text:
    STATE of Louisiana, Plaintiff-Appellee, v. Rocky Lee GOODWIN, Defendant-Appellant.
    No. CR83-284.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 12, 1983.
    Patrick L. Durusau, Jena, for defendant-appellant.
    Dan B. Cornett, Norris D. Jackson, Asst. Dist. Attys., Jena, for plaintiff-appellee.
    Before STOKER, LABORDE and KNOLL, JJ.
   STOKER, Judge.

Defendant, Rocky Lee Goodwin, pleaded guilty to an amended charge of simple burglary of an inhabited dwelling, a violation of LSA-R.S. 14:62.2. He was sentenced to a term of six years in the custody of the Department of Corrections, one year to be served without benefit of probation, parole or suspension of sentence.

No assignment of errors was filed in the record nor was there a brief filed on defendant’s behalf. Therefore, this case is reviewable only for errors discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence. LSA-C.Cr.P. art. 920; State v. Jackson, 332 So.2d 211 (La.1976). We have fully reviewed the record for these errors and find none.

For the reasons assigned, the conviction and sentence are affirmed.

AFFIRMED.


source: Caselaw Access Project

author: KNOLL, Judge.

license: Public Domain

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Louis J. MELBERT, Defendant-Appellant.
    No. CR83-307.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 12, 1983.

      Kenneth Ray Rush, Oakdale, for defendant-appellant.
    Alfred R. Ryder, Dist. Atty., John A. Duck, Jr., Asst. Dist. Atty., Oberlin, for plaintiff-appellee.
    Before STOKER, LABORDE and KNOLL, JJ.
   KNOLL, Judge.

The defendant, Louis Melbert, was charged by bill of information with possession of marijuana with intent to distribute, a violation of LSA-R.S. 40:966 A. The defendant waived his right to trial by jury and elected to be tried by judge alone. The trial court found the defendant guilty as charged and imposed a sentence of five years at hard labor with the Louisiana Department of Corrections.

The defendant failed to perfect any assignments of error as required by LSA-C.Cr.P. Art. 844. The defendant’s assignment of error was first made in brief to this court and therefore cannot be considered on appeal. State v. Zeno, 322 So.2d 136 (La.1975); State v. Spears, 350 So.2d 603 (La.1977). We are limited to a review of the record for errors that are discoverable by a mere inspection of the pleadings and proceedings, and without inspection of the evidence. LSA-C.Cr.P. Art. 920; State v. Jackson, 332 So.2d 211 (La.1976); State v. Gerald, 325 So.2d 574 (La.1976). We have reviewed the record and find no error.

Accordingly, the defendant’s conviction and sentence are affirmed.

AFFIRMED.


author: STOKER, Judge.

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Willie Lee FRAZIER, Defendant-Appellant.
    No. CR83-308.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 12, 1983.

      William D. Dyess, Many, for defendant-appellant.
    James L. Davis, Dist. Atty., Many, Abbott J. Reeves, Asst. Dist. Atty., Gretna, for plaintiff-appellee.
    Before STOKER, LABORDE and KNOLL, JJ.
   STOKER, Judge.

On June 4, 1981, Willie Lee Frazier was charged by bill of information with simple burglary of an inhabited dwelling, a violation of LSA-R.S. 14:62.2. On December 30, 1982, he pleaded guilty to an amended charge of simple burglary, a violation of LSA-R.S. 14:62, and was sentenced to three years in the custody of the Department of Corrections.

In this appeal, defendant Frazier seeks review of the sentence imposed by the trial judge. In assignments of error one and two he complains that the trial judge did not comply with the guidelines of LSA-C. Cr.P. art. 894.1 in applying and stating for the record the considerations to be taken into account in imposing a sentence. In assignment of error three Frazier complains that his sentence is excessive and constitutes cruel and unusual punishment.

For reasons discussed below, we affirm the decision of the trial judge.

ASSIGNMENTS ONE AND TWO

Frazier complains that in imposing sentence the trial judge either did not consider or did not give proper weight to certain mitigating factors. These are that he is a first felony offender with no previous record, that he is only twenty years old, that he is presently employed, and that he has two children dependent on his support.

The trial judge’s oral reasons for sentence indicate that he was fully aware of the above mitigating factors. However, the trial judge noted that Frazier had not claimed to be supporting any dependents until the time of sentencing. The pre-sentence investigation report indicated that Frazier was living with his grandmother and paying no rent. At sentencing, Frazier said he supported his two illegitimate children and their mother. After questioning Frazier about this matter the trial judge stated:

“It seems that the defendant’s concern about supporting this woman and these children is a late-blooming affair. It seemed to come into full blossom about the time he was about to be sentenced, ‘cause I find no credence to his [claim] to that effect. It’s highly contradictory, to say the least.”

The trial judge noted further that Frazier’s poor employment and school records indicated that he would not be able to successfully complete a probationary term.

In imposing sentence, a trial judge need not articulate every aggravating and mitigating circumstance. It is only necessary that the record reflect that he adequately considered the statutory guidelines. State v. Duncan, 420 So.2d 1105 (La.1982). The record in this case shows that the trial judge gave adequate consideration to the guidelines. He found that Frazier’s attitude toward his dependents was indifferent and not sufficiently genuine to warrant a suspension of sentence. Further, it is clear that he considered Frazier in need of a custodial environment based in part on Frazier’s continuing failure to make court appearances and meet with his attorney.

ASSIGNMENT THREE

In his third assignment of error Frazier claims that the three-year sentence imposed was unconstitutionally excessive. We disagree. Although we recognize that Frazier was eligible for probation, the trial judge gave adequate reasons for finding that he would not respond favorably to probationary treatment. The sentence imposed was in the lower range of a possible twelve-year sentence and was within the broad discretion of the trial judge.

DECREE

For the above reasons the conviction and sentence of the defendant are affirmed.

AFFIRMED.


author: LABORDE, Judge.

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Frederick Douglas JOHNSON, Defendant-Appellant.
    No. CR83-312.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 12, 1983.
    Alvin B. King, Lake Charles, for defendant-appellant.
    Leonard K. Knapp, Jr., Dist. Atty., F. Wayne Frey, Asst. Dist. Atty., Lake Charles, for plaintiff-appellee.
    Before STOKER, LABORDE and KNOLL, JJ.
   LABORDE, Judge.

Defendant, Frederick Douglas Johnson, was charged with eight counts of forgery by bill of information. LSA-R.S. 14:72. After trial by a six member jury, the defendant was found guilty as charged on all counts and sentenced to serve nine years on each count. The court expressly directed that the sentences be served concurrently with each other. On appeal, defendant relies on five assignments of error for reversal of his convictions and sentences. We affirm.

In this case, neither the appellant nor the appellee filed briefs. For this reason the assignments of error designated by the defendant in the record are considered as abandoned. State v. Lemoine, 403 So.2d 1280 (La.1981); State v. Dewey, 408 So.2d 1255 (La.1982).

Under these circumstances the court’s review is limited to a “mere inspection of the pleadings and proceedings” to determine if any patent errors are present. LSA-C. Cr.P. Art. 920(2).

After a thorough review of the record, we find no patent errors.

For these reasons, the convictions and sentences are affirmed.

AFFIRMED.

      . LSA-C.Cr.P. Art. 920.
      Scope of Appellate of Review. The following matters and no others shall be considered on appeal:
      (1) An error designated in the assignment of errors, and;
      (2) An error that is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence.


text:
    STATE of Louisiana, Plaintiff-Appellee, v. Robert DeWayne McCARTY & Robert Lee Nugent, Defendants-Appellants.
    No. CR83-316.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 12, 1983.
    Writ Denied Jan. 6,' 1984.

      William D. Dyess, Many, for defendants-appellants.
    James L. Davis, Dist. Atty., Many, Abbott J. Reeves, Asst. Dist. Atty., Gretna, for plaintiff-appellee.
    Before STOKER, LABORDE and KNOLL, JJ.
   STOKER, Judge.

As a result of a plea agreement to drop other charges, defendants Robert McCarty and Robert Nugent, pleaded guilty to two counts of simple burglary each. This appeal, Number CR83-316, arises from docket number 30,801 in Sabine Parish charging both defendants with burglary of a dwelling belonging to Mrs. Ann Kinney. A separate opinion will be rendered this date in appeal Number CR83-317 438 So.2d 1300, arising from docket number 31,146 which charges both defendants with burglary of a camp belonging to Mr. Garland Hamic. The cases were consolidated for sentencing and on appeal.

Pursuant to the plea agreement, an undetermined number of other counts of simple burglary against the defendants were dismissed. Apparently all the charges arose from a rash of burglaries of lakeside camps in Sabine and DeSoto parishes. After completion of pre-sentence investigations, both defendants were sentenced to six years in the custody of the Department of Corrections on each count, the sentences to be served concurrently.

On appeal defendants claim that the trial judge erred (1) in failing to comply with LSA-C.Cr.P. art. 894.1, (2) in imposing an unconstitutionally excessive sentence, and (3) in relying on inculpatory statements made by the defendants to the probation officer during the pre-sentence investigation without having had their Miranda warnings reiterated to them. For the reasons set out below, we affirm.

PRE-SENTENCE INVESTIGATION

After accepting their guilty pleas, the trial judge granted the defendants’ requests for pre-sentence investigations. At the sentencing hearing for McCarty, after finding the defendant in need of confinement, the trial judge stated:

“The conclusions in this respect are based on the fact that the defendant, while being charged [sic] multiple counts of burglary, was allowed to plead to two counts of burglary. That the defendant informed the investigating officers, in the course of their investigation, that he and his co-defendant had burglarized just about every camp on the lake in the Fishermans Wharf and Rolling Hills area.”

In sentencing Nugent, the trial judge indicated that his reasons for sentence were the same as those given for McCarty. Counsel for Nugent noted that the pre-sen-tence investigation indicated that Nugent told the agent making the report that “he and his co-defendant stole anything that was worth any money, such as shotguns, motors, fishing gear, chainsaws, et cetera.”

On appeal, both defendants claim that their statements were made to the probation officer who conducted the pre-sentence investigation without having been given their Miranda warnings. They contend that because of this the trial court erred in using the statements against them at the sentencing hearing. We note at the outset that McCarty’s statement regarding the other burglaries he and Nugent committed appears to have been made to the investigating police officers rather than the probation officer conducting the pre-sen-tence investigation. Presumably such a statement made to police officers would have been with the benefit of Miranda warnings. In any event, statements to officers investigating the crimes would not be within the scope of this complaint.

Defendants cite two cases in support of their claims that inculpatory statements made during the course of a pre-sentence investigation without benefit of Miranda warnings should not be considered for sentencing, Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981) and Jones v. Cardwell, 686 F.2d 754 (9th Cir.1982). In each of these cases the courts found that the defendants’ Fifth Amendment rights against self-incrimination were violated with regard to statements used against them at sentencing. However, in each case the courts declined to hold that Miranda warnings are required during a pre-sen-tence investigation. Each court found only that under the specific circumstances presented, the defendant’s Fifth Amendment rights were violated.

In Estelle, supra, the sentencing hearing was one in which the state sought the death penalty. Prior to trial and conviction, and on his own initiative, the trial judge ordered a psychiatric examination of the defendant to determine whether he was competent to stand trial. The results of the examination were not used at trial, but the psychiatrist was called to testify at the sentencing hearing. His testimony was that the defendant had shown a total lack of remorse for his part in a murder and was a “severe sociopath”. The psychiatric examination was conducted while defendant was incarcerated awaiting trial, and defendant was not given the benefit of counsel or Miranda warnings before the examination was conducted.

The Supreme Court determined that the examination conducted prior to conviction while the defendant was incarcerated violated his Fifth Amendment privilege against self-incrimination and his Sixth Amendment right to counsel. Defendant’s death sentence was vacated, and the case was remanded for a new sentencing hearing in which use of the psychiatrist’s testimony was prohibited. The Court pointed out in a footnote:

“Of course, we do not hold that the same Fifth Amendment concerns are necessarily presented by all types of interviews and examinations that might be ordered or relied upon to inform a sentencing determination.”

We do not find that the pre-sentence investigations in these two cases now before us, conducted at defendants’ request while they remained free on bail, raise the Fifth Amendment concerns presented in Estelle.

Jones v. Cardwell, supra, also involved a custodial interrogation, but the questioning was by a probation agent who was conducting a pre-sentence investigation. After informing the defendant that he was under court order to answer questions, the agent questioned him about prior crimes. The defendant then confessed to crimes other than the first degree burglary and rape for which he was convicted. As in Estelle, the Jones court found that defendant’s Fifth Amendment rights had been violated under the circumstances presented by the facts before it. The court stated:

“Because the state was aggressive in extracting a confession from appellee without warning him of the consequences, we hold the appellee’s confession, in the setting in which it occurred, was involuntary.”

In the cases before us, we do not find that the defendants’ Fifth Amendment rights were violated. After pleading guilty to two counts of burglary, defendants themselves requested pre-sentence investigations, and their requests were granted. Both defendants remained free, on the bail originally posted, pending the sentencing hearing. Apparently, the questioning by the probation officer did not occur in a custodial environment. Also, the defendants do not claim that their statements were aggressively extracted as was the case in Jones, supra. There is also no claim that the pre-sentence investigation report contained false information.

It is clear that the prosecution may not use inculpatory statements made by a defendant during custodial interrogation unless procedural safeguards have been used to insure that the privilege against self-incrimination has not been violated. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); State v. Sonnier, 379 So.2d 1336 (La.1979). Defendants here do not claim that their statements were made during a custodial interrogation, but seek only to have this court require that Miranda warnings be given during the course of every pre-sentence investigation. We do not believe that the Fifth Amendment or prevailing case law requires such a result and hold only that the statements in question here should not be excluded on the basis of a Fifth Amendment violation.

Although defendants do not specifically raise the claim that the trial court improperly considered evidence of prior crimes, we point out that such a consideration is proper in sentencing. Prior criminal activity is a factor to be considered in sentencing under LSA-C.Cr.P. art. 894.1 and such activity is not limited to prior convictions. State v. Pierson, 296 So.2d 324 (La.1974); State v. Washington, 414 So.2d 313 (La.1982). In this case, the trial judge knew of the other burglaries committed by defendants not only through McCarty’s statement but because of the nature of the plea agreement in which other counts of burglary were dropped in exchange for a guilty plea to two counts.

Nugent’s statement regarding the goods taken during the burglary was also properly considered by the trial judge. The underlying circumstances of the crime should be considered so that the sentence can be individualized. State v. Day, 414 So.2d 349 (La.1982).

For the above reasons, we find no merit to the defendants’ arguments regarding the pre-sentence investigation.

SENTENCING GUIDELINES

Defendants argue that the trial judge failed to properly consider mitigating factors in imposing sentence in accordance with LSA-C.Cr.P. art. 894.1. We find no merit to this argument.

In his reasons for sentence, the trial judge clearly states that he had considered the information in the pre-sentence investigation report and noted particularly that he had considered mitigating factors such as age and employment. The trial court need not articulate every mitigating factor. The record must only reflect that he gave adequate consideration to the guidelines in art. 894.1. State v. Grey, 408 So.2d 1239 (La.1982). The trial court’s statements in this case are sufficient to show that he adequately considered the mitigating factors, but found the serious nature of the offenses along with evidence that defendants had been involved in these types of crimes for quite some time outweighed any mitigating factors.

EXCESSIYENESS OF SENTENCE

The crime of simple burglary carries a penalty of a fine not more than $2,000 and a sentence of imprisonment of not more than twelve years. Thus, by pleading guilty to two counts, defendants were exposed to possible fines of $4,000 and possible sentences of twenty-four years. In fact, they were sentenced to only six years on each count, the sentences to be served concurrently. In effect, each defendant received only a six year sentence. Based on the trial judge’s reasons for sentence and our own review of the record, we do not find these sentences to be excessive.

CONCLUSION

For the above stated reasons, the convictions and sentences of Robert DeWayne McCarty and Robert Lee Nugent are affirmed.

AFFIRMED.


text:
    STATE of Louisiana, Plaintiff-Appellee, v. Robert DeWayne McCARTY & Robert Lee Nugent, Defendants-Appellants.
    No. CR83-317.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 12, 1983.
    Writ Denied Jan. 6,1984.
    William D. Dyess, Many, for defendants-appellants.
    James L. Davis, Dist. Atty., Many, Abbott J. Reeves, Asst. Dist. Atty., Gretna, for plaintiff-appellee.
    Before STOKER, LABORDE and KNOLL, JJ.
   STOKER, Judge.

For the reasons contained in State v. McCarty and Nugent, 438 So.2d 1296 (La.App. 3rd Cir.1983), rendered in a separate opinion this date, the convictions and sentences of the defendants are affirmed.

AFFIRMED.


text:
    STATE of Louisiana, Plaintiff-Appellee, v. Robert L. HUMPHRIES, Defendant-Appellant.
    No. CR83-334.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 12, 1983.
    Jack L. Simms, Jr., Leesville, for defendant-appellant.
    Asa A. Skinner, Asst. Dist. Atty., Lees-ville, for plaintiff-appellee.
    Before STOKER, LABORDE and KNOLL, JJ.
   LABORDE, Judge.

Defendant, Robert T. Humphries, was originally charged with the crime of Attempted Aggravated Rape by bill of information. LSA-R.S. 14:42 and R.S. 14:27. Upon trial court sanction, the bill of information was amended to reflect the crime of Indecent Behavior with Juveniles. LSA-R.S. 14:81. The defendant thereafter entered a guilty plea to the amended charge and was sentenced to serve three years without hard labor. On appeal, defendant relies on two assignments of error for reversal of his conviction and sentence. We affirm.

It is well settled in our law that assignments of error designated by the defendant are considered as abandoned when defendant fails to file a brief. State v. Lemoine, 403 So.2d 1230 (1981); State v. Dewey, 408 So.2d 1255 (La.1982). Under these circumstances the court’s review is limited to a “mere inspection of the pleadings and proceedings” to determine if any patent errors are present. LSA-C.Cr.P. Art. 920(2).

After a thorough review of the record, we find no patent errors.

For these reasons, the conviction and sentence is affirmed.

AFFIRMED.

      . LSA-C.Cr.P. Art. 920
      Scope of Appellate Review. The following matters and no others shall be considered on appeal:
      (1) An error designated in the assignment of errors, and;
      (2) An error that is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence.


text:
    STATE of Louisiana, Plaintiff-Appellee, v. Manuel G. FONTENOT, Defendant-Appellant.
    No. CR83-335.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 12, 1983.
    Lester A. Robertson, Lake Charles, for defendant-appellant.
    Leonard K. Knapp, Jr., Dist. Atty., Robert R. Bryant, Jr., Asst. Dist. Atty., Lake Charles, for plaintiff-appellee.
    Before STOKER, LABORDE and KNOLL, JJ.
   KNOLL, Judge.

The defendant, Manuel Fontenot, was convicted by a six member jury of simple robbery, a violation of LSA-R.S. 14:65, and sentenced to a term of six years with the Louisiana Department of Corrections. Defendant has appealed the sentence as being excessive and not in accordance with LSA-C.Cr.P. Art. 894.1.

FACTS

On October 7, 1982, at 7:00 P.M., the defendant robbed Patricia LeDoux of $16 while she was working as a cashier in a small boxlike structure at the Calcasieu Exxon Service Station in Lake Charles. Ms. Ledoux was working alone when the defendant approached the cashier’s window with one hand in a paper bag telling her it was a robbery ‘and demanding that she give him all the money or he would shoot her. Ms. LeDoux told him the service station did not have any money, and even showed the defendant the empty cash register drawer. The defendant then ordered her to give him what she had in her wallet or he would shoot her. Ms. LeDoux obtained $16 from her purse and surrendered the money to the defendant. The defendant took the money and fled.

During the robbery, Ms. LeDoux observed the defendant’s features. She immediately reported the robbery to the police, who promptly responded to her call. Shortly after, the police returned to the station with the defendant wherein Ms. Le-Doux positively identified the defendant as the one who robbed her.

ASSIGNMENTS OF ERROR

The defendant contends that the trial judge failed to comply with the sentencing guidelines in LSA-C.Cr.P. Art. 894.1 and that the sentence is excessive.

At sentencing, the trial court recited all of section A of LSA-C.Cr.P. Art. 894.1. The trial judge commented that he had studied the defendant’s presentence report and the guidelines, and, that in view of the seriousness of the offense and the possibility of harm to the cashier, he felt incarceration was necessary. The trial judge did not give an articulated factual basis for his sentencing'choice which is the goal of Article 894.1. State v. Lanclos, 419 So.2d 475 (La.1982). However, a failure to comply with Article 894.1 does not automatically render a sentence invalid. State v. Wimberly, 414 So.2d 666 (La.1982).

The sentencing judge presided over the defendant’s trial and was familiar with the defendant’s criminal conduct in the perpetration of this offense. The pre-sentence investigation shows that the defendant had an active misdemeanor record with 7 convictions. The record reflects the sentencing judge was aware of these convictions. We find the record fully supports the sentence imposed. Where the record clearly shows an adequate factual basis for the sentence imposed, a remand to require the trial court to restate for the record matters which are already apparent from the record is unnecessary. State v. Day, 391 So.2d 1147 (La.1980); State v. Lanclos, supra; State v. Johnson, 411 So.2d 439 (La.1982).

We conclude that the sentence imposed was supported by the record and was neither arbitrary nor excessive. These assignments of error are without merit.

DECREE

The conviction and sentence of the defendant are affirmed.

AFFIRMED.


author: KNOLL, Judge. STOKER, Judge,

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Ted Brian HONEYCUTT, Defendant-Appellant.
    No. CR83-381.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 12, 1983.
    Writ Denied Dec. 9,1983.
    James Miguez, Carl A. Leckband, Jr., Mi-guez & Leckband, Lake Charles, for defendant-appellant.
    Leonard K. Knapp, Jr., Dist. Atty., F. Wayne Frey, Asst. Dist. Atty., Lake Charles, for plaintiff-appellee.
    Before ' STOKER, LABORDE and KNOLL, JJ.
   KNOLL, Judge.

The defendant, Ted Brian Honeycutt, was convicted by a six member jury of receiving stolen things valued at $10,000, a violation of R.S. 14:69. The defendant filed a motion for a new trial on the ground that the verdict was contrary to the law and the evidence. The motion was denied and the defendant was sentenced to three years in the custody of the Department of Corrections, suspended, with five years supervised probation, subject to the conditions provided in LSA-C.Cr.P. Art. 895, and two special conditions: (1) restitution in the sum of $5,000 to the owner of the pipe and (2), pay a fine of $1,000 and court costs. In default thereof, the defendant was to serve six months in the parish jail.

On this appeal the defendant contends the trial judge erred in denying his motion for a new trial in that the verdict is contrary to the law and the evidence.

FACTS

In January of 1981, Power Rig Drilling Company of Lafayette, closed down a drilling rig in Lake Charles. Thirty-two lengths of drilling pipe were left at the site. On or about January 23, 1981, Mr. J.C. Goodrich, a vice-president of Power Rig Drilling Company, returned to the site and discovered that the thirty-two (32) lengths of pipe were missing.

In March of 1981, Mr. Walter P. Romero went to Longview, Texas, to hard band (a type of welding) some drilling pipe for Ram Pipe Company. While there, he noticed certain drill pipe that already had his application of hard band. He recognized this pipe due to a unique hard banding process that he had used. When he returned to Louisiana he reported this to Power Rig officials. Investigation by the Calcasieu Parish Sheriff’s Office and the FBI traced the pipe back to the defendant.

The defendant, a self-employed independent truck driver, testified that sometime during January of 1981, he was returning in his truck to his home in Lake Charles from a truck terminal in Houston, Texas. His truck was empty. He was travelling with his wife who was in the sleeper compartment in the rear of the cab of the truck. He stopped at a rest area so his wife could use the restroom. An unidentified black male truck driver approached the defendant and told him that his (the black truck driver’s) truck was overloaded and asked the defendant to help him by carrying some pipe through a weigh station to avoid being fined. Defendant agreed for $100. Some of the pipe was loaded on defendant’s empty truck. After passing through the weigh station they met at the Ranch Truck Stop in Lake Charles. They tried to transfer the pipe back on the black man’s truck but were unable because defendant’s truck was lower and the pipe was too heavy.

Defendant testified that the black driver telephoned his office and was instructed to call back later for instructions during which time he described the pipe as junk pipe. The defendant commented that he had been looking for some pipe to build a shop. Before the black driver went back to call his office, the defendant requested that he ask his office if they would be willing to sell him the pipe for $300. When the black driver returned from making the call, he told the defendant he could have the pipe for $300. The defendant paid him $200 in cash, plus a credit for the $100 the black driver was suppose to pay the defendant for carrying the pipe through the weigh station.

The defendant brought the pipe to his father-in-law’s house where it remained for approximately three months, when the defendant sold the pipe to Russell G. Pousson for approximately $3,900. Mr. Pousson withheld a finder’s fee of 10% and gave the defendant a net balance of $3,600. Mr. Pousson in turn sold the pipe for $9,900 to Ram Pipe Company.

ASSIGNMENT OF ERROR

The defendant contends that the State failed to prove the offense charged. At the time of the offense, the crime of receiving stolen things was defined in LSA — R.S. 14:69 as:

“... the intentional procuring, receiving, or concealing of anything of value which has been the subject of any robbery or theft, under circumstances which indicate that the offender knew or had good reason to believe that the thing was the subject of one of these offenses.”

Thus, the crime consists of four elements: (1) the intentional procuring, receiving, or concealing (2) of anything of value (3) which has been the subject of any robbery or theft (4) under circumstances which indicate that the offender knew or had good reason to believe that the thing was the subject of one of these offenses. State v. Walker, 350 So.2d 176 (La.1977). The defendant claims that the fourth element was not met by the State.

In reviewing the sufficiency of evidence, Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) and LSA-R.S. 15:438 are used as guidelines. State v. Rosado, 431 So.2d 804 (La.App. 4th Cir.1983). The Jackson v. Virginia standard is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude that the State proved the essential elements of the crime beyond a reasonable doubt. State v. Rosado, supra. R.S. 15:438 provides:

“The rule as to circumstantial evidence is: assuming every fact to be proved that the evidence tends to prove, in order to con vict, it must exclude every reasonable hypothesis of innocence.”

The defendant claims he did not know the drill pipe was stolen. He further claims that because of his limited education (eighth grade) he could not determine whether the drill pipe was junk pipe or usable equipment. We find the record supports that the defendant knew or had good reason to believe that the drill pipe was stolen.

The defendant had been an independent truck driver since 1975. As a trucker, he had hauled drill pipe before for Conoco and several other companies.

In the defendant’s account of acquiring the pipe, he did not know the name of the man who sold him the pipe and did not get a receipt. He did not know what company the man was working for and did not notice any company name or emblem on the man’s truck. His wife, who was travelling with him, did not see or hear anything. The defendant supposedly wanted the pipe to build a shop which was never built. After acquiring the pipe, he unloaded it at his father-in-law’s house where it remained for three months until he sold it for $3,600.

The purpose of the phrase “had good reason to believe” is to preclude the assertion of naivete as a defense. State v. Courtney, 296 So.2d 807 (La.1974). We find the defendant’s experience as a trucker, the circumstances surrounding his purchase of the drill pipe for $300 and his subsequent sale of the pipe for $3,600, shows that he either knew or had good reason to believe the drill pipe was stolen.

After viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude that the State proved the essential elements of the crime, and the evidence excluded every reasonable hypothesis of innocence.

DECREE

The defendant’s conviction and sentence are affirmed.

AFFIRMED.

STOKER, J., dissents and assigns written reasons.

STOKER, Judge,

dissenting.

With respect, I dissent from the majority’s affirmance of the defendant’s conviction and sentence. I am of the opinion that his conviction should be reversed. There is no proof that defendant knew the pipe had been stolen. Therefore, a conviction had to rest on a reasonable conclusion that defendant had good reason to believe that the pipe was stolen. Regardless of suspicions, I am of the view that a rational trier of fact could not conclude beyond reasonable doubt, under the test laid down in Jackson v. Virginia, 443 So.2d 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), that defendant had good reason to believe the pipe was stolen.

The majority relies heavily on the fact that the defendant bought the pipe for $300 and later sold it for $3,600. According to the majority, this circumstance shows that the defendant either knew or had good reason to believe the drill pipe was stolen. The majority evidently concludes that defendant knew at the time he purchased the pipe that it was worth much more than $300. With respect I disagree.

Expert testimony established that the grade, and consequently the value of the pipe, could not be determined by viewing the pipe with the naked eye. With respect to pipe of this nature, special testing is required to determine its value. It was established that the value of junk pipe is whatever the going rate for junk iron is. Junk pipe is often given away, and it is not unusual to sell it for between five and ten dollars per pipe. The State merely proved that if one could determine that the pipe was of premium grade, that its value would have been considerably higher than the $300 paid for all thirty two pieces of pipe. I am unable to conclude that the price paid by defendant was so unusually low as to give the defendant good reason to believe the pipe to be stolen.

Viewing all the circumstances surrounding defendant’s acquisition of the pipe, together with the circumstance that the sole explanation for the possession of stolen pipe consisted of the facts related by the defendant himself, I am unable to conclude that rational triers of fact could conclude beyond reasonable doubt that the defendant had good reason to believe the pipe was stolen. Even viewed in the light most favorable to the prosecution, i.e., for conviction, I am unable to conclude that more than strong suspicion and doubt have been proved.


author: LABORDE, Judge. STOKER, Judge,

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Clyde POWELL, Defendant-Appellant.
    No. CR83-339.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 12, 1983.
    Writ Denied Dec. 9,1983.
    Elvin C. Fontenot, Jr., Tillman & Fonten-ot, Leesville, for defendant-appellant.
    Mark Kramer, Asst. Dist. Atty., Leesville, for plaintiff-appellee.
    Before STOKER, LABORDE and KNOLL, JJ.
   LABORDE, Judge.

Defendant, Clyde Powell, was indicted by a grand jury for the crime of aggravated rape. LSA-R.S. 14:42. A twelve member jury in a 10-2 decision rendered a responsive verdict of guilty to forcible rape. LSA-R.S. 14:42.1. Defendant was sentenced to serve a two year mandatory jail term with a five year suspended sentence. Defendant contends that the trial court erred in denying his motion for a new trial since the evidence presented at trial was not sufficient to establish his guilt beyond a reasonable doubt. LSA-C.Cr.P. 851(1). Defendant appeals the trial court’s denial of this motion. We reverse and render acquittal.

The alleged offense occurred on the evening of November 22, 1980 at approximately 8:15 p.m. when the victim, Cassandra Weeks Sylvester (Weeks), was standing on the corner of Havana Street in Leesville, waiting for a ride to Fort Polk. She related the following account of the incident. As she was waiting for her cousin to pick her up, the defendant, Clyde Powell, drove past her in an early 1970’s model car. The defendant noticed the victim, stopped his car and parked not far from where she was standing. Shortly thereafter the victim, Weeks, approached defendant’s car inquiring about his reasons for stopping. At trial she admitted having met the defendant earlier that evening and testified that she voluntarily went over and entered his car to talk for a while. From this point the facts are highly disputed.

Weeks testified that she entered defendant’s car after he agreed to bring her to her cousin’s residence located nearby. The defendant then allegedly brought Weeks to a secluded area and threatened to kill her when she refused to have sexual intercourse with him. Weeks stated that defendant slapped her in the face three or four times while threatening to kill her. He allegedly threatened to use a weapon which, he had indicated, was under the seat of the car. Weeks admitted that she never saw the weapon or an object of any type which defendant threatened to kill her with. Following these incidents the victim testified that they each removed their own pants and defendant had intercourse with her on the front seat of the car. Thereafter, defendant brought Weeks to where she initially approached him that evening and the victim sought help from nearby friends who in turn contacted the police.

Defendant admits taking the victim in his car for a ride around the block to a nearby bar, but denied ever having had intercourse with her. The record is void of any substantial evidence, other than the victim’s testimony, tending to prove: (1) the act of sexual intercourse, and (2) the statutory acts of force or threats which prevented the victim from resisting.

The issue arising out of defendant’s assignment of error is whether the evidence presented at trial, taken in a light most favorable to the prosecution, proves beyond a reasonable doubt all of the essential elements of the crime for which the defendant was convicted.

Pursuant to C.Cr.P. art. 851(1) the defendant moved for a new trial on the ground that the verdict was contrary to the law and evidence. In criminal cases, the jurisdiction of the Courts of Appeal is limited to questions of law only. La. Const. art. V, sec. 10(B) (1974). Generally, we are precluded from reviewing the record on questions of fact and will not disturb the trial court ruling on a motion for new trial in the absence of an abuse of discretion. State v. Caminita, 411 So.2d 13 (La.1982) cert. denied, - U.S. -, 103 S.Ct. 314, 74 L.Ed.2d 291 (1982); State v. Turner, 365 So.2d 1352 (La.1978). However, in State v. Mathews, 375 So.2d 1165 (La.1979), the Louisiana Supreme Court determined that the United States Supreme Court case of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) required that the standard of review when considering the sufficiency of the evidence to support a criminal conviction is whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. This standard of review is now relied upon by the courts in an appellate review to determine whether the trial court abused it’s discretion in denying a motion for new trial when defendant contends on appeal that the verdict was contrary to the law and evidence. State v. West, 419 So.2d 868 (La.1982). We note however, that the most appropriate manner to raise the issue of insufficiency of the evidence is by motion for post verdict judgment of acquittal. C.Cr.P. art. 821. This motion and statutory provision mandates application of the Jackson standard by the trial court and vests authority in the appellate courts to render modified verdicts or acquittals on review of the evidence. Review of the evidence by an appellate court is required by the Due Process Clause of the Fourteenth Amendment of the United States Constitution when it is alleged that the evidence was insufficient to support the conviction. State v. Graham, 422 So.2d 123 (La.1982). Armed with these constitutional standards we proceed to review the evidence in a light most favorable to the State to determine whether a rational fact finder could find that the essential elements of the crime have been proven beyond a reasonable doubt.

In order for the defendant’s • guilty verdict of forcible rape to withstand the constitutional challenge of sufficiency of the evidence, the evidence must disclose under the Jackson standard that:

(1) defendant committed an act of anal or vaginal sexual intercourse with the alleged victim without her consent;
(2) the alleged victim was not the spouse of the defendant; and
(3) the alleged victim was prevented from resisting the act by force or threats of physical violence under circumstances where the victim reasonably believed that resistance would not prevent the rape.

Clearly the record shows that Weeks was not the spouse of the defendant, nor that she consented to having sex with him.

The only evidence concerning the act of sexual intercourse is the testimony of the victim. There was no other factual evidence to corroborate her testimony. Nevertheless, we find that any rational trier of fact could have reasonably concluded that the evidence taken in the light most favorable to the prosecution, showed beyond a reasonable doubt sufficient proof of the element. Under the Jackson test we feel that the jury (fact finder) could have reasonably accorded great weight to the victim’s testimony to the extent that this element of the crime was proven beyond a reasonable doubt.

There was no showing, however, of resistance on the part of the victim and very little evidence that she was prevented from resisting by force or threats of physical violence under the circumstances. Construing the evidence in a light most favorable to the prosecution, we do not feel that any rational trier of fact could find beyond a reasonable doubt that there was force or threats of physical violence where the victim reasonably believed that resistance to the act would be to no avail. We specifically note the trial court’s written reasons in his denial of the motion for new trial (Tr— 53):

“Had I been one of the jurors, or had this been a bench trial, I may have concluded . . . that the evidence was insufficient to prove, beyond a reasonable doubt, that the victim was prevented from resisting in the manner recited by the statute.”

The trial judge went on to deny the motion for new trial on the basis that he would not supplant the findings of the jury with his own opinion. However, he concluded that the jury could have found that there was sufficient evidence to prove this element under the Jackson standard. We disagree.

Even if we were to give conclusive weight to the victim’s testimony in the trial, the State has still failed to present evidence to prove an essential element of the crime. This is evidenced by the trial court’s doubt in his reasons as stated above. Certainly, the victim was afraid, but she also testified that the defendant said he would not hurt her. It is important to note that all of the witnesses who saw the victim immediately after the alleged rape testified that they did not see any cuts, bruises or evidence of any physical attack. Her own testimony indicates that she did not make any efforts to resist. The victim asserted at trial that the defendant threatened to kill her, yet, he did nothing to warrant a reasonable person in these circumstances to believe that resistance would not prevent the rape. The victim testified that she took her own pants off while defendant disrobed. She admitted that she never saw the object under the seat which defendant allegedly threatened to kill her with.

After a thorough review of the record we find that the evidence is insufficient to convince a reasonable fact finder beyond a reasonable doubt that the victim was prevented from resisting the act by threats of force or physical violence under the circumstances. We recognize that there are cases holding that the victim’s testimony is sufficient to establish an essential element of a crime. State v. Rives, 407 So.2d 1195 (La.1981). However, it is clear, that the victim’s testimony in this case, even when construed in a light most favorable to the prosecution, leaves reasonable doubt in the minds of reasonable men as to the commission of an essential element of the crime. Therefore, the State has failed to carry it’s burden of proof under Jackson v. Virginia, supra., as to an essential element of the crime. Defendant’s motion for a new trial challenging the legal sufficiency of the evidence was improperly denied by the trial court.

The Double Jeopardy Clause of the Fifth Amendment of the United States Constitution precludes a second trial once a reviewing court has found the evidence legally insufficient to support a guilty verdict. Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1980). Therefore, reversal of the trial court’s ruling on a motion for a new trial based on legal insufficiency of the evidence will result in an acquittal of the defendant.

Based on the foregoing reasons and authority, the trial court ruling on the motion for a new trial is reversed and the defendant accordingly acquitted.

REVERSED AND RENDERED.

STOKER, J., dissents and assigns written reasons.

STOKER, Judge,

dissenting.

With respect, I dissent from the reversal of defendant’s conviction in this case. Defendant was charged with aggravated rape but was found guilty of the lesser included crime of forcible rape by a ten to two decision of the jury. It is true, as the victim admits, that the victim did not resist beyond remonstrance and initial refusal to cooperate. She also admits to removing one leg from her pants at the order of the defendant. However, I believe that the resistance standard applied by the majority is more appropriate to that prescribed for aggravated rape as set forth in LSA-R.S. 14:42.

The resistance standard contained in the definition of the crime of aggravated rape in LSA-R.S. 14:42, together with the prescribed punishment is:

“Aggravated rape is a rape committed where anal or vaginal sexual intercourse is deemed to be without lawful consent of the victim because it is committed under any one or more of the following circumstances:
“(1) Where the victim resists the act to the utmost, but whose resistance is overcome by force; or
“(2) Where the victim is prevented from resisting the act by threats of great and immediate bodily harm, accompanied by apparent power of execution; or
“(3) Where the victim is prevented from resisting the act because the offender is armed with a dangerous weapon;
“Whoever commits the crime of aggravated rape shall be punished by life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence.” (Emphasis added.)
Acts 1978, No. 239, § 1. Amended by Acts 1981, No. 707, § 1.

The resistance standard (not resistance in fact) required for forcible rape is contained in the definition of the crime set forth in LSA-R.S. 14:42.1:

“Forcible rape is a rape committed where the anal or vaginal sexual intercourse is deemed to be without the lawful consent of the victim because the victim is prevented from resisting the act by force or threats of physical violence under circumstances where the victim reasonably believes that such resistance would not prevent the rape.
“Whoever commits the crime of forcible rape shall be imprisoned at hard labor for not less than two nor more than forty years. At least two years of the sentence imposed shall be without benefit of probation, parole, or suspension of sentence.” (Emphasis added.) Acts 1978, No. 239, § I-

At the present time, although it was not so at the time of defendant’s trial and conviction, the crime of sexual battery, defined in LSA-R.S. 14:43.1, is a lesser included offense of both aggravated rape and forcible rape. LSA-C.Cr.P. art. 814 A 8 and 10. Sexual battery is defined in LSA-R.S. 14:43.1 as:

“Sexual battery is the intentional engaging in any of the following acts with another person, who is not the spouse of the offender, where the offender compels the other person to submit by placing the person in fear of receiving bodily harm:
“(1) The touching of the anus or genitals of victim by the offender using any instrumentality or any part of the body of the offender; or
“(2) The touching of the anus or genitals of the offender by the victim using any instrumentality or any part of the body of the victim.
“Whoever commits the crime of sexual battery shall be punished by imprisonment, with or without hard labor, for not more than ten years.” (Emphasis added.) Acts 1978, No. 239, § 1. Amended by Acts 1981, No. 624, § 1, eff. July 20,1981.

Forcible rape falls squarely between aggravated rape and sexual battery. In forcible rape the victim is not required to actually resist. It is necessary only that the victim be prevented from resisting either from (1) force or (2) threats of physical violence justifying the victim in believing that resistance will not prevent the rape. All that is required is a reasonable belief. In this conviction it should be noted that, if defendant had actually produced a dangerous weapon from under the automobile seat, he would most certainly have been guilty of aggravated rape.

Under the circumstances, and comparing the varying elements of the crimes of aggravated rape, forcible rape and sexual battery, I believe the jury could have reasonably concluded that the victim in this case was prevented from resisting the act of rape because of defendant’s threats to kill her if she did not cooperate and submit combined with his statement that he had something under the seat with which he could kill her. The jury could reasonably have concluded that the victim did believe, and believed reasonably, that resistance would not prevent rape. This is particularly so when the jury’s vote of ten to two is measured against the standard of Jackson v. Virginia, 443 So.2d 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

The victim in this case stated that she submitted because the defendant threats ened to kill her if she did not. Although she did not state in so many words that she did not resist because she believed that resistance would not prevent the rape, that is the clear meaning of her testimony. If that meaning is not given to her testimony, it is tantamount to requiring a person threatened with rape to either be faced with a dangerous weapon or to resist to the utmost and, in either case, subject themselves to the possibility of great physical harm or death. This is resistance in the context of aggravated rape. Forcible rape requires less.

The jury believed the victim. Believing that, they were entitled to believe her failure to resist or attempt escape was prevented because of the threat of being killed and' that her belief was reasonable. I would affirm the conviction of forcible rape.


text:
    STATE of Louisiana, Plaintiff-Appellee, v. Patricia Rene CAPDEVILLE, Defendant-Appellant.
    No. CR83-344.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 12, 1983.

      Stewart Thomas, Jennings, Michael J. Hinton, Pizzitola, Hinton & Sussman, Houston, Tex., for defendant-appellant.
    W. Gregory Arnette, Jr., Dist. Atty., W.J. Riley, III, Jacquelyne Heinen, Asst. Dist. Attys., Jennings, for plaintiff-appellee.
    Before STOKER, LABORDE and KNOLL, JJ.
   KNOLL, Judge.

The appellant, Patricia Capdeville, was indicted by the Grand Jury for manslaughter, a violation of LSA-R.S. 14:31. A twelve member jury returned a unanimous verdict of guilty as charged on October 17, 1982. The trial judge imposed a sentence of three years at hard labor plus two additional years in accordance with LSA-R.S. 14:95.2 for having used a firearm in the commission of the crime. The defendant appeals assigning as error: (1) the trial court failed to give due consideration to the recommendations of the presentence investigation; (2) the sentence imposed is unconstitutionally excessive; and (3) the trial court failed to comply with the requirements of LSA-C.Cr.P. Art. 894.1.

FACTS

The defendant is 26 years of age and had been married to the deceased, Jonathan Capdeville, three years at the time of this offense. During the course of their marriage, defendant’s husband had slapped her frequently, and on a few occasions had beaten her with his fists.

At noon on September 29, 1981, Mr. Capdeville returned home from working offshore where he worked shifts of 7 days on and 7 days off. He and the defendant engaged in a heated domestic quarrel which eventually led to the defendant receiving a beating. As a result of the beating she sustained multiple abrasions and contusions.

The beating was administered in the bedroom and bathroom in their mobile home. The defendant had angered her husband when she would not tell him where she had placed her special account savings book. During the fight, she grabbed a .22 caliber rifle. After she grabbed the rifle Mr. Capdeville began beating her with his fists. Somehow the rifle fell to the floor, the fight subsided and the defendant left the bedroom. She returned to the bedroom to get the baby but Mr. Capdeville was holding the baby. She again picked up the rifle; Mr. Capdeville put the baby down and told the defendant the rifle was loaded. The defendant testified that her husband told her that if she was going to shoot him, she would have to shoot him in the back. The defendant pulled the trigger but the safety was engaged. She released the safety, pulled the trigger a second time, shooting her husband in the back killing him.

ASSIGNMENTS OF ERROR

In these assignments of error, the defendant claims the trial judge failed to give due consideration to the recommendations of the presentence investigation, that the sentence was excessive, and that the trial judge failed to comply with the sentencing guidelines, Article 894.1.

In sentencing the defendant, the trial judge commented that he had listened to the testimony at trial and he felt the case was close to first degree murder. The trial judge pointed out that the altercation between the defendant and her husband had subsided and that her husband had turned his back when the defendant shot and killed him. The trial judge stated any lesser sentence would deprecate the seriousness of the offense.

The presentence investigation report recommended six years at hard labor with the Louisiana Department of Corrections, suspended, and placed on five years supervised probation. While the presentence report is helpful to the sentencing court, it is not binding. State v. Bing, 410 So.2d 227 (La.1982). We note that the defendant’s statement in the presentence report is inconsistent with her testimony at trial. The record also reflects that the sentencing judge was aware of the presentence report. It was never intended that the sentencing discretion of the sentencing judge be limited by the presentence investigation report, even though the recommendation of the presentence report and the sentencing judge are in conflict.

The trial judge sentenced the defendant to three years at hard labor on the manslaughter conviction, out of a possible twenty-one years. The defendant used a firearm in the commission of the offense, therefore, the trial judge sentenced the defendant to an additional mandatory two years as required by LSA-R.S. 14:95.2, which provides:

“Notwithstanding any other provisions of law to the contrary, any person who uses a firearm or explosive device at the time he commits or attempts to commit the crime of second degree murder, manslaughter, aggravated battery, simple kidnapping, aggravated escape, aggravated burglary, or aggravated arson or attempted aggravated rape, attempted first degree murder or attempted aggravated kidnapping shall upon conviction serve a term of two years imprisonment for the first conviction and upon conviction for each second and subsequent offense listed in this Section, he shall serve a term of five years imprisonment. The penalty provided herein shall be in addition to any other penalty imposed under the provisions of this Title and such person shall serve the additional term of imprisonment without benefit of parole, probation, suspension of sentence or credit for good time and any adjudication of guilt or imposition of sentence shall not be suspended.
The prison terms provided under the provisions of this Section, shall run consecutively to any other penalty imposed upon conviction of any of the crimes listed in this Section.”

The defendant contends that there were numerous mitigating circumstances in her favor, both from the record and the presentence investigation report, but the trial judge failed to give due weight to these circumstances.

Article 894.1, paragraph B provides eleven guidelines to the sentencing court, while not controlling the discretion of the court, shall be accorded weight in its determination of suspension of sentence or probation.

Most of the mitigating circumstances enumerated in Article 894.1 were litigated at length during the trial. The verdict against the defendant was an unanimous verdict. The evidence is clear that at the time she shot and killed her husband, the fight between them had subsided. He was holding their baby and when he saw the defendant with the rifle, he put the baby down. The defendant pulled the trigger but the weapon failed to discharge. She pulled the trigger again and shot her husband in the back. It was clearly an unjustified homicide resulting in the loss of a human life.

Although this is the defendant’s first conviction, the sentencing court felt a lesser sentence would deprecate the seriousness of the offense. A sentence of three years for manslaughter out of a possible twenty-one years is in the lower range. Since the defendant committed the offense with a firearm she has an additional mandatory 2 years as provided by R.S. 14.95.2. In view of the seriousness of this offense, we do not find the sentence imposed was excessive. State v. Gomez, 365 So.2d 1313 (La.1979).

The trial judge did not give an articulated factual basis for his sentencing choice which is the goal of Article 894.1. State v. Lanclos, 419 So.2d 475 (La.1982). However, this does not automatically render a sentence invalid. State v. Wimberly, 414 So.2d 666 (La.1982). Where a sentence imposed is not apparently severe and is in the lower range of the sentencing scale, a remand is not necessary for compliance with Article 894.1 governing a judge’s reasons for sentence. State v. Jones, 412 So.2d 1051 (La.1982).

We find the record fully supports the sentence imposed. Where the record clearly shows an adequate factual basis for the sentence imposed, a remand to require the trial court to restate for the record matters which are already apparent from the record is unnecessary. State v. Day, 391 So.2d 1147 (La.1980); State v. Lanclos, supra; State v. Johnson, 411 So.2d 439 (La.1982).

A sentence will not be set aside as excessive absent manifest abuse of the trial judge’s sentencing discretion. State v. Spencer, 374 So.2d 1195 (La.1979); State v. Sepulvado, 367 So.2d 762 (La.1979). The penalty imposed must be so disproportionate to the crime committed, in light of the harm caused society, as to shock our sense of justice. State v. Bonanno, 384 So.2d 355 (La.1980). We do not find the sentence imposed so disproportionate to the crime committed as to shock our sense of justice.

These assignments of error are without merit.

DECREE

The conviction and sentence of the defendant are affirmed.

AFFIRMED.


author: CUTRER, Judge.

text:
    STATE of Louisiana, Plaintiff-Appellee, v. William Cecil MURDOCK (Alias) Daniel Udoka, Defendant-Appellant.
    No. CR83-347.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 12, 1983.
    Michael Johnson, Cottonport, and John Contois, Marksville, for defendant-appellant.
    J. Edward Knoll, Dist. Atty., and David Lafargue, Asst. Dist. Atty., Marksville, for plaintiff-appellee.
    Before GUIDRY, CUTRER and DOU-CET, JJ.
   CUTRER, Judge.

On February 14, 1983, the defendant pleaded guilty to one charge of felony theft, in violation of LSA-R.S. 14:67. This plea was the result of a plea bargain. The defendant was sentenced to two years at hard labor in the custody of the Louisiana Department of Corrections. The sentence was to run concurrently with any other sentences to be imposed against the defendant.

FACTS

On Monday, June 14, 1982, the defendant opened a savings account with the Bunkie Bank and Trust Company in Bunkie, Louisiana. He identified himself with a picture identification (Louisiana Drivers License) as Robert H. Robertson and deposited $25.00 into his new account. Two days later (June 16th) the defendant returned to Bunkie Bank and deposited a check in the amount of $4,500.00, drawn on St. Landry Bank and Trust, into the same savings account. The defendant, also identifying himself to be Robert H. Robertson to the St. Landry bank, had a balance of $10.00 in the account upon which he drew. The Bunkie Bank credited the savings account of Robert H. Robertson with the $4,500.00 deposit. On Friday, June 18th, the defendant returned to the Bunkie bank and withdrew $3,000.00 in cash.

Soon after this withdrawal, the Bunkie bank was notified by the St. Landry bank that the $4,500.00 check drawn on them was insufficiently covered and would not be honored. On Monday, June 21st, the defendant returned to the Bunkie bank and requested an additional $1,400.00 withdrawal. The teller, alerted to the previous actions of the defendant, attempted to notify her supervisor, but the defendant became suspicious and fled the bank, leaving his passbook in the hands of the teller.

The defendant was subsequently arrested and charged with felony theft, in violation of LSA-R.S. 14:67.

On February 14,1983, the defendant and his counsel were present for a hearing on a motion to quash. The motion was withdrawn and, pursuant to plea bargain negotiations between the defendant, his counsel and the district attorney, the defendant withdrew his plea of not guilty and entered a plea of guilty. Before accepting this plea, the court fully advised the defendant of all his rights and privileges under the law. Questions ascertaining the voluntariness of defendant’s plea were asked by the court and answered by the defendant. The court ruled that there was a factual basis for the plea of guilty, that it was freely and voluntarily given and that the defendant understood the nature of the charge against him. The plea of guilty was then accepted.

The sentence imposed, two years in the custody of the Louisiana Department of Corrections, to run concurrently with any sentence or sentences presently pending against the defendant, was part of the plea bargain agreement and was accepted by the trial court. It is from this guilty plea, and the resulting sentence, that the defendant has brought two assignments of error upon this appeal.

(1) The trial court handed down an excessive sentence of two years in the Louisiana Department of Corrections; and
(2) The defendant was not fully cognizant of the effects of his guilty plea.

ASSIGNMENT OF ERROR NUMBER 1

Defendant alleges that his two year sentence for the crime of felony theft was excessive. The maximum sentence, under LSA-R.S. 14:67, is a ten year term of imprisonment at hard labor in addition to a $3,000.00 fine.

The record clearly reflects that the sentence imposed was the result of a plea bargain agreement between defendant (and his counsel) and the district attorney’s office. The judge accepted the recommended sentence of two years, which was well below the maximum.

The Supreme Court has held that:

“[w]here a specific sentence has been agreed to as a consequence of a plea bargain, that sentence cannot be appealed as excessive.”

State v. Bell, 412 So.2d 1335 (La.1982). See also, State v. Hicks, 403 So.2d 676 (La.1981); State v. Curry, 400 So.2d 614 (La.1981). This assignment has no merit.

ASSIGNMENT OF ERROR NUMBER 2

This assignment raises the issue of the voluntariness of the defendant’s guilty plea. However, no argument in support of this issue has been provided and it is, therefore, abandoned upon appeal. State v. Washington, 430 So.2d 641 (La.1983).

For these reasons, the defendant’s conviction and sentence is affirmed.

AFFIRMED.

      . The record indicates that the defendant was engaged in at least one other check-kiting attempt at a separate institute.

      . We, nevertheless, note that, the defendant was properly informed of the “rights” he was waiving by pleading guilty. And the record reflects that defendant voluntarily waived same, manifested an understanding of the proceedings and entered the plea with full knowledge that the sentence would be two years with the custody of the Department of Corrections.


text:
    STATE of Louisiana, Plaintiff-Appellee, v. Michael Anthony RICHARDSON, Defendant-Appellant.
    No. CR83-352.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 12, 1983.

      William D. Dyess, Many, for defendant-appellant.
    James L. Davis, Dist. Atty., Many, Abbott J. Reeves, Asst. Dist. Atty., Gretna, for plaintiff-appellee.
    Before STOKER, LABORDE and KNOLL, JJ.
   STOKER, Judge.

Defendant, Michael Anthony Richardson, entered pleas of guilty to two counts of theft of property having a value of more than $100 but less than $500. He was sentenced to the maximum available penalty on the charges, two years in the custody of the Department of Corrections on each count. The trial judge also ordered that the sentences be served consecutively. On appeal Richardson complains that the trial judge failed to comply with LSA-C.Cr.P. art. 894.1 in that he did not give effect to or state for the record any mitigating circumstances to be taken into account in imposing sentence. He also claims that the sentences imposed are unconstitutionally excessive. For reasons set out below, we affirm.

In his reasons for sentence the trial judge stated that he had reviewed the pre-sen-tence investigation report and found that a confinement sentence was appropriate. He discounted probation due to Richardson’s prior violation of probation which he was given for misdemeanor theft. This probation violation consisted of the commission of other offenses.

In deciding to impose consecutive terms, the trial judge stated that there was a “need for a length of confinement that would be provided by consecutive sentences.” Reasons for this need include Richardson’s recent history of criminal behavior, his prior history of theft, and the fact that the present offenses were not part of a common scheme or plan but were committed months apart. The first offense occurred on June 5, 1982 and involved the theft of six batteries and a radiator. The second offense on August 17, 1982 was the cutting and removing of timber from another person’s property.

In mitigation, the trial court did consider that Richardson had no prior felony convictions and was twenty-two years old. No further mitigating factors were mentioned.

It is well settled that every aggravating and mitigating circumstance need not be articulated. The record must reflect only that the sentencing guidelines were adequately considered. State v. Knox, 425 So.2d 707 (La.1982); State v. Grey, 408 So.2d 1239 (La.1982). In our opinion, the trial judge in this case adequately complied with Article 894.1.

We also find that the sentences imposed are not constitutionally excessive for this defendant. The trial judge clearly indicated why incarceration was preferable to probation even though Richardson was eligible for probation. Despite the fact that he had no prior felony convictions, Richardson did have a history of other offenses including a conviction of misdemean- or theft for which he received probation and subsequently violated it.

Finding no error, we affirm the defendant’s convictions and sentences.

AFFIRMED.

      . The two counts were consolidated at trial and on appeal. A separate opinion is being rendered this date on the second count in State v. Richardson, 438 So.2d 1317 (La.App. 3rd Cir.1983).


text:
    STATE of Louisiana, Plaintiff-Appellee, v. Michael Anthony RICHARDSON, Defendant-Appellant.
    No. CR83-353.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 12, 1983.
    William D. Dyess, Many, for defendant-appellant.
    James L. Davis, Dist. Atty., Many, Abbott J. Reeves, Asst. Dist. Atty., Gretna, for plaintiff-appellee.
    Before STOKER, LABORDE and KNOLL, JJ.
   STOKER, Judge.

For the reasons set out in State v. Richardson, 438 So.2d 1315 (La.App. 3rd Cir.1983), in which a separate opinion is being rendered on this date, the convictions and sentences of the defendant are affirmed.

AFFIRMED.


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    STATE of Louisiana, Plaintiff-Appellee, v. Glen H. FRANCOIS, Defendant-Appellant.
    No. CR83-387.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 12, 1983.

      Anthony Terracina, Opelousas, for defendant-appellant.
    Morgan J. Goudeau, III, Dist. Atty. and David Miller, Asst. Dist. Atty., Opelousas, for plaintiff-appellee.
    Before STOKER, LABORDE and KNOLL, JJ.
   STOKER, Judge.

Defendant, Glen H. Francois, pleaded guilty to a charge of simple burglary in violation of LSA-R.S. 14:62. This plea resulted from a plea-bargain agreement under which the State agreed not to prosecute him as an habitual offender under LSA-R.S. 15:529.1. After a pre-sentence hearing, the trial judge sentenced him to eighteen (18) months at hard labor, with eligibility for parole in six months. Defendant was not eligible for a suspended sentence or for probation, having had prior felony convictions. LSA-C.Cr.P. art. 893.

Defendant’s sole assignment of error is that the sentence was excessive in violation of LSA-Const. art. 1, Sec. 20, and the trial judge failed to comply with the sentencing guidelines of LSA-C.Cr.P. art. 894.1. For the reasons assigned below, we affirm.

The penal provision of LSA-R.S. 14:62 provides:

“Whoever commits the crime of simple burglary shall be fined not more than two thousand dollars, imprisoned with or without hard labor for not more than twelve years, or both.”

The sentence imposed is clearly within statutory limits. However, beginning with State v. Sepulvado, 367 So.2d 762 (La.1979), the Louisiana Supreme Court has held that a sentence imposed within statutory limits may nevertheless be reviewed for excessiveness, and that LSA-C.Cr.P. art. 894.1 provides appropriate statutory criteria by which to measure whether such a sentence is excessive, either by reason of its length or because it specifies confinement rather than a less onerous sentencing alternative.

Under LSA-C.Cr.P. art. 894.1 the trial judge must state the considerations taken into account and the factual basis therefor in imposing sentence. While the trial judge need not articulate every aggravating and mitigating circumstance, the record must reflect that he adequately considered these guidelines in particularizing the sentence to the defendant. The judge should indicate that he has considered not only the factors militating for incarceration, but also any mitigating factors. State v. Duncan, 420 So.2d 1105 (La.1982).

A sentence may be vacated and a case remanded for resentencing when the reasons for an apparently severe sentence in relation to the particular offender and the actual offense committed do not appear in the record. Otherwise, a sentence should not be set aside as excessive in the absence of a clear abuse of the wide discretion accorded a trial judge in the imposition of sentences within statutory limits. State v. Jones, 381 So.2d 416 (La.1980).

In his reasons for sentencing, the trial judge found the only aggravating factor to be that a lesser sentence would deprecate the seriousness of the crime. However, in discussing this aggravating factor earlier in his reasons, the judge stated this particular factor is used only in very limited situations and that he did not consider burglary to be one of them. The two mitigating factors the trial judge discussed were that the defendant’s wife and child would suffer if he went to jail, and that the complaining witness recommended that the defendant not be prosecuted for the crime.

During the pre-sentence hearing defendant testified that if sentenced to the parish prison, his employer would allow him to work during the day and go to jail at night on a work-release program. In his reasons for sentencing, the trial judge stated that the only reason he sentenced defendant to hard labor was because of lack of space in the parish prison. In view of defendant’s testimony this is not an adequate reason for choosing the alternative of hard labor. Additionally, a trial judge is not allowed to let his experience with others cloud his judgment with the defendant. State v. Tilley, 400 So.2d 1363 (La.1981). In this case, the trial judge mentioned his negative experience with the other individual involved in the burglary and seems to give this weight in sentencing the defendant.

In complying with C.Cr.P. art. 894.1 the trial court appears to have improperly considered certain factors and there may be factors which he did not consider which he should have mentioned. Nevertheless, we do not deem a remand to be called for in this case. The record contains sufficient factual basis to convince us that there was no clear abuse of the trial judge’s wide discretion. Under the circumstances, and applying the rule of State v. Jones, supra, we do not find the sentence imposed to be excessive. The sentence imposed is at the lower range of a possible twelve-iyear sentence. Additionally, defendant has two pri- or convictions for burglary and is ’therefore not eligible for suspension of sentence or for probation.

For the reasons assigned, the sentence is affirmed.

AFFIRMED.