Fill and Sign the Brief in Support of Motion for Rehearing on Behalf of Defendant Appellant Louisiana Form

COURT OF APPEAL, _______ CIRCUIT STATE OF LOUISIANA NUMBER: _______ ****************************************************************************** STATE OF LOUISIANA VS. _______________ ****************************************************************************** CRIMINAL ACTION NO. _______ _______ JUDICIAL DISTRICT COURT IN AND FOR THE PARISH OF _______ , STATE OF LOUISIANA HONORABLE _______________ , TRIAL JUDGE ****************************************************************************** BRIEF IN SUPPORT OF MOTION FOR REHEARING ON BEHALF DEFENDANT/APPELLANT _______________ ****************************************************************************** _______________ INDIGENT DEFENDER BOARD _______ JUDICIAL DISTRICT COURT _______________ _______ , LA _______ ( ___ ) _______ REPRESENTING DEFENDANT - APPELLANT 1. JURISDICTION This is an appeal from two felony convictions. Jurisdiction is vested in this Court by Article V, Section 10, of the Louisiana Constitution of 1974, as amended, and by the provisions of Article 212.1 of the Louisiana Code of Criminal Procedure. As to the sexual battery conviction, venue was waived at the Trial Court level thus vesting jurisdiction over that charge with this Court as well. II. SYLLABUS OF LAW Louisiana Constitution, Article 1, Section 20 Louisiana Code of Criminal Procedure, Annual Article 894.1 (West 1984) Louisiana Sentencing Guidelines, Sections 209 (A), 209 8 State v. Brogdon , 457 So.2d. 616, 625 (La. 1984) Brogdon v. Louisiana , 471 U.S. 1111, 105 S.Ct. 2345, 85 L.Ed. 2d 862 (1985) State v. Caston , 477 So.2d 868 (La.App. 4th Cir. 1985) State v. Soco , 441 So.2d 719 (La. 1983) State v. Quebedeaux , 424 So.2d 1009 (La. 1982) State v. Cornelius , 539 So.2d [93-1636 La.App. 4th Cir 9] State v. Guajardo , 428 So.2d 468, 473 (La. 1983) State v. Coleman , 647 So.2d 1355 (La.App. 4th Cir. 1994) State v. Soraparu , 93-Ka-1636 (4th Cir. 1995) State v. Wheat , 612 So.2d 176 (La.App. 1 Cir. 1992) State v. Green , 1614 So.2d 758 (La.App. 2nd Cir. 1993) State v. Smith , 539 So.2d 993 (La.App. 4th Cir. 1989) II. STATEMENT OF THE CASE Pursuant to two bills of information alleging the offenses of Manslaughter and Attempted Forcible Rape, the defendant, _______________ , was arrested and charged with the same. On _______ ___ , 20 ___ , the defendant, _______________ , appeared before the Honorable _______________ in the Parish of _______ and plead guilty to one count of Manslaughter. On the same date, defendant waived venue and also plead guilty in _______ Parish to one count of Sexual Battery on a charge arising out of _______ Parish. IV. PROCEDURAL HISTORY On _______ ___ , 20 ___ , _______________ appeared before the Honorable _______________ , and was sentenced to a term of imprisonment of forty years at hard labor on the charge of Manslaughter, and ten years at hard labor on the charge of Sexual Battery, both of which are the maximum allowed by law. It was also ordered that these sentences were to be served consecutively with each other. Defendant/Appellant timely filed a Motion for Appeal with the _______ Circuit Court of Appeal, State of Louisiana, and judgment was rendered on _______ ___ , 20 ___ . In that judgment the convictions were affirmed, sentences were affirmed as amended to give credit for time served, and the case is remanded with order. V. ASSIGNMENTS OF ERROR Assignment of Error No. 1 THE TRIAL COURT AND/OR THE APPELLATE COURT ERRED BY FAILING TO TAKE INTO CONSIDERATION ANY MITIGATING FACTORS PURSUANT TO THE SENTENCING GUIDELINES AND SENTENCED THE DEFENDANT TO A TERM OF IMPRISONMENT FAR EXCEEDING THE TERM AS LISTED IN THE SENTENCING GUIDELINES. Assignment of Error No. 2 THE TRIAL COURT AND/OR THE APPELLATE COURT ERRED IN SENTENCING THE DEFENDANT TO A TERM OF IMPRISONMENT OF FORTY YEARS ON THE MANSLAUGHTER CONVICTION AND TEN YEARS ON THE SEXUAL BATTERY CONVICTION TO RUN CONSECUTIVELY, AS SUCH WAS AN EXCESSIVE SENTENCE WHICH IS CRUEL AND UNUSUAL PURSUANT TO THE U.S. AND LOUISIANA CONSTITUTIONS. VI. ISSUES PRESENTED FOR REVIEW 1. Whether the Trial Court and/or the Appellate Court erred by failing to take into consideration any mitigating factors pursuant to the sentencing guidelines. 2. Whether the Trial Court imposed a constitutionally excessive sentence. VII. ARGUMENT ASSIGNMENT OF ERROR NO. 1: Section 209-A, of the Louisiana Sentencing Guidelines states: A. Procedure for Departure 1. The designated sentence range provided in the Grid is appropriate for a typical case; that is, an offense committed without aggravated or mitigating circumstances. 2. A departure from the designated sentence range occurs whenever the Court imposes a sentence which is different from the types of sentences or outside the designated sentence range provided in the zone and cell appropriate to the case. 3. The Court should depart from the designated sentence range when sufficient aggravating or mitigating circumstances are present significantly to differentiate the case from the typical case arising under the offense of conviction. 4. When departing from the designated sentence range, the Court shall: a. Pronounce a sentence which is proportional to the seriousness of the offense and the officer = s criminal history; and b. State for the record the reasons for the departure which shall specify the mitigating or aggravating circumstances, and the factual basis therefor. 5. Reasons for departure from the designated sentence range are appropriate only when such reasons are based on mitigating or aggravating circumstances. According to Section 209-A of the Louisiana Sentencing Guidelines, the Trial Court did not state for the record, nor does it appear it even considered, any mitigating circumstances in regards to this defendant. (See Tr. 753-756). Of the eighteen mitigating circumstances itemized in Section 209-C of the Louisiana Sentencing Guidelines, a minimum of four specifically apply in this case. First of all, _______________ committed these offenses without any significant premeditation. This fact is supported throughout the record. _______________ = s judgment was also impaired because of his extreme youth. _______________ was in his early twenties when both of the incidents occurred. Furthermore, _______________ cooperated with law enforcement authorities with respect to the current crime of conviction. The record reflects that without _______________ = s help, the body of _______________ would never have been found and the crime would never have been solved. Finally, _______________ did in fact plead guilty and otherwise accepted the responsibility for the offense and expressed genuine remorse. _______________ , in his statement to the Court at the sentencing hearing, stated both that he did everything he could to help _______________ and that he was very sorry for what had happened to her. (See Tr. 747). Additionally, the defense contends that excessive weight was given to the aggravating circumstances cited by the Trial Court in that most, if not all of them, do not apply or are not supported by the evidence. To begin with, the use of violence and actual bodily injury in the Darby case is not supported by the evidence. Also, the threat of bodily harm to the victim is highly disputed. In the _______________ case, the use of violence cannot be considered an aggravating circumstance. It has been widely held that the use of violence in a manslaughter case is not an aggravating circumstance because, virtually all manslaughters or homicides are violent in nature. Also, the allegation of deliberate cruelty in _______________ = s failure to seek medical treatment for the victim lacks merit in that _______________ testified that he did in fact try to administer CPR to the victim coupled with the belief of Detective _______________ that _______________ did in fact try to help the victim. As far as economic loss to the victim = s family in the _______________ case, the money spent by the victim = s family was in fact unnecessary because a wide spread search by several police departments was ongoing, and at least some of the money spent by the _______________ family was on highly unscientific methods, such as psychics and the like. Consequently, the Trial Court = s failure to balance, or to even consider, the many mitigating circumstances applicable to this case coupled with the misapplication of several aggravating circumstances resulted in the Court rendering a sentence of more than five times the sentence called for by the sentencing guidelines in a first time offender case such as this one. But for these errors by the Trial Court, _______________ would have been sentenced within the sentencing guidelines, which called for a combined sentence of no more than 72 to 102 months. Therefore, the Trial Court sentence was excessive and should be vacated, and this Court should sentence the defendant within the range called for by the sentencing guidelines for a typical case of this nature. ASSIGNMENT OF ERROR NO. 2: Article I, Sec. 20 of the Louisiana Constitution (West 1977) provides that A [n]o law shall subject any person... to cruel, excessive or unusual punishment. @ A sentence within the statutory limit is considered excessive and unconstitutional if it is A grossly out of proportion to the severity of the crime @ or is A nothing more than the purposeless imposition of pain and suffering. @ State v. Brogdon , 457 So.2d 616, 625 (La. 1984), cert. den. Brogdon v. Louisiana , 471 U.S. 1111, 105 S.Ct. 2345, 85 L.Ed.2d 862 (1985); State v. Caston , 477 So.2d 868 (La.App. 4th Cir.1985). Generally, a reviewing Court must determine whether the Trial Court adequately complied with the sentencing guidelines set forth in La. Code Crim. Proc. Ann. art. 894.1 (West 1984) and whether the sentence is warranted in light of the particular circumstances of the case. State v. Soco , 441 So.2d 719 (La.1983); State v. Quebedeaux , 424 So.2d 1009 (La.1982). After establishing there is adequate compliance with Article 894.1, a reviewing Court must determine whether the sentence imposed is too severe in light of the particular defendant and the circumstances of his case, keeping in mind that maximum sentences should be reserved for the most egregious violators of the offenses so charged. State v. Cornelius , 539 So.2d [93- 1636 La.App. 4th Cir. 9] 919 (La.App. 4th Cir.1989); State v. Guajardo , 428 So.2d 468, 473 (La.1983). While maximum sentences for first offenders convicted of Manslaughter have been upheld in the past, not since the legislature increased the maximum sentence from twenty-one to forty years for a manslaughter conviction has this been the case. In the case of State v. Coleman , 647 So.2d 1355 (La.App. 4th Cir. 1994), a sentence of fifteen years for manslaughter on a first offender was imposed. In that case, the Trial Court found the defendant A > intentionally and coldly murdered _______________ , @ was A very fortunate not to have been convicted of second degree murder, @ used a dangerous weapon, and lacked remorse or willingness to claim responsibility. = @ The Trial Court found few mitigating circumstances. In a second case, State v. Soraparu , 93-Ka-1636 (4th Cir. 1995), the facts were virtually identical and a forty year maximum sentence at hard labor for a first time felony offender in a manslaughter charge was overturned as excessive. In comparing these cases to the instant case, _______________ is a first time offender, the aggravating circumstances are questionable, and there are many mitigating circumstances that the Trial Court failed to recognize in the sentencing proceeding. In reviewing the record in this case, the Court should find that this is no more than a typical case and hold that the sentence rendered by the Trial Court is constitutionally excessive and should be overturned. With regards to the sexual battery conviction, the sentencing guidelines call for a term of twenty-four to forty eight months for a first time felony offender. Case law abundantly provides that first time offenders with similar situations to the present case consistently fell within the guidelines. This Court in State v. Wheat , 612 So.2d 176 (La.App. 1 Cir. 1992), recently upheld a conviction and sentence of a defendant who, among other things, had a significant criminal history with a lengthy arrest record. The defendant also failed to show remorse and had not accepted responsibility for the crime. However, that defendant was only sentenced to five years at hard labor. In the present case, the Trial Court sentenced ___________ to the maximum ten year sentence. The record in no way reflects that this is anything but a typical case and upward deviation from the recommended range is not supported by the evidence. The aggravating circumstances cited by the Court are both questionable and disputed, and mitigating circumstances were not considered. This being so, this Court should find this sentence constitutionally excessive as well. Finally, the Trial Court held that these sentences, which are the maximum sentences on both charges, shall run consecutively. When consecutive sentences are imposed, the Trial Court shall state the factors considered and its reasons for the consecutive terms. State v. Green , 614 So.2d. 758 (La.App. 2nd Cir. 1993). Additionally, the Trial Court must articulate particular justification for consecutive sentences beyond simple articulation of Article 894.1's guidelines. State v. Smith , 539 So.2d 993 (La.App. 4th Cir. 1989). In the current case, the Trial Judge does not articulate, nor does the record justify, the imposition of consecutive sentences. There are several mitigating circumstances which the Trial Judge failed to consider, and the aggravating circumstances stated on the record are disputed and are at best questionable. Accordingly, the defendant argues that this sentence was excessive and asks this Court to vacate the sentence handed down by the Trial Court, and to sentence this defendant in line with the designated sentencing range for a typical case under the sentencing guidelines. VIII. CONCLUSION The sentence of fifty years at hard labor received by _______________ is constitutionally excessive for several reasons. The defendant is a first time offender without any prior convictions whatsoever. There is nothing in the records to support that this is anything but a typical case. The sentencing guidelines call for a range of sixty to ninety months on a typical manslaughter charge and a range of twenty-four to forty-eight months on a typical sexual battery charge. Additionally, several mitigating factors exist in this case that were not even considered by the Trial Judge, and the aggravating circumstances articulated by the Trial Judge do not carry the weight that was afforded them. Furthermore, the Trial Court failed to articulate any justification for the imposition of consecutive sentences, which is required under State v. Green, supra. Therefore, the Defendant/Appellant request that this Honorable Court grant a rehearing and at the rehearing the sentence of the Trial Court should be vacated and the defendant should be sentenced according to the designated range called for in the typical case under the sentencing guidelines. Respectfully Submitted, ______________________________ _______________ _______ Judicial District Indigent Defender Board _______________ _______ , LA _______ ( ___ ) _______ Bar No. _______ CERTIFICATE OF SERVICE I HEREBY CERTIFY that I have forwarded a copy of the above original brief to the records of all counsel by placing a copy thereof in the United States Mail, postage prepaid and properly addressed. Signed in _______________ , Louisiana, on this ______ day of ___________________, 20 ___ . ______________________________ _______________