State v. Colvin

65 So. 3d 669, 2010 La.App. 4 Cir. 1092, 2011 La. App. LEXIS 470, 2011 WL 1498378
CourtLouisiana Court of Appeal
DecidedApril 20, 2011
DocketNo. 2010-KA-1092
StatusPublished
Cited by4 cases

This text of 65 So. 3d 669 (State v. Colvin) 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. Colvin, 65 So. 3d 669, 2010 La.App. 4 Cir. 1092, 2011 La. App. LEXIS 470, 2011 WL 1498378 (La. Ct. App. 2011).

Opinion

ROLAND L. BELSOME, Judge.

| ¡.Defendant-Appellant appeals the trial court’s imposition of six consecutive ten-year sentences for his conviction of six counts of felony theft. For the reasons that follow, we affirm the conviction, vacate the sentences imposed by the trial court, and remand for resentencing.

FACTS AND PROCEDURAL HISTORY

On June 24, 2009, Defendant-Appellant John Colvin was charged by indictment with six counts of felony theft over five hundred dollars in violation of La. R.S. 14:67. The victims were individuals whose homes were destroyed during Hurricane Katrina. Defendant accepted payments from each of the six victims in amounts varying from $40,000 to $65,000, for a total of $247,000.00. In each case, after accepting payments from the victims, Defendant failed to build modular homes as promised. Defendant is currently sixty-four years of age and has no prior criminal record.

At his arraignment on June 29, 2009, Defendant entered a plea of not guilty. Counsel for Defendant filed several pretrial motions, including a motion for a preliminary hearing. On August 3, 2009, following a hearing, the trial court found probable cause for the issuance of an arrest warrant. Trial was set for November 9, 2009. On the day of trial, Defendant withdrew his pleas of not guilty and entered Dpleas of guilty as to all six counts. The trial court requested that a pre-sen-tence investigation report be prepared1.

The trial court subsequently sentenced defendant to the maximum of ten years at hard labor on each of the six counts, to be served consecutively, and victim restitution. This appeal followed.

ERRORS PATENT

A review of the record for errors patent reveals none.

DISCUSSION

In his first assignment of error, Defendant asserts he has properly preserved for appellate review his claim that the sentences rendered are unconstitutionally excessive and that the trial court failed to properly consider mitigating factors for sentencing leniency.

La.C.Cr.P. art. 881.1 provides in pertinent part:

A. (1) Within thirty days following the imposition of sentence or within such longer period as the trial court may set at sentence, the state or the defendant may make or file a motion to reconsider sentence.
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[672]*672B. The motion shall be oral at the time of sentencing or in writing thereafter and shall set forth the specific grounds on which the motion is based.
E. Failure to make or file a motion to reconsider sentence or to include a specific ground upon which a motion to reconsider sentence may be based, including a claim of exces-siveness, shall preclude the state or the defendant from raising an objection to the sentence or from urging any ground not raised in the motion on appeal or review.

“[T]he failure to object to the sentence as excessive at the time of sentencing or to file a written motion to reconsider sentence precludes appellate review of the [4claim of excessiveness.” State v. Robinson, 98-1606, p. 9 (La.App. 4 Cir. 8/11/99), 744 So.2d 119, 125.

Defendant herein did not object or file a motion for reconsideration of sentence. In support of the assertion that his claim has been properly preserved, however, Defendant relies upon State v. Kirkling, 2004-1906, pp. 5-7, (La.App. 4 Cir. 5/18/05), 904 So.2d 786, 789-790, wherein the defendant was convicted of attempted carjacking as a second felony offender and purse snatching and asserted that the concurrent twenty-year maximum sentence was excessive under the circumstances. Although the defendant in Kirkling did not object to the sentence or file a motion for reconsideration, this Court held that a copy of a letter from the defendant asking the court to reconsider his sentence sufficed to preserve the defendant’s claim of excessive sentence:

Again, neither Mr. Kirkling nor his counsel objected to the sentence or filed a timely motion for reconsideration of that sentence. However, at the close of the multiple bill hearing, Mr. Kirkling asked the trial judge if he had received a letter from him. Although the judge indicated he had not read any letters from Mr. Kirkling, the judge accepted Mr. Kirkling’s offer to provide him with a copy of the letter. The judge also ordered that the letter, dated June 29, 2004, be filed in the record. A copy of that letter in which Mr. Kirkling requests the judge reconsider his sentence is in the record on appeal. Given these circumstances, we find the trial court’s express order at the conclusion of the multiple bill hearing that Mr. Kirkling’s letter be included in the record was equivalent to the trial court noting Mr. Kirkling’s objection to the sentence and thus sufficient to preserve his claim of excessiveness as to his re-sentencing on count one (attempted carjacking as a second felony offender). See [State v.] Miller, [00-0218 (La.App. 4 Cir. 7/25/01), 792 So.2d 104, 111].

Kirkling, 2004-1906, pp. 5-7, 904 So.2d 786, 791.

In this case, the record contains a written memorandum in support of probationary sentence filed on February 5, 2010, prior to the sentencing date of | ¡¡February 12, 2010. We find that Defendant’s memorandum, upon which the trial court signed, dated, and wrote the word “denied,” sufficiently preserved his claims for appellate review.

In his second assignment of error, Defendant argues that the trial court faded to give proper consideration to the mitigating factors for leniency set forth in his memorandum at the sentencing hearing. Defendant further argues that his sentences, which total sixty (60) years imprisonment, are unconstitutionally excessive and/or in violation of the statutory sentencing guidelines.

[673]*673Article 1, Section 20 of the Louisiana Constitution of 1974 prohibits “cruel, excessive, or unusual punishment.” A sentence within the statutory limits may still violate a defendant’s constitutional right against excessive punishment. State v. Sepulvado, 367 So.2d 762, 767 (La.1979). A sentence is unconstitutionally excessive if it makes no measurable contribution to acceptable goals of punishment, is nothing more than the needless and purposeless imposition of pain and suffering, and is grossly out of proportion to the severity of the crime. State v. Lobato, 603 So.2d 739, 751 (La.1992). A sentence is grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. Id. (citing State v. Hogan, 480 So.2d 288 (La.1985)).

The underlying offense is felony theft, a violation of La. R.S. 14:67. La. R.S. 14:67 provides, in pertinent part:

A. Theft is the misappropriation or taking of anything of value which belongs to another, either without the consent of the other to the misappropriation or taking, or by means of fraudulent conduct, practices, or representations. An intent to deprive the other permanently of whatever may be the subject of the misappropriation or taking is essential.

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Related

State v. Jones
122 So. 3d 1065 (Louisiana Court of Appeal, 2013)
State v. Slattery
116 So. 3d 804 (Louisiana Court of Appeal, 2013)
State v. Wilson
99 So. 3d 1067 (Louisiana Court of Appeal, 2012)
State v. Colvin
85 So. 3d 663 (Supreme Court of Louisiana, 2012)

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Bluebook (online)
65 So. 3d 669, 2010 La.App. 4 Cir. 1092, 2011 La. App. LEXIS 470, 2011 WL 1498378, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-colvin-lactapp-2011.