State of Louisiana v. Steve Joseph Janise

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

09-760

STATE OF LOUISIANA

VERSUS

STEVE JOSEPH JANISE

************

APPEAL FROM THE
THIRTY-FIRST JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON DAVIS, NO. 99-09
HONORABLE C. STEVE GUNNELL, DISTRICT JUDGE

************

MICHAEL G. SULLIVAN
JUDGE

************

Court composed of Jimmie C. Peters, Marc T. Amy, and Michael G. Sullivan, Judges.

AFFIRMED.

Michael Cade Cassidy
District Attorney
Stacey C. Naquin
Assistant District Attorney
Post Office Box 1388
Jennings, Louisiana 70546
(337) 824-1893
Counsel for:
State of Louisiana

Mark Owen Foster
Louisiana Appellate Project
Post Office Box 2057
Natchitoches, Louisiana 71457
(318) 572-5693
Counsel for Defendant/Appellant:
Steve Joseph Janise

SULLIVAN, Judge.

The Jefferson Davis Parish District Attorney charged Defendant, Steve Joseph

Janise, with one count of molestation of a juvenile, in violation of La.R.S. 14:81.2(D),

for events occurring between January 1, 2005, and April 1, 2007. Defendant pled no

contest to the charge on January 27, 2009.

On May 18, 2009, the trial court ordered Defendant to serve twenty-five years

at hard labor with credit for time served and with the first five years to be served

without benefit of probation, parole, or suspension of sentence. Defendant filed a

motion to reconsider sentence on the basis that “his original sentence was excessive,”

which the trial court denied. Defendant now appeals. We affirm.

FACTS

At the time of Defendant’s “nolo contendere” plea, the prosecution set forth the

following factual basis:

Between January 1st, 2005, and April 1st, 2007, in the Town of
Roanoke, Louisiana, here in Jeff[erson] Davis Parish, Mr. Janise was
living with [S.M.1] On April 7th, 2007, Mr. Janise appeared at the Jeff
Davis Sheriff’s Office stating that he wanted to turn himself in for child
molestation. He was then Mirandized and provided a[n] oral statement
and a written statement indicating that he had molested three (3)
children, [B.L.], [K.L.], and [J.G.] --

....

. . . He was immediately booked, and the children were set up for
interviews at the Children’s Advocacy Center in Lake Charles. During
that interview, [B.L.] indicated that Mr. Janise had used his hand to
touch both his penis and his buttocks numerous times and in two (2)
different places; one was in the shower at the home of Mr. Janise, and
one was in the shop outside of the home where Mr. Janise was living.

1
In accordance with La.R.S. 46:1844(W), initials will be used for the minor victims and their
relatives in order to protect their identity.

1

According to the police report introduced at the plea hearing, the victims were

six years of age or younger at the time of the abuse. The report indicated that

Defendant had rubbed all three of the children’s nude buttocks, as well as B.L.’s

penis and K.L.’s genitals. It further indicated that when asked why he had abused the

children, Defendant responded, “Just for the beauty” of it.

ASSIGNMENT OF ERROR

Defendant contends his twenty-five-year sentence is constitutionally excessive,

arguing that “[t]he sentence imposed by the trial court was cruel, unusual and

excessive, in violation of Article I, § 20 of the Louisiana Constitution of 1974.”

Defendant contends that the trial court failed to adequately consider the following

mitigating factors: Defendant turned himself in to the police; Defendant admitted

committing the offense; Defendant had no history of other incidents of abuse, other

than the incidents admitted to by Defendant; Defendant had led a law-abiding life for

a substantial period of time prior to committing the offense; there was nothing to

indicate that Defendant would not respond to probationary treatment; and Defendant

showed remorse for his actions and had attempted to “set matters right.”

The State responds that the record indicates that the sentencing court “carefully

studied” the Pre-Sentence Investigation (PSI) and otherwise considered both the

aggravating and the mitigating factors in the case, including: Defendant’s lack of a

prior felony conviction; Defendant’s having admitted to molesting his daughter in the

past; Defendant’s molestation of multiple victims over multiple incidents;

Defendant’s knowledge of the victims’ vulnerability due to their young age;

Defendant’s use of his position as the victims’ grandmother’s boyfriend to facilitate

the commission of the crime; Defendant’s not receiving multiple convictions and

2

sentences therefor; and Defendant’s having pled “no contest” instead of “guilty as

charged.”

Although Defendant filed a motion for reconsideration of his sentence, he did

not claim therein that the trial court failed to adequately weigh the mitigating factors

in the case; instead, he raised a bare excessiveness claim. Thus, Defendant is only

entitled to a bare excessiveness review of his sentence. La.Code Crim.P. art. 881.1.

This court has previously discussed the standard for reviewing excessive sentence

claims:

[Louisiana Constitution Article] 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. 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.
The relevant question is whether the trial court abused its broad
sentencing discretion, not whether another sentence might have been
more appropriate.

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

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

(citations omitted).

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. 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.” 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.”

3

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 (citations omitted). “[T]he trial judge need not

articulate every aggravating and mitigating circumstance outlined in art. 894.1[;] the

record must reflect that he adequately considered these guidelines in particularizing

the sentence to the defendant.” State v. Smith, 433 So.2d 688, 698 (La.1983).

The trial court issued written reasons for sentencing, which provide, in

pertinent part:

The Pre-Sentence Investigation states that you do not have a
juvenile criminal history. However, you do have an adult criminal
history of arrest, but no convictions. On February 24, 1992, you were
arrested for DWI (first offense). On March 20, 2004, you were arrested
for Trespassing. Both of these charges were later dismissed.

According to the Pre-Sentence Investigation, on April 1, 2007,
you were arrested by the Jefferson Davis Parish Sheriff’s office for
MOLESTATION OF A JUVENILE. The pre-sentence investigation
states that you walked into the sheriff’s office, admitted to the officers
that you had been molesting your girlfriend’s grandchildren for the past
three (3) years, and wanted to turn yourself in to the authorities. On
January 27, 2009, you pled no contest to the charge of
MOLESTATION OF A JUVENILE. I am going to file the Pre-
Sentence Investigation into the record for further reference, if necessary.
It should be noted that this is your first felony conviction.

In reviewing the Pre-Sentence Investigation, the Court takes note
of the fact that you are fifty-two (52) years of age and that this is your
first felony offense. This has been taken into consideration in mitigating
against imposition of the maximum sentence in this matter.

Your involvement in criminal activity demonstrate[s] to this Court
that you cannot live in society and that this community must be
protected from you. You are certainly in need of correctional treatment
in a custodial environment for a significant period of time. Anything
less would deprecate from the seriousness of your offense, would not
promote respect for the law, and would not provide a just punishment
for the crime of which you stand convicted. This Court has an
obligation to protect the public from you and will do so by removing
you from society.

Therefore, the Court sentences you to the Department of
Corrections, State of Louisiana, to be imprisoned at hard labor for a

4

period of Twenty Five years, the first five years without benefit of
parole, probation or suspension of sentence.

In denying Defendant’s motion to reconsider sentence, the trial court stated that

it had reviewed the PSI and noted that Defendant had pled to a lesser included offense

of the crime with which he had been originally charged.2

Defendant was charged and sentenced under La.R.S. 14:81.2(D)(1), as last

amended by 2006 La. Acts No. 36, § 1, which provides:

Whoever commits the crime of molestation of a juvenile when the
incidents of molestation recur during a period of more than one year
shall, on first conviction, be fined not more than ten thousand dollars or
imprisoned, with or without hard labor, for not less than five nor more
than forty years, or both. At least five years of the sentence imposed
shall be without benefit of parole, probation, or suspension of sentence.

Thus, Defendant’s twenty-five-year hard labor sentence falls within the parameters

of the penalty provision. Defendant’s sentence is five-eighths the statutory

maximum, an upper mid-range penalty.

As argued by the State, Defendant confessed to molesting three juveniles, but

was prosecuted for molestation of only one of them. The victim in the instant case

was six, but the other two victims were four. Defendant used his position as their

grandmother’s boyfriend to facilitate the commission of the crime and the molestation

spanned a period of more than two years. Moreover, given the tender age of the

victim, Defendant could have been charged with molestation of a juvenile under the

age of thirteen, as set forth in La.R.S. 14:81.2(E), a crime which carries a sentencing

range of imprisonment at hard labor for not less than twenty-five nor more than life

imprisonment. Therefore, had Defendant been charged under that provision, his

sentence would be considered the minimum penalty allowable by law. Moreover, had

2
Defendant’s no contest plea form indicates Defendant was originally charged with sexual
battery of a child.

5

Defendant been charged with three counts of violating La.R.S. 14:81.2(E), his

minimum possible sentence would have been seventy-five years at hard labor.

We conclude that the trial court did not err in ordering Defendant to serve

twenty-five years at hard labor with the first five to be served without benefit of

probation, parole, or suspension of sentence.

DECREE

Defendant’s sentence is affirmed.

AFFIRMED.

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

6