State Of Louisiana VS Michael Nicholas
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2011 KA 0641 STATE OF LOUISIANA LIVI 1101 MICHAEL NICHOLAS d Judgment Rendered November 9 2011 On Appeal from the 19th Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana Trial Court No 10 08 0702 The Honorable Donald R Johnson Judge Presiding Lieu T Vo Clark Attorney for Defendant Appellant Mandeville La Michael Nicholas Hillar C Moore 111 Attorneys for the State of Louisiana District Attorney William K Morris Dale R Lee Assistant District Attorneys Baton Rouge La E3E3E3E3E3 BEFORE CARTER C PARRO AND HIGGINBOTHAM JJ J CARTER C I The defendant Michael Nicholas was charged by grand jury indictment with armed robbery a violation of Louisiana Revised Statutes Annotated section 14 count 1 and four counts of attempted second 64 degree murder violations of Louisiana Revised Statutes Annotated sections 27 14 and 14 counts 2 1 30 5 The defendant pled not guilty and following a jury trial was found guilty as charged on all counts For each of the five counts the defendant was sentenced to fifty years imprisonment at hard labor without benefit of parole probation or suspension of sentence All five sentences were ordered to run concurrently with each other The defendant filed a motion to reconsider sentences which was denied The defendant now appeals arguing that his sentences are unconstitutionally excessive and that the trial court erred in denying the motion to reconsider the sentences Finding no merit we affirm the convictions and sentences FACTS On October 9 2008 shortly after 9 p the fifteenyear old 00 m defendant walked into the Rite Aid Pharmacy Rite Aid on Plank Road in Baton Rouge He grabbed a large bag of potato chips moved toward the front of the store and stood several feet from the checkout counter Having just completed his shift Rite Aid employee James Paul walked to the front of the store to tell the cashier Eureka Long that he was leaving The defendant dropped the potato chips bag and without provocation withdrew a 45 caliber handgun and shot Paul in the chest When Leroy Jackson a customer who had been making a purchase attempted to run the defendant shot him several times from behind The defendant also fired in the direction of Rite Aid employee Kasheva Armstard however Armstard was Pa able to escape to the office without being shot The defendant then walked behind the counter and ordered Long to open the register When Long told the defendant she could not open it without making a sale the defendant shot her in the arm While the defendant held the gun to her head Long scanned an item that was on the counter so that the register would open The defendant took cash from the register and left the store All of the shooting victims survived However a bullet severed s Paul spine which caused paralysis from the waist down Jackson suffered multiple gunshot wounds and the bullet that struck Long traveled through her arm and lodged in her abdomen Shortly after the shootings the defendant was apprehended by the Baton Rouge Police Department After initially denying any involvement the defendant confessed to the shootings and the armed robbery DISCUSSION In his two assignments of error the defendant argues respectively that his sentences are unconstitutionally excessive and that the trial court erred in denying the motion to reconsider the sentences The Eighth Amendment to the United States Constitution and Article I 20 of the Louisiana Constitution prohibit the imposition of excessive punishment Stat Although a sentence falls within statutory limits it may be The maximum sentence for armed robbery is ninetynine years See La Rev Ann 64B 14 The maximum sentence for attempted second degree murder is fifty years See La Rev Stat Ann a 1 271 14 and 14 In his brief the defendant 113 30 addresses only the maximum sentences He asserts that b imposing the maximum y sentence of fifty years in this case the trial court imposed an unconstitutionally excessive sentence The defendant notes as well that m sentences are reserved for the aximum most serious offenses and the worst offenders and accordingly argues that there was no showing in the record that he was one of the worst offenders because he has no prior criminal history The defendant received the maximum sentence of fifty years for each of the four counts of attempted second degree murder and only a fifty year sentence for the armed robbery conviction Thus we confine our discussion to the fiftyyear maximum sentences the defendant received for each count of attempted second degree murder 3 excessive sentence State v Sepulvado 367 So 2d 762 764 67 La 1979 is considered constitutionally excessive if it is A grossly disproportionate to the seriousness of the offense or is nothing more than a purposeless and needless infliction of pain and suffering State v Andrews 940842 La App 1 Cir 5 655 So 2d 448 454 95 A sentence is considered grossly disproportionate if when the crime and punishment are considered in light ofthe harm done to society it shocks the sense ofjustice Id The trial court has great discretion in imposing a sentence within the statutory limits and such a sentence will 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 Cir 1988 Louisiana Code of Criminal Procedure Annotated article 894 sets forth the factors for the trial court to consider 1 when imposing a sentence While the entire checklist of Article 894 need 1 not be recited the record must reflect the trial court adequately considered the criteria State v Brown 022231 La App 1 Cir 5 849 So 2d 03 9 566 569 The articulation of the factual basis for a sentence is the goal of Article 894 1 not rigid or mechanical compliance with its provisions State v Lanclos 419 So 2d 475 478 La 1982 Where the record clearly shows an adequate factual basis for the sentence imposed remand is unnecessary even where there has not been full compliance with Article 894 Id The 1 trial judge should review the defendant spersonal history his prior criminal record the seriousness of the offense the likelihood that he will commit another crime and his potential for rehabilitation through correctional services other than confinement See State v Jones 398 So 2d 1049 1051 52 La 1981 4 In the instant matter the defendant was sentenced to the maximum sentence of fifty years at hard labor without benefits for each count of attempted second degree murder with the sentences to run concurrently As a general rule maximum or near maximum sentences are to be reserved for the worst offenders and the worst offenses State v James 02 2079 La App 1 Cir 5 849 So 2d 574 586 03 9 Also maximum sentences permitted under a statute may be imposed when the offender poses an unusual risk to the public safety due to his past conduct of repeated criminality See State v Hilton 99 1239 La App 1 Cir 3 764 So 00 31 2d 1027 1037 writ denied 00 0958 La 3 786 So 2d 113 01 9 The defendant contends the fiftyyear sentences are not supported by the record because there was no showing that he was one of the worst offenders as he had no prior criminal history Further he was fifteen years old at the time of the offenses At sentencing the trial court stated in pertinent part He is guilty according to the verdict of the jury The prosecutor was able to establish at the trial before the jury that that person in that video standing behind that register taking money shooting a young lady behind the register shooting one or more persons in front ofthe register was you All of that was presented to the jury I I have no doubt based upon what I saw that you are that individual and that I have no doubt based upon what I observed that you did this crime And it serious s The fact that you fifteen re were fifteenyearsold sic everything I read tells me that a young person at age fifteen knows not to shoot anyone I don thave reasons which would mitigate sufficiently the severity of your conduct The fact that you were fifteen does mitigate in and of itself That on one side of the balance s that I have to make a decision On the other side is the severity of the charges that you been convicted of and the fact that ve you tried to kill more than one individual and you almost succeeded but for the intervention of medical assistance probably You left one of those individuals without the use of his limbs You seen that ve You will have that on your 5 conscience for the rest of your life The court has reviewed the social history of this defendant A football game clothing to go to a football game or money to go to a football game is testimony that was revealed at the trial that this young man wanted to go to a football game at Southern University and he wanted to get money out of that register at that pharmacy that night to go To give him a lesser sentence would deprecate the seriousness of his conduct The trial court adequately considered the factors set forth in Article 1 894 Considering the trial court careful review of the circumstances and s the nature of the crimes we find no abuse of discretion by the trial court The trial court provided sufficient justification for the imposition of the maximum sentences allowed by law and this court finds in particular that the defendant poses a serious and grave risk to the public safety because of his extraordinarily violent behavior in committing these attempted murders Further considering the vicious and callous execution of the completely unprovoked shootings of James Paul who was shot in the chest at pointblank range and Leroy Jackson who was shot several times from behind we find the defendant to be the worst type of offender Accordingly the sentences imposed are not grossly disproportionate to the severity of the offenses and therefore are not unconstitutionally excessive The trial court did not err in denying the motion to reconsider the sentences These assignments of error are without merit CONCLUSION For the foregoing reasons we affirm the defendant convictions and s the sentences imposed CONVICTIONS AND SENTENCES AFFIRMED 2
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