Opinion
No. 97-K-1027
October 13, 1997
IN RE: State of Louisiana; — Plaintiff(s); Applying for Writ of Certiorari and/or Review; to the Court of Appeal, Fourth Circuit, Number 93KA-1636; Parish of Orleans Criminal District Court Div. "J" Number 362-149
Granted in part. See Order.
WFM
CDK
JPV
CDT
CALOGERO, C.J. would grant and docket.
LEMMON, J. would grant and docket.
JOHNSON, J. would deny the writ.
KNOLL, J. not on panel.
Granted in part. The decision of the Fourth Circuit is reversed insofar as it vacates the defendant's sentence and remands for resentencing before a different judge, and the sentence imposed by the trial court is reinstated. On appellate review of sentence, the only 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, p. 3 (La. 5/31/96), 674 So.2d 957, 959 (quoting State v. Humphrey, 445 So.2d 1155, 1165 (La. 1984)), cert. denied, ___ U.S. ___, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996). For legal sentences imposed within the range provided by the legislature, a trial court abuses its discretion only when it contravenes the prohibition of excessive punishment in La.Const. art. I, § 20, i.e., when it imposes "punishment disproportionate to the offense." State v. Sepulvado, 367 So.2d 762, 767 (La. 1979). In cases in which the trial court has left a less than fully articulated record indicating that it has considered not only aggravating circumstances but also factors militating for a less severe sentence, State v. Frank, 373 So.2d 1307, 1308 (La. 1979), a remand for resentencing is appropriate only when "there appear[s] to be a substantial possibility that the defendant's complaints of an excessive sentence ha[ve] merit." State v. Wimberly, 414 So.2d 666, 672 (La. 1982). The trial court's finding in this case that the defendant committed a "cold and deliberate act" which would have fully justified the return of a verdict of second degree murder adequately supports the sentence imposed.