State v. BarousseState v. Barousse
On February 28, 1983, Donald K. Barousse entered pleas of guilty to two counts of simple crime against nature,
His first assignment of error is that the trial judge failed to suppress an inculpatory statement made by the defendant, which the defendant contends was not voluntary. His second assignment of error is that the trial judge failed to properly delineate his reasons for imposing sentence, and that the sentence was nonetheless excessive, considering all the pertinent circumstances.
ASSIGNMENT OF ERROR NO. 1
Prior to entering his guilty plea, Barousse had filed a motion to suppress his inculpatory statement. The motion, heard on February 2, 1983, was denied. The minutes of the court contain no notation that the defendant reserved his right to appeal that ruling. The transcript of those proceedings, however, shows defense counsel noted an oral exception to the adverse ruling at the time. That would have been adequate notice to reserve an assignment of error, if the case had gone to trial on the merits.
The transcript of the plea colloquy reveals no reservation of the defendant‘s rights by a Crosby stipulation. In addition, the Boykin form, entitled “Defendant‘s Acknowledgement of Constitutional Rights and Waiver of Rights on Entry of a Plea of Guilty,” states, in paragraph 6,
“If you plead guilty, and this court accepts your plea, you do not have the right to assert any allegations of defects, such as: * * * (c) an illegal confession; * * *. Do you understand that by pleading guilty you are waiving or giving up these rights?”
The Boykin form was signed by both the defendant and his attorney. In the plea colloquy between the defendant and the trial court, the judge reiterated the waiver verbatim and the defendant replied affirmatively, indicating he understood he was waiving these rights. Further, he was specifically asked if anyone had used any force, intimidation, coercion, promise or reward to make or force him to plead guilty, which he denied.
The defendant should have reserved his right to review the denial of his motion to suppress at the time he entered his guilty plea. Instead, he expressly waived that right. Accordingly, we find no merit to Assignment of Error No. 1.
ASSIGNMENT OF ERROR NO. 2
The defendant pleaded guilty to two counts of simple crime against nature. The penalty for that crime is a fine of not more than $2,000 or imprisonment, with or without hard labor, for not more than five years, or both.
The trial judge stated he had read and considered the report of the presentence investigation and also the sentencing guidelines set forth in
Although Barousse had been married for 11 years and had a good employment record, and imprisonment would impose a hardship on his family, the trial court determined that the defendant was in need of correctional treatment in a custodial environment.
The judge further stated he had reviewed the probation department‘s recommendation for conditional probation, but that he did not agree with that suggestion.
We conclude the trial court complied well with the sentencing guidelines of
Respecting the allegations of excessive sentence, we refer to State v. Howard, 414 So.2d 1210, 1217 (La.1982):
“* * * The trial judge is given a wide discretion in the imposition of sentences within statutory limits, and the sentence imposed by him should not be set aside as excessive in the absence of a manifest abuse of his discretion. State v. Sepulvedo, 367 So.2d 762 (La.1979).”
Considering the maximum sentence for simple crime against nature is five years and/or $2,000, the three-year sentence imposed falls in the mid-range of the statutory limits. In light of the tender ages of the victims in this case, the trial court used great restraint in imposing the
PATENT ERROR
For the foregoing reasons, the conviction and sentencing of the defendant, Donald K. Barousse, are affirmed.
AFFIRMED.