State of Louisiana v. Joshua Griffins

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

09-372

STATE OF LOUISIANA

VERSUS

JOSHUA GRIFFINS

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APPEAL FROM THE
THIRTIETH JUDICIAL DISTRICT COURT
PARISH OF VERNON, NO. 74637
HONORABLE JAMES RICHARD MITCHELL, DISTRICT JUDGE

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JOHN D. SAUNDERS
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, and
John D. Saunders, Judges.

AFFIRMED.

Sherry Watters
Louisiana Appellate Project
P. O. Box 58769
New Orleans, LA 70158-8769
(504) 723-0284
Counsel for Defendant Appellant:
Joshua Griffins

Hon. Asa A. Skinner
District Attorney - 30th JDC
Terry Wayne Lambright - Assistant District Attorney
P. O. Box 1188
Leesville, LA 71446-1188
(337) 239-2008
Counsel for Plaintiff Appellee:
State of Louisiana

SAUNDERS, Judge.

Defendant, Joshua Griffins, was charged by bill of information filed on June

16, 2008, with simple burglary of an inhabited dwelling, in violation of La.R.S.

14:62.2, and theft over $500, in violation of La.R.S. 14:67. Defendant entered a plea

of not guilty on June 17, 2008. On November 5, 2008, Defendant entered a plea of

guilty to simple burglary, in violation of La.R.S. 14:62. The theft charge was

dismissed.1

On January 27, 2009, Defendant was sentenced to five years at hard labor and

charged a fine of $1,000 plus costs of court. The court suspended three and one-half

years of the sentence and ordered that Defendant be placed on supervised probation

for a period of five years upon his release from incarceration. The following special

conditions of probation were ordered:

Comply with Code of Criminal Procedure Article 895(A); pay the fine,
costs and restitution to the victim in the amount of $800.00 all in
accordance with a Court approved pay plan at the rate of $100.00 per
month; pay to the Indigent Defender Board the sum of $250.00; pay
$50.00 a month supervision fee to the Department of Public Safety and
Corrections and an additional $5.00 per month payable to the Sex
Offender Registry Technology Fund or perform eight hours a month
public service in lieu of paying those fees; attend school or maintain
gainful employment at all times during the probationary period.

Defendant filed a Motion to Reconsider Sentence on January 30, 2009, which was

denied on February 3, 2009.

A motion for appeal was filed on February 10, 2009, and subsequently granted.

Defendant is now before this court asserting one assignment or error. Therein, he

contends his sentence is excessive. We find that this assignment of error lacks merit.

FACTS:

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The bill of information was amended at sentencing to reflect the charge of simple burglary,
deleting the language regarding an inhabited dwelling.

On December 16, 2007, Defendant, along with two other co-defendants,

entered the residence of William Spillers, damaged the property, and stole guns and

various other personal items from the home.

ASSIGNMENT OF ERROR:

In his only assignment of error, Defendant contends his sentence of five years

constitutes cruel and unusual punishment because it requires serving one and one-half

years of incarceration, plus the maximum term of supervised probation upon release,

plus monetary penalties that add up to more than $5,380. Defendant notes the

monetary penalties are excessive, as he is indigent. Defendant also asserts the

sentence is illegal, in that it requires incarceration if one of the fees is not paid, and

it prohibits early release for good time, even though he is not a habitual offender.

Defendant asserts that his sentence is excessive in the following respects:

1) the underlying sentence of five years is too long for a first offender,
in comparison to other offenders in similar cases and to his co-
defendants in this case;

2) suspending 3.5 years and requiring 1.5 years of incarceration was
excessive and close to the maximum, in that La. C.Cr.P. Art. 895 allows
only 2 years of incarceration for a suspended sentence;

3) five years of active, supervised probation is the maximum term of
probation;

4) Joshua Griffin had “gainful employment” at the time of sentencing
and had already graduated from high school; these two conditions show
that his sentence was not individualized; incarcerating him negated his
employment;

5) The $1,000.00 fine was half of the maximum; the court added an
undetermined amount of “court costs”, plus $800.00 in restitution and
$250.00 to the Indigent Defender Board; Joshua Griffin is indigent and
represented by appointed counsel; there was no proof of the amount of
damage to the Spillers; the total monetary penalty exceeds the $2,000.00
maximum in the statute.

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6) a monthly fee of $50 for probation supervision, and another monthly
fee of $5.00 to the sex offender registry technology fund totals another
$3,330.00 over five years of probation; the total monetary penalties add
up to more than $5,380.00 for this indigent defendant,

7) the fee to the sex offender registry technology fund has nothing to do
with Joshua Griffin’s offense and it is unconstitutional to require him to
pay a penalty for an unrelated criminal expense; further to impose
incarceration if the indigent defender defaults on payment is contrary to
law;

8) Though he is a first offender, the minute entry also says that he is not
eligible for good time, early release (R. 3, 81-85).

In his Motion to Reconsider Sentence, Defendant asserted that his sentence was

excessive “under the circumstances, specifically, that defendant is classified as a first

offender, and is eligible for probation.” Defendant did not raise claims three through

seven at the sentencing hearing or in his motion to reconsider sentence. Accordingly,

these arguments cannot be raised for the first time on appeal. See La.Code Crim.P.

art. 881.1(E); Uniform Rules—Courts of Appeal, Rule 1-3; State v. Hebert, 08-542

(La.App. 3 Cir. 11/5/08), 996 So.2d 688. This court does note that claim number

eight was not asserted in the trial court; however, we will address this claim because

it could be an error patent. We will also review claims one and two, which relate to

the excessiveness of sentence.

To constitute an excessive sentence, the penalty must be grossly
disproportionate to the severity of the crime or be nothing more than
needless imposition of pain and suffering. State v. Howard, 414 So.2d
1210 (La.1982). Additionally, the trial court is given wide discretion in
imposing a sentence, and a sentence imposed within statutory limits will
not be deemed excessive in the absence of manifest abuse of discretion.
Id. Thus, the question before this court is not whether imposition of
another sentence would be more appropriate, but whether the trial court
abused its discretion. 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. Lee, 08-456, pp. 6-7 (La.App. 3 Cir. 11/5/08), 996 So.2d 1217, 1221-22.

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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.

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.

Defendant pled guilty to simple burglary, which is punishable by a fine of not

more than two thousand dollars, imprisonment with or without hard labor for not

more than twelve years, or both. La.R.S. 14:62. Defendant was sentenced to serve

five years at hard labor, three and one-half of which were suspended. He was also

ordered to pay a fine of $1,000 and was placed on five years supervised probation,

with special conditions, upon his release from incarceration.

At the sentencing hearing, the trial court noted that Defendant was twenty years

old, was single, had one child, was in good health, was a high school graduate, was

employed, and had no history of drug and alcohol abuse. However, the trial court also

noted that Defendant caused damage to the victim’s home, the victim’s wife was

afraid to stay home alone, and that, as part of a plea bargain, a felony theft charge was

dismissed.

In State v. Morris, 98-236 (La.App. 5 Cir. 9/16/98), 719 So.2d 1076, Morris

was convicted of simple burglary and sentenced to twelve years at hard labor. The

fifth circuit concluded that despite Morris’ lack of a criminal history, the sentence

was warranted based on the three thousand dollars in damages to an ATM and kiosk.

This court does acknowledge that the amount of damage in the case at bar was

far less significant than that in Morris. However, the charge of simple burglary in the

case at bar was reduced from a charge of simple burglary of an inhabited dwelling,

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which is punishable by imprisonment at hard labor for not less than one year, without

benefit of parole, probation or suspension of sentence, nor more than twelve years.

Furthermore, a felony theft charge, which is punishable by imprisonment, with or

without hard labor, for not more than ten years, or a fine not more than three thousand

dollars, or both, was dismissed as part of the plea bargain. La.R.S. 14:67.

Defendant also argues that suspending three and one-half years of his sentence

and requiring that he serve one and one-half years of incarceration was excessive and

close to the maximum, in that La.Code Crim.P. art. 895 allows only two years of

incarceration for a suspended sentence. Article 895 (B)(1) provides that “[i]n felony

cases, an additional condition of the probation may be that the defendant shall serve

a term of imprisonment without hard labor for a period not to exceed two years.” It

is clear that Defendant’s argument is misguided, as the trial court did not order

incarceration as a condition of his probation; thus, article 895(B)(1) is inapplicable

to the case at bar.

Defendant further asserts that though he is a first offender, the minute entry

says that he is not eligible for good time, early release. At the sentencing hearing, the

trial court stated the following: “Pursuant to Code of Criminal Procedure Article

894.1 you are hereby advised that your sentence is not subject to diminution

for good behavior pursuant to Article 15:571.3.”

In State v. Narcisse, 97-3161, p. 1 (La. 6/26/98), 714 So.2d 698, 699, our

supreme court held, in pertinent part:

[A] trial judge lacks authority under La.R.S. 15:57[1].3 (C) to deny a
defendant eligibility for good time credits against his sentence, because
that statute is “directed to the Department of Corrections exclusively.”
State ex rel. Simmons v. Stalder, 93-1852 (La.1/26/96), 666 So.2d
661. . . . When the sentencing court is of the opinion that a denial of
diminution of sentence is warranted under the specific circumstances of

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the case, the trial judge’s discretion should be exercised under
La.C.Cr.P. 890.1(B).

In this case, the trial court merely advised Defendant pursuant to La.Code

Crim.P. art. 894.1 that he was not eligible for diminution of sentence. Whether the

advisement was correct has no effect since the Article states that the authority lies

with the Department of Corrections. Id.

For the reasons asserted herein, we find that this assignment of error lacks

merit.

CONCLUSION:

Defendant’s sentence is affirmed.

AFFIRMED.

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION. Rule 2-16.3,

Uniform Rules – Courts of Appeal.

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