
    STATE of Louisiana v. Donald NEWSOME.
    No. KA-8045.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 12, 1988.
    
      Harry F. Connick, Dist. Atty., R. Jeffrey Bridger, Asst. Dist. Atty., New Orleans, for plaintiff-appellee State of La.
    Dwight Doskey, Orleans Indigent Defender Program, New Orleans, for defendant.
    Before BARRY, KLEES and PLOTKIN, JJ.
   KLEES, Judge.

The defendant, Donald Newsome, was charged on February 18, 1987 by bill of information with aggravated arson, a violation of R.S. 14:51. Newsome pleaded not guilty at his arraignment on February 24, 1987. On March 27, 1987, Newsome was found guilty as charged by the jury. He was sentenced on April 30, 1987 to twenty years at hard labor, the first two years to be served without benefit of parole, probation or suspension of sentence. From his conviction and sentence he appeals. FACTS

Defendant was the ex-boyfriend of Maxine Curry, whom he had dated briefly in November 1986. After Ms. Curry ended their relationship and became involved with someone else, the defendant continued to come by her apartment in the Desire Housing Project. On these occasions she called the police to make the defendant leave.

On January 11, 1987 Ms. Curry and her new boyfriend, Ishmel Wallace, were sitting on the bed in her bedroom playing cards, when the defendant began to throw flaming oil cans through her window, causing the plastic window panes to melt and the curtains to catch on fire. Her five sons and her brother were also in the apartment.

Wallace went to the door and told the defendant to leave. The defendant brandished a gun and threatened to kill everyone in the apartment.

The fire and police departments were called while Wallace and others attempted to put out the fire. The fire was subsequently put out and the defendant apprehended.

We have reviewed the record for errors patent and find none.

ASSIGNMENT OF ERRORS

In his sole assignment of error, the defendant argues that his sentence is excessive. The trial court imposed the maximum penalty for aggravated arson under R.S. 14:51; twenty years at hard labor, the first two years to be spent without benefit of parole, probation or suspension of sentence.

A sentence is excessive if it is grossly out of proportion to the severity of the crime and is nothing more than the purposeless and needless imposition of pain and suffering. State v. Brogdon, 457 So.2d 616 (La.1984), cert. denied, Brogdon v. Louisiana, 471 U.S. 1111, 105 S.Ct. 2345, 85 L.Ed.2d 862, reh. denied, Brogdon v. Louisiana, 473 U.S. 921, 105 S.Ct. 3547, 87 L.Ed.2d 670 (1985).

In determining if a sentence is excessive, the appellate court must first review whether the trial judge follows the sentencing guidlines, the sentence must not be set aside unless the trial judge has abused his wide sentencing discretion. State v. Quebedeaux, 424 So.2d 1009 (La.1982), appeal after remand, 446 So.2d 1210 (La.1984).

In this case, the trial judge followed the C.Cr.P. 894.1 guidelines. The judge noted that the defendant was a twenty-two year old, single construction worker whose criminal history included arrests for battery, resisting arrest, aggravated assault, disturbing the peace and battery upon a police officer. He further commented on the serious nature of the crime evidenced by defendant’s threats to kill everyone in the apartment, including Ms. Curry’s five sons, while armed with a gun. He also commented on defendant’s lack of remorse and hostile, uncooperative attitude. He further found that a lesser sentence would deprecate the seriousness of the crime, the “enormity of which boggles the mind” since the defendant “made a serious attempt to burn to death five young children and several adults”.

Few decisions are reported that address the appropriateness of sentences imposed for aggravated arson. None were found in which the trial judge imposed the maximum twenty year sentence. However, in State v. Simmons, 443 So.2d 512 (La.1983), a fifteen year sentence was imposed for this crime where defendant set fire to a bingo hall containing approximately 100-150 individuals.

Other courts have imposed the following sentences for aggravated arson: ten years in State v. Washington, 421 So.2d 887 (La. 1982) where defendant was a third offender and set fire to the jail where he was incarcerated; nine and one half years in State v. Smith, 448 So.2d 778 (La.App. 2nd Cir.1984) where drunk defendant set fire to the house where his wife lived; six years in State v. Williams, 457 So.2d 610 (La.1984) where defendant set fire to the hotel at which his ex-girlfriend worked; seven years in State v. Barnes, 495 So.2d 310 (La.App. 4th Cir.1986) where defendant set fire to ex-girlfriend’s house.

Notwithstanding the absence of decisions in which the trial court imposed a maximum penalty for aggravated arson, given the facts of this case we conclude that it was not an abuse of the trial court’s discretion in imposing this sentence. The defendant indicated his intention to set fire to his ex-girlfriend’s apartment and to kill her, her boyfriend, her brother and her five children. He stayed outside the apartment waving a gun so that the occupants of the house, even though the apartment was on fire, were afraid to leave the apartment for fear of being shot. Under these facts the imposition of the maximum penalty was warranted. The sentence is not disproportionate to the crime. Nor does the imprisonment result in “purposeless and needless imposition of pain and suffering” since the trial court correctly concluded that the defendant’s incarceration was necessary to protect the public.

Accordingly, for the reasons discussed the conviction and sentence are affirmed.

AFFIRMED.

PLOTKIN, J., dissents with reasons.

PLOTKIN, Judge,

dissenting.

I respectfully dissent.

For the following reasons, I consider the imposition of the maximum sentence of twenty years at hard labor, the first two years to be served without benefit of parole, probation or suspension, to a first offender, excessive.

The majority correctly affirms defendant’s guilt of aggravated arson.

The Louisiana Constitution article I, section 20 prohibits the imposition of excessive punishment. Although trial judges are vested with wide discretion in imposing sentences, the discretion is not unbridled. State v. Quebedeaux, 424 So.2d 1009, 1014 (La.1982), appeal after remand 446 So.2d 1210 (La.1984). This is especially true when dealing with maximum sentences, which are particularly suspect because they are reserved for the most serious violation of the charged offense and the worst kind of offender. State v. Santee, 464 So.2d 922, 926 (La.App. 4th Cir.1985). Maximum sentences can only be justified in cases classified as “extreme” by the factual circumstances of the offense and apparent dangerous proclivities of the defendant. State v. Ransome, 441 So.2d 425, 428 (La.App. 2d Cir.1983).

When, as here, the trial judge has complied with La.C.Cr.P. art. 894.1 by stating the individual considerations and factual bases for his sentence, appellate review is limited to consideration of whether the judge abused his great discretion. State v. Finley, 432 So.2d 243, 245 (La.1983). The following factors are to be considered in determining whether the trial judge abused his great discretion: (1) nature of the crime, (2) nature and background of offender and (3) sentences imposed for similar crimes by the same court and other courts. Id.

The defendant in the instant case is a first offender. Although the sentencing transcript reveals that the trial judge considered a number of circumstances as aggravating, he makes no mention of this obvious mitigating circumstance.

Perhaps more important, the 20-year maximum sentence imposed on this defendant is far out of proportion to sentences imposed on other persons convicted of arson in this state. The longest sentence for arson chronicled in the caselaw is a 15-year sentence in State v. Simmons, 443 So.2d 512 (La.1983), where the defendant set fire to an Amvets hall where between 75 and 125 people were playing bingo. Other sentences imposed for cases in which the circumstances of the crime were at least as egregious as the circumstances of the crime in this case follow: State v. Washington, 421 So.2d 887 (La.1982), ten-year sentence imposed on defendant who was a third offender and set fire to the jail where he was incarcerated; State v. Barnes, 495 So.2d 310 (La.App. 4th Cir.1986), seven-year sentence imposed on defendant who set fire to his ex-girlfriend’s house; State v. Williams, 457 So.2d 610 (La.1984), six and two-thirds year sentence imposed on second offender defendant who set fire to the hotel where his ex-girlfriend worked, and State v. Finley, 432 So.2d 243 (La.1983), five-year sentence imposed on first-offender defendants who set fire to a box of tissues in the bathroom of a vocational training school where 45 to 50 people were.

Because the defendant is a first offender and the sentence imposed is greatly disproportionate to the sentences imposed in other similar cases, I would reduce the sentence imposed on the defendant in the instant case.  