State v. DabneyState v. Dabney
STATE of Louisiana
v.
Earl DABNEY.
Court of Appeal of Louisiana, Third Circuit.
Alisa Ardoin Gothreaux, Assistant District Attorney, Opelousas, LA, for Appellee State of Louisiana.
Edward K. Bauman, Louisiana Appellate Project, Lake Chаrles, LA, for Appellee Earl Dabney.
Court composed of SYLVIA R. COOKS, BILLIE COLOMBARO WOODARD and MICHAEL G. SULLIVAN, Judges.
COOKS, Judge.
Defendant, Earl Dabney, was charged by bill of information with one count of possеssion of a firearm by a convicted felon, a violation of
Defеndant filed a motion for appeal, which was granted. Subsequently, this court reversed Defendant's convictions finding the state failed to prove Defendant intended to exercise dominion or control over the firearm retrieved by the police from under the driver's seat of his girlfriend's vehicle. State v. Dabney,
ANALYSIS
Defendant аsserts in his lone remaining assignment of error that his sentences were excessive. Defendant acknowledges that trial counsel failed to file a motiоn to reconsider sentence, as required by La. Code Crim.P. art. 881.1. However, he argues the assignment should be reviewed under the aegis of an ineffective assistance of counsel claim, pursuant to Strickland v. Washington,
This court has chosen to review bare claims of excessiveness even when a defendant has failеd to file the statutorily-required motion. Thus, the Strickland argument need not be addressed, and we will proceed with the review of the assignment, as a bare claim of еxcessiveness.
Regarding excessiveness claims, we have stated:
The only relevant question on review, however, was "whether the trial court abused its broad sentencing discretion, not whether another sеntence might have been more appropriate." State v. Humphrey,445 So.2d 1155 , 1165 (La.1984) (citing State v. Williams,412 So.2d 1327 (La.1982)).
State v. Cook, 95-2784, p. 3 (La.5/31/96),674 So.2d 957 , 959, cert. denied,519 U.S. 1043 ,117 S.Ct. 615 ,136 L.Ed.2d 539 (1996). Further, the supreme court noted, "A trial judge has broad sentencing discretion because he or she remains in the best position to assess the aggravating and mitigating circumstances presented by each case." Id. at 958.
State v. Marcotte, 01-1586, pp. 17-18 (La. App. 3 Cir. 5/15/02);
As noted earlier, the court sentenced Defendant pursuant to
If the offender uses, possesses, or has under his immediate control any firearm, or other instrumentality customarily used or intended for probable use as a dangerous weapon, while committing or attempting to commit a crime of violence or while in the possession of or during the sale or distribution of a controlled dangerous substance, the offender shall be fined not more than ten thousand dollars and imprisoned at hard labor for not less than five nor more than ten years without the bеnefit of probation, parole, or suspension of sentence. Upon a second or subsequent conviction, the offender shall be imprisonеd at hard labor for not less than twenty years nor more than thirty years without the benefit of probation, parole, or suspension of sentence.
Whoеver is found guilty of violating the provisions of this Section shall be imprisoned at hard labor for not less than ten nor more than fifteen years without the benefit of probation, parole, or suspension of sentence and be fined not less than one thousand dollars nor more than five thousand dollars.
Thus, Defendant's seven-year sentence under R.S. 14:95(E) was in the middle range of possible sentences; while under R.S. 14:95.1, Defendant received the minimum sentence of ten years, with the minimum оne-thousand dollar fine. These sentences *786 were ordered to run concurrent with each other. In its reasons for sentencing, the court noted that it hаd reviewed the Pre-Sentence Investigation (PSI) report, and noted the guidelines of La.Code Crim.P. art. 894.1, as the following colloquy shows[1]:
THE COURT: Okay; anything further, any other inрut from any other source?
(No response)
THE COURT: There being none, the court is ready to pronounce sentence in this particular matter. As stated earlier, this court, еither every month or, certainly, every four months has sentencings that it hands down and the court has noted for the last two years and two months, since March 5, 1999, that thе Earl Dabney file was still in the sentencing file because it had been done and Mr. Dabney has not showed up for over two years and a bench warrant was issuеd for his arrest. However, Mr. Dabney did turn himself in and finally has showed up and was brought before the court at lineup during this week and then his sentencing was set for today so this matter could be concluded. This defendant was found guilty by jury verdict on December 22, 1998, on Count I, possession of a firearm while in possession or sale or distribution оf a controlled dangerous substance in violation of 14:95E. He was found guilty on December 22, 1998, Count II, convicted felon in possession of a firearm, in violatiоn of Revised Statute 95.1. The court has considered the input from the defendant, the input from the State, reviewed the presentence investigation. Even thе presentence investigation, Mr. Dabney, you didn't show up for that either, so at least you were consistent. The probation officer, Ms. Richardson, who triеd to contact you on several occasions, noted in her report that she was never able to get in touch with you and you failed to report for your interviews. Finally, you have appeared. This sentencing in this, Mr. Dabney, is such that the court has very little leeway insofar as the sentencing provisions in Titlе 14: Revised Statute 14:95.1 and 95E are very severe and mandatory sentencings, mandatory minimums, very serious penalties for those particular offenses. The court notes that Article 894.1, Subsection A(2) and (3) are pertinent in this particular matter, and those provisions are as follows: 894A(2) and (3), when a defendant has been сonvicted of a felony, the court should impose a sentence of imprisonment if any of the following occurs: Subsection A(2), the defendant is in need оf correctional treatment or custodial environment that can be provided most effectively by his commitment to an institution; and Subsection A(3), a lesser sentence would deprecate the seriousness of the defendant's crime....
Defendant is a second felony offender, and was on probation at the time he committed the offenses. The jurisprudence indicates Defendant's sentences were not excessive. See, e.g., State v. Daggs, 36,216 (La.App. 2 Cir. 8/14/02),
DECREE
For the foregoing reasons, Defendant's sentences are affirmed.
AFFIRMED.
NOTES
Notes
[1] Defendant's argument regarding article 894.1 is not addressed, as it does not fall under the aegis of a bare excessiveness claim. State v. Willis, 36,198 (La.App. 2 Cir. 8/14/02);