State v. McManus

692 So. 2d 649, 96 La.App. 3 Cir. 1108, 1997 La. App. LEXIS 566, 1997 WL 121022
CourtLouisiana Court of Appeal
DecidedMarch 19, 1997
DocketNo. CR96-1108
StatusPublished
Cited by1 cases

This text of 692 So. 2d 649 (State v. McManus) 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. McManus, 692 So. 2d 649, 96 La.App. 3 Cir. 1108, 1997 La. App. LEXIS 566, 1997 WL 121022 (La. Ct. App. 1997).

Opinions

11ALLEN M. BABINEAUX, Judge Pro Tem.

The defendant, Leslie 0. McManus, pled guilty to manslaughter after the bill of indictment was amended from second degree murder. He was sentenced on March 15, 1996, to 25 years at hard labor. Because of clear and convincing evidence that a firearm was used in the commission of the offense, the trial court ordered that five years of the sentence be without benefit of probation, parole, or suspension of sentence.

|2The defendant’s motion to reconsider sentence was denied. He now appeals his sentence on the basis of excessiveness.

We affirm.

FACTS

Leslie 0. McManus met Toni Moore through an employee at his brother’s company. Mr. McManus was 64 years old and Ms. Moore was 33 years old when they met. Initially, Mr. McManus hired the young woman to clean his house, but the relationship quickly escalated to a social and roman[650]*650tic level. Mr. McManus offered financial help to Ms. Moore and her children, and eventually purchased some land in Ragley, Louisiana and a mobile home for her to live in. In spite of his efforts to provide Ms. Moore with financial support and his growing affection for her, he noticed a change in her attitude towards him when she would not return his phone calls.

Deeply incensed at Ms. Moore’s rebuffs and the rumor that she was living with another man, Mr. McManus went to the property on January 6, 1994 and told her that he no longer wanted her living on his property with another man. The next day, Ms. Moore called the defendant to inform him that she was going out of town and asked him to feed the animals on the property. During the time Ms. Moore was away, Mr. McManus began to drink heavily while ruminating over the situation with Ms. Moore.

On January 9, 1994, Mr. McManus traveled out to the property to speak with Ms. Moore. While he was there, she arrived with her daughter’s boyfriend, Benji Pellegram. There was some confusion as to exactly whom Mr. Pellegram was, i.e., whether he was Ms. Moore’s new boyfriend, and a fairly heated argument developed. Ms. Moore challenged McManus that “if it makes you feel like a big man, shoot me.” |3He did. The defendant and Pellegram then struggled which resulted in a wound to Mr. McManus’ leg. McManus left the scene, returned to Lake Charles where he was located by law enforcement personnel. After a short standoff with the police, McManus attempted suicide by shooting himself in the chin.

ASSIGNMENT OF ERROR

The defendant was sentenced on March 15, 1996. The question presented in his appeal is what constitutes “excessiveness” under the law. 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 some 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 imposing 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.Code Crim.P. art. 894.1 proves the requirements for sentencing. Prior to August 1995, sentencing requirements were contained in the Louisiana Sentencing Guidelines. The guidelines were repealed effective August 15, 1995, and La.Code Crim.P. art. 894.1 was amended to add new sentencing requirements. The article provides when a sentence must be imposed, factors to be considered in Udetermining whether a sentence is to be suspended or probation is to be allowed, and a requirement that the sentencing court state for the record the considerations taken into account and the factual basis for the imposition of a sentence.

With regard to this last provision, the 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. State v. Smith, 433 So.2d 688 (La.1983).

If there is an adequate factual basis for the sentence contained in the record, the trial court’s failure to articulate every circumstance listed in Article 894.1 will not necessitate a remand for resentencing. State v. Cottingin, 476 So.2d 1184 (La.App. 3 Cir. 1985), appeal after remand, 496 So.2d 1379 (La.App. 3 Cir.1986); State v. Morgan, 428 So.2d 1215 (La.App. 3 Cir.1983), writ denied, 433 So.2d 166 (La.1983); See also, State v. Smith, 433 So.2d 688 (La.1983) and State v. Stein, 611 So.2d 800 (La.App. 3 Cir.1992). The sentencing court need not articulate every circumstance or read through a checklist [651]*651of items to comply with the requirements of La.Code Crim.P. art. 894.1. State v. Pontiff, 604 So.2d 71, 76 (La.App. 3 Cir.1992).

Louisiana Revised Statute 14:31 provides: Whoever commits manslaughter shall be imprisoned at hard labor for not more than forty years. However, if the victim was killed as a result of receiving a battery and was under the age of ten years, the offender shall be imprisoned at hard labor, without benefit of probation or suspension of sentence, for not less than ten nor more than forty years.

In this case, the defendant received 25 years at hard labor, much less than the maximum of 40 years provided by law. Although the sentencing guideline report was consulted in the consideration of the sentence, the court found that this ease fell [fioutside of the E-l grid for a number of reasons. In imposing the sentence, the trial court gave the following reasons:

The Court does not believe that this is a typical case as contemplated by the guidelines and declines to utilize the recommended limits for sentencing suggested by them. The maximum sentence of 126 months which may be imposed thereunder is inappropriate in this case.
The Court after a review of the facts in the case as described by the eye witness in his statement believes that this is not a typical manslaughter case as contemplated by the guidelines. The Court also finds that — finds aggravating circumstances in the case. A lesser sentence will unduly depreciate the seriousness of your crime. The crime you’ve committed is [sic] truly serious offense, as the taking of human life always is.
The evidence indicates that the preparation for this crime began by your own account to the Court-appointed psychiatrist when you purchased the handgun about a month before the killing, during a time when the victim would not return your phone calls. While it is true that drinking was a factor in the commission of this crime, the statements of the witnesses and the evaluations of your condition did not indicate to the Court that your level of voluntary intoxication rose to the level of vitiating specific intent to commit the homicide.

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773 So. 2d 849 (Louisiana Court of Appeal, 2000)

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692 So. 2d 649, 96 La.App. 3 Cir. 1108, 1997 La. App. LEXIS 566, 1997 WL 121022, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-mcmanus-lactapp-1997.