State of Louisiana v. Jason L. Thomas

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

18-981

STATE OF LOUISIANA

VERSUS

JASON L. THOMAS

**********

APPEAL FROM THE
THIRTY-THIRD JUDICIAL DISTRICT COURT
PARISH OF ALLEN, NO. CR-2018-0516
HONORABLE ERROL DAVID DESHOTELS, JR., DISTRICT JUDGE

**********

ELIZABETH A. PICKETT
JUDGE

**********

Court composed of Elizabeth A. Pickett, Billy Howard Ezell, and D. Kent Savoie,
Judges.

SENTENCE AFFIRMED AS AMENDED;
REMANDED WITH INSTRUCTIONS.

Chad Guidry
Attorney at Law
P. O. Box 447
Kinder, LA 70648
(337) 738-2280
COUNSEL FOR DEFENDANT-APPELLANT:
Jason L. Thomas

H. Todd Nesom
District Attorney, Thirty-Third Judicial District
Joe Green
Assistant District Attorney
P. O. Box 839
Oberlin, LA 70655
(337) 639-2641
COUNSEL FOR APPELLEE:
State of Louisiana

PICKETT, Judge.

FACTS

On February 12, 2018, the defendant, Jason L. Thomas, was charged by bill

of information with one count of sexual battery, in violation of La.R.S. 14:43.1,

and one count of home invasion, in violation of La.R.S. 14:62.8. On July 13, 2018,

the bill was subsequently amended to specify the sexual battery was being charged

under La.R.S. 14:43.1(A)(3)(a)(i), namely it specified the victim had paraplegia,

quadriplegia, or some other physical disability that prevented them from resisting.

The state presented the following factual basis prior to sentencing:

And just a brief factual allegation, a factual allegation, Your Honor,
would be that the individual, defendant, apparently was familiar with
the victim. She lived in the neighborhood where he lived. She lived
by herself a lot and was physically unable, a lot of times, to move on
her [own]. She was checked out or checked on by neighbors. On this
particular occasion the defendant knocked on the door and opened it
without her - - she may have asked, I think, who is it, and he just came
on in without saying anything, proceeded to get on the bed with her - -
the victim was wearing a diaper at the time - - and proceeded to bite
the diaper in the crotch area so that the victim was able to feel that on
her genitals and vaginal area, although it was not skin on skin contact.
He also grabbed her breast which had become exposed as he writhed
with her on the bed. She had told him repeatedly to leave, to leave, to
leave, and he did not do so. She got - - she was able to call a cousin,
mutual friend of theirs - -

On July 16, 2018, the defendant pled guilty to the original charge of sexual

battery, in violation of La.R.S. 14:43.1; and an amended charge of simple burglary

of an inhabited dwelling, in violation of La.R.S. 14:62.2. Following a pre-sentence

investigation (PSI), the trial court on September 27, 2018, sentenced the defendant

to eight years at hard labor without benefit of probation, parole, or suspension of

sentence on the sexual battery charge and six years at hard labor, the first without

benefits, on the simple burglary charge. The defendant’s sentences were ordered

to run concurrently, and he received credit for time served.

On October 23, 2018, the defendant filed a motion to reconsider sentence,

alleging simply that “the sentence imposed upon him is excessive. That motion

was denied without a hearing on October 24, 2018.

The defendant now appeals his sentences, arguing once more that they are

excessive. The state alleges the defendant is precluded from seeking review of his

sentences because his guilty plea waived “any right to appeal from the decision of

the court.”

ASSIGNMENT OF ERROR

Defendant-Appellant contends that his sentences are excessive.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed by

this court for errors patent on the face of the record. After reviewing the record,

we find there is one error patent involving the sentence imposed for simple

burglary of an inhabited dwelling.

The trial court erred in ordering the first year of the defendant’s simple

burglary of an inhabited dwelling sentence to be served without benefit of parole.

Although the penalty provision for simple burglary of an inhabited dwelling

previously required the first year of the defendant’s sentence to be served without

benefit of probation, parole, or suspension of sentence, the penalty provision was

amended in 2017. 1 Effective August 1, 2017, the restriction of benefits was

removed. La.R.S. 14:62.2; 2017 La. Acts No. 281, § 1; and La.Const. art. 3, § 19.

Thus, at the time the defendant committed the offense at issue, October 19, 2017,

the penalty provision for simple burglary of an inhabited dwelling no longer

1
In State v. Washington, 11-490, p. 4 (La.App. 3 Cir. 11/2/11), 76 So.3d 1264, 1267, this
court noted that in State v. Boowell, 406 So.2d 213 (La.1981), the supreme court held that only
the first year of a sentence imposed for simple burglary of an inhabited dwelling may be without
the benefit of parole, probation, or suspension of sentence.

2

authorized the first year to be served without benefit of probation, parole, or

suspension of sentence. It is well-settled that the penalty provision in effect at the

time of the commission of the offense applies. State v. Parker, 03-924 (La.

4/14/04), 871 So.2d 317.

This court hereby amends the defendant’s sentence for simple burglary of an

inhabited dwelling to delete the denial of parole eligibility and instructs the district

court to make an entry in the minutes reflecting this change. State v. Batiste, 09-

521 (La.App. 3 Cir. 12/9/09), 25 So.3d 981, and State v. Dupree, 07-98 (La.App. 3

Cir. 5/30/07), 957 So.2d 966.

ASSIGNMENT OF ERROR

In his sole assignment of error, the defendant contends his sentences are

constitutionally excessive. Before addressing the defendant’s assignment of error,

however, we will first address the state’s contention that the defendant waived his

right to seek review of his sentence during his guilty plea.

The state’s contention is that language in the plea form indicated the

defendant was waiving, amongst others, “any right to appeal from the decision of

the court.” The state contends this generalized language includes appealing the

excessiveness of his sentence. The state further argues the defendant understood

the sentencing range for his crimes and “specifically agreed to a sentence in that

range.” This argument lacks merit. The record in this matter is clear that no

sentencing recommendation was agreed to by the defendant, hence the trial court

ordered a PSI and even the state acknowledged in its brief that the defendant pled

“in exchange for the amendment of charges and to have the sentences run

concurrently.” In State v. Moten, 14-1169 (La.App. 3 Cir. 3/4/15), 158 So.3d 972,

writ denied, 15-609 (La. 2/5/16), 186 So.3d 1162, this court rejected the argument

that a the defendant waives his right to appeal his sentence by pleading guilty
3

simply because the crime to which he pled guilty contained a statutorily defined

maximum sentence. This court specifically stated:

Because the State fails to indicate in the record any agreement
with Defendant regarding a sentencing cap, the State is evidently
arguing that the ninety-nine year maximum per La.R.S. 14:64 is
tantamount to a sentencing cap. However, this court has repeatedly
denied the contention that the statutory maximum sentence for a crime
is a sentencing cap which would preclude a defendant from appealing
their sentence under La.Code Crim.P. art. 881.2(A)(2). Specifically,
in State v. Curtis, 04–111, p. 2 (La.App. 3 Cir. 8/4/04), 880 So.2d
112, 114, writ denied, 04–2277 (La.1/28/05), 893 So.2d 71, this court
held that it was “not automatically precluded from reviewing a
sentence unless the plea agreement provides a specific sentence or
sentencing cap.” See also State v. Pickens, 98–1443 (La.App. 3 Cir.
4/28/99), 741 So.2d 696 (en banc), writ denied, 99–1577 (La.11/5/99),
751 So.2d 232, and writ denied, 01–2178 (La.4/19/02), 813 So.2d
1081 (citing State v. Simmons, 390 So.2d 504 (La.1980)); State v.
Colar, 04–1003 (La.App. 3 Cir. 2/2/05), 893 So.2d 152.

In the instant case, the Plea of Guilty form signed by Defendant
fails to list either a specific sentence or a sentencing cap. Additionally,
the trial court’s language when ordering the PSI clearly indicates a
lack of agreement between Defendant and the State as to a sentence.
Accordingly, we find that Defendant is not precluded from appealing
his sentence, and we will now address Defendant’s assigned error.

Id. at 974.

Additionally, State v. Vail, 571 So.2d 710 (La.App. 2 Cir. 1990), held that

the defendant must expressly waive his right to appeal his sentence. The court

stated, “In the absence of an express and intelligent waiver by the defendant, that

sentence is reviewable.” Id. at 713. The record shows the trial court discussed the

defendant’s right to an appeal, and his waiver of said right, but nothing in the

record indicates the defendant’s right to appeal his sentence was ever mentioned.

Furthermore, the only portion of the plea agreement which contains language

regarding his sentence is “I further agree to the imposition of the sentence attached

hereto under Plea Recommendation and any further orders of the court in

connection therewith.” Again, there was no plea recommendation in this case,

and the defendant was never specifically told he was waiving his right to appeal his
4

sentence. The defendant’s excessive sentence claim is properly before this court,

and we will therefore address that claim.

Louisiana Code of Criminal Procedure Article 881.1 provides the

mechanism for preserving the review of a sentence on appeal:

A. (1) In felony cases, within thirty days following the
imposition of sentence or within such longer period as the trial court
may set at sentence, the state or the defendant may make or file a
motion to reconsider sentence.

....

E. Failure to make or file a motion to reconsider sentence or to
include a specific ground upon which a motion to reconsider sentence
may be based, including a claim of excessiveness, shall preclude the
state or the defendant from raising an objection to the sentence or
from urging any ground not raised in the motion on appeal or review.

Louisiana courts have laid out the following guidelines with regard to

excessive sentence review:

Sentences within the statutory sentencing range can be
reviewed for constitutional excessiveness. State v. Sepulvado, 367
So.2d 762 (La.1979). In 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 panel of this court discussed the
review of excessive sentence claims, stating:

La. Const. art. I, § 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. 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).
5

Further, in reviewing the defendant’s sentences, the appellate
court should consider the nature of the crime, the nature and
background of the offender, and the sentences imposed for similar
crimes. State v. Lisotta, 98-648 (La.App. 5 Cir. 12/16/98), 726 So.2d
57 (citing State v. Telsee, 425 So.2d 1251 (La.1983)), writ denied, 99-
433 (La. 6/25/99), 745 So.2d 1183. In 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, a panel of this court observed that:

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[, cert. denied, 96-6329, 519 U.S. 1043, 117 S.Ct.
615 (1996)].

State v. Soileau, 13-770, 13-771, pp. 4-5 (La.App. 3 Cir. 2/12/14), 153 So.3d 1002,

1005-06, writ denied, 14-452 (La. 9/26/14), 149 So.3d 261 (first alteration in

original).

Furthermore, in State v. Baker, 06-1218 (La.App. 3 Cir. 4/18/07), 956 So.2d

83, writ denied, 07-320 (La. 11/9/07), 967 So.2d 496, and writ denied, 07-1116

(La. 12/7/07), 969 So.2d 626, this court adopted the fifth circuit’s three-factor test

from State v. Lisotta, 98-648 (La.App. 5 Cir. 12/16/98), 726 So.2d 57, writ denied,

99-433 (La. 6/25/99), 745 So.2d 1183. Although the defendant filed a motion to

reconsider sentence, his only claim was that his sentences were excessive.

Accordingly, we will review the defendant’s claim as a bare excessiveness claim in

light of the Baker factors.

NATURE OF THE CRIMES

The defendant stands convicted of two crimes, sexual battery and simple

burglary. Both crimes are defined as crimes of violence under La.R.S. 14:2(B).

6

Furthermore, sexual battery is a sex offense which requires sex offender

registration upon conviction and under La.R.S. 14:43.1(C)(1) carries a sentencing

range of “imprisonment, with or without hard labor, without benefit of parole,

probation, or suspension of sentence, for not more than ten years.” Simple

burglary of an inhabited dwelling, a crime which involves danger to the public,

carries a sentencing range under La.R.S. 14:62.2(B) of imprisonment “at hard labor

for not less than one year nor more than twelve years.” Both of the defendant’s

crimes, are serious violent crimes which carry the potential for significant periods

of imprisonment.

NATURE OF OFFENDER

The defendant was forty-four years old at the time he pled guilty. As noted

at sentencing, the defendant’s only prior felony conviction occurred fifteen years

previously, although the defendant did have multiple arrests since then. The

defendant contends he is not the “worst of the worst,” and therefore does not

deserve a near-maximum sentence, citing State v. Baker, 42,428 (La.App. 2 Cir.

9/19/07), 966 So.2d 124. However, the second circuit also noted in Baker that:

As a general rule, maximum or near maximum sentences are
reserved for the worst offenders and the worst offenses. State v.
Robinson, 36,147 (La.App.2d Cir.12/11/02), 833 So.2d 1207.
However, in cases where the defendant has pled guilty to an offense
which does not adequately describe his conduct, the general rule does
not apply and the trial court has great discretion in imposing the
maximum sentence possible for the pled offense. State v.
Black, 28,100 (La.App.2d Cir.2/28/96), 669 So.2d 667, writ
denied, 96–0836 (La.9/20/96), 679 So.2d 430; State v. Rankin, 41,128
(La.App.2d Cir.8/23/06), 938 So.2d 1172.

A trial court has broad discretion to sentence within the
statutory limits. Absent a showing of manifest abuse of that discretion,
we may not set aside a sentence as excessive. State v. Guzman, 1999–
1753 (La.5/16/00), 769 So.2d 1158; State v. June,38,440 (La.App.2d
Cir.5/12/04), 873 So.2d 939.

Id. at 126.

7

Although the defendant contends he “had valid defenses to the original

charges[,]” the fact remains he pled guilty in exchange for reduced charges, thus

reduced sentencing exposure, and for concurrent sentences. At sentencing, defense

counsel noted “we was [sic] obviously afraid of what a jury might do with that

larger sentencing range. He pled no contest for a reason.”

SENTENCES FOR SIMILAR OFFENSES

This court has repeatedly found maximum sentences acceptable for

defendants convicted of sexual battery. See State v. Fontenot, 09-624 (La.App. 3

Cir. 12/9/09), 25 So.3d 225; State v. J.G., 06-541 (La.App. 3 Cir. 9/27/06), 939

So.2d 655; and State v. Morgan, 97-997, 97-998 (La.App. 3 Cir. 2/4/98), 706

So.2d 1084. Furthermore, as noted by this court in State v. Vallery, 04-1589

(La.App. 3 Cir. 4/6/05), 899 So.2d 836, it is appropriate to consider reduced

sentencing exposure when a plea agreement greatly reduces said exposure.

Importantly, this court stated:

It should also be noted that the Defendant pled guilty to forcible
rape when the facts fully supported the original charge of aggravated
rape. In State v. Lanclos, 419 So.2d 475 (La.1982), the supreme court
addressed the issue of whether a maximum sentence was appropriate
following a plea agreement. The Lanclos court held that because the
lesser offense to which the defendant pled did not adequately describe
the first time offender’s conduct, the trial court did not abuse its
discretion in imposing the maximum sentence. Likewise, in this case,
the Defendant pled guilty to forcible rape, an offense that does not
adequately describe the conduct shown in the record as directed
toward the eleven-year-old victim, which conduct is more accurately
described as conduct constituting aggravated rape.

Additionally, the Defendant was originally charged with
aggravated rape, a violation of La.R.S. 14:42. By agreeing to plead
guilty to forcible rape, a violation of La.R.S. 14:42.1, the Defendant
received a significant benefit by reducing his sentence exposure from
a minimum of life imprisonment to a maximum of forty years
imprisonment. The sentence was within the statutory range for
forcible rape.

Id. at 839-40.

8

Much like the defendant in Vallery, the defendant received a substantial

benefit in accepting a plea agreement which reduced his exposure for sexual

battery from a range of twenty-five to ninety-nine years at hard labor, with a

minimum of twenty-five years without benefits on the sexual battery charge to a

maximum of ten years. Furthermore, the reduction of home invasion to simple

burglary of an inhabited dwelling reduced the defendant’s potential sentence from

a thirty-year maximum to a twelve-year maximum. Although the defendant’s

eight-year sentence for sexual battery is eighty percent of the maximum he could

have received under the plea agreement, it represents less than a third of the

mandatory minimum he would have faced given the enhanced penalty provision

under which he had previously been charged. Furthermore, his six-year sentence

for simple burglary is half the maximum he could have received under the plea

agreement, but is only twenty percent of the maximum he could have faced under

the initial charge of home invasion and is running concurrently to his sexual

battery sentence. Considering the above, we find the trial court did not abuse its

discretion in sentencing the defendant as it did. Accordingly, the defendant’s

sentences are affirmed.

CONCLUSION

This court hereby amends the defendant’s sentence for simple burglary of an

inhabited dwelling to delete the denial of parole eligibility and instructs the district

court to make an entry in the minutes reflecting this change. Otherwise, the

defendant’s sentences are affirmed.

SENTENCE AFFIRMED AS AMENDED;
REMANDED WITH INSTRUCTIONS.

This opinion is NOT DESIGNATED FOR PUBLICATION.
Uniform Rules−Courts of Appeal, Rule 2−16.3.

9