State v. HodgesState v. Hodges
The defendant, Laura Hodges, was found to be a second felony offender after the state filed a habitual offender bill following her conviction on three counts of cocaine distribution. The trial judge sentenced her to nine concurrent years at hard labor on each count. The statutory sеntencing range was 15-60 years under
After the trial judge denied the state‘s motion to reconsider the sentence, it appealed.
For the following reasons, we affirm.
ASSIGNMENT OF ERROR
The sole issue is whether the trial court erroneously deviated from the sentencing guidelines without stating for the record the specific circumstances warranting a departure from the guidelines and the factual basis for the departure.
DISCUSSION
A conviction fоr distribution of cocaine carries a 5-30 years term of imprisonment. See
The state contends the trial judge failed to consider the sentencing guidelines which recommended a minimum sentence оf twelve and one-half year‘s to a maximum of fifteen years. The state directs this court‘s attention to the
Any person who has been convicted of a fеlony and adjudged an habitual offender shall receive an enhanced penalty as provided by
R.S. 15:529.1 , the Habitual Offender Law. In such cases, the enhancеd sentence may exceed the maximum sentence range specified in the appropriate cell in the sentencing grid. In such cases, the cоurt should impose the minimum sentence provided by law unless aggravating circumstances justify imposition of a more severe sentence.
Accordingly, the statе contends that “the maximum sentence under the sentencing guidelines was fifteen years; therefore, the defendant should not have received less than fifteen years.” The trial judge sentenced the defendant on each count to a term less than that mandated by
The state contends the trial court erred in deviаting from the sentencing guidelines without stating for the record the specific circumstances warranting a departure from the guidelines and a factual basis fоr the departure. See State v. Smith, 639 So.2d 237 (La.1994). The trial court relied on State v. Dorthey, supra, as its authority for departing from the provisions of
“if in this case when the defendant is ultimately sentenced, the trial judge were to find that the punishment mandated by
R.S. 15:529.1 makes no `measurable contribution to thе acceptable goals of punishment’ or that the sentence amounted to nothing more than `the purposeful imposition of pain and suffering‘, and is `grоssly 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 cоnstitutionally excessive.”
Dorthey, at 1280-1281. See also State v. Krogh, 630 So.2d 284 (La.App. 4th Cir.1993), where the fourth circuit acknowledged that under Dorthey, a trial court could possibly find that a minimum sentence under the Felony Sentencing Guidelines for a multiple offender is excessive.
Although Dorthey prоvides no guidance for this court to ascertain how specific a trial court must be when stating for the record the reasons for the imposition of a sentence less than the minimum provided by
At the hearing on the state‘s motion to reconsider the defendant‘s sentence, the trial
“[T]he court ought to have discretion to give a lesser sentence provided under the law within reasonable confines given thе facts and situation of the case. And that‘s what I did.” (Emphasis supplied).
The trial judges discussed State v. Dorthey, supra, at length and stated that:
“I‘m not saying the sentence of fifteen years is grossly out of proportion to the severity of the crime. But, I‘m saying in this case, however, fifteen years, in my opinion will amount to a reasonably [sic] excessive sentence, and in my opinion an unconstitutional sentence because I feel, as the trial judge, that a lesser sentence would adequately satisfy her conduct and would give her an opportunity to become reunited with hеr family and at the same time give her adequate punishment for what she done [sic], nine years ...”
At the sentencing, the judge felt that the defendant was not a “hard core” criminal. He thought the nine year term would be “a fair, sentence,” and
“[t]o give more time just because the guidelines say so, would be just imposing punishment without any ... not satisfying myself that it was reasonable. So, I did what I thought was reasonably fair under the circumstances.” (Emphasis supplied).
We feel the reasons given by the trial judge were abundantly sufficient to depart from the mandatory provisions of
Moreover, “... the 1974 Louisiana Constitution, Article I, Section 20 `gives the courts, in the exercise of their judicial power, a basis for determining that sentences, whether fine, imprisonment or otherwise, though not cruel or unusual, are too severe as punishment for certain conduct and thus unconstitutional. It is a basis for extending the court‘s сontrol over the entire sentencing process.‘” Dorthey, 623 So.2d at 1280, quoting State v. Sepulvado, 367 So.2d 762, 767 (La.1979). The trial judge in this case did exactly what he was constitutionally empowered to do.
ERRORS PATENT
Also, the defendant was not informed of her right to remain silent at the habitual offender hearing. However, as the defendant remained silent throughout the proceedings and the state put on competent evidence to prove that the defendant was the same person convicted of a prior felony in Texas, the error is hаrmless. See State v. Carouthers, 607 So.2d 1018 (La.App. 3d Cir.1992), vacated on other grounds, 618 So.2d 880 (La.1993).
For the foregoing reasons, the defendant‘s convictions and sentences are affirmed. This case is remanded and the district court is ordered to amend the commitment and minute entry of the sentences to reflect that the defendant is given credit for time served.
AFFIRMED AND REMANDED WITH INSTRUCTIONS.