State of Louisiana v. Jody R. Balach

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

14-539

STATE OF LOUISIANA

VERSUS

JODY R. BALACH

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APPEAL FROM THE
THIRTIETH JUDICIAL DISTRICT COURT
PARISH OF VERNON, DOCKET NO. 85196, 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 to illegal

possession of stolen things valued at more than $1,500.00, a violation of La.R.S.

14:69(B)(1). As part of the plea agreement, the State dismissed two other pending

charges (one a felony and one a misdemeanor) against Defendant and agreed not to

pursue habitual offender enhancement. Defendant was sentenced to serve eight

years at hard labor and pay a fine of $1,000.00 plus court costs.1 Defendant’s

Motion to Reconsider Sentence was denied. He appeals, alleging excessive

sentence. For the following reasons, we affirm Defendant’s sentence.

FACTUAL BACKGROUND

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

basis:

[O]n or about April 30th, 2013, defendant did have in his possession,
along with another defendant, certain property belonging to Mr. Jeane,
which he had good reason to believe was stolen property. My
understanding is that property was also subject of a theft, and he
had -- would have had reasonable knowledge that the items were
stolen property, and had a value of approximately $1800.

According to Detective Misti Bryant’s interview with Defendant, Defendant

admitted to the illegal possession of various stolen items, including a two-ton jack,

three tackle boxes, a battery charger, a wet tile saw, and fishing rods and reels.

The owner, Carlton R. Jeane, signed an affidavit stating the value of the items was

$1,770.00, based on their purchase prices. Defendant sold the items to Harvey’s

Auto Parts in Vernon Parish.

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On the same day, before the same judge, Defendant also pled guilty to two counts of
theft of a motor vehicle valued at more than $500.00 but less than $1,500.00 under docket
number 84717. He was sentenced to five years at hard labor plus a fine of $1,000.00 and court
costs on each count. The trial court ordered all sentences to run concurrently.

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.

ASSIGNMENT OF ERROR

Defendant contends his sentence is excessive, constitutes cruel and unusual

punishment, and violates 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
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 ten years with or without hard

labor and/or a fine of up to $3,000.00 for his conviction of illegal possession of

stolen things. La.R.S. 14:69(B)(1). Thus, his eight year sentence was toward the

high end of the sentencing range and one-third of the possible fine for the 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

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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)).

“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).

In this case, 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 that he has epilepsy and 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 sentencing, the trial court judge noted his 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 Defendant had a tenth grade education. The trial

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

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

sentence is excessive, not that it is based on incorrect facts. Therefore, we do not

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consider those factual errors in its review of Defendant’s appeal. Uniform Rules—

Courts of Appeal, Rule 1–3.

The defendant in State v. Pitts, 08-1148 (La.App. 3 Cir. 4/1/09), 6 So.3d

976, pled guilty to illegal possession of stolen things over $500.00 regarding the

theft of oilfield barges. He was sentenced to nine years at hard labor. As part of

the plea bargain, the State agreed not to charge him as a habitual offender. On

appeal, he argued his sentence was excessive because he helped authorities

discover the involvement of others in the crime. The district attorney submitted a

letter recommending a suspended sentence. The trial court considered the

defendant’s past four felony convictions for receiving stolen things, simple

burglary, and unauthorized entry and two misdemeanor convictions for driving

while intoxicated. The defendant also had a juvenile record. The trial court noted

no arrests resulted from the defendant’s cooperation.

This court in Pitts determined the defendant’s sentence was based on his

lengthy criminal history, not on the lack of results from his cooperation. This court

also noted the defendant gained a significant benefit from the State’s agreement

not to charge him as a multiple offender and expose him to a much longer

sentence. The defendant’s sentence was affirmed.

In State v. Allen, 45,040 (La.App. 2 Cir. 1/27/10), 30 So.3d 1049, the

defendant pled guilty to illegal possession of stolen things over $500.00 and

possession of marijuana. His criminal history included misdemeanor convictions

for evading arrest, unlawful carrying of a weapon, and possession of marijuana,

along with a felony conviction for aggravated robbery. The thirty-eight-year-old

defendant was married and had a four-year-old daughter. The second circuit

affirmed his sentence of six years at hard labor with no fine.

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In the instant case, the trial court judge noted that Defendant “is considered

as a third offender classification” and that he has a prior criminal history of

“Possession of Marijuana with Intent and ordered to serve seven years, which 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.” Additionally, Defendant, in his

companion case, pled guilty to two counts of motor vehicle theft on the same day

as his plea in this matter. The trial court judge did not believe Defendant was

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

treatment anyway.” The trial court judge also noted that Defendant was thirty-two

years old at the time of sentencing, that he had four children, and that he 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 involved in this

conviction. However, 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 eighty months to twenty years and/or a fine of $2,000.00 to

$6,000.00. La.R.S. 15:529.1(A)(3)(a). Even though his eight-year sentence

exceeds 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 that the trial court did not abuse its broad sentencing discretion in

imposing this sentence. Defendant had two prior felony convictions and did not

successfully complete his probation in either matter. The trial judge, best able to

particularize the sentence, believed Defendant would not respond well to

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probation, and a lesser sentence would deprecate the severity of Defendant’s

conduct. Defendant’s assignment of error lacks merit.

DISPOSITION

Defendant’s sentence is affirmed.

AFFIRMED.

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