Opinion
No. 17508-KA.
February 26, 1986.
APPEAL FROM FIRST JUDICIAL DISTRICT COURT, PARISH OF CADDO, STATE OF LOUISIANA, HONORABLE GAYLE K. HAMILTON, J.
Indigent Defender Office by James H. Carter, Jr. and Richard E. Hiller, Shreveport, for appellant.
William J. Guste, Jr., Atty. Gen., Baton Rouge, Paul J. Carmouche, Dist. Atty. by Richard L. Carney and John A. Broadwell Asst. Dist. Attys., Shreveport, for appellee.
Before HALL, FRED W. JONES and LINDSAY, JJ.
The defendant Wesley was charged with five counts of simple burglary of an inhabited dwelling. Pursuant to a plea bargain, he pled guilty to two counts of simple burglary (La.R.S. 14:62) and the other counts were dismissed. No presentence investigation was ordered. The defendant was sentenced on each count to four years imprisonment, with the sentences to run concurrently.
The defendant appealed his sentences, contending the trial judge failed to comply with La.C.Cr.P. Article 894.1 and meted out excessive sentences.
The defendant, 17 years old at the time of the burglaries, had no juvenile record. The record reflects that, after his arrest, he made a full confession, showed the police the homes he had burglarized, and assisted in seeing that the stolen property was returned.
The trial judge was advised of and concurred in the plea bargain under which a ceiling of five years on the prison sentences had been agreed upon, with the sentences to run concurrently. During the course of the "boykinization" the trial court advised the defendant that he was going to impose concurrent prison sentences of four years, and proceeded to do so after entry of the guilty pleas, without giving any reasons.
The prosecutor and defense counsel then made statements to the trial judge requesting that defendant's sentences be reconsidered and reduced and that he be placed on probation. Only at that time did the trial court give reasons for his sentences, and refused to reconsider them.
A trial judge is given wide discretion in the imposition of sentences within statutory limits. State v. Davis, 449 So.2d 452 (La. 1984). While the trial court need not articulate every aggravating and mitigating circumstance presented in Article 894.1, the record must reflect that he adequately considered these guidelines in particularizing the sentence to the defendant. This affords the appellate court an adequate basis upon which to determine whether the sentence is excessive.
However, where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even if there has not been full compliance with Article 894.1. State v. Lanclos, 419 So.2d 475 (La. 1982).
Unfortunately, in this case not only did the trial judge totally fail to comply with Article 894.1, but there is not adequate information in the record to "illumine" and support the sentences. Consequently, it is impossible for us to determine whether the sentences imposed for this particular defendant are constitutionally excessive.
In State v. Stegall, 377 So.2d 103 (La. 1979) and State v. Washington, 414 So.2d 313 (La. 1982) our Supreme Court upheld sentences based in part on plea bargains. However, in both cases the trial judges stated adequate factual bases for the sentences, in addition to reciting their consideration of the effects of the plea bargains. That was not done in this case.
For the reasons explained, we vacate and set aside defendant's sentences and remand the case to the trial court for resentencing in accordance with the guidelines of La.C.Cr.P. Article 894.1, with consideration to be given to a presentence report and, if the defendant is not placed on probation, reasons for refusal to do so be articulated for the record by the trial judge.
LINDSAY, J., dissents and assigns written reasons.
The defendant was originally charged with five counts of burglary of an inhabited dwelling, R.S. 14:62.2. The maximum possible penalty for the crimes was 60 years at hard labor. The defendant negotiated for a range of sentence and a plea bargain was proposed whereby the defendant was to plead guilty to two counts of simple burglary, with the maximum sentence exposure to be two concurrent five year terms. This plea bargain was apparently discussed with the trial judge by defense counsel and the assistant district attorney. The plea bargain was agreed to by the judge.
When the defendant appeared before the court to plead guilty, defense counsel stated that the defendant was agreeable to accepting the five year concurrent terms bargained for, but the lawyer requested that the sentence be set at less than that, specifically, at three years. No plea for probation was made. The transcript reveals that at that point in the proceedings an off the record discussion took place between the court, defense counsel and the district attorney, and the trial judge then agreed to impose concurrent four year sentences. This was apparently acceptable and during the Boykin procedure, the acknowledgment of the four year term was made a part of the plea of guilty. The defendant was fully aware of the sentence to be imposed as a part of the plea bargain and he acceded to it when he entered his plea of guilty. As the trial judge stated, the four year concurrent sentences were imposed, "In accordance with the agreement. . . ."
Under all these circumstances, defendant should not be allowed to complain that the sentence imposed pursuant to his agreement is excessive, or that the court erred in not placing of record his consideration of the aggravating and mitigating factors set forth in LSA-C.Cr.P. Art. 894.1. I suggest that the majority opinion is inconsistent with this court's previous opinions in State v. Owens, 426 So.2d 367 (La.App. 2d Cir. 1983), State v. Green, 480 So.2d 883 (La.App. 2d Cir. 1985) and other cases cited in those opinions.
I respectfully dissent.