State v. CurryState v. Curry
Derrick Wayne Curry, age 22 and a first felony offender, was charged by bill of information with one count of armed robbery,
On the evening of April 21, 1989, Curry robbed Jay Tarver and Derf Donald, employees of Johnny‘s Pizza in Rayville. Donald had left the store at closing time to drive another employee home. When he returned he knocked on the back door for Tarver, the manager, to let him in. While Donald was waiting, an assailant wearing a stocking over his face and wielding a real-looking pellet gun seized Donald by the
Officer Robinson of the Richland Parish Sheriff‘s Office interviewed the victims and gained “street information” that led him to a suspect, Nathaniel Smiley, who was arrested and charged with the offense. Smiley gave a statement that also incriminated Curry, the defendant herein. Investigators learned that Curry had left Rayville for Dallas a few days after the robbery. He was arrested in Dallas in early June, waived extradition and returned to Richland Parish where he gave a recorded statement. In the statement he admitted going to Johnny‘s Pizza with Smiley, who waited outside while he entered and pulled the gun on two men. As noted, Curry was charged with one count of armed robbery.
At trial Curry denied any involvement in the robbery, offering alibi testimony. He also testified that his statement contained only what Officer Robinson told him to say; he gave it on a promise that his bail would be lowered. Both the transcript of the statement and the testimony of Officer Robinson, however, deny any such promise or falsehood. Both Donald and Tarver positively identified Curry in open court. Tarver added that Curry took about $800 in the robbery.
The test of excessiveness is two-tiered. First the record must show the district court considered the sentencing guidelines of
The second tier is constitutional excessiveness. The imposition of a sentence, although within the statutory limit, may violate a defendant‘s right against excessive punishment.
Curry‘s claim of a “total absence of compliance” with the sentencing guidelines is not supported by the record. The trial court ordered and reviewed a presentence investigation report (“PSI“); the court gave a fair summary of the offense, Curry‘s background and the sentencing guidelines. R. pp. 197-203. The court made special note that Curry, having committed “one of the most serious crimes,” tried to rescind his prior inculpatory statement.
The court recognized that Curry was a 20-year old first felony offender but was unfavorably impressed with his extensive juvenile record. Curry‘s first arrest was in 1978, at age eight; he dropped out of eighth grade and had no work history because he spent so much time in detention facilities. Psychological tests showed he has a severe conduct disorder and exhibits a chronic and recalcitrant pattern of defying authority and acting out; Curry even admitted to the parole officer who prepared the PSI that he has been a discipline problem most of his life. At one point he was in maximum security at LTI; his only prior adult conviction was for simple escape from Ouachita Parish in 1987. In fact, several of his juvenile adjudications were for escape and running away. On the date of his arrest for the instant offense, he was also charged with one count of forgery. This charge is still pending.
Even though the trial court adequately complied with the sentencing guidelines, there is still the question of constitutional excessiveness in a 60-year sentence for a youthful first felony offender found guilty of armed robbery. The statutory range is a minimum of five and a maximum of 99 years at hard labor, all without benefit of parole, probation or suspension of sentence.
Armed robbery is a serious offense as it creates an atmosphere in which victim, defendant and bystanders may be injured or killed. Curry, however, did not fire his gun; while his conduct in bludgeoning Tarver was surely unnecessary, it was not as extreme as it could have been, with the prospect of shooting both victims. Curry‘s record, though unfavorable, is primarily a chronicle of escapes, with assorted charges of theft-related crimes. The instant offense is his first incident of a crime of violence against the person. Curry has a “dull average” intellectual function and various psychological problems, perhaps stemming from his frequent childhood moves and apparent lack of a permanent home base. He was 19 years old at the time of this offense. Sixty years without benefit for this defendant is tantamount to a life sentence and totally voids the possibility of rehabilitating the first felony offender. See State v. Dean, 438 So.2d 213 (La.1983); State v. Williams, 414 So.2d 371 (La.1982). While a substantial term of prison time is needed, we are constrained to find that under the circumstances, 60 years at hard labor without benefit is out of proportion to the offender and offense, and it shocks our sense of justice. The sentence must be vacated and the case remanded for resentencing.
In State v. Smith, supra, the Supreme Court affirmed a 60-year sentence for the getaway driver in a bank robbery. Evidence showed that Smith was actually the mastermind of the well-planned robbery, in which two shotgun blasts were fired and Smith himself was armed with an automatic rifle. After the robbery, Smith supervised his coconspirators in dividing the nearly $100,000 netted in the robbery. The reported case was Smith‘s second conviction for armed robbery; he also had a substantial criminal record. From the standpoint of the planning involved, amount stolen and firepower used, Smith‘s conduct in the reported case is obviously more serious than Curry‘s in the instant case. A substantial but lesser sentence is mandated for Curry.
In State v. Keleman, 444 So.2d 1328 (La.App.2d Cir.), writ denied 447 So.2d 1069 (1984), this court affirmed a 45-year sentence for a defendant who robbed a hardware store‘s female cashier and shot her in the head twice. The reported opinion does not mention Keleman‘s age or criminal history; however, he inflicted injuries much more serious than did Curry. On the facts presented, Keleman‘s conduct was more serious than Curry‘s and yet he received a considerably lighter sentence.
Under the circumstances, the maximum sentence we could affirm for this offender and offense is 35 years at hard labor without benefit. The case is remanded for resentencing in accord with this opinion.
Finally, we have reviewed the entire record for error patent and find none.
CONVICTION AFFIRMED; SENTENCE VACATED AND CASE REMANDED FOR RESENTENCING.