State of Louisiana v. Bobby Hayward McMurtury, II

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
KA 17-553
STATE OF LOUISIANA
VERSUS

BOBBY HAYWARD MCMURTURY, II

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APPEAL FROM THE
THIRTIETH JUDICIAL DISTRICT COURT
PARISH OF VERNON, NO. 89677
HONORABLE VERNON BRUCE CLARK, DISTRICT JUDGE

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VAN H. KYZAR
JUDGE

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Court composed of Mare T. Amy, D. Kent Savoie, and Van H. Kyzar, Judges.

AFFIRMED

Paula Corley Marx

Louisiana Appellate Project

P.O. Box 82389

Lafayette, LA 70598-2389

(337) 991-9757

COUNSEL FOR DEFENDANT/APPELLANT:
Bobby Hayward MeMurtury, II

Hon. Asa Allen Skinner

District Attorney, 30th JDC

P.O. Box 1188

Leesville, LA 71496-1188

(337) 239-2008

COUNSEL FOR APPELLEE:
State of Louisiana

Lea R. Hall
Assistant District Attorney, 30th JDC
P.O. Box 1188
Leesville, LA 71496-1188
(337) 239-2008
COUNSEL FOR APPELLEE:
State of Louisiana

KYZAR, Judge.

The defendant, Bobby Hayward McMurtury, Jr.,! appeals his sentence of
thirty-five (35) years in the custody of the Louisiana Department of Corrections
after entering an unqualified plea of guilty to attempted first degree rape pursuant
to a plea agreement. For the reasons assigned herein, we affirm.

Facts and Procedural History

The defendant was originally indicted by a grand jury on July 13, 2016 and
charged with one count of first degree rape in violation of La. R.S. 14:42(A)(4) and
indecent behavior with a juvenile in violation of La. R.S. 14:81(A)(1) and (H)(2).
The indictment alleged that the defendant, thirty-four years of age at the time,
engaged in oral sexual intercourse on a seven-year-old female child and committed
lewd and lascivious acts upon the same victim by touching her genitals and
masturbating in her presence. On January 4, 2017, pursuant to a plea agreement,
the defendant tendered an unqualified plea of guilty to one count of attempted first
degree rape, in violation of La.R.S. 14:42(A)(4) and La.R.S. 14:27.” The charge of
indecent behavior with a juvenile was dismissed as a part of the agreement. On
February 21, 2017, the court conducted a sentencing hearing during which the
mother and maternal grandmother of the victim testified. The defendant also
testified in his own behalf. Following a presentence investigation, the defendant
was sentenced on March 14, 2017 to serve thirty-five (35) years in the Louisiana

Department of Corrections, without benefit of parole, probation, or suspension of

'The defendant was originally indicted as Bobby Hayward McMurtury, Ii, and on January 4,
2017 the indictment was amended to reflect his correct name as Bobby Hayward McMurtury, Jr.

° Although no formal amendment to the indictment was made, none was required for the plea to
a responsive charge as per the provisions of La.Code Crim.P. art. 558.

sentence. Counsel for the defendant filed a Motion to Reconsider Sentence, which
was denied on March 20, 2017. This appeal followed.
Assignment of Error

The defendant asserts one assignment of error, as follows:

The thirty-five year sentence imposed in this case is excessive for this

thirty-five-year-old offender with mental health and drug dependency

problems.

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 there
are no errors patent.

Discussion

In his sole assignment of error, the defendant asserts that his sentence of
thirty-five years in the custody of the Louisiana Department of Corrections,
without benefit of parole, probation, or suspension of sentence, is excessive. He
claims that his age of thirty-five years, together with his mental health and
substance abuse issues, mitigate in favor of a lesser sentence and cause the
sentence imposed to be constitutionally excessive. We disagree.

The law is well settled concerning the standard of review to be used in
excessive sentence claims:

La. Const. art. I, § 20 guarantees that, “[nJo 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.

A sentence falling within the statutory sentencing range may still be
unconstitutionally excessive if it shocks the sense of justice or makes no
meaningful contribution to acceptable penal goals. Several factors may be
considered when reviewing such a sentence for excessiveness:

[A]n 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 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.

At the hearing on February 21, 2017, the victim’s mother and maternal
grandmother each testified extensively as to the emotional harm inflicted upon the
minor by the actions of the defendant. Both testified that the child is not the same
little girl that she was prior to these incidents. She is no longer trusting of others
and often wakes up crying in the middle of the night. The defendant also testified

at the hearing about his mental health issues, stating that he hears voices and has

been diagnosed as schizophrenic. He further testified that he has abused drugs,

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particularly methamphetamines, for many years. In pronouncing the sentence in
this case on March 14, 2017, the trial court considered the testimony and other
factors, in light of the guidelines provided in La.Code Crim.P. art. 894.1, and set
forth the following reasons for the specific sentence imposed:

First, there was substantial emotional harm caused to the minor
female victim in this case. I heard some compelling testimony from
the mother and a relative of the child and the harm - - mental harm,
the emotional harm is quite extreme in this case at this point. There
are no substantial grounds which would tend to excuse his criminal
conduct. He claims it must have been due to his use of drugs at the
time. Uh, he did not act under provocation by anyone, the victim or
the mother or anyone else. In fact, he acted while he was in a position
of trust by the mother, leaving the child to be cared for by him. He’s
35 years of age. He’s divorced. He has three children of his own. He
is in good health. He claims he has some mental issues of manic
depression with schizophrenia - - schizophrenic tendencies and he’s
on medication for those - - for that. Uh, there was no employment
record given in the P.S.I., but at the hearing, he testified he worked on
power lines for power companies in Mississippi for a time. He has a
9th grade education. He has a history of drug and alcohol use and
abuse. He was on meth - - Methamphetamines, he indicates, pills,
marijuana, acid, crack cocaine, alcohol. In other words just a - - the - -
the run of the gamut of drugs, particular - - or primarily. Uh, he claims
that he got some treatment, but he can’t say when or where, for the
use of those drugs, uh, and, so, there’s no evidence that he did receive
anything like that. He does have a prior criminal record in that, on
April 7th, 2016, he pled guilty to possession of a Schedule II
substance which was a felony and he was given a three-year probated
sentence in Beauregard Parish. He has six other convictions for
various misdemeanor charges, as well, on his record. As I noted, this
child has been emotionally traumatized. She has withdrawn from, in
effect, this world and society, uh, and - - and particular, in her school
environment into a small circle of people that she feels she can trust,
her mother, primarily, her grandmother, and her grandfather and that’s
it. Uh, she has difficulty at school now. She’s, uh, her grades, her
school performance has deteriorated since these events occurred. She
has begun counseling and will need substantially more it seems. This
trauma, quite frankly, will be damage that will last through the
entirety of her life and one only hopes that the counseling and the
treatment she gets will help her come to grips with this as much as
possible and learn to live within the society, learn to establish
relationships with others, uh, that would allow her to have what we
would hope would be classified as a normal life at some point and
time. But, certainly, we can’t determine how she’ll cope with all of
that at this time. Uh, his actions though have changed her life

significantly and permanently. And one of the things that I come back
to when I think about this kind of offense is, I hear - I hear cases all
the time about individuals doing things to others. The one that you
may have seen awhile ago, uh, the individual who was in a fight with
a grownup and injuries were involved and he was sentenced to a
substantial sentence. But in this case, the - - the seven - year -old
victim is helpless in a - - in a great sense. The children, and the
younger they are, are the most helpless members of our society, who
can’t protect themselves and we need to protect them. We need to
protect them from predators and that’s where I classify you as a
predator. Uh, whether you were on drugs or not, you’re a predator,
and, certainly, there’s an extremely high likelihood that, if you were
left out in society, there would be another victim or victims in - in
regards to this who are the least protected, as I’ve stated.

The trial court properly and thoroughly considered all of the aggravating and
mitigating factors in considering and pronouncing the sentence. Further, the trial
court did not commit an abuse of its broad discretion in imposing the thirty-five
year sentence in this particular case. The actual sentence was substantially lower
than the maximum potential sentence which could have been imposed for the
crime.’ Further, the sentence imposed is in line with sentences handed down in
similar cases.’ In State v. Johnston, 50,706 (La.App. 2 Cir. 6/22/16), 198 So.3d
151, the court affirmed a fifty year sentence imposed after a plea to the lesser
charge of attempted aggravated rape, where the seventeen year old defendant was
originally indicted for the completed offense involving a seven-year-old child.” In
State v. Boswell, 46,181 (La.App. 2 Cir.4/13/11), 62 So.3d 874, writ denied, 11—

1246 (La. 12/2/11), 76 So.3d 1174, a forty-eight year sentence was affirmed for a

3 The sentencing range for attempted first degree rape per the provisions of La.R.S. 14:42 and
La.R.S. 14:27 is ten to fifty years without the benefit of parole, probation, or suspension of
sentence.

* Another factor to consider in excessive sentence review is the comparison of the defendant’s
punishment with the sentences imposed for similar crimes by the same court and other
courts. State v. Telsee, 425 So.2d 1251 (La. 1/10/83).

> The offense of aggravated rape was renamed first degree rape in 2015 La. Acts Nos. 184 and
256, which became effective August 1, 2015.

defendant, thirty-seven, who had no significant criminal history and who pled
guilty to the responsive charge of attempted aggravated rape of a minor. In State v.
Haynes, 44,868 (La.App. 2 Cir. 12/9/09), 26 So.3d 310, the defendant had no
criminal history and pled guilty to the responsive charge of attempted
aggravated rape of a minor. A fifty year sentence was affirmed as not
excessive. In State v. Hutson, 34,510 (La.App. 2 Cir. 5/9/01), 786 So.2d 226, writ
denied, 01-1997 (La. 3/28/02), 812 So.2d 655, a fifty year sentence on each of two
counts of attempted rape of a minor, to run concurrently, was affirmed, where the
defendant, forty-eight, pled guilty to the responsive charges. In State v.
McLelland, 03-498 (La.App. 5 Cir. 10/15/03), 860 So.2d 31, writ denied, 03-3372
(La. 3/26/04), 871 So.2d 347, a forty-five year sentence was held not excessive for
an eighteen year old defendant who had no significant criminal history and was
convicted by a jury of the responsive crime of attempted aggravated rape of a
minor.

We thus find no abuse of the broad discretion of the trial court in the
imposition of the thirty-five year sentence to be served without benefit of parole,
probation, or suspension of sentence for the attempted first degree rape of this
seven-year-old victim. The sentence is not such that it shocks the conscience nor is
it a meaningless imposition of punishment serving no acceptable penal goals.
Further, it is in line with sentences handed down in similar cases and affirmed by
this and other courts of the State.

Disposition
For the reasons herein, the defendant’s sentence is affirmed.

AFFIRMED.