author: MARVIN, Judge. HALL, Judge,

text:
    Raymond Artis CALDWELL, et al., Plaintiffs-Appellees, v. Clifford SHIPP, et al., Defendants-Appellants.
    No. 16070-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 1, 1983.
    Aylmer M. Wyche, III, Bossier City, for defendants-appellants.

      Blanchard, Walker, O’Quin & Roberts by J. Jay Caraway, Shreveport, for plaintiffs-appellees.
    Before HALL, MARVIN and FRED W. JONES, JJ.
   MARVIN, Judge.

Appellees move to dismiss, as untimely, defendant’s devolutive appeal taken on September 7, 1983, from an amended partial summary judgment signed on June 28,1983.

The June 28 order amended the judgment which was originally signed on April 8, 1983, and which contained two decretal parts. The first part of the April 8 judgment declared that a particular contract between the litigants dated September 10, 1970, was a credit sale contract. The second part of that judgment ordered defendants to execute a deed in recordable form to plaintiffs of the described immovable property in Section 22, Township 23 North, Range 12 West. The correct range number is Range 13 West, as the pleadings and instruments in the record clearly reveal. On June 28, plaintiffs sought., ex parte, and obtained the order amending the description of the property in the second decretal part of the April 8 judgment. Compare Jackson v. Brewster, 169 So. 166 (La.App. 2d Cir.1936).

A final judgment may be amended by the trial court at any time, without notice, on its own motion or on motion of any party, “to alter the phraseology of the judgment, but not the substance; or to correct errors of calculation.” CCP Art. 1951. Paragraph (e) of the Official Revision Comments states in part that “a contradictory motion is required ... to amend judgments giving incorrect description of realty ... Art. 1919 ... requires that judgments affecting title to immovable property shall describe with particularity the property affected.” We are not referred to any case squarely deciding that an amendment to a description of realty in a judgment is an amendment of substance under CCP Arts. 1951, 2089.

When an amendment of the substance of a judgment is made without granting a new trial, the amended judgment has been held to be invalid or null and not within the purview of CCP Art. 1951. See Pringle Associated Mortgage Corp. v. Cox, 234 So.2d 854 (La.App. 1st Cir.1970), and at 258 La. 499, 246 So.2d 841 (1971); and O’Niell v. Sonnier, 195 So.2d 724 (La.App. 1st Cir.1967).

An amendment within the purview of CCP Art. 1951 does not affect the delays for appealing. CCP Art. 2087. Miciotto v. Cox, 335 So.2d 798 (La.App. 2d Cir.1976). Delays for appeal are affected by an application for, or the granting of, a new trial. CCP Art. 2087.

A trial court may grant a partial motion for a new trial to amend its previous judgment as to substance. Weber v. Bon Marche Pharmacy, Inc., 378 So.2d 520 (La. App. 4th Cir.1979). Such a motion must be filed, however, within the delay specified in CCP Art. 1974, whether by a litigant, or by the court on its own motion under court’s discretionary authority to grant a new trial provided in CCP Art. 1973. Langston v. Willis, 177 So.2d 620 (La.App. 4th Cir.1965).

The revision comment that ■ an amendment to a judgment affecting realty must be obtained by contradictory motion obviously is mentioned to analogize such an amendment to a conventional “correction” deed. Singular action by either the vendee or vendor in the original deed may not be sufficient to correct the original deed on the public records. We follow the spirit of the revision comment and hold that after the delay for applying for a new trial has expired, an amendment to correct a misde-scription of immovable property in a judgment may be obtained only by contradictory motion, and that any such amendment not so obtained may be attacked or questioned either by timely appeal of the order directing the amendment or by the filing of a direct action in the trial court to declare the order amending the judgment to be a nullity. The delay for appealing the original judgment is not affected by an amendment, obtained ex parte, to correct the description of realty in the original judgment.

Defendants’ appeal of the “amended partial summary judgment [signed] on June 28, 1983” is timely insofar as it applies to the “order to amend judgment” that was signed on that date which corrected the description of the realty in the second de-cretal part of the judgment of April 8,1983.

Defendant’s attempt to appeal the first decretal part of the judgment of April 8, which does not describe the realty and which declares that the contract of the parties of September 10,1970, was a credit sale contract, is untimely, because the June 28 order does not alter or otherwise affect the first decretal part of the April 8 judgment.

In summary, the only issue which may be considered on appeal is the validity of the order, obtained ex parte, to correct the description of realty in the original judgment. Since defendants’ appeal of September 7, 1983, is timely to the limited extent mentioned, appellee’s motion to dismiss the appeal is denied.

HALL, J., concurs in part, dissents in part, and assigns written reasons. .

HALL, Judge,

concurring in part and dissenting in part.

I concur in the result. Appellants cannot appeal from the original judgment, which became final and definitive prior to the order amending its phraseology and prior to the motion for appeal. Appellants can appeal from the order amending the original judgment, and have done so, but the only issue which the appeal will present is the correctness and validity of the order amending the original judgment.

I dissent, however, from the premature holding of the majority opinion that an amendment to correct a misdescription of immovable property may be obtained only by contradictory motion.

The holding is premature because the only matter before the court at this time on appellee’s motion to dismiss is whether the appeal should be dismissed. The majority opinion correctly holds that it should not be, and correctly points out that the only issue which may be considered on appeal is the validity of the order amending the original judgment. It is premature, in ruling on the motion to dismiss, to also rule on the issue which will, in due course, be presented by the appeal, which remains pending. The merit issue on appeal should not be considered or ruled on until the appeal is submitted for decision after briefs have been filed and the appeal is calendared in the regular order of procedure. The issue prematurely resolved has not yet been briefed by counsel for appellee-mover and is not properly before the court for decision.

My dissent is further prompted by serious doubt as to the correctness of the majority holding. A final judgment may be amended by the trial court at any time, without notice, on its own motion or on motion of any party, to alter the phraseology of the judgment, but not the substance, or to correct errors of calculation. LSA-C.C.P. Art. 1951. If an order applied for by written motion is one to which the mover is clearly entitled without supporting proof, the court may grant the order ex parte and without hearing the adverse party. LSA-C.C.P. Art. 963.

The majority opinion correctly states that the pleadings and instruments filed in this case clearly reveal that the correct range number is 13 rather than 12 as appears in the original judgment. Correction of this typographical or clerical error does not change the substance of the judgment and my preliminary view, pending full briefing and argument of the issue by the parties, is that the amendment was properly made by ex parte motion and order.


source: Caselaw Access Project

author: STOKER, Judge.

license: Public Domain

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Joseph Louis BREAUX, Defendant-Appellant.
    No. CR 83-905.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 8, 1983.
    James S. Gravel, Alexandria, for defendant-appellant.
    J. Phil Haney, Asst. Dist. Atty., New Iberia, for plaintiff-appellee.
    Before FORET, STOKER and LA-BORDE, JJ.
   STOKER, Judge.

.QUESTION OF TIMELINESS OF APPEAL

Defendant, Joseph L. Breaux, was convicted of aggravated rape and was sentenced to life imprisonment without benefit of parole, probation or suspension of sentence. Subsequent to the filing of this appeal, an order to show cause was issued ordering defendant to show why his appeal should not be dismissed as having been untimely perfected under LSA-C.Cr.P. art. 914.

This article requires:

A motion for an appeal may be made orally in open court or by filing a written motion with the Clerk. The motion must be made no later than five days after the rendition of the judgment or ruling from which the appeal is taken. The motion shall be entered in the minutes of the Court.

Defendant was sentenced on October 14, 1982; however, he did not move for an appeal of his conviction until October 26, 1982. This time delay is beyond the five (5) day requirement established by the Legislature in article 914. Thus the appeal has not met the requirements of this article.

Inasmuch as this appeal was untimely perfected under the requirements of LSA-C.Cr.P. art. 914, the appeal should be dismissed.

APPEAL DISMISSED: UNTIMELY FILED.


author: CUTRER, Judge.

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Timothy GASPARD, Defendant-Appellant.
    No. CR83-342.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 14, 1983.
    Steven A. Chandler, Lafayette, Robert R. Bernard, Kaplan, for defendant-appellant.
    Louis G. Garrot, III, and Calvin Wood-ruff, Jr., Asst. Dist. Attys., Abbeville, for plaintiff-appellee.
    Before CUTRER, DOUCET and LA-BORDE, JJ.
   CUTRER, Judge.

The defendant, Timothy Gaspard, was charged by bill of information with possession of marijuana, fourth offense, in violation of LSA-R.S. 40:967. After a jury trial, the defendant was found guilty as charged. The trial court sentenced the defendant to ten years at hard labor.

Although a motion for appeal was requested by the defendant and granted by the trial judge, no assignments of error were perfected as required by LSA-C.Cr.P. art. 844. Therefore, this court’s review is limited to a review of. the record for errors that are discoverable by a mere inspection of the pleadings and proceedings. State v. Smith, 418 So.2d 515 (La.1982); State v. Davis, 332 So.2d 821 (La.1976); State v. Jackson, 332 So.2d 211 (La.1976); LSA-C. Cr.P. art. 920.

In our review of the record we have discovered one such “patent error,” but we do not find that it merits reversal. This error occurred when the defendant was immediately sentenced following the trial judge’s denial of his motion for a new trial, although LSA-C.Cr.P. art. 873 requires that there be at least a twenty-four hour delay between the denial of the post-trial motion and the imposition of sentence. In State v. White, 404 So.2d 1202 (La.1981), our Supreme Court addressed this same issue and held that the error, while patent, was not reversible, as the defendant had not been prejudiced by the lack of a sentencing delay.

That decision was premised upon the need for judicial efficiency and upon C.Cr.P. art. 921, which forbids reversal “of any error, defect, irregularity, or variance which does not affect substantial rights of the accused.” The court in White noted that the defendant had had a sufficient opportunity to raise his objections at the hearing on his motion for a new trial. Also, over two months had elapsed between his conviction and sentence, and there was no indication that the sentence had been hurriedly imposed (a presentence investigation had been ordered). Also, see State v. Brogdon, 426 So.2d 158 (La.1983).

In a similar vein there is no indication that the defendant in the case at bar was prejudiced by the trial court’s failure to delay sentencing by twenty-four hours. The defendant’s conviction was on October 28, 1982, and a presentenee investigation was ordered at that time. The initial sentence of ten years at hard labor “without benefit of parole” was imposed on February 23, 1983, but this court remanded that sentence as it had been entered prior to a hearing on the defendant’s motion for a new trial.

The hearing on defendant’s motion was held on June 22, 1983, and following the denial of the motion, the defendant was again sentenced to ten years at hard labor. Under these facts we cannot find that the defendant’s substantial rights have been affected in any manner. Having evaluated the error “in light of the potential impact on the fairness of the proceedings” (State v. White, supra, at 1205), we find no reversible error. Accordingly we affirm the conviction and sentence.

AFFIRMED.

      . On the date of the offense’s occurrence (April 3, 1980), the applicable and controlling statutory provision was R.S. 40:967(D)(3). Pursuant to Acts 1981, No. 800, §§ 1 and 4, the governing statute for crimes such as the one at issue is now R.S. 40:966(D)(3). The possible penalty of twenty years imprisonment with or without hard labor has remained unchanged.

      . This court previously remanded the defendant’s initial sentence, as it had been rendered prior to a hearing on defendant’s motion for a new trial. State v. Gaspard, 433 So.2d 435 (La.App.1983).

      . The minutes indicate that the defendant waived sentencing delays, but the transcript of the sentence itself indicates otherwise.

      . Any restriction of defendant’s right to parole would have been illegal under the available sentence of then R.S. 40:967.

      .This sentence does not contain the defective restriction previously imposed.


author: DOMENGEAUX, Judge.

text:
    STATE of Louisiana v. John P. CRAWFORD.
    No. CR83-404.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 14, 1983.

      Stephen Everett, Alexandria, for defendant-appellant.
    G. Earl Humphries, III, Asst. Dist. Atty., Alexandria, for plaintiff-appellee.
    Before DOMENGEAUX, STOKER and YELVERTON, JJ.
   FACTS

DOMENGEAUX, Judge.

The defendant, John P. Crawford, was convicted of armed robbery in violation of La.R.S. 14:64 by a twelve person jury. On March 14, 1983, he was sentenced by Judge Robert P. Jackson, to a prison term of twenty (20) years.

On August 27, 1980, between 3:30 and 4:00 P.M., the Convenient Food Store, located at Rapides Station, Rapides Parish, was robbed. A black male perpetrator forced the clerk, at knifepoint, to open the register, from which he took $135.00.

The investigating officers arrived at the scene shortly thereafter. They removed two latent fingerprints from the cash register drawer. These prints were later matched to those of the defendant, John P. Crawford. A car was discovered parked near the food store with the keys in the ignition, the doors unlocked, and the engine warm. Upon investigation, numerous papers with the defendant’s name on them were found inside the car. The defendant was arrested on July 8, 1981, in Dallas, Texas, and extradited to Rapides Parish, Louisiana. He was subsequently identified as the robber by the store clerk from a four person photographic lineup. From his conviction of armed robbery the defendant has upon this appeal perfected seven assignments of error.

ASSIGNMENT OF ERROR NO. 1

The defendant alleges that comments made by a prosecution witness were improperly before the jury. Kathy Broeato, the clerk and victim of the robbery, testified as follows:

“Who was in the store at this time?
I was.
And was your husband there?
No, he wasn’t.
Would you explain to the Jury what happened?
Okay, I had just got done waiting on a customer, he had left, the defendant come walking in, I didn’t (Interrupted)”.

Counsel for the defendant objected at this time, arguing that this in-court identification lacked proper foundation. Defendant states that any identification of a defendant in a criminal trial as the perpetrator of the alleged crime must be based upon prior and adequate opportunity to observe the defendant.

The United States Supreme Court in Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977), concluded that reliability is the lynchpin in determining the admissibility of identification testimony. In analyzing reliability the court should look at the totality of the circumstances surrounding the identification procedure. The Louisiana Supreme Court discussed the Brathwaite decision in State v. Davis, 409 So.2d 268 (La.1982), and in State v. Smith, 418 So.2d 515 (La.1982), wherein it was stated:

“The factors to be considered include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of his prior description of the criminal, the level of certainty displayed at the confrontation, and the time between the crime and the confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification. The court noted that the standard, after all, is that of fairness as required by the due process clause of the fourteenth amendment. In the final analysis, it must be determined whether under all the circumstances of a particular case there is a very substantial likelihood of irreparable misidentification.” At 519.

From Kathy Broeato’s testimony it appears that she had ample opportunity to view the defendant for several minutes in broad daylight in a lighted store. Although unable to identify the defendant out of a mug book, she was able to identify the defendant from a photographic lineup of four individuals. There is no allegation that this photographic lineup was improper, and can therefore serve to reinforce the in-court identification by the victim.

Under all the circumstances of the instant case there was not a substantial likelihood of irreparable misidentification. State v. Stewart, 387 So.2d 1103 (La.1980); Smith, supra. As Stewart and Smith both note, the trial judge’s determination of admissibility is to be given weight and should not be disturbed unless a preponderance of the evidence clearly mandates the reviewing court to do so. This is not the case here: This assignment lacks merit.

ASSIGNMENTS OF ERROR NOS. 3 AND 4

The defendant argues that statements given by a prosecution witness, Detective William E. Hilton, amounted to an opinion from a non-expert, and therefore were improperly before the jury. The statements at issue were as follows:

“Mr. Hilton, in answer to one of Mr. Everett’s questions, I believe, you stated that the reason Mr. Crawford’s picture was in the book and these pictures here was the fact that you had found some papers in a car?
Yes, sir.
Was there any other reason why his picture was in ... was shown to Mrs. Broca-to?
Yes, he had been ... uh ... his prints had been identified.
And what prints are you referring to? Those two prints that were introduced as evidence.”

An objection was made by defendant and sustained by the trial court. The defendant moved for a mistrial which was denied, but an admonishment was given.

The prints referred to were introduced into evidence as prints taken off the cash drawer at the scene of the robbery. There was no evidence of whose prints they were at the time of introduction. However, the statements by Detective Hilton were not opinion testimony. The statement: “Yes, he had been ... uh ... his prints had been identified,” amounted to a hearsay response. Hearsay is identified as an out-of-court statement introduced to prove the truth of its contents. State v. Chaney and State v. Herman, 423 So.2d 1092 (La.1982). The evidence identifying the latent prints with known prints of the defendant had not been introduced at the time the statements were made. However, the statements, by the detective, were not an opinion indicating that the prints taken at the scene were those of the defendant, but indicated that there had been a previous, out-of-court, identification of the prints as those of the defendant. Since this evidence was properly introduced at a later time, there was no prejudice to the defendant, and the trial court’s admonition was sufficient.

Even if the admonishment is deemed insufficient, it is recognized that when inadmissible hearsay evidence is improperly introduced at trial, which is merely cumulative of other properly introduced testimony, it is harmless error. State v. Parker, 425 So.2d 683 (La.1982); State v. Vanderhoff, 415 So.2d 190 (La.1982).

This assignment lacks merit.

ASSIGNMENT OF ERROR NO. 5

The defendant alleges that the trial court erred in accepting Deputy Sheila Doughtry as an expert in fingerprint identification.

The record reveals that Deputy Sheila Doughtry worked with the F.B.I. for fifteen months doing strictly fingerprint comparison and classification: The first three months with the F.B.I. were spent being trained in fingerprint analysis. After leaving the F.B.I., Sheila Doughtry went to work with the State Police. While at State Police headquarters in Baton Rouge, her duties were fingerprint searching and comparison. After two years with the State Police, Ms. Doughtry returned to Alexandria. She worked for the City Police for one year, mostly keeping records; but also some fingerprint work. She then went to work for the Rapides Sheriff’s Office, where she has been for the last eight years. On numerous occasions, Ms. Doughtry has been called on to do various fingerprint comparisons for both the Sheriff’s Office and the Coroner’s Office. Most recently, in 1981, she attended a two-week training course with Baton Rouge experts. She also has been accepted as an expert in fingerprinting by the courts on one other occasion.

The court, after hearing this testimony concerning Deputy Doughtry’s experience and qualifications, on both direct and cross-examination, concluded that she was qualified, based on her training and experience, as an expert in the fields for which she was tendered.

“The test of the competency of an expert is his knowledge of the subject about which he is called upon to express an opinion, and before any witness can give evidence as an expert his competency so to testify must have been established to the satisfaction of the court.”
La.R.S. 15:466.

The courts have consistently held that the competence of an expert is a question of fact to be determined within the sound discretion of the trial judge. His rulings on the qualifications of an expert witness will not be disturbed in the absence of manifest error. State v. Michel, 422 So.2d 1115 (La.1982); State v. Sherer, 411 So.2d 1050 (La.1982); State v. Coleman, 406 So.2d 563 (La.1981); State v. White, 430 So.2d 174 (La.App. 2nd Cir.1983).

In the instant case, Deputy Doughtry was thoroughly questioned by both the State and defendant as to her qualifications and experience. Her testimony was based on this training and experience and the jury could attach whatever significance they saw fit. In light of the apparent training and experience of this witness, in the field of fingerprint comparisons, the trial judge did not abuse his discretion. This assignment is without merit.

DECREE

For the above and foregoing reasons the defendant’s conviction and sentence for the crime of armed robbery are affirmed.

AFFIRMED.

      . Defendant assigned as error seven (7) formal assignments, but those numbered 2, 6, and 7 are abandoned. See State v. Dewey, 408 So.2d 1255 (La.1982).

      . The defendant has combined assignments of error Nos. 3 and 4 for argument in his brief, and since they are mutually related, they will be treated together in this opinion.

      . A latent print is one lifted from the scene of the crime.


author: STOKER, Judge. DOMENGEAUX, J.,

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Lawrence BERNARD, Defendant-Appellant.
    No. CR83-429.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 14, 1983.

      Ronald J. Bertrand, Rayne, for defendant-appellant.
    Glenn Foreman, Asst. Dist. Atty., Crowley, for plaintiff-appellee.
    Before DOMENGEAUX, STOKER and YELVERTON, JJ.
   STOKER, Judge.

Defendant, Lawrence Bernard, was charged with distribution of phenmetrazine in violation of LSA-R.S. 40:967. He pleaded not guilty, waived his right to trial by jury and elected trial by judge. After the presentation of the State’s case, the defendant moved for a directed verdict based upon the defense of entrapment. The trial judge denied the motion and the defendant proceeded with his case. Defendant was found guilty and sentenced to serve a term of two years and six months at hard labor.

Defendant assigns three errors alleging that the trial court erred in (1) holding that the defendant was a principal within the meaning of LSA-R.S. 14:24, (2) denying the defendant’s motion for a directed verdict based upon the defense of entrapment and (3) in finding that there was sufficient evidence to find defendant guilty beyond a reasonable doubt. We affirm.

FACTS

On August 12, 1981, State Trooper Michael J. Simon, an undercover narcotics officer, received information from a confidential informant that an unidentified person would be possessing or distributing preludin tablets that night at a baseball park in Crowley, Louisiana. Based upon this information Officer Simon went to the park at approximately 8:00 PM.

While waiting at the ball park, Officer Simon met Rufus Bias. According to Officer Simon this meeting was not planned. He testified that Bias had recognized him as he sat watching the ball game, approached him and started a conversation. Apparently, Bias did not know that Simon was an undercover narcotics officer. Bias knew Simon because he had been in the company of people from whom Simon had bought drugs. It is also apparent that on several occasions Bias had unwittingly aided Simon by letting him know that there were going to be drugs available at certain places.

During their conversation Bias asked Simon if he was looking for any preludin. Simon responded yes and was told that there would be some available in the area within a short period of time. At approximately 10:00 PM a car driven by the defendant arrived at the ball park. At this point, Simon testified that Bias said, “Here are the pills.”

The two approached the car. The defendant got out of the car and met with Officer Simon and Bias. Defendant and Bias moved away from Officer Simon and began talking. Officer Simon testified that he heard Bias say to the defendant, “You have any ludes?”, and at that point Simon approached them. Bias asked Simon how many he wanted. Simon asked the defendant how much the pills would cost. He testified that defendant responded “$17.00 a piece”.

The three then went back to the car. Defendant sat in the driver’s seat. Officer Simon stood between the left front side of the car and the opened driver’s door, and Bias apparently crouched in the space between the opened driver’s door next to the defendant. Officer Simon observed one female seated in the passenger’s front seat and two other females seated in the back seat.

Officer Simon then told defendant the number of pills he wanted and handed defendant two $100.00 bills. Defendant lit a cigarette lighter and examined the bills, apparently to see if they were counterfeit. At this point, Officer Simon testified that a discussion took place within the car about whether or not to sell the pills and at what price. After the discussion ended, the female passenger in the front seat handed the pills and some change to Bias. Bias then passed the pills and the change to Officer Simon. This completed the transaction.

Officer Simon put the evidence into the trunk of his car and submitted it to the police crime lab at a later date. The chain of custody and the chemical identification of these pills are not at issue on this appeal.

Although the general rule is that a defendant cannot both plead entrapment and deny committing the acts on which the prosecution is predicated, the rule is not inflexible, and it is not equivalent to a confession of guilt. U.S. v. Sedigh, 658 F.2d 1010 (5th Cir.1981), cert. denied, 455 U.S. 921, 102 S.Ct. 1279, 71 L.Ed.2d 462 (1982). See also, U.S. v. Daniels, 572 F.2d 535 (5th Cir.1978); State v. Harrington, 332 So.2d 764 (La.1976).

The assignments of error will be discussed in reverse numerical sequence.

ASSIGNMENT OF ERROR NO. 3

By this assignment, defendant urges that there was not sufficient evidence to find him guilty beyond a reasonable doubt. In support of this argument, the defendant points to contradictions and inconsistencies in the testimony of the State’s chief witness, Officer Simon.

The standard of review when considering the sufficiency of the evidence to support a criminal conviction is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

Defendant is charged with distribution of phenmetrazine in violation of LSA-R.S. 40:967. That statute reads in pertinent part as follows:

“A. Manufacture, distribution. Except as authorized by this part, it shall be unlawful for any person knowingly or intentionally:
“(1) To produce, manufacture, distribute, or dispense ... a controlled dangerous substance classified in Schedule II

In spite of the words that “it shall be unlawful for any person knowingly or intentionally ...” to do the prohibited acts, the statute requires no more than general criminal intent. LSA-R.S. 14:11; State v. Banks, 307 So.2d 594 (La.1975). A distribution offense is a crime requiring only general criminal intent. Such intent is established by mere proof of voluntary distribution. State v. Williams, 352 So.2d 1295 (La.1977); State v. Clark, 338 So.2d 690 (La.1976). Thus, the State must prove beyond a reasonable doubt that the defendant voluntarily distributed the preluden pills.

The contradictions and inconsistencies defendant points to in Officer Simon’s testimony are of minor importance to the State’s case when the evidence as a whole is viewed in the light most favorable to the prosecution. Viewed in this light, the evidence shows beyond a reasonable doubt that defendant, of his own accord, came to the ball park for the purpose of selling illegal drugs. When he met the prospective customer, he quoted his price, took cash in exchange for the pills and let his compatriot hand the pills and some change to his “customer”.

We find that there was sufficient evidence to prove defendant’s guilt beyond a reasonable doubt.

This assignment is without merit.

ASSIGNMENT OF ERROR NO. 2

The defendant claims the affirmative defense of entrapment and alleges that he was unlawfully induced by Officer Simon to commit the offense charged.

Under the generally accepted view an entrapment is perpetrated when a law enforcement official or a person acting in cooperation with such an official, for the purpose of obtaining evidence of the commission of an offense, solicits, encourages, or otherwise induces another person to engage in conduct constituting such offense when he is not then otherwise disposed to do so. State v. Batiste, 363 So.2d 639 (La.1978). When entrapment is at issue, the focal point of the inquiry is on the predisposition of the defendant to commit the crime at issue as well as on the conduct of the police. State v. Batiste, supra. For entrapment to exist, a defendant must be induced in some way to engáge in criminal conduct which he is not otherwise disposed to engage in; an entrapment defense will not lie if the officers or agents have merely furnished a defendant, who is predisposed to commit the crime, the opportunities to do so. State v. Moody, 393 So.2d 1212 (La.1981).

The evidence of record construed in the light most favorable to the prosecution shows beyond a reasonable doubt that Officer Simon merely furnished the opportunity for the defendant to become involved in the offense charged. From the evidence adduced at trial it appears that defendant came to the ball park at the request of Bias. The record indicates that Bias was not working for the police but was unknowingly supplying information to Officer Simon. Officer Simon did not know who would show up offering to sell drugs. Simon heard Bias ask defendant if he had any “ludes” and then Simon asked the price and defendant replied “$17.00 a piece”. They went over to defendant’s car, Simon handed defendant $200.00, he soon received the drugs and the transaction was completed. The evidence shows that the defendant readily became involved in the offense and he actively participated with no persuasion. The predisposition of defendant to be involved in an activity of this type resulted in the criminal conduct in this case.

This assignment is without merit.

ASSIGNMENT OF ERROR NO. 1

The defendant urges that the trial judge erred in holding that defendant was a principal within the meaning of LSA-R.S. 14:24 which provides:

“All persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime, are principals.”

Persons who aid and abet in the commission of a crime are guilty as principals although they do not directly commit the act constituting the offense. State v. Broussard, 312 So.2d 325 (La.1975). Although the defendant did not directly hand the drugs to Bias or Simon, he nevertheless was a principal.

The defendant took an active role in the commission of the offense. He voluntarily provided the transportation, quoted the price, and received the payment. The transaction was completed inside of his car. That the defendant may not have ever touched the pills himself is irrelevant. He was directly involved in its distribution.

This assignment of error is without merit.

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

AFFIRMED.

DOMENGEAUX, J.,

concurs. See my concurring opinion in State v. Gatson, 434 So.2d 1315.


author: GUIDRY, Judge.

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Edward THIBODEAUX, Defendant-Appellant.
    No. CR83-445.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 14, 1983.
    Carl A. Leckband, Jr., Miguez & Leck-band, Lake Charles, for defendant-appellant.
    Leonard K. Knapp, Jr., Dist. Atty. and Charles Richard, Asst. Dist. Atty., Lake Charles, for plaintiff-appellee.
    Before GUIDRY, FORET and KNOLL, JJ.
   GUIDRY, Judge.

The defendant, Edward Thibodeaux, was charged by bill of information with the crime of theft of furniture and appliances valued at $2,875.00 in violation of LSA-R.S. 14:67. The jury returned a verdict of theft of property valued at $750.00. The defendant was sentenced to serve two years in the parish jail, which sentence was suspended. He was placed on supervised probation for a period of two years subject to the special conditions that he pay the court costs and make restitution during the probationary period. In addition, the court sentenced the defendant to pay a fine of $1,000.00 or in default thereof, to serve 60 days in the parish jail. The defendant appeals his conviction, claiming the verdict is contrary to the law and the evidence.

FACTS

On March 1,1981, the defendant, Edward Thibodeaux, and Pamela Rome began renting on a monthly basis by oral lease, a furnished house at 712 17th Street, Lake Charles, Louisiana, owned by Mr. and Mrs. Alexander Rougeau. In addition, Mr. Thi-bodeaux, Mr. and Mrs. Rougeau and their son, Reuvan Rougeau, acting as agent for his parents, began negotiating for a sale of the leased property by the Rougeaus to Thibodeaux and an exchange of the furniture in the house for defendant’s promise to make repairs to the house. The parties’ versions of the nature and terms of the oral agreement vary widely. At trial, Mr. Alexander Rougeau and the defendant testified that the agreement to exchange the furniture for repairs made to the house was independent of any option or agreement to purchase the house. On the other hand, Mrs. Alexander Rougeau and Reuvan Roug-eau testified that the exchange was somehow contingent upon an agreement or option to purchase the house. The parties to the agreement also dispute the extent of repairs which were to be made to the house. The defendant and Reuvan Rougeau assert that the repairs required were mainly to the front porch roof, together with some minor plumbing repairs. On the other hand, Mr. Alexander Rougeau testified that the repairs were more extensive. Finally, the parties disagree as to the extent of the repairs actually performed. The defendant testified that he repaired the porch roof, replacing some of the rafters which were rotten, putting down new plywood, felt and rolled roofing. His testimony in this regard was corroborated by three witnesses. The defendant further testified that he repaired the commode. On the other hand, the State’s witnesses testified that the only repairs consisted of a single unpainted board nailed across the top of the front porch, i.e., a facia board. There was no photographic evidence presented at trial regarding the extent of the repairs made.

On June 16, 1981, the defendant moved out of the leased premises, without notifying the Rougeaus, taking with him all of the furniture and some of the appliances. At this time, defendant was delinquent in his rent payments. It is undisputed that the defendant never attempted to conceal his whereabouts and, in fact, left a forwarding address at the leased premises. Upon discovering the furniture missing, the Rougeaus filed charges against the defendant for theft which resulted in the present prosecution. The defendant contacted an attorney who advised him that the matter was civil and not criminal in nature.

ASSIGNMENT OF ERROR

The defendant asserts as error that the verdict is contrary to the law and evidence, in that, the State did not sufficiently prove the essential elements of the offense.

A person commits the crime of theft when he misappropriates or takes anything of value which belongs to another either without the consent of the other or by means of fraudulent conduct, practices or representations. The person must act with the specific intent to deprive the owner permanently of his property. LSA-R.S. 14:67.

The defendant contends that the State failed to sufficiently prove the following essential elements of the crime of theft: (1) that the taking was either without the consent or by fraudulent means or representation; and, (2) that the defendant acted with the specific intent to deprive the owner permanently of his property. See State v. Pittman, 368 So.2d 708 (La.1979).

The due process clause of the Fourteenth Amendment requires this court to review the evidence upon which a criminal conviction was based to determine whether it is minimally sufficient. A defendant has not been afforded due process, and his conviction cannot stand unless 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. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

The State relies on the circumstance that the defendant admittedly disposed of the furniture to infer that the defendant acted with the specific intent to deprive the owner permanently of his property. See State v. White, 301 So.2d 321 (La.1974); and, State v. Williams, 323 So.2d 801 (La.1975).

It is clear that intent need not be proven as a fact but may be inferred from the circumstances of the transaction. LSA-R.S. 15:445; State v. McKinnon, 317 So.2d 184 (La.1975). However, where circumstantial evidence is used to prove an essential element of the crime, we must determine whether viewing the evidence in the light most favorable to the prosecution, a reasonable trier of fact could have concluded beyond a reasonable doubt that every reasonable hypothesis of innocence has been excluded. LSA-R.S. 15:438; State v. Honeycutt, 438 So.2d 1303 (La.App. 3rd Cir.1983). Citing State v. Morris, 414 So.2d 320 (La.1982); State v. Ennis, 414 So.2d 661 (La.1982).

In the instant case, even though the defendant admitted that the taking was knowingly done, he attempted to rebut the inference of the requisite criminal intent by testimony tending to show that he reasonably believed that he had a legal right to take and appropriate the property. See State v. Rives, 193 La. 186, 190 So. 374, at 377 (1939).

The record reveals that all of the parties to the agreement concerning the exchange of the furniture, assert the existence of a binding agreement although they dispute the nature and terms of said agreement. The negotiations were apparently conducted over a period of time both with the Rougeaus and their agent son, Reuvan Rougeau, who differ among themselves as to the terms negotiated. Under the circumstances of this case, the fact that the defendant disposed of the property does not evidence criminal intent to the exclusion of other reasonable hypotheses. Particularly where the defendant never attempted to conceal his whereabouts from the Rougeaus and where his refusal to return the property was predicated on the advice of his attorney that the matter was civil and not criminal in nature.

The State cites State v. Williams, supra, for the proposition that even where there is a completed sale, the statutory crime of theft may be committed. However, in the cited case, the facts supported a finding of the requisite criminal intent. In this ease, the evidence simply does not reasonably support the inference of mens rea or criminal intent. It is this state of mind that normally distinguishes criminal acts (punishable by the State alone) from mere civil wrongs (actionable by private individuals against one another). State v. Bias, 400 So.2d 650 (La.1981).

For the foregoing reasons, we conclude that viewing the evidence in this case in a light most favorable to the prosecution, no rational trier of fact could conclude beyond a reasonable doubt that every reasonable hypothesis of defendant’s innocence had been excluded.

The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution precludes a second trial once a reviewing court finds the evidence at the first trial to be legally insufficient to support a guilty verdict. Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1980).

Accordingly, defendant’s conviction and sentence are reversed and a judgment of acquittal is entered.

REVERSED AND RENDERED.


author: LABORDE, Judge.

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Ronald E. DUGAS, Defendant-Appellant.
    No. CR83-477.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 14, 1983.
    James Spruel, Jr., Gray, Clemons & Spru-el, Lake Charles, for defendant-appellant.
    Jerry G. Jones, Dist. Atty., Cameron, for plaintiff-appellee.
    Before CUTRER, DOUCET and LA-BORDE, JJ.
   LABORDE, Judge.

Defendant, Ronald E. Dugas, was originally charged by bill of information with aggravated battery; however, the bill was later amended to charge the defendant with second degree battery, a violation of LSA-R.S. 14:34.1. On February 7, 1983, the defendant entered a plea of no contest to the amended charge of second degree battery, and, on March 21,1983, he was sentenced to the maximum term of five years in the state penitentiary.

FACTS

On July 3, 1982, Gertrude McDaniel reported to Cameron Parish Sheriff’s Deputies that the defendant had, on three occasions that day, physically abused her by striking and slapping her in the face and body, and by grabbing her by the hair and beating her head against a car fender. The defendant was subsequently arrested at Holly Beach for aggravated battery. As a result of these beatings, the victim almost lost the sight in her left eye, and has trouble speaking, eating, and drinking due to nerve damage in her face. The defendant has a lengthy criminal record, including several felonies and several batteries upon women.

ASSIGNMENTS OF ERROR #’s 1 and 2

The defendant asserts that the trial court erred in sentencing him to an excessive sentence, and in not properly enumerating the reasons as required by LSA-C.Cr.P. art. 894.1.

First, defendant contends that the trial judge failed to follow the guidelines of art. 894.1 by “summarily denying” the defendant’s request to rebut or explain errors in the presentence report relative to his prior convictions. This contention has no merit since the record reflects that both defendant and his counsel were given the opportunity to explain the defendant’s record as is reflected by the following excerpt:

“THE COURT: Well, I tell you what; there are a number of charges filed against Mr. Dugas, but to give him a chance, the Court is going to select one or two which caught my attention. In 1969 you were charged with armed robbery in Lafayette Parish, which was reduced to simple robbery, and you received one year in the parish jail suspended.
MR. DUGAS: Can I explain why? My place of business, I was going to close it down, and my wife didn’t want to close down.
THE COURT: Wait, wait. No, I don’t want to hear the explanation of that charge. I just wanted to know, is that true? Did you receive a one year suspended sentence in Lafayette Parish for simple robbery?
MR. DUGAS: Simple theft.
THE COURT: For simple theft?
MR. DUGAS: Yes, sir. Misdemeanor.
THE COURT: Now, in Lafayette Parish in 1974 did you receive six months in the parish jail suspended for unauthorized use of a moveable?
MR. DUGAS: My own automobile. My wife called the law, and I pled guilty to it to keep it out of the court. Suspended sentence.
THE COURT: Did you in 1980 receive a five year sentence with four years suspended for burglary?
MR. DUGAS: State of Mississippi, yes, sir. Pleaded guilty to it.
THE COURT: The Court’s satisfied that the ... ,
MR. DUGAS: That only makes one felony.
THE COURT: You’re telling the Court you’ve only been convicted of one felony?
MR. DUGAS: Yes, sir; that’s it.
THE COURT: Well, the 1974 unauthorized use of a movable and a ’76 unauthorized use of a movable, both of those are usually felony counts if the movable is an automobile. I suppose that’s what it was.
MR. DUGAS: It was my own automobile both times, Your Honor, and my wife ... ex-wife called the police to have the car picked up, and she filed charges.
THE COURT: How about a 1977 conviction of aggravated battery in Lafayette?
MR. DUGAS: That was non processed (sic) by the state because the police officers dropped the charge.
THE COURT: Why did you receive one year in the parish jail if it was nolle pressed?
MR. DUGAS: I didn’t receive a year. I waited a year in the parish jail to go to court. When I got to court they dropped it.
THE COURT: Anything else you want to say about your record, Mr. Dugas?
MR. DUGAS: Well, about all that’s on it is ... Well, I just can’t understand why the district attorney wants to come Out and say I’ve been ... all these things against me which is not true.
THE COURT: Anything else, Mr. Spruel?
MR. SPRUEL: I have nothing further, Your Honor. Transcript, pages 18-20.”

Since neither the defendant nor his counsel requested an evidentiary hearing and since an evidentiary hearing is not required in a sentencing hearing where the defendant is given an opportunity to traverse or explain the allegedly false information, we conclude that defendant was not denied his fundamental right of due process. State v. Parish, 429 So.2d 442 (La.1983).

Secondly, we find no merit to defendant’s contention that the sentence imposed was excessive. The record indicates that the sentence was imposed after the trial court reviewed defendant’s presentence investigation report. In fact, the trial judge made the report a part of the record.

“THE COURT: The Court’s going to order that this presentence investigation report be filed in the record, because the Court has used this as the factual basis for its sentencing. The Court doesn’t want to review the crime in question at great detail, but I will characterize the crime as a vicious and extended attack upon another human being. The absence of any weapon made the initial charge of aggravated battery inappropriate and illustrated the need for the crime of second degree battery, for which this man was charged, second degree battery being a battery with severe injuries to the victim, which was the case to Miss Gertrude McDaniel. Despite the defendant’s protest of having been a convicted felon only once, the record reflects no less than three felony convictions and a constant and repetitious violation of the peace and of the law, often involving attacks and violence upon other persons — notably female persons. The Court points out that this defendant is ineligible for probation, in view of his past felony convictions and is not a candidate for any leniency upon no mitigating factor in his background. And I feel that, under these particular circumstances, the maximum penalty which is provided for by law of five years will be adopted by this Court as this man’s sentence. Five years with the Department of Corrections.”

Our careful review of the record reveals no abuse of the trial court’s discretion in the sentencing of the defendant. The sentence imposed on this particular defendant does not shock our sense of justice. It is reasonable and just. State v. Parish, supra; State v. Campbell, 404 So.2d 1205 (La.1981).

ASSIGNMENT OF ERROR # 3

The defendant contends that the trial court erred in using the presentence investigation report as the factual basis for sentencing, in not allowing him access to the presentence investigation report prior to the sentencing hearing, and by not affording him a sufficient opportunity to rebut or explain prejudicial aspects of his criminal record contained in the report, thereby denying the defendant due process of law.

The defendant cites the case of State v. Walker, 416 So.2d 534 (La.1982) for the proposition that simply using the presen-tence investigation report as a factual basis for sentencing does not comply with the requirements of LSA-C.Cr.P. art. 894.1. In that case, the trial court imposed a sentence of imprisonment based upon the following language:

“Having reviewed the pre-sentence investigation report in light of Article 894.1 of our State Criminal Code of Procedure and the information contained in that report about the defendant and about this offense, together with the fact that he has been adjudged an habitual offender, Court has determined that a lengthy sentence of confinement is in order.”

The Supreme Court held that this conclu-sory language was insufficient to satisfy article 894.1.

The instant case is distinguishable from Walker, supra, in that the defendant is incorrect in stating that the presentence investigation report formed the sole factual basis for the trial court’s imposition of sentence. It is clear from the trial record that the report was only one factor considered by the trial court in its decision; the trial judge also considered the violent and brutal character of the defendant’s conduct, the defendant’s multiple attacks upon women, and the absence of any of the mitigating factors listed in LSA-C.Cr.P. art. 894.1. Despite the trial judge’s comment that the report would serve as the “factual basis” of the sentence, it is clear that it was not the sole basis for his finding. Moreover, the trial judge did not, as in Walker, supra, merely state his reasons in a conclusory manner; instead, he set forth all the factors he had considered, in addition to the report.

This case may be analogized to State v. Douglas, 389 So.2d 1263 (La.1980), which states:

“In sentencing defendant, the trial judge stated for the record that he was imposing the harsh sentence because of defendant’s extensive criminal history which reflected an incorrigible and violent nature.1
Despite the brevity of his reasons, the trial judge adequately complied with the sentencing guidelines in C.Cr.P. art. 894.1, which requires the sentencing judge to “state for the record the considerations taken into account and the factual basis therefor in imposing sentence.” The purpose of the statute is to guide and assist the trial court in the exercise of its broad discretion regarding the imposition of a fair and proper sentence in a particular case by adapting the sentence to the offender as well as to the offense. State v. Jackson, 360 So.2d 842 (La.1978). Further, the articulation of factors considered in imposing sentence facilitates review by this court to assure that sentences imposed are not arbitrary or based on impermissible factors.2
In this case the sentencing judge has given more than a verbatim recitation of the language of the statute. He has cited the factual basis for his conclusion that the “apparently severe” sentence imposed in this case was appropriate. State v. Jones, 381 So.2d 416 (La.1980). Although the. sentencing judge did not enumerate each factor listed in art. 894.1, we accept the judge’s assertion that he based his very lengthy sentence on defendant’s pri- or criminal history and the violent manner in which defendant perpetrated the offense in question. Thus, while a more detailed recitation would have been more helpful, the record provides this court with an adequate basis for review and constitutes adequate compliance with C.Cr.P. art. 894.1.3” (Footnotes omitted).

Since the trial court judge clearly set forth sufficient reasons for sentence, it cannot be said that article 894.1 was not satisfied.

In the instant case the record is devoid of any objection or request that the defendant be allowed access to the presen-tence investigation report. It is well settled that, absent a timely request by the defendant, failure of the trial court to afford the defendant access to the presen-tence investigation report is not reversible error. State v. Boone, 364 So.2d 978 (La.1978), cert. denied, 444 U.S. 825, 100 S.Ct. 46, 62 L.Ed.2d 31 (1979); State v. Berain, 360 So.2d 822 (La.1978).

The transcript reflects that the defendant failed to object at the sentencing hearing to the extent to which he was allowed to explain away his criminal record. It is well settled that, absent objection at the time of sentencing, a claim that the defendant has not been afforded an opportunity to contradict unfavorable information contained in the presentence report cannot be asserted for the first time on appeal. State v. Norris, 347 So.2d 225 (La.1977).

For the above and foregoing reasons the conviction and sentence are affirmed.

AFFIRMED.


author: DOUCET, Judge.

text:
    STATE of Louisiana, Plaintiff-Appellee, v. William Barkie BROWN, Defendant-Appellant.
    No. CR83-528.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 14, 1983.
    William D. Dyess, Many, for defendant-appellant.
    James L. Davis, Dist. Atty., Many, Abbott Reeves, Asst. Dist. Atty., Gretna, for plaintiff-appellee.
    Before CUTRER, DOUCET and LA-BORDE, JJ.
   DOUCET, Judge.

Defendant, William Barkie Brown was charged with forcible rape, committed on October-16, 1982. Pursuant to a plea bargain, the defendant pleaded guilty to attempted simple rape on March 7, 1983 and, following a pre-sentence investigation, was sentenced to 12½ years imprisonment. He now appeals, alleging the trial court failed to comply with the sentencing guidelines set forth in LSA-C.CR.P. art. 894.1 and further argues that the sentence imposed is excessive.

In the early morning hours on October 16, 1982, the defendant went to the apartment of Amber Meshell in Sabine Parish whereupon there was a conversation between defendant and the victim. Subsequently the defendant forced her to have sexual relations with him, beating and threatening her. The defendant, however, claimed he did not have sexual relations with her and was in fact incapable of performing any sexual act due to intoxication. The aforesaid plea bargain followed.

In imposing sentence the trial judge made the following observations:

“The Court is mindful that this Defendant is a first felony offender.

The Court is of the opinion that it is not necessary to review the sentencing guide-' lines set forth in Article 894.1 of the Louisiana Code of Criminal Procedure because this was a plea bargain, and the Defendant was made aware of the sentence he could expect.

However, separate and apart from that fact, the Court, after reviewing the sentencing guidelines, finds that all three of the provision of Paragraph A of Article 894.1 are applicable, namely:

(1) There is undue risk that during the period of a suspended sentence or probation the defendant will commit another crime. Defendant is 21 years old. Yet he has a juvenile record, he is a high school drop out from age 17, has, at best, a sparse work record, has no known dependents, no known resources, and his mother provides him with a place to live. He drinks alcoholic beverages to an extent unknown by this Court, and allegedly had been drinking when this crime occurred.

(2) He is certainly in need of a custodial environment, and correctional treatment.

(3) The offense of attempted simple rape is one of violence of an extreme nature. A lesser sentence than the one imposed would, in the opinion of this Court, deprecate the seriousness of the offense.

The Court has reviewed, in detail, the grounds to be accorded weight in its determination of suspension of sentence or probation and finds none of them applicable.”

Appellant contends the above recitation constitutes inadequate compliance with LSA.C.CR.P. art. 894.1 and the sentence received is excessive. However, prior to the plea bargain, defendant was exposed to a possible sentence of forty (40) years.

As stated by Justice Lemon, concurring in State v. Hicks, 403 So.2d 676 (La.1981): “ * * * If the record supports the sentence, for example by showing (as the record in this case does) that the accused significantly reduced his total sentencing liability by agreeing to a negotiated sentence, then the attack should be rejected.”

In finding that there was no reversible error resulting from the trial judge’s failure to strictly comply with the mandate of Art. 894.1 and further finding that the sentence was not excessive, the majority opinion in Hicks noted:

It is clear from the record that the defendant, who was at all times represented by competent counsel, was examined by the trial judge in accordance with the standards and guidelines required by State ex rel. Jackson v. Henderson, 260 La. 90, 255 So.2d 85 (1971) and Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); that he fully understood his rights; that he knowingly and intelligently waived those rights; and that his plea of guilty was freely and voluntarily made, with full knowledge of its consequences. He was specifically advised that as a part of the plea bargain he would be sentenced to serve 15 years in the State Penitentiary, which were to run concurrently with a life sentence imposed by another division of the district court.
After sentence was imposed, defendant was granted an out of time appeal by this court, in which two assignments of error are urged. First, defendant complains of the failure of the trial judge to give reasons for imposing the maximum sentence, as required by Article 894.1 of the Code of Criminal Procedure. Second, it is argued that the sentence imposed was excessive in violation of the Louisiana and United States Constitutions.
In the case of State v. Curry, 400 So.2d 614 (La.1981), we said:
“The sentence for the possession of methamphetamines (81-KA-0275) was the result of plea bargaining culminating in a plea of guilty with the sentence to be given understood and agreed to. Under these circumstances we believe there was no necessity of listing enumerated reasons and that the defendant cannot complain of excessive length.”

The present case is indistinguishable from Hicks. Accordingly the defendant’s sentence is affirmed.

AFFIRMED.


author: YELVERTON, Judge. DOMENGEAUX, Judge,

text:
    STATE of Louisiana, Plaintiff-Appellee, v. David Joseph MILLER, Defendant-Appellant.
    No. CR83-529.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 14, 1983.
    William D. Dyess, Many, for defendant-appellant.
    James L. Davis, Dist. Atty., Many, Abbott Reeves, Asst. Dist. Atty., Gretna, for plaintiff-appellee.
    Before DOMENGEAUX, STOKER and YELVERTON, JJ.
   YELVERTON, Judge.

Defendant pleaded guilty to two counts of issuing worthless checks in violation of LSA-R.S. 14:71. The amounts of the checks involved in each of the two counts placed the violation within the penalty range of LSA-R.S. 14:71(D) providing for a maximum of two years imprisonment or a fine of $2,000, or both. The guilty pleas were entered on September 16, 1982. A presentence report was ordered. The minutes of court reflect defendant was ordered to appear on December 1,1982, for sentencing, but he failed to appear and a bench warrant was issued. The minutes of court show that defendant appeared for sentencing on May 12, 1983. On that date the minutes recite that he was sentenced to the custody of the Department of Corrections “for a period of two (2) years. The sentence shall run consecutively.”

The minutes of court for that date also reflect that a motion for an appeal was then granted, following which there is the notation: “Written reasons to be filed later.” No reasons for sentence appear in the record nor is there any other evidence in the record to illumine the sentence.

Defendant’s appeal is based on non-compliance with La.C.Cr.P. art. 894.1 and an excessive punishment. We note immediately that whether the sentence was “apparently severe” as being the maximum (two years) cannot be determined from the record, for we are unable to determine from the minutes whether four years was imposed (two years on each count to run consecutively), or a total of two years for both counts (the inference being possible that one year was imposed on each count, the sentences to run consecutively). The State in its brief acknowledges that it is not clear from the record whether the sentence was four years or two years. Not knowing what the sentence was, we are unable to review the merits of the excessiveness claim, because a different standard of review applies dependent on whether the sentence was apparently severe or not apparently severe.

In any event, the record contains nothing to indicate compliance with the sentencing considerations of C.Cr.P. art. 894.1. We would be unable to review this sentence even if we knew what it was. The record itself contains no evidence to illumine any sentence. We must vacate the sentence and remand for resentencing in accordance with the law. State v. Walters, 412 So.2d 1388 (La.1982).

CONVICTION AFFIRMED; SENTENCE VACATED AND CASE REMANDED.

DOMENGEAUX, J., concurs and assigns brief reasons.

DOMENGEAUX, Judge,

concurring.

I agree with this remand for resentenc-ing. I do not agree, however, under any circumstances, that we should review this or any other sentence to determine exces-siveness. See my previous concurring opinions in State v. Goodman, 427 So.2d 529, 533 (La.App. 3rd Cir.1983); State v. Vallare, 430 So.2d 1336, 1339 (La.App. 3rd Cir.1983), writ denied, 433 So.2d 729 (La.1983); State v. Shelby, 438 So.2d 1166 (La.App. 3rd Cir.1983).


author: FORET, Judge.

text:
    STATE of Louisiana, Appellee, v. Mose GADISON, Appellant.
    No. CR83-535.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 14, 1983.
    John W. Porterfield, Jeanerette, for appellant.
    Charles L. Porter and Dracos D. Burke, Asst. Dist. Attys., New Iberia, for appellee.
    Before GUIDRY, FORET and KNOLL, JJ.
   FORET, Judge.

On September 17, 1981, Mose Gadison (defendant) was arrested and charged by bill of information with distribution of marijuana, in violation of LSA-R.S. 40:967(A). Defendant entered a plea of not guilty and was tried by a twelve-member jury which returned a verdict of guilty as charged by a vote of 11 to 1. After completion of a pre-sentence investigation, the trial court sentenced defendant to serve a term of four years imprisonment at hard labor. Defendant then announced to the trial court his intention to appeal and made a formal motion to that effect.

The trial court granted defendant’s motion for an appeal and made the same returnable on January 22, 1983. However, no assignments of error were filed in the record by defendant, although he did submit a brief stating assignments of error. Thus, this case is subject only to a review for patent errors. See LSA-C.Cr.P. Articles 844 and 920; State v. Smith, 418 So.2d 515 (La.1982); State v. Dye, 384 So.2d 420 (La.1980); State v. Marrero, 363 So.2d 494 (La.1978); State v. Zeno, 322 So.2d 136 (La.1975).

REVIEW FOR PATENT ERRORS

A review of the record shows that defendant was charged by bill of information, in proper form, signed by the district attorney, on July 24, 1981. On November 25, 1981, defendant appeared before the trial court accompanied by retained counsel, waived arraignment, and entered a plea of not guilty. The minutes of court reflect that defendant was present during selection of the jury, at all times during trial, and was present when judgment was rendered.

Defendant requested a trial by jury and was subsequently tried before a twelve-member jury. He was charged with a violation of LSA-R.S. 40:967(A), an offense punishable by a maximum of ten years imprisonment at hard labor and a $15,000 fine. This offense constitutes a felony which must be tried before a twelve-member jury, returning a verdict of guilty on the vote of at least ten of the jurors. As noted above, defendant was found guilty as charged by a vote of 11 to 1. The four-year sentence of imprisonment at hard labor imposed on defendant by the trial court fell within the statutory limits. The minutes of court reflect the sentence imposed, and the record clearly sets out the trial court’s reááons for sentencing. Sentencing was made approximately four months after defendant’s conviction, after a pre-sentence investigation was conducted, and after the trial court had held a sentencing hearing.

There is no question here as to the constitutionality of LSA-R.S. 40:967(A).

DECREE

For the reasons assigned, defendant’s conviction and sentence are affirmed.

      . Defendant was charged with having distributed marijuana on July 24, 1981, to an undercover Louisiana State Police officer. On that date, marijuana was classified as a Schedule II substance. By Acts 1981, # 800, § 1, Paragraph 22 of Sub-Section C of Schedule I was added, ■ and by Section 4 of the same act, Paragraph 5 of Sub-Section A of Schedule II was repealed, effective August 2, 1981, so as to change marijuana from a Schedule II substance to a Schedule I hallucinogenic substance.

      . See LSA-R.S. 40:967(B)(2) as it read at the time defendant committed the crime with which he was charged.


text:
    STATE of Louisiana, Plaintiff-Appellee, v. Dobie Gillis WILLIAMS, Defendant-Appellant.
    No. CR83-536.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 14, 1983.

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

A jury convicted Dobie Williams of attempted simple burglary of an inhabited dwelling (LSA-R.S. 14:62.2 and 14:27). The trial court sentenced him to four years in the custody of the Louisiana Department of Corrections. He appeals both the conviction and the sentence.

The assignment of error relating to the conviction involves a response by a prospective juror on voir dire. After answering some general questions by the District Attorney regarding the responsibilities of jury duty, the prospective juror, John Godfrey, made the following gratuitous observation:

“A Yes, sir. I have one thing to say though, a member of my family — I also know Dobie Williams — a member of my family filed some charges

The District Attorney at this point interrupted and the following exchange completes the prospective juror’s allegedly prejudicial remarks:

“Q Wait, wait — oh, a member of your family was a victim of a crime once?
A Yes, sir.”

Defendant moved for a mistrial which was denied. Defendant contends that a mistrial was mandated. He argues that the comment conveyed to the jurors already sworn the impression that a member of Godfrey’s family had filed a criminal charge against the defendant and that the remark amounted to a reference to other crimes.

We disagree. Although a remark or comment by a prospective juror as to other crimes committed by a defendant on trial may be a ground for a mistrial under LSA-C.Cr.P. arts. 770 and 771(2), we find that the statement made by this prospective jur- or was not such a remark or comment. The comment was unclear and inconclusive. It is by no means clear that it was meant as a reference to another crime. If it was so intended, the reference was so obscure as to be virtually meaningless. Reading it in the record, it appears more likely to have been two disjointed thoughts expressed in the same breath. The trial judge evidently did not construe the remark as a reference to criminal activity by the defendant. In ruling on the motion for a mistrial out of the presence of the jury, the trial court stated that he had observed the prospective juror as he listened to his response and did not regard the.remark as prejudicial.

This assignment has no merit.

Defendant’s assignments of error with regard to the sentence raise two general contentions: (1) the trial judge did not comply with LSA-C.Cr.P. art. 894.1, and (2) the sentence was excessive.

As to the art. 894.1 assignment, defendant complains that the sentencing judge did not consider his youth, the absence of prior felony offenses on his record, and the fact that he was employed at the time of the offense. We find no merit in this assignment of error. The trial judge relied on a presentence investigation report and his personal knowledge of defendant’s background. The reasons for judgment began with a notation that defendant was 22 years old. The court then carefully explained the considerations taken into account and the factual basis therefor in imposing sentence. The defendant was caught trying to break into a home occupied by a young mother and her three small children. The court took into account the defendant’s social and criminal history which, in addition to pending charges for armed robbery and aggravated battery committed as an adult, included juvenile offenses resulting in two separate commitments .to the custody of the Louisiana Department of Corrections. There was no error in the consideration by the judge of the prior adult arrests for armed robbery and aggravated battery. State v. Washington, 414 So.2d 313 (La.1982). Nor was there error in his consideration of the juvenile delinquency history. State v. Guajardo, 428 So.2d 468 (La.1983). The defendant presented no mitigating facts and none were apparent from the circumstances of the case.

Finally, defendant complains that the sentence was excessive because he received a sentence of four years out of a possible six years. In reviewing a claim of excessive sentencing, the trial judge is to be afforded wide discretion in the imposition of sentences within statutory limits, and the sentence imposed by him should not be set aside as excessive in the absence of a manifest abuse of his discretion. State v. Abercrumbia, 412 So.2d 1027 (La.1982). Under the circumstances of this case the trial judge did not abuse the wide discretion accorded him in sentencing. The trial judge stated that considering defendant’s past conduct, and the seriousness of the offense for which he was convicted, it determined a prison sentence was virtually mandated both for treatment of the defendant and for the protection of society. In our opinion, considering that defendant as a juvenile was twice committed to the Department of Corrections and as an adult has been charged twice for serious offenses and convicted once (although the conviction was reversed on account of a procedural error), the sentence imposed is neither disproportionate to the crime committed nor shocking to our sense of justice.

This assignment likewise has no merit.

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

AFFIRMED.

DOMENGEAUX, J., concurs and assigns brief reasons.

DOMENGEAUX, Judge,

concurring.

I concur in this opinion merely to repeat that appellate courts should not review sentences 'for excessiveness. See my concurring opinions in State v. Goodman, 427 So.2d 529, 533, (La.App. 3rd Cir.1983); State v. Vallare, 430 So.2d 1336, 1339 (La.App. 3rd Cir.1983), writ denied, 433 So.2d 729 (La.1983); State v. Shelby, 438 So.2d 1166 (La.App. 3rd Cir.1983).


text:
    STATE of Louisiana, Appellee, v. William L. VIGERS, Appellant.
    No. CR83-552.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 14, 1983.
    Anthony G. Terracina, Opelousas, for appellant.
    Morgan J. Goudeau, III, Dist. Atty., and Donald Richard, Asst. Dist. Atty., Opelou-sas, for appellee.
    Before GUIDRY, FORET and KNOLL, JJ.
   FORET, Judge.

Defendant, William L. Vigers, was convicted of armed robbery and sentenced to six years at hard labor without benefit of parole, probation, or suspension of sentence. He seeks a reversal of his conviction and sentence by challenging the constitutionality of LSA-C.Cr.P. Article 704(1) regarding severance of jointly indicted defendants.

FACTS

On July 27, 1981, William Vigers met Mark Crider inside the Odyssey Lounge in Eunice, Louisiana. The two sat at the bar and had several drinks together. Later, they exited the bar and were met outside by Melvin Hebert, a friend of Vigers. The three men then decided to drive around town in Mr. Crider’s truck and smoke some marijuana.

Crider testified that the three drove to a softball park and stopped at a picnic area. Without warning, he was struck on the head with a beer bottle and repeatedly beaten. He managed to escape and contact the police, but not before being robbed of several hundred dollars.

Vigers and Hebert testified that the three drove around town and smoked marijuana but never went to the park area. Both stated that Crider dropped Vigers off at his home. Hebert stated that Crider later dropped him off at a car wash. Both men denied having had anything to do with the robbery of Crider.

Vigers and Hebert were jointly charged with armed robbery, by bill of information, in violation of LSA-R.S. 14:64. Prior to trial, the State moved for severance of the two co-defendants pursuant to LSA-C.Cr.P. Article 704(1). The trial court granted the motion over defendant’s objection. The State then filed a separate bill of information against Vigers on January 13, 1983. Subsequently, Vigers was tried and found guilty by a ten to two verdict on March 18, 1983.

ASSIGNMENT OF ERROR

The defendant alleges that LSA-C.Cr.P. Article 704(1) is unconstitutional because it violates the due process requirements of the Louisiana and the United States Constitutions. More specifically, he alleges that the denial of due process arises under Article 704(1) because a defendant is not entitled to a contradictory hearing.

Louisiana Code of Criminal Procedure Article 704(1) states:

“Art. 704. Severance
Jointly indicted defendants shall be tried jointly unless:
(1) The state elects to try them separately; or
(2) The court, on motion of the defendant, and after contradictory hearing with the district attorney, is satisfied that justice requires a severance.
Source: Former R.S. 15:316; Acts 1966, No. 310, § 1.
Official Revision Comment
(a) Clause (1) makes no change in the law. State v. Phillip, 164 La. 597, 114 So. 171 (1927). The rule is based upon the general principle that the state decides when, how, and whom to prosecute and should therefore be permitted to try defendants separately, even though jointly indicted. See Art. 61; cf. Art. 314 of the 1928 Code.”

Both the Louisiana and United States Constitutions guarantee that no person shall be deprived of his liberty without due process of law. U.S. Const., Amendments 5 and 14; La. Const., Art. 1, § 2. In the context of procedural due process, these provisions have been interpreted to mean that before a defendant in a criminal case may be deprived of his liberty, he must be given notice and a hearing which is appropriate to the nature of the case. State v. Woodard, 387 So.2d 1066 (La.1980). Thus, the defendant contends that prior to the granting of a severance pursuant to Art. 704(1), he should have been allowed a contradictory hearing in which to challenge the State’s motion for severance, and that, by not allowing him such an opportunity, the trial court denied him procedural due process.

This issue appears to be res nova in the Louisiana and Federal jurisprudence. Normally, the granting or denial of a motion for severance rests in the sound discretion of the trial judge and, absent a showing of clear abuse, his ruling will not be reversed. State v. Williams, 416 So.2d 914 (La.1982). The jurisprudence is replete with defendants’ challenges to denials of motions for severance; the instant case appears to be the first where the defendant challenges the granting of a motion for severance.

After reviewing the record, we do not find any prejudice to defendant by either the granting of the severance or by the absence of a contradictory hearing. Defendant contends that the denial of a contradictory hearing prevents him from building a record for review, but cites no authority for his claim nor gives any reason or examples which would support his position. The facts show that the defendant was adequately notified of the charges pending against him. His co-defendant testified fully on his behalf and in all other respects, received a fair trial. Since we can find no prejudice from the severance or from the lack of a contradictory hearing, this assignment is without merit.

DECREE

For the aforementioned reasons, the ruling of the trial court is affirmed.

AFFIRMED.


author: KNOLL, Judge.

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Joe E. SMITHEY, Jr., Defendant-Appellant.
    No. CR83-553.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 14, 1983.

      Richard V. Burnes, Alexandria, for defendant-appellant.
    William E. Tilley, Dist. Atty., Leesville, for plaintiff-appellee.
    Before GUIDRY, FORET, and KNOLL, JJ.
   KNOLL, Judge.

The defendant, Joe E. Smithey, Jr., was charged with armed robbery in violation of LSA-R.S. 14:64. He entered a plea of guilty to the charge and was sentenced to serve ten years at hard labor in the custody of the Louisiana Department of Corrections without the benefit of parole, probation, or suspension of sentence. On appeal are four assignments of error: (1) in failing to inform the defendant of the elements of armed robbery during the Boykin Examination as required by the United States Supreme Court in Henderson v. Morgan, 426 U.S. 637, 96 S.Ct. 2253, 49 L.Ed.2d 108 (1976) and the United States Court of Appeal for the Fifth Circuit in Burden v. Alabama, 584 F.2d 100 (5 Cir.1978); (2) accepting a guilty plea to the charge of armed robbery from a seventeen year old youth based on an inadequate Boykin Examination; (3) failing to follow the sentencing guidelines provided in LSA-C.Cr.P. Art. 894.1; and (4) imposing an excessive, cruel and unusual sentence.

FACTS

In January of 1983, the defendant, his younger brother and the adopted son of the victim conspired to rob Walter White, a sickly 70 year old man, at his home in the community of Lacamp, Vernon Parish, Louisiana. Their plans went afoul.

Several days later shortly after noon, the defendant, acting alone, put mascara on his face to give the appearance that he had a moustache, beard and sideburns. He then slipped a stocking over his head and put on a black knit cap. He was dressed in blue jeans and a blue jean jacket. He was also wearing a pair of gloves and tennis shoes. He went to Mr. White’s home and was in the process of breaking in when Mr. White heard a noise and went to the front door.

The defendant claims that when Mr. White opened the door it scared him, so he ordered Mr. White to “get on the floor” and hit him twice with his (the defendant’s) pistol. Mr. White claims he was beaten with a stick and received approximately five gashes to his head. The trial court commented that Mr. White was beaten so severely that the “club” broke in the process. The defendant took Mr. White’s wallet which contained $50.00 and ran out the back door. While beating Mr. White, blood had splattered on the defendant’s tennis shoes and gloves. The defendant returned to his home, hid the pistol, and burned the tennis shoes, gloves, stocking and wallet. He then went to a friend’s house for the purpose of establishing an alibi.

Mr. White received severe head wounds from the beating. He was hospitalized for nine days and was near death for the first twenty-four hours.

ASSIGNMENTS OF ERROR ONE AND TWO

In these assignments the defendant claims the Boykin Examination was inadequate, therefore, the defendant’s plea of guilty should be set aside.

The defendant alleges that the Boykin Examination was inadequate primarily in that the trial court failed to inform the defendant of the elements of the crime of armed robbery. He also complains that the defendant’s statement, which was introduced during the Boykin Examination, was not shown to be freely and voluntarily given.

The minimum requirement for a guilty plea is that it be a voluntary act of the defendant. By doing so, the defendant admits past criminal conduct, consents to a conviction and waives grave constitutional rights. The due process clause of the fourteenth amendment of the United States Constitution requires that a guilty plea must be given by the defendant voluntarily and intelligently. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). A waiver of the defendant’s constitutional right from a silent record will not be presumed. The record must show that the defendant, when entering his guilty plea, voluntarily and intelligently waived his constitutional rights. State ex rel. Jackson v. Henderson, 255 So.2d 85 (La.1971).

Before the trial court accepted the defendant’s guilty plea the trial court conducted a thorough examination with the defendant. The colloquy reflects that the defendant had an eleventh grade education and earned a high school equivalence diploma by passing the Graduate Equivalency Diploma examination. The trial judge explained that: he was entitled to a trial by jury or judge; he was presumed innocent until proven guilty beyond a reasonable doubt; it was the State’s burden to prove his guilt beyond a reasonable doubt; upon entering a plea of guilty, he waives a trial; he could subpoena witnesses and he would have the right to cross-examine any witnesses testifying against him; he had the right to remain silent; and that he did not have to give evidence against himself (compulsory self-incrimination). The trial judge specifically asked him if he understood that upon entering his guilty plea he was waiving all of the mentioned constitutional rights, which the defendant stated he understood.

The trial court asked the defendant if he was offering the plea because he felt he was guilty. The defendant stated he felt he was guilty. The trial court then read the bill of information to him and asked the defendant to explain to the trial court what occurred. The defendant stated:

“Well, I went to this man’s house with the intent not any harm to be done, and well, it was just — I know it ain’t right either way, but I was — it wasn’t to be anybody hurt during this, but while I was trying to break into his house, he come to the door while I was there and scared me and I just — I had tht — unfortunately, a pistol in my hand. I thought — I knew he had a gun in his house, and I thought that he had heard me trying to break in and he might shoot me, you know. It just happened all so fast, I didn’t have much time to think of anything.”

The trial court then questioned the defendant as to his intent, motive and method, all of which encompass the elements of armed robbery, which the defendant acknowledged and understood. LSA-R.S. 14:64 defines armed robbery as follows:

“A. Armed robbery is the theft of anything of value from the person of another or which is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon.
B. Whoever commits the crime of armed robbery shall be imprisoned at hard labor for not less than five years and for not more than ninety-nine years, without benefit of parole, probation or suspension of sentence.”

In this issue the defendant relies on Henderson v. Morgan, 426 U.S. 637, 96 S.Ct. 2253, 49 L.Ed.2d 108 (1976), and Burden v. State of Alabama, 584 F.2d 100 (5 Cir.1978), which are distinguishable to the case at bar.

In the Henderson case, supra, the accused was retarded, 19 years of age and originally indicted for first degree murder. He pleaded guilty to second degree murder which required intent. Upon accepting the accused’s guilty plea, the trial court did not discuss with the accused the requisite intent nor was there anything in the record that could serve as a substitute to show the requisite intent. The Supreme Court noted:

“... This case is unique because the trial judge found as a fact that the element of intent was not explained to respondent. ...”

In the Burden case, supra, the defendant pleaded guilty to carnal knowledge. The accused had signed an “Ireland Form” which did not contain a recital of the elements of carnal knowledge, or any representation made by the judge or defense counsel concerning the information. Further, the record of the proceedings contained no reference to the elements of the crime.

It is our view that the United States Supreme Court did not intend for the trial court to review with the accused a ritualistic litany of the elements of the crime for which he is charged. The elements requirement is met if the charge is explained to the accused. This interpretation is consistent with the Henderson case, supra, which states as follows:

“Petitioner argues that affirmance of the Court of Appeals will invite countless collateral attacks on judgments entered on pleas of guilty, since frequently the record will not contain a complete enumeration of the elements of the offense to which an accused person pleads guilty. We think petitioner’s fears are exaggerated.
Normally the record contains either an explanation of the charge by the trial judge, or at least a representation by defense counsel that the nature of the offense has been explained to the accused. Moreover, even without such an express representation, it may be appropriate to presume that in most cases defense counsel routinely explain the nature of the offense in sufficient detail to give the accused notice of what he is being asked to admit....”

The Louisiana Supreme Court has also adopted the same view. State v. Bowick, 403 So.2d 673 (La.1981). In accord see State v. Thomas, 434 So.2d 530 (La.App. 2 Cir.1983).

We find the trial court’s Boykin Examination of the defendant included the elements of the crime of armed robbery.

ASSIGNMENTS OF ERROR THREE AND FOUR

In these assignments the defendant complains that the sentencing court did not comply with LSA-C.Cr.P. Art. 894.1 and that the sentence is excessive.

Louisiana Constitutional Article I, § 20 prohibits the imposition by law of excessive punishment. It is judicially recognized that a sentence, although within the statutory limit, may violate a defendant’s constitutional rights against excessive punishment which is enforceable on appellate review. Compliance with C.Cr.P. Art. 894.1 is an important aid to the appellate courts in reviewing a sentence complained of as excessive. State v. Sepulvado, 367 So.2d 762 (La.1979). The sentencing court is given wide discretion in the imposition of sentences within statutory limits and the sentence should not be set aside as excessive absent manifest abuse of the sentencing court’s discretion. For a sentence to be excessive, the penalty imposed must be so disproportionate to the crime committed, in light of the harm caused to society, as to shock our sense of justice. State v. Bonanno, 384 So.2d 355 (La.1980).

Our review of the record of the present case convinces us that the sentence imposed is not excessive and that the sentencing court complied with the guidelines of Art. 894.1. The defendant’s actions were calculating and violent. He attacked a sick, defenseless and elderly man in the sanctity of his home to rob him of his wallet. The defendant administered a severe beating on Mr. White with a weapon, beating him almost to the point of death. The defendant had known the old man for years, ate at his house and was friends with his adopted son. The defendant spent the money with his younger brother on cigarettes and other inconsequential items.

The sentencing court ordered a presen-tencing investigation which reflected that the defendant had been either expelled or suspended from school for misconduct, fighting, damaging school property, leaving the school without permission, possession of alcohol (which the defendant denied) on school grounds and other matters. He was involved in other serious offenses (the record does not reflect the nature of those offenses) but he had not been convicted of any.

The sentencing court commented that it had reviewed the sentencing guidelines of Art. 894.1 and we find it gave a full factual basis for the sentencing choice. The sentencing court offered the defendant a sentencing hearing which the defendant declined and in lieu thereof offered three letters of character reference, and a letter written by the defendant to the junior high school class cautioning them to continue their education and avoid wrong doing. The sentencing court commented it had read the letters and was taking into consideration the youthful age of the defendant and that he was technically a first offender. The court felt that had the defendant been older, the defendant’s sentence would have been longer than the sentencing choice.

We do not find that the sentencing court abused its wide discretion in its sentencing choice. In defendant’s complaint of exces-siveness of sentence, he strongly urges his youthfulness. We observe, however, that a sick and elderly person is only victim of prey to a youth bent on violent criminal conduct. The armed robbery of Mr. White was senseless and cruel. The penalty imposed is not so disproportionate to the crime committed as to shock our sense of justice.

We therefore conclude that these assignments of error are without merit.

DECREE

For the foregoing reasons, the defendant’s conviction and sentence are affirmed.

AFFIRMED.


text:
    STATE of Louisiana, Plaintiff-Appellee, v. Melvin GATSON, Defendant-Appellant.
    No. CR83-587.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 14, 1983.

      Charles Yeager, Alexandria, for defendant-appellant.
    G. Earl Humphries, III, Asst. Dist. Atty., Alexandria, for plaintiff-appellee.
    Before GUIDRY, FORET and KNOLL, JJ.
   KNOLL, Judge.

The defendant, Melvin Gatson, was convicted of armed robbery, a violation of LSA-R.S. 14:64, and sentenced to serve thirty years at hard labor without benefit of parole, probation or suspension of sentence. He has appealed his sentence as being excessive and not in compliance with LSA-C.Cr.P. Art. 894.1.

FACTS

In the early evening of December 12, 1982, Mrs. Vestal Dunn parked her car at the P.D.Q. convenience store in Alexandria. She got out of her car, started to enter the store, changed her mind, and returned to her car. As Mrs. Dunn laid her purse on the seat beside her and placed the car keys into the ignition, the defendant jerked open the passenger door of her car and demanded that she hand over her purse. Mrs. Dunn instinctively placed her hand on her purse and told the defendant that it was empty. With threats that he would shoot her, the defendant pointed a gun at Mrs. Dunn and again demanded her purse. The defendant then shot Mrs. Dunn in the right leg, grabbed the purse and ran off. On December 16,1982 Mrs. Dunn identified the defendant as her assailant from a live lineup which included four other individuals of comparable weight, height, and age.

ASSIGNMENTS OF ERROR

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

The imposition of excessive punishment is prohibited by Louisiana Constitution Article I, section 20. Even though a sentence falls within the statutory limits it may be deemed unconstitutionally excessive. State v. Tompkins, 429 So.2d 1385 (La.1982); State v. Sepulvado, 367 So.2d 762 (La.1979). For a sentence to be excessive, the penalty must be so disporportionate to the crime committed, in light of the harm caused to society, as to shock our sense of justice. State v. Bonanno, 384 So.2d 355 (La.1980); State v. Campbell, 404 So.2d 1205 (La.1981).

Correlative with our authority to review individual sentences is the duty of the trial court to state for the record the reasons for his sentencing choice. LSA-C.Cr.P. Art. 894.1. These criteria are appropriate for determining whether a particular sentence is excessive. State v. Jacobs, 383 So.2d 342 (La.1980); State v. Forshee, 395 So.2d 742 (La.1981).

Melvin Gatson received thirty years for commission of an armed robbery. Just seven months prior to this offense, he had been convicted of felony theft. The trial court considered the fact that the defendant shot his victim with a pistol. This, coupled with the relatively brief time between defendant’s felony convictions, convinced the trial court that a lesser sentence would diminish the seriousness of the defendant’s crime. We find that the trial court met the sentencing guidelines LSA-C.Cr.P. Art. 894.1. of

If there has been adequate compliance with LSA-C.Cr.P. Art. 894.1, a trial judge has wide discretion in the imposition of sentences within the statutory limit. State v. Trahan, 425 So.2d 1222 (La.1983). Absent manifest abuse of discretion we should not set aside sentences as excessive. State v. Spencer, 374 So.2d 1195 (La.1979); State v. Brewer, 436 So.2d 631 (La.App. 3rd Cir.1983); State v. Smack, 425 So.2d 737 (La.1983).

Our review of the record convinces us that the defendant’s sentence was not excessive. His actions caused serious injuries to a defenseless person. Only luck prevented the victim’s injuries from being more severe. His propensity to commit felonies, two in less than one year, convinces us that the defendant is in need of correctional treatment in a custodial environment. We, therefore, conclude that under the particular facts of this case the defendant’s sentence of thirty years at hard labor without parole, probation or suspension is not constitutionally excessive.

For the reasons assigned, the defendant’s conviction and sentence are affirmed.

AFFIRMED.