State Of Louisiana VS Tynorvis T. Rogers
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2010 KA 0644 STATE OF LOUISIANA VERSUS TYNORVIS T ROGERS Judgment Rendered December 22 2010 Appealed from the Second venty I Judicial District Court in and for the Parish of St Tamm State of Louisiana ny Trial Court Number 466656 Honorable Reginald T Badeaux III Judge Presiding Walter P Reed Covington Counsel for Appellee State of Lou siana LA Kathryn W Landry Baton Rouge LA Stephen A Yazbeck Covington LA Counsel for D Appellant fendant Tynorvis T Rogers Frederick Kroenke Baton Rouge LA BEFORE WHIPPLE McDUNALD AND McCLENDON JJ ri i C J C l Gc r SS lt a o WHIPPLE J The defendant Tynorvis T Rogers was charged by bill of information with distribution of marijuana a violation of LSA 40 and possession of S A R 966 1 a firearm by a convicted felon a violation of LSA S R 1 95 14 The defendant pled not guilty Subsequently the defendant withdrew his prior pleas of not guilty and at a Bo hearing entered a plea of guilty to one count of distribution of marijuana and a pl of guilty to possession of a firearm by a convicted felon For a the marijuana of distribution conviction he was sentenced to ten years imprisonment at hard labor For the possession convicted by firearm a of felon conviction he was sentenced to ten years imprisonment at hard labor without benefit of ordered to probation parole run concurrently or suspension of sentence The sentences were The defendant now appeals designating two assignments of error We affirm the convictions and sentences FACTS Because the defendant pled guilty the facts were not fully developed at a trial The factual basis for the guilty plea provided by the prosecutor during the ykin Bo hearing is as follows n O February 3rd of 20Q9 after d in St Tammany Parish had tectives conducted about three undercover buys from Mr Tynorvis Rogers at his house they executed a search warrant at the location of his buys had been done After searching the bedroom and f nding a lot of marijuana they also found two 12 residence where the gauge shotguns which were behind an entertainment center in the bedroom in which Mr Rogers had all of his stuff located And he was in fact a convicted felon by having a previous conviction or simple burglary on June 25 2007 in St Tammany Parish All these things occurred in St Tammany Parish The distribution ofmarijuana charge was originally count 3 and the possession a af felon convicted a by firearm charge was originally count 4 because the State had charged the defendant with two other caunts of distribution of marijuana counts 1 and 2 However at the s defendant guilty plea hearing the prosecutar dismissed two counts of distribution of marijuana Alsa caunts 3 and a reflect the sarne date of offense The defendant was also charged with illegal possession of stolen things count 5 which was nol prossed 2 ASSIGNMENTS OF ERROR NOS and 2 1 In these related assignments of error the defendant argues respectively that the sentenc imposed for the distribution conviction is excessive and marijuana of defense counsel failure to file a motion to reconsider sentence constitutes s ineffective assistanc of counsel The defendant does not challenge the sentence imposed for his conviction of possession of a firearm by a convicted felon The r does not contain an oral or written motion to reconsider sentence cord Louisiana Code of Criminal Procedure article 1 provides that the failure to E file or make a motion to reconsider sentence precludes the defendant from raising an excessive sentence argument on appeal Ordinarily pursuant to the provisions of this article and the holding of State v Duncan 94 p 2 App 1st Cir 1563 La 95 15 12 667 So 2d 1141 1143 en banc per curiam we would not consider an excessive sentence argument However in the interest of judicial economy we will consider the defendant argument that his sentence is excessive even in th s absence of a motion to reconsider sentence in order to address the defendant s claim of ineffective counsel Cir 00 18 2 754 So 2d See State v Wilkinson 99 p 3 App 1 st 0803 La 2336 301 303 writ deniEd 2000 La 4 O1 2Q 790 So I I 2d 631 I In Strickland v Washint 46C U 6b b87 104 S Ct 2052 2064 80 on S L Ed 2d 674 1984 the United States Supreme Court enunciated the test for I evaluatin g th competence of trial counsel First s the defendant must show that counsel P erformance was I def cient This requires showing that counsel made errors so serious that counsel was not functioning as the counsel guaranteed the by the Sixth Amendment Second the defendant must show that the deficient performance prejudiced the defense This requires showing that counsel errors were so serious as to deprive s the defendant of a fair trial a trial whose result is reliable Unless a defendant defendant makes both showings it cannot be said that the conviction or death sentence resulted from a breakdown in the adversaty process that rendexs the result unreliable 3 i In evaluating the performance of counsel the inquiry must be whether s counsel assistance an Mo was 472 So 2d reasonable considering all the circumstances 934 937 La App 1st Cir 19 S State v Failure to make the required showing of either deficient performance or sufficient prejudice defeats the fectiveness ine claim State v Robinson 471 So 2d 1035 103 La App lst 39 Cir writ denied 476 So 2d 350 La 19 S Failure to file a motion to reconsider sentence in itself does not constitute ineffective assistance of counsel However if the defendant can show a reasonable probability that but for counsel error his sentence would have been different a s basis for an ineffective assistance claim may be found See State v Felder 2000 2887 p 11 La App lst Cir 9 809 So 2d 360 370 writ denied 2001 Ol 2 3027 La 10 827 So 2d 1173 citing State v Pendelton 9C p 30 La 02 25 3b7 App Sth Cir S 696 So 2d 144 159 writ denied 97 La 12 97 28 1714 97 19 70b So 2d 450 The Eighth Amendment to the United States Constitution and Article I section 20 of the Louisiana Constitution prohibit the imposition of excessive punishment Although a sentence falls within statutory limits it may be excessive State v Sepulvado 367 So 2d 7b2 767 La 1979 A sentence is considered constitutionally excessive if it is grossly disproportionate to the seriousness of the offense or is nothing more than a purposeless and needless infliction of pain and suffering A sentence is considered grossly disproportionate if when the crime and punishment are considered in light of the harm done to society it shocks the sense ofjustice State v Andr 94 pp 8 La App lst Cir S 655 ws 0842 9 9S 5 So 2d 448 454 The trial court has great discretion in imposing a sentence within the statutory limits and such a sentence wi11 not be set aside as excessive in the absence of a manifest abuse of discretion See State v Holts 525 So 2d 1241 1245 La App 1 st Cir 1988 Louisiana Code of Criminal Procedure article 894 1 4 sets forth the factors for the trial court to consider when imposing sentence While the entire checklist of LSA art 894 need not be recited the record must P GCr 1 reflect the trial court adequately considered the criteria State v Brown 2002 2231 p 4 App lst Cir 5 849 So 2d 566 569 La 03 9 The articulation of the factual basis for a sentence is the goal of LSA art 1 894 not rigid or mechanical compliance with its Where the provisions record clearly shows an adequate factual basis or the sentence imposed remand is unnecessazy even where there has not been full compliance with LSA art P Cr C 1 894 State v Lanclos 419 So 2d 475 47 La 1982 The trial judge should review the defendant personal history his prior criminal record the seriousness s of the off the likelihood that he will commit another crime and his potential nse for rehabilitation through correctional services other than confinement See State v Jones 398 So 2d 1049 1051 La 1981 52 The maximum sentence pursuant to LSA 40 is thirty yeaars S B R 96b 3 nt imprisonm at hard labor and a fine Considering that the defendant U0 400 50 has a previous conviction for simple burglary that two other counts of distribution of marijuana were dismissed and that he was sentenced to only one of the third maximum sentence we find no abuse of discretion by the trial court in imposing a year ten sentence disproportionate without to the a The fine severity of the sentence offense imposed and is not therefore grossly is not unconstitutionally excessive Because we find the sentence is not excessive defense counsel failure to s file or make a motion to reconsider sentence even if constituting deficient performance did not prejudice the defendant See Wilkinson 99 at p 3 754 0803 So 2d at 303 State v Robinson 471 So 2d at 39 103 s defendant claim of ineffective assistance of counsel must fall These assignments of error are without merit 5 Therefore the SENTENCING ERROR Under LSA art 92Q we are limited in our review to errors P GCr 2 discoverable by a mere inspection of the pleadings and proceedings without inspection of the evidence After a careful review of the record we have found a sentencing error See State v Price 2005 La App 1 st Cir 12 952 2514 06 28 So 2d 112 en banc writ denied 2007 La 2 976 So 2d 1277 0130 08 22 For his conviction of possession of a firearm by a convicted felon the defendant was sentenced to ten years at hard labor without ben of probation fit parole or suspension of sentence Whoever is found guilty af violating th possession of a firearm by a convicted felon provision shall be imprisoned at hard labor for not less than ten nor more than fifteen years without benefits and be fined not less than one thousand dollars nor more than five thousand dollars LSA S R B 1 95 14 The trial court failed to impose the mandatory fine Accordingly the s defendant sentence which did not include the mandatory fine is illegally lenient However since the sentence is not inher prejudicial to the defendant and ntly neither the State nor the defendant has raised this sentencing issue on appeal we decline to correct this error S Price 20Q5 at pp 21 952 So 2d at 124 e 2514 22 25 CONVICTIONS AND SENTENCES AFFIRMED ZThe minutes reflect na fine was imposed 6 STATE OF LOUISIANA COURT O APPEAL FIRST CIRCUIT 2010 KA 058Z STATE OF LOUISIANA VERSUS TYNORVIS T ROG RS McCLENDON concurs and assigns reasons While I am concerned about the failure of the trial court to impose the legislatively mandated fine given the state failure to object and in the interest s af judicial economy I concur with the majority opinion
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