State v. Woodle

529 So. 2d 162, 1988 La. App. LEXIS 1570, 1988 WL 74862
CourtLouisiana Court of Appeal
DecidedJuly 21, 1988
DocketNo. CR87-1184
StatusPublished

This text of 529 So. 2d 162 (State v. Woodle) 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. Woodle, 529 So. 2d 162, 1988 La. App. LEXIS 1570, 1988 WL 74862 (La. Ct. App. 1988).

Opinion

LABORDE, Judge.

Defendant, Mona Jane Funderburk Woo-dle, was charged by bill of information with distribution of a controlled dangerous substance, Diazepam, a violation of LSA-R.S. [164]*16440:969(A). Following defendant’s guilty plea to the charge, she was sentenced to serve three years at hard labor. On appeal, defendant alleges three assignments of error all pertaining to the sentence imposed.

ASSIGNMENT OF ERRORS NO. 1 AND 2

As defendant’s first two assignments of error pertain to the application of La.C.Cr. P. art. 894.1, they will be discussed simultaneously. Assignment of error number one alleges that the trial court failed to properly apply the sentencing guidelines of art. 894.1. In the second assignment of error, defendant alleges that the record does not contain a factual basis for the sentence imposed.

The trial judge is required by art. 894.1 to state in the record the considerations taken into account in imposing sentence and provide a factual basis for the sentence. While the trial judge is not required to articulate every factor enumerated in art. 894.1, the record must reflect that he adequately considered all the factors in particularizing the sentence to the defendant. State v. Cottingin, 476 So.2d 1184 (La.App. 3d Cir.1985), after remand, 496 So.2d 1379 (La.App. 3d Cir. 1986). Consideration must be given to not only the aggravating factors which support incarceration but also to the mitigating factors. State v. Smith, 426 So.2d 738 (La.App. 3d Cir.1983), after remand, 445 So.2d 156 (La.App. 3d Cir.1984).

Elements to consider in particularizing the sentence to defendant are “the convict’s personal history (age, family ties, marital status, health, employment record), prior criminal record or absence thereof, seriousness of the particular offense and the likelihood of recidivism or rehabilitation— ” State v. Soco, 441 So.2d 719, 720 (La.1983), after remand, 508 So.2d 915 (La. App. 4th Cir.1987). A trial court’s failure to adequately comply with art. 894.1 will not necessitate remand if the record illumines and supports the sentencing choice. State v. Jones, 478 So.2d 764 (La.App. 3d Cir.1985).

An application of the above cited principles to the instant case supports our finding that the trial judge adequately complied with art. 894.1 and stated a factual basis for the sentence. The court concluded that defendant was in need of a custodial environment which could be provided most effectively by confinement. Additionally, the court concluded a lesser sentence would deprecate the seriousness of the crime.

In viewing the factors which must be considered in determining whether a probated or suspended sentence would be appropriate, the trial judge recognized that defendant’s conduct at least threatened serious harm by selling such a potent drug and there was nothing to indicate defendant did not contemplate the potential harm. The trial judge found that the mitigating factors listed in subparts 3 through 6 of paragraph B were inapplicable to the instant case. In discussing subpart 7, defendant’s prior criminal record, the court began by noting defendant’s 1984 conviction for DWI for which she successfully completed the probationary period. Defendant was also arrested in Sabine Parish on a charge of accessory after the fact to simple burglary of an inhabited dwelling; however, a no true bill was returned. Also in 1984, defendant was arrested for distribution of marijuana, but the charge was amended to simple possession and defendant was ordered to pay a fine of $200 plus court costs or serve 10 days in jail.

Apparently commenting on the likelihood of the recurrence of defendant’s criminal activity in the future, the trial judge noted defendant’s previous conviction involving marijuana indicated a past involvement in illegal drugs. While recognizing the possibility that defendant might respond affirmatively to probation, the court concluded the possibility was outweighed by the seriousness of the offense. The trial judge stated that no excessive hardship would be suffered by defendant or her dependents as her two children were in the custody of her mother and sister.

[165]*165In further particularizing the sentence to defendant, the court discussed defendant’s personal history. Defendant has been married three times and has two children from her second marriage. The children are eight and eleven years old. One child is in the temporary custody of defendant’s sister. According to educational records, defendant completed high school with above average grades and attended three semesters at Northwestern Louisiana State University. Between 1984 and 1985 defendant tended bar at three different establishments. The pre-sentence investigation indicates that defendant was unemployed between 1981 and 1984, but worked as a mail carrier for the U.S. Postal Service from 1975-1981.

The above discussion supports our conclusion that the trial judge properly applied the art. 894.1 factors and provided a factual basis for the sentence imposed. Assignment of errors no. 1 and 2 lack merit.

ASSIGNMENT OF ERROR NUMBER 3

Defendant contends her three year sentence on a distribution of Diazepam conviction is excessive. In 1974, Article 1, section 20 of the Louisiana Constitution was amended to prohibit excessive punishment as well as cruel and unusual punishment. On appeal a defendant may raise the issue of excessive sentence though his sentence is within the statutory limits. State v. Sepulvado, 367 So.2d 762 (La. 1979).

An excessive sentence is one which “(1) makes no measurable contribution to acceptable goals of punishment and hence is nothing more than the purposeless and needless imposition of pain and suffering; or (2) is grossly out of proportion to the severity of the crime.” State v. Telsee, 425 So.2d 1251 (La.1983). In reviewing an excessive sentence claim, the appellate court should look to the reasons articulated by the trial judge for assistance in determining whether a sentence is excessive. State v. Bourgeouis, 406 So.2d 550 (La. 1981). An appellate court, when reviewing an excessive sentence claim, must be mindful of the fact that wide discretion is granted to trial judges in the imposition of sentences within statutory limits and a sentence will not be set aside as excessive absent manifest abuse of discretion. State v. Meshell, 473 So.2d 935 (La.App. 3d Cir. 1985).

The initial focus in reviewing an excessive sentence claim should be on the nature of the offense and the offender. At this stage of the analysis, a review of the trial court’s application of the factors enumerated in art. 894.1 is helpful. As a full discussion of the trial court’s application of art. 894.1 was provided in the analysis of assignments of error numbers 1 and 2, the discussion will not be repeated here and reference should be made to that discussion.

In addition to looking at the nature of the offense and the offender in analyzing an excessive sentence claim, a court may compare the sentence imposed with sentences received by other defendants convicted of similar crimes. State v. Telsee, 425 So.2d at 1253. In State v. Carter, 485 So.2d 260 (La.App. 3d Cir.), writ denied, 492 So.2d 1216 (La.1986), cert den., 479 U.S. 1087, 107 S.Ct. 1293, 94 L.Ed.2d 149 (1987), the defendant was charged with possession of marijuana with intent to distribute.

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Related

State v. Bourgeois
406 So. 2d 550 (Supreme Court of Louisiana, 1981)
State v. Meshell
473 So. 2d 935 (Louisiana Court of Appeal, 1985)
State v. Cottingin
496 So. 2d 1379 (Louisiana Court of Appeal, 1986)
State v. Soco
508 So. 2d 915 (Louisiana Court of Appeal, 1987)
State v. Telsee
425 So. 2d 1251 (Supreme Court of Louisiana, 1983)
State v. Carter
485 So. 2d 260 (Louisiana Court of Appeal, 1986)
State v. Cottingin
476 So. 2d 1184 (Louisiana Court of Appeal, 1985)
State v. Smith
426 So. 2d 738 (Louisiana Court of Appeal, 1983)
State v. Sepulvado
367 So. 2d 762 (Supreme Court of Louisiana, 1979)
State v. Soco
441 So. 2d 719 (Supreme Court of Louisiana, 1983)
State v. Moss
438 So. 2d 1283 (Louisiana Court of Appeal, 1983)
State v. Jones
478 So. 2d 764 (Louisiana Court of Appeal, 1985)
State v. Smith
445 So. 2d 156 (Louisiana Court of Appeal, 1984)
Mihalcik v. Illinois Employers Insurance of Wausau
479 U.S. 1087 (Supreme Court, 1987)

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Bluebook (online)
529 So. 2d 162, 1988 La. App. LEXIS 1570, 1988 WL 74862, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-woodle-lactapp-1988.