
    STATE of Louisiana v. Michael JOHNSON (Michael Anthony Johnson).
    No. 83 KA 0470.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 11, 1983.
    
      Ossie Brown, Dist. Atty. by Joseph Lot-wick, Asst. Dist. Atty., Baton Rouge, for plaintiff-appellee.
    Georgia Wilemon, Asst. Public Defender, Baton Rouge, for defendant-appellant.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   COVINGTON, Judge.

The defendant, Michael Johnson, was charged by Bill of Information with the crime of armed robbery in violation of LSA-R.S. 14:64, arising from an incident involving the robbery of Ivan Milieri, a convenience store attendant, at gun-point by Johnson and Alvin Williams on June 8, 1982. Johnson was convicted after a trial by jury of robbing Milieri while armed with a .410 single-shot shotgun. The trial judge sentenced the defendant to twenty-five years at hard labor with credit for time served. It is from this conviction and sentence that the defendant has appealed, assigning three errors as the basis of his appeal.

DENIAL OF REVIEW OF PRE-SEN-TENCE INVESTIGATION REPORT

In this assignment of error, the defendant contends that the trial court committed error when it refused the defense’s specific request to review the defendant’s pre-sentence investigation (P.S.I.) report. The defendant relies upon State v. Underwood, 353 So.2d 1013 (La.1977), and argues that because he was unable to review the P.S.I. report, he was unable to refute any false or invalid information contained therein. Underwood is clearly distinguishable in that the Underwood pre-sentence report was shown to be materially and preju-dicially false. Such is not the case here.

The case of State v. Berain, 360 So.2d 822 (La.1978), holds that there is no basis for allowing defense counsel access to the P.S.I. report unless he alleges that the report was “materially and prejudicially false.” There has been no such allegation made in the instant case. See State v. Boone, 364 So.2d 978 (La.1978), cert. den. 444 U.S. 825, 100 S.Ct. 46, 62 L.Ed.2d 31 (1979).

Also, although defense counsel told the court that the defendant did not recall one of the (many) previous illegal acts considered by the court prior to sentence, and the court told counsel to proceed to file the appropriate motion to traverse that portion of the P.S.I., and a contradictory hearing would be held, such a motion does not appear in the record.

Furthermore, the record does not show that any of the information relied on by the trial judge in sentencing the defendant was erroneous or false in any respect.

Therefore, we hold that it was within the sound discretion of the trial judge to refuse to disclose the pre-sentence information under the circumstances of this case.

This assignment lacks merit.

EXCESSIVE SENTENCE

The defendant further urges that the trial court erred in imposing an excessive sentence.

Article I, Section 20 of the Louisiana Constitution of 1974 provides that no law shall subject a person to “. . . cruel, excessive, or unusual punishment.”

Excessive punishment in Louisiana has been defined by Louisiana courts, as e.g., State v. Crook, 253 La. 961, 221 So.2d 473, 476 (1969), as that which is:

[b]arbarous[,] extraordinary, or grossly disproportionate to the offense. In short, the constitutional prohibition is directed to punishments that shock the conscience of civilized men.

In State v. Cox, 369 So.2d 118, 121 (La.1979), the Supreme Court enunciated its policy in reviewing sentences on the ground of excessiveness:

. .. [The Court] may vacate a sentence and remand for resentencing, when the reasons for an apparently severe sentence in relation to the particular offender and the actual offense committed do not appear in the record.

Moreover, the Court held in State v. Brown, 395 So.2d 1301 (La.1981), that a sentence must be grossly out of proportion to the crime before the appellate court will vacate and remand for re-sentencing. The trial judge has wide discretion in the imposition of sentence, given compliance with Article 894.1, and the sentence imposed will not be set aside in the absence of manifest abuse of discretion. State v. Feeback, 414 So.2d 1229 (La.1982).

The record reflects that the trial judge did not abuse his discretion in sentencing the defendant. He listed the factors which he considered in the sentencing.

... In pronouncing this sentence and in accordance with the provisions of Article 894.1 of the Louisiana Code of Criminal Procedure, the Court cites ... the defendant’s prior criminal record. As a juvenile the defendant was arrested on April 6, 1976, and charged with aggravated battery. On April 29, 1976, the defendant was counseled and warned by the Family Court Center. As an adult the defendant has at least twelve arrests which have resulted in several misdemeanor convictions including: misdemeanor theft, possession of marijuana on February 13, 1979, a March 19, 1980 arrest which resulted in conviction for driving while intoxicated, similarly on April 5, 1980 arrest for reckless operation, misdemeanor theft and [unauthorized use of a movable on February 23, 1981, again driving while intoxicated on November 30, 1981, unauthorized use of a movable on November 14,1982, and finally driving while intoxicated on June 7, 1982. .. . [A]nd the Court cites the defendant’s disregard for human life by creating the highly emotional atmosphere surrounding an armed robbery and his clear and convincing escalation of criminal activities beginning as a juvenile in 1976 as previously stated.

We hold that the trial judge was within his discretion in sentencing the defendant to twenty-five years imprisonment under the circumstances of this case. He properly used the criteria as set forth in Article 894.1 of the Louisiana Code of Criminal Procedure. Specifically, the trial judge referred to the defendant’s prior arrests, twelve since 1976. Due to the serious nature of the present offense, which endangered human life, a lesser sentence would tend to diminish the seriousness of the crime. The maximum sentence allowable by law for a conviction of armed robbery is ninety-nine years without benefit of probation, parole, or suspension of sentence. LSA-R.S. 14:64. The imposition of approximately one-fourth of the maximum sentence allowable is certainly not excessive under the circumstances.

The trial judge need not articulate every aggravating and mitigating circumstance recited in LSA-C.Cr.P. art. 894.1, provided the record reflects that the trial judge adequately considered these guidelines in particularizing the sentence to the defendant and to his conduct. State v. Trahan, 412 So.2d 1294 (La.1982). It is clear from the record of the instant case that the jury found the defendant guilty of robbery while armed with a loaded shotgun. The victim’s life was endangered. The trial judge was justified in taking these facts, the defendant’s prior criminal record and any mitigating circumstances into consideration in imposing sentence. Therefore, the sentence which was nearer the minimum side of the statutory range (showing that the mitigating factors were given due weight) than the maximum, was well within the discretion of the trial judge and not excessive when considering all of the factors involved.

The assignment of error is without merit.

PATENT ERROR

The defendant received a sentence on the armed robbery conviction of twenty-five years at hard labor. This sentence is illegal. A sentence for armed robbery must be served “without benefit of parole, probation or suspension of sentence.” LSA-R.S. 14:64(B). The trial court failed to include this required language in his sentence. The state has not sought review of the sentence. Such error is patent.

Sentencing errors patent on the face of the record may be recognized by appellate courts on their own' motion. LSA-C.Cr.P. art. 920.

The question of what action an appellate court is to take when there is a patent sentencing error adverse to the state, although review was not sought by the state, has been most recently considered by another panel of this Court in its opinion in “State of Louisiana v. Eli Jackson,” 349 So.2d 622 on the docket of this Court handed down this date. We are most impressed with the thoroughness of this scholarly opinion. For the reasons so cogently expressed in Jackson, we amend the sentence for armed robbery to provide that it shall be served without benefit of parole, probation or suspension of sentence. In all other respects, the conviction and sentence are affirmed.

CONVICTION AFFIRMED, SENTENCE AMENDED AND AFFIRMED.

COVINGTON, Judge,

specially concurring:

It would be barely worthwhile to belabor the point were it not for the per curiam statement of our Supreme Court in a recent writ application in “State of Louisiana versus Charles Napoli,” 437 So.2d 868, No. 83-K-0667, wherein the justices stated that to review a patent sentencing error favorable to a defendant would provide “a chilling effect on defendant’s exercise of his right to appeal.”

The authority cited for such a sweeping pronouncement is State v. Goodley, 398 So.2d 1068 (La.1981). Goodley is not supportive of any proposition referred to in Napoli. Goodley allows the appellate review of a patent error; and, in its review the Supreme Court discovers that the verdict finding the defendant guilty of manslaughter was by a ten to two vote of the petit jury. It reversed the conviction because it was considered invalid as not having been returned by a unanimous jury. The Goodley case has nothing whatever to do with sentencing error.

Certainly, no language used by the Court in Goodley would lead one to believe that the consideration of patent errors (no matter in whose favor) by an appellate court (intermediate or supreme) would be construed as having a “chilling effect” on a defendant’s exercise of his right to appeal. The increase in the number of appeals in criminal cases, although no statistics were referred to in Napoli, would not seem to suggest that defendants are being or will be deterred or discouraged from appealing their cases.

Moreover, the mere correction of the language of the sentence to conform to the dictates of the legislative branch, so that the sentence be on condition that it is without the benefit of parole, pardon or suspension can not be construed as “changing” or “increasing” the sentence. Since the law, as stated by the legislature, requires that the sentence be with such condition, the failure of the trial court to expressly use the language of the condition is without legal effect.

An illegal sentence is no sentence at all. Such a sentence, if allowed to stand, usurps the proper function of the legislature. That co-equal branch of government, attuned to the will of our people (who are demanding the restoration of respect for, and the protection of, property and personal rights) has enacted statutes proscribing certain conduct and prescribing penalties for the violation thereof. When, as in the case sub judice, the penalty is mandatory, judicial activism should not be employed, as in State v. Napoli, to invade, circumvent or render ineffective the province of the legislature. Unless the statute prescribing the sentence is unconstitutional as cruelly abusive, the courts have no authority to disregard or thwart its mandatory language. Our laws deserve greater respect — particularly from the judicial branch.

Lip service and platitudinous public pronouncements are inadequate to merit public confidence in our judicial system. Such solemn declarations should be buttressed and brought to fruition through correlative action in our courts. Otherwise, can we ingenuously contend that the skepticism which exists among many members of our profession as well as among lay persons is not warranted?

I submit that the pertinent portions of the dissenting opinions of Chief Justice Sanders and Justice Summers in State v. Speed reflect a more properly judicious judicial philosophy. 
      
      . Assignment of error number 1 urged that the trial court committed error when it overruled the defense’s objection to a question asked by the prosecution of the defendant. This assignment was not briefed and is, therefore, considered abandoned. Rule 2-12.4, Uniform Rules of the Courts of Appeal.
     
      
      . See also the treatment of this issue by this panel in State v. Thomas, 349 So.2d 629, handed down this date.
     
      
      . I concur in the affirmance of the conviction. I am of the opinion, however, that the illegal sentence should be vacated and the case remanded to the trial court with instructions to the judge to impose the mandatory sentence required by statute....
     
      
      . Punishment for crimes is a matter for the legislature. Trial judges must obey legislative enactments on that subject. The trial judge, here unless the statute prescribing the punishment had been declared unconstitutional, should have imposed the prescribed penalty.
     
      
      . Justice Marcus also dissented in the 4-3 decision, State v. Speed, 335 So.2d 28 (La.1976).
     