State v. SewellState v. Sewell
The defendant, Ricky Lee Sewell, was convicted of obtaining possession of a controlled dangerous substance by fraud in violation of
The evidence reveals defendant used a forged prescription to obtain preludin from a pharmacy. A presentence investigation report compiled at the direction of the trial judge shows defendant has an extensive history of criminal conduct. After reviewing the information contained in the presentence report at the sentencing hearing, the trial judge based the sentence upon his findings that: there is an undue risk defendant will commit other crimes if not incarcerated; defendant is in need of correctional treatment; and any lesser sentence would deprecate the seriousness of the instant offense.
ASSIGNMENT OF ERROR # 1
Defendant contends the trial judge failed to comply with the sentencing guidelines of
A list of aggravating and mitigating circumstances the trial judge should consider in determining the sentence to be imposed upon a defendant is contained in
The record does not reveal whether the trial judge considered any mitigating circumstances in imposing sentence but that fact alone does not mean that defendant‘s sentence must be vacated. The trial court‘s failure to comply with 894.1 does not, in and of itself, render a sentence invalid. The sentence will be upheld if the record clearly illumines and supports the sentencing choice. State v. Smith, 430 So.2d 31 (La.1983); State v. Williams, 397 So.2d 1287 (La.1981). For reasons stated in our discussion of Assignment of Error # 2, the record clearly illumines and supports the sentencing choice.
ASSIGNMENT OF ERROR # 2
By this assignment defendant contends his sentence is excessive.
The presentence report, which defendant does not dispute, reveals that defendant had a prior felony conviction and was on probation for that conviction at the time of the commission of the instant offense.1 There is now pending a charge of being a fugitive from justice as a result of violation of probation. The defendant has four prior misdemeanor convictions, one of which was drug related, and one of which involved a crime against the person. In addition defendant has been arrested on felony charges on at least four other occasions. Many of the offenses charged against the defendant involve violence to the person and he was previously arrested on another forged prescription charge. Although many of these arrests did not result in convictions, the trial judge properly considered them in selecting a sentence. See
This assignment of error lacks merit.
ASSIGNMENT OF ERROR # 3
Defendant contends the trial court erred in imposing both the maximum prison term and maximum fine. He argues that since the maximum prison term was imposed, a fine could not be imposed because the failure to pay the fine would result in imprisonment beyond the statutory maximum. This argument has been rejected in cases where the defendant is not indigent. State v. Lukefahr, 363 So.2d 661 (La.1978); State v. Barnes, 365 So.2d 1282 (La.1978). Defendant was represented by retained counsel and there was no showing he was otherwise indigent.
This assignment of error lacks merit.
Defendant‘s sentence is AFFIRMED.