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State v. Green

Court of Appeals of Louisiana, Fourth Circuit

November 15, 2017

STATE OF LOUISIANA
v.
ANTOINE GREEN

         APPEAL FROM CRIMINAL DISTRICT COURT ORLEANS PARISH NO. 527-650, SECTION "A" Honorable Laurie A. White, Judge

          Leon A. Cannizzaro, Jr. DISTRICT ATTORNEY ORLEANS PARISH Scott G. Vincent ASSISTANT DISTRICT ATTORNEY COUNSEL FOR THE STATE OF LOUISIANA.

          Christopher A. Aberle LOUISIANA APPELLATE PROJECT COUNSEL FOR DEFENDANT/APPELLANT.

          Court composed of Judge Roland L. Belsome, Judge Joy Cossich Lobrano, Judge Marion F. Edwards, Pro Tempore.

          ROLAND L. BELSOME JUDGE.

         Statement of Facts

         In the early morning hours of July 13, 2015, the Defendant entered Barcadia Bar and Grill, an establishment in New Orleans, with the intent of robbing the business. The Defendant brandished a firearm and proceeded to the money room in the back of the business. The Defendant pointed the firearm at the three people located in the money room and demanded the money be placed into a plastic bag. During this time, the Defendant was pointing the gun at Lea Wolfe, the manager on duty. When the Defendant was momentarily distracted by some activity outside of the room, one of the other victims was able to shut the Defendant outside of the room and lock the door. That action caused the Defendant to flee the scene without the money.

         Ms. Wolfe triggered the alarm alerting the police of the attempted armed robbery. Upon arrival, New Orleans Police Detective Steve Nolan viewed the surveillance recordings with the manager. Ms. Wolfe informed Det. Nolan that the suspect resembled a former employee, Antoine Green. Det. Nolan learned the name of the Defendant's then employer and went to his place of employment to discuss the incident. Det. Nolan brought Defendant to the police station where he was read his rights, and the Defendant fully confessed to the attempted armed robbery of Barcadia.

         Procedural History

         On December 23, 2015, the Defendant was charged by bill of information with attempted armed robbery while armed with a firearm. On January 11, 2016, the Defendant appeared for arraignment and entered a plea of not guilty. On March 7, 2017, the Defendant appeared for trial with counsel. Trial was continued due to the possibility of a plea offer. The state offered to remove the firearm enhancement under La. R.S. 14:64.3 (B) and request a five-year sentence in the Department of Corrections. The Defendant elected to reject the plea offer, enter a plea of guilty as charged and requested a downward departure from the mandatory sentence in accordance with State v. Dorthey.[1] Thereafter, the district court sentenced Defendant to five years.

         A Dorthey hearing was conducted immediately following sentencing to determine if a downward departure from the statutorily required minimum sentencing was warranted. Following the Dorthey hearing, the district court imposed the mandatory five-year hard labor without benefits sentence under La. R.S. 14:64.3 (B) for commission of attempted armed robbery when the dangerous weapon is a firearm. This appeal followed.

         Assignment of Error

         On appeal, the Defendant maintains that the trial court erred in making inconsistent findings regarding the excessiveness of his sentence and by declining to impose a downward departure in accordance with Dorthey.

         The Louisiana Constitution guarantees that "[n]o law shall subject any person to ... cruel, excessive or unusual punishment."[2] That protection allows the judicial branch to determine whether the range of sentences authorized by a criminal statute is excessive for a particular defendant. [3] The court must start with the presumption that a mandatory minimum sentence is constitutional.[4] In order to rebut that presumption, a defendant must clearly and convincingly prove that he is exceptional. This Court has articulated that exceptional "means that because of unusual circumstances he is a victim of the legislature's failure to ...


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