State of Louisiana v. Earl Lewis, IV

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

16-356

STATE OF LOUISIANA

VERSUS

EARL LEWIS, IV

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. CR 146202
HONORABLE DAVID MICHAEL SMITH, DISTRICT JUDGE

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ELIZABETH A. PICKETT
JUDGE

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Court composed of Marc T. Amy, Elizabeth A. Pickett, and John E. Conery,
Judges.

AFFIRMED.

Keith A. Stutes
District Attorney, Fifteenth Judicial District
Kenneth P. Hebert
Assistant District Attorney
P. O. Box 3306
Lafayette, LA 70501
(337) 232-5170
COUNSEL FOR APPELLEE:
State of Louisiana

Edward K. Bauman
Louisiana Appellate Project
P. O. Box 1641
Lake Charles, LA 70602-1641
(337) 491-0570
COUNSEL FOR DEFENDANT-APPELLANT:
Earl Lewis, IV

PICKETT, Judge.

FACTS

The testimony during trial established that the defendant approached Mrs.

Bonnie Rodriguez’s vehicle at a gas station while Mrs. Rodriguez and her husband

were inside the gas station. Despite Mrs. Rodriguez’s five children being inside the

car, the defendant reached through the open window and took Mrs. Rodriguez’s purse

before walking away. Mrs. Rodriguez, her husband, and her son Luis chased after the

defendant, who was arrested shortly thereafter.

On June 5, 2014, the defendant, Earl Lewis, IV, was charged by bill of

information with one count of simple burglary of an automobile, in violation of

La.R.S. 14:62; and one count of aggravated battery, in violation of La.R.S. 14:34.

On August 15, 2014, the defendant pled not guilty.

On September 22, 2015, the state severed the aggravated battery charge due to

the victim being in Mexico and proceeded to trial on the simple burglary charge. On

September 23, 2015, a six-person jury found the defendant guilty as charged.

On January 20, 2016, the trial court sentenced the defendant to a maximum

sentence of twelve years at hard labor with credit for time served and a $2,000 fine.

Defense counsel objected to the sentence and the state announced it intended to

initiate habitual offender proceedings.

The defendant now appeals his sentence as excessive, despite failing to file a

motion to reconsider sentence. For the reasons that follow, the defendant’s sentence

is affirmed.

ASSIGNMENT OF ERROR

The defendant alleges one assignment of error in this court:

The trial court erred in imposing a constitutionally excessive sentence.

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

there are no errors patent.

DISCUSSION

In his sole assignment of error, the defendant argues that the trial court erred in

imposing an excessive sentence. Louisiana Code of Criminal Procedure Article 881.1

provides the mechanism for preserving the review of a sentence on appeal:

A. (1) In felony cases, within thirty days following the imposition
of sentence or within such longer period as the trial court may set at
sentence, the state or the defendant may make or file a motion to
reconsider sentence.

....

E. 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 from raising an objection to the sentence or from urging
any ground not raised in the motion on appeal or review.

Louisiana courts have laid out the following guidelines with regard to excessive

sentence review:

Sentences within the statutory sentencing range can be reviewed
for constitutional excessiveness. State v. Sepulvado, 367 So.2d 762
(La.1979). In 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, a panel of this court discussed the review of excessive
sentence claims, stating:

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-

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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).

Further, in reviewing the defendant’s sentences, the appellate court
should consider the nature of the crime, the nature and background of the
offender, and the sentences imposed for similar crimes. State v. Lisotta,
98-648 (La.App. 5 Cir. 12/16/98), 726 So.2d 57 (citing State v. Telsee,
425 So.2d 1251 (La.1983)), writ denied, 99-433 (La. 6/25/99), 745 So.2d
1183. In 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, a panel of
this court observed that:

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[, cert. denied, 96-6329, 519 U.S. 1043, 117 S.Ct. 615
(1996)].

State v. Soileau, 13-770, 13-771, pp. 4-5 (La.App. 3 Cir. 2/12/14), 153 So.3d 1002,

1005-06, writ denied, 14-452 (La. 9/26/14), 149 So.3d 261.

Although the defendant made a contemporaneous objection to his sentence, he

never filed a motion to reconsider sentence as required by La.Code Crim.P. art. 881.1.

In State v. James, 95-962 (La.App. 3 Cir. 2/14/96), 670 So.2d 461, the

defendant filed a motion to reconsider sentence one year and eight months after

sentencing, well beyond the thirty day requirement provided by La.Code Crim.P. art.

881.1. The record of sentencing did not reflect that the trial court gave any additional

time in which to file the motion. Therefore, this court found that, because the motion

to reconsider sentence was not timely filed, the defendant’s sentencing claims lacked

merit. See also State v. King, 95-344 (La.App. 3 Cir. 10/4/95), 663 So.2d 307, writ

denied, 95-2664 (La. 3/15/96), 669 So.2d 433.

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In State v. Bamburg, 00-675 (La.App. 3 Cir. 11/2/00), 772 So.2d 356, the

defendant failed to object to the sentence imposed at the sentencing hearing and did

not timely file a motion to reconsider sentence. Thus, this court found his claim of

excessiveness of sentence was barred. See also State v. Williams, 01-998 (La.App. 3

Cir. 2/6/02), 815 So.2d 908, writ denied, 02-578 (La. 1/31/03), 836 So.2d 59.

However, this court has reviewed claims of excessiveness where no objection

was made and no motion to reconsider sentence filed. See State v. Johnlouis, 09-235

(La.App. 3 Cir. 11/4/09), 22 So.3d 1150, writ denied, 10-97 (La. 6/25/10), 38 So.3d

336, cert. denied, 562 U.S. 1150, 131 S.Ct. 932 (2011); State v. Thomas, 08-1358

(La.App. 3 Cir. 5/6/09), 18 So.3d 127; 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; State v.

H.J.L., 08-823 (La.App. 3 Cir. 12/10/08), 999 So.2d 338, writ denied, 09-606 (La.

12/18/09), 23 So.3d 936; State v. Quinn, 09-1382 (La.App. 3 Cir. 5/12/10), 38 So.3d

1102, writ denied, 10-1355 (La. 1/7/11), 52 So.3d 885. Accordingly, we will review

the defendant’s claim as a bare claim of excessiveness.

The defendant’s sentence of twelve years at hard labor and a $2,000 fine are the

maximum penalty for simple burglary, which is not by definition a crime of violence.

However, the defendant stole a purse out of a car that was occupied by multiple

children in broad daylight.

The second factor to be considered under Lisotta is the nature and background

of the offender. Although the pre-sentence investigation (PSI) report was not

included in the record submitted to this court, the trial court found that the defendant

is “a fifth felony offender.” The trial court specifically noted that it had considered

aggravating and mitigating factors, and ultimately concluded that a maximum

sentence was warranted given the defendant’s history.

Finally, Lisotta notes that appellate courts should consider sentences imposed

for similar crimes. Louisiana courts have frequently held that maximum sentences for

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simple burglary are not excessive, particularly where the defendants show a history of

felony convictions. The supreme court in State v. Brown, 410 So.2d 1043 (La.1982),

found that a maximum sentence was not excessive for a defendant with a history of

criminal activity and at least two prior felony convictions. Likewise, this court in

State v. Jackson, 539 So.2d 1288 (La.App. 3 Cir. 1989) found a maximum sentence

not excessive where the defendant had three prior felony convictions and an extensive

arrest record. In State v. Payne, 612 So.2d 153 (La.App. 5 Cir. 1992), the fifth circuit

upheld a maximum sentence for a twenty-six year old who was a second felony

offender who also had five misdemeanor convictions. Finally, in State v. Cotton,

29,101 (La.App. 2 Cir. 1/22/97), 687 So.2d 1074, the second circuit upheld a

maximum sentence for simply burglary for a fifth felony offender with additional

misdemeanor convictions and further pending charges.

The defendant contends that he “is not the most egregious of offenders” and

that “[a] sentence providing for less prison time and treatment for his drug addiction,

treatment best served in a non-custodial environment, would have been more

appropriate.” Noting that the “relevant question on review, however, [i]s ‘whether the

trial court abused its broad sentencing discretion, not whether another sentence would

have been more appropriate,’” and in light of the defendant’s undisputed history of

felony convictions and the Louisiana jurisprudence cited above, we cannot say that

the trial court abused its discretion. Cook, 674 So.2d 957. Accordingly, the

defendant’s sentence is affirmed.

CONCLUSION

The defendant’s sentence is affirmed.

AFFIRMED.

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