State v. Rivers

470 So. 2d 351
CourtLouisiana Court of Appeal
DecidedMay 13, 1985
Docket84-KA-642
StatusPublished
Cited by9 cases

This text of 470 So. 2d 351 (State v. Rivers) 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. Rivers, 470 So. 2d 351 (La. Ct. App. 1985).

Opinion

470 So.2d 351 (1985)

STATE of Louisiana
v.
Taff RIVERS.

No. 84-KA-642.

Court of Appeal of Louisiana, Fifth Circuit.

May 13, 1985.

John M. Mamoulides, Dist. Atty., Dorothy A. Pendergast, Elizabeth M. Gaudin, Asst. Dist. Attys., Research and Appeals, Twenty-Fourth Judicial Dist., Gretna, for plaintiff-appellee.

John H. Craft, Staff Appellate Counsel, Twenty-Fourth Judicial Dist., Indigent Defender *352 Bd., Gretna, for defendant-appellant.

Before KLIEBERT, CURRAULT and GAUDIN, JJ.

CURRAULT, Judge.

On February 2, 1984 at approximately 2:50 p.m., the Radio Shack located at 5100 Westbank Expressway was robbed of Six Hundred Fifty-Three Dollars and Fifty-Nine Cents ($653.59) by an armed gunman who managed to flee in a waiting automobile. An employee of a nearby business was an eyewitness to the robbery and reported to Officer Guillory, the deputy on the scene, that she observed the gunman leave the store and jump into the rear seat of a car that had been parked on the east side of the building. She obtained the license number of that vehicle and gave it to Deputy Guillory.

Later the same day, the vehicle was located along with defendant Taff Rivers. Advised of his rights, Mr. Rivers gave a voluntary statement to the police. He indicated his brother, Ricky Stoy Signal, approached him with the idea of robbing the store. Although defendant stated he had tried to talk his brother out of going through with his scheme, he nevertheless confessed to driving the car. Defendant added however that he had no knowledge of his brother having a gun and received no money other than a small amount for gas.

On February 16, 1984, a bill of information was filed charging Rivers with the armed robbery of Larry Dillon, an employee of Radio Shack, in violation of LSA-R.S. 14:64. On February 21, 1984, defense counsel appeared and waived hearing of his motion for preliminary examination and bond inquiry. On March 14, 1984, defendant appeared before Judge Wallace C. LeBrun and entered the combined pleas of "not guilty" and "not guilty by reason of insanity." A sanity commission was appointed by Judge LeBrun on March 27, 1984 in response to a defense motion; and following a contradictory hearing on April 12, 1984, Judge LeBrun found the defendant competent to stand trial and assist counsel in the preparation of a defense.

On August 21, 1984, the date set for trial, Rivers tendered to the court a plea of guilty to the reduced charge of simple robbery, in violation of LSA-R.S. 14:65. Following a Boykin colloquy, Judge LeBrun accepted the tendered plea and a pre-sentence investigation was ordered, returnable on October 17, 1984.

On October 24, 1984, Judge LeBrun sentenced Rivers to serve seven years in the custody of the Department of Corrections. From the sentence defendant now appeals, asserting the following error:

The trial court erred in sentencing appellant to an excessive sentence.

Article 1, Section 20 of the Louisiana Constitution of 1974 prohibits "... cruel, excessive or unusual punishment...." Generally, a sentence is considered excessive if it is grossly disproportionate to the severity of the crime or if it is nothing more than the purposeless and needless imposition of pain and suffering. State v. Ratcliff, 416 So.2d 528 (La.1982); State v. Howard, 414 So.2d 1210 (La.1982) State v. Smith, 407 So.2d 652 (La.1981); State v. Guiden, 399 So.2d 194 (La.1981), U.S. cert. den. 454 U.S. 1150, 102 S.Ct. 1017, 71 L.Ed.2d 305 (1982). In State v. Sepulvado, 359 So.2d 137 (La.1978) appeal after remand 367 So.2d 762, 767 (La.1979), the court expressly stated that "the imposition of a sentence, although within the statutory limit, may violate a defendant's constitutional right against excessive punishment that is enforceable ... on appellate review of his conviction."

In its evaluation of an excessiveness claim, an appellate court will examine the reasons set forth by the sentencing court to determine whether there has been a manifest abuse of discretion which would warrant a setting aside of the sentence. State v. Willis, 420 So.2d 962 (La.1982); State v. Fleming, 428 So.2d 947 (La.App. 1st Cir.1983). Although the trial judge "need not articulate every aggravating and mitigating circumstance presented in LSA-C.Cr.P. Article 894.1, the record must reflect *353 that he adequately considered these guidelines in particularizing the sentence to the defendant." State v. Guiden, supra, at 200.

The following is excerpted from the sentencing transcript:

THE COURT:

Okay. Mr. Taff Rivers, in this case, he was originally charged with armed robbery along with his brother, is that right?

MR. SOIGNET:

That's correct, your Honor.
And there was a reduction in the sentence and he pleaded guilty to simple robbery?
That's correct.
In accordance with the report that I heard, it seems that Mister—your client, Taff Rivers, has a psychiatric problem.
Yes, your Honor.
I think that he, of course, is a danger to society and I'm going to sentence him to seven years at the Louisiana Department of Corrections at hard labor, to be given credit for time served and he's remanded with the recommendation that he get psychiatric treatment wherever that might be—wherever the Department of Corrections find is the best available psychiatric treatment for him. The report indicates to me, you know, and I want to make this a part of the record for pure purposes in the event that you wish to appeal—or your client wishes to appeal through another attorney, that he was involved with the armed robbery. His brother was given twenty years in this case, is that right?
Yes, Your Honor, to the best of my knowledge.
Yes, that's rights, he was given twenty years; they were involved in the robbery of some store, and the car was parked in front of the store and Mr. Taft Rivers's statement with regard to the fact that he didn't know what was going on is incredible, you know, but nevertheless, Im only—I'm not finding him guilty of armed robbery, as a principal to armed robbery or anything else, I cannot do that.
All I can do is accept the plea of guilty to simple robbery which was a plea bargain arrangement, and which at that time, Mr. Rivers was informed that he probably would get time, is that right?
That's correct, your Honor.
Okay, thank you. Here you are, Debbie. See that a copy of the report is made part of the record.

The Supreme Court had indicated that a remand for more complete compliance with Article 894.1 is not necessary when the sentence imposed is not apparently severe or where the record otherwise clearly illumines the sentencing choice. State v. Robicheaux, 412 So.2d 1313 (La.1982); State v. Martin, 400 So.2d 1063 (La.1981). In State v. Wimberly, 414 So.2d 666, 672 (La. 1982), the majority stated:

In those cases in which we have vacated the sentence and remanded the case for resentencing in full, recorded compliance with Article 894.1, our action was not prompted simply by the sentencing judge's failure to give his reasons for the penalty imposed. Rather, it was because, based on the inadequate record presented to us, there appeared to be a substantial possibility that the defendant's complaints of an excessive sentence had merit.

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Bluebook (online)
470 So. 2d 351, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-rivers-lactapp-1985.