State v. HayesState v. Hayes
Charged by a Bill of Information with 11 counts of simple burglary of an inhabited dwelling (
EXCESSIVENESS
In fulfilling our constitutional obligation to evaluate a sentence for excessiveness we must first examine whether the record demonstrates consideration by the trial judge of the criteria set forth in
Next, an appellate court must determine if the sentence is unconstitutionally excessive because it is too severe given the background of the defendant and the circumstances of the case.
Defendant contends that the trial court should have imposed a lesser sentence because his psychological evaluations identified him as a kleptomaniac driven to break the law. Although his profile was one of a severely depressed, dysfunctional individual, defendant could distinguish right from wrong.
The trial judge considered defendant‘s prior adult record which included five pending misdemeanor counts of issuing worthless checks. Also contained in the record is information from the Ruston Police Department that items seized during the search of defendant‘s apartment resulted in police clearing an astounding 48 burglaries. Additional information from the Monroe Police Department strongly suggests that defendant is the culprit behind a series of unauthorized uses of credit cards stolen from patients at the hospital where defendant worked as a laboratory technician. In selecting a proper sentence a trial judge is not limited to considering only a defendant‘s prior convictions and may review criminal activity. State v. Palmer, 448 So.2d 765 (La.App. 2d Cir.1984), writ denied, 452 So.2d 695 (La.1984).
The burglaries in this case occurred between July and September 1989. Defendant pled guilty to two of the burglaries committed on July 9 and September 11. Having occurred two months apart these crimes did not arise out of the same course of conduct. Defendant could have been sentenced to 12 years on each count, consecutively, for a total of 24 years in prison. Defendant faced a maximum exposure of 12 years imprisonment at hard labor for each of the eleven counts charged in the Bill of Information. By agreeing to allow a plea to two counts, the state effectively allowed defendant to cut his exposure to imprisonment from 132 years to 24 years. Defendant received a substantial benefit from this plea bargain. A plea that brings about such substantial benefits is a legitimate consideration in sentencing. State v. Robinson, 599 So.2d 467 (La.App. 2d Cir. 1992).
Considering defendant‘s prior misdemeanors, his short but ample criminal career, his unimpaired perception of right from wrong and the likelihood that defendant will commit additional crimes in the future, it does not appear that his sentences are excessive.
ERRORS PATENT
We examined the record for error patent and found none; however, because this circuit has not addressed the question of this type of “split” sentence, we considered the propriety of ordering a part of a sentence to be served consecutively.
If the defendant is convicted of two or more offenses based on the same act or
transaction, or constituting parts of a common scheme or plan, the terms of imprisonment shall be served concurrently unless the court expressly directs that some or all be served consecutively. Other sentences of imprisonment shall be served consecutively unless the court expressly directs that some of them be served concurrently. In the case of the concurrent sentence, the judge shall specify, and the court minutes shall reflect, the date from which the sentences are to run concurrently.
The type of “split” sentence imposed against defendant has been held to be permissible. In State v. Johnson, 450 So.2d 48 (La.App. 3rd Cir.1984), the Third Circuit found that Art. 883 permitted the trial judge to order that a portion of a sentence be served concurrently and the remainder consecutively. Also, see State v. Logan, 498 So.2d 1197 (La.App. 3rd Cir.1986), writ granted in part only to give credit for time served, 503 So.2d 1013 (La.1987), wherein the Supreme Court affirmed sentences of 5 years each for two counts of distribution of cocaine in which 2 years of the second sentence were to be served consecutive to the first sentence. We find that
AFFIRMED.