State of Louisiana v. Charles Joseph Stevens

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

07-976

STATE OF LOUISIANA

VERSUS

CHARLES JOSEPH STEVENS

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APPEAL FROM THE
SIXTEENTH JUDICIAL DISTRICT COURT
PARISH OF IBERIA, DOCKET NO. 06-1933
HONORABLE GERARD B. WATTIGNY, DISTRICT JUDGE

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JAMES T. GENOVESE
JUDGE

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Court composed of Billy H. Ezell, J. David Painter, and James T. Genovese, Judges.

AFFIRMED AND REMANDED
WITH INSTRUCTIONS.

Mark O. Foster
Louisiana Appellate Project
Post Office Box 2057
Natchitoches, Louisiana 71457
(318) 572-5693
COUNSEL FOR DEFENDANT/APPELLANT:
Charles Joseph Stevens

J. Phil Haney
District Attorney - Sixteenth Judicial District
ADA Jeffrey J. Trosclair
St. Mary Parish Courthouse, 5th Floor
Franklin, Louisiana 70538
(337) 828-4100, EXT. 550
COUNSEL FOR APPELLEE:
State of Louisiana

GENOVESE, Judge.

On November 14, 2006, the Defendant, Charles Joseph Stevens, was charged

by bill of information with one count of communication of false information of

planned arson, a violation of La.R.S. 14:54.1, and with one count of aggravated

assault, a violation of La. R.S. 14:37. On April 26, 2007, a jury trial was held on

count one, a felony charge, while count two, a misdemeanor charge, was presented

to the trial court for bench trial. The Defendant was subsequently found guilty on

both the felony and misdemeanor charges.

On May 22, 2007, the Defendant was sentenced to eight years at hard labor on

the felony conviction of communication of false information of planned arson, with

credit for time served, and six months in the parish jail on the misdemeanor

conviction of aggravated assault, to run concurrently with each other, but

consecutively to all other sentences. On June 7, 2007, the Defendant filed a motion

to reconsider the sentence imposed for his felony conviction of false communication

of planned arson. The motion was summarily denied on June 11, 2007. The

Defendant is now before this court on appeal, asserting that the evidence was

insufficient to convict him of false communication of planned arson and that his

eight-year sentence for same is excessive. We affirm the Defendant’s conviction and

sentence.

FACTS

On October 2, 2006, the Defendant engaged in a verbal altercation with his

girlfriend, Cheryl Thibodeaux (Cheryl), while at the home of Rita G. Williams (Rita).

Rita asked the Defendant to leave, and he refused to do so and pushed Rita to the

side. Next, Cheryl raised a hammer as if she was going to hit the Defendant. The

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Defendant then took the hammer from her and threw it, striking her in the ankle area.

When Rita picked up the phone to call the police, the Defendant exited the home.

Before leaving on his bicycle, the Defendant threatened to return to the home, nail the

door shut, and set the home on fire with Cheryl, Rita, and Rita’s two young children

inside. Upon the arrival of the police, Rita reported the incident. The Defendant was

later located, arrested, and charged as set forth above.

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 note that there

is an error patent, an error in the court minutes, and one procedural issue that must be

addressed.

In this case, there was a misjoinder of offenses in the bill of information. In a

single bill of information, the State charged the Defendant with a felony,

communication of false information of planned arson, and a misdemeanor, aggravated

assault. Louisiana Code of Criminal Procedure Article 493 provides for the joinder

of offenses in a single bill of information under limited circumstances, if the offenses

joined are triable by the same mode of trial. The misdemeanor offense of aggravated

assault is triable by a judge only; whereas, the felony offense of communication of

false information of planned arson is triable by a jury. See La.R.S. 14:37, 14:54.1,

and La.Code Crim.P. arts. 779 and 782. Because the Defendant was entitled to a jury

trial for the felony charge and was not entitled to a jury trial on the misdemeanor

charge, the offenses were not triable by the same mode of trial and should not have

been charged in the same bill of information. See La.Code Crim.P. art. 493.

However, because the Defendant failed to file a motion to quash the bill of

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information based on the misjoinder, he waived any objection to the error. See

La.Code Crim.P. art. 495 and State v. Mallett, 357 So.2d 1105 (La.1978), cert.

denied, 439 U.S. 1074, 99 S.Ct. 848 (1979). Accordingly, we find the issue of

misjoinder to have been waived.

Next, we note that since the aggravated assault charge was not triable by a jury,

the proper mode of appellate review for that offense is an application for writ of

review rather than an appeal. See La.Code Crim.P. art. 912.1. In State v. Turner, 04-

1250 (La.App. 3 Cir. 3/2/05), 896 So.2d 286, writ denied, 05-871 (La. 12/12/05), 917

So.2d 1084, this court severed a misdemeanor conviction for possession of marijuana

from the defendant’s appeal of two felony convictions. This court ordered the

“defendant to file a writ of review regarding the possession of marijuana conviction

in compliance with the Rules of Court.” Id. at 289. In Turner, the court noted that

the defendant did not make any specific arguments regarding the misdemeanor

conviction. This court considered the notice of appeal as a notice to file a writ of

review within thirty days of its opinion, if the defendant desired to seek review of his

misdemeanor conviction.

As in Turner, the Defendant has not raised any assignment of error regarding

his misdemeanor conviction. Therefore, as was done by this court in Turner, we

sever the misdemeanor conviction from the appeal and order the Defendant to file a

writ of review regarding the misdemeanor conviction in compliance with the Uniform

Rules of Court, should he so desire.

Additionally, the minutes of sentencing contain an error. The minutes of

sentencing state in pertinent part:

The court sentenced the defendant in [sic] the charge of
communication of False Information of a Planned Arson to serve eight

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(8) years at hard labor, with credit for time served. The defense
requested to make these sentences concurrent. The court denied this
motion. The Court sentenced the defendant in [sic] the charge of
Aggravated Assault to serve six (6) months in the parish jail to run
concurrent with the Communication of False Information of a Planned
Arson and consecutive with each other.

The transcript of sentencing provides in pertinent part: “For those reasons, the court

sentences Mr. Stevens to serve eight years at hard labor. . . No, it’s consecutive. On

the other matter, I sentence him to serve six months in the parish jail. The sentence

is concurrent with the sentence for the false information but consecutive to all other

sentences.” (Emphasis added). Therefore, we remand the case to the district court

with instructions to amend the minutes of sentencing to correctly reflect the transcript

of sentencing.

ASSIGNMENTS OF ERROR

The Defendant presents two assignments of error:

1. The evidence was insufficient to support a conviction for
communication of false information of a planned arson in
violation of La. R.S. 14:54.1.

2. The sentence imposed by the trial court was cruel, unusual,
and excessive in violation of Article I, §20 of the Louisiana
Constitution of 1974.

Assignment of Error Number One

In this assignment of error, the Defendant argues that the evidence was

insufficient to support a conviction for communication of false information of a

planned arson. The analysis for a claim of insufficient evidence is well-settled:

When the issue of sufficiency of evidence is raised on appeal, the
critical inquiry of the reviewing court is whether, after viewing the
evidence in the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime proven
beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct.
2781, 61 L.Ed.2d 560, rehearing denied, 444 U.S. 890, 100 S.Ct. 195,
62 L.Ed.2d 126 (1979); State ex rel. Graffagnino v. King, 436 So.2d 559

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(La.1983); State v. Duncan, 420 So.2d 1105 (La.1982); State v. Moody,
393 So.2d 1212 (La.1981). It is the role of the fact finder to weigh the
respective credibility of the witnesses, and therefore, the appellate court
should not second guess the credibility determinations of the triers of
fact beyond the sufficiency evaluations under the Jackson standard of
review. See State ex rel. Graffagnino, 436 So.2d 559 (citing State v.
Richardson, 425 So.2d 1228 (La.1983)). In order for this Court to
affirm a conviction, however, the record must reflect that the state has
satisfied its burden of proving the elements of the crime beyond a
reasonable doubt.

State v. Kennerson, 96-1518, p. 5 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367, 1371.

The elements of the instant crime are set forth in La.R.S. 14:54.1 which reads,

in pertinent part:

A. Communicating of false information of arson or attempted
arson is the intentional impartation or conveyance, or causing the
impartation or conveyance by the use of the mail, telephone, telegraph,
word of mouth, or other means of communication, of any threat or false
information knowing the same to be false, including bomb threats or
threats involving fake explosive devices, concerning an attempt or
alleged attempt being made, or to be made, to commit either aggravated
or simple arson.

At trial, Rita testified that, on October 2, 2006, she was living in New Iberia,

Louisiana, with her two young boys. Cheryl and the Defendant, Rita’s cousin, were

staying with her at the time. That day, Rita got off work at 2:00 p.m. and walked

home with a friend. When she arrived at the end of her driveway, she could hear

Cheryl and the Defendant arguing. Rita stated that she called the police. When the

police arrived, they asked the Defendant to leave, and he left.

According to Rita, the Defendant returned to the home after the police left.

Rita asked the Defendant not to enter her home, but he did not comply and pushed her

to the side. Cheryl’s version of the story was somewhat different in that she stated

that the Defendant pushed Rita when she was trying to get him to calm down.

According to Cheryl, the Defendant arrived at the home intoxicated and was

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“fussing” with her for no reason. After Rita was pushed by the Defendant, Cheryl

grabbed a hammer and stated that she acted as if she was going to hit the Defendant

with the hammer, but did not follow through. Rita and Cheryl both testified that the

Defendant took the hammer from Cheryl and threw it at her, hitting her in the

ankle/foot area.

Rita testified that she continued to ask the Defendant to leave and threatened

to call the police again. The Defendant did not leave until she picked up the phone

and told him that the police were on the way. Next, Rita explained that the Defendant

went outside and then threatened to return after they went to sleep to nail the door

shut and to set the trailer on fire with Cheryl, Rita, and Rita’s two children trapped

inside. Cheryl testified that she also heard the Defendant threaten to return and burn

down the trailer with Cheryl, Rita, and Rita’s children inside. He then hopped on his

bike and rode away. Rita added that the police arrived a second time, and they later

returned with the Defendant in the police car. At trial, both Rita and Cheryl identified

the Defendant in the courtroom.

Deputy Robert Burns was scheduled to testify, but the parties agreed to

stipulate that Deputy Burns, if called to testify, would testify consistently with his

narrative report of the investigation. Deputy Burns indicated in his report that,

according to Rita, the Defendant had returned to her home after deputies had advised

him earlier that day to leave and not return. Rita advised Deputy Burns that the

Defendant started yelling at her and Cheryl. When she told him to leave, the

Defendant picked up a hammer and threw it at Cheryl, just missing her left foot. Rita

reported to Deputy Burns that she told the Defendant to leave and that, while he was

exiting the front door, the Defendant stated that he would be back later when they

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were sleeping, he would nail the door shut, and he would set the residence on fire

with everyone in it.

Deputy Burns indicated that he left the residence and canvassed the area

looking for the Defendant. Deputy Burns located the Defendant riding his bike and

stopped and questioned him. Next, after the Defendant was Mirandized1 and

expressed his understanding of same, the Defendant advised Deputy Burns that he did

not mean what he said to Rita and Cheryl and that it was “just talk.” Deputy Burns

reported a strong odor of alcoholic beverage on the Defendant’s breath and person.

At that point, the Defendant was taken into custody, transported to jail, and charged

accordingly.

In his brief to this court, the Defendant asserts that the State offered little or no

evidence to prove beyond a reasonable doubt that the threat was not true. The

Defendant adds that if there is any reasonable possibility that the statement was true,

then the conviction fails. In support of his argument, the Defendant refers this court

to State v. McKeel, 452 So.2d 1171 (La.1984). In McKeel, the defendant had pled

guilty to simple arson of a business and received a three year suspended sentence, five

years probation, and a $3,000.00 fine. While on probation from the arson conviction,

the defendant entered the same business which was being repaired at the time and told

a carpenter that he was going to burn the building down again. About a month later,

the defendant drove up to the business again and shouted to the same carpenter that

he thought he had burned it down for good. The defendant was arrested and charged

1
In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602 (1966), the United States Supreme
Court held that the prosecution may not use statements, whether exculpatory or inculpatory,
stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural
safeguards effective to secure the privilege against self-incrimination, i.e., the suspect subject to
custodial interrogation has the right to consult with an attorney and to have counsel present during
questioning, and the police must explain this right to the suspect before questioning begins.

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with two counts of communicating threats of arson in violation of La.R.S. 14:54.1.

The defendant was convicted in the trial court, but the convictions were reversed on

appeal because the court found the statute to be unconstitutionally vague. The

supreme court concluded that the statute was not vague, but that the record was

devoid of any evidence which would show that the defendant’s statements were made

knowing them to be false.

We note that, in McKeel, the supreme court did not expound on its conclusion

regarding the lack of evidence to convict the defendant. Thus, only the facts

mentioned above are known to compare to the instant case. The Defendant,

nonetheless, contends that the only evidence offered with regard to whether or not the

threat was true was the stipulated police report wherein Deputy Burns quoted the

Defendant as saying that he was sorry and that he did not mean what he said.

Additionally, the Defendant complains that the State did not ask the alleged

victims if they actually believed that the Defendant was serious when he made the

threat to burn down the home. In support of his argument, the Defendant refers to

State ex rel. R.T., 00-205 (La. 2/21/01), 781 So.2d 1239, wherein a student made

statements that he was going to blow up a high school. The state introduced the

testimony of two witnesses to the principal incident underlying the charge of the

offense. Both witnesses testified that, when asked if he was going to blow up the

school, the defendant answered in the affirmative in a serious manner. Also, the

defendant admitted at trial that the exchange concerning a bomb did take place, but

that he had no true intent to do so. Thus, the supreme court concluded that the state

presented uncontradicted evidence that information of a planned bombing was

communicated and that the communication was false.

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First, with regard to the element of knowingly making a false statement, the

stipulated police report of Deputy Burns is sufficient evidence to prove this element.

In State v. Bernard, 98-994, p. 7 (La.App. 3 Cir. 2/3/99), 734 So.2d 687, 691

(citations omitted), this court stated, “It is well settled in Louisiana law that a jury

may rely on a single witness’s testimony to establish a factual element required to

prove guilt, provided there is no internal contradiction or irreconcilable conflict with

physical evidence.” The Defendant’s statement to Deputy Burns that he did not mean

what he said to Rita and Cheryl clearly indicates that he knowingly made a false

statement.

Secondly, whether or not Rita and Cheryl thought that the Defendant’s threat

was serious is not an element of the offense, but may indicate whether or not a threat

was made. Although the Defendant is correct in stating that Rita and Cheryl were not

asked at trial if they thought the Defendant’s threat was serious, the fact that Rita

called the police twice, the second time reporting the Defendant’s threat of arson,

supports the notion that she took his threat seriously. Also, Rita experienced and

witnessed threatening, physical behavior when the Defendant pushed her and threw

a hammer at Cheryl. Additionally, the Defendant was under the influence of alcohol,

which could lead Rita and Cheryl to the conclusion that the Defendant might act

irrationally and follow through with his threat. Lastly, the threat itself is barbaric and

threatened not only the lives of Rita and Cheryl but the lives of two innocent children.

Accordingly, the triers of fact were likewise entitled to conclude, based on the

evidence presented, that a reasonable person hearing the Defendant’s threat to trap

the occupants in the home and burn the home down would have taken the threat

seriously.

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Thirdly, although not an element of the crime, the Defendant states that his

threat was private and not public. The Defendant asserts that if this case is affirmed,

then it will be the first recorded case of a conviction under La.R.S. 14:54.1 for a

private statement made in a private home. He maintains that the instant case involves

a drunken domestic argument in a private home and that La.R.S. 14:54.1 was not an

appropriate statute upon which to prosecute the Defendant in this matter. Again, it

is noteworthy that the statute does not require the offense to have occurred in a public

setting, although the reported cases do involve public places. Without such a

requirement, this court must interpret the statute as stated, which does not exclude a

threat made in a private setting.

Lastly, the Defendant argues that the type of behavior described herein is not

the type of behavior envisioned by La.R.S. 14:54.1. The Defendant notes that the

maximum sentence for a false communication of arson is the same as, or greater than,

the maximum sentence for actually burning the structure down. Next, the Defendant

asserts that had he truthfully threatened to burn the home down and then attempted

to do same, he would have been exposed to one-half of the sentence he faced for the

instant offense wherein he allegedly threatened to burn the home, but then did

nothing.

Regardless of the penalties for the offenses the Defendant mentions herein, and

which do not pertain to this matter, the evidence in the record supports the jury’s

conclusion that the elements of the crime were proven at trial. The fact that the

maximum penalty for the instant offense appears harsh compared to the penalties for

arson-related crimes shows the legislature’s intent to deter the occurrence of these

types of threats, not that it did not envision the type of behavior exhibited herein.

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Accordingly, there was sufficient evidence in the record to support Defendant’s

conviction; therefore, his conviction is affirmed.

Assignment of Error Number Two

In this assignment of error, the Defendant argues that his sentence was cruel,

unusual, and excessive. 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, 00-1597, 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.

To decide whether a sentence shocks the sense of justice or makes no

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

[A]n 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

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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.

The penalty for communicating false information of arson is not more than

twenty years at hard labor. See La.R.S. 14:54.1(B). Thus, the Defendant’s eight-year

sentence was less than one-half of the maximum possible sentence.

In his motion to reconsider sentence, the Defendant asked the trial court to

reduce his sentence because the false communication for which he was convicted was

made to only two people regarding a residence in which the Defendant resided with

those same two people. As such, the Defendant concludes that the offense does not

fall within the broader scope of the statute which he alleges is designed to protect the

public at large from such statements. Next, the Defendant contends that the false

communication was part of a series of drunken outbursts made within a family setting

on the same day, thereby diminishing the impact which it may have had on the

victims. Lastly, because of the Defendant’s assertion that the offense carried a lesser

impact than that intended to be within the scope of La.R.S. 14:54.1, he urged the trial

court to run the sentence imposed for this offense concurrently with his earlier

sentence.

In his appellate brief, the Defendant questions how a private false statement

with no public disruption could justify an eight-year sentence. The Defendant

maintains that this issue is addressed in State v. Suire, 02-411 (La.App. 3 Cir.

10/2/02), 827 So.2d 569, wherein this court held that the defendant’s eight-year

sentence for communicating false information of a planned bombing of the Office of

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Community Services (OCS) in New Iberia was excessive. Pursuant to State v.

Medious, 98-419 (La.App. 5 Cir. 11/25/98), 722 So.2d 1086, writ denied, 98-3201

(La. 4/23/99), 742 So.2d 876, the following factors were considered by the court in

Suire in reviewing the trial court’s sentence: 1) the nature of the crime; 2) the nature

and background of the offender; and 3) the sentence imposed for similar crimes by

the same court and other courts.

With regard to the nature of the crime in Suire, the trial court noted that a bomb

threat was delivered to a public office staffed by state employees engaged in family

service wherein one would expect the public, including children, to be present. Also,

the building was located in a residential neighborhood.

Concerning the background and nature of the defendant in Suire, the trial court

observed that the defendant readily admitted to writing the note and did so because

of his frustrating experiences with OCS involving the removal of his daughter from

his custody. He voluntarily surrendered upon learning that he was being sought and

called his act “stupid” and that he would have never done it had he known of the

consequences. The defendant expressed his remorse to the court. He stated that he

owed apologies to a lot of people and that the OCS has no need to fear him.

Testimony at sentencing indicated that the defendant was a homebody who helped

care for his invalid mother, had never been in trouble before, and had never been

physically violent. The bomb threat was out of character for him. Although the trial

court focused on material from the OCS which suggested a history of threats against

the OCS, this court noted that the record lacked any submission from the OCS, and

the only reference to any previous threat was contained in the Pre-Sentencing

Investigation Report. Additionally in Suire, this court could find no evidence in the

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record to support the trial court’s finding that the defendant had a disabling mental

condition for which he refused to take medication. Two psychiatrists indicated that

he suffered from a mental illness, but the illness was not identified, and the record did

not disclose the need for medication.

Lastly, this court in Suire compared sentences imposed for similar crimes by

this court and other courts, including federal courts. In State ex rel. R.T., 33,246

(La.App. 2 Cir. 12/23/99), 748 So.2d 1256, aff’d in part, rev’d in part, 00-205 (La.

2/21/01), 781 So.2d 1239, the facts of which were previously discussed, the

defendant was sentenced to one year at hard labor. In State v. Sloan, 32,101 (La.App.

2 Cir. 8/18/99), 747 So.2d 101, the trial court sentenced the defendant to five years

at hard labor for attempted communication of false information of planned arson after

calling his bank and making bomb threats. He was acquitted on appeal; thus, the

excessiveness of his sentence was never discussed. Also, the defendant in McKeel

was sentenced by the trial court to two twenty-year sentences at hard labor. As

previously mentioned, the defendant was acquitted of the crimes, and, thus, the

excessiveness of his sentences was not discussed.

In Suire, this court concluded that analytically, the crime is virtually the same

as aggravated assault which carries a maximum sentence of six months, while

aggravated assault with a firearm, the most extreme case of assault, requires a

maximum penalty of five years. Considering same, the court held that the eight-year

sentence was not warranted. The court also noted that the decree of culpability was

very low, that the building contained only a few people, that the defendant presented

no means of carrying out his threat nor the intention to implement his threat, and that

he had no prior criminal record.

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In the instant case, the trial court made the following observations in

sentencing the Defendant:

All right. The court considers the following in the sentence for
Mr. Stevens.

His prior record: Distribution of cocaine, attempted simple
robbery, simple robbery, two counts of simple robbery.

The court considers that he is a danger to society as a result of his
previous background and what he asserted in this case and what
happened in this case with regards to the assault.

The court finds a lesser sentence would deprecate the seriousness
of this matter and the seriousness of his past record.

He’s in need of correctional treatment which can be best satisfied
by incarceration.

The court finds that he was particularly cruel to the victim
involved in this matter in what he told the victim and what he did to the
victim.

With regard to the factors discussed in Suire, the trial court noted that the crime

was particularly cruel. We note that none of the cases cited by the Defendant

involved a direct threat of harm to a person’s child. Unlike the defendant in Suire,

in the instant case, the Defendant has an extensive criminal history; however,

Defendant’s prior crimes did not involve violence. With regard to sentences imposed

for similar crimes by this court and other courts, we note that there have been no

reported cases involving sentencing for this crime since Suire.

Considering the facts of the instant case, the fact that the Defendant received

less than one-half of the maximum possible sentence, and the Defendant’s prior

criminal history, we do not find the Defendant’s sentence to be excessive, as it does

not shock one’s sense of justice. Consequently, we affirm the Defendant’s sentence.

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CONCLUSION

The Defendant’s conviction and sentence are affirmed. Additionally, we sever

the Defendant’s misdemeanor conviction from his appeal and instruct the Defendant

that, if he chooses to seek review of his misdemeanor conviction, he must file an

application seeking supervisory review with this court within thirty days of this

court’s ruling on his appeal. Further, we remand this case to the trial court with

instructions that it amend its minutes of the Defendant’s sentencing to correctly

reflect the transcript of sentencing.

1 AFFIRMED AND REMANDED WITH INSTRUCTIONS.

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