State v. Penn

996 So. 2d 331, 2008 La. App. LEXIS 1229
CourtLouisiana Court of Appeal
DecidedSeptember 17, 2008
DocketNo. 43,483-KA
StatusPublished
Cited by1 cases

This text of 996 So. 2d 331 (State v. Penn) 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. Penn, 996 So. 2d 331, 2008 La. App. LEXIS 1229 (La. Ct. App. 2008).

Opinion

CARAWAY, J.

| ¶ Virgil Penn pled guilty to malfeasance in office and was sentenced to three years’ imprisonment at hard labor with two years of the sentence suspended. Penn received a fine of $1,000, with default time of one year in the parish jail in the event of his failure to pay the fine. The one-year sentence was imposed without the benefit of suspension of sentence and Penn was placed on supervised two years’ probation for the suspended portion of the sentence. He was also ordered to pay restitution to the Village of Bonita in the amount of $391. Penn now appeals the imposed sentence. We affirm.

Facts

Virgil Penn took office as the Mayor of the Village of Bonita, Morehouse Parish, Louisiana, on January 1, 2003, with an annual salary of $3,600. Following an investigation by the Louisiana State Police and the Louisiana Legislative Auditors, Penn was charged by grand jury indictment with one count of malfeasance in office, a violation of La. R.S. 14:134, for the intentional misappropriation of public funds, equipment misuse and misuse of petty cash funds between August 1, 2004 and December 30, 2006. Penn was also charged with one count of obstruction of justice, a violation of La. R.S. 14:130.1, for tampering with relevant evidence with the specific intent of distorting the results of a [333]*333criminal investigation or proceeding on or about September 19, 2006.

On July 19, 2007, Penn entered a plea of guilty to one count of malfeasance in office in exchange for the dismissal of the obstruction of | ¿justice charge. According to the trial court, the defendant admitted during the guilty plea proceeding that he had stolen money received in payment for traffic violations for the village, and “made further admissions.”1 There was no agreement regarding the sentence and a presentence investigation report was ordered. Penn subsequently resigned his office in August 2007.

At the sentencing hearing, Penn objected to the contents of the presentence investigation report regarding fact references unrelated to his guilty plea. The trial court noted that it would only consider “what the defendant admitted to” in entering the plea, but would consider as aggravating factors the facts contained in the report with regard to the defendant’s actions after the beginning of the investigation.

The trial court gave lengthy and detailed reasons during the sentencing hearing and in a written sentencing judgment. The reasons included an outline of the facts discovered during the investigation that resulted in both charges. Those facts included Penn’s misuse of Bonita’s petty cash fund, his selling of city scrap iron for personal gain, receipt of kickbacks and personal payment for two traffic tickets, payment of “hush money” to other city employees and Penn’s pressuring of witnesses to recant statements of Penn’s guilt made to investigating authorities. After careful consideration of the facts of the case, the law, the presentence investigation report and all submissions received on behalf of Penn, the trial court sentenced the defendant to a term of three years of imprisonment at hard labor. The first year was ordered to be served without suspension of |3sentence. Execution of the remaining two years was suspended and the defendant was placed on supervised probation for a term of two years upon his release or completion of parole. Additionally, the defendant was ordered to pay a fine of $1,000 plus all costs, or in default thereof, to serve one year in the parish jail. As a condition of probation, the defendant was further ordered to make restitution to the Village of Bonita in the amount of $391. The trial court declined to order restitution not related to the guilty plea. The defense made and argued an oral motion to reconsider sentence, which was denied. This appeal ensued.

Discussion

On appeal, Penn raises two assignments of error which he argues together. He contends that the factual basis for his plea was strictly limited to the conversion of one speeding ticket and that any consideration of facts relating to the dismissed obstruction of justice charge was inappropriate. Penn also cites as mitigating factors his lack of a criminal history, his prior military service from which he suffered disabilities, and the minimal loss to the village. On these grounds, Penn argues that the trial court abused its discretion in considering allegations not proven and in failing to suspend the entire sentence.

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. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the [334]*334^guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Lathan, 41,855 (La.App. 2d Cir.2/28/07), 953 So.2d 890, writ denied, 07-0805 (La.3/28/08), 978 So.2d 297. 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. Landos, 419 So.2d 475 (La.1982); State v. Hampton, 38,017 (La.App. 2d Cir.1/28/04), 865 So.2d 284, writs denied, 04-0834 (La.3/11/05), 896 So.2d 57 and 04-2380 (La.6/3/05), 903 So.2d 452. 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. Haley, 38,258 (La.App. 2d Cir.04/22/04), 873 So.2d 747, writ denied, 04-2606 (La.06/24/05), 904 So.2d 728. There is no requirement that specific matters be given any particular weight at sentencing. State v. Shumaker, 41,547 (La.App. 2d Cir. 12/13/06), 945 So.2d 277, writ denied, 07-0144 (La.9/28/07), 964 So.2d 351; State v. Jones, 33,111 (La.App. 2d Cir.3/1/00), 754 So.2d 392, writ denied, 00-1467 (La.2/2/01), 783 So.2d 385.

Second, 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. State v. Smith, 01-2574 (La.1/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 01-0467 (La.1/15/02), 805 So.2d 166; State v. Lobato, 603 So.2d 739 (La.1992); State v. Robinson, 40,983 (La.App. 2d Cir.1/24/07), 948 So.2d 379; State v. Bradford, 29,519 (La.App. 2d Cir.4/2/97), 691 So.2d 864.

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. Russell, 40,526 (La.App. 2d Cir.1/27/05), 920 So.2d 866, writ denied, 06-0478 (La.9/29/06), 937 So.2d 851; State v. Jackson,

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State v. Penn
996 So. 2d 331 (Louisiana Court of Appeal, 2008)

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Bluebook (online)
996 So. 2d 331, 2008 La. App. LEXIS 1229, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-penn-lactapp-2008.