State v. MickeyState v. Mickey
The defendant, Albert Mickey, Jr., was originаlly charged by grand jury indictment with first degree murder, in violation of
1. The trial court erred in failing to follow the provisions of
2. The trial court erred in imposing an excessive sentence.
There is very little factual information about the instant offense in the record because the defense did not designate the trial transcript as part of the appellate record. At the original sentencing hearing, the trial court indicated that the defendant shot the victim in the head during the commission of an armed robbery.
ASSIGNMENT OF ERROR NUMBER ONE
In this assignmеnt of error, the defendant contests his adjudication as an habitual offender. Specifically, he contends that the testimony of the fingerprint expert was insufficient to establish his identity as the same person who сommitted the prior felonies, the state failed to prove the five year cleansing period in
An habitual offender hearing was conducted on January 28, 1991. To prove the defendant‘s prior felony conviсtions of attempted simple escape and attempted unauthorized use of a movable valued in excess of one thousand dollars, the state introduced S-1, a certified copy of the minutes, bill of information, and other pleadings in Ouachita Parish Docket No. 44362, and S-2, a certified copy of the defendant‘s “pen pack” from the Department of Public Safety & Corrections. S-3 and S-4 were certified copies of the minutes of the defendant‘s conviction and the original sentencing hearing for the instant offense of manslaughter. S-5 was a copy of the defendant‘s fingerprints attached to the indictment at the conсlusion of the original sentencing hearing. All of these exhibits were introduced into evidence without objection by the defense. William Null, who was a Captain and Chief of Detectives in the Houma Police Departmеnt until he retired in November of 1989, was accepted by the trial court as an expert in fingerprint identification. He testified that the photographic reproduction of the fingerprints in S-1 was of insufficient quality to make a comparison even with the aid of a magnifying glass. However, Mr. Null compared the fingerprints contained in S-2 (the defendant‘s “pen pack“) to the fingerprints contained in S-5 and concluded that they were the same. He also testified that he knew the defendant and had arrested the defendant for the instant offense. At the conclusion of Mr. Null‘s testimony, the state rested. The defense did not introduce any evidence. After entertaining argument, the trial court found the defendant to be a multiple offender. Considering the above documentary evidence and the expert fingerprint testimony, we find the state introduced sufficient proof of thе defendant‘s status as a multiple offender under
The documentary evidence introduced at the habitual offender hearing indicated the following: (1) the defendant committed the predicate felony offensеs of attempted simple escape (count 1) and attempted unauthorized use of a movable valued in excess of one thousand dollars (count 2) on February 10, 1986; (2) the defendant was sentenced on Januаry 8, 1987, to a total of four years at hard labor for these convictions; (3) the defendant was discharged from prison on March 10, 1989; and (4) he was convicted of the instant
This court has held that, before a defendant pleads guilty or stipulates to the charges in an habitual offender bill of information, the trial court must advise the defendant of the specific allegations contained in the habitual offender bill of information, his right to be tried as to the truth thereof, and his right to remain silent. See
For the above reasons, this assignment of error is meritless.
ASSIGNMENT OF ERROR NO. TWO
In this assignment of error, the defendant contends that the trial court еrred in imposing an excessive sentence.
The Code of Criminal Procedure sets forth items which must be considered by the trial court before imposing sentence.
Although a sentence falls within statutory limits, it may be excessive. State v. Sepulvado, 367 So.2d 762, 767 (La.1979). However, the trial court has great discretion in imposing a sеntence within the statutory limits; and such a sentence will not be set aside as excessive in the absence of manifest abuse of discretion. State v. Latiolais, 563 So.2d 469, 473 (La.App. 1st Cir.1990).
At the original sentencing hearing, the trial court provided extensive reаsons for imposing the maximum sentence of twenty-one years at hard labor. The trial court reviewed the defendant‘s criminal record, which consisted of a misdemeanor conviction for simple battery and thе two felony convictions for attempted simple escape and attempted unauthorized use of a movable valued over one thousand dollars. Because of the defendant‘s criminal record, the trial court found a strong likelihood that he would commit another crime if placed on probation. Reviewing the facts of the instant offense, the trial court found that the defendant had shot and killed the victim in аn unprovoked manner during the course of an armed robbery and stated that the defendant had not expressed
This court has stated that the maximum sentence may be imposed only in cases involving the most serious offenses and worst offenders. State v. Easley, 432 So.2d 910, 914 (La.App. 1st Cir.1983). When reviewing the facts of the instant offense at the original sentencing hearing, the trial court noted that the defendant shot the victim in the head at close range during an armed robbery. The trial court stated that defense counsel had done an “outstanding job” and considered the defendant “lucky” that he had not been convicted of second degree murder and subject to a sentence of life imprisonment.1 We find that the instant offense was clearly the worst type of offense in the category of manslaughter, and the defendant‘s criminal record indicated he is the worst type of offender. Considering the reasons for sentencing given by the trial court at the оriginal sentencing hearing, the circumstances of the instant offense, and the defendant‘s status as a multiple offender, we conclude that the instant sentence is not excessive.
This assignment of error is meritless.
PATENT SENTENCING ERROR
After reviewing the record, we have discovered a patent sentencing error. The trial court did not give the defendant credit for time served when the new sentence was imposed.
CONVICTION AND SENTENCE AFFIRMED AS AMENDED; REMANDED WITH ORDER.