State of Louisiana v. Harrison Thibeaux

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

11-40

STATE OF LOUISIANA

VERSUS

HARRISON THIBEAUX

APPEAL FROM THE
SIXTEENTH JUDICIAL DISTRICT COURT
PARISH OF IBERIA, NO. 10-173
HONORABLE GERARD B. WATTIGNY, DISTRICT JUDGE

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ON REHEARING

SHANNON J. GREMILLION
JUDGE

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Court composed of Oswald A. Decuir, James T. Genovese, and Shannon J.
Gremillion, Judges.

SENTENCE AFFIRMED.

J. Phillip Haney
District Attorney - 16th JDC
300 Iberia Street, Suite 200
New Iberia, LA 70560
(337) 828-4100
COUNSEL FOR APPELLEE:
State of Louisiana

Edward K. Bauman
Attorney at Law
P. O. Box 1641
Lake Charles, LA 70602-1541
(337) 491-0593
COUNSEL FOR APPELLANT:
Harrison Thibeaux

GREMILLION, Judge.

In State v. Thibeaux, 11-40 (La.App. 3 Cir. 5/11/11), 65 So.3d 1193, this

court found the Defendant waived the right to appeal his five-year sentence by

entering into a plea agreement with a sentencing cap. Rehearing is granted for the

purpose of considering the correctness of this court’s finding.

The Defendant appealed his sentence, alleging the sentence was

constitutionally excessive and imposed without sufficient consideration of La.Code

Crim.P. art. 894.1. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The Defendant entered a plea of guilty to domestic abuse battery, third

offense, on July 13, 2010. At the time the Defendant entered his plea, the State

informed the trial court that the Defendant struck his wife during an argument

occurring on or about December 23, 2009. As a result, she suffered a bloody lip

and had red marks on the face. On September 8, 2010, the Defendant was

sentenced to serve five years at hard labor, with the first year to be served without

benefit of probation, parole, or suspension of sentence.

EXCESSIVE SENTENCE

The Defendant appealed his sentence alleging it was constitutionally

excessive, and the trial court failed to consider several mitigating factors, including

his age; marital status; dependents; family stability; employment; and mental,

emotional, and physical health.

The Defendant pled guilty to domestic abuse battery, third offense. The

penalty for said offense is imprisonment with or without hard labor for not less

than one year nor more than five years. The first year of the sentence is to be

imposed without benefit of probation, parole, or suspension of sentence. La.R.S.

14:35.3(E). The Defendant was sentenced to serve five years at hard labor, with

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

sentence. The sentence was ordered to run consecutively to a ten year sentence

imposed for theft over $500.

This court discussed the standard of review applicable to claims of

excessiveness in State v. Bailey, 07-130, p. 3 (La.App. 3 Cir. 10/3/07), 968 So.2d

247, 250, as follows:

A sentence which falls within the statutory limits
may be excessive under certain circumstances. To
constitute an excessive sentence, this Court must find that
the penalty is so grossly disproportionate to the severity
of the crime as to shock our sense of justice or that the
sentence makes no reasonable contribution to acceptable
penal goals and[,] therefore, is nothing more than the
needless imposition of pain and suffering. The trial
judge has broad discretion, and a reviewing court may
not set sentences aside absent a manifest abuse of
discretion.

State v. Guzman, 99-1753, 99-1528, p. 15 (La.5/16/00), 769 So.2d
1158, 1167 (citations omitted).

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
(citations omitted), this court discussed the factors it would consider
in order to determine whether a sentence shocks the sense of justice or
makes no meaningful contribution to acceptable penal goals:

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.”

At the sentencing hearing, the trial court reviewed a certified criminal

history. The trial court indicated the Defendant was forty years old, a mature adult,

and responsible and knowledgeable “for what he does.” The trial court further

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stated the Defendant had fourteen convictions from 1988 to 2009, and discussed

the prior convictions as follows:

His first conviction is in 1993, aggravated assault, a crime of
violence. He was sentenced to some time in jail and suspended
sentence.

1996, aggravated assault with a knife, crime of violence. He
was sentenced to five months in jail and probation.

Number 3, misrepresentation during booking and disturbing the
peace by intoxication. Number 4.

Number 5, theft over $500 in Lafayette. He was sentenced to
five years hard labor, suspended, three years probation. He was
revoked on that probation in 1999.

Number 6, aggravated battery, domestic. He pled guilty to
second degree battery. He was sentenced to four years at hard labor.
He served that sentence.

Number 7, simple burglary, 1998. He was convicted -
sentenced in 2000, convicted [sic] to serve eight years at hard labor. . .
. He was paroled, and his parole ended in 2008. So he completed that
matter successfully.

Number 8, aggravated assault, another crime of violence. He
served three months.

Number 9, theft of an automobile. He served three months.

Number 10, theft, one year.

Number 11, domestic abuse battery, 90 days, suspended, one
year probation.

Number 12, issuing worthless checks, 30 days in jail.

....

Number 13 is domestic abuse battery. He pled guilty. He
served 45 days in jail and one year probation. That was in 2009.

Number 14, issuing worthless checks, 2009, sentenced to six
months in jail, suspended, two years probation.

. . . Number 15 is the current matter.

The trial court further stated:

So he has 14 priors, and I’ve given the 14 priors and I said what
they are. And I’ve considered those in his sentence.

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He’s already had many opportunities to correct his behavior
since he has 14 prior convictions. He served time three times already,
and obviously serving time does not discourage him from future
criminal activity. He doesn’t seem to learn from being incarcerated.

He has crimes of violence. He has four in his prior history, four
crimes of violence. So he’s a danger to society, and I consider him a
danger to society.

I find he’s in need of correctional treatment best provided by
incarceration.

A lesser sentence would deprecate the seriousness of his
offenses and prior offenses.

The trial court considered the Defendant’s age at the time of sentencing.

However, the Defendant did not ask the trial court to consider his marital status;

dependents; family stability; employment; mental, emotional, and physical health;

or any other mitigating factors. Thus, the trial court did not err in failing to

consider those factors.

After reviewing the sentencing transcript, it is apparent the trial court

considered the factors set forth in La.Code Crim.P. art. 894.1 at the time the

Defendant was sentenced. Additionally, the record, which includes the

Defendant’s extensive criminal history, clearly supports the sentence imposed.

Furthermore, as part of the Defendant’s guilty plea, the State agreed not to charge

the Defendant as a habitual offender. Accordingly, there is no merit to the

Defendant’s assertion that his five-year sentence is excessive.

DECREE

Application for rehearing is granted. After a thorough review of the record,

we find Defendant’s sentence is not excessive. Therefore, Defendant’s sentence is

affirmed in all respects.

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