CONERY, Judge.
In this criminal case, Defendant, Phillip A. Cooks, plead guilty pursuant to an "open ended" plea agreement to manslaughter for causing the death of Robert Cannon in violation of La.R.S. 14:31. Defendant was sentenced on January 11, 2011, to the maximum sentence of forty years at hard labor, to be served without benefit of probation, parole, or suspension of sentence, with credit for time served.
Defendant filed a timely pro se Motion to Reconsider Sentence. Additionally, the trial court granted Defendant's new counsel permission to file a Supplemental Motion to Reconsider Sentence. A hearing on both motions was held on December 7, 2011, after which the trial court re-imposed the original forty year sentence of imprisonment with the originally imposed conditions.
On appeal, Defendant first asserts that the maximum sentence of forty years imposed by the trial court was excessive; second, he asserts the trial court failed to consider the mitigating factors required by La.Code Crim.P. art. 894.1; and third, he asserts his imprisonment would create a hardship not only for himself, but for his mother who suffers from significant medical difficulties. For the following reasons, we affirm the re-imposition by the trial court of the forty year maximum sentence for manslaughter with the originally-imposed conditions.
On or about August 3, 2009, fifty-eight year old Robert Cannon was beaten to death in his home in Lake Charles, Louisiana. Mr. Cannon's body was found on August 5, 2009, when his landlord noticed that Mr. Cannon's newspapers and mail had not been retrieved. After talking with the landlord and other neighbors, the Lake Charles Police Department (LCPD) focused their investigation on Defendant, who lived across the street with his girlfriend, Antonia M. Mills.
The couple was living with Ms. Joan Mills, Antonia's sister. Ms. Joan Mills informed investigators that Defendant and Mr. Cannon were friends, and the pair played chess together. According to Ms. Mills, on the night of August 3, 2009, Defendant brought Mr. Cannon's chess board home with him.
During the night of August 3, 2009, after returning from Mr. Cannon's home, Defendant left Ms. Mills' home and rented a room in a Lake Charles motel. He stayed in the hotel for a couple of days and then fled the area, obtaining a ride to Houston, Texas. Detectives with the LCPD contacted Defendant in Houston via his cell phone. During the initial cell phone conversation with detectives, Defendant told them he would come back to Lake Charles to discuss Mr. Cannon's death.
Subsequent calls between the LCPD and Defendant resulted in Defendant crying and refusing to return to Lake Charles because he was afraid he would be arrested for murder. Defendant then changed his phone number and ended his contact with the LCPD.
Sergeant Harrell informed Defendant of the outstanding warrant. Defendant told Sergeant Harrell he would return to Lake Charles and contact him when he arrived in the city. Defendant never made the promised contact. Two days later, Defendant and his girlfriend were arrested by the LCPD in a Lake Charles motel.
After his arrest, Defendant initially denied any involvement in the death of Mr. Cannon. Defendant then broke down and confessed his involvement in Mr. Cannon's death. In describing his version of what took place, Defendant characterized Mr. Cannon as "his only friend" in the complex where both were living. Defendant admitted he had been drinking when he went to Mr. Cannon's home to ask for a cigarette. After he gained Mr. Cannon's attention by knocking on the window, Defendant said Mr. Cannon invited him into the home. According to the Defendant, the two men were sitting on the Mr. Cannon's bed, smoking, when Mr. Cannon reached over to touch Defendant's shoulder with his hand, an action perceived by Defendant as a sexual advance.
Defendant later admitted to the investigator that Mr. Cannon did not say anything or touch Defendant in any way that could have been perceived as a sexual advance. He admitted to cursing Mr. Cannon and hitting him with a closed fist "four or five times." Mr. Cannon slumped over his bed and fell over with his face or head on the bedrail.
Seeing Mr. Cannon in this position, Defendant panicked and ran from the Cannon home. Prior to his departure, Defendant admitted he saw Mr. Cannon was bleeding and heard him yell, "Hey, Hey," but Defendant did nothing to render assistance to the victim. Defendant stated he believed Mr. Cannon was still alive when he locked the door of Mr. Cannon's apartment and left the scene.
The coroner's examination of the body of Mr. Cannon revealed he died as a result of blunt force injuries to the head. In addition to the head trauma, there were numerous scrapes, bruises, and skin tears about his head, on his abdomen, on both arms, and his left leg. Mr. Cannon also sustained a chip "fracture" on his forehead and a fracture of the upper portion of his left humerus, the upper arm bone. The coroner's report indicated the time of death was during the evening hours of August 3, 2009.
In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find there are no errors patent.
Defendant claims his re-imposed forty-year maximum sentence for manslaughter is excessive. Defendant contends the trial court failed to consider three of the factors of La.Code Crim.P. art. 894.1: 1) there were grounds to justify his behavior; 2) he did not intend the serious harm that resulted; and 3) imprisonment would be a hardship to himself and Demetria Cooks, his mother, who was allegedly dependent on him for care and who has significant medical problems.
Because his guilty plea to manslaughter was "open-ended," Defendant was not sentenced pursuant to an agreed-upon sentence under La.Code Crim.P. art. 881.2. Thus appellate review of his sentence is not prohibited. State v. Pickens, 98-1443 (La.App. 3 Cir. 4/28/99), 741 So.2d 696, writs denied, 99-1577 (La. 11/5/99), 751 So.2d 232, 01-2178 (La.4/19/02), 813 So.2d 1081.
Defendant and his attorney also filed proper motions to reconsider his sentence pursuant to La.Code Crim.P. art. 881.1, stating specific grounds therefor. State v. Vollm, 04-837 (La.App. 3 Cir. 11/10/04), 887 So.2d 664. Thus, Defendant is not precluded from objecting to his sentence on appeal. State v. Davis, 06-922 (La. App. 3 Cir. 12/29/06), 947 So.2d 201.
This court's review of whether or not an excessive sentence has been imposed on a defendant by the trial court consists of two factors: 1) a determination of whether the sentence is unconstitutionally harsh and, thus, violates La. Const. art. I, § 20; and 2) a determination of the trial court's consideration and weight given to the relevant sentencing factors established in La.Code Crim.P. art. 894.1. State v. Smith, 99-606 (La.7/6/00), 766 So.2d 501.
Louisiana Constitution Article 1, § 20 guarantees that, "[n]o law shall subject any person to cruel or unusual punishment." In order for a sentence to be considered excessive, the reviewing court must find the penalty so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no measurable contribution to acceptable penal goals and is, therefore, nothing more than a needless imposition of pain and suffering. State v. Campbell, 404 So.2d 1205 (La.1981). The trial court's discretion is vast in the imposition of sentence within the statutory limits and such sentence shall not be set aside as excessive absent a manifest abuse of discretion. State v. Etienne, 99-192 (La. App. 3 Cir. 10/13/99), 746 So.2d 124, writ denied, 00-165 (La.6/30/00), 765 So.2d 1067. Thus we must consider as the only relevant question, whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. State v. Cook, 95-2784 (La.5/31/96), 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).
We are mindful, in a review of a sentence imposed, that the trial court "remains in the best position to assess the aggravating and mitigating circumstances presented by each case." Id. at 958.
In State v. Decuir, 10-1112, pp. 2-3 (La.App. 3 Cir. 4/6/11), 61 So.3d 782, 785, (quoting State v. Scott, 36,763 p. 3 (La.App. 2 Cir. 1/29/03), 836 So.2d 1180, 1182), this court explained:
However, "[t]here is no requirement that specific matters be given any particular weight at sentencing." Id. (quoting Ellis, 966 So.2d at 153).
This court has further opined that the trial court may consider the substantial benefit a defendant received from a plea agreement when it results in a substantial reduction in his potential incarceration. State v. Williams, 02-707 (La.App. 3 Cir. 3/5/03), 839 So.2d 1095. When a defendant has received a reduction in the potential length of incarceration, the trial court's discretion to impose the maximum sentence is enhanced. State v. Edwards, 07-1058 (La.App. 3 Cir. 3/12/08), 979 So.2d 623, writ denied, 08-2693 (La.9/18/09), 17 So.3d 391.
In this case, Defendant's sentencing exposure was reduced by the State's dismissal of a separate charge of Possession of a Controlled Dangerous Substance II (cocaine). Additionally, the State agreed not to file a habitual offender bill against Defendant in exchange for his plea, despite his two prior felony convictions and the severity of the beating of Mr. Cannon. If the State had not chosen to dismiss the drug charge and had chosen to file the habitual offender bill, both part of the plea agreement, Defendant was facing a mandatory sentence of life imprisonment
During the plea colloquy on September 27, 2010, Defendant was apprised by the trial court of the possible consequences, including the increase of the maximum sentence that might be imposed by the court had the State chosen to file a habitual offender bill and not dismissed the additional drug charge. The discussion on the record reflects that the State was only certain of one prior felony conviction at the time of the Defendant's plea. The colloquy between the trial court and the Defendant reflects that Defendant was so informed and states as follows:
Defendant thus declared on the record his understanding of the benefit he received after the State abstained from filing the habitual offender bill and the State's agreement to dismiss the pending drug charge.
In fact, the PSI introduced at the sentencing hearing showed Defendant had another prior felony. Had Defendant been adjudicated a habitual offender, this additional felony would have made him a third offender facing a mandatory life sentence under La.R.S. 15:529.1(A)(3)(b). In short, Defendant received a substantial benefit when he accepted the State's plea offer to enter an open-ended guilty plea to the manslaughter charge in exchange for the State's agreement to dismiss a pending felony cocaine charge and not file a multiple offender bill against him.
At Defendant's original sentencing on January 11, 2011, the trial judge set forth the main factors he considered in imposing the maximum forty-year sentence. At the time of the original sentencing, the trial court had the benefit of the PSI, which detailed Defendant's prior criminal history.
THE COURT:
In the Motion to Reconsider Sentence, defense counsel contended that the trial court was not aware of Defendant's personal history at the time of the original sentencing. After granting and holding a hearing on the pro se and counsel-filed Motions to Reconsider, the record reflects the trial court was fully aware of all of the factors argued by Defendant and his new counsel in support of a sentence less than the forty-year maximum imposed at the original sentencing on January 11, 2011.
In reviewing a sentence for excessiveness, the Louisiana Supreme Court further instructs that an appellate review of a sentence should include the following three factors: 1) the nature of the offense, 2) the circumstances of the offender, and 3) the sentences imposed for similar crimes. Smith, 766 So.2d 501.
The following factual basis was set forth by the State at the guilty plea proceeding:
Prior to the January 11, 2011 sentencing, the trial court reviewed the PSI. It included Defendant's conviction in 2000 for robbery, for which he was sentenced to probation. Defendant's probation was revoked, and, thereafter, Defendant was sentenced to four years in the Texas Department of Justice. The PSI also included Defendant's conviction in 2004 for possession of drugs for which he was sentenced to four years in the Texas Department of Justice. Thus, with the manslaughter conviction, Defendant was classified as a third offender. The trial court also noted, in his reasons for sentencing, Defendant's convictions for several misdemeanor offenses. At the time of the incident, Defendant was twenty-six years old and was twenty-eight at the time of the initial sentencing.
As to his personal background, Defendant's mother, Ms. Dimetria Cooks, testified at the hearing on the Motion to Reconsider Sentence that between the ages of eight and ten, Defendant was diagnosed by a psychiatrist as bipolar and as having Attention Deficit Hyperactive Disorder. He was also admitted into psychiatric hospitals
Although Ms. Cooks testified as to the treatment received by Defendant as a teenager, she was unable to provide the trial court with any documentation to confirm said treatment. Defendant confirmed during his testimony that as an adult he did not seek treatment or take any medication for any of his previously diagnosed conditions, as he claimed he was functioning well.
In addition, Ms. Cooks testified that Defendant was molested as a child by her brother, Defendant's uncle. Defendant and his counsel urge that the molestation contributed to his alleged perception of the actions of Mr. Cannon at the time of the incident. The record is devoid of any evidence that Defendant's perception of Mr. Cannon's actions was based on Defendant actually having knowledge of any prior homosexual behavior by Mr. Cannon. In fact in the PSI, Defendant also admitted he may have misinterpreted Mr. Cannon's action.
The PSI also contained an interview with Mr. Cannon's twin brother, who denied the allegation that Mr. Cannon was a homosexual. The accusation of homosexual behavior by Mr. Cannon was also disputed in a letter to the trial court from Mr. Cannon's cousin, which was admitted into evidence. The only other claim that Mr. Cannon was a homosexual was an allegation made by Defendant's girlfriend, Antonia M. Mills, in the PSI. However, she was not called to testify at either the original sentencing or the hearing on the Motions to Reconsider Sentencing. Defendant's claim that his perception of the situation constitutes grounds to justify his behavior has no merit. Likewise, his claim that he did not intend the serious harm that occurred is belied by the coroner's report and also has no merit.
In addition to defending his actions in beating Mr. Cannon, Defendant also claimed the forty-year sentence would create a hardship on his mother, Ms. Cooks, who was living in Houston, Texas, and suffered from a number of serious medical conditions. Although Ms. Cooks has six other children, she testified that Defendant was the one she depended on for help and support. However, when Ms. Cooks was cross-examined by the State about her care while Defendant was living in Lake Charles, she admitted a younger daughter took care of her.
Ms. Cooks testified that she receives Social Security disability benefits. She also testified that Defendant occasionally brought her small amounts of money, the last in the amount of $40.00. Prior to Defendant turning seventeen, as previously discussed, she also received Social Security disability payments for Defendant. She also claimed she received some back child support from Defendant's father. Defendant was twenty-eight at the time of sentencing, so any monies received by Ms. Cooks on behalf of Defendant had long since stopped. There was no credible evidence that Ms. Cooks was dependent on Defendant in any way. The Defendant's argument that the trial court failed to consider that his imprisonment would be a hardship to his mother, who was allegedly dependent on him for care and support, is also without merit.
Pursuant to La.Code Crim.P. art. 894.1, the trial court is required to make a record that reflects that the guidelines of the article have been adequately considered. It is clear from the record before this court the trial court heard the evidence and argument presented by Defendant and
In Decuir, 61 So.3d 782, the defendant, a forty-four-year-old woman, who was a first offender, pled guilty to the reduced charge of manslaughter and was sentenced to thirty-five years at hard labor. The defendant, based on allegations of abuse, shot her husband seven times in the head while he was sleeping. On appeal, this court found the sentence was not excessive.
In State v. McGhee, 10-583 (La.App. 3 Cir. 12/8/10), 52 So.3d 318, writ denied, 11-62 (La.5/20/11), 63 So.3d 973, the defendant was convicted of manslaughter and sentenced to forty years at hard labor. During an altercation at a bar, the defendant shot and killed a bystander. The defendant was twenty-six years old at the time of the offense, with one prior offense for the possession of cocaine. On appeal, this court found the sentence was not excessive.
In State v. Jones, 05-735 (La.App. 5 Cir. 2/27/06), 924 So.2d 1113, writ denied, 07-151 (La.10/26/07), 966 So.2d 567, the defendant pled to the reduced charge of manslaughter and was sentenced to forty years at hard labor. The defendant was involved in an ongoing dispute with the victim. The defendant was carrying a gun when he encountered the victim. The victim had a knife. An altercation ensued. The defendant claimed the victim pulled the knife on him, and the defendant shot the victim, resulting in the victim's death. On appeal, the defendant asserted an excessive sentence claim, and the court held in pertinent part:
Id. at 1118-19 (footnotes omitted).
The jurisprudence fully supports the maximum sentence under the circumstances of this case.
The trial court, after hearing the testimony and argument of counsel, re-imposed the original forty-year sentence on Defendant and stated:
The reasons stated by the trial court for re-imposing the sentence of forty years make it clear that the court considered all of the mitigating factors raised by Defendant under La.Code Crim.P. art. 894.1. After due consideration of the evidence and Article 894.1 factors, the trial court found neither the diagnosis in his teenage years, his alleged molestation as a child, or any testimony of the hardship his imprisonment might impose on his mother, Ms. Cooks, served to mitigate Defendant's brutal killing of an innocent man, whose only mistake was to befriend Defendant. We
Defendant's re-imposed sentence for manslaughter of forty years with prior conditions is affirmed.
