The Eighth Amendment to the United States Constitution and the Louisiana Constitution Article I, § 20 prohibit the imposition of excessive punishment. State v. Johnson, 03-620, p. 14 (La.App. 5 Cir. 10/28/03), 860 So.2d 180, 189, writ denied, 03-3171 (La.3/19/04), 869 So.2d 849. "A sentence is considered excessive if it is grossly disproportionate to the offense or imposes needless and purposeless pain and suffering." Id.
It is presumed that a mandatory minimum sentence under the Habitual Offender Law is constitutional. State v. Johnson, 97-1906, p. 6 (La. 3/4/98), 709 So.2d 672, 675; State v. Johnson, 03-620, p. 14 (La.App. 5th Cir. 10/28/03), 860 So.2d 180, 189. However, if the trial judge finds that an enhanced punishment mandated by La.R.S. 15:529.1 makes no "measurable contribution to acceptable goals of punishment" or that the sentence amounts to nothing more than "the purposeful imposition of pain and suffering" and is "grossly out of proportion to the severity of the crime," the trial judge has the option and duty to reduce such sentence to one that would not be constitutionally excessive Dorthey, 623 So.2d at 1280; Johnson, 03-620 at 14, 860 So.2d at 189-190.
IN RE: Johnson, Jonathan; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. L, Nos. 02-3243; to the Court of Appeal, Fifth Circuit, No. 03-KA-620. Prior rport: La.App., 860 So.2d 180. Denied.
It is well-established that a defendant is limited to the grounds for objection articulated at trial and a new basis for an objection may not be raised for the first time on appeal. State v. Cooks , 97-0999 (La. 9/9/98), 720 So.2d 637, 644, cert. denied , 526 U.S. 1042, 119 S.Ct. 1342, 143 L.Ed.2d 505 (1999) ; State v. Johnson , 03-620 (La. App. 5 Cir. 10/28/03), 860 So.2d 180, 187, writ denied , 03-3171 (La. 3/19/04), 869 So.2d 849. The purpose behind the contemporaneous objection rule is to put the trial judge on notice of an alleged irregularity so that he may cure the problem and to prevent the defendant from gambling on a favorable verdict then resorting to appeal on errors that might easily have been corrected by an objection.
Id. (citingState v. Johnson , 03–620 (La.App. 5 Cir. 10/28/03), 860 So.2d 180, 187, writ denied , 03–3171 (La. 3/19/04), 869 So.2d 849 ). The purpose behind the contemporaneous objection rule is to put the trial judge on notice of an alleged irregularity so that he may cure the problem.
A mistrial is a drastic remedy and, except when mandatory, is warranted only when the defendant has suffered substantial prejudice such that he is incapable of receiving a fair trial. State v. Carmouche, 01–0405 (La.5/14/02), 872 So.2d 1020, 1035 ; State v. Johnson, 03–620 (La.App. 5 Cir. 10/28/03), 860 So.2d 180, 186, writ denied, 03–3171 (La.3/19/04), 869 So.2d 849. Whether a mistrial should be granted is within the trial court's sound discretion, and denial of a mistrial motion will not be disturbed on appeal absent an abuse of that discretion.
See State v. Preston, 47,273 (La.App. 2 Cir. 8/8/12), 103 So.3d 525, 535. See also State v. Johnson, 03–620 (La.App. 5 Cir. 10/28/03), 860 So.2d 180, 191, writ denied,03–3171 (La.3/19/04), 869 So.2d 849. Although defendant was incorrectly advised regarding the minimum sentence he could face, it is noted that defendant was correctly advised as to the sentence that would be imposed, and defendant agreed to the enhanced sentence. Based on the foregoing, we find that the proceedings surrounding defendant's guilty pleas, sentencing, and habitual offender stipulation and sentencing on count four do not present any non-frivolous issues to be raised on appeal.
A new basis for an objection may not be raised for the first time on appeal. Id. (citing State v. Johnson, 03–620 (La.App. 5 Cir. 10/28/03), 860 So.2d 180, 187,writ denied,03–3171 (La.3/19/04), 869 So.2d 849). The purpose behind the contemporaneous objection rule is to put the trial judge on notice of an alleged irregularity so that he may cure the problem.
Lastly, this Court has upheld 66-year sentences for third felony offenders with underlying convictions of armed robbery. See State v. Home, 11-204, 2012 WL 469890, at *5-7 (La. App. 5 Cir. 2/14/12); State v. Otero, 09-468, pp. 7-10 (La. App. 5 Cir. 1/26/10), 31 So.3d 1125, 1130-32, writ denied, 10-489 (La. 9/24/10), 45 So.3d 1072; and State v. Johnson, 03-620, pp. 14-15 (La. App. 5 Cir. 10/28/03), 860 So.2d 180, 189-90, writ denied, 03-3171 (La. 3/19/04), 869 So.2d 849. We find the trial judge did not abuse his discretion in sentencing.
Lastly, this Court has upheld 66–year sentences for third felony offenders with underlying convictions of armed robbery. See State v. Horne, 11–204 (La.App. 5 Cir. 2/14/12), 88 So.3d 562, 568–71; State v. Otero, 09–468, pp. 7–10 (La.App. 5 Cir. 1/26/10), 31 So.3d 1125, 1130–32,writ denied,10–489 (La.9/24/10), 45 So.3d 1072; and State v. Johnson, 03–620, pp. 14–15 (La.App. 5 Cir. 10/28/03), 860 So.2d 180, 189–90,writ denied,03–3171 (La.3/19/04), 869 So.2d 849. We find the trial judge did not abuse his discretion in sentencing.