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State v. Collins5/11/2005
Before STEWART, GASKINS and DREW, JJ.
The defendant, Johnny Collins, appeals as excessive his sentence of 40 years at hard labor without benefit of parole, probation, or suspension of sentence following his guilty plea to attempted second degree murder. For the following reasons, we affirm the conviction and sentence.
FACTS
On June 13, 2003, the victim, Denise Jackson, was walking in a wooded area between her residence and a store. The defendant attacked her, beating her severely about the head and body with a board and a bottle. The victim claimed that the attack was unprovoked. The defendant asserted that the victim made a comment to him which caused him to attack her. The victim suffered severe disfigurement as a result of the attack. A man and woman passing by the area heard the victim screaming and came to her aid. The defendant fled the scene.
The victim and the female witness both identified the defendant from a photographic line up. The defendant was apprehended hiding under a house. He was arrested and charged with attempted second degree murder.
On March 10, 2004, the defendant entered a plea of guilty as charged to attempted second degree murder. In exchange for the plea, the prosecution agreed not to charge the defendant as a habitual offender.
On July 29, 2004, the trial court sentenced the defendant to serve 40 years at hard labor without benefit of parole, probation, or suspension of sentence. A timely motion for reconsideration of sentence was denied. The defendant appealed, claiming that the sentence is excessive.
LEGAL PRINCIPLES
When, as here, a defendant's motion for reconsideration urges merely that the sentence is excessive, he is relegated only to a claim of constitutional excessiveness. State v. Mims, 619 So. 2d 1059 (La. 1993). Constitutional review turns upon whether the sentence is illegal, grossly disproportionate to the severity of the offense or shocking to the sense of justice. State v. Lobato, 603 So. 2d 739 (La. 1992); State v. White, 37,815 (La. App. 2d Cir. 12/17/03), 862 So. 2d 1123.
A trial court has broad discretion to sentence within the statutory limits. Absent a showing of manifest abuse of that discretion, an appellate court may not set aside a sentence as excessive. State v. Guzman, 99-1528, 99-1753 (La. 5/16/00), 769 So. 2d 1158.
DISCUSSION
Prior to imposing sentence, the trial court considered a presentence investigation (PSI) report. The court noted that the defendant was 35 years old with an extensive criminal record. He had a juvenile record. In 1987, the defendant was charged with simple escape and pled guilty to attempted felony escape. He was arrested for unauthorized use of a movable, but the record contained no disposition of that charge. In 1988, the defendant was charged with second degree murder and was allowed to plead guilty to manslaughter. He was sentenced to 21 years at hard labor. He also pled guilty to armed robbery and was sentenced to 25 years at hard labor. The defendant was paroled in October 2003 and committed the present offense within eight months of his release from prison.
The court noted that the defendant was not married and had no dependents. He dropped out of the tenth grade and was unemployed. The court found the defendant to be a dangerous person who needed to be removed from the public and incarcerated for a lengthy period of time.
The court also observed the impact of this offense upon the victim. The defendant suffered severe injuries as a result of being beaten by the defendant with a board and a bottle. Her life was saved by two people passing by who hea
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