State of Louisiana v. Jessie J. Hicks

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

KA 07-726

STATE OF LOUISIANA

VERSUS

JESSIE J. HICKS

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APPEAL FROM THE
THIRTIETH JUDICIAL DISTRICT COURT
PARISH OF VERNON, NO. 71381
HONORABLE VERNON BRUCE CLARK, DISTRICT JUDGE

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BILLY HOWARD EZELL
JUDGE

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Court composed of Michael G. Sullivan, Glenn B. Gremillion, and Billy Howard
Ezell, Judges.

AFFIRMED.

William E. Tilley
District Attorney - Thirtieth Judicial District Court
P.O. Box 1188
Leesville, LA 71496-1188
(337) 239-2008
Counsel for Plaintiff/Appellee:
State of Louisiana

William Jarred Franklin
Louisiana Appellate Project
3001 Old Minden Road
Bossier City, LA 71112
(318) 746-7467
Counsel for Defendant/Appellant:
Jessie J. Hicks

EZELL, JUDGE.

The Defendant, Jessie J. Hicks, was charged by bill of information with the

felony offense of exploitation of the infirmed in violation of La.R.S. 14:93.4. On

January 31, 2007, the Defendant pled guilty to the lesser included offense of

attempted exploitation of the infirmed in violation of La.R.S. 14:27 and La.R.S.

14:93.4. As a part of the plea agreement, the State agreed to the lesser charge, to

recommend that the sentence run concurrently with that of a prior offense, and to not

habitualize the Defendant.

On April 24, 2007, the Defendant was sentenced to five years hard labor and

ordered to pay a fine of $1,500 plus court costs. The Defendant filed a motion to

reconsider sentence, and the district court denied this motion on May 17, 2007,

without a hearing or written reasons. On appeal, the Defendant seeks review of the

district court’s denial of his motion to reconsider sentence, alleging that the district

court failed to give adequate consideration to mitigating circumstances.

FACTS

On March 26, 2006, the Defendant cashed two checks on the account of his

grandmother, who was in a nursing home at the time. On June 7, 2006, he was

arrested and charged with exploitation of the infirmed. He later pled guilty to

attempted exploitation of the infirmed for the negotiating of a sixty-five-dollar check.

In his statement, the Defendant admitted to cashing another check for fifty-dollars.

ASSIGNMENT OF ERROR

The Defendant contends that the district court imposed a sentence that is

excessive for the particular offense and the particular offender. To support his

contention, the Defendant asserts that the district court failed to adequately consider

mitigating factors present in this case, as required by La.Code Crim.P. art. 894.1.

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The Defendant alleges several mitigating factors. First, the Defendant states

that he manifested no cruelty to the victim, nor did he create a risk of death or great

bodily harm to anyone. Second, the Defendant asserts that although he received

economic benefit, it was a minimal benefit. Third, he points out that his prior record

involved non-violent crimes and his conduct in the present case caused no serious

harm. Lastly, the Defendant argues that he acted under the impression that his father,

who wrote and signed the checks, had legal authority to do so, i.e., power of attorney.

This court has set forth the following 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
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).

State v. Barling, 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035,

1042-43, writ denied, 01-838 (La. 2/1/02), 808 So.2d 331 (alteration in original). See

also State v. Sigue, 06-527 (La.App. 3 Cir. 9/27/06), 940 So.2d 812, writ denied, 06-

2963 (La. 9/28/07), 964 So.2d 354.

In order to decide whether a sentence shocks the sense of justice or makes no

meaningful contribution to acceptable penal goals, this court has held:

[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

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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.

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

03-562 (La. 5/30/03), 845 So.2d 1061.

Contrary to the Defendant’s assertion that the trial court failed to give adequate

consideration to mitigating factors, the record indicates the trial court considered

various factors as required by La.Code Crim.P. art. 894.1. At the sentencing hearing

for the Defendant, the trial court stated the following:

THE COURT:

All right. All right, I looked at the factors of Article 894.1 of the
Code of Criminal Procedure and found the following were applicable.
First, there was economic harm caused to the victim. There were no
substantial grounds which would tend to excuse this defendant’s
criminal conduct nor did he act under provocation from anyone. He’s
twenty-three years old. He’s single. He does not have any children. He
is in good health. He has employment - has had employment in the past
and worked primarily as a laborer. He has an eighth grade education
and has not obtained a GED. He does have a history of drug use,
primarily marijuana, amphetamines and methamphetamines and he has
not received any treatment in the past. He’s classified as a technical
second felony offender in that his record indicates that on June 20th,
2005 in the Eleventh Judicial District Court he was convicted of
attempted possession of a Schedule II drug, received a two-year
department of correction sentence and two years supervised probation.
However, his probation was revoked February 15th, 2007 due to new
convictions. On October the 4th, 2006 in the 30th Judicial District
Court, he was convicted of unauthorized entry of an inhabited dwelling
and received a three-year Department of Correction sentence which was
concurrent - made to run concurrent with others . . .

This court stated, in discussing review of sentences, in State v. Williams, 02-

707, pp. 8-9 (La.App. 3 Cir. 3/5/03), 839 So.2d 1095, 1100-01:

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The trial court must state for the record the considerations taken
into account and the factual basis for the sentence. La.Code Crim.P. art.
894.1(C). Although the trial court need not refer to every factor listed
in Article 894.1(A), the record should affirmatively reflect that adequate
consideration was given to codal guidelines in particularizing the
defendant’s sentence. State v. Iron, 00-1238 (La.App. 3 Cir. 2/15/01);
780 So.2d 1123, writ denied, 01-1232 (La.3/15/02); 811 So.2d 898.
Yet, when the trial court fails to adequately address the factors of
La.Code Crim.P. art. 894.1, “the trial court’s reasoning alone will not
necessitate the need for re-sentencing as long as an adequate factual
basis is found within the record.” State v. Butler, 98-1258, p. 7 (La.App.
3 Cir. 2/3/99); 734 So.2d 680, 684.

In accordance with factors set forth in State v. Smith, 99-606, 99-2015, 99-

2019, 99-2094 (La. 7/6/00), 766 So.2d 501, the trial court noted that the Defendant

took advantage of his elderly grandmother to obtain an economic benefit. Moreover,

the court considered the Defendant’s criminal history, which includes two prior

felonies and a history of drug abuse.

This court further stated in Williams, 839 So.2d at 1101:

The trial court may also consider other factors not provided by
La.Code Crim.P. art. 894.1. Specifically, when the offense to which the
defendant has pled guilty inadequately describes the entire course of the
defendant's conduct, the court may consider the benefit obtained by the
defendant through the plea bargain. State v. Lanclos, 419 So.2d 475
(La.1982). The trial court should particularly make such considerations
where the plea bargain results in a significant reduction in the
defendant’s potential exposure to imprisonment. State v. Robinson,
33,921 (La.App. 2 Cir. 11/1/00); 770 So.2d 868; State v. Waguespack,
589 So.2d 1079 (La.App. 1 Cir.1991), writ denied, 596 So.2d 209
(La.1992). In addition, the trial court may consider other criminal
activity which did not result in a conviction. State v. Texada, 98-1647
(La.App. 3 Cir. 5/5/99); 734 So.2d 854, writ denied, 00-2751
(La.6/29/01); 794 So.2d 824.

At the time of entry of the Defendant’s plea, and when he was advised of the

maximum penalty, the Defendant decided that the benefits to him in accepting the

plea outweighed any disadvantages. Originally, the Defendant was charged with one

count of exploitation of the infirmed, a violation of La.R.S. 14:93.4. Under La.R.S.

14:93.4, the Defendant could have received a sentence of up to ten years

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imprisonment in addition to a fine of up to ten thousand dollars. Through a plea

bargain agreement, the Defendant pled guilty to the lesser charge of attempted

exploitation of the infirmed, and the State agreed to not habitualize the Defendant.

Also, the State agreed to recommend a concurrent sentence, which the trial court

followed. Therefore, the Defendant dramatically decreased his sentencing exposure

through his plea bargain agreement.

It is clear that all factors to be applied under La.Code Crim.P. art. 894.1 do not

have to be recited here. The trial court stated sufficient reasons for imposition of the

sentence. We find that in light of the Defendant’s criminal history and the substantial

benefit he received from the plea bargain agreement, the five-year sentence and

$1,500 fine are not excessive.

CONCLUSION

The sentence is affirmed.

AFFIRMED.

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