State of Louisiana v. Eric Blue

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

09-1111

STATE OF LOUISIANA

VERSUS

ERIC BLUE

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APPEAL FROM THE
TWELFTH JUDICIAL DISTRICT COURT
PARISH OF AVOYELLES, NO. 141,049-A
HONORABLE MARK A. JEANSONNE, DISTRICT JUDGE

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JAMES T. GENOVESE
JUDGE

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Court composed of Sylvia R. Cooks, James T. Genovese, and David E. Chatelain,*
Judges.

SENTENCE AFFIRMED WITH INSTRUCTIONS.

James E. Beal
Louisiana Appellate Project
Post Office Box 307
Jonesboro, LA 71251-0307
(318) 259-2391
COUNSEL FOR DEFENDANT/APPELLANT:
Eric Blue

Charles A. Riddle, III
District Attorney – Twelfth Judicial District
Assistant District Attorney Norris J. Greenhouse
Post Office Box 444
Marksville, LA 71351
(318) 253-6394
COUNSEL FOR APPELLEE:
State of Louisiana
_____________________
*Honorable David E. Chatelain participated in this decision by appointment of the
Louisiana Supreme Court as Judge Pro Tempore.

GENOVESE, Judge.

In this criminal case, the Defendant, Eric Blue, was convicted of first degree

robbery and was sentenced to serve six years at hard labor. He appeals his six-year

sentence alleging excessive sentence. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On August 7, 2007, [the] Defendant entered a convenience store
owned by Ahmed Guzar in Bunkie, Louisiana. As indicated by Mr.
Guzar’s testimony, [the] Defendant placed a bag of chips on the counter
and told Mr. Guzar to open the register drawer. When Mr. Guzar did
not open the drawer, [the] Defendant pulled out a gun. Mr. Guzar asked
[the] Defendant if he was playing, and [the] Defendant stated that he
was not. Mr. Guzar then opened the register drawer, and [the]
Defendant took all of the money inside, which was about six or seven
hundred dollars.

State v. Blue, 08-756, p. 1 (La.App. 3 Cir. 12/10/08), 998 So.2d 1242, 1243.

On September 18, 2007, the Defendant was charged with armed robbery, a

violation of La.R.S. 14:64. On November 7, 2007, subsequent to trial by jury, he was

unanimously found guilty of the responsive verdict of first degree robbery, a violation

of La.R.S. 14:64.1. A Motion for Post Verdict Judgment of Acquittal or in the

alternative a Motion for New Trial was filed on January 15, 2008. Those motions

were heard and denied on January 17, 2008. On that same date, he was sentenced to

ten years at hard labor without benefit of parole, probation, or suspension of sentence.

On February 6, 2008, a Motion to Reconsider Sentence was filed. That hearing was

held on April 3, 2008, and the motion was denied. On appeal, this court affirmed the

Defendant’s conviction, but remanded the matter for resentencing, ruling that the trial

court “gave undue consideration to the rash of armed robberies in the area and its

apparent desire to deter similar crimes in the future . . . resulting in a sentence that

was not particularized to this Defendant.” Id. at 1247.

On February 3, 2009, the trial court once again sentenced the Defendant, but

reduced the ten-year sentence to six years at hard labor, without the benefit of parole,

probation, or suspension of sentence. On February 10, 2009, the Defendant filed a

Motion to Reconsider the sentence imposed. At a hearing on March 19, 2009, the

Motion to Reconsider was denied by the trial court. On March 30, 2009, a Motion

for Appeal was filed by the Defendant and granted by the trial court.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for

errors patent on the face of the record. After reviewing the record, we find that there

are no errors patent; however, the minutes of the sentencing proceeding are in need

of correction.

The transcript of the February 3, 2009 sentencing proceeding reflects that the

trial court imposed the Defendant’s six-year sentence for first degree robbery without

the benefit of parole, probation, or suspension of sentence; however, this is not

reflected in the minutes of the sentencing proceeding. “[I]t is well settled that when

the minutes and the transcript conflict, the transcript prevails.” State v. Wommack,

00-137, p. 4 (La.App. 3 Cir. 6/7/00), 770 So.2d 365, 369, writ denied, 00-2051 (La.

9/21/01), 797 So.2d 62. Thus, the trial court is ordered to amend the minutes of the

February 3, 2009 sentencing proceedings to accurately reflect the sentencing

transcript. See State v. Perry, 08-1304 (La.App. 3 Cir. 5/6/09), 9 So.3d 342.

ASSIGNMENT OF ERROR

The Defendant contends that the trial court failed to give sufficient

consideration to mitigating factors in fashioning its sentence in this case and that a

six-year sentence for this offender is excessive. The Defendant cites La.Code Crim.P.

art. 894.1 and the several factors set forth therein in support of his claims. The

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Defendant then asserts that it is clear from the record that the trial court’s primary

purpose in imposing the six-year sentence was to deter others from considering or

committing similar crimes. In support of his argument, the Defendant cites the

following portion of the trial court’s comments at sentencing:

I’m going to re-sentence you on this matter[,] and I want you to
understand the reasoning behind this. First of all Mr. Blue, there’s no
doubt in my mind that you are truly remorseful. I believed that the first
time[,] and I still believe that today. Right versus wrong, you know
what’s right, you intend to do what’s right from now on, I know that.
But there still must be a penalty, you still must pay a penalty to society.
Now what’s very important in that is precedent. I cannot send out
precedent to any young men in Bunkie, in Cheneyville, or anywhere in
the state that the first time they commit a robbery they get away with it,
that the first time they commit an armed robbery, first degree robbery,
or simple robbery[,] that there’s no jail penalty. I cannot do that because
there is, there has to be. For me to do that, for me to establish that
precedent would be for me to deprecate the seriousness of it and say it’s
okay if the person is really remorseful, I can’t do that. It’s okay if the
person has a strong family structure and just didn’t rely on it previously,
I can’t do that. It’s still a robbery, one of those variations, which is
extremely serious, these are violent crimes. And the precedent cannot
be established for anyone out there that I might take this shot at it
because if I’m not successful I still have a good shot of not going to
prison. They’d have to know that prison awaits.

....

Previously I had commented on the deterrent effect that I needed
to sentence you for. That was a factor, it was not a controlling factor[,]
but it was a factor. And the Third Circuit was cautious about that and
so I want to . . . although it was not a controlling factor, I want to defer
to and be cautious to [sic] you, you’re the person jailed, you’re the
person serving the penalty now. And so I defer in your favor on that
argument and give you a break on that argument. Although it was never
controlling, but still I’ll defer in your favor and knock four years off of
the original sentence.

The Defendant further asserts that the sentence imposed was excessive, as he is a first

offender and a candidate for probation.

In his Motion to Reconsider Sentence, the Defendant merely alleged that his

sentence was excessive. Therefore, we will not consider the Defendant’s claim that

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the trial court failed to sufficiently consider mitigating factors at sentencing. See

La.Code Crim.P. art. 881.1(E); Uniform Rules—Courts of Appeal, Rule 1–3; State

v. Hebert, 08-542 (La.App. 3 Cir. 11/5/08), 996 So.2d 688.

This court discussed the standard of review applicable to claims of

excessiveness in State v. Bailey, 07-130, p. 3 (La.App. 3 Cir. 10/3/07), 968 So.2d 247,

250, as follows:

A sentence which falls within the statutory limits
may be excessive under certain circumstances. To
constitute an excessive sentence, this Court must find that
the penalty is so grossly disproportionate to the severity of
the crime as to shock our sense of justice or that the
sentence makes no reasonable contribution to acceptable
penal goals and[,] therefore, is nothing more than the
needless imposition of pain and suffering. The trial judge
has broad discretion, and a reviewing court may not set
sentences aside absent a manifest abuse of discretion.

State v. Guzman, 99-1753, 99-1528, p. 15 (La.5/16/00), 769 So.2d 1158,
1167 (citations omitted).

In State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d
786, 789, writ denied, 03-562 (La.5/30/03), 845 So.2d 1061 (citations
omitted), this court discussed the factors it would consider in order to
determine whether a sentence shocks the sense of justice or makes no
meaningful contribution to acceptable penal goals:

In deciding whether a sentence is shocking or makes
no meaningful contribution to acceptable penal goals, an
appellate court may consider several factors including the
nature of the offense, the circumstances of the offender, the
legislative purpose behind the punishment and a
comparison of the sentences imposed for similar crimes.
While a comparison of sentences imposed for similar
crimes may provide some insight, “it is well settled that
sentences must be individualized to the particular offender
and to the particular offense committed.” Additionally, it
is within the purview of the trial court to particularize the
sentence because the trial judge “remains in the best
position to assess the aggravating and mitigating
circumstances presented by each case.”

The Defendant was convicted by a jury of the responsive verdict of first degree

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robbery, which is punishable by imprisonment “at hard labor for not less than three

years and for not more than forty years, without benefit of parole, probation[,] or

suspension of imposition or execution of sentence.” La.R.S. 14:64.1. The Defendant

was sentenced to serve six years with the Department of Corrections, without benefit

of parole, probation, or suspension of sentence.

In State v. Washington, 05-210 (La.App. 5 Cir. 10/12/05), 917 So.2d 488, the

court found that the sentence of eighteen years imposed for first degree robbery upon

a first offender who had a mental health condition was not excessive.

In State v. Sutton, 04-88 (La.App. 3 Cir. 7/7/04), 879 So.2d 419, writ denied,

04-2617 (La. 6/24/05), 904 So.2d 730, the defendant argued that his eight-year

sentence for first degree robbery was excessive, as he was a twenty-four-year-old first

offender who was drunk when he took eleven dollars from the victim while using a

toy gun. This court affirmed the defendant’s sentence in that case.

After considering the factors set forth in Bailey, 968 So.2d 247, and the cases

cited herein, we find that the Defendant’s sentence is not excessive. Accordingly, this

assignment of error lacks merit.

DISPOSITION

The Defendant’s sentence is affirmed. Additionally, the trial court is hereby

instructed to amend the minutes of sentencing to accurately reflect the sentencing

transcript.

SENTENCE AFFIRMED WITH INSTRUCTIONS.

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