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STATE V. SINGLETON v. JERMAINE SINGLETON.

August 21, 1996

STATE V. SINGLETON, 96-203 (LA.APP. 5 CIR. 8/28/96); ___ SO.2D ___ STATE OF LOUISIANA

v.

JERMAINE SINGLETON.



APPEAL FROM TWENTY-NINTH JUDICIAL DISTRICT COURT, PARISH OF ST. CHARLES, NO. 94-0692, STATE OF LOUISIANA, HONORABLE MARY ANN VIAL LEMMON, J.

Before CANNELLA and DALEY, JJ., and GARVEY, J. Pro Tem.

DALEY, Judge.

FOR PUBLICATION

August 28, 1996.

Defendant, Jermaine Singleton, assigns four errors of the trial court in its sentencing of him after his guilty plea to four counts of armed robbery, in violation of LSA-R.S. 14:64. Defendant does not appeal the underlying conviction. After thorough review of the record, we affirm the defendant's sentence.

ASSIGNMENTS OF ERROR

Defendant argues the trial court committed the following errors in his sentence:

1) The trial court had no authority to deny "good-time" eligibility to defendant;

2) The denial of "good-time" eligibility to defendant constitutes an ex post facto application of the law;

3) The trial court erred in deviating upward from the Louisiana Sentencing Guidelines, resulting in an excessive sentence; and

4) The trial court failed to consider the considerable mitigating factors, resulting in the imposition of an excessive sentence.

On December 14, 1994, the St. Charles Parish District Attorney filed a bill of information charging defendant, Jermaine Singleton, with four counts of armed robbery, in violation of LSA-R.S. 14:64. The state also charged Larry Singleton, Jr. and Aric C. Lewis as codefendants. Defendant was arraigned on December 14, 1994, and entered a plea of not guilty.

On May 3, 1995, the state filed a motion to invoke the firearms sentencing provisions under LSA-C.Cr.P. art. 893.1, et seq. The trial court granted the state's motion over defendant's objection. On the same day, Singleton withdrew his former plea of not guilty, and entered a guilty plea as to all charges. The trial court held a sentencing hearing on October 23 and October 27, 1995, during which the defendant produced the testimony of several witnesses. On December 20, 1995, the trial court sentenced defendant to a term of seventeen years on each count, without benefit of parole, probation, or suspension of sentence, each count to run concurrently with the others. The court granted defendant credit for time served.

On December 27, 1995, defendant filed a motion to reconsider sentence and a motion for appeal. The trial court granted defendant's motion for appeal and denied the Motion to Reconsider Sentence. On January 9, 1996, defendant filed an amended motion to reconsider sentence. The trial court denied the amended motion on January 10, 1996.

Defendant, a seventeen year old high school student, along with his cousin, Larry Singleton, Jr., and Aric Lewis, armed robbed four individuals inside the First American Bank in Luling on the morning of December 2, 1994. Each of the three perpetrators concealed his identity by wearing a mask or other covering on his face. Defendant carried a .45 caliber chrome-plated handgun. Larry Singleton carried a twelve gauge pump shotgun with a pistol grip, and Aric Lewis had a .380 semi-automatic handgun.

The young men entered the bank with guns drawn, and ordered everyone inside to lie on the floor and threatened their lives. The perpetrators demanded money, and tellers placed $123,577 in currency from the bank's vault and teller drawers in the robbers' green knapsack and white pillowcase. The three perpetrators then left the bank. A witness working at a business across the street saw the three young men leave the bank and drive away in a grey Pontiac automobile.

Detective Al Theriot of the St. Charles Parish Sheriff's Office spotted the car shortly thereafter, and pursued it. An automobile chase followed, which ended in Ama, Louisiana when the robbers' car hit a tree. After the collision the three young men fled on foot, and were eventually apprehended by deputies. Upon searching the trunk of the car, the officers found the three guns used in the robbery, as well as the knapsack and the pillowcase containing all the money taken from the bank. On the same day, defendant, Jermaine Singleton, made a recorded statement to police, confessing his part in the robbery.

ASSIGNMENT OF ERROR ONE

In his first assignment, defendant complains that the trial court erred in designating that his sentences be served without eligibility for diminution of sentence for good behavior, or "good time." We disagree. The trial court's authority to deny eligibility for good time derives from LSA-C.Cr.P. art. 890.1, which provides:

Notwithstanding any provision of law to the contrary, if a person is convicted of or pleads guilty to a crime of violence as defined in R.S. 14:2(13) and is sentenced to imprisonment for a stated number of years or months, the sentencing court may deny or place conditions on eligibility for diminution of sentence for good behavior unless diminution of sentence is prohibited by R.S. 15:571.3(C) or (D).

Article 890.1 was enacted by Acts 1995, No. 946, and became effective on August 1, 1995, several months before defendant was sentenced. Armed robbery is a crime of violence as defined in R.S. 14:2(13).

It is defendant's contention that the legislature did not intend for trial courts to have the discretion to deny good time until January 1, 1997. Defendant argues that, because the legislature specifically delayed the effective dates of certain newly amended portions of R.S. 15:571.3, its intent was to also delay the effective dates of related LSA-C.Cr.P. article 890.1. We reject this argument.

While it is true that Acts 1995, No. 1099 specifically designates January 1, 1997 as the effective date for revisions to subsections (A) and (B) of R.S. 15:571.3, subsections (C) and (D) (the portions cited in Article 890.1) are not included in that designation. In fact, subsections (C) and (D) were in effect in their present forms prior to the 1995 legislative session.

ASSIGNMENT OF ERROR TWO

Defendant here contends that because Article 890.1, granting the trial judge the discretion to restrict or deny good time eligibility, became effective after he committed the December 2, 1994 armed robberies, and after he was convicted, the article was applied ex post facto. Ex post facto application of criminal laws by the state is prohibited by Article I, Section 10 of the United States Constitution and by Article I, Section 23 of the Louisiana Constitution. An ex post facto law, by definition, is one which is "passed after the occurrence of a fact or commission of an act, which retrospectively changes the legal consequences of such fact or deed." Black's Law Dictionary, p. 520 (Rev. 5th ed. 1979).

The United States Supreme Court, in Collins v. Youngblood, 497 U.S. 37, 110 S.Ct. 2715, 111 L.Ed.2d 30 (1990), determined that the constitutional prohibition against ex post facto laws is triggered only by a statute which:

. . . punishes as a crime an act previously committed, which was innocent when done; which makes more burdensome the punishment for a crime, after its commission, or which deprives one charged with crime of any defense available ...


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