State of Louisiana v. Jason D. Clayton

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

KA 10-1303

STATE OF LOUISIANA

VERSUS

JASON D. CLAYTON

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APPEAL FROM THE
TWELFTH JUDICIAL DISTRICT COURT
PARISH OF AVOYELLES, NO. 152185
HONORABLE WILLIAM BENNETT, DISTRICT JUDGE

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ELIZABETH A. PICKETT
JUDGE

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Court composed of Elizabeth A. Pickett, Billy Howard Ezell, and J. David Painter,
Judges.

AFFIRMED.

Charles A. Riddle III
District Attorney, Twelfth Judicial District Court
David Lafargue
Assistant District Attorney
P. O. Box 277
Marksville, LA 71351
(318) 253-6587
Counsel for Plaintiff/Appellee:
State of Louisiana

Carey J. Ellis III
Louisiana Appellate Project
P. O. Box 719
Rayville, LA 71269
(318) 728-2043
Counsel for Defendant/Appellant:
Jason D. Clayton

PICKETT, Judge.

The defendant appeals his sentence for armed robbery, asserting that it is

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

FACTS

Jason D. Clayton, the defendant, pled guilty to having committed armed

robbery of the Five Star Foods in Bunkie on June 27, 2009. When pleading guilty,

the defendant admitted that he and his co-defendant took $11,000 from a cash register

in the immediate control of a Five Star Foods cashier and that he had possession of

a .380 gun during the robbery. He stated that he understood the plea agreement

required him to testify against his co-defendant and to be sentenced to twenty-seven

years, without benefit of probation, parole, or suspension of sentence. He further

acknowledged that pursuant to the plea agreement, “no multi-bill” would be filed

against him. The trial court accepted the defendant’s guilty plea, then sentenced him

to twenty-seven years without benefit of probation, parole, or suspension of sentence.

The defendant filed two pro se Motions for Reconsideration of Sentence, which

were denied by the trial court without hearings. He then filed a pro se Motion to

Amend or Modify Sentence, which the trial court also denied without a hearing. The

defendant next filed a Motion to Appeal with the trial court. Thereafter, he filed a

Writ for Review with this court which was not considered because he had not

challenged his guilty plea by first seeking review with the trial court as required by

Uniform Rules–Court of Appeal, Rule 1-3.

The trial court held an evidentiary hearing with regard to the defendant’s

Motion to Appeal to determine whether he would represent himself on appeal or

whether he was entitled to court-appointed counsel. At the conclusion of the hearing,

the trial court ordered that counsel be appointed to represent the defendant on appeal.

Through counsel, the defendant urges one assignment of error: his sentence is

excessive and should be reduced.

DISCUSSION

Pursuant to La.Const. art. 1, § 19, everyone sentenced to imprisonment is

entitled to judicial review of his sentence; the right to judicial review can be waived

however. Louisiana Code of Criminal Procedure Article 881.2(A)(2) contains a

waiver of the right to judicial review; it states: “The defendant cannot appeal or seek

review of a sentence imposed in conformity with a plea agreement which was set

forth in the record at the time of the plea.” This provision applies to sentences,

sentence ceilings, sentence ranges, and sentence caps agreed to by defendants in plea

agreements. State v. Percy, 09-1319 (La.App. 3 Cir. 5/5/10), 36 So.3d 1115, writ

denied, 10-1253 (La. 12/17/10), 51 So.3d 17; State v. Roberts, 08-1026 (La.App. 3

Cir. 3/4/09), 4 So.3d 1011.

The defendant urges, however, that he is entitled to have his sentence reviewed

under the holding in State v. Foster, 42,212 (La.App. 2 Cir. 8/15/07), 962 So.2d 1214.

In Foster, after questioning the defendant concerning his guilty plea and his

agreement to a sentencing cap of thirty years, the trial court asked the defendant if he

understood that by pleading guilty he was waiving his right to appeal “except as to

the amount of the sentence.” Id. at 1218. The second circuit determined the

defendant had not waived his right to appeal his sentence for excessiveness because

he “did not contemplate that by pleading guilty he waived his right to appeal his

sentence for excessiveness.” Id. The court then reviewed the defendant’s sentence

for excessiveness. See also State v. Planco, 96-812 (La.App. 3 Cir. 3/26/97), 692

So.2d 666, where this court held that the defendant’s reservation of the right to appeal

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his sentence as a term of a plea agreement did not violate La.Code Crim.P. art.

881.2(A)(2)’s prohibition against appellate review of a sentence imposed pursuant to

a plea agreement.

In this matter, when the trial court questioned the defendant regarding his

understanding of the terms of his plea agreement and the voluntariness of his guilty

plea, it asked: “Do you understand that you have a right to apply to a higher court to

review your case by appeal or by writ of review?” The defendant answered: “Yes,

sir.” The trial court did not thereafter inform the defendant that by pleading guilty he

waived his right to have his plea and/or sentence reviewed by a higher court.

Considering the trial court’s explicit exception of the waiver of the right to appeal

during the defendant’s plea agreement, we find, as the court did in Foster, that the

defendant could not have contemplated that he waived his right to appeal his sentence

when he pleaded guilty, and we will review his assignment of error that his sentence

is excessive.

This court has set forth the following standard to be used when reviewing

excessive sentence claims:

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. 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.
The relevant question is whether the trial court abused its broad
sentencing discretion, not whether another sentence might have been
more appropriate.

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

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

(citations omitted).

In order to decide whether a sentence shocks the sense of justice or makes no

meaningful contribution to acceptable penal goals:

[A]n 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. State v. Smith, 99-0606 (La. 7/6/00), 766 So.2d 501.
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.” State v. Batiste, 594 So.2d 1 (La.App. 1 Cir.1991).
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.” State v. Cook, 95-2784 (La. 5/31/96), 674 So.2d 957, 958.

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.

In his Motions for Reconsideration of Sentence, the defendant asserted, “there

are several mitigating factors . . . that were never really presented to the court. The

truth is at the time of the offense(s) the petitioner was suffering under extreme stress

and mental anxiety.” He argues the facts in evidence do not establish that his

sentence was particularized to him or that the sentencing guidelines provided in

La.Code Crim.P. art. 894.1 were considered. Article 894.1 itemizes numerous

aggravating and mitigating circumstances a court should consider when imposing

sentence on a defendant. Therefore, the defendant seeks to have his sentence vacated,

and this matter remanded to the trial court for him to be resentenced in accordance

with Article 894.1.

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Louisiana Code Criminal Procedure Article 881.4(D) provides that an

“appellate court shall not set aside a sentence for excessiveness if the record supports

the sentence imposed.” In conformity with this provision, the fifth circuit has held

that because a trial court has much discretion in determining an appropriate sentence,

an appellate court should not set aside a sentence as excessive if the record supports

the sentence, even when the trial judge did not provide reasons for the sentence. State

v. Armstead, 07-741 (La.App. 5 Cir. 2/6/08), 980 So.2d 20, writ denied, 08-601 (La.

10/3/08), 992 So.2d 1010. The relevant question on appeal is whether the trial court

abused its discretion in imposing sentence. Id. Similarly, the fourth circuit has held

that where the trial court made no mention of La.Code Crim. P. art. 894.1 or its

provisions and, therefore, did not comply with the article, the sentence would not be

vacated if it was supported by the record. State v. McGee, 98-2116 (La.App. 4 Cir.

2/23/00), 757 So.2d 50, writ denied, 00-877 (La. 10/27/00), 772 So.2d 121.

The transcript of the Boykin and Sentencing Hearing during which the

defendant pled guilty and was sentenced shows that he was thirty years old and had

completed the ninth grade when he committed the armed robbery of the Five Star

Foods and when he was sentenced, that he can read and write English, and that he did

roofing work before his incarceration. The transcript further shows that the defendant

wielded a gun when he and his co-defendant robbed the Five Star Foods by taking

approximately $11,000 in cash and checks from a cash register in the immediate

control of the cashier. Additionally, the record shows the defendant was a second

felony offender.

The sentence for armed robbery is imprisonment at hard labor for not less than

ten years and for not more than ninety-nine years, without benefit of parole,

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probation, or suspension of sentence. La.R.S. 14:64(B). Accordingly, if the

defendant was a first-time felony offender, his twenty-seven-year sentence would

have been near the lower end of the sentencing range. He was a second felony

offender, however, who faced a habitual offender proceeding if he did not plead

guilty. At the time he committed the offense, the defendant, as a multiple offender,

was subject to a minimum sentence of forty-nine and one-half years and a maximum

sentence of 198 years. La.R.S. 15:529.1(A)(1).

In State v. Mason, 39,936, pp. 3-4 (La.App. 2 Cir. 8/17/05), 908 So.2d 1250,

1253, the second circuit made the following observations regarding armed robbery

which we find pertinent to our review:

Armed robbery is, by definition, a dangerous crime, which often
leads to death or serious injury. The victims of armed robbery are often
physically harmed or otherwise traumatized for life. On this record, we
can find no error in the imposition of this sentence, which most
assuredly does not shock the sense of justice, and is not a needless
infliction of pain. The penalty is admittedly harsh, though not unduly
so. The legislatively-mandated sentence is severe, precisely because the
crime of armed robbery is so reprehensible, even more so when
committed by one who is already a felon.

The defendant in Mason, also a second felony offender, was sentenced to the

mandatory forty-nine and one-half years. La.R.S. 14:64(B); La.R.S.

15:529.1(A)(1)(a).

For these reasons, we find that the defendant benefitted greatly by his plea

agreement and that for a second-felony offender who wielded a gun during the

commission of an armed robbery, his twenty-seven-year sentence was not excessive.

Accordingly, we find no merit in the defendant’s assignment of error and affirm his

sentence.

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ERRORS PATENT

Our review of the record for errors patent on the face of the record as provided

in La.Code Crim.P. art. 920 shows a discrepancy between the transcript of the

defendant’s guilty plea and sentencing proceeding and the sentencing minutes and the

Commitment. The transcript reflects that the defendant’s sentence was imposed

without the benefit of parole, probation, or suspension of sentence; however, that

restriction is not reflected in the sentencing minutes or the Commitment.

Accordingly, the trial court is instructed to correct the sentencing minutes and the

Commitment to reflect that the defendant’s sentence is to be served without benefit

of parole, probation, or suspension of sentence.

DISPOSITION

The defendant’s sentence is affirmed. Furthermore, the trial court is instructed

to correct the sentencing minutes and the Commitment to reflect the defendant’s

sentence is to be served without benefit of parole, probation, or suspension of

sentence.

AFFIRMED WITH INSTRUCTIONS.

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