State v. Hardaway

715 So. 2d 507, 1998 WL 283047
CourtLouisiana Court of Appeal
DecidedJune 3, 1998
Docket98-104
StatusPublished
Cited by3 cases

This text of 715 So. 2d 507 (State v. Hardaway) 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. Hardaway, 715 So. 2d 507, 1998 WL 283047 (La. Ct. App. 1998).

Opinion

715 So.2d 507 (1998)

STATE of Louisiana, Appellee,
v.
Anthony HARDAWAY, Defendant-Appellant.

No. 98-104.

Court of Appeal of Louisiana, Third Circuit.

June 3, 1998.

*508 Robert Richard Bryant, Jr., Mike K. Stratton, Lake Charles, for State.

Lawrence Charles Billeaud, Lafayette, for Anthony Hardaway.

Before DOUCET, C.J., and DECUIR and AMY, JJ.

DOUCET, Chief Judge.

On February 24, 1997, Defendant, Anthony Hardaway, was charged by bill of information with one count of armed robbery, a violation of La.R.S. 14:64. On May 14, 1997, the bill of information was amended charging Defendant with two counts of armed robbery. Defendant entered a plea of not guilty and requested a jury trial. The trial court ordered the trial fixed for June 9, 1997. On that day, Defendant filed a motion for a continuance. Thereafter, on June 18, 1997, under a plea agreement in which the State agreed not to prosecute Defendant as a habitual offender and to recommend sentences of twenty-five years without benefits, Defendant withdrew his not guilty plea and entered a plea of guilty. On September 25, 1997, at sentencing, Defendant sought to withdraw his guilty plea. The trial judge denied Defendant's request and sentenced him to the statutory maximum of 99 years at hard labor on each count, without the benefit of parole, probation, or suspension of sentence, to run consecutively. Credit for time served was given. On October 13, 1997, Defendant filed a Motion to Reconsider Sentence. That was denied without a hearing. Defendant now appeals his conviction and sentence.

FACTS

On December 7, 1996, Defendant entered the Walgreen Drug Store located at 300 Eighteenth Street in Lake Charles, Louisiana. He pulled a revolver on the manager, instructed him to open the safe, and robbed the store of a large sum of money. Defendant also demanded and received the video surveillance tape.

Approximately one week later, on December 15, 1996, Defendant entered the K & B Drug Store located at 3402 Fifth Avenue in Lake Charles, Louisiana. He pulled a revolver on the night manager, instructed him to open the safe, and robbed the store of a large sum of money. Defendant demanded and received the video surveillance tape.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed by the court for errors patent on the face of the record. While our review reveals no errors patent, we find one issue which warrants discussion.

The trial court informed the Defendant of the three-year period for filing post-conviction relief at the time of the guilty plea rather than at the time of sentencing as required by La.Code Crim.P. art. 930.8. This same situation was addressed by this court in State v. Green, 94-618, pp. 8-9 (La. App. 3 Cir. 12/7/94); 647 So.2d 536, 541, where we stated as follows:

*509 The minutes reflect that the trial judge informed the defendant of the three year prescriptive period for filing post-conviction relief at the time of the guilty plea rather than at the time of sentencing as required by La.C.Cr.P. Art. 930.8. The three year prescriptive period does not begin to run until the judgment is final under either La.C.Cr.P. Art. 914 or Art. 922, so prescription is not yet running. Apparently, the purpose of this notice is to inform the defendant of the prescriptive period in advance. We find that the notice defendant received at the time of his guilty plea is sufficient; however, out of an abundance of caution, we will nonetheless ask that the district court inform the defendant of La.C.Cr.P. Art. 930.8 by sending appropriate written notice within 10 days of the rendition of this opinion and file written proof that the defendant received notice in the record of these proceedings.

We will follow the same course here.

ASSIGNMENT OF ERROR NO. 1

In his first assignment, Defendant complains that the trial court committed manifest error by sentencing him to constitutionally excessive sentences.

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. State v. Smith, 433 So.2d 688 (La.1983); State v. McCray, 28,531 (La. App. 2d Cir. 8/21/96), 679 So.2d 543. The trial judge is not required to list every aggravating or mitigating circumstance, but need only state for the record the considerations taken into account and the factual basis for the sentence imposed. State v. Smith, supra; State v. McCray, supra. 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.
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 La.C.Cr.P. art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982). 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. Hudgins, 519 So.2d 400 (La.App. 2d Cir.), writ denied, 521 So.2d 1143 (1988); State v. Bradford, 29,519 (La. App. 2d Cir. 4/2/97), 691 So.2d 864.

State v. Delaughter, 29,974, pp. 2-3 (La.App. 2 Cir. 12/10/97); 703 So.2d 1364, 1367.

The transcript of Defendant's sentencing proceeding reveals the Defendant's age was 38 years and eleven months at that time. It was also brought out that the State of Georgia had a hold on the Defendant. The trial judge stated that she found Mr. Hardaway was in need of a custodial environment and that there was an undue risk that he would commit another crime if not confined. She stated that she "reviewed the aggravating and mitigating circumstances." The aggravating circumstances included threats to the victims of physical violence, the perceived risks of death or great bodily harm expressed by the victims, and the use of a firearm. The Defendant's presentence investigation report (PSI) established that Defendant was divorced and had no children, and showed no work history. The trial judge stated that although Defendant's PSI revealed Defendant had experienced a "terrible childhood," that "there comes a point in your life ... where you take responsibility for your actions." She particularly pointed out Defendant's extensive criminal record, dating back to 1976, and the fact that even as the Defendant was being sentenced, he was wanted on armed robbery charges in Acadia, Jeff Davis, and Lafayette Parishes. We note that during sentencing Defendant repeatedly broke into the trial judge's colloquy, and that he cursed and threatened the district attorney and his family.

The second prong or question in an excessiveness inquiry is whether the sentence imposed is unconstitutionally excessive. Whether the sentence imposed is too severe depends on the circumstances of the case and the background of the defendant. To determine whether a particular *510 sentence is excessive, the reviewing court must decide whether it is so disproportionate to the severity of the crime as to shock the sense of justice. 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.

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715 So. 2d 507, 1998 WL 283047, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-hardaway-lactapp-1998.