State v. Cox

• Decision Date: 05 March 1979
• Docket Number: No. 63036,63036
• Citation: State v. Cox, 369 So.2d 118 (La. 1979)
• Parties: STATE of Louisiana, Appellant, v. Hugo COX, Appellee.
• Court: Louisiana Supreme Court

Page 118

369 So.2d 118

STATE of Louisiana, Appellant, v.Hugo COX, Appellee.

No. 63036.

Supreme Court of Louisiana.

March 5, 1979.

John P. Calmes, Jr., Baton Rouge, for defendant-appellant.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie B. Brown, Dist. Atty., Kay Kirkpatrick, Asst. Dist. Atty., Baton Rouge, for plaintiff-appellee.

TATE, Justice.

The defendant was charged with armed robbery, La.R.S. 14:64, and attempted murder, La.R.S. 14:27 and 14:30, arising out of an incident which resulted from a pool hall altercation.He was convicted of both counts which had been joined for indictment and trial.He was sentenced to twenty-five years imprisonment on each count.The trial court provided that the sentences were to run Consecutively.

The single assignment of error urged on appeal complains that the sentence is excessive, in that Consecutive sentences were imposed for each count, when the two crimes joined for trial arose out of the same incident.

Appellate Review for excessiveness

Article 1, Section 20, La.Constitution of 1974 prohibits the imposition by law of excessive punishment.In accordance therewith, in State v. Sepulvado, 367 So.2d 762(La.1979), we held that "the imposition of a sentence, although within the statutory limit, may violate a defendant's constitutional rights against excessive punishment that is enforceable by this court on appellate review of his conviction."367 So.2d 767.

With respect to the appropriate standards for that review, we further stated that: ". . . the statutory criteria legislatively provided by La.C.Cr.P. art. 894.1(1977), which are similar to those evolved by courts in other American jurisdictions with a constitutional or statutory duty to review excessiveness, provide appropriate criteria by which to measure whether a sentence within statutory limits is nevertheless excessive, either by reason of its length or because it specifies confinement rather than less onerous sentencing alternatives."367 So.2d 769.

Relationship of Article 894.1 to Sentence Review

La.C.Cr.P. art. 894.1(1977) sets forth three factors which justify a sentence imposing imprisonment, and eleven other factors which tend to indicate suspension of sentence or probation as appropriate.¹The statute provides that the latter, "while not controlling the discretion of the court, Shall be accorded weight" by the trial court in its sentencing decision.The enactment concludes that the trial court"Shall state for the record the considerations taken into account and the factual basis therefor in imposing sentence."

Even without formal objection at the time, where the trial judge imposes a sentence without adequate compliance with the mandatory requirement of La.C.Cr.P. art. 894.1 that he state the considerations and the factual basis for his sentence, this court may vacate a sentence and remand for re-sentencing, when the reasons for an apparently severe sentence in relation to the particular offender and the actual offense committed do not appear in the record.State v. Jackson, 360 So.2d 842(La.1978);State v. Scarborough, 359 So.2d 982(La.1978);State v. Sepulvado, 359 So.2d 137(La.1978).See alsoState v. Gibson, 362 So.2d 769(La.1978).

In State v. Jackson, 360 So.2d 842(La.1978), we discussed at some length the purpose of the article in requiring that each sentence be particularized.We noted that not only public protection and deterrence, but also rehabilitation, are objectives of the sentencing process.In that unanimous opinion, authored by former Chief Justice Sanders, we observed that the code provision "requires that the sentence be individualized. . . .The article establishes procedures designed to adapt the sentence to the offender as well as the offense."360 So.2d 843-44.

In State v. Sepulvado, 367 So.2d 762(La.1979), we noted that the trial court's statement of reasons in imposing sentence, as required by this statute, "is an important aid to this court when called upon to exercise its constitutional function to review a sentence complained of as excessive."

In Sepulvado, in a first (or earlier) appearance before this court, the defendant had complained that the sentence was excessive, although he had not formally questioned it in the trial court.359 So.2d 982(La.1978).While we did not then reach the issue of excessiveness, we nevertheless remanded the case for re-sentencing in compliance with La.C.Cr.P. art. 894.1, because the factual basis assigned did not adequately comply with the statement of considerations with respect to the statutory guidelines provided by that statute.The same sentence was re-imposed over the accused's objection in the trial court² that it was excessive.On the second appeal, we vacated as excessive the re-imposed sentence.

The Sepulvado cases illustrate the relationship between the trial court's statement of the reasons and factual basis for the sentence imposed, required by La.C.Cr.P. art. 894.1, and our appellate review of excessiveness as authorized by our 1974 state constitution.

If inadequate compliance with 894.1 is exhibited by the record, we may remand for re-sentencing in accordance with the mandatory requirements of that article, whether or not formal request has been made in the trial court that it comply with law.However, if (as required by 894.1)the trial court has stated the factual basis and individual considerations upon which the sentence is based, then upon formal assignment of error we will review whether the trial court's large discretion has been abused.Our review of individual excessiveness will then consider, in the light of the criteria expressed by 894.1, the circumstances of the crime and the trial court's stated reasons and factual basis for its sentencing decision.

Procedural requirements for appellate review of a sentence as excessive

With the exception of death penalty cases(which this court must independently review in each instance for excessiveness, La.C.Cr.P. art. 905.9), individual excessiveness of sentence may be considered on appeal only where presented by assignment of error, La.C.Cr.P. art. 920(1), formally made as required by La.C.Cr.P. art. 844.

In addition, we had previously held that some form of objection to the sentence as excessive must be made in the trial court.When the issue of review for excessiveness of sentence was first raised after the 1974 state constitution came into effect, we initially refused to review the claim unless before or at the time the sentence was imposed, an objection was made on the ground of excessiveness.State v. Williams, 340 So.2d 1382(La.1976);State v. Williams, 322 So.2d 177(La.1975).See alsoState v. Bryant, 325 So.2d 255(La.1976) concurring opinion, 325 So.2d 265, 267).

We then indicated that the purpose of requiring this sort of objection to be made in the trial court was to permit a hearing at which the factual circumstances indicating excessiveness or not might be shown, with an opportunity for the trial court to impose or amend its sentence accordingly, and in order to disclose for purposes of appellate review the showing as to such circumstances which might not otherwise be found in the trial record.

The requirement of these decisions that objection be made to the sentence as excessive was based upon La.C.Cr.P. art. 841.That article, however, provides that "An irregularity or error cannot be availed of After verdict unless it was objected to at the time of occurrence * * *."Under its literal terms, the article does not require objection to be made to post-verdict reasons.

Furthermore, subsequent to the two cited Williams decisions, the legislature has itself provided that the trial court, in imposing sentence, must state the consideration taken into account and the factual basis therefore.Since these decisions, the jurisprudence has made clear that the defendant must be given an opportunity to rebut or explain misinformation upon which the trial relies or to which it is exposed in its sentencing decision.State v. Trahan, 367 So.2d 752(La.1978);State v. Segers, 357 So.2d 1(La.1978);State v. Underwood, 353 So.2d 1013(La.1977).The latter holdings necessarily imply that the accused must likewise be given an opportunity to make a showing, by argument of counsel or otherwise, of mitigating factors under La.C.Cr.P. art. 894.1 B. which the trial court may have overlooked.

Thus, the legislative enactment of La.C.Cr.P. art. 894.1, as well as the later jurisprudence, see alsoState v. Bosworth, 360 So.2d 173(La.1978), have provided the mechanisms by which the appellate record may reflect the circumstances outside of the trial on the merits, in the light of which the contention of excessiveness may be reviewed on appeal.

The Code of Criminal Procedure does not itself require any formal objection to be made to preserve post-verdict error for appellate review.Subsequent legislative action and jurisprudential developments have assured adequate appellate review for review of excessiveness, the original purpose of our early decisions in judicially imposing the requirement for an objection in order to preserve the issue of excessiveness for appellate review.

We see no intelligent reason longer to adhere to and accordingly we overrule, the holdings in State v. Williams, 340 So.2d 1382(La.1976)andState v. Williams, 322 So.2d 177(La.1975), ³ that excessiveness of sentence may not be reviewed in the absence of formal objection there being no statutory requirement for such objection, and there being no remaining functional reason for these decisions' court-imposed requirement for the technicality of requiring an objection for such purpose.Similarly to the instance of the trial court's ruling on a written motion, where no objection is required (La.C.Cr.P. art. 841), the defendant's complaint of the trial court action is self-explanatory and the objection serves no functional basis to assure an adequate...