Opinion
No. 52,732-KA
06-26-2019
STATE of Louisiana, Appellee v. Lakeith L. DEBROW, Appellant
LOUISIANA APPELLATE PROJECT, By: Douglas Lee Harville Counsel for Appellant LAKEITH L. DEBROW Pro Se JAMES E. STEWART, SR., District Attorney MEKISHA S. CREAL, TOMMY J. JOHNSON, Shreveport, Assistant District Attorneys Counsel for Appellee
LOUISIANA APPELLATE PROJECT, By: Douglas Lee Harville Counsel for Appellant
LAKEITH L. DEBROW Pro Se
JAMES E. STEWART, SR., District Attorney MEKISHA S. CREAL, TOMMY J. JOHNSON, Shreveport, Assistant District Attorneys Counsel for Appellee
Before WILLIAMS, STONE, and COX, JJ.
STONE, J. The defendant, Lakeith Debrow, having previously been adjudicated a third-felony habitual offender, was resentenced to 65 years at hard labor without benefits. Debrow filed a motion to reconsider sentence. The trial court denied the motion and Debrow lodged the instant appeal of the imposed habitual offender sentence. For the following reasons, Debrow's sentence is affirmed.
FACTS
In 1999, Lakeith Debrow was convicted of the armed robbery and attempted second degree murder of John Sponsel ("Mr. Sponsel"), in violation of La. R.S. 14:64, 14:30.1, and 14:27. Debrow was sentenced to 60 years at hard labor for the armed robbery conviction. After adjudication as a third-felony habitual offender, Debrow was sentenced to life imprisonment for the attempted second degree murder conviction. Both sentences were imposed without benefit of probation, parole, or suspension of sentence, and ordered to be served concurrently. On appeal, this Court affirmed Debrow's convictions and sentences. State v. Debrow , 34,161 (La. App. 2 Cir. 3/2/01), 781 So. 2d 853, writ denied , 01-0945 (La. 3/22/02), 811 So. 2d 922. This Court set forth the facts of this case as follows:
Robbery and Shooting
The victim, John Sponsel, lived in Greenway Square Apartments on Youree Drive in Shreveport. At 9:30 in the evening on January 28, 1997, Sponsel heard a knock at his apartment door. Unable to see anyone through the doo[r] peephole, Sponsel opened the door. Standing in his doorway were three black males later identified by Sponsel as Jemetric Debrow, Lakeith Debrow and Clifford Owens. A black .25 caliber handgun was immediately placed to Sponsel's head by one defendant; the trigger was pulled but the gun did not fire. The other two defendants were armed with "western-style" .22 pistols. All three wore tube socks on their hands. Jemetric Debrow, Lakeith Debrow and Clifford Owens entered Sponsel's apartment and ordered him to lie face-down on his kitchen floor. They asked where his money and drugs were. One defendant stood guard over Sponsel in the kitchen while the others removed his possessions from the apartment. Among the items taken were a VCR, jacket, face-plate to a car stereo, meat from the freezer and $400.00.
The defendants were in Sponsel's apartment for 15-20 minutes. When Sponsel heard one of the defendants make a statement indicating he was going to be killed, Sponsel tried to escape. Sponsel, who had played center for several local semi-pro football teams, jumped up and rushed the defendant who was guarding him, pushed this defendant to the side and ran towards the front door. As Sponsel reached the front door of the apartment, he was shot in the back twice. Sponsel fell in the door's threshold due to his wounds. As the defendants exited the apartment, Sponsel was shot once in the head. Sponsel was unable to identify at trial which of the defendants fired the shots. The defendants fled the apartment complex in Sponsel's blue Ford Escort, having taken the keys from his apartment.
Michael Luraschi, Sponsel's neighbor, heard popping sounds and then someone crying for help. He opened his door to discover Sponsel on the ground, lying partially out [of his apartment]. Sponsel said that he had been robbed and shot. Luraschi called 911. Sponsel was [subsequently] transported to LSU Medical Center ("LSUMC").
Investigation
Shreveport Police Department ("SPD") Officers Blackman and Miller were among the first officers to arrive at the shooting scene. Sponsel was found on his back in the doorway [of his apartment], with his head outside and his feet inside. Miller reported to a later arriving detective that he was told by Sponsel that the three black males who had entered his apartment were wearing masks. Blackman also reported to a detective that he was told by EMTs that Sponsel told them he was shot while going into his apartment.
Detective Ronnie Gryder from the SPD's Homicide/Robbery Unit investigated the shooting. He described Sponsel's apartment as ransacked. Gryder noticed where a bullet had ricocheted from the wall of a breezeway outside of Sponsel's apartment [i]nto the [b]reezeway ceiling. He thought the bullet had been fired from the apartment. Gryder went to LSUMC within 90 minutes of the shooting in an attempt to interview Sponsel, but was told by hospital personnel that he could not speak to Sponsel at that time. Gryder returned to LSUMC at 1:50 a.m. on January 29th, a little over four hours after the shooting. Sponsel told Gryder that he was shot from behind as he approached the front door in his effort to escape, and then was shot in the head as the defendants left. Sponsel also told Gryder that one person shot him and that he was first shot while in the kitchen. Gryder did not find blood or shell casings inside Sponsel's apartment. Sponsel was able to give a description of only one suspect.
Detective Carolyn Eaves is an investigator with SPD's Homicide and Robbery unit. At 11:40 p.m. on the night of the shooting, Eaves received a report that Sponsel's Ford Escort had been found [ablaze] in the 1900 block of Walnut Street. The chrome rims, tires, wheels and stereo had been removed. Marlon Hanna, a friend of the three defendants, lived a short distance away from where the vehicle was found.
SPD Officer Danny Duddy was assigned to the Crime Scene Investigation Unit. He found blood on the ground and on a wall in front of Sponsel's apartment. He did not find any blood inside the apartment. Duddy lifted some partial fingerprints from the inside of the door frame, but these prints were unidentifiable. He agreed on the stand that wearing socks over hands would prevent fingerprints from being left.
Detective Cedric Wilson, an investigator with SPD, received a phone call from an anonymous caller on January 29th. The caller said that Cedric Owens and individuals with the nicknames Keke and Meme were involved in [t]he Sponsel shooting. Wilson checked the alias files and came up with the names of Jerry Wilson under "Keke" and Jemetric Debrow under "Meme." Jemetric Debrow's address of 2815 Frederick Street was consistent with information the caller had given.
Three photographic lineups were prepared and brought to Sponsel on the evening of January 30th. Sponsel was in ICU at the time. Sponsel, who was lying on his back, was unable to sit up, turn his head or hold the lineups. Each lineup, which contained six photos, was held by Gryder directly above Sponsel's face. Sponsel picked Jemetric Debrow out of the first lineup. Gryder remembered Sponsel saying that Jemetric Debrow was the one who shot him in the head. However, Wilson recalled Sponsel saying Jemetric Debrow was the person who held the .25 to his head when he opened the door. The gunman had pulled the trigger at that point, but the gun had not fired. Sponsel could not
identify anyone in the second lineup, which contained Jerry Wilson's photo. When shown the third lineup, Sponsel picked out Clifford Owens' photo. Gryder recalled that Sponsel responded that Clifford Owens was the one who shot him in the back. Wilson testified that Sponsel said Clifford Owens shot him in the back while he was trying to get away. Because Sponsel was unable to sign the rear of the photos, Wilson signed on his behalf with his permission. Arrest warrants for Clifford Owens and Jemetric Debrow were obtained. Search warrants for 2815 Frederick Street and an apartment in Sponsel's complex occupied by Owens' sister were also obtained.
Warrants were served at the Frederick Street address on the morning of February 1, 1997. SPD Detective James Sorrells gathered the evidence and filled out the search warrant return. Detective Wilson found Lakeith Debrow asleep in a bedroom in the northeast corner of the house. When Wilson asked Lakeith Debrow if he had a nickname, he said his nickname was Keke.
Wilson and Sorrells searched Jemetric Debrow's bedroom, which was in the southeast corner of the house. In this room they found a small, black Titan .25 semi-automatic pistol inside a stereo speaker, a RG short-barrel .22 pistol under a pile of clothes and a New Frontier western-style .22 pistol with a longer barrel underneath the carpet. Also discovered in the room were Jemetric's ID card and several Polaroid photos showing Clifford Owens, Jemetric Debrow, Lakeith Debrow and Marlon Hanna together.
SPD Officer Anthony Adams searched Lakeith's bedroom. He discovered a long-barrel Ruger .22 pistol and a RG .38 pistol in the headboard of a bed. Both guns were black with brown handles. Officer Duddy was unable to recover any usable fingerprints from the firearms seized at the Frederick St. home. No evidence was recovered at the apartment of Clifford Owens' sister, where Owens occasionally stayed. None of the items taken from inside Sponsel's apartment were ever recovered.
A fourth lineup, also containing six photos, was brought to Sponsel by Detective Sorrells on the night of February 1, 1997. Sponsel immediately pointed to Lakeith Debrow's photo and said that was the person who shot him. Sponsel was able to sign the rear of the photo this time.
Detective Eaves and Officer Duddy returned to Sponsel's apartment on February 4, 1997 in order to remove a projectile from the ceiling outside his apartment. The bullet was sent first to the North Louisiana Crime Lab and then to the FBI Crime Lab, but the results were inconclusive as to whether the bullet had been fired from one of the seized weapons. Detective Eaves thought the projectile was from a small caliber weapon.
On February 5, 1997, Owens, wishing to turn himself in, called Wilson from Oakland, California. The next day, Eaves and Wilson flew to Oakland to extradite Owens, who had surrendered to authorities there.
Medical Treatment
Dr. Richard Polin, a neurosurgeon, treated Sponsel for the residual effects of his gunshot wounds. Two bullets had penetrated Sponsel's nervous system. One bullet entered the left temporal lobe of the brain before fragmenting, resulting in damage to the bones and brain at the base of the skull. A second bullet entered the body in mid-back and damaged
the spinal cord at the fifth thoracic level.
Sponsel was unable to move his legs well at first because the bullet fragments stayed in the body. Dr. Polin opined that the weapons used were low caliber. Dr. Polin reviewed Sponsel's records when he was admitted to LSUMC after the shooting. Sponsel's drug screen upon admission was negative for alcohol and drugs. Sponsel was prescribed Percocet as a pain medication. Dr. Polin described Percocet as a low-potency narcotic that does not cause mental disorientation or confusion. Sponsel's orientation as to time and place was regularly tested while he was at LSUMC, and he was questioned about his personal information.
Sponsel was discharged to rehabilitation. In February of 1998, spinal fluid began leaking from his nose. A cranial procedure was performed; however, it was unsuccessful and this procedure was repeated. Sponsel continued to suffer from double vision in his right eye. Dr. Polin also testified that difficulty with concentration and patchy memory are typical results of an injury to the left temporal lobe.
***
On March 16, 2018, Debrow filed a "Motion to Amend Sentence to conform to applicable Statutory Provisions of Act No. 45; S.B. No. 126, which enacted La. R.S. 15:308 ; Correction of Illegal Sentence," in which he asserted that according to State ex rel. Esteen v. State , 16-0949 (La. 1/30/18), 239 So. 3d 233, he should be sentenced under the more lenient sentencing provisions of La. R.S. 15:308. On April 11, 2018, in a written ruling, the trial court granted the motion, stating that Debrow's "conviction and sentence as a third felony habitual offender prior to June 15, 2001, placed him among those contemplated by the legislature as eligible for retroactive application of the more lenient provisions under La. R.S. 15:529.1(A)(1)(b) as amended by Act 403 in 2001."
On August 2, 2018, during the resentencing hearing, the state put on the record, to which defense counsel agreed, that the trial "court would review the record in its entirety, specifically the PSI and any other rules or reasoning for sentencing that was handed down by the court at that time." The state also presented Mr. Sponsel to provide a victim impact statement.
Mr. Sponsel stated that he is medically considered a paraplegic as a result of this crime. He was shot in the head and has lost all of his teeth, due to the bullet in his head. Mr. Sponsel testified that he has undergone two surgeries, which has left a scar that goes across the top of his head. Mr. Sponsel currently owns his own business, where he restores classic cars, but performing those tasks has been a struggle; it is hard for him to get in and out of work, to move around in chairs, and to get up off the ground.
Mr. Sponsel understood that the sentencing range for Debrow was 33 years and 4 months to 100 years, and asked the court to consider giving Debrow 60 more years. Though this crime happened approximately 20 years ago, Mr. Sponsel testified that he still sees a psychiatrist every three months to help him deal with being shot in the head, his paranoia of people being behind him, and his overall distrust of people. To this day Mr. Sponsel still recalls that the three men who committed this crime against him, had white socks on their hands, two were armed with a .22 revolver single action pistol, and the third was armed with a .25 automatic pistol, which was the gun put to his head. Following Mr. Sponsel's victim impact statement, the resentencing hearing was continued until September 6, 2018. On September 6, 2018, Debrow's resentencing hearing was resumed. After addressing and subsequently denying Debrow's request to be appointed co-counsel, his grandmother, Ms. Bertha Debrow ("Ms. Debrow"), was called to testify on his behalf. Ms. Debrow testified that she is a 78-year-old woman who lives alone and needs the help of her grandson to assist with healthcare and things of that nature. Debrow also submitted two letters for the court's consideration in his resentencing, one from Dr. Kent Daum and the other from Dr. Daum's wife, Kathy Daum.
After considering the testimony of the victim, the two letters presented on behalf of Debrow, and the testimony of Ms. Debrow, as well as La. C. Cr. P. art. 894.1, the court resentenced Debrow to 65 years at hard labor, without benefit of probation, parole, or suspension of sentence. On September 11, 2018, a motion to reconsider sentence was filed, arguing only that the sentence was excessive. On October 11, 2018, the trial court denied the motion to reconsider sentence. A notice of appeal from the final judgment of sentence as a habitual offender was filed and granted on October 26, 2018.
DISCUSSION
On appeal, Debrow seeks review of the sentence imposed for his third-felony offender adjudication on the grounds of constitutional excessiveness. The defense contends that Debrow's 65-year sentence is unconstitutionally harsh and excessive. The defense asserts that Debrow has been incarcerated over 20 years, and according to his letters of support, he has been a model prisoner. At the time of his arrest, Debrow was only 19 years old. While his offense of conviction is serious, Debrow has been rehabilitated and punished. A sentence of 65 years is, in effect, life imprisonment and serves no purpose. Debrow argues that his sentence is excessive and must be reversed.
In reply, the state argues that the 65-year hard labor sentence is not an abuse of the trial court's discretion. The trial court enumerated reasons for his sentence, which are discussed below, in addition to considering the testimony of Mr. Sponsel, the letters on behalf of Debrow, and the testimony of Ms. Debrow. The record shows that the victim, Mr. Sponsel, continues to suffer physically and mentally from the attack, some 20 years later.
The state responds that Debrow is not entitled to a lesser sentence due to his age at the time of his arrest. Had Debrow's sentence been an actual life sentence and not a de facto life sentence, his age would not support a downward departure of the sentence. See State v. Smith , 47,285 (La. App. 2 Cir. 9/26/12), 105 So. 3d 744, writ denied , 12-2404 (La. 4/1/13), 110 So. 3d 577. As such, age should not be a factor for consideration and neither should his length of incarceration thus far, nor the claim to be a model prisoner. See State v. Guzman , 520 So. 2d 1099 (La. App. 3 Cir. 1987) ; State v. Lott , 02-702 (La. App. 5 Cir. 12/30/02), 836 So. 2d 584, writ denied , 03-0499 (La. 10/17/03), 855 So. 2d 755.
The state argues that the mitigating factors were not sufficient to warrant a lesser sentence in light of the significant harm inflicted on the victim, and that any lesser sentence would deprecate the seriousness of the offense and the injuries the victim sustained.
Applicable Law
The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial court is not required to list every aggravating or mitigating circumstance so long as the record reflects that it adequately considered the guidelines of the article. State v. Smith , 433 So. 2d 688 (La. 1983) ; State v. Watson , 46,572 (La. App. 2 Cir. 9/21/11), 73 So. 3d 471. The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical compliance with its provisions. 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 La. C. Cr. P. art. 894.1. State v. Lanclos , 419 So. 2d 475 (La. 1982) ; State v. Swayzer , 43,350 (La. App. 2 Cir. 8/13/08), 989 So. 2d 267, writ denied , 08-2697 (La. 9/18/09), 17 So. 3d 388.
The important elements which should be considered are the defendant's personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense, and the likelihood of rehabilitation. State v. Jones , 398 So. 2d 1049 (La. 1981) ; State v. Ates , 43,327 (La. App. 2 Cir. 8/13/08), 989 So. 2d 259, writ denied , 08-2341 (La. 5/15/09), 8 So. 3d 581. There is no requirement that specific matters be given any particular weight at sentencing. State v. Taves , 03-0518 (La. 12/3/03), 861 So. 2d 144 ; State v. Caldwell , 46,718 (La. App. 2 Cir. 11/2/11), 78 So. 3d 799.
Second, the court must determine whether the sentence is constitutionally excessive. A sentence violates La. Const. art. I, § 20, if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey , 623 So. 2d 1276 (La. 1993) ; State v. Smith , 01-2574 (La. 1/14/03), 839 So. 2d 1 ; State v. Bonanno , 384 So. 2d 355 (La. 1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver , 01-0467 (La. 1/15/02), 805 So. 2d 166 ; State v. Washington , 46,568 (La. App. 2 Cir. 9/21/11), 73 So. 3d 440, writ denied , 11-2305 (La. 4/27/12), 86 So. 3d 625. As a general rule, maximum or near maximum sentences are reserved for the worst offenders and the worst offenses. State v. Williams , 48,525 (La. App. 2 Cir. 11/20/13), 128 So. 3d 1250.
Ordinarily, appellate review of sentences for excessiveness utilizes the two-step process. However, when the motion to reconsider sentence raised only a claim that the sentence imposed was constitutionally excessive, a defendant is relegated to review of the sentence on that ground alone. State v. Williams , 51,667 (La. App. 2 Cir. 9/27/17), 245 So. 3d 131, citing La. C. Cr. P. art. 881.1 ; State v. Turner , 50,221 (La. App. 2 Cir. 1/20/16), 186 So. 3d 720, writ denied , 16-0283 (La. 2/10/17), 215 So. 3d 700.
The trial judge is given wide discretion in the imposition of sentences within the statutory limits, and the sentence imposed should not be set aside as excessive in the absence of a manifest abuse of his discretion. State v. Williams , 03-3514 (La. 12/13/04), 893 So. 2d 7 ; State v. Diaz , 46,750 (La. App. 2 Cir. 12/14/11), 81 So. 3d 228. On review, an appellate court does not determine whether another sentence may have been more appropriate, but whether the trial court abused its discretion. State v. Williams , 03-3514 (La. 12/13/04), 893 So. 2d 7, supra ; State v. Free , 46,894 (La. App. 2 Cir. 1/25/12), 86 So. 3d 29.
In this case, the sentence mandated under the 2011 version of La. R.S. 15:529.1(A)(1) for a third-felony offender was as follows:
(b) If the third felony is such that upon a first conviction, the offender would be punishable by imprisonment for any term less than his natural life then:
(i) the person 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;
Since Debrow's motion to reconsider sentence asserted only constitutional excessiveness, this Court's review is limited thereto. However, even though appellate review of Debrow's sentence is limited to constitutional excessiveness, an adequate factual basis for the sentence exists on this record. Therefore, we find that the trial court did not abuse its discretion in sentencing Debrow to 65 years at hard labor.
Aggravating Factors
During Debrow's resentencing hearing, the trial court stated that "the court's considerations are informed by the fact that a lesser sentence than the one the court will impose would deprecate the seriousness of the defendant's crimes pursuant to La. C. Cr. P. 894.1(A)(3)." The trial court noted the following aggravated circumstances in the instant case, per La. C. Cr. P. art. 891(B) :
(1) The offender's conduct during the commission of the offense manifested in deliberate cruelty to the victim. The victim was told he would be killed. He was shot twice in the back and once in the head and left to die. See La. C. Cr. P. 894.1(B)(1).
(2) The offender did knowingly create a risk of death or great bodily harm to more than one person. This involved the discharge of multiple firearms in an apartment. One of the rounds, at least, exited the apartment and found in a breezeway ceiling. Because they were apparently small caliber rounds, the risk was fortunately low, but there was risk to others from the repeated discharge of multiple firearms. See La. C. Cr. P. 894.1(B)(5).
(3) The offender used threats of or actual violence in the commission of the offense. The defendant was a principle to an armed robbery attempted murder that had three rounds fired all into one person. I believe at least two of the three firearms were recovered in (Debrow's) bedroom and there were photographs of him and the other two co-defendants holding the firearms identified by the victim as those used in the offense. See La. C. Cr. P. 894.1(B)(6).
(4) The offense resulted in a significant and permanent injury or significant loss to the victim and his family. The victim indicated that he was nearly made a paraplegic as a result of this attack and that he has suffered profound physical and psychological trauma. See La. C. Cr. P. 894.1(B)(9).
(5) The offender used a dangerous weapon in the commission of the offense. There were multiple firearms, enough for everyone present to have been wielding one, and they were recovered, at least two from the defendant's room. See La. C. Cr. P. 894.1(B)(10).
(6) The offense involved multiple victims or incidents, for which separate sentences have not been imposed. I only consider that aggravating, again, to the extent there were neighbors and this was an apartment. This was not a field somewhere where the risk to bystanders was minimal. But since no one else was hurt and they were low caliber firearms,
the risk was relatively low, so I do not consider that strongly aggravating as though it had been, for example, a high powered rifle discharged in the same location. See La. C. Cr. P. 894.1(B)(11).
(7) The offender was persistently involved in similar offenses, not already considered his criminal history or part of multiple offender adjudication. As Judge Bryson noted during the original sentencing, based on the fact there seems to be an escalation from illegal possession of stolen things to simple burglary to this instant offense, there does appear to be an escalation. But I do consider that as a part of the criminal history. See La. C. Cr. P. 894.1(B)(12).
(8) The discharge of a firearm in a crime that has a substantial risk that physical force may be used in the course of committing the offense that is the definition of attempted second degree murder and the defendant was convicted as a principle to that crime. See La. C. Cr. P. 894.1(B)(18).
(9) Debrow was a principle and a firearm and a dangerous weapon was used. See La. C. Cr. P. 894.1(B)(19).
(10) The trial court believes that the defendant has not demonstrated, at least in the court's presence or in any of the filings received by the court, any remorse whatsoever for the impact the crime has had on the victim and/or any acceptance of his culpability. He may continue to contest his innocence, but the evidence and the past rulings of the courts are that he is guilty of this crime and, therefore, his lack of remorse may be considered as an aggravating circumstance. See La. C. Cr. P. 894.1(B)(21).
* * *
Mitigating Factors
The only mitigating circumstance that the trial court considered was La. C. Cr. P. art. 894.1(B)(30), but did not find any evidence as to whether there would be any likelihood of responding to probationary treatment, as the trial court was not provided with any evidence that Debrow completed any programs through the Department of Corrections. The trial court found it of particular interest that Debrow has not availed himself of the opportunity to secure his GED. However, the trial court did find it somewhat mitigating, under La. C. Cr. P. art. 894.1(B)(31), that the imprisonment of the defendant would entail excessive hardship to himself or his dependents, noting that Debrow's grandmother would not have assistance with any health issues from which she may suffer.
The trial court specifically articulated the factors under La. C. Cr. P. art. 894.1, which it considered in imposing Debrow's sentence. The reasons stated by the trial court provide an adequate factual basis for the sentence imposed. The sentencing range within which the trial court was required to sentence Debrow as a third-felony offender for the conviction of attempted second degree murder, was a minimum of 33 years and 4 months and a maximum of 100 years. Considering the attempted second degree murder was committed during an armed robbery where the victim was shot twice in the back and once in the head, the imposed 65-year sentence is not constitutionally excessive. Though Debrow's sentence likely amounts to a life sentence, due to his age, the sentence imposed does not shock the sense of justice, nor is it grossly disproportionate to the severity of the offense. This assignment of error is without merit.
CONCLUSION
For the aforementioned reasons, the defendant's sentence is affirmed.