State v. Lewis

• Decision Date: 05 April 1983
• Docket Number: No. 82,82
• Citation: 430 So.2d 1286
• Parties: STATE of Louisiana v. Lincoln LEWIS. KA 0862.
• Court: Court of Appeal of Louisiana — District of US

Page 1286

430 So.2d 1286

STATE of Louisiana v. Lincoln LEWIS.

No. 82 KA 0862.

Court of Appeal of Louisiana First Circuit.

April 5, 1983.

Writ Denied June 10, 1983.

Ossie B. Brown, Dist. Atty. by Thomas Damico, Asst. Dist. Atty., Baton Rouge, for plaintiff-appellee.

Leon Jackson, Asst. Public Defender, Baton Rouge, for defendant-appellant.

Before LOTTINGER, COLE and CARTER, JJ.

COLE, Judge.

The issue in this rape case is whether or not the trial court's sentence is excessive. For the reasons below, we affirm the sentence imposed by the trial court.

On November 4, 1979, defendant Lincoln Lewis forced his way into the victim's apartment. At that time the victim was a 20 year old single woman. During the next two and a half hours the defendant forcibly raped the victim three times, forced her to submit to oral sex four times, and forced her to perform oral sex five times.

Defendant was thereafter indicted by a grand jury for forcible rape (count I), aggravated burglary (count II), and aggravated crime against nature (count III). These offenses are violations of La.R.S. 14:42.1, 60 and 89.1, respectively. After entering a plea of not guilty defendant was tried by a jury and found guilty as charged. The trial court sentenced the defendant to 40 years on the rape charge and to 30 years on the burglary charge, such sentences to run concurrently. In addition, the court imposed a 10 year sentence for the crime against nature charge and this sentence was to be served consecutively. All sentences were to be served at hard labor; and without benefit of probation, parole or suspension of sentence as to the rape and burglary.

Defendant appealed his conviction to the Supreme Court. The Supreme Court affirmed the conviction but vacated the sentences imposed and remanded for a resentencing. The reasons given for the vacating and remanding are as follows: The trial judge did not adequately state the considerations and factual basis for his sentence as required by La.Code Crim.P. 894.1 in that there was no indication he considered the mitigating factors present. Further, there was no justification for the imposition of consecutive sentences and the trial court was mistaken in its belief that the defendant was armed during the commission of the crimes. State v. Lewis, 416 So.2d 921 (La.1982). Upon remand, the trial court articulated reasons for the sentences imposed and reinstated the original sentences. Defendant now appeals, alleging as his sole assignment of error that the sentences imposed are excessive.

Defendant contends the sentences imposed are excessive because of their duration and because one of the three sentences imposed was made consecutive rather than concurrent. We will first consider the excessiveness of the sentences in terms of duration.

Defendant received the maximum sentences on the rape and burglary convictions, i.e., 40 and 30 years respectively. He received two-thirds of the maximum sentence on the crime against nature conviction, i.e., 10 years out of a possible 15.

The imposition of an excessive sentence is prohibited by Louisiana Constitution of 1974, art. 1, § 20. A trial judge has great discretion in imposing a sentence within the statutory limits and it will not be set aside as excessive in the absence of manifest abuse of discretion. State v. Lanclos, 419 So.2d 475 (La.1982); State v. Washington, 414 So.2d 313 (La.1982). Yet even a sentence falling within the applicable statutory limits may constitute excessive punishment. State v. Reed, 409 So.2d 266 (La.1982); State v. Sepulvado, 367 So.2d 762 (La.1979).

Generally, a sentence is considered excessive if it is grossly disproportionate to the severity of the crime, or is nothing more than the needless imposition of pain and suffering. State v. Reed, supra; State v. Guiden, 399 So.2d 194 (La.1981), cert. denied, 454 U.S. 1150, 102 S.Ct. 1017, 71 L.Ed.2d 305 (1982). A sentence is considered grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it is so disproportionate as to shock the sense of justice. State v. Reed, supra.

The type of factors which should be considered by a trial court before the imposition of a sentence on a particular offender include the offender's personal history, his prior criminal history, the seriousness of the crime, the circumstances of the offense, the likelihood defendant will commit another crime, and his potential for rehabilitation. State v. Trahan, 412 So.2d 1294 (La.1982); State v. Jackson, 360 So.2d 842 (La.1978). The imposition of the maximum sentence possible under a statute is appropriate only in cases involving the most serious violations of that statute and the worst offenders. State v. Lanclos, supra; State v. Jones, 398 So.2d 1049 (La.1981).

At the resentencing hearing the trial court clearly articulated its reasons for imposing the particular sentence as follows:

"The Court previously and now considers the following factors in imposing--reimposing sentence: first, these crimes were extremely degrading and violent and of an extended duration; second, the victim was a young, innocent, Christian girl; third, a lesser sentence for any of these crimes would not have any effect or make any impression on this offender with the seriousness of each of the offense that he's guilty of, offenses he's guilty of; fourthly, the victim suffered severe emotional and physical trauma as a result of these crimes; fifthly, the victim was a total stranger to this offender and did not in any way encourage or provoke the crimes committed; sixthly, this defendant, this offender has never indicated any type of remorse for what he is guilty of."

Defendant contends certain mitigating circumstances should entitle him to a lesser sentence. The trial court considered such circumstances but did not find that they merited a reduction in sentence. We quote the court from the transcript of the resentencing hearing.

"This Court states for the record that before the previous sentence or sentencing, rather, of the defendant, the Court did consider all relevant mitigating factors presented to the Court, the fact that the offender was employed briefly at approximately the time of the offense, including that fact, including the fact that the offender was employed previously for a brief period of time at approximate time of the offense. However, the record further indicates that this offender had only been employed for approximately three months prior to his arrest, during which time he was frequent, frequently absent from work. The Court did not then and does not now feel that this factor is sufficient to mitigate the severity of the crimes the accused is guilty of. The fact that the defendant is technically a first felony offender was also considered in giving concurrent sentences on the two more serious charges rather than making them consecutive."

We are in complete agreement with the trial court. The sentences imposed were in no way "grossly out of proportion to the severity of the crime." Defendant's actions were brutal, violent, demeaning, prolonged and performed repeatedly over a several hour period. The effects of his criminal acts will no doubt leave an indelible scar upon his innocent victim. The maximum sentences for the forcible rape and aggravated burglary convictions were justified by these circumstances and the fact that the defendant was a first time offender and was briefly employed at the time of the offense do little to mitigate the atrocity of the crimes. We further find no excessiveness in the ten year sentence for the aggravated crime against nature in light of these facts. Therefore, we find no abuse of discretion in the court's sentences.

We now consider the excessiveness of the sentences insofar as the sentence for the crime against nature conviction was made to run consecutive rather than concurrent to the other sentences.

Concurrent rather than consecutive sentences are the usual rule for convictions arising out of a single course of criminal conduct, at least where the offender has no previous criminal record and there is no showing that public safety requires a longer sentence. La.Code Crim.P. 883; State v. Jett, 419 So.2d 844 (La.1982); State v. Molinario, 400 So.2d 596 (La.1981). However, consecutive sentences are not automatically considered excessive simply because they are imposed for convictions arising out of a single course of criminal conduct, since other factors should be considered in making this determination. State v. Jett, supra. Nevertheless, the imposition of consecutive sentences for convictions arising out of a single course of criminal conduct requires particular justification. State v. Lewis, supra.

In his original sentencing, the trial judge provided no justification for the imposition of the consecutive sentences upon defendant. Upon remand from the Supreme Court, the trial judge stated:

"The Court feels that the concurrent sentences are due on the rape and burglary charges but that the severity of the crimes and the harm caused the victim merit the ten-year consecutive sentence for the aggravated crime against nature. There was evidence presented of at least eight or nine acts of this nature constituting this charge. The Court, therefore, feels that a separate consecutive sentence is warranted by the evidence concerning these matters."

Again, we find no abuse of discretion. The multiplicity of the acts, as noted in the trial judge's reasons, provide sufficient justification for the imposition of the consecutive sentence on defendant's aggravated crime against nature conviction. The nature of these offenses, the violence displayed therein by defendant and his apparent lack of remorse indicate dangerous propensities on his part which pose a risk to public safety. See State v. Jett, supra. Consecutive sentences are justified when, as here, the offender poses an unusual risk to public safety. Id. Accordingly, the...