State v. Ste. MarieState v. Ste. Marie
- Reporters:
- , , ,
- Before:
- Thibodeaux
Lead Opinion
The Defendant, Bradford Ste. Marie, is once again before this court appealing his sentence. In State v. Ste. Marie,
Despite this court’s specific instruction to impose concurrent sentences, the trial court imposed its own judgment and flouted the order of this court. That is intolerable. When this court remanded the case for resentencing, this court instructed | ¡¿he trial court to impose concurrent sentences in accordance with this court’s opinion. The trial court stated the following:
BY THE COURT:
The sentence conditions of the probation, namely, that I made the probation periods consecutive is now established to be incorrect in the law. The Department of Corrections will only supervise someone for five years, so there must be only one period of supervised probation, namely, the probations must be concurrent so that they are all together and the probation is no longer than five years. I, therefore, make that correction and do that.
The Court also found that the sentences being consecutive was incorrect, an abuse of discretion. I have reviewed the reasons which I gave at the time of the original sentencing and, very briefly, when there are four victims over a period of five years, I remain persuaded that concurrent sentences are not required. The possibility of consecutive sentences is within my discretion. I have also reviewed case law on this subject, and there is case law out of every circuit which permits consecutive sentences when there are different victims and over a period of time.
The cases which I will refer to particularly are, first and foremost, State v. Porter,700 So.2d 1058 . That is out of the Second Circuit and the language there says concurrent sentences are not mandatory nor are consecutive sentences necessarily excessive because they stem from the same course of conduct or the same type of conduct. When there is a period of time and different victims consecutive sentences are within the trial court’s discretion.
The other cases: State v. Thomas,719 So.2d 49 , that is from the Supreme Court; State v. Miley out of the First Circuit,521 So.2d 660 ; State v. White from the Third Circuit, 704-376; State v. Jones out of the Fourth, 744-165; and State v. Boyles[Boros], that’s from the Fifth Circuit,646 So.2d 1183 .
The facts of this case persuade me after reconsideration that it is not one course of conduct when it involves different people over that period of time and under the particular circumstances and the testimony that I heard and found credible and believed and that was the basis for this decision. I remain persuaded that consecutive 1 «sentences are appropriate in this case. I leave it for the appeal courts and writs to the Supreme Court to tell me otherwise.
Defense counsel objected to the sentences and argues on appeal that the trial court erred in not following this court’s instructions upon remand. The State, in its brief, attacks this court’s finding of excessiveness in the previous appeal. However, such an argument is appropriate for seeking review of this court’s finding in the supreme court, but is not appropriate in this appeal.
Faced with a similar situation, the fourth circuit in State v. Donaldson,
CONCLUSION
The sentences imposed by the trial court are vacated and the case remanded to a different division of the district court for resentencing. The resentencing judge should sentence the Defendant to concurrent sentences as instructed by this court in State v. Ste. Marie,
DOUCET, C.J., dissents and assigns written reasons.
Dissenting Opinion
dissenting.
I would affirm the consecutive sentences imposed by the trial court. In the original opinion in this matter, this court remanded the case for re-sentencing in accordance with this court’s opinion.
Although this court does not generally reconsider its own rulings on a subsequent appeal, this “law of the case” doctrine is discretionary. State v. Watson, 99-1448 (La.App. 4 Cir 8/28/02);
The Supreme Court in State v. Porter, 29,638, pp. 5-6 (La.App. 2 Cir. 9/24/97);
If the defendant is convicted of two or more offenses based on the same act or transaction, or constituting parts of a common scheme or plan, the terms of imprisonment shall be served concurrently, unless the court expressly directs that some or all be served consecutively. La.C.Cr.P. art. 883. Concurrent sentences are not mandatory, nor are consecutive sentences necessarily excessive, simply because two | ¡.convictions stem from the same course of conduct. State v. Coates, 27,287 (La.App.2d Cir. 9/27/95),661 So.2d 571 , writ denied, 95-2613 (La.2/28/96),668 So.2d 365 . It is within a trial court’s discretion to order sentences to run consecutively rather than concurrently. State v. McCray, 28,531 (La.App. 2d Cir.8/21/96),679 So.2d 543 . Where the convictions stem ■from separate incidents involving different victims and occur over a lengthy period of time, the resulting consecutive penalties will generally not be found to be an abuse of that discretion. State v. McCray, supra.
After considering the cases cited by this court in its original opinion herein, the trial court concluded, and I agree, that the case before her was distinguishable from those cited by this court. As the trial court stated at re-sentencing, this case concerns four victims with abuse occurring over a period of five years. After examining the facts of this case in light of the jurisprudence cited by this court in the previous opinion in this matter and in light of the Supreme court’s decision in Porter,
Consequently, I respectfully dissent from the majority opinion herein.