State Of Louisiana VS Daniel F. Lopez

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NOT DESIGNATED FOR P JBLICATION STATE OF LOUfS ANA COURT OF APPEAL i I FIRS CIRCUI 2013 KA 0373 STATE OF LOUISIANA VERSUS DANIEL F LOPE7 Judgroent Rendered i u NOV 0 I 2013 D APPEAL FROM THF TWENTY JUDICIAL DISTRICT COURT SECOND IN AND FOR TNE PARIS OF S TAMMANY T STATE OF LOUISIANA DOCKET NUMBER 516731 HONORABLE WILLIAM J KNIGH7 JUDGE Walter P Reed Attorneys for Appellee District State of Louisiana Attorney Covington Louisiana And Kathryn Landry Special Appeals Counsel Baton Rouge Louisiana Maiy Baton f Roper Rouge Louisiana BEFORE Attorney for Defendant Appellant Daniel F Lopez IGREW PETI McDONALD AND McCLENllON JJ McDONALD J Defendant Daniel F Lopez and one codefendant were charged by bill of information with one count of home invasion a violation of La R 14 He S 62 8 pled not guilty After a juiy trial defenclant was found guilty as char He filed motions for new trial and postverdict judgrnent of acquittal but the trial court denied these motions and sentenced him to ten years at hard labor with Yhe first five years to be served without benefit of parole probation or suspeilsion of sentence The state subsequently filed a habitual oflender bill of infortnation alleging defendant to be a third habitual oCfender After a hearing the trial Felony court adjudicated defendant a thi habitual offender vacated his earlier felony rd sentence and imposed the mandatory sentence under La R 15 I S 529 A of b 3 life iinprisonment at hard labor without benefit of parole probation or suspension of sentencc Defense counse objected to tl mandatory scntence as cr and is iel unusual but the trial t cout overruled that objection Defendant now appeals alleging tllat his sentence is constitutionally excessive For the following reasons we affirm defendant conviction habitual offender adjudication and sentence s FACT5 On the evening of September 20 2011 defendant and Andre Francis entered the unlocked apartment of Kyle Alexander and Hayden Folse on Brownswitch Koad in Slidell Alexander knew defendant from two pi encounters In the fiirst Alexander sold defendant and another acquaintance a small amount of marijuana n the second defendant told Alexander that he wanted to buy more marijuana but he instead attempted to rob Alexander with a knife cutting The codefendnnt Andre A Franci pled guilty to the charge of homc invasion in addi to scecral other crimcs ion AL the time of defendant strinL Francis had already been sentenced for all of tho ofFenses Hc is not a parry to die c instaiit appeal 9 hc state afleged defendant spredicate convictions lo be 1 a May 19 2006 convietion for imple burglary under S Tw Parisl docket number 408d87 a 2 a Ianuary 9 2007 conviction for aggravated battery under St many d mnany aPnrish docket number 422249 T 2 S Alexander hand in the process 1lexander did no call the police after the second encountet because he was afraid that he would be arrested for selling marijuana Upon entering Alexander apartment on September 20 201 l defendant and s Francis made their way upstairs and forced themselves into Alexandei bedroom s Francis entered the room first holding a gun Defendant followed forcing Alexander down into a chair before beginning to strangle him During the ensuing struggle Alexander fieed himself briefly and yelled for Folse to call the police Defendant and Francis then ran from the apa Francis testified at trial and tmenL clenied defendant involvement in the incident s However the state played a videotaped recording of Francis interview with the police wherein he detailed s s defendant actions including defendant insh to shoot Alexander during s t11e scuffle Tl found defendant guilty ofhome invasion ejury ASStCNMENT OF ERROR In his sole assignment of error defendant argues lliat his mandatory senLence of life itnprisonment witliout benefiY of parole probation or suspension of sentence is constitutionally excessive Acticie I Section 20 of the Louisiana Cotlstitution prohibits the irnposition of excessive punishment Although a sentence may be within statutory limits it may violate a defendant constitutional right against excessive punishment and is s subject to appellate review State v Sepulvado 367 So 762 767 La 1979 2d Generally a sentence is considered excessive if it i grossly disproportio to the late severity of the crime or is nothing more than the needless imposition of pain and suffering State v Reed 409 So 266 267 La 1982 2d To determine if a sentence is grossly disprt the coUrt considers the punishment and the portionate crime in light of the harm caused to society and determincs whether the penalty is so dispropottionate as to shock the sense ofjustice d A trial judge is given wide discretion in the imposition of sentences within statutory limils and the sentence 3 imposed should not be set aside as excessive in the absence of manifest abuse of discretion State v Lanclos 419 So 475 478 La 1982 2d ln tlie instant case defendant was sentenced as a third habitual felony offiender tiinder the provisions o La R 15 I fhat section states in f S 529 A b 3 peitinent part that if a defendant sthird felony and his two prior felonies are defined as crimes of violence under La R 14 or any other crimes S 2 I3 punishable by imprisonment for twelve years or more or any combination o such crimes he shall be imprisoned for the retnainder of his natural life without benefit of parole probation or suspension of sentence See La R 15 S 529 b 3 A 1 s Here defendant third felony is defined as a crime of violence home invasion under La RS 14 and it is punishable by imprisonment for twelve years 44 B 2 or more See La R 14 prior to 2012 amendment His pi S 62 1 B 8 conviction for aggravated battery a vio of La R 14 is detined as a ation S 34 crime of viole under La R 14 Lastly his predicate conviction for ce S 2 5 B sitnple burglary a violation of La R 14 was by imprisonment up S 62 punishable to twelve years See La R S B 62 14 Therefore defendant third s felony habitual offiender sentence of life imprisonment at hard labor without benefit of ole par probation or suspension of sentence was mandatory under La R S b 3 A 1 529 15 Even though a sentence is the tlminimum sentence it may stil be andatory excessive if it inakes no measurable contribution to acceptable goals of punishmenY or amounts to nothing more than the purposeful imposition of pain and suffering and is grossly out of proportion to the severiry of the criine State v Dorthey 623 So 1276 1280 La 1993 In arder for a defendant to rebut 2d 81 the presum that a mandatory minimum sentence is constitutional he must tion clearly ancl convincingly show that a he is exceptional which in lhis context n that because of eans unusual circumstances this defendant is a victim of the legislature s failure to assign sentences that are meaningfully tailored to the culpability of the oPfender the gravity of the offense and the stances circUn of the case State v 1906 Johnson 97 La 3 709 98 4 2d So 672 676 Departures downward from the minimum sentence should only occur ii1 rare situations See I Id at 677 Defendant contends that his sentence is excessive due to the trial court s failure lo consider his relative youth twenty or o order a presentence seven investigation PSI K repo He argues that the seutencing record does not adequately reflect that the trial court considered not only the seriousness of his crime and his past criminal record but also his personal histoty and potential for rehabilitation We note first that the decision to order a PSI report lies within the discretion ofthe trial court La C art 875 State v Johnson 604 So 685 698 P Cr 1 A 2d La App I st Cir 1992 writ denied 610 So 79 La 1993 Fwther even d where a trial court assigns no reasons the sentence will not be set aside on appeal and remanded for resentencing unless the record is either inadequate or clearly indicates that the sentence is excessive See La C art 881 State v P Cr D 4 Harris 601 So 775 779 La App I st Cir 1992 2d We have reviewed the record and find that it sup the sentence imposed orts Based on our review we cannot say that the trial court abused its discretion in imposing the statutory minimum sentence under La R 15 The S 5 b 3 A 1 9 only mitigating factors cited by defendant in his biief are his age and the fact that he did not hold the gun during the offense We do not find these f be actors to sufficient circumstances to warrant a downward departure from the minimum We note that while the hial judge cited no reasons for defendaM sentencc at the habitual offender hearing s presumably duc to the mandatory nature of the sentence he in fact cited extensicc reasons at defendant sentencing c on hi uiiderlying convictiou 1or hoine invasion Thosc consideratious were certainly s present in the mind of the il trial jud et the tinte of defendanPs habitual ofFender seutencing e 5 sentence Moreovei we do not find that defendant has clearly and convincingly shown that he is exceptional See Johnson 709 So at 676 He has failed to 2d cite any unusual or exceptional circumstances to show that he is a victim of the s legislature failure to assign a sentence meaningfully tailored to his culpability the circumstances of his case and his status as a third habitual offender felony Therefore there was no reason for the trial court to deviate from the mandatory minimum sentence Accordingly we find no abuse of discretion in the sentence imposed This assignment of error lacks merit CONVICTION HABITUAL OFFENDER ADJUDICATION AND SENTENCE AFFIRMED 6 I

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