text:
    STATE of Louisiana v. James COTTEN.
    No. 83-KJ-0012.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 11, 1983.

      Ossie Brown, Dist. Atty., Baton Rouge, by Glen Petersen, Asst. Dist. Atty., for plaintiff-appellee.
    Nathan Fisher and John Di Giulio, Baton Rouge, for defendant-appellant.
    Before LOTTINGER, EDWARDS and ALFORD, JJ.
   EDWARDS, Judge.

The defendant James Cotten was charged in the same information in separate counts with attempted armed robbery in violation of LSA-R.S. 14:27 and 14:64 and attempted first degree murder in violation of LSA-R.S. 14:27 and 14:30(1). A jury returned a verdict of guilty on both counts. Defendant received concurrent sentences of forty-nine and one-half years at hard labor and fifty years at hard labor on each respective count, each sentence being the maximum allowed by law. Alleging fourteen Assignments of Error, defendant appeals his conviction and sentences.

Defendant neither briefed nor argued Assignments of Error Nos. 1, 3, 5, 6, 7, 8 and 13. They are considered abandoned. State v. Vanderhoff, 415 So.2d 190 (La.1982); Uniform Rules of the Courts of Appeal, Rule 2-12.4. Defendant in his brief consolidated Assignments of Error Nos. 9, 10, 11 and 12 for the purposes of argument since they all involve the denial of the motion for mistrial.

FACTS

At approximately 9:30 on the night of November 26, 1981 — Thanksgiving Day— James Cotten, age 17, and Alfred Newman, 16, approached the car of Ms. Jeri Gremil-lion in the parking lot of the apartment complex where she lived. Cotten and Newman, along with two others waiting for them in a car around the corner, were looking to make a “hustle,” that is, to commit a robbery in order to get some money to go to New Orleans later that night. Armed with a .22 caliber pistol, Newman demanded that Ms. Gremillion give them all of her money. She told them that she did not have any but threw her purse out of the window of the car anyway. At that point, Cotten, saying “Give me that gun, I’ll shoot that bitch,” grabbed the gun from Newman’s hands and shot Ms. Gremillion in the face.

Cotten and Newman were arrested a few days later. Newman ultimately was sentenced as a juvenile to “juvenile life.” Cot-ten was charged with attempted first degree murder and attempted armed robbery.

ASSIGNMENT OF ERROR NO. 2

Defendant contends that the trial judge committed reversible error in denying his motion to suppress an allegedly involuntary taped statement given by the defendant to Detectives Dupuy and Evans, the arresting officers. Specifically, defendant contends that Detective Dupuy’s questioning about a prior unrelated robbery and the showing of a photograph of a young woman whose disappearance had received wide-spread publicity constituted impermissible intimidation and coercion.

The record reveals that Detectives Dupuy and Evans arrested defendant at his home at 1:15 a.m. on December 5,1981, where he was orally advised of his Miranda rights. After transporting the defendant downtown for questioning, Dupuy again advised the defendant of his rights by reading him a “Rights of Arrestee” preprinted rights and waiver form, containing the question, “Do you understand what I have just read to you?” Defendant affirmatively answered the question read to him and initialed the box labeled “Yes.” Defendant was advised of his rights a third time at the start of the taped statement which began at 1:45 a.m., 30 minutes after the arrest. The interrogation lasted seven minutes ending at 1:53 a.m.

According to State v. Vaccaro, 411 So.2d 415 on page 423 (La.1981):

The law is clear that before a confession can be introduced into evidence the state has the burden of affirmatively proving that it was free and voluntary and not made under the influence of fear, duress, intimidation, menaces, threats, inducements or .promises. LSA-C.Cr.P. art. 703(C); LSA-R.S. 15:451; State v. Dison, 396 So.2d 1254 (La.1981); State v. Bell, 395 So.2d 805 (La.1981); State v. Haynie, 395 So.2d 669 (La.1981). The admission of a confession in the first instance is a question for the trial judge. His conclusions on the credibility and weight of testimony relating to the vol-untariness of a confession for the purpose of admissibility will not be overturned on appeal unless they are unsupported by the evidence. See State v. Dison, supra, State v. Napier, 385 So.2d 776 (La.1980); State v. Jackson, 381 So.2d 485 (La.1980). This court has held that the state must rebut specific testimony introduced by the defendant concerning factual circumstances which indicate coercive measures or intimidation. State v. Dison, supra; State v. Franklin, 381 So.2d 826 (La.1980); State v. Davis, 380 So.2d 607 (La.1980).

At the hearing on the motion to suppress, Detective Dupuy, whose testimony was fully corroborated by Detective Evans, stated affirmatively that neither he nor Detective Evans in any way threatened, harassed or intimidated the defendant or made any promises respecting the prosecution of the charges against the defendant. On cross-examination, Dupuy explained that his purpose in questioning the defendant about the Delmont Pastries robbery and the missing girl was to obtain information that could be passed on to the armed robbery division. He affirmatively stated that he did not encourage the defendant to be honest but only to tell the truth.

On direct examination, defendant confirmed Dupuy’s testimony that the questions about the robbery and the missing girl were informational only. He testified that he was only “scared a little” by the question concerning the other robbery, his “impression” being that he would be charged with that crime. On cross-examination, he admitted that he was given Kis Miranda rights three times, that he signed the written waiver of his rights and initialed the box labeled “Yes,” and that he fully understood the questions he was being asked.

In the instant ease, specific allegations of police misconduct were not only sufficiently rebutted by the state’s evidence, they were completely negatived by the defendant’s own testimony. That the trial judge chose to believe the testimony of the arresting officers rather than that of the defendant is not an abuse of discretion. Under the circumstances of this case, the trial court correctly denied the motion to suppress.

This assignment is without merit.

ASSIGNMENT OF ERROR NO. 4

Defendant contends that his prosecution and subsequent conviction for attempted first degree murder and attempted armed robbery, the underlying felony and the sole aggravating circumstance, violated the prohibition against double jeopardy contained in the Fifth Amendment of the United States Constitution and in Article I, § 15 of the Louisiana Constitution (1974). Article 596 of the Louisiana Code of Criminal Procedure is the statute implementing the constitutional prohibition against double jeopardy.

The concept of double jeopardy, under both the federal and the state constitutions, embodies the dual purpose of preventing both multiple punishments and multiple convictions for a single criminal wrong. See Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977); State v. Doughty, 379 So.2d 1088 (La.1980). Thus, every double jeopardy analysis must begin with the inquiry into whether a single offense or several offenses are involved.

The Louisiana Supreme Court has adopted the “same evidence” test to determine the identity of offenses. This test holds that two offenses are the same for double jeopardy purposes if the same evidence is required for the conviction of each offense. If one offense requires proof of additional facts which the other does not, the accused may be tried and convicted on both offenses unless the gravamen of the second offense is essentially included within the offense for which first tried, in which case the second prosecution is barred because of double jeopardy. State v. Solomon, 379 So.2d 1078, 1979 (La.1980).

In applying this test, the Louisiana Supreme Court has held that as a general rule double jeopardy bars separate punishment or subsequent prosecution of lesser included offenses once the defendant is convicted of the greater offense. See State v. Tompkins, 403 So.2d 644, 649, n. 6 (La.1981). Thus, conviction of second degree murder precludes further prosecution and conviction for attempted armed robbery, the enumerated felony. State v. Stewart, 400 So.2d 633 (La.1981); State ex rel. Wikberg v. Henderson, 292 So.2d 505 (La.1974). The reasoning of State v. Stewart, supra, is dispositive:

Once convicted of attempted ‘felony murder,’ the defendant is punished for the felony which he was perpetrating at the time of the attempted murder and he cannot be punished a second time for the same offense, (citation omitted.)

400 So.2d 633, 635, n. 4 (La.1981).

In the instant case, on the strength of the same evidence adduced at trial, defendant was convicted of attempted first degree murder and attempted armed robbery, the enumerated felony. To uphold the conviction of attempted armed robbery would subject the defendant to double punishment for the same offense. “Where multiple punishment has been erroneously imposed the proper appellate procedure is to eliminate the effect of the less severely punishable offense.” State v. Doughty, 379 So.2d 1088, 1089 (La.1981). Therefore, the conviction of attempted armed robbery is reversed and vacated. The conviction for attempted first degree murder remains unaffected under this assignment.

ASSIGNMENT OF ERROR NO. 9

Though consolidated with Assignments of Error Nos. 10, 11 and 12, Assignment of Error No. 9 is more properly discussed separately.

Under this assignment, defendant contends that the trial judge erred in denying defendant’s motion for mistrial. The basis for the defendant’s objection at trial arose when the prosecution asked the defendant on cross-examination, “How many times did you try to make a hussle [sic] that night?” The defendant immediately objected on the ground that the prosecution was attempting to elicit inadmissible evidence of other crimes in violation of LSA-R.S. 15:495.

Article 770 of the Code of Criminal Procedure mandates a mistrial when a prosecutor, directly or indirectly, remarks or comments upon “another crime committed or alleged to have been committed by the defendant as to which evidence is inadmissible.” However, the Louisiana Supreme Court has held that failure to grant a mistrial is not reversible error when the question asked is purely “interrogatory,” State v. Anderson, 358 So.2d 276 (La.1978); State v. Hatch, 305 So.2d 497 (La.1974), or where the question asked results in “harmless error.” State v. Huizar, 414 So.2d 741 (La.1982).

A purely “interrogatory” question is one which calls for inadmissible evidence, but which does not present any facts allegedly constituting the other crime to the jury. Assertive questions are those which place before the jury the details concerning the other crime. State v. Anderson, 358 So.2d 276, 279 (La.1978).

In State v. Huizar, supra, the prosecutor had asked the defendant an impermissible question about a-prior arrest. Before the defendant could answer, the prosecution withdrew his question and rephrased it. The court found the error to be harmless. Likewise, in State v. Anderson, supra, the court noted that defendant's objection was sustained, and the defendant was not required to answer.

In the instant case, defendant’s counsel objected before the defendant answered the question and asked that the jury be removed. Counsel then moved for a mistrial, and in the alternative requested an admonition be given the jury. The prosecutor agreed to withdraw his question. The trial court sustained the objection and admonished the jury after they returned to disregard the prosecutor’s last question.

Under these circumstances, the trial court correctly denied defendant’s motion for mistrial. We find that the question at issue was purely interrogatory since it did not lay before the jury any details relating to the alleged other crime. In the alternative, any error committed by the inquiry was harmless since the defendant’s objection was sustained before the defendant was required to answer the question. This assignment is without merit.

ASSIGNMENTS OF ERROR NOS. 10, 11 AND 12

Under these assignments, defendant argues three errors requiring reversal of the trial court’s denial of defendant’s motion for mistrial, namely, that the state’s breach of its continuing duty to disclose discoverable evidence, including the defendant’s RAP sheet, prejudiced the defendant by impairing his right to make out a defense; that the state’s reference to a prior arrest for attempted burglary which never actually occurred resulted in prejudice severely damaging defendant’s credibility; and that the state’s reference to the crime of unauthorized use of a movable as a “car theft” also prejudiced the defendant to the extent that a mistrial was mandated.

A review of the record reveals that the defendant filed a pretrial motion for discovery pursuant to LSA-C.Cr.P. art. 717, requesting a copy of any record of defendant’s prior criminal arrests or convictions. In response to defendant’s discovery request, the state responded that there were “none available.”

At trial the defense counsel questioned the defendant on direct examination about his previous arrest record. Defendant responded that he had never been arrested before. On cross-examination the defendant responded to the prosecution’s questions about his prior arrests, “Well, I have been arrested for driving without a license and use of an unauthorized movable vehicle.” Defense counsel made no objection at this time. Several questions later, still during cross-examination, the prosecution returned to the subject of prior arrests and asserted that the defendant had been arrested a third time for attempted burglary. Defendant moved to retire the jury and requested a recess in order to substantiate this third arrest. During the recess, it was determined that the defendant was never actually arrested for attempted burglary. He had instead been detained and taken to Family Court for consultation with a Family Court counselor. At this point, defendant moved for a mistrial on the grounds set forth above, and alternatively requested an admonition.

Initially, we note that references to arrests and indictments cannot be used even for the purpose of impeachment, and that a mere admonition to the jury is insufficient to cure any such remark. State v. Gaspard, 301 So.2d 344 (La.1974) (on rehearing); LSA-R.S. 15:495; LSA-C.Cr.P. art. 770. However, the state is not precluded from contradicting the defendant’s testimony given on direct examination upon an issue which the defendant himself has brought into the case. State v. Constantine, 364 So.2d 1011 (La.1978); State v. Howard, 230 La. 327, 88 So.2d 387 (La.1956); See also State v. Barrett, 350 So.2d 664 (La.1977).

Because the defendant “opened up" the issue of his arrest record, evidence pertaining to such arrests is clearly admissible on the question of defendant’s credibility. Questions posed by the prosecution about such arrests do not constitute impermissible references to other crimes. Therefore, C.Cr.P. art. 770, mandating mistrial, is inapplicable.

The record further reveals that defendant’s counsel had represented the defendant on his arraignment for the unauthorized use of a movable two weeks prior to the trial for attempted first degree murder, but due to her heavy work load had forgotten that representation. The prosecution maintains that he had orally discussed that arrest with the defendant’s counsel on several occasions during the two weeks preceding the trial in question. Since the prosecution maintained at trial that he did not and never had a RAP sheet in his file, we think it obvious that the state has no obligation to provide that which it does not have in its possession. See State v. White, 430 So.2d 174 (La.App. 2nd Cir.1983).

We note our recent holding in State v. Brooks, 434 So.2d 1171 (La.App. 1st Cir.1983), that any amendment pursuant to C.Cr.P. art. 717, after notification to the court and the defendant under C.Cr.P. art. 729.3, must be in writing, but do not decide the issue of whether defendant’s actual knowledge of a prior arrest relieves the state of its continuing discovery obligation. When the defendant had admitted to the arrest for the unauthorized use of a movable on cross-examination, the defense counsel failed to raise any objection at that time. Since her objection was not timely, the only question properly before us on appeal is whether the state’s use of the defendant’s prior “arrest” for attempted burglary without notification to the defendant was prejudicial. See State v. Johnson, 389 So.2d 372 (La.1980); LSA-C.Cr.P. art. 841.

The state’s failure to comply with discovery procedures that results in prejudice to the defendant constitutes reversible error. However, sueh a failure does not automatically require a reversal. This court will examine the circumstances to determine whether the defendant was actually prejudiced by the nondisclosure. State v. Vaccaro, 411 So.2d 415, 427 (La.1982).

In his brief, defendant placed considerable reliance on State v. Meshell, 392 So.2d 433 (La.1980), in which the court held that the use of the defendant’s RAP sheet, revealing a prior conviction for a similar offense, at the close of the state’s case, without prior notification to the defendant, pre-eluded the defendant from taking the stand in his own defense and thereby effectively denied his right to make out a defense. Meshell is distinguishable from the instant case. First, as noted above, the prosecution never had in its possession a RAP sheet. Second, defense counsel conceded at trial that she would have put the defendant on the stand even had she known about the defendant’s prior arrests, but contends that she would not have asked any questions about his prior arrest record.

In light of the fact that the jury had already heard the defendant’s taped confession and that the victim had positively identified the defendant as the man who shot her, we fail to see how a decision whether or not to ask defendant a single question about his prior arrests alone impaired the defendant’s ability to make out a defense, or led to prejudicial damage to his credibility. Moreover, the trial court sustained the defendant’s objection, instructed the state to discontinue that line of questioning, and admonished the jury to disregard any questions about the alleged arrest for attempted burglary. Under these circumstances, we find no prejudice to the defendant. Therefore, the motion for mistrial was properly denied.

The reference by the prosecution to the “car theft” arose out of the following question, “And you — you thought car theft, unauthorized use — was a traffic offense?” This was simply a mischaracterization of an arrest which was properly before the jury, and not a reference to another crime the evidence of which was inadmissible. Additionally, since the trial court sustained the objection before the defendant had answered the question and admonished the jury to disregard any reference to the arrest as one for car theft, we find no prejudice to the defendant. These assignments are without merit.

ASSIGNMENT OF ERROR NO. 14

Defendant contends that the sentence imposed by the trial court was excessive. Defendant was sentenced to fifty years at hard labor for attempted first degree murder, the maximum sentence allowed by law.

In State v. Knox, 425 So.2d 707, 708 (La.1982), the Louisiana Supreme Court stated:

It is now settled that a trial judge’s sentencing reasons in compliance with La. C.Cr.P. Art. 894.1 provide an essential aid to this Court’s review of an excessiveness claim under La. Const. Art. I § 20. State v. Trahan, 412 So.2d 1294, 1297 (La.1982); State v. Spencer, 374 So.2d 1195 (La.1979); State v. Cox, 369 So.2d 118 (La.1979). The record left of sentencing should therefore indicate that the trial court considered not only the seriousness of the offense and the past record of the defendant, but also “defendant’s personal history (age, mental status, dependents, family ties, work record, mental, emotional and physical health) and his ... potential for rehabilitation.” State v. Molinet, 393 So.2d 721, 722 (La.1981); see also, State v. Jones, 398 So.2d 1049 (La.1981); State v. Jackson, 360 So.2d 842 (La.1978). In addition, Art. 894.1(C) requires the trial court to state the factual basis for its sentencing conclusions. As set forth in State v. Williams, 397 So.2d 1287, 1291 (La.1981), this requirement “. .. in most cases is crucial to this Court when called upon to execute its constitutional function to review a sentence complained of as excessive.”

Accordingly, our review of the record reveals that among the factors considered by the trial court are (1) all mitigating facts and circumstances contained in letters written by friends and relatives of the defendant, which letters form a part of the record and were delivered to the court for his consideration and sentencing; (2) the necessity of confinement due to an undue risk that during the period of suspended sentence or probation the defendant would commit another crime; (3) the defendant’s previous involvement in an attempted burglary for which he was counselled and warned and which occurred only two days prior to the instant offenses, as well as his violations of simple criminal damage to property, unauthorized use of a movable, and driving without a license; (4) the necessity of correctional treatment or custodial environment most effectively provided by his commitment to an institution; (5) the defendant’s own reasons for committing the crime as simply needing the money to go to New Orleans for entertainment; (6) the fact that a lesser sentence would deprecate the seriousness of the defendant’s crime; (7) the helplessness of the victim and the danger to her life and to her unborn child’s life as a result of defendant’s criminal activity; and (8) the recommendation of the sentence by the 'Division of Probation and Parole as well as by the District Attorney.

Thus, the record shows that the trial court complied with the provisions of C.Cr.P. art. 894.1 in every material way. The question remains whether the sentence, though within statutory limits, is constitutionally excessive.

The trial judge has wide discretion in the imposition of a sentence within statutory limits and that sentence should not be set aside as excessive in the absence of manifest abuse of that wide discretion. State v. Sepulvado, 367 So.2d 762 (La.1979).

A sentence is excessive when it is grossly out of proportion to the severity of the offense, or when nothing more than the needless and purposeless imposition of pain and suffering. To determine whether a penalty is grossly disproportionate to the crime, the court considers the punishment and the crime in light of the harm to society and whether the penalty is so disproportionate as to shock our sense of justice. State v. Bonanno, 384 So.2d 355 (La.1980); State v. Roberts, 427 So.2d 1300, 1304 (La.App. 2nd Cir.1983).

The defendant was convicted by a jury of his peers of attempting to commit the only capital offense under Louisiana law, first degree murder, during the attempted perpetration of armed robbery. We cannot say that the sentence imposed was grossly out of proportion to the severity of the offense, nor so disproportionate as to shock our conscience. Moreover, the defendant displayed hostile unconcern for the lives of the victim and her unborn child. Just before he shot his pregnant victim in the face at point blank range, the defendant said, “Give me that gun, I’ll shoot that bitch.” While the trial court is “obliged to accord some weight to mitigating circumstances, such as youth and first offender’s status,” State v. Knox, 425 So.2d at 708, we cannot say that the trial court manifestly abused its discretion by imposing the maximum penalty. We do not find the sentence to be excessive. This assignment is without merit.

For the reasons assigned, defendant’s conviction for attempted armed robbery is reversed and vacated; defendant’s conviction and sentence for attempted first degree murder are affirmed.

REVERSED IN PART, AFFIRMED IN PART AND RENDERED.

      . On page 113 of the record defendant responded to defense counsel’s question on direct, “And then he had throwed out this picture and showed me a picture — a lady and asked me if I ever saw her before, and I told him, ‘No.’ And then he said, ‘Well, this is Judge Parker’s niece.’ I believe that’s what he said. Well, then he said she was kidnapped off the lake and asked me if I knew anybody who did it or did I know anything about it, and I told him ‘No I didn’t.’ ” Defendant stated that there was no other discussion about the Parker girl until after the taping began.
      As to the robbery question, pages 118 and 119 of the record contains the following:
      Q Okay. All this discussion of the robbery of Delmont Pastries had happened before you gave your statement?
      A Yes.

        Q What does that mean to you?
      A It didn’t mean anything. It just scared me a little.
      Q How did it scare you? What did you think was going to happen?
      A I thought he was going to try to say that I did it.
      Q Did he ever tell you directly that he would pin it on you if you didn’t make a statement?
      A No, he said nothing like that.
      Q But you got that impression? Is that what you’re saying?
      A Yeah.

      . LSA-C.Cr.P. art. 596 provides:
      Double jeopardy exists in a second trial only when the charge in that trial is:
      (1) Identical with or a different grade of the same offense for which the defendant was in jeopardy in the first trial, whether or not a responsive verdict could have been rendered in the first trial as to the charge in the second trial; or
      (2) Based on a part of a continuous offense for which offense the defendant was in jeopardy in the first trial.

      . LSA-R.S. 15:495 reads in pertinent part:
      Evidence of conviction of crime, but not of arrest, indictment or prosecution, is admissible for the purpose of impeaching the credibility of the witness ... and no witness, whether he be defendant or not, can be asked on cross-examination whether or not he has ever been indicted or arrested, and can only be questioned as to conviction, and as provided herein.
      Defendant’s additional argument that Prieur notice was also required is meritless. Prieur notice is required only when evidence of other crimes is offered to prove system, knowledge or intent under LSA-R.S. 15:445, 446, which is not the case here.

      . In Anderson the question asked was, “Were you arrested for theft since then?” The court found this question to be a pure question (j.e. an interrrogatory question) as it did not call for any details about the prior arrest.

      .“The error, if any, in the State’s inquiry is harmless. The question regarding arrest was never answered.” Id. 414 So.2d at 749.
      We note the possible application of State v. Gibson, 391 So.2d 421 (La.1980), wherein the Louisiana Supreme Court expressly adopted the federal “harmless error test” to be applied to evidence admitted in alleged violation of constitutional rights. That test is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction and that the court must be able to declare a belief that the error was harmless beyond a reasonable doubt. Id. at 428. The Supreme Court also indicated in Gibson that this test will be useful in cases involving only errors of state procedure or state law. Louisiana’s statutory harmless error rule is found in the Code of Criminal Procedure article 921, which requires reversal only when substantial rights of the accused have been affected, a somewhat lesser standard. Nonetheless, several Supreme Court cases decided since Gibson have applied the “overwhelming evidence” test, explicitly rejected by the Supreme Court, in determining when the error is harmless. See State v. Banks, 428 So.2d 544, 546, n. 2 (La.App. 4th Cir.1983) for a citation of those cases.

      .At the hearing on the motion to suppress his confession, the defendant had testified that he had been arrested previously for driving without a license.

      . The prosecution returned to the subject of arrests after defendant’s previous motion for mistrial, which formed the basis of defendant’s Assignment of Error No. 9, had been argued and ruled upon.

      . The record reveals that the prosecution had received information regarding this third arrest two hours before the question was asked.

      . LSA-C.Cr.P. art. 717 provides:
      Upon motion of the defendant, the court shall order the district attorney or the appropriate law enforcement agency to furnish to defendant a copy of any record of his criminal arrests and convictions that is in their possession or custody.
      LSA-C.Cr.P. art. 729.3 provides:
      If, subsequent to compliance with an order issued pursuant to this Chapter and prior to or during trial, a party discovers additional evidence or decides to use additional evidence and such evidence is or may be, subject to discovery or inspection under the order issued, he shall promptly notify the other party and the court of the existence of the additional evidence, so that the court may modify its previous order or allow the other party to make an appropriate motion for additional discovery or inspection.
      LSA-C.Cr.P. art. 729.5(A) provides:
      If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this Chapter or with an order issued pursuant to this Chapter, the court may order such party to permit the discovery or inspection, grant a continuance, order a mistrial on motion of the defendant, prohibit the party from introducing into evidence the subject matter not disclosed, or enter such other order, other than dismissal, as may be appropriate.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE of Louisiana v. Joseph Z. RODOSTA. STATE of Louisiana v. Karl J. RODOSTA.
    No. 83 KM 0767-68.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 11, 1983.
    Before LOTTINGER, EDWARDS and ALFORD, JJ.
   PER CURIAM.

During the pendency of the appeals lodged in this Court, defendants re-urged their motion for a new trial. The previous motion for a new trial was denied after a hearing by the trial court. The instant motion has been timely filed based upon allegations of new and material evidence that, notwithstanding the exercise of reasonable diligence by the defendants, was not discovered before or during the trial, which evidence if available, allegedly would probably have changed the verdict of guilty. La.Code Crim.P. Art. 851.

On July 7, 1983, this court issued a Show Cause Order as to why these appeals should not be remanded for a new trial hearing. No response has been made by the State, and thus we must assume the defendants’ motion is not opposed.

Therefore, we remand these cases to the trial court for a hearing on defendants’ motion for a new trial. La.Code Crim.P. Art. 853. State v. Spell, 388 So.2d 754 (La.1980).

REMANDED TO DISTRICT COURT.


author:
DOMENGEAUX, Judge.
     DOMENGEAUX, Judge,

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Claude SHELBY, Jr., Defendant-Appellant.
    No. CR83-63.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 12, 1983.

      Don Burkett and Edward Chevallier, Self & Burkett, Many, for defendant-appellant.
    James L. Davis, Dist. Atty., Many, Abbott J. Reeves, Asst. Dist. Atty., Gretna, for plaintiff-appellee.
    Before DOMENGEAUX, FORET and YELYERTON, JJ.
   DOMENGEAUX, Judge.

Defendant Claude Shelby, Jr. was indicted by the Sabine Parish Grand Jury on one count of cruelty to juveniles, a violation of La.R.S. 14:93. The defendant initially pleaded not guilty to the charge, but later appeared before the district judge in order to withdraw such plea and enter a plea of guilty. After carefully determining that the latter plea was made freely and voluntarily on the defendant’s part, the court accepted his plea of guilty. Thereafter, pursuant to a pre-sentence investigation, the defendant was given a three year suspended sentence at hard labor with the Department of Corrections, and was placed on supervised probation for a period of four years. A special condition of that probation was that the defendant serve six months in the parish jail. The defendant thereafter appealed the sentence imposed by the district court.

On appeal, the defendant perfected two assignments of error, to-wit: that the trial court erred in improperly considering the factors set forth as sentence guidelines in La.C.Cr.P. Art. 894.1; and, that the trial court erred in imposing a six months jail sentence, which sentence is excessive and violates the provisions of the Louisiana Constitution of 1974. In support of these assignments, the defendant relies specifically on the decision of our Supreme Court in State v. Sepulvado, 367 So.2d 762 (La.1979), which chose to interpret Article 1, Section 20 of the Louisiana Constitution of 1974 in such a manner that a sentence imposed within the statutory guidelines is, nevertheless, deemed to be reviewable on appeal for excessiveness.

Our jurisprudence has held that a sentence is constitutionally excessive when the penalty is so disproportionate to the crime as to shock the senses of justice or if it is nothing more than the purposeless and needless imposition of pain and suffering. State v. Goodman, 427 So.2d 529 (La.App. 3rd Cir.1983); State v. Reed, 409 So.2d 266 (La.1982). However, due to the trial judge’s unique position of reviewing subjective factors not available on appeal, he is given a wide discretion in the imposition of sentences within the statutory limits, and a sentence imposed by him should not be set aside as excessive in the absence of a manifest abuse of his discretion. Sepulvado and Goodman, supra; State v. Howard, 414 So.2d 1210 (La.1982); State v. Bradley, 414 So.2d 724 (La.1982).

The facts involved in this case are dis-cernable only from the transcript of the proceedings surrounding the defendant’s guilty plea, as well as from the sentencing proceedings. Apparently, the defendant had been living with one Belinda Maxey and was with her at her house at the time of the alleged incident, with his vehicle parked in her driveway. Several children were playing in the driveway at that time, and at some point during their play, a fog light was either broken or knocked off of the defendant’s car. According to statements made by the defendant, Ms. Maxey then instructed him to “go on and whip” the child who had broken the light, and the defendant admittedly proceeded to do such. The child was taken thereafter to a hospital emergency room, but was not hospitalized.

The trial judge, during sentencing proceedings, analyzed the pre-sentence investigation report on the defendant in light of those factors and considerations set forth in La.C.Cr.P. Art. 894.1, and concluded that the portions of that Article setting forth the different types of mitigating factors to be taken into account in imposing a sentence were controlling. Particularly, he noted that the defendant had no previous criminal convictions of any significance, the only one being a citation for an expired inspection sticker. However, in light of the fact that the actions taken by the defendant were deemed to be in excess of the bounds of reasonable discipline of the child, the judge chose to impose the six months terms of incarceration appealed by the defendant herein.

In State v. Lanclos, 419 So.2d 475 (La.1982), the Supreme Court made the following comments concerning the necessity of rigid compliance with the provisions of La. C.Cr.P. Article 894.1:

“However, the trial judge’s failure to comply with Article 894.1 does not automatically render a sentence invalid. This court has held that although Article 894.1 provides useful guidelines for the determination of the nature and length of a sentence, compliance with its provisions is not an end in itself. ... Article 894.1 is intended to provide an impartial set of guidelines within which the trial judge’s sentencing discretion may be exercised .... Compliance with Article 894.1 further provides a record which is detailed enough to allow for a reasoned review of allegedly excessive sentences. The articulation of the factual basis for a sentence is the goal of Article 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed this court has held that remand is unnecessary, even where there has not been full compliance with Article 894.1.... ” (Citations omitted)

The defendant maintains on appeal that in imposing sentence, the trial judge did not carefully consider a number of the mitigating factors delineated in La.C.Cr.P. Art. 894.1 in light of the set of uncontradicted facts which were presented in court. Additionally, he argues that since he has virtually no criminal record, and that because forcing him to serve a six months jail term will cause him to lose his job, the income from which is vitally needed in order for him to help support his sister and her children, the six month term of incarceration imposed by the trial judge should be set aside and vacated.

We find no merit in the defendant’s contentions. It is quite evident from the transcript of the sentencing proceedings that the district judge carefully and fairly considered the provisions of La.C.Cr.P. 894.1 in reaching his decision concerning the sentence to be imposed upon the defendant. Considering the fact that the defendant could conceivably have been sentenced to a term of ten years imprisonment under La. R.S. 14:93, we can hardly view a six month jail term excessive under the facts of this case.

From a legal standpoint we are also unpersuaded by the defendant’s assertion that members of his family will suffer financial hardship if he is forced to go to jail. Unfortunately, the possibility of job loss and financial difficulties is confronted by virtually any individual who may be facing a jail sentence. We have discovered no unusual or extenuating circumstances in this situation which warrant mitigation of the defendant’s sentence on this account.

Finally, under the standard enunciated in Sepulvado, supra, we are unable to find any manifest abuse of discretion in the decision of the district judge to impose a six month jail term upon the defendant. Thus, we will not disturb the sentence on appeal.

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

AFFIRMED.

DOMENGEAUX, Judge,

concurring.

Although I authored the majority opinion, I again feel that it is necessary to reiterate the position that I stated previously in my concurring opinions in State v. Goodman, 427 So.2d 529 (La.App. 3rd Cir.1983), and State v. Vallare, 430 So.2d 1336 (La.App. 3rd Cir.1983), writ denied. Therein I espoused the position that our new Constitution does not provide for nor mandate judicial review of sentences which fall within the limits set by the respective criminal statutes, contrary to the dictates of our Supreme Court in State v. Sepulvado. Once again, I reiterate that Article 1, Section 20 of the Louisiana Constitution of 1974 restricts appellate review specifically to laws which impose excessive sentences.

However, in a startling development, the United States Supreme Court, in a 5 to 4 decision, has seen fit to justify appellate review of sentences under the Cruel and Unusual Punishments clause of the Eighth Amendment of the United States Constitution. See Solem v. Helm,-U.S.-, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983). In that case, the defendant had been sentenced to life imprisonment without benefit of parole under the South Dakota “recidivist statute” for commission of his seventh nonviolent felony — passing a worthless check. The Supreme Court determined “... as a matter of principle that a criminal sentence must be proportionate to the crime for which the defendant has been convicted ....”, and thereby held that the defendant’s sentence was grossly disproportionate to his crime, and that the sentence was prohibited by the Eighth Amendment.

While my previous views on Sepulvado and its interpretation of our own Constitution are not compromised in any way by the Solem decision, I nevertheless feel that it is necessary for me to address the issues discussed in Solem insofar as their potential impact on our state criminal justice system is concerned.

In Solem, Justice Powell, writing for the majority, developed the following criteria to be employed by a Court in determining whether or not a criminal sentence is proportionate to the crime for which the defendant has been convicted.

“In sum, a court’s proportionality analysis under the Eighth Amendment should be guided by objective criteria, including (i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions.”

However, in a scathing dissenting opinion by Chief Justice Burger, joined by Justice White, Justice Rehnquist, and Justice O’Connor, the Chief Justice perceptively challenged the “proportional analysis” adopted by the majority:

“The Court’s traditional abstention from reviewing sentences of imprisonment to ensure that punishment is ‘proportionate’ to the crime is well founded in history, in prudential considerations, and in traditions of comity. Today’s conclusion by five Justices that they are able to say that one offense has less ‘gravity’ than another is nothing other than a bald substitution of individual subjective moral values for those of the legislature. Nor, as this case well illustrates, are we endowed with Solomonic wisdom that permits us to draw principled distinctions between sentences of different length for a chronic ‘repeater’ who has demonstrated that he will not abide by the law.
The simple truth is that ‘(n)o neutral principle of adjudication permits a federal court to hold that in a given situation individual crimes are too trivial in relation to the punishment imposed.’ Rummel v. Estelle, 568 F.2d 1193, 1201-1202 (CA5) (Thornberry, J., dissenting), vacated, 587 F.2d 651 (CA5 1979) (en banc), aff’d, 445 U.S. 263 [100 S.Ct. 1133, 63 L.Ed.2d 382] (1980). The apportionment of punishment entails, in Justice Frankfurter’s words, ‘peculiarly questions of legislative policy.’ Gore v. United States, 357 U.S. 386, 393 [78 S.Ct. 1280, 1284, 2 L.Ed.2d 1405] (1958). Legislatures are far better equipped than we are to balance the competing penal and public interests and to draw the essentially arbitrary lines between appropriate sentences for different crimes.
By asserting the power to review sentences of imprisonment for excessiveness the Court launches into uncharted and unchartable waters. Today it holds that a sentence of life imprisonment, without the possibility of parole, is excessive punishment for a seventh allegedly ‘nonviolent’ felony. How about the eighth ‘nonviolent’ felony? The ninth? The Twelfth? Suppose one offense was a simple assault? Or selling liquor to a minor? Or statutory rape? Or price-fixing? The permutations are endless and the Court’s opinion is bankrupt of realistic guiding principles. Instead, it casually lists several allegedly ‘objective’ factors and arbitrarily asserts that they show respondent’s sentence to be ‘significantly disproportionate’ to his crimes. Ante, [103 S.Ct.] at 3016. Must all these factors be present in order to hold a sentence excessive under the Eighth Amendment? How are they to be weighed against each other? Suppose several States punish severely a crime that the Court views as trivial or petty? I can see no limiting principle in the Court’s holding.
There is a real risk that this holding will flood the appellate courts with cases in which equally arbitrary .lines must be drawn. It is no answer to say that appellate courts must review criminal convictions in any event; up to now, that review has been on the validity of the judgment, not the sentence. The vast majority of criminal cases are disposed of by pleas of guilty, and ordinarily there is no appellate review in such cases. To require appellate review of all sentences of imprisonment — as the Court’s opinion necessarily does — will ‘administer the coupe de grace to the courts of appeal as we know them’. H. Friendly, Federal Jurisdiction: A General View 36 (1973). This is judicial usurpation with a vengeance; Congress has pondered for decades the concept of appellate review of sentences and has hesitated to act.”

It is interesting to note that in Solem, Justice Powell was compelled to distinguish the Supreme Court’s previous holding in Rummel v. Estelle, 445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980), in which the Court, in a 5 to 4 decision,.had determined that a mandatory life sentence imposed upon the defendant pursuant to the provisions of the Texas “recidivist statute” for commission of a third non-violent felony did not constitute cruel and unusual punishment under the Eighth Amendment of the U.S. Constitution. Justice Powell drew the distinction between the two cases merely upon the proposition that the defendant’s sentence in Rummel was subject to the possibility of parole, while Helm’s sentence in Solem was not subject to parole and could be reduced only by “an ad hoc exercise of executive clemency”.

However, in his dissent in Solem, Chief Justice Burger correctly challenged Justice Powell’s distinction of the Rummel case, in which the defendant had been previously convicted of fraudulent use of a credit card to obtain $80.00 worth of goods and services and passing a forged check in the amount of $28.36, before being convicted of a third felony, obtaining $120.75 by false pretenses. Chief Justice Burger stated in his dissent:

“The differences between this case and Rummel are insubstantial. First, Rum-mel committed three truly nonviolent felonies, while respondent, as noted at the outset, committed seven felonies, four of which cannot fairly be characterized as ‘nonviolent’. At the very least, respondent’s burglaries and his third-offense drunk driving posed real risk of serious harm to others. It is sheer fortuity that the places respondent burglarized were unoccupied and that he killed no pedestrians while behind the wheel. What would have happened if a guard had been on duty during the burglaries is a matter of speculation, but the possibilities shatter the notion that respondent’s crimes were innocuous, inconsequential, minor, or ‘nonviolent’. Four of respondent’s crimes, I repeat, had harsh potentialities for violence. Respondent, far more than Rummel, has demonstrated his inability to bring his conduct into conformity with the minimum standards of civilized society. Clearly, this difference demolishes any semblance of logic in the Court’s conclusion that respondent’s sentence constitutes cruel and unusual punishment although Rummel’s did not.”

The four dissenters in Rummel, Justice Powell, Justice Brennan, Justice Marshall, and Justice Stevens, were all members of the majority in Solem. However, in a rather curious anomaly, Justice Blackmun, who had voted with the majority in Rummel, decided to change his prior position and joined Justices Powell, Brennan, Marshall, and Stevens, in the majority decision in Solem. Thus, Justice Blackmun’s unexplained “change of heart” proved to be the key vote in the Solem decision, and thereby effectively paved the way for appellate review of criminal sentences pursuant to the Eighth Amendment of the U.S. Constitution.

Nevertheless, I am in full agreement with the dissenters in Solem, and their challenge of the majority’s assertion of power to review criminal sentences for excessiveness. Respectfully, I would add that in my opinion, the key issue in Solem was not whether or not the defendant’s individual sentence was excessive, but whether or not the South Dakota recidivist statute was unconstitutional. As shown in the majority opinion, the defendant’s sentence was clearly within the limits provided by law. Therefore, if the defendant’s term of incarceration is viewed to be excessive in light of the lack of severity of the crimes committed, then the problem lies with the law which allows such sentence, rather than merely with the sentence itself. Such laws should be compelled to survive constitutional muster, instead of forcing appellate courts to make erratic value judgments on sentences falling within the purview of the law.

This view is of course consistent with the arguments I propounded in Goodman and Vallare. But more importantly, it is consistent with the proposition expressly recognized in the dissenting opinion in Solem that “... legislatures are far better equipped than we are to balance the competing penal and public interest and to draw the essentially arbitrary lines between appropriate sentences for different crimes.”

Unfortunately, the risk noted by Chief Justice Burger that Solem “... will flood the appellate courts with cases in which equally arbitrary lines must be drawn ...” has already become reality in the Louisiana Courts of Appeal due to the holding of our Supreme Court in Sepulvado. The U.S. Supreme Court’s decision in Solem will almost certainly exacerbate what has already become a critical situation in the criminal justice system of our State.

       For the reasons stated therein, the author of this opinion has also filed a concurring opinion.

      . La.R.S. 14:93 provides:
      “Cruelty to juveniles is the intentional or criminally negligent mistreatment or neglect, by anyone over the age of seventeen, of any child under the age of seventeen whereby unjustifiable pain or suffering is caused to said child. Lack of knowledge of the child’s age shall not be a defense.
      Whoever commits the crime of cruelty to juveniles shall be fined not more than one thousand dollars, or imprisoned for not more than ten years, with or without hard labor, or both.”

      . La. Const. Art. 1, Section 20 provides:
      “No law shall subject any person to euthanasia, to torture, or to cruel, excessive, or unusual punishment. Full rights of citizenship shall be restored upon termination of state and federal supervision following conviction for any offense.”

      .Not all are in agreement with this authority of appellate courts to review such excessive sentences. In particular, see this writer’s concurring opinions in State v. Goodman, 427 So.2d 529 (La.App. 3rd Cir.1983), and State v. Vallare, 430 So.2d 1336 (La.App. 3rd Cir.1983), writ denied, as well as the concurring opinion filed herein. Also, see Sepulvado, supra, at page 773 (Marcus, J., dissenting); State v. Tilley, 400 So.2d 1363, 1368 (La.1981) (Marvin, Justice Ad Hoc, dissenting); State v. Touchet, 372 So.2d 1184, 1185 (La.1979) (Summers, J., dissenting); and State v. Lewis, 430 So.2d 1286 (La.App. 1st Cir.1983) (Lottinger, Cole and Carter, JJ., Specially Concurring). Notwithstanding these views, however, the Sepulvado opinion remains the position taken by our Supreme Court.


author: FORET, Judge. DOMENGEAUX, Judge,

text:
    STATE of Louisiana, Appellee, v. Fred W. STROUD, Appellant.
    No. CR83-24.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 12, 1983.

      J. Michael Small and Kathrine S. Williamson, Small, Small, Williamson & Broca-to, Alexandria, for appellant.

      Joseph P. Beck, II, Dist. Atty., and James M. Buck, Asst. Dist. Atty., Colfax, for ap-pellee.
    Before DOMENGEAUX, FORET and YELVERTON, JJ.
   FORET, Judge.

Fred W. Stroud (defendant) was charged by bill of information with possession of marijuana with intent to distribute, and with the illegal production (cultivation) of marijuana. Pursuant to a plea bargain agreement, defendant plead guilty to the former charge, and the latter was dismissed. After completion of a pre-sentence investigation, the trial court sentenced defendant to serve a term of three years at hard labor and ordered him to pay a fine of $1,000.

ASSIGNMENTS OF ERROR

(1) The trial court erred in denying defendant’s motion to suppress the evidence.
(2) The trial court erred in imposing an excessive sentence on defendant in violation of LSA-Const. Art. 1, § 20.
(3) The trial court erred in failing to comply with the sentencing guidelines contained in LSA-C.Cr.P. Article 894.1.

FACTS

Adrian Lamkin, a Grant Parish Sheriff’s Deputy, testified at the hearing held on defendant’s motion to suppress. He stated that he began his investigation of defendant’s activities after receiving information from certain confidential informants that marijuana was being sold from defendant’s home in Dry Prong. On April 23, 1982, he was contacted by one of his informants who told him that he had seen marijuana in defendant’s home within the previous twenty-four hours. Based on this information, Deputy Lamkin prepared an affidavit and presented it to Judge Robert Jackson of the Ninth Judicial District Court (Rapides Parish). After reviewing the affidavit, Judge Jackson issued a search warrant authorizing a search of defendant’s home (and any outbuildings or immovables) for marijuana.

Deputy Lamkin and another deputy, who had accompanied him to Alexandria, then returned to Grant Parish. They picked up a third deputy and proceeded to defendant’s home where they conducted a search of the premises. They found two partially burnt marijuana cigarettes in the house itself. In a storage shed behind the house, the officers found eight packages (lids) of marijuana hidden in an ice chest. They also found marijuana plants growing in several different locations on defendant’s property. After seizing this evidence, defendant and his wife were arrested.

ASSIGNMENT OF ERROR NUMBER 1

Defendant filed a motion to suppress the evidence. A review of that motion indicates that it was based on two grounds. The first was that the affidavit (on which the search warrant issued) failed to state with sufficient particularity the underlying facts and circumstances necessary to enable an independent magistrate to make a determination of whether or not probable cause existed to believe that marijuana would be found on defendant’s property. The second was that the affidavit failed to establish the reliability of the confidential informant, who had provided Deputy Lamkin with the information contained therein.

After conducting a hearing on the motion, the trial court denied it, finding that, “... from the evidence presented here today ... there is probable cause ... to uphold the search warrant ... ”. Defendant then entered into the plea bargain agreement, but reserved his right to appeal from the adverse ruling on his motion.

In his brief filed in this Court, defendant concedes that the affidavit describes the premises to be searched with sufficient particularity, and that the credibility of the informant is adequately supported therein. His sole contention is that the information contained in the affidavit is insufficient to constitute probable cause for the issuance of a search warrant.

The facts necessary to show probable cause may be established by hearsay evidence. Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960); State v. Jeffcoat, 403 So.2d 1227 (La.1981); State v. Paciera, 290 So.2d 681 (La.1974).

Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), set forth the constitutional requirements for obtaining a state search warrant, when an affidavit is based on hearsay information rather than the direct personal observations of the affi-ant. Aguilar stated that:

“... the magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed, see Rugendorf v. United States, 376 U.S. 528, 84 S.Ct. 825 [11 L.Ed.2d 887], was ‘credible’ or his information ‘reliable.’
378 U.S., at 114, 84 S.Ct., at 1513.

In Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), the Court granted certiorari: “Believing it desirable that the principles of Aguilar should be further explicated, ... ”. Spinelli then went on “... to delineate the manner in which Aguilar’s two-pronged test should be applied ... ”. Ultimately, Spinelli found that the information contained in the affidavit before the Court was insufficient to support a finding of probable cause. Spi-nelli stated that:

“Applying these principles to the present case, we first consider the weight to be given the informer’s tip when it is considered apart from the rest of the affidavit. It is clear that a Commissioner could not credit it without abdicating his constitutional function. Though the affi-ant swore that his confidant was “reliable,” he offered the magistrate no reason in support of this conclusion. Perhaps even more important is the fact that Aguilar’s other test has not been satisfied. The tip does not contain a sufficient statement of the underlying circumstances from which the informer concluded that Spinelli was running a bookmaking operation. We are not told how the FBI’s source received his information — it is not alleged that the informant personally observed Spinelli at work or that he had ever placed a bet with him. Moreover, if the informant came by the information indirectly, he did not explain why his sources were reliable. Cf. Jaben v. United States, 381 U.S. 214, 85 S.Ct. 1365, 14 L.Ed.2d 345 (1965). In the absence of a statement detailing the manner in which the information was gathered, it is especially important that the tip describe the accused’s criminal activity in sufficient detail that the magistrate may know that he is relying on something more substantial than a casual rumor circulating in the underworld or an accusation based merely on an individual’s general reputation.”
393 U.S., at 416, 89 S.Ct., at 589.

The Aguilar-Spinelli test remained the standard by which state search warrants were measured until the ruling of the court in Illinois v. Gates,-U.S.-, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).

In Gates, the Bloomingdale (Illinois) Police Department received by mail an anonymous hand-written letter informing them that a couple by the name of Sue and Lance Gates (who lived at a certain address specified in the letter) were involved in drug trafficking. The letter went on to detail the couple’s method of obtaining the drugs they were selling, and stated that on a certain date they would be obtaining drugs in Florida by this method. By investigation, various law enforcement agencies corroborated the details of the letter, and a search warrant was obtained. When the couple returned to their home in Bloomingdale, the police met them. A search of their vehicle uncovered approximately 350 pounds of marijuana, and a search of their home revealed more marijuana, weapons, and other contraband.

The Illinois trial court subsequently granted the couple’s motion to suppress this evidence, and the Illinois Appellate Courts affirmed that decision. However, Gates reversed the decisions of the lower courts. Gates noted a number of reasons for doing so, and for abandoning the test of Aguilar-Spinelli. Gates then stated:

“For all these reasons, we conclude that it is wiser to abandon the “two-pronged test” established by our decisions in Aguilar and Spinelli.11 In its place we reaffirm the totality of the circumstances analysis that traditionally has informed probable cause determinations. See Jones v. United States, supra; United States v. Ventresca [380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684], supra; Brinegar v. United States [338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879], supra. The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a “substantial basis for ... concluding]” that probable cause existed. Jones v. United States, supra, 362 U.S., at 271, 80 S.Ct., at 736. We are convinced that this flexible, easily applied standard will better achieve the accommodation of public and private interests that the Fourth Amendment requires than does the approach that has developed from Aguilar and Spinelli.”
103 S.Ct., at 2332.

Thus, Gates provides the standard by which defendant’s claim (that his rights under the Fourth Amendment to the U.S. Constitution were violated) must be decided. The affidavit with which we are concerned states, in pertinent part, that:

“On April 23, 1982, your affiant, Deputy Adrian Lamkin of the Grant Parish Sheriff’s Department, was contacted by a proven reliable and confidential informant who related to your affiant the following information: Within the past twenty-four hours, your informant has been legally within the above described residence and while there did see a quantity of substance the informant know[sic] to be marijuana ... The informant is familiar with the drug marijuana due to informants[sic] prior association with the drug during the past year.”

It is our opinion that, under Gates, the trial court had a substantial basis for concluding that probable cause existed to believe that marijuana would be found on defendant’s property. The informant claimed to have seen the marijuana. This provided an adequate basis to insure that the informant, if credible (defendant has conceded that the affidavit adequately supported the informant’s credibility), obtained his information by personal observation, and not through mere rumor. Thus, not only does the affidavit pass the “totality of the circumstances” test set forth in Gates, but also the Aguilar-Spinelli test.

We specifically note that defendant also claims that his rights under LSA-Const. Art. 1, § 5, were violated by the search of his property and the' seizure of evidence therefrom. In State v. Duncan, 420 So.2d 1105 (La.1982), the Court used the Aguilar-Spinelli test to analyze a defendant’s claim that his rights under LSA-Const. Art. 1, § 5, were violated by the use of an anonymous informants information in obtaining a search warrant. Under the facts and circumstances of this case, we need not, and do not, decide whether Gates will now be the standard for testing a defendant’s claim that his rights under LSA-Const. Art. 1, § 5, were violated, when information provided by an anonymous informer is contained in an application for a search warrant. It is sufficient to state that the affidavit in this case was adequate under either standard or test.

However, defendant makes much of the fact that the affidavit simply states that the informant saw a “quantity of substance” (marijuana), rather than setting forth any specific amounts thereof. He argues that such information provides no basis for a magistrate to make a determination that probable cause exists to believe that the marijuana would still be present at the time that the search warrant was executed. In support of his argument, defendant relies on State v. Lewis, 385 So.2d 226 (La.1980), and State v. Boneventure, 374 So.2d 1238 (La.1979). We find these cases to be distinguishable on their facts from the one before us.

In State v. Boneventure, supra, the affidavit recited, in pertinent part, that:

“... said confidental [sic] and reliable informant had occasion to be present at 7164 Meadowpark on or about December 2, 1977 and observed a quantity of green vegetable matter identified and offered for consumption as being marijuana by the occupant of 7164 Meadowpark occupant being Allan Buchanan.”

The application for a search warrant, based on this affidavit, was made on December 4, 1977, and was apparently executed that same day. On page 1239, Bone-venture held that:

“Under the circumstances, as set forth in the affidavit, there was not probable cause to believe that the same consumable amount of marijuana which was offered to a person or persons for consumption approximately two days before remained at the place to be searched. Nor was there probable cause to believe, as opposed to grounds for suspicion, that other marijuana than that offered for consumption could be found at the place to be searched.”

In State v. Lewis, supra, the affidavit recited, in pertinent part, that:

“Affiant, further informs the court that on or about December 7, 1977, he being said confidential and reliable informant had occasion to be in apt. # 133 of the Centurian Arms Apartments, located at 1819 N. Marque Ann and had occasion to see a quantity of green vegetable like substance, which was offered by David Wilson, occupant of the apartment, to above confidential informant as marijuana to smoke which he did and experienced a feeling of euphoria.”

The application for a search warrant based on this affidavit was made on December 9, 1977, and the warrant was executed on December 12, 1977. However, the law enforcement officer who obtained the search warrant admitted that as much as a week might have passed between the time that the informant observed, was offered, and smoked the marijuana, and the date on which the search warrant was obtained. Lewis found that:

“When the warrant in this case was executed, three days after the informant told the officer of his observation and possibly as much as ten days after he actually observed and smoked the marijuana at defendant’s apartment, there could be no reasonable belief that the marijuana offered to and consumed by the informant remained in the defendant’s apartment.”

To the contrary, in the case before us, the affidavit stated that the confidential informant had seen marijuana in defendant’s home within twenty-four hours preceding the date on which it was executed. In addition, the affidavit was presented to the magistrate, the search warrant was issued, and the search was conducted on that same date. Thus, at the time that the affidavit was presented to the magistrate, there was a reasonable basis for the conclusion that the drug would not be disposed of before a search could be conducted. See State v. Roubique, 421 So.2d 859 (La.1982).

Finally, defendant argues that the marijuana found in the storage shed should be suppressed because the affidavit contains no information to indicate that it would be found there. In essence, defendant argues that there was no probable cause to believe that marijuana was in the storage shed. We find no merit in defendant’s argument.

The search warrant in this case authorizes a search of “... a woodframe dwelling, white color, located 4.15 miles on Hwy. 123 from it’s [sic] intersection with Hwy. 8, travelling in north easterly direction toward US 167. House located on the left following these directions. This will include any outbuildings or immovables’’ (Emphasis ours.)

State v. Roach, 322 So.2d 222 (La.1975), held, on page 226, that:

“In any event, a search warrant authorizing the search of the ‘premises’ at a stated address must reasonably be interpreted to permit a search of the dwelling house proper, the garage, and any other outbuildings within close proximity of the house proper that one normally associates with and includes within the word ‘house’ or ‘premises.’ United States v. Long, 449 F.2d 288 (8th Cir.1971), cert. denied, 405 U.S. 974, 92 S.Ct. 1206, 31 L.Ed.2d 247 (1972); Fine v. United States, 207 F.2d 324 (6th Cir.1953), cert. denied, 346 U.S. 923, 74 S.Ct. 310, 98 L.Ed. 417 (1954); State v. Brochu, 237 A.2d 418 (Me.1967).”

This assignment of error lacks merit.

ASSIGNMENTS OF ERROR NUMBERS 2 AND 3

By these assignments of error, defendant contends that the trial court imposed an excessive sentence on him in violation of LSA-Const. Art. 1, § 20, and that it failed to comply with the sentencing guidelines contained in LSA-C.Cr.P. Article 894.1.

LSA-C.Cr.P. Article 894.1 sets forth guidelines to follow in imposing sentence and mandates that the trial court state for the record the considerations taken into account and the factual basis for its conclusions in imposing sentence in order to insure that each sentence is individualized to the offender and the offense. State v. McDonald, 414 So.2d 735 (La.1982); State v. Bourgeois, 406 So.2d 550 (La.1981); State v. Jones, 398 So.2d 1049 (La.1981). The trial judge need not articulate every aggravating and mitigating circumstance; however, the record must reflect that he adequately contemplated the guidelines in LSA-C.Cr.P. Article 894.1. State v. McDonald, supra; State v. Grey, 408 So.2d 1239 (La.1982); State v. Franks, 373 So.2d 1307 (La.1979), certiorari denied, 450 U.S. 983, 101 S.Ct. 1520, 67 L.Ed.2d 818 (1981).

In the case sub judice, the trial court entered in the record written reasons for sentencing. It first noted the circumstances surrounding defendant’s arrest and his subsequent plea of guilty to one of the charges against him. The trial court then went on to state that it found that a number of mitigating factors existed on behalf of defendant. These included the following: that defendant had no prior history of delinquency or criminal activity; that defendant had earned a reputation in his community as a hard worker, a strong provider for his family, and a caring father for his children; that, during his past service with the U.S. Navy, defendant had distinguished himself as having been a responsible and disciplined sailor, and had won many commendations for his conduct; and, that defendant was not particularly in need of correctional treatment or a custodial environment, and that he was likely to respond affirmatively to probationary treatment.

On the other hand, the trial court found that several other factors and circumstances militated against probation, or a suspended or lesser sentence. These included the following: that the conduct for which defendant was convicted causes serious harm to individuals in the community; that defendant must have contemplated that these serious harms would result from his conduct; that the “victims” of defendant’s crime had not facilitated or induced defendant’s conduct, nor could he compensate all of these “victims” for the harm he had caused; that, although defendant is only 27 years old, married, and raising two young sons, a period of imprisonment would not impose excessive hardship for his family or himself; and, to impose less than the sentence given would deprecate the seriousness of defendant’s crime.

It is obvious that the trial court adequately complied with the sentencing guidelines of LSA-C.Cr.P. Article 894.1; therefore, this Court’s review is limited to a determination of whether the trial court abused its sentencing discretion. See State v. McDonald, supra; State v. Bourgeois, supra; State v. Bosworth, 415 So.2d 912 (La.1981).

The maximum penalty for possession of marijuana with intent to distribute is imprisonment at hard labor for ten years and a fine of $15,000. See LSA-R.S. 40:966(B)(2). Even though within the statutory limit, a sentence may violate a defendant’s constitutional right against excessive punishment. State v. McDonald, supra; State v. Sepulvado, 367 So.2d 762 (La.1979). Finally, while a trial court is given wide discretion in the imposition of sentences within statutory limits, and the sentence imposed will not be set aside as excessive in the absence of an abuse of that discretion, the trial court does not have unbridled discretion in imposing sentence. State v. Tilley, 400 So.2d 1363 (La.1981); State v. Sepulvado, supra.

As noted above, the purpose of LSA-C. Cr.P. Article 894.1 is to provide the trial judge with guidelines so that he may individualize the sentence, to fit the particular defendant, considering his background and the offense committed. In this regard, we are disturbed by the following comment of the trial court on the fact that twenty-seven people saw fit to address letters to the court attesting to defendant’s honesty, good character, willingness to work hard, his expressions of remorse for the crime he committed and his realization of the serious nature of that crime:

“BY THE COURT: Of course, I’ve got a mean job to do and I’m going to do my job. But I just wanted to let you know a lot of people write letters to the Court and then they’ll call the Court up and say, don’t pay any attention to that letter. You understand that?
BY MR. STROUD: Yes, sir.
BY THE COURT: I’m not saying it happened in this case but there’s lots of cases that they do that. You go around and ask them to sign a letter.”

To us, this comment indicates that the judge may have allowed his experience with others to influence his judgment concerning this defendant, something which LSA-C.Cr.P. Article 894.1 is designed to prevent. Also, the following comment indicates to us that the judge allowed his own personal feelings toward the crime committed by defendant to interfere with his duty to individualize the sentence:

“BY THE COURT: One charge has been dropped against you. Of course, that’s ... but possession of marijuana with intent to distribute is personally ... I have a horror of that particular crime, selling that stuff out, your distribution. You understand that?” (Emphasis ours.)

Finally, we disagree with the trial court’s assessment of one of the circumstances it considered in imposing sentence on defendant, while agreeing that all of the mitigating factors noted by it are present and supported by the evidence. It is clear to us that the imprisonment of defendant would place a substantial hardship on his family. Defendant’s two stepsons are Jamie, age 6, and Kenneth, age 4. Young boys such as these need a father to help with their upbringing, and there is every indication in the record that defendant is raising them in a wholesome environment.

The articulation by the trial judge revealed that he reached this unfounded conclusion from the facts considered in imposing sentence. Since the sentence was apparently severe, the unfounded conclusion must be pointed out. See State v. Forshee, 395 So.2d 742 (La.1981), Justice Lemmon concurring (395 So.2d, at 745).

A harsh sentence for a first offender involved in the possession or sale of a small quantity of contraband may be excessive under certain circumstances. State v. McDonald, supra; State v. Grey, supra; State v. Tilley, supra. The evidence shows that defendant was found to be in possession of less than eight ounces of marijuana and nine marijuana plants.

It is our opinion that a sentence of probation will not deprecate the seriousness of defendant’s crime and we believe (as stated by the trial court) that defendant is particularly likely to respond affirmatively to probationary treatment.

Under the circumstances present in this case, we find that the sentence imposed on defendant, that he serve a term of three years imprisonment at hard labor, is excessive. However, we also find that the fine of $1,000 imposed on defendant as part of his sentence is not excessive, and we will affirm that part of the sentence.

DECREE

For the above and foregoing reasons, defendant’s sentence to a term of three years imprisonment at hard labor is hereby vacated, and the case is remanded to the trial court for re-sentencing in accordance with the views expressed herein. Defendant’s sentence that he pay a fine of $1,000 is hereby affirmed.

SENTENCE VACATED IN PART, AFFIRMED IN PART, AND REMANDED TO THE TRIAL COURT FOR RESEN-TENCING.

DOMENGEAUX, J., concurs in part and dissents in part and assigns reasons.

DOMENGEAUX, Judge,

concurring in part and dissenting in part.

I concur in the treatment of assignments one (1) and three (3). I strongly disagree with the treatment of assignment two (2).

With all due respect, I suggest that the majority opinion places excessive emphasis on some of the utterings of the trial judge at the time that defendant was sentenced. The comments of the trial judge should not detract from the fact that the sentence imposed was well within statutory limits, certainly should not shock any of us, is not unfair, is not abusive of the district judge’s wide discretion, and certainly is not excessive within the contemplation of Louisiana Constitution Article 1, Section 20. Although this defendant pleaded guilty to only one charge via plea bargain, the majority should not lose sight of the fact that the defendant was engaged in a pretty good little operation, i.e., evidence of marijuana cigarette smoking in his house and eight packages of marijuana hidden in an ice chest in an outhouse, all of which was compounded by a marijuana planting and growing operation on defendant’s property. He could have gotten hard labor for ten years on his plea bargain, but only got three. If we start (or continue) to whittle sentences under the guise of excessiveness, we might as well eliminate the legislative prerogative of establishing indeterminate sentences, and leave the sentencing process to the whims and caprices of appellate judges.

Of course I do not relent from the position that I have previously taken on the question of sentence review for excessiveness as set out in my concurring opinions in State v. Goodman, 427 So.2d 529 (La.App. 3rd Cir.1983); State v. Vallare, 430 So.2d 1336 (La.App. 3rd Cir.1983), writ denied; and State v. Shelby, 438 So.2d 1166 (La.App. 3rd Cir.1983), handed down by this Court on this date.

      . Both charges constitute violations of LSA-R.S. 40:966(A).

      . See LSA-R.S. 40:966(B)(2).

      . Pursuant to the plea bargain agreement entered into by defendant and the State, defendant’s wife, Rhonda T. Stroud, was allowed to plead guilty to a reduced charge of simple possession of marijuana. Mrs. Stroud was sentenced to a term of six months in the parish jail (suspended), and was ordered to pay a fine of $500.00 (in default of which she was to serve a term of ninety days in the parish jail).

      . See State v. Crosby, 338 So.2d 584 (La.1976).

      . Jones v. United States, supra, was overruled on other grounds in United States v. Salvucci, 448 U.S. 83, 100 S.Ct. 2547, 65 L.Ed.2d 619 (1980).

      . See 385 So.2d, at 229.

      . See also State v. Michel, 422 So.2d 1115 (La.1982).

      . See State v. Tilley, supra.


text:
    STATE of Louisiana, Appellee, v. Jerry CARPENTER, Appellant.
    No. CR83-94.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 12, 1983.
    David L. Wallace, Evans, Bradley, Wallace & O’Neal, DeRidder, for appellant.
    W.C. Pegues, III, Dist. Atty., DeRidder, for appellee.
    Before DOMENGEAUX, FORET and YELVERTON, JJ.
   FORET, Judge.

Jerry Carpenter (defendant) was charged by bill of information with one count of simple escape. He initially entered a plea of not guilty to the charge, but subsequently changed his plea to guilty. After completion of a cursory pre-sentence investigation, the trial court sentenced defendant to a term of three years at hard labor to run consecutively to any sentence which defendant was presently serving. Defendant seeks review of his sentence.

ASSIGNMENT OF ERROR

(1) The trial court erred in imposing an excessive sentence on defendant in violation of LSA-Const., Art. 1, § 20.

FACTS

The record indicates that on the night of June 27, 1982, defendant and two companions escaped from LCIS (See footnote 1). Within two days, all three were apprehended without incident and were returned to the facility.

ASSIGNMENT OF ERROR NUMBER 1.

Defendant contends that the trial court erred in imposing an excessive sentence on him in violation of LSA-Const., Art. 1, § 20. He presents a number of arguments in support of this contention.

Defendant first argues that the trial court improperly considered the fact that a knife was found in the area where defendant and one of the other escapees were captured. We find no merit in defendant’s argument.

The source of information from which a sentencing court may draw are extensive, and traditional rules of evidence are not bars to consideration of otherwise relevant information. State v. Washington, 414 So.2d 313 (La.1982); State v. Douglas, 389 So.2d 1263 (La.1980). Certainly, information indicating that defendant may have attempted to arm himself following his escape was relevant, and was properly considered by the trial court in performing its sentencing function.

Defendant next argues that the trial court made no mention of defendant’s record while confined at LCIS, and that he had no disciplinary problems there that could have provided a basis for the sentence imposed on him. We disagree.

At the sentencing hearing, the trial court stated, with respect to defendant, that:

“You have apparently had a rather rebellious, defiant attitude from some of the disciplinary write-ups.”

In addition, the pre-sentence investigation report indicates that defendant immediately began to amass a formidable list of violations upon his arrival at LCIS. For these violations, defendant lost thirty days of Good Time, earned four days of extra duty, and spent twenty days in isolation. Since his escape, a recommendation has been made that he be transferred to a facility providing a higher level of security.

Finally, defendant argues that the trial court erred in imposing sentence on him and his two companions at the same hearing. He argues that by doing so the trial court was exposing each defendant to any possible prejudice the court may have felt toward one or more of the other defendants. He notes that the first defendant to be sentenced, James Pyron, became unruly during the proceedings, and eventually had to be bound and gagged for directing obscene remarks toward the trial court.

In his brief filed in this Court, defendant admits that he did not object to the sentencing hearing being held in this manner. In any event, there is no merit to defendant’s argument. A review of the transcript of that hearing does not show that Pyron’s objectionable behavior had any effect on the trial court’s sentencing of defendant.

The maximum sentence for a simple escape committed under the circumstances present in this case is imprisonment with or without hard labor for not more than five years; provided that such sentence shall not run concurrently with any other sentence. See LSA-R.S. 14:110.

The trial judge is given 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 that discretion. State v. Washington, supra; State v. Abercrumbia, 412 So.2d 1027 (La.1982).

In view of defendant’s prior criminal activity, the fact that he was in the custody of the Department of Corrections at the time he committed the instant offense, and the record of violations he amassed while in the custody of said Department, we do not consider a sentence of three years at hard labor to be “grossly out of proportion to the severity of the crime”. State v. Williams, 397 So.2d 1287 (La.1981). Hence, the sentence imposed is not excessive, and the trial judge did not abuse his discretion in imposing it.

Assignment of Error Number 1 is without merit.

DECREE

For the reasons assigned, defendant’s sentence is affirmed.

AFFIRMED.

DOMENGEAUX, J., concurs and assigns brief reason.

DOMENGEAUX, Judge,

concurring.

I agree completely with the majority opinion which affirms defendant’s sentence. I file this special concurring opinion, however, feeling that the Louisiana Constitution does not provide for nor mandate judicial review of sentences which fall within the limits set by the respective criminal statutes. See my concurring opinions in State v. Goodman, 427 So.2d 529 (La.App. 3rd Cir.1983); State v. Vallare, 430 So.2d 1336 (La.App. 3rd Cir.1983), writ denied; State v. Shelby, Jr., 438 So.2d 1166 (La.App. 3rd Cir.1983), handed down this date.

      . At the time of his escape, defendant was serving a term of five years at hard labor in the La. Correctional & Industrial School (LCIS), located near DeQuincy, after having been convicted of three counts of armed robbery by the 19th Judicial District Court (East Baton Rouge Parish). Thus, because of his escape from that facility, defendant was charged with a violation of LSA-R.S. 14:110(A)(1), which provides:
      “§ 110. Simple escape; aggravated escape A. Simple escape is:

        (1) The intentional departure, under circumstances wherein human life is not endangered, of a person imprisoned, committed, or detained, from a place where such person is legally confined or from a designated area of a place where such person is legally confined or from the lawful custody of any law enforcement officer or officer of the Department of Corrections;”

      . See LSA-R.S. 14:110.


text:
    STATE of Louisiana, Plaintiff-Appellee, v. James Michael PYRON, Defendant-Appellant.
    No. CR83-96.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 12, 1983.

      David L. Wallace, Evans, Bradley, Wallace & O’Neal, DeRidder, for defendant-appellant.
    W.C. Pegues, III, Dist. Atty., DeRidder, for plaintiff-appellee.
    Before DOMENGEAUX, FORET and YELVERTON, JJ.
   DOMENGEAUX, Judge.

The defendant, James Michael Pyron, was charged by bill of information with one count of simple escape, a violation of La. R.S. 14:110(A). Following the defendant’s plea of not guilty and not guilty by reason of insanity, he was tried before a six member jury, which rendered a verdict of guilty as charged. Subsequently, the trial judge obtained a pre-sentence report on the defendant and thereafter sentenced him to the maximum sentence allowed under the statute, five years at hard labor with the Louisiana Department of Corrections, such sentence to run consecutively to any sentences being presently served. The defendant appeals the sentence imposed by the district court, alleging but one assignment of error, e.g., that the trial court’s sentencing of the defendant to the maximum sentence allowed by law constituted an imposition of an excessive sentence in violation of Article 1, Section 20 of the Louisiana Constitution of 1974.

In State v. Sepulvado, 367 So.2d 762 (La.1979), the Louisiana Supreme Court determined that the imposition of a sentence, although within the statutory limit, may violate a defendant’s constitutional right against excessive punishment that is enforceable on appellate review of his conviction. A sentence has been determined to be constitutionally excessive when the penalty is so disproportionate to the crime as to shock the senses of justice or if it is nothing more than the purposeless and needless imposition of pain and suffering. State v. Goodman, 427 So.2d 529 (La.App. 3rd Cir.1983); State v. Reed, 409 So.2d 266 (La.1982). However, due to the trial judge’s unique position of viewing subjective factors not available on appeal, he is given a wide discretion in the imposition of sentences within statutory limits, and a sentence imposed by him should not be set aside as excessive in the absence of a manifest abuse of his discretion. Sepulvado and Goodman, supra; State v. Howard, 414 So.2d 1210 (La.1982); State v. Bradley, 414 So.2d 724 (La.1982).

The record indicates that the defendant, along with two fellow inmates at the Louisiana Correctional and Industrial School in Beauregard Parish, Louisiana, scaled the fence at that facility on the evening of June 27, 1982. Pyron was later captured in the early morning hours of June 29, 1982, alongside U.S. Highway 171, approximately one-half mile south of Longville, Louisiana.

The facts disclosed by the trial judge during the sentencing proceedings indicate further that the defendant had been previously convicted in Monroe, Louisiana, in 1980, on a charge of simple burglary, for which he received a five year suspended sentence and was put on five years probation. However, his probation was revoked in April, 1982, and he was sent to Louisiana Correctional and Industrial School on June 1,1982. His escape took place some 26 days later.

During the proceedings in which Pyron was sentenced, the district judge noted that he felt that the defendant had put on an act during his trial in order to feign insanity, and tnat he personally felt that Pyron had been trying to perpetrate a fraud on the court. Thereafter, the defendant was allowed to make a statement to the court, and soon, a heated verbal exchange took place between the defendant and the district judge, with the defendant berating the judge with several obscenities. It culminated with the judge ordering the defendant to be gagged in order that sentence could be pronounced.

In support of his assignment of error, the defendant asserts that the trial court carried forth a sentence of five years, rather than a lesser sentence as was given to the other two men who had escaped with him, simply because of his abusive outburst during the sentencing proceedings and because he had chosen to enter a plea of not guilty rather than to plead guilty as his fellow escapees had done. Upon this basis, the defendant concludes that his sentence is excessive and that his case should be remanded for further sentencing proceedings.

We are unable to agree with the defendant’s argument. As was stated earlier, a trial judge’s decision to impose a sentence within statutory limits should not be disturbed on appeal in the absence of a manifest abuse of discretion. Sepulvado, supra. We are unable to find any such manifest abuse in this case. In addition, we note that there is nothing in the law that requires a sentencing judge to treat co-defendants equally. State v. Rogers, 405 So.2d 829 (La.1981).

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

AFFIRMED.

DOMENGEAUX, Judge,

concurring.

Although I authored the majority opinion, I again feel that it is necessary for me to reiterate the position that I stated previously in my concurring opinions in State v. Goodman, 421 So.2d 529 (La.App. 3rd Cir.1983), and State v. Vallare, 430 So.2d 1336 (La.App. 3rd Cir.1983), writ denied, that our new constitution does not provide for nor mandate judicial review of sentences which fall within the limits set by the respective criminal statutes. See also State v. Shelby, 438 So.2d 1166 (La.App. 3rd Cir.1983), handed down by this Court on this date.

       For the reasons stated therein, the author of this opinion has also filed a concurring opinion.

      . Article 1, Section 20 of the La. Const, of 1974 states:
      “No law shall subject any person to euthanasia, to torture, or to cruel, excessive, or unusual punishment. Full rights of citizenship shall be restored upon termination of state and federal supervision following conviction for any offense.”


author: DOMENGEAUX, Judge . DOMENGEAUX, Judge,

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Nathan J. ROBICHEAUX, Defendant-Appellant.
    No. CR83-95.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 12, 1983.

      David L. Wallace, Evans, Bradley, Wallace & O’Neal, DeRidder, for defendant-appellant.
    W.C. Pegues, III, Dist. Atty., DeRidder, for plaintiff-appellee.
    Before DOMENGEAUX, FORET and YELVERTON, JJ.
   DOMENGEAUX, Judge .

Defendant Nathan J. Robicheaux was charged by a bill of information with the crime of simple escape from the Louisiana Correctional and Industrial School, a violation of La.R.S. 14:110(A). The defendant initially entered a plea of not guilty to the charge, but subsequently withdrew such plea and entered a plea of guilty pursuant to an agreement reached between the State and himself whereby the State consented to recommend in return that the court impose the minimum sentence provided by law, that being two years with or without hard labor. The district judge accepted the defendant’s plea, but carefully warned him that the court was not bound or committed to go along with the sentence recommended by the State. Thereafter, pursuant to a pre-sentence investigation, the court sentenced the defendant to three years, rather than two years, at hard labor, with the Louisiana Department of Corrections, such sentence to run consecutively to any sentence being previously served. Defendant challenges this sentence imposed by the trial court, raising one assignment of error, viz, that the trial court erred in imposing an excessive sentence in violation of Article 1, Section 20 of the Louisiana Constitution of 1974.

In State v. Sepulvado, 367 So.2d 762 (La.1979), the Louisiana Supreme Court determined that the imposition of a sentence, although within the statutory limit, may violate a defendant’s constitutional right against excessive punishment that is enforceable on appellate review of his conviction. A sentence has been determined to be constitutionally excessive when the penalty is so disproportionate to the crime as . to shock the senses of justice or if it is nothing more than the purposeless and needless imposition of pain and suffering. State v. Goodman, 427 So.2d 529 (La.App. 3rd Cir.1983); State v. Reed, 409 So.2d 266 (La.1982). However, due to the trial judge’s unique position of viewing subjective factors not available on appeal, he is given a wide discretion in the imposition of sentences within statutory limits, and a sentence imposed by him should not be set aside as excessive in the absence of a manifest abuse of his discretion. Sepulvado and Goodman, supra; State v. Howard, 414 So.2d 1210 (La.1982); State v. Bradley, 414 So.2d 724 (La.1982).

The facts are primarily discerned from the transcript of the sentencing proceedings conducted in the instant case. On June 27,1982, the defendant, aged 19, along with two co-defendants, scaled the fence at the Louisiana Correctional and Industrial School in Beauregard Parish, Louisiana, and disappeared into the woods. Apparently, none of the three were discovered until the morning of June 29, 1982, when they were all found and captured. The defendant, along with one of his fellow escapees was located under the overpass at the intersection of U.S. Highways 171 and 190. After defendant and his co-defendant were taken back into custody, the police officers who arrested them returned to the area under the overpass and conducted a search, whereupon they discovered a kitchen knife. Apparently, there was no proof that the knife was left by either of the defendants, but the district judge found the existence of the knife to be relevant to the situation.

The defendant in the case at hand had been sentenced in May, 1982, to concurrent six year prison terms for various burglary offenses. He arrived at Louisiana Correctional and Industrial School on June 7,1982, and escaped some twenty days later.

In support of his assignment of error, Robicheaux charges that the trial judge was unduly prejudiced at the time that he imposed the defendant’s sentence. According to the record, the defendant and his two co-defendants were all individually sentenced at the same time. As the first of the three defendants, one James Michael Pyron, was being sentenced, he became quite abusive and had to be physically gagged after directing several obscenities towards the Judge. Immediately thereafter, the trial judge proceeded to sentence the other co-defendant and Robicheaux. The defendant thus surmises that the Judge was prejudiced by Pyron’s outbursts at the time that he sentenced him, and thus handed down a stiffer sentence than he would have otherwise imposed, particularly in light of the state’s recommendation that Robi-cheaux receive the minimum sentence allowed by statute.

Additionally, Robicheaux maintains that the Judge improperly took into consideration in determining the appropriate term of incarceration the fact that a knife was found in the vicinity where he and his colleague were captured. He avers that since there was no proof that the knife belonged to either of the two men, that the Judge’s decision was improperly prejudiced by his consideration of such evidence.

We find no merit in the defendant’s contentions. As was stated earlier, a trial judge’s decision to impose a sentence within statutory limits should not be disturbed on appeal in the absence of a manifest abuse of discretion. Sepulvado, supra. We are unable to find any manifest abuse in this case. Thus, we will not disturb the sentence on appeal.

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

AFFIRMED.

DOMENGEAUX, Judge,

concurring.

Although I authored the majority opinion, I again feel that it is necessary for me to reiterate the position that I stated previously in my concurring opinions in State v. Goodman, 427 So.2d 529 (La.App. 3rd Cir.1983), and State v. Vallare, 430 So.2d 1336 (La.App. 3rd Cir.1983), writ denied, that our new constitution does not provide for nor mandate judicial review of sentences which fall within the limits set by the respective criminal statutes. See also State v. Shelby, 438 So.2d 1166 (La.App. 3rd Cir.1983), handed down by this Court on this date.

      For the reasons stated therein, the author of this opinion has also filed a concurring opinion.

      . La.R.S. 14:110(A) provides in pertinent part:
      “Simple escape is:
      (1) The intentional departure, under circumstances wherein human life is not endangered, of a person imprisoned, committed, or detained, from a place where such person is legally confined or from a designated area of a place where such person is legally confined or from the lawful custody of any law enforcement officer or officer of the Department of Corrections;
      Whoever having been sentenced to the Department of Corrections commits the crime of simple escape shall be imprisoned with or without hard labor for not less than two years and not more than five years; provided that such sentence shall not run concurrently with any other sentence, .... ”

      . Article 1, Section 20 of the La. Const, of 1974 states:
      “No law shall subject any person to euthanasia, to torture, or to cruel, excessive, or unusual punishment. Full rights of citizenship shall be restored upon termination of state and federal supervision following conviction for any offense.”