State of Louisiana v. Delano Sutton

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

04-88

STATE OF LOUISIANA

VERSUS

DELANO SUTTON

**********

APPEAL FROM THE
THIRTIETH JUDICIAL DISTRICT COURT
PARISH OF VERNON, NO. 64495
HONORABLE JOHN C. FORD, DISTRICT JUDGE

**********

ULYSSES GENE THIBODEAUX
CHIEF JUDGE

**********

Court composed of Ulysses Gene Thibodeaux, C.J., Billie Colombaro Woodard, and
Marc T. Amy, Judges.

AFFIRMED.

Honorable William E. Tilley
District Attorney - 30th Judicial District Court
Terry Wayne Lambright
P. O. Box 1188
Leesville, LA 71446-1188
Telephone: (337) 239-2008
COUNSEL FOR:
Plaintiff/Appellee - State of Louisiana

G. Paul Marx
P. O. Box 82389
Lafayette, LA 70598-2389
Telephone: (337) 237-2537
COUNSEL FOR:
Defendant/Appellant - Delano Sutton

Delano Sutton
Vernon Parish Prison
P. O. Box 649
Leesville, LA 71496-0649

THIBODEAUX, Chief Judge.

The Defendant, Delano Sutton, pled guilty to attempted armed robbery

and first degree robbery and was sentenced to two, eight year concurrent prison terms.

He appeals on the basis of excessiveness and on the ground that, since a toy gun was

used in the attempted armed robbery, the critical element of a “dangerous weapon” is

not present.

For the following reasons, we affirm.

Excessiveness

The Defendant contends his sentences are excessive for a first offender.

For first degree robbery, the Defendant was sentenced to eight years at hard labor,

without benefit of probation, parole, or suspension of sentence. For attempted armed

robbery, he was sentenced to eight years at hard labor, to run concurrent with the other

sentence.

The trial court made the following comments at the sentencing hearing

held on December 23, 2003:

Very well. The Court considers the sentencing
guidelines under Article 894.1, the pre-sentence report and
its contents, the fact that this defendant has no prior
criminal history. The facts of this case are that this
defendant, along with others, drove up into a parking lot at
the Subway sandwich place on Fort Polk Entrance Road
and other folks were out there, apparently, having what
they called in the report here as a friendly boxing match. I
don’t know how you can do that in a parking lot but,
anyway, they were having some kind of a physical contest.
Mr. Sutton got out of the vehicle and wanted to bet on who
was going to win. Then, nobody would bet with him so he
went back to the car, leaned in, talked to his buddies a
minute and came back with a pistol and he demanded
money from the contestants standing around in the parking
lot. He got the money and that’s the basis of this charge.
Now, Mr. Sutton knew one of the victims, had worked with
this victim at a convenience store or McDonald’s or a
sandwich store somewhere before. So, the facts of this case

are different from the facts of the case of first degree
robbery I had before me a few minutes ago. It does not
appear that this was a planned robbery that was done by
design but, rather, one that was precipitated by
encouragement from his peers and, probably, exacerbated
by the consumption of alcohol or some other substance.
Nevertheless, the Court feels that there is an undue risk that
during a period of suspended sentence or probation the
defendant will commit another crime. A lesser sentence
will deprecate the seriousness of the defendant’s crime. The
Court can find no mitigating circumstances in this case.

The State argues the Defendant received a significant benefit from his

plea bargain. The Defendant was charged with armed robbery and two counts of

attempted armed robbery and would have faced a sentence of up to ninety-nine years,

and forty-nine and one-half years for each attempt. However, by pleading to the

reduced charge of first degree robbery, he reduced his exposure in half and reduced

his mandatory minimum exposure from ten years to three years. The sentencing range

for first degree robbery is imprisonment at hard labor for not less than three years nor

more than forty years. La.R.S. 14:64.1. The Defendant’s sentence of eight years is

in the low range of the potential sentence for first degree robbery. In addition, the

Defendant pled to only one count of attempted armed robbery and received a low

range eight-year sentence.

The twenty-four-year-old Defendant argues that he should have received

minimum sentences because he is a first offender and because he was drunk when he

took eleven dollars from the victim by using a toy gun. However, the facts recited at

Defendant’s plea indicate he was armed with a “weapon,” and a toy gun was never

mentioned.

The standard of review for Louisiana appellate courts
in determining whether a sentence levied upon a particular
defendant was excessive is the manifest-abuse-of-discretion
standard. State v. Guzman, 99-1753 (La. 5/16/00), 769
So.2d 1158. A trial judge has considerable latitude in
imposing sentences within the constraints provided by law.
State v. Thompson, 02-0333 (La. 4/9/03), 842 So.2d 330.

However, in State v. Marshall, 94-0461, p. 24 (La. 9/5/95),
660 So.2d 819, 829, the Louisiana Supreme Court held that
“[a] sentence may violate a defendant’s constitutional right
against excessive punishment even if it is within the
statutory limit,” citing State v. Sepulvado, 367 So.2d 762
(La.1979). Furthermore, under both United States and
Louisiana law, a sentence is unconstitutionally excessive if
it “(1) makes no measurable contribution to acceptable
goals of punishment and hence is nothing more than the
purposeless and needless imposition of pain and suffering;
or (2) is grossly out of proportion to the severity of the
crime.” Coker v. Georgia, 433 U.S. 584, 592, 97 S.Ct.
2861, 2866, 53 L.Ed.2d 982 (1977); State v. Handy,
96-2505, p. 1 (La. 1/6/97), 686 So.2d 36, 37, citing State v.
Dorthey, 623 So.2d 1276 (La.1993). The Louisiana
Supreme Court has provided a list of several factors that
appellate courts are to consider in ascertaining whether a
sentence, by its excessive duration or severity, is grossly
disproportionate to the underlying offense. State v. Baxley,
94-2982 (La. 5/22/95), 656 So.2d 973, citing State v.
Telsee, 425 So.2d 1251, 1253 (La.1983). The appellate
court’s analysis of the sentence is cumulative and centers
on an amalgam of relevant factors. Id. Among these
factors the supreme court notes, are “the nature of the
offense and the offender, a comparison of the punishment
with sentences imposed for similar crimes, the legislative
purpose behind the punishment, and a comparison of the
punishment provided for this crime in other jurisdictions.”
Baxley, 656 So.2d at 980, citing Telsee, 425 So.2d at
1253-54.

State v. Wilturner, 03-719, pp. 5-6 (La.App. 3 Cir. 11/5/03), 858 So.2d 743, 746.

Given the near-minimum sentences the Defendant received, we cannot

say the trial court abused its discretion when imposing the Defendant’s sentences nor

can we say that the sentences make no measurable contribution to acceptable penal

goals. Accordingly, the Defendant’s sentences are not excessive.

Lack of Factual Basis For Attempted Armed Robbery

The Defendant claims the trial court erred by accepting his guilty plea as

the factual basis for the plea did not include the dangerous weapon element of the

crime of attempted armed robbery. He claims he was armed only with a toy gun.

The transcript of the Defendant’s plea bargain stated:

Your Honor, on the date of March 16th, 2003, here
in Vernon Parish, Mr. Sutton did, in fact, have a weapon on
him and took some money from a person by the name of
Robert E. Fuller without the consent and authority and it
was done by the use of intimidation and or coercion, Your
Honor, and, likewise, did attempt to take some money from
a person by the name of Robert E. Fuller without the
consent and authority and it was done by the use of
intimidation and or coercion, Your Honor, and like, did
attempt to take some money from a person by the name of
Jessica Sumney, who also was with or in the same group as
Robert E. Fuller. Your Honor, these -- and he at the same
time he, likewise, had the same weapon. This did occur
here in -- both of them occurred here in Vernon Parish.

The Defendant acknowledges that the crime of first degree robbery does

not require that the offender be armed with a dangerous weapon. However, he states

the crime of attempted armed robbery does have such a requirement. The Defendant

states that the factual basis for both crimes is mutually exclusive and the record does

not indicate which crime the factual basis represented. The Defendant is incorrect as

the recited facts describe both the robbery of the victim, and also the attempted

robbery of a second victim.

Further, at the time of the Defendant’s plea or sentencing, there is no

mention that he was armed with a toy gun. The Defendant did not object when the

facts of the crime were recited, or when the offenses were explained. The Defendant

did not argue that his plea was not knowingly or voluntarily made, nor does he argue

that the State breached the plea bargain agreement. He does not claim lack of notice

as to the nature of the charges against him, nor does he claim that the plea is

constitutionally invalid for any other reason.

In State v. Collins, 95-1503 (La.App. 3 Cir. 5/8/96), 677 So.2d 500, writ

denied, 96-1794 (La. 8/27/97), 699 So.2d 45, this court, citing State v. Linear, 600

So.2d 113, 115 (La.App. 2 Cir.1992), stated:

When a guilty plea is otherwise voluntary, there is no
necessity to ascertain a factual basis for that plea unless the

accused protests his innocence or for some other reason the
trial court is put on notice that there is a need for such an
inquiry. In that event, due process requires a judicial
finding of a significant factual basis for the defendant’s
plea. [North Carolina v.] Alford, [400 U.S. 25, 91 S.Ct.
160 (1970)]; Banks v. McGougan, 717 F.2d 186 (5th Cir.
1983); Willett v. Georgia, 608 F.2d 538 (5th Cir. 1979);
State v. Powell, 584 So.2d 1252 (La.App. 2d Cir. 1991).

Id. at 505.

In this case, the Defendant entered a guilty plea, not a plea of no contest.

The trial court Boykinized the Defendant, informing him of his rights and of the

possible penalties. The Defendant knowingly and intelligently entered his plea of

guilty pursuant to the plea bargain. The Defendant did not contest the factual

statement given at the plea, nor is there anything else in the record that would have

placed the trial court on notice that a more detailed factual basis was required.

Therefore, this assignment of error is without merit.

CONCLUSION

The Defendant’s convictions and sentences are affirmed.

AFFIRMED.