State v. NapoleonState v. Napoleon
- Reporters:
- ,
- Before:
- Thomas F. Daley, Sol Gothard, Clarence E. Mcmanus
THOMAS F. DALEY, Judge.
The defendant pled guilty to two counts of armed robbery and one count of attempted armed robbery. He pled not guilty to charges of attempted second degree murder. Following a judge trial, the defendant was found guilty as charged. He was sentenced to 25 years imprisonment to be served without benefits. He appealed, claiming his sentence is excessive.
The testimony elicited at trial described the events, which led to these charges being filed. Hector Zapata testified that he was approached by defendant and co-defendant1, Harold Thomas, who asked for a ride home. After turning them down initially, Mr. Zapata eventually agreed to give the boys a ride when one of the boys stated his mother would kick him out of the house if he was not home before dark. The perpetrators gave Mr. Zapata directions to a residential area behind Oakwood Mall. Once they arrived, Mr. Zapata was told to put the car in park at which time defendant and co-defendant pulled guns and demanded Mr. Zapata give them everything he had. Mr. Zapata testified that he was hit in the face and head with the guns despite giving the perpetrators $40.00. He further testified that the defendant told him he was “going to get killed.” The perpetrators proceeded to take a cell phone and cassette tapes from the car. At one point, defendant threatened to kill Mr. Zapata. The perpetrators eventually exited the car and Mr. Zapata drove off at which time he heard two shots. Fortunately, neither shot struck him nor his car.
Shane McCloud and Aaron Benny testified that later on the same day Zapata was robbed, they were leaving Oakwood Mall
Within one week of the incident, all three victims identified defendant in a photographic lineup as one of the two perpetrators. Both Aaron Benny and Shane McCloud identified defendant as the shooter in their robbery. Defendant was subsequently arrested and gave two statements admitting his involvement in the above two incidents. However, in his statements and at trial, defendant alleged his gun fired accidentally when Shane McCloud handed him the speaker box.
At the conclusion of trial, the trial judge found the defendant guilty of attempted second degree murder. The defendant was sentenced to 25 years imprisonment for each of the armed robberies, 15 years for the attempted armed robbery, and 25 years for the attempted second degree murder. All sentences were imposed without benefits and ordered to run concurrently.
On appeal, defendant argues that his 25-year sentence for attempted second degree murder is excessive. Specifically, he argues the sentence is excessive considering his youthful age and the fact he does not have a prior criminal record, he is a heroin addict and was on heroin at the time of the crimes, the shooting was accidental, and no one died as a result of his actions. Defendant also complains that his co-defendant received a lesser sentence.
It is noted that defense counsel did not file the required Motion to Reconsider Sentence pursuant to
Both the United States and Louisiana Constitutions prohibit the imposition of excessive or cruel punishment.
Three factors are considered in reviewing a trial court‘s sentencing discretion: 1) the nature of the crime, 2) the nature and background of the offender, and 3) the sentence imposed for similar crimes by the same court and other courts. State v. Watts, 99-311 (La.App. 5 Cir. 8/31/99), 746 So.2d 58, 64, writ denied, 99-2733 (La.3/24/00), 758 So.2d 145. The issue on appeal is whether the trial court abused its discretion, not whether another sentence might have been more appropriate. Id.
Defendant was convicted of attempted second degree murder, which has a sentencing range of ten to fifty years without the benefit of parole, probation, or suspension of sentence.
A review of the jurisprudence indicates that similar sentences have been upheld for defendants without prior felony records. In State v. Ethridge, 96-1050 (La. App. 3 Cir. 2/5/97), 688 So.2d 1274, 1276, the Third Circuit upheld defendant‘s 45 year sentence for attempted second degree murder despite the fact defendant had no prior criminal record. The defendant had fired six shots into the victim‘s residence through a bedroom window severely wounding the victim.
In State v. Owens, 606 So.2d 876 (La. App. 2 Cir.1992), the Second Circuit affirmed defendant‘s 30 year sentence for attempted second degree murder despite defendant‘s claim the sentence was excessive based on his youthful age of 25 years old and the fact he had no prior felony convictions. Defendant had fired several shots at the victim in a crowded barroom.
In State v. Camese, 00-1943 (La.App. 4 Cir. 7/11/01), 791 So.2d 173, the Fourth Circuit affirmed defendant‘s 50-year sentence for attempted second degree murder despite the fact defendant had no prior criminal record. Defendant approached the victim at the security gate of the victim‘s apartment, pointed a gun to his head, and demanded the victim‘s car. The victim gave defendant the car at which time defendant shot him in the head.
In the present case, defendant tricked his victims by asking for a ride home. He pulled a gun on the high-school aged victims who were merely being nice by giving the perpetrators a ride home. Defendant forced Shane McCloud at gunpoint to disconnect the speakers in the trunk of the car and hit Shane McCloud several times with the gun, demonstrating deliberate cruelty. Shockingly, defendant then shot the victim after he handed over the very item the perpetrators requested. Despite defendant‘s claim the shooting was an accident, the record shows shots were fired at the prior armed robbery and there was discussion between the perpetrators about shooting someone. Based on these facts, we find the 25-year sentence imposed is
Regarding defendant‘s complaint that his co-defendant, Harold Thomas, received a lesser sentence, there is no requirement that co-defendants be sentenced equally. See State v. Rogers, 405 So.2d 829 (La. 1981).
The record was reviewed for errors patent, according to
Defendant was sentenced on June 15, 1999 at which time the trial court advised him he had three years to seek post-conviction relief. The three-year time period was correct at the time defendant was sentenced. However,
For the foregoing reasons, the defendant‘s sentence is affirmed. This matter is remanded for the limited purpose of informing the defendant of the shortened time period for seeking post conviction relief.
SENTENCE AFFIRMED; MATTER REMANDED.