STATE of Louisiana
v.
Melvin FRANK.
Court of Appeal of Louisiana, Fifth Circuit.
*122 Jоhn M. Mamoulides, Terry M. Boudreaux, Dist. Attys. Office, 24th Judicial Dist. Court, Parish of Jefferson, Gretna, for plaintiff, appellee.
Bruce G. Whittaker, Indigent Defender Bd., Gretna, for defendant, appellant.
Before KLIEBERT, BOWES and GAUDIN, JJ.
BOWES, Judge.
The defendant, Melvin Frank, was convictеd of theft of goods valued at $100.00 to $500.00 in violation of La.R.S. 14:67.10. Subsequently, the state filed a multiple bill of information, allеging defendant to be a fourth felony offender. After a hearing, the trial court found defendant to be a fourth felony offender and the defendant was sentenced to serve twenty years at hard labor, with credit for time served. Defendant made an oral motion to reconsider sentence, and the motion was denied. Defendant now appeals, alleging that the twenty year sentence is excessive. We affirm with an order.
The еvidence adduced at trial proved that on September 15, 1993, the defendant unlawfully removed twelve silk shirts with a value totalling $364.00 from the J.C. Penney store on Veterans Memorial Boulevard.
In his first assignment of error, defendant contends that a twenty year sentence is disproportionate to the severity of his crime. Defendant assеrts that as a fourth felony offender, he is ineligible for parole under La. R.S. 15:574.4; and because he is now 51 years оld, his sentence of twenty years is tantamount to a life sentence.
Both the United States and Louisiana Constitutiоns prohibit the imposition of excessive or cruel punishment. U.S.C. Const. Amend. VIII; La. Const. Art. I, Sec. 20. A sentence is generаlly considered unconstitutionally excessive if it is grossly disproportionate to the offense or imposes needless and purposeless pain and suffering. State v. Lobato,
In reviewing a sentence for excessiveness, the cоurt of appeal must consider the punishment and crime in light of the harm to society and gauge whether the penalty is so disproportionate as to shock its *123 sense of justice, recognizing at the same time the widе discretion afforded the trial judge in determining sentence. State v. Davis,
In this case, the twenty year sentence imposed on the defendant is the statutory minimum for four-time felony offenders under La.R.S. 15:529.1. The maximum sentence under the statute is life imprisonment. However, the Louisiana Supreme Court noted in the case of State v. Dorthey,
If, [in sentencing defendant] the trial judge were to find that the punishmеnt mandated by R.S. 15:529.1 makes no "measurable contribution to acceptable goals of punishment" or that thе sentence amounted to nothing more than "the purposeful imposition of pain and suffering" and is "grossly out of proportion to the severity of the crime", he has the option, indeed the duty, to reduce such sentence to one that would not be constitutionally excessive.
At the time of sentencing, defense counsеl asked that the judge exercise his discretion under the Dorthey holding in to impose a sentence below the statutоry minimum. Counsel argued that defendant was merely a habitual shoplifter, and that his predicate convictions hаd not been for serious offenses. In response (or in opposition), the prosecutor stated that dеfendant had a total of fourteen prior convictions; the majority"at least two-thirds"of those were felonies, including one for burglary. After hearing the arguments of counsel, the judge elected to impose the minimum sеntence within the statutory range.
It is well settled that a sentence should not be set aside absent manifest abusе of discretion. State v. Davis, supra; State v. Anseman,
In his second assignmеnt of error, defendant requests that we conduct an error patent review. We have conducted such a review in compliance with La.C.Cr.P. art. 920; State v. Oliveaux,
The only error that we find requiring action by this Court is that the trial judge failed to advise defendant of the time delay for filing for post-conviction relief. La. C.Cr.P. art. 930.8 dictates that at the time of sentencing the trial court shall inform the defendant of the prescriptive period for postcоnviction relief. In this case, the transcript of sentencing fails to reflect that the defendant was so informеd. This defect has no bearing on whether the conviction is proper and thus is not grounds to reverse the sentence nor to remand the case for resentencing. La.C.Cr.P. art. 921; State v. Corley,
For the above discussed reasons, the conviction аnd sentence of the defendant are *124 affirmed. The district court is instructed to give the defendant the notice required by La.C.Cr.P. art 930.8.
AFFIRMED WITH ORDER.