State v. Telsee 404 So. 2d 921

WATSON, Justice.*

Defendant, Johnny Telsee, Jr., pled guilty to forcible rape. LSA-R.S. 14:42.1. He *922received a sentence of forty years hard labor, “at least half” without probation, parole or suspension of sentence.1 The sentence was vacated and the case remanded for a presentence hearing and resentenc-ing.2 State v. Telsee, 388 So.2d 747 (La.,1980). The trial court resentenced defendant to forty years. Defendant assigns as error the failure of the trial court to particularize the reasons for the sentence and excessiveness of the term.

The twenty-six year old victim was driving home from work when the seventeen year old defendant drove up behind her flicking his lights from dim to bright. She pulled onto the shoulder of the road. Tel-see approached her vehicle, stating that he was a “private cop”. As she opened her door to examine his identification, he jumped in the car. Her resistance was overcome by force and the threat of death. She received numerous bruises and scratches on her neck and face and a cut on her leg. She was driven to a remote area of Caddo Parish, raped, and released. Defendant said he would kill her if she told anyone about the rape. Telsee took all of the victim’s money and a gold watch. According to his later testimony, he had smoked a marijuana cigarette laced with PCP, or “Angel Dust”, shortly before the rape. He had been using PCP for approximately six weeks.

Telsee was originally charged with aggravated rape.- He pled not guilty. After a sanity commission’s report, the trial court ruled that defendant lacked the mental capacity to assist in his defense and ordered him committed for examination and treatment. After a report by a second sanity commission composed of the same doctors, defendant was found capable of standing trial. Telsee then withdrew his former plea of not guilty and pled guilty to forcible rape.

LSA-C.Cr.P. art. 894.13 requires the trial judge to articulate the reasons for *923imposing sentence. The considerations taken into account and the factual basis for the sentence must be stated. LSA-C.Cr.P. art. 894.1 subsection C; State v. Meredith, 400 So.2d 580 (La.,1981); State v. Brown, 395 So.2d 1301 (La.,1981). While the trial court need not articulate every aggravating and mitigating circumstance, the guidelines of LSA-C.Cr.P. art. 894.1 must be adequately considered and the sentence related to the particular defendant. State v. Jacobs, 383 So.2d 342 (La.,1980); State v. Vaughan, 377 So.2d 87 (La.,1979).

The criteria of art. 894.1 may justify a harsh sentence or a lesser sentence.

“[Tjhese criteria provide guidance as to whether the sentence should be closer to the maximum rather than to the minimum statutory range of sentence, if the sentencing judge does determine that imprisonment rather than suspension of sentence or probation is the appropriate disposition.” State v. Sepulvado, 367 So.2d 762 at 767, 768 (La.,1979).

In oral reasons for sentencing, the trial court stated: “No matter what sentence you receive, it will not be equal to the loss [the victim] has already sustained. There is no way to repair it.” (Tr. 176) Other than this implied reference to that portion of the statute [subsection A(3)] which instructs the judge to impose a sentence of imprisonment if a lesser sentence will deprecate the seriousness of the crime, no other mention is made of the factors of art. 894.1, subsection A.

Subsection B of the statute requires the sentencing court to consider any mitigating factors. State v. Franks, 373 So.2d 1307 (La.,1979). It appears that the trial court here ignored certain mitigating factors which should have been accorded some weight. The trial court’s opinion only briefly and indirectly alludes to these mitigating factors, stating that:

“We most emphatically do not agree, however, that because a defendant had a serious drug problem at the time he committed the rape, or that he was only seventeen years of age is sufficient justification to reduce or minimize the sentence.” (Tr. 179)

Thus, the mitigating factors were either discounted or ignored. They should have been considered in determining the period of imprisonment.

At the presentencing hearing, there was evidence of several statutory mitigating factors. The trial court should have articulated its weighing of the following considerations:

a. Whether the defendant seriously harmed the victim. LSA-C.Cr.P. art. 894.1 B(l) and (2).

b. Whether there were substantial grounds tending to excuse the defendant’s conduct, though failing to establish a defense. LSA-C.Cr.P. art. 894.1 B.

c. Whether the defendant led a law abiding life for a substantial period of time before commission of the crime. LSA-C.Cr.P. art. 894.1 B(7).

d. Whether the character and attitudes of the defendant indicate that he is unlikely to commit another crime. LSA-C. Cr.P. art. 894.1 B(9).

The legislature enacted LSA-C.Cr.P. art. 894.1 to insure that each crime and each criminal are considered individually before sentence is imposed. The guidelines of the statute assist a trial court in adapting a sentence to the offender and the offense. State v. Douglas, 389 So.2d 1263 (La.,1980); State v. Smith, 369 So.2d 136 (La.,1979); and State v. Jackson, 360 So.2d 842 (La.,1978). The trial court must articulate its reasons for imposing a particular sentence to allow this court an adequate review.

The trial court may have been mindful of the factors mentioned in LSA-C.Cr.P. art. 894.1, but this does not appear on the record. Since there was inadequate compliance with the statute by the trial court, the case must be remanded again for resentencing. State v. Cox, 369 So.2d 118 (La.,1979). The question of excessiveness of the sentence is pretermitted.

Defendant’s sentence is vacated and the case remanded to the trial court for resen-tencing.

*924SENTENCE REVERSED; CASE REMANDED.

LEMMON, J., dissents and assigns reasons.

GUIDRY, J. ad hoc, dissents and assigns reasons.

KLEES, J. ad hoc, dissents for the reasons assigned by GUIDRY, J. ad hoc.

LEMMON, Justice,

dissenting.

A three-hour sentencing hearing was held on remand, and the record is now complete. If the record supports the sentence imposed, a remand for compliance with C.Cr.P. Art. 894.1 is unnecessary. State v. Day, 391 So.2d 1147 (La.1980). Rather than remand, we should decide the issue squarely before us of whether the trial judge abused his sentencing discretion based on that record and on the reasons the judge stated in pronouncing sentence.

On the record evidence, viewed in the light most favorable to the prosecution, this criminal used deception and force to abduct and rape a totally innocent person driving on the streets. There was absolutely no provocation. He choked and bruised her, threatening to kill her at least twice. He also robbed her in the course of the incident.

Based on his admitted conduct defendant could reasonably have been charged with aggravated rape, kidnapping and robbery, but he was allowed to plead guilty to forcible rape. Although he received the maximum sentence for that offense, he could have fared much worse.

There were several mitigating circumstances. The 17-year old, voluntarily high on drugs, had only two prior offenses as a juvenile, neither of which involved violence. Although the present crime involved considerable violence, there were no dangerous weapons used. Further, defendant had a good work record for his age and a satisfactory school record.

All of these mitigating circumstances were before the trial judge, who rejected them in view of the seriousness of the totality of criminal conduct involved in this incident. Most significantly, the trial judge did not consider any inappropriate factors. 1 When all pertinent factors are considered, I cannot say that the trial judge abused the vast discretion accorded him in performing his sentencing function or that the penalty is grossly disproportionate to the criminal conduct. I would affirm the sentence.

GUIDRY, Justice ad hoc,

dissenting.

I dissent from the majority’s decision to again remand this case to the trial court for resentencing.

Following initial remand of this matter, i. e., State v. Telsee, 388 So.2d 747 (La.1980), the trial court held a presentence hearing and imposed the same sentence as initially imposed. The evidence adduced at this pre-sentence hearing is set forth in the record. This court should review the record, without further remand, and determine the defendant’s contention of sentence excessiveness on its merits. This was the procedure followed in State v. Sepulvado, 367 So.2d 762 (La.1979). Accordingly, I respectfully dissent.