State of Louisiana v. John Franklin Breaux

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

12-397

STATE OF LOUISIANA

VERSUS

JOHN FRANKLIN BREAUX

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF ACADIA, NO. 76,255
HONORABLE KRISTIAN DENNIS EARLES, DISTRICT JUDGE

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ELIZABETH A. PICKETT
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, and
Elizabeth A. Pickett, Judges.

AFFIRMED.

Michael Harson
District Attorney, Fifteenth Judicial District
Roger P. Hamilton, Jr., Assistant District Attorney
P. O. Box 3306
Lafayette, LA 70502-3306
(337) 232-5170
COUNSEL FOR APPELLEE:
State of Louisiana

Edward John Marquet
Attorney at Law
Post Office Box 53733
Lafayette, LA 70505-3733
(337) 237-6841
COUNSEL FOR DEFENDANT/APPELLANT:
John Franklin Breaux

PICKETT, Judge.

On February 3, 2010, the Crowley Police Department was contacted by the

principal of a local middle school and advised of a possible sex offense against one

of his students. A teacher had confiscated a cell phone from the victim in this case

when it began ringing during class. When the principal and another school staff

member were searching the phone to determine who owned it, they found a video

showing the victim engaged in sex with an older male. The victim’s younger

brother can be seen in the video and appeared to be playing video games in the

same room while the rape occurred.

The victim and her brother were both interviewed. It was determined that

the man in the video was the defendant, John Franklin Breaux, and that the victim

was twelve years old when this incident occurred. The victim’s brother stated that

both he and another brother were present. The victim advised that the defendant

had done this five different times in a two year period but they did not always have

sex – sometimes it was just playing “with his thing.”

The defendant was indicted by the grand jury with aggravated rape of a

juvenile, age 12, in violation of La.R.S. 14:42.

On February 28, 2011, the defendant pled guilty to the reduced charge of

attempted aggravated rape. On October 24, 2011, the trial court sentenced the

defendant to forty years at hard labor without the benefit of probation, parole, or

suspension of sentence.

The defendant timely filed a motion to reconsider sentence which was

denied by the trial court. This appeal followed.

ASSIGNMENT OF ERROR

In his sole assignment of error the defendant asserts that the trial court erred

in imposing an excessive sentence that was four times the mandatory statutory

minimum sentence on a first-time felony offender with no prior criminal record of

any kind.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed by

this court for errors patent on the face of the record. After reviewing the record,

we find no errors patent.

DISCUSSION

The defendant asserts his sentence is unconstitutionally excessive. The

defendant argues that he has no criminal history, he is a first time offender, and he

did not “attack, strike, hit, threaten, or force into submission the victim.”

The maximum sentence for attempted aggravated rape of a juvenile under

the age of thirteen is no less than ten and no more than fifty years at hard labor

without benefit of probation, parole, or suspension of sentence. La.R.S. 14:42 and

14:27.

This court reviews excessive claims under the standard enunciated 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), 808 So.2d 331 (alteration in original)

(citations omitted):

La. Const. art. I, § 20 guarantees that, “[n]o 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 measurable contribution
to acceptable penal goals and is, therefore, nothing more than a
needless imposition of pain and suffering. 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. The relevant question is whether the trial court
abused its broad sentencing discretion, not whether another sentence
might have been more appropriate.

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In order to decide whether a sentence shocks our sense of justice or

makes no meaningful contribution to acceptable penal goals, we have stated:

[A]n 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. State v. Smith, 99-0606 (La.7/6/00), 766
So.2d 501. 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.” State v. Batiste, 594 So.2d 1 (La.App. 1
Cir.1991). 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.” State v. Cook, 95-2784 (La.5/31/96), 674
So.2d 957, 958.

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.

Louisiana Code Criminal Procedure Article 881.4(D) provides that an

“appellate court shall not set aside a sentence for excessiveness if the record

supports the sentence imposed.” The relevant question on appeal is whether the

trial court abused its discretion in imposing sentence.

We have reviewed the entire record in this matter including the

exhibits filed into the record, the presentence investigation report, and the

psychological report, all of which were before the trial court at the time of

sentencing. The trial court stated for the record that he had reviewed the above-

stated documents. He noted that the defendant is a first felony offender, which he

found to be the only mitigating factor present. He also noted the heinous nature of

the offense, the age of the victim, and the fact that the defendant videotaped the

rape.

Although the trial court did not review every listed possible mitigating and

aggravating circumstance set forth in La.Code Crim.P. art. 894.1, it is not

necessary that he do so if the record reflects he considered mitigating
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circumstances that apply to this particular defendant. State v. Smith, 433 So.2d 688,

698 (La.1983).

We also note that the defendant received a tremendous benefit as a result of

the plea bargain, in that his sentencing exposure was reduced from a mandatory

sentence of life in prison without benefit of probation, parole, or suspension of

sentence to a maximum of fifty years without benefit of probation, parole or

suspension of sentence.

After reviewing the record in its entirety, we find the trial court did not

abuse its discretion by imposing a sentence of forty years at hard labor and without

benefit of probation, parole, or suspension of sentence. The record clearly supports

the sentence imposed.

We find this assignment of error to be without merit.

CONCLUSION

The defendant’s sentence is affirmed.

AFFIRMED.

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