State of Louisiana v. Jody R. Balach

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

14-538

STATE OF LOUISIANA

VERSUS

JODY R. BALACH

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APPEAL FROM THE
THIRTIETH JUDICIAL DISTRICT COURT
PARISH OF VERNON, DOCKET NO. 84717, DIV. C
HONORABLE JAMES R. MITCHELL, DISTRICT JUDGE

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JAMES T. GENOVESE
JUDGE

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Court composed of J. David Painter, James T. Genovese, and Phyllis M. Keaty,
Judges.

AFFIRMED.

Annette Roach
Louisiana Appellate Project
Post Office Box 1747
Lake Charles, Louisiana 70602-1747
(337) 436-2900
COUNSEL FOR DEFENDANT/APPELLANT:
Jody R. Balach

Asa A. Skinner
District Attorney – Thirtieth Judicial District
Terry W. Lambright
Assistant District Attorney
Post Office Box 1188
Leesville, Louisiana 71496-1188
(337) 239-2008
COUNSEL FOR APPELLEE:
State of Louisiana

GENOVESE, Judge.

In this criminal case, Defendant, Jody R. Balach, pled guilty as charged to

two counts of theft of a motor vehicle valued at more than $500.00 but less than

$1,500.00, a violation of La.R.S. 14:67.26(C)(2). As part of the plea agreement,

the State dismissed two other pending charges against Defendant and agreed not to

pursue habitual offender enhancement. Defendant was sentenced to serve five

years at hard labor and pay a fine of $1,000.00 plus court costs on each count to

run concurrently. Defendant’s Motion to Reconsider Sentence was denied. He

appeals, alleging excessive sentences. For the following reasons, we affirm

Defendant’s sentences.

FACTUAL BACKGROUND

At Defendant’s guilty plea hearing, the State presented the following factual

basis:

[O]n or about September the 11th, 2012[,] in Vernon Parish,
defendant committed the offense of Theft of a Motor Vehicle in that
he intentionally took a 1999 Ford Taurus from a residence located at
7449 Kurthwood Road belonging to an individual by the name of
Jessica Hill without her permission and with the intent of permanently
disposing of that vehicle, which he did at Harvey’s Auto Parts. The
value of the vehicle was approximately $1100. This took place in
Vernon Parish. Count number two, same offense, on September 13,
2012[,] in Vernon Parish, he intentionally took a 1994 Dodge Truck
from the same area, 7449 Kurthwood Road, Leesville, Louisiana,
Vernon Parish, belonging to an individual by the name of Lloyd
Wayne Henderson without that person’s knowledge or permission and
disposed of that vehicle also at Harvey’s Auto Parts with the intent to
permanently deprive the owner of that property, which was valued at
approximately $800.

In his interview with Detective Misti Bryant of the Leesville Police

Department, Defendant admitted that he sold a Taurus to Harvey’s Auto Parts

(Harvey’s) for $268.96 on September 11, 2012, and that he sold the truck to

Harvey’s for $352.60 on September 13, 2012.

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 no

errors patent; however, we do find that the commitment order and court minutes of

the guilty plea proceeding and sentencing require correction.

Defendant was charged with, pled guilty to, and was sentenced on two

counts of theft of a motor vehicle valued at $500.00 or more but less than

$1,500.00. However, the court minutes of the guilty plea proceeding, the

sentencing, and the commitment order all reflect the convictions as theft over

$1,500.00. “[W]hen the minutes and the transcript conflict, the transcript

prevails.” State v. Wommack, 00-137, p. 4 (La.App. 3 Cir. 6/7/00), 770 So.2d 365,

369, writ denied, 00-2051 (La. 9/21/01), 797 So.2d 62. Accordingly, we order the

trial court to amend the minute entries and the commitment order to reflect the

correct convictions. See State v. Nguyen, 10-483 (La.App. 3 Cir. 2/2/11), 55 So.3d

976, writ denied, 11-285 (La. 6/17/11), 63 So.3d 1038.

ASSIGNMENT OF ERROR

Defendant contends his sentences are excessive, constitute cruel and unusual

punishment, and violate federal and state constitutions. This court has previously

discussed the standard for reviewing excessive sentence claims:

[Louisiana Constitution Article 1], ' 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

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trial court abused its broad sentencing discretion, not whether another
sentence might have been more appropriate.

State v. Barling, 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d

1035, 1042, writ denied, 01-838 (La. 2/1/02), 808 So.2d 331 (citations omitted).

Defendant was exposed to a sentence of up to five years with or without

hard labor and/or a fine of up to $2,000.00 for each of his convictions for theft of a

motor vehicle. La.R.S. 14:67.26(C)(2). Thus, he received the maximum time and

half the fine possible for each offense.

Even though a penalty falls within the statutory sentencing range, it may still

be unconstitutionally excessive:

In deciding whether a sentence is shocking or makes no
meaningful contribution to acceptable penal goals, 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. 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.” 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. 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 (citations omitted). “[T]he trial

judge need not articulate every aggravating and mitigating circumstance outlined

in art. 894.1[; however,] the record must reflect that he adequately considered these

guidelines in particularizing the sentence to the defendant.” State v. Smith, 433

So.2d 688, 698 (La.1983) (citing State v. Ray, 423 So.2d 1116 (La.1982); State v.

Keeney, 422 So.2d 1144 (La.1982); State v. Duncan, 420 So.2d 1105 (La.1982)).

“[M]aximum sentences are reserved for cases involving the most serious violations

of the charged offense and for the worst kind of offender.” State v. Quebedeaux,

424 So.2d 1009, 1014 (La.1982) (citing State v. Jones, 398 So.2d 1049 (La.1981)).

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

supports the sentence imposed.” La.Code Crim.P. art. 881.4(D).

Theft of a motor vehicle is not a crime of violence. See United States v.

Charles, 301 F.3d 309 (5th Cir. 2002). According to Detective Bryant’s

investigative progress report, the victims in this case seemed interested only in

obtaining the license plates from their respective vehicles; nothing in the record

indicates they sought restitution or were concerned about losing the value of their

vehicles.

We note that the trial court was in error in considering Defendant’s

circumstances. At the plea hearing, Defendant testified he had eleven years of

education and was employed as a moving contractor by Shapkoff Moving and

Storage before his incarceration. He also stated he has epilepsy, that he had taken

medication for that condition about two months before the hearing, and that he had

“a doctor’s appointment lined up now for it” at the time of the plea hearing.

At the sentencing hearing, the trial court judge noted its consideration of the

factors of La.Code Crim.P. art. 894.1 and commented that Defendant “apparently

is in excellent health.” He stated that he had “no information about any kind of

employment record” and noted that Defendant had a tenth grade education. The

trial court’s statements are incorrect, and it relied on misinformation in crafting

Defendant’s sentences. However, Defendant’s appeal only contends that his

sentences are excessive, not that they are based on incorrect facts. Therefore, we

do not consider those factual errors in our review of Defendant’s appeal. Uniform

Rules—Courts of Appeal, Rule 1–3.

As correctly set forth by the trial court judge, Defendant “is considered as a

third offender classification.” He noted that Defendant has a prior criminal history

of “Possession of Marijuana with Intent and ordered to serve seven years, which

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was suspended. That probation was ultimately revoked. In 2008, he pled guilty to

the offense of Attempted Possession of Alprazolam, was given a two and one-half

year sentence, and that probation was revoked.” While these charges were

pending, Defendant was charged with two other offenses that allegedly occurred

on April 30, 2013.1 The trial court judge stated the he did not believe Defendant

was eligible for probation or “that he would respond favorably to any probationary

treatment anyway,” and noted that Defendant was thirty-two years old at the time

of sentencing, had four children, and had received treatment for his prior drug and

alcohol abuse.

Defendant contends he received limited benefit from his plea bargain

because the dismissed charges involved the same stolen items he was convicted of

possessing in docket number 85196. However, we note that the State also waived

its right to charge Defendant as a habitual offender. As a third felony offender,

Defendant could have been sentenced to a term of forty months to ten years and/or

a fine of $1,340.00 to $4,000.00. La.R.S. 15:529.1(A)(3)(a). Even though his

five-year sentences exceed the minimum term he could have received as a multiple

offender, he faced a potential exposure of a significantly longer term and a

significantly higher fine. Defendant clearly received substantial benefit from his

plea bargain.

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

imposing maximum sentences for theft of motor vehicles, even though lesser

sentences may have been appropriate. Defendant had two prior felony convictions

and did not successfully complete his probation in either matter. The trial judge,

best able to particularize the sentences, believed that Defendant would not respond

1
Defendant pled guilty to one of the charges (a felony consisting of possession of stolen
things over $1,500.00) under docket number 85196 on the same date he pled guilty to the
charges in this matter, and the other charge was dismissed.
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well to probation and that lesser sentences would deprecate the severity of

Defendant’s conduct. Defendant’s assignment of error lacks merit.

DISPOSITION

Defendant’s sentences are affirmed, and we order the trial court to amend its

court minutes of Defendant’s guilty plea, his sentencing, and his commitment order

to accurately reflect his convictions.

AFFIRMED.

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