State of Louisiana v. Gregory Lewis

NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

11-877

STATE OF LOUISIANA

VERSUS

GREGORY LEWIS

**********
APPEAL FROM THE
TENTH JUDICIAL DISTRICT COURT
PARISH OF NATCHITOCHES, DOCKET NO. C-16,930
HONORABLE DEE A. HAWTHORNE, PRESIDING
**********

SYLVIA R. COOKS
JUDGE
**********

Court composed of Sylvia R. Cooks, Elizabeth A. Pickett, and Phyllis M. Keaty,
Judges.

AFFIRMED.

Peggy J. Sullivan
Louisiana Appellate Project
P.O. Box 2806
Monroe, LA 71207-2806
(318) 387-6124
COUNSEL FOR DEFENDANT/APPELLANT:
Gregory Lewis

Billy Joe Harrington, Assistant District Attorney
Tenth Judicial District Court, Parish of Natchitoches
P.O. Box 838
Natchitoches, LA 71458-0838
(318) 357-2214
COUNSEL FOR APPELLEE:
State of Louisiana

COOKS, Judge.

The State alleged that the Defendant, Gregory Lewis, and two others, were

offered a ride in a vehicle operated by the victim, Marcus Robinson. At some

point, Defendant, armed with a gun, ordered the victim to withdraw money on two

different occasions from his ATM. The victim also alleged he was hit several

times with the gun, and Defendant took several items out of his vehicle.

The State charged Defendant with armed robbery, a violation of La. R.S.

14:64. Defendant entered a plea of guilty to the charge. There was no sentencing

agreement. A presentence investigation was ordered.

A sentencing hearing was held, after which Defendant was sentenced to

twenty-five years at hard labor, without the benefit of probation, parole, or

suspension of sentence. He was ordered to pay restitution to the victim in the

amount of $2,155.00. No objection to the sentence was made, and no motion to

reconsider sentence was filed.

On appeal, Defendant asserts his sentence is excessive. For the following

reasons, we affirm Defendant‟s sentence.

ANALYSIS

In his lone assignment of error, Defendant asserts his sentence is excessive,

arguing as mitigating factors Defendant‟s youthful age of twenty, as well as the

difficult childhood he endured at the hands of an abusive father.

We initially note Defendant did not object to his sentence nor file a motion

to reconsider sentence; consequently, he is relegated to a bare claim of

excessiveness. This court has set forth the following standard to be used in

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. 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).

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.

To decide whether a sentence shocks one‟s sense of justice or makes no

meaningful contribution to acceptable penal goals, this court has held:

[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. 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.

The penalty for armed robbery is ten to ninety-nine years at hard labor,

without benefit of parole, probation, or suspension of sentence. La.R.S. 14:64.

At sentencing, the trial judge set forth lengthy reasons for imposing the

twenty-five year sentence. The trial judge indicated he reviewed and evaluated the

PSI and other factors, including the sentencing guidelines set forth in La.Code

Crim.P. art. 894.1 in determining the sentence. The trial judge considered a letter

written by Defendant‟s mother, Sheba Lewis. In the letter, Ms. Lewis stated her

son suffered from mental problems since he was four years old. Also, Ms. Lewis

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asserted that Defendant watched his father mentally and physically abuse her for

over eight years. Ms. Lewis attached a petition signed by people of her community

expressing their willingness to help Defendant.

The trial judge stated She reviewed Defendant‟s juvenile record, which the

trial judge characterized as “lengthy,” and which included felony grade

adjudications.1 The trial judge considered that Defendant was twenty years old

and currently had charges pending for possession of marijuana, second offense,

and possession of contraband while in jail. Additionally, the trial court stated in

pertinent part:

The offender‟s conduct, the first consideration was the offender‟s
conduct during the commission of the offense manifested deliberate
cruelty to the victim. In the present case, the victim was held at
gunpoint for some time and forced to drive the perpetrators around
while they hit him and threatened to kill him. The offender used
threats of or actual violence in the commission of the offense. There
are clearly actual and threatened acts of violence in this case as the
victim was held at gunpoint. In addition the defendant threatened to
kill the victim. The offense resulting in a significant permanent injury
or significant economic loss to the victim or his family. In this case,
the victim has been affected emotionally by this crime as seen by his
statement. In addition he has financial losses. The District Attorney‟s
office has provided a list of restitution which totals $2155.00 dollars
of loss that this man has sustained. The offender used a dangerous
weapon in the commission of this crime. He used a gun, clearly a
dangerous weapon. The offender used a firearm or other dangerous
weapon while committing or attempting to commit an offense which
has an element the use, attempted use or threatened use of physical
force against the person or property of another in which by it‟s very
nature involves a substantial risk that physical force may be used in
the course of committing the crime. According to the facts of this
case that is clearly the case. The crime of Armed Robbery is one such
crime. Then they asked the Court to consider any other relevant
aggravating circumstances. This particular crime was pre-meditated
in that this group of people got together and decided to take this
action. The Court has reviewed the mitigating circumstances listed in
the guidelines under number 22, through 32 and finds that none of
them are applicable to the defendant. I will read and comment on

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The PSI set forth Defendant‟s juvenile record. In September 2005, he was adjudicated
on the charges of simple burglary and “ungovernable” and sentenced to two years custody,
suspended and placed on two years of probation. In 2006, he was adjudicated on the charges of
purse snatching and cruelty to the infirmed and sentenced to custody until his 18th birthday.
Also, in 2006, he was adjudicated on the charges of simple escape and theft less than $300.00.
He was sentenced to two years custody for the simple escape and six months custody on the theft
charge.
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each that are listed. The defendant‟s criminal conduct neither caused
nor threatened serious harm. This of course is not true. His behavior
did cause and threaten serious harm. Twenty-three, the defendant did
not contemplate that his criminal conduct would cause or threaten
serious harm. He had to have known that what he was doing caused
or threatened serious harm. He in fact threatened to kill the victim.
Twenty-four, the defendant acted under strong provocation. The
Court does not find that the defendant was provoked in any regard. In
fact the victim was doing a kindness by giving this group a ride to get
gas. He thought they‟d run out of gas. This defendant was in a
situation of his own making. Number twenty-five, there was
substantial grounds tending to excuse or justify the defendant‟s
criminal conduct through failing, though failing to establish a defense.
There‟s no justification for his behavior. However the Court, the
Court did listen and hear and did consider the fact that this child was
raised in a family with ongoing domestic violence where he witnesses
the abuse of his mother by this father. However he was adjudicated as
I stated earlier as a child and was provided with assistance and help to
no avail. He‟s had services and treatment and he was not responsive
to that. So this Court is, is in a difficult situation when we know that
we have children that have been raised in bad situations but yet when
they are adults commit crimes that are serous [sic] crimes. Please
think with me that this man that they held might have been killed, but
for the fact that he was able to escape. The Court cannot sentence him
to less time because of that. The Court is responsible to follow the
law. The Court is responsible to protect the public. While his friends
and community, I‟m sure love him, and I‟m sure that he can be a kind
and nice guy some time, but he commit crimes. And he commits
crimes that threaten the life of others. The Court has got to consider
these. Number twenty-six, the victim of the defendant‟s criminal
conduct induced or facilitated its commission. The victim did nothing
in this case but be a kind, friendly gentleman. Twenty-seven, the
defendant has compensated or will compensate the victim of his
criminal conduct for the damage or injury that he sustained. This has
not been done to my knowledge. Twenty-eight, the defendant has no
history of prior delinquency or criminal activity or has led a law
abiding life for a substantial period of time. This is clearly not so, the
Court had already addressed that. He has a long history of criminal
activity. Twenty-nine, the defendant‟s criminal conduct was a result
of circumstances unlikely to recur. Unfortunately I cannot say that
because they are likely to occur. If he gets with a group of guys again
the very same thing could happen again. So I cannot consider that a
mitigating circumstance. Number thirty, the defendant is particularly
likely to respond affirmatively to probationary treatment. Nor can the
Court say that because he has had probationary treatment and has not
responded. He has been placed on probation and it has been without
positive effect. Thirty-one, the imprisonment of the defendant would
entail excessive hardship to himself or his defendants. This is not
applicable because he is not eligible for a suspended sentence. Thirty-
two, the defendant has voluntarily participated in a pre-trial drug
testing program. Now today for the first time I heard uh, anything
about drugs. I do not know whether he has submitted to any kind of
pre-trial drug testing or drug abuse rehabilitation. There‟s been no

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evidence presented to the Court saying that he has. So consequently it
is not considered. And then they asked me to consider whether there
are any other relevant mitigating circumstances. The only other thing
that I considered I did consider and read the letter provided to me by
the mother and the signatures that she obtained from members of the
community. And as I said I know that Mr. Lewis is loved by his
family and his friends, and it is a great loss for his family and friends.
However what he has done is not acceptable. He is in fact a danger to
the public. His crime involved a gun that in itself is a danger. The
crime before the Court today is a violent crime. The Court is required
to follow the law.

In State v. Davis, 35,480 (La.App. 2 Cir. 1/23/02), 806 So.2d 929, a twenty-

year sentence was affirmed for first degree robbery. The seventeen-year-old

defendant, originally charged with armed robbery, entered the victim‟s store along

with two young companions and robbed the store while holding the victim down at

knife point. The defendant and his accomplices stole over $200.

In State v. Lewis, 08-1308 (La.App. 3 Cir. 4/1/09), 16 So.3d 1, the defendant

was sentenced to thirty years for the armed robbery of a store. The defendant

robbed a video store clerk at knife point and took the clerk‟s cell phone. In

affirming the sentence, this court noted the defendant‟s prior juvenile record and

extensive history of misdemeanor convictions. Also, the defendant dropped out of

school in tenth grade at the age of eighteen and began using marijuana until his

arrest. Lastly, as a result of his plea agreement, the State dismissed a charge of

second degree kidnapping, thereby reducing the defendant‟s sentencing exposure.

In State v. Joseph, 07-1567 (La.App. 3 Cir. 4/30/08), 982 So.2d 310, the

defendant was convicted of armed robbery and aggravated burglary. He was

sentenced to thirty years at hard labor on the armed robbery conviction and fifteen

years at hard labor on the aggravated burglary conviction. On appeal, the

defendant asserted “he was eighteen years old when the offenses were committed

and that he is a first felony offender. He argues that „[f]ailing to consider [his]

young age and personal history . . . violates the provisions of La.C.Cr.P. Art. 894.1

which requires the sentence to be particularized to the offender. In this case, an

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excessive sentence has resulted.‟” Id. at 314. This court upheld the sentence

holding in pertinent part:

At the defendant‟s original sentencing hearing, the trial court
remarked:

Though the defendant is a first offender, these are serious
charges where serious injuries to Ms. Green were had; a
broken nose with a blunt head and facial trauma,
lacerations to the top of her head and forehead, and
considerable mental anxiety and pain and suffering. And
the court notes that the following provisions of Article
894.1, the sentencing guidelines, are pertinent. That
would be A(2) and A(3). 894.1.A(2), that the defendant is
in need of correctional treatment; 894.1.A(3), that a
lesser sentence would deprecate the seriousness of the
defendant‟s crime; 894.1.B(5), that the offender
knowingly created a risk of death or great bodily harm to
more than one person. There were two victims of this
crime, Ms. Green and Ms. Dartez. 894.1.B(9), that the
offense resulted in significant permanent injury to the
victim. . . . Also, Article 894.1.B(10), that the offender
used a dangerous weapon in the commission of the
offense.

The trial court noted the same factors at the resentencing hearing.

“In State v. Smith, 01-2574, p. 6 (La.1/14/03), 839 So.2d 1, 4,
the Louisiana Supreme Court stated that sentences of 35 to 50 years
have been found to be acceptable for first offenders convicted of
armed robbery, citing State v. Augustine, 555 So.2d 1331, 1332
(La.1990), and State v. Thomas, 98-1144, p. 2 (La.10/9/98), 719 So.2d
49, 50.” State v. Alexander, 03-1291, p. 12 (La.App. 5 Cir. 3/30/04),
871 So.2d 483, 491, writ denied, 04-1063 (La.10/1/04), 883 So.2d
1007.

After reviewing the record, we find that the defendant‟s
sentences are not excessive. The defendant‟s thirty year sentence for
armed robbery, which is in the lower range approved for first felony
offenders convicted of that offense, was ordered to run concurrently
with his sentence for aggravated burglary. Moreover, the trial court
gave adequate consideration to the factors listed in La.Code Crim.P.
art. 894.1. Given the violent nature of the offenses and the trauma to
the victim, we find that the trial court did not abuse its discretion in
imposing the defendant‟s sentences.

Id. at 315-16 (footnotes omitted).

In the present case, we find the sentence imposed by the trial judge was

individualized to Defendant. Although the Defendant is youthful, his twenty-five

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year sentence for armed robbery is comparable to factual situations and sentences

imposed in the case law discussed above. Thus, the record does not indicate the

trial court abused its discretion by imposing the twenty-five year sentence.

Accordingly, Defendant‟s sentence is affirmed.

DECREE

For the reasons set forth above, Defendant‟s sentence is affirmed.

AFFIRMED.

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