State of Louisiana v. Tony Jackson, AKA Leoanrdo Jackson, AKA Leon Jackson, AKA Leonardo Marice Jackson, AKA Leonard Maurice Jackson, AKA Leonard Jackson, AKA Leonardo Jackson, AKA Leonardo M. Jackson, AKA Leonard M. Jackson

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

14-9

STATE OF LOUISIANA

VERSUS

TONY JACKSON AKA LEOANRDO JACKSON
AKA LEON JACKSON AKA LEONARDO MARICE JACKSON
AKA LEONARD MAURICE JACKSON AKA LEONARD JACKSON
AKA LEONARDO JACKSON AKA LEONARDO M. JACKSON
AKA LEONARD M. JACKSON

**********

APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. 117,895
HONORABLE GLENNON P. EVERETT, DISTRICT JUDGE

**********

PHYLLIS M. KEATY
JUDGE

**********

Court composed of Sylvia R. Cooks, J. David Painter, and Phyllis M. Keaty,
Judges.

AFFIRMED; REMANDED WITH INSTRUCTIONS.

Michael Harson
District Attorney
Alan P. Haney
Assistant District Attorney
Post Office Box 4308
Lafayette, Louisiana 70502
(337) 291-7009
Counsel for Appellee:
State of Louisiana

Edward K. Bauman
Louisiana Appellate Project
Post Office Box 1641
Lake Charles, Louisiana 70602
(337) 491-0570
Counsel For Defendant/Appellant:
Tony Jackson

KEATY, Judge.

Defendant, Tony Jackson, was convicted by a jury of armed robbery of the

Olive Garden restaurant located in Lafayette, Louisiana, in violation of La.R.S.

14:64. After a sentencing hearing, Defendant was sentenced to fifty years at hard

labor with fifteen years of the sentence to be served without the benefit of

probation, parole, or suspension of sentence. Defendant appeals his conviction and

sentence alleging that: (1) the jury erred in finding him guilty of committing the

armed robbery of the restaurant beyond a reasonable doubt and (2) the trial court

imposed an excessive sentence. For the following reasons, we affirm and remand

with instructions.

FACTS & PROCEDURAL HISTORY

On October 25, 2007, as the restaurant was closing for the evening, the

Olive Garden in Lafayette, Louisiana, was robbed by two armed gunmen wearing

ski masks and gloves. The gunmen moved the employees who remained at the

restaurant to the back office and demanded money. They took money from the

business‟ safe and the manager‟s wallet, totaling an estimated $854.00, and left the

restaurant. Shortly thereafter, Officer Ron Czajkowski of the Lafayette Police

Department spotted a vehicle with no lights on and sought to stop the vehicle.

When the officer attempted to make the stop, a car chase ensued. The two

occupants of the vehicle thereafter abandoned the automobile behind a local

business and escaped on foot.

On December 21, 2007, Defendant was charged by a bill of information with

one count of armed robbery and one count of possession of a firearm by a

convicted felon, a violation of La.R.S. 14:95.1. Alexis Almaguer was also charged

in the armed robbery as a co-defendant. Victoria Roberts, Almaguer‟s girlfriend,

was arrested for accessory after the fact to armed robbery. The charges against

Victoria were later dismissed. On December 27, 2007, Defendant entered a plea of

not guilty to the charge of armed robbery. Count two of the bill of information, the

charge of possession of a firearm by a felon, was severed for trial. Defendant‟s

trial by jury on the sole count of armed robbery began on January 31, 2012.

Following trial, the jury reached a unanimous verdict of guilty. On May 29, 2012,

Defendant was sentenced to fifty years at hard labor with fifteen years of the

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

sentence. Thereafter, the State, on its own motion, dismissed the second count

pertaining to the possession of a firearm by a felon.

On September 17, 2013, a Motion for an Out of Time Appeal was filed on

behalf of Defendant and granted by the trial court. For the reasons set forth herein,

we affirm Defendant‟s conviction and sentence. We remand to the trial court with

instructions to provide Defendant with written notice of the provisions of La.Code

Crim.P. art. 930.8.

ASSIGNMENTS OF ERROR

This court is charged with reviewing trial court proceedings for errors patent

on the face of the record. La.Code Crim.P. art. 920. In so doing, we note one such

error. The record reflects that the trial court provided Defendant with erroneous

information pertaining to the time period for filing for post-conviction relief. At

sentencing, Defendant was advised that he had two years from the date of

sentencing to apply for post-conviction remedies. However, in accordance with

La.Code Crim.P. art. 930.8, the prescriptive period for filing for post-conviction

relief is two years from the date upon which a defendant‟s conviction and sentence

become final as per La.Code Crim.P. arts. 914 or 922.

2

In accordance with La.Code Crim.P. art. 930.8, the trial court is ordered to

inform Defendant, by written notice, within ten days of the rendition of this

opinion, of the prescriptive period for the application for post-conviction relief.

Thereafter, the trial court shall file written proof in the record of these proceedings

that Defendant received such notice. State v. Roe, 05-116 (La.App. 3 Cir. 6/1/05),

903 So.2d 1265, writ denied, 05-1762 (La. 2/10/06), 924 So.2d 163.

I. Defendant’s First Assignment of Error

The trial court erred in finding Tony Jackson guilty of armed robbery
beyond a reasonable doubt.

In his first assignment of error, Defendant contends that the trial court erred

in finding him guilty of armed robbery as the evidence was insufficient to conclude

that he was guilty of the offense charged beyond a reasonable doubt. For the

reasons set forth herein, we find that Defendant‟s first assignment of error is

without merit.

This court has stated the following regarding the standard for reviewing a

claim of insufficient evidence. The standard of review in a sufficiency of the

evidence claim is “whether, viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found proof beyond a reasonable

doubt of each of the essential elements of the crime charged.” State v. Leger, 05-

11, p. 91 (La. 7/10/06), 936 So.2d 108, 170, cert. denied, 549 U.S. 1221, 127 S.Ct.

1279 (2007). The foregoing Jackson 1 standard of review is now legislatively

embodied in La.Code Crim.P. art. 821. It does not allow the appellate court “to

substitute its own appreciation of the evidence for that of the fact-finder.” State v.

Pigford, 05-477, p. 6 (La. 2/22/06), 922 So.2d 517, 521. The appellate court‟s

1
Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781 (1979).

3

function is not to assess the credibility of witnesses or reweigh the evidence. State

v. Smith, 94-3116 (La. 10/16/95), 661 So.2d 442.

It is well settled that the fact finder‟s role is to weigh the credibility of

witnesses. State v. Ryan, 07-504 (La.App. 3 Cir. 11/7/07), 969 So.2d 1268. An

appellate court should not second guess the credibility conclusions of the trier of

fact, but rather, should defer to the rational credibility and evidentiary

determinations of the jury. Id. The appellate court may impinge on the fact

finder‟s discretion and its role in determining the credibility of witnesses “only to

the extent necessary to guarantee the fundamental protection of due process of

law.” State v. Mussall, 523 So.2d 1305, 1310 (La.1988). As stated herein, upon

viewing evidence in the light most favorable to the prosecution, the question for

the appellate court is whether, on the evidence presented at trial, “„any rational trier

of fact could have found the essential elements of the crime beyond a reasonable

doubt.‟” State v. Strother, 09-2357, p. 10 (La. 10/22/10), 49 So.3d 372, 378

(quoting Jackson, 443 U.S. 307).

In those cases relying on circumstantial evidence, the fundamental principle

of review means that when a jury “reasonably rejects the hypothesis of innocence

presented by the defendant‟s own testimony, that hypothesis falls, and the

defendant is guilty unless there is another hypothesis which raises a reasonable

doubt.” State v. Captville, 448 So.2d 676, 680 (La.1984). In the present case,

Defendant avers that his co-defendant, Almaguer, lied about his participation in the

robbery to protect his stepbrother, Mario Teharis.

A review of the evidence considered by the jury reveals the testimony by

Defendant‟s co-defendant, Almaguer, Almaguer‟s girlfriend, Victoria, the general

manager and assistant manager of the Olive Garden restaurant, several members of

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the Lafayette Police Department as well as a DNA analyst with the Acadiana

Crime Lab who was accepted as an expert in DNA analysis.

The prosecution‟s main witness was Defendant‟s co-defendant, Almaguer.

Almaguer testified that on the day of the robbery, he and Defendant went to the

apartment of Almaguer‟s girlfriend, Victoria, after work. Almaguer stated that the

two men stayed for a couple of hours. Sometime thereafter, they decided to rob the

restaurant. Almaguer testified that the two men entered the restaurant wearing

masks and gloves. According to Almaguer, both men were armed with guns.

Almaguer stated that when they left Victoria‟s apartment, his gun was already in

the vehicle, but he did not know where Defendant‟s gun was located. He further

stated that the masks were already in the vehicle as he had previously purchased

them for Halloween.

After entering the restaurant, both men demanded money. The men took

money from the restaurant safe as well as the manager‟s wallet. Almaguer stated

that the two men quickly left the restaurant in Almaguer‟s automobile driving

towards the Acadiana Mall. They then stopped the vehicle and took off on foot

and headed in different directions. Almaguer positively identified Defendant as

the man who accompanied him into the Olive Garden restaurant and participated

with him in the robbery of that business. Almaguer was unequivocal in his

testimony that his stepbrother, Teharis, did not commit the robbery of the Olive

Garden restaurant with him. Under cross-examination, Almaguer admitted that

Teharis was at Victoria‟s apartment where he was visiting his girlfriend, Tess

Roberts, but that Teharis did not assist with the plans for the robbery. Almaguer

testified that Teharis and Tess were still at Victoria‟s apartment when he and

Defendant left to commit the crime.

5

The prosecution also presented the testimony of Michelle Stelly, the

restaurant‟s assistant manager. Stelly testified that two people wearing masks

entered the restaurant. She stated she thought, based on the voice of one of the

robbers, that he was black. She testified that the masked person told the manager,

Michael McQuade, to get down and crawl to the corner office. She stated that she

then saw another masked man, armed with a gun, wearing white tennis shoes with

some kind of blue mark on them. She also noticed that the other man was wearing

black “distressed” dress shoes. She further testified that she was unable to identify

either man because they both wore masks.

McQuade, the restaurant‟s general manager, testified that at about 10:40 p.m.

on the night of the robbery, two people wearing masks entered the restaurant.

McQuade stated that he was counting money with his assistant manager in the cash

booth area. He was sealing the last deposit, an estimated $855.00, when he heard

someone yell to give him the money. McQuade stated that the first robber put a

gun to his head and demanded all of the money. McQuade told the robber that the

rest of the money was located in his office. He indicated that the robber made him

crawl to his office where he opened the safe. Once the safe was opened, the first

robber threw the manager to the ground and started to go through the contents of

the safe. According to McQuade, the robbers took “a couple of things” along with

his wallet. According to the manager, the entire incident lasted about six to seven

minutes. After the robbers left the restaurant, McQuade called 911 to report the

crime.

Victoria, Almaguer‟s girlfriend, testified that at the time of the robbery, she

was living on Jeffrey Drive in Lafayette. She stated that both men were at her

apartment on the date in question. Contrary to Almaguer‟s testimony, she testified

6

that Teharis was not at her apartment that day. Victoria stated that the men arrived

at her apartment dressed in work clothes and stayed for about two or three hours.

She saw Almaguer the next morning around 5:00 a.m. Victoria also encountered

the police that same morning. The police had a search warrant and searched her

apartment. Victoria testified that about a month before the robbery, she, Teharis,

Almaguer, and Defendant all went out to eat at the Olive Garden restaurant. She

further stated there were no discussions that night of robbing the restaurant, and

further, she was not involved in the planning of the robbery.

On cross-examination, Victoria stated that the two men came to her home at

about 5:30 p.m. that afternoon and stayed for about an hour. Defendant left for the

store at approximately 7:30 p.m. Victoria stated that she did not see Defendant at

her apartment again. She stated that she did not let Defendant back into her

apartment that night. Victoria adamantly stated that Teharis was not at her

apartment on the night of the robbery. She indicated that she would be surprised to

know that Defendant had secreted himself in her bathroom closet in possession of

$854.00.

During the course of the trial, several Lafayette Police Officers testified on

behalf of the prosecution. Officer Czajkowski testified that he was on patrol on the

night of the robbery. He received a dispatch regarding the robbery, and, on his

way to the restaurant, he observed a vehicle approaching him without its headlights

on. He began following the vehicle whereupon he observed two men exit the

vehicle and run into some woods nearby. Officer Czajkowski stayed with their

vehicle, and the suspects were not apprehended. Officer Czajkowski described the

suspects as two black males. When questioned if he observed any items in the

vehicle, Officer Czajkowski testified he saw a money or bank bag on the back seat.

7

Officer Terrance Olivier indicated that he was the first officer at the scene of

the robbery and that the manager‟s wallet was recovered from the vehicle

abandoned by the two suspects after they fled on foot. Detective Judith Estorge

testified that she obtained a search warrant for the premises of Victoria‟s apartment

located on Jeffrey Drive. Pursuant to the search of the premises, Detective Estorge

confiscated $854.00 in cash, a pair of size ten black shoes, a pair of white tennis

shoes, two pairs of blue jeans, a pair of gloves, a black sweatshirt, one box of forty

caliber bullets, and one box of twenty-two caliber bullets. Detective Craig Mouton

also collected evidence from the vehicle as well as DNA samples from Defendant

and Almaguer. From the vehicle, Detective Mouton recovered two prescription

bottles belonging to Almaguer, black gloves, yellow gloves, and two black ski

masks. Detective Mouton testified that several items of evidence were sent to the

Acadiana Crime Lab for processing for DNA. Detective Mouton also testified that

shoes discovered during the search matched the description of the shoes worn by

the robbers as reported by Stelly. While testifying, Detective Mouton identified

Defendant as one of the persons from whom he took a reference swab for DNA

testing.

Sergeant Blair Dore of the Lafayette Police Department testified that he

searched the apartment on Jeffrey Drive pursuant to a search warrant on

October 25, 2007. He testified that he located a box under the lavatory with money

in it and took some DNA evidence and photographs. He further testified that he

located a person hiding on the top shelf of a bathroom closet. He identified

Defendant as that person. Additionally, Officer Beau Guidry, as he searched the

apartment, discovered a Glock handgun hidden in a box of cereal.

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The jury also heard the testimony of Stephanie Buford, Almaguer‟s mother.

She testified that she owns a green Infiniti automobile and that her son had use of it.

She testified that she did not see Teharis on the evening of October 25, 2007, but

that Teharis had slept at her home the night before. There was a conflict in the

testimony between Almaguer and his mother. Almaguer testified that Teharis was

with him the night of the robbery. Buford insisted that Teharis was at her house

that night.

The State‟s final witness was DNA analysis expert, Carolyn Booker, an

employee of the Acadiana Crime Lab. Booker tested eighteen items in connection

with this case. Booker tested a black glove found on the floorboard of the vehicle

as well as a yellow glove confiscated from the passenger side of the Infiniti.

Booker concluded with “reasonable scientific certainty” that Defendant was the

source of the DNA found on these gloves. On a mask found on the front

floorboard of the vehicle, Booker discovered a mixture of DNA from three people.

Additionally, Booker tested DNA found on the mask found on the back passenger

side of the automobile as well as the Glock firearm. Her testimony reflects that she

could not exclude either Almaguer or Defendant as contributors to the DNA found

on those items.

Defendant contends that Almaguer is identifying him as his co-defendant to

protect his stepbrother, Teharis. After examining Teharis‟s profile, DNA expert

Booker explained that all three men could not be excluded as contributors to the

mask found on the passenger side of the vehicle. Although Booker could not tell

the jury when each man deposited his DNA on the mask, she explained that if

more than one person put the mask on, she would be able to detect more than one

person‟s DNA. However, Booker clearly testified that the DNA found on the left

9

black glove with the red lining and on the left yellow glove was “the DNA from

one single person and it matched the DNA from Tony Jackson.”

The defense called Almaguer on cross-examination, and he again testified,

contrary to his mother, that Teharis was at Victoria‟s apartment on the day of the

robbery. He denied that he had ever seen Teharis driving the green Infiniti.

Defendant presented his own DNA expert, Gina Pineda. She reviewed the

DNA analysis conducted by the Acadiana Crime Lab. She testified that she

reviewed the lab‟s results, interpreted those results, and made her own conclusions.

She then compared Teharis‟s reference profile with not only the masks and gloves

but also the steering wheel. She concluded that Teharis came into contact with the

vehicle‟s steering wheel, but just as the State‟s expert, Booker, she could not tell

when Teharis came into contact with the steering wheel or how his DNA got there.

Pineda did confirm that the DNA testing performed by the Acadiana Crime Lab

was standard and usual in its methods.

Defendant contends that no rational trier of fact could have found him guilty

of the crime charged of armed robbery. A review of the testimony received at trial

viewed in a light most favorable to the prosecution clearly supports the finding of

the jury.

It is well settled that “[a]s a general matter, when the key issue is the

defendant‟s identity as the perpetrator, rather than whether the crime was

committed, the state is required to negate any reasonable probability of

misidentification.” State v. Neal, 00-674, p. 11 (La. 6/29/01), 796 So.2d 649, 658,

cert. denied, 535 U.S. 940, 122 S.Ct. 1323 (2002). It is also well settled that a

witness‟s testimony alone is sufficient to support a verdict as long as that testimony

was believed by the trier of fact and that the testimony does not contain internal

10

contradictions or irreconcilable conflicts with physical evidence. State v. Dorsey,

10-216 (La. 9/7/11), 74 So.3d 603, cert. denied, __U.S.__, 132 S.Ct. 1859 (2012).

In Dorsey, 74 So.3d at 634 (citations omitted), our supreme court concluded that,

A victim‟s or witness‟s testimony alone is usually sufficient to support
the verdict, as appellate courts will not second-guess the credibility
determinations of the fact finder beyond the constitutional standard of
sufficiency. In the absence of internal contradiction or irreconcilable
conflict with the physical evidence, one witness‟s testimony, if
believed by the fact finder, is sufficient support for a requisite factual
conclusion.

The record is not devoid of contradictory testimony. Almaguer testified that

Teharis was at Victoria‟s apartment on the night of the robbery. Almaguer‟s

mother testified that Teharis was at her home. However, as explained in State v.

Bender, 598 So.2d 629, 636 (La.App. 3 Cir.), writ denied, 605 So.2d 1125

(La.1992):

When a witness is impeached, this simply means the jury, as the trier
of fact, was presented with evidence which it could consider and
weigh in determining the credibility, or believability, of a witness.
Simply because the witness may have been impeached by prior
inconsistent statements does not mean that the jury was prohibited
from believing anything said by the witness. The inconsistencies in
the witness‟s statements are one of any number of factors the jury
weighs in determining whether or not to believe a witness‟s trial
testimony.

Co-defendant Almaguer‟s testimony alone was sufficient to convict Defendant of

armed robbery.

At the outset it should be noted that Defendant was unequivocally identified

by his co-defendant, Almaguer, as the person who perpetrated the crime of armed

robbery of the Olive Garden restaurant on October 25, 2007. Almaguer‟s

girlfriend placed the two men together at her apartment the night of the robbery.

Almaguer‟s testimony was corroborated by the DNA evidence connecting

Defendant to the vehicle, masks, and gloves found by the police in the vehicle and

11

in the apartment of Almaguer‟s girlfriend. Clothing worn by the robbers, as

described by eyewitnesses, was found at the girlfriend‟s apartment by police

during their search of the premises. The State‟s DNA expert testified that DNA

from Defendant was present on two of the gloves. Perhaps, most compelling is the

discovery of Defendant hiding in Victoria‟s bathroom behind a blanket and a pack

of toilet tissue in close proximity to a sum of cash within a dollar or two of the

amount of money taken in the robbery.

The jury heard the testimony of Almaguer that Teharis was at Victoria‟s

apartment the night of the robbery as well as Victoria‟s testimony that she did not

see Teharis that night. Almaguer‟s mother told the jury that Teharis was at her

house the night of the crime. The jury considered Defendant‟s hypothesis of

innocence contending that Teharis was Almaguer‟s criminal partner that night.

The jury rejected Defendant‟s theory of the crime. A reviewing court errs by

substituting its appreciation of the evidence and credibility of witnesses for that of

the fact finder and thereby overturning a verdict on the basis of an exculpatory

hypothesis of innocence presented to, and rationally rejected by, the jury. State v.

Calloway, 07-2306 (La. 1/21/09), 1 So.3d 417. With respect to a jury‟s rejection

of a hypothesis of innocence, our supreme court in Calloway, 1 So.3d at 422

(citations omitted), concluded:

[W]e have repeatedly cautioned that due process, rational fact finder
test of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed. 2d
560 (1079), does not permit a reviewing court to substitute its own
appreciation of the evidence for that of the fact finder or to second
guess the credibility determinations of the fact finder necessary to
render an honest verdict. A reviewing court may intrude on the
plenary discretion of the fact finder “only to the extent necessary to
guarantee the fundamental protection of due process of law.” Thus, as
Judge Pettigrew emphasized, when a jury reasonably and rationally
rejects the exculpatory hypothesis of innocence offered by a
defendant‟s own testimony, an appellate court‟s task in reviewing the

12

sufficiency of the evidence under the Due Process Clause is at an end
unless an alternative hypothesis “is sufficiently reasonable that a
rational juror could not „have found proof of guilt beyond a
reasonable doubt.‟”

The jury‟s decision to reject Defendant‟s hypothesis regarding the

commission of the crime was based upon its rational credibility and evidentiary

determinations. Accordingly, the jury‟s verdict should not be overturned. Thus,

Defendant‟s first assignment of error lacks merit

II. Defendant’s Second Assignment of Error

The trial court erred in imposing an excessive sentence.

Defendant contends that the trial court erred by imposing an excessive

sentence. It is noteworthy that counsel for Defendant acknowledges that no motion

was filed on Defendant‟s behalf requesting that Defendant‟s sentence be

reconsidered. Additionally, it is noted that Defendant made no objection to the

sentence when it was imposed. In State v. Batiste, 09-521 (La.App. 3 Cir 12/9/09),

25 So.3d 981, our court found that where there has been no motion to reconsider

sentence as per La.Code Crim.P. art. 881.1(E), the review of one‟s sentence is

limited to a bare claim of excessiveness. In addition, the failure to file such motion

prevents Defendant from addressing the trial court‟s alleged failure to comply with

La.Code Crim.P. art. 894.1 which requires the trial court to state for the record the

considerations taken into account and the factual basis for imposing its sentence.

State v. Evans, 09-477 (La.App. 5 Cir. 12/29/09), 30 So.3d 958, writ denied, 10-

363 (La. 3/25/11), 61 So.3d 653. This court in State v. Bamburg, 00-675 (La.App.

3 Cir. 11/2/00), 772 So.2d 356, found that because the defendant failed to object to

his sentence at the sentencing hearing and did not timely file a motion to

reconsider his sentence, his claim that his sentence was excessive was barred.

13

Contrarily, our court has “reviewed claims of excessiveness where no objection

was made and no motion to reconsider sentence was filed.” State v. Johnlouis, 09-

235, p. 21 (La.App. 3 Cir. 11/4/09), 22 So.3d 1150, 1163, writ denied, 10-97 (La.

6/25/10), 38 So.3d 336, cert. denied, __U.S.__, 131 S.Ct. 932 (2011). We elect to

review Defendant‟s claim that his sentence was excessive.

The trial court, upon imposing sentence, stated that it had reviewed the pre-

sentence investigation, particularly Defendant‟s prior criminal record. The trial

court acknowledged it considered the aggravating and mitigating circumstances as

per the applicable provisions of the Louisiana Code of Criminal Procedure. The

trial court then sentenced Defendant to fifty years at hard labor. Fifteen of the fifty

years must be served without benefit of probation, parole, or suspension of

sentence.

Although Defendant‟s pre-sentence investigation report was not originally a

part of the appellate record, this court obtained a copy of the report for review.

The report provides a picture of a forty-six-year-old man with a lengthy juvenile

record dating back to when he was only thirteen years old. His adult criminal

history characterizes him as a third-felony offender. His criminal background

includes numerous arrests and convictions for crimes against the person, including

offenses committed as a juvenile for which he was tried as an adult. Defendant

pled guilty in 1999 to attempted robbery and carjacking in Florida. He received

probation which was subsequently revoked. He was sentenced again in 1999 to a

probated sentence for robbery and vehicle theft. This probated sentence was also

subsequently revoked. The report further reflects Defendant has two pending

armed robbery charges that are factually similar to the Olive Garden robbery.

14

Defendant‟s pre-sentence investigation report recommended a sentence

significantly more severe than the sentence imposed by the trial court.

Louisiana Revised Statutes 14:64(B) provides the penalty for the crime of

armed robbery as follows: “Whoever commits the crime of armed robbery shall be

imprisoned at hard labor for not less than ten years and for not more than ninety-

nine years, without benefit of parole, probation, or suspension of sentence.”

Defendant‟s sentence in this case falls within the middle range of acceptable

sentences under the statute.

La. Const. art. 1, § 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, 51 9U.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.

[E]ven when a sentence falls within the statutory sentencing range, it
still may be unconstitutionally excessive, and in determining whether
a sentence shocks the sense of justice or makes no meaningful
contribution to acceptable penal goals, this court has suggested that
several factors may be considered:

[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

15

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.

State v. Decuir, 10-1112, pp. 12-13 (La.App. 3 Cir. 4/6/11), 61 So.3d 782, 791.

According to our supreme court, sentences “within the thirty-five to fifty-

year range . . . [are] acceptable for first offenders convicted of armed robbery.”

State v. Smith, 01-2574, p. 7 (La. 1/14/03), 839 So.2d 1, 4. Additionally, the

Louisiana Supreme Court has described armed robbery as a “pernicious offense”

which “creates a great risk of emotional and physical harm to the victim, to

witnesses, and, at times, even to the offender.” State ex rel. Sullivan, Sr. v. Maggio,

432 So.2d 854, 856 (La.1983). Considering the seriousness of an armed robbery

offense in general, the seriousness of the armed robbery offense committed in the

present case, and Defendant‟s prior criminal history, we find that the trial court did

not abuse its discretion in its imposition of sentence.

Lastly, Defendant alleges that his co-defendant, Almaguer, was the more

culpable of the two defendants and alleges that his co-defendant orchestrated the

criminal undertaking. There is no finding by the jury regarding comparable

culpability. Defendant‟s co-defendant pled guilty to armed robbery and possession

of a firearm by a felon, and his sentences for his crimes were imposed by the trial

court. The fact that the co-defendant‟s sentence was less than that of Defendant is

not equivalent to Defendant being penalized for maintaining his innocence as

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suggested by counsel. Similarly, the law does not seek to penalize defendants for

the errors or omissions of their counsel. Rather, the law provides a necessary

orderly and structured manner in which to afford due process to those accused of

criminal wrongdoing.

Defendant asserts that he received a harsher sentence than his co-defendant.

As we stated in State v. Lofton, 97-383, p. 5 (La.App. 3 Cir. 10/8/97), 701 So.2d

712, 715, writ denied, 98-389 (La. 6/5/98), 720 So.2d 679, “it is well settled that a

sentence must be individualized as to each defendant. Even when dealing with co-

defendants or other defendants with similar records, there is no requirement that

the sentences be the same.”

We find that, although the reasons provided by the trial court were scant, the

trial court clearly stated that it reviewed Defendant‟s pre-sentence investigation

report and considered all of the aggravating and mitigating factors as per the

applicable statute. Further, this court has considered Defendant‟s long criminal

history, the pre-sentence report and its recommendations regarding sentencing, and

the testimony of the various witnesses at trial regarding Defendant‟s involvement

in this violent crime. We conclude Defendant received an individualized sentence

that is not excessive under the law. In accordance with La.Code Crim.P. art.

881.4(D), this court finds that the record supports the sentence imposed upon

Defendant. Therefore, we shall not set aside Defendant‟s sentence for

excessiveness. For these reasons, this assignment lacks merit.

DECREE

We hereby affirm Defendant‟s conviction for armed robbery. We also

affirm the sentence imposed by the trial court. In accordance with La.Code Crim.P.

art. 930.8, we order the trial court to inform Defendant, by written notice, within

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ten days of the rendition of this opinion, of the prescriptive period for the

application for post-conviction relief. Thereafter, the trial court shall file written

proof in the record of these proceedings that Defendant received such notice.

AFFIRMED; REMANDED WITH INSTRUCTIONS.

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