State v. SmithState v. Smith
Certiorari was granted to determine whether the court of appeal erred when it vacated the trial court‘s sentence on the ground that it was unconstitutionally excessive.
Facts and Procedural History
On April 4, 1993, the defendant and Clenard Johnson entered Wilson‘s Jewelers in Baton Rouge‘s Cortana Mall. The defendant brandished a gun and ordered everyone in the store to lie on the floor. Johnson smashed a glass case with a mallet and grabbed approximately $400,000.00 worth of diamond rings. The defendant and Johnson fled the mall. They were chased by Jason Bassett, an army sergeant who had been shopping in the jewelry store. The defendant and Johnson attempted to escape in a stolen car. They abandoned the stolen car after a short distance. They then ran to an Oldsmobile Cutlass belonging to the defendant‘s mother and continued their flight. Two shots were fired at their pursuers in the process. An off-duty security guard, who heard about the chase over his radio, saw one of the suspects fire. He chased Johnson and the defendant onto a highway and into a residential neighborhood on a dead-end street. A Baton Rouge City Police Officer, who also heard of the chase on the radio, pulled onto the dead end street in time to see the suspects running. The officer called in a canine unit and followed the suspects’ footprints. The canine unit arrived and located the suspects hidden in a nearby van.
The defendant was charged in a bill of information with armed robbery in violation of
The court of appeal affirmed the defendant‘s conviction, State v. Smith, 95-1826 (La.App. 1 Cir. 9/27/96), 681 So.2d 980,1 writ denied, State v. Smith, 96-2568 (La.3/27/97), 692 So.2d 390. In a separate appeal, defendant also challenged his habitual offender adjudication and sentence asserting that the conduct leading to his predicate conviction in Oklahoma did not constitute a felony under Louisiana law. The court of appeal agreed, vacated his habitual offender adjudication and sentence and remanded for resentencing. State v. Smith, 95-1827, p. 4 (La.App. 1 Cir. 9/27/96), 681 So.2d 978, 980.
The same trial court judge resentenced the defendant as a first offender and gave him the same sentence. The defendant again appealed his sentence. The court of appeal, in an unpublished opinion, found the trial court committed a patent error when it failed to dispose of the defendant‘s motion for a new trial, vacated the sentence and remanded the case for a second resentencing. State v. Smith, 98-0710 (La.App. 1 Cir. 4/1/99), 739 So.2d 1011.
On remand, a second trial court judge2 denied the motion for a new trial and
Excessiveness of Sentence
The defendant‘s co-defendant, Clenard Johnson, was charged with, and convicted of, armed robbery and two counts of attempted second degree murder. He was sentenced to serve twenty years imprisonment at hard labor on each charge and the three sentences were ordered to run concurrently. State v. Johnson, 94-1564 (La. App. 1 Cir. 10/6/95), 671 So.2d 461, writ denied, 95-2715 (La.2/16/96), 667 So.2d 1050. After reviewing the record in the instant case, the court of appeal concluded that there was “no justification in the record to support the great disparity in sentences on these co-defendants.”
In its only assignment of error, the State asserts the court of appeal erred when it vacated the sentence and remanded again for a new sentence. The State argues that the court of appeal disregarded significant portions of the record supporting the sentence and narrowly focused on the factors it used to justify setting aside the sentence. The State observes that the trial judge obtained and considered a supplemental presentence investigation report, conducted a sentencing hearing at which the defendant presented the testimony of witnesses, properly considered the statutory sentencing guidelines3 and recounted the facts pertaining to the offense in great detail. The State asserts the defendant was the “driving force” behind the armed robbery because he was the only person with a firearm during the robbery, he aimed the firearm at the persons in the store and ordered them to lie down, he drove his mother‘s car as one of the “getaway” vehicles, he had a business card from the store in his pants and there was a map of the mall in his mother‘s car. Finally, the State argues that the opinion of the court of appeal impermissibly infringes on the broad sentencing discretion of the trial court.
The defendant responds that it is fundamentally unfair for him to be sentenced to twice the term of incarceration as Johnson when Johnson was convicted of two more felony offenses and the parties are otherwise similarly situated. When Johnson was sentenced, the Felony Sentencing Guidelines (Guidelines) were in effect and provided for a minimum sentence of twelve and one-half years and a maximum of fifteen years for Johnson.
A review of the second trial judge‘s extensive reasons for sentencing shows that he did a thorough job of reviewing the aggravating and mitigating factors. He emphasized that the defendant aimed a firearm at six persons in the store and jeopardized their lives. The value of the
Whether you [Smith] should receive less than he [Johnson] is a factor for me to consider based upon your involvement and his involvement, but it is not an absolute factor there; because he receives a twenty year sentence that you should receive less than he or more than he. You must stand on your own feet as you are today and receive your individual punishment recognizing your involvement and recognizing your past criminal conduct.
At the time of the offense herein, the authorized sentence for armed robbery was imprisonment at hard labor for not less than five and for not more than ninety-nine years, without benefit of parole, probation or suspension of sentence.4 The sentence of forty years is in the lower half of the sentencing range.
DECREE
For the foregoing reasons, the decision of the court of appeal is reversed and the
REVERSED AND RENDERED.
JOHNSON, J., dissents.