State v. CottinginState v. Cottingin
The issues presented by this appeal are whether or not the trial judge properly followed the sentencing guidelines of
Cottingin timely appeals the sentence asserting that the trial judge (1) failed to comply with the mandates of
FACTS
On April 26, 1984 a District Judge of the Fifteenth Judicial District Court signed an arrest warrant for the arrest of Cecil Cottingin based on the affidavit of Lafayette Parish Sheriff Deputy Veda Latour. The warrant asserted that on April 22, 1984 Cottingin did commit sexual battery on Michell Mize, his 17 year old step-daughter, in violation of
Pursuant to the warrant, Cottingin was arrested in Gladwater, Texas on June 19, 1984. He waived his right to extradition proceedings and was returned to Lafayette on June 21, 1984.
On August 1, 1984, a bill of information was filed against Cottingin alleging that he committed one count of indecent behavior with a juvenile, his 14 year old natural daughter, Wileen Cottingin. On September 5, 1984, Cottingin entered a plea of guilty to that charge. Through his attorney he requested a pre-sentence investigation and report which was ordered by the trial court. After reviewing the pre-sentence report and holding a sentence hearing, the court sentenced Cottingin to five years imprisonment at hard labor.
Cottingin‘s first assignment of error raises the issue of whether the sentencing judge adequately complied with the guidelines of
There are two underlying purposes of the codal requirement that the sentencing court articulate the specific reasons based on particular facts and considerations for imposing a sentence. First, it ensures that the sentence is particularized to the defendant. State v. Murdock, 416 So.2d 103 (La.1982). In addition, it aids the reviewing court in the determination of whether the sentence imposed is excessive by providing an actual indication of whether the sentencing court adequately considered the statutory guidelines. State v. Murdock, supra; State v. Forshee, 395 So.2d 742 (La.1981); State v. Perry, supra.
The statutory maximum sentence for indecent behavior with juveniles is five years imprisonment at hard labor and a fine of $5,000.00.
The sentencing judge ordered a presentence investigation and report. The transcript of the sentence hearing reflects that the sentencing judge and defense counsel reviewed the pre-sentence report. However, the pre-sentence report was not filed in the record or made a part of the record for this court to review.1 The State has attached a copy of this report to its brief for our consideration. In a criminal case this Court has no authority to receive or review evidence not contained in the trial court record. State v. Oubichon, 422 So.2d 1140 (La.1982); State v. Augustine, 252 La. 983, 215 So.2d 634 (1968); State v. Williams, 454 So.2d 295 (La.App. 4th Cir.1984); State v. Smith, 447 So.2d 565 (La.App. 1st Cir.1985). At the sentence hearing, as the transcript reflects, defense counsel objected to the pre-sentence investigation report on the grounds that it was incomplete and was improperly written in a biased manner against the defendant. In response the sentencing judge merely stated:
“The Court has carefully considered the pre-sentence investigation report and obviously not everything that the probation officer uses is what would be admitted in a court of law. I know he quoted a LIFE article on how bad this problem is. The Court, considering the pre-sentence investigation, still feels that it should follow the recommendation as made by the Louisiana Department of Corrections’ Division of Probation and Parole, and therefore, the Court will sentence the defendant to serve five years at hard labor...“. (Tr. pages 52-53.)
The sentencing judge did not provide oral or written reasons for the sentence imposed. The transcript of the sentence hearing is totally devoid of any mention of aggravating facts or circumstances that would support the court‘s imposition of the sentence except the sentence recommendation contained in the pre-sentence investigation report. Though adequate justification for the imposition of this sentence may in fact exist, the record does not contain
ASSIGNMENT OF ERROR NUMBER 2
Cottingin‘s second assignment of error concerns the sentencing court‘s reliance on what he considers an improperly conducted pre-sentence investigation and report. The defendant does not contend that the presentence report was in any way false or misleading. Instead, he only contends that the pre-sentence report was incomplete insofar as it did not consider factors which the defendant thought to be mitigating and was improper in that the tone of the presentence report was “biased” against the defendant.
It is entirely within the discretion of the court to order a pre-sentence investigation and report.
In this case the transcript of the sentence hearing reflects the fact that defense counsel received the pre-sentence report before the hearing and reviewed it with the defendant. The court afforded defense counsel the opportunity to present evidence and to comment on or add to the pre-sentence report. Defense counsel took full advantage of this opportunity, re-emphasizing certain points listed in the report, adding to the information contained in the report, and pointing out the alleged weaknesses and bias of the report. Defense counsel had apparently also discussed some of these things with the sentencing judge prior to the hearing. The Court, after reviewing the pre-sentence investigation report, and after having taken into consideration the defendant‘s additions, explanations and rebuttals to the pre-sentence investigation report, sentenced Cottingin to five years imprisonment at hard labor.
As previously mentioned, the presentence investigation report is not a part of the record for review. It is the obligation of the appellant to bring his appeal properly before this Court. State v. Augustine, supra; State v. Morgan, 147 La. 205, 84 So. 589 (La.1920), cert. den. 253 U.S. 498, 40 S.Ct. 588, 64 L.Ed. 1032 (1920). However, since Cottingin does not contend that the report was in any way false or misleading, and in light of the fact that his attorney was provided with a copy of the pre-sentence investigation report and was given ample opportunity at the sentencing hearing to add to, rebut, correct or explain any portion of the report, he has no grounds for complaint. For these reasons this particular assignment of error is without merit.
ASSIGNMENT OF ERROR NUMBER 3
For his final assignment of error, Cottingin contends that the sentence imposed upon him, five years imprisonment at hard labor, violates his constitutional rights under Article I, § 20 of the 1974 Louisiana Constitution in that it is an excessive sentence. The maximum sentence for the crime of indecent behavior with juveniles is five years imprisonment at hard labor with a fine of $5,000.00.
The standard on appeal for determining whether a sentence imposed by a trial court is unconstitutionally excessive has been established by this court as follows:
“[A] sentence is excessive if it is grossly disproportionate to the severity of the offense. State v. Bonanno, 384 So.2d 355, 358 (La.1980). In determining whether the penalty is grossly disproportionate, the court must consider `the punishment and the crime in light of the harm to society caused by its commission, and determine whether the penalty is so disproportionate to the crime committed as to shock our sense of justice.’ Id. In reviewing a claim of excessive sentencing, the trial judge is to be afforded 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. Abercrumbia, 412 So.2d 1027 (La.1982).” State v. Morgan, 428 So.2d 1215, at page 1216 (La.1983).
The only fact appearing in the record which could possibly be used to justify the sentence imposed by the court is that the offense to which the defendant pled guilty was committed against his own 14 year old daughter. The only other facts or circumstances contained in the record which could have an effect upon the sentence are those which were asserted by defense counsel in the course of the sentence hearing, and these were mitigating in effect. Defense counsel‘s statement can be quoted in its entirety:
“Yes, Your Honor, there is. We would like to point out to the Court that Mr. Cottingin is, as the pre-sentence reflects, 42 years old. This is his first offense. The pre-sentence also points out that he has four other children to support, plus a wife who is equally dependent upon him.
We would suggest to the Court that the pre-sentence may have become improper, and the tone that I read from it has become one of advocacy and not of information. The parole officer—parole and probation officer seems to stress the credibility of the victims in that they are not what they think is a proper sentence necessarily. In that sense, we feel that it is also incomplete and that later circumstances of the victim‘s stay with the child services protection agency is not mentioned. We point out to the Court that such a noted authority as LIFE Magazine is used to support the conclusions here.
There‘s been apparently no attempt to address the issue of alcohol abuse alleged by the victims, and that there‘s no apparent—although one of the victims indicates that Mr. Cottingin‘s wife was equally involved in this on at least one of the offenses, there‘s been no effort to bring her into this as well.
We are of the opinion, Judge, at least I am, that a sentence of incarceration is not going to help restore this family, and that in consideration of the Code of Criminal Procedure 894.1, that subsections 7, 9, 10, and 11 would mitigate in favor of a probationary sentence.” (Tr. pages 51-52.)
The sentencing court relied upon the presentence report in imposing sentence on the defendant. This pre-sentence investigation report was never filed in the record though it may in fact contain additional information. However, the trial court did not state for the record its considerations for the sentence imposed nor the facts
For these reasons, we vacate and set aside the sentence imposed and remand this matter to the district court for compliance with
SENTENCE VACATED AND REMANDED FOR RESENTENCING.