(CMR) A man convicted and sentenced to 14 years in prison for the 2018 robbery of Czech Inn Grill restaurant was denied an application for leave to appeal the length of the sentence.
Odain Ebanks was convicted of four counts: robbery, count one; possession of a firearm with intent to commit an offense, count two; unlawful use of a firearm, count three; and possession of a prohibited weapon, namely, a canister of pepper spray, count four.
He was sentenced to 10 years on count one, 10 years on count two, 4 years on count three, and 3 years on count four. The sentences on counts one, two and four were concurrent, but the sentence of 4 years on count three was ordered to be consecutive; hence, the total sentence of 14 years imprisonment.
Ebanks applied for leave to appeal against the sentence of 14 years imprisonment imposed by Justice Carter on 11th April 2019, but there was no appeal against the conviction. Ebanks argued that the four years he was ordered to serve consecutively should have been concurrent, which would have resulted in a 10-year sentence.
The application to appeal was filed on 9th September 2021, outside the statutory period of 14 days from the date of sentence allowed for such applications; as a result, an extension of time to seek leave to appeal was also sought.
According to court documents, shortly after 11 pm on 3rd March 2018, two men entered the Czech Inn Grill restaurant, where the owner, his wife, their nine-year-old son, and two staff members were cleaning up. The two men were hooded, and their faces were covered. One of the men, described as the taller man, was armed with a handgun. The other, described as the shorter man, was armed with a canister of pepper spray. The taller man demanded to know where the takings were kept and fired a shot into the wall or the ceiling to ensure compliance.
The shorter man sprayed pepper spray into the owner's face. The robbers took money from the cash register, which contained some $700. They then got into a stolen car and made off, with the shorter man driving and the taller man with the gun in the passenger seat.
The police were contacted, and two officers spotted the car in the area of Savannah. The car failed to stop when directed, and a car chase ensued. When the car eventually stopped, the two robbers ran off on foot, pursued by the police officers also on foot. One of the robbers fired a shot at the officers, and one of the officers returned fire. The two men escaped.
DNA profiles matching Ebanks were found on the steering wheel of the stolen car, and a can of pepper spray dropped at the scene. When arrested, Ebanks denied being one of the robbers. The second man has never been caught.
The Court of Appeal, while looking at the case's merits, said the length of time it took for Ebanks to file the application and the lack of a satisfactory explanation for filing late count against the application being granted.
The judges also ruled that the four years to be served consecutively is justified as it is not part of the original offense. It is a separate offense committed for the separate purpose of trying to evade capture.
“It involved shooting at the police officers, thereby putting their lives at risk. The idea that there should be no extra penalty for behaving in such a manner is astonishing. The applicant was fortunate not to have faced a more serious charge with a higher maximum sentence than the offense actually charged as count three,” the Court of Appeal judges stated.
They further stated that the judge was absolutely correct to make the sentence on count three consecutive and said Ebanks could not have complained if the overall sentence for all the offenses had, in fact, been more than 14 years.
While Ebanks was not the one who fired the gun at the police officers, the judge found that this was a joint enterprise, and he was, therefore, to be sentenced on that basis.
“In our judgment, any appeal against sentence would be doomed to failure. In the circumstances, we refuse to extend the time within which the applicant may apply for leave to appeal against the sentence,” the Court ruled.