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NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA                                                               *   NO. 2007-KA-0852
VERSUS                                                                           *   COURT OF APPEAL
HORACE HICKS                                                                     *   FOURTH CIRCUIT
                                                                                 *   STATE OF LOUISIANA
*
APPEAL FROM
CRIMINAL DISTRICT COURT ORLEANS PARISH
NO. 467-701, SECTION “J”
Honorable Darryl A. Derbigny, Judge
Judge Dennis R. Bagneris, Sr.
(Court composed of Judge Dennis R. Bagneris, Sr., Judge Edwin A. Lombard,  and
Judge Roland L. Belsome)
Eddie J. Jordan, Jr.
District Attorney
Alyson Graugnard
Assistant District Attorney
1340 Poydras Street
Suite 700
New Orleans, LA   70112-1221
COUNSEL FOR PLAINTIFF/APPELLEE
DECEMBER 19, 2007
John Harvey Craft
LOUISIANA APPELLATE PROJECT
829 Baronne Street
New Orleans, LA   70113-1102
COUNSEL FOR DEFENDANT/APPELLANT
AFFIRMED




Appellant, Horace Hicks appeals the judgment of the district court denying
his Motion to Reconsider Sentence. For the reasons stated herein, we affirm.
On November 29, 2006, the State charged Hicks with one count of simple
burglary.   At his arraignment on January 19, 2007, he pled not guilty.   On April 10,
a six-person jury found him guilty of unauthorized entry of a place of business.
The court sentenced Hicks on April 18 to serve four years at hard labor.   The court
denied his motion to reconsider sentence and this appeal follows.
Facts
At approximately 2:00 a.m. on October 6, 2006, Ryan Lucas was packing
for a trip when he heard his and the neighborhood dogs barking.   He looked out his
window and saw a man in a dark shirt and khaki pants kicking and hitting the door
to the shop across the street from Lucas’ house.    Lucas testified that the man,
whose face he did not see, picked up an object from the ground and threw it at the
glass on the door, breaking the glass.   Lucas called 911 and then looked back out
the window.   He saw that the man had not entered the shop, but instead he had
walked down the street and out of sight.   Lucas testified that soon thereafter the
dogs began barking again, and he looked out and saw a man wearing a dark shirt
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and khaki pants walking toward the shop from the opposite direction that he saw
the man walk away from the shop.   Lucas testified that the man opened the door
and entered the shop.   Lucas called 911 again at that point.   Lucas testified that the
person who entered the shop looked like the same person who had broken the
door’s window.
On cross-examination, Lucas testified that he did not know Hicks, but he
had seen him in the neighborhood prior to the break-in.   Lucas testified that he
later learned that Hicks had worked for his father and that Hicks’ wife worked in
the shop that he had seen the man enter.   He testified that he believed that the man
he saw break the window was the same one who entered, and he theorized that the
man must have walked around the block to approach the shop from the opposite
direction.    On redirect examination, he insisted that the man he saw break the
window was wearing the same clothes and was the same height and weight as the
man who entered the shop.    He testified that the clothing worn by Hicks in a
photograph taken at his arrest matched the clothing worn by the man who broke
the window and the man who entered the shop.
Noliska Calloway, a 911 operator for the New Orleans Police Department,
testified that the police received two 911 calls with respect to the entry into the
shop, one received at 2:28 a.m. and another at 2:41.   She testified that the only
description given was a clothing description.   After Ms. Calloway’s testimony, the
State played a tape of the 911 call.
Off. Terrance Clark testified that he responded to the call of the burglary at
800 Brooklyn Avenue, the House of the Seven Sisters.   He testified that another
officer, Off. Corey Clark, pulled up soon after he did.   Off. Terrance Clark testified
that he looked through the open door of the shop and saw a man inside whose
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clothing fit the description he had been given.   He ordered the man to exit, Hicks
complied.   He stated that Hicks was not carrying anything when he came out of the
shop.   He testified that the other officer handcuffed Hicks and placed him into one
of the police cars.   The two officers then entered the shop, where they found a lot
of broken glass on the floor, but not much appeared to have been disturbed.   He
testified that they found no one else inside the shop.   He positively identified Hicks
as the man whom he saw inside the shop and who walked out at his command.
On  cross-examination,  Off.  Clark  testified  that  the  shop’s  owner  soon
arrived and indicated that nothing had been taken from the shop.   He testified that
he did not see merchandize stacked up like it was being readied to be taken, and
the cash register appeared to be intact.   He stated that Hicks gave the officers his
name and the address of his residence, which was nearby.   He stated that Hicks
then told him that he knew the owner and had gone by the shop to check on it.
Hicks also told the officer that his wife worked for the owner of the shop, and he
pointed toward the owner’s nearby residence.   On redirect, Off. Clark testified that
the owner told the officers that she had not given Hicks permission to be in the
shop.
Off. Corey Clark testified that he arrived on the scene just after Terrance
Clark arrived, and he saw that the windows in the shop’s door were broken.   He
testified that he saw a man he identified as Hicks come out of the shop at the
officers’ order.    He testified that he handcuffed Hicks and advised him of his
rights.   He testified that he placed Hicks in one of the police cars, and then he and
the other officer entered the shop.   He testified that the cash register was on the
floor, but it did not appear that anything else was out of place.   He testified that he
went to the owner’s residence and took her back to the shop.   He stated that the
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owner told him that Hicks was her housekeeper’s husband and that she had not
given him permission to enter the store.
Kathy Smith testified that she owned the House of the Seven Sisters, which
she classified as a museum.   She testified that the operating hours of the business
were 11:00 to 6:00; she denied that the business was ever open at 2:00 a.m.   Ms.
Smith stated that Hicks’ wife was her housekeeper and that his wife sometimes
cleaned the business, but she always did it during business hours and did not have
a key to the business.   Ms. Smith testified that Hicks did not have permission to be
in the shop.   She also testified that Hicks was not even allowed to walk his wife to
work because of past “characteristics in the neighborhood.”   Because of this, she
did not even want Hicks to enter her business.   Ms. Smith testified that when she
arrived at the shop, she noticed that the glass in the door was broken, the cash
register had been disturbed, and brass cups holding pens had been knocked over
onto the floor.   Because of the varied inventory of the shop, she could not tell if
anything had been taken.
Errors Patent
A review of the record reveals no patent errors.1
Hicks’ Assignment of Error
By  his  sole  assignment  of  error,  Hicks  contends  that  his  sentence  is
excessive because the trial court did not give any reasons for the sentence it
imposed.    The court sentenced Hicks to serve four years at hard labor.    The
1 Although the record does not contain the minute entry of sentencing, it contains the docket master that contains the
entry of sentencing.  In addition, the record contains the sentencing transcript.
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maximum sentence the court could have imposed was six years at hard labor. La.
R.S. 14:62.42.
In State v. Smith, 2001-2574, p. 7 (La. 1/14/03), 839 So. 2d 1, 4, the Court
set forth the standard for evaluating a claim of excessive sentence:
Louisiana  Constitution  of                                                                                              1974,  art.  I,                                                                §      20
provides, in pertinent part, that  “[n]o law shall subject
any  person  to  ···  excessive···  punishment.”                                                                         (Emphasis
added.) Although a sentence is within statutory limits, it
can be reviewed for constitutional excessiveness. State v.
Sepulvado, 367 So.2d 762, 767 (La.1979). A sentence is
unconstitutionally excessive when it imposes punishment
grossly disproportionate to the severity of the offense or
constitutes nothing more than needless infliction of pain
and  suffering.  State  v.  Bonanno,  384  So.2d  355,  357
(La.1980).  A  trial  judge  has  broad  discretion  when
imposing a sentence and a reviewing court may not set a
sentence  aside  absent  a  manifest  abuse  of  discretion.
State  v.  Cann,                                                                                                         471  So.2d                                                                     701,   703   (La.1985).  On
appellate review of a sentence, the relevant question is
not  whether  another  sentence  might  have  been  more
appropriate but whether the trial court abused its broad
sentencing  discretion.  State  v.  Walker,                                                                              00-3200,  p.                                                                   2
(La.10/12/01), 799 So.2d 461, 462; cf. State v. Phillips,
02-0737, p. 1 (La.11/15/02), 831 So.2d 905, 906.
See also State v. Johnson, 97-1906 (La. 3/4/98), 709 So. 2d 672; State v. Baxley,
94-2982 (La. 5/22/95), 656 So. 2d 973; State v. Batiste, 2006-0875 (La. App. 4
Cir.                                                                                                                     12/20/06),  947 So.  2d  810; State v. Landry,  2003-1671  (La. App.  4 Cir.
3/31/04), 871 So. 2d 1235.
In Batiste, at  p. 18, 947 So. 2d at   820, this court further explained:
An appellate court reviewing a claim of excessive
sentence   must   determine   whether   the   trial   court
2 A. Unauthorized entry of a place of business is the intentional entry by a person without authority into any
structure or onto any premises, belonging to another, that is completely enclosed by any type of physical barrier that
is at least six feet in height and used in whole or in part as a place of business. B. Whoever commits the crime of
unauthorized entry of a place of business shall be fined not more than one thousand dollars or imprisoned with or
without hard labor for not more than six years, or both.
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adequately complied with the statutory guidelines in La.
C.Cr.P. art. 894.1, as well as whether the facts of the case
warrant the sentence imposed.   State v. Landry, supra;
State v. Trepagnier, 97-2427 (La. App. 4 Cir. 9/15/99),
744 So.2d 181.   However, as noted in State v. Major, 96-
1214, p. 10 (La. App. 4 Cir. 3/4/98), 708 So.2d 813:
The articulation of the factual basis for a
sentence is the goal of Art. 894.1, not rigid
or    mechanical    compliance    with    its
provisions.   Where the record clearly shows
an adequate factual basis for the sentence
imposed, resentencing is unnecessary even
when  there  has  not  been  full  compliance
with Art. 894.1.   State v. Lanclos, 419 So.2d
475  (La.1982).    The reviewing court shall
not set aside a sentence for excessiveness if
the  record  supports  the  sentence  imposed.
La.C.Cr.P. art. 881.4(D).
If the reviewing court finds adequate compliance
with  art.                                                                               894.1,  it  must  then  determine  whether  the
sentence the trial court imposed is too severe in light of
the particular defendant as well as the circumstances of
the  case,                                                                               “keeping  in  mind  that  maximum  sentences
should be reserved for the most egregious violators of the
offense so charged.”   State v. Landry, 2003-1671 at p. 8,
871 So.2d at 1239.   See also State v. Bonicard, 98-0665
(La. App. 4 Cir. 8/4/99), 752 So.2d 184.
Here, Hicks maintains that his sentence must be vacated because the trial
court did not give any reasons for the sentence it imposed.    In his motion to
reconsider sentence and on appeal he argues that the court should have ordered a
presentence investigation report prior to sentencing to discover any mitigating
evidence.   However, although La. C.Cr.P. art. 875 authorizes a trial court to order a
presentence investigation report, a defendant does not have the right to demand
one.   See State v. Bell, 377 So. 2d 275 (La. 1979); State v. Hollins, 2007-0014 (La.
App. 4 Cir. 7/25/07), ___ So. 2d ___, 2007 WL 21773312.     In both Hollins and
State v. Allen, 2003-2156 (La. App. 4 Cir. 5/19/04), 876 So. 2d 122, this court
found no error in the trial court’s failure to order a presentence investigation where
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the defendant did not request one prior to sentencing or object to its absence at
sentencing.   Here, not only is there no indication that the appellant requested a
presentence investigation, but at sentencing, when the trial court questioned why it
did not order one, defense counsel noted that it was because the appellant was not
eligible for probation.   Thus, there was no error in the trial court’s failure to order a
presentence investigation.
With  respect  to  the  court’s  failure  to  give  reasons  for  the  sentence  it
imposed, such failure is not fatal to the legitimacy of the sentence because the
record supports the sentence imposed.    Although the appellant alleges that the
court could not remember the facts of the case because it did not remember what
verdict  the  jury  returned,  the  sentencing  transcript  indicates  that  the  court
remembered that the jury returned a responsive verdict and merely asked to be
reminded what the verdict was that the jury returned.   This question does not prove
that the court could not remember the facts of the case.   In addition, both defense
counsel and the prosecutor set forth the appellant’s prior convictions:   convictions
in                                                                                           2004  and   2003  for  possession  of  drug  paraphernalia,  a  simple  burglary
conviction from 1999, a 1993 conviction for resisting arrest, and a 1983 conviction
for forgery.   The defense presented no mitigating evidence at the hearing, nor does
counsel on appeal specify what, if any, mitigating factors the court could have
considered.   Given the facts that the judge presided over trial and was apprised of
the appellant’s prior record, both by the State and by defense counsel, it cannot be
said that the court was unaware of the factors it needed to consider for sentencing,
factors that can be gleaned from the record.    The appellant’s argument has no
merit.
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The  appellant  makes  no  specific  argument  as  to  the  term  of  years  he
received,  but  a  comparison  of  similar  cases  shows  that  the  sentence  is  not
excessive.   In State v. Adger, 35,111 (La. App. 2 Cir. 9/26/01), 797 So. 2d 146, the
court upheld a five-year sentence for a violation of La. R.S. 14:62.4.   Although
sentenced as a first offender, the defendant had several prior convictions, including
a parole violation arising out of a murder case from Missouri.   In State v. Vogel,
524 So. 2d 896 (La. App. 3 Cir. 1988), the defendant was sentenced to serve three
years at hard labor for a violation of La. R.S. 14:62.4.   The defendant had no prior
adult convictions, but he had juvenile adjudications for simple burglary and illegal
possession of stolen property.    The court upheld the sentence, noting the prior
adjudications and the determination by the probation office that he had been a poor
probation performer.
Here, the appellant was originally charged with simple burglary, for which
he faced a possible twelve-year sentence if convicted.   The jury found him guilty
of the responsive verdict of unauthorized entry of a place of business, for which the
maximum sentence was six years.   As in Adger, the appellant has several prior
convictions.    Given these circumstances, it does not appear that the trial court
abused its discretion by imposing a four-year sentence in this case.   This claim has
no merit.
Decree
For  the  reasons  stated  herein  we  affirm  Horace  Hick’s  conviction  and
sentence.
AFFIRMED
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