State of Louisiana v. John Michael Murphy

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

07-555

STATE OF LOUISIANA

VERSUS

JOHN MICHAEL MURPHY

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APPEAL FROM THE
ELEVENTH JUDICIAL DISTRICT COURT
PARISH OF SABINE, NO. 61,467
HONORABLE CHARLES ADAMS, DISTRICT JUDGE

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OSWALD A. DECUIR
JUDGE

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Court composed of Oswald A. Decuir, Marc T. Amy, and Billy Howard Ezell, Judges.

AFFIRMED.

Don M. Burkett
District Attorney
Charles D. Soileau
Assistant District Attorney
P. O. Box 1557
Many, LA 71449
(318) 256-6246
Counsel for Appellee:
State of Louisiana

Mark O. Foster
Louisiana Appellate Project
P. O. Box 2057
Natchitoches, LA 71457
(318) 572-5693
Counsel for Defendant/Appellant:
John Michael Murphy

DECUIR, Judge.

Defendant, John Michael Murphy, was charged by bill of information with two

counts of theft of a firearm, in violation of La.R.S. 14:67.15. Defendant withdrew his

prior plea of not guilty and entered into a plea agreement wherein the State amended

the charges to two counts of theft over five hundred dollars, in violation of La.R.S.

14:67(B)(1). Defendant was sentenced to serve three years at hard labor on each

count, with the sentences to run concurrently. He was also ordered to pay restitution

of his pro rata share of eight hundred and forty dollars.

This court dismissed Defendant’s prior appeal and remanded the case to the

trial court to allow the Defendant an opportunity to properly seek reinstatement of his

right to appeal. State v. Murphy, an unpublished opinion bearing docket number 07-

555 (La.App. 3 Cir. 9/12/07), 963 So.2d. 1107. Thereafter, the Louisiana Supreme

Court granted Defendant’s writ of certiorari and reversed and remanded the case to

this court.

Accordingly, Defendant is now before this court on appeal, asserting that his

sentence is excessive.

FACTS

At the guilty plea hearing, the State recited the following facts:

MR. STRIDER:

Yes, Your Honor. On the date in the Bill of Information, the
Defendant, along with Randall Wayne Craig, went to Florien High
School where they went into a car and stole their forty caliber GLOCK
and a 270 rifle, both valued at over five hundred dollars.

EXCESSIVENESS

In his sole assignment of error, Defendant argues that the sentences imposed

are excessive. More specifically, Defendant contends that the trial court failed to

fully review the mitigating factors before sentencing Defendant. We note that

Defendant did not file a motion to reconsider his sentence and, therefore, his

excessiveness claim is barred by La.Code Crim.P. art. 881.1. However, in the interest

of justice, this court has chosen to review such an assignment as a bare claim of

excessiveness. State v. Hargrave, 05-1027 (La.App. 3 Cir. 3/1/06), 926 So.2d 41,

writ denied, 06-1233 (La. 11/22/06), 942 So.2d 552.

This court has set forth the following standard to be used in reviewing

excessive sentence claims:

La.Const. art. I, § 20 guarantees that, “[n]o law shall subject any
person to cruel or unusual punishment.” To constitute an excessive
sentence, 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 has wide discretion 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,
00-0165 (La.6/30/00); 765 So.2d 1067. The relevant question is
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).

State v. Barling, 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035,

1042-43, writ denied, 01-838 (La. 2/1/02), 808 So.2d 331.

To decide whether a sentence shocks the sense of justice or makes no

meaningful contribution to acceptable penal goals, this court has held:

[An] appellate court may consider several factors including the nature
of the offense, the circumstances of the offender, the legislative purpose
behind the punishment and a comparison of the sentences imposed for
similar crimes. State v. Smith, 99-0606 (La. 7/6/00); 766 So.2d 501.
While a comparison of sentences imposed for similar crimes may
provide some insight, “it is well settled that sentences must be
individualized to the particular offender and to the particular offense
committed.” State v. Batiste, 594 So.2d 1 (La.App. 1 Cir.1991).
Additionally, it is within the purview of the trial court to particularize
the sentence because the trial judge “remains in the best position to
assess the aggravating and mitigating circumstances presented by each
case.” State v. Cook, 95-2784 (La. 5/31/96); 674 So.2d 957, 958.

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State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ denied,

03-562 (La. 5/30/03), 845 So.2d 1061.

The penalty for theft over five hundred dollars is not more than ten years with

or without hard labor. La.R.S. 14:67(B)(1). Thus, Defendant’s three-year sentences

are significantly less than the maximum possible sentence. Additionally, Defendant

received a significant benefit from his plea bargain, as he faced a maximum possible

sentence of ten years at hard labor without the benefit of probation, parole, or

suspension of sentence and a fine of one thousand dollars for the charge of theft

of a firearm. La.R.S. 14:67.15(C)(1).

In State v. Washington, 414 So.2d 313 (La.1982), the defendant claimed that

the trial court abused its discretion in imposing a six-year sentence for theft of

property having value over five hundred dollars. “In view of the plea bargain,

defendant’s prior criminal activity, and the fact that defendant was on probation at the

time of the instant offense, [the reviewing court did] not consider that a sentence of

six years at hard labor and a fine of one thousand to be ‘grossly out of proportion to

the severity of the crime.’” Id. at 315 (State v. Williams, 397 So.2d 1287 (La.1981)).

In State v. LeBlanc, 578 So.2d 1036 (La.App. 3 Cir. 1991), the court upheld a

ten-year sentence for one count of theft of property having a value over five hundred

dollars. The court concluded that “[e]ven though the sentencing court’s reasons for

sentencing defendant are minimal. . . , the record presented more than adequate

factual basis for the ten year sentence, and shows that the sentencing court considered

the factors of [La.Code Crim.P. art.] 894.1.”

In the instant matter, although the trial court did not specify for the record the

mitigating circumstances it found applicable to this particular Defendant, the record

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reflects that the sentencing court observed aggravating and mitigating factors before

imposing his sentence. The following colloquy took place at sentencing:

THE COURT:

Mr. Murphy, reviewing your criminal history, there was an arrest for
simple battery in ‘04. There was no disposition found on that. ‘04,
possession of firearms with an obliterated serial number. Apparently
you paid a fine on that criminal charge. This offense of theft of a
firearm. The other charges of illegal use of weapons, aggravated
criminal damage to property, those are dismissed. And November the
2nd of 2006, you now have a new arrest for aggravated assault and
disturbing the peace. And that matter is pending, is that correct?

THE DEFENDANT:

Yes, sir

....

THE COURT:

Apparently you were honorably discharged. Served in Iraq, is that
correct?

THE DEFENDANT:

Yes, sir.

THE COURT:

But however, since coming home it appears that you’ve made
some bad decisions on what you need to be doing.

....

THE COURT:

You’re not married at this time.

THE DEFENDANT:

No, sir.

THE COURT:

Do you have any children?

THE DEFENDANT:

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No, sir.

THE COURT:

According to your statement, had a difficult childhood. A
stepfather that was abusive.

THE DEFENDANT:

Yes, sir.

Furthermore, Defendant’s offense resulted in a significant economic hardship

to the victim. In light of the cases cited above, the plea bargain, and the fact that the

sentences are in the lower range, we find that the trial court did not abuse its

discretion. Accordingly, this assignment if without merit.

DECREE

For the foregoing reasons, Defendant’s sentences are affirmed.

AFFIRMED.

This opinion is NOT DESIGNATED FOR PUBLICATION. Rule 2-16.3, Uniform Rules,
Courts of Appeal.

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