State of Louisiana v. Jerald C. Fowler

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

12-1380

CONSOLIDATED WITH

12-1381

STATE OF LOUISIANA

VERSUS

JERALD C. FOWLER

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 9683-09 C/W 9684-09
HONORABLE G. MICHAEL CANADAY, DISTRICT JUDGE

**********

JAMES T. GENOVESE
JUDGE

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Court composed of John D. Saunders, Marc T. Amy, and James T. Genovese,
Judges.

AFFIRMED AS AMENDED
WITH INSTRUCTIONS.

Edward J. Marquet
Louisiana Appellate Project
Post Office Box 53733
Lafayette, Louisiana 70505-3733
(337) 237-6841
COUNSEL FOR DEFENDANT/APPELLANT:
Jerald C. Fowler

John F. DeRosier
District Attorney — Fourteenth Judicial District
Carla S. Sigler
Karen C. McLellan
Assistant District Attorneys
901 Lakeshore Drive, Suite 800
Lake Charles, Louisiana 70601
(337) 437-3400
COUNSEL FOR APPELLEE:
State of Louisiana

GENOVESE, Judge.

In this criminal case, which has been consolidated by this court for opinion

purposes, Defendant, Jerald C. Fowler, appeals his sentences pursuant to his

convictions for one count of sexual battery, two counts of indecent behavior with a

juvenile, and failure to register as a sex offender, alleging constitutionally

excessive sentences. For the following reasons, we affirm and amend Defendant‟s

sentences with instructions.

FACTS AND PROCEDURAL HISTORY

On February 19, 2009, Defendant was charged by bill of indictment, under

district court docket number 9683-09 of the Fourteenth Judicial District Court for

Calcasieu Parish, with eight counts of sexual battery (counts one to eight),

violations of La.R.S. 14:43.1, and two counts of aggravated rape (counts nine and

ten), violations of La.R.S. 14:42. On February 1, 2011, the State amended two of

the counts of sexual battery to indecent behavior with a juvenile. Defendant pled

guilty to two counts of indecent behavior with a juvenile and to one count of sexual

battery. The State nolle prosequied the remaining charges. The trial court

sentenced Defendant to fifteen years at hard labor on each count of indecent

behavior with a juvenile and thirty years at hard labor on the sexual battery charge.

Additionally, in district court docket number 9684-09, Defendant was

charged by bill of indictment on February 19, 2009, with failure to register as a sex

offender, a violation of La.R.S. 15:542. On February 1, 2011, Defendant entered a

guilty plea to that charge and was sentenced to five years at hard labor without the

benefit of parole, probation, or suspension of sentence. The trial court ordered all

four sentences to run consecutively to each other.1

At the guilty plea proceeding, the State set forth the following factual basis

for the pleas on these offenses:

1. As to the conviction of sexual battery, the State alleged that in January

2009, Defendant touched, with his hand, the vaginal area of A.T., whose

date of birth was March 1, 2005.

2. As to the two convictions of indecent behavior with a juvenile, the State

alleged that in January 2009, Defendant touched, with his hand, the

vaginal area of J.T., whose date of birth was June 2, 2007, and touched,

with his hand, the vaginal area and/or the rectal area of E.C., whose date

of birth was November 27, 2000. Defendant confessed to masturbating

after each of the sex offenses.

3. As to the conviction of failure to register as a sex offender, the State

alleged that Defendant had previously been convicted in Texas of sexual

assault of a minor child. Thereafter, between August 1, 2006, and

January 21, 2009, Defendant failed to register as a sex offender, failed to

notify the sheriff and/or police of his new address, and failed to send out

notification cards of being a sex offender as required by law.

ERRORS PATENT

In accordance with 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 one

error patent relative to Defendant‟s sentence upon his conviction for failure to

register as a sex offender.

1
A separate appeal has been lodged in State v. Fowler under docket number 12-1381 relative to
Defendant‟s sentence on his conviction for failure to register as a sex offender. Defendant‟s
claim of excessive sentence and his assignment of error is the same in both cases, and these cases
have been consolidated by this court for opinion purposes to avoid duplication.
2

Defendant was charged with failure to register as a sex offender between

August 1, 2006, and January 21, 2009. At the guilty plea proceeding on this

charge, this commission date range was referenced, but the parties agreed that the

applicable penalty range was the 2006 version of the statute, which provided for a

sentence of one to five years; however, the court indicated the one to five years

was without benefit of parole, probation, or suspension of sentence, and the parties

agreed.2

In 2006, the penalty provision for failing to register as a sex offender was

contained in La.R.S. 15:542. For a first offense, an offender faced a fine of not

more than one thousand dollars or imprisonment with or without hard labor for not

less than one year nor more than five years or both. The statute did not require the

sentence to be served without benefit of parole, probation, or suspension of

sentence (without benefits). In 2007, the penalty provision was moved to La.R.S.

15:542.1.4. For a first offender, the sentence was changed to a fine of not more

than one thousand dollars and imprisonment with hard labor for not less than two

years nor more than ten years without benefits. 2007 La. Acts No. 460, § 2. When

imposing Defendant‟s sentence, the judge erroneously referred to the sentencing

provisions of La.R.S. 15:542.1.4. The judge imposed Defendant‟s sentences for

indecent behavior and sexual battery without benefits, and then stated, “I think also

the failure to register is also without benefit.” This is erroneous as the trial court

sentenced Defendant on the failure to register as a sex offender without benefits in

accordance with the 2007 statute as opposed to the 2006 statute, which did not

mandate a sentence without benefits. Consequently, we amend Defendant‟s

sentence for failure to register as a sex offender to delete the provision that it be
2
The 2006 version of the statute required a person who had been convicted of or had pled guilty
to a sex offense and was residing in Louisiana to register within twenty-one days of establishing
residence in Louisiana. The record indicates the Defendant‟s prior offense for which he was
required to register was committed in Texas.
3

served without benefits. The trial court is instructed to note the amendment in the

court minutes.

ASSIGNMENT OF ERROR

In his lone assignment of error, Defendant asserts that the imposition of a

total of sixty-five years imprisonment without benefits and the rejection of the

State‟s recommendation of a twenty-five-year sentence was constitutionally

excessive.

Defendant filed a timely motion to reconsider sentence, asserting the same

error as assigned on appeal. In the motion, Defendant asserted in pertinent part:

Undersigned counsel attests that the sentence of 60[3] years
DOC was unduly harsh and burdensome, for the following reasons:

a) He has only one prior felony conviction.

b) The defendant is relatively youthful, and would still
like to potentially become a productive member of
society for the remainder of his life.

c) The defendant avers that the Court exceeded the
jointly recommended sentenced [sic] by more than
doubling the sentence imposed. Such a derivation from
the recommendation has a chilling effect on assisting the
State and the Defense in efficiently resolving cases that
come before this Court, and thereby delaying justice for
others involved in the judicial system.

The trial court denied the motion without a hearing.

Defendant does not contest the consecutive nature of his sentences, but

contests the effect of the consecutive sentences on the overall excessiveness of all

the sentences imposed. Additionally, Defendant does not contest that the trial

court did not accept the sentencing recommendation, but urges it as a factor when

considering the excessiveness. Specifically, Defendant argues:

By rejecting the State‟s recommendation, the sentencing court
imposed[,] for all practical purposes[,] a life sentence. At 85% the

3
Defendant mistakenly states the total sentence was sixty years instead of sixty-five years.
4

defendant would serve 55+years[,] and at age 36[,] he would be over
age 90 upon release. The reality is this defendant will never leave
prison.

Under the facts and circumstances of this case[,] such a
sentence is grossly disproportionate and certainly shocks any rational
sense of justice. State v. Dorthey, 623 So.2d 1276 (La. 1993)[.]

The State responds in pertinent part (record references omitted):

[T]he trial judge did not abuse his broad sentencing discretion. The
defendant‟s attorney argues in brief[,] “[I]t is readily apparent that a
sentence tantamount to life imprisonment is unjustified under the facts
and circumstances.” The State respectfully submits that a review of
the facts and circumstances of this case reveals that the defendant‟s
sentence is absolutely and completely justified.

As to the sexual battery charge, the victim[,] A.T.[,] reported to
her mother that the defendant touched her on her private part. The
defendant subsequently confessed to touching A.T.‟s vaginal area and
that he became aroused[,] and he masturbated after touching A.T. The
sexual assault nurse indicated a notch at the 11 o‟clock position on
A.T.‟s hymen. As to one of the counts of indecent behavior with a
juvenile, the defendant confessed to sticking his finger in the vagina
of another victim, J.T., for sexual gratification. He admitted that “he
used a rubber sleeve over his finger and that he later masturbated and
ejaculated.” The sexual assault exam showed chaffing on the vagina
and tears near the [sic] J.T.‟s anus. For the second of the two counts
of indecent behavior with a juvenile, the defendant confessed a third
victim, E.C., “masturbated his penis in the bathroom,” and the
defendant “stuck his finger in her vaginal area.” E.C. reported that the
defendant touched her and she told the nurse during the rectal exam
“that that was where the defendant had touched her.” As to the one
count of failure to register under docket number 9684-09, the
defendant was previously convicted in Texas of anally raping a seven
year old boy; this offense required registration, which the defendant
did not do. The defendant failed to properly notify the authorities of
his move.

The State would like [to] point out some other very important
facts of the defendant‟s offenses. First, all of the victims of the
offenses were very young children at the time of the commission of
the offenses. A.T. was between 2 ½ years old to [4] years old, J.T.
was 6 months to less than 2 years old, and E.C. was between 7 and 9
years old. These are ages when children are too young to
communicate with an adult as to the abuse. As noted by the trial
court, the defendant “knew or should have known that the victims
were particularly vulnerable or incapable of resistance due to extreme
youth.” These children were of the age when children are most
defenseless and the most impressionable, and the defendant violated
these children for his own pleasure.

5

Second, even though the defendant confessed to these atrocious
acts[,] he blamed the young victims for his behavior. The defendant
reported to the Calcasieu Parish Sheriff‟s Office that he knew that
what he did was wrong, “but the children knew it was wrong too, and
they came on to him.” (Emphasis in the original). He reported to the
deputies that he told the children[,] “[W]hat they had started was
wrong and inappropriate[,]” and “they were making him look like a
bad guy.” And, he reported that “[H]e had told the children that they
were wrong for rubbing his penis and touching him.”

Finally, in addition to the victims of the offenses to which the
defendant pled, the defendant was originally indicted with subjecting
other minor children to other reprehensible acts. Unlike the cases
cited by the defendant in brief, there were multiple victims involved in
the matter sub judice. The defendant only pled guilty to charges
involving girls, but there were other charges on the indictment
involving boys as well. While being questioned by the deputies, the
defendant admitted to putting his hand in his step grandson‟s diaper,
“playing” with his penis, and then masturbating once everyone left the
home. He had another minor boy perform oral sex on him. Other acts
that this defendant committed on these young victims were too
appalling and abhorrent to be briefed to this Honorable Court but are
contained in the record of these proceedings.

Under docket number 9683-09, this defendant was originally
indicted with eight counts of sexual battery and two counts of
aggravated rape. In exchange for his guilty plea, the State amended
the bill to reflect one count of sexual battery and two counts of
indecent behavior with a juvenile. All other charges were nolle
prossed. Additionally, the defendant‟s sentence was not enhanced
through habitual offender proceedings. Thus, the defendant received
a substantial benefit from the reduced sentencing exposure when the
State amended two charges and then dismissed the other charges
against him. When a defendant ultimately pleads guilty to an offense
which fails to sufficiently detail his criminal conduct, the trial court
has substantial discretion to impose the maximum sentence for that
offense. State v. Edwards, 2007-1058 (La.App. 3 Cir. 3/12/08), 979
So.2d 623, 628. The trial court may also gauge the substantial benefit
a defendant received from a plea agreement. Where the defendant has
achieved a marked reduction in his potential length of incarceration,
the trial court‟s discretion to impose the maximum sentence is
enhanced. Edwards, 979 So.2d at 628. In this case, had it not been for
the amendments, the defendant could have faced life imprisonment for
the aggravated rape offense, and 25-99 years for each count of the
sexual battery, with a minimum of 25 years to be served without
benefit of probation, parole, or suspension of sentence. Obviously,
this defendant received a substantial benefit in exchange for his plea.

Further, while the defendant may balk at his current sentence,
this Honorable Court should remember that he did not receive the

6

maximum sentence he could have received. As the trial court told the
defendant during his plea colloquy, he could have faced a total 154
years without benefit of probation, parole or suspension of sentence.
Thus, this sixty five year sentence is by no means excessive when this
Court considers what he could have faced had the State not amended
his charges (25 years - life imprisonment) or if the defendant had
received the maximum sentence of 154 years.

Moreover, the trial court was correct in ordering consecutive
sentences. Under LSA-C.Cr.P. Art. 883, the presumption would be
that the sentences would be served consecutively, rather than
concurrently, because of the different victims. State v. Granger,
2008-1481 (La.App. 3 Cir. 6/3/09), 11 So.3d 683, 689. LSA- C.Cr.P.
Art. 883 details the general rule that concurrent sentences are
appropriate when the defendant is convicted of two (2) or more
offenses based on the same act or transaction, or for those constituting
part of a common scheme or plan. When there is no common scheme
or plan, and the offenses are separate acts or transactions, sentences
are presumed to run consecutively, unless the trial court expressly
directs otherwise. LSA-C.Cr.P. Art. 883.

The defendant pled guilty to one count of sexual battery, two
counts of indecent behavior with a juvenile, and one count of failure
to register. Each count that the defendant pled guilty to had a
different victim, A.T., J.T. and E.C. Thus, these crimes involved
different offenses against different victims. The defendant‟s
convictions are not based on the same act or transaction, or a common
scheme or plan.

This court discussed the standard of review applicable to claims of

excessiveness in State v. Whatley, 03-1275, pp. 5-6 (La.App. 3 Cir. 3/3/04), 867

So.2d 955, 958-59, as follows:

The Eighth Amendment to the United States Constitution and
La. Const. art. I, § 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)). Still, 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. However, “[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 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.

7

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).

The fifth circuit, in [State v. Lisotta, 98-648, p. 4 (La.App. 5
Cir. 12/16/98), 726 So.2d 57, 58, writ denied, 99-433 (La. 6/25/99),
745 So.2d 1183], stated that the reviewing court should consider three
factors in reviewing the trial court‟s sentencing discretion:

1. The nature of the crime,

2. The nature and background of the offender, and

3. The sentence imposed for similar crimes by the same
court and other courts.

Additionally, this court has held the consecutive nature of the sentences will

be included in a bare claim of excessiveness analysis. See State v. Vollm, 04-837

(La.App. 3 Cir 11/10/04), 887 So.2d 664; State v. Day, 05-287 (La.App. 3 Cir.

11/2/05), 915 So.2d 950.

OVERALL EXCESSIVENESS OF THE SENTENCES DUE TO THE
CONSECUTIVE NATURE OF ALL THE SENTENCES IMPOSED:

Louisiana Code of Criminal Procedure Article 883 provides:

If the defendant is convicted of two or more offenses based on
the same act or transaction, or constituting parts of a common scheme
or plan, the terms of imprisonment shall be served concurrently unless
the court expressly directs that some or all be served consecutively.
Other sentences of imprisonment shall be served consecutively unless
the court expressly directs that some or all of them be served
concurrently. In the case of the concurrent sentence, the judge shall
specify, and the court minutes shall reflect, the date from which the
sentences are to run concurrently.

In State v. H.B., 06-1436 (La.App. 3 Cir. 4/4/07), 955 So.2d 255, the

defendant challenged the imposition of three consecutive terms of ten years at hard

labor on his three convictions of second-degree sexual battery. The defendant

contended that his sentences should have been ordered to be served concurrently

because they were based on the same act or transaction or were part of a common

scheme or plan. This court found the defendant‟s contention lacked merit,

8

explaining that, “Review of the jurisprudence shows that different victims, places,

or dates mean different transactions and different schemes or plans.” Id. at 260.

In State v. Granger, 08-1480 (La.App. 3 Cir. 6/3/09), 11 So.3d 658, the

defendant challenged the overall excessiveness of his consecutive sentences

imposed by the trial court. As in this case, the sentences arose out of crimes

charged in separate docket numbers involving separate crimes and victims. The

defendant entered a guilty plea to theft over $500.00, and he also entered guilty

pleas for five other offenses, charged in separate charging instruments. The trial

court sentenced the defendant to six years at hard labor and ordered the sentence to

run consecutively to the six-year sentences imposed on the other five charges to

which he also pled guilty. On appeal, the defendant challenged his sentence as

excessive, particularly because the six-year sentence was ordered to run

consecutively to the six-year sentences imposed on the other five charges. The

defendant did not specifically raise the error of consecutive sentences in his motion

to reconsider sentence filed in the trial court; thus, he was limited to a bare

excessiveness claim. This court held in pertinent part:

With regard to excessive sentence claims, this court stated:

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. 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, 00-0165 (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.

9

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. 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.

The trial court, at the sentencing hearing, stated:

At this time the Court is called upon to go through
Article 894.1 with regard to the sentencing guidelines.
894.1 indicates that there should be a sentence of
imprisonment if any of the following occurs.

....

The offender has used his position or status to
facilitate the commission of these offenses. The victims
in this case were vulnerable. They trusted the defendant,
many of them in times of need following the hurricane
and needing help to assist them in other repairs and
items. The defendant has used his position and ability to
be somewhat of a craftsman as far as floor coverings and
such to gain their trust and then once he‟s received funds
then basically disappears with those monies and not
provide the services that he previously rendered. In
addition, he has submitted a number of worthless checks
in an attempt to obtain something for nothing.

Other aggravating [sic], it is noted that these
offenses have resulted in significant permanent injury or
economic losses to the victims. In reviewing the pre-
sentence investigation there is an aggregate of
$46,622.76 from a number of victims that was
determined by the officer with Probation and Parole and
that is a significant economic expense, as well as the
inability then to trust other individuals could cause some
permanent detriment to the victims in this matter. The
Court would find that aggravating.

The offenses involve multiple victims and
incidences for which separate sentences have not been
imposed. While the matters before the Court include six
separate felony offenses, it is noted that there were a
number of other offenses pursuant to that guilty plea that
were in fact dismissed and the Court is not considering
those, however it is noted that multiple victims and
incidences did exist for aggravating purposes.

10

The offender was persistently involved in similar
offenses not already considered as a criminal history or
part of a multiple offender adjudication. He‟s not been
addressed as a multiple offender, however in a review of
his history, while there‟s not been convictions, the Court
cannot ignore the number of allegations that have been
brought against the defendant for the past fifteen, twenty
years. The Court also finds that this offense was a major
economic offense.

....

At this time the defendant has pleaded guilty to
docket 20582-02, felony worthless checks in an amount
greater than $500; docket 3827-03, theft greater than
$500, noting that that was one count with multiple
victims inclusive; docket 28024-02, theft greater than
$500; docket 20576-03, theft greater than $500; docket
4995-02, theft by fraud; and docket 28023-02, theft
greater than $500.

At this time the Court hereby sentences the
defendant, Mr. Joseph Alford Granger, to serve the sum
of six years on each of those dockets. That term will run
consecutive with one another and the Court at this time
references Code Article 883 of the Code of Criminal
Procedure. As previously indicated the Court is of the
opinion it needs to annunciate particular justification if
the sentence should be established as consecutive. The
basis of that, the Court finds that the defendant has used
his position to prey on societal needs. Each of these
victims was an individual that had unique issues, losses,
for which the defendant took advantage of. They
occurred on different times, different physical locations,
and all with the defendant‟s intent to take from that
specific victim or the matters associated with those
specific dockets. Some were property takings, some
were money takings for equipment rental, repair. Some
were monies that were going to be received in advance to
repair, such as remodeling or installing flooring, and
many of the others were significant issuance of worthless
checks to vendors or creditors that the defendant has pled
guilty to knowing that there were no funds to pay for
those.

The defendant will serve a total of 36 years with
the Department of Corrections as a result of that.

The defendant in this case committed separate crimes, with
separate victims, locations, and dates. Pursuant to La.Code Crim. P.
art. 883, the sentence was to be served consecutively, unless the court

11

expressly directed that it be served concurrently. Accordingly, the
trial court did not err in ordering that the six sentences run
consecutively.

Regarding the determination of whether the penalty imposed
shocks one‟s sense of justice, we note that the defendant received a
mid-range sentence. Louisiana Revised Statutes 14:67(B)(1) instructs
that the penalty for theft over $500.00 includes imprisonment of up to
ten years with or without hard labor, or a fine of up to three thousand
dollars, or both. The defendant was sentenced to six years, a mid-
range sentence. Additionally, the defendant benefited from the
aggregation of the three charges into a single count. See La.R.S.
14:67(C) and La.Code Crim.P. art. 481. As such, this assignment of
error lacks merit.

Id. at 661-63 (footnote omitted).

In this case, as in Granger, the crimes involved different victims, places, and

dates; thus, pursuant to La.Code Crim.P. art. 883, the sentences imposed were to be

served consecutively, unless the court expressly directed that they be served

concurrently. Consequently, this court finds the trial court did not err in ordering

the sentences to run consecutively.

EXCESSIVENESS OF THE SENTENCES:

We must next consider whether the trial court abused its discretion by

imposing excessive sentences. As noted above, the Lisotta factors are applied

when reviewing a claim of excessiveness of the sentence.

Nature of the crime:

In the State‟s brief to this court, the State sets out in detail the facts

surrounding these sexual offenses which are contained above. The young age of

the victims is most notable: A.T. was four years old; J.T. was less than two years

old; and, E.C. was eight to nine years old at the time of the sexual abuse.

Additionally, Defendant had previously committed a similar crime in Texas against

a seven year old. Furthermore, sex offenses involving other minors were

dismissed by the State.

12

The nature and background of the offender:

During the plea colloquy, Defendant indicated he completed the twelfth

grade. Also, as noted above, Defendant had been previously convicted of a sex

offense against a minor child in Texas.

In imposing the sentences, the trial court gave the following reasons:

THE COURT:

At this time the Court declines to accept the recommendation
that has been submitted. The Court is called upon to look under
sentencing guidelines in determining an appropriate sentence. When
the defendant has been convicted of a felony, the Court should impose
a sentence of imprisonment if any of the following occurs:

Is there an undue risk that during a period of any suspended or
probated sentence the defendant would commit another offense?

It is noted that the defendant had an opportunity, after being
released from the State of Texas, did commit another offense (sic).
The history and background, as well as the number of victims
involved in this, would indicate in the affirmative.

Is the defendant in need of correctional treatment or a custodial
environment that can be provided most effectively by commitment to
an institution?

Again, it is apparent that Mr. Fowler needs some type of
intensive incarceration, as well as extensive treatment in the hopes of,
not only curing past behavior, but also providing public safety by his
not having access to young children.

Would a lesser sentence deprecate the seriousness of the
defendant‟s crime?

As indicated by the statutes and the seriousness of those
penalties, the Court would find that any lesser sentence of
incarceration would deprecate, and answers that in the affirmative.

The degree of incarceration is guided under aggravating and
mitigating circumstances. The Court reviews the following and would
make the finding that the offender‟s conduct during the commission of
this offense was manifested and deliberate cruelty to the victims by its
very nature and description, which admissions have been made. The
offender knew or should have known that the victims were
particularly vulnerable or incapable of resistance due to extreme
youth. The offender apparently used his position or status in the

13

commission of the offense, being in some type of position of trust or
supervision to have access to the children in this capacity.

The offense of sexual battery is one in which actual violence
would be deemed to have occurred in the commission of the offense,
that being designated as a crime of violence.

While the Court has no information with regard to either
psychological or economic losses, it is noted that generally that the
type of incidents that have occurred do cause significant permanent
injury either from a psychological standpoint or other to the victims
and/or their families.

The offenses involved multiple victims or incidents for which
separate sentences have not been imposed. It is noted that three
distinct victims have been made a part, but the State has made the
Court aware that there were other individuals in which no charges are
being pursued.

Does he have a drug problem?

MR. COWARD:

I don‟t believe so, Judge.

THE COURT:

Other relevant aggravating circumstances, obviously, the age of
the individuals, the behavior with regard to those and the past
opportunity to try and address the problems. But yet, leaving the State
of Texas where he‟s required to register, moving to another location,
apparently not registering, maintaining false pretenses and returning
to the behavior for which he was allowed to be free on society. It
does appear that this conduct will cause or threaten serious harm to
the public, more aggravating than mitigating. The defendant acted
under strong provocation. The Court has received informal
information about the abuse that the defendant may have received as a
child, noting that many of the treatises and authoritative works with
regard to sex offenders are consistent with that. However, it does not
provide the Defense to justify the action.

Having no history of prior delinquency or activity, the Court
finds more aggravating than mitigating, specifically with the fact that
the defendant has a prior sex offense involving a young child.

Is the likely conduct the result of circumstances unlikely to
reoccur? More aggravating than mitigating. Circumstances indicate
to the contrary.

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Is he likely to respond to probationary treatment? More
aggravating than mitigating, noting that he did not conform to the
previous sex offender registration requirements.

Are you married?

MR. FOWLER:

Divorced.

THE COURT:

Anybody dependent upon you for support?

MR. FOWLER:

No.

THE COURT:

If they were not mentioned, then the Court would find that the
other factors were either deemed insignificant or inapplicable to the
instant offense.

The sentence imposed for similar crimes by the same court and other courts:

At the time of the commission of the offense, 2009, the penalty for sexual

battery on a victim under the age of thirteen years when the offender is seventeen

years of age or older was imprisonment at hard labor for not less than twenty-five

years nor more than ninety-nine years with at least twenty-five years of the

sentence to be served without benefits. La.R.S. 14:43.1. Thus, Defendant was

sentenced to a low range sentence for the offense of sexual battery.

The facts indicate that Defendant touched, with his hand, the vaginal area of

the victim A.T., who was four years old at the time. In State v. Redfearn, 44,709

(La.App. 2 Cir. 9/23/09), 22 So.3d 1078, writ denied, 09-2206 (La. 4/9/10), 31

So.3d 381, the court found a forty-year hard labor sentence for sexual battery,

which included thirty years without benefits, was not excessive. The victim, a

five-year-old girl, testified her father, while they were both naked, got in bed with

her and her father touched her vaginal area with his hand and penis.

15

The penalty for indecent behavior with a juvenile under the age of thirteen,

when the offender is seventeen years of age or older, is two to twenty-five years at

hard labor, with at least two years of the sentence to be served without benefits.

La.R.S. 14:81. Thus, in this case, Defendant‟s fifteen year sentence for the offense

of indecent behavior with a juvenile was mid-range.

The facts indicate that Defendant touched the vaginal areas of J.T., who was

less than two years old, and E.C., who was eight or nine years old. In State v.

Fregia, 12-646 (La.App. 3 Cir. 12/5/12), 105 So.3d 999, the defendant pled guilty

to indecent behavior with a juvenile under the age of thirteen years and was

sentenced to the maximum sentence, twenty-five years at hard labor. On appeal,

the defendant challenged the excessiveness of his sentence. This court affirmed

that twenty-five year sentence.

In the present case, Defendant benefited from his plea agreement. The State

reduced two of the sexual battery charges to indecent behavior with a juvenile.

This reduced Defendant‟s mandatory sentencing exposure as the sentencing range

of indecent behavior with a juvenile under the age of thirteen, when the offender is

seventeen years of age or older, is two to twenty-five years at hard labor; whereas,

sexual battery is a minimum of twenty-five years. Additionally, the State

dismissed four other counts of sexual battery and two counts of aggravated rape.

The aggravated rape charges exposed Defendant to life imprisonment.4

Furthermore, the State agreed to not enhance Defendant‟s sentence as a habitual

offender.

Relevant to Defendant‟s sentence for his failure to register as a sex offender,

the agreed-upon date of the commission of this offense was 2006. At that time, the
4
The penalty for aggravated rape of a person under the age of thirteen, a violation of La.R.S.
14:42, was either life imprisonment or the death penalty, as elected by the District Attorney. The
District Attorney did not elect the death penalty in this case. Additionally, the death penalty for
this crime was found unconstitutional by the United States Supreme Court.
16

penalty provision for failing to register as a sex offender was contained in La.R.S.

15:542. For a first offense, an offender faced a fine of not more than $1,000.00 or

imprisonment with or without hard labor for not less than one year nor more than

five years or both. Thus, Defendant was sentenced to the maximum term, although

the trial could have imposed a fine in addition to the maximum term.

In State v. Bergeron, 12-71 (La.App. 3 Cir. 10/3/12), 99 So.3d 90, writ

denied, 12-2388 (La. 4/26/13), __ So.3d __, the defendant was convicted of failure

to register as a sex offender because he moved and failed to notify authorities of

his new address and send out the required notice. At the time of the commission of

the offense, the penalty was a fine of not more than $1,000.00 and imprisonment at

hard labor for not less than two nor more than ten years without benefits. La.R.S.

15:542.1.4. The defendant was sentenced to serve the maximum term of

incarceration. On appeal, the defendant challenged the sentence as excessive. This

court affirmed the sentence. In doing so, this court noted that in the trial court‟s

reasons for imposing the sentence, the trial court stated the defendant knowingly

violated the registration statute when he could have complied easily through the

assistance of his brother or other people.

We note that, at the guilty plea proceeding, Defendant did not offer any

excuse for failure to register. Moreover, based upon the charging instrument,

Defendant was in Louisiana for over two years without registering as a sex

offender. During that time, he committed sexual offenses in Louisiana.

Therefore, in applying the Lisotta factors, we find that the trial court did not abuse

its discretion in imposing the five year sentence.

Defendant‟s assignment of error of excessive sentence as to all sentences for

all offenses is without merit.

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DISPOSITION

Defendant‟s sentence for failure to register as a sex offender is amended to

delete the provision that it be served without the benefit of parole, probation, or

suspension of sentence, and the trial court is instructed to note the amendment in

its court minutes. In all other respects, Defendant‟s sentences are affirmed in their

entirety.

AFFIRMED AS AMENDED WITH INSTRUCTIONS.

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