State v. Elmore

80 So. 3d 731, 2011 La. App. LEXIS 1562, 2011 WL 6183576
CourtLouisiana Court of Appeal
DecidedDecember 14, 2011
DocketNo. 46,833-KA
StatusPublished
Cited by6 cases

This text of 80 So. 3d 731 (State v. Elmore) 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. Elmore, 80 So. 3d 731, 2011 La. App. LEXIS 1562, 2011 WL 6183576 (La. Ct. App. 2011).

Opinion

GASKINS, J.

|, The defendant, Darry Ray Elmore, appeals as excessive his sentence to 32 years at hard labor following his plea of guilty to manslaughter. For the following reasons, we affirm the defendant’s conviction and sentence.

FACTS

On March 17, 2010, the defendant went to a skating rink with a group of people including the victim, Emanuel Neal. The defendant became involved in an argument concerning a female and a fight broke out. The defendant and several others left the skating rink and went to a parking lot located at a housing unit. Another argument erupted between the defendant and the victim. The defendant had a knife and threatened to stab Mr. Neal if he got close. The victim approached and then backed away. The confrontation continued and Mr. Neal again approached the defendant, was threatened by the defendant, and again backed away. The defendant told Mr. Neal that if he stepped up on the sidewalk where the defendant was standing, he was going to stab him. Mr. Neal stepped up onto the sidewalk; the defendant stabbed the victim numerous times and then ran away. The victim ran away as well, but collapsed on the patio of one of the housing units. He was taken to a hospital where he died the next day.

The autopsy report showed that the 33-year-old victim was stabbed seven times. The most severe injury was a stab wound to the neck that damaged multiple veins and the left carotid artery. This wound was 4.5 inches in length. According to the autopsy report, the depth of the wound was difficult to assess, but tool marks were noted on the cervical vertebral bodies in the bed of the wound.

| ¡(Witnesses told police that the defendant stabbed Mr. Neal. The police eventually located the defendant at an apartment in the area of the offense. The defendant attempted to flee, but was apprehended and arrested. The defendant admitted stabbing Mr. Neal.

The defendant was indicted for the second degree murder of Mr. Neal. In February 2011, the defendant entered into a plea agreement whereby he was allowed to enter a plea of guilty to the reduced charge of manslaughter. There was no agreement as to the sentence the defendant would receive. The trial court determined that the defendant was competent to enter a plea of guilty and informed him of the rights waived by a plea of guilty under Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). The defendant was advised that the maximum sentence for manslaughter was 40 years at hard labor. The trial court accepted the defendant’s plea of guilty to manslaughter and ordered a presentence investigation (PSI) report prior to sentencing.

The defendant appeared before the court in April 2011, and was sentenced to [733]*733serve 32 years at hard labor. The defendant filed a motion to reconsider the sentence, arguing that the sentence was excessive because he was provoked by the victim. The trial court denied the motion to reconsider the sentence. The defendant appealed.

EXCESSIVE SENTENCE

The defendant argues on appeal that the sentence imposed is excessive. This argument is without merit.

|oLegal Principles

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 La. 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. Key, 46,119 (La.App.2d Cir.3/2/11), 58 So.3d 578, writ denied, 2011-0594 (La.10/7/11), 71 So.3d 310. The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical compliance with its provisions. State v. Landos, 419 So.2d 475 (La.1982); State v. Swayzer, 43,350 (La.App.2d Cir.8/13/08), 989 So.2d 267, writ denied, 2008-2697 (La.9/18/09), 17 So.3d 388. The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Key, supra. There is no requirement that specific matters be given any particular weight at sentencing. State v. Shumaker, 41,547 (La.App.2d Cir.12/13/06), 945 So.2d 277, writ denied, 2007-0144 (La.9/28/07), 964 So.2d 351.

On the second prong of the excessiveness test, the court must determine whether a sentence violates La. Const. Art. I, § 20. A sentence violates La. Const. Art. I, § 20, if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless |4infliction 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); State v. Robinson, 40,983 (La.App.2d Cir.1/24/07), 948 So.2d 379.

A trial court has broad discretion to sentence within the statutory limits. Where a defendant has pled guilty to an offense which does not adequately describe his conduct or has received a significant reduction in potential exposure to confinement through a plea bargain, the trial court has great discretion in imposing even the maximum sentence possible for the pled offense. State v. Germany, 43,239 (La.App.2d Cir.4/30/08), 981 So.2d 792, State v. Key, supra. This is particularly true in cases where a significant reduction in potential exposure to confinement has been obtained through a plea bargain and the offense involves violence upon a victim. State v. Key, supra.

Absent a showing of manifest abuse of the trial court’s sentencing discretion, this court may not set aside a sentence as excessive. State v. Guzman, 1999-1528, 1999-1753 (La.5/16/00), 769 So.2d 1158; State v. June, 38,440 (La.App.2d Cir.5/12/04), 873 So.2d 939; State v. Lingefelt, 38,038 (La.App.2d Cir.1/28/04), 865 So.2d 280, writ denied, 2004-0597 (La.9/24/04), 882 So.2d 1165.

[734]*734| ¿The offense of manslaughter is defined in La. R.S. 14:31, which provides in pertinent part:

A. Manslaughter is:

1) A homicide which would be murder under either Article 30 (first degree murder) or Article 30.1 (second degree murder), but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self-control and cool reflection. Provocation shall not reduce a homicide to manslaughter if the jury finds that the offender’s blood had actually cooled, or that an average person’s blood would have cooled, at the time the offense was committed....

The statute also provides that, under the facts present in this case, whoever commits manslaughter shall be imprisoned at hard labor for not more than forty years.

Discussion

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Cite This Page — Counsel Stack

Bluebook (online)
80 So. 3d 731, 2011 La. App. LEXIS 1562, 2011 WL 6183576, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-elmore-lactapp-2011.