STATE of Louisiana, Appellee, v. Eddie Wayne COX and Patricia Cox aka Patricia Clark, Appellants.
No. 23998-KA.
Court of Appeal of Louisiana, Second Circuit.
August 19, 1992.
604 So.2d 189 (1992)
Indigent Defender Bd. by William Rick Warren, for Patricia Cox.
Richard P. Ieyoub, Atty. Gen., James M. Bullers, Dist. Atty., Charles E. McConnell, Asst. Dist. Atty., for the State.
Before VICTORY, BROWN and STEWART, JJ.
STEWART, Judge.
Defendants, Eddie and Patricia Cox (husband and wife), were charged by bill of information with burglary of an inhabited dwelling, in violation of
FACTS
Betty Mae Holloway, the former sister-in-law of Patricia Cox, lived in Sarepta, Louisiana with her husband, James Holloway. Mrs. Holloway had received a refund of $13,000 to $15,000 in cash which was paid in advance for her mother‘s health care. Although no one in Sarepta knew about the refund money, Patricia Cox was aware of it. Mrs. Holloway‘s mother had died in Warren, Arkansas where Patricia and Eddie Cox lived a few days before the crime.
On the day of the funeral, Patricia convinced Eddie and Bruce Tucker, a friend, to drive to Sarepta, enter the Holloway home, and take the money. They expected the Holloway home to be unoccupied. Patricia, Eddie, and Bruce drove to Sarepta. Patricia dropped off Eddie and Bruce at the Holloway house while she parked a few blocks from the house and waited for their return with the money.
Eddie disconnected the Holloway telephone line at approximately 9:30 p.m., removed a screen, and forced the window open. He then entered into the utility room. Eddie then attempted to open the door that led into the kitchen but his attempt was thwarted by a night latch.
At the same time, Betty Holloway was preparing to clean her den when she passed by the door leading from the kitchen to the utility room. She noticed the door to the utility room ajar. She investigated further and found that the outside door and screen door to the utility room were open. She told her husband about the opened doors and learned he had locked them earlier. The Holloways returned to the utility room and saw that a window had been forced open and the screen had been removed. Mr. Holloway got his gun and went outside to investigate further. Mrs. Holloway went outside also and yelled for help. Eddie and Bruce were apparently scared off by her yells and immediately left the scene. The police were called by neighbors.
Deputy Billy Allen, Jr. responded to the call and, while en route, he saw two men walking near the railroad tracks. These men matched the description of Eddie and Bruce. Patricia picked up Bruce but was unable to find Eddie so she and Bruce drove back to Arkansas. The next day, Patricia returned to Louisiana, found Eddie, and then they went back to Arkansas.
Patricia Cox, Eddie Cox, and Bruce Tucker1 were subsequently arrested in Arkansas for burglary of an inhabited dwelling and waived extradition to Louisiana. Eddie and Patricia Cox pled guilty to simple burglary pursuant to a plea agreement. During
DISCUSSION
The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in
Whether the sentence imposed is too severe depends on the circumstances of the case and the background of the defendant. A sentence violates
A plea bargain which brings about substantial benefits to a defendant is a legitimate consideration in sentencing. State v. Lighten, 516 So.2d 1266 (La.App. 2d Cir.1987); State v. Winzer, 465 So.2d 817 (La.App. 2d Cir.1985).
For sentencing purposes, a trial court may properly consider a defendant‘s attitude and criminal propensities. State v. Palmer, 448 So.2d 765 (La.App. 2d Cir.), writ denied, 452 So.2d 695 (La.1984).
EDDIE COX
Defendant, Eddie Cox, does not challenge the district court‘s articulation of reasons for sentence. The court indicated that the victims were both disabled. Betty Holloway was age 57 and James Holloway, age 62. When asked by the court how he expected to get away with the burglary since the victims knew him, Eddie said he expected them to be away from home and at church. The court concluded that Eddie‘s disconnection of the telephone lines was indicative of an intent by him to harm or kill the Holloways. The district court believed that if defendant really had only intended to scare the Holloways, when defendant saw they were home he would have left, rather than risk a parole violation. The court concluded that defendant intended to take the money and kill the victims. The evidence clearly supports a finding that defendant was in the process of burglarizing a house which he knew to
The pre-sentence investigation report (PSI) indicated that Eddie Cox was 25 years old at the time of sentencing. The trial court stated that, although Patricia was the “ring leader,” Eddie had a prior criminal record and was not a youthful offender. The trial court noted that Eddie was on parole at the time of the instant offense and that he had a conviction for arson which occurred when he tried to set his jail cell mattress on fire while he was serving concurrent ten-year sentences for burglary and theft. The PSI revealed further that Eddie was in frequent fights while in high school and defiant of authority. Eddie conceded at the sentencing hearing that he had been convicted of two burglaries and that he used LSD, cocaine, marijuana, and methamphetamines. The trial court concluded that Eddie Cox was in need of a custodial environment and correctional treatment which could be best afforded by commitment to an institution. The court also concluded that any lesser sentence would deprecate the seriousness of the crime.
Our review of the record indicates that the trial court complied with
Eddie avoided being adjudicated as a multiple offender. As a third felony offender, he would have faced a sentence of no less than six years and no more than 24 years,
PATRICIA COX
Defendant, Patricia Cox, also does not challenge the trial court‘s articulation of reasons for sentencing. She argues that as a first felony offender with health problems and minor children, the sentence of six years hard labor is excessive. She also argues that under the new sentencing guidelines, effective less than one month after her sentence, she would have received a suspended sentence.2
The PSI on Patricia Cox provides a detailed social history regarding Patricia Cox‘s family, education, and employment. The PSI indicates that Patricia Cox is 41 years old with no juvenile record and a first felony offender. She has two minor children from a previous marriage. She is in bad health, suffering from gallstones, colitis, scoliosis, 85 percent hearing loss in the right ear and 95 percent hearing loss in the left ear, and ulcers.
In sentencing Patricia Cox, the trial judge stated that he concluded that she was the “ring leader” in this case because of her hate and animosity arising from this prior family relationship.
The court further noted that defendant had pled guilty to a lesser offense than originally charged. The court recognized that defendant‘s incarceration would be a severe hardship on her minor children, but felt it would not do justice by punishing her husband while allowing her to have her freedom. The court found that going to burglarize a home the day after someone had died was “a pretty low blow,” and reiterated its earlier finding that by burglarizing a house where the victims knew the perpetrators and cutting the telephone lines, the defendants intended to harm the occupants.
Our review of the record indicates that the trial court adequately considered the guidelines of
ERROR PATENT REVIEW
The court noted that the PSI report for Patricia Cox showed she had been in jail for one day before making bond. In imposing sentence the court shall give the defendant credit toward service of her sentence for time spent in actual custody prior to the imposition of sentence.
For the foregoing reasons, the defendants’ convictions and sentences are affirmed.
AFFIRMED WITH INSTRUCTIONS.