to be concurrent, but consecutive to any other sentences Cunningham may be serving. The court also stated that all sentences were to be without benefit of probation or suspension of sentence, but subject to parole if he was otherwise eligible. The court later denied a motion to reconsider sentence; this appeal followed.
By one assignment of error, Cunningham urges the court erred in imposing an unduly harsh and excessive total sentence of 23 years. He submits that all items taken in the car burglaries were returned to their rightful owners, resulting in no permanent loss, and that his three prior felonies were not crimes or violence or drug-related. He contends that the 23-year sentence for him, a 28-year-old offender, makes no reasonable contribution to acceptable penal goals.
The state responds that the sentence imposed was only three years above the mandatory minimum for simple burglary enhanced to a fourth felony offense. It submits that the sentence does not shock the sense of justice “in light of the fact that the criminal justice system will get some long-term relief from this defendant.”
Appellate review of sentences for excessiveness is a two-pronged inquiry. First, the record must show that the sentencing
Here, the court stated that it had reviewed the presentence investigation report (“PSI“) and the
The second prong is constitutional excessiveness. A sentence violates.
clearly and convincingly show that he is exceptional, which in this context means that because of unusual circumstances this defendant is a victim of the legislature‘s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case.
State v. Johnson, at p. 8, 709 So.2d at 676; State v. Henry, 42,416 (La.App. 2 Cir. 9/19/07), 966 So.2d 692. Critically, the district court may not rely solely on the nonviolent nature of the instant or past crimes as evidence to justify rebutting the presumption of constitutionality. The lack of violence cannot be the only reason, or even the major reason, for declaring such a sentence excessive. State v. Johnson, at pp. 7-8, 709 So.2d at 676; State v. Henry, supra.
The penalty for simple burglary is imprisonment with or without hard labor for no more than 12 years, a fine of not more than $2,000, or both.
On this record, we simply cannot say the sentence shocks the sense of justice, is grossly disproportionate to the offense and the offender, or evinces a legislative failure to assign meaningful sentences. The assigned error lacks merit.
Finally, we have reviewed the entire record pursuant to
AFFIRMED.