State v. HoganState v. Hogan
The defendant Hogan was charged with attempted second degree murder. He was tried by jury and found guilty of aggravated battery (
On the night of October 16, 1982 Gary Simon and R.L. Smith were engaged in a dice game on the porch of a vacant house in Shreveport. Patrick Hogan approached the two and asked if he could join in the game. Simon refused the request, stating that Hogan was jinxing him. An argument ensued between the two. Shortly thereafter Hogan shot Simon twice in the back. As a result Simon was paralyzed from the chest down. As noted, Hogan was charged with attempted second degree murder.
Testimony at the trial describing the fracas was contradictory. Simon stated that during the argument the defendant left and went down an alley to retrieve a .22 caliber rifle. When he returned with the weapon, Simon jumped from the porch and stood between two houses with his hands raised to indicate he was surrendering. Since defendant continued advancing, Simon started to flee. Defendant shot him twice in the back, with the second shot severing his spinal cord.
On the other hand, both Smith and the defendant testified that during the argument it was Simon who first left the porch and said “just wait `til I get back.” The defendant then secured his rifle from a nearby location in order to protect himself from a possible attack by Simon. When
As explained above, the jury found defendant guilty of aggravated battery.
Prior to imposition of sentence the trial judge noted both aggravating and mitigating factors. With reference to the former he pointed out the seriousness of the harm done to the victim who is apparently relegated to the use of a wheel chair for life. Among mitigating factors listed by the trial court was the victim‘s provocation; the probability that the defendant would not commit other crimes; the hardship that imprisonment would cause the defendant‘s family; the defendant‘s insignificant criminal record; the defendant‘s good work record; and the defendant‘s good character.
The trial judge then observed that, because the defendant used a firearm in the commission of the crime, certain minimum penalties were mandated by
Notwithstanding any other provisions of law to the contrary, any person who uses a firearm or explosive device at the time he commits or attempts to commit the crime of second degree murder, manslaughter, aggravated battery, simple kidnapping, aggravated escape, aggravated burglary, or aggravated arson or attempted aggravated rape, attempted first degree murder or attempted aggravated kidnapping shall upon conviction serve a term of two years imprisonment for the first conviction and upon conviction for each second and subsequent offense listed in this Section, he shall serve a term of five years imprisonment. The penalty provided herein shall be in addition to any other penalty imposed under the provisions of this Title and such person shall serve the additional term of imprisonment without benefit of parole, probation, suspension of sentence or credit for good time and any adjudication of guilt or imposition of sentence shall not be suspended.
The prison terms provided under the provisions of this Section, shall run consecutively to any other penalty imposed upon conviction of any of the crimes listed in this Section.
When the court makes a finding that a firearm was used in the commission of a felony and when suspension of sentence is not otherwise prohibited, the court shall impose a sentence which is not less than:
(1) The maximum sentence provided by law, in the same manner as provided in the offense, if the maximum sentence is less than five years, or
(2) Five years, in the same manner as provided in the offense, if the maximum sentence is five years or more.
Imposition or execution of sentence shall not be suspended and the offender shall not be eligible for probation or parole.
Feeling bound by these two provisions, the trial judge imposed the minimum five year sentence under
Defendant argues that “the implementation of 893.1 and 14:95.2 has violated his right to a meaningful sentence which makes a measurable contribution to acceptable goals of punishment.” He further contends that these statutes kept the trial court from individualizing the sentence to the offender and the offense.
This argument has been leveled at the second degree murder and armed robbery statutes and has been rejected. See State v. Parker, 416 So.2d 545 (La.1982); State v. Victorian, 332 So.2d 220 (La.1976); State v. Lawry, 430 So.2d 153 (La.App. 2d Cir. 1983).
It may be argued that
In State v. Goode, 380 So.2d 1361 (La. 1980), the court considered the constitutionality of
Our case is distinguishable from Goode in that there is a maximum imposable sentence of twelve years, seven of which must be without benefit of parole, probation or suspension of sentence. The trial judge, for reasons expressed in the record, chose not to impose this maximum sentence.
To summarize, apparently motivated by a deep concern over the serious consequences of crimes involving the use of firearms, our legislature exercised its lawful prerogative in directing the imposition of a minimum sentence. This has been accomplished by the enactment of
The sentence imposed is not excessive. Consequently, the assignment of error is without merit.
Decree
Defendant‘s sentence is affirmed.
HALL, Judge, dissenting.
I do not believe that the legislature intended that both of the penalty enhancement statutes,
Suspension of sentence is “otherwise prohibited” for certain felonies such as armed robbery,
There is another reason for concluding that the legislature did not intend for the penalty provisions of
In sum, my view is that
I would set aside the sentence imposed in this case and remand with instructions that the defendant be resentenced in accordance with