State v. Cottingin
| Decision Date | 10 October 1985 |
| Docket Number | No. CR85-227,CR85-227 |
| Citation | 476 So.2d 1184 |
| Parties | STATE of Louisiana, Plaintiff-Appellee, v. Cecil COTTINGIN, Defendant-Appellant. 476 So.2d 1184 |
| Court | Court of Appeal of Louisiana — District of US |
Lee Gallaspy, Lafayette, for defendant-appellant.
Charles Brandt, Asst. Dist. Atty., Lafayette, for plaintiff-appellee.
Before GUIDRY, LABORDE and KING, JJ.
The issues presented by this appeal are whether or not the trial judge properly followed the sentencing guidelines of Louisiana Code of Criminal Procedure Article 894.1, whether or not the trial court erred in relying on an improperly conducted pre-sentence investigation and report, and whether or not the sentence is unconstitutionally excessive.
Defendant, Cecil Cottingin, (hereinafter Cottingin) was arrested and charged by a Bill of Information with Indecent Behavior with a Juvenile in violation of LSA-R.S. 14:81. Cottingin pled guilty to the crime as charged. Cottingin, through counsel, requested a pre-sentence investigation which was ordered by the Court. Upon completion of the pre-sentence investigation, a copy of the report was furnished to the Court and defense counsel. After reviewing the report and holding a sentence hearing, the trial judge sentenced Cottingin to five years imprisonment at hard labor.
Cottingin timely appeals the sentence asserting that the trial judge (1) failed to comply with the mandates of La.C.Cr.P. Art. 894.1 in that he failed to articulate the basis for the defendant's sentence; (2) erred in relying on what the defendant alleges was an improperly conducted pre-sentence investigation and report; and (3) imposed an excessive sentence. We recall, vacate and set aside the sentence imposed and remand the case to the trial court for resentencing.
On April 26, 1984 a District Judge of the Fifteenth Judicial District Court signed an arrest warrant for the arrest of Cecil Cottingin based on the affidavit of Lafayette Parish Sheriff Deputy Veda Latour. The warrant asserted that on April 22, 1984 Cottingin did commit sexual battery on Michell Mize, his 17 year old step-daughter, in violation of LSA-R.S. 14:43.1, and that on April 7, 1984, he did commit indecent behavior with a juvenile, his 14 year old natural daughter, Wileen Cottingin, in violation of LSA-R.S. 14:81.
Pursuant to the warrant, Cottingin was arrested in Gladwater, Texas on June 19, 1984. He waived his right to extradition proceedings and was returned to Lafayette on June 21, 1984.
On August 1, 1984, a bill of information was filed against Cottingin alleging that he committed one count of indecent behavior with a juvenile, his 14 year old natural daughter, Wileen Cottingin. On September 5, 1984, Cottingin entered a plea of guilty to that charge. Through his attorney he requested a pre-sentence investigation and report which was ordered by the trial court. After reviewing the pre-sentence report and holding a sentence hearing, the court sentenced Cottingin to five years imprisonment at hard labor.
Cottingin's first assignment of error raises the issue of whether the sentencing judge adequately complied with the guidelines of La.C.Cr.P. Art. 894.1. The trial court must set out specific reasons for imposing an apparently severe sentence in relation to the particular offender and the particular offense. State v. Sepulvado, 367 So.2d 762 (La.1979); State v. Morgan, 428 So.2d 1215 (La.App. 3rd Cir.1983), writ denied 433 So.2d 166 (La.1983). It is not necessary for the trial court to articulate every factor presented in La.C.Cr.P. Art. 894.1, but the record must reflect that the trial court adequately considered them in particularizing the sentence to the defendant. State v. Morgan, supra. When there is an adequate factual basis for the sentence contained in the record, a trial court's failure to articulate every circumstance listed in La.C.Cr.P. Art. 894.1 will not necessitate a remand for sentencing. State v. Lanclos, 419 So.2d 475 (La.1982); State v. Morgan, supra; State v. Perry, 470 So.2d 426 (La.App. 3rd Cir.1985).
There are two underlying purposes of the codal requirement that the sentencing court articulate the specific reasons based on particular facts and considerations for imposing a sentence. First, it ensures that the sentence is particularized to the defendant. State v. Murdock, 416 So.2d 103 (La.1982). In addition, it aids the reviewing court in the determination of whether the sentence imposed is excessive by providing an actual indication of whether the sentencing court adequately considered the statutory guidelines. State v. Murdock, supra; State v. Forshee, 395 So.2d 742 (La.1981); State v. Perry, supra.
The statutory maximum sentence for indecent behavior with juveniles is five years imprisonment at hard labor and a fine of $5,000.00. LSA-R.S. 14:81(C).
The sentencing judge ordered a pre-sentence investigation and report. The transcript of the sentence hearing reflects that the sentencing judge and defense counsel reviewed the pre-sentence report. However, the pre-sentence report was not filed in the record or made a part of the record for this court to review. 1 The State has attached a copy of this report to its brief for our consideration. In a criminal case this Court has no authority to receive or review evidence not contained in the trial court record. State v. Oubichon, 422 So.2d 1140 (La.1982); State v. Augustine, 252 La. 983, 215 So.2d 634 (1968); State v. Williams, 454 So.2d 295 (La.App. 4th Cir.1984); State v. Smith, 447 So.2d 565 (La.App. 1st Cir.1985). At the sentence hearing, as the transcript reflects, defense counsel objected to the pre-sentence investigation report on the grounds that it was incomplete and was improperly written in a biased manner against the defendant. In response the sentencing judge merely stated:
. (Tr. pages 52-53.)
The sentencing judge did not provide oral or written reasons for the sentence imposed. The transcript of the sentence hearing is totally devoid of any mention of aggravating facts or circumstances that would support the court's imposition of the sentence except the sentence recommendation contained in the pre-sentence investigation report. Though adequate justification for the imposition of this sentence may in fact exist, the record does not contain any mention whatsoever of it. For this reason, we find that the trial judge failed to adequately comply with the sentencing guidelines of La.C.Cr.P. Art. 894.1 and assignment of error number 1 has merit.
Cottingin's second assignment of error concerns the sentencing court's reliance on what he considers an improperly conducted pre-sentence investigation and report. The defendant does not contend that the pre-sentence report was in any way false or misleading. Instead, he only contends that the pre-sentence report was incomplete insofar as it did not consider factors which the defendant thought to be mitigating and was improper in that the tone of the pre-sentence report was "biased" against the defendant.
It is entirely within the discretion of the court to order a pre-sentence investigation and report. La.C.Cr.P. Art. 875 A(1). A defendant has no constitutional right to demand a pre-sentence investigation. However, if a pre-sentence investigation is conducted and a report is compiled, the defendant is entitled to a fair and accurate report. State v. Lockwood, 439 So.2d 394 (La.1983). Due process and fairness require the sentencing court to disclose data unknown to the defendant upon which the court relies in imposing a sentence on the defendant. State v. Bosworth, 360 So.2d 173 (La.1978); State v. Underwood, 353 So.2d 1013 (La.1977). And while fundamental precepts of due process also require that a defendant be afforded an opportunity to rebut or explain prejudicial or erroneous information contained in a pre-sentence investigation report, a full scale evidentiary hearing is not required where the defendant is given an opportunity to traverse or explain the information which he alleges is erroneous or prejudicial. State v. Parish, 429 So.2d 442 (La.1983).
In this case the transcript of the sentence hearing reflects the fact that defense counsel received the pre-sentence report before the hearing and reviewed it with the defendant. The court afforded defense counsel the opportunity to present evidence and to comment on or add to the pre-sentence report. Defense counsel took full advantage of this opportunity, re-emphasizing certain points listed in the report, adding to the information contained in the report, and pointing out the alleged weaknesses and bias of the report. Defense counsel had apparently also discussed some of these things with the sentencing judge prior to the hearing. The Court, after reviewing the pre-sentence investigation report, and after having taken into consideration the defendant's additions, explanations and rebuttals to the pre-sentence investigation report, sentenced Cottingin to five years imprisonment at hard labor.
As previously mentioned, the pre-sentence investigation report is not a part of the record for...
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State v. Schexnaider
...failure to articulate every circumstance listed in Article 894.1 will not necessitate a remand for resentencing. State v. Cottingin, 476 So.2d 1184 (La.App. 3 Cir.1985), appeal after remand, 496 So.2d 1379 (La.App. 3 Cir.1986); State v. Morgan, 428 So.2d 1215 (La.App. 3 Cir. 1983), writ den......
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State v. Charles
...must reflect that the trial court adequately considered them in particularizing the sentence to the defendant. State v. Cottingin , 476 So.2d 1184 (La.App. 3 Cir.1985). The judge should indicate that he considered not only the factors militating for incarceration, but also any factor mitiga......
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95-1648 La.App. 3 Cir. 10/9/96, State v. King
...failure to articulate every circumstance listed in Article 894.1 will not necessitate a remand for resentencing. State v. Cottingin, 476 So.2d 1184 (La.App. 3 Cir.1985), appeal after remand, 496 So.2d 1379 (La.App. 3 Cir.1986); State v. Morgan, 428 So.2d 1215 (La.App. 3 Cir.1983), writ deni......
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State v. Guilbeau
...failure to articulate every circumstance listed in Article 894.1 will not necessitate a remand for resentencing. State v. Cottingin, 476 So.2d 1184 (La.App. 3 Cir.1985), appeal after remand, 496 So.2d 1379 (La.App. 3 Cir.1986); State v. Morgan, 428 So.2d 1215 (La.App. 3 Cir.1983), writ deni......