State v. Sosa
| Decision Date | 18 January 1989 |
| Docket Number | No. 88-KA-482,88-KA-482 |
| Citation | 537 So.2d 873 |
| Parties | STATE of Louisiana v. Mario R. SOSA. 537 So.2d 873 |
| Court | Court of Appeal of Louisiana — District of US |
Dorothy A. Pendergast, Asst. Dist. Atty., (Louise Korns, of counsel) Gretna, for plaintiff/appellee.
Malvern C. Burnett, New Orleans, for defendant/appellant.
Before KLIEBERT, GAUDIN, and GOTHARD, JJ.
Defendant Mario R. Sosa was charged by bill of information with distribution of LSD (Lysergic Acid Diethylamide) in violation of R.S. 40:966(A). Plea negotiations with the state resulted in defendant entering a plea of guilty to possession of LSD in violation of R.S. 40:966C(3). A presentence investigation report was ordered, and thereafter the court sentenced defendant to five years' imprisonment at hard labor.
The factual background for the defendant's conviction may be obtained from the record and the PSI report. There is no dispute as to what occurred. The defendant gave 10 dosage units of LSD to his girlfriend who sold them for six dollars apiece to a Jefferson Parish detective working as an undercover agent. The sale occurred on May 30, 1986, and defendant's arrest followed shortly thereafter.
Defendant argues that the trial judge erred in imposing a sentence which is excessive with the Louisiana Constitution and that the trial judge failed to utilize the sentencing guidelines of C.Cr.P. art. 894.1. He argues that the trial judge failed to appropriately consider him for less onerous sentencing alternatives, including recommendation for the intensive incarceration parole program. R.S. 15:574.4. He argues that the trial judge failed to consider defendant Sosa's first offender status and mitigating circumstances, that he is employed, attending college and lives with his widowed mother.
At the sentencing on April 27, 1988, the trial judge sentenced defendant Sosa to five years at hard labor which is one-half the maximum allowable for this offense of possession of LSD. The trial judge in explanation of his sentencing decision stated that:
With regard to the reasons for sentencing, the Court wishes to state for the record that under Louisiana Revised Statutes [sic] 894.1, there is an undue risk that during the period of a suspended sentence or probation, the defendant will commit another crime; two, the defendant is in need of correctional treatment or of a custodial environment that can be provided most effectively by his commitment to an institution. Number three, a lesser sentence will deprecate the seriousness of the defendant's crime; the factors to be considered under that same article concerning the suspension or probation of sentence, the defendant's criminal conduct did cause serious harm; number two, the defendant did contemplate that his criminal conduct would cause or threaten serious harm; number three, the defendant did not act under strong provocation; number four, there was substantial--there was no substantial grounds tending to excuse or justify the defendant's criminal conduct, even though failing to establish a defense; number five, the victim of the defendant's criminal conduct did not facilitate its commission; number six, the defendant has not compensated the victim, but that's really not material in this case. Defendant has no history of prior delinquency or criminal activity and has led a law-abiding life for a substantial period of time before the commission of the instant crime. Number eight, the defendant's criminal conduct was not the result of circumstances that are unlikely to recur; in other words, the positive side is that they are likely to recur; number nine, the character and attitude of the defendant indicate that he is likely to commit another offense; number ten, the defendant is particularly likely to respond--is not particularly likely to respond affirmatively to probationary treatment, and, number eleven, the imprisonment of the defendant would not entail excessive hardship to himself or his dependents.
This articulation clearly lacked any real individualization to this offender. The trial judge noted no factual basis for the sentence imposed, and otherwise gives no indication that he considered any of the mitigating information contained in the presentence investigation report.
The maximum penalty for possession of LSD is imprisonment at hard labor for not more than ten years and a fine of not more than $5000. R.S. 40:966C(3). It is now well settled that this court may review a sentence for excessiveness...
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State v. Bailey
...is unclear as to the true intent of the trial court, we are unable to correct the error. State v. Bridges, supra; State v. Sosa, 537 So.2d 873 (La.App. 5th Cir.1989). Accordingly, the sentence will be vacated and the matter remanded for resentencing, after consideration of the indicated For......
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State v. Camp
...there is a serious lack of evidence to support the sentence imposed in relation to the particular offense committed. State v. Sosa, 537 So.2d 873 (La.App. 5 Cir.1989)." In the present case, the trial judge offered few articulated reasons for his sentencing choice. He remarked only that he h......
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State v. Jones
...there is a serious lack of evidence to support the sentence imposed in relation to the particular offense committed. State v. Sosa, 537 So.2d 873 (La.App. 5th Cir.1989). In imposing sentence on Traylor, the trial judge The Court is going to sentence the Defendant to thirty-five years at har......
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State v. Owens
...this case to the trial court with instructions to consider the sentencing guidelines of La.C.Cr.P. art. 894.1. See State v. Sosa, 537 So.2d 873 (La.App. 5th Cir.1989). CONVICTION AFFIRMED, SENTENCE VACATED, CASE REMANDED FOR ...