State v. Harris

535 So. 2d 1131, 1988 La. App. LEXIS 2504, 1988 WL 126968
Louisiana Court of Appeal·Decided November 30, 1988·No. No. 20040-KA·Published·Cited by 2 cases

Opinion

LINDSAY, Judge.

The defendant, Michael D. Harris, was originally charged with two counts of purse snatching, in violation of LSA-R.S. 14:65.1. After a jury trial, the defendant was found guilty of one count of purse snatching. A multiple offender bill was filed against the defendant under LSA-R.S. 15:529.1. The trial court sentenced the defendant to forty years at hard labor as a third felony offender. On appeal, the defendant’s conviction was affirmed, but this court determined that the defendant was only a second felony offender. Consequently, the defendant’s sentence was vacated, and the case was remanded to the trial court for resentencing. (# 19,299-KA) On remand, the defendant was resentenced to forty years at hard labor. The defendant appeals.

FACTS

On November 21,1985, two men ran past a woman in the parking lot of a grocery store in Bossier City, Louisiana, and grabbed her purse. On November 27, 1985, a similar incident occurred at the same store. The defendant was arrested and charged in connection with both incidents. Following a jury trial, he was convicted only of the first offense (after being positively identified by an eyewitness as one of the assailants), and he was found not guilty of the second offense.

A multiple offender bill was filed against the defendant pursuant to LSA-R.S. 15:529.1. It contained a recitation of three prior convictions: burglary, September 5, 1984; felony theft, September 5,1984; and simple burglary, March 17, 1986.1 On April 3, 1987, the trial court sentenced the defendant as a third felony offender. The trial court determined that the defendant was a third felony offender based upon the instant offense and the 1984 burglary conviction and the 1986 conviction. It imposed the maximum sentence allowed under LSA-R.S. 14:65.1 and 15:529.1, forty years at hard labor.

On appeal (# 19,299-KA), the defendant’s conviction was affirmed. However, this court vacated his sentence. The court found that the trial court improperly considered the 1986 conviction, because the conviction for that offense was not obtained until after the commission of the present offense in November, 1985. Thus, the defendant could only be viewed as a second felony offender under LSA-R.S. 15:529.1. The case was remanded to the trial court for resentencing.

On February 16, 1988, the trial court resentenced the defendant, once again imposing a sentence of forty years at hard labor. The trial court stated that it felt that the defendant’s status as a second or third felony offender was of little consequence as the maximum penalty for either was the same, i.e. twice the maximum sentence for the crime. As the trial court found that the defendant’s character and actions demanded long term incarceration, it again sentenced the defendant to serve forty years at hard labor.

The defendant appeals, contending that the trial court imposed an unconstitutionally excessive sentence. For the following reasons, we vacate the sentence of the trial court and remand this case for resentenc-ing, with instructions.

[1133]*1133LAW

In determining whether a sentence is excessive, the test imposed by the reviewing court is two-pronged. First, the record must show that the trial court took cognizance of the factors set forth in LSA-C.Cr.P. Art. 894.1 which enumerates criteria to consider in determining whether a sentence is excessive. State v. Sepulvado, 367 So.2d 762 (La.1979); State v. Hammonds, 434 So.2d 452 (La.App. 2d Cir.1983), writ denied 439 So.2d 1074 (La.1983); State v. Tully, 430 So.2d 124 (La.App. 2d Cir.1983), writ denied 435 So.2d 438 (La.1983)

While the trial court need not articulate every aggravating and mitigating circumstance outlined in LSA-C.Cr.P. Art. 894.1, the record must reflect that the court adequately considered those guidelines in particularizing the sentence to the defendant. State v. Smith, 433 So.2d 688 (La.1983); State v. Hammonds, supra; State v. Cunningham, 431 So.2d 854 (La.App. 2d Cir.1983), writ denied 438 So.2d 1112 (La.1983).

After determining whether the provisions of LSA-C.Cr.P. Art. 894.1 have been complied with by the trial court, the reviewing court must then determine whether the sentence imposed is too severe given the circumstances of the case and the background of the defendant.

The sentencing court is given wide discretion in imposing a sentence within the statutory limits and such a sentence should not be set aside as excessive in the absence of a manifest abuse of discretion by the sentencing court. State v. Square, 433 So.2d 104 (La.1983); State v. Hammonds, supra; State v. Brooks, 431 So.2d 865 (La. App. 2d Cir.1983).

A sentence is unconstitutionally excessive in violation of La. Const. 1974 Art. 1, § 20 if the sentence is grossly out of proportion to the severity of the offense or nothing more than the needless and purposeless imposition of pain and suffering. State v. Bonanno, 384 So.2d 355 (La.1980); State v. Cunningham, supra. A sentence is considered grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it is so disproportionate as to shock the sense of justice. State v. Lewis, 430 So.2d 1286 (La.App. 1st Cir.1983), writ denied 435 So.2d 433 (La.1983).

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. Palmer, 448 So.2d 765 (La.App. 2d Cir.1984), writ denied 452 So.2d 695 (La.1984). As a general rule, maximum or near maximum sentences are to be reserved for the worst offenders and the worst offenses. State v. Lathers, 444 So.2d 96 (La.1983); State v. Telsee, 425 So.2d 1251 (La.1983); State v. Williams, 454 So.2d 1287 (La.App. 2d Cir.1984).

DISCUSSION

The defendant argues that the trial court failed to give full and adequate consideration to the sentencing guidelines of LSA-C. Cr.P. Art. 894.1. He argues that the victim of the purse snatching was not injured, only a small amount of money was stolen, and the duration of the crime was only a few seconds. Consequently, this offense was not the most “serious violation of the statute” and the defendant was not the “worst offender.”

The defendant cites several cases in which persons with past criminal records received lesser sentences for the offense of purse snatching. See State v. Johnson, 461 So.2d 1273 (La.App. 1st Cir.1984) (20 years at hard labor), State v. Murray, 476 So.2d 1170 (La.App. 3rd Cir.1985) (20 years at hard labor), and State v. Cooks, 430 So.2d 194 (La.App. 2d Cir.1983) (12 years at hard labor). As argued by the defendant, those cases illustrate the excessiveness of the defendant’s sentence.

Further, we note that no reported case, where multiple offender charges have been filed, has approved a sentence of forty years at hard labor for purse snatching. For example, in State v. Williams, 482 So.2d 97 (La.App. 4th Cir.1986), the defendant was convicted of one count of purse snatching and one count of attempted purse snatching. His sentence of forty [1134]

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State v. Harris, 535 So. 2d 1131, 1988 La. App. LEXIS 2504, 1988 WL 126968 (La. Ct. App. 1988).

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