State v. GuajardoState v. Guajardo
Defendant John Anthony Guajardo was charged by bill of information with simple burglary. Defendant pleaded guilty as charged and was sentenced to eighteen months in the parish prison. Several minutes later, at defense counsel‘s request, the trial judge vacated the sentence for the purpose of hearing defense counsel speak in mitigation of defendant‘s punishment. The next day, however, the judge imposed a more severe sentence of six years at hard labor. Defendant appeals, contending that the trial court violated constitutional and
Prior to accepting defendant‘s guilty plea, the court adduced the following facts concerning the commission of the offense. On Saturday, August 15, 1981, at about 11:30 a.m., defendant unlawfully entered a law office by prying open a back door. Defendant took $14.00 in currency from the office and did some minor damage to the door of the building. Notified of the break-in by a neighbor, the police observed defendant flee the building through a window. The officers pursued him on foot and defendant was apprehended shortly thereafter when he was found hiding underneath a house. On December 7, 1981, defendant pleaded guilty to the charge of simple burglary. The plea was accompanied by a joint recommendation of the state and defense counsel for a two-year sentence, based on their belief that the eighteen year-old defendant had no prior criminal record. The trial judge imposed a sentence of eighteen months in the parish jail. The judge remanded defendant to the custody of the sheriff and recessed the court for fifteen minutes.
During the recess, defense counsel informed the judge of the latter‘s failure to allow him to speak in mitigation of defendant‘s punishment prior to sentencing, and asked for the opportunity to do so. Accordingly, the trial judge immediately reconvened court, vacated the sentence and allowed the defense counsel to present his argument. The trial judge was persuaded by the argument to reconsider the sentence and postponed resentencing until the next day.
Before resentencing defendant the following day, the trial judge independently inquired into whether defendant had a juvenile record. He discovered that defendant, under a different name, had twice been adjudicated a delinquent for burglary and theft in the prior four years and had served nine months in the juvenile correctional center for the second offense. After confirming this information in open court, the trial judge sentenced defendant to six years at hard labor.
Defendant argues that the trial judge erred in vacating the initial sentence because the execution of the eighteen month jail sentence had already begun. He bases his argument on
Although the sentence imposed is legal in every respect, the court may amend or change the sentence, within the legal limits of its discretion, prior to the beginning of execution of the sentence.
Our law does not precisely fix the point at which execution of a jail sentence without hard labor commences. However, after consideration of our statutes regarding execution of sentences, we conclude that defendant in the present case had not begun execution of his eighteen month sentence when it was vacated by the trial judge. The language of Article 881 itself indicates that the execution of a sentence does not commence with its imposition, since the article contemplates a period of time after its imposition during which the trial judge may amend the sentence. Furthermore, our law fixes the day after imposition as the point of commencement of a hard labor sentence.
However, neither interest was impaired by the trial judge‘s actions in the present case. Since we have found that defendant never began execution of his first sentence, the prohibition against double punishment poses no obstacle to the imposition of the second sentence. The protection given to a defendant‘s interest in the finality of his judgment is designed to prevent
repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty. Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957).
A defendant‘s interest in finality is most apparent when the state attempts to reprosecute him after it obtains a mistrial. The double jeopardy clause immunizes a defendant from reprosecutions after mistrials that are provoked by the state to harass the accused or strengthen its case. United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976); United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971). However, this interest in finality is not served, and the double jeopardy clause generally does not prevent a reprosecution where the defendant has requested a mistrial. Lee v. United States, 432 U.S. 23, 97 S.Ct. 2141, 53 L.Ed.2d 80 (1977); United States v. Jorn, supra. Similarly, when a new trial is granted to a convicted defendant at his own request, double jeopardy does not preclude reprosecution on the same charge. State v. Smith, 406 So.2d 1314 (La.1981).
In the present case, defendant‘s initial sentence was vacated by the trial judge at the request of defendant‘s own counsel, who sought to persuade the judge to reconsider the terms of the sentence. The vacation of the first sentence was not the product of prosecutorial overreaching that usually raises the double jeopardy bar to reprosecution. Defendant‘s interest in preserving the finality of his first sentence was prejudiced only by his own counsel‘s act to disturb it. Just as a new trial or mistrial granted at defendant‘s request will not prevent reprosecution, we believe that the vacation of defendant‘s sentence prior to its execution does not preclude the imposition of another sentence.
Defendant argues that successive sentencings for the same offense violates double jeopardy under North Carolina v. Pearce, supra. This reliance is totally misplaced. In that case, defendant was convicted and served several years of his sentence before his conviction was reversed. He was then retried, convicted and sentenced to a term which, when added to the time he had already spent in prison, amounted to a longer sentence than that originally imposed. The U.S. Supreme Court held that double jeopardy does not impose a barrier to a more severe sentence upon reconviction. The Court explained:
A trial judge is not constitutionally precluded, in other words, from imposing a new sentence, whether greater or less than the original sentence, in the light of events subsequent to the first trial that may have thrown new light upon the defendant‘s “life, health, habits, conduct, and mental and moral propensities.”
Williams v. New York, 337 U.S. 241, 245, 93 L.Ed. 1337, 1341, 69 S.Ct. 1079 [1082]. Such information may come to the judge‘s attention from evidence adduced at the second trial itself, from a new presentence investigation, from the defendant‘s prison record, or possibly from other sources. The freedom of a sentencing judge to consider the defendant‘s conduct subsequent to the first conviction in imposing a new sentence is no more than consonant with the principle, fully approved in Williams v. New York, supra, that a State may adopt the “prevalent modern philosophy of penology that the punishment should fit the offender and not merely the crime.” Id., at 247, 93 L.Ed. at 1342 [69 S.Ct. at 1083].
395 U.S. at 723, 89 S.Ct. at 2079-80, 23 L.Ed.2d at 668.
However, the Court further held that, in order to assure that the trial court was not motivated by vindictiveness, due process requires that the reason for imposition of a more severe sentence after a new trial must affirmatively appear in the record. At 726, 89 S.Ct. at 2081, 23 L.Ed.2d at 670.
The record in this case reveals that defendant was initially sentenced to eighteen months in the parish prison following the innocent misrepresentations of the state and defense counsel of defendant‘s favorable work history and lack of a criminal record. The trial judge‘s independent discovery of contrary facts certainly justified his reconsideration of the appropriateness of the initial sentence. Furthermore, the judge satisfied due process by carefully articulating these reasons in imposing a heavier penalty upon resentencing.
Defendant nevertheless protests that the reformation of his sentence from eighteen months to six years at hard labor amounts to cruel, excessive and unusual punishment. Both state and national constitutions prohibit the infliction of cruel and unusual punishments.
Our state constitution also offers explicit protection against excessive punishment.
In State v. Telsee, supra, we recently articulated some factors that guide our determination of whether a particular sentence is unconstitutionally disproportionate. We first determine whether the trial court adequately tailored the punishment within the statutory framework to the circumstances of the offense and the particular
Our consideration of these factors leads us to conclude that a sentence of six years at hard labor does not constitute excessive punishment. In imposing the sentence, the trial judge acknowledged that the unarmed daytime burglary of an office did not threaten serious harm to others. However, the judge properly considered defendant‘s multiple juvenile convictions in setting the sentence. State v. Tucker, 354 So.2d 521 (La.1978). The judge emphasized the fact that defendant‘s prior two convictions consisted of burglaries, and the present burglary occurred only nine months after his release from the correctional institute. On the basis of defendant‘s recidivism, the trial judge properly found that he was not a suitable candidate for probation. Furthermore, the duration of the sentence is not excessive, in light of the fact that the offense of simple burglary carries a maximum sentence of twelve years at hard labor.
Accordingly, we affirm the sentence of six years at hard labor for defendant‘s conviction of simple burglary.
AFFIRMED.
LEMMON, J., concurs and assigns reasons.
LEMMON, Justice, concurring.
Now that appellate courts have jurisdiction to review sentences for excessiveness (as well as for compliance with Art. 894.1), judicial efficiency requires that a defendant be afforded some procedure by which he may move for reconsideration of the sentence (or for compliance with
In the present case, defendant pleaded guilty and was sentenced on the same day. Although defendant was not entitled to move for a new trial of the issue of guilt, his motion was, in effect, a motion for a new trial on sentence only. This court should recognize defendant‘s postsentence motion as a jurisprudentially approved procedural device complementing the efficient operation of existing trial and appellate procedures. See
Because defendant moved for a reconsideration of his sentence within a reasonable time and his timely motion was granted, he is precluded on appeal from complaining that the trial judge granted defendant‘s own motion.