State v. Holleman

657 So. 2d 148, 94 La.App. 3 Cir. 1320, 1995 La. App. LEXIS 1076, 1995 WL 254784
CourtLouisiana Court of Appeal
DecidedMay 3, 1995
DocketNo. CR94-1320
StatusPublished
Cited by1 cases

This text of 657 So. 2d 148 (State v. Holleman) 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. Holleman, 657 So. 2d 148, 94 La.App. 3 Cir. 1320, 1995 La. App. LEXIS 1076, 1995 WL 254784 (La. Ct. App. 1995).

Opinion

| iYELVERTON, Judge.

Defendant, Kenneth Wayne Holleman, 46 years old, was charged with one count of simple robbery, in violation of La.R.S. 14:65, and two counts of attempted simple kidnapping, in violation of La.R.S. 14:27 and La.R.S. 14:45. Simple robbery provides a maximum imprisonment of seven years. The other two charged offenses, together, exposed the defendant to a maximum imprisonment of |2five years. He pleaded guilty under a plea bargain to the simple robbery charge, and the attempted simple kidnapping charges were dismissed. After considering a lengthy pre-sentence investigation report, the trial court sentenced defendant to seven years at hard labor. Defendant appeals alleging two assignments of error.

ERRORS PATENT:

Defendant was not advised of the three year prescriptive period in which to file for post conviction relief. The trial court is directed to inform defendant of the provisions of Article 930.8 by sending appropriate written notice to him within ten days of the rendition of this opinion, and to file written proof in the record that defendant received the notice.

ASSIGNMENTS OF ERROR NOS. 1 and 2:

By defendant’s first assignment of error, he argues that the trial court erred by departing from the guideline range of recommended sentences without sufficient or adequate reasons. His second assignment is that the trial court gave excessive weight to defendant’s criminal history, effectively double counting uncharged conduct and leading to a sentence which was excessive, did not consider mitigation, and looked at ex post facto provisions of law as justifying the sentence imposed. Defendant combined the assignments for argument and our opinion will do the same.

In a recent opinion, State v. Smith, 93-402 (La. 7/5/94); 639 So.2d 237, 240, the Louisiana Supreme Court held:

(1) while a trial judge must consider the Guidelines, he has complete discretion to reject the Guidelines and impose | sany sentence which is not constitutionally excessive, but is within the statutory sentencing range for the crime of which a defendant has been convicted, so long as he states for the record the considerations taken into account and the factual basis for imposition of that sentence, La.Code Cr.P. art. 894.1; and (2) where the trial judge has considered the Guidelines and imposed a sentence, adequately stating for the record the considerations taken into account and the factual basis for imposition of that sentence, an appellate court is limited to a review of the sentence imposed for constitutional excessiveness, without regard as to whether the trial judge either employed [150]*150or deviated from the Guidelines. (Footnote omitted).

In stating for the record the considerations taken into account and the factual basis for imposition of the sentence, the trial judge noted the following, in pertinent part:

THE COURT:
Okay. Mr. Holleman, it’s my job to sentence you for pleaing [sic] guilty to simple robbery. It’s your first felony offense in mitigation. Also in mitigation you have mental problems. You have had a good past before that concerning your service in Vietnam and in the Marine Corps. I’m not taking anything away from you for doing that or your service as a city police officer. However, since that time you have had some problems that have caused problems to other people. In this situation, you received a substantial benefit from a plea bargain.
You were charged with attempted kidnapping involving a 12-year-old girl that was on her way back from school that for some reason you said there was some way you |4found that you wished to pick up women and were calling her like your dog and talking to the crossing guard and pulling at her saying, “Let my dog loose,” and that sort of thing. It caused quite a bit of trauma to this young girl and still does continue to cause her a lot of problems. That’s an aggravating circumstance, the youth of the offender plus the fact that you received the benefit from the plea bargain.
In this case there were two victims; one, the kidnapping and the other one, the robbery. Both were young women. One was only 12 at the time of the offense. And that was dismissed, but I can still consider the benefit of the plea bargaining in sentencing you.
According to the presentence and the people that were interviewed, your ex-wife, your ex-fellow police officers consider you to be a danger to human life. Also you do deny guilt even though you pled guilty. You have not come to terms with your offense. There was also another alleged attempted kidnapping of another victim, Penny Fletcher, in your record.
I feel that this behavior that you did, particularly with the 12-year-old girl, is very reprehensible. I feel that a departing upward from the sentencing guidelines is justified in light of the circumstances, and I feel anything other than a maximum sentence would deprecate the | ^seriousness of the offense and the problems that you have, and I will order that you serve seven years at hard labor.

In State v. Stein, 611 So.2d 800, 801 (La. App. 3 Cir.1992), this court stated: “[t]he trial court need not refer to every aggravating and mitigating circumstance in order to comply with the article. However, the record must affirmatively reflect that adequate consideration was given to the codal guidelines in particularizing the defendant’s sentence.”

In State v. Pontiff, 604 So.2d 71, 76 (La. App. 3 Cir.1992), this court stated: “[t]he sentencing court need not articulate every circumstance or read through a checklist of items to comply with the requirements of Art. 894.1.”

The trial judge sufficiently stated the considerations taken into account and the factual basis for imposition of the sentence. He also considered several mitigating circumstances. He considered the guidelines. What remains for us to review, therefore, is whether the sentence imposed was constitutionally excessive.

Article 1, § 20 of the Louisiana Constitution of 1974, prohibits “cruel, excessive, or unusual punishment.” A sentence which falls within the statutory limits may nevertheless be excessive under the circumstances. State v. Sepulvado, 367 So.2d 762 (La.1979); State v. Naquin, 527 So.2d 601 (La.App. 3 Cir.1988). To constitute an excessive sentence this court must find that the penalty is so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no measurable contribution to acceptable penal goals and, therefore, is nothing more than needless imposition of pain and suffering. State v. Campbell, 404 So.2d 1205 (La.1981); State v. Everett, 530 So.2d 615 (La.App. 3 Cir.1988), writ denied, 536 So.2d 1233 (La.1989). The trial judge is given wide | ¡¡discretion in impos[151]*151ing a sentence, and a sentence imposed within the statutory limits will not be deemed excessive in the absence of manifest abuse of discretion. State v. Howard, 414 So.2d 1210, 1217 (La.1982).

La.R.S. 14:65 provides in pertinent part:

Whoever commits the crime of simple robbery shall be fined not more than three thousand dollars, imprisoned with or without hard labor for not more than seven years, or both.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. Goodman
684 So. 2d 58 (Louisiana Court of Appeal, 1996)

Cite This Page — Counsel Stack

Bluebook (online)
657 So. 2d 148, 94 La.App. 3 Cir. 1320, 1995 La. App. LEXIS 1076, 1995 WL 254784, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-holleman-lactapp-1995.