State v. Danos

444 So. 2d 1269
CourtLouisiana Court of Appeal
DecidedDecember 22, 1983
Docket83 KA 0687
StatusPublished
Cited by5 cases

This text of 444 So. 2d 1269 (State v. Danos) 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. Danos, 444 So. 2d 1269 (La. Ct. App. 1983).

Opinion

444 So.2d 1269 (1983)

STATE of Louisiana
v.
Mary DANOS.

No. 83 KA 0687.

Court of Appeal of Louisiana, First Circuit.

December 22, 1983.
Writ Denied February 27, 1984.

Stephen E. Caillouet, Asst. Dist. Atty., Thibodaux, for plaintiff, State of La.

George R. Simno, III, New Orleans, for defendant, Mary Danos.

Before PONDER, WATKINS and CARTER, JJ.

CARTER, Judge.

Defendant, Mary Danos, was charged by grand jury indictment with the crime of distributing and dispensing the controlled dangerous substance placidyls (Exthchlorvynol) as defined in LSA-R.S. 40:961 and LSA-R.S. 40:964, in violation of LSA-R.S. 40:969 of the Louisiana Uniform Controlled Dangerous Substances Law.

*1270 Initially, defendant entered a plea of not guilty, but later changed her plea to guilty. She was sentenced to confinement with the Department of Corrections for ten (10) years. The sentence, however, was suspended with the requirement that defendant be placed on active probation for five (5) years, subject to the following special conditions: (1) report to a probation officer within 24 hours; (2) serve two years in the parish jail; (3) receive treatment from the Substance Abuse Clinic; (4) pay a fine of $3,500 and costs, starting one month after she is released from jail in the sum of $100 per month; and, (5) reimburse the parish sheriff's office for investigation expenses.

Defendant appeals assigning as error the failure of the trial court to adhere to the sentencing guidelines of LSA-C.Cr.P. art. 894.1. Although not assigned as error, defendant argues in brief that the sentence imposed by the trial court is excessive.

Sentencing guidelines of Article 894.1

LSA-C.Cr.P. art. 894.1 sets forth three factors which justify a sentence imposing imprisonment and eleven other factors which indicate when a suspension of sentence or probation is appropriate. The statute provides that the latter, "while not controlling the discretion of the court, shall be accorded weight" by the trial court in imposing sentence. The enactment concludes that the trial court "shall state for the record the considerations taken into account and the factual basis therefor in imposing sentence." State v. Cox, 369 So.2d 118 (La.1979); State v. Wimberly, 414 So.2d 666 (La.1982). Although the trial court is required by article 894.1 to state those factors he considered in imposing sentence, a sentence imposed without the assignment of reasons will not be automatically set aside on appeal, but will be set aside for resentencing only if the record is inadequate or if the record clearly indicates the sentence is excessive. State v. Wimberly, supra. Therefore, in accordance with our well settled jurisprudence, absolute compliance with LSA-C.Cr.P. art. 894.1 is not essential to the legality of a sentence.

Defendant contends that certain considerations listed in article 894.1, which mitigate against a sentence of imprisonment, exist in her case. Defendant reasons that the trial court should have considered the following relevant facts: (1) the victim of the defendant's criminal conduct induced and facilitated its commission; (2) the defendant has no history of prior delinquency or criminal activity and has led a law-abiding life for a substantial period of time before the commission of the instant crime; (3) the defendant's criminal conduct was the result of circumstances unlikely to recur; (4) the character and attitude of the defendant indicate that she is unlikely to commit another crime; (5) the defendant is particularly likely to respond to probationary treatment; and, (6) the imprisonment of the defendant entails excessive hardship to herself and to her husband and daughter.

We attach hereto as Appendix A and B the statements of the trial court at sentencing.

The statements contained in Appendix A and B convince this court that the trial court considered both the aggravating and the mitigating factors of LSA-C.Cr.P. art. 894.1 in imposing sentence.

Excessive Sentence

Article 1, Section 20 of the Louisiana Constitution of 1974 prohibits the imposition by law of excessive punishment. Even though a sentence is within the statutory guidelines, it may violate defendant's constitutional right against excessive punishment. State v. Sepulvado, 367 So.2d 762 (La.1979).

Defendant contends that the "harshness of a two year jail term for this 27 year old first offender, who is also a wife and mother, is apparent."

Defendant could have received the maximum penalty of ten (10) years imprisonment at hard labor and a $15,000 fine. The trial court, however, in considering the particular facts of this case and the individual characteristics of this defendant, did not impose a sentence of imprisonment at hard *1271 labor. Instead, defendant was placed on active supervised probation subject to various special conditions, including confinement in the parish jail for a period of two years.

From a review of the record, we cannot say that the trial court abused its broad discretion in imposing sentence or that the sentence imposed is excessive.

For the above reasons, we affirm the sentence.

AFFIRMED.

APPENDIX A STATE OF LOUISIANA ) 17TH JUDICIAL DISTRICT COURT VERSUS NUMBER 129626 ) PARISH OF LAFOURCHE MARY DANOS ) STATE OF LOUISIANA * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * Transcript of the Sentencing held in the above numbered and entitled matter on the 28th day of March, 1983, at Thibodaux, Louisiana, before Honorable Wollen J. Falgout, the presiding judge. * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * APPEARANCES: MR. STEPHEN E. CAILLOUET ) Representing the State. MR. HERBERT O'NIELL ) Representing the Defendant. MARY DANOS ) The Defendant. -------------------------------------------------------------------------
THE COURT:
Mary Danos, step forward please. Mary, I've known your daddy since we played marbles in high school together and if somebody would have told me then that one day I would have his daughter before me to sentence on a drug charge I would have told them they were crazy because I knew his family well, I knew his mother and father well and he was always tough, but honest and law abiding. The report that I got on you is that you had some trouble, you saw Dr. Boulet with a complaint of pain and he gave you placidyl for your pain, but that when the pain subsided that you continued getting placidyl from Dr. Boulet and you sold the placidyl to some of your friends. You have some good recommendations from some of your family and some of your friends, but from the people who work with narcotics they claim that you bought quite a quantity of drugs from Dr. Boulet who is not worth the salt of this earth and I understand he pled guilty and I hope they put his butt away pretty quick. But he uses people like you to make a living. I searched, searched and searched to justify not putting you in jail, but the law says that we must treat everybody equally and actually you're charged with one of the most serious crimes in the bunch which is distribution of placidyl. And the penalty for that is also ten years in the Penitentiary and a $15,000.00 fine.

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Related

State v. Carter
572 So. 2d 1131 (Louisiana Court of Appeal, 1990)
State v. Peterson
464 So. 2d 466 (Louisiana Court of Appeal, 1985)
State v. Turner
465 So. 2d 130 (Louisiana Court of Appeal, 1985)
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464 So. 2d 1040 (Louisiana Court of Appeal, 1985)
State v. Danos
445 So. 2d 1235 (Supreme Court of Louisiana, 1984)

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444 So. 2d 1269, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-danos-lactapp-1983.