
    STATE of Louisiana, v. Anthony BASTIAN.
    No. 96-K-0997.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 11, 1996.
    Harry F. Connick, District Attorney, Trina Thomas, Assistant District Attorney, New Orleans, for State.
    Ross Scaccia, Orleans Indigent Defender, New Orleans, for Defendant.
    Before BYRNES, ARMSTRONG and WALTZER, JJ.
   hWALTZER, Judge.

The State invokes our supervisory jurisdiction to review a multiple offender sentence. Specifically, the State argues that the trial court failed to state adequate reasons to support imposition of a six year sentence at hard labor, thus deviating from the mandatory sentence of life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence.

STATEMENT OF THE CASE

The defendant was charged by bill of information with two counts of forgery, violations of La.R.S. 14:72. After the defendant was convicted of one count of forgery (the jury could only find him guilty either of the “false making or altering, with intent to defraud ... of any writing purporting to have legal efficacy” or of the “issuing or transferring, with intent to defraud, a forged writing ... ”, but not of both), the defendant was charged as a multiple offender. The prosecution used this forgery conviction, a previous conviction of unauthorized use of a movable valued in excess of $1,000 and a simple robbery conviction in order to multiple bill him as a third felony offender. Under La.R.S. 15:529.1(A)(l)(b)(ii), La.R.S. 14:2(13)(y) and La.R.S. 14:72, the mandatory sentence in 12this case is life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence.

DISCUSSION

In State v. Bernard Morgan, 96-0354 (La.App. 4 Cir. 4/17/96), 673 So.2d 256, this Court summarized our application of the principles announced by the Louisiana Supreme Court in State v. Dorthey, 623 So.2d 1276 (La.1993). We reiterated that sentencing, and the review of sentences, is within the exclusive authority of the judicial branch. Our extensive review included State v. Sepulvado, 367 So.2d 762, 766 (La.1979); State v. Abbott, 94-1046 (La.App. 4 Cir. 2/23/95), 650 So.2d 1223; State v. Eric Kingston, 95-1935 (La.App. 4 Cir.1/19/96), 668 So.2d 395; State v. Young, 94-1636 (La.App. 4 Cir.10/26/95), 663 So.2d 525; State v. Eggerson, 95-1337 (La.App. 4 Cir. 9/15/95), 661 So.2d 1096; and State v. Daniel Hyorth, 95-1181 (La.App. 4 Cir.9/15/95), 661 So.2d 1059, all of which concerned the imposition of sentences under Dorthey. The Supreme Court has issued several per curiam opinions which, while resolving the issues in those particular cases, provide little analysis or reasoning to support the court’s rulings. Accordingly, the intermediate appellate courts of this State are left without guidance in determining the standards to employ when deciding whether to uphold a trial court’s decision to impose a sentence below that required by the Habitual Offender Law.

In State v. Kelly, 95-2335 (La.2/2/96), 666 So.2d 1082, the court, in a per curiam opinion reversed an unpublished decision of this Court, State v. Johnnie Kelly, 95-0861 (La.App. 4 Cir. 8/23/95), 658 So.2d 1343. In Kelly, the trial court stated its reasons for imposing a sentence below the statutory minimum. Although State law required the defendant in that case to receive six to twenty-four years without benefit of probation, parole, or suspension of sentence, the trial judge sentenced the defendant to serve twenty-eight months with the Department of Corrections. There, the trial judge remarked that he felt justified in the deviation, | ^because the defendant was convicted of having entered an abandoned structure without permission of the HANO Board. The judge opined that the defendant was sleeping in the abandoned structure, and considered the defendant’s age, concluding that the statutorily mandated incarceration of six years was unwarranted.

Upon review, this Court stated that “[t]he court found that the defendant’s age, background and the facts of the instant case did not justify the statutorily mandated minimum sentence. The court clearly understood that the test in Dorthey requires that before a sentence can be reduced below the mandatory minimum, the court must find the mandatory minimum sentence unconstitutionally excessive as to the defendant. The record satisfies us that there was such a finding.”

In reversing, the Supreme Court stated merely that “[although the trial judge cited Dorthey in his reasons, it does not appear that he made a proper finding that imposition of the statutorily mandated sentence would be constitutionally excessive.” State v. Kelly, 95-2335 at 1, 666 So.2d 1082. The Court then remanded the ease for the trial court to “justify its deviation from the statutorily-mandated minimum sentence in this case.” Id., at 1; 666 So.2d 1082. After remand from the Supreme Court, the trial court again imposed a six year sentence and the state filed a writ application in this court. On 1 May 1996, this Court, with one judge dissenting, granted the state’s application: “... the trial court states that a six-year prison term would be excessive considering Mr. Kelly’s age and non-violent criminal history, but failed to address the jurisprudential factors considered in determining the mandatory minimum sentence is unconstitutionally excessive.” (emphasis in the original). The Court then remanded the matter to the trial court “for resentencing in accordance with the Supreme Court’s prior Order ...”

I4TW0 other per curiam decisions by the Supreme Court use the same language as in Kelly, but again provide no assistance to the district courts or the intermediate appellate courts when determining what is a “proper finding” that the minimum sentence would be constitutionally excessive. State v. Webster, 95-2484 (La.2/2/96), 666 So.2d 654; State v. Hamilton, 95-2462 (La.2/2/96), 666 So.2d 655. The only guide provided by the Supreme Court is found in three concurring opinions by the Chief Justice:

Dorthey gives the district court the authority to depart from the mandatory minimum sentences provided by the legislature only in those rare instances in which the punishment provided violates the prohibition of La.Const. art. I, Sec. 20 against excessive sentences. The district court should therefore make express findings according to the jurisprudential standards governing the determination of whether a particular sentence is excessive. Perhaps more importantly, the district court should also state fully for the record the factual basis underlying its determination for purposes of facilitating appellate review.

Webster, p. 1 of concurring opinion, 666 So.2d at 655; Hamilton, p. 1 of concurring opinion, 666 So.2d at 656; Kelly, p. 1 of concurring opinion, 666 So.2d at 1083.

PROCEEDINGS IN THE INSTANT CASE

In the present case, the defendant was previously convicted of unauthorized use of a movable valued in excess of $1,000, and simple robbery. His present offense is forgery. Under La.R.S. 15:529.1(A)(l)(b)(ii), La.R.S. 14:2(13)(y), and La.R.S. 14:72, the mandatory sentence in this case is life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. At sentencing the trial court stated:

The Court feels to impose a mandatory life sentence for these offenses-unauthorized use of a movable, in my opinion, valued at $1,000 is barely a felony offense. Forgery, the charge for which he was convicted by a jury, is a felony offense. I do not condone what he did. I am not convinced that he took the man’s social security check, but I am convinced that he did attempt to cash the social security check at a check cashing place.
I do not believe that a person for the crime of simple robbery or an unauthorized use of a moveable or a forgery, |salthough these are felony offenses, I do not believe he should be sentenced to jail for the rest of his natural life. I believe the punishment would far exceed his criminal history. I believe that to impose a sentence of life imprisonment would be excessive. I also believe it would be a cruel and unusual punishment in light of the criminal history. I do not know any of the circumstances in the robbery case. The State has not indicated to me that there was any violence where someone may have been injured or hurt in any way. Other than that and that is the only one where there could be a crime where someone was hurt. There is no indication in this record that he has at any time in his criminal history been convicted of any offenses whereby weapons were used or where victims were in fact injured.
I am going to follow the procedures of State v. Dorthey and deviate from the mandatory minimum sentence of life imprisonment for the reasons I have already noted.
I also think the record should further reflect this is a six-year sentence whereby he is going to be required to do six years flat, day by day. He is not going to get any good time. The simple robbery conviction is going to deprive him of any good time benefits. So, this is a flat sentence. I believe it is a significant sentence considering the facts and circumstances of his conviction and the facts and circumstances of his background.
I think you’re being unreasonable. I think you’re being ridiculous for asking me to give him a life sentence for this background. When I think somebody deserves to go to jail for long periods of time, they have gone to jail for long periods of time. He doesn’t deserve to go to jail for a long — six years is good for him for what he did and his background.
I don’t think I have been soft when I think people should go to jail. If I thought they should go to jañ — people standing before me have gone to jail for very long periods of time.
I think you guys are absolutely ridiculous for asking me to put him in jail for that period of time [for] this type of offense. I think that’s absolutely crazy.

CONCLUSION

In our view, the trial court has adequately stated sufficient reasons for its decision to impose a sentence below the statutory minimum. It appears to us that this case is one of the “rare instances” mentioned by Chief Justice Calogero, which would justify a sentence below the statutory minimum. State v. Webster, supra. Here, the defendant was convicted of simple robbery seven years ago, which, if it were a first offense, carries a maximum seven year sentence, and has been convicted of forgery and unauthorized use of a moveable. He is facing | (¡imprisonment for six years without parole. The reasons expressed by the trial court justify the sentence under State v. Dorthey, 628 So.2d 1276 (La.1993).

ACCORDINGLY, the writ application is DENIED and the multiple bill sentence is AFFIRMED.

WRIT DENIED, MULTIPLE BILL SENTENCE AFFIRMED.

[BYRNES, Judge,

dissenting with reasons.

I respectfully dissent. I would vacate the defendant’s multiple sentence which is below the minimum sentence mandated under La. R.S. 15.529.1.

In State v. Hyorth, 95-1181 (La.App. 4 Cir. 9/15/95), 661 So.2d 1059, this court found that the trial court clearly abused its discretion by sentencing the defendant below the minimum under La.R.S. 15:529.1. This court pointed out the acute severity of the crimes which involved the possibility of great bodily harm or death to the victims because the perpetrator had convictions for armed robberies. This court noted that when the trial court considers the mitigating circumstances of the particular defendant in determining the sentence to be imposed, the focus is on the offense. A sentence is grossly disproportionate to the severity of the offense so as to be unconstitutionally excessive, when the crime and punishment, considered in light of the harm done to society, shocks the sense of justice. State v. Hogan, 480 So.2d 288, 291 (La.1985).

In State v. Young, 94-1636 (La.App. 4 Cir. 10/26/94) 663 So.2d 525, writ denied, 95-3010 (La.3/22/96), 669 So.2d 1223, this court found that the trial court erred in sentencing the defendant to 30 years at hard labor rather than the mandatory minimum sentence of ninety-nine and one-half years prescribed by the Habitual Offender Law. In reviewing the sentence, this court ^stated:

One of the basic principles universally applied by courts in testing constitutionality is the presumption of constitutionality. In the application of this principle a trial court considering whether the minimum sentence prescribed by the legislature for the particular crime committed by a defendant would be unconstitutional if applied to a particular defendant may do so only if there is substantial evidence to rebut the presumption of constitutionality. The trial court may not depart from the legislaturely (sic) mandated minimum simply because of some subjective impression or feeling about the defendant.
Id., p. 5, 663 So.2d at 527.

This court then concluded that the reasons given by the trial judge to disregard the Habitual Offender Law were “purely subjective”. This court continued:

In our society the people have insisted on legislation to toughen criminal laws. The people are especially concerned about recidivism. In some states legislatures have responded to these concerns by passing “three strikes and you’re out” legislation — life imprisonment for the third felony offender. Our legislature has responded with the Habitual Offender Law. As the court pointed out in Dorthey, it is the legislature’s prerogative to determine the length of time to be imposed for a crime. This prerogative is rendered nugatory if a judge may for purely subjective reasons disregard the will of the legislature under the guise of particularized unconstitutionality. This is the stuff from which flows in the minds of the public a distrust and disrespect for the judiciary.
Id., pp. 6-7, 663 So.2d at 528.

Declaring a given sentence under the Habitual Offender Law unconstitutionally excessive should be the rare act, not a common place practice. Dorthey, supra, 623 So.2d at 1281 (Marcus, J., concurring). The trial court must do more than mechanically utter the phrases contained in |⅜Dorthey to justify departing from the legislatively mandated sentences for crimes.

The Louisiana Supreme Court recently remanded the case for the trial court to justify its deviation from the statutorily-mandated minimum sentence in State v. Johnson, 96-1263 (La.6/28/96), 676 So.2d 552, and State v. Kelly, 95-2335 (La.2/2/96), 666 So.2d 1082, although the trial court had stated reasons for imposing a sentence below the statutory minimum. See also State v. Webster, 95-2484 (La.2/2/96), 666 So.2d 654; State v. Hamilton, 95-2462 (La.2/2/96), 666 So.2d 655. In the last three cited cases, the Supreme Court emphasized that: “The substantive power to define crimes and prescribe punishments lies in the legislative branch of government. Jones v. Thomas, 491 U.S. 376, 109 S.Ct. 2522, 105 L.Ed.2d 322 (1989).” Kelly, 666 So.2d at 1082-3, Calogero, C.J., concurring. See also Webster, supra, 666 So.2d at 655; and Hamilton, supra, 666 So.2d at 656.

In the present case the defendant’s background was reviewed at the multiple bill hearing as follows:

THE COURT:
What’s his background. State?
MR. MONISTERE (FOR THE STATE):
He’s got a conviction for unauthorized use of a movable which is a felony in 1993. In 1989 he’s got a conviction for simple robbery. He also has arrests, your Honor, for battery, theft, possession of stolen — that’s the same one. Aggravated battery arrest.
THE COURT:
All right.
MR. MONISTERE:
Which was refused. In 1988 he had an arrest for armed robbery. In 1988 he also had, the last one is as a juvenile, he’s got a theft which was refused but he pled guilty on a 69 as a juvenile.
UTHE COURT:
The 1988 arrest for armed robbery, that reduced to a simple robbery?
MR. MONISTERE:
No, your Honor. That was another arrest. Let me double cheek it. That was another arrest, Judge.
THE COURT:
What was his sentence for the simple robbery?
MR. MONISTERE:
Three years.
THE COURT:
When?
MR. MONISTERE:
1989.
THE COURT:
1990 was the unauthorized use of a movable?
MR. MONISTERE:
1993. He got 18 months.
THE COURT:
In ’93?
MR. MONISTERE:
Correct, Judge.
THE DEFENDANT:
You got that wrong.
MR. MONISTERE:
Let me double check the cert. 1991. January 11,1991.
THE COURT:
January of ’91 he got 18 months. That’s been his only problem since February of ’96 when this thing arises? It’s been his last problem?
MR. MONISTERE:
Since January ’91, Judge, he had an arrest for theft which was refused.
THE COURT:
When?
IsMR. MONISTERE:
June 8, 1993. December 2, 1993 he had a municipal arrest for disturbing the peace and battery. In October of ’94 had he (sic) a traffic arrest for no driver’s license, license plate, or proof of insurance.

In the present case the defendant is a repeat offender with prior arrests and convictions. He had a conviction for unauthorized use of a movable in 1993. In 1989 he had a conviction for simple robbery. He also had arrests for battery, theft, aggravated battery, and armed robbery. According to the prosecutor, the defendant entered a plea of guilty “to a 69 [in violation of La.R.S. 14:69, illegal possession of stolen things] as a juvenile.” He had municipal arrests for disturbing the peace and battery, as well as traffic violations.

At the sentencing hearing in the present case, the trial court initially sentenced the defendant to six years at hard labor with credit for time served for forgery. The trial court stated that he was not convinced that the defendant took the victim’s social security check but he was convinced that the defendant did attempt to cash the social security check. The trial court then vacated the original sentence and resentenced the defendant as a third felony offender again to six years at hard labor with credit for time served. The result in the difference in the two sentences the defendant received was the loss of good time in the present case.

The trial court stated that he did not know any of the circumstances of the robbery case but the State did not indicate that there was any violence where someone may have been injured or hurt in any way in the robbery case. In State v. Young, supra, 663 So.2d at 528, this court noted:

Defendant committed a classic armed robbery. He held a gun on the victim and forced him to write |6Qut cheeks to cash while his life was being threatened. The legislature has concluded that this is such a serious offense that even for a first offender the minimum is five years, but the maximum may be ninety-nine years. Here we have a defendant who has been convicted of one armed robbery already and was apparently given a great deal of clemency since he was out on the street just seven years later in possession of cocaine. And that first armed robbery was right on the heels of a burglary of someone’s home. Even without the commission of the third offense of possession of cocaine this defendant’s record was one of a violent, dangerous criminal who was given two chances to turn his life around and failed to take advantage of the opportunity.

In State v. Hyorth, supra, this court noted that the original offense and the offense used for the multiple bill conviction were for armed robberies. This court considered the acute severity of the crime of armed robbery where the perpetrator put the victims in fear of their lives and which “involved the possibility of great bodily harm or death to the victims because the perpetrator was armed.” Id., 661 So.2d at 1062.

In the present case the trial court did not know the circumstances of the robbery but noted that the State did not indicate that someone was hurt. It is possible that the court was discussing the simple robbery conviction or it is possible that he referred to the armed robbery arrest. If the trial court was referring to the simple robbery conviction, the very act of robbery is threatening. The conviction for the offense of simple robbery is less violent than the offense of armed robbery; however, it is still violent because of the possibility that someone could be hurt if he/she resisted although the perpetrator did not have a weapon.

Although in the present case the trial court gave reasons for imposing a 17sentence below the mandatory minimum sentence under the Habitual Offender Law and referred to Dorthey, the trial court’s statements are not sufficient to justify the sentence. Under the totality of circumstances the trial court did not make a proper determination that the imposition of six years is an adequate sentence to defeat the presumption that the legislative sentence is constitutional as applied to this defendant, considering that the statutorily mandated minimum sentence under the multiple Ml statute is life imprisonment at hard labor without benefit of parole, probation or suspension of sentence.

Accordingly, I would grant the writ, vacate the defendant’s multiple bill sentence, and remand for resentencing.  