June 28, 1996
IN RE: State of Louisiana; — Plaintiff(s); Applying for Writ of Certiorari and/or Review, Supervisory and/or Remedial Writs; Parish of Orleans Criminal District Court Div. "E" Number 374-683; to the Court of Appeal, Fourth Circuit, Number 96KW-0447
Granted. See order.
CALOGERO, C.J. would deny the writ.
MARCUS, J. not on panel.
JOHNSON, J. would deny the writ.
Defendant was convicted of possession of cocaine. He was adjudicated to be a fourth felony offender. The trial judge sentenced defendant to thirty months at hard labor, below the statutory minimum of twenty years mandated for a fourth offender under La.R.S. 15:529.1. The court of appeal denied the state's application for writs and the state now applies to this court.
Louisiana's judiciary maintains the distinct responsibility of reviewing sentences imposed in criminal cases for constitutional excessiveness. State v. Sepulvado, 367 So.2d 762 (La. 1979). However, in order to find the punishment mandated by La.R.S. 15:529.1 excessive, the trial judge must find that the sentence makes no measurable contribution to the acceptable goals of punishment or that the sentence amounts to nothing more than the purposeful imposition of pain and suffering and is grossly out of proportion to the severity of the crime. State v. Dorthey, 623 So.2d 1276 (La. 1993).
Although the trial judge gave reasons for his sentence, it does not appear that he made a sufficient showing on the record to say that imposition of the statutorily mandated minimum sentence would be constitutionally excessive under these facts. Moreover, even assuming the statutorily-mandated minimum sentence was excessive under these facts, the trial judge failed to justify his reduction of the sentence down to thirty months.See State v. Gordon, 96-0427 (La. 5/10/96). Accordingly, the judgment of the trial court is vacated and the case remanded to the trial court to justify its deviation from the statutorily-mandated minimum sentence in this case.
MARCUS J., not on panel.