State v. Hanner

476 So. 2d 426, 1985 La. App. LEXIS 9823
CourtLouisiana Court of Appeal
DecidedSeptember 25, 1985
DocketNo. 17160-KA
StatusPublished
Cited by1 cases

This text of 476 So. 2d 426 (State v. Hanner) 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. Hanner, 476 So. 2d 426, 1985 La. App. LEXIS 9823 (La. Ct. App. 1985).

Opinion

NORRIS, Judge.

Defendant Sheldon W. Hanner was indicted by a LaSalle Parish grand jury for second degree murder, LSA-R.S. 14:30.1. Because of extensive pretrial publicity, defendant obtained a change of venue to Winn Parish. When the jury there was unable to reach a verdict, the judge declared a mistrial. Before the second trial, the defendant and prosecutor announced a plea bargain whereby Hanner would plead guilty to the lesser included offense of manslaughter, LSA-R.S. 14:31. The trial judge accepted the guilty plea and subsequently sentenced Hanner to fourteen years at hard labor on the manslaughter charge. He imposed an additional, consecutive sentence of two years at hard labor without benefit of parole, probation, suspension of sentence or good time, for the use of a firearm in the crime, pursuant to LSA-R.S. 14:95.2. From this sentence, defendant has appealed, raising five assignments of error. The first asserts that the sentence is excessive. The next three assert that the additional two years were illegal because the defendant was never afforded notice that he would be subject to the sentence enhancement. The final assignment asserts that the guilty plea was involuntary because of the failure to inform the defendant of the sentence enhancement. We affirm.

FACTS

Defendant’s first trial, which ended in a hung jury, lasted three days. Even though the parties stipulated that the trial proceedings would be admitted in evidence for purposes of the subsequent guilty plea, the transcript was not made part of the record on appeal. Thus our exposition of the facts is taken, of necessity, from an extract of the defendant’s statements and from various exhibits in the record.

The victim was Barbara Hanner, Sheldon Hanner’s wife. On the night of May 31, 1982, she was visiting her friend Cathy Lambeth. Sheldon called the Lambeth house and asked if his wife was there. Barbara got on the phone and an argument [428]*428ensued; she hung up when Sheldon began cursing at her. Then Sheldon drove to the Lambeth house where he pounded on the door and demanded to see his wife. When Barbara refused to come out, Sheldon got back in his car and drove a short distance down the road, parked and waited. Still fearful for their safety, Cathy Lambeth called one of her relatives, Larry Lambeth, and asked him to come pick them up. Larry did so, carrying Barbara, Cathy and Cathy’s children back to his own house. As soon as they arrived there, Sheldon came up and started beating on Larry’s truck, again demanding his wife. He accused her of dragging all their neighbors into their problems; he called her vile, epi-thetical names. He went to his car, got a pistol, and threatened to shoot Barbara if she did not come along. At one stage he cooled down, set the gun aside, and convinced Cathy that the fight was over and that she could go inside. Larry took the pistol and placed it back in Sheldon’s car; then he left. Later, however, Sheldon became enraged again. He broke the window in Larry’s truck, opened the door and pulled Barbara out. He dragged her by the hair to his car and forced her in. They drove off shortly before 11 p.m.

At 11:20 p.m., Sheldon drove his wife to the LaSalle General Hospital emergency room and told the nurses that she had been shot. He left immediately. Barbara Han-ner was dead on arrival with two bullet wounds to her abdomen and chest. Authorities began a massive search for Sheldon. His abandoned ear was found about an hour later; he himself was apprehended the following morning about three miles away; he surrendered peacefully.

ASSIGNMENT NO. 1

Hanner contends that his sentence, though within the statutory limits, is constitutionally excessive. LSA-Const. art. I § 20; State v. Sepulvado, 367 So.2d 762 (La.1979). He contends that the forensic evidence overwhelmingly supports a finding of negligent homicide rather than manslaughter or second degree murder. He suggests that a sentence within the negligent homicide range, or five years, would be more appropriate. See LSA-R.S. 14:32. We note at the outset, however, that the offense to which Hanner pled was manslaughter, and that he has not pointed out in brief what the favorable forensic evidence is.

The trial court correctly observed that the killing occurred while Hanner was engaged in an act of simple kidnapping. Since kidnapping is not one of the enumerated felonies in LSA-R.S. 14:30 or 14:30.1, it places this killing within the felony-homicide language of the manslaughter statute, less the intent to kill or inflict great bodily harm. LSA-R.S. 14:31(2)(a). Thus the argument for a penalty in the range of negligent homicide is without merit.

Furthermore, Hanner received a substantial reduction of maximum possible exposure by pleading to manslaughter.1 While not controlling, the plea bargain is a factor in determining excessiveness. State v. Smack, 425 So.2d 737 (La.1983). This is so regardless of defendant’s speculation of what a second jury would have found.

Hanner also argues that the trial court failed to comply with the sentencing guidelines of LSA-C.Cr.P. art. 894.1. As a result, he claims, the sentence was not sufficiently particularized to the offense and the offender. The trial court need not, however, articulate every aggravating and mitigating circumstance outlined in art. 894.1, provided the record reflect that he adequately considered them. State v. Smith, 433 So.2d 688 (La.1983); State v. Hammonds, 434 So.2d 452 (La.App.2d Cir.1983), writ denied 439 So.2d 1074 (La.1983).

The trial court specifically noted, “None of the matters set forth in Paragraph (B) of art. 894 [are] found to be present in this case.” Defense counsel likewise failed to urge any mitigating factors, either at the sentencing or before this court in brief. In [429]*429contrast, the trial court gave measured consideration to defendant’s prior criminal record, which was quite extensive. Though not a model of art. 894.1 compliance, the trial court’s performance was adequate.

Finally, the sentence does not appear to be an abuse of discretion; it does not shock our sense of justice. State v. Square, 433 So.2d 104 (La.1983); State v. Bonanno, 384 So.2d 355 (La.1980).

This assignment lacks merit.

ASSIGNMENT NO. 2

Here Hanner contends that he was entitled to notice “by indictment or information” of the state’s intent to ask for the enhanced sentence provision of R.S. 14:95.-2.2 He urges that the Constitution of 1974, art. I § 15, mandates notice by indictment or information.3

Defendant admits, however, that the jurisprudence holds contrary to his contention. The first ease to consider the effect of R.S. 14:95.2 was State v. Roussel, 424 So.2d 226 (La.1983). There, the court found “no substance” to the contention that a defendant must be separately charged under R.S. 14:95.2. The rule of Roussel has been routinely applied. See, e.g., State v. Hogan, 454 So.2d 1235 (La.App.2d Cir.1984); State v. Wade, 470 So.2d 562 (La.App.1st Cir.1985). With the matter thus settled, this argument lacks merit.

Hanner also asks us to analogize R.S. 14:95.2 to the multiple offender statute, LSA-R.S. 15:529.1, which expressly requires a hearing to prove prior convictions. He asserts the proof of use of a firearm in a crime must be shown at a similar hearing. Cf. Joseph, Developments in the Law 1980-81, 42 La.L.Rev. 693, 702 (1982).

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Related

State v. Hanner
481 So. 2d 622 (Supreme Court of Louisiana, 1986)

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Bluebook (online)
476 So. 2d 426, 1985 La. App. LEXIS 9823, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-hanner-lactapp-1985.