State of Louisiana v. Michael David Gordon

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

11-898

STATE OF LOUISIANA

VERSUS

MICHAEL DAVID GORDON

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APPEAL FROM THE
TWELFTH JUDICIAL DISTRICT COURT
PARISH OF AVOYELLES, NO. 159939
HONORABLE WILLIAM BENNETT, DISTRICT JUDGE

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JOHN D. SAUNDERS
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders,
and J. David Painter, Judges.

AFFIRMED.

Thibodeaux, Chief Judge, dissents and assigns written reasons.

Hon. Charles A. Riddle, III
District Attorney, 12th JDC
P. O. Box 1200
Marksville, LA 71351
(318) 253-6587
COUNSEL FOR PLAINTIFF APPELLEE:
State of Louisiana

Annette Fuller Roach
Louisiana Appellate Project
P. O. Box 1747
Lake Charles, LA 70602-1747
(337) 436-2900
COUNSEL FOR DEFENDANT APPELLANT:
Michael David Gordon

Anthony Francis Salario
Asst. DA
P.O. Box 503
Marksville, LA 71351
(318) 240-7123
COUNSEL FOR PLAINTIFF APPELLEE:
State of Louisiana

Michael David Gordon
A.V.C. C 3 - D 2
1630 Prison Road
Cottonport,, LA 71327
COUNSEL FOR DEFENDANT APPELLANT:
Michael David Gordon

SAUNDERS, J.

Defendant was charged with armed robbery, a violation of La.R.S. 14:64, on

December 14, 2010. On March 14, 2011, Defendant pled guilty as charged to

armed robbery.1 A presentence investigation report was ordered by the trial court.

On April 12, 2011, he was sentenced to forty years at hard labor without the

benefit of parole, probation, or suspension of sentence. He made an oral objection

to the sentence following the sentencing hearing, which was “assigned error” by

the trial court.

Defendant has perfected a timely appeal wherein he challenges the

constitutionality of the sentence and asserts ineffective assistance of counsel for

failure to file a motion to reconsider the sentence setting forth grounds for the

reconsideration.

FACTS:

On September 21, 2010, Defendant, Michael David Gordon, entered

Cottonport Bank with a handgun and robbed the two tellers present in the bank of

one hundred thousand dollars.

ERRORS PATENT:

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

this court for errors patent on the face of the record. After reviewing the record,

we find that there are no errors patent.

1
At the Boykin hearing, the State told the trial court it was dismissing two second degree
kidnaping charges under a different docket number. However, there is no evidence in the record
that Defendant was charged with these offenses. The offense of armed robbery was committed
on September 21, 2010. The bill of information charging Defendant with the armed robbery was
filed on December 14, 2010, and he was arraigned on that charge only the same date.

DISCUSSION:

Because the three assignments of error pertain to the issue of whether the

sentence imposed was constitutionally excessive, we will address all three

assignments together. Defendant argues that the trial court failed to adequately

comply with the sentencing guidelines as set out in La.Code Crim.P. art. 894.1.

Moreover, he asserts that the forty-year sentence without the benefit of parole,

probation, or suspension of sentence is a constitutionally excessive sentence

considering the facts of his case. Finally, he argues that because defense counsel

failed to submit a written motion to reconsider the sentence raising the issues

above, he is serving a constitutionally excessive sentence.

Initially, as noted above, Defendant did not file a written motion to

reconsider the sentence as required by La.Code Crim.P. art. 881.1, setting forth

grounds for a review of the sentence by the trial court or on a subsequent appeal.

While immediately following the sentencing hearing, Defendant made an oral

objection to the sentence, he did not specify any grounds for the objection.

Louisiana Code of Criminal Procedure Article 881.1(E) provides:

Failure to make or file a motion to reconsider sentence or to
include a specific ground upon which a motion to reconsider sentence
may be based, including a claim of excessiveness, shall preclude the
state or the defendant for raising an objection to the sentence or from
urging any ground not raised in the motion on appeal or review.

Accordingly, Defendant is limited to a “bare bones” review only for constitutional

excessiveness of the sentence. State v. Barling, 00-1241, 00-1591 (La.App. 3 Cir.

1/31/01), 779 So.2d 1035, writ denied, 01-838 (La. 2/1/02), 808 So.2d 331. See

also State v. Price, 04-812 (La.App. 5 Cir. 3/1/05), 909 So.2d 612.

In State v. Thibodeaux, 05-680, p. 4 (La.App. 3 Cir. 12/30/05), 918 So.2d

1093, 1095, this court discussed excessive sentences, as follows:

2

A sentence is deemed excessive if the penalty is grossly
disproportionate to the severity of the crime as to shock one’s sense of
justice, or makes no measurable contribution to acceptable penal goals
and is, therefore, nothing more than a needless imposition of pain and
suffering. State v. Barling, 00-1241, 00-1591 (La.App. 3 Cir. 1/31/01),
779 So.2d 1035, writ denied, 01-838 (La. 2/1/02), 808 So.2d 331. A
trial court has vast discretion in the imposition of a sentence within
the statutory limits and such sentence shall not be set aside as
excessive absent manifest error. State v. Etienne, 99-192 (La.App. 3
Cir. 10/13/99), 746 So.2d 124. This court has determined the factors
to be considered in deciding whether a sentence is excessive.

The sentencing range for the offense of armed robbery is no less than ten

years and no more than ninety-nine years without the benefit of parole, probation,

or suspension of sentence. La.R.S. 14:64(B). Defendant was sentenced to forty

years, a little less than one half of the potential term he could have received.

The two women bank tellers chose not to testify at the sentencing hearing.

However, A.J. Roy, president of the Cottonport Bank, testified on their and the

bank’s behalf. He began his statement by relating the economic damage done to

the bank in that its clients expect the bank to be a secure place to do business. He

also described the emotional and psychological damage done to the two tellers. He

noted that both of the tellers expressed their belief that they were going to die that

day. He stated that one of the tellers has recurring nightmares of the robbery. He

stated that the bank had to relocate the two tellers because of the emotional trauma

caused by the robbery and that although both women are still encountering the

public, they are extremely wary of strangers who come into the bank. He stated

that the women acknowledged that Defendant repeatedly told them he was not

going to harm them and was apologetic as he forced them into a back room;

however, they have become fearful of strangers in their personal lives because of

being confronted with a loaded and cocked gun.

Defendant then spoke to the trial court. He expressed extreme remorse for

his actions. He apologized to the bank president, to the two women tellers and
3

their families for his bad acts, and to his own family who have suffered also. He

did not ask for leniency and said that he would be willing to take what sentence the

court imposed.

Following arguments by defense counsel and the State, the trial court gave a

lengthy recitation of the grounds upon which it was premising Defendant’s

sentence. The trial court noted specifically several cases where the defendants

convicted of armed robbery were first time felony offenders, including State v.

Smith, 01-2574 (La. 1/14/03), 839 So.2d 1, wherein the supreme court affirmed a

forty-year sentence imposed on a conviction for armed robbery. In Smith, while

affirming the forty year sentence, the supreme court stated:

A review of the second trial judge’s extensive reasons for
sentencing shows that he did a thorough job of reviewing the
aggravating and mitigating factors. He emphasized that the defendant
aimed a firearm at six persons in the store and jeopardized their lives.
The value of the items stolen during the robbery was approximately
$400,000.00 and the judge observed that this was a “significant
economic loss.” The items were recovered with the assistance of the
defendant’s co-defendant, Johnson.

Id. at 3-4.

The supreme court further noted that “[t]his sentence is within the thirty-five

to fifty-year range this Court has found acceptable for first offenders convicted of

armed robbery. State v. Thomas, 98-1144, p. 2 (La. 10/9/98), 719 So.2d 49, 50;

State v. Augustine, 55 So.2d 1331, 1332 (La.1990) and cases cited therein.” Id. at 4.

In brief, the State points to Price, 909 So.2d 612, to show that a forty-year

sentence for armed robbery is not unreasonably excessive. In that case, Price was

convicted of armed robbery with a firearm. He confessed to the crime on

videotape, but then at trial testified that he was not allowed counsel during the

police interrogation despite his several requests and that the police choked him

repeatedly until he confessed. While ultimately vacating the sentence because it

4

was indeterminate, the fifth circuit did not find a forty-year sentence excessive in

that case.

Finally, while discussing an allegedly excessive sentence imposed on a

conviction for armed robbery with a firearm, this court in State v. Clayton, 10-1303,

p. 6 (La.App. 3 Cir. 5/4/11), 64 So.3d 418, 423, writ denied, 11-1015 (La. 11/4/11),

___ So.3d ___, cited State v. Mason, 39,936, p. 3 (La.App. 2 Cir. 8/17/05), 908

So.2d 1250, 1253, stated as follows: “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.”

Defendant argues that in the alternative, defense counsel’s performance was

ineffective for failure to file a motion to reconsider the sentence. He argues

specifically that defense counsel’s performance was defective “by failing to object

to the imposed sentence based on both its excessiveness and the fact that the court

gave improper weight and/or mischaracterized certain factors in arriving at the

sentence.”

While discussing ineffective assistance of counsel for failure to file a motion

to reconsider the sentence, this court in State v. Blake, 03-1465, pp. 6-7 (La.App. 3

Cir. 5/5/04), 872 So.2d 602, 608-09 (footnote omitted), noted:

When presented with an ineffective assistance of counsel claim,
we have reasoned:

Failure to file a motion to reconsider the sentence
does not necessarily constitute ineffective assistance of
counsel. Nevertheless, the defendant may have a basis to
claim ineffective assistance of counsel when the [sic] he
can show a reasonable probability, but for defense
counsel’s error, his sentence would have been different.
Furthermore, in State v. Francis, 99-208 (La.App. 3 Cir.
10/6/99), 748 So.2d 484, writ denied, 00-0544
(La.11/13/00), 773 So.2d 156, this court stated:

A claim of ineffective assistance of
counsel is properly raised in an application
5

for post conviction relief. This allows the
trial judge an opportunity to order a full
evidentiary hearing on the matter. However,
where the record contains evidence
sufficient to decide the issue and the issue is
raised by an assignment of error on appeal,
it may be considered.

....

We further held that the accused cannot prove an allegation of
ineffectiveness without a specific showing of prejudice. Whether or
not a defendant received ineffective assistance of counsel is a two-part
inquiry. First, we must determine whether the trial court would have
reduced the Defendant’s sentences upon the filing of a “Motion to
Reconsider Sentence.” Second, we must determine whether the
sentences were excessive. (Footnotes omitted).

In the underlying case, we find that the record is sufficient to explore the

question of whether defense counsel’s performance was defective and whether

Defendant was prejudiced by the defective performance.

In brief, Defendant argues:

Counsel objected to the imposition of the forty-year sentence.
However, he did nothing to attempt to correct the trial court’s
classification of various factors, and he specifically did not object to
the judge imposing a sentence almost twice that which the judge
indicated his own research suggested was appropriate, because
Appellant was old enough to know better. Counsel also erred in
failing to file the statutorily required motion to reconsider sentence
specifically setting forth these errors to preserve them for appellate
review. In these regards, counsel’s performance was deficient. The
review of the excessiveness of the sentence and the court’s improper
weight given to factors that were already decided by the legislature at
arriving at the sentencing range for the crime have been discussed in
the previous assignments of error. For the reasons discussed therein,
it is submitted that Michael David Gordon was prejudiced by
counsel’s non-performance.

Defendant argues that the trial court failed to consider the mitigating

circumstances, such as the fact that he has no prior criminal history, that he was

extremely remorseful, and that the hardships in his life contributed to his bad

decision to rob the bank. Defendant argues that compared to other defendants in

6

similar circumstances, he received an unduly harsh sentence that makes no

meaningful contribution to acceptable penal goals.

Following Defendant’s statement, defense counsel cited to the trial court

several cases wherein the defendants, who had prior armed robberies or similar

offenses, were sentenced to the minimum sentence of ten years. The trial court

responded that these particular cases were not applicable in that they were plea

agreements. The current case was also resolved by a plea agreement. However, it

appears that what the trial court meant was that the lengths of sentences were a part

of the plea agreement between the defendants and the State; and the trial court

accepted the recommendations.

The trial court then recited its reasoning for imposing the sentence,

beginning with acknowledging all the letters received on Defendant’s behalf. The

trial court stated:

These letter[s] confirm that beginning in 2004 something in your life
begin to unravel. The death of your father, your mom was in the
hospital four time[s] in 2008. You lost your job, were injured and hurt
your back. Had business problems building homes and then the
crowning blow when your wife left and refused to negociate [sic] and
help you with your property problems. You filed bankruptcy and as a
result you lost your home and lost everything. Life got tuff [sic] for
Mike Gordan [sic], the good man Mike Gordan [sic]. As you
confirmed, you lost your job, kid’s jobs, your wife, your home, your
family property and you had no life insurance. You felt you were a
complete failure and you lost your will to live and I believe that
through [sic] what happened to you. You confirmed to me how
desperate that you got and the telling thing of course it’s telling into
your character and into your beliefs is you wanted to do yourself in.
You wanted to leave this life and then you realized that if you do
you’re leaving your family nothing because you were broke and no
property. Then you made the horrible decision. . . .

The trial court then recited the emotional and psychological injuries suffered

by the two bank tellers as portrayed by the bank’s president. The trial court

continued:

7

If I were to give you the maximum sentence being a first offender,
there’s no way in the world the Court of Appeals would let that stand.
They would say no that is the needless imposition because they never
done [sic] it on a first offender. I’ll give you examples, State versus
Perry 9[] 3d.251 out of the Third Circuit here, a twenty year old first
offender robbed a Sonic Drive-in and injured an[] employee and was
given twenty five years and that was said to be appropriate. State
versus Joseph 982 So.2d 310 again out of this circuit, Third Circuit. A
robbery occurred and person was seriously injured, that defendant was
given thirty years. In State versus Jefferson 920 So.2d 984 again a
first offender, using a gun but that person had no remorse. The court
considered the impact upon the defendant though and gave thirty
years and that was said to be appropriate. In State versus Jackson 904
So.2d 907 an eighteen year old first offender pointed a gun in the face
of an employee and left that victim terrified, she fell to the floor when
he left. Well that defendant had two convictions for armed robbery
and was given sixty years because it was two convictions. State versus
Singletary again out of the Third Circuit a non-published opinion
2010 WL 4325836 this individual was charged with armed robbery
with a firearm, attempted armed robbery with a firearm, theft under
$300.00, theft under $300.00 and conspiracy to commit armed
robbery. The defendant pled no contest, didn’t say he was guilty, he
said I’m not contesting the charge to count one and the DA dismissed
the other charges. He was given twenty five years for the armed
robbery plus five years for using a firearm for a total of thirty and that
was said to be appropriate. Again this defendant was a first offender,
24 years old first time felony offender. Then I found two bank robbery
cases, State versus Lewis 292 So.2d 702, armed robbery of three bank
employees, armed with a bb gun, the Court imposed three twenty year
sentences to run concurrent another twenty years total and the Court
said that was appropriate. State versus Square 433 So.2d 104 and [sic]
twenty two year old first time felony offender with no injuries to the
bank employees, he was given twenty five years for bank robbery.
And the last case I will mention is State versus Smith 839 So.2d, page
1, where the Supreme Court of Louisiana in 2003 stated thirty five to
fifty years is the acceptable range for first offenders with armed
robbery. Yet even with that 2003 case at hand the Court of Appeals
affirmed many cases with twenty and twenty five years for first time
felony offenders. So now, when I get to this point I have letters for
you and how good of a man you are except for this bad thing. I have
the impact upon the victims in the bank. I’ve now looked at prior law,
similar cases, so now I look in the law book and guidelines that I have
to follow to sentence. Under Article 894.1 of the Louisiana Code of
Criminal Procedure I do find that you must have correctional
treatment that can be provided by an institution and any lesser
sentence that I imposed today would deprecate the seriousness of your
offense and your sentence you’re not eligible for probation. But the
law gives me certain aggravating factors and mitigating factors to look
at. Aggravating factors, these are factors not in favor of Michael
Gordan [sic]. Number one, your actions constituted although not
intended, constituted deliberate cruelty of these victims, the two ladies.
8

Also aggravating factor, you received money for the commission of
your offense. Also an aggravating factor, you used threats of violence
in the commission of the offense, threats, in that, having a gun is
considered threats of violence. Also this is a significant permanent
loss physiologically [sic] to the victims. There was a severe economic
loss to the bank but I understand that loss has all been recovered. You
used a dangerous weapon which is considered an aggravating factor.
This is a major economic offense although the money was returned
and you used a firearm as stated before. So aggravating factors are all
against Michael Gordan [sic]. The mitigating factors are that the
longer the imprisonment upon you, the more hardship it would be on
many members of your family, which happens in every case. The
mitigating factor number two for you is that you had no prior record.
So, not many mitigating factors for something this serious.

A trial court has vast discretion when imposing a sentence, and the

reviewing court shall not set aside a sentence absent a showing that the trial court

abused its discretion when it imposed the sentence. Thibodeaux, 918 So.2d 1093.

In State v. Smith, 839 So.2d 1, discussed by the trial court above, the supreme

court noted that a thirty-five to fifty-year sentence for armed robbery with a

firearm was not excessive in cases where the defendant was a first time felony

offender. While pondering whether the trial court abused its discretion when it

imposed the forty-year sentence, the supreme court noted:

At the time of the commission of the offense, the defendant was on
probation under a suspended sentence of five years for a conviction of
“larceny from a house” in Oklahoma. He had prior arrests for
attempted rape and kidnapping in 1990 and robbery with a firearm in
1994. A stolen car was used in the attempt to flee the scene of the
crime. The defendant then drove his mother’s car in a dangerous, high
speed chase that was unsuccessful. During the chase, Johnson fired
two shots at the pursuers. The trial judge observed “you [Smith] were
a principal, and to that extent you share equally to the extent of this
robbery.” La. R.S. 14:24. The defendant showed no remorse. In
particular, the trial judge observed as follows:

Whether you [Smith] should receive less than he
[Johnson] is a factor for me to consider based upon your
involvement and his involvement, but it is not an
absolute factor there; because he receives a twenty year
sentence that you should receive less than he or more
than he. You must stand on your own feet as you are
today and receive your individual punishment

9

recognizing your involvement and recognizing your past
criminal conduct.

Id. at 4.

We find that the trial court adequately considered the aggravating and

mitigating factors as required by La.Code Crim.P. art. 894.1. Defendant has not

offered any new mitigating facts which should have been considered by the trial

court and which could have affected the length of the sentence. We also find that

the forty-year sentence is not unconstitutionally excessive. While the forty-year

sentence may seem harsh to some, it is within the sentencing range set out by the

legislators and is within the range of sentences the supreme court has deemed as

acceptable for a first time felony offender. Finally, we do not find that Defendant

was prejudiced due to ineffective assistance of counsel, since it is this court’s

belief that the trial court would not have reduced Defendant’s sentence upon the

filing of a motion to reconsider sentence.

The trial court did not abuse its considerable discretion when it sentenced

Defendant to forty years imprisonment for the offense of armed robbery. The

sentence is affirmed.

DECREE:

Defendant’s sentence is affirmed.

AFFIRMED.

10

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

11-898

STATE OF LOUISIANA

VERSUS

MICHAEL DAVID GORDON

THIBODEAUX, Chief Judge, dissenting.

The forty-year sentence is excessive under the circumstances of this

case, and Defendant received ineffective assistance of counsel during the

sentencing stage. The majority concludes that “[w]hile the forty-year sentence

may seem harsh to some, it is within the sentencing range set out by the legislators

and is within the range of sentences the supreme court has deemed as acceptable

for a first time felony offender.”

On both assertions, the majority is wrong. Certainly, the sentence is

within the sentencing range. That begs the question of whether it is

constitutionally permissible. If the sentence was outside the sentencing range, it

would be illegal. The fact that it is within the sentencing range does not ipso facto

clothe it with legality. Under this rationale, any sentence between ten and ninety-

nine years would be acceptable, and would eliminate the need for an appeal.

Further, the Louisiana Supreme Court has not deemed such a sentence acceptable

for a first time felony offender under the circumstances of this case, as the cases

relied upon by the majority are inapposite.

In all of the cases cited by the trial court and relied upon by the

majority, the defendants who were convicted of armed robbery were all technically

first felony offenders and received sentences of twenty to thirty years

imprisonment. However, in several of the cases there were aggravating factors not

present in the present case. In State v. Perry, 08-1304 (La.App. 3 Cir. 5/6/09), 9

So.3d 342, writ denied, 09-1955 (La. 6/25/10), 38 So.3d 352 and State v. Joseph,

07-1567 (La.App. 3 Cir. 4/30/08), 982 So.2d 310, there were significant injuries

inflicted on the victims. Here, there were no injuries. Furthermore, in both Perry

and Joseph, the defendants had criminal histories. Here, Defendant has no

criminal history.

In State v. Jefferson, 40,439, p. 5 (La.App. 2 Cir. 1/27/06), 920 So.2d

984, 987, the trial court noted there was no remorse, the defendant had a juvenile

criminal history, and had a “bad attitude.” Here, Defendant apologized to the

victims.

In State v. Jackson, 04-1388 (La.App. 5 Cir. 5/31/05), 904 So.2d 907,

writ denied, 05-1740 (La. 2/10/06), 942 So.2d 162, the sentences for two armed

robberies were sixty years each, to be served concurrently. However, the

defendant had been charged with nine counts of armed robbery and one count of

criminal conspiracy to commit armed robbery, had gone to trial on only two of the

armed robbery counts and the conspiracy count, and had been on a three day crime

spree when he was apprehended. Here, only one armed robbery occurred. In

Jackson, the fifth circuit noted that “[i]n cases similar to the present one, where the

defendant does not have a criminal history and the armed robbery did not involve

the discharge of a weapon or any physical injury to the victims, the sentencing

range is between 20-40 years.” Id. at 916.

In State v. Singletary, an unpublished opinion, 10-354 (La.App. 3 Cir.

11/03/10), 50 So.3d 989, writ denied, 10-2657 (La. 4/25/11), 62 So.3d 87, there

were several charges that were dismissed when the defendant pled guilty to armed

robbery and was sentenced to twenty-five years imprisonment, plus five years

because he used a firearm.

2

Finally, in State v. Lewis, 39,263 (La.App. 2 Cir. 1/26/05), 892 So.2d

702 and State v. Square, 433 So.2d 104 (La.1983), the sentences were twenty years

and twenty-five years, respectively. In the current case, the trial court, without

finding any of the additional aggravating circumstances in the above cases present

in the current case, sentenced Defendant to forty years imprisonment.

I recognize that a trial court has vast discretion when imposing a

sentence. I also recognize that in State v. Smith, 01-2574 (La. 1/14/03), 839 So.2d

1, the supreme court observed, in dictum, that a thirty-five to fifty year sentence

range was acceptable for a first time felony offender. Smith, however, relied on

State v. Thomas, 98-1144 (La. 10/9/98), 719 So.2d 49, which involved consecutive

sentences on armed robbery, aggravated escape, and possession of a firearm by a

convicted felon. The defendant’s action endangered deputies, court personnel, and

the public. Further, the defendant in Thomas fled with her husband and eluded

capture for eight days. Smith also relied on State v. Augustine, 555 So.2d 1331

(La.1990) which involved actual violence during the commission of an armed

robbery.

Considering that the trial court and the majority, in an effort to

support the imposition of the forty year sentence, cited cases that had lower

sentences but more aggravating circumstances, I find the sentence of forty years at

hard labor without the benefit of parole, probation, or suspension of sentence is a

needless infliction of pain and suffering compared to other cases in this jurisdiction

and other jurisdictions. Moreover, in State v. Clayton, 10-1303 (La.App. 3 Cir.

5/4/11), 64 So.3d 418, writ denied, 11-1015 (La. 11/4/11), 75 So.3d 923, wherein

this court affirmed a twenty-seven year sentence imposed on a defendant who

committed an armed robbery and who was a second felony offender, this court

commented on the reasoning the trial court in State v. Mason, 39,936, pp. 3-4

3

(La.App. 2 Cir. 8/17/05), 908 So.2d 1250, 1253 (emphasis added), gave for the

habitual offender minimum sentence of forty-nine and one half years, as follows:

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. (Emphasis added).

Considering the facts and circumstances of this case, defense

counsel’s failure to file a written motion to reconsider the sentence setting forth

specific grounds constituted defective performance. Defense counsel had thirty

days from the date of the sentencing in which to research the issue and prepare to

plead the case. La.Code Crim.P. art. 881.1.

In brief, Defendant argues:

In mitigation, the judge noted the hardship
imprisonment would cause to his family and a lack of a
prior record. Although previously commented upon, the
judge did not note in mitigation the emotional state
Michael Gordon was in at the time of the offense, the
remorse he has repeatedly shown for his actions and his
acceptance of responsibility.

The judge specifically commented “…although the
prior case law says twenty and twenty five years for first
time offenders those are first time eighteen, nineteen,
twenty, twenty five year old offenders not a forty six year
old man who had everthing and knew better…”.
Immediately following this comment, the judge imposed
upon Michael David Gordon a sentence of forty years
with the Department of Corrections without the benefit of
parole, probation, or suspension of sentence.

A review of the transcript indicates that the judge
considered Mr. Gordon’s age to be an aggravating factor,
deserving of a harsher sentence than a man twenty years
younger. Additionally, despite acknowledging several
factors which should have been considered as mitigating
factors during his comments on the record, when he

4

specifically listed the mitigating factors, he listed only
two-the hardship to the family (which he discounted as
being present in every case) and Mr. Gordon’s lack of a
prior criminal record. The judge did not consider as
mitigation, those factors set forth in article 894.1(B)(23),
(24), (27), (29), and (33). Most important is Mr.
Gordon’s repeated and extreme remorse for the crime.
He even apologized during the commission of the crime
which suggests he did not contemplate that his actions
would threaten serious harm. Furthermore, Mr. Gordon’s
mental state at the time of the crime was outlined in
detail by the judge but was given little or no weight in the
ultimate sentence. The judge acknowledged that the
bank had been made whole but, despite this, he found the
economic loss to the bank to be an aggravating factor.

Considering the above arguments regarding the trial court’s failure to

adequately apply aggravating and mitigating factors and the comparison of

sentences for similar crimes, I conclude there was a reasonable possibility that the

trial court would have reconsidered the sentence and reduced the sentence to be

commensurate with the circumstances of Defendant’s actions and the legislative

intent behind the punishment. The legislature created a sentencing range for armed

robbery of no less than ten years and no more than ninety-nine years—an eighty-

nine year spread. The vast spread was because there are multiple and varying

circumstances involved in the crime of armed robbery as noted above, and the trial

courts are granted much leeway in which to impose punishment.

For the reasons previously articulated, Defendant’s sentence makes no

meaningful contribution to acceptable penal goals and is, therefore, constitutionally

excessive in this case. For the foregoing reasons, I respectfully dissent.

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