State v. WashingtonState v. Washington
Calvin Washington was charged by bill of information with theft of a Homelite pump having a value of five hundred dollars or more in violation of
ASSIGNMENTS OF ERROR NOS. 1, 2 AND 3
Defendant contends the trial judge erred in failing to state adequately his reasons for imposition of the sentence as required by
The presentence report reflects that on February 14, 1981, Paul Fleming, John Fleming, Rickey Randell and defendant drove to a pond located at White & Wilkin‘s woodyard in Claiborne Parish, Louisiana. A large water pump belonging to Herbert Cockrell was located on the east side of the pond. Defendant and his companions removed the pump from its location and transported it across the state line into Arkansas. There, they sold the pump to Winston Waller and split the proceeds. Subsequently, Paul Fleming confessed to the crime and implicated defendant. Thereafter, defendant also confessed to his participation in the theft.
The presentence report further reveals that defendant is eighteen years of age. He was born in Shreveport, Louisiana, and has resided in Haynesville all of his adult life. He completed the tenth grade at Haynesville High School. He currently resides with his disabled father, mother, brother and sister. At the time of his arrest, he was employed by Larry Reeder Construction Company earning about seven dollars per hour. His adult criminal record indicates one prior conviction for theft. In connection with that theft conviction, defendant was sentenced to serve ninety days in parish jail and to pay a fine of twenty dollars and costs. The imprisonment portion of the sentence was suspended and defendant was placed on unsupervised probation for a period of one year with the conditions that he not commit any other offenses and that he pay the fine and costs. Defendant was still on probation at the time of the instant offense.
In imposing sentence, the trial judge recognized that defendant pled guilty to the instant charge of theft as a result of a plea bargain in which a charge of burglary was dropped and noted that defendant denied any involvement in this burglary. The trial judge also considered defendant‘s prior theft conviction and the fact that defendant had been implicated in two other burglaries
At the time the trial judge imposed the sentence of imprisonment on defendant, he stated that he hoped defendant would learn that his time in jail “could have been more profitably spent” in some gainful occupation. It is evident that the trial judge felt that defendant was in need of correctional treatment. In reaching this conclusion, the trial judge took into consideration defendant‘s prior criminal record and the fact that he was on probation for a prior theft conviction at the time of the instant offense. We conclude the trial judge adequately complied with
Next, defendant contends the trial judge erred in considering the confession of defendant‘s co-conspirator as evidence of prior criminal activity. The sources of information from which a sentencing court may draw are extensive, and traditional rules of evidence are not bars to consideration of otherwise relevant information. State v. Douglas, 389 So.2d 1263 (La.1980). Prior criminal activity is one of the factors under art. 894.1 to be considered by the trial judge in sentencing a defendant. Prior criminal activity is not limited to convictions. State v. Brown, 410 So.2d 1043 (La. 1982). We conclude that the trial judge did not err in considering the confession of defendant‘s co-conspirator implicating defendant in other criminal activity.
Finally, defendant contends that the sentence imposed is excessive.
The maximum sentence for theft of property having a value of five hundred dollars or more is ten years at hard labor and a three thousand dollar fine.
Assignments of Error Nos. 1, 2 and 3 are without merit.
ASSIGNMENT OF ERROR NO. 4
Defendant contends the trial judge erred in denying him an opportunity to rebut information in the presentence report and concerning the implication of him in other criminal activity.
According to the trial judge‘s per curiam, all information concerning the implication of defendant in two other burglaries by Paul Fleming, his co-conspirator, together with the presentence report, was given to defense counsel prior to sentencing. Thereupon, defense counsel advised the judge he would review “these matters” and the presentence report with defendant. At the outset of the sentencing hearing, the trial judge announced that: “[T]he pre-sentence investigation has been completed and presented, evaluated by both Mr. Washington [defendant] and his attorney.” He further noted that defense counsel had pointed out to him that defendant denied “knowing anything about the burglary” charge which was dropped as a result of the plea bargain. The judge then sentenced defendant. The record does not reflect, nor does defendant contend, that any request was made to rebut any information in the presentence report or resulting from the implication of defendant in the two other burglaries by Paul Fleming. Hence, we consider defendant waived the opportunity to rebut that information. Moreover, defendant does not even allege in this court that any of the information is incorrect or that he could rebut that information.
Assignment of Error No. 4 is without merit.
DECREE
For the reasons assigned, the conviction and sentence are affirmed.