State v. PhillipsState v. Phillips
Danny Phillips was charged with indecent behavior with a juvenile in violation of
The victim was an eleven year old girl suffering from brain cancer, with attendant problems.
The sentencing range for indecent behavior with a juvenile is imprisonment with or without hard labor for not more than seven years or a fine of not more than five thousand dollars, or both.
In imposing sentence the trial judge stated that he had reviewed a presentence report and reviewed the defendant‘s lengthy criminal record. He found this to be a particularly heinous offense without cause or justification. He felt there was undue risk that the defendant would commit another crime if placed on probation or if his sentence was suspended and that a lesser sentence would deprecate the seriousness of the crime. The child was psychologically injured and having problems because of the actions by defendant. The presentence report reveals the defendant is a fourth felony offender.
The record reveals that the trial judge carefully considered the sentencing guidelines.
Although not raised on appeal, we learn from examining the record that appellant had prior felony convictions. Thus he was not eligible for suspension of any portion of his sentence.
We are aware that in an earlier opinion [State v. Solomon, 549 So.2d 938 (La. App.3d Cir.1989)] the case was remanded for correction of an illegally lenient sentence. No writ application was made to the Supreme Court in Solomon. In that case the illegal portion of the sentence provided for “unsupervised” probation whereas “supervised” probation was required by the statute. No jail time was involved. The Supreme Court in Fraser stated that “there is no codal or statutory authority for an appellate court to search the record for patent sentencing errors to the detriment of the only party who sought review by the appellate court.” In the present case, although the defendant appealed his sentence, he did so on grounds of excessiveness only. The illegal portion of the sentence is favorable to the defendant. We find that Fraser is controlling.
Further it offends a sense of “fairness” to subject the defendant to the possibility of a harsher sentence when the state has not complained of the sentence. Such action would have a chilling effect on the right of a defendant to seek appellate review.
The conviction and sentence will be affirmed.
AFFIRMED.
DOMENGEAUX, J., dissents and issues reasons.
DOMENGEAUX, Chief Judge, dissenting.
I respectfully dissent, being of the opinion that this court should remand the case for correction of the defendant‘s illegal sentence.
Due to his previous felony convictions, the defendant was ineligible for a suspension of any portion of his sentence; nonetheless, the trial court sentenced him to serve seven years with two years suspended. On appeal, the defendant argues this sentence is excessive.
In State v. Fraser, 484 So.2d 122 (La. 1986), the Supreme Court held that there is no codal authority for an appellate court to search the record for patent sentencing errors to the detriment of the only party seeking appellate review. However, in the instant case, the defendant specifically asked us to review his sentence by assigning its excessiveness as an error. The sentencing
The majority opinion runs astray of Solomon, resulting in different conclusions in our circuit.
I respectfully dissent.