State of Louisiana v. Billy Ray Smith, Jr.

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

08-477

STATE OF LOUISIANA

VERSUS

BILLY RAY SMITH, JR.

**********

APPEAL FROM THE
TENTH JUDICIAL DISTRICT COURT
PARISH OF NATCHITOCHES, NO. C11132
HONORABLE DEE A. HAWTHORNE, DISTRICT JUDGE

**********

ELIZABETH A. PICKETT
JUDGE

**********

Court composed of Jimmie C. Peters, Elizabeth A. Pickett, and J. David Painter,
Judges.

AFFIRMED.

Van Hardin Kyzar
District Attorney, 10th JDC
Billy Joseph Harrington
Assistant District Attorney
P. O. Box 838
Natchitoches, LA 71458-0838
(318) 357-2214
Counsel for State-Appellee:
State of Louisiana

Peggy J. Sullivan
Louisiana Appellate Project
P. O. Box 2775
Monroe, LA 71207-2775
(318) 387-6124
Counsel for Defendant-Appellant:
Billy Ray Smith, Jr.

PICKETT, Judge.

FACTS

The following facts are taken from the factual basis set forth by the State at the

defendant’s guilty plea hearing. On March 15, 2005, the police responded to the

home of Kanethia Smith, the defendant’s estranged wife, and were asked that the

defendant be removed from the apartment. At that time, the police learned that the

defendant had placed bleach in a water jug and a medicine bottle in an attempt to

poison Ms. Smith. During the incident, Ms. Smith’s five year old son was given a

glass of the water containing the bleach which caused him to become very ill and in

need of medical attention.

On or about April 26, 2006, the defendant, Billy Ray Smith, Jr., was charged

by bill of information in count one with attempted first degree murder, violations of

La.R.S. 14:30 and 14:27, in count two with disobeying a preliminary or permanent

injunction or protective order or temporary restraining order or ex parte order, in

violation of La.R.S. 14:70, and in count three with criminal conspiracy, in violation

of La.R.S. 14:26. The defendant pled guilty to the reduced charge of attempted

second degree murder. As part of the plea bargain, the state agreed not to file a

multiple offender bill and dropped the remaining charges, and charges in an unrelated

docket number were dismissed

On October 12, 2007, the defendant was sentenced to serve eighteen years at

hard labor, without benefit of probation, parole or suspension of sentence, to run

concurrently with the sentence he was then serving. A Motion to Reconsider

Sentence was filed on October 12, 2007, and following this court’s order for the trial

court to rule on the motion, the motion was denied on April 11, 2008.

1

The defendant is now before this court, asserting that his sentence is excessive.

ASSIGNMENT OF ERROR

The sentence imposed by the Trial Court of eighteen years at hard labor
was constitutionally excessive under the facts and circumstances of this
case.

ERRORS PATENT

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

court for errors patent on the face of the record. After reviewing the record, we find

there are no errors patent.

ASSIGNMENT OF ERROR

In his sole assignment of error, the defendant argues that the sentence imposed

was constitutionally excessive given the facts and circumstances of this case. 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, 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.

2

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 penalty for attempted second degree murder, as provided in La.R.S.

14:30.1 and 14:27, is ten to fifty years at hard labor, without benefit of probation,

parole or suspension of sentence. Thus, the defendant’s eighteen year sentence was

less than one-half of the possible maximum sentence. Additionally, the defendant

received a significant benefit from his plea agreement. Prior to his guilty plea, the

defendant faced an additional hard labor sentence of one to thirty years for aggravated

burglary. See La.R.S. 14:60. Also, the defendant avoided further penalties on

charges pending in an unrelated docket that were dismissed as part of the plea

agreement.

At sentencing, counsel for the defendant asked the trial court to consider the

fact that the defendant was convicted of a similar crime in DeSoto Parish and

received a ten-year sentence. Further, defense counsel stressed that after the incident

in DeSoto Parish took place, the defendant and his wife reconciled for a brief time.

Next, the position taken by the defendant was that his conduct is a pattern of domestic

3

abuse and that the community at large is not affected by his behavior. Lastly, the

defendant pointed out to the trial court that he would be required to serve eighty-five

percent of any sentence imposed and asked it to consider same in determining his

sentence.

The trial court made the following observations and comments associated with

the defendant’s sentence:

I find that a lesser sentence would deprecate the seriousness of this
crime anyway. The, you clearly created a, you knowingly created a risk
of death of great bodily harm and actually to more than one person. You
attempted, you put bleach in the drinking water in the refrigerator in the
home of the victim. And not only could she have drunk the water and
been killed but the children in the home could also and in fact did. So
consequently the risk here goes beyond whatever’s going on between
you and your, is it your wife or your ex-wife?

MR. SMITH: Ex.

THE COURT: You and your ex-wife.

MR. SMITH: Uh huh (affirmative).

THE COURT: You have created a risk of danger to more than just
your ex-wife. This is not the first time and that is also another factor.
You were actually convicted in Sabine Parish of Attempted
Manslaughter, again an act that was directed at your ex-wife.

MR. KENDRICK: Your Honor I don’t mean to interrupt but it would
be DeSoto Parish not Sabine.

THE COURT: I’m sorry DeSoto Parish; excuse me, in DeSoto
Parish, thank you, also directed at your wife. This is not the first time.
That is extremely important to this Court. And I did take that into
consideration when I was making a determination about uh, about what
the sentence would be. The uh, your attorney has asked me to consider
as a mitigating circumstance that your ex-wife actually reconciled with
you. However her statement which I’ve considered which is in the
record appears that she reconciled with you because she was afraid of
you and she was afraid to do otherwise. So I don’t necessarily consider
that a mitigating circumstance. The seriousness of the crime, the manner
in which it was perpetrated are all things that are important to me and as,
and your history. There’s also prior charges before the Attempted

4

Manslaughter that dealt with domestic violence as well. So this is a
pattern in your life.

In his Motion to Reconsider Sentence, the defendant reasserted that his

sentence is excessive considering the mitigating factor that his conduct was limited

to his wife and not society at large. Also, the defendant stressed that after this first

incident in DeSoto Parish involving his wife, the two parties reconciled. Lastly, the

defendant complained that the sentence is excessive considering that his conviction

is an aggravated charge, and thus, he must serve eighty-five percent of the sentence.

On appeal, the defendant adds that the trial court did not give sufficient

consideration to his personal history, stating that no specifics of his history were

discussed. The defendant, however, did not raise this issue in his motion to

reconsider. Pursuant to La.Code Crim.P. art. 881.1, the defendant’s failure to include

this specific ground in his motion to reconsider precludes him from urging same for

the first time on appeal. Thus, the defendant’s allegation regarding the trial court’s

lack of consideration of his personal history will not be considered. See State v.

Grogan, 00-1800 (La.App. 3 Cir. 5/2/01), 786 So.2d. 862.

At sentencing, the trial court considered the factors which the defendant

subsequently asked the court to reconsider in his motion. The trial court was aware

that the defendant’s conduct was limited to his wife and not society at large. With

regard to the reconciliation of the parties, the trial court observed that the defendant’s

wife did so out of fear, thus, the court did not consider same to be a mitigating factor.

Lastly, the trial court was also aware that the defendant would be required to serve

eighty-five percent of the sentence.

5

Considering the trial court’s reasons for sentencing, the sentence he received

and the benefit he received from his plea bargain, we find that the trial court did not

abuse its discretion in sentencing the defendant.

The defendant’s sentence is affirmed.

AFFIRMED.

This opinion is NOT DESIGNATED FOR PUBLICATION.
Rule 2-16.3, Uniform Rules, Courts of Appeal.

6