State of Louisiana v. Benjamin Guillory

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

18-532

STATE OF LOUISIANA

VERSUS

BENJAMIN GUILLORY

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APPEAL FROM THE
TWENTY-SEVENTH JUDICIAL DISTRICT COURT
PARISH OF ST. LANDRY NO. 15-K-2742
HONORABLE D. JASON MECHE, DISTRICT JUDGE

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SYLVIA R. COOKS
JUDGE

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Court composed of Sylvia R. Cooks, Shannon J. Gremillion, and Phyllis M. Keaty,
Judges.

CONVICTION AND SENTENCE AFFIRMED.
MOTION TO WITHDRAW GRANTED.

Earl B. Taylor
District Attorney
Twenty-Seventh Judicial District
P. O. Drawer 1968
Opelousas, LA 70571
(337) 948-3041
COUNSEL FOR APPELLEE:
State of Louisiana

Edward Kelly Bauman
La Appellate Project
P. O. Box 1641
Lake Charles, LA 70602-1641
(337) 491-0570
COUNSEL FOR APPELLANT:
Benjamin Guillory

Cooks, Judge.

Defendant Benjamin Guillory was initially charged with armed robbery, a

violation of La.R.S 14:64, in 2015. In February 2016, an amended information

charged him with violations of La.R.S. 14:64 and 64.3, armed robbery while using

a firearm. A jury found Defendant guilty as charged.

On April 27, 2017, the trial court ordered a presentence investigation (PSI)

report be filed in the record and sentenced Defendant to twenty-five years at hard

labor for armed robbery, with an additional five years for use of a firearm. The entire

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

On May 23, 2018, the trial court granted Defendant’s motion for an out-of-

time appeal and appointed the Louisiana Appellate Project to represent him.

Appellate counsel has filed a motion to withdraw, with a supporting brief, pursuant

to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396 (1967). Counsel alleges that

after a thorough review of the record, he can find no non-frivolous issues to present

to this court for review. After review of the record we find the conviction and

sentence are affirmed and counsel is permitted to withdraw.

FACTS

On July 2, 2015, an African-American male dressed as a woman robbed the

St. Landry Bank in downtown Opelousas, Louisiana. His disguise included

sunglasses and a wig, and his face was obscured. He produced a handgun, made

threats, and fired the gun as he left the bank. A nearby jogger saw him running,

throwing down a glove, and entering an alley. Soon thereafter, the witness saw an

African-American male wearing shorts and no shirt leaving the same alley. The

witness followed him and pointed him out to police as they responded to the bank

robbery. When police apprehended Defendant, they observed he had a white

substance on his face that appeared to be makeup.

Officers searched the alley and found a wig, sunglasses, a knit cap, cash in a

pillow case, loose cash, and a pistol. Some of the cash recovered was still marked

with identifying bands from St. Landry Bank. The police recovered $20,000 of the

$23,000 stolen in the robbery. Subsequent lab tests revealed DNA recovered from

the hat, glove, and sunglasses matched Defendant’s. DNA from two people was

recovered from the pistol’s trigger; Defendant could not be excluded as a

contributor. DNA from the pistol’s grip was inconclusive. DNA on the pistol’s slide

was a mixture from three people; Defendant could not be excluded as a contributor.

ERRORS PATENT

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

errors patent on the face of the record. After reviewing the record, we find no errors

patent.

ANDERS ANALYSIS

This court’s analysis for Anders claims is well-settled:

In State v. Benjamin, 573 So.2d 528 (La.App. 4 Cir. 1990), the
fourth circuit explained the Anders analysis:

When appointed counsel has filed a brief indicating
that no non-frivolous issues and no ruling arguably
supporting an appeal were found after a conscientious
review of the record, Anders requires that counsel move to
withdraw. This motion will not be acted on until this court
performs a thorough independent review of the record
after providing the appellant an opportunity to file a brief
in his or her own behalf. This court’s review of the record
will consist of (1) a review of the bill of information or
indictment to insure the defendant was properly charged;
(2) a review of all minute entries to insure the defendant
was present at all crucial stages of the proceedings, the
jury composition and verdict were correct and the sentence
is legal; (3) a review of all pleadings in the record; (4) a
review of the jury sheets; and (5) a review of all transcripts
to determine if any ruling provides an arguable basis for
appeal. Under C.Cr.P. art. 914.1(D) this Court will order
that the appeal record be supplemented with pleadings,
minute entries and transcripts when the record filed in this
Court is not sufficient to perform this review.

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Id. at 531.

While it is not necessary for Defendant’s appellate counsel to
“catalog tediously every meritless objection made at trial or by way of
pre-trial motions with a labored explanation of why the objections all
lack merit [,]” counsel’s Anders brief must “ ‘assure the court that the
indigent defendant's constitutional rights have not been violated.’
McCoy [v. Court of Appeals of Wisconsin, 486 U.S. [429] at 442, 108
S.Ct. [1895] at 1903, 100 L.Ed.2d 440 [ (1988) ].” State v. Jyles, 96-
2669, p. 2 (La. 12/12/97), 704 So.2d 241, 241. Counsel must fully
discuss and analyze the trial record and consider “whether any ruling
made by the trial court, subject to the contemporaneous objection rule,
had a significant, adverse impact on shaping the evidence presented to
the [trier of fact] for its consideration.” Id. Thus, counsel’s Anders brief
must review the procedural history and the evidence presented at trial
and provide “a detailed and reviewable assessment for both the
defendant and the appellate court of whether the appeal is worth
pursuing in the first place.” State v. Mouton, 95-981 (La. 4/28/95), 653
So.2d 1176, 1177.

State v. Sanders, 16-470, pp. 5-6 (La.App. 3 Cir. 12/7/16), 209 So.3d 143, 147-48,

writ denied, 17-218 (La. 11/6/17), 229 So.3d 470.

Counsel states he has found no non-frivolous issues to present for review. As

he observes, Defendant did not object to the introduction of any of the State’s

evidence at trial. Although no eyewitness could testify that the man who ran into the

alley in costume was the same man who came out of the alley wearing only a pair of

shorts, the circumstances strongly suggest this conclusion. For example, one witness

testified there was only one way in and out of the alley. Further, the DNA evidence

showed Defendant had physical contact with three items discarded in the alley and

could not be excluded as having had contact with the firearm police recovered.

Pursuant to the standard set forth in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781

(1979), we find it was rational for the jury to conclude Defendant was the same man

who robbed St. Landry Bank.

Regarding the sentence, appellate counsel opines that considering the possible

sentencing range under La.R.S. 14:64 is ten to ninety-nine years, the twenty-five-

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year sentence for armed robbery does not “shock one’s sense of conscience.”

Although counsel cites no sentencing cases, the terminology clearly refers to

jurisprudence outlining the analysis for an assertion of excessive-sentencing:

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, 00-0165 (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

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circumstances presented by each case.” State v. Cook, 95-
2784 (La.5/31/96); 674 So.2d 957, 958.

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 (emphasis added).

Considering the factors set forth in Soileau, we note the nature of the crime is

serious. This was an armed robbery of a bank while open for business that included

the discharge of a firearm. Defendant has only one prior conviction for possession

of a controlled dangerous substance with intent to distribute. Nevertheless,

comparing Defendant’s sentence to other sentences for similar offenses, we observe

“the Louisiana Supreme Court has consistently held that a sentence of thirty to fifty

years for the offense of armed robbery is acceptable [even] for a first offender[.]”

State v. Shupp, 15-695, p. 35 (La.App. 3 Cir. 2/3/16), 185 So.3d 900, 923.

We find appellate counsel is correct in concluding that the conviction and

sentence are sound. Pursuant to Anders, 386 U.S. 738, and Benjamin, 537 So.2d

528, we have performed a thorough review of the record, including transcripts,

pleadings, minute entries, and the charging instrument. Defendant was present and

represented by counsel throughout the proceedings, although we note trial counsel

waived his presence while the State was presenting physical evidence so that he

could go to the bathroom. It is not clear when he returned to the courtroom, although

he was present before defense counsel began cross-examination. Counsel also

waived his presence for the jury charge conference. We note in State v. Matthis, 07-

691 (La. 11/2/07), 970 So.2d 505, the supreme court held that counsel was not

ineffective for waiving the defendant’s presence during a viewing of the crime scene,

even though it was a critical stage of the proceedings. The court observed there was

strong evidence of defendant’s guilt. Id. We find that, taken together, the State’s

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evidence formed a solid case. Pursuant to Matthis, even if present counsel erred,

Defendant is not entitled to any relief.

Thus, we have found no non-frivolous issues that counsel should have

presented for appeal. Accordingly, Defendant’s conviction and sentence are

affirmed and counsel’s motion to withdraw is granted.

CONVICTION AND SENTENCE AFFIRMED. MOTION TO WITHDRAW
GRANTED.
This opinion is NOT DESIGNATED FOR PUBLICATION.

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