State Of Louisiana VS Anthony Jerome Kinchen
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2011 KA 2023 STATE OF LOUISIANA VERSUS ANTHONY JEROME KINCHEN Judgment Rendered June 8 2012 On Appeal from the 19th Judicial District Court in and for the Parish ofEast Baton Rouge State of Louisiana District Court No 07 10 0084 The Honorable Bonnie P Jackson Judge Presiding Frederick Kroenke Counsel for Defendant Appellant Baton Rouge La Anthony Jerome Kinchen Hillar C Moore III District Attorney Counsel for Appellee State of Louisiana Allison Miller Rutzen Brandon J Fremin April Leon Assistant District Attorneys Baton Rouge La BEFORE CARTER C PARRO AND HIGGINBOTHAM JJ J CARTER C J The defendant Anthony Jerome Kinchen was charged by bill of information with two counts of armed robbery while armed with a firearm violations of Louisiana Revised Statutes sections 14 and 14 The 64 3A 64 defendant pled not guilty to the charges and following a jury trial was found guilty as charged on both counts For each of the counts the defendant was sentenced to fifteen years at hard labor without benefit of parole probation or suspension of sentence and the additional enhancement penalty of five years at hard labor without benefit of parole probation or suspension of sentence on each count The fiveyear sentences were ordered to run consecutively to the fifteenyear sentences i e two twenty year sentences and each of the twentyyear sentences were ordered to run consecutively forty years total The defendant now appeals designating two assignments of error We affirm the convictions and sentences FACTS On the evening of March 3 2010 Trinese Cotton drove to the Capital One Bank ATM machine on Tom Drive in Baton Rouge She had her two small children with her With her children remaining in the vehicle she withdrew 300 from the ATM When she turned around the defendant was standing in front of her He pointed a handgun at her and demanded the money When she did not immediately give him the money the defendant waved the gun at her vehicle and told her to give him the money or he was going to kill her babies The defendant then grabbed the money from s Trinese hand and hit her on the head with his gun The defendant got into the back of a car and the driver of the car drove away 2 A month later on the morning of April 2 2010 Elsy Delcid was at home with her one yearold son in her townhouse on Boulevard de Province in Baton Rouge Elsy husband was not home having left for work Elsy s and her son were upstairs in Elsy bedroom s The defendant broke in through the downstairs back door He then went upstairs and kicked open the door to Elsy bedroom The defendant had a handgun and asked Elsy s where the money was When she responded that she did not have any money the defendant grabbed her pushed her into the wall and with his gun pointed at her head again demanded money When Elsy again denied having money the defendant pointed his gun at her son head s At that point Elsy told the defendant she had money in her closet The defendant went into the closet and took 500 He said the money was not enough Elsy said she had a camera so they went downstairs and the defendant also took her Sony camera The defendant told Elsy to go back to her bedroom Elsy complied and a few minutes later the defendant left the townhouse Both victims identified the defendant in a photographic lineup as the person who robbed them at gunpoint identified the defendant in court They also testified at trial and The defendant lived on Boulevard de Province which is about three miles from Tom Drive The defendant did not testify at trial ASSIGNMENTS OF ERROR NOS I and 2 In these related assignments of error the defendant argues that the aggregate forty year sentence imposed is s counsel failure to file a motion ineffective assistance of counsel to excessive reconsider and that sentence defense constitutes Specifically the defendant contends that N the trial court should have directed that his sentences be served concurrently rather than consecutively The record does not contain an oral or written motion to reconsider sentence Louisiana Code of Criminal Procedure article 881 provides 1E that the failure to 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 1563 La App 1 Cir 12 667 So 2d 1141 1143 en 95 15 Banc per curiam we would not consider an excessive sentence argument However in the interest of judicial economy we will consider the s defendant argument that his sentence is excessive even in the absence of a motion to reconsider sentence in order to address the defendant sclaim of ineffective assistance of counsel See State v Wilkinson 99 0803 La App 1 Cir 2 754 So 2d 301 303 writ denied 00 2336 La 4 00 18 01 20 790 So 2d 631 In Strickland v Washington 466 U 668 687 1984 the United S States Supreme Court enunciated the test for evaluating the competence of trial counsel First the defendant must show that counsel sperformance was deficient This requires showing that counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment Second the defendant show that the deficient performance prejudiced the defense This requires showing that counsel s errors were so serious as to deprive the defendant of a fair trial must a trial whose result is reliable Unless a defendant makes both showings it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable M In evaluating the performance of counsel the inquiry must be whether s counsel assistance was reasonable considering all the circumstances State v Morgan 472 So 2d 934 937 La App 1st Cir 1985 Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim State v Robinson 471 So 2d 1 1038 035 39 La App 1 st Cir writ denied 476 So 2d 350 La 1985 Failure to file a motion to reconsider sentence in itself does not constitute ineffective assistance of counsel App 1 State v Felder 00 2887 La Cir 9 809 So 2d 360 370 writ denied 01 3027 La 01 28 02 25 10 827 So 1173 2d However if the defendant can show a reasonable probability that but for counsel error his sentence would have s been different a basis for an ineffective assistance claim may be found See Felder 809 So 2d at 370 The Eighth Amendment to the United States Constitution and Article 1 Section 20 of the Louisiana Constitution prohibit the imposition of excessive or cruel punishment Although a sentence falls within statutory limits it may be excessive State v Sepulvado 367 So 2d 762 767 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 State v Andrews 94 0842 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 Andrews 655 So 2d at 454 The trial court has great discretion in imposing a sentence within the statutory limits and such a sentence will not be set 5 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 sets forth the factors for the trial court to 1 consider when imposing sentence While the entire checklist of Article 1 894 need not be recited the record must reflect the trial court adequately considered the criteria State v Brown 02 2231 La App 1 Cir 5 03 9 849 So 2d 566 569 The articulation of the factual basis for a sentence is the goal of Article 894 not rigid or mechanical compliance with its provisions 1 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 State v Lanclos 419 So 2d 475 478 La 1 1982 The trial judge should review the defendant personal history his s 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 1 52 La 1981 051 At sentencing the trial court stated in pertinent part Mr Kinchen you classified re as a second felony offender You had originally been charged with an armed robbery You were allowed to plead guilty on a previous offense to simple robbery You were placed on probation You also had a possession of cocaine where you got five years and on May m I sorry April 1 l th of this year the probation was revoked J and you are serving a sentence as a result of those convictions Also Mr Kinchen I note that as a juvenile you have had some run ins with law Starting in 2001 you were charged with aggravated battery and aggravated assault and a theft misdemeanor theft You were placed on an informal adjustment That agreement agreement was terminated unsatisfactorily and you were ordered to serve a sixmonth sentence which was suspended You were placed on one year 6 active supervised probation On September 9 2002 you were charged with battery of a school teacher battery of a police officer disturbing the peace The prosecution was deferred due to the sentence on the previously announced charge Then you had a simple battery in 2006 which was dismissed due to your being placed on adult probation This case involved a robbery of two women one of whom was at an ATM machine and one of whom was in her home In both instances the children of the women were present In both instances the women indicated that in an effort to further intimidate them as if having a gun were not enough you indicated that if they didn cooperate t with you that you were going to shoot their children Mr Kinchen that shows a certain level of ruthlessness and a total disregard for other people You elected you could have done a lot of things in your life but you elected to be an armed robber You elected to be a criminal And so there are consequences to that Mr Kinchen And you know you put yourself in a position where for the safety of the community as a whole you need to be placed in confinement for a substantial period of time because you have indicated that you have no intention of letting the rules that apply to everybody else apply to you You have no intention of going out and getting an education You have no intention of getting a job You decided that you wanted to pr on other people and let them y e go to work and make the money and I just you know rob ll them for it The defendant suggests that his two sentences should have run concurrently According to the defendant under Louisiana Code of Criminal Procedure article 883 the similarities of the two incidents clearly imply that they were part of a common scheme or plan We note initially that the defendant agreed to a sentence of at least forty years in exchange for the State not pursuing habitual offender proceedings against him s The s State habitual offender bill of information indicated that the defendant had previous convictions for possession of cocaine and simple robbery and sought to have the defendant adjudicated a third felony habitual offender Concurrent rather than consecutive sentences are the general rule for multiple convictions arising out of a single course of criminal conduct at least for a defendant without a prior criminal record 7 See La Code Crim Proc Ann art 883 However even if convictions arise out of a single course of conduct consecutive sentences are not necessarily excessive other factors must be taken into consideration in making this determination State v Breland 972880 La App 1 Cir 11 6 722 So 2d 51 53 98 For instance consecutive sentences are justified where an offender poses an unusual risk to public safety See Breland 722 So 2d at 53 In the instant matter the trial court specifically found that with his anti social behavior his criminal conduct and his refusal to abide by the rules of society the defendant was a threat to the safety of the community Under these circumstances the imposition of consecutive sentences for these armed robberies did not render these sentences excessive Crocker 551 So 2d 707 715 La App 1 st Cir 1989 See State v The sentences imposed for these offenses were well within the statutory limits and did not constitute an abuse of discretion by the trial court See State v Palmer 97 0174 La App 1 Cir 12 706 So 2d 156 1 97 29 60 Moreover despite the defendant contention his convictions for the s two armed robberies did not arise out of a single course of criminal conduct The armed robberies took place a month apart occurred at different times in different places and involved different victims It was clearly within the trial court discretion to order that the sentences run consecutively rather s than concurrently See State v Berry 951610 La App 1 Cir 11 96 8 684 So 439 460 writ denied 970278 La 10 703 So 2d 603 2d 97 The maximum sentence pursuant to Louisiana Revised Statutes sections 14 and 14 is 104 years imprisonment at hard labor 64B 3A 64 Thus with concurrent sentences the defendant sentencing exposure was s 8 1 04 years and with consecutive sentences his exposure was 208 years Even if the defendant had been adjudicated only a secondfelony habitual offender his sentencing would exposure imprisonment at hard labor have been over See La Rev Stat Ann 400 years 1 529 1 15 A a prior to 2010 amendments State v Shaw 06 2467 La 11 969 So 07 27 2d 1233 1245 Considering the trial court careful review of the case the s presentence investigation report the nature of the instant crimes and the fact that the actual sentences imposed were far less than the years of imprisonment the defendant faced we find no abuse of discretion by the trial court The sentences imposed are not grossly disproportionate to the severity ofthe offenses and therefore are not unconstitutionally excessive Because we find the sentences are not excessive defense counsel s failure to file or make a motion to reconsider sentence even if constituting deficient performance did not prejudice the defendant ineffective assistance of counsel therefore must fall These assignments of error are without merit CONVICTIONS AND SENTENCES AFFIRMED we His claim of
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