State of Louisiana v. Marvin Dixon

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

17-459

STATE OF LOUISIANA

VERSUS

MARVIN DIXON

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APPEAL FROM THE
THIRTIETH JUDICIAL DISTRICT COURT
PARISH OF VERNON, NO. 90481 AM
HONORABLE SCOTT WESTERCHIL, DISTRICT JUDGE

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SHANNON J. GREMILLION
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, and
Shannon J. Gremillion, Judges.

AFFIRMED.

Paula Corley Marx
Louisiana Appellate Project
P. O. Box 82389
Lafayette, LA 70598-2389
(337) 991-9757
COUNSEL FOR DEFENDANT/APPELLANT:
Marvin Dixon

Asa Allen Skinner
District Attorney, Thirtieth Judicial District Court
Terry Wayne Lambright
Assistant District Attorney
P. O. Box 1188
Leesville, LA 71446-1188
(337) 239-6557
COUNSEL FOR APPELLEE:
State of Louisiana

GREMILLION, Judge.

Defendant, Marvin Dixon, has previously sought review by this court of a

related matter. In connection with an earlier guilty plea to one count of attempted

aggravated crime against nature, we vacated Defendant’s illegally excessive

sentence and remanded the case for resentencing. State v. Dixon, 16-132 (La.App.

3 Cir. 9/28/16) (unpublished opinion).

On December 20, 2016, the State filed a bill of information charging

Defendant with two counts of aggravated incest and one count of aggravated crime

against nature. On March 10, 2017, Defendant filed a motion to quash, which was

denied on March 15, 2017. On the same date, he entered an Alford plea1 to one count

of aggravated incest, a violation of La.R.S. 14:78.1.2 He waived sentencing delays

and received a sentence of twenty years at hard labor. The trial court dismissed the

other two counts pursuant to a State motion.

Defendant appeals and assigns a single error, but breaks it into three main

arguments. For the following reasons, we affirm the trial court’s denial of

Defendant’s motion to quash, and we affirm Defendant’s sentence.

FACTS

At the plea hearing, the State recited the following facts, without objection by

Defendant:

Your Honor, this offense happened between January 1st, 2012
and June 1st, 2012. The victim’s date of birth is April 5th, 2000,
making her between eleven and twelve years of age at all times herein,
and the victim was related to Mr. Dixon as his granddaughter. And at
times when she was exposed to him and in his presence, he did commit
a sexual battery upon her, also indecent behavior with juveniles, and
molestation of a juvenile in that he would lewdly fondle and touch her
with the intent to arouse and satisfy his sexual desires. Specifically, the

1
In an Alford plea, the defendant does not explicitly admit guilt. North Carolina v. Alfold, 400 U.S. 25, 91 S.Ct. 160 (1970).
2
This statute was repealed in 2014 when it was subsumed in the 2014 revision of La.R.S.
14:89.1.

behavior that he did with this victim, who’s [sic] initials are E.D., was
touch her breast, vagina, and buttocks with his hand. In support of that
I’d like to offer, file, and introduce the documents filed in discovery in
this matter and the actual filing of discovery relates to 87,680, but is
also related to the new docket number, 90,481. And I would like to rely
on those as part of my factual basis, but I would submit to the Court
that were this case to go to trial, that is what the State would prove at
trial.

ASSIGNMENT OF ERROR

Defendant assigns a single error, but divides it into three major arguments.

His general argument is that the trial court erred by denying his motion to quash.

Double Jeopardy

Defendant first argues the current case was a second prosecution which

violated the constitutional protection against double jeopardy. Although double

jeopardy was mentioned in the written motion, the State observes that Defendant did

not argue it at the March 15 hearing. However, we will address the argument

because double jeopardy can be raised at any time. La.Code Crim.P. art. 594.

Further, a double jeopardy error would require dismissal of the conviction.

As the State points out, Defendant pled guilty to a sex offense involving the

victim, E.D.3 In the prior case, he pled to a sex offense committed against D.D.4

The present appeal and the previous appeal address two pleas to two different

offenses against two different victims. Thus, it is clear that double jeopardy is not

implicated in the guilty plea. To the extent Defendant’s argument raises concerns

regarding the bill of information, any argument regarding the bill is moot given the

ultimate plea.

3
The victim’s initials are used throughout pursuant to La.R.S. 46:1844(W).
4
Documents from the prior appeal under docket number 16-132 are included as an exhibit
to the current record.
2

Plea Agreement

Defendant next argues that the present prosecution violates the plea agreement

from the earlier case. In the earlier case, the State agreed to dismiss two counts: one

count of aggravated crime against nature, which was alleged to have been committed

against D.D. between July 11, 2010 and February 14, 2015, and another count of

aggravated crime against nature, alleged to have been committed against E.D.

between May 1, 2012 and September 30, 2012. The dismissal of the latter count

appears problematic in the context of the current argument because, as already noted,

Defendant entered an Alford plea to a sex offense, aggravated incest, against E.D.

Thus, Defendant contends he was prosecuted for conduct that was dismissed

pursuant to the plea agreement in the earlier case. It is true that both bills alleged

that he committed improper sexual acts against the victim: “sexual battery, indecent

behavior with juveniles and molestation of a juvenile.” The second bill also charged

that Defendant “did lewdly fondle and touch” E.D. The former bill alleged the acts

occurred between May 1, 2012 and September 30, 2012; the present bill alleged acts

between January 1, 2012 and June 1, 2012. Thus, both bills alleged the same general

sex acts against the same victim and both alleged that at least some of the acts

occurred in May and June of 2012.

Although the record is difficult to decipher, after a careful analysis of the facts

and circumstances surrounding the pleas, we find Defendant is not being prosecuted

again for conduct dismissed as part of the plea agreement in the previous case.

Rather, as discussed below, the second bill was brought to correct errors that resulted

from all parties relying on an incorrect version of a statute.

Vindictive Prosecution

Defendant’s third and final argument is that the current prosecution violates

constitutional due process protections because the State is punishing him for his
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success in his earlier appeal. As he points out, vindictive prosecution is prohibited

by North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072 (1969). This court has

discussed Pearce:

However, the fact that he received harsher treatment, i.e., being charged
with the previously dismissed crimes after he successfully appealed his
prior guilty pleas and received a longer sentence, requires a
determination as to whether he has suffered a deprivation of due
process. Id. (citing North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct.
2072, 23 L.Ed.2d 656 (1969)).

The Pearce court explained the due process issue raised, as such:

Due process of law, then, requires that
vindictiveness against a defendant for having successfully
attacked his first conviction must play no part in the
sentence he receives after a new trial. And since the fear
of such vindictiveness may unconstitutionally deter a
defendant’s exercise of the right to appeal or collaterally
attack his first conviction, due process also requires that a
defendant be freed of apprehension of such retaliatory
motivation on the part of the sentencing judge.

Pearce, 395 U.S. at 725, 89 S.Ct. 2089.

State v. Cloud, 06-877, p. 3 (La.App. 3 Cir. 12/13/06), 946 So.2d 265, 268-69, writ

denied, 07-86 (La. 9/21/07), 964 So.2d 331.

In State v. Leger, 11-1127, pp. 16-19, 23 (La.App. 3 Cir. 5/2/12), 92 So.3d

975, 984-86, 989, a panel of this court summarized the law pertaining to vindictive

prosecution:

In State v. Lewis, 461 So.2d 1250 (La.App. 1 Cir.1984), the court
explained, in pertinent part:

The leading case on prosecutorial vindictiveness is
Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40
L.Ed.2d 628 (1974). In Blackledge, the defendant was
convicted of a misdemeanor by a North Carolina State
court. After the defendant claimed his right to a trial de
novo in a higher court, the prosecutor obtained a
superseding indictment charging the defendant with a
felony rather than a misdemeanor. Both the original
misdemeanor (assault with a deadly weapon) and the
subsequent felony (assault with a deadly weapon with
intent to kill) charges were based on the same set of facts.
4

In Blackledge, 94 S.Ct. at 2102-3, the Court stated:

A person convicted of an offense is entitled
to pursue his statutory right to a trial de novo,
without apprehension that the State will retaliate
by substituting a more serious charge for the
original one, thus subjecting him to a
significantly increased potential period of
incarceration. [citation omitted]

Due process of law requires that such a
potential for vindictiveness must not enter into
North Carolina’s two-tiered appellate process.
We hold, therefore, that it was not
constitutionally permissible for the State to
respond to Perry’s invocation of his statutory
right to appeal by bringing a more serious charge
against him prior to the trial de novo.

In applying Blackledge, the 5th Circuit Court of
Appeals in Hardwick v. Doolittle, 558 F.2d 292 (5th
Cir.1977), cert. denied, 434 U.S. 1049, 98 S.Ct. 897, 54
L.Ed.2d 801 (1978), noted that there is a broad ambit to
prosecutorial discretion, most of which is not subject to
judicial control. However, the court went on to state that
a prosecutor’s discretion to reindict a defendant is
constrained by the due process clause. Thus, once a
prosecutor exercises his discretion to bring certain charges
against a defendant neither he nor his successor may,
without explanation, increase the number or severity of
those charges in circumstances which suggest that the
increase is in retaliation for defendant’s assertion of
statutory or constitutional rights.

The court in Hardwick stated that a prosecutor could
negate allegations of vindictiveness by proof of mistake or
oversight in his initial action, a different approach to
prosecutorial duty by a successor prosecutor, or public
demand for prosecution on additional crimes allegedly
committed [sic], a list the court noted was illustrative
rather than exhaustive.

The most recent statement of the law on prosecutorial
vindictiveness by the 5th Circuit Court of Appeals appears
in U.S. v. Krezdorn, 718 F.2d 1360, 1365 (5th Cir.1983)
cert. denied, 465 U.S. 1066, 104 S.Ct. 1416, 79 L.Ed.2d
742 (1984). In that case, at 718 F.2d at 1365, the court
stated:

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If the defendant challenges as
vindictive a prosecutorial decision to increase
the number or severity of charges following a
successful appeal, the court must examine the
prosecutor’s actions in the context of the
entire proceedings. If any objective event or
combination of events in those proceedings
should indicate to a reasonable minded
defendant that the prosecutor’s decision to
increase the severity of charges was
motivated by some purpose other than a
vindictive desire to deter or punish appeals,
no presumption of vindictiveness is created.
In trying the issue of vindictiveness, the
prosecutor may offer proof of the sort
suggested in Hardwick that as a matter of fact
his actions were not vindictive. The burden
of proof (by a preponderance of the evidence)
remains on the defendant who raised the
affirmative defense. If, on the other hand, the
course of events provides no objective
indication that would allay a reasonable
apprehension by the defendant that the more
serious charge was vindictive, i.e., inspired
by a determination to “punish a pesky
defendant for exercising his legal rights,” a
presumption of vindictiveness applies which
cannot be overcome unless the government
proves by a preponderance of the evidence
that events occurring since the time of the
original charge decision altered that initial
exercise of the prosecutors discretion.

The procedural history in the instant case is rather
straight forward. Defendant was initially indicted by a
grand jury for manslaughter. More than a year later he pled
guilty to manslaughter and was then sentenced to twenty-
one years at hard labor. Defendant then sought to withdraw
his guilty plea. Ultimately, he appealed to the Louisiana
Supreme Court, and his case was remanded to the trial court
where he was allowed to withdraw his guilty plea. A
second indictment was then brought against defendant
charging him with second degree murder.

The sequence of events as outlined above provides
no “objective indication” as to the reason for the increase
in the severity of the charges. Therefore, a presumption of
vindictiveness applies which cannot be overcome unless
the government proves by a preponderance of evidence that
events occurring since the time of the original charge

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decision altered the initial exercise of the prosecutor's
discretion. U.S. v. Krezdorn, 718 F.2d at 1365.

We remand this case to the trial court for a hearing
to allow the district attorney an opportunity to rebut the
presumption of vindictiveness.

Id. at 1252-53.

In United States v. Walker, 514 F.Supp. 294 (E.D.La.1981), the
court held as follows:

In a series of cases following [North Carolina v.]
Pearce[, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656
(1979) ] and Blackledge[ v. Perry, 417 U.S. 21, 94 S.Ct.
2098, 40 L.Ed.2d 628 (1974) ], the Fifth Circuit has
adopted a procedure for reviewing the government’s
exercise of its charging discretion to determine whether
the government has legitimately exercised its authority in
a constitutionally forbidden manner. Because this test was
designed to cover the multitude of situations of which
Pearce and Blackledge were only two particular instances,
it is necessary to examine this rule.

2. The Fifth Circuit Rule

The rule in this circuit to assess the validity of the
government’s exercise of its charging authority has
developed over a series of cases attempting to
accommodate the state’s constitutionally protected
authority to prosecute Defendants for crime and the
Defendant’s constitutional right as set forth in the
Blackledge case. See Hardwick v. Doolittle, 558 F.2d 292
(5th Cir.), on petition for rehearing and rehearing en banc,
561 F.2d 630 (1977) (per curiam), cert. denied, 434 U.S.
1049, 98 S.Ct. 897, 54 L.Ed.2d 801 (1978); Jackson v.
Walker, 585 F.2d 139 (5th Cir.1978); Miracle v. Estelle,
592 F.2d 1269 (5th Cir.1979); United States v. Thomas,
593 F.2d 615 (5th Cir.), modified on rehearing, 604 F.2d
450 (1979) (per curiam), appeal after remand, 617 F.2d
436 (1980); United States v. Shaw, 615 F.2d 251 (5th
Cir.1980) (per curiam). This test sets forth both the
elements of proof of and defense to a claim of
prosecutorial vindictiveness as well as the allocation of
burdens and order of proof on this claim.

The Defendant bears the burden of establishing a
prima facie case of prosecutorial vindictiveness . . . . The
defendant’s establishment of a prima facie case of
vindictiveness, in effect, creates a presumption that the
government did act vindictively in bringing the second
7

prosecution. The nature of this presumption varies
according to the balance struck between the government’s
interests in enforcing the law and allocating wide
discretion to individual prosecutor’s to make charging
decisions, and the Defendant’s interests in being free from
both actual vindictiveness and the apprehension of
vindictiveness as the consequence of challenging his
original conviction. Where the Defendant’s interests
outweigh the government’s interests, the presumption
created by the Defendant’s establishment of a prima facie
case is irrebuttable, and the Defendant is entitled to prevail
based entirely upon his initial showing. This occurs where
the government baldly escalates the original charge as in
Blackledge. But where the balance weighs in favor of the
government, as occurs where the escalation of the second
charge was possible only because of events occurring
between the first and second prosecutions or where the
second charge accuses the Defendant of “different and
distinct” offenses from the first charge, even despite a
common origin in the same “spree of activity,” the
government is entitled to rebut the presumption of
vindictiveness by going forward to demonstrate
legitimate, nonvindictive reasons for the second charge.
In these situations, if the government fails to come forward
with any such reasons or fails adequately to rebut the
presumption of vindictiveness, the Defendant is entitled to
a judgment in his favor based upon the presumption
created by his establishment of a prima facie case. But if
the government successfully carries its burden of rebutting
the presumption, the Defendant must then demonstrate
actual vindictive motivation by the government to prevail
on his claim. Alternatively, where the government
institutes a second prosecution against a Defendant who
has had his first conviction set aside but who cannot
establish a prima facie case because the second charge
carries a less severe penalty than the first, the Defendant
may still challenge the second prosecution as vindictive
but must demonstrate actual vindictive motivation by the
government.

Id. at 313-15 (footnotes omitted).

....

The record does not reflect an “objective indication” as to the reason
for seeking enhancement of the sentence. Therefore, a presumption of
vindictiveness applies which cannot be overcome unless the state
proves by a preponderance of evidence that events occurring since the
time of the original decision altered the initial exercise of the state’s
discretion. Accordingly, this court is remanding this case to the trial

8

court for a hearing to allow the state an opportunity to rebut the
presumption of vindictiveness.

In this case, there was no escalation of the overall sentence that Defendant

agreed to in his first plea deal. In fact, his sentence was reduced from the-agreed-

upon sentence of thirty years to a total sentence of twenty-seven-and-a-half years.

Thus, there was no escalation of charges for the purpose of an increased sentence,

and thus no evidence of a vindictive motivation. The crime of aggravated incest

(La.R.S. 14:78.1(A) and (D)(2)) involving E.D., as charged in the second bill, carried

the same sentence range as the cited charge for aggravated crime against nature

(La.R.S. 14:89.1(A)(2) and (C)(2) involving E.D. in the first bill. Both were

felonies, and both carried prison sentences of twenty-five to ninety-nine years. A

mistake was made in the first bill however, because La.R.S. 14:89.1(C) did not exist

in 2012; it was added in 2014, at which time La.R.S. 14:78.1 (aggravated incest) was

repealed and folded into La.R.S. 14:89.1 (aggravated crime against nature). But the

defense attorney, the district attorney, and two judges all thought the statute was

properly cited. This was the same statute pled to in the first conviction involving

D.D., and the same mistake that led to the first appeal and remand. The original

intent in the first conviction was to sentence Defendant to thirty years for all of his

crimes; and that was never exceeded as a result of the second conviction, which

involved a different victim. The basis for the Pearce presumption does not exist in

this case.

Further, where there are multiple offenses and interdependent sentences,

adherence to an original sentencing intent and scheme of punishment is a legitimate

reason that negates a claim of vindictiveness. State v. Neville, 572 So.2d 1161,

(La.App. 1 Cir. 1990), writ denied, 576 So.2d 46 (La.1990). There, in addressing

double jeopardy and vindictiveness, the court found:

9

In a case involving multiple convictions, a trial
judge often imposes interdependent sentences according
to a scheme of punishment for a defendant's conduct as a
whole. When raising a double jeopardy claim, a defendant
is effectively contesting the entire scheme of punishment.
A finding that the convictions violate double jeopardy
disrupts the carefully crafted, interdependent sentences
imposed by the trial judge.

Id. at 1164.

In Neville, where the defendant was sentenced to consecutive terms of ten and

fifteen years on two felony counts, but one was dropped due to double jeopardy, the

court found that the new thirty-four-year sentence on the remaining count did not

invoke the Pearce presumption of vindictiveness. The Neville court stated that the

judge’s intent was to impose a sentence which would be consistent with the original

sentencing judge’s intent that the defendant serve thirty-five years. The defendant

initially was sentenced to twenty and fifteen years consecutively. The thirty-four-

year sentence he received on resentencing is

“in accordance with the original scheme of punishment”
and is “no more severe than the defendant’s original
composite sentence.” State ex rel. Adams, 558 So.2d at
554. Thus, due process was not violated and defendant’s
claim is without merit.

Id. at 1165-66.

While factually different, the court in United States v. Cataldo, 832 F.2d 869

(5th Cir. 1987), cert. denied, 485 U.S. 1022, 108 S.Ct. 1577 (1988), reasoned that

sentencing under an incorrect statutory provision during the original sentencing

could justify a more severe sentence in keeping with the original sentencing scheme

without invoking the presumption of vindictiveness.

Here, the trial court, in originally sentencing Defendant to thirty years for the

crime of aggravated crime against nature for his conduct against D.D. in the first

10

bill, intended to cover Defendant’s conduct as a whole against both victims, because

he referenced the counseling that the girls would have to undergo.

It is well-settled that a prosecutor is free to file new charges after a dismissal

if he or she files within the timeframes of La.Code Crim.P. art. 576.5 See State v.

Gray, 16-687 (La. 3/15/17), 218 So.3d 40. In this case, the felony prosecution had

to be brought within six years from the date the offense was committed, pursuant to

La.Code Crim.P. art. 572(A)(1). The aggravated incest against E.D. was committed

in 2012, and the bill of information was filed in 2016. Thus, the 2016 bill was timely.

However, Defendant’s argument is not based upon timeliness of the second

bill. Rather, he argues that the earlier 2015 count for aggravated crime against nature

involving E.D. in 2012 was dismissed pursuant to a plea agreement, and the district

attorney’s filing of the second bill charging aggravated incest against E.D. in 2012

was technically for the same offense and, therefore, violated the earlier plea

agreement. Under certain circumstances, plea agreements are dischargeable.

In United States v. Moulder, 97-10417 and 97-10336, 141 F.3d 568 (5th Cir.

1998), the court held that the government’s obligations under plea agreements

5
Louisiana Code Criminal Procedure Article 576 provides:

When a criminal prosecution is timely instituted in a court of proper
jurisdiction and the prosecution is dismissed by the district attorney with the
defendant's consent, or before the first witness is sworn at the trial on the merits, or
the indictment is dismissed by a court for any error, defect, irregularity, or
deficiency, a new prosecution for the same offense or for a lesser offense based on
the same facts may be instituted within the time established by this Chapter or
within six months from the date of dismissal, whichever is longer.

A new prosecution shall not be instituted under this article following a
dismissal of the prosecution by the district attorney unless the state shows that the
dismissal was not for the purpose of avoiding the time limitation for
commencement of trial established by Article 578.

Under La.Code Crim.P. Article 578, trial must be commenced within two years from the
date of institution of the prosecution.

11

became dischargeable under the frustration of purpose doctrine and that

reinstatement of the dismissed charges did not support a prosecutorial vindictiveness

claim. The court in Moulder stated that the defendant should have known that having

his conviction overturned would motivate the prosecutor to refile charges. While

we do not suggest that Moulder be applied in all cases, the reasoning renders it more

than persuasive under the facts of this case. Citing its approval of United States v.

Bunner,134 F.3d 1000 (10th Cir. 1998), the court defined the frustration of purpose

doctrine, which is based upon contract law:

Where, after a contract is made, a
party’s principal purpose is substantially
frustrated without his fault by the occurrence
of an event the non-occurrence of which was
a basic assumption on which the contract was
made, his remaining duties to render
performance are discharged, unless the
language of the circumstances indicate the
contrary.

RESTATEMENT (SECOND) OF CONTRACTS § 265
(1981).

The comments to this section provide that “the
purpose that is frustrated must have been a principal
purpose of that party in making the contract.... The object
must be so completely the basis of the contract that, as both
parties understand, without it the transaction would make
little sense.” RESTATEMENT (SECOND) OF
CONTRACTS § 265 cmt. a (1981) (emphasis added).

“The application of contract law to plea agreements
is premised on ‘the notion that the negotiated guilty plea
represents a bargained-for quid pro quo.’” United States
v. Asset, 990 F.2d 208, 215 (5th Cir.1993) (quoting United
States v. Escamilla, 975 F.2d 568, 570 (9th Cir.1992)).
In this regard, the underlying purpose of the plea
agreement in issue was to “avoid the uncertainty of a jury
verdict ... [and] to ensure that the [defendants] served time
for violating § 924(c)”. Bunner, 134 F.3d at 1004–05.
And, needless to say, “[a] basic assumption underlying the
parties’ purposes was their belief that the conduct ... pled
guilty to amounted to a violation of § 924(c)”. Id. at 1005.

12

But, the parties’ assumptions and obligations were
altered by Bailey and the subsequent successful § 2255
challenges. As a result of those events “the underlying
purpose of the [plea] agreement [was] frustrated and the
basis of the government’s bargain [was] destroyed. Thus,
under the frustration of purpose doctrine, the
government’s plea agreement obligations became
dischargeable”. Bunner, 134 F.3d at 1005. Accordingly, it
was free to reinstate the drug charges.

Moulder, 141 F.3d at 571-72.

Here, Defendant signed a plea agreement on October 7, 2015, pleading guilty

to attempted aggravated crime against nature. The plea agreement stated the

following:

I understand the elements and the nature of the
charge and that it is a felony offense which could result in
a penitentiary sentence if I am convicted thereof. I am
aware of the minimum and maximum sentences provided
by law after having the same explained to me by my
attorney.

The charge shown on the bill of information cited the aggravated crime against

Nature provision as La.R.S.14:89.1(A)(2) and (C)(2), which carried a sentence of

twenty-five to ninety-nine years. And, as shown in the sentencing transcript, all

parties, judges, and counsel, including defense counsel Mr. Williams, thought the

lesser offense of attempt to commit that crime carried a sentence of up to forty-nine-

and-a-half years. Thus, Defendant entered the agreement under those conditions,

and the sentence was an essential part of the plea agreement.

Further, the plea agreement does not state that other charges will not be filed.

In fact, it states:

I further understand that should I plead guilty or be
convicted of a similar offense in the future the penalty
which could be imposed may be greater or the grade of the
offense may be greater as a consequence of this guilty
plea.

13

At sentencing, after discussing the rape and oral sex with one child and

molestation of the other, the trial court gave its reasons for the thirty-year sentence:

Other factors taken into consideration by this Court
in the determination of sentence include the offender’s
conduct during the commission of this offense manifested
a deliberate cruelty to the victims who are the defendant’s
granddaughters. Also taken into consideration, this
offender knew, or should have known, that the victims
were particularly vulnerable or incapable of resistance due
to their youth, specifically as the facts include one of these
children were eleven years of age at the time of the
commission of this offense. Further, this offense has
resulted in significant permanent injury to the victims and
the victims’ family.
....

The Court does not feel that this defendant is likely
to respond to probationary treatment, that there is an undue
risk that during the period of suspended sentence or
probation, that this defendant would commit another
crime. It is the -- the defendant -- or the Court feels that
this defendant is in need of correctional treatment or a
custodial environment that can be provided most
effectively by commitment to an institution. A lesser
sentence will deprecate the seriousness of the defendant’s
offense.

Defendant never denied the charges. In open court after sentencing, he merely

apologized and said “this is what too much drinking can do to you.”

A seven-and-a-half-year sentence is not what was bargained for in this case.

It is not what the prosecutor or the trial court intended, and it is not what Defendant

himself agreed to or anticipated when he took the plea bargain. Thus, the purpose

of the plea bargain and sentence were frustrated. The filing of new charges and the

second plea agreement and sentence for the abuse of the other victim were all in

keeping with the original sentencing scheme. This is particularly true where both

plea agreements and both sentences for two different crimes resulted in a total of

twenty-seven-and-a-half years, which is two-and-a-half years less than the original

sentencing scheme of thirty years.

14

DECREE

The judgment of the trial court denying Defendant’s motion to quash is

affirmed, and his sentence is affirmed.

AFFIRMED.

15