State of Louisiana v. D. H. B.

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

07-1039

STATE OF LOUISIANA

VERSUS

D.H.B.

**********
APPEAL FROM THE
ELEVENTH JUDICIAL DISTRICT COURT
PARISH OF SABINE, NO. 61235
HONORABLE ROBERT EDWARD BURGESS, DISTRICT JUDGE

**********

ULYSSES GENE THIBODEAUX
CHIEF JUDGE

**********

Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders, and
Glenn B. Gremillion, Judges.

AFFIRMED.

Don M. Burkett
District Attorney
Anna Louise Garcie
Assistant District Attorney
P. O. Box 1557
Many, LA 71449
Telephone: (318) 256-6246
COUNSEL FOR:
Plaintiff/Appellee - State of Louisiana

Peggy J. Sullivan
Louisiana Appellate Project
P. O. Box 2775
Monroe, LA 71207-2775
Telephone: (318) 387-6124
COUNSEL FOR:
Defendant/Appellant - D.H.B.

THIBODEAUX, Chief Judge.

The Defendant, D.H.B., pled guilty to forcible rape and was sentenced

to serve thirty years at hard labor without benefit of probation, parole, or suspension

of sentence. He appeals his sentence on the basis of excessiveness.

We affirm.

FACTS

The facts are taken from the factual basis set forth at the time of the

Defendant’s guilty plea. During the month of November, 2005, the five-year-old

victim was staying with his grandparents at their home. During his stay, the

Defendant, the husband of the victim’s grandmother, had or performed oral sex with

the victim.

LAW AND DISCUSSION

In his sole assignment of error, the Defendant argues that the trial court

erred in imposing a sentence which is unconstitutionally excessive, given the facts

and circumstances of the case and his personal history. The Defendant did not file

a motion to reconsider his sentence. Therefore, his excessiveness claim is barred by

La.Code Crim.P. art. 881.1. However, in the interest of justice, this court has chosen

to review such an assignment as a bare claim of excessiveness. State v. Hargrave,

05-1027 (La.App. 3 Cir. 3/1/06), 926 So.2d 41, writ denied, 06-1233 (La. 11/22/06),

942 So.2d 552.

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 [p.
5] (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 [p. 3]
(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, 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:

[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.

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 Defendant pled guilty to forcible rape which, pursuant to La.R.S.

14:41.1, carries a sentence of five to forty years at hard labor, with at least two years

of the sentence to be served without benefit of probation, parole or suspension of

sentence. Thus, the Defendant’s thirty year sentence was not the maximum sentence.

2

Additionally, the Defendant received a significant benefit from his plea agreement,

as he faced life in prison, without the benefit of probation, parole or suspension of

sentence, had he been convicted of aggravated rape, the original charge.

At sentencing, the trial court stated as follows:

THE COURT: Well, I have reviewed the pre-
sentence investigation in light of the severity of the crime.
The plea bargain reduced it from a mandatory, your
exposure to a mandatory life sentence without benefit of
probation, parole or suspension of sentence to a possibility
of up to 40 years, at least two of which could be without
benefit of probation, parole or suspension of sentence.
Because this is a listed crime of violence, the penalty is
necessarily up to 40 years without probation, parole or
suspension of sentence. It is as a crime of violence. The
pre-sentence investigation doesn’t reveal a whole lot. As
Mr. Toups said, it does show that you are a first felony
offender. The particulars of the pre-sentence investigation,
I don’t think, need to be gone into except a mitigating
factor in this case was, in my opinion, a lack of any violent
criminal record, either adult or juvenile. What is
staggering to this Court is why someone would admit to a
crime which he denies any responsibility for. Mr. [B], date
of birth is listed as January 29, 1970, thirty-seven years of
age. The victim in this case is five years of age according
to the pre-sentence investigation.

....

In one respect, you reduce your sentencing exposure
and that should be under Code of Criminal Procedure
Article 894.1 all the consideration you are given. The
mitigating factors, as I said, was that you have no
significant record whatsoever. That just makes the whole
process of sentencing more difficult to me. Clearly, you’re
not entitled to a suspended sentence by the nature of the
statute that I read to you, at least two years without benefit
of probation, parole or suspension of sentence. The most
significant aggravating factors are as follows, any lesser
sentence than the one imposed would deprecate the
seriousness of your crime. In this case, you have not taken
any responsibility for this offense but your attitude was to
avoid further exposure. The victim in this case is
particularly vulnerable because of the youth. The violence
is something that kind of goes without saying, someone 37
years of age and someone 5 years of age, not exactly a fair
arrangement. Having considered all of the factors of 894.1

3

and the sentence and the pre-sentence investigation, I find
that you are in need of correctional treatment in a custodial
environment that can only be effectively provided by
commitment to an institution.

In his brief to this court, the Defendant contends that the trial court gave

insufficient consideration or little weight to the fact that he pled guilty, that a young

child was not required to go through a trial and that he was a first felony offender.

The Defendant also complains that the trial court had no justification for ordering the

entire sentence to be served without benefit of parole, probation or suspension of

sentence when the statute requires only the first two years of the sentence to be served

without benefits. The Defendant also maintains that he is not the worst of offenders

and that this is not the worst of offenses. Lastly, the Defendant complains that

although the offense is considered to be a crime of violence, there was no information

as to the use of actual force or violence against the child victim or of any physical

harm, other than that contemplated by the nature of the crime.

We disagree that the trial court did not give sufficient weight to the

mitigating factors in light of the aggravating factors, and find that the record shows

that the trial court adequately articulated its reasons for imposing the near maximum

sentence for forcible rape. In State v. Gray, 36,389 (La.App. 2 Cir. 9/18/02), 828

So.2d 176, 180, the court stated:

As a general rule, maximum sentences are
appropriate in cases involving the most serious violation of
the offense and the worst type of offender. State v.
Grissom, 29,718 (La.App. 2d Cir. 8/20/97), 700 So.2d 541;
State v. Walker, 573 So.2d 631 (La.App. 2d Cir. 1991).
However, in cases where the defendant has pled guilty to
an offense which does not adequately describe his conduct,
the general rule does not apply and the trial court has great
discretion in imposing the maximum sentence possible for
the pled offense. This is particularly true in cases where a
significant reduction in potential exposure to confinement
has been obtained through a plea bargain and the offense

4

involves violence upon a victim. State v. Black, 28,100
(La.App. 2d Cir. 2/28/96), 669 So.2d 667.

The trial court considered the great, lifelong harm done by the thirty-

seven-year-old Defendant to the vulnerable, five year old male victim. Under these

circumstances, the Defendant is the worst type of offender and that the offense

caused exceptional harm to this child. The Defendant, the husband of the victim’s

grandmother, was in a position of authority as the child’s step-grandfather, which he

likely used to his advantage to sexually assault the victim. Lastly, the facts of the

offense would support a conviction for aggravated rape, given the age of the victim

and the sexual act performed on the child by the Defendant.

In a similar case, State v. Malloy, 01-1118 (La.App. 3 Cir. 2/6/02), 815

So.2d 940, this court upheld the defendant’s thirty-five year sentence for forcible

rape, twenty years of which was imposed without benefit of probation, parole, or

suspension of sentence. The defendant engaged in non-consensual sexual intercourse

with his seven-year-old stepdaughter and was charged with aggravated rape and

aggravated oral sexual battery. He later entered into a plea agreement in which he

agreed to plead guilty to the charge of forcible rape in exchange for the State’s

dismissal of the aggravated oral sexual battery charge. On appeal, this court noted

that the Defendant’s thirty-five year sentence for forcible rape was within the

statutory range and held that it was not excessive, considering the sentencing range

for forcible rape was five to forty years at hard labor, with at least two years without

benefit of probation, parole, or suspension of sentence. This court also observed that

the elements of the crime of aggravated rape were clearly present and that the trial

court granted the defendant concession by permitting him to plead to forcible rape.

In keeping with this court’s ruling in Malloy and considering the

mitigating and aggravating factors observed by the trial court, the Defendant’s

5

sentence is not so grossly disproportionate to the severity of the crime as to shock the

sense of justice. Accordingly, the Defendant’s sentence is affirmed.

CONCLUSION

The Defendant’s sentence is affirmed.

AFFIRMED.

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION. Rule
2-16.3, Uniform Rules—Courts of Appeal.

6