State of Louisiana v. Robert J. Davis

Judgment rendered October 1, 2025.
Application for rehearing may be filed
within the delay allowed by Art. 922,
La. C. Cr. P.

No. 56,437-KA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

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STATE OF LOUISIANA Appellee

versus

ROBERT J. DAVIS Appellant

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Appealed from the
Forty-Second Judicial District Court for the
Parish of DeSoto, Louisiana
Trial Court No. 22CR32998

Honorable Amy Burford McCartney, Judge

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HARVILLE LAW FIRM, LLC Counsel for Appellant
By: Douglas Lee Harville

CHARLES BLAYLOCK ADAMS Counsel for Appellee
District Attorney

EDWIN L. BLEWER, III
ETHAN ARBUCKLE
Assistant District Attorneys

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Before PITMAN, MARCOTTE, and ELLENDER, JJ.

MARCOTTE, J.

This criminal appeal arises from the 42nd Judicial District Court,

Parish of DeSoto, the Honorable Amy Burford McCartney presiding.

Defendant Robert J. Davis was convicted of one count of indecent behavior

with a juvenile by improper communication. His original sentence of seven

years at hard labor was vacated by this court in a previous appeal as

excessive. The trial court then resentenced Mr. Davis to 7 years at hard

labor, with 2.5 of those years suspended. Mr. Davis now appeals his new

sentence, arguing that it is effectively the same as the one originally

imposed. For the following reasons, we affirm.

FACTS

On October 24, 2022, the DeSoto Parish district attorney charged Mr.

Davis with indecent behavior with a juvenile by improper communication in

violation of La. R.S. 14:81(A)(2). Specifically, the state alleged that, on or

about July 11, 2022, Mr. Davis transmitted, delivered, or uttered textual,

visual, written, or oral communication depicting lewd or lascivious conduct,

text, words, or images to a person reasonably believed to be under the age of

17 and at least 2 years younger than the offender, K.G., d/o/b 3/13/2007,

with the intention of arousing or gratifying the sexual desires of either

person.

On November 9, 2022, Mr. Davis entered a plea of not guilty after

waiving formal arraignment. On April 18, 2023, Mr. Davis entered a guilty

plea after he was advised of his right to a jury trial, his right to confront the

witnesses against him, and his Fifth Amendment rights. A presentence

investigation (“PSI”) report was ordered, and a sentencing hearing was held

on August 21, 2023.

At the hearing, the trial court considered the facts that: Mr. Davis had

“known the victim of the offense from the time she was a very young child”;

he was “friends with the victim’s parents”; the two families were

“neighbors”; and Mr. Davis’s daughter was “a friend of the victim and close

in age to the victim.” The trial court then determined that Mr. Davis had

“used his status as a safe adult to gain access to and victimize the juvenile.”

The trial court sentenced Davis to 7 years’ imprisonment at hard labor with

credit for time served and ordered him to register as a sex offender for a

minimum of 15 years upon his release, as well as to complete an approved

sex offender program.

After the trial court denied Mr. Davis’s motion to reconsider the

sentence, he appealed to this court on September 14, 2023. On August 28,

2024, this court vacated Mr. Davis’s sentence and remanded the matter for

resentencing, finding “that the trial court abused its wide discretion in

sentencing the defendant to seven years’ imprisonment, the maximum

punishment allowed for this particular offense.” State v. Davis, 55,792 (La.

App. 2 Cir. 8/28/24), 399 So. 3d 758.

On October 17, 2024, the trial court sentenced Mr. Davis to 7 years of

imprisonment at hard labor, the maximum sentence, with 2.5 years

suspended, to be followed by 5 years of supervised probation. He then filed

a motion to reconsider the sentence, which the trial court denied.

Mr. Davis now appeals.

DISCUSSION

Sentencing Exposure

Mr. Davis argues that the trial court erred by imposing effectively the

same sentence on remand as its original sentence that was vacated by this
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court on appeal as excessive. He points to several cases which stand for the

proposition that a defendant’s sentence consists of his overall sentencing

exposure including the period of confinement and that portion of the

sentence which has been suspended. In essence, Mr. Davis’s argument is

that the mere suspension of part of his sentence did not lower his overall

sentencing exposure, which the trial court was ordered to do on remand.

The state argues that the new sentence imposed by the trial court is

essentially a 4.5-year sentence when the suspended portion of the sentence is

considered. The state claims that the new sentence represents a significant

decrease from the original seven-year maximum sentence, and “shows the

trial court’s understanding the max sentence is reserved for the worst of the

worst offenders.” The state asserts that the new 4.5 year sentence “conveys

the seriousness of the crime without excessively punishing the defendant

with a maximum sentence.”

A court may suspend a sentence if it determines that not doing so

would render the sentence constitutionally excessive. State v. Martin, 01-

1767 (La. App. 4 Cir. 11/24/99), 747 So. 2d 1232; see also State v. Fobbs,

99-1024 (La. 9/24/99), 744 So. 2d 1274 (holding that La. Const. art. 1, § 20

provides the basis for extending the court’s control over the entire

sentencing process). (Emphasis added.)

In State v. Toussaint, 25-513 (La. App. 3 Cir. 12/4/24), 408 So. 3d

615, a case heavily relied on by Mr. Davis, the defendant entered into a

negotiated guilty plea to second-degree cruelty to a juvenile and was

sentenced to 12 years of imprisonment at hard labor, with 5 years suspended,

and 3 years of supervised probation after incarceration, despite an agreed-

upon sentencing cap of 10 years in a written plea agreement. On appeal, the
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third circuit held that because revocation of probation would result in the

defendant serving 12 years’ imprisonment at hard labor, the ten-year

sentencing cap agreed to by the state and the defendant was exceeded and

the plea agreement breached.

These facts are simply not present here. In this case, there was no

sentencing cap agreed to by the parties that could potentially be breached if

Mr. Davis failed to follow the terms of his probation. Rather, the trial judge

lessened the harshness of Mr. Davis’s sentence by 2.5 years in making that

portion of the sentence suspended, meaning Mr. Davis will not be

incarcerated during that time so long as he follows the conditions of his

probation.

Mr. Davis argues that the suspension of a sentence should carry no

weight in determining whether a sentence is excessive. This argument lacks

merit. Consider, for example, defendant A is given a 40-year hard labor

suspended sentence for a manslaughter conviction (maximum sentence

being 40 years at hard labor) and defendant B is given 10 years at hard labor

for manslaughter. Using the logic of Mr. Davis’s argument, defendant A’s

sentence is more harsh, even though he is not subject to incarceration (good

behavior presumed), while defendant B will serve hard jail time for 10 years.

Defendant B will obviously take issue with such flawed reasoning. So do

we.

In other words, Mr. Davis’s complaint that the trial court effectively

reimposed the same restraint on his liberty (seven years) that this court had

already held was excessive ignores the function of a suspended sentence,

which is to allow a defendant freedom from incarceration subject to the

requirement that he fulfill the requirements of his probation.
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If Mr. Davis had received a sentence of seven years with the entirety

of the sentence suspended, any complaint of excessiveness would ring

especially hollow because of the leniency shown in suspending the sentence.

Suspending a sentence or a portion of a sentence is one of the tools at a trial

court’s disposal in lessening the severity of a sentence. The logic of Mr.

Davis’s argument would have us remove that tool. We decline to do so.

In our view, the trial court showed leniency on remand and complied

with this court’s directive to lessen the seven-year sentence by suspending a

portion of the sentence. To hold otherwise would make a suspended

sentence of no effect in determining whether a sentence was excessive.

Accordingly, the trial court did not abuse its wide discretion in resentencing

Mr. Davis to 7 years with 2.5 of those years suspended.

Excessive Sentence

Next, Mr. Davis argues that his sentence was excessive. He notes that

he had no prior felony convictions, had a history of employment, was the

primary financial provider for his family, had five daughters and

stepdaughters, had acknowledged his responsibility in this matter, and had

started treatment to address his conduct underlying this matter. Mr. Davis

also points out that he had been compliant for nearly one year with the

conditions of his bond, had behaved in an exemplary manner in prison, had

lost time and relationships with his family, and had release plans in place.

Mr. Davis further notes that in 14 separate support letters, he was described

by family, friends, and his employer as a good and involved father, a good

friend, a good person, a successful professional and a good family provider.

Mr. Davis claims that maximum sentences are typically reserved for the

“worst of the worst” offenders, and he does not fit that mold. He
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acknowledges that his conduct was wrong and unacceptable but asserts that

it was not deserving of the maximum sentence.

The state argues that Mr. Davis’s sentence was not excessive. In

support, it points to State v. Haltom, 45,460 (La. App. 2 Cir. 8/11/10), 46 So.

3d 708, wherein the defendant pled guilty to indecent behavior with a

juvenile. This court held that the maximum sentence of seven years at hard

labor, with all but five and one-half years suspended, was not

constitutionally excessive.

The state avers that this case is in line with Mr. Davis’s sentence of

seven years at hard labor, with 2.5 years suspended, to be followed by 5

years of supervised probation. The state claims that that Mr. Davis “has

made no showing that his claim of excessiveness merits consideration” by

this court.

In reviewing a sentence for excessiveness, an appellate court uses a

two-step process. First, the record must show that the trial court took

cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The

articulation of a factual basis for a sentence is the goal of article 894.1, not

rigid or mechanical compliance with its provisions. State v. Bell, 53,712

(La. App. 2 Cir. 1/13/21), 310 So. 3d 307; State v. Kelly, 52,731 (La. App. 2

Cir. 6/26/19), 277 So. 3d 855, writ denied, 19-01845 (La. 6/3/20), 296 So.

3d 1071.

The trial court is not required to list every aggravating or mitigating

circumstance so long as the record reflects that it adequately considered the

guidelines of La. C. Cr. P. art. 894.1. State v. Smith, 433 So. 2d 688 (La.

1983); State v. Gant, 54,837 (La. App. 2 Cir. 1/11/23), 354 So. 3d 824. The

important elements which should be considered are the defendant’s personal
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history (age, family ties, marital status, health, employment record), prior

criminal record, seriousness of the offense, and the likelihood of

rehabilitation. State v. Jones, 398 So. 2d 1049 (La. 1981); State v. Gant,

supra; State v. Bell, supra; State v. Thompson, 50,392 (La. App. 2 Cir.

2/24/16), 189 So. 3d 1139, writ denied, 16-0535 (La. 3/31/17), 217 So. 3d

358. There is no requirement that specific matters be given any particular

weight at sentencing. State v. Lathan, 41,855 (La. App. 2 Cir. 2/28/07), 953

So. 2d 890, writ denied, 07-0805 (La. 3/28/08), 978 So. 2d 297.

Second, the court must determine whether the sentence is

constitutionally excessive. A sentence violates La. Const. art. I, § 20, if it is

grossly out of proportion to the severity of the crime or nothing more than a

purposeless and needless infliction of pain and suffering. State v. Dorthey,

623 So. 2d 1276 (La. 1993). A sentence is considered grossly

disproportionate if, when the crime and punishment are viewed in light of

the harm done to society, it shocks the sense of justice. State v. Weaver, 01-

0467 (La. 1/15/02), 805 So. 2d 166; State v. Bell, supra.

The trial court has wide discretion in the imposition of sentences

within the statutory limits and such sentences should not be set aside as

excessive in the absence of a manifest abuse of that discretion. State v.

Williams, 03-3514 (La. 12/13/04), 893 So. 2d 7; State v. Gant, supra; State

v. Bell, supra. A trial judge is in the best position to consider the

aggravating and mitigating circumstances of a particular case and, therefore,

is given broad discretion in sentencing. State v. Allen, 49,642 (La. App. 2

Cir. 2/26/15), 162 So. 3d 519, writ denied, 15-0608 (La. 1/25/16), 184 So.

3d 1289. On review, the appellate court does not determine whether another

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sentence may have been more appropriate, but whether the trial court abused

its discretion. State v. Gant, supra; State v. Bell, supra.

For the reasons already expressed above, we do not find that Mr.

Davis’s sentence was excessive because the trial court showed leniency in

suspending a portion of the sentence. While Mr. Davis appears to have

behaved in an exemplary manner in prison, the fact remains that he sent a

photograph of his penis to a juvenile which has caused long-term damage to

both the victim and her family. Additionally, rather than accepting

responsibility, Mr. Davis initially blamed his victim for initiating the

contact, flirting, and “having a crush” on him. Moreover, it appears that

sharing the explicit photograph was not his aim. Rather, Mr. Davis’s

ultimate goal was to commit a more heinous crime.

Given the facts at hand, a 4.5-year hard-labor sentence with 2.5 years

of probation does not shock our sense of justice such that we would consider

it an excessive sentence. Rather, the record demonstrates that the trial court

adequately articulated the factual basis for the imposition of this sentence,

which is neither grossly disproportionate to the severity of the offense

committed nor an abuse of the trial court’s discretion. Thus, we cannot say

the sentence is constitutionally excessive. The assignment of error lacks

merit.

CONCLUSION

For the reasons expressed, Mr. Davis’s sentence is affirmed.

AFFIRMED.

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