Opinion
2018 KA 0022
06-01-2018
STATE OF LOUISIANA v. TWDARRYL TONBY
Warren LeDoux Montgomery District Attorney Ronald Thomas Gracianette Assistant District Attorney Franklinton, Louisiana Mary Watson Smith Covington, Louisiana Counsel for Appellee State of Louisiana Lieu T. Vo Clark Mandeville, Louisiana Counsel for Defendant-Appellant Twdarryl Toney
NOT DESIGNATED FOR PUBLICATION ON APPEAL FROM THE TWENTY SECOND JUDICIAL DISTRICT COURT
NUMBER 15 CR6 127320, DIVISION C, PARISH OF WASHINGTON
STATE OF LOUISIANA HONORABLE RICHARD A. SWARTZ, JUDGE Warren LeDoux Montgomery
District Attorney
Ronald Thomas Gracianette
Assistant District Attorney
Franklinton, Louisiana Mary Watson Smith
Covington, Louisiana Counsel for Appellee
State of Louisiana Lieu T. Vo Clark
Mandeville, Louisiana Counsel for Defendant-Appellant
Twdarryl Toney BEFORE: WHIPPLE, C.J., McDONALD, AND CHUTZ, JJ.
Disposition: AFFIRMED.
CHUTZ, J.
The defendant, Twdarryl Toney, was charged by bill of information with battery of a correctional facility employee, a violation of La. R.S. 14:34.5. The defendant pled not guilty and, following a jury trial, was found guilty as charged. After a hearing on the matter, the defendant was adjudicated a third-felony habitual offender and sentenced to five years imprisonment at hard labor without benefit of probation or suspension of sentence. The defendant appealed his conviction and sentence. We affirmed the defendant's conviction and habitual offender adjudication, but vacated the sentence and remanded for resentencing. We found, under patent error review, that the defendant had received an illegally lenient habitual offender sentence because the trial court failed to restrict the benefit of parole, as was required by statute. See State v. Toney , 2016-0689 (La. App. 1st Cir. 10/31/16), 2016 WL 6427775, *4 (unpublished).
At a hearing on the instant matter, the trial court resentenced the defendant to five years imprisonment at hard labor without benefit of parole, probation or suspension of sentence. The defendant filed a motion to reconsider sentence, which was denied. The defendant now appeals, designating two assignments of error. We affirm the habitual offender sentence.
FACTS
For a recitation of the facts, see State v. Toney , 2016 WL 6427775 at *1.
ASSIGNMENTS OF ERROR NOS. 1 and 2
In these related assignments of error, the defendant argues, respectively, the trial court erred in denying the motion to reconsider sentence and the sentence is unconstitutionally excessive.
The Eighth Amendment to the United States Constitution and Article I, Section 20, of the Louisiana Constitution prohibit the imposition of excessive punishment. Although a sentence falls within statutory limits, it may be excessive. State v. Sepulvado , 367 So.2d 762, 767 (La. 1979). A sentence is considered constitutionally excessive if it is grossly disproportionate to the seriousness of the offense or is nothing more than a purposeless and needless infliction of pain and suffering. A sentence is considered grossly disproportionate if, when the crime and punishment are considered in light of the harm to society, it shocks the sense of justice. State v. Andrews , 94-0842 (La. App. 1st Cir. 5/5/95), 655 So.2d 448, 454. The trial court has great discretion in imposing a sentence within the statutory limits, and such a sentence will not be set aside as excessive in the absence of a manifest abuse of discretion. See State v. Holts , 525 So.2d 1241, 1245 (La. App. 1st Cir. 1988). On appellate review of a sentence, the relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. State v. Thomas , 98-1144 (La. 10/9/98), 719 So.2d 49, 50 (per curiam).
Louisiana Code of Criminal Procedure article 894.1 sets forth the factors for the trial court to consider when imposing a sentence. While the entire checklist of La. C.Cr.P. art. 894.1 need not be recited, the record must reflect the trial court adequately considered the criteria. State v. Brown , 2002-2231 (La. App. 1st Cir. 5/9/03), 849 So.2d 566, 569. The articulation of the factual basis for a sentence is the goal of La. C.Cr.P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. C.Cr.P. art. 894.1. State v. Lanclos , 419 So.2d 475, 478 (La. 1982). The trial judge should review the defendant's personal history, his prior criminal record, the seriousness of the offense, the likelihood that he will commit another crime, and his potential for rehabilitation through correctional services other than confinement. See State v. Jones , 398 So.2d 1049, 1051-52 (La. 1981).
The defendant asserts in brief that his actions were the result of threats of sexual activity by another inmate and the defendant's mental health issues. The defendant avers that he did not intend to cause harm to Corrections Sergeant Master Jordan Silva. By imposing the five-year sentence without parole, according to the defendant, the trial court imposed a constitutionally excessive sentence.
Contrary to his assertion in brief, the defendant was not sentenced to five years imprisonment at hard labor without parole for the injury caused to Sergeant Silva. Rather, under the Habitual Offender Law, the defendant, a recidivist with multiple felony convictions, is being punished for the instant crime in light of his continuing disregard for the laws of our State. See State v. Johnson , 97-1906 (La. 3/4/98), 709 So.2d 672, 676-77.
The defendant faced a maximum sentence of ten years imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. See La. R.S. 15:529.1(A)(3)(a) & 14:34.5(B)(2); State v. Toney , 2016 WL 6427775 at *4. Considering the defendant's criminal history, his status as a third-felony habitual offender, and the fact that the defendant was sentenced to only five years imprisonment, or half of the possible maximum sentence, the sentence imposed by the trial court is not grossly disproportionate to the severity of the offense and, therefore, is not unconstitutionally excessive. Accordingly, the trial court did not err in denying the motion to reconsider sentence.
DECREE
For these reasons, we affirm the habitual offender sentence of defendant-appellant, Twdarryl Toney.
AFFIRMED.