State of Louisiana v. J. G.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

06-541

STATE OF LOUISIANA

VERSUS

J. G.

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 19593-03
HONORABLE DAVID A. RITCHIE, DISTRICT JUDGE

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MARC T. AMY
JUDGE

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

AFFIRMED.

John F. DeRosier
District Attorney
Carla Sue Sigler
Assistant District Attorney
Post Office Box 3206
Lake Charles, LA 70602-3206
(337) 437-3400
COUNSEL FOR APPELLEE:
State of Louisiana

Mary Constance Hanes
Louisiana Appellate Project
Post Office Box 4015
New Orleans, LA 70178-4015
(504) 866-6652
COUNSEL FOR DEFENDANT/APPELLANT:
J. G.

AMY, Judge.

According to the factual basis supplied by the State at the defendant’s guilty

plea hearing, “[b]etween December 1st of 2002 and January 31st of 2003, [J.G.]1 had

sexual intercourse with a female juvenile having a date of birth of April 6th, 1990

which made her approximately 12. She was his sister.” On October 10, 2003, the

grand jury indicted the defendant on the charge of forcible rape, a violation of La.R.S.

14:42.1. Pursuant to a guilty plea agreement, the charge was amended from forcible

rape to sexual battery. The defendant entered a “best interest” plea pursuant to North

Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160 (1970).

On February 15, 2006, the trial court sentenced the defendant to ten years at

hard labor to be served without benefit of probation, parole, or suspension of

sentence. The trial court denied the defendant’s motion for reconsideration of

sentence. The defendant now appeals, arguing that his sentence is excessive. For the

following reasons, we affirm.

Discussion

Errors Patent

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for

errors patent on the face of the record. After reviewing the record, we find no errors

patent.

Excessive Sentence

In his sole assignment of error, the defendant contends that “[t]he ten-year

sentence for sexual battery is excessive under the circumstances of the case.” He

argues that the trial court “made only a cursory examination of [his] background” and

1
Pursuant to La.R.S. 46:1844(W), the defendant’s initials have been used to protect the
identity of the victim.

failed to consider “the fact that he comes from an obviously dysfunctional family.”

Further, the defendant alleges that “the trial court never explained why it considers

[him] the most egregious of offenders as to warrant the maximum sentence for sexual

battery.”

In State v. Staton, 05-612, p. 8 (La.App. 3 Cir. 2/1/06), 922 So.2d1216, 1221

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

So.2d 1035, 1042-43, writ denied, 01-0838 (La. 2/1/02), 808 So.2d 331), this court

articulated the standard for 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).

At the sentencing hearing, the trial court stated that the defendant was a third

felony offender2 and had previously pled guilty to sexual battery in 2001. The trial

court explained:

But, look, because of your prior sex offense and because of the nature
of this crime, you could have actually been looking at life imprisonment
or at least a minimum -- if you’d have been multiple offender billed,
even on the forcible rape you’d have been looking at a minimum of 20
years and a maximum of 80, or actually since it’s -- you would be a third

2
Because the defendant was under the impression that he was a second felony offender, the
trial court explained that he pled guilty to simply burglary in 1998, pled guilty to sexual battery in
2001, and was pleading guilty to the present charge of sexual battery.

2

offender, you’d actually be looking at probably life on the multiple
offender bill considering your -- the charges that you have and the
current charge you have now, you’d probably -- it would either be
probably 30 years to 80, or life, or somewhere along those lines.

....

And I just -- I don’t see -- I think to sentence you to anything less
than ten years would deprecate the seriousness of the offense, in light of
your criminal history and in light of the facts that were alleged here.

....

I think the only appropriate sentence in this matter is a ten-year
sentence, because I think you -- you were fortunate to get that reduction
to the sexual battery.

We find unpersuasive the defendant’s argument that the trial court only made

a cursory examination of his background and that it failed to consider the fact that he

comes from a dysfunctional family. The record indicates that a presentence

investigation report was completed, which according to La.Code Crim.P. art.

875(A)(1) includes an inquiry “into the circumstances attending the commission of

the offense, the defendant’s history of delinquency or criminality, his family situation

and background, economic and employment status, education, and personal habits.”

At the sentencing hearing, the trial court stated that it reviewed the report. The

trial court did not state for the record the defendant’s personal and family history;

however, there is no indication that the trial court failed to consider the information.

Rather, the reasons reflect the trial court’s concern with the circumstances of the

offense. In State v. Roberts, 01-0154 (La.App. 3 Cir. 10/3/01), 796 So.2d 779, writ

denied, 01-2974 (La. 9/20/02), 825 So.2d 1163, a panel of this court reaffirmed that

the sentencing court need not articulate consideration of every circumstance in order

to comply with La.Code Crim.P. art. 894.1. Additionally, the defendant failed to

present any information regarding his personal and family history for the record.

3

Under La.R.S. 14:43.1(C), a conviction for sexual battery carries a sentence

of “imprisonment, with or without hard labor, without benefit of parole, probation,

or suspension of sentence, for not more than ten years.” Here, the trial court

sentenced the defendant to the maximum term allowed by statute. Given the

circumstances present in the record, we find that the trial court did not abuse its

discretion in imposing the maximum sentence. See State v. Runyon, 05-36, (La.App.

3 Cir. 11/2/05), 916 So.2d 407. The victim was the defendant’s twelve-year-old sister.

Furthermore, this was the defendant’s second sexual offense.

We note that the State did not file a multiple offender bill, which would have

exposed the defendant to a longer sentence. See La.R.S. 15:529.1. Further, the State

entered into a plea agreement with the defendant, whereby he was allowed to plead

guilty to sexual battery. The defendant was initially indicted on forcible rape, which

carried a maximum sentence of forty years in prison. Given these circumstances, we

find that the defendant’s sentence is not excessive.

This argument lacks merit.

DECREE

For the foregoing reasons, the defendant’s sentence is affirmed.

AFFIRMED.

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