State v. Bastian

681 So. 2d 420, 96 La.App. 4 Cir. 0997, 1996 La. App. LEXIS 1948, 1996 WL 528831
CourtLouisiana Court of Appeal
DecidedSeptember 11, 1996
DocketNo. 96-K-0997
StatusPublished
Cited by1 cases

This text of 681 So. 2d 420 (State v. Bastian) 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. Bastian, 681 So. 2d 420, 96 La.App. 4 Cir. 0997, 1996 La. App. LEXIS 1948, 1996 WL 528831 (La. Ct. App. 1996).

Opinions

hWALTZER, Judge.

The State invokes our supervisory jurisdiction to review a multiple offender sentence. Specifically, the State argues that the trial court failed to state adequate reasons to support imposition of a six year sentence at hard labor, thus deviating from the mandatory sentence of life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence.

STATEMENT OF THE CASE

The defendant was charged by bill of information with two counts of forgery, violations of La.R.S. 14:72. After the defendant was convicted of one count of forgery (the jury could only find him guilty either of the “false making or altering, with intent to defraud ... of any writing purporting to have legal efficacy” or of the “issuing or transferring, [421]*421with intent to defraud, a forged writing ... ”, but not of both), the defendant was charged as a multiple offender. The prosecution used this forgery conviction, a previous conviction of unauthorized use of a movable valued in excess of $1,000 and a simple robbery conviction in order to multiple bill him as a third felony offender. Under La.R.S. 15:529.1(A)(l)(b)(ii), La.R.S. 14:2(13)(y) and La.R.S. 14:72, the mandatory sentence in 12this case is life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence.

DISCUSSION

In State v. Bernard Morgan, 96-0354 (La.App. 4 Cir. 4/17/96), 673 So.2d 256, this Court summarized our application of the principles announced by the Louisiana Supreme Court in State v. Dorthey, 623 So.2d 1276 (La.1993). We reiterated that sentencing, and the review of sentences, is within the exclusive authority of the judicial branch. Our extensive review included State v. Sepulvado, 367 So.2d 762, 766 (La.1979); State v. Abbott, 94-1046 (La.App. 4 Cir. 2/23/95), 650 So.2d 1223; State v. Eric Kingston, 95-1935 (La.App. 4 Cir.1/19/96), 668 So.2d 395; State v. Young, 94-1636 (La.App. 4 Cir.10/26/95), 663 So.2d 525; State v. Eggerson, 95-1337 (La.App. 4 Cir. 9/15/95), 661 So.2d 1096; and State v. Daniel Hyorth, 95-1181 (La.App. 4 Cir.9/15/95), 661 So.2d 1059, all of which concerned the imposition of sentences under Dorthey. The Supreme Court has issued several per curiam opinions which, while resolving the issues in those particular cases, provide little analysis or reasoning to support the court’s rulings. Accordingly, the intermediate appellate courts of this State are left without guidance in determining the standards to employ when deciding whether to uphold a trial court’s decision to impose a sentence below that required by the Habitual Offender Law.

In State v. Kelly, 95-2335 (La.2/2/96), 666 So.2d 1082, the court, in a per curiam opinion reversed an unpublished decision of this Court, State v. Johnnie Kelly, 95-0861 (La.App. 4 Cir. 8/23/95), 658 So.2d 1343. In Kelly, the trial court stated its reasons for imposing a sentence below the statutory minimum. Although State law required the defendant in that case to receive six to twenty-four years without benefit of probation, parole, or suspension of sentence, the trial judge sentenced the defendant to serve twenty-eight months with the Department of Corrections. There, the trial judge remarked that he felt justified in the deviation, | ^because the defendant was convicted of having entered an abandoned structure without permission of the HANO Board. The judge opined that the defendant was sleeping in the abandoned structure, and considered the defendant’s age, concluding that the statutorily mandated incarceration of six years was unwarranted.

Upon review, this Court stated that “[t]he court found that the defendant’s age, background and the facts of the instant case did not justify the statutorily mandated minimum sentence. The court clearly understood that the test in Dorthey requires that before a sentence can be reduced below the mandatory minimum, the court must find the mandatory minimum sentence unconstitutionally excessive as to the defendant. The record satisfies us that there was such a finding.”

In reversing, the Supreme Court stated merely that “[although the trial judge cited Dorthey in his reasons, it does not appear that he made a proper finding that imposition of the statutorily mandated sentence would be constitutionally excessive.” State v. Kelly, 95-2335 at 1, 666 So.2d 1082. The Court then remanded the ease for the trial court to “justify its deviation from the statutorily-mandated minimum sentence in this case.” Id., at 1; 666 So.2d 1082. After remand from the Supreme Court, the trial court again imposed a six year sentence and the state filed a writ application in this court. On 1 May 1996, this Court, with one judge dissenting, granted the state’s application: “... the trial court states that a six-year prison term would be excessive considering Mr. Kelly’s age and non-violent criminal history, but failed to address the jurisprudential factors considered in determining the mandatory minimum sentence is unconstitutionally excessive.” (emphasis in the original). The Court then remanded the matter to the trial [422]*422court “for resentencing in accordance with the Supreme Court’s prior Order ...”

I4TW0 other per curiam decisions by the Supreme Court use the same language as in Kelly, but again provide no assistance to the district courts or the intermediate appellate courts when determining what is a “proper finding” that the minimum sentence would be constitutionally excessive. State v. Webster, 95-2484 (La.2/2/96), 666 So.2d 654; State v. Hamilton, 95-2462 (La.2/2/96), 666 So.2d 655. The only guide provided by the Supreme Court is found in three concurring opinions by the Chief Justice:

Dorthey gives the district court the authority to depart from the mandatory minimum sentences provided by the legislature only in those rare instances in which the punishment provided violates the prohibition of La.Const. art. I, Sec. 20 against excessive sentences. The district court should therefore make express findings according to the jurisprudential standards governing the determination of whether a particular sentence is excessive. Perhaps more importantly, the district court should also state fully for the record the factual basis underlying its determination for purposes of facilitating appellate review.

Webster, p. 1 of concurring opinion, 666 So.2d at 655; Hamilton, p. 1 of concurring opinion, 666 So.2d at 656; Kelly, p. 1 of concurring opinion, 666 So.2d at 1083.

PROCEEDINGS IN THE INSTANT CASE

In the present case, the defendant was previously convicted of unauthorized use of a movable valued in excess of $1,000, and simple robbery. His present offense is forgery. Under La.R.S. 15:529.1(A)(l)(b)(ii), La.R.S. 14:2(13)(y), and La.R.S. 14:72, the mandatory sentence in this case is life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. At sentencing the trial court stated:

The Court feels to impose a mandatory life sentence for these offenses-unauthorized use of a movable, in my opinion, valued at $1,000 is barely a felony offense. Forgery, the charge for which he was convicted by a jury, is a felony offense. I do not condone what he did. I am not convinced that he took the man’s social security check, but I am convinced that he did attempt to cash the social security check at a check cashing place.

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Related

State v. Lacoste
695 So. 2d 1121 (Louisiana Court of Appeal, 1997)

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Bluebook (online)
681 So. 2d 420, 96 La.App. 4 Cir. 0997, 1996 La. App. LEXIS 1948, 1996 WL 528831, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-bastian-lactapp-1996.