State v. Manuel

722 So. 2d 31, 1998 WL 749194
Louisiana Court of Appeal·Decided October 28, 1998·No. CR98-0079·Published·Cited by 3 cases

Opinion

722 So.2d 31 (1998)

STATE of Louisiana
v.
Phyllis MANUEL.

No. CR98-0079.

Court of Appeal of Louisiana, Third Circuit.

October 28, 1998.

Raymond LeJeune, A.D.A., C. Brent Coreil, D.A., for State.

Frank Gerald DeSalvo, New Orleans, for Phyllis Manuel.

Before WOODARD, PETERS and GREMILLION, JJ.

PETERS, Judge.

In this appeal, we revisit the sentencing of the defendant, Phyllis Manuel, who was convicted by a jury of manslaughter, a violation of La.R.S. 14:31. The trial court initially sentenced her to serve twenty-five years at hard labor, and she appealed her conviction and sentence. This court vacated the sentence and remanded the matter to the trial court with instructions to resentence the defendant pursuant to La.Code Crim.P. art. 894.1; State v. Smith, 93-0402 (La.7/5/94); 639 So.2d 237; and the Louisiana Felony Sentencing Guidelines. See State v. Manuel, 94-1187 (La.App. 3 Cir. 5/3/95); 657 So.2d 138. On remand, the trial court sentenced the defendant to serve seventeen and one-half years at hard labor, and she has appealed asserting that the trial court has failed to comply with the instructions of this court in her resentencing proceedings by again failing to set forth a proper factual basis.

Our original opinion sets forth the factual background giving rise to the criminal charge, and reference is made to that opinion for the particulars thereof. The trial court originally sentenced the defendant to more than three times the maximum sentence recommended by the Louisiana Felony Sentencing Guidelines in effect at that time.[1] We remanded the case because, while the trial court did make some generalized statements *32 concerning the offense, it did not state for the record any factual basis for the generalized statements. Moreover, the few particularized statements made by the trial court concerning the sentence were applicable to any manslaughter crime. While the supreme court in Smith, 639 So.2d 237, recognized the right of the trial court to reject the Sentencing Guidelines, the discretion to do so was subject to the requirement that it state the factual basis for the imposition of the sentence. Specifically, the third circuit stated: "Without such factual basis, we are unable to determine whether or not the sentence imposed is excessive." Manuel, 657 So.2d at 141.

When the trial court resentenced the defendant on May 19, 1995, the Sentencing Guidelines were still in effect, and, technically, the resentencing should have been accomplished pursuant to those guidelines. A review of the record reflects that the trial court did not follow the instructions of this court but simply restated the reasons for the initial sentencing. However, in order to dispose of the issue before us, we need not consider whether the Sentencing Guidelines were followed because they were repealed shortly after this sentencing. Currently, the appropriate appellate review is under La.Code Crim.P. art. 894.1 as it now reads.

At the time the defendant was sentenced, La.Code Crim.P. art. 894.1 read as follows:

A. When the defendant has been convicted of a felony, the court shall consider the sentencing guidelines promulgated by the Louisiana Sentencing Commission in determining the appropriate sentence to be imposed. However, no sentence shall be declared unlawful, inadequate, or excessive solely due to the failure of the court to impose a sentence in conformity with the sentencing guidelines of the commission.
B. A court may impose a sentence, which includes incarceration or other significant sanctions, which is appropriate under the sentencing guidelines notwithstanding any limitation on probation or suspension of sentence under the provisions of Article 893.
C. The court shall state for the record the considerations taken into account, including any aggravating and mitigating circumstances which may be present, and the factual basis therefor in imposing sentence.

When the Sentencing Guidelines were repealed, La.Code Crim.P. art. 894.1 was amended to provide a series of factors to be considered by the trial court in sentencing. That Article now reads in pertinent part:

A. When a defendant has been convicted of a felony or misdemeanor, the court should impose a sentence of imprisonment if any of the following occurs:
(1) There is an undue risk that during the period of a suspended sentence or probation the defendant will commit another crime.
(2) The defendant is in need of correctional treatment or a custodial environment that can be provided most effectively by his commitment to an institution.
(3) A lesser sentence will deprecate the seriousness of the defendant's crime.
B. The following grounds, while not controlling the discretion of the court, shall be accorded weight in its determination of suspension of sentence or probation:
(1) The offender's conduct during the commission of the offense manifested deliberate cruelty to the victim.
(2) The offender knew or should have known that the victim of the offense was particularly vulnerable or incapable of resistance due to extreme youth, advanced age, disability, or ill health.
(3) The offender offered or has been offered or has given or received anything of value for the commission of the offense.
(4) The offender used his or her position or status to facilitate the commission of the offense.
(5) The offender knowingly created a risk of death or great bodily harm to more than one person.
(6) The offender used threats of or actual violence in the commission of the offense.
(7) Subsequent to the offense, the offender used or caused others to use violence, force, or threats with the intent to *33 influence the institution, conduct, or outcome of the criminal proceedings.
(8) The offender committed the offense in order to facilitate or conceal the commission of another offense.
(9) The offense resulted in a significant permanent injury or significant economic loss to the victim or his family.
(10) The offender used a dangerous weapon in the commission of the offense.
(11) The offense involved multiple victims or incidents for which separate sentences have not been imposed.
(12) The offender was persistently involved in similar offenses not already considered as criminal history or as a part of a multiple offender adjudication.
(13) The offender was a leader or his violation was in concert with one or more other persons with respect to whom the offender occupied a position of organizer, a supervisory position, or any other position of management.
(14) The offense was a major economic offense.
(15) The offense was a controlled dangerous substance offense and the offender obtained substantial income or resources from ongoing drug activities.
(16) The offense was a controlled dangerous substance offense in which the offender involved juveniles in the trafficking or distribution of drugs.
(17) The offender committed the offense in furtherance of a terrorist action.
(18) The offender foreseeably endangered human life by discharging a firearm during the

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State v. Manuel, 722 So. 2d 31, 1998 WL 749194 (La. Ct. App. 1998).

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