State v. BerryState v. Berry
Defendant, Charles M. Berry was indicted for violating
ASSIGNMENT OF ERROR
The defendant argues that the Trial Judge failed to articulate reasons for sentencing, as is required under La.C.Cr.P. art. 894.1 and failed to consider certain mitigating factors. The defendant also contends that the sentence imposed by the Trial Judge is unconstitutionally excessive and results in cruel and unusual punishment in violation of
La.C.Cr.P. art. 894.1 provides criteria to be used in determining whether a sentence is excessive and mandates that the “Trial
In this case, the Trial Judge’s pronouncements at sentencing were entirely devoid of the factors enumerated in Article 894.1. Failure to adequately comply with Article 894.1 does not necessitate vacating the sentence or warrant a remand for re-sentencing if the record illumines and supports the sentencing choice and the sentence is in the lower range of the sentencing scale. State v. Davis,
A sentence is deemed excessive if it (1) makes no measurable contribution to acceptable penal goals and, therefore, is nothing more than the purposelessness and needless imposition of pain and suffering; or (2) is grossly out of proportion to the severity of the crime. State v. Cann,
The defendant is a 53 year old married male with six children, one of which is 16 and still living at home. He claims to have a high school equivalency degree and has been consistently employed since 1958 at various jobs. Most recently, he has worked from 1964 to the present in California in the Longshoreman’s Union. He recently sold a boarding house he owned in California that was earning approximately $5,000.00 per month. He presently owns and operates the C & Y Lounge in Lake Charles which allegedly earns approximately $2,600.00 per month. His claimed net worth is in excess of $500,000.00 with substantial land holdings in Louisiana and California.
The defendant is an honorably discharged combat veteran of the Korean War era, having served from 1952 to 1954 and has had no reported prior convictions. However, he has had two arrests in California: (1) for resisting a police officer, and (2) for inflicting injury upon his wife. Both charges were apparently dismissed or rejected. The Trial Court can consider arrests, not just convictions, in determining an appropriate sentence. State v. Marks,
A review of this record indicates that not only is the defendant’s sentence not excessively harsh, it is, in fact, excessively lenient. The defendant was ultimately sentenced to serve only six months in the parish jail, less than the statutory minimum, for an offense that is both serious and of pressing concern in our society. While we recognize the defendant’s right to appellate review for excessiveness of his sentence as jurisprudentially mandated, this case represents an abuse of that right. Here the defendant pled guilty to the serious offense of possession of cocaine with intent to distribute. He, in fact, received the minimum sentence which was subsequently reduced so that he then, in essence, received a sentence below the minimum. The defendant could have been sentenced to a maximum term of thirty years in prison and fined up to $15,000.00. In light of the severity of the offense, the defendant’s sentence was not excessive, but was in fact very lenient. This assignment of error has no merit.
For the foregoing reasons the defendant’s conviction and sentence are affirmed.
AFFIRMED.
Notes
. The author of this opinion is compelled to again state his position as to appellate review of sentences for excessiveness. Our state constitution does not provide for nor does it mandate judicial review of sentences which fall within the limits set by the respective criminal statutes. See, State v. Goodman,