State of Louisiana v. Charles Johnson

DO NOT PUBLISH

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

09-1484

STATE OF LOUISIANA

VERSUS

CHARLES JOHNSON

**********
APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 12422-09
HONORABLE D. KENT SAVOIE, DISTRICT JUDGE

**********

J. DAVID PAINTER
JUDGE

**********
Court composed of Jimmie C. Peters, Marc T. Amy, and J. David Painter, Judges.

AFFIRMED.

Edward K. Bauman
Louisiana Appellate Project
P.O. Box 1641
Lake Charles, LA 70602
Counsel for Defendant-Appellant:
Charles Johnson

John F. DeRosier
District Attorney
David L. Kimball
Assistant District Attorney
Carla S. Sigler
Assistant District Attorney
1020 Ryan St.
Lake Charles, LA 70601
Counsel for Appellee:
State of Louisiana

PAINTER, Judge.

Defendant, Charles Johnson, appeals the sentence of five years at hard labor

imposed in connection with his conviction for theft over five hundred dollars.

Finding that it is not excessive, we affirm the sentence imposed by the trial court.

FACTS

On January 6, 2009, Defendant entered the Lake Charles City Hall posing as

a preacher collecting money for a woman who had been murdered. While in the

building, Defendant stole a laptop computer belonging to the fire chief and valued in

excess of five hundred dollars.

On March 27, 2009, Defendant was charged by bill of information with theft

over five hundred dollars, a violation of La.R.S. 14:67. On June 26, 2009, Defendant

entered a plea of guilty, and the State agreed not to charge him as a habitual offender.

Defendant was sentenced to five years at hard labor with credit for time served. A

motion to reconsider sentence was filed on July 1, 2009, and summarily denied.

Defendant is now before this court on appeal, asserting that his sentence is excessive.

DISCUSSION

Errors Patent

In accordance with La.Code Crim.P. art. 920, we have reviewed the record for

errors patent on its face and found none.

Excessive Sentence

In his sole assignment of error, Defendant argues that his sentence is excessive.

In his motion to reconsider sentence filed in the trial court, Defendant did not set

forth a specific ground upon which his motion was based, stating only that his

sentence was unconstitutionally excessive. Pursuant to La.Code Crim.P. art.

1

881.1(E), a motion to reconsider sentence must be based upon a specific ground.

Therefore, Defendant is relegated to a bare claim of excessiveness. State v. Mims,

619 So.2d 1059 (La.1993), State v. Franco, 08-1071 (La.App. 3 Cir. 4/1/09), 8 So.3d

790.

In State v. Semien, 06-841, pp. 11-12 (La.App. 3 Cir. 1/31/07), 948 So.2d 1189,

1197, writ denied, 07-448 (La. 10/12/07), 965 So.2d 397 (quoting State v. Whatley,

03-1275, p. 5 (La.App. 3 Cir. 3/3/04), 867 So.2d 955, 958) (alterations in original),

this court stated:

The Eighth Amendment to the United States Constitution and La.
Const. art. I, § 20 prohibit the imposition of cruel or excessive
punishment. “ ‘[T]he excessiveness of a sentence becomes a question
of law reviewable under the appellate jurisdiction of this court.’ ” State
v. Dorthey, 623 So.2d 1276, 1280 (La.1993) (quoting State v.
Sepulvado, 367 So.2d 762, 764 (La.1979)). Still, the trial court is given
wide discretion in imposing a sentence, and, absent a manifest abuse of
that discretion, we will not deem as excessive a sentence imposed within
statutory limits. State v. Pyke, 95-919 (La.App. 3 Cir. 3/6/96), 670
So.2d 713. However, “[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 us to consider on review is not whether another sentence
would be more appropriate, but 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,
136 L.Ed.2d 539 (1996).

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

2

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.

Pursuant to La.R.S. 14:67(B), the penalty for theft over five hundred dollars is

not more than ten years imprisonment, with or without hard labor, or a fine of not

more than three thousand dollars, or both. Defendant received a mid-range sentence

of five years and was spared a fine.

Defendant was sentenced immediately after his guilty plea. At the time of his

plea, the State presented the details of the offense, and Defendant admitted to taking

the laptop. Defendant addressed the trial court, stating that he knew that what he did

was stupid. He explained that he was from New Orleans and did not know anyone

in Lake Charles. When he lost his job, he did not have money to buy medication for

his pregnant fiancée. According to Defendant, he had no intention of taking anything

when he entered the building on the day of the offense. However, he alleges that

when he saw the laptop computer, he seized the opportunity because they needed

help.

The State responded by stating that Defendant was stealing in the name of the

Lord and maintained that Defendant entered the building with the intent to steal. In

addition to the facts of the offense provided herein, the State referred to Defendant

as a con artist and said that what Defendant told the trial court was a “bunch of bull.”

The State also indicated that Defendant had an extensive record and was not entitled

to probation. Further, the State noted that Defendant was from New Orleans, making

it difficult to tell how many offenses he had been convicted of. According to the

State, Defendant had been convicted of burglary at least three times, most recently in

3

1998. Defendant admitted to the trial court that he had been convicted three times for

felony offenses, but he insisted that since that time, he had not been in trouble.

Lastly, the trial court confirmed that the laptop computer was never recovered.

Considering Defendant’s prior felonies, Defendant received a substantial

benefit from his plea agreement. In exchange for his guilty plea, the State agreed not

to charge Defendant as a habitual offender, significantly reducing his sentencing

exposure.

A review of the jurisprudence reflects that Defendant’s sentence is in keeping

with sentences imposed in similar cases. See State v. Granger, 08-1477 (La.App. 3

Cir. 6/3/09), 11 So.3d 649; State v. Brown, 08-1434 (La.App. 4 Cir. 3/18/09), 7 So.3d

1238; State v. Smith, 08-1030 (La.App. 3 Cir. 3/4/09), 6 So.3d 309.

In the instant case, considering Defendant’s prior criminal history, the lack of

mitigating factors in the commission of the offense, the benefit Defendant received

from his plea agreement, and sentences imposed in similar cases, Defendant’s

sentence is not excessive and will be affirmed.

CONCLUSION

For the foregoing reasons, Defendant’s sentence is affirmed.

AFFIRMED.

4