State Of Louisiana VS Marquis Dalton
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NOT DESIGNATED FOR PUBLICATION COURT OF APPEAL STATE OF LOUISIANA FIRST CIRCUIT 2008 KA 0365 STATE OF LOUISIANA VERSUS MARQUIS DALTON Judgment On Appeal rendered OCT 3 1 2008 19th Judicial District Court Baton Rouge State of Louisiana from the Parish of East Case Number 03 05 0013 Sec 1 The Honorable Anthony J Honorable Doug Moreau District Attorney Kory Marabella Jr Judge Presiding Counsel for Appellee State of Louisiana J Tauzin Assistant District Baton JeffW Rouge Traylor Assistant District Baton Attorney LA Rouge Attorney LA Frank Sloan Mandeville Counsel for Appellant Marquis LA BEFORE CARTER c J Dalton WHIPPLE AND DOWNING JJ DOWNING J Defendant armed attempted possession 1 2 Marquis robbery of a firearm Defendant pled determined defendant a by a Dalton charged by bill of information with was violation of La R S convicted felon a was guilty adjudicated court defendant then sentenced defendant jury the on as a third both counts felony habitual offender years at hard labor without benefit of probation The trial court also sentenced defendant without benefit of to be served or an on parole Count 2 suspension concurrently with defendant Defendant imposed probation parole jury a felony habitual offender The trial third a Count The to trial before and proceedings Following a hearing charged as The State instituted habitual offender trial violation of La R S 14 95 1 guilty and proceeded not Count 1 14 27 and 14 64 sentence s or on Count 1 court suspension of sentence to ten years of sentence on at hard labor with this Count 1 sentence appeals with his sole assignment of error alleging the trial unconstitutionally excessive defendant s convictions habitual offender forty to sentence adjudication Count on and 1 We court affirm sentences FACTS On the evening of December in his vehicle to have dinner and workplace and the the movie Furr drove Brown employment on car pair left alarm and when she s car to where her vehicle As he waited for Brown to the service road behind the Brown 23 2004 Celeste Brown met Joshua Furr at his building opened the was see a parked movie at his place get into her vehicle Furr noticed Brown had been driver s side door the alarm activated on its a of truck with her having problems alarm went off Furr noticed that the truck turned After When lights and backed away I c tine t2 note defendant La 2S 6 R S s 14 95 I sentence Oil B 95c So cd t 12 We en banc Count 2 is decline f i iu illegally to cOITecl J mk 17 co lenicnt ill that the trial court failed to impose such error 1 013 2 La See Slate Price 15 20 2IC2 0SI 976 So 2d In7 25t4 La mandatory ApI t Cir a Furr to Brown s parents house Furr noticed that the truck that vehicle be began driving following them As they proceeded her cell make her to phone following him made residence in order to turn Brown alarm s car After residence ten Furr of the driveway The truck fifteen minutes pulled into the Brown apologized he wanted tried to was do explain Furr and Brown arrived something to While Furr a rifle Brown pointed by past the residence and then turned around in the by asking running and walked curious as Furr ifhe had to repeatedly about it asked Furr if he had or fight standing on was passenger in the truck away told defendant to take his truck became upset and to wrong as defendant Furr tried to problem own truck and attempted to a had followed them to problem Furr a misunderstanding Brown Furr was Defendant walked towards Furr and I want your vehicle Defendant someone on 3 Furr several times and apologized was so and whether paused Furr her cell backing looked back at the eventually circled back towards them call the end the curb defendant exited his truck and the rifle at Furr and said occupants in his a why defendant defendant that the situation was a her parents at driveway first while Brown parked behind him eventually walked towards them and stood behind handed concerned because Defendant denied that he had followed them Defendant then to When the truck following them was her parents to stopped and the driver of the truck later identified residence s his way intending to let the truck driver know that nothing defendant that he to explain was on still activated conversation with Furr a turns on Furr with Brown followed being were appeared to the service road residence Furr called Brown s Furr left his door open and the truck driveway initiated they on figured the truck driver Furr Furr noticed that the truck drove next to Brown verify that the truck was to parked several unnecessary they did made every aware was Brown followed him in her as phone two Brown Defendant noticed what she the was phone doing and demanded from Brown s hand and Who the f placed are it into his you Furr removed calling pocket Furr and Defendant backed towards his vehicle and put the rifle down Once inside Furr contacted the and left that The evening police seized Furr testified at trial that he Defendant did not was testify Following the jury fearful of his life at The trial habitual offender based prior to accessory after the fact his to apprehended later during the incident second court State instituted habitual offender adjudicated defendant convictions of January a 13 a third felony guilty plea 2000 degree murder in docket number the Nineteenth Judicial District Court for East Baton guilty plea was trial guilty verdict the s on police Defendant loaded Marlin 30 30 rifle from his vehicle a proceedings against defendant 2000 into his truck began running toward the residence and defendant got back Brown 10 99 461 of Rouge Parish and a July 17 simple burglary of an inhabited dwelling in docket number to 3 00 706 also of the Nineteenth Judicial District Court As court a result of defendant enhanced defendant s robbery Count 1 s adjudication sentence a third felony offender the trial for his conviction for and ordered defendant to labor without benefit of probation as parole or serve a term of attempted armed forty years at hard suspension of sentence EXCESSIVE SENTENCE In defendant sentence s sole assignment of error he argues the trial court s forty year is excessive and unwarranted Article I S 20 of the Louisiana Constitution excessive punishment Although violate a defendant subject to s a sentence may constitutional appellate review grossly disproportionate to the a excessive sentence is severity of the crime 4 the imposition of be within statutory limits it may right against Generally prohibits punishment and is considered excessive if it is or is nothing more than the disproportionate if when the crime and harm it is to A sentence is considered imposition of pain and suffering needless society disproportionate so judge is given wide discretion in limits and the sentence punishment the as to of manifest abuse of discretion shock State one s sense set aside as A trial of justice excessive in the absence 10 11 Hurst 99 2868 pp v light of the considered in of sentences within the statutory imposition imposed should not be are grossly La App 1 st 797 So 2d 75 83 Cir 10 3 00 The Louisiana Code of Criminal Procedure sets forth items that must be considered The trial court court need 11 imposing La Code Crim P sentence considered the criteria In State art 894 1 1 894 but the record recite the entire checklist of Article 1st Cir 1990 App La not before adequately reflect that it must 1 by the Herrin 562 So 2d v light of the criteria by Article 894 1 a review for individual excessiveness should consider the circumstances of the crime the trial court s stated 532 Watkins 2d So and the factual basis for its sentence State v Because defendant due to his sentencing s App range was conviction for thirty 1 b a third three to as i labor without benefit of parole On La 1st Cir Lanclos 419 So 2d 475 adjudication 15 529 1 A 64 B 1186 1182 sentencing decision State v Remand for full 1988 with Article 894 1 is unnecessary when there is sufficient factual basis compliance for the reasons 478 attempted La 1982 armed robbery felony habitual offender ninety nine Defendant received probation or years a La sentence the RS enhanced applicable 14 27 D offorty 3 years at hard suspension of sentence defendant argues he should have received appeal was a lesser sentence because the evidence adduced at trial fails to show defendant intended to rob Furr of his truck defendant s We disagree conviction is defendant intended to and reiterate that the not at issue in this rob Furr 5 sufficiency appeal of evidence The supporting jury clearly found Further the record The evidence as a polite this crime due to the rifle at Furr that he thought evidence at still was to was not Furr on court the night of this at the offenses of court testimony s trying avoid to resisting noted that s statement daughter and to Brown that his be unbelievable act s s of for parents pointing explanation given the fact the Brown to convictions of accessory simple burglary was aware of an inhabited he Furr and Brown parole prohibited from having was were not a guilty pleas in North Carolina shoplifting dwelling was on that defendant had two 1998 officer and although sentencing responsibility also found defendant prior felony two recognized an to s the at the time of this offense defendant previous convictions age job since his initial release deliberately followed Furr and murder and degree and young s incident noted defendant second court him challenging was The trial court also weapon The trial serious and reminded defendant that for his two a his continued denial that he followed Furr residence after the fact the trial defendant hearing trial indicated defendant had The trial to supportive family a The trial court also noted defendant residence considered defendant sentencing hearing by the defense witnesses found defendant court court person who had held after hearing the trial s the However prison Brown at presented defendant portrayed from and the fact he had eight years of twenty clearly reflects the trial Finally physically harmed during this incident they had been emotionally scarred Based defendant in s court the evidence surrounding past criminal history sentencing trial on defendant was to forty we cannot say the trial years at hard labor less than half of the penalty Under the circumstances of this crime excessIve the circumstances of this crime and we court The abused its discretion sentence imposed by the that defendant could have received cannot say the trial court s sentence was We note that defendant does not contest his concurrent sentence for Count 2 6 This assignment of error is without merit DECREE For the above stated adjudication and reasons we affirm the convictions habitual offender sentences CONVICTIONS HABITUAL OFFENDER ADJUDICATION SENTENCES AFFIRMED 7 AND
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