State Of Louisiana VS Sylvester Sullivan, Jr.
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NOT DESIGNATED FOR PUBLTCATION STATE OF LOiJISIANA COURT OF APPEAL FYRST CIRCUYT N0 2012 KA 0709 STATE OF LOUISIANA VERSUS SYLVESTER SULLIVAN JR Judgment rendered December 21 2012 i Appealed from the 23 Judicial District Court f in and for the Parish of Ascension Louisiana Trial Court No 22 411 Honorable John L Peytavin Judge HON RICKY BABIN ATTORNEYS FOR ATE ST OF LOUISIANA TRICf DIS ATTORNEY DONALDSONVILLE LA NEIL O PARENTON JR AND DONALD D CANDELL ASSISTANT DISTRICT ATfORNEYS GONZALES LA PRENTICE L WHITE ATTORNEY FOR LOUISIANA APPELLA7E PROJECT BATON ROUGE LA BEFORE KUHN PETTIGREW APPELLANT DEFENDANT SYLVE5TER SULLIVAN JR AND McDONALD JJ PETTIGREW The defendant Sylvester Sullivan Jr was charged by grand jury indictment with second degree murder a violation of La R 14 He pled not guilty After a jury S 30 1 trial commenced he changed his plea and pled guilty to the responsive offense of manslaughter a violation of La R 14 The kriaf court sentenced him to thirty S 31 five years imprisonment at hard labor without the benefit of probation parole or suspension of sentence The defendant filed a motion to reconsider sentence which was denied The defendant now appeals arguing one assignment of error We affirm the conviction amend the sentence and affirm as amended FACTS After the jury trial commenced but before any evidence or testimony was presented the defendant informed the trial court that he wished to accept the district s attorney offer to plead guilty to manslaughter with a presentence investigation report PSI and no multiple ofFender bill Though the facts were not fully developed the following account of the crime was established at the Boykin examination and the sentencing hearing as well as from review of the investigative report prepared by the Assumption Parish Sheriff Office APSO which was inci in the record During the s ded daytime on July 12 2007 the defendant was seen walking with the victim Jimmy Ross Philiips in Donaldsonville Louisiana Maments lat people nearby heard gunshots A r witness then observed the defendant placing the victim who was limp into the trunk of his blue Chevrolet Caprice before driving away Soon after the defendant left the area his mother called the APSO to report that fner son car which was registered in her s name had been stolen When APSO detectives examined the area where Phillips had allegedly been shot they found a spent 9mm casing blood human tissue and a pair of dark slippers that belonged to Phillips They aiso observed car tire tracks leaving the area Phillips body wrapped in a blanket was found two days later near the Mississippi s River by the Sunshine Bridge Shortly after the shooting an APSO deputy had observed Boykin v Alabama 395 U 238 89 S 1709 23 L 274 1969 S Ct 2d Ed 2 a blue Chevrolet Caprice traveling towards the area where the victim body was found s and the driver was described as having similar feaiure to the efendant An autopsy indicated that Phillips died from a 4ingle gunshot wc to the head nd E TEfVCE EXCESSTI SEIN In his sole assignment of error th defer contends that the trial court erred dant when it imposed a thirty sentence on him when he had no history of committing year five violent crimes and led the life of a good father son and brother The defendant contends that he willingly admitted his responsibility for the death of Phillips and that he was deeply remorseful and willing to be punished for his actions He complains that the trial court did not view him in a favorable light because the PSI was drafted by an officer who never met him but nonetheless portrayed him as harboring disrespect for the judicial system He also contends that the trial court only saw him through the eyes of the s decedent family and friends and did not listen to his family and friends who described him as a good father son brother and friend Fie asserts that he should have been sentenced to only ten to fifYeen years imprisonment In the trial court the defendant filed a motior ta reconsider sentence that alleged numerous errors including that the sentence was excessive and disproportionate to the seriousness of the offense and the defendant criminal history that the trial court s considered certain aggravating factors while failing to consider other mitigating factors that the trial court considered facks in the PSI that were based on invalid conclusions of the officer who prepared the report as the officer never met with the defendant through no fault of the defendant and that the trial court placed undue weight on the defendant s past criminal history Under La Code Crim P art 881 a defendant must file a E 1 motion to reconsider sentence setting forth the specific ground upon which the motion is based in order to raise an objection to the sentence on appeal Therefore since the defendant raised all of these issues in the troa court we properly consider them on appeal 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 3 a defendant constitutional right against ccessive unishment and is subject to appellate s review State v Sepulvado 367 So 762 767 La 1979 Generally a sentence is 2d considered excessive if it is grossl disproportionate to the severity of the crime or is r nothing more than the needless icnposition of pair and suffering A sentence is considered grossly disproportionate if when the crime and punishment are considered in the light of the harm to society it is so dis as to shock one sense of justice roportionate s A trial 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 pp 10 La App 1 Cir 2868 11 00 3 SO 797 So 75 83 writ denied 2000 La 10 798 So 962 2d 3053 O1 5 2d Louisiana Code of Criminal Procedure article 894 sets forth items that must be 1 considered by the trial court before imposing sentence While the trial court need not recite the entire checklist of Article 894 the record must reflect that it adequately 1 considered the guidelines 1988 State v Wiliiams 521 So 629 633 La App 1 Cir 2d In light of the criteria expressed by Article 894 a review for individual 1 excessiveness must consider the circumstances of the crime and the trial court stated s reasons and factuai basis for its sentencing decision State v Watkins 532 So 2d 1182 1186 La App 1 Cir 1988 However the goal of Article 894 is the articulation 1 of the factual basis for a sentence not rigid or mechanical compliance with its provisions State v Lanclos 419 So 475 478 La 1982 Even when a trial court assigns no 2d reasons the sentence will be set aside on appeal and remanded for resentencing only if the record is either inadequate or clearly indicates that the sentence is excessive See La Code Crim P art 881 State v Harris 601 Sa 775 779 La App 1 Cir 1992 D 4 2d The defendant was charged with second degree murder but pled guilty to the responsive offense of manslaughter For the crime of manslaughter he was exposed to a term of imprisonment at hard labor for not more than forty years La R 14 S 31 B Thus the trial court sentence of thirty years imprisonment at hard labor falls within s five the statutory guidefines 4 At the sentencing hearirag tne defendar tfirsk requested to wfthdraw his guilty plea arguing that he felt press to accept a dea4 and did r have adequate time to red ot consider the offer The State objerted and t trial ca refused to allow it because the e rt defendant was properly Boykini arod the p9ea was voluntary ed Tnereafter defense counsel raised objections t the PSI nsel argued that he cou should ignore the entire PSI because the officer who preparea it concluded that the defendant displayed a disregard for the court however the defendant was unavailable to make a statement for the PSI because he was incarcerated in a different parish prison On appeal the defendant argues that because of the officer statement the PSI s arbitrarily tainted the court perception of him and that the sentence is nothing but a s result of those prejudicial remarks We first note that the defendant was offered an opportunity to speak at the sentencing hearing but chose not to and that the trial court in articulating its reasons for sentencing never cited the defendant attitude towards the s court as a reason for the thirty sentence Further a review of the PSI shows year five that the officer statement was made in reference to the fact that the defendant was s previously afforded the opportunity of parole but refused to become a productive member of society and continued to engage in criminal activity In fact as noted by the trial court at the time of the instant ofFense the defendant was on parole for possession and distribution of a controlled dangerous substance We do not find that the court erred in considering the PSI or that the sentence is slmply the result of the officer statement s Besides the PSI the court considered correspondence from the defendant letters from the victim family and letters from the defendant family and people in the s s community Through these ietters on the defendant behalf the court surmised tF he s at had a happy and family childhood but that he began to experience trouble in the oriented family during his teenage years quit school in the ninth grade and began to associate with a quasi crowd The co was aware that the defendant had three minor criminai rt children and acknowledged that his family would Iskely suffer hardship as a resuit of his incarceration The court aGso recognized that the victim was loved by his family and will always be missed 5 Defense counsel argued t the tria@ court tt khe defendant had no prior violent at criminal history and hat he vuas not a bad perso or the worst of offenders deserving of n the maximum sentence However we corosider as did the trial court that the defendant pled guilty to killing the vi ard placing his body c the trunk af his car before leaving tim the body near the Mississippi River wher Et uvas faund two days later In addition the trial court found most troubling of all that the defendant had failed to take any responsibility or display any remorse for his actions On appeal the defendant argues that the sentence is excessive because he willingly admitted responsibility and is deepiy remorseful for his actions However we note that at the sentencing hearing he attempted to withdraw his guilty plea and the recor does not provide any evidence of his purported remorse He argues that the court only saw him through the eyes of the s victim family but clearly the trial court considered the defendant character history s and behavior independent of the opinions expressed by the victim family s Examining the factors of Article 894 the trial court found there was an undue 1 risk that during a period of a suspended sentence or probation the defendant would commit another crime that he was in need of correctional treatment or a custodial environment provided most efFectively by his commitment to an institution and that a lesser sentence would deprecate the seriousness of his crime We find that the trial s court reasons for the sentence adequately demonstrate compliance with Article 894 1 Furthermore we consider that the defendant pled guilty to manslaughter but was originally charged with second degree murde a crime that carries a penalty of mandatory life imprisonment La R 14 In a ease such as khis where the S 30 6 1 defendant has pfed guilty to an affense thac does rot adequately describe his conduct the trial court has great discretion n imposing even the maximum sentence possible for the pled offense This is particularly true where a significant reduction in potential exposure to imprisonment has been obtained through plea bargaining and the offense involves violence to the victim See State v Lanclos 419 So at 478 See also State 2d v Waguespack 589 So 1079 1086 La App 1 Cir 1991 writ denied 596 So 2d 2d 209 La 1992 6 Based on the facts of the cas th reasons articulated at the sentencing hearing e and given the trial cour wide discretion in the ir of sentences we cannot say s position that the trial court manifestly abused its aiscretion in senteneing the iefendant to thirty five years nt imprisoniln at hard fabor Thas ent rr assig error is without merit f I ITEI BRORS E E Under La Code Crim P art 2 920 which limits our review to errors discoverable by a mere inspection of the pleadings and proceedings without inspection of the evidence we have discovered a sentencing error In sentencing the defendant the trial court ordered that the sentence be served without the benefit of probation parole or suspension of sentence although the penalty provision of the manslaughter statute did not authorize such a restriction on the defendant parole eligibility La R s S B 31 14 Thus the inclusion of the parole restriction rendered this sentence illegal We note that neither the defendant nor the State has raised this issue on appeal Pursuant to La Code Crim P art 882 whi provides that an appellate court may A h correct an illegal sentence at any time on review we amend the sentence to delete the parole restriction See State v Templet 2fl05 pp 16 La App 1 Cir 2623 17 06 16 8 943 So 412 422 writ denied 2006 La 4 954 So 158 2d 2203 07 20 2d For the foregoing rea5ons the defendant convictoon is affirmed The sentence is s amended and aas amended rmed CONVICTION AFFIRMED SENTENCE AMENDED AND AFFIRMED AS AMENDED 7
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