State of Louisiana v. Tony E. Washington

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

11-490

STATE OF LOUISIANA

VERSUS

TONY E. WASHINGTON

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 8587-10
HONORABLE D. KENT SAVOIE, DISTRICT JUDGE

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MARC T. AMY
JUDGE

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Court composed of John D. Saunders, Jimmie C. Peters and Marc T. Amy, Judges.

CONVICTIONS AFFIRMED. SENTENCE FOR OBSTRUCTION OF
JUSTICE AFFIRMED. SENTENCE FOR SIMPLE BURGLARY OF AN
INHABITED DWELLING AMENDED AND AFFIRMED, AS AMENDED.

John F. DeRosier
District Attorney
Post Office Box 3206
Lake Charles, LA 70602-3206
(337) 437-3400
COUNSEL FOR APPELLEE:
State of Louisiana

Karen C. McLellan
Assistant District Attorney
Post Office Box 1467
Lake Charles, LA 70602-1467
(337) 494-0694
COUNSEL FOR PLAINTIFF APPELLEE:
State of Louisiana

Edward K. Bauman
Louisiana Appellate Project
Post Office Box 1641
Lake Charles, LA 70602-1641
(337) 491-0570
COUNSEL FOR DEFENDANT/APPELLANT:
Tony E. Washington

AMY, Judge.

The defendant was charged with simple burglary of an inhabited dwelling and

obstruction of justice. After several of his pre-trial motions were denied, he entered

an Alford plea1 to those charges. The trial court subsequently sentenced the defendant

to ten years at hard labor, without the benefit of probation, parole, or suspension of

sentence, for the simple burglary of an inhabited dwelling charge and two years at

hard labor on the obstruction of justice charge, to run concurrently. The defendant

appeals. For the following reasons, we amend his sentence for simple burglary of an

inhabited dwelling. In all other respects, his convictions and sentences are affirmed.

Factual and Procedural Background

The defendant, Tony E. Washington, was arrested in connection with the

burglary of a home in Sulphur, Louisiana. According to the factual recitation made by

the State at the defendant’s guilty plea hearing, the defendant and two accomplices,

Ronald Lazaro and Zachary England, were involved in burglarizing the home of

Marcus Wade. The defendant acted as the “getaway driver,” while his two

accomplices “actually went inside and did the burglary of the house and removed

numerous items[.]” Unbeknownst to the burglars, Mr. Wade had taken the day off

work in order to prepare for his son’s birthday. He testified at the sentencing hearing

that he arrived home to find two men in his home and that his house was “torn from

one end to the other.” When Mr. Wade went outside to call 9-1-1, the two

accomplices exited the house and one of them shot at Mr. Wade several times. Mr.

Wade testified that he started running, but he fell and hurt his ankle. According to

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An Alford, or “best interest,” plea derives from the United States Supreme Court case of North
Carolina v. Alford, 400 U.S. 25, 31; 91 S.Ct. 160, 164 (1970), wherein the Supreme Court held that
a defendant may plead guilty while maintaining his innocence if “the plea represents a voluntary and
intelligent choice among the alternative courses of action open to defendant[,] ... especially where
the defendant was represented by competent counsel whose advice was that the plea would be to the
defendant’s advantage.”

Mr. Wade, before he interrupted the burglary, he had seen the defendant’s car on the

side of the road with the hood up, as if the defendant had car trouble.

According to the factual recitation, the defendant picked up his two

accomplices and started to flee. The defendant testified at the sentencing hearing that,

while they were slowed down by construction, a police car passed him, put on his

lights and turned around. The State alleged that, once the police car “[got] behind

them, [the defendant started] to speed up to evade the unit and objects [were] being

thrown out of the vehicle as they are being chased.”

After the defendant’s arrest, he was charged with one count of simple burglary

of an inhabited dwelling, a violation of La.R.S. 14:62.2, and one count of obstruction

of justice, a violation of La.R.S. 14:130.1(A)(1). Among other motions, the

defendant’s attorney filed a motion to sever and a motion for production of

documents. Additionally, the defendant filed several pro se motions, including a

motion for speedy trial and a motion to suppress. At a hearing on these motions, the

trial court denied the motion to suppress and heard arguments on the motion to

suppress and the motion for discovery. After a recess, the defendant informed the trial

court that he wished to enter an Alford plea.

The trial court noted that, if the defendant had not decided to enter an Alford

plea, he would have conducted a hearing on the motion to sever and would have

required the State to disclose any evidence within fifteen days of trial. The defendant

then entered a plea of guilty, pursuant to North Carolina v. Alford, 400 U.S. 25.

Several witnesses, including the victim and the defendant, testified at the subsequent

sentencing hearing. After receiving all of the evidence and the arguments of the

parties, the trial court sentenced the defendant to ten years at hard labor, without the

benefit of parole, probation, or suspension of sentence for the simple burglary of an

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inhabited dwelling count and two years at hard labor, to run concurrently, on the

obstruction of justice count.

The defendant, through counsel, filed a motion for reconsideration, contending

that the defendant’s sentence was excessive. Pro se, he also filed a “Supplemental

Amendment for Additional Grounds to Motion to Reconsider Sentence.” Although a

hearing date was set, no hearing was held.

The defendant appealed, and this court remanded the case for disposition of the

pending motion to reconsider sentence. At a hearing, the motion was denied without

reasons. The defendant then re-lodged his appeal, asserting that:

(1) The Trial Court erred in imposing an illegal sentence.

(2) The Trial Court erred in that the sentence imposed upon Tony
Washington is constitutionally excessive and imposed without
sufficient consideration of Art. 894.1.

Discussion

Errors Patent

In accordance with La.Code Crim.P. art. 920, this court reviews all criminal

appeals for errors patent on the face of the record. Our review of the record reveals

one error patent, which is also the defendant’s first assignment of error and will be

discussed more fully therein.

Illegal Sentence

The defendant contends that the sentence imposed for the charge of simple

burglary of an inhabited dwelling is illegal. For the charge of simple burglary of an

inhabited dwelling, the trial court sentenced the defendant to ten years at hard labor,

without benefit of parole, probation, or suspension of sentence. The defendant

contends that only the first year of a term of imprisonment for simple burglary of an

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inhabited dwelling may be imposed without benefit of parole, probation, or

suspension of sentence. The State concedes that this was error.

The elements of, and punishment for, simple burglary of an inhabited dwelling

are delineated in La.R.S. 14:62.2, which states:

Simple burglary of an inhabited home is the unauthorized entry of
any inhabited dwelling, house, apartment or other structure used in whole
or in part as a home or place of abode by a person or persons with the
intent to commit a felony or any theft therein, other than as set forth in
Article 60.

Whoever commits the crime of simple burglary of an inhabited
dwelling shall be imprisoned at hard labor for not less than one year,
without benefit of parole, probation or suspension of sentence, nor more
than twelve years.

In State v. Boowell, 406 So.2d 213 (La.1981), the supreme court held that only

the first year of a sentence imposed for simple burglary of an inhabited dwelling may

be without the benefit of parole, probation, or suspension of sentence.

Thus, we amend the defendant’s sentence to reflect that only the first year of his

term of incarceration is without benefit of parole, probation, or suspension of

sentence. See State v. Jacobs, 10-292 (La.App. 3 Cir. 10/6/10), 48 So.3d 1218.

Excessiveness of Sentence

In his second assignment of error, the defendant contends that his sentence is

unconstitutionally excessive and that the trial court failed to adequately rely on the

sentencing factors delineated in La.Code Crim.P. art. 894.1.

Louisiana Code of Criminal Procedure Article 894.1(C) requires that the trial

court state for the record the considerations taken into account and the factual basis

for the sentence imposed. There is no requirement that the trial court refer to every

aggravating and mitigating factor listed in Article 894.1, as long as the record

indicates that the trial court adequately considered those guidelines in particularizing

the defendant’s sentence. State v. Maze, 09-1298 (La.App. 3 Cir. 5/5/10), 36 So.3d

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1072. If the trial court fails to adequately address the factors listed in La.Code

Crim.P. art. 894.1, there is no need for re-sentencing as long as an adequate factual

basis for the sentence is found in the record. State v. Williams, 02-707 (La.App. 3 Cir.

3/5/03), 839 So.2d 1095. We further note that the trial court may consider factors not

listed in Article 894.1, including whether a plea bargain results in a significant

reduction in the defendant’s potential sentencing exposure and criminal conduct that

did not result in a conviction. Id.

In this case, Mr. Wade, the victim, testified that this crime made him feel that

his safety was violated. He indicated that, when one of the defendant’s accomplices

started shooting at him, he fell and hurt his ankle. According to Mr. Wade, although

the ankle still hurt sometimes, he was more concerned about the resulting “emotional

scars.” He testified that his two children were in counseling as a result of the

burglary. Further, Mr. Wade testified that his family lost things in the burglary that

could not be replaced, including his wife’s engagement ring, her class ring and his

class ring.

The defendant testified at the sentencing hearing, stating that he was very sorry

about the situation and Mr. Wade’s pain. However, he denied involvement in the

burglary and stated that the accusations against him were “all lies.” The defendant

asserted that he did not deserve the maximum because he was a good person and his

family has also suffered. Two witnesses, including the defendant’s mother, testified

on his behalf. Additionally, several letters of support for the defendant were filed into

evidence, and the record indicates that the trial court read and considered those letters.

We note that the defendant’s prior criminal history was available to the trial

court. The trial court stated that it would not count any offenses that occurred before

1993, when the defendant was a juvenile. The defendant testified that, since his

conviction for distribution of cocaine in 1994, he had been “straight.” However, the
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record indicates that, after that conviction, the defendant pled guilty to DWI and

criminal mischief. The trial court acknowledged that those convictions were

misdemeanors, but expressed concern that the defendant acted like he had “never

done anything.” The trial court was also concerned that, although the charges were

rejected, the defendant had been charged with second-degree murder. Further, the

record indicates that the trial court took into consideration that the defendant

substantially reduced his sentencing exposure in exchange for his Alford plea, as the

State agreed not to charge the defendant as a habitual offender.

Thus, based on our review of the record, we find that the trial court adequately

considered the sentencing factors listed in La.Code Crim.P. art. 894.1.

A panel of this court, in Jacobs, 48 So.3d at 1225 (citations omitted), recently

reiterated the jurisprudence concerning excessive sentence claims, stating:

An excessive sentence is a penalty that is so grossly
disproportionate to the severity of the crime that it shocks our sense of
justice or it makes no measurable contribution to acceptable penal goals
and, therefore, is nothing more than a needless imposition of pain and
suffering. The trial court is given wide discretion in imposing a sentence,
and, absent a manifest abuse of that discretion, the reviewing court
should not deem as excessive a sentence imposed within statutory limits.
Still, a sentence that falls within the statutory limits may be excessive
under the particular circumstances of a given case. . . . The only relevant
question for the reviewing court to consider is not whether another
sentence would be more appropriate, but rather whether the trial court
abused its broad discretion in sentencing a defendant.

Further, “maximum sentences are reserved only for the most serious violations

and the worst offenders.” Id. (quoting State v. Farhood, 02-490 (La.App. 5 Cir.

3/25/03), 844 So.2d 217). In determining whether the trial court abused its discretion

in imposing a sentence, the reviewing court should also consider “the nature of the

crime,” “the nature and background of the offender,” and “the sentence imposed for

similar crimes by the same court and other courts.” State v. Lisotta, 98-648, p. 4

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(La.App. 5 Cir. 12/16/98), 726 So.2d 57, 58 (citing State v. Telsee, 425 So.2d 1251

(La.1983)), writ denied, 99-433 (La. 6/25/99), 745 So.2d 1183.

The sentencing range for simple burglary of an inhabited dwelling, a violation

of La.R.S. 14:62.2, is one to twelve years. The sentencing range for obstruction of

justice, in this case, is delineated in La.R.S. 14:130.1(B)(2) as a fine of not more than

fifty thousand dollars, not more than twenty years at hard labor, or both.

As previously discussed, the record reveals that that trial court adequately

considered aggravating and mitigating circumstances in fashioning the defendant’s

sentence. We note that the defendant’s sentence of ten years for the crime of simple

burglary of an inhabited dwelling is in the upper range. We further note that the

defendant’s sentence for obstruction of justice is on the low end of permissible

sentences.

With regard to the nature of the crime, the record indicates that one of the

defendant’s accomplices fired multiple shots at the victim, Mr. Wade. Mr. Wade was

more concerned with the resulting “emotional scars” from the incident than the

injuries he sustained to his ankle while fleeing from the defendant’s accomplices. Mr.

Wade also testified that both he and his children were still in counseling as a result of

the burglary.

With regard to the nature and background of the offender, we note that,

although the defendant testified that he had been “straight” since his conviction for

distribution of cocaine in 1994, the defendant had incurred further misdemeanor

convictions. Additionally, our review of similar cases indicates that reviewing courts

have upheld upper-range sentences for simple burglary of an inhabited dwelling for

offenders in similar circumstances to those of the defendant. See Jacobs, 48 So.3d

1218; State v. Baker, 08-898 (La.App. 3 Cir. 2/4/09), 3 So.3d 666; State v. Alsup, 42,

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636 (La.App. 2 Cir. 10/24/07), 968 So.2d 1152, writ denied, 07-2255 (La. 4/25/08),

978 So.2d 363, and State v. Johnson, 03-150 (La.App. 1 Cir. 9/26/03), 857 So.2d 586.

Therefore, we find that the defendant’s sentences are not unconstitutionally

excessive and that the trial court did not abuse its discretion in fashioning the

defendant’s sentences for simple burglary of an inhabited dwelling and obstruction of

justice.

This assignment of error is without merit.

DECREE

The defendant’s sentence for simple burglary of an inhabited dwelling is

amended to reflect that only the first year of his term of imprisonment is without

benefit of parole, probation, or suspension of sentence. In all other respects, the

defendant’s convictions and sentences are affirmed.

CONVICTIONS AFFIRMED. SENTENCE FOR OBSTRUCTION OF
JUSTICE AFFIRMED. SENTENCE FOR SIMPLE BURGLARY OF AN
INHABITED DWELLING AMENDED AND AFFIRMED, AS AMENDED.

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