State Of Louisiana VS Travis Galmon
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NOT DESIGNATED FOR PUBLICATION COURT OF APPEAL STATE OF LOUISIANA FIRST CIRCUIT 2008 KA 2403 STATE OF LOUISIANA VERSUS TRA VIS GALMON Judgment On MAY rendered Appeal from the 20th Judicial 8 2009 District Court Parish of East Feliciana State of Louisiana Number 06 CR 629 The Honorable George Samuel C D Aquilla District Attorney Kathryn Jones Assistant District Division H Ware Jr A Judge Presiding Counsel for Appellee State of Louisiana Attorney Clinton LA Ronnie O McMillin Assistant District Attorney St Francisville LA Katherine M Franks Counsel for Appellant Abita Travis Galmon Springs LA BEFORE CARTER C J WHIPPLE AND DOWNING JJ DOWNING J Defendant Defendant not pled The trial on each court The He both of the counts 14 27 and 30 1 La R S tried before was two a jury The jury responsive offense of violation of La R S 14 27 and 31 sentenced defendant subsequently appeals citing sentences service the to be served following to fifteen years at hard consecutively as error imposed both by their length and their consecutive based upon an inadequate presentence investigation justified and are excessive under the circumstances of the were not were a on with the sentences count Defendant 1 bill of information with charged by counts guilty was attempted manslaughter both to guilty determined defendant labor was attempted second degree murder violations of of counts Travis Galmon case 2 In its attempt to make defendant s lengthier than province of another court by sentences even imposed the trial court usurped the ordering that the sentences be served consecutive to any sentence defendant should receive as a result of a probation revocation The condition is an illegal one those We affirm defendant sentences as convictions s amend his sentences and affirm his amended FACTS On the evening of July Lounge located Department to gunshots but at 640 21 2006 Tammy Wallace the owner of the Scott Bar Road in East Feliciana Parish called the Sheriffs respond to did not know a disturbance or see at who fired the bar a Wallace testified she heard weapon Officer Darren Kilcrease of the East Feliciana Parish Sheriffs was dispatched people there During his to the Dragon When he arrived there Dragon Lounge Officer Kilcrease spoke presence of blood in different areas were with Wallace and examined the examination Officer Kilcrease recovered of the 2 two 40 parking lot Department rounds very few parking lot He noted the None of the people who remained at the Kilcrease eventually had been taken scene would to Lane to the statement to a learned that two victims Memorial Officer Kilcrease however due provide Teyhones Elliott and Damien the of their hospital in order to interview the victims injuries neither victim could speak with him During the ensuing investigation defendant that time Ross Hospital by private vehicle proceeded to nature Officer Officer Kilcrease was identified as at the individual who shot both victims both Ross and Elliott identified defendant At trial Elliot testified that he and Ross them just broken an up a fight involving individual who was crowd and stood behind wound his through a standing were group of in the right lung standing outside the bar after they had men Defendant retrieved began firing while Elliot a gun from Defendant walked away from the area vehicles and two the person who shot as was Ross sustained shot in the back a gunshot with the bullet exiting from his mouth EXCESSIVE SENTENCES his first Through excessive assignment of by their length and consecutive service and that they inadequate presentence investigation Inadequate Code Crim P art 875 A Presentence which are based are on an to Investigation comply with the requirements of La provides in part that the probation officer inquire into the circumstances attending the commission of the offense the defendant s history of delinquency background economic Defendant contends that and l sentences PSI Defendant argues that the PSI failed shall defendant argues his error and employment or criminality status his education family situation and and personal habits apart from setting forth his prior misdemeanor convictions felony theft conviction the work history or PSI contained background 3 no information regarding his family A trial court considers the imposing ground but it believes s discretion in relevant State sentencing 681 So 2d 1274 9 27 96 Motion for Post Verdict would stop a a not have timely request this of Judgment 1 App Cir absolute an to right Acquittal demand the PSI La Code Crim P review it to such given was the opportunity an to defendant s in response to defense counsel s hearing on PSI had been received the trial court stated if defense counsel I ll share by chambers constitutional has much La 5 p At the conclusion of the March 18 2008 inquiry of whether whichever court the trial 95 1983 Milstead v on defendant a In other words The record reflects defense counsel review the PSI has sentence in its discretion allow defendant court may 877 B art can mitigating factors before 1277 Though defendant does trial and aggravating it ultimately most sentence a case s right right to or rebut a a copy of that with you PSI if it is Moreover defendant else it will be waived his to prejudicial Milstead He must case 95 1983 at pp 5 6 681 So 2dat 1277 At the the PSI and educational or July 8 2008 At object that the PSI would materially sentencing hearing the trial offenses court no was affect was was note sustaining a statement gunshot that wound hearing The sentence same did defense counsel trial judge who presided of the facts court can who judge over court s objected court initially conducted sentence errors in on we the find the factors without merit refCrring stated that the situation seemed like and corrected the trial court to a the facts and drive by we Moreover delendant takes issue with the of the victims sustained serious and permanent damage to his lung as a result of through his lung and he was We note the victim himself testified that the bullet went 4 incompleteness and circumstances of the base its commentary indicated it made the trial s complain the trial thus portion of the assignment of error is Although one stated it had reviewed We do not find that such because the trial the record reflects trial counsel trial courfs the properly informed Defendant argues that the trial circumstances of the oflense during incomplete the it deems most relevant this I time the Accordingly court supplied by defense counsel regarding defendant materials history sentencing hearing the trial Length of Sentences and Consecutive Service Through this portion of the assignment of trial court imposed excessive of excessive prohibits sentence may be within statutory limits it may violate right against excessive I Cir App excessive if it is than more Dorthey a La purposeless 734 So 2d 89 1280 to La 1993 punishment sense of given statutory limits and the see defendant A sentence is v 98 1260 p constitutionally suffering State v grossly disproportionate 480 So 2d 288 imposition imposed by it should See State light of the harm done Hogan v wide discretion in the sentence State severity of the offense or is nothing the State justice a constitutional Lanieu v A sentence is considered in are s review appellate also State 97 in the absence of manifest abuse of discretion 751 to a and needless infliction of pain and 623 So 2d 1276 it shocks the subject 1979 grossly disproportionate A trial court is 1985 767 1 4 99 if when the crime and society and is punishment 367 So 2d 762 Sepulvado La imposition Although punishment Constitution 12 the Section 20 of the Louisiana Article I sentences defendant argues that the error be not of set sentences aside Lobato v 291 to La within excessive as 603 So 2d 739 La 1992 The penalty for attempted manslaughter provides imprisonment 31 B at hard labor for In the fifteen years present hard labor at not case on 894 1 by the trial 14 27 D a term of before imposing sets forth items that must be sentence La Code Crim P The trial court need not cite the entire checklist of Article 894 1 adequately 562 So 2d 1 1 Cir 1990 11 La App to recuperate fr four to five days this victim displayed the scar caused by the 3 count record must reflect that it required maximum term of the trial court sentenced defendant to each court a La R S than twenty years more The Louisiana Code of Criminal Procedure considered for in the bullet considered the In 312 13 5 State v but the Herrin light of the criteria expressed by Article hospital following r guidelines art this incident Further the trial court noted that 894 1 a review for individual excessiveness should consider the circumstances of the crime and the trial State decision Remand for full court stated s compliance with Article factual basis for the is shown sentence and factual basis for its 532 So 2d 1182 Watkins v reasons 1186 La 1 App 894 1 is unnecessary when State sentencing 1988 Cir sufficient a Lanclos 419 So 2d 475 478 v La 1982 In began of in 2001 with misdemeanor convictions for school teacher a The trial for misdemeanor theft and defendant 2006 which was for reasons arrested in 2005 but probation on more than nearly resulted criminal record occasion The trial was in two deaths and that there dropped on In probation present offenses the trial court court battery 2003 conviction felony theft and again placed sentencing defendant one a prosecution defendant s continued criminal behavior on In placed particular despite having been given stated that defendant was no indication these action s shootings accidental The trial present in the court noted that there than one defendant used person a were the significant bodily weapon the provides of death circumstances the deliberate or cruelty great bodily harm for harm suffered by the victims injuring of multiple victims defendant acting without provocation and he continued art 883 aggravating including knowing creation of risk dangerous La Code Crim P many of these offenses commISSIon towards the victims the more was further noted defendant had convicted of was emphasis were court s the peace and disturbing in effect at the time defendant committed the articulating its had the trial court noted defendant sentencing defendant in to display a lack of remorse pertinent part If the defendant is convicted of two or more offenses based on constituting parts of a common scheme or plan the terms of imprisonment shall be served concurrently unless the court expressly directs that some or all be served consecutively the same act or transaction or 6 s The imposition of consecutive when the crimes arise from convictions arise of out necessarily excessive an single Other factors unusual risk State repeated criminality to of conduct consecutive safety Johnson v sentences sentences of the public due 99 0385 p 7 justified are La to if the even are be taken into consideration in must consecutive the However of conduct course course F or instance this determination offender poses a single a particular justification sentences reqUires not making when the his past conduct I Cir App or 11 5 99 745 So 2d 217 221 Considering offenses the trial court defendant s s reasons for sentencing the factual details of the past conduct and repeated criminality which appeared conclusion that defendant poses escalate the record supports a the cannot say public Accordingly we fifteen years at hard labor This assignment of on the trial court each count to be served error s an unusual risk to to imposition of sentences of consecutively is excessive is without merit CONSECUTIVE SENTENCES WITH OTHER CONVICTIONS In defendant usurped the s second assignment province of another offenses be served court consecutively probation revocation of he contends the trial error by ordering that the sentences for the to any sentence he would receive Defendant maintains that such a as a condition is court present result of an a illegal condition Louisiana Code of Criminal Procedure article 901 addresses revocation of probation for commission of another offense The article provides A In addition to the grounds for revocation of probation enumerated in Louisiana Code of Criminal Procedure Article 900 when a defendant who is convicted of a another state convicted of on probation for felony under the laws of this the United States a or under the felony state or commits or or is under the laws of the District of Columbia misdemeanor under the Louisiana Revised Statutes of 1950 a provisions of Title is convicted of a or is 14 of the misdemeanor provisions of the Uniform Controlled Dangerous Substances Law contained in Title 40 of the Louisiana Revised Statutes of 1950 7 probation may be revoked as of the date of the commission of the felony or final conviction of the felony or misdemeanor his When B for probation defendant who is under a a misdemeanor commits under the laws of this state or District of Columbia revoked his of the date of the commission as on is convicted of any offense subdivision thereof another or the or may be final conviction of the sentence suspended or or political a sentence subdivision thereof the United States political a state suspended a probation or offense C In cases of revocation for in this Article provided No credit shall be allowed for time 1 time elapsed during suspension of the When the 2 new conviction is a spent probation on sentence or for the and Louisiana conviction the sentence consecutively with the sentence for the new conviction unless the court originally imposing the suspension or probation specifically orders that said sentences are to be served concurrently in shall run which the case court minutes shall reflect the date from which the concurrently sentences to Although in are we recognize cases unless run of revocation shall the revocation jurisprudence jurisdiction run be consecutive only court the determine whether the or authority provides specifically court that ordered concurrent with the sentence for a new orders that revokes the sentence sentences sentences for consecutively with sentencing has held that to the codal conviction otherwise the probation has the revocation will following a new imposed See State conviction v Hines 07 313 p 3 La App 5 Cir 1127 07 970 So 2d 707 708 State v Bruce 03 918 p 8 La App 5 Cir 12 30 03 864 So 2d 854 859 State v 864 So 2d 204 208 09 State Welch 03 905 p 7 La App 5 Cir 1125 Rowlins 463 So 2d 829 830 Accordingly sentences revocation be we run La App 03 2 Cir 1985 because the trial court had consecutively with v no jurisdiction any sentence delete that condition of the sentences 8 to order that these imposed on a probation DECREE F or the amended to foregoing delete the to any other sentence reasons provision ordering the PROVISION CONSECUTIVE TO affirmed as ORDERING SENTENCES OTHER AFFIRMED AS AMENDED 9 The sentences are be served consecutive amended SENTENCES AFFIRMED ANY are sentences to We affirm the sentences CONVICTIONS DELETE the convictions AMENDED TO SENTENCE BE TO SERVED SENTENCES
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