State Of Louisiana VS Ricky Bolden
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2010 KA 0758 STATE OF LOUISIANA JI J VERSUS RICKY BOLDEN On Appeal from the 23rd Judicial District Court Parish of Assumption Louisiana Docket No 07CR000158 Division C Honorable Guy Holdridge Judge Presiding Ricky L Sabin District Attorney Attorneys for State of Louisiana Donald D Candell Assistant District Attorney Gonzales LA Gwendolyn K Brown Louisiana Appellate Project Baton Rouge LA Attorney for Defendant Appellant Ricky Bolden BEFORE PARRO GUIDRY AND HUGHES 33 Judgment rendered October 29 2010 PARRO I The defendant Ricky Bolden was originally charged by grand jury indictment with second degree murder but the indictment was amended to charge manslaughter a violation of LSAR 14 S 31 guilty and elected a trial by jury He entered a plea of not On the second day of trial the defendant changed his plea to guilty which the court accepted The court sentenced the defendant to serve twenty years of imprisonment at hard labor ten years of which were to be suspended The defendant filed a motion to reconsider sentence which was denied The defendant appeals asserting the following assignments of error 1 The trial court erred in imposing an excessive sentence 2 The trial court erred by failing to comply with LSAC art 894 P Cr 1 3 The trial court erred in denying the motion to reconsider sentence Finding no error we affirm the conviction and sentence FACTS On June 21 2007 around 4 p the defendant was cutting the grass 30 m at the Family Dollar Store in Paincourtville when he was approached by several men who threatened him Charles Richard who confronted the defendant with a gun and Troy Tunson were among the group of men The defendant went into a nearby business and asked the workers to call the police because he feared for his life Assumption Parish Sheriff Deputy Philip Theriot responded to the call s The defendant explained that Richard had pointed a gun at him and that Tunson told Richard not to shoot The defendant told Theriot that he had something for them if confronted again Theriot told the defendant not to do anything to get himself into trouble Theriot described the defendant as very loud animated and just wanted me to help him Less than an hour later the sheriff office received a 911 call indicating s that a fight involving a stabbing had occurred in front of the caller house s Tunson was identified as the victim Deputy Theriot who was first on the scene heard his name called from the crowd by the defendant 2 After receiving his Miranda warnings the defendant told Theriot that he caused Tunson injuries s Eyewitnesses confirmed that the defendant caused the injuries The defendant stated that as he was walking home Tunson approached him holding a long pipe and began yelling at him for divulging his name to the police According to the defendant Tunson struck him several times with a pipe before the defendant retrieved a kitchen knife which he had hidden in his pants and began stabbing Tunson After Tunson collapsed the defendant hit him several times with the pipe and then stabbed him several more times The defendant indicated that he stabbed Tunson approximately ten to fifteen times Tunson died as a result of his injuries EXCESSIVE SENTENCE In three assignments of error the defendant contends that the court erred in sentencing him to serve twenty years at hard labor with ten years to be suspended Specifically he argues that the court failed to give adequate consideration to the facts and to the LSAC art 894 factors in tailoring the P Cr 1 sentence Article I Section 20 of the Louisiana Constitution prohibits the imposition of excessive punishment Although a sentence may be within statutory limits it may violate a defendant constitutional right against excessive punishment and is s subject to appellate review Generally a sentence is considered excessive if it is grossly disproportionate to the severity of the crime or is nothing more than the needless imposition of pain and suffering A sentence is considered grossly disproportionate if when the crime and punishment are considered in light of the harm to society it is so disproportionate as to shock one sense of justice A trial s judge is given wide discretion in the imposition of sentences within statutory limits and the sentence imposed should not be set aside as excessive in the absence of manifest abuse of discretion State v Hurst 99 2868 La App 1st Cir 10 797 So 75 83 writ denied 00 3053 La 10 798 So 00 3 2d 01 5 2d 962 3 Louisiana Code of Criminal Procedure article 894 sets forth items that 1 must be considered by the trial court before imposing sentence The trial court need not recite the entire checklist of Article 894 but the record must reflect 1 that it adequately considered the criteria State v Leblanc 041032 La App 1st Cir 12 897 So 736 743 writ denied 05 0150 La 4 901 04 17 2d 05 29 2d So 1063 cert denied 546 U 905 126 S 254 163 L 231 2005 S Ct 2d Ed State v Faul 031423 La App 1st Cir 2 873 So 690 692 Failure 04 23 2d to comply with Article 894 does not necessitate the invalidation of a sentence or 1 warrant a remand for resentencing if the record clearly illumines and supports the sentencing choice See State v Smith 430 So 31 46 La 1983 2d A trial court is entitled to consider the defendant entire criminal history in determining s the appropriate sentence to be imposed State v Ballett 982568 La App 4th Cir 3 756 So 587 602 writ denied 001490 La 2 785 So 00 15 2d 01 9 2d 31 The defendant was originally charged with second degree murder The indictment was amended to reflect the lesser charge of manslaughter which provides for a sentence of imprisonment at hard labor of not more than forty years LSAR 14 The defendant sentence of twenty years with ten S 31 6 s years being suspended is not nearly the maximum that could have been imposed and is less than the twenty years without suspension of sentence recommended in the PSI report In imposing sentence the court stated that it found some extenuating circumstances in this case At the hearing on the motion to reconsider sentence the court stated Defendant considering exactly what happened what I did was I cut your sentence in half The sentence that was recommended was twenty 20 years and I cut your sentence in half It looks like you got a pretty good deal out of the matter Furthermore in its written reasons for sentence the court found an undue risk that the defendant would commit another crime that the defendant was in need of correctional treatment or a custodial environment and that a lesser sentence would deprecate the M seriousness of the crime adding that t defendant used excessive force in he killing the victim with a small knife more than was necessary to prevent any harm to himself It is clear from the record that the court carefully considered the facts of the case and the defendant history in imposing the sentence The court tailored s the sentence to fit the defendant crime s Although the defendant initially felt threatened he admitted to continuously beating and stabbing the victim after he was incapacitated resulting in his death The sentence imposed is not excessive These assignments of error are without merit REVIEW FOR ERROR Our review for error is pursuant to LSAC art 920 which provides that P Cr the only matters to be considered on appeal are errors designated in the assignments of error and error that is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence LSAC P Cr art 920 2 The trial court suspended a portion of the defendant sentence contrary to s the prohibition in LSAC art 893 against doing so for the crime of violence P Cr A of manslaughter Because the trial court suspension of a portion of the s s defendant sentence was not raised as error by the state in either the trial court or on appeal we are not required to take any action As such we decline to correct the illegally lenient sentence See State v Price 052514 La App 1st Cir 12 952 So 112 123 25 en banc writ denied 070130 La 06 28 2d 08 22 2 976 So 1277 2d CONCLUSION Having found no merit in the defendant assignments of error we affirm s the conviction and sentence CONVICTION AND SENTENCE AFFIRMED In particular Article 893 A p provides in pertinent part t court shall not suspend the he sentence of a conviction for a crime of violence as defined in R 14 S 2 8 5 4
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