State v. Warfield10/29/2003
The state is correct that the defendant did not properly raise his argument regarding non-compliance with La. C. Cr. P. art. 894.1, in that he alleged mere excessiveness of sentence in his timely-filed motion to reconsider sentence.
When a defendant's motion for reconsideration urges merely that the sentence is excessive, he is relegated only to a claim of constitutional excessiveness. State v. Mims, 619 So. 2d 1059 (La. 1993).
Furthermore, because the sentence imposed for the habitual offender adjudication is prescribed by statute, the trial court's compliance with La. C. Cr. P. art. 894.1 is not required. State v. Gay, 34,371 (La. App. 2d Cir. 4/4/01), 784 So. 2d 714; State v. Owens, 32,642 (La. App. 2d Cir. 10/27/99), 743 So. 2d 890, writ denied, 00-0438 (La. 9/29/00), 769 So. 2d 553. It would be an exercise in futility for the trial court to discuss the factors enumerated in that article when the court had no discretion in sentencing the defendant. State v. Johnson, 31,448 (La. App. 2d Cir. 3/31/99), 747 So. 2d 61, writ denied, 99-1689 (La. 11/12/99), 749 So. 2d 653, cert. denied (2000).
Constitutional review turns upon whether the sentence is illegal, grossly disproportionate to the severity of the offense or shocking to the sense of justice. State v. Lobato, 603 So. 2d 739 (La. 1992).
In this case, La. R.S. 15:529.1(A)(1)(c)(ii) mandated a life sentence without benefits for defendant: he is a fourth felony offender, two of the predicate felonies, as well as this instant crime, are for simple burglary.
Although, in State v. Dorthey, 623 So. 2d 1276 (La. 1993), the Louisiana Supreme Court stated that courts have the power to declare a mandatory minimum sentence excessive under Article I, Section 20 of the Louisiana Constitution, this power should only be exercised in rare cases and only when the court is firmly convinced that the minimum sentence is excessive. State v. Ponsell, 33,543 (La. App. 2d Cir. 8/23/00), 766 So. 2d 678, writ denied, 00-2726 (La. 10/12/01), 799 So. 2d 490. This is not the case here, under these facts.
Since the habitual offender law in its entirety is constitutional, the minimum sentences it imposes upon multiple offenders are also presumed to be constitutional. State v. Johnson, 97-1906 (La. 3/4/98), 709 So. 2d 672. The mandatory life sentence imposed by La. R.S. 15:529.1 is presumptively constitutional and should be accorded great deference by the judiciary. State v. O'Neal, 36,431 (La. App. 2d Cir. 10/23/02), 830 So. 2d 408.
The defendant's burden was to rebut the presumption that a mandatory minimum sentence is constitutional. He had to clearly and convincingly show that he is exceptional, i.e., because of unusual circumstances, he is a victim of the legislature's failure to assign sentences meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case. State v. Johnson, 709 So. 2d at 676, citing Judge Plotkin's concurrence in State v. Young, 94-1636 (La. App. 4th Cir. 10/26/95), 663 So. 2d 525, writ denied, 95-3010 (La. 3/22/96), 669 So. 2d 1223.
The defendant's claim of constitutional excessiveness is not supported in this record. The sentence is neither grossly disproportionate to the severity of the offense, nor does it shock the sense of justice.
DECREE
The defendant's conviction, habitual offender adjudication, and sentence are AFFIRMED.
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