State v. MarksState v. Marks
The defendant, David A. Marks, was charged by Indictment with two counts of distribution of a controlled dangerous substance in violation of
Defendant was sentenced by the district judge to a term of 17½ years at hard labor. He appeals, arguing that this sentence was imposed without consideration of the sentencing guidelines of
LA.C.CR.P. ART. 894.1
Appellant contends that the trial judge insufficiently articulated the considerations and facts taken into account in imposing the defendant‘s sentence, as required by the provisions of
The trial judge noted that the defendant was a felony offender, a misdemeanor offender, and had once been a probationer following a conviction for the felony theft by fraud. It is also significant to note that the record contains a 10-page pre-sentence
The judge made it clear that he considered the pre-sentence report in an effort to find any mitigating factors urging leniency toward the defendant. There were none. The most positive statement that the report could make about the defendant was that he has three children. The report did mention that any probated sentences which the defendant received previously had been violated. The defendant himself was given the opportunity to present the court with any mitigating factors at the sentencing hearing, which he declined to do. The trial judge duly considered the letters submitted on behalf of the defendant urging a probated sentence, but concluded that in light of the facts before him, the defendant was unworthy of any consideration for a probated sentence. We agree.
It is well settled that every aggravating and mitigating circumstance need not be articulated. The record must reflect only that the sentencing guidelines were adequately considered. See: State v. Richardson, 438 So.2d 1315 (La.App. 3rd Cir. 1983), and the Supreme Court cases cited therein.
But even assuming, arguendo, that the district judge insufficiently articulated under
In our opinion, the trial judge adequately complied with
EXCESSIVENESS OF SENTENCE
The sentence of 17½ years at hard labor imposed by the district judge is well within the statutory limits. However, under the Louisiana Supreme Court‘s interpretation of
The pre-sentence investigation indicates that the defendant has a long history of criminal conduct, including many arrests, several misdemeanor convictions, and at least one prior felony conviction. He has only once held a job for any extended period, and then only for a year and a half.
Since our examination of the record has revealed adequate reasons for this sentence which is within the statutory limits, it cannot be set aside as excessive unless there has been a clear abuse of discretion by the trial judge. State v. Jones, 381 So.2d 416 (La.1980).
The standard for determining whether a trial judge has abused his discretion is whether the sentence imposed is grossly disproportionate to the severity of the crime. State v. Bonanno, 384 So.2d 355 (La.1980); State v. Goode, 380 So.2d 1361 (La.1980). To determine whether the penalty is grossly disproportionate to the crime, we must consider the punishment and the crime in light of the harm to society caused by its commission and determine whether the penalty is so disproportionate to the crime committed as to shock our sense of justice. State v. Brown, 412 So.2d 998 (La.1982); State v. Beavers, 382 So.2d 943 (La.1980).
Under the circumstances revealed by our examination of the record and the danger posed to society by distribution of dangerous drugs, we cannot find that the sentence imposed is so grossly disproportionate as to shock the sense of justice. We find no abuse of discretion.
Therefore, the sentence and conviction are affirmed.
AFFIRMED.
DOMENGEAUX, J., concurs and assigns brief reasons.
DOMENGEAUX, Judge, concurring.
I file this concurring opinion to reiterate my position as to 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 529; 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.