State of Louisiana v. Anthony Paul Lisotta, Jr.

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

11-1461

STATE OF LOUISIANA

VERSUS

ANTHONY PAUL LISOTTA, JR.

**********
APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, DOCKET NO. 30036-10
HONORABLE DAVID KENT SAVOIE, DISTRICT JUDGE
**********

SYLVIA R. COOKS
JUDGE

**********

Court composed of Judges Sylvia R. Cooks, J. David Painter, and James T.
Genovese.

AFFIRMED IN PART. MISDEMEANOR SEVERED AND
DEFENDANT INSTRUCTED TO FILE AN APPLICATION SEEKING
SUPERVISORY REVIEW THEREOF WITHIN THIRTY DAYS OF THIS
OPNION IF HE SO CHOOSES.

Edward K. Bauman
Louisiana Appellate Project
P.O. Box 1641
Lake Charles, LA 70602
(337) 491-0570
Attorney For Defendant/Appellant;
Anthony Paul Lisotta, Jr.

John F. DeRosier, District Attorney
Carla S. Sigler, Assistant District Attorney
Karen C. McClellan, Assistant District Attorney
Fourteenth Judicial District
901 Lakeshore Drive, Suite 600
Lake Charles, LA 70601
(337) 437-3400
Attorneys For the State of Louisiana/Appellee

Cooks, Judge
FACTS AND PROCEDURAL HISTORY

Anthony Paul Lisotta, Jr. (Defendant) was charged with two counts of

cruelty to juveniles, violations of La.R.S. 14:93, as well as one count of illegal use

of a controlled dangerous substance (CDS) in the presence of a person under the

age of seventeen, a violation of La.R.S. 14:91.13. Defendant smoked marijuana in

the presence of his nephews, ages eight and eleven. The eight-year-old child

smoked marijuana with him. That child suffered chest pains and was taken to a

hospital suffering serious physical symptoms. Testing revealed THC in his system.

The nephew, who was eleven at the time of the incident, was already experienced

in using marijuana, and it was not alleged that he smoked any at the time or that he

suffered any injury in the episode.

Defendant is a former special education student who has lived with his

mother his entire life. He has had an alcohol addiction problem and a drug

addiction problem for many years and is the victim of an abusive, alcoholic father

who physically abused him and his mother. He was previously under psychiatric

care for approximately two years. Defendant, who never completed high school,

has held employment intermittently at minimum wage jobs. Defendant has one

prior felony conviction for aggravated assault and prior convictions for disturbing

the peace by public intoxication and for possession of marijuana.

Originally, Defendant entered pleas of not guilty and not guilty by reason of

insanity. Defendant withdrew his not guilty pleas and plead guilty to one count of

cruelty to a juvenile and one count of illegal use of a CDS in the presence of a

person under the age of seventeen. As part of the plea agreement, the State

dismissed the remaining count of cruelty to a juvenile. Defendant’s appointed

counsel did not have an intelligence test performed on Defendant and offered no

mitigating evidence at sentencing. Defendant was sentenced to ten years at hard

labor on the charge of cruelty to a juvenile, five years of the sentence was

suspended, and he is to be placed on probation for five years after his term of

imprisonment is served. He was also sentenced to serve six months in the parish

jail on the charge of illegal use of a CDS in the presence of a person under

seventeen years of age, this sentence to run concurrent with his other sentence.

Defendant’s attorney did not file a motion to reconsider sentence. The Louisiana

Appellate Project was appointed to represent Defendant on appeal. He appeals his

sentence on the conviction of cruelty to a juvenile, asserting the sentence is

excessive.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, we review all criminal appeals

for errors patent on the face of the record. After reviewing the record, we find

there is an error patent on the face of the record.

We find there was a misjoinder of offenses in the bill of information.

Louisiana Code of Criminal Procedure Article 493 provides for the joinder of

offenses in a single bill of information under limited circumstances, if the offenses

joined are triable by the same mode of trial.

In the present case, Counts I and II, which are punishable with or without

hard labor, are triable by a six person jury, all of whom must concur. La.Code

Crim.P. art. 782. Count III, which is a misdemeanor, is triable by a judge only.

La.Code Crim.P. art. 779. Therefore, pursuant to La.Code Crim.P. art. 493, Counts

I and II were properly joined, but Count III was not. The State dismissed Count II

in conjunction with the Defendant’s guilty plea to Counts I and III.

2

This court addressed this issue in State v. LeBlanc, 08-1533, pp. 3-5

(La.App. 3 Cir. 6/10/09), 12 So.3d 1125, 1127-28, reversed on other grounds, 09-

1355 (La. 7/6/10), 41 So.3d 1168:

First, there is a misjoinder of offenses in the bill of indictment.
Counts 1 and 6 of the bill of information are punishable by
imprisonment with or without hard labor, and are thus triable by a jury
of six, all of whom must concur to render a verdict. La.Code Crim.P.
art. 782, La.R.S. 14:32.1 and La.R.S. 40:967. The remaining counts
of the twelve count bill are to be tried by the court without a jury.
La.Code Crim.P. art. 779. Louisiana Code of Criminal Procedure
Article 493 provides for the joinder of offenses in a single bill under
limited circumstances if the offenses joined are triable by the same
mode of trial. Consequently, Counts 1 and 6 were improperly joined
with the remaining counts. However, the Defendant did not file a
motion to quash the bill of information on the basis of misjoinder of
offenses, as required by statute. La.Code Crim.P. art. 495.
Additionally, by entering an unqualified guilty plea, the Defendant
waived review of this non-jurisdictional pre-plea defect. See State v.
Crosby, 338 So.2d 584 (La.1976). Thus, this error is precluded from
review.

....

We next address a procedural issue. The Defendant entered a
plea of guilty to Counts 1 through 4. Because Counts 2-4, vehicular
negligent injuring, were not triable by jury, the proper mode of
appellate review for these offenses is an application for writ of review,
rather than an appeal. La.Code Crim.P. art. 912.1.

Defendant has not challenged her misdemeanor convictions.
Her only assignment of error concerns the alleged excessiveness of
her sentence, and her argument refers specifically to her sentence for
vehicular homicide. Therefore, we hereby sever the misdemeanors
from this appeal and instruct the Defendant that if she chooses to seek
review of the misdemeanors, she must file an application seeking
supervisory review with this court within thirty days of the court's
ruling on appeal. See State v. Turner, 04-1250 (La.App. 3 Cir.
3/2/05), 896 So.2d 286, writ denied, 05-871 (La.12/12/05), 917 So.2d
1084.

In the present case, Defendant did not file a motion to quash the bill of

information on the basis of misjoinder of offenses. He entered an unqualified

guilty plea thereby waiving review of this pre-plea defect.

3

In this appeal, Defendant challenges only his sentence for cruelty to a

juvenile.1 Therefore, in accordance with our holdings in LeBlanc and Turner, we

will sever the misdemeanor conviction from the appeal and instruct Defendant to

file an application seeking supervisory review of his misdemeanor conviction on

Count III within thirty days of the court’s ruling on appeal, if he so desires.

REVIEW OF SENTENCE COUNT I

As to Defendant’s sentence on Count I, we first note that Defendant was

sentenced in accordance with a plea agreement. Louisiana Code of Criminal

Procedure Article 881.2 (A)(2) provides “the defendant cannot appeal or seek

review of a sentence imposed in conformity with a plea agreement which was set

forth in the record at the time of the plea.”

However, in the instant case, there was no sentence recommendation as part

of the plea agreement. Therefore, we are not precluded from reviewing

Defendant’s sentence under La. Code Crim. P. art. 881.2.

Under the provisions of La.Code Crim.P. art 881.1, a defendant must file a

motion to reconsider sentence in order to preserve his right to appellate review of

his sentence. Because Defendant did not file a motion to reconsider sentence, our

review of his claim of excessiveness is limited to a bare claim of constitutional

excessiveness. See State v. Webre, 09-351 (La.App. 3 Cir. 11/4/09), 21 So.3d

1154.

In State v. LeBlanc, 12 So.3d at 1128-29, we discussed the determination of

an excessive sentence:

In 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),

1
We note Defendant refers to his six-month sentence for Count III in his assignment of
error challenging the excessiveness of his sentence in Count I; however, he does not present an
argument regarding excessiveness of the six-month sentence for Count III.
4

808 So.2d 331, this court discussed what constituted an excessive
sentence as follows:

La.Const. art. I, § 20 guarantees that “no law shall subject any
person to cruel or unusual punishment.” To constitute an excessive
sentence, the reviewing court must find the penalty so grossly
disproportionate to the severity of the crime as to shock our sense of
justice or that the sentence makes no measureable contribution to
acceptable penal goals and is, therefore, nothing more than a needless
imposition of pain and suffering. State v. Campbell, 404 So.2d 1205
(La.1981). 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.
Etienne, 99-192 (La.App. 3 Cir. 10/13/99); 746 So.2d 124, writ
denied, 00-165 (La.6/30/00), 765 So.2d 1067. The relevant question
is whether the trial court abused its broad sentencing discretion, not
whether another sentence might have been more appropriate. State v.
Cook, 95-2784 (La.5/31/96), 674 So.2d 957, cert denied, 519 U.S.
1043, 117 S.Ct. 615, 136 Le.Ed. 2d 539 (1996).

Louisiana Revised Statutes 14:93 provides a maximum sentence of ten years at

hard labor for committing the crime of cruelty to a juvenile. The statute provides

no minimum sentence and provides for the possibility of a fine of not more than

one thousand dollars in lieu of imprisonment. The pertinent part of La.R.S. 14:93

which applies to this case is Section A, paragraph 1, which provides that cruelty to

juveniles is defined as “[t]he intentional or criminally negligent mistreatment or

neglect by anyone seventeen years of age or older of any child under the age of

seventeen whereby unjustifiable pain and suffering is caused to said child. Lack of

knowledge of the child’s age shall not be a defense.”

Thus we must determine whether the trial court abused its broad discretion

in imposing a ten-year sentence, five years of which is suspended, based upon the

facts of this case. The trial judge heard testimony from the victims’ paternal

grandmother, Renee Amos (Amos), who has court ordered custody of the two

children. The incident occurred while the children were on a court ordered visit

with their maternal grandmother and her son, Defendant. Amos testified that the

5

eight-year-old who smoked marijuana with Defendant was taken to the hospital in

serious condition. He suffered serious physical symptoms immediately after

smoking the marijuana and suffered prolonged emotional problems after the

incident. The trial judge patiently listened to all family members affected by the

incident and reviewed the Pre-Sentence Investigation Report on Defendant. We

cannot say the trail court manifestly abused his broad discretion in imposing this

sentence. The victim, an eight-year-old child, was defenseless and suffered serious

physical and emotional harm as a result of Defendant’s actions. Defendant

acknowledged that he knew what he was doing was wrong but engaged in the

activity anyway. The trial court was made well aware of the fact that Defendant

has a low intelligence and suffers from an abusive past. Nevertheless, the trial

court conducted a thorough hearing before imposing this sentence. Nothing in the

record demonstrates an abuse of discretion in imposing the ten-year sentence,

suspending five years of the sentence, and requiring a period of five years

probation. Based upon the record before us, we cannot find that the penalty

imposed upon Defendant is “so grossly disproportionate to the severity of the

crime as to shock our sense of justice.” Barling, 779 So.2d at 1042-43. We find

the trial court did not abuse its broad discretion in the sentence imposed.

AFFIRMED IN PART. MISDEMEANOR SEVERED AND
DEFENDANT INSTRUCTED TO FILE AN APPLICATION SEEKING
SUPERVISORY REVIEW THEREOF WITHIN THIRTY DAYS OF THIS
OPNION IF HE SO CHOOSES.

6