State v. Samuels
This text of 471 So. 2d 883 (State v. Samuels) 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.
Opinion
STATE of Louisiana, Appellee,
v.
Arsby SAMUELS, Appellant.
Court of Appeal of Louisiana, Second Circuit.
Steven R. Thomas, Mansfield, for appellant.
William J. Guste, Jr., Atty. Gen., Baton Rouge, James L. Davis, Dist. Atty., Many, for appellee.
Before JASPER E. JONES, SEXTON and LINDSAY, JJ.
SEXTON, Judge.
The defendant, Arsby Samuels, Jr., age 37, was charged by bill of information with aggravated battery. After the entry of a guilty plea and the preparation and receipt of a pre-sentence investigation concerning the defendant, the trial court sentenced the defendant to five years at hard labor. This term was suspended and the defendant was required to serve six months in jail as a special condition of probation. The defendant's probationary period was set at five years. The defendant appeals contending the sentence is excessive. We affirm.
The defendant was arrested and charged as a result of his shooting of Willie Lee Booker with a .20 gauge shotgun. From the record it appears that this shooting incident was the termination of an evening of difficulty between the defendant and the victim, Willie Lee Booker, who was in the company of the defendant's ex-wife on this evening. While not fully substantiated by the record, it also appears that the victim *884 may have been armed at the time he was shot and may have fired at the defendant during that incident. Regardless of the degree of provocation which may have occurred prior to the shooting incident, the defendant did enter a plea of guilty to aggravated battery.
In sentencing the defendant, the trial court generally covered most of the sentencing guidelines of LSA-C.Cr.P. Art. 894.1. The trial court apparently gave substantial mitigating weight to the issue of provocation by the victim. The trial court also gave substantial weight to the defendant's history of law-abiding conduct and long-term employment prior to the incident. While the trial judge need not articulate every aggravating and mitigating circumstance outlined in Art. 894.1, the record must reflect that he adequately considered these guidelines in particularizing the sentence to the defendant. State v. Smith, 433 So.2d 688 (La.1983); State v. Hammonds, 434 So.2d 452 (La.App. 2d Cir. 1983), writ denied, 439 So.2d 1074 (La. 1983); State v. Cunningham, 431 So.2d 854 (La.App. 2d Cir.1983). Thus we determine that contrary to the complaint of the defendant, the trial court adequately followed LSA-C.Cr.P. Art. 894.1 and, additionally, we do not find the trial court has imposed a constitutionally excessive sentence upon this defendant. The six month term of imprisonment as a condition of probation is not excessive considering the extremely serious nature of the offense committed by the defendant. Likewise, the suspended five year period of incarceration with the five year probationary stipulation is not constitutionally excessive.
In fact, it appears that the sentence is illegally lenient considering LSA-R.S. 14:95.2[1] and LSA-C.Cr.P. 893.1.[2] Since a firearm is involved, this Court has held that a mandatory seven year period of incarceration without benefit of probation, parole or suspension of sentence is mandated. State v. Kennedy, 463 So.2d 808 (La.App. 2d Cir.1985); State v. Hogan, 454 So.2d 1235 (La.App. 2d Cir.1984); State v. Harris, 454 So.2d 1238 (La.App. 2d Cir.1984). Thus, the defendant should not be heard to complain on appeal of his illegally lenient sentence.
The important question is whether we should notice and correct this error on our own motion. State v. Jackson, 452 So.2d 682 (La.1984), held that a court of appeal may not correct an illegal sentence when the defendant alone seeks appellate review. The court went on to note that only the *885 prosecution could seek to correct the error and that the prosecution should first apply to the trial court. At that time, LSA-C. Cr.P. Art. 882 read:
An illegal sentence may be corrected at any time by the court that imposed the sentence.
A sentence may be reviewed as to its legality on the application of the defendant or of the state:
(1) in an appealable case by appeal; or
(2) in an unappealable case by writs of certerori and prohibition.
Nothing in this article shall be construed to deprive any defendant of his right, in a proper case, to the writ of habeas corpus.
Act 587 of 1984, effective September 3, 1984, amended the first sentence of Article 882 such that the article now reads:
A. An illegal sentence may be corrected at any time by the court that imposed the sentence or by an appellate court on review.
B. A sentence may be reviewed as to its legality on the application of the defendant or of the state:
(1) in an appealable case by appeal; or
(2) in an unappealable case by writs of certiorari and prohibition.
C. Nothing in this Article shall be construed to deprive any defendant of his right, in a proper case, to the writ of habeas corpus.
Our research indicates that the Louisiana Supreme Court has not spoken to the effect of this amendment. We have also determined that the various courts of appeal have taken different approaches. The same panel of the First Circuit in State v. Furlow, 460 So.2d 76 (La.App. 1st Cir. 1984), and State v. Spell, 461 So.2d 654 (La.App. 1st Cir.1984), upon observing illegally lenient sentences in both cases, did not note the amendment to Article 882, and relied on State v. Jackson, supra, as authority for not correcting those sentences. These cases were handed down on November 20, 1984 and December 28, 1984, respectively. However, another panel of the First Circuit, also on December 28, 1984, in State v. Holmes, 462 So.2d 286 (La.App. 1st Cir.1984), relied on the amendment to Article 882 to add the statutorily mandated "without benefit" provisions to a defendant who had been sentenced as a multiple offender.
The Fifth Circuit, in State v. Robertson, 459 So.2d 581 (La.App. 5th Cir.1984), handed down November 13, 1984, determined that even though Article 882 had been amended to grant courts of appeal the authority to correct an illegally lenient sentence, such authority was only available on the application of the state. Thus, since the illegally lenient sentence had only been brought to the court's attention in the state's oral argument, the Fifth Circuit reasoned that such was an insufficient application and left the sentence undisturbed.
The same panel of the Fourth Circuit, in two cases handed down simultaneously on January 11, 1985, reached opposite results. State v. Davis, 463 So.2d 733 (La.App. 4th Cir.1985), with Judge Lobrano as the organ of the court, followed the rationale of the Fifth Circuit in Robertson in determining that Jackson had not been overruled by Act 587 of 1984 and declined to correct an illegally lenient sentence which the court noticed on its own volition. However, in State v. Liddell, 463 So.2d 678 (La.App. 4th Cir.1985), Judge Barry, who dissented in Davis, determined that Art. 882, as amended, authorized the court's addition of the "without benefit" provisions to a 99 year hard labor sentence for armed robbery. Judge Lobrano, the author of Davis, dissented. Judge Garrison signed both opinions.
In State v. Poche, 464 So.2d 969 (La.App.
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