Opinion
No. Cr90-618.
July 15, 1991.
APPEAL FROM 9TH JUDICIAL DISTRICT COURT, PARISH OF RAPIDES, STATE OF LOUISIANA, HONORABLE RICHARD B. WILLIAMS, J.
Harold Murry, Alexandria, for defendant-appellant.
Cliff Strider, Asst. Dist. Atty., Alexandria, for plaintiff-appellee.
Before STOKER, LABORDE and KNOLL, JJ.
Defendant pleaded guilty to one count of possession of a controlled dangerous substance listed in Schedule III, a violation of LSA-R.S. 40:968(C) pursuant to a plea bargain in which the State recommended the sentence run concurrent to any other sentence and agreed to drop two other drug charges. Defendant was sentenced to two years imprisonment at hard labor, to be served concurrent with a one year sentence imposed on defendant for theft. Defendant appeals, contending her sentence is excessive and that the trial court failed to comply with the sentencing guidelines in LSA-C.Cr.P. Art. 894.1. We affirm.
FACTS
On the afternoon of April 29, 1988, the Alexandria Police Department was summoned to the Target store where security personnel had defendant in custody for shoplifting. After arresting defendant, the police searched her purse for weapons, and found three types of pills in containers other than the originals. Subsequent chemical analysis determined that four pills contained butalbital and codeine, another three contained dihydrocodeinone, and the last five pills contained no controlled dangerous substances.
For the possession of four pills which contained butalbital and codeine, the State charged defendant with one count of possession of butalbital and a separate count for possession of codeine. In addition, the State filed a third count in its bill of information charging defendant with possession of three pills containing dihydrocodeinone. All three counts relate to violations of LSA-R.S. 40:968(C).
OPINION
Defendant argues on appeal that her sentence is excessive. We disagree.
Defendant pleaded guilty to possession of butalbital, a violation of LSA-R.S. 40:968(C). Defendant was exposed to a sentencing range of up to five years at hard labor plus a fine of up to $5000. Defendant's sentence of two years at hard labor is well within the statutory guidelines.
However, the fact that the trial court articulated few reasons for imposing the sentence raises the question of whether there was a violation of LSA-C.Cr.P. Art. 894.1.
In State v. Dugas, 527 So.2d 610 (La.App. 3d Cir.), writ denied, 533 So.2d 15 (La. 1988), this court discussed the purpose of compliance with C.Cr.P. Art. 894.1, as follows:
The purpose of La.C.Cr.P. Art. 894.1 is to facilitate appellate review of the possible overstepping of the trial court's discretion in sentencing. Failure to fully comply with Art. 894.1 does not necessarily mandate a finding that the sentence is invalid. State v. Davis, 448 So.2d 645 (La. 1984); State v. Wimberly, 414 So.2d 666 (La. 1982). In Wimberly, supra at page 672, the Louisiana Supreme Court stated:
"In those cases in which we have vacated the sentence and remanded the case for resentencing in full, recorded compliance with Article 894.1, our action was not prompted simply by the sentencing judge's failure to give his reasons for the penalty imposed. Rather, it was because, based on the inadequate record presented to us, there appeared to be a substantial possibility that the defendant's complaints of an excessive sentence had merit. In each case, pursuant to our duty to uphold the constitution, which expressly prohibits the imposition by law of excessive punishment, we vacated the sentence and remanded the case for resentencing on an adequate record, including strict compliance with Article 894.1."
Where the record reflects an adequate basis for the sentence imposed, remand for further elucidation of reasons for sentence by the trial court is unnecessary. State v. Lanclos, 419 So.2d 475 (La. 1982).
In the case before us, the trial judge considered the mitigating factors that defendant was a first felony offender and had grandchildren and a sick mother at home who needed her help. The trial judge further considered the fact that defendant apparently did not consider the effects of her crime on her family before she committed it. The State raised the point that defendant violated her bail bond twice prior to sentencing. We also note that the sentencing judge did have a presentence investigation report before him.
Under the circumstances, we find that the sentence is not excessive, even though the trial court's compliance with the sentencing guidelines of LSA-C.Cr.P. Art. 894.1 was minimal. The record reflects an adequate basis for the sentence imposed.
CONCLUSION
For the reasons given, the sentence imposed by the trial court is affirmed.
AFFIRMED.
KNOLL, J., dissents and assigns written reasons.
For the following reasons, I respectfully dissent, finding the sentence excessive.
The sentencing court did not articulate any reason for sentence under Art. 894.1. The sentencing court's articulation of reasons in imposing sentence as required by Art. 894.1 is an important aid to this court in reviewing an allegedly excessive sentence. State v. Davis, 449 So.2d 452 (La. 1984); State v. Telsee, 425 So.2d 1251 (La. 1983); State v. Sepulvado, 367 So.2d 762 (La. 1979).
The presentence investigation report shows that defendant is thirty-five years of age, has two children, and is employed as a waitress. Although the presentence investigation report indicates that defendant had four California convictions within a six month period in 1972, the sentencing court repeatedly commented that it would not consider those convictions because they were so far removed in time from the present offense. Accordingly, we find nothing articulated in the sentencing colloquy which would justify the sentence imposed on defendant.
The 1972 convictions are for theft, criminal contempt, possession of a controlled substance for sale, possession of a controlled substance, and contributing to the delinquency of a minor.
Moreover, in reaching this conclusion, I also find that the record as a whole does not illumine the sentencing choice either. In my view, it is clear that defendant's plea bargain cannot justify the two year sentence imposed. In that regard, I find that in charging defendant with three counts of possession of a Schedule III drug, the State overbilled defendant. Of particular note is the fact that the second charge against defendant for possession of a controlled dangerous substance, i.e., codeine, involved the same four pills for which defendant was charged with possession of butalbital, and to which she ultimately pleaded guilty.
Therefore, in my view the State relinquished nothing when it agreed to nolle pros the charge against defendant for possession of codeine. The record does not support the imposition of two years.
Likewise, I have also considered whether defendant's contemporaneous sentencing on the unrelated charge of theft should be weighed in our evaluation of the excessiveness of the present sentence. In reviewing this issue, the record is clear that defendant's guilty pleas to these offenses were entered separately and the sentencing choices were independently made. I found no justification on the record for the one year sentence defendant received for her entry of a guilty plea to the charge of theft.