State of Louisiana v. Darrell James Fontenot

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

09-1044

STATE OF LOUISIANA

VERSUS

DARRELL JAMES FONTENOT

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APPEAL FROM THE
THIRTY-FIRST JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON DAVIS, NO. CR-312-08
HONORABLE CRAIG STEVE GUNNELL, DISTRICT JUDGE

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JIMMIE C. PETERS
JUDGE
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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Jimmie C. Peters and J.
David Painter, Judges.

AFFIRMED.

Thibodeaux, C.J., dissents in part and assigns written reasons.

James Edward Beal
Louisiana Appellate Project
P. O. Box 307
Jonesboro, LA 71251-0307
Telephone: (318) 259-2391
COUNSEL FOR:
Defendant/Appellant - Darrell James Fontenot

Michael Cade Cassidy
District Attorney - Thirty-First Judicial District Court
Stacey C. Naquin
Assistant District Attorney - Thirty-First Judicial District Court
P. O. Box 1388
Jennings, LA 70546
Telephone: (337) 824-1893
COUNSEL FOR:
Appellee - State of Louisiana

PETERS, J.

The State of Louisiana initially charged the defendant, Darrell James Fontenot,

by grand jury indictment with aggravated rape, a violation of La.R.S. 14:42.

Thereafter, pursuant to a plea agreement, the state reduced the charge to forcible rape,

a violation of La.R.S. 14:42.1, and the defendant entered a nolo contendere plea to

that charge pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160 (1970).

The trial court then sentenced the defendant to serve forty years at hard labor with

the first two years to be served without the benefit of parole, probation, or suspension

of sentence. After the trial court rejected his motion to reconsider his sentence, the

defendant perfected this appeal. For the following reasons, we affirm the defendant’s

conviction and sentence in all respects.

DISCUSSION OF THE RECORD

At the May 19, 2009 hearing wherein the defendant entered his plea, the state

provided the trial court with the following factual basis:

Okay. Had this matter proceeded -- proceeded to trial, the State
would have introduced the following evidence: That on or about March
15th, 2008, Jennings Police Department responded to 419 Martin Street
here in Jennings, Louisiana, in response to an aggravated rape.
Whenever the Jennings Police Department arrived there, they spoke with
the victim, Mrs. [M.] [G.], whose date of birth is June 2nd, 1922, who
for the record is present for this proceeding.

Mrs. [M.] [G.] explained to the police officers that she had been
asleep in her bed whenever she heard a noise at her back door. She got
up to see what it was and found that there was a male standing in her
bedroom at her bed. He told her to give -- he told her to give him her
money. She got out of bed, walked to the kitchen, got her purse and
handed him one hundred dollars ($100.00). He took the money. Told
her to get on the living room floor. Take off her clothes, and he
proceeded to rape her vaginally. Whenever he was done, she made the
statement to him -- she asked him if he believed in God. He said yes.
She stated that he -- she would pray for him. That’s whenever she [sic]
left, and she called 911.

On appeal, the defendant raises two assignments of error: (1) that his sentence

is excessive, and (2) that the trial court erred in failing to advise him of his right to

trial by jury before accepting his plea. Because the second assignment of error

addresses the validity of the conviction itself, we will consider it first.

Louisiana Code of Criminal Procedure Article 556.1 provides that before

accepting a felony plea of guilty or nolo contendere, the trial court must determine

that the defendant understands the consequences of his or her plea as well as the

rights given up by entering a plea. One of those rights that must be addressed is the

defendant’s right to a jury trial. La.Code Crim.P. art. 556.1(A)(3). Although the trial

court informed the defendant of his right to trial in the plea proceedings, the trial

court made no mention of the defendant’s right to a jury trial.

Despite the trial court’s failure to directly address the defendant’s right to a jury

trial, we find no merit in this assignment of error. The record reflects that, when

initially arraigned, the defendant requested a jury trial. Thus, he was aware from the

beginning of his prosecution that he was entitled to a jury trial. Additionally, on the

day he entered his plea, the defendant executed a written form in conjunction with his

plea agreement entitled “PLEA OF NO CONTEST AND WAIVER OF RIGHTS.”

The written form provided that he had been informed of his rights, including

specifically his right to a jury trial; that by entering his plea he waived his rights,

including specifically his right to a jury trial; and that he understood his plea

subjected him to the same punishment as if he had been “TRIED AND CONVICTED

BY A JURY.”

In State v. Mendenhall, 06-1407, p. 1 (La. 12/8/06), 944 So.2d 560, the

supreme court discussed the obligations of the trial court in advising a defendant of

his or her right of confrontation, another right covered by La.Code Crim.P. art. 556.1.

In addressing this issue, the supreme court stated:

A majority on the court of appeal panel found that the trial judge’s
statement informing defendant that the state would have to prove its case

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beyond a reasonable doubt and that his attorney would have the
opportunity to cross-examine the state’s witnesses at a trial did not
suffice as an advisement to defendant of his right to confront his
accusers. State v. Mendenhall, 40,986 (La.App. 2nd Cir. 5/19/06), 930
So.2d 1196 (Brown, C.J., dissenting). However, this Court has stressed
that neither Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d
274 (1969), nor the Court’s implementation of Boykin in State ex rel.
Jackson v. Henderson, 260 La. 90, 255 So.2d 85 (1971), sets out a
“magic word formula” which may “serve as a technical trap for
conscientious trial judges who conduct a thorough inquiry into the
validity of the plea....” State v. Bowick, 403 So.2d 673, 675 (La.1981).
With respect to the Confrontation Clause of the Sixth Amendment,
“[t]he main and essential purpose of confrontation is to secure for the
opponent the opportunity of cross-examination.” Davis v. Alaska, 415
U.S. 308, 315-16, 94 S.Ct. 1105, 1110, 39 L.Ed.2d 347 (1974) (internal
quotation marks and citation omitted; emphasis deleted); see also State
v. Anderson, 34,491, p. 3 (La.App. 2d Cir. 4/4/01), 784 So.2d 749, 751
(“In common usage, the phrases confront and cross-examine always
connote adversarial activities.”), writ denied, 01-1431 (La. 4/12/02), 812
So.2d 666. In this instance, the language used by the trial judge appears
sufficiently tailored to inform a 29-year-old defendant, who was
educated through the twelfth grade and employed as a plant assistant
manager, that he was waiving his right to confrontation, and that,
because he was pleading guilty, there would be no further trial. See
State v. Martin, 382 So.2d 933, 935 (La.1980) (purpose underlying the
Boykin and Jackson rules “is to ensure the defendant’s receipt of
adequate information, so that his decision to plead guilty is truly
intelligent and voluntary.... [T]his information may successfully be
conveyed in words tailored to a particular individual’s vocabulary and
comprehension”), overruled in part on other grounds, State v. Williams,
392 So.2d 448 (La.1980). Accordingly, we agree . . . that the
circumstances in the record reflect a knowing and voluntary waiver of
defendant’s rights and compliance with the constitutional requirements
for the taking of voluntary guilty pleas in Louisiana.

In the matter before us, we find that the record reflects a knowing and voluntary

waiver of the defendant’s right to a jury trial. Therefore, we find no merit in this

assignment of error.

In his remaining assignment of error, the defendant argues that his sentence is

excessive. Specifically, he asserts that the trial court failed to properly consider as

mitigating factors his age (thirty-four at sentencing), that this was his first felony

offense, and that he suffers from a brain injury.

3

The Eighth Amendment to the United States Constitution and La.Const. art. 1,

§ 20 prohibit the imposition of cruel or excessive punishment, and the law is well

settled with regard to what constitutes cruel or excessive punishment. An excessive

sentence is a penalty that is so grossly disproportionate to the severity of the crime

that it shocks our sense of justice or it makes no measurable contribution to

acceptable penal goals and, therefore, is nothing more than a needless imposition of

pain and suffering. State v. Campbell, 404 So.2d 1205 (La.1981). Additionally, the

trial court is given wide discretion in imposing a sentence, and, absent a manifest

abuse of that discretion, the reviewing court should not deem as excessive a sentence

imposed within statutory limits. State v. Howard, 414 So.2d 1210 (La.1982); State

v. Pyke, 95-919 (La.App. 3 Cir. 3/6/96), 670 So.2d 713. Still, a sentence that falls

within the statutory limits may be excessive under the particular circumstances of a

given case. State v. Sepulvado, 367 So.2d 762 (La.1979). Additionally, “[m]aximum

sentences are reserved for the most serious violations and the worst offenders.” State

v. Farhood, 02-490, p. 11 (La.App. 5 Cir. 3/25/03), 844 So.2d 217, 225. The only

relevant question for the reviewing court to consider is not whether another sentence

would be more appropriate, but rather whether the trial court abused its broad

discretion in sentencing a defendant. State v. Cook, 95-2784 (La. 5/31/96), 674 So.2d

957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615 (1996).

Louisiana Code of Criminal Procedure Article 894.1(A) provides that the trial

court should impose an imprisonment sentence if any of the following are established

by the record:

(1) There is an undue risk that during the period of a suspended
sentence or probation the defendant will commit another crime.

(2) The defendant is in need of correctional treatment or a
custodial environment that can be provided most effectively by his
commitment to an institution.

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(3) A lesser sentence will deprecate the seriousness of the
defendant’s crime.

Additionally, the trial court must “state for the record the considerations taken into

account and the factual basis therefore in imposing sentence.” La.Code Crim.P. art.

894.1(C). However, in complying with this article, the trial court “need not articulate

every circumstance or read through a checklist of items.” State v. Anderson, 95-1688,

p. 4 (La.App. 3 Cir. 5/8/96), 677 So.2d 480, 483.

In sentencing the defendant, the trial court stated that it had considered the

contents of a pre-sentence investigation report provided to it, the factors found in

La.Code Crim.P. art. 894.1, and the nature of the offense itself. The trial court noted

that the pre-sentence investigation report established that the defendant was born on

November 17, 1974, and was raised by his mother. It further established that he had

two siblings and four half-siblings; that he was married at age eighteen, divorced two

years later, and had no children; that he had a GED and some training as an

electrician, but that most of his employment history was manual labor; and that he

sustained a head injury resulting in an brain abscess which required surgery and

ended his working career; and that he had no juvenile or adult criminal history. The

trial court specifically considered his age and the fact that he was a first felony

offender as the only mitigating factors present. In denying the defendant’s motion to

reconsider his sentence, the trial court stated that it did so “because the matter was

originally charged as aggravated rape and was amended down to forcible rape” such

that the maximum sentence that could be imposed was that which was imposed

instead of life at hard labor without benefit of probation, parole, or suspension of

sentence.

5

Citing the supreme court in State v. Telsee, 425 So.2d 1251 (La.1983), the fifth

circuit, in State v. Lisotta, 98-648, p. 4 (La.App. 5 Cir. 12/16/98), 726 So.2d 57, 58,

writ denied, 99-433 (La. 6/25/99), 745 So.2d 1183, suggested that:

The court should consider three factors in reviewing a judge’s
sentencing discretion:

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 offense, we recognize that any rape is a

repugnant offense. However, our legislature has seen fit to determine that any rape

of a victim over the age of sixty-five is the worst of such repugnant

offenses—aggravated rape. La.R.S. 14:42(A). While the defendant received the

benefit of a plea agreement in being allowed to plead to forcible rape, factually his

offense fits the definition found in La.R.S. 14:42(A). Anyone convicted of

aggravated rape when the victim is over the age of thirteen is subject to a single

sentence—life imprisonment at hard labor without benefit of parole, probation, or

suspension of sentence. La.R.S. 14:42(D)(1).

Considering the second Lissota factor, the defendant’s nature and background,

the defendant does not argue that the trial court considered any inaccurate

information. Instead, he argues that his age and brain injury are sufficient mitigating

factors to reduce his sentence. As to his age, the trial court specifically considered

it as a mitigating factor, but concluded that it was not sufficient to reduce the penalty

below the maximum for forcible rape. With regard to the brain injury, the record

establishes that he was subjected to surgery as treatment for a brain abscess and he

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suffers from aftereffects of that surgery. However, the trial court did not consider this

to be a mitigating factor.

The defendant’s mental state had been the subject of a sanity commission

during the trial court proceedings, and the appointed sanity commission concluded

that he was competent to proceed. While the record lacks a transcript of the sanity

hearing, a summary of the experts’ analysis was introduced. Both experts noted that

the defendant has a history of short-term memory loss and that he apparently suffered

seizures. However, the record contains nothing to suggest that the defendant’s

aftereffects of his injury and subsequent surgery played any role in the commission

of the offense. Furthermore, the defendant’s problems do not necessarily mandate a

lesser sentence or cast doubt upon the trial court’s sentencing discretion:

Furthermore, in State v. Hart, 397 So.2d 518 (La.1981), the
Louisiana Supreme Court upheld a defendant’s 75-year sentence for
armed robbery and his maximum 50-year sentence for attempted first
degree murder despite his diagnosis as a schizophrenic. Despite the
defendant’s mental condition, the supreme court concluded the trial
court did not manifestly abuse its broad sentencing discretion. Also, in
State v. Allen, 478 So.2d 589 (La.App. 2 Cir.1985), writ granted, 491
So.2d 12 (La.1986), affirmed as amended, 496 So.2d 301 (La.1986), the
Second Circuit upheld the defendant’s maximum 50-year sentence for
attempted first degree murder despite the defendant’s argument that the
trial court did not consider his mental problems. The Second Circuit
noted the defendant’s extensive mental health treatment records, which
showed he was a schizophrenic, were considered by the trial court as
evidenced by the trial court’s statement that defendant’s mental illness
could not mitigate the sentence because of the seriousness of the
offense.

State v. Taylor, 06-839, p. 7 (La.App. 5 Cir. 3/13/07), 956 So.2d 25, 29, writ denied,
06-859 (La. 6/15/07), 958 So.2d 1179. See also State v. Gilbert, 00-1822 (La.App.
5 Cir. 5/16/01), 788 So.2d 574.

Even considering all of the defendant’s arguments as mitigating factors, the

fact remains that the defendant is the worst of offenders. Farhood, 44 So.2d 217. He

committed the aggravated rape of an eighty-six-year-old victim after breaking into her

home and robbing her.

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Finally, a comparison of sentences as contemplated by Lisotta is somewhat

meaningless when the offense for which the defendant was sentenced is not the

offense he committed.

This court has explained the problems arising when considering sentences

where a defendant has entered a plea to a lesser offense where the facts support the

conviction on the greater offense:

In his brief to this court, the Defendant asserts that because he is
a first time offender, the sentence of thirty-five years of imprisonment
without benefits, near maximum for the offense, is constitutionally
excessive. This court has held that maximum sentences are usually
reserved for the most egregious and blameworthy of offenders. State v.
LeBlanc, 578 So.2d 1036 (La.App. 3 Cir. 1991), writ denied, 620 So.2d
833 (La.1993); State v. Mallett, 552 So.2d 28 (La.App. 3 Cir. 1989),
writs denied, 556 So.2d 1258, 558 So.2d 567 (La.1990) (citing State v.
Telsee, 425 So.2d 1251 (La.1983)).

In State v. Whatley, 03-1275 (La.App. 3 Cir. 3/3/04), 867 So.2d
955, the trial court gave the defendant the maximum sentence possible
for a conviction of indecent behavior with a juvenile. However, this
court found the defendant was a first time offender whose crime did not
warrant the trial court’s imposition of the maximum sentence because he
was not one of the most egregious types of defendant for whom the
maximum sentence was intended. In addition to Whatley’s lack of
previous convictions, this court considered the absence of the use of
physical violence and the fact that the defendant ceased his conduct
upon rebuff by the sixteen-year-old victim to indicate that the defendant
should not have received a maximum sentence. Id. In the present
matter, like the defendant in Whatley, the Defendant is also a first time
offender. However, unlike the defendant in Whatley, the Defendant in
this case was convicted of forcible rape, defined by La.R.S. 14:2(13) as
a crime of violence. In addition to its high level of physical violence,
the conduct of the Defendant was directed against an eleven-year-old
girl who futilely attempted resistance. Further, the Defendant did not
receive the maximum sentence available under the offense of which he
was convicted. Clearly, the circumstances in Whatley, which led this
court to conclude that a maximum sentence was excessive for that first
time offender, are not present in the instant case. Considering the
foregoing, the near maximum sentence given the Defendant in the
instant matter was not excessive, even though he is a first time offender.

It should also be noted that the Defendant pled guilty to forcible
rape when the facts fully supported the original charge of aggravated
rape. In State v. Lanclos, 419 So.2d 475 (La.1982), the supreme court
addressed the issue of whether a maximum sentence was appropriate

8

following a plea agreement. The Lanclos court held that because the
lesser offense to which the defendant pled did not adequately describe
the first time offender’s conduct, the trial court did not abuse its
discretion in imposing the maximum sentence. Likewise, in this case,
the Defendant pled guilty to forcible rape, an offense that does not
adequately describe the conduct shown in the record as directed toward
the eleven-year-old victim, which conduct is more accurately described
as conduct constituting aggravated rape.

Additionally, the Defendant was originally charged with
aggravated rape, a violation of La.R.S. 14:42. By agreeing to plead
guilty to forcible rape, a violation of La.R.S. 14:42.1, the Defendant
received a significant benefit by reducing his sentence exposure from a
minimum of life imprisonment to a maximum of forty years
imprisonment. The sentence was within the statutory range for forcible
rape.

There is no indication in the record of any plea agreement, or that
the Defendant agreed to plead guilty for any particular sentence
exposure. Accordingly, in light of the significant benefit gained by the
Defendant in agreeing to plead guilty to forcible rape, rather than face
an aggravated rape charge, the trial court did not abuse its wide
discretion in imposing a sentence of thirty-five years of imprisonment
without benefits. Cook, 674 So.2d 957.

State v. Vallery, 04-1589, pp. 4-6 (La.App. 3 Cir. 4/6/05), 899 So.2d 836, 839-40.

In reviewing the sentences imposed where the defendant was allowed to plead

guilty to forcible rape after being charged with aggravated rape, we find support for

the trial court’s imposition of the maximum sentence. In State v. Colgin, 43,416

(La.App. 2 Cir. 8/13/08), 989 So.2d 876, where the defendant was originally charged

with aggravated rape but pled guilty to forcible rape, the appellate court found that

the maximum sentence of forty years at hard labor, the first fifteen to be served

without the benefit of probation, parole, or suspension of sentence, was appropriate

given the emotional damage to the ten-year-old victim and the defendant’s status as

a second sex-crime offender. In State v. Jarrett, 37,928 (La.App. 2 Cir. 12/10/03),

862 So.2d 440, the defendant was originally charged with aggravated rape,

aggravated burglary, armed robbery, and aggravated sexual battery; when he pled

guilty to forcible rape and aggravated burglary, the appellate court found that his

9

sentences of forty years for forcible rape and thirty years for aggravated burglary were

not excessive. In State v. Gray, 36,389 (La.App. 2 Cir. 9/18/02), 828 So.2d 176, the

defendant was originally charged with two counts of aggravated rape, but pled guilty

to two charges of forcible rape, and the state agreed not to charge the defendant as a

habitual offender and to dismiss other charges, including attempted aggravated rape,

simple robbery, and simple kidnapping. The trial court imposed two consecutive

sentences of forty years, which the appellate court found not to be excessive.

Here the defendant was originally charged with aggravated rape and the facts

supported that charge, the defendant gained significant benefit from his plea

agreement, and there exists no indication that the defendant agreed to plead for any

particular sentence exposure. We conclude that the sentence imposed on the

defendant before us is not excessive.

DISPOSITION

We affirm the defendant’s conviction and sentence in all respects.

AFFIRMED.

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STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

09-1044

STATE OF LOUISIANA

VERSUS

DARRELL JAMES FONTENOT

THIBODEAUX, Chief Judge, dissenting in part.

I dissent from the imposition of a forty-year sentence as I feel it is

constitutionally excessive.

The present case is similar to State v. Vallery, 04-1589 (La.App. 3 Cir.

4/6/05), 899 So.2d 836, cited by the majority, in that the facts were consistent with

aggravated rape.1 However, the present crime appears to have been less overtly

violent than the one at issue in Vallery. Also, Vallery addressed a sentence five years

shorter than the one imposed on Defendant. Further, the forty-year term was the

maximum that Defendant could have received. As noted in State v. Whatley, 03-1275

(La.App. 3 Cir. 3/3/04), 867 So.2d 955, ‘“[m]aximum sentences are reserved for the

most serious violations and the worst offenders.’ State v. Farhood, 02-490, p. 11

(La.App. 5 Cir. 3/25/03), 844 So.2d 217, 225.”

It is questionable whether Defendant is the “worst kind of offender.”

The record does not indicate that he struck the victim or committed physically violent

acts, other than the rape itself. Although all rapes are disgusting offenses, and are

classified as “crimes of violence” under La.R.S. 14:2(B), not all involve equal levels

1
Aggravated rape is defined by La.R.S. 14:42, which states, in pertinent part, “Aggravated
rape is a rape committed upon a person sixty-five years of age or older. . . .”

of violence. As noted earlier, the rape in Vallery was more violent than the one in

this case.

Our court has not hesitated to vacate sentences we considered to be

excessive. In a case involving the simple rape of an intoxicated victim, this court

stated:

The record reveals the following facts relevant to
review within the guidelines articulated in La.Code Crim.P.
art. 894.1: The Defendant was thirty-one years old at the
time of the offense. He is a single father raising his
daughter alone. He spent over twelve years as a member of
the U.S. Army, receiving an honorable discharge, and,
later, the National Guard. His mother, sister, and daughter
testified on his behalf. He expressed an acceptance of
responsibility for his actions which constituted simple rape
and apologized to the victim and her family. Finally, the
Defendant is a first felony offender.

Regarding aggravating factors, there is only one--the
allegation that Defendant attempted sexual contact with
another woman on the night of this offense, but she
declined his advances. Other than the facts which
constitute the elements of simple rape, there is nothing in
the record to warrant a fifteen-year sentence for this
defendant. By way of analogy, we refer to the case of State
v. Sergon, 449 So.2d 193 (La.App. 3 Cir. 1984). There the
defendant pled guilty to simple rape of a mental patient at
Pinecrest State Hospital. The trial court determined the
victim did not understand the nature of the offense because
of her mental condition and the defendant, a
twenty-nine-year-old member of the Louisiana National
Guard, knew of the victim’s incapacity. This court held the
defendant’s sentence of five years at hard labor was not
excessive.

We direct the sentencing court’s attention to the fact
that a sentence of five years or less is appropriate in this
case. See La.Code Crim.P. art. 881.4(A).

State v. Clark, 05-647, pp. 4-5 (La.App. 3 Cir. 12/30/05), 918 So.2d 552, 556.

In a manslaughter case, this court explained:

Defendant Runyon did initiate the violence into this
situation; however, he played a limited role in Mr. Wiley’s
death. He inflicted the wound on Mr. Wiley’s head, but

2

Defendant McDonald, unbeknownst to Defendant Runyon,
subsequently inflicted six stab wounds. All seven wounds
contributed to Mr. Wiley’s death, but the nature and
severity of the wounds inflicted by Defendant McDonald
would have contributed more to Mr. Wiley’s demise than
the single wound inflicted by Defendant Runyon.
Defendant Runyon’s involvement pales in comparison to
that of Defendant McDonald. For these reasons, we find
Defendant Runyon is not one of our worst offenders, and
the sentence imposed on him is excessive. Accordingly,
we vacate his sentence and remand the case for
re-sentencing.

State v. Runyon, 05-36, p. 24 (La.App. 3 Cir. 11/2/05), 916 So.2d 407, 424, writ

denied, 06-1348 (La. 9/1/06), 936 So.2d 207, writ denied, 06-667 (La. 11/17/06), 942

So.2d 526.

Regarding a sentence for indecent behavior with a juvenile, this court

said:

The offense of indecent behavior with a juvenile is
a heinous crime. It involves the use of innocent children to
satisfy the sexual desires of an adult and requires the
commission of a “lewd or lascivious act” upon, or in the
presence of the child. La.R.S. 14:81. In this case, the
defendant fondled the victim’s breasts and buttocks.
Clearly, society finds such activity inexcusable. Still, the
legislature has seen fit to limit the incarceration penalty to
a maximum of seven years at hard labor, and as previously
stated, the maximum penalty is reserved for the worst
offenders. Farhood, 844 So.2d 217.

The defendant was fifty-three years old at the time of
the offense and apparently had led a crime-free life. While
the evidence indicates that he did use some physical
restraint of the victim, the offense entailed no physical
violence. Additionally, despite the clear opportunity to do
so, the defendant did not attempt to press his physical and
timing advantage on his victim. Instead, after she rebuffed
his advances, he left. The nature of the defendant’s
touching, although inexcusable, is not compatible with the
degree of touching associated with those cases in which the
courts have chosen to render a maximum sentence.

In this case, the trial court “considered deeply the
psychological impact” the defendant’s actions had on the
victim. However, the record reflects that the victim

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admitted that she was already “somewhat depressed” at the
time of the incident because of the recent deaths of her
great-grandmother, uncle, and a close family friend. In
fact, the victim had seen a physician in April of 2002, or
two months before the offense, for “depressive behavior.”
The state has not cited any indecent behavior cases
comparable to the defendant’s where the maximum
sentence was imposed. Considering only a bare claim of
excessiveness, and without considering the merits of the
specific assignments of error, we still conclude that, based
on the record before us, the evidence does not establish that
the defendant is one of those worst offenders upon whom
the maximum penalty should be imposed. We find that the
trial court abused its wide discretion in sentencing the
defendant to the maximum incarceration sentence for this
particular offense.

Whatley, 867 So.2d 955.

Though we affirmed a twenty-five year sentence for simple rape in State

v. Despanie, 06-1269 (La.App. 3 Cir. 2/7/07), 949 So.2d 1260, Despanie provides

some insights. Despanie involved the rape of a ninety-two-year-old female victim

suffering from dementia in a long-term care facility. The defendant was a certified

nursing assistant at the facility. The victim in this case was eighty-five.

This Defendant and the defendant in Despanie were both charged with

aggravated rape, and pleaded guilty to a lesser offense.

The maximum forty-year sentence imposed by the trial court makes no

measurable contribution to acceptable penal goals, and is a needless imposition of

pain and suffering. See State v. Campbell, 404 So.2d 1205 (La.1981). The trial court

abused its discretion in imposing this sentence.

For the foregoing reasons, I respectfully dissent.

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