
    STATE of Louisiana v. Antoine GREEN
    NO. 2017-KA-0520
    Court of Appeal of Louisiana, Fourth Circuit.
    NOVEMBER 15, 2017
    
      Leon A. Cannizzaro, Jr., DISTRICT ATTORNEY ORLEANS PARISH, Scott G. Vincent, ASSISTANT DISTRICT ATTORNEY, 619 South White Street, New Orleans, LA 70119, COUNSEL FOR-THE STATE OF LOUISIANA
    Christopher A, Aberle, LOUISIANA APPELLATE PROJECT, P.O. Box 8583, Mandeville, LA 70470-8583, COUNSEL FOR DEFENDANT/APPELLANT
    (Court composed of Judge Roland L. Belsome, Judge Joy Cossich Lobrano, Judge Marion F. Edwards, Pro Tempore)
   Judge Roland L. Belsome

Statement of Facts

In the early morning hours of July 13, 2015, the Defendant entered Barcadia Bar and Grill, ah establishment in New Orleans, with the intent of robbing the business. The Defendant brandished a firearm and proceeded to the money room in the back of the business. The Defendant pointed the firearm at the three people located' in the money room and demanded the money be placed into a plastic bag. During this time, the Defendant was pointing the gun at Lea Wolfe, the manager on duty. When the Defendant was momentarily distracted by some activity outside of the room, one of the other victims was able to shut the Defendant outside of the room and lock the door. That action caused the Defendant to flee the scene without the money.

Ms. Wolfe triggered the alarm alerting the police of the attempted armed robbery. Upon arrival, New Orleans Police Detective Steve Nolan viewed the surveillance recordings with the manager. Ms. Wolfe informed Det. Nolan that the suspect resembled a former employee, Antoine Green. Det. Nolan learned the name of the Defendant’s then employer and went to his place of employment to discuss the incident. Det. Nolan brought Defendant to the police station where he |2was read his rights, and the Defendant fully confessed to the attempted armed robbery of Barca-dia.

Procedural History

On December 23, 2015, the Defendant was charged by bill of information with attempted armed robbery while armed with a firearm. On January 11, 2016, the Defendant appeared for arraignment and entered a plea of not guilty. On March 7, 2017, the Defendant appeared for trial with counsel. Trial’ was continued due to the possibility of a plea .offer. The state offered to remove the firearm enhancement under La. R.S. 14:64,3 (B) and request a five-year sentence in the Department of Corrections. The Defendant elected to reject the plea offer, enter a plea of guilty as charged and requested a downward departure from the mandatory sentence in accordance with State v. Dorthey. Thereafter, the district court sentenced Defendant to five years.

A Dorthey hearing was conducted immediately following sentencing to determine if a downward departure from the statutorily required minimum sentencing was warranted. Following the Dorthey hearing, the district court imposed the mandatory five-year hard labor without benefits sentence under La. R.S. 14:64.3 (B) for commission of attempted armed robbery when the dangerous weapon is a firearm. This appeal followed.

Assignment of Error

On appeal, the Defendant maintains that the trial court erred in making inconsistent findings regarding the excessiveness of his sentence and by declining to impose a downward departure in accordance with Dorthey.

IsThe Louisiana Constitution guarantees that “[n]o law shall subject any person to ... cruel, excessive or unusual punishment.” That protection allows the judicial branch to determine whether the range of sentences authorized by a criminal statute is excessive for a particular defendant. The court must start with the presumption that a mandatory minimum sentence is constitutional. In order to rebut that presumption, a defendant must clearly and convincingly prove that he is exceptional. This Court has articulated that exceptional “means that because of unusual circumstances he 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.”

If the mandatory minimum sentence is constitutionally excessive then a downward departure is required under Dorthey. “A punishment is constitutionally excessive if it makes no measurable contribution to acceptable goals of punishment and is nothing more than the purposeless imposition of pain and suffering and is grossly out of proportion to the severity of the crime.” A sentence is grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice.

In the instant case, the Defendant alleged his sentence was excessive due to his youth, age twenty-three, and the fact that it was his first offense. The LDefendant has asserted no additional factors which would make his situation exceptional. In State v. Henry, Demonte Henry was found guilty of attempted armed robbery and attempted armed robbery with a firearm. He was sentenced to twenty years at hard labor without benefits for the attempted armed robbery conviction, and five years at hard labor without benefits for the attempted armed robbery with a firearm conviction. On appeal, Henry cited to his youth and the fact that he was a first time offender to challenge his sentence as excessive. The Court of Appeal affirmed the defendant’s sentence stating: “[W]e cannot say that the defendant’s sentences shock our sense of justice or make no measurable contribution to acceptable penal goals.”

In this case, the Defendant held three people at gun point in their place of employment. Ms. Wolfe testified that she and the other victims were frightened and now carry firearms for their protection. After hearing the testimony of Ms. Wolfe, Nicholas Johnson (the Defendant’s employer at the time of the hearing), and allowing the defendant to speak on his own behalf, the trial court made a clear finding that the legislatively mandated minimum sentence of five years was not constitutionally excessive. The trial court stated, “I don’t think that it’s constitutionally excessive.” After declaring the sentence constitutional, the trial court further stated:

I think that it is an inappropriate sentence. I don’t think that it has reasonable contributions for this individual, but the Legislature that makes those laws and the State that establishes which law to charge each person that walks into this Court.. .could have made these ^changes. But you’re now asking a judge to look at a statute that says you can’t go below it, and then you’re asking a Judge to look at a statute and then go below it by using one case from the Supreme Court that no one has ever used to go below it on a matter like his, on a violent offense, and I’m not going to do it.

On appeal, the Defendant maintains that the later statements made by the trial court indicates that she misapplied the law. We disagree. Clearly, the trial court did not agree with the length of the minimum sentence, but ultimately concluded that it was not unconstitutionally excessive. The relevant question for this Court is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. Thus, absent a showing that the Defendant was exceptional, the trial court was within its discretion to impose the sentence.

On the record before us, the Defendant failed to meet his burden of clearly and convincingly proving he was exceptional to warrant a downward departure in his sentence. Accordingly, we cannot find that the trial court abused its discretion in imposing the five-year minimum sentence. Antoine Green’s sentence is affirmed.

AFFIRMED

LOBRANO, J., DISSENTS AND ASSIGNS REASONS

LOBRANO, J.,

DISSENTS AND ASSIGNS REASONS.

hi respectfully dissent from the majority opinion. Because a review of the sentencing transcript as a whole reveals that the district court made findings inconsistent with its determination that the sentence imposed on Antoine Green (“Defendant”) is not excessive and improperly found that it did not have the authority to sentence Defendant below the statutory minimum on a crime of violence, I would vacate Defendant’s sentence and remand for a proper sentencing hearing.

Louisiana Constitution of 1974, art. I, § 20 provides that “[n]o law shall subject any person to ... excessive .., punishment.” A sentence is unconstitutionally excessive if it makes no measurable contribution to acceptable goals of punishment, or is nothing more than a purposeless imposition of pain and suffering that is grossly out of proportion to the severity of the crime. State v. Zeitoun, 2017-0366, p. 9 (La. App. 4 Cir. 11/8/17), 231 So.3d 934 (citing State v. Ambeau, 2008-1191, p. 9 (La. App. 4 Cir. 2/11/09), 6 So.3d 215, 221). Mandatory minimum sentences are presumed to be constitutional. State v. Hernandez, 2002-892, p. 3 (La. App. 5 Cir. 1/28/03), 839 So.2d 281, 284 (analyzing whether a first offender |gwho pled guilty to an armed robbery had presented sufficient-evidence to justify a downward departure from the mandatory minimum sentence). However, should a defendant prove by clear and convincing evidence that he is exceptional such that the mandatory minimum sentence applied to him would be excessive, a court may downward depart from that mandatory minimum sentence. Id. at 2002-892, pp. 3-4, 839 So.2d at 284 (citing State v. Johnson, 97-1906, p. 8 (La. 3/4/98), 709 So.2d 672, 676).

The majority opinion removes one statement, “I don’t think that it’s constitutionally excessive,” from the context surrounding it in order to reach the conclusion that the district court properly exercised its sentencing discretion. Despite stating that it did not find the sentence excessive, the district court called Defendant’s sentence “inappropriate” and declared that the sentence did not make “reasonable contributions” to acceptable goals of punishment for this individual — reasoning in direct conflict with Louisiana’s definition of an excessive sentence. This Court should not overlook this contradiction in the district court’s reasoning aiid lurch forward into an analysis of whether Defendant’s sentence is in fact unconstitutionally excessive.

Moreover, referencing State v. Dorthey, the district court declared that it did not have the authority to sentence Defendant below the mandatory minimum on a crime of violence. This is inaccurate. In Dorthey, the court found that the Louisiana Constitution’s prohibition against excessive sentences applies to mandatory minimum sentences under the Louisiana Habitual Offender Law. See 623 So.2d 1276 (La. 1993); see also La. R.S. 15:529.1 et seq. However, it is the Louisiana Constitution’s prohibition on excessive sentences, not the holding of Dorthey, which requires courts to downward depart where mandatory minimum ^sentences would be excessive as applied to particular defendants. The Dorthey court simply recognized this existing constitutional limit. Because the Louisiana Constitution prohibits excessive sentences without qualification, district courts may downward depart from mandatory minimum, sentences regardless of how they arise — including on crimes of violence. See State v. Fobbs, 99-1024 (La. 9/24/99), 744 So.2d 1274 (finding that the principles espoused in Dorthey apply to substantive criminal statutes as well as sentences under the Habitual Offender Law); Hernandez, 2002-892 at pp. 3-4, 839 So.2d at 284 (analyzing whether a downward departure was warranted where the defendant plead guilty to a crime of violence). This broad discretion is appropriately limited by the assumption of constitutionality our jurisprudence requires district courts to apply to sentencing statutes, see id., and by the fact that the La. C.Cr.P. art. 894,1 sentencing factors expressly require consideration of the multiple ways violence can be used during the commission of a crime.

The majority’s decision to omit this portion of the analysis in favor of reaching its own conclusion as to the sentence’s alleged excessiveness undermines the constitutionality of Defendant’s sentence. Given that the district court not only made findings inconsistent with its determination that Defendant’s sentence was unconstitutionally excessive, but also misunderstood its authority to correct an excessive sentence, I would vacate Defendant’s sentence and remand the case for a proper sentencing hearing. 
      
      . 623 So.2d 1276 (La. 1993).
     
      
      
        . LSA-Const. art. 1, § 20.
     
      
      . See, State v. Fobbs, 99-1024 (La. 9/24/99), 744 So.2d 1274.
     
      
      . State v. Johnson, 97-1906, pp. 6-7 (La. 3/4/98), 709 So.2d 672, 676.
     
      
      . Id.
      
     
      
      . Id.
      
     
      
      . Dorthey, 623 So.2d at 1280 (citing State v. Scott, 593 So.2d 704, 710 (La.App. 4th Cir. 1991); State v. Lobato, 603 So.2d 739, 751 (La. 1992)).
     
      
      . Lobato, 603 So.2d at 751.
     
      
      . 14-1131 (La.App. 3 Cir. 3/4/15), 159 So.3d 1176.
     
      
      . Henry had allegedly pointed a gun at an acquaintance and told him to “give it up.” The acquaintance threw his cell phone at him and ran. In his defense, Henry suggested the incident was a prank, and he had no intent to rob the victim.
     
      
      . Henry, p. 10, 159 So.3d at 1183.
     
      
      . State v. Cook, 95-2784 (La. 5/31/96); 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).
     
      
      . See La. R.S. 14:2(B)(34) (defining an attempted armed robbery with a firearm as a "crime of violence”).
     
      
      . 623 So.2d 1276 (La. 1993).
     
      
      . See La. C.Cr.P. art,' 894,1 (B) (requiring consideration of the defendant's-cruelty to the victim, the risk of death or great bodily harm to more than one person created by, a defendant’s actions, the use of threats or actual violence during the commission of the offense, the use of violence to influence the criminal proceedings arising from the offense, the existence of a significant permanent injury to the victim, the defendant's use of a dangerous weapon, and the use of threatened use of physical force when committing an offense with a firearm when sentencing a defendant), See also Zeitoun, 2017-0366 at p. 9, 231 So.3d at 941 (analyzing whether the district court adequately applied the La. C.Cr.P, art. 894,1 sentencing factors when determining whether the defendant’s sentence was excessive).
     