State of Louisiana v. Johnny Manuel Polanco

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

11-157 consolidated with 11-158

STATE OF LOUISIANA

VERSUS

JOHNNY MANUEL POLANCO

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APPEAL FROM THE
THIRTY-EIGHTH JUDICIAL DISTRICT COURT
PARISH OF CAMERON, NOS. 133504 & 133507
HONORABLE H. WARD FONTENOT, DISTRICT JUDGE

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ULYSSES GENE THIBODEAUX
CHIEF JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Jimmie C. Peters, and
Shannon J. Gremillion, Judges.

AFFIRMED.

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

Cecil R. Sanner
District Attorney - Thirty-Eighth Judicial District Court
P. O. Box 280
Cameron, LA 70681
Telephone: (337) 775-5713
COUNSEL FOR:
Plaintiff/Appellee - State of Louisiana

Winfred Thomas Barrett, III
3401 Ryan Street - Suite 307
Lake Charles, LA 70605
Telephone: (337) 474-7311
COUNSEL FOR:
Plaintiff/Appellee - State of Louisiana

THIBODEAUX, Chief Judge.

The defendant, Johnny Manuel Polanco, burglarized the same

convenience store two times in 2008. He was charged with two counts of simple

burglary, a violation of La.R.S. 14:62. Mr. Polanco pled guilty to both counts of

simple burglary in exchange for dismissals of various other charges. The trial court

sentenced him to eight (8) years at hard labor on each count of simple burglary, to be

served concurrently. Mr. Polanco now appeals and alleges that the sentence imposed

was excessive.

In this opinion, we have consolidated the two appeals, 11-157 and 11-

158 (deriving from the conviction of two counts of simple burglary, trial court docket

numbers 133504 and133507). For the reasons set forth below, we affirm the

judgment of the trial court.

I.

ISSUES

We must decide whether the trial court failed to give sufficient

consideration to mitigating factors in fashioning a sentence in this case, such that an

eight-year sentence for simple burglary, concurrent with an eight-year sentence on a

second count of simple burglary, is excessive for this offender in this case.

II.

FACTS AND PROCEDURAL HISTORY

On January 21, 2008, and again on April 18, 2008, Mr. Polanco entered

the Bayou Convenience store in Cameron Parish and stole cash and other items from

the establishment.

Pursuant to a plea agreement on the two simple burglary charges, other

charges against Mr. Polanco were dismissed. These charges included two thefts,

simple criminal damage to property, attempted simple escape, battery of a police

officer, and aggravated assault. Pursuant to Mr. Polanco’s guilty plea on the two

simple burglary charges, a presentence investigation report was ordered. Mr. Polanco

was sentenced to eight (8) years at hard labor for each of the two counts, to be served

concurrently. Mr. Polanco filed a motion to reconsider the sentence. After a hearing

on the motion was conducted, and after the trial court took the matter under

advisement, the court denied the motion. Mr. Polanco appeals.

III.

STANDARD OF REVIEW

“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.” State v. Salameh, 09-1422, p. 4 (La.App. 3 Cir.

5/5/10), 38 So.3d 568, 570 (quoting State v,. Barling, 00-1241, 00-1591, p. 12

(La.App. 3 Cir. 1/31/01), 779 So.2d 1035, 1042-43, writ denied, 01-838 (La. 2/1/02),

808 So.2d 331).

IV.

LAW AND DISCUSSION

Mr. Polanco contends that the trial court did not give adequate

consideration to mitigating factors in his case and that his sentences are excessive.

We find that the trial court did not err in sentencing Mr. Polanco and that his

contentions have no merit.

In his brief to this court, Mr. Polanco claims that he was a first felony

offender, with other “unadjudicated criminal conduct,” that he was only twenty-nine

years old at the time of the offenses, that the crimes were “due to a drug condition,”

and that he has custody of four minor children. He also alleges that the trial judge
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was “sympathetic to the victim” in the case and that this was a “major factor” in

deciding upon the sentence.

With regard to the court’s consideration of mitigating factors, at the

sentencing hearing, the trial court noted that no one was “physically hurt” during Mr.

Polanco’s crimes. The court also found, however, that Mr. Polanco had done severe

damage to the property and even took the donations for children’s charities which

were located in the store. Mr. Polanco committed these crimes after a devastating

hurricane severely damaged Cameron Parish. Further, the trial court recounted Mr.

Polanco’s history of problems while incarcerated and heard about Mr. Polanco’s prior

arrests and a burglary investigation in Beaumont, Texas that implicated Mr. Polanco.

The court was informed by the State that the victims in this case would be willing to

“forgo any restitution to see Mr. Polanco serve some jail time.”

Mr. Polanco informed the court that he had custody of his four small

children at the time of sentencing, and he apologized for his crimes. Mr. Polanco’s

father, stepmother, and sister testified on his behalf at the hearing, stating that he does

not normally behave as he did during these incidents. The State pointed out that Mr.

Polanco’s crimes were not the result of drug addiction, but were calculated and

required forethought. The trial judge found that Mr. Polanco was in need of a

significant amount of incarceration and was not a good candidate for probation; he

imposed sentences of eight years on each count of the simple burglaries, to be served

concurrently.

During the hearing on the motion to reconsider the sentence, Mr.

Polanco’s recent employer testified that Mr. Polanco was a good and stable employee

as a maintenance man at a nursing home and that he would be welcome to return to

his job, if placed on probation. Mr. Polanco’s counsel also noted for the court that

the Department of Corrections was classifying Mr. Polanco as a “second offender,”
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because the crimes were committed on separate days, thereby increasing the amount

of time he must serve before becoming eligible for parole. Additionally, counsel

stated that Mr. Polanco had access to another $3,000.00, which could be used as

additional restitution. The trial court ultimately denied Mr. Polanco’s motion to

reconsider the sentence.

The crime of simple burglary carries a penalty of up to twelve (12) years,

with or without hard labor, and a fine of up to $2,000.00. See La.R.S. 14:62. The

trial court imposed no fine on Mr. Polanco, and it maintained the eight-year

sentences, which were significantly less than the maximum sentences for the crimes.

In reviewing claims alleging excessive sentence, this court has held that:

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, 136 L.Ed.2d 539
(1996).

State v. Fontenot, 09-1044, p. 4 (La.App. 3 Cir. 5/12/10), 38 So.2d 1122, 1125-26.
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Further, although the sentencing judge must state the considerations

taken into account and the factual basis for imposing the sentence, the trial court

“need not articulate every circumstance or read through a checklist of items.” See

State v. Anderson, 95-1688, p. 4 (La.App. 3 Cir. 5/8/96), 677 So.2d 480, 483, and

La.Code Crim.P. art. 894.1(C).

Additionally, La.Code Crim.P. art. 894.1(A) provides that the trial court

should impose a sentence of imprisonment if any of these criteria are proven in 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.

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

In comparing Mr. Polanco’s sentences with those in similar cases, we

note that identical or even harsher penalties have been affirmed on review. In State

v. Nelson, 44,762, p. 19 (La.App. 2 Cir. 10/28/09), 25 So.3d 905, 917, the court

upheld a sentence of eight years for simple burglary, finding that it was not excessive.

The reviewing court upheld the maximum sentence of twelve years for simple

burglary, resulting from a guilty plea, in State v. Holland, 43,790, pp. 4-5 (La.App.

2 Cir. 1/14/09), 2 So.3d 575, 577, even considering the defendant’s youthful age,

recent employment, and drug problems.

As noted in the State’s brief, sentences for simple burglary equal to Mr.

Polanco’s or greater have been routinely affirmed on appeal, including cases where

the defendant had little or no criminal history. See State v. Coats, 561 So.2d 790

(La.App. 2 Cir. 1990) (nine year sentence for first felony conviction); State v. Morris,

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98-236 (La.App. 5 Cir. 9/16/98), 719 So.2d 1076 (twelve years for defendant without

criminal history); State v. Alsup, 42,636 (La.App. 2 Cir. 10/24/07), 968 So.2d 1152,

writ denied, 07-2252 (La. 4/25/08), 978 So.2d 363 (eight years for first offense); State

v. Johnson, 457 So.2d 732 (La.App. 2 Cir.), writ denied, 460 So.2d 608 (La.1984)

(twelve years with no criminal history); State v. Burns, 44,937 (La.App. 2 Cir.

2/2/10), 32 So.3d 261 (twelve years, consecutive with other sentences for separate

offenses).

Here, the trial court adequately considered both aggravating and

mitigating factors in Mr. Polanco’s case and gave Mr. Polanco a full opportunity to

make his case for leniency at his sentencing hearing and during the hearing on the

motion to reconsider the sentence. The trial court did not err in imposing sentences

of eight years on Mr. Polanco for each count of simple burglary. The sentences are

within the statutory range imposed on other defendants who were similarly situated,

particularly considering the fact that the trial judge chose to order the sentences to be

served concurrently, rather than consecutively, as was his prerogative.

Mr. Polanco therefore failed to show that the trial court abused its

discretion in imposing the sentences or that the sentences are excessive. Accordingly,

the claim by Mr. Polanco is denied.

V.

CONCLUSION

Given the record on appeal in this case, we must affirm the two

concurrent eight-year sentences imposed by the trial court for Mr. Polanco’s repeat

crimes of simple burglary upon the store in Cameron Parish.

AFFIRMED.

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