State of Louisiana v. Gregory Burnett Collier

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

13-189

STATE OF LOUISIANA

VERSUS

GREGORY BURNETT COLLIER

**********

APPEAL FROM THE
ELEVENTH JUDICIAL DISTRICT COURT
PARISH OF SABINE, NO. 68548
HONORABLE STEPHEN BRUCE BEASLEY, DISTRICT JUDGE

**********

SHANNON J. GREMILLION
JUDGE

**********

Court composed of Ulysses Gene Thibodeaux, Chief Judge, Elizabeth A. Pickett,
and Shannon J. Gremillion, Judges.

AFFIRMED.

Don M. Burkett
District Attorney, Eleventh Judicial District Court
Anna Garcie
Assistant District Attorney
P. O. Box 1557
Many, LA 71449
(318) 256-6246
COUNSEL FOR APPELLEE:
State of Louisiana

Paula C. Marx
Louisiana Appellate Project
P. O. Box 80006
Lafayette, LA 70598-0006
(337) 991-9757
COUNSEL FOR DEFENDANT/APPELLANT:
Gregory Burnett Collier

Gregory Burnett Collier
Louisiana State Penitentiary
Walnut 1, Bed 43
Angola, LA 70712
PRO SE

GREMILLION, Judge.

Very late one October evening, a man knocked on the door of elderly

victims, Rufus and Neva Kelly, in Sabine Parish. Mrs. Kelly was already in bed,

and Mr. Kelly opened the door. The man charged into the house with a gun drawn.

He swung the pistol at Mr. Kelly, who “caught the blow” on his hand. The

gunman shoved the pistol under Mr. Kelly’s chin and announced that a robbery

was in progress. Upon learning that another person was in the house, the robber

walked Mr. Kelly back to the bedroom where they found Mrs. Kelly waiting with a

small-caliber rifle. The gunman threatened to kill her husband if she did not

relinquish the weapon, so she complied. At that point, a second man entered the

house; he was masked. On the advice of the second man, the initial offender also

donned a mask. The two offenders then collected money in various locations

throughout the house. They also took Mrs. Kelly’s cellular telephone and Mr.

Kelly’s straw hat.

The offenders then duct-taped the victims’ hands behind their backs and

ordered them to sit in the living room. When the robbers left the house, they were

met by a getaway driver. Subsequently, police identified and apprehended the

offenders.

The State filed a bill of information charging Defendant, Gregory Burnett

Collier, and co-defendant, Dennis Thompson, with one count each of armed

robbery, a violation of La.R.S. 14:64, and home invasion, a violation of La.R.S.

14:62.8.1 The jury heard evidence and returned guilty verdicts of home invasion

and first degree robbery.

1
Although he was tried along with his co-defendant, this appeal addresses only Gregory
Collier.

The trial court sentenced Defendant to twenty-five years at hard labor for

home invasion and forty years at hard labor for first degree robbery. The sentences

are to be served consecutively without benefit of parole. Defendant filed a Motion

to Reconsider Sentence, which the trial court denied the next day without reasons

or a hearing.

Defendant appeals his sentences and his conviction for home invasion,

assigning four errors:

1. There was insufficient evidence to sustain a conviction of the
charge of Home Invasion.

2. The sentencing judge failed to articulate for the record sufficient
reasons to justify the individual sentences imposed or the
consecutive nature of the two.

3. The sentences are harsh and excessive to the degree that they are
cruel and unusual punishment considering the victims suffered no
injuries as a result of the crime; the property taken was of minor
value and the sentence imposed in this case is excessive.

4. The trial court erred in imposing an enhanced sentence based on
the age of the victims in the absence of that allegation in the bill of
information and a specific finding of that fact by the jury in this
case.

SUFFICIENCY OF THE EVIDENCE

In his first assignment of error, Defendant argues that the evidence at trial

was insufficient to support his conviction for home invasion. The analysis for such

a claim is settled and has been explained by this court:

When the issue of sufficiency of evidence is raised on appeal, the
critical inquiry of the reviewing court is whether, after viewing the
evidence in the light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime
proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307,
99 S.Ct. 2781, 61 L.Ed.2d 560, rehearing denied, 444 U.S. 890, 100
S.Ct. 195, 62 L.Ed.2d 126 (1979); State ex rel. Graffagnino v. King,
436 So.2d 559 (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982);
State v. Moody, 393 So.2d 1212 (La.1981). It is the role of the fact
finder to weigh the respective credibility of the witnesses, and

2

therefore, the appellate court should not second guess the credibility
determinations of the triers of fact beyond the sufficiency evaluations
under the Jackson standard of review. See State ex rel. Graffagnino,
436 So.2d 559 (citing State v. Richardson, 425 So.2d 1228
(La.1983)). In order for this Court to affirm a conviction, however,
the record must reflect that the state has satisfied its burden of proving
the elements of the crime beyond a reasonable doubt.

State v. Kennerson, 96-1518, p. 5 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367, 1371.

Home invasion is defined by La.R.S. 14:62.8, which states in pertinent part:

Home invasion is the unauthorized entering of any inhabited
dwelling, or other structure belonging to another and used in whole or
in part as a home or place of abode by a person, where a person is
present, with the intent to use force or violence upon the person of
another or to vandalize, deface, or damage the property of another.

Defendant argues that the State failed to prove the intent element of the

crime, as the evidence did not demonstrate that he intended to use force or violence

upon the Kellys. He notes that Mr. Kelly testified that Defendant swung at him but

thought Defendant was only trying to get him to move back. Defendant also

argues that he and his partner did not want to hurt the victims and did not hurt

them. He cites testimony by Alice Maxie, Thompson’s ex-girlfriend, regarding

Thompson’s statement to her that he and Defendant did not plan to hurt anyone.

While Defendant may not have initially intended to use force, the record

shows that he entered the Kelly home with a firearm and jammed it under Mr.

Kelly’s chin. When Mrs. Kelly mounted a defense, Defendant threatened to kill

her husband. Defendant duct-taped the victims’ hands behind their backs. These

actions demonstrate that during the robbery Defendant intended to use force or

violence against the victims. We find no merit to this assignment of error.

CONSECUTIVE SENTENCE

In his second assignment of error, Defendant argues that the trial court did

not state sufficient reasons to support the consecutive sentences.

3

Louisiana Code of Criminal Procedure Article 883 states:

If the defendant is convicted of two or more offenses based on
the same act or transaction, or constituting parts of a common scheme
or plan, the terms of imprisonment shall be served concurrently unless
the court expressly directs that some or all be served consecutively.
Other sentences of imprisonment shall be served consecutively unless
the court expressly directs that some or all of them be served
concurrently. In the case of the concurrent sentence, the judge shall
specify, and the court minutes shall reflect, the date from which the
sentences are to run concurrently.

At the sentencing hearing, the court gave the following reasons for the

sentences:

I note that you are now a fifth felony offender. I’ve noted in the PSI,
that before I sentence you, you may wish to make a statement and you
certainly may. I’ve noted the victim impact statement. I’ve noted
your criminal history and as I stated earlier, you’re a fifth felony
offender and you have a history regarding, among other things,
burglary and aggravated burglary although it was reduced later to
simple burglary. I’ve noted your social history and I looked at the
sentencing guidelines and I note the sentence that I’m going to hand
down, a lesser sentence would, in my opinion, deprecate the
seriousness of this crime. I also note the victims were elderly and
your atrocious criminal history and of course the impact that your
crime has had on the victims.

....

Regarding the home invasion and because at least, under the home
invasion statute 14:62.8B(2), whoever commits the crime of home
invasion when at the time of the unauthorized entering there is present
in the dwelling or structure any person who, in this case, is sixty-five
years or older, then there’s enhanced penalty. In that case, sir, I’m
going to sentence you to twenty-five years at hard labor without
parole. Regarding the first degree robbery, the sentence of the court,
sir, is forty years at hard labor without parole. These sentences are to
be consecutive with one another; credit for time served.

These sentences clearly arose from the same transaction. Thus, they would

have run concurrently but for the trial court’s express direction that they be served

consecutively. This court has explained that before a consecutive sentence may be

imposed the trial court “must articulate particular justification for such a sentence

4

beyond a mere articulation of the standard sentencing guidelines set forth in

La.C.Cr.P. art. 894.1.” State v. Hurst, 10-1204, p. 9 (La.App. 3 Cir. 4/13/11), 62

So.3d 327, 334, writ denied, 11-975 (La. 10/21/11), 73 So.3d 383 (citing State v.

Dempsey, 02-1867, p. 5 (La.App. 4 Cir. 4/2/03), 844 So.2d 1037, 1040). The

Hurst Court cited some of the factors that should be considered:

the defendant’s criminal history, the gravity or dangerousness of the
offense, the viciousness of the crimes, the harm done to the victims,
whether the defendant constitutes an unusual risk of danger to the
public, the defendant’s apparent disregard for the property of others,
the potential for the defendant’s rehabilitation, and whether the
defendant has received a benefit from a plea bargain.

Id.

We find that the trial court articulated particular justification for its

consecutive sentencing. It noted that Defendant had an “atrocious criminal

history” highlighted by five felony convictions. Furthermore, it noted that the

victims were elderly and that this crime had an impact on their lives. It also noted

that Defendant’s social history had been considered. Further, the trial court made

it clear that it had considered handing down a lesser sentence but determined that

doing so would deprecate the seriousness of the crime. Accordingly, we find the

trial court did not err in its imposition of consecutive sentences.

EXCESSIVE SENTENCE

In his third assignment of error, Defendant argues that his maximum

sentences are inappropriate because he is not the worst kind of offender for these

offenses. In regards to reviewing excessive sentences this court stated:

The relevant question on review of a sentence is
whether the trial court abused its broad sentencing
discretion and not whether the sentence imposed may
appear harsh or whether another sentence might be 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,

5

136 L.Ed.2d 539 (1996). To constitute an excessive
sentence, this court must find the penalty imposed is 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,
therefore, it is nothing more than needless imposition of
pain and suffering. State v. Campbell, 404 So.2d 1205
(La.1981). The trial court is given wide discretion in
imposing a sentence, and a sentence imposed within
statutory limits will not be deemed excessive in the
absence of manifest abuse of discretion. State v. Pyke,
95-919 (La.App. 3 Cir. 3/6/96); 670 So.2d 713.

State v. Dubroc, 99-730, p. 22 (La.App. 3 Cir. 12/15/99); 755 So.2d 297,

311.

The trial court must pay heed to the sentencing guidelines and state the

factors it considers in imposing sentences. La.Code Crim.P. art 894.1 (B) and (C).

“[M]aximum sentences are appropriately imposed only for the most serious

violation of the described offense and for the worst kind of offender.” State v.

McKnight, 98-1790, p.24 (La.App. 1 Cir. 6/25/99), 739 So.2d 343, 359, writ

denied, 99-2226 (La. 2/25/00), 755 So.2d 247.

As previously noted, Defendant has a lengthy criminal history involving

similar violent crimes. His use of force against the elderly victims qualifies

Defendant as the worst kind of offender. The trial court’s imposition of the

maximum sentence does not shock this court’s sense of justice. As such, we find

that the trial court did not abuse its discretion.

ENHANCED SENTENCE

In his final assignment of error, Defendant argues that his sentence for home

invasion violates Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000),

because the trial court relied upon the victims’, or at least one victim’s, advanced

age in formulating the sentence despite the age not being in the bill of information.

6

Although the State concedes the error, it argues that the error was harmless. We

agree.

The State must explicitly note in the bill of information that the enhanced

sentence provision is applicable to a defendant, and the trial court must include a

jury instruction reflecting the ages of the victim and defendant. State v. Ardoin,

10-1018 (La.App. 3 Cir. 3/9/11), 58 So.3d 1025, writ denied, 11-653 (La.

10/14/11), 74 So.3d 218. However, a harmless error analysis is applicable in

instances where these requirements are not met. Id.

Pursuant to Apprendi, “any fact that increases the penalty for a crime beyond

the prescribed statutory maximum must be submitted to a jury and proved beyond

a reasonable doubt.” Apprendi, 530 U.S. at 490, 120 S.Ct. at 2362-63.

In State v. Gibson, 09-486 (La.App. 5 Cir. 3/9/10), 38 So.3d 373, writ

denied, 10-802 (La. 11/5/10), 50 So.3d 814, the defendant received an enhanced

penalty because the victim was under thirteen years old. The defendant argued that

neither the jury’s verdict nor the jury’s instructions referenced the age

requirements that would subject him to the enhanced penalty. The trial court noted

that the State should have provided the enhanced sentence provision in the bill of

information and should have included a jury instruction reflecting the ages of the

victim and the defendant. However, the error was subject to a harmless error

analysis, and the fact that the victim’s date of birth was found in the bill of

information was sufficient despite the Apprendi violation.

Mr. Kelly was asked his age at trial and he responded seventy-four years.

Mrs. Kelly testified she was sixty-seven years old at the time of the crime. No

evidence was adduced which would have refuted this testimony. Applying these

points in light of Ardoin and Gibson, we find that the error is harmless.

7

DECREE

Defendant’s convictions and sentences are affirmed.

AFFIRMED.

8