State of Louisiana v. Robert Elijah Lamar Mincey AKA - Robert Bryant

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

09-155

STATE OF LOUISIANA

VERSUS

ROBERT ELIJAH LAMAR MINCEY, A/K/A ROBERT BRYANT

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 5085-08
HONORABLE ROBERT LANE WYATT, DISTRICT JUDGE

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ULYSSES GENE THIBODEAUX
CHIEF JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders, and
Jimmie C. Peters, Judges.

AFFIRMED AS AMENDED.

John Foster DeRosier
District Attorney - 14th Judicial District Court
Carla S. Sigler
Assistant District Attorney - 14th Judicial District Court
P. O. Box 3206
Lake Charles, LA 70602-3206
Telephone: (337) 437-3400
COUNSEL FOR:
Plaintiff/Appellee - State of Louisiana

Mary E. Roper
Louisiana Appellate Project
830 Main Street
Baton Rouge, LA 70802-5597
Telephone: (225) 387-6600
COUNSEL FOR:
Defendant/Appellant - Robert Elijah Lamar Mincey, a/k/a Robert
Bryant

THIBODEAUX, Chief Judge.

The Defendant, Robert Elijah Lamar Mincey, a//k/a Robert Bryant, was

adjudicated to be a second habitual offender1 and sentenced to serve fifty years at

hard labor, without benefit of parole, probation, or suspension of sentence on an

underlying manslaughter conviction.2 On appeal, he argues that his sentence is

excessive. We disagree and affirm.

LAW AND DISCUSSION

Pursuant to La.R.S. 14:31, the underlying manslaughter conviction

subjected Defendant to a term of up to forty years. Therefore, as a second habitual

offender, La.R.S. 15:529.1(A)(2)(a) subjected him to a term between twenty and

eighty years. Thus, his sentence falls in the middle of that range. This court has

observed:

La. Const. art. I, § 20 guarantees that, “[n]o law shall
subject any person to cruel or unusual punishment.” To
constitute an excessive sentence, the reviewing court must
find the penalty so grossly disproportionate to the severity
of the crime as to shock our sense of justice or that the
sentence makes no measurable contribution to acceptable
penal goals and is, therefore, nothing more than a needless
imposition of pain and suffering. State v. Campbell, 404
So.2d 1205 (La.1981). The trial court has wide discretion
in the imposition of sentence within the statutory limits and
such sentence shall not be set aside as excessive absent a
manifest abuse of discretion. State v. Etienne, 99-192
(La.App. 3 Cir. 10/13/99); 746 So.2d 124, writ denied,
00-0165 (La.6/30/00); 765 So.2d 1067. The relevant
question is whether the trial court abused its broad
sentencing discretion, not whether another sentence might
have been more appropriate. 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).

1
On April 19, 2004, he was convicted of possession of cocaine, a felony, in California.
2
That conviction is the subject of our opinion in State v. Robert Elijah Lamar Mincey, a/k/a
Robert Bryant, 08-1315 (La.App. 3 Cir. 6/__/09), ___ So.2d ___.

State v. Barling, 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035,

1042-43, writ denied, 01-838 (La. 2/1/02), 808 So.2d 331.

In State v. Lisotta, 98-648 (La.App. 5 Cir. 12/16/98),
726 So.2d 57, [58], writ denied, 99-0433 (La. 6/25/99), 745
So.2d 1183, our colleagues on the Fifth Circuit Court of
Appeal noted three factors the appellate court should
consider in reviewing a judge’s sentencing discretion.
They are:

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. Telsee, 425 So.2d 1251 (La.1983); State v.
Richmond, 97-1225 (La.App. 5 Cir. 3/25/98), 708 So.2d
1272.

State v. Baker, 06-1218, pp. 7-8 (La.App. 3 Cir. 4/18/07), 956 So.2d 83, 89, writ

denied, 07-320 (La. 11/9/07), 967 So.2d 496, and writ denied, 07-1116 (La. 12/7/07),

969 So.2d 626.

The trial court’s comments during sentencing touched on the first two

factors cited in Baker and Lisotta:

This Court determined there is a prior felony that it
will take into consideration for enhancement purposes.

Under the circumstances for regular Manslaughter,
under these circumstances this young man could have been
sentenced from zero to 40 years.

With the enhancement on the 529.1, the penalty then
escalates to no less than one half, which is 20 years to up
to twice, which is up to 80 years.

So that’s the territory that this Court is looking for
when it comes to sentencing regarding you, Robert.

As to the Dejean family, I can’t give you what you
want. What you want is your son back, I can’t give you

2

your son back. Ms. Bryant, I can’t give you your son back
either because he’s got to pay for what he’s done.

What’s really so tragic in this situation is that the
person who had the least to do with anything that caused
this situation to escalate into somebody being shot is the
one that got shot.

He had the least to do with what was going on,
walked out and took a bullet to the chest that killed him, by
the coroner’s estimations, instantly.

The aggravating circumstances this Court has heard
and recognizes is that under the circumstances from the
shooting that night there was a very real risk of harm to
others besides the victim. Under the close quarters that this
shooting took place, it’s remarkable that somebody else
wasn’t killed also.

Of course, the very fact that there was a handgun that
was used means a dangerous weapon was used to commit
this crime.

Other circumstances that this Court takes into
consideration is the situation regarding where this young
man, Mr. Mincey, almost immediately upon getting to Lake
Charles from California arms himself with a weapon and
for all intents and purposes, has set up shop to start selling
drugs.

Of course, this Court would be remiss in not taking
into consideration the things it must take into consideration
regarding the nonaggravating circumstances.

The previous felony which he is accused of having
committed was not a violent crime, it was a drug crime.
Again, recalling the circumstances from the trial, I
recognize that this was a situation that Mr. Mincey did not
apparently start himself, but allowed to escalate.

He did attempt to retreat at some point by going
outside. I think the evidence bears that out. But obviously
Mr. Mincey didn’t do ultimately what he could have done
to have kept this thing from happening, which was totally
retreat.

Taking all that into consideration this Court
sentences Robert Mincey to 50 years Department of
Corrections without benefit of parole, probation, or
suspension of sentence.

3

Regarding the third Baker/Lisotta factor, we note that in State v. Loston,

03-977 (La.App. 1 Cir. 2/23/04) 874 So.2d 197, 210-11, writ denied, 04-792 (La.

9/24/04), 882 So.2d 1167, the first circuit affirmed a forty-year sentence for a second

offender whose underlying offense was manslaughter, and whose criminal history

included violent offenses. In State v. Mims, 97-1500 (La.App. 4 Cir. 6/21/00), 769

So.2d 44, writ denied, 00-2255 (La. 6/22/01), 794 So.2d 781, and writ denied, 00-

2270 (La. 6/22/01), 794 So.2d 782, the fourth circuit approved a forty-year sentence

for a second felony offender, even though the evidence suggested a co-defendant may

have fired the fatal shots, and the defendant’s prior conviction was non-violent,

because the evidence also indicated the defendant instigated the situation that led to

the shooting.3 In State v. Walker, 99-2868 (La.App. 4 Cir. 10/18/00), 772 So.2d 218,

the fourth circuit upheld a maximum eighty-year sentence for a second habitual

offender whose underlying offense was manslaughter, in part because he callously

dumped his female victim’s nude body in a public street, and he had a history of

fighting women. That history was reflected mainly in arrests, rather than convictions.

Taken together, these cases indicate that Defendant’s mid-range sentence is not

outside the norm of Louisiana jurisprudence.

In light of the sentencing factors stated in Baker and Lisotta, the trial

court did not abuse its discretion by sentencing Defendant to fifty years of

imprisonment.

Defendant also argues the trial court erred by denying parole. The State

concedes this argument is correct, pursuant to La.R.S. 14:31, La.R.S. 15:529.1, and

La.R.S. 15:574.4. At the time of the offense, La.R.S. 14:31 and La.R.S. 15:529.1 did

not provide for denial of parole. Pursuant to La.R.S. 15:574.4, “parole eligibility is

3
However, the defendant’s sentence was vacated due to an error patent. Mims, 769 So.2d 44.

4

. . . determined by the Department of Corrections.” State ex rel. Porter v. State,

04-2080, p. 1 (La. 11/28/05), 916 So.2d 123. However, as the State suggests, this

defect can be easily remedied. We delete the portion of the sentencing language that

denies parole, and order that the minutes be amended to reflect the change. See, e.g.,

State v. Dupree 07-98 (La.App. 3 Cir. 5/30/07), 957 So.2d 966, State v. Roberts,

06-765, (La.App. 3 Cir. 1/17/07), 947 So.2d 208, writ denied, 07-362 (La. 10/5/07),

964 So.2d 938, State v. Poirrier, 04-825 (La.App. 3 Cir. 12/1/04); 888 So.2d 1123.

Regarding “good time” (diminution of sentence), the trial court stated:

Taking all that into consideration this Court
sentences Robert Mincey to 50 years Department of
Corrections without benefit of parole, probation, or
suspension of sentence.

Mr. Mincey, you have two years from the final
judgment and finality of this matter to apply for post-
conviction relief. It is not subject to diminution for good
behavior.

You have already given your date of birth.

The trial court’s language was merely advisory,4 and thus there is no action for this

court to take. This court has explained, “[a]ccording to the supreme court, ‘a trial

judge lacks authority under La.R.S. 15:571.3(C) to deny a defendant eligibility for

good time credits against his sentence, because that statute is “directed to the

Department of Corrections exclusively.”’ State v. Narcisse, 97-3161, p. 1 (La.

6/26/98), 714 So.2d 698, 699, citing State ex rel. Simmons v. Stalder, 93-1852 (La.

1/6/96), 666 So.2d 661.” State v. Benedict, 04-742, p. 3 (La.App. 3 Cir. 11/10/04),

887 So.2d 649, 652.5

The court was required to make such an advisement, pursuant to La.Code Crim.P. art.
4

894.1(D)(1).
5
The trial court had authority to deny diminution of sentence under La.Code Crim.P. art.
890.1(B), since the underlying offense, manslaughter, is a crime of violence. However, the court’s
language, cited above, does not represent an exercise of such authority.

5

For the reasons discussed, the denial of parole eligibility is deleted.

However, the sentence is not excessive.

CONCLUSION

We amend the sentence to delete the language denying Defendant

eligibility for parole, and direct the district court to record the amendment in the

minutes. In all other respects, the sentence is affirmed.

AFFIRMED AS AMENDED.

6