Opinion
NO. 2014-KA-0146
05-14-2014
STATE OF LOUISIANA v. STEVEN J.WINDSOR
Leon A. Cannizzaro, Jr. District Attorney Kyle Daly Assistant District Attorney Parish of Orleans COUNSEL FOR APPELLEE, STATE OF LOUISIANA Katherine M. Franks LOUISIANA APPELLATE PROJECT COUNSEL FOR DEFENDANT/APPELLANT, STEVEN J. WINDSOR
NOT DESIGNATED FOR PUBLICATION
APPEAL FROM
CRIMINAL DISTRICT COURT ORLEANS PARISH
NO. 389-171, SECTION "I"
Honorable Karen K. Herman, Judge
Judge Dennis R. Bagneris, Sr.
(Court composed of Judge Dennis R. Bagneris, Sr., Judge Roland L. Belsome, Judge Joy Cossich Lobrano) Leon A. Cannizzaro, Jr.
District Attorney
Kyle Daly
Assistant District Attorney
Parish of Orleans
COUNSEL FOR APPELLEE, STATE OF LOUISIANA
Katherine M. Franks
LOUISIANA APPELLATE PROJECT
COUNSEL FOR DEFENDANT/APPELLANT, STEVEN J. WINDSOR
SENTENCE AFFIRMED
The defendant, Stephen J. Windsor, appeals the sentence imposed arising out of his conviction for illegal discharge of a firearm during a crime of violence. Because we find that the trial court retained its jurisdiction to sentence the defendant and the sentence imposed was not constitutionally excessive, we affirm the sentence.
STATEMENT OF CASE
On April 22, 1997, the State charged Mr. Windsor and another co-defendant with one count of attempted armed robbery. Mr. Windsor was also charged with illegal use of a firearm. On September 18, 1997, a twelve-member jury found the defendant guilty as charged as to both counts. After his adjudication as a second felony offender, he was sentenced to serve ninety-nine years at hard labor without benefit of parole on the attempted armed robbery count. The minute entries and commitment order showed that Mr. Windsor was sentenced to twenty years at hard labor without benefit of parole for the illegal use of a weapon charge to run concurrently; however, the transcript indicated that he was sentenced for two and one-half years on that charge. The trial court denied Mr. Windsor's motion for reconsideration. Upon appeal, this Court affirmed Mr. Windsor's convictions on both counts. However, because of the discrepancies in the record regarding the actual sentence imposed on the illegal use of a weapon count, that sentence was vacated and the matter was remanded for re-sentencing as to the weapons charge.
State v. Jasmine and Windsor, unpub. 98-0243 (La. App. 4 Cir. 5/24/00), writ denied, 2000-2021 (La. 9/21/01), 797 So.2d 61.
Mr. Windsor timely sought writ review to the Louisiana Supreme Court to challenge this Court's ruling. On July 12, 2000, while the case was still pending before the Supreme Court, the trial court re-sentenced Mr. Windsor to serve twenty years at hard labor without benefit of parole on the weapons count, the sentence to run concurrently with Mr. Windsor's previously affirmed ninety-nine year sentence. Mr. Windsor timely noted his intent to appeal his resentencing. In June 2013, we granted his motion for an out of time appeal. STATEMENT OF THE FACTS
The writ application was summarily denied. State v. Windsor, 2000-2021 (La. 09/21/01), 797 So.2d 61.
State v. Windsor, unpub. 2013-0742 (La. App. 4 Cir. 6/19/13).
A summary of the facts indicate that Mr. Windsor and an accomplice attempted to rob the victim at gunpoint while the victim was in the midst of getting out of his truck was parked near his residence. The victim was ordered out of his truck and was told that he was "jacked." The victim also had a gun; and Mr. Windsor and he exchanged gunfire. The victim later identified Mr. Windsor's jacket as the jacket worn by the man who tried to rob him. He also identified Mr. Windsor in a photographic lineup as the man who tried to rob him. ASSIGNMENT OF ERROR NUMBER 1
See State v. Jasmine and Windsor, supra, for a more detailed account of the facts.
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In this assignment of error, Windsor claims the trial court erred in imposing the twenty-year sentence while the case was on appeal. He argues the trial court lacked jurisdiction to impose sentence. DISCUSSION
As referenced in State v. Jasmine and Windsor, unpub. 98-0243, p.3-4, (La. App. 4 Cir. 5/24/00), there was a conflict among the minute entry, commitment forms, and the sentencing transcript as to whether the trial court intended to sentence the defendant to two and one-half years or twenty years on the illegal use of a weapon count. As a result, this Court held: "Considering the discrepancies in the record, we have decided to vacate Windsor's sentence on Count 2 and to remand the case for resentencing." Windsor at 4.
La. C.Cr.P. art. 916 provides in part: "The jurisdiction of the trial court is divested and that of the appellate court attaches upon the entering of the order of appeal. Thereafter, the trial court has no jurisdiction to take any action except as otherwise provided by law and to:
* * * *
(2) Correct an error or deficiency in the record...."
In State v. Grubbs, 93-2559 (La. App. 4 Cir. 10/25/94), 644 So.2d 1105, defendant argued on appeal that the trial court was without authority to correct the original sentencing transcript from five years to the intended sentence of fifteen years once the original appeal was granted. However, the Grubbs decision rejected that argument. Citing La. C.Cr.P. art. 916(2), this Court held that the trial court retained jurisdiction to correct an error in the transcript; accordingly, the fifteen year sentence imposed was affirmed. Grubbs at 1115.
In the present matter, at Mr. Windsor's re-sentencing hearing, the trial court confirmed the deficiencies in the record by noting that the multiple bill sentencing transcript did not reference the illegal discharge count. After that notation, the trial court then proceeded to sentence Mr. Windsor to the maximum sentence under R.S. 14:94(F), which was twenty years. Therefore, inasmuch as there was an error or deficiency in the record, the trial court retained jurisdiction for the limited purpose of correcting the sentencing record.
Mr. Windsor also complains that he was prejudiced at the resentencing hearing because he received only stand-in counsel and was unable to present evidence in mitigation. However, our review of the July 12, 2000 re-sentencing transcript reveals no prejudice. The record reflects that he was given the opportunity to reset the hearing; that he was represented at the hearing by his previous trial counsel; and that his counsel had the opportunity to present any mitigating factors. Moreover, the Louisiana Supreme Court ultimately denied his writ application and in conjunction therewith, he has been permitted to challenge his sentence in the instant appeal.
La. C.Cr.P. art. 921 provides in part that a judgment or ruling shall not be reversed by an appellate court because of any error or defect that does not affect substantial rights of the accused. Because no prejudice has been shown and Mr. Windsor's substantial rights were not affected, any error in his re-sentencing would amount to harmless error.
For the reasons asserted herein, this assignment of error is without merit. ASSIGNMENT OF ERROR NUMBER 2
Did the trial court err by imposing a twenty-year sentence for the conviction under R.S. 14:94(F)? DISCUSSION
Louisiana Constitution of 1974, art. I, § 20 provides in pertinent part, "[n]o law shall subject any person to ... excessive ... punishment." Although a sentence is within statutory limits, it can be reviewed for constitutional excessiveness. A sentence is unconstitutionally excessive when it imposes punishment grossly disproportionate to the severity of the offense or constitutes nothing more than needless infliction of pain and suffering. A trial judge has broad discretion when imposing a sentence and a reviewing court may not set a sentence aside absent a manifest abuse of discretion. On appellate review of a sentence, the relevant question is not whether another sentence might have been more appropriate but whether the trial court abused its broad sentencing discretion. State v. Smith, 2001-2574, pp.6-7 (La. 1/14/03), 839 So.2d 1, 4; State v. Wilson, 2011-0960, (La.App. 4 Cir. 9/05/12) 99 So.3d 1067 at 1071, writ denied, 2012-2255 (La. 3/8/13), 109 So.3d 358.
At the re-sentencing hearing, Mr. Windsor's counsel argued that inasmuch as Windsor had been sentenced to ninety-nine years at hard labor on his conviction in count one, that the imposition of the maximum sentence as to count two would needlessly impose suffering and serve no useful purpose. The trial court noted counsel's argument and proceeded to sentence Mr. Windsor to the maximum sentence of twenty years for his violation of La. R.S. 14:94(F). In support of this sentence, the trial judge observed that the jury found that Mr. Windsor chose to discharge his firearm during an attempted arm robbery and that the victim had been wounded. The trial court ordered that the sentence for the illegal discharge count was to run concurrently with the ninety-nine year sentence imposed for the attempted armed robbery conviction.
This court has already determined that Mr. Windsor's ninety-nine year sentence as to count one was not excessive. Windsor, 98-0243 at 9-11. While the twenty-year sentence imposed is the maximum sentence allowed under La. R.S. 14:94(F), the record reflects that the trial judge did not abuse his discretion. See State v. Ross, 2012-0109 (La. App. 4 Cir. 4/17/13), 115 So. 3d 616, where a twenty-year sentence was also assessed for a similar offense. In this case, the trial court considered the specific circumstances of the crime. It determined that the maximum sentence was warranted since the weapon was discharged during the attempted armed robbery, the victim was wounded, and that Mr. Windsor had a previous incarceration for attempted armed robbery. CONCLUSION
Wherefore, based on the foregoing reasons, Mr. Windsor's re-sentencing for violation of La. R.S. 14:94(F), illegal discharge of a weapon, is affirmed.
SENTENCE AFFIRMED