State v. Gay

322 So.3d 920

STATE of Louisiana, Appellee

v.Timothy GAY, Appellant

No. 53,949-KA

Court of Appeal of Louisiana, Second Circuit.

Judgment rendered June 30, 2021

LOUISIANA APPELLATE PROJECT, Lake Charles, By: Edward K. Bauman, Counsel for Appellant

JAMES E. STEWART, SR., District Attorney, Counsel for Appellee

SENAE HALL, Assistant, District Attorney

Before PITMAN, STONE, and BODDIE (Pro Tempore), JJ.

BODDIE, J. (Pro Tempore)

In the present case, after having been convicted following a jury trial for armed robbery of a convenience store on September 21, 1999, the defendant, Timothy Gay, was adjudicated a third felony habitual offender. The trial judge subsequently imposed a sentence of life imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence. On September 17, 2020, pursuant to State ex rel. Esteen v. State , 16-0949 (La. 1/30/18), 239 So. 3d 233, Gay was resentenced under the Habitual Offender Law to the mandatory statutory minimum of 66 years at hard labor, without the benefit of probation, parole, or suspension of sentence. Gay filed this appeal alleging that the sentence is constitutionally excessive. For the following reasons, we affirm the sentence.

FACTS

On September 21, 1999, while masked and armed with a pistol, Gay and an accomplice entered a convenience store on Line Avenue in Shreveport, Louisiana, and stole $120 in cash and a carton of cigarettes. Upon his arrest, Gay admitted to officers that they stole the getaway vehicle in Waskom, Texas, and had used it for an armed robbery committed in the Waskom area. Gay also admitted that he committed another armed robbery of a convenience store in Shreveport.

After the jury found Gay guilty as charged, the state filed a habitual offender bill of information based on his two 1993 convictions for felony theft of cassette tapes and simple burglary of a truck. Gay, age 24, was adjudicated a third-felony habitual offender under La. R.S. 15:529.1 (A)(1)(b)(ii). At that time, the habitual offender statute mandated a sentence of life imprisonment without benefits for crimes classified under La. R.S. 14:2 as crimes of violence. "Armed Robbery" was formerly and continues to be designated a crime of violence. La. R.S. 14:2(B)(21).

At sentencing, Gay argued that the court should impose less than the mandatory sentence of life when his young age is taken into consideration. In opposition, however, the prosecution noted that, in addition to Gay's two prior felony convictions, and the instant armed robbery conviction, he also had multiple felony charges pending against him in other cases: burglary (two counts), simple escape, battery of a police officer, aggravated perjury, and another armed robbery.

In view of this criminal history, the instant conviction, and the pending charges, the trial court found that Gay was on a crime spree, and that a lesser sentence than the mandatory minimum of life imprisonment was not warranted. The trial court sentenced Gay to life imprisonment without benefits.

On appeal, Gay argued that the trial court erred by failing to impose a sentence less than the mandatory minimum under the habitual offender statute. State v. Gay , 34,371 (La. App. 2 Cir. 4/4/01), 784 So. 2d 714. This court held that Gay's sentence was not constitutionally excessive, noting that Gay's numerous offenses comprised "a one-man crime wave." Id. at 716. In view of Gay's criminal history, including the instant armed robbery and the other crimes to which Gay confessed, the panel concluded:

[H]e is a career criminal and a menace to society. He has no proper regard for the property or lives of others and is willing to put people in jeopardy of receiving great bodily harm or death in his pursuit of acquiring property through violent crime.

....

There is no clear and convincing demonstration that the mandated sentence is constitutionally excessive.

Id. at 717. Gay's conviction and sentence were affirmed. Id.

On July 5, 2018, Gay filed a motion to correct an illegal sentence, complaining that he was entitled to resentencing in light of Esteen , supra . The trial court denied relief, but on supervisory review this court ruled that the district court erred by failing to apply the 2001 ameliorative amendments provided by La. R.S. 15:308(B) to Gay's third-felony offender adjudication. We reversed the ruling and remanded the matter to the district court for application of the 2001 revisions of La. R.S. 15:529.1.

On November 4, 2019, the trial court resentenced Gay to 66 years at hard labor without benefits, the mandatory statutory minimum under the habitual offender statute. However, on August 14, 2020, since Gay was resentenced without legal representation present, this court granted his writ, vacated the sentence, and remanded the matter to the trial court to appoint counsel for Gay before sentencing.

On September 17, 2020, Gay appeared with appointed counsel for resentencing. Gay asked the trial court to consider granting him the benefit of parole. The court sentenced Gay to the mandatory minimum of 66 years at hard labor, without benefit of probation, parole, or suspension of sentence. The sentence was imposed to run concurrently with any other sentence Gay was serving with credit for time already served and notice of the delays to appeal the sentence and to seek post-conviction relief.

On September 29, 2020, Gay filed a motion to reconsider sentence, arguing that his sentence was constitutionally excessive and again asking the trial court to grant him the benefit of parole eligibility, in light of paragraph (G) of La. R.S. 15:529.1, which denies only the benefit of probation and suspension of sentence, not parole. The court denied reconsideration, and this appeal followed.

DISCUSSION

By his sole assignment of error, Gay alleges that the court imposed a constitutionally excessive sentence.

Gay is currently 44 years old. He has served more than 20 years of the original life sentence, now retroactively reduced to 66 years without benefits. He has approximately 46 years remaining in his sentence, and he will not be eligible for release until age 90, which, in effect, is a life sentence.

Gay argues that the trial court "should have imposed the maximum sentence found not to be constitutionally excessive, as opposed to the mandatory minimum sentence." The trial court was obligated, he maintains, to construe the Louisiana Habitual Offender Law so as to avoid excessive punishment, and to particularize the sentence imposed to the offender and the offense. State v. Dorthey , 623 So. 2d 1276 (La. 1993). The 66-year sentence for an offense committed at age 24, for $120.00 and some cigarettes, is excessive. Gay contends that these facts show that this offense was not the worst of offenses, and that his prior felony convictions for theft of cassette tapes and burglary of a truck show that he is not the worst of offenders. He further complains that his trial counsel remained silent during the proceedings, making no attempt to show why a deviation from the mandatory minimum was warranted in this case; nor did his attorney discuss Gay's personal history and his potential for rehabilitation.

The state argues that the 66-year term falls within the sentencing range established by the legislature and serves the purpose of the law, namely, to deter and punish recidivism. Gay failed to present clear and convincing evidence that the mandatory minimum sentence in his case was so excessive that it violated the constitution such that a downward departure was warranted.

Gay was adjudicated as a third-felony habitual offender under La. R.S. 15:529.1. In 2001 La. Act No. 403, the legislature amended La. R.S. 15:308(A) to provide more lenient penalty provisions for certain enumerated crimes. These penalty provisions apply prospectively and retroactively to June 15, 2001, and apply to any crime committed subject to the revised penalties on and after such date. These more lenient penalty provisions apply to habitual offenders convicted or sentenced under La. R.S. 15:529.1(A)(1)(b)(ii) and (c)(ii), provided that their application ameliorates the person's circumstances.

As amended, La. R.S. 15:529.1(A)(1)(b)(i) now provides that a third-felony offender shall be sentenced to imprisonment for a determinate term not less than two-thirds of the longest possible sentence for the conviction and not more than twice the longest possible sentence prescribed for a first conviction. La. R.S. 15:529.1(A)(1)(b)(ii) no longer authorized a life sentence for a third-felony offender unless the third felony and the two prior felonies were either (1) felonies defined as a crime of violence under La. R.S. 14:2(13) ; (2) a sex offense as defined in La. R.S. 15:540 et seq. when the victim is under the age of 18 at the time of the offense; or (3) a violation of the Uniform Controlled Dangerous Substances Law punishable for 10 years or more or any other crime punishable by imprisonment for 12 years or more. By contrast, the pre-2001 version required imposition of a life sentence for a third-felony offender if the third felony or any of the prior felony offenses fell into the categories listed above.

La. R.S. 15:529.1(G) states that any sentence imposed under the habitual offender provisions shall be at hard labor without benefit of probation or suspension of sentence. Regarding the imposition of a habitual offender sentence without benefit of parole, the conditions imposed on the sentence are determined by the sentencing provisions for the underlying offense. State v. Hopkins , 52,660 (La. App. 2 Cir. 4/10/19), 268 So. 3d 1226, 1230, writ denied , 19-00841 (La. 9/24/19), 278 So. 3d 978. State v. Sullivan , 51,180 (La. App. 2 Cir. 2/15/17), 216 So. 3d 175 ; State v. Thurman , 46,391 (La. App. 2 Cir. 6/22/11), 71 So. 3d 468, writ denied , 11-1868 (La. 2/3/12), 79 So. 3d 1025. The penalty for armed robbery is imprisonment at hard labor for not less than 10 years and for not more than 99 years, without benefit of...