State v. CoxState v. Cox
The defendant was charged with armed robbery,
The single assignment of error urged on appeal complains that the sentence is excessive, in that consecutive sentences were imposed for each count, when the two crimes joined for trial arose out of the same incident.
Appellate Review for excessiveness
With respect to the appropriate standards for that review, we further stated that: “. . . the statutory criteria legislatively provided by
Relationship of Article 894.1 to Sentence Review
Even without formal objection at the time, where the trial judge imposes a sentence without adequate compliancе with the mandatory requirement of
In State v. Jackson, 360 So.2d 842 (La. 1978), we discussed at some length the purpose of the article in requiring that each sentence be particularized. We noted that not only public protection and deterrence, but also rehabilitation, are objectives of the sentencing process. In that unanimous opinion, authored by former Chief Justice Sanders, we observed that the code provision “requires that the sentence be individualized.. . . The article establishes procedures designed to adapt thе sentence to the offender as well as the offense.” 360 So.2d 843-44.
In State v. Sepulvado, 367 So.2d 762 (La. 1979), we noted that the trial court‘s statement of reasons in imposing sentence, as required by this statute, “is an important aid to this court when called upon to exercise its constitutional function to review a sentence complained of as excessive.”
In Sepulvado, in a first (or earlier) appearance before this court, the defendant had complained that the sentence was excessive, although he had not formally questioned it in the trial court. 359 So.2d 982 (La.1978). While we did not then reach the issue of excessiveness, we nevertheless remanded the case for re-sentencing in compliance with
The Sepulvado cases illustrate the relationship between the trial court‘s statement of the reasons and factual basis for the sentence imposed, required by
If inadequate compliance with 894.1 is exhibited by the record, we may remand for re-sentencing in accordance with the mandatory requirements of that article, whether or not formal request has been made in the trial court that it comply with law. However, if (as required by 894.1) the trial court has stated the factual basis and individual considerations upon which the sentence is based, then upon formal assignment of error we will reviеw whether the trial court‘s large discretion has been abused. Our review of individual excessiveness will then consider, in the light of the criteria expressed by 894.1, the circumstances of the crime and the trial court‘s stated reasons and factual basis for its sentencing decision.
Procedural requirements for appellate review of a sentence as excessive
With the exception of death penalty cases (which this court must independently review in each instance for excessiveness,
In addition, we had previously held that some form of objection to the sentence as
We then indicated that the purpose of requiring this sort of objection to be made in the trial court was to permit a hearing at which the factual circumstances indicating excessiveness or not might be shown, with an opportunity for the trial court to impose or amend its sentence accordingly, and in order to disclose for purposes of appellate review the showing as to such circumstances which might not otherwise be found in the trial record.
The requirement of these decisions that objection be made to the sentence as excessive was based upon
Furthermore, subsequent to the two cited Williams decisions, the legislature has itself provided that the trial court, in imposing sentence, must state the consideration taken into account and the factual basis therefore. Since these decisions, the jurisprudence has made clear that the dеfendant must be given an opportunity to rebut or explain misinformation upon which the trial relies or to which it is exposed in its sentencing decision. State v. Trahan, 367 So.2d 752 (La.1978); State v. Segers, 357 So.2d 1 (La.1978); State v. Underwood, 353 So.2d 1013 (La.1977). The latter holdings necessarily imply that the accused must likewise be given an opportunity to make a showing, by argument of counsel or otherwise, of mitigating factors under
Thus, the legislative enactment of
The Code of Criminal Procedure does not itself require any formal objection to be made to preserve post-verdict error for appellate review. Subsequent legislative action and jurisprudential developments have assured adequate appellate review for review of excеssiveness, the original purpose of our early decisions in judicially imposing the requirement for an objection in order to preserve the issue of excessiveness for appellate review.
We see no intelligent reason longer to adhere to and accordingly we overrule, the holdings in State v. Williams, 340 So.2d 1382 (La.1976) and State v. Williams, 322 So.2d 177 (La.1975),3 that excessiveness of sentence may not be reviewed in the absence of formal objection—there being no statutory requirement for such objection, and there being no remaining functional reason for these decisions’ court-imposed requirement for the technicality of requiring an objection for such purpose. Similarly to the instance of the trial court‘s ruling on a written motion, where no objection is required (
We should note, however, that if at or before the time of the sentencing
In the present case, the defendant did object to the sentence as excessive at the time it was imposed. The state argues on appeal that we should not consider the complaint of consecutive sentences because not particularized. Even under Williams, the objection as made was sufficient. We prefer to rest our ruling, however, on the broader ground that no technical objection was required to preserve the issue for appellate review, when raised by assignment of error to this court.
Facts of this case
The charges arose from a dispute between the victim and the accused (Cox), who had played a number of games of pool together for money. The victim owed Cox $6.00, when the defendant suggested they play a final game for double or nothing. After it, the victim and Cox disagreed as to who had won the game.
When the victim left the pool hall, Cox (who had left earlier) accosted him at his car, drove him to another location, beat him with his fists, and kicked him in the head and stomach; he may also have, although this is disputed, beat him with jumper cables. The victim was left unconscious and severely beaten, and he spent three weeks in the hospital recovering.
Excessiveness of consecutive sentences
The offenses did not arise out of premeditated criminal сonduct in the sense of a planned robbery, as contrasted with an unplanned escalation of a pool-hall controversy into an enraged (but nevertheless unlawful) attempt to recover money of which the accused felt he had been cheated. Nevertheless, for present purposes it is not substantially disputed that the violence of the beating justified the trial court‘s discretion in imposing a severe sentence upon the accused because of the aggravated manner in which the crime was committed, even though he is a first offender.
As the trial court stated, in imposing sentence, “What little I did hear of the extent of the injuries of the young man involved, and as you [defense counsel] say he was not free from some fault, but simply because you get in a disagreement over a bet on a pool bet, you do not settle it by stomping the holy hеll out of a man and leaving him for dead.” The trial court pointed out that the injuries were serious and required three weeks’ hospitalization and could have resulted in the victim‘s death, so that Cox might easily have been before the court for sentencing on a murder.
As noted, these reasons justified the penalty of twenty-five years imprisonment on either count, either armed robbery or attempted murder. The issue is whether the identical аggravating circumstances justify consecutive sentences on both counts.
As we stated in State v. Underwood, 353 So.2d 1013, 1019 (La.1977), “Based on American theory and practice concurrent rather than consecutive sentences are the usual rule, at least for a defendant without criminal record and in the absence of a showing that the public safety requires a
See: American Bar Association Standards Relating to Sentencing Alternatives and Procedures, Standard 3.4 (1968); American Law Institute Model Penal Code, Section 7.06 (1962); National Advisory Commission on Criminal Justice Standards and Goals, Corrections Standard 5.6; National Council on Crime and Delinquency, Model Sentencing Act 2d, Section 17 (1972), reprinted at 18 Crime and Delinquency 335 at 367 (1972); and official commentaries following each such statement of sentencing principle.
These standards contemplate the normal imposition of concurrent standards, with consecutive sentences to be imposed only under certain circumscribed conditions. As succinctly summarized by Commentary c, Standard 3.4 ABA Standards Relating to Sentencing Alternatives and Procedures, at p. 177 (Approved Draft, 1968):
“The function of the consecutive sentence should be similar to the function of the sentence imposed on habitual or dangerous offenders. Because of his repeated criminality the offender who has rendered himself subject to multiple sentences may pose the same type of unusual risk of the safety of the public. It would thus appear that he should be treated in a similar fashion.”
The state argues that the defendant should be сonsidered a “dangerous offender“, one of the circumstances which justifies consecutive rather than the normal concurrent sentences. The state points out that sentencing principles recognize that a first offender may be a dangerous person who committed one or more serious crimes without being apprehended, Guides to Sentencing the Dangerous Offender 9 (National Council on Crime and Delinquency, 1969), and that “If the defendant‘s violence arises out of an irrational response to situations that will occur frequently in his lifetime. . . or even if he is likely to strike out physically at others when he has an argument, he is probably one who comes within the concept of dangerousness.” Id., at p. 11.
The difficulty with accepting his argument is this: The showing at the sentencing hearing and trial, so far as it goes, does not indicate that the accused, a 23-year-old first offender with a working background, had ever before so lost his self-control as to inflict violence on others with whom he quarrelled. A single violent incident does not justify characterizing a convicted person as a dangerous offender likely to be a public danger because of the probability of recurring violent episodes.
The pre-sentence report is not included and is not summarized, but no mention of prior violent conduсt was made by the sentencing judge, who seemed to rely only on violence committed in the present single incident. The record does not reflect, for instance, that any examination and report was made of the defendant‘s mental and emotional condition, a normal requirement before consecutive sentences are imposed on the basis of the defendant‘s dangerous character by reason of his mеntal or psychological deficiencies. See ABA Standard 3.4(b)(iii), cited above. See Guides to Sentencing the Dangerous Offender, cited above, at pp. 3-5, 11-12.
As Chief Justice Sanders stated for the court in State v. Jackson, 360 So.2d 842, 844 (La.1978): “The considerations taken into account by the trial judge should be based upon factual determinations. Among the numerous matters to be reviewed are: the defendant‘s personal history (e. g., age, marital status, dependents, family stability, employment, mental, emotiоnal, and physical health); the defendant‘s prior criminal record; the seriousness of the crime; the circumstances of the offense; the likelihood that defendant will commit another crime; and his potential for rehabilitation * *.”
Under these present circumstances, the record does not reflect reasons why consecutive sentences were imposed for two
Accordingly, while we affirm both convictions and also the twenty-five year sentence for the armed robbery, we vacate and set aside the twenty-five year sentence for the attempted murder insofar as it is made consecutive to the former sentence; and we remand the case to the district court for a hearing as to whether or not consecutive sentences should be imposed in the instant case, and for re-sentencing on the attempted murder conviction in accordance with the principles above expressed.
BOTH CONVICTIONS AFFIRMED; SENTENCE FOR ARMED ROBBERY AFFIRMED; SENTENCE FOR ATTEMPTED MURDER VACATED, AND CASE REMANDED FOR RE-SENTENCING.
SUMMERS, C. J., dissents.
MARCUS, J., concurs in part and dissents in part and assigns reasons.
BLANCHE, J., concurs in part and dissents in part for reasons assigned by MARCUS, J.
MARCUS, Justice (concurring in part and dissenting in part).
I concur in the affirmance of defendant‘s convictions.
Accordingly, I respectfully concur in part and dissent in part.
Notes
La.C.Cr.P. art. 894.1 (1977) is entitled “Sentence guidelines; generally“, and it provides:
A. When a defendant has been convicted of a felony or misdemeanor, the court should impose a sentence of imprisonment if:
(1) There is an undue risk that during the period of a suspended sentence or probation the dеfendant will commit another crime;
(2) The defendant is in need of correctional treatment or a custodial environment that can be provided most effectively by his commitment to an institution; or
(3) A lesser sentence will deprecate the seriousness of the defendant‘s crime.
B. The following grounds, while not controlling the discretion of the court, shall be accorded weight in its determination of suspension of sentence or prоbation:
(1) The defendant‘s criminal conduct neither caused nor threatened serious harm;
(2) The defendant did not contemplate that his criminal conduct would cause or threaten serious harm;
(3) The defendant acted under strong provocation;
(4) There was substantial grounds tending to excuse or justify the defendant‘s criminal conduct, though failing to establish a defense;
(5) The victim of the defendant‘s criminal conduct induced or facilitated its commission;
(6) The defendant has compensated or will compensate the victim of his criminal conduct for the damage or injury that he sustained;
(7) The defendant has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the instant crime;
(8) The defendant‘s criminal conduct was the result of circumstances unlikely to recur;
(9) The character and attitudes of the defendant indicate that he is unlikely to commit аnother crime;
(10) The defendant is particularly likely to respond affirmatively to probationary treatment; and
(11) The imprisonment of the defendant would entail excessive hardship to himself or his dependents.
C. The court shall state for the record the considerations taken into account and the factual basis therefor in imposing sentence.