State v. HammondState v. Hammond
R. Greg Fowler, Robert G. Levy, Asst. Dist. Atty., Alexandria, for plaintiff-appellee.
DOMENGEAUX, Judge.
Defendant, Leroy Hammond, was indicted by a Rapides Parish Grand Jury for possession with intent to distribute cocaine, in violation of
ASSIGNMENT OF ERROR NO. 1
By this assignment of error, defendant argues that his sentence is unconstitutionally excessive and that the trial judge did not comply with the sentencing guidelines of
The punishment for violation of
Since the defendant was sentenced to the mandatory minimum sentence of five years, the issue here is whether the trial judge erred in not suspending his sentence and placing him on probation.
Article 1, Section 20 of the Louisiana Constitution prohibits the imposition of excessive punishment. A sentence may be within the statutory limits, yet still be violative of a defendant‘s constitutional right against excessive punishment. State v. Sepulvado, 367 So.2d 762 (La.1979).1 A sentence is excessive if it is grossly out of proportion to the severity of the crime, or if it is nothing more than a purposeless and needless imposition of pain and suffering. State v. Viator, 495 So.2d 1341 (La.App. 3rd Cir.1986). The sentencing judge, however, is given wide discretion in the imposition of sentencing and his decision should not be upset absent a manifest abuse of that discretion. Viator, supra; State v. Granier, 442 So.2d 1162 (La.App. 3rd Cir. 1983), writ denied, 444 So.2d 1214 (La. 1984).
Furthermore, even if the sentencing judge failed to adequately consider the statutory guidelines, where the sentence imposed is not apparently severe and is in the lower range of the sentencing scale, an appellate court need not remand for compliance with Article 894.1. State v. Vital, 491 So.2d 180 (La.App. 3rd Cir.1986).
The defendant argues that the sentencing guidelines of
In support of the defendant‘s position were numerous letters received from members of his community. The defendant also stated that he was and is willing to submit to a substance abuse program and to testing to satisfy the court that he is free from any drug use.
Opposing the defendant‘s request for a suspended sentence or probation is the presentence report. Additionally, the State contends that defendant‘s sentence is not excessive and that the defendant‘s assertions that he was just along for the ride are contrary to the evidence. The State submits that a statement from the defendant‘s co-defendant Clyde Jackson supports their contention that the defendant here was planning to rob the narcotics agents at the time the drugs were to be purchased. In addition, the State claims that the dismissal of the conspiracy to commit armed robbery count was the result of plea negotiations. This is corroborated by the defendant‘s “Petition to Enter Plea of Guilty and Order“.
The trial judge, relying on the presentence report which is in the record, believed that the defendant was still involved in dealing drugs, although defendant denies this. The trial judge also believed, based on the presentence report, that defendant was planning to “rip off” the narcotics agents. He took these factors into account in sentencing the defendant.
Our review of the record shows that the sentencing judge considered the possibility of suspending the defendant‘s sentence or of placing him on probation. The defendant‘s counsel vigorously argued this position at the sentencing hearing. We find that the sentencing judge‘s imposition of the minimum sentence of imprisonment demonstrates that he did consider the applicable mitigating factors, but that, given the facts of this case, he nonetheless concluded that a term of imprisonment was warranted. We conclude that the sentencing judge‘s decision not to suspend the defendant‘s sentence or to place him on probation was not an abuse of his discretion.
Furthermore, since the sentence imposed is not apparently severe and is in the lower range of the sentencing scale, a remand for compliance with
We are also convinced that the sentencing judge did not impermissibly sentence the defendant as an example to society. A desire to teach others a lesson is not an acceptable basis for imposing a particular penalty on a defendant. State v. LaFleur, 391 So.2d 445 (La.1980); State v. Vampran, 459 So.2d 1333 (La.App. 1st Cir. 1984). The record reveals that in this case the sentencing judge properly individualized the sentence he gave the defendant. The judge particularly took into account the circumstances surrounding the crime, as well as the defendant‘s youth and the support members of his community had given him. While the sentencing judge expressed his general concern about the trafficking of drugs, it is clear that in sentencing the defendant he particularized the penalty based on the facts in this case.
Finally, we conclude that the defendant‘s sentence of five years at hard labor is not unconstitutionally excessive. The maximum possible sentence the defendant was exposed to was thirty years imprisonment at hard labor. The trial judge gave him the minimum term under the statute. This sentence is not so disproportionate given the facts surrounding the defendant‘s participation in the crime so as to shock our sense of justice, nor so excessive, given the sentencing court‘s wide discretion, that it can be considered an abuse of that court‘s discretion. Therefore we do
For the foregoing reasons, the defendant‘s sentence is affirmed.
AFFIRMED.
NOTES
Notes
Notes
The author of this opinion is compelled to again state his position as to appellate review of sentences for excessiveness. Our state constitution does not provide for nor does it mandate judicial review of sentences which fall within the limits set by the respective criminal statutes. See State v. Goodman, 427 So.2d 529 (La.App. 3rd Cir.1983), concurring opinion at 533; State v. Vallare, 430 So.2d 1336 (La.App. 3rd Cir. 1983), concurring opinion at 1339, writ denied, 433 So.2d 729 (La.1983). See also State v. Shelby, 438 So.2d 1166 (La.App. 3rd Cir.1983), concurring opinion at 1169; see also State v. Rainwater, 457 So.2d 1280 (La.App. 3rd Cir.1984), concurring opinion at 1282.