State of Louisiana v. Ronald Millard Irby

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

13-899

STATE OF LOUISIANA

VERSUS

RONALD MILLARD IRBY

************

APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 35488-11
HONORABLE CLAYTON DAVIS, DISTRICT JUDGE

************

PHYLLIS M. KEATY
JUDGE

************

Court composed of Elizabeth A. Pickett, James T. Genovese, and Phyllis M.
Keaty, Judges.

CONVICTION AND SENTENCE AFFIRMED.
MOTION TO WITHDRAW GRANTED.

John F. DeRosier
District Attorney
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

Edward J. Marquet
Louisiana Appellate Project
Post Office Box 53733
Lafayette, Louisiana 70505-3733
(337) 237-6841
Counsel for Defendant/Appellant:
Ronald Millard Irby

KEATY, Judge.

Defendant, Ronald Millard Irby, was charged by bill of information with

pornography involving juveniles, a violation of La.R.S. 14:81.1(A)(1). Defendant

pled not guilty. Defendant later entered a ―no contest‖ plea to the charge. On that

same date, both Defendant and his counsel signed a Notification to Sex Offender

and a Notification of Supervised Release. After accepting Defendant‘s plea, the

trial court ordered a Presentence Investigation report (PSI) and set sentencing for a

later date. Approximately three months later, Defendant filed a Motion to

Withdraw Admission and Guilty Plea. Prior to sentencing, the trial court heard

defense counsel‘s argument in support of the motion and denied Defendant‘s

motion to withdraw. Thereafter, the trial court imposed the maximum sentence,

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

sentence with credit for time served. Defendant noted his objection to the

sentence.

Defendant timely filed a Motion for Appeal and Designation of Record.

Defendant‘s appellate counsel has filed a brief pursuant to Anders v. California,

386 U.S. 738, 87 S.Ct. 1396 (1967), alleging the record contains no non-frivolous

issues for appeal and requesting that this court grant his accompanying motion to

withdraw. Pursuant to Defendant‘s request, on October 11, 2013, this court sent a

copy of the record to Defendant and granted him until November 27, 2013, to file a

pro se brief. To date, Defendant has not filed a pro se brief. For the following

reasons, we affirm Defendant‘s conviction and sentence and grant appellate

counsel‘s motion to withdraw.

FACTS

The following factual basis was given by the State in support of the

Defendant‘s no contest plea:

If called to trial the State would prove that on or between May
7th, 2011 and June 7th, 2011, investigation conducted by the
Calcasieu Parish Sheriff‘s Office as well[] as the U.S. Department of
Homeland Security, revealed the defendant did unlawfully possess
several media files depicting child pornography within the confines of
Calcasieu Parish.

There was a forensic examination conducted by Agent Jeremy
Cook of the U.S. Department of Homeland Security, and he did
confirm that the defendant did have several files of child pornography
on his hard drives.

DISCUSSION

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 review, we find no errors patent.

Anders

Pursuant to Anders, Defendant‘s appellate counsel filed a brief stating that

he made a conscientious and thorough review of the trial court record and could

find no errors on appeal that would support reversal of Defendant‘s conviction or

sentence. Thus, counsel seeks to withdraw.

In State v. Benjamin, 573 So.2d 528, 531 (La.App. 4 Cir. 1990), the fourth

circuit explained the Anders analysis:

When appointed counsel has filed a brief indicating that no
non-frivolous issues and no ruling arguably supporting an appeal were
found after a conscientious review of the record, Anders requires that
counsel move to withdraw. This motion will not be acted on until this
court performs a thorough independent review of the record after
providing the appellant an opportunity to file a brief in his or her own
behalf. This court‘s review of the record will consist of (1) a review
of the bill of information or indictment to insure the defendant was
properly charged; (2) a review of all minute entries to insure the
2

defendant was present at all crucial stages of the proceedings, the jury
composition and verdict were correct and the sentence is legal; (3) a
review of all pleadings in the record; (4) a review of the jury sheets;
and (5) a review of all transcripts to determine if any ruling provides
an arguable basis for appeal. Under C.Cr.P. art. 914.1(D) this Court
will order that the appeal record be supplemented with pleadings,
minute entries and transcripts when the record filed in this Court is not
sufficient to perform this review.

While it is not necessary for Defendant‘s appellate counsel to ―catalog

tediously every meritless objection made at trial or by way of pre-trial motions

with a labored explanation of why the objections all lack merit,‖ counsel‘s Anders

brief must ―‗assure the court that the indigent defendant‘s constitutional rights have

not been violated.‘ McCoy [v. Court of Appeals of Wisconsin, 486 U.S. [429] at

442, 108 S.Ct. [1895] at 1903 [(1988)].‖ State v. Jyles, 96-2669, p. 2 (La.

12/12/97), 704 So.2d 241, 241. Counsel must fully discuss and analyze the trial

record and consider ―whether any ruling made by the trial court, subject to the

contemporaneous objection rule, had a significant, adverse impact on shaping the

evidence presented to the jury for its consideration.‖ Id. (citing United States v.

Pippen, 115 F.3d 422 (7th Cir. 1997)). Thus, counsel‘s Anders brief must review

the procedural history and the evidence presented at trial and provide ―a detailed

and reviewable assessment for both the defendant and the appellate court of

whether the appeal is worth pursuing in the first place.‖ State v. Mouton, 95-981,

p. 2 (La. 4/28/95), 653 So.2d 1176, 1177.

In his Anders brief, appellate counsel points out that prior to entering his no

contest plea, he explained to Defendant the six constitutional rights he was waiving

by entering the no contest plea. Moreover, appellate counsel notes, Defendant

signed and was provided a copy of the Notification to Sex Offender and

Notification of Supervised Release required by La.R.S. 15:543(A). Additionally,

3

appellate counsel points out that the ―trial judge specifically informed the

defendant of the ‗strict requirements‘ of the registration for the ‗next 25 years.‘‖

Appellate counsel asserts that the ―colloquy with the Court and the plea forms as

well as the Notification Documents established the knowing and intelligent waiver

of rights and the voluntary nature of the plea.‖

Regarding Defendant‘s Motion to Withdraw Admission and Guilty Plea,

appellate counsel notes that Defendant claimed he misunderstood the consequences

of his plea and the registration requirements. However, appellate counsel contends

that the plea form and registration requirements were carefully explained to

Defendant and that Defendant confirmed that he understood. According to

appellate counsel, the trial court took special note of Defendant‘s ability to express

himself verbally and in writing.

A guilty plea may be withdrawn at any time prior to sentencing, and the

discretion of the trial judge will not be disturbed absent arbitrariness or an abuse of

that discretion. State v. Calhoun, 96-786 (La. 5/20/97), 694 So.2d 909. ―A

defendant has no absolute right to withdraw a guilty plea.‖ State v. Stewart,

47,679, p. 6 (La.App. 2 Cir. 1/16/13) 109 So.3d 915, 918-19, writ denied, 13-303

(La. 9/20/13), 123 So.3d 163. ―Generally, the denial of withdrawal of a guilty plea

will not be reversed on appeal when the record shows the defendant was informed

of his rights and the consequences of the plea and that the plea was entered

voluntarily.‖ Id. at 919.

Appellate counsel asserts that the trial court correctly denied Defendant‘s

request to withdraw his plea because the record establishes that Defendant

understood the plea and voluntarily entered the plea. Finally, appellate counsel

asserts that the sentence imposed, ten years at hard labor, could not reasonably be
4

argued as excessive in light of the nature of the charge and in light of Defendant‘s

prior felony convictions.

Pursuant to Anders, 386 U.S. 738, and Benjamin, 573 So.2d 528, we have

performed a thorough review of the record, including pleadings, minute entries, the

charging instrument, and the transcripts. Our review confirms the statements made

by appellate counsel. Defendant was properly charged in the bill of information,

and he was present and represented by counsel at all crucial stages of the

proceedings. Additionally, we conclude that Defendant entered a free and

voluntary plea after he was advised of his rights in accordance with Boykin v.

Alabama, 395 U.S. 238, 89 S.Ct. 1709 (1969). The trial court informed Defendant

that he was waiving his right to a jury trial, his right to confront and cross-examine

his accusers, his right to compel witnesses to testify, his right to remain silent, his

right to representation, and his right to an appeal. These rights were also set forth

in a written plea form signed by the Defendant. According to the written plea

form, Defendant had three years of college. The trial court also advised Defendant

of the penalty range he was facing (two to ten years and/or a $10,000 fine) and

advised Defendant that he was ―facing a straight-up plea.‖1 Defendant stated that

he understood the range and the plea. Additionally, Defendant stated that he had

not been induced to plead by any threats, pressure, or force. After the State recited

the factual basis for the plea, the trial court asked Defendant if he agreed with the

facts, and Defendant replied, ―Yes, sir.‖

1
The trial court incorrectly informed Defendant that he was facing ―two to ten years, a
$10,000 fine or both.‖ (Emphasis added.) At the time Defendant committed the present offense,
the penalty provision for La.R.S. 14:81.1(E)(1) called for a term of imprisonment and a fine of
not more than $10,000. We find, however, that the trial court‘s misstatement is of no
consequence since no minimum fine had to be imposed and no fine was imposed. See State v.
Francois, 06-788 (La.App. 3 Cir. 12/13/06), 945 So.2d 865.
5

Upon accepting Defendant‘s plea, the trial court asked Defendant if he had

read the Notification of Sex Offender form and if it had been explained to him.

Defendant replied, ―Yes, sir‖ and declined the trial judge‘s offer to explain it to

him. When asked if he had any questions regarding the notification requirements,

the Defendant responded, ―No, sir.‖ The trial judge then stated: ―You understand

the extremely strict requirement you‘re going to be under for the next 25 years as it

relates to any of your employment, residences, moves that you might make, et

cetera?‖ Defendant responded, ―Yes, sir.‖ The following colloquy then took place

between Defendant and the trial judge:

THE COURT:
Okay. Likewise, - - do you have any questions sir?

MR. IRBY:
(Indicating negatively.)

THE COURT:
No. He‘s indicated no. Likewise, the Notification of
Supervised Release, which sets forth various Louisiana statutes that
apply to you now, would you like the Court to go over that form with
you?

MR. IRBY:
No, sir. Not necessary.

THE COURT:
Your attorney has gone over the form - -

MR. IRBY:
Yes, sir.

THE COURT:
- - with you and explained it to you in detail, correct?

MR. IRBY:
Yes, sir.

THE COURT:
And answered any questions that you had?

MR. IRBY:
6

Yes, sir.

THE COURT:
I‘ll not repeat it unless you want me to.

MR. IRBY:
No, sir.

Considering the above colloquy between the trial court and Defendant, we

agree with appellate counsel‘s assertion that the trial court did not abuse its

discretion when it denied Defendant‘s request to withdraw his plea. Despite

Defendant‘s claim at the motion to withdraw plea hearing that he thought he would

have to register for only fifteen years, not twenty-five years, the trial judge found

that it had done everything that needed to be done to make sure Defendant

understood the consequences of his plea. We agree. Louisiana Revised Statutes

15:543(A) requires the court to ―provide written notification‖ of registration and

notification requirements for sex offenders. Written notification of the registration

requirements was given to Defendant at the no contest plea hearing. Additionally,

at the no contest plea hearing, the trial court asked Defendant if he had any

questions regarding the notification requirements and asked if he wanted the trial

court to explain the notification requirements to him. Although Defendant stated

he had no questions and declined the trial judge‘s offer to explain the requirements,

the trial court nevertheless asked Defendant if he understood the strict requirement

he would be under for the next twenty-five years. Defendant responded that he

understood. Thus, at the no contest plea hearing, Defendant was informed both in

writing and verbally by the trial court that he would be required to register as a sex

offender for twenty-five years.

At the motion to withdraw plea hearing, defense counsel informed the trial

court that Defendant misunderstood his sentencing exposure, stating :
7

The sentencing is divided into basically three different areas: one, if
the victim is 13 or less; one, if the victim is between 13 and 18; and
another if the victim is over 18.

When he pled, there was [sic] the statements by the prosecutor
which would give the basis for the time frame in which his sentencing
would be involved, and he had a total misunderstanding of that. I
don‘t know whether he misunderstood what the prosecutor was
reading, but basically how that time frame, based on age, is split up in
the statute. Because it‘s more if the victim is younger, and it is
different if the victim has reached and is over the age of 13.

We find that the record does not support Defendant‘s claim of misunderstanding as

to his sentencing exposure. The no contest plea form signed by Defendant

specifically cites La.R.S. 14:81.1(E)(1), the general penalty provision for

possessing pornography involving juveniles. At the time Defendant committed the

instant offense, La.R.S 14:81.1(E)(1)(a) provided:2

Whoever intentionally possesses pornography involving
juveniles shall be fined not more than ten thousand dollars and shall
be imprisoned at hard labor for not less than two years or more than
ten years, without benefit of parole, probation, or suspension of
sentence.

In addition to citing La.R.S. 14:81.1(E)(1), the no contest plea form set forth

Defendant‘s sentencing exposure as two to ten years at hard labor, a fine of not

more than $10,000, or both. At the no contest plea proceeding, the trial court

informed Defendant that he was facing ―two to ten years, a $10,000 fine or both.‖3

According to Subsection (5) of La.R.S. 14:81.1(E), the penalty for pornography

involving juveniles shall be increased if the victim was under the age of thirteen

years and the offender was seventeen years of age or older. No mention, however,

2
In 2012, the legislature increased the penalty range to a fine of not more than $50,000
and imprisonment at hard labor for not less than five nor more than twenty years, without benefit
of parole, probation, or suspension of sentence. La.R.S. 14:81.1 (E)(1)(a).

3
As discussed in footnote 1, neither the trial court nor the guilty plea form should have
used the terminology ―or both.‖ However, as also discussed in footnote 1, we find the
misstatement is of no consequence.
8

is made of the age of the victims in the present case. Thus, we conclude that

Defendant was sentenced under La.R.S. 14:81.1(E)(1), the general penalty

provision for possession of pornography involving juveniles, the same penalty

provision of which he was advised in the written plea form and in the trial judge‘s

verbal colloquy at the no contest plea hearing.

Finally, at the motion to withdraw no contest plea hearing, defense counsel

claimed that Defendant did not know he was allowed to speak when the trial judge

asked him if he had any questions at the no contest plea hearing. The trial court

found no merit to this claim, especially considering the fact that Defendant is

―quite literate‖ and ―expresses himself well in writing.‖

We find that it is clear from the colloquy between Defendant and the trial

judge at the no contest plea hearing that none of Defendant‘s alleged

misunderstandings came from the trial judge or the District Attorney. ―It is well

settled that if a defendant‘s misunderstanding is not induced by or attributed to

representations made by the district attorney or the trial court, there is no ground

for invalidating the guilty plea.‖ State v. Readoux, 614 So.2d 175, 176 (La.App. 3

Cir. 1993) (citing State v. Malmay, 548 So.2d 71 (La.App. 3 Cir. 1989); State v.

Jones, 546 So.2d 1343 (La.App. 3 Cir. 1989)). As set forth above, the trial court‘s

denial of a motion to withdraw guilty plea will not be disturbed absent an abuse of

discretion. Calhoun, 694 So.2d 909. After reviewing the record, we find that no

abuse of discretion occurred in the present case.

Excessiveness of Sentence

Appellate counsel asserts that ―given the defendant‘s prior felony

convictions and the nature of the instant offense, an argument of excessive

9

sentence would be frivilous [sic].‖ Although the trial court imposed the maximum

sentence in this case, we find the sentence not to be excessive.

At the time Defendant committed the offense of pornography involving

juveniles, the general penalty range for the possession of such pornography was a

fine of not more than $10,000 and imprisonment at hard labor for not less than two

years nor more than ten years, without benefit of parole, probation, or suspension

of sentence. See La.R.S. 14:81.1(E)(1).4 Thus, the sentence imposed by the trial

court, ten years at hard labor without benefits, was the maximum term of

imprisonment that could be imposed. Before imposing sentence, the trial court

asked the State if it had any argument. The State argued the following:

This is not his first rodeo. He has a felony conviction in - - a felony
drug conviction in Texas in ‘94, sentenced to 25 years. He also has
one prior felony conviction to that.

Your Honor, there were over hundreds of files of child
pornography actually found on his computer. And given that fact,
Your Honor, the State actually could have billed him with possession
with intent, but we did not. So, I‘m going to ask that the maximum
sentence be imposed of ten years with Louisiana Department of
Corrections.

In response, defense counsel argued:

Your Honor, with regards to the priors, as you note, as [the
State] said, his priors are not related to this type of crime. If it had
been then, the State would have filed a Prieur motion.

[The State] indicated that there were hundreds with regards to
the matters that were downloaded. As you may note or may
remember from the bill of information, there was only one count
billed by the State. So, we would suggest to the Court that based upon
the fact that this is - - and does involve still frames and does not
involve a physically present victim of the minor age, we would
suggest to the Court that the minimum of two years would be
appropriate here. For the next 25 years the State will have their finger
on Mr. Irby.
4
Although the bill of information does not specify the applicable penalty provision, the
no contest plea form cites La.R.S. 14:81.1(E)(1), which is the general penalty provision for
intentionally possessing pornography involving juveniles.
10

The trial court then imposed the maximum sentence, stating the following:

Well, given the defendant‘s history and given the nature of the
claims against him in this matter, I‘m going to sentence him to the
maximum, ten years, without benefit. Credit for time served.

―The law is well settled concerning the standard to be used in reviewing

excessive sentence claims.‖ State v. Decuir, 10-1112, p. 11 (La.App. 3 Cir.

4/6/11), 61 So.3d 782, 790.

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. 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.

. . . [E]ven when a sentence falls within the statutory sentencing
range, it still may be unconstitutionally excessive, and in determining
whether a sentence shocks the sense of justice or makes no
meaningful contribution to acceptable penal goals, this court has
suggested that several factors may be considered:

[An] 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
11

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.

Id. at 790-91.

Finally, it is well settled that ―[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. In this case, Defendant noted a

general objection to the sentence but did not file a motion to reconsider sentence.

According to La.Code Crim.P. art. 881.1(E), Defendant‘s failure to file a motion to

reconsider sentence would preclude him from seeking review of his sentence:

Failure to make or file a motion to reconsider sentence or to
include a specific ground upon which a motion to reconsider sentence
may be based, including a claim of excessiveness, shall preclude the
state or the defendant from raising an objection to the sentence or
from urging any ground not raised in the motion on appeal or review.

See also State v. Williams, 01-998 (La.App. 3 Cir. 2/6/02), 815 So.2d 908, writ

denied, 02-578 (La. 1/31/03), 836 So.2d 59; State v. Bamburg, 00-675 (La.App. 3

Cir. 11/2/00), 772 So.2d 356. Even assuming Defendant‘s excessive sentence

claim could have been raised on appeal, any argument would be limited to a bare

claim of excessiveness. See State v. Eubanks, 12-896 (La.App. 3 Cir. 4/10/13),

112 So.3d 1064.

Although the scant reasons given by the trial court in the present case could

be considered as inadequate compliance with La.Code Crim.P. art. 894.1, this court
12

has found that there is no need to remand for resentencing if an adequate factual

basis for the sentence is contained in the record. State v. Anderson, 95-1688

(La.App. 3 Cir. 5/8/96), 677 So.2d 480. We find that the record in the instant

matter contains an adequate factual basis for the sentence imposed. The PSI

ordered by the trial court in the present case revealed that Defendant had three

prior felony convictions for drug offenses. Thus, Defendant was considered a

fourth felony offender. Although the record contains no verbal discussion, the

words ―NO MULTIPLE BILL‖ are circled on the written plea form. Additionally,

the State asserted that even though Defendant was charged with one count of

pornography involving juveniles, Defendant possessed ―over hundreds of files of

child pornography.‖ Thus, the State argued that it could have charged Defendant

with possession with the intent to distribute. Additionally, according to the

Louisiana Supreme Court‘s holding in State v. Fussell, 06-2595, p. 1 (La. 1/16/08),

974 So.2d 1223, 1224, Defendant could have been charged separately ―for each

child, in each performance, captured in any photographs, films, videotapes, or

other visual reproductions that a defendant intentionally possesses.‖

Finally, this court has reviewed the jurisprudence to compare the maximum

sentence imposed on the present Defendant with the sentences imposed on other

similarly situated defendants. The sentence received by Defendant appears to be

on the high end when compared to defendants who were convicted, pled guilty, or

pled no contest to a single count of pornography involving a juvenile. 5 The

5
In State v. Daigle, 11-1209 (La.App. 3 Cir. 5/2/12), 93 So.3d 657, writ denied, 12-1255
(La. 11/16/12), 102 So.3d 30, Daigle was sentenced to two years without benefits after he pled
guilty to one count of pornography involving juveniles. In State v. Grudewicz, 10-958 (La.App.
3 Cir. 3/23/11), 59 So.3d 568, Grudewicz pled no contest to one count of pornography involving
juveniles and was sentenced pursuant to a plea agreement to two years without benefits. In State
v. Roberts, 01-154 (La.App. 3 Cir. 10/3/01), 796 So.2d 779, writ denied, 01-2974 (La. 9/20/02),
825 So.2d 1163, Roberts was sentenced to four years without benefits after he was convicted of
one count of pornography involving juveniles. In State v. Horton, 42,199 (La.App. 2 Cir.
13

sentence is in line, however, with sentences imposed on defendants charged with

multiple counts of pornography involving juveniles.6 This court is well aware of

the Louisiana Supreme Court‘s repeated admonition to the courts of appeal that

―the Louisiana constitution does not provide an appellate court with a vehicle for

substituting its judgment for that of a trial judge as to what punishment is more

appropriate in a given case.‖ State v. Savoy, 11-1174, p. 5 (La. 7/2/12), 93 So.3d

1279, 1283. Considering this admonition, Defendant‘s prior felony history, and

6/20/07), 962 So.2d 459, writ denied, 07-1819 (La. 1/25/08), 973 So.2d 755, Horton was
sentenced to seven years without benefits after a jury found him guilty of pornography involving
juveniles. Over 100 pages of pornography involving juveniles were found on Horton‘s
computer, over 300 VHS tapes of adult pornography were seized from Horton‘s home, and CD-
ROMs and computer diskettes (one of which included pornography involving juveniles) were
seized from Horton‘s home. In State v. Stapleton, 40,772 (La.App. 2 Cir. 3/8/06), 924 So.2d
453, Stapleton was sentenced to five years without benefits following his conviction of
pornography involving juveniles. Approximately 102 images of child pornography and an
additional sixty-nine images of ―child erotica‖ were found on floppy discs seized from
Stapleton‘s home. Id. at 456. In State v. Morales, 12-21 (La.App. 5 Cir. 10/30/12), 102 So.3d
1038, Morales was sentenced to four years without benefits and a $5,000 fine after he pled guilty
as charged to one count of pornography involving juveniles. Although the opinion does not
specify the number of photographs possessed by Morales, the number is described as ―large.‖ Id.
at 1040. Morales had no previous criminal history. In State v. Longo, 08-405 (La.App. 5 Cir.
1/27/09), 8 So.3d 666, Longo received a three-year sentence without benefits after he was found
guilty of pornography involving juveniles. Twenty-five images of child pornography were found
on Longo‘s computer.

6
In State v. Kujawa, 05-470 (La.App. 1 Cir. 2/22/06), 929 So.2d 99, writ denied, 06-669
(La. 10/6/06), 938 So.2d 65, Kujawa pled guilty to fifteen counts of pornography involving
juveniles. Although Kujawa was originally sentenced to four years on each count, to run
consecutively, Kujawa was eventually resentenced to ten years and a $10,000 fine on each count,
to run concurrently. In State v. Calhoun, 94-2568 (La.App. 1 Cir. 2/23/96), 669 So.2d 1359,
Calhoun pled guilty to one count of pornography involving juveniles and was sentenced to the
maximum sentence of ten years without benefits. In a separate docket number, Calhoun also
pled guilty to one count of molestation of a juvenile. Although Calhoun was a first felony
offender, he had a significant criminal history, including a prior arrest for juvenile pornography.
Calhoun actually photographed the victim performing sexually. In State v. Wright, 45,980
(La.App. 2 Cir. 1/26/11), 57 So.3d 465, writ denied, 11-421 (La. 9/2/11), 68 So.3d 520, Wright
was convicted of twenty-three counts of pornography involving juveniles and was sentenced to
ten years on each count, some to run concurrently and some to run consecutively. Thus, Wright
was sentenced to a total of twenty years. Finally, in State v. Hearn, 09-434 (La.App. 5 Cir.
12/29/09), 30 So.3d 873, Hearn was originally charged with twelve counts of pornography
involving juveniles but entered a guilty plea to only two counts. Hearn was sentenced to eight
years and four months without benefits on each count of pornography involving juveniles, to run
concurrently with one another. Although Hearn was a first felony offender with a good
employment and military history, the fifth circuit upheld the sentence. The fifth circuit noted the
benefit Hearn received by the State dismissing ten of the twelve counts of pornography and the
overwhelming number of images and movies involved (7637 images and 642 movies).

14

the fact that the State could have charged Defendant with multiple counts of

pornography in light of the number of files found, we conclude that the trial court

did not abuse its discretion in imposing the maximum sentence.7

Our review of the record reveals no issues that would support an assignment

of error on appeal. Therefore, Defendant‘s conviction and sentence are affirmed,

and appellate counsel‘s motion to withdraw is granted.

CONVICTION AND SENTENCE AFFIRMED.
MOTION TO WITHDRAW IS GRANTED.

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

7
Defendant‘s sentence would be a mid-range sentence under the penalty range as
amended in 2012. La.R.S. 14:81.1(E)(1)(a).
15