State Of Louisiana VS Frank James Celestine, Jr.
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA FIRST CIRCUIT NO 2011 KA 0752 STATE OF LOUISIANA VERSUS f i FRANK JAMES CELESTINE JR r S Judgment Rendered December 21 2011 On Appeal from the 32nd Judicial District Court in and for the Parish of Terrebonne State of Louisiana District Court No 497 233 The Honorable David W Arceneaux Judge Presiding Bertha M Hillman Counsel for Defendant Appellant Thibodaux La Frank James Celestine Jr Joseph L Waitz Jr District Attorney Counsel for Appellee State of Louisiana Jason P Lyons Ellen Daigle Doskey Assistant District Attorneys Houma La BEFORE CARTER C PARRO AND HIGGINBOTHAM JJ J CARTER C J The defendant Frank James Celestine Jr was charged by bill of information with armed robbery a violation of Louisiana Revised Statutes section 64 14 After entering a plea of not guilty the defendant waived his right to a trial by a jury and elected to proceed with a bench trial The defendant was convicted as charged and sentenced to imprisonment for ten years at hard labor without the benefit of probation parole or suspension of sentence The defendant filed a motion for reconsideration of the sentence which the trial court denied after a hearing The defendant appeals urging in a single assignment of error that his sentence is excessive Finding merit in the assigned error we affirm the defendant conviction s vacate the sentence and remand the matter to the trial court for resentencing FACTS On October 10 2007 at approximately 9 p Lakisha Ray and 30 m Kimberly Johnson employees at the Dollar Tree in Houma Louisiana completed their closing procedures and prepared to make the nightly deposit As was routine Johnson the cashier was to follow Ray the assistant manager to a nearby bank to make the deposit Ray placed the sealed deposit bag inside a Dollar Tree bag with some of her personal belongings As the women exited the store they observed a man clad in all black clothing standing outside an adjacent store Because there were other stores in the area still open the women did not find the man presence s alarming briefly Ray walked Johnson over to her vehicle and the women conversed Shortly thereafter Ray observed the man who was now wearing an orange ski mask running toward her The man was armed with what Ray described as a pointed object in his hand Ray dropped the bag and all of its 2 contents and ran to a nearby restaurant to call the police As she ran she looked back and observed the man rummaging through the Dollar Tree bag she had been holding Officer Milton Rodrigue of the Terrebonne Parish Sheriffs Office was dispatched to the area to locate the perpetrator The defendant was observed walking from behind a Home Depot store located within a mile of the Dollar Tree The defendant was holding among other things a Dollar Tree bag The defendant voluntarily told Officer Rodrigue that someone ran up to him and gave him money During a pat down for officer safety a clear plastic deposit bag with cash was removed from the defendant right pants pocket s A blackhandled knife with a six inch blade was later found inside the Dollar Tree bag The defendant provided committing the robbery a taped statement wherein he admitted to At trial the defendant testified and gave a detailed account of how he carried out the robbery He explained that at the time of the offense he and Kimberly Johnson were engaged He stated that Johnson was not aware of his intent to commit the robbery and that she had no involvement in the commission of the robbery The defendant claimed he was deeply depressed and decided to commit the robbery with the hopes of being caught and killed The defendant explained that at some point after the offense was committed he changed his mind about wanting to get caught and told the police that an unidentified individual had approached him with a gun and gave him the money Kimberly Johnson testified at the trial and corroborated the defendant s claim that they were engaged when he committed the offense Johnson indicated she was unaware that the defendant intended to commit the robbery She claimed 3 the defendant had never done anything like this Johnson further testified that the defendant is currently still her boyfriend and they intend to get married Tina Celestine the defendant mother also testified at the trial s She explained that the defendant was an honor graduate from Ellender High School and a member of the National Honor Society In high school the defendant was the school drum major and vice president of the high school band Ms Celestine further testified that the defendant suffered from mental illness stemming back to the age of fifteen She explained that the defendant once attempted to commit suicide by hanging himself The defendant was treated at Chabert Medical Center and later treated for mental health issues at River Oaks Hospital in New Orleans The defendant was placed on Zoloft and Abilify for depression Ms Celestine testified that prior to the incident the defendant had stopped taking his medication She explained that when the defendant first got off his medication he appeared fine however he entered into a depression slump Ms Celestine stated that prior to the instant offense the defendant had never been arrested She did not understand why the defendant committed the instant offense EXCESSIVE SENTENCE In his sole assignment of error the defendant argues the trial court erred in imposing an excessive sentence and in failing to give adequate consideration and weight to the relevant mitigating factors of the sentencing guidelines set forth in Louisiana Code of Criminal Procedure article 894 Specifically he contends the 1 trial court failed to consider in mitigation that he accepted responsibility for the offense he was under psychiatric care when he committed the offense he had no prior criminal history he had no history of drug or alcohol abuse he graduated from high school with honors he was only eighteen years old when he committed the offense he was gainfully and steadily employed and all of the money taken was eventually recovered by Dollar Tree Article I Section 20 of the Louisiana Constitution prohibits the imposition of excessive punishment Although a sentence may be within statutory limits it may violate a defendant sconstitutional right against excessive punishment and is subject to appellate review State v Sepulvado 367 So 2d 762 767 La 1979 Generally a sentence is considered excessive if it is nothing more than the needless imposition of pain and suffering State v Reed 409 So 2d 266 267 La 1982 A sentence is considered grossly disproportionate if when the crime and punishment are considered in light of the harm to society it is so disproportionate as to shock one sense of justice Id A trial court is given wide discretion in the s imposition of sentences within statutory limits and the sentence imposed should not be set aside as excessive in the absence of a manifest abuse of discretion State v Lanclos 419 So 2d 475 478 La 1982 The Louisiana Code of Criminal Procedure sets forth items that must be considered by the trial court before imposing sentence La Code Crim Proc Ann art 894 The trial court need not cite the entire checklist of Article 894 1 but the 1 record must reflect that it adequately considered the criteria State v Herrin 562 So 2d 1 11 La App 1st Cir writ denied 565 So 2d 942 La 1990 In light of the criteria expressed by Article 894 1 a review for individual excessiveness should consider the circumstances of the crime and the trial court stated reasons s and factual basis for its sentencing decision State v Craddock 101473 La App 1 Cir 3 62 So 3d 791 795 writ denied 11 0862 La 10 73 So 3d 11 25 11 2 W10a 5 In State v Dorthey 623 So 2d 1276 128081 La 1993 the Louisiana Supreme Court recognized that if a trial court determines that the minimal mandated punishment makes no measurable contribution to acceptable goals of punishment or that the sentence amounts to nothing more than the purposeful imposition of pain and suffering and is grossly out of proportion to the severity of the crime he is duty bound to reduce the sentence to one that would not be constitutionally excessive In State v Johnson 971906 La 3 709 So 2d 672 the Louisiana 98 4 Supreme Court reexamined the issue of when Dorthey permits a downward departure from mandatory minimum sentences presumption that the mandatory minimum The court held that to rebut the sentence was constitutional the defendant had to clearly and convincingly show that he is exceptional which in this context means that because of unusual circumstances this defendant is a victim of the legislature s failure to assign sentences that are meaningfully tailored to the culpability of the offender the gravity of the offense and the circumstances of the case Johnson 709 So 2d at 676 quoting State v Young 94 1636 La App 4 Cir 95 26 10 663 So 2d 525 531 Plotkin J concurring writ denied 953010 La 96 22 3669 So 2d 1223 It is not the role of the sentencing court to question the wisdom of the legislature in setting mandatory minimum punishments for criminal offenses See Johnson 709 So 2d at 677 Rather the sentencing court is only allowed to determine whether the particular defendant before it has proven that the mandatory minimum sentence is so excessive in his case that it violates our constitution Johnson 709 So 2d at 677 Armed robbery carries a penalty of imprisonment at hard labor for not less than ten years or more than ninety nine years without benefit of parole probation 1 or suspension of sentence La Rev Stat Ann 14 64B As previously noted the defendant herein was sentenced to the statutory minimum imprisonment of ten years at hard labor without benefit of parole probation or suspension of sentence Our review of the record in this case reveals that prior to imposing the sentence the trial court reviewed the facts of the offense and specifically stated that consideration was given to the sentencing guidelines set forth in Article 894 1 Contrary to the defendant assertions the court specifically considered s in mitigation the defendant youthful age that the weapon used was a knife that no s one was physically harmed during the offense and that the defendant had no prior criminal history and was an honor student in high school The court further noted Well I state for the record that I have absolutely no objection ll to any special programs that the Department of Public Safety and Corrections can offer Mr Celestine It appears to me based on everything that I observed and ve seen in connection with this case that this incident was an aberration s There something terribly inconsistent with the life that Mr Celestine led and this incident on that particular night and I don know what it t was But hopefully the Department of Public Safety and Corrections through whatever special programs it has can find a way to put Mr Celestine back on the right path So I have no objection to any work release program or any special program that he may be eligible to participate in I still don know Mr Celestine what happened to you and t re you going to have to serve this sentence which is the minimum that I could give you under the law Unless the Department of Public Safety and Corrections has some other angle that I not aware of m and sometimes they do but I suspect that I won see you back here t again But let see if Iwrong all right s m Based upon our review of the record and the circumstances in this case we find the tenyear mandatory minimum sentence without benefit of parole probation or suspension of sentence to be constitutionally excessive While the instant offense of armed robbery is undoubtedly a serious offense we note that the VA defendant admitted to committing the offense The record reflects that the defendant an otherwise exemplary citizen suffers from bouts of deep depression The defendant has clearly and convincingly shown exceptional circumstances demonstrating that he is a victim of the legislature failure to assign a sentence s meaningfully tailored to his culpability the gravity of the offense and the circumstances of the case Considering all of the mitigating factors established in the record and the trial court reasons which demonstrate a clear reluctance to s impose the tenyear sentence we find that a downward departure from the mandatory minimum sentence was warranted in this case A sentence of imprisonment at hard labor for ten years without benefit of parole probation or suspension of sentence for this defendant on this record is disproportionate to the harm done and shocks one sense of justice See State v Hayes 971526 s La App 1 Cir 6 739 So 2d 301 304 writ denied 99 2136 La 6 99 25 00 16 764 So 2d 955 Thus the sentence is constitutionally excessive This assignment of error has merit CONCLUSION For the foregoing reasons we affirm the defendant sconviction vacate the sentence and remand the matter to the trial court for resentencing CONVICTION AFFIRMED SENTENCE VACATED REMANDED FOR RESENTENCING I The trial court reasoned If I could have given you less Mr Celestine I would have because of the particular circumstances for your case But under the law I could not I gave you the minimum ten years 8 STATE OF LOUISIANA STATE OF LOUISIANA COURT OF APPEAL VERSUS FIRST CIRCUIT FRANK JAMES CELESTINE JR NO 2011 KA 0752 BEFORE CARTER C PARRO AND HIGGINBOTHAM JJ J HIGGINBOTHAM J AFFIRMS IN PART DISSENTS IN PART AND ASSIGNS WRITTEN REASONS HIGGINBOTHAM J affirming in part and dissenting in part I respectfully disagree in part with the majority opinion because I would affirm both the conviction and the sentence The trial judge in this case specifically considered and found that the mandatory minimum sentence of ten years imprisonment at hard labor was not unconstitutional as it applied to this particular defendant While the defendant admitted to committing the crime he gave no compelling reason or excuse for choosing to commit a violent crime Based upon my review of the record I do not find that the defendant has clearly and convincingly shown that he is exceptional in order to warrant a downward departure from the mandatory minimum sentence A trial judge has wide discretion in imposing a sentence within statutory limits and the sentence imposed should not be set aside as excessive in the absence of a manifest abuse of that discretion State v Lanclos 419 So 475 478 La 2d 1982 Given the trial judge well articulated reasons that he considered prior to s imposing the mandatory minimum sentence which took into consideration all of the mitigating factors outlined by the defendant in his brief the trial judge did not abuse his discretion For these reasons I respectfully dissent in part
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