State v. Smith
| Decision Date | 05 July 1994 |
| Citation | 639 So.2d 237 |
| Court | Louisiana Supreme Court |
| Parties | 93-0402 La |
Richard Ieyoub, Atty. Gen., Harry F. Connick, Dist. Atty., Valentin Michael Solino, Asst. Dist. Atty., for applicant.
Dwight Michael Doskey, Orleans Indigent Defender Program, for respondent.
Ellis Paul Adams, Jr., for amicus curiae, Louisiana Dist. Atty. Ass'n.
Bernard E. Boudreaux, Jr., amicus curiae, for Louisiana Sentencing Committee.
Richard Morris Tompson, amicus curiae, for Jefferson Parish Indigent Defender Bd.
[93-0402 La. 1] KIMBALL, Justice. *
On August 21, 1991, Rhonda Bordelon exited the A & P grocery store in the French Quarter. As she was walking home, she was approached from behind and commanded to surrender her purse. Bordelon resisted initially and was pushed to the ground. The assailant then took the purse and ran. Several people witnessed the struggle, gave chase, and apprehended the assailant a few blocks away. Bordelon positively identified the defendant as the assailant both at the time of the arrest and at trial.
Defendant was charged by the district attorney with purse snatching, a violation of La.R.S. 14:65.1. A jury found the defendant guilty as charged. He was sentenced as a second offender under La.R.S. 15:529.1, to serve fifteen years at hard labor.
On appeal, the Fourth Circuit Court of Appeal affirmed the conviction but vacated the sentence. 1 Stating that "[t]he occurrence of this crime in the French Quarter and the defendant's [93-0402 La. 2] prior conviction are not justifiable reasons for the gross departure from the sentence recommended in the guidelines," 2 the court of appeal held that "[i]t is an abuse of the trial court's discretion to impose a sentence that grossly deviates from the guidelines when that deviation is not supported by the record." 3
The court of appeal interpreted La.Code Cr.P. arts. 881.1-881.6 and 894.1 to require the trial court to consult the Louisiana Sentencing Guidelines 4 (hereinafter "Guidelines") and make use of them "as a norm." 5 However, the court of appeal determined, if aggravating or mitigating circumstances are present in the record, a sentencing judge has the discretion to impose a more severe or less severe sentence than the sentence or sentencing range set forth in the Guidelines. 6 Because the trial judge in this case articulated for the record that he had considered the Guidelines, but imposed a sentence more severe than that which was recommended by the Guidelines, and because the trial judge's reasons for imposition of that sentence were deemed "not justifiable" by the court of appeal, it remanded the case to the trial court for re-sentencing of the defendant to a prison term not to exceed the statutorily authorized minimum sentence of ten years at hard labor, the latter being the prescribed sentence called for in the Guidelines. 7
This Court, after granting the State's application for supervisory writs 8 to decide whether [93-0402 La. 3] and, if so, to what extent the Louisiana Sentencing Guidelines are mandatory in nature, found that:
the Guidelines are mandatory, but only in the sense that the trial court must consider them and, if gross deviation is called for, must "[s]tate for the record the reasons for departure which shall specify the mitigating or aggravating circumstances, and the factual basis therefor." La.Admin.Code tit. 22 § 209(4)(b) (West 1993) (emphasis provided). The Guidelines are also advisory, but only in the sense that a judge is not compelled to follow them if a sentence outside the Guidelines is supported by aggravating or mitigating circumstances in the record. 9
We therefore affirmed the judgment of the court of appeal which affirmed the conviction, vacated the sentence, and remanded the case to the district court for re-sentencing. However, that portion of the court of appeal judgment which directed the district court to impose a sentence not in excess of ten years was modified such that the district judge, if he so determined, could state for the record the aggravating circumstances which would warrant deviation from the Guidelines and thereupon impose an appropriate sentence in excess of ten years, or impose a ten year sentence as prescribed by the Guidelines if there were no such aggravating circumstances. 10
On application by the State, we granted rehearing 11 in this matter and, for the reasons which follow, now hold that: (1) while a trial judge must consider the Guidelines, he has complete discretion to reject the Guidelines and impose any sentence which is not constitutionally excessive, 12 but is within the statutory sentencing range for the crime of which a defendant has been convicted, so long as he states for the record the considerations taken into account and the factual basis for his imposition of that sentence, La.Code Cr.P. art. 894.1; and (2) where the trial judge has considered the Guidelines and imposed a sentence, adequately stating for the record the considerations taken into account and the factual basis for imposition of that sentence, an appellate court is limited to a review of the sentence imposed for constitutional excessiveness, without regard as to whether the trial judge either employed or deviated from the Guidelines.
B. [t]he legislature has determined that the best interest of the state would be served by the development and implementation of a uniform sentencing policy for use by the Louisiana judiciary. The purpose of the Louisiana Sentencing Commission is to assist the judiciary by formulating such policy in the form of advisory sentencing guidelines to be considered in determining sentences in particular cases. (Emphasis added).
C. The commission may recommend such legislation as may be necessary and appropriate to achieve a uniform sentencing policy.
The enabling legislation further provides:
§ 326. Advisory sentencing guidelines
A. The commission shall adopt advisory guidelines for consideration by the court imposing sentence in particular cases based upon reasonable offense and offender characteristics. (Emphasis added).
§ 328. Effect upon sentence
* * * * * *
B. No sentence shall be declared unlawful, inadequate, or excessive solely due to the failure of the court to impose a sentence in conformity with the sentencing guidelines of the commission. (Emphasis added).
Pursuant to this legislation, the Sentencing Guidelines formulated by the Louisiana Sentencing Commission were promulgated by the Office of the Governor, Commission on Law Enforcement and Administration of Criminal Justice, Louisiana Sentencing Commission, in January of 1992. Concurrent with the promulgation of the Guidelines, Act 22 of 1991 amended and reenacted La.Code Cr.P. art. 894.1 to read:
Art. 894.1. Sentencing guidelines
A. When the defendant has been convicted of a felony, the court shall consider the sentencing guidelines promulgated by the Louisiana Sentencing Commission in determining the appropriate [93-0402 La. 5] sentence to be imposed. However, no sentence shall be declared unlawful, inadequate, or excessive solely due to the failure of the court to impose a sentence in conformity with the sentencing guidelines of the commission.
* * * * * *
C. The court shall state for the record the considerations taken into account, including aggravating and mitigating circumstances
which may be present, and the factual basis therefor in imposing sentence. (Emphasis added).
La.Code Cr.P. art. 894.1.
Also concurrent with the promulgation of the Guidelines, Act 38 of 1991 enacted Code of Criminal Procedure articles 881.1-881.6. Those articles, in pertinent part, state:
Art. 881.4. Action by appellate court
A. If the appellate court finds that a sentence must be set aside on any ground, the court shall remand for resentence by the trial court. The appellate court may give direction to the trial court concerning the proper sentence to impose.
* * * * * *
D. The appellate court shall not set aside a sentence for failure to impose a sentence in conformity with the sentencing guidelines or for excessiveness if the record supports the sentence imposed. (Emphasis added).
La.Code Cr.P. art. 881.4.
Art. 881.6. Effect upon sentence
No sentence shall be declared unlawful, inadequate, or excessive solely due to the failure of the court to impose a sentence in conformity with the sentencing guidelines of the commission. (Emphasis added).
La.Code Cr.P. art. 881.6.
Clearly, all of the cited statutes and Code of Criminal Procedure articles contemplate the Sentencing Guidelines as being advisory in nature, with the notable exception of La.Code Cr.P. art. 894.1, which requires the trial judge to consider the Guidelines and state for the record the considerations taken into account and the factual basis for the sentence imposed. The enabling legislation specifically refers to the Sentencing Guidelines as being advisory. La.R.S. 15:326. The Code of Criminal Procedure specifically declares, in three different code articles, that a sentence shall not be set aside due to the failure of the trial court to sentence a defendant in accordance with the Guidelines. La.Code Cr.P. arts. 881.4, 881.6, 894.1. Furthermore, the [93-0402 La. 6] Sentencing Guidelines themselves were promulgated as advisory in nature:
§ 101. Purpose
A. The purpose of the Louisiana Sentencing Guidelines, hereinafter referred to as "guidelines," is to recommend a uniform sanctioning policy which is consistent,...
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28,187 La.App. 2 Cir. 6/26/96, State v. Jasper
...guidelines and the mitigating and aggravating factors and had decided to depart from the guidelines pursuant to State v. Smith, 93-0402 (La. 07/05/94), 639 So.2d 237 (on rehearing). He sentenced defendant to thirty-five years at hard labor, with credit for time served. The judge stated that......
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26,867 La.App. 2 Cir. 4/5/95, State v. George
...§ 209 B. Accordingly, the trial court did not err in departing from the recommended sentences under the guidelines. State v. Smith, 93-0402 (La. 07/05/94), 639 So.2d 237. Additionally, before sentencing, the trial court examined the defendant's previous conviction for manslaughter and revie......
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28,016 La.App. 2 Cir. 4/3/96, State v. Lindsey
...discretion to reject them and impose any sentence within the statutory range which is not constitutionally excessive. State v. Smith, 93-0402 (La. 7/5/94), 639 So.2d 237 on rehearing). The court needed only to state for the record the considerations taken into account and the factual basis ......
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26,550 La.App. 2 Cir. 12/21/94, State v. Matthews
...he states for the record the considerations taken into account and the factual basis for imposition of that sentence. State v. Smith, 93-0402 (La. 7/5/94), 639 So.2d 237. In accordance with Smith, supra, the trial court noted that it was "varying" from the guidelines, giving several reasons......