State of Louisiana v. Carl W. Brister

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

06-884

STATE OF LOUISIANA

VERSUS

CARL W. BRISTER

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APPEAL FROM THE
THIRTY-SIXTH JUDICIAL DISTRICT COURT
PARISH OF BEAUREGARD, NO. CR333-05
HONORABLE HERMAN I. STEWART, JR., DISTRICT JUDGE

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MARC T. AMY
JUDGE

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Court composed of Sylvia R. Cooks, Marc T. Amy, and James T. Genovese, Judges.

AFFIRMED AS AMENDED; REMANDED WITH INSTRUCTIONS.

David W. Burton
District Attorney
Richard Alan Morton
Assistant District Attorney
Post Office Box 99
DeRidder, LA 70634
(337) 463-5578
COUNSEL FOR APPELLEE:
State of Louisiana

W. Jarred Franklin
Louisiana Appellate Project
3001 Old Minden Road
Bossier City, LA 71112
(318) 746-7467
COUNSEL FOR DEFENDANT/APPELLANT:
Carl W. Brister

AMY, Judge.

The defendant, an adult, was charged by bill of information with two counts

of felony carnal knowledge of a juvenile in violation of La.R.S. 14:80 for having

sexual intercourse with a fifteen year-old female. Pursuant to a plea agreement, the

defendant pled guilty to one count of felony carnal knowledge of a juvenile. The

second count was dismissed. The defendant was sentenced to five years at hard labor

with credit for time served. This sentence was ordered to run concurrently with any

other sentences the defendant was subject to at the time of arrest. In addition, the

defendant was ordered to pay a $1,000.00 fine plus court costs. He was also ordered

to register as a sex offender pursuant to La.R.S. 15:542. The defendant filed a motion

to reconsider the sentence, which the trial court denied. He now appeals, alleging that

his sentence is excessive and that the trial court did not adequately consider certain

mitigating factors. For the following reasons, we affirm as amended and remand with

instructions.

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 one error

patent in need of correction.

Pursuant to La.R.S. 15:537(A), a person convicted of or who pleads guilty to

a sex offense, including felony carnal knowledge of a juvenile, “shall not be eligible

for diminution of sentence for good behavior.” Here, the trial court failed to deny the

defendant diminution eligibility under the statute. In State v. S.D.G., 06-174, p. 5

(La.App. 3 Cir. 5/31/06), 931 So.2d 1244, 1247 (citing State v. G.M.W., Jr., 05-391,

p. 2 (La.App. 3 Cir. 11/2/05), 916 So.2d 460, 461), this court stated:

We note that the second paragraph of La.R.S. 15:537 is clearly directed
to the sentencing court, and the trial court’s failure to include a denial
of diminution of sentence thereunder renders Defendant’s sentences
illegally lenient. Pursuant to State v. Williams, 00-1725 (La.11/28/01),
800 So.2d 790 and La.Code Crim.P. art. 882, this court is authorized to
recognize and correct illegally lenient sentences.

Here, the defendant’s sentence is illegally lenient in that the trial court failed

to deny diminution of sentence. Thus, we amend his sentence to reflect that he is not

eligible for diminution of sentence pursuant to La.R.S. 15:537. The trial court is

instructed to note the amendment in the court minutes.

Excessive Sentence

The defendant argues that the “sentence imposed is excessive for this offender

and this offense.”

At his sentencing hearing, the defendant orally motioned the court to reconsider

his sentence. He asserted that he was being sentenced more severely than his co-

defendant who was sentenced to five years probation. This motion was denied.

Thereafter, the defendant filed a written motion to reconsider sentence, in which he

asserted that “[t]he sentence imposed is excessive.” That motion was also denied.

Louisiana Revised Statutes 14:80 provides in pertinent part:

D. Whoever commits the crime of felony carnal knowledge of a
juvenile shall be fined not more than five thousand dollars, or
imprisoned, with or without hard labor, for not more than ten years, or
both, provided that the defendant shall not be eligible to have his
conviction set aside or his prosecution dismissed in accordance with the
provisions of Code of Criminal Procedure Article 893.

In 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

explained the standard to be used in 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

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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).

In State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789,

writ denied, 03-0562 (La. 5/30/03), 845 So.2d 1061, this court stated:

In deciding whether a sentence is shocking or makes no
meaningful contribution to acceptable penal goals, an appellate court
may consider several factors including the nature of the offense, the
circumstances of the offender, the legislative purpose behind the
punishment and a comparison of the sentences imposed for similar
crimes. State v. Smith, 99-0606 (La.7/6/00); 766 So.2d 501. While a
comparison of sentences imposed for similar crimes may provide some
insight, “it is well settled that sentences must be individualized to the
particular offender and to the particular offense committed.” State v.
Batiste, 594 So.2d 1 (La.App. 1 Cir.1991). Additionally, it is within the
purview of the trial court to particularize the sentence because the trial
judge “remains in the best position to assess the aggravating and
mitigating circumstances presented by each case.” State v. Cook,
95-2784 (La.5/31/96); 674 So.2d 957, 958.

In sentencing the defendant, the trial court explained:

Although you have no prior felony convictions, you have had a
very -- you have very substantial contacts with law enforcement
agencies, including several arrests and misdemeanor convictions. You
are now 25 years of age and during the last eight years have been
arrested at least eight times. You have been convicted of DWI,
possession of marijuana, simple battery, driving under suspension and
attempted theft. The charge of attempted theft was a result of a looting
charge being reduced.

Considering your foregoing criminal record, the Court does not
consider you to be a good candidate for probation. In arriving at your

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sentence, I have taken into consideration all of the provisions of the
Code of Criminal Procedure 894.1.

Accordingly, it is the sentence of the Court that you serve five
years with the Department of Corrections at hard labor.

After reviewing the record, we do not find that the defendant’s sentence was

excessive. The presentencing investigation report revealed a number of arrests and

misdemeanor convictions. We note that the defendant was sentenced to half of the

statutory maximum for this offense. Furthermore, pursuant to a plea agreement

entered into with the State, the defendant was allowed to plead guilty to one count of

felony carnal knowledge of a juvenile with the other count being dismissed. Had he

not pled guilty, the defendant potentially faced two sentences that each carried a

maximum sentence of ten years.

Additionally, in determining whether the defendant’s sentence is excessive, we

give no consideration to the sentence received by his co-defendant insofar as “a

sentence must be individualized as to each defendant.” State v. Lofton, 97-383, p. 5

(La.App. 3 Cir. 10/8/97), 701 So.2d 712, 715, writ denied, 98-0389 (La. 6/5/98), 720

So.2d 679. As such, we find that the trial court did not abuse its discretion in

imposing the defendant’s sentence.

This assignment has no merit.

Mitigating Factors

The defendant argues that the “Trial Court failed to adequately consider the

mitigating factors listed in La.Code Crim.P. art. 894.1 in imposing a sentence[.]”

After reviewing the record, we note that the defendant did not raise this issue

at his sentencing hearing or in his written motion to reconsider the sentence. Pursuant

to La.Code Crim.P art. 881(E), his failure to “include a specific ground upon which

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a motion to reconsider sentence may be based, including a claim for excessiveness,

shall preclude . . . the defendant from raising an objection to the sentence or from

urging any ground not raised in the motion on appeal or review.” See State v. Evans,

27,183 (La.App. 2 Cir. 9/27/95), 661 So.2d 600 (because the defendant did not

mention mitigating factors at his sentencing hearing or in his motion for

reconsideration of sentence, he was precluded from asserting those issues on appeal).

Likewise, we find that the defendant cannot raise this issue for the first time on

appeal.

This assignment is without merit.

DECREE

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

defendant’s sentence is amended to reflect that diminution eligibility is denied

pursuant to La.R.S. 15:337. This matter is remanded to the trial court with

instructions to make a notation in the minutes reflecting the amendment.

AFFIRMED AS AMENDED; REMANDED WITH INSTRUCTIONS.

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