State of Louisiana v. John D. Skinner

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

11-703

STATE OF LOUISIANA

VERSUS

JOHN D. SKINNER

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APPEAL FROM THE
THIRTIETH JUDICIAL DISTRICT COURT
PARISH OF VERNON, NO. 78081
HONORABLE VERNON B. CLARK, DISTRICT JUDGE

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MARC T. AMY
JUDGE

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Court composed of Jimmie C. Peters, Marc T. Amy, and Shannon J. Gremillion,
Judges.

AFFIRMED.

Asa A. Skinner
District Attorney
Post Office Box 1188
Leesville, LA 71496-1188
(337) 239-2008
COUNSEL FOR APPELLEE:
State of Louisiana

Terry W. Lambright
118 S. Third Street, Suite A
Leesville, LA 71446
(337) 239-6557
COUNSEL FOR APPELLEE:
State of Louisiana

Edward K. Bauman
Louisiana Appellate Project
Post Office Box 1641
Lake Charles, LA 70602-1641
(337) 491-0570
COUNSEL FOR DEFENDANT/APPELLANT:
John D. Skinner

AMY, Judge.

The defendant was charged with theft over $500.00, a violation of La.R.S.

14:67. As part of a plea agreement with the State, the defendant pled guilty to theft

over $500.00 and, in a separate docket number, an unrelated bail jumping charge.1

For the theft charge, the trial court imposed a sentence of seven years at hard labor

with a fine of $1,500.00, as well as restitution in the amount of $4,898.90. The

trial court ordered that the defendant‟s sentence in this case was to run

concurrently with his sentence on the bail jumping charge. The defendant appeals.

For the following reasons, we affirm.

Factual and Procedural Background

The record indicates that the defendant was arrested and charged with theft

over $500.00, a violation of La.R.S. 14:67, in connection with the theft of a

generator from a nursing home. As part of a plea agreement, the defendant

subsequently entered a plea of guilty to the instant charge, as well as an unrelated

charge of bail jumping, a violation of La.R.S. 14:110.1, in a separate docket

number. In exchange for the defendant‟s guilty plea, the State dropped several

other pending cases, including charges of principal to theft, theft of firearms, and

another count of bail jumping. The State also agreed to recommend that the

defendant‟s sentence on the theft charge run concurrently with his sentence on the

bail jumping charge, and agreed not to institute habitual offender proceedings.

For the instant charge, the trial court sentenced the defendant to seven years

at hard labor, which was to run concurrently with his sentence in the bail jumping

case, and a fine of $1,500.00. 2 The trial court also imposed restitution of

1
The defendant has also appealed his sentence for the bail jumping charge. See State of
Louisiana v. John D. Skinner, 11-704 (La.App. 3 Cir. _/_/12), __ So.3d __.
2
The trial court imposed a sentence of two years at hard labor and restitution as ordered
in this case on the bail jumping charge.

$4,898.90. The defendant subsequently filed a motion for reconsideration of

sentence, which was denied without reasons.

The defendant appeals, asserting as his sole assignment of error that “[t]he

Trial Court erred in that the sentences imposed [ … ] are constitutionally excessive

and imposed without sufficient consideration of Art. 894.1.”

Discussion

Errors Patent

Pursuant to La.Code Crim.P. art. 920, all appeals are reviewed for errors

patent on the face of the record. After reviewing the record, we find no errors

patent.

Excessiveness of Sentence

The defendant contends that the sentence imposed by the trial court is

unconstitutionally excessive and that the trial court failed to adequately consider

the sentencing factors delineated in La.Code Crim.P. art. 894.1.

We first examine the defendant‟s contention that the trial court failed to

adequately consider the sentencing factors prescribed in La.Code Crim.P art.

894.1(C), which requires that the trial court state for the record the considerations

taken into account and the factual basis for the sentence imposed. The trial court

must adequately consider Article 894.1‟s guidelines in particularizing a

defendant‟s sentence; however, it need not articulate every aggravating and

mitigating factor contained therein. State v. Smith, 433 So.2d 688 (La.1983). We

note that “[t]he important elements which should be considered are the defendant‟s

personal history (age, family ties, marital status, health, employment record), prior

criminal record, seriousness of offense and the likelihood of rehabilitation.” State

v. Hutcherson, 34,540, p. 13 (La.App. 2 Cir. 4/4/01), 785 So.2d 140, 148 (citing

State v. Jones, 398 So.2d 1049 (La.1981)); State v. Bradford, 29,519 (La.App. 2
2

Cir. 4/2/97), 691 So.2d 864. Further, the trial court may consider factors not listed

in Article 894.1, including whether a plea bargain results in a significant reduction

in the defendant‟s potential sentencing exposure and criminal conduct that did not

result in a conviction. State v. Williams, 02-707 (La.App. 3 Cir. 3/5/03), 839 So.2d

1095.

The record indicates that, at the sentencing hearing, the trial court stated that

it “reviewed the [pre-sentence] report and noted the factors under Article 894.1.”

The trial court considered the defendant‟s age, family history, education and

employment history. Further, the trial court observed that the defendant had a

history of drug and alcohol problems, “mostly alcohol,” and had attended a

treatment program at one point. Noting the defendant‟s criminal history, the trial

court observed that the defendant was considered a third felony offender and was

not eligible for probation. Additionally, the trial court stated that there was

economic harm to the victim and that there was no substantial justification or

excuse for the defendant‟s actions.

We note that the defendant‟s sentencing exposure was substantially reduced

because, as part of the plea agreement, the State dropped three other pending cases,

recommended that the defendant‟s sentences run concurrently, and agreed not to

institute habitual offender proceedings against the defendant. Based on our review

of the record, we find that the trial court adequately considered the sentencing

factors delineated under Article 894.1.

We now turn to the defendant‟s contention that his sentence is

unconstitutionally excessive. A panel of this court summarized the standard to be

used in reviewing excessive sentence claims in State v. Davenport, 07-254, pp. 3-4

(La.App. 3 Cir. 10/3/07), 967 So.2d 563, 565, stating:

3

The Eighth Amendment to the United States Constitution and
La. Const. art. 1, § 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)). Nevertheless, 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. “Maximum 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).

In making this determination, the appellate court may take into account 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, 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. However,

the appellate court should remain mindful that the sentence should be

particularized to the individual defendant and the particular offense committed.

State v. Wagner, 07-128 (La.App. 3 Cir. 11/5/08), 996 So.2d 1208.

The defendant was charged with theft over $500, and the record indicates

that the defendant acknowledged restitution in the amount of $4,898.90. 3

Accordingly, the appropriate sentencing provision is contained within La.R.S.

3
In reciting the terms of the plea agreement at the defendant‟s plea hearing, the district
attorney stated that it was his understanding that “the State would dismiss bill of information
79,520 and 521, however Mr. Skinner acknowledges these charges for the purpose of restitution.
It is my understanding, Your Honor, that the total restitution amount was four thousand eight
hundred ninety-eight dollars and ninety cents. Also, my understanding that the co-defendant,
who‟s paid part of that, and insurance he‟s paid part of it [sic], so if there is any restitution, he‟s
acknowledging it for that purpose.” At the same hearing, when questioned by the trial court, the
defendant agreed that the State‟s recitation of the plea agreement was the agreement he had with
the State.

4

14:67(B)(1), 4 which states “[w]hoever commits the crime of theft when the

misappropriation or taking amounts to a value of five hundred dollars or more shall

be imprisoned, with or without hard labor, for not more than ten years, or may be

fined not more than three thousand dollars, or both.”

For the instant charge, in addition to restitution,5 the trial court sentenced the

defendant to seven years at hard labor and a fine of $1,500.00. We find that there

is an adequate basis in the record for this sentence. As previously discussed, at the

sentencing hearing, the trial court addressed several of the aggravating and

mitigating circumstances laid out in La.Code Crim.P. art. 894.1, including that the

crime caused economic harm to the victim. Further, the trial court observed that

the defendant had previously been convicted of simple burglary and two counts of

theft, aggravated battery and attempted second degree battery. Additionally, the

defendant had several misdemeanor convictions. A review of comparable cases

indicates that similar sentences have been upheld on appeal. See State v. Thomas,

38,218 (La.App. 2 Cir. 3/5/04), 867 So.2d 999; State v. Madison, 535 So.2d 1024

(La.App. 2 Cir. 1988); State v. Morris, 525 So.2d 1247 (La.App. 2 Cir. 1988).

Accordingly, we find that the defendant‟s sentence for theft over $500, a violation

of La.R.S. 14:67, is not unconstitutionally excessive.

The defendant‟s assignment of error is without merit.

4
We note that, effective August 15, 2010, La.R.S. 14:67 was amended to change the
gradation scale governing its applicable penalties. The record indicates that the instant offense
occurred on October 25, 2009. Accordingly, we use the version of La.R.S. 14:67 in effect at the
time of the offense. See State v. Narcisse, 426 So.2d 118 (La.1983), cert. denied, 464 U.S. 865,
104 S.Ct. 202 (1983). See also State v. Oliver, 03-416 (La.App. 5 Cir. 12/29/09), 30 So.3d 946,
writ denied, 10-271 (La. 9/17/10), 45 So.3d 1041.
5
See La.Code Crim.P. art. 883.1.
5

DECREE

The defendant‟s sentence for theft over $500, a violation of La.R.S. 14:67, is

affirmed.

AFFIRMED.

6