State of Louisiana v. Bianca Turner

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

09-1541

STATE OF LOUISIANA

VERSUS

BIANCA TURNER

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APPEAL FROM THE
TWELFTH JUDICIAL DISTRICT COURT
PARISH OF AVOYELLES, NO. 147577-B
HONORABLE WILLIAM BENNETT, DISTRICT JUDGE

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JOHN D. SAUNDERS
JUDGE

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Court composed of John D. Saunders, Jimmie C. Peters, and Elizabeth A. Pickett,
Judges.

AFFIRMED.

Hon. Charles A. Riddle III
District Attorney, 12th JDC
Miche’, Moreau, Assistant District Attorney
P. O. Box 608
Marksville, LA 71351
(318) 253-6587
Counsel for Plaintiff/Appellee:
State of Louisiana

Donald Ray Dobbins
Attorney at Law
327 North Boulevard Suite #103
Baton Rouge, LA 70801
(225) 387-6010
Counsel for Defendant/Appellant:
Bianca Turner

SAUNDERS, Judge.

Defendant, Bianca Turner, was charged by bill of information with one count

of aggravated second degree battery, a violation of La.R.S. 14:34.7. A jury trial

commenced on July 7, 2009, and on the same date, Defendant was found guilty as

charged. Defendant was sentenced on August 25, 2009, to six years at hard labor

with credit for time served. A “Motion to Reconsider Sentence,” was filed on

September 10, 2009, which was denied without a hearing or written reasons.

Defendant has perfected a timely appeal wherein she raises one assignment of

error, that the sentence of six years is excessive under the circumstances of the case.

For the following reasons, we find that the trial court did not abuse its vast discretion

when it sentenced Defendant to six years imprisonment. Accordingly, we affirm

Defendant’s sentence.

FACTS:

Defendant went to the home of the victim, Audra Stelly, looking for another

friend whom she had fought with earlier in the day. Defendant was armed with a

kitchen knife. She argued with Ms. Stelly, they began to fight, and Defendant

stabbed Ms. Stelly several times. Ms. Stelly sustained serious, life-threatening

injuries and permanent physical damage.

ASSIGNMENT OF ERROR:

For her sole assignment of error, Defendant asserts that the six-year

imprisonment at hard labor sentence is constitutionally excessive under the

circumstances of her case. We disagree.

While discussing a six-year sentence imposed on a defendant for the offense

of aggravated second degree battery, this court stated:

Louisiana Revised Statutes 14:34.7(B) provides that “[w]hoever
commits the crime of aggravated second degree battery shall be fined

not more than ten thousand dollars or imprisoned, with or without hard
labor, for not more than fifteen years, or both.” Thus, the defendant
received a sentence that is less than one-half of what he could have
received. Still, a sentence which 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). 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.

In brief, Defendant argues that the trial court failed to take into consideration

several compelling mitigating factors when it fashioned her sentence, with the

Defendant’s children being the “second most compelling factor for as[sic] lesser

sentence[,] because courts traditionally recognize ‘undue hardship’ on innocent

children when imposing sentence.” Defendant also points out that she was a first-

time felony offender and that she “showed remorse, apologized to the victim, court

and their friends.”

At the sentencing hearing, Ms. Stelly briefly described her injuries and stated

that she thought Defendant should do some time. Defendant also spoke at the hearing,

stating “I just want to apologize to Audra and her family for what I did.”

The trial court noted for the record that it had received several letters regarding

Defendant’s potential to be an upstanding, law-abiding citizen, noting that while

several of the letters indicated that she would not deliberately hurt anyone, it was

obviously not true in the current case. The trial court stated:

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What I did in deciding sentencing is I looked at the factors that are set
forth in Article 894.1 of the Louisiana Code of Criminal Procedure. I do
find that there is an undue risk concerning the activity committed by
Bianca Turner in this case. There is a undue risk that during any period
of a suspended sentence she would commit another crime. She is in
definite need of correctional treatment which can be provided most
effectively by commitment to an institution and any lesser sentence that
I issue herein would deprecate or lessen the seriousness of her crime. In
reviewing aggravated factors, Ms. Turner[,] I find the following to
exists[sic]. First of all[,] your conduct during the commission of this
crime manifested deliberate cruelty to Audra Stelly. The evidence
adduced at trial confirmed that after the initial altercation between you
and another individual you had several occasions and a long period of
time wherein you could have removed yourself from any further conflict
or refrain from any further criminal activity. Instead, the evidence
confirmed that you made a cold and calculated decision to arm yourself
with a knife. To go to the home of Audra Stelly seeking out the other
person that you were fighting that you had fought with [sic]. However,
then getting into an argument with Ms. Stelly[,] and in doing and
inflicting [sic] a serious near fatal stab wound to the chest of Audra
Stelly. The medical evidence confirms that Audra Stelly was near death.
This is deliberate cruelty. The second aggravating factor is that you
knowingly created a risk of death or great bodily harm by arming
yourself with a knife and you even testified that you had the intent to use
the knife. Although not the intent initially on Audra Stelly, you had the
intent to use it. The third factor is that you used actual violence, an
admission of the offense. The fourth factor is that this offense resulted
in a significant, permanent injury to Ms. Stelly which will be the
scarring to the chest area and the injuries to the nerve damage in her
hand. Also, an aggravating factor is you used a dangerous weapon in the
commission of the offense. In considering mitigating factors, these are
factors that I have to consider that would help to lessen the sentence. I
find the following: No. 1, you have no history of a prior of [sic] any
prior criminal activity. No. 2, the imprisonment of you will entail a
hardship on your children and No. 3, I received several letters which
would constitute mitigating factors.

....

I also looked at prior cases such as yours that went before the
higher courts that were reviewed. I found one similar case in State vs.
Lee, where a first offender such as you received on the crime of this
same crime Aggravated Second Degree Battery a six year sentence was
not considered to be excessive considering that this was less than one
half of the maximum which is fifteen years. I looked at many other cases
which seven, eight, nine, ten, eleven, twelve years were given but never
for a first offender was that upheld. It was always on a second or third
offender or if other crimes were involved. We must also remember that

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in this case very easily you could have been charged with Attempted
Murder instead of Aggravated Second Degree Battery and therefore and
which would be facing a much [more] serious sentence.

Given the above, we find that the trial court took adequate consideration of the

mitigating factors that contributed to lessening Defendant’s sentence, including

comparing her situation to similarly situated defendants. See Lee, 966 So.2d 1217.

In 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, this court noted:

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. 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.

In State v. Livingston, 39,390 (La.App. 2 Cir. 4/6/05), 899 So.2d 733, our

second circuit did not find a thirteen-year sentence excessive for a first-time felony

offender who was originally charged with attempted manslaughter, but pled guilty to

aggravated second degree battery. The defendant had kicked the victim several times

in the face and stomach with steel-toed boots. While the injuries sustained by the

victim in the current case were not as severe as the injuries sustained by the victim

in Livingston, they were no less life-threatening. In the current case, the trial court

presided over Defendant’s trial and heard the testimony and was in the best position

to sentence Defendant. During the sentencing hearing, the trial court noted that he

knew Defendant and her family personally and was aware of the hardships imposed

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on her and her children, yet had to consider the seriousness of the crime and injury

she caused the victim. For all of the above reasons, this court cannot say that the trial

court abused its considerable discretion when it sentenced Defendant to six years at

hard labor. The term of imprisonment is not such that would shock this court’s sense

of justice.

DECREE:

Defendant’s sentence is affirmed.

AFFIRMED.

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