State v. Anderson

677 So. 2d 480, 1996 WL 230787
CourtLouisiana Court of Appeal
DecidedMay 8, 1996
DocketCr 95-1688
StatusPublished
Cited by38 cases

This text of 677 So. 2d 480 (State v. Anderson) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Anderson, 677 So. 2d 480, 1996 WL 230787 (La. Ct. App. 1996).

Opinion

677 So.2d 480 (1996)

STATE of Louisiana, Plaintiff-Appellee,
v.
Charles E. ANDERSON, Defendant-Appellant.

No. Cr 95-1688.

Court of Appeal of Louisiana, Third Circuit.

May 8, 1996.

*481 William E. Tilley, Leesville, for State of Louisiana.

Tony Clell Tillman, Leesville, for Charles E. Anderson.

Before DOUCET, C.J., and THIBODEAUX and DECUIR, JJ.

DECUIR, Judge.

Defendant, Charles E. Anderson, was charged with four counts of aggravated incest, in violation of La.R.S. 14:78.1A and B. Pursuant to a plea agreement, defendant entered pleas of no contest to counts one and three and the remaining counts were dismissed. On count one, defendant was sentenced to pay a fine of $2,500.00, plus court costs, and serve fifteen years at hard labor, with credit for time served. The last five *482 years of the sentence were suspended and defendant was placed on supervised probation for four years on the suspended portion of the sentence. The probationary period was to begin upon defendant's release from prison. The conditions of probation required that the defendant: 1) pay $25.00 per month supervision fee beginning one month after defendant is released from prison; 2) make restitution to the victim in the sum of ten thousand dollars; 3) serve nine months without hard labor in the Parish Jail, deferred and to be served at the pleasure of the trial court; 4) refrain from contact with the victim until she has reached the age of majority, and not even then without her express consent and under such conditions as the trial court may impose; 5) if defendant has not paid the fine and court costs prior to his release, defendant shall do so within ninety days following his release; and 6) make restitution to the Indigent Defender Board in the sum of $750.00.

Defendant was sentenced on count three to serve fifteen years at hard labor, to run concurrently with the sentence imposed on count one. Five years of the sentence were suspended and defendant was placed on supervised probation for four years on the suspended portion of the sentence. Defendant's probation was to begin with the date of his release and subject to the condition imposed on count one, provided that the conditions as to the dollar amount shall not apply. The trial court noted, for example, there will be no additional restitution to the victim or to the Indigent Defender Board. Defendant filed a motion to reconsider sentence which was denied by the trial court. Defendant lodged this appeal.

FACTS

COUNT ONE: Between December 30, 1993 and March 7, 1994, defendant committed aggravated incest by having sexual intercourse and committing crime against nature on his fourteen (14) year old stepdaughter.

COUNT THREE: Between September 2, 1994 and November 28, 1994, defendant committed aggravated incest by having sexual intercourse and committing crime against nature on his fourteen (14) year old stepdaughter.

ERRORS PATENT

Pursuant to La.Code Crim.P. art. 920 we have reviewed the record for errors patent on its face. We find no errors patent.

ASSIGNMENTS OF ERROR NOS. 1 and 3

By defendant's first assignment of error, he argues the trial court erred in imposing an excessive sentence upon him. By defendant's third assignment of error, he argues the trial court erred in failing to give adequate and due consideration to mitigating factors. Since defendant argues these assignments of error together, we will address them together.

Defendant was sentenced on October 17, 1995 after the effective date, August 15, 1995, of Act No. 942, Section 3, of the 1995 Legislative Session which repealed the sentencing guidelines, thus, this court need only review the sentence for constitutional excessiveness.

New requirements for sentencing were added in La.Code Crim.P. art. 894.1. Paragraph A of Article 894.1, as amended, basically reinstated the previous law. Paragraph B of Article 894.1, as amended, added thirty-three (33) factors that could be considered by the sentencing court in its determination of suspension of sentence or probation. These factors are similar to those listed as aggravating and mitigating circumstances in § 209 of the Louisiana Sentencing Guidelines. Paragraph C of Article 894.1, as amended, requires the sentencing court to state for the record the considerations taken into account and the factual basis therefor in imposing sentence. Paragraph D of Article 894.1, as amended, requires the sentencing court to advise the defendant of certain information regarding his sentence. Paragraph E of Article 894.1, as amended, requires the Department of Public Safety and Corrections to provide the required information to the sentencing judge before sentencing of a felony defendant. Paragraph F of Article 894.1, as amended, provides that no sentence shall be declared unlawful or inadequate for the sentencing *483 court's failure to comply with the provision of paragraph D.

Article 1, § 20 of the Louisiana Constitution of 1974, prohibits "cruel, excessive, or unusual punishment." A sentence which falls within the statutory limits may nevertheless be excessive under the circumstances. State v. Sepulvado, 367 So.2d 762 (La.1979); State v. Naquin, 527 So.2d 601 (La.App. 3 Cir.1988). To constitute an excessive sentence this court must find that the penalty is so grossly disproportionate to the severity of the crime as to shock our sense of justice, or that the sentence makes no measurable contribution to acceptable penal goals and, therefore, is nothing more than needless imposition of pain and suffering. State v. Campbell, 404 So.2d 1205 (La.1981); State v. Everett, 530 So.2d 615 (La.App. 3 Cir.1988), writ denied, 536 So.2d 1233 (La.1989). The trial judge is given wide discretion in imposing a sentence, and a sentence imposed within the statutory limits will not be deemed excessive in the absence of manifest abuse of discretion. State v. Howard, 414 So.2d 1210 (La.1982).

The Legislature has provided criteria to aid a sentencing court in determining whether a sentence of imprisonment should be imposed and whether suspension of a sentence or probation is warranted. La. Code Crim.P. art. 894.1; State v. Klause, 525 So.2d 1076 (La.App. 3 Cir.1988). Paragraph C of Article 894.1 requires the court to state for the record the considerations taken into account and the factual basis used when imposing a sentence. The sentencing court need not articulate every circumstance or read through a checklist of items to comply with the requirements of La.Code Crim.P. art. 894.1. State v. Pontiff, 604 So.2d 71 (La.App. 3 Cir.1992). However, the record must affirmatively reflect that adequate consideration was given to the codal guidelines in particularizing the defendant's sentence. State v. Smith, 433 So.2d 688 (La.1983).

If there is an adequate factual basis for the sentence contained in the record, the trial court's failure to articulate every circumstance listed in Article 894.1 will not necessitate a remand for resentencing. State v. Cottingin, 476 So.2d 1184 (La.App. 3 Cir. 1985), appeal after remand, 496 So.2d 1379 (La.App. 3 Cir.1986); State v. Morgan, 428 So.2d 1215 (La.App. 3 Cir.1983), writ denied, 433 So.2d 166 (La.1983); See also, Smith, 433 So.2d 688 and State v. Stein, 611 So.2d 800 (La.App. 3 Cir.1992). Even though art. 894.1 has undergone several major revisions, the reasoning used in these cases is still applicable.

Defendant was convicted for violations of La.R.S. 14:78.1. La.R.S. 14:78.1D provides:

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Cite This Page — Counsel Stack

Bluebook (online)
677 So. 2d 480, 1996 WL 230787, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-anderson-lactapp-1996.