State v. Walker

677 So. 2d 532, 1996 WL 293143
CourtLouisiana Court of Appeal
DecidedJune 5, 1996
DocketCR96-112
StatusPublished
Cited by27 cases

This text of 677 So. 2d 532 (State v. Walker) 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. Walker, 677 So. 2d 532, 1996 WL 293143 (La. Ct. App. 1996).

Opinion

677 So.2d 532 (1996)

STATE of Louisiana
v.
Lynn WALKER.

No. CR96-112.

Court of Appeal of Louisiana, Third Circuit.

June 5, 1996.

*533 Jerold Edward Knoll, Marksville, for State of Louisiana.

Dan B. McKay Jr., Rayville, for Lynn Walker.

Before SAUNDERS, SULLIVAN and GREMILLION, JJ.

SULLIVAN, Judge.

Defendant was charged by bill of information with aggravated oral sexual battery, in violation of La.R.S. 14:43.4. On July 18, 1995, defendant appeared in open court, waived formal arraignment and pled guilty to the charge. The trial court fully Boykinized defendant and informed him of the possible penalty. On November 21, 1995, defendant was sentenced to serve twenty years in the custody of the Louisiana Department of Corrections. The sentence was ordered to run consecutively to any other sentence imposed against defendant. At the conclusion of the sentencing hearing, defendant orally moved for a motion to reconsider sentence which was denied by the trial court. Defendant now seeks review by this court alleging one assignment of error.

FACTS

During the month of January, 1995, defendant intentionally touched the vagina of the *534 juvenile victim[1] with his mouth (and/or tongue) and, also, had the juvenile victim touch defendant's penis with her mouth (and/or tongue), without the lawful consent of the victim, a juvenile under the age of twelve. See La.R.S. 14:43.4(A)(4).

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, we have reviewed defendant's appeal for errors patent on the face of the record. After reviewing the record, we find there are two errors patent.

The first error patent concerns whether defendant was given an illegal sentence. The trial court imposed the sentence pursuant to La.Code Crim.P. art. 895(H) (notification as a sex offender) and ordered defendant to give all notices and to otherwise comply with the article. La.Code Crim.P. art. 895(H) is limited to probation; however, the trial court did not place defendant on probation.

In State v. Lee, 94-0814 (La. 6/17/94); 641 So.2d 206, the supreme court, comparing La. R.S. 14:67.3 to La.Code Crim.P. art. 895.1 (restitution as a condition of probation), amended the defendant's sentence to delete the requirement of restitution after finding that La.R.S. 14:67 does not authorize the court to order restitution as part of an executory sentence of imprisonment.

Thus, following the supreme court in Lee, this court will vacate and amend the sentence by deleting that part of defendant's sentence requiring notification and remand in order for the trial court to amend the minutes.

The second error patent concerns the trial court's failure to give defendant credit for time served. La.Code Crim.P. art. 880 provides that when imposing sentence the court shall give the defendant credit toward service of his sentence for time spent in actual custody prior to the imposition of sentence. The record indicates the trial court did not do so. Thus, the sentence must be amended to reflect that the defendant is given credit for time served prior to the execution of the sentence. See La.Code Crim.P. art. 882(A). Resentencing is not required; however, we remand and order the district court to amend the commitment and minute entry of the sentence to reflect that the defendant is given credit for time served. State v. Moore, 93-1632 (La.App. 3 Cir. 5/4/94); 640 So.2d 561, writ denied, 94-1455 (La. 3/30/95); 651 So.2d 858.

ASSIGNMENT OF ERROR

By defendant's sole assignment of error, he argues that the trial court erred in sentencing him to the maximum term of imprisonment, consecutive to the sentences imposed upon him by the Thirty-Second Judicial District Court.

Defendant was sentenced on November 21, 1995. Citing La.Code Crim.P. art. 881.4(D) and La.R.S. 15:326, defendant contends that the trial court failed to consider the sentencing guidelines. The Louisiana Sentencing Guidelines were repealed by Act No. 942, § 3, of the 1995 Legislative Session, effective August 15, 1995, and new requirements for sentencing were added in La.Code Crim.P. 894.1. Thus, since the Louisiana Sentencing Guidelines no longer apply, defendant's contentions regarding La.Code Crim.P. art. 881.4(D)(1) and La.R.S. 15:326 are moot, and this court need only review the sentence for constitutional excessiveness.

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 the 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 a 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 *535 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 (La.1982).

The legislature has provided criteria to aid a sentencing court in determining whether a sentence of imprisonment should be imposed and whether suspension of a sentence or probation is warranted. La. Code Crim.P. art. 894.1; State v. Klause, 525 So.2d 1076 (La.App. 3 Cir.1988). Paragraph C of Article 894.1 requires the court to state for the record the considerations taken into account and the factual basis used when imposing a sentence. 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.), writ denied, 433 So.2d 166 (La.1983); see also, Smith, 433 So.2d 688 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 of items to comply with the requirements of La.Code Crim.P. art. 894.1. State v. Pontiff, 604 So.2d 71 (La.App. 3 Cir.1992).

As stated in Cottingin, 476 So.2d at 1186:

There are two underlying purposes of the codal requirement that the sentencing court articulate the specific reasons based on particular facts and considerations for imposing a sentence. First, it ensures that the sentence is particularized to the defendant. In addition, it aids the reviewing court in the determination of whether the sentence imposed is excessive by providing an actual indication of whether the sentencing court adequately considered the statutory guidelines.

(Citations omitted.)

La.R.S.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State of Louisiana v. Adrian Anton Dorsey
Louisiana Court of Appeal, 2022
State of Louisiana v. Uganon Sha Richard
Louisiana Court of Appeal, 2022
State v. Toups
224 So. 3d 990 (Louisiana Court of Appeal, 2017)
State of Louisiana v. Kyle James Toups
Louisiana Court of Appeal, 2017
State v. Williams
201 So. 3d 379 (Louisiana Court of Appeal, 2016)
State of Louisiana v. Walter Urena
Louisiana Court of Appeal, 2016
State of Louisiana v. J.A. M.
Louisiana Court of Appeal, 2012
State v. JSW
37 So. 3d 509 (Louisiana Court of Appeal, 2010)
State of Louisiana v. J.S. W.
Louisiana Court of Appeal, 2010
State v. Domingue
18 So. 3d 800 (Louisiana Court of Appeal, 2009)
State of Louisiana v. Terry Julius Domingue
Louisiana Court of Appeal, 2009
State v. Rogers
966 So. 2d 1212 (Louisiana Court of Appeal, 2007)
State of Louisiana v. Kevin D. Rogers
Louisiana Court of Appeal, 2007
State v. Boudreaux
966 So. 2d 79 (Louisiana Court of Appeal, 2007)
State v. Washington
931 So. 2d 1120 (Louisiana Court of Appeal, 2006)
State v. Insley
893 So. 2d 209 (Louisiana Court of Appeal, 2005)
State of Louisiana v. Neal W. Insley
Louisiana Court of Appeal, 2005
State v. Blake
872 So. 2d 602 (Louisiana Court of Appeal, 2004)

Cite This Page — Counsel Stack

Bluebook (online)
677 So. 2d 532, 1996 WL 293143, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-walker-lactapp-1996.