State of Louisiana v. Fahim A. Shaikh

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

15-687

STATE OF LOUISIANA

VERSUS

FAHIM A. SHAIKH

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ON REMAND
FROM THE
LOUISIANA SUPREME COURT

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APPEAL FROM THE
THIRTY-SIXTH JUDICIAL DISTRICT COURT
PARISH OF BEAUREGARD, NO. 2014-313
HONORABLE C. KERRY ANDERSON, DISTRICT JUDGE

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PHYLLIS M. KEATY
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Shannon J. Gremillion,
and Phyllis M. Keaty, Judges.

VACATED AND REMANDED.

Annette Fuller Roach
Louisiana Appellate Project
Post Office Box 1747
Lake Charles, Louisiana 70602-1747
(337) 436-2900
Counsel for Defendant/Appellant:
Fahim A. Shaikh

James R. Lestage
District Attorney
Richard A. Morton
First Assistant District Attorney
Thirty-Sixth Judicial District
Post Office Box 99
DeRidder, Louisiana 70634
(337) 463-5578
Counsel for Appellee:
State of Louisiana

KEATY, Judge.

As a result of the remand from the supreme court in State v. Shaikh, 16-750

(La. 10/18/17), __ So.3d __, we consider Defendant’s pretermitted claim regarding

his allegedly excessive sentence arising from his conviction for indecent behavior

with a juvenile. For the following reasons, Defendant’s sentence for indecent

behavior with a juvenile is vacated, and the case is remanded to the trial court for

resentencing.

FACTS AND PROCEDURAL BACKGROUND

This court is familiar with the factual background in this case in light of

State v. Shaikh, 15-68 (La.App. 3 Cir. 3/23/16), 188 So.3d 409. As the facts have

not materially changed since that opinion, we adopt the facts set forth therein by

reference as though set forth in full herein:

In this criminal matter, the thirteen-year-old victim, A.G.,1 was
at her house on the morning of April 17, 2014, when her mother,
Mitzi Gormanous, left with her older daughter and grandson to go
shopping. A.G. did not go shopping because she was punished for
inappropriate behavior. When they returned approximately an hour
and a half later, A.G. was gone. This was the second time that A.G.
had run away according to her mother, and following a brief search,
Gormanous called the sheriff’s office and reported A.G. as a runaway.
A.G. was found later that day when she went to the sheriff’s station
with Mrs. Judith Knox.

Mrs. Knox was the grandmother of her friend, Alexis Knox,
and with whom Alexis lived. A.G.’s trial testimony indicates that on
the morning in question, she planned on running away to Alexis’s
house. As such, she packed a bag with her clothes and began walking
towards her destination. As she was walking, Shaikh, who was
driving his car, stopped and asked A.G. if she needed a ride. A.G.
obliged and asked to be taken to Alexis’s house. Since Alexis was not
going to be home until later that day, Shaikh and A.G. went to the
Dairy Queen drive-through to get food, went to Shaikh’s friend’s
apartment, ran other errands, and finally ended up at Alexis’s house.
A.G. alleged that during this time, Shaikh kissed her cheek, tickled
her, slapped her butt, and professed his love for her.

As a result, Shaikh was charged on June 12, 2014 with one
count of simple kidnapping, a violation of La.R.S. 14:45, and one
count of indecent behavior with a juvenile, a violation of La.R.S.
14:81. Following a three-day jury trial which began on February 23,
2014, Shaikh was convicted as charged. Shaikh subsequently filed a
Motion for New Trial and a Motion for Post-Verdict Judgment of
Acquittal Pursuant to Code of Criminal Procedure Article 821, which
the trial court summarily denied on April 2, 2014.

On April 13, 2014, Shaikh was sentenced to five years, with
two years suspended, on the simple kidnapping conviction. As to the
indecent behavior with a juvenile conviction, he was sentenced to
seven years with three years suspended. Both sentences were ordered
to be served concurrently with Shaikh receiving credit for time served,
for a total of four years of incarceration and five years of supervised
probation upon release. He was also ordered to pay a fine of $2,500
on each count, plus court costs. The general conditions of probation
were ordered, along with $500 to be paid to the Criminal Court Fund,
$300 for cost of prosecution, and $300 to the Public Defender’s Fund.
The fines, fees, and costs were ordered by the trial court to be paid on
a twenty-four month payment plan. Shaikh subsequently filed a
Motion to Reconsider Sentence which was denied by the trial court on
May 4, 2015.
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The victim’s initials are used to protect the victim’s identity as required
by La.R.S. 46:1844(W).

State v. Shaikh, 188 So.3d at 412.

Defendant perfected a timely appeal, following which this court vacated his

conviction and sentence for indecent behavior with a juvenile, finding that there

lacked sufficient evidence. State v. Shaikh, 188 So.3d 409. We further held that

Defendant’s sentence arising from his conviction for simple kidnapping was

constitutionally excessive and, as such, vacated the sentence and remanded the

matter to the trial court for resentencing. Id. The supreme court subsequently

reinstated Defendant’s conviction for indecent behavior with a juvenile as well as

reinstated his sentence for simple kidnapping, as originally imposed. State v.

Shaikh, ___So.3d___. It remanded the matter to this court to address Defendant’s

pretermitted claim that the maximum sentence imposed on his conviction for

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indecent behavior with a juvenile is constitutionally excessive. Id. We now

address the pretermitted claim.

DISCUSSION

Defendant contends that the maximum sentence imposed on his conviction

for indecent behavior with a juvenile is excessive considering the circumstances of

the case and because he is a first-time felony offender. He argues that maximum

sentences, even if imposed concurrently, are reserved for the most serious of

offenses and the worst offenders.

In this case, Defendant was convicted of indecent behavior with a juvenile, a

violation of La.R.S. 14:81, which provides for a sentencing range of imprisonment

of not more than seven years, with or without hard labor. La.R.S. 14:81(H)(1). He

was also convicted of simple kidnapping, a violation of La.R.S. 14:45, which

provides for a range of imprisonment of not more than five years, with or without

hard labor. La.R.S. 14:45(B). Defendant received the maximum sentence for each

offense.

With regard to the maximum sentence imposed on the conviction for

indecent behavior with a juvenile, the trial court noted at the sentencing hearing

that Defendant had no criminal history. It further discussed the range of

punishment for the offenses of which Defendant was convicted, as follows:

Well, let me dispel that situation. I do not find the evidence -- I
do not find that that version of events is what happened on this
occasion. I heard all of the evidence, and I do not feel that Mr. Shaikh
thought that this was a traveling salesperson. I believe that more
likely the situation that was described is that Mr. Shaikh saw this
young girl walking down the side of the road and made an intentional
decision to turn around.

And, thankfully for this young lady, Mr. Shaikh is a very meek
and mild-mannered person who only took this as far as the young
victim allowed it to go. And my belief is that it would have gone, on

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the other hand, as far as -- Mr. Shaikh would have taken this as far as
the young victim would have allowed it to go.

Now, I’m not going to sentence Mr. Shaikh based upon what he
might have done or what he could have done. He was convicted of
these two charges based upon the evidence that was presented; and so
I’m going to sentence him based upon what he did do, not what he
might have done. And I do not believe that that merits the maximum
penalty of two maximum sentences run consecutive. It certainly
deserves punishment, lengthy prison sentences, to make sure that it
doesn’t happen again and that Mr. Shaikh understands that this kind of
conduct is unacceptable.

The trial court imposed the maximum sentence of seven years’ imprisonment at

hard labor, with three years of Defendant’s sentence suspended, on his conviction

for indecent behavior with a juvenile.

While discussing a maximum sentence imposed on a conviction for indecent

behavior with a juvenile, this court in State v. Whatley, 06-316, pp. 4-5 (La.App. 3

Cir. 11/2/06), 943 So.2d 601, 605, writ denied, 06-2826 (La. 8/31/07), 962 So.2d

424, noted:

The initial seven-year sentence was the maximum incarceration
sentence that could be imposed for the offense of indecent behavior
with a juvenile. La.R.S. 14:81(C). In vacating that sentence in [State
v.] Whatley I, [03-1275 (La.App. 3 Cir. 3/3/04), 867 So.2d 955], we
set out the standard of appellate review of a claim for excessive
sentence 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,

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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. 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
(La.App. 5 Cir. 12/16/98),] 726 So.2d [57] at 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.

Whatley, 867 So.2d at 958-59 (first two alterations in original).

In Whatley I, 867 So.2d 955, this court vacated the defendant’s maximum

seven-year sentence based upon its finding that it was excessive. On remand, the

trial court sentenced the defendant to five years’ imprisonment at hard labor, with

eighteen months suspended. State v. Whatley, 943 So.2d 601. In subsequent

appeals, the defendant claimed the sentence was excessive. Id.; State v. Whatley,

04-724 (La.App. 3 Cir. 12/8/04), 888 So.2d 1166 (unpublished opinion) (“Whatley

II”); State v. Whatley, 05-221 (La.App. 3 Cir. 12/30/05), 918 So.2d 1218

(unpublished opinion) (“Whatley III”). The matter was remanded back to the trial

court on technical errors without getting to the merits of whether the sentence was

excessive. State v. Whatley, 943 So.2d 601. In Whatley, 943 So.2d 601, this court

finally addressed the merits of whether the imposition of a five-year sentence with

eighteen months suspended was excessive. This court, discussing the Lisotta

factors, stated:

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The offense of indecent behavior with a juvenile is
a heinous crime. It involves the use of innocent children
to satisfy the sexual desires of an adult and requires the
commission of a “lewd or lascivious act” upon, or in the
presence of the child. La.R.S. 14:81. In this case, the
defendant fondled the victim’s breasts and buttocks.
Clearly, society finds such activity inexcusable. Still, the
legislature has seen fit to limit the incarceration penalty
to a maximum of seven years at hard labor, and as
previously stated, the maximum penalty is reserved for
the worst offenders. Farhood, 844 So.2d 217.

The Defendant was fifty-three years old at the time
of the offense and apparently had led a crime-free life.
While the evidence indicates that he did use some
physical restraint of the victim, the offense entailed no
physical violence. Additionally, despite the clear
opportunity to do so, the defendant did not attempt to
press his physical and timing advantage on his victim.
Instead, after she rebuffed his advances, he left. The
nature of the Defendant’s touching, although inexcusable,
is not compatible with the degree of touching associated
with those cases in which the courts have chosen to
render a maximum sentence.

In this case, the trial court “considered deeply the
psychological impact” the defendant’s actions had on the
victim. However, the record reflects that the victim
admitted that she was already “somewhat depressed” at
the time of the incident because of the recent deaths of
her great-grandmother, uncle, and a close family friend.
In fact, the victim had seen a physician in April of 2002,
or two months before the offense, for “depressive
behavior.”

Id. at 959.

In concluding that the Defendant’s offense did not warrant a
maximum sentence, we considered a number of decisions upholding
maximum or near-maximum sentences imposed on an individual
convicted of indecent behavior with a juvenile and concluded that the
acts justifying those sentences were far more severe than the acts
supporting the Defendant’s conviction.

We supplemented this list in Whatley II with cases involving
sex crimes against a child wherein the sentences ranged from five
years at hard labor to one and one-half years at hard labor. All of
these cases also included acts far more severe than those supporting
the Defendant’s conviction. Additionally, we made the following

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comment concerning the trial court’s obligation in resentencing the
defendant:

Because we vacate the sentence in its entirety, the
trial court is not bound to merely correct the restitution
error and resentence the defendant to the same five-year
sentence. Instead, the trial court is free to formulate a
sentence that is consistent with the prior instructions of
this court. . . . If the trial court concludes that an
incarceration sentence is applicable, it should consider
the factual situations in the cases cited in Whatley, 867
So.2d 955, and compare the sentences imposed in those
matters to the undisputed facts of this litigation.

Whatley, 05-0221, p. 3 (La.App. 3 Cir. 12/30/05), 918 So.2d 1218.

Whatley, 943 So.2d at 605-07 (footnotes omitted).

In Whatley I, 867 So.2d at 958, this court set out cases where the maximum

sentences were imposed on convictions for indecent behavior with a juvenile, as

follows:

A review of the jurisprudence of this state establishes that
numerous decisions have been rendered upholding maximum or near-
maximum sentences imposed on individuals convicted of a single
count of indecent behavior with a juvenile. However, each of these
cases contain factual elements significantly different from the matter
before us. See State v. Delgado, 03-46 (La.App. 3 Cir. 4/30/03), 845
So.2d 581 (upholding a near-maximum sentence where a twenty-one-
year-old second felony offender was found naked in bed with a
thirteen-year-old victim); State v. Kirsch, 02-0993 (La.App. 1 Cir.
12/20/02), 836 So.2d 390 (upholding a maximum sentence where a
neighbor and close family friend exposed the eight-year-old victim to
sexually explicit material and comments, removed her clothes and
viewed her “private parts,” and touched her vaginal area through her
clothing), writ denied, 03-0238 (La. 9/5/03), 852 So.2d 1024; State v.
Jordan, 98-101 (La.App. 3 Cir. 6/3/98), 716 So.2d 36 (upholding a
maximum sentence where a sixty-nine-year-old wheelchair bound
man originally charged with aggravated oral sexual battery and
aggravated crimes against nature of a three-year-old neighbor
benefitted from a plea bargain); State v. Lisotta, 98-646 (La.App. 5
Cir. 12/16/98), 726 So.2d 57 (upholding a near maximum sentence
where a teacher played pornographic movies for his sixteen-year-old-
victim and, on one occasion, removed her clothing, inserted his
fingers in her vagina, and told her he was going to have sex with her),
writ denied, 99-0433 (La. 6/25/99), 745 So.2d 1183; State v.
Armstrong, 29,942 (La.App. 2 Cir. 10/29/97), 701 So.2d 1350

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(upholding a maximum sentence where a step-grandfather fondled a
nine-year-old victim on two separate occasions as she visited in his
home).

In this case, there was no evidence that Defendant had a criminal history

during the fifteen years he resided in the United States, nor was there testimony

that he used any physical restraint or made any attempt to press his physical

advantage on the victim. Although there was touching, a pat on the buttocks, a

kiss on the cheek, and tickling, the degree of touching was not comparable with the

touching in the above cited cases wherein the courts imposed a maximum sentence.

Furthermore, there was no testimony indicating that the victim suffered any great

psychological injury. In the hour-long videotaped statement given by the victim,

she briefly told the interviewer about her afternoon with Defendant. She spent the

remainder of the interview discussing her boyfriend. As such, we find that the trial

court abused its discretion when it imposed the maximum sentence regarding

Defendant’s conviction for indecent behavior with a juvenile. We remand the

matter to the trial court to render a sentence on the conviction for indecent

behavior with a juvenile in conjunction with the Lisotta factors set out above.

DECREE

The sentence imposed on Defendant, Fahim A. Shaikh, for his conviction of

indecent behavior with a juvenile is constitutionally excessive. We vacate his

sentence and remand the matter to the trial court for resentencing in accordance

with this opinion.

VACATED AND REMANDED.

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