State v. Davis

975 So. 2d 95, 2008 La. App. LEXIS 18, 2008 WL 80689
CourtLouisiana Court of Appeal
DecidedJanuary 9, 2008
DocketNo. 42,907-KA
StatusPublished

This text of 975 So. 2d 95 (State v. Davis) 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. Davis, 975 So. 2d 95, 2008 La. App. LEXIS 18, 2008 WL 80689 (La. Ct. App. 2008).

Opinions

WILLIAMS, J.

| ,The defendant, Tommy Louis Davis, was charged by bill of information with attempted second degree murder in violation of LSA-R.S. 14:27 and 14:30.1. Following a trial, a jury found the defendant guilty as charged. He was adjudicated a second felony offender and was sentenced to serve 40 years in prison at hard labor without benefit of probation, parole or suspension of sentence. This court affirmed the defendant’s conviction, but vacated the habitual offender adjudication and sentence. State v. Davis, 41,245 (La.App.2d Cir.8/9/06), 937 So.2d 5.

On remand, the defendant was sentenced to serve 25 years in prison at hard labor without benefit of probation, parole or suspension of sentence, with credit for time served. For the reasons that follow, we affirm the defendant’s sentence.

FACTS

On April 28, 2004, the defendant entered the home where his ex-girlfriend, Victoria Moore, and her sister were putting their [97]*97young children, including the defendant’s infant daughter, to bed. The defendant entered the house and asked Moore to come with him. When she refused, the defendant dragged her out of the house. Moore escaped and ran back inside, and the defendant re-entered the home and locked himself and Moore in a bathroom where he began stabbing her. While they were shut in the bathroom, Moore?s wheelchair-bound grandmother was able to open the bathroom door allowing Moore to flee. The defendant followed Moore into the living room where he began to stab her again. Moore suffered multiple stab wounds and a collapsed lung.

_[¿The defendant was charged by bill of information with attempted second degree murder and was convicted as charged. He was initially sentenced to 25 years at hard labor without benefit of parole, probation, or suspension of sentence. The defendant was subsequently adjudicated as a second felony offender based on a prior felony conviction in Texas, and the trial court vacated the original sentence and imposed a new sentence of 40 years in prison at hard labor without benefit of parole, probation or suspension of sentence. On appeal, this court affirmed the conviction, but reversed the habitual offender adjudication. Finding that the state failed to prove that the current offense occurred before the expiration of the 10-year “cleansing period” following his discharge from custody for the prior conviction, this court vacated the sentence and remanded for further proceedings to determine the defendant’s status as a habitual offender and for resentencing.

After remand, the defendant filed a motion to quash the habitual offender bill. On January 10, 2007, the trial court minutes reflect that the trial court sentenced the defendant to 25 years in prison at hard labor, with the first 10 years to be served without benefit of probation, parole or suspension of sentence. In doing so, the trial court ordered that the record from the original sentencing of the defendant be made a part of the record.

On January 22, 2007, the defendant filed pleadings purportedly seeking an appeal from the new sentence, but the pleadings were treated by the court as a motion to reconsider sentence. In response to this filing and the motion to quash the habitual offender bill filed before his resentencing, lathe trial court vacated the new sentence and reset the matters for hearing.

At the resentencing hearing, the trial court informed the defendant that the sentence imposed on January 10, 2007 had been vacated and gave the defendant an opportunity to address the court before resentencing. Relying on the contents of the pre-sentence investigation and the reasons given for the original sentence of 25 years’ imprisonment imposed before the habitual offender adjudication, the trial court sentenced the defendant to 25 years in prison at hard labor without benefit of probation, parole or suspension of sentence with credit for time served. The court stated that any lesser sentence would deprecate the seriousness of the offense. This appeal followed.

DISCUSSION

The defendant contends the sentence imposed is excessive for this offense and this offender. The defendant argues that in imposing sentence, the trial court failed to adequately consider his age, the effect of the sentence on his family and his previous criminal history.

The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth .in [98]*98LSA-C.Cr.P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Lathan, 41,855 (La.App.2d Cir.2/28/07), 953 So.2d 890. The articulation of the factual basis for a sentence is the goal of Article U894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with Article 894.1. State v. Lanclos, 419 So.2d 475 (La.1982); State v. Hampton, 38,017 (La.App.2d Cir.1/28/04), 865 So.2d 284, writs denied, 2004-0834 (La.3/11/05), 896 So.2d 57, 2004-2380 (La.6/3/05), 903 So.2d 452. The important elements which should be considered are defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense and likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Haley, 38,258 (La.App.2d Cir.4/22/04), 873 So.2d 747, writ denied, 2004-2606 (La.6/24/05), 904 So.2d 728.

A sentence violates La. Const, art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Smith, 2001-2574 (La.1/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 2001-0467 (La.1/15/02), 805 So.2d 166; State v. Lobato, 603 So.2d 739 (La.1992).

The trial judge is given wide discretion in the imposition of sentences within the statutory limits, and the sentence imposed by him should not be set aside as excessive in the absence of a manifest abuse of his discretion. (State v. Williams, 2003-3514 (La.12/13/04), 893 So.2d 7; State v. Thompson, 2002-0333 (La.4/9/03), 842 So.2d 330; State v. Hardy, 39,233 (La.App.2d Cir.1/26/05), 892 So.2d 710. A trial judge is in the best position to consider the aggravating and mitigating circumstances of a particular case, and, therefore, is given broad discretion in sentencing. State v. Cook, 95-2784 (La.5/31/96), 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996). On review, an appellate court does not determine whether another sentence may have been more appropriate, but whether the trial court abused its discretion. Id.

In selecting a proper sentence, a trial judge is not limited to considering only a defendant’s prior convictions, but may properly review all prior criminal activity. State v. Russell, 40,526 (La.App.2d Cir.1/27/05), 920 So.2d 866, writ denied,

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Related

State v. Davis
937 So. 2d 5 (Louisiana Court of Appeal, 2006)
State v. Hardy
892 So. 2d 710 (Louisiana Court of Appeal, 2005)
State v. Myles
638 So. 2d 218 (Supreme Court of Louisiana, 1994)
State v. Hampton
865 So. 2d 284 (Louisiana Court of Appeal, 2004)
State v. Dorthey
623 So. 2d 1276 (Supreme Court of Louisiana, 1993)
State v. Cook
674 So. 2d 957 (Supreme Court of Louisiana, 1996)
State v. Weaver
805 So. 2d 166 (Supreme Court of Louisiana, 2002)
State v. Bonanno
384 So. 2d 355 (Supreme Court of Louisiana, 1980)
State v. Jones
398 So. 2d 1049 (Supreme Court of Louisiana, 1981)
State v. Smith
839 So. 2d 1 (Supreme Court of Louisiana, 2003)
State v. Lathan
953 So. 2d 890 (Louisiana Court of Appeal, 2007)
State v. Williams
893 So. 2d 7 (Supreme Court of Louisiana, 2004)
State v. Smith
433 So. 2d 688 (Supreme Court of Louisiana, 1983)
State v. Thompson
842 So. 2d 330 (Supreme Court of Louisiana, 2003)
State v. Russell
920 So. 2d 866 (Louisiana Court of Appeal, 2005)
State v. Haley
873 So. 2d 747 (Louisiana Court of Appeal, 2004)
State v. Lobato
603 So. 2d 739 (Supreme Court of Louisiana, 1992)
State v. Estes
956 So. 2d 779 (Louisiana Court of Appeal, 2007)
State v. Lanclos
419 So. 2d 475 (Supreme Court of Louisiana, 1982)

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Bluebook (online)
975 So. 2d 95, 2008 La. App. LEXIS 18, 2008 WL 80689, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-davis-lactapp-2008.