State v. PhillipsState v. Phillips
By a bill of information filed on April 4, 1979, the defendant, Willie E. Phillips, and three others, were jointly charged with
ASSIGNMENTS OF ERROR NOS. 1, 2, 3 & 4
The defendant contends that the District Court erred when it relied on the original and supplemental pre-sentence reports which did not include information concerning the particular role played by the defendant in the commission of the crime and did not refer to the defendant‘s cooperation with the police and prosecution in the resolution of the case. The defendant contends that these omissions are in violation of Article 875 of the Code of Criminal Procedure which requires the investigating officer to “inquire into the circumstances attending the commission of the offense,...“.
On March 16, 1981, the defense counsel wrote a letter to the investigating officer requesting that she interview Gerald Byers, a Jefferson Parish policeman, who would furnish information concerning the help given by the defendant to the police and the State, and interview a co-defendant, William Bode, who was given a suspended sentence and placed on probation, concerning the defendant‘s degree of participation in the commission of the crime.
Counsel for the defendant did not subpoena William Bode or Gerald Byers for the second sentencing hearing. Counsel for the defendant indicated that he had spoken to counsel for Bode and was advised that Bode would not go to court to testify at a sentencing hearing or for any other reason. Counsel for the defendant indicated in his brief that the reason he did not subpoena Bode was because he “could not rely on his truthfulness in the courtroom.” As an alternative, he requested that the investigating officer interview Bode concerning Phillips’ participation in the crime for inclusion in the second pre-sentence report. Counsel for Phillips indicated that he did not subpoena Byers because he felt that the information that Byers possessed would be included in the pre-sentence report.
The information concerning the degree of participation of the defendant in the crime and his cooperation with the State and the police was brought to the trial court‘s attention by way of a copy of the March 16, 1981, letter which was filed into evidence and by oral argument of counsel at the resentencing hearing. The defendant had the opportunity to subpoena Byers and Bode and chose not to do so. The defendant was interviewed for the original presentence report and given an opportunity to
The defendant next contends that the trial court erred “in placing undue emphasis on an allegedly incomplete community work probation requirement.” A review of the transcript of the re-sentencing proceeding shows that the trial judge quoted from the second pre-sentence investigation and indicated that the defendant only completed from 96 to 160 hours of the 200 hours of public work required by his prior probation but that otherwise his probationary period was considered satisfactory. Counsel for the defendant did not request a continuance or recess to subpoena the probation officer or the person who supervised the community service to explain this statement, nor did counsel contest the accuracy of this statement. Counsel for the defendant was given an opportunity to argue what weight should be attached to this information. While the record reflects that this was a factor considered by the trial judge, it does not reflect what weight he gave it.
The defendant claims that the trial court erred by failing to comply with the sentencing guidelines of Article 894.1 of the Code of Criminal Procedure and that the sentence imposed is excessive. The defendant asserts through counsel that he did not enter the home of the victim and only furnished transportation to those who did and that through his cooperation with the police this case was solved and his co-defendants convicted. Defendant further asserts that he is married with one child and one expected, that he has been regularly employed for over one year and entered into an asbestos worker apprentice program at the time of re-sentencing. The defendant argues that had the trial judge properly considered these factors, his sentence to confinement would have been suspended and that he would be given probation.
A majority of this court has held that
The record reflects that on re-sentencing the trial court again did not adequately consider the 894.1 guidelines in particularizing the sentence of the defendant.3 State v. Vaughn, 378 So.2d 905 (La.1979); State v. Franks, 373 So.2d 1307 (La.1979). However, where the sentence imposed is not “apparently severe” this court will not remand for compliance with Article 894.1. State v. Bowick, 403 So.2d 673 (La.1981); State v. Day, 391 So.2d 1147 (La.1980); State v. Jones, 381 So.2d 416 (La.1980).
The original pre-sentence investigation indicates that on February 16, 1979, an inhabited dwelling in Harahan, Louisiana, was burglarized. An automobile, a color television, a stereo, and five firearms were taken from the premises. All of the items taken were subsequently recovered by the Jefferson Parish Sheriff‘s Office and were returned to their owner, except one firearm. The color television and stereo were found broken but the owner‘s insurance company paid for the damages.
A second relevant factor is that the instant offense was committed while the defendant was still on active probation. A review of the original pre-sentence investigation shows that on August 31, 1978, after pleading guilty to a charge of unauthorized use of a movable (misdemeanor), the defendant was sentenced to serve ninety days in the Jefferson Parish Prison, which sentence was suspended and he was placed on active probation for a period of six months which terminated on February 29, 1979.5 The crime occurred on February 16, 1979. In his per curiam filed after original sentencing, the trial judge emphasized that “the defendant had already received the benefits of probation/suspension of sentence on an earlier charge and was in fact on probation at the time of the commission of the crime charged (although not revoked)“... and that “he did not profit from the experience.”6 Obviously, the defendant did not respond affirmatively to probationary treatment.
In addition, during this simple burglary of an inhabited dwelling, five firearms were taken and one was not returned.
After balancing the aggravating factors with the mitigating factors of record, it cannot be said that the sentence is excessive since it falls into the lower range of what could have been imposed and is not “apparently severe“. At the re-sentencing the trial judge reduced the sentence from three years in the penitentiary to eighteen months in the Parish Prison. Clearly he must have considered mitigating factors brought to his attention. It would serve no useful purpose to remand this matter again for re-sentencing for failure to comply with Article 894.1 or for any other reason.
Assignments of Error Numbers 1, 2, 3 and 4 are without merit.
DECREE
For the reasons assigned, the defendant‘s sentence is affirmed.
AFFIRMED.