The opinion of the court was delivered by: SIRICA
I have concluded, as a matter of law, that there is no prohibition against consecutive sentences for robbery and assault with a dangerous weapon where they took place in the same chain of events.
The Court of Appeals decision in Irby v. United States, No. 19,988 (March 15, 1967), is the closest authority to the contrary, and therefore, it will be distinguished from the instant case.
First : The Court of Appeals in Irby expressly based its decision on the statutory requirements for housebreaking, one of which is that there be a specific intent to commit some criminal offense (such as robbery as in the Irby case). The Court of Appeals said: "Housebreaking, by the terms of the statute, is committed in preparation for some other criminal offense which is intended at the time of entry."
Now with respect to robbery and assault with a dangerous weapon, there is no statutory requirement that the "force" or "putting in fear" element of robbery be by means of an assault with a dangerous weapon. The statutory requirements can be met even without any putting in fear or force such as by sudden or stealthy snatching. Similarly, there is no statutory requirement that the necessary elements of an assault with a dangerous weapon include a robbery or an intent to commit robbery. In the present case, there is no statutory requirement for either robbery or assault with a dangerous weapon, that there be a specific intent to commit the other.
In both Irby and Prince v. United States, 352 U.S. 322, 77 S. Ct. 403, 1 L. Ed. 2d 370 (1957), which was cited in Irby, there was a specific intent connection between the two offenses involved.
In this connection, the 1958 decision by the Supreme Court in Gore v. United States, 357 U.S. 386, 78 S. Ct. 1280, 2 L. Ed. 2d 1405, lends support for the permissibility of consecutive sentences in the present case. In that case the petitioner had been given consecutive sentences involving violations of three separate narcotics statutes. The separate violations arose out of the same narcotics transaction. The Supreme Court affirmed the consecutive sentences.
Accordingly, it is my view that it is entirely proper to increase the punishment where there have been convictions under the conventional robbery statute and under the statute prohibiting assaults with a dangerous weapon by imposing consecutive sentences.
Third: Wholly apart from the statutory considerations, I think the evidence is clear that the three separate assaults with a dangerous weapon for which the defendant Suggs has been convicted were separated by both time and distance from the actual robbery. The evidence shows that the assaults took place either in the parking lot of the store or near the door to the store - whereas the robbery took place in the office of the store after three of the four robbers marched the store personnel back into the store. Had the criminal venture been interrupted during the entry into the store, the assaults with a dangerous weapon would nevertheless have already been completed.
For the foregoing reasons the Court finds no legal or statutory prohibition against consecutive sentences in this kind of case. Of course, the particular affirmative reasons why consecutive sentences might or might not be imposed in any given case is a matter within the discretion of the sentencing judge based upon factual considerations. These considerations are irrelevant to the present discussion which is limited to whether consecutive sentences are permissible in a case such as the present one, not whether they should be imposed.
STATEMENTS BY THE COURT AT SENTENCE HEARING ON MAY 4, 1967
After counsel for the defendant Suggs made a statement on behalf of the defendant, and after the defendant himself indicated that he did not desire to speak in his own ...