State v. Charrier
State v. Charrier
Dissenting Opinion
dissenting.
In my view, the record clearly shows that the sentencing court conscientiously considered all of the sentencing guidelines provided in LSA-C.Cr.P. Art. 894.1. The majority speaks of “possible” mitigating factors that should have been considered: defendant’s age and a one year suspended sentence for a prior felony conviction.
Pertinent to the excessive sentence issue, the record shows the following: (1) defendant was charged with aggravated burglary of an inhabited dwelling; (2) the minutes reflect that at sentencing, defendant and his counsel acknowledged that they had received from the court the factual contents and conclusions of the presentence investigation, particularly those adverse to defendant and they had no desire to oppose or contest any matters in the report or offer any additional matters for the court to consider; (3) defendant was placed on one year supervised probation for unauthorized use of a movable; (4) a letter written by defendant to the sentencing judge explaining that he was on probation when he (defendant) was “picked up” for the present offense, therefore, he requested that his sentence run concurrent with his prior sentence, that he not receive the maximum sentence and that he has learned that “drinking, all it cause is nothing But [sic] destruction sir,”; (5) a two page “Sentencing Guideline Checklist”; (6) he was on supervised probation less than six months when he committed the present offense; and, (7) the sentencing colloquy reflects that the sentencing court thoroughly and conscientiously explained the reasons for the sentence imposed, and, among other factors, that it read the presentence investigation report and defendant’s letter.
It is obvious from the record that the sentencing court was aware of defendant’s age. The record clearly reflects that the sentencing court fully considered defendant’s one year suspended sentence. In my view, a remand for re-sentencing for the reasons stated by the majority does not comport with what the record shows and will unnecessarily cause another sentencing hearing at the expense of the court’s time and public fisc.
For the foregoing reasons, I respectfully dissent.
Opinion of the Court
The defendant, Kenneth P. Charrier, was charged with aggravated burglary in violation of LSA-R.S. 14:60. After initially pleading not guilty, defendant entered a guilty plea on May 26, 1987. On August 25, 1987, defendant was sentenced to serve 15 years at hard labor to run consecutively with a prior sentence of 6 months. Defendant now appeals this sentence as excessive.
FACTS
On December 2, 1986, at about 11:10 p.m., Emily Coney heard someone breaking
ASSIGNMENT OF ERROR Defendant claims that the 15 year sentence imposed upon him is excessive and does not comply with the sentencing guidelines articulated in LSA-C.Cr.P. art. 894.1. The crime of aggravated burglary carries with it a sentence of not less than 1 year nor more than 30 years of imprisonment at hard labor. Defendant’s sentence is thus within the statutorily permissive range for the crime to which he pled guilty. However, even though a sentence is within that range, it may still be found as excessive. State v. Sepulvado, 367 So.2d 762 (La. 1979).
“A sentence has been determined to be excessive punishment when the penalty is so disproportionate to the crime as to shock the senses of justice or if it is nothing more than the purposeless and needless imposition of pain and suffering. ...
“However, due to the trial court’s unique advantage of viewing subjective factors not available from the appeal record, he is given wide discretion in the imposition of sentences within statutory limits, and a sentence imposed by him should not be set aside as excessive in the absence of manifest abuse of discretion.”
State v. Capps, 461 So.2d 562, 566 (La.App. 3d Cir. 1984).
Article 894.1 sets forth guidelines to aid the trial judge in sentencing a defendant. That article requires the judge to articulate into the record the considerations taken into account in determining the sentence. Thus a reviewing court will be aided in determining if the sentence imposed is excessive. State v. Bourgeois, 406 So.2d 550 (La. 1981). The court should indicate that it has considered not only the circumstances militating for incarceration, but also any mitigating factors. State v. Franks, 373 So.2d 1307, 1308 (La. 1979).
In sentencing Charrier, the trial judge first mentioned that he had reviewed the pre-sentence investigation. He then considered the factors listed in Article 894.-1(A)
The judge then considered the factors listed in Article 894.1(B)
Although it is clear that the trial judge did, in fact, consider the factors listed in Article 894.1, we feel that there are possible mitigating factors that should also have been considered. Defendant was only 18 years old at the time of this crime. He did have a criminal record, but that charge carried only a one year suspended sentence. (The record does not elaborate on the facts of that charge). We feel that these considerations could have potentially been considered by the trial judge to lessen defendant’s sentence. See State v. Lanclos, 419 So.2d 475, 477 (La. 1982).
The sentence imposed upon this defendant appears to be harsh. Certainly, the trial judge has the discretion to impose such a sentence, but without a more detailed record, we cannot determine if his discretion was abused. State v. Wimberly, 414 So.2d 666, 672 (La. 1982). The Wimberly Court discussed the remanding of cases for resentencing for failure to comply with the Article 894.1 guidelines. The court stated:
“Our decision in such a case represents a finding of a substantial possibility that the sentence is excessive and not a final judgment that it is invalid. The same sentence will be upheld on a second appeal if the judge’s statement of bare facts and reasons demonstrates that the sentence is not excessive under the circumstances of the particular case. Perhaps the same result could be reached in many instances by simply ordering the sentencing judge to file his findings and reasons in this court. However, we think that remanding for a new sentence is a better remedy for the possible violation of a vested legal right. The trial judge is not required to become an advocate for his original position or to go through the laborious process of reconstructing his findings and thoughts at the time of original sentencing. He is free to impose a different sentence based on additional information if he chooses.”
Similarly, in the present matter we feel that a more complete articulation of the
Therefore, we remand this case to the trial court for resentencing. We do not disturb defendant’s conviction based upon his guilty plea.
CONVICTION AFFIRMED; REMANDED FOR RESENTENCING.
. LSA-C.Cr.P. art. 894.1(A) provides:
"A. When a defendant has been convicted of a felony or misdemeanor, the court should impose a sentence of imprisonment if:
(1)There is an undue risk that during the period of a suspended sentence or probation the defendant will commit another crime;
(2) The defendant is in need of correctional treatment or a custodial environment that can be provided most effectively by his commitment to an institution; or
(3) A lesser sentence will deprecate the seriousness of the defendant’s crime.”
. LSA-C.Cr.P. art. 894.1(B) provides:
"B. The following grounds, while not controlling the discretion of the court, shall be accorded weight in its determination of suspension of sentence or probation:
(1) The defendant’s criminal conduct neither caused nor threatened serious harm.
(2) The defendant did not contemplate that his criminal conduct would cause or threaten serious harm.
(3) The defendant acted under strong provocation.
(4) There was substantial grounds tending to excuse or justify the defendant’s criminal conduct, though failing to establish a defense.
(5) The victim of the defendant’s criminal conduct induced or facilitated its commission.
(6) The defendant has compensated or will compensate the victim of his criminal conduct for the damage or injury that he sustained.
(7) The defendant has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the instant crime.
(8) The defendant’s criminal conduct was the result of circumstances unlikely to recur.
(9) The character and attitudes of the defendant indicate that he is unlikely to commit another crime.
(10) The defendant is particularly likely to respond affirmatively to probationary treatment.
(11) The imprisonment of the defendant would entail excessive hardship to himself or his dependents.
(12) The defendant’s voluntary participation in a pretrial drug testing program.”
. On May 3, 1986, defendant was charged with unauthorized use of a movable in Avoyelles Parish. He received a one year suspended sentence under supervised probation. Probation was revoked due to his involvement in the present matter. Defendant has no other criminal record as an adult or juvenile.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.