State v. SmithState v. Smith
The defendant, Elmore Smith, was charged by bill of information with distribution of marijuana in violation of
The charge against defendant arose when he procured a small quantity of marijuana valued at $20.00 for one Edward Murphy at the latter‘s request. Defendant was observed delivering the marijuana by a Louisiana State Police Narcotics Officer. The pre-sentence report, compiled at the direction of the trial judge, reveals that defendant, age 46, has been a resident of Rayville, Louisiana, for ten years, and has been employed by Shoemaker & Son‘s Welding for the past ten years. Defendant
The sentencing judge is given wide discretion in imposing a sentence within the statutory limits and such a sentence should not be set aside as excessive in the absence of a manifest abuse of discretion by the sentencing judge. State v. Hammonds, 434 So.2d 452 (La.App.2d Cir.1983), writ den., 439 So.2d 1074 (1983); State v. Brooks, 431 So.2d 865 (La.App. 2d Cir. 1983); State v. Square, 433 So.2d 104 (La. 1983).
A sentence is constitutionally excessive in violation of Louisiana Constitution of 1974
The sentencing guidelines of
The trial court‘s failure to comply with the 894.1 guidelines does not, in and of itself, render a sentence invalid or warrant a remand for resentencing. The sentence will be upheld if the record clearly illumines and supports the sentencing choice. State v. Williams, 397 So.2d 1287 (La. 1981); State v. Smith, 430 So.2d 31 (La. 1983).
In St. v. Brazzell, 476 So.2d 1191, Second Circuit, No. 17,319-KA, 11/25/85, we recently affirmed a three year sentence at hard labor for distribution of marijuana. The opinion was unpublished. The Louisiana Supreme Court, 479 So.2d 914, in writ application # 85-K-2013 on December 20, 1985, vacated Brazzell‘s sentence as “apparently severe” and remanded for resentencing. Although Brazzell was a first felony offender, he had two prior misdemeanor convictions, one of which was for possession of marijuana which occurred only a short time before the distribution charge. Mr. Brazzell was separated from his wife, had only one child, and had an unstable employment record.
In the instant case, the defendant has a stable work history and stable family life. He has a wife and six minor children who depend upon him as their sole support. The sentencing hearing does not specifically reflect that the substantial mitigating factors were considered by the trial judge. Although defendant has a prior felony conviction, he has, insofar as is reflected in the PSI and the sentencing hearing, led a law abiding life for approximately eighteen years before he committed the instant offense.
Our review of this case requires the conclusion that the sentence is apparently excessive based upon the supreme court‘s evaluation of the same sentence for the same offense in the Brazzell case where the defendant had a poor work record and no family stability, and had been recently convicted of possession of marijuana. Because we must follow the opinions of our supreme court, we vacate defendant‘s sentence as apparently excessive. We note a reference in the record to a prior distribution of marijuana offense which occurred approximately two weeks before the instant offense. This is contained in a Prieur notice filed by the district attorney. If the statement concerning the prior offense is factually correct, this case is distinguishable from Brazzell and a sentence identical to the one initially imposed in this case would not be excessive. The trial judge made no reference to the prior distribution offense at the sentencing hearing. The trial judge did consider defendant‘s prior felony and his age as the factual basis for imposing this sentence. The trial judge also stated that he considered all of the mitigating factors, but he did not articulate them. We conclude that the trial judge‘s compliance with
Defendant‘s sentence is VACATED and the case is REMANDED FOR RESENTENCING in accordance with law and with full compliance with
NORRIS, J., concurs with written reasons.
NORRIS, Judge, concurring:
Admittedly, there is room for disagreement as to what the Supreme Court intended in its reversal of our opinion in State v. Brazzell. However, I do not consider Brazzell to stand for anything more than the Supreme Court‘s insistence that a sentencing judge‘s compliance with 894.1 must be more than “minimal” when his sentencing choice is between probation and prison and the choice is close. Here, a suspended sentence and probation is admittedly not an option for this second felony offender. I think we could safely affirm this three year sentence. However, out of an abundance of caution and out of respect for my colleagues, who see more in Brazzell than I do, I reluctantly concur.