State v. Girod

• Decision Date: 28 December 2004
• Docket Number: No. 04-KA-854.,04-KA-854.
• Citation: 892 So.2d 646
• Parties: STATE of Louisiana, v. Wilton GIROD.
• Court: Court of Appeal of Louisiana — District of US

892 So.2d 646

STATE of Louisiana, v. Wilton GIROD.

No. 04-KA-854.

Court of Appeal of Louisiana, Fifth Circuit.

December 28, 2004.

Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Cameron Mary, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.

Margaret S. Sollars, Louisiana Appellate Project, Thibodaux, LA, for Defendant/Appellant.

Wilton Girod, Angola, LA, Defendant/Appellant.

Panel composed of Judges SOL GOTHARD, THOMAS F. DALEY and WALTER J. ROTHSCHILD.

WALTER J. ROTHSCHILD, Judge.

The Jefferson Parish District Attorney filed a twenty-one-count bill of information against defendant, Wilton Girod, and three other individuals, Juan Lastrapes, Avery Logue, and Reanna Mataya, charging them with theft, simple burglary, criminal damage to property and illegal possession of stolen things. Defendant pled not guilty at arraignment. On February 13, 1996, defendant went to trial before a six-person jury on counts nine and eleven, illegal possession of stolen things valued at over $500 in violation of LSA-R.S. 14:69. The jury returned a verdict of guilty as charged on both counts.

The trial judge sentenced defendant to serve a term of eight years at hard labor on each count to run concurrently. On September 6, 1996, the State dismissed the remaining charges in this case against defendant, but reserved the right to reinstate the charges. The State subsequently filed a multiple offender bill of information alleging defendant to be a fourth felony offender. After conducting a multiple offender hearing, the trial court found defendant to be a fourth felony offender, vacated the original sentence, and imposed a sentence of life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence on November 18, 1996.

On appeal, this Court found that the trial court applied the wrong version of LSA-R.S. 15:529.1 when imposing the life sentence. Under the version of the habitual offender law in effect when defendant committed the underlying offense in November of 1994, a life sentence was not mandatory for a fourth felony offender with one predicate crime of violence. Accordingly, this Court affirmed the convictions, but vacated the sentence and remanded for resentencing. State v. Girod, 96-660 (La.App. 5 Cir. 11/25/97), 703 So.2d 771, 777-778, writ denied, 98-0244 (La.6/19/98), 719 So.2d 480.

On October 12, 2001, the trial judge imposed a thirty-five-year enhanced sentence at hard labor without benefit of probation or suspension of sentence. The judge also imposed a sentence of eight years at hard labor on count eleven, to be served concurrently with the enhanced sentence. On November 15, 2001, defendant filed a pro se motion for reconsideration of sentence, which was denied on November 26, 2001. Defendant also filed a pro se Motion In Support of Defendant's Motion for Reconsideration of Sentence, which the trial court denied on January 10, 2002.¹

On or about December 14, 2001, defendant filed a pro se motion for appeal, followed by a pro se writ in this Court on April 26, 2002, seeking to compel the trial court to rule on his motion for appeal. On May 3, 2002, this Court ordered that that matter be transferred to the trial court for a ruling on the motion. Wilton Girod v. State of Louisiana, 02-KH-426, unpublished writ disposition. On May 14, 2001, the trial judge denied the motion for appeal as untimely. Defendant filed a pro se notice of intent to seek writs from the trial court's May 14, 2002 ruling, which the trial court denied as untimely on July 10, 2002.² Defendant filed a pro se application for post-conviction relief on August 2, 2002, seeking to reinstate his right to appeal, which the trial court denied as untimely. Defendant sought review with this Court, but writs were denied on December 17, 2002. State ex rel. Wilton Girod v. Burl Cain, 02-KH-1234, unpublished writ disposition. However, the Louisiana Supreme Court granted defendant's writ application and remanded the matter to the district court to grant defendant an out-of-time appeal. State v. Girod, 03-401 (La.2/13/04), 867 So.2d 672. On June 8, 2004, the trial court granted the appeal. Counsel for defendant filed a brief in this Court on July 23, 2004, and defendant filed a pro se brief asserting additional assignments of error on November 9, 2004.

FACTS³

John Russo testified that on the night of November 7, 1994, his 1986 tan Ford F-250 pickup truck ... was stolen from his business, Johnny's Crab Traps, which was located on Chef Mentuer Highway in New Orleans. He later received a telephone call from an anonymous caller reporting the location of his truck and Russo notified the police of this information.

Deputy Shane Taylor of the Jefferson Parish Sheriff's Office testified that he recovered Russo's pick-up truck at 2800 Mt. Kennedy, an apartment complex located in Jefferson Parish. When Russo retrieved his truck, he noticed that the steering column was broken, the radio was "ripped out" and his rack used to deliver crab traps was missing.

Robert Knapp, branch manager of Beard Equipment Company in Mobile, Alabama, testified that a John Deere lawn mower was stolen from Beard Equipment Company over the weekend of November 12-13, 1994. He identified an invoice for the lawn mower showing that Beard Equipment Company received it on November 8, 1994, and the invoice also showed that it was purchased for the price of $2,009.20.

Juan Lastrapes testified that he, Avery Logue, and the defendant were involved in the theft of a tan Ford F250 pick-up truck from Johnny's Crab Traps in New Orleans. Lastrapes stated that the defendant, whom he knew as "Jerome," entered the premises of Johnny's Crab Traps, "hot wired" the truck and drove it back to the defendant's apartment on Destrahan Avenue in Jefferson Parish.

Lastrapes also testified that he, Logue, the defendant and another subject named "Wayne" drove to Mobile, Alabama in Logue's car. Lastrapes stated that the defendant told Logue to pull into the driveway of a business which sold John Deere equipment. The defendant exited the car and cut the locks on the gate. There was a trailer loaded with a large lawn mower inside the gate. Defendant hitched the trailer to a truck inside the gate, "hot wired" the truck, and drove the truck out of the gate. Lastrapes next saw the lawn mower parked across the street from defendant's apartment.

[Wren] Reagan testified that in November of 1994, the defendant, whom he knew as "Baldy," offered to sell him a beige Ford 250 pickup truck, which defendant had driven to his residence located in Gretna, Louisiana. Reagan stated that he did not buy the truck, but that he did purchase a John Deere lawn mower from the defendant.

Lieutenant Toca of the Jefferson Parish Sheriff's Office testified that he conducted a search of Reagan's residence after obtaining his consent, and he found the lawn mower in the shed.

ASSIGNMENT OF ERROR NUMBER ONE

The imposition of a thirty-five year sentence under the facts of this case is both unconstitutional and excessive.

DISCUSSION

In brief filed by counsel, defendant contends that his enhanced sentence is unconstitutional because he was entitled to a jury trial of the facts found by the trial judge in the habitual offender proceeding. He also contends that the thirty-five-year sentence is constitutionally excessive because he did not use a weapon when committing the underlying offense of possession of stolen things and because the underlying offense is a non-violent crime. Finally, defendant contends the sentence should be vacated because the trial judge failed to articulate a justification for the sentence as required by LSA-C.Cr.P. art. 894.1 The State responds that defendant's sentence is not constitutionally excessive and that defendant was not entitled to a jury trial in the habitual offender proceeding.

Defendant's motion to reconsider does not contain the claim that the trial court failed to comply with the provisions of Article 894.1 The failure to file a motion to reconsider sentence, or to state the specific grounds on which the motion is based, limits a defendant to a review only for constitutional excessiveness. LSA-C.Cr.P. art. 881.1(E); State v. Dupre, 03-256 (La.App. 5 Cir. 5/28/03), 848 So.2d 149, 153, writ denied, 03-1978 La.5/14/04), 872 So.2d 509. Accordingly, defendant is not entitled to a review of this claim.

Turning to defendant's argument on constitutional excessiveness of the enhanced sentence, the Eighth Amendment to the United States Constitution and Article I, Section 20 of the Louisiana Constitution prohibit the imposition of excessive or cruel punishment. A sentence is excessive if it is grossly disproportionate to the seriousness of the offense so as to shock our sense of justice, or if it imposes needless and purposeless pain and suffering. State v. Lobato, 603 So.2d 739, 751 (La.1992); State v. Brown, 01-160 (La.App. 5 Cir. 5/30/01), 788 So.2d 667, 674.

The record discloses defendant was found to be a fourth felony offender with predicate convictions of simple robbery, possession of PCP, and possession of cocaine. As such, defendant was faced with a sentencing range of twenty years to life imprisonment without benefit of probation or suspension of sentence. See, State v. Girod, 703 So.2d at 777

. When imposing the thirty-five-year enhanced sentence on October 12, 2001, the trial judge stated that she had familiarized herself with the record and that she was imposing the sentence for the same reasons that she had previously given. At the previous sentencing in 1996, the trial judge stated that the defendant had "been around the block far too many times" and that the "Court will not allow it again."

The record supports the trial judge's statement. Defendant's birthday is July 8, 1964, and he was thirty-seven years old when the most recent enhanced sentence was imposed on October 12, 2001. According to documents introduced at the multiple offender...