State of Louisiana v. J.A. M.

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

12-208

STATE OF LOUISIANA

VERSUS

J.A.M.

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APPEAL FROM THE
THIRTY-SIXTH JUDICIAL DISTRICT COURT
PARISH OF BEAUREGARD, NO. CR-311-2008
HONORABLE MARTHA ANN O’NEAL, DISTRICT JUDGE

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OSWALD A. DECUIR
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, and Oswald A. Decuir,
and Marc T. Amy, Judges.

AFFIRMED.

David W. Burton
District Attorney
36th Judicial District Court
James R. Lestage
Assistant District Attorney
P. O. Box 99
DeRidder, LA 70634
(337) 463-5578
COUNSEL FOR APPELLEE:
State of Louisiana

Mitchel M. Evans II
Attorney at Law
416 North Pine Street
DeRidder, LA 70634
(337) 462-5225
COUNSEL FOR DEFENDANT/APPELLANT:
J.A.M.

DECUIR, Judge.

On March 28, 2008, Defendant, J.A.M. 1 , was charged with attempted

aggravated rape in violation of La.R.S. 14:27 and 14:42. His counsel requested the

appointment of a sanity commission, and three months later, Defendant was found

to be mentally incompetent to proceed. He was placed in the custody of the

Louisiana Department of Health and Hospitals for rehabilitation and ―restoration of

competency‖ treatment.

Over the next three years, the trial court rendered several findings that the

seventeen-year-old Defendant lacked the capacity to proceed to trial. Defendant’s

commitment to the mental health system continued until February 2011 when the

court re-appointed a sanity commission and the State moved for a competency

hearing. Based on the commission’s reports which indicated both physicians felt

the Defendant was competent to proceed to trial, the State moved to fix the matter

for trial, and a trial date was scheduled. Although the trial court did not expressly

make a determination that the Defendant was competent to proceed to trial, its

actions in moving forward to trial indicate that it found the Defendant competent to

proceed. See State v. Bonicard, 98-665 (La.App. 4 Cir. 8/4/99), 752 So.2d 184,

writ denied, 99-2632 (La. 3/17/00), 756 So.2d 324.

On September 19, 2011, Defendant entered a plea of guilty to the responsive

charge of attempted forcible rape, in violation of La.R.S. 14:42.1 and 14:27. A

sentencing hearing was held, and Defendant was sentenced to the maximum

twenty years at hard labor without benefit of probation, parole, or suspension of

sentence. The court’s order included a provision that Defendant receive sex

offender counseling while incarcerated.

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Under the authority of La.R.S. 46:1844W, this court will use a defendant’s initials when
there is a familial relationship between the defendant and the victim.

In this appeal, Defendant contends the trial court failed to properly apply the

sentencing guidelines articulated at La.Code Crim.P. art. 894.1 and failed to

particularize the sentence to the unique circumstances of this case. For the

following reasons, we affirm the sentence imposed by the trial court.

The record before us includes evidence of Defendant’s long-standing

psychiatric and medical problems, for which his mother consistently sought

treatment. As a young teenager, Defendant was found to be bipolar and was

diagnosed with attention deficit hyperactivity disorder. He repeated the fifth grade

and was expelled during his eighth grade year. His IQ was variously reported as

71, 82, and 84. He attended an alternative school until eleventh grade, when he

was arrested for the instant offense. Defendant was prescribed different

medications including Abilify, Risperdal, Zoloft, and Adderall. When he was

sixteen, doctors determined Defendant had low testosterone levels, and he was

diagnosed with Klinefelter’s Syndrome, a chromosomal abnormality resulting in

an extra X chromosome. The syndrome often includes growth delays, cognitive

difficulties, and sexual problems. Doctors were perplexed by Defendant’s

condition because he had a history of sexual acting out and sexual aggression;

normally, low testosterone and Klinefelter’s would suppress sexual thoughts and

activity. Shortly after the initiation of testosterone supplements, Defendant

committed the crime to which he has now pled guilty. The record shows, however,

that Defendant committed other acts of sexual aggression for some years before he

was placed on hormone therapy.

The victim in this case is Defendant’s mother. Over several years,

Defendant expressed a sexual interest in his mother. He would write notes to her,

spy on her, and touch her inappropriately. She would respond by slapping him,

getting away from him, or calling out to another family member. One day,

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Defendant approached his mother while holding a kitchen knife. He told her to

take her clothes off and threatened her with the knife. She was able to extricate

herself from harm and ran next door to call the police. She felt she had exhausted

all other options and wanted her son to get help.

After Defendant was arrested, he was evaluated by numerous doctors who

concluded that he was likely to commit a similar offense if released from a

custodial environment. In fact, in the course of the sanity commission

proceedings, Defendant disclosed that he had committed sexual acts with his

younger brother, age seven at the time, and two female cousins, ages seven and

sixteen. He also revealed he had been raped by an older male relative when he was

fourteen. While in the State’s custody, Defendant continued to exhibit

inappropriate sexual thoughts. He recorded fantasies about his mother, his female

therapist, and others. He left a voicemail message for his therapist expressing his

love for her. One physician explained to the court that Defendant would become

noticeably alert and interested when sexual behavior was addressed.

During the three-year period Defendant was in the State’s custody prior to

his guilty plea, he did not receive sex offender treatment. Rather, he received

therapy designed to restore his mental competency to stand trial. Therefore, at the

time of sentencing, Defendant had made no progress in overcoming his sexual

problems, and the therapists reported that the risk of another offense was

―moderate to high‖ and ―considerable.‖ One opined that his probable victim would

be someone young or weak, potentially another family member to whom

Defendant has easy access. The therapists thought the Defendant was in need of

treatment in a custodial environment. The trial court had great sympathy for

Defendant’s mother, as do we, as she was under the impression that Defendant was

receiving appropriate sex offender therapy during those years and would be able to

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return home and live with the family. The court explained to her, however, that

Defendant was not eligible for treatment by the State for his specific problems until

he was convicted of a crime.

At the sentencing hearing, the trial court listened to testimony from

Defendant’s mother and concluded that she now minimizes Defendant’s actions

and wants only to see him return home. Although not fully documented in the

record, it is apparent that Defendant violated the conditions of his probation when

he was out on bond in September 2011. His mother testified that she allowed

Defendant, actually urged Defendant, to come to their house to retrieve some

clothes while she and her younger children were there. The court stated:

While at one time your mother sought help for you, she has
now chosen to minimize your actions to the detriment of the younger
siblings in your home, her home. If I were to place you on probation,
and give you the same and/or more conditions of probation, this Court
has no assurance, based on your previous actions and those of the
victim, you[r] mother, that anyone would enforce the conditions. You
could not even comply with these conditions for [a] week, and
therefore any probation would appear to be the wrong choice, not only
for you but more importantly for the safety and well-being of the
minor children and other individuals you would come in contact with
if allowed to be placed on probation.

This Court is not willing to take that risk, especially considering
the young ages of your siblings, 6 and 11. . .

The Court finds this a great concern given the opportunity for
re-offense and the total disregard by your family and yourself to
comply with the boundaries and conditions imposed on you … while
out on bond.

Defendant was then sentenced to the maximum of twenty years.

In reviewing a sentence for excessiveness, we are governed by the manifest

error standard of review: ―Absent a showing of manifest abuse of that discretion,

the sentence imposed should not be set aside as excessive. State v. Williams, 2003-

3514 (La. 12/13/04), 893 So.2d 7.‖ State v. Hicks, 42,427, p. 4 (La.App. 2 Cir.

10/24/07), 968 So.2d 307, 311. In State v. Walker, 96-112, pp. 3-4 (La.App. 3 Cir.

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6/5/96), 677 So.2d 532, 534-35, writ denied, 96-1767 (La. 12/6/96), 684 So.2d

924, this court explained:

Article 1, § 20 of the Louisiana Constitution of 1974, prohibits ―cruel,
excessive, or unusual punishment.‖ A sentence which falls within the
statutory limits may nevertheless be excessive under the
circumstances. State v. Sepulvado, 367 So.2d 762 (La.1979); State v.
Naquin, 527 So.2d 601 (La.App. 3 Cir.1988). 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 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); State v. Everett, 530 So.2d 615 (La.App. 3 Cir.1988), writ
denied, 536 So.2d 1233 (La.1989). The trial judge is given wide
discretion in imposing a sentence, and a sentence imposed within the
statutory limits will not be deemed excessive in the absence of
manifest abuse of discretion. State v. Howard, 414 So.2d 1210
(La.1982).

We find the trial court in this case did not abuse its discretion in sentencing

Defendant to the maximum of twenty years. The court was deeply concerned with

the safety of Defendant’s family members, given the psychiatric reports that

Defendant is at ―considerable‖ risk of committing another similar crime. Also

considered was the fact that Defendant and his mother were unable to abide by

previous probationary conditions, an act which gave the impression the family

does not take Defendant’s problems seriously. These factors show that the trial

court undeniably particularized the sentence to the unique circumstances of this

defendant; for it may well be that another twenty-one-year-old first felony offender

may not have received a maximum sentence in a case with different facts. Indeed,

the court further particularized the sentence by ordering the Defendant receive sex

offender counseling while incarcerated.

For the above and foregoing reasons, the Defendant’s sentence of twenty

years at hard labor and the receipt of sex offender treatment is hereby affirmed.

AFFIRMED.

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This opinion is NOT DESIGNATED FOR PUBLICATION. Uniform Rules—Courts of
Appeal, Rule 2–16.3.

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