State of Louisiana v. Gerrell Washington

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

19-38

STATE OF LOUISIANA

VERSUS

GERRELL WASHINGTON

**********

APPEAL FROM THE
TWELFTH JUDICIAL DISTRICT COURT
PARISH OF AVOYELLES, NO. 2017-CR-200824-A
HONORABLE KERRY L. SPRUILL, DISTRICT JUDGE

**********

D. KENT SAVOIE
JUDGE

**********

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

AFFIRMED.

Paula C. Marx
Louisiana Appellate Project
Post Office Box 82389
Lafayette, Louisiana 70598-2389
(337) 991-9757
COUNSEL FOR DEFENDANT/APPELLANT:
Gerrell Washington

Hon. Charles A. Riddle, III
District Attorney
Twelfth Judicial District Court
Emily Edwards Bertholl
Assistant District Attorney
Post Office Box 503
Marksville, Louisiana 71351
(318) 240-7123
COUNSEL FOR APPELLEE:
State of Louisiana

SAVOIE, Judge.

On June 14, 2017, Defendant, Gerrell Washington, was charged by bill of

information with cruelty to persons with infirmities, a violation of La.R.S.

14:93.3.1 By written motion filed on January 11, 2018, Defendant waived his right

to a jury trial.2 On July 19, 2018, Defendant was tried by a bench trial on both the

present charge (cruelty to persons with infirmities) and a charge filed in a separate

docket number (second degree battery).3 The trial court found Defendant guilty of

both charges. The trial court ordered a Pre-Sentence Investigation (PSI) report and

set sentencing.

On September 17, 2018, the trial court sentenced Defendant on the cruelty to

persons with infirmities conviction to ten years in the Department of Corrections,

with all ten years to be served without benefit of parole, probation, or suspension

of sentence. On the second degree battery conviction, the trial court imposed a

sentence of eight years in the Department of Corrections, to run concurrently with

the sentence imposed for cruelty to persons with infirmities. Defense counsel

asserted an objection and subsequently filed a written Motion for Reconsideration,

alleging the sentences imposed were excessive. The trial court set the Motion for

1
We note that the bill of information refers to the offense as “cruelty to the infirmed.” In
2014, the name of the offense was changed from “cruelty to the infirmed” to “cruelty to persons
with infirmities.” 2014 La. Acts No. 811 § 6. We have used the current name of the offense in
this opinion.
2
The written Motion to Waive Jury filed by Defendant’s counsel and signed by
Defendant refers to Defendant’s charge as “aggravated battery,” instead of “cruelty to persons
with infirmities,” the charge at issue in the present case. However, it is clear Defendant intended
to waive his right to a jury in the present case since the motion contains the docket number in the
present case, and the trial court discussed the waiver with Defendant in open court.
3
In a separate docket number, Defendant was charged with second degree battery arising
out of the same incident. Although the record does not contain a motion to consolidate,
Defendant was tried in the same bench trial on both charges. Defendant’s appeals of both
convictions are presently before the court in separate docket numbers specifically, cruelty to
persons with infirmities under appellate docket number 19-38 and second degree battery under
appellate docket number 19-39.

Reconsideration for hearing on October 16, 2018. After hearing argument, the trial

court denied the Motion for Reconsideration.

Defendant’s Motion and Order for Appeal was granted on September 24,

2018. Now before the court is a brief filed by Defendant alleging one assignment

of error as to the excessiveness of the sentence imposed for cruelty to a person with

an infirmity. For the reasons that follow, we affirm Defendant’s sentence.

FACTS

On May 1, 2017, Defendant, a forty-three-year-old inmate, was working at

the Bunkie Senior Center as part of a work release program. The victim, Ruddio

Rico, age sixty-eight at the time of the incident, worked with his wife as a

volunteer at the center. At trial, the victim explained that earlier that day his wife

told him Defendant “cussed” at her and threatened her when she told him not to

pressure wash near the cracks of the windows. According to the manager of the

Bunkie Senior Center, she saw the victim walk up to Defendant and tell Defendant

to never call his wife names again. The victim testified that he also told Defendant

that if he ever had a conflict with his wife again, he would send Defendant back to

jail. When the victim turned around and walked back to his truck, Defendant

followed and asked what the victim was going to do about it. The victim turned

around to face Defendant, and Defendant hit the victim in the face. The victim fell

backward, and Defendant began “stumping” the victim’s hands and kicking the

victim in the back. Defendant stopped beating the victim when the manager yelled

at Defendant to go inside. The manager estimated the attack lasted about five

minutes.

According to the manager, the victim was bleeding from his face, nose, eyes,

and hand, leaving a pool of blood where he lay. The manager did not see any

2

weapons on the victim and did not hear the victim make any threats to Defendant.

When asked if the victim yelled during the attack, the manager replied, “No, I

mean it just happened so fast, he just turned around and Gerrell hit him with his

fist.”

The victim described the beating as follows:

A. He hit me right here in the eye.

Q. And you’ve indicated just for the record, your right eye?

A. Right eye, it’s a prosthetic eye right now. And then hit me on
the nose and then I have a cut on here right here. And then I fell to
the ground unconscious he put his hand . . . or his foot over my left
hand . . . . And he was smashing down on my hand with foot [sic] and
he was kicking me in the back several times and he kicked me in the
head several times.

The victim also testified that he was 99% unconscious after he was hit. The victim

described the pain he felt as being worse than his wound in Vietnam. The victim

was transported by ambulance to Bunkie General Hospital, where he was then

transported by helicopter to Shreveport. When asked to describe the victim when

she saw him at the hospital, the victim’s wife stated, “He was real bad off, he was

bleeding from the eye and his hand and then he was . . . his eye was all bruised and

it was horrible.” The victim stayed at LSU Medical Center in Shreveport for about

seven days.

As a result of Defendant’s attack, the victim lost his right eye and some

teeth. The victim continues to suffer from blurred vision in his left eye, memory

loss, and headaches. As a result of injuries to his left hand, the victim underwent

two surgeries and still suffers from pain in his hand. The doctor in Shreveport

initially tried to save the victim’s right eye but a few days later decided it was best

to remove it. The victim did not have facial reconstruction surgery since it would

3

have interfered with other problems. After counsel noted the victim was currently

walking with a cane, counsel asked if the victim walked with a cane on the day of

the incident. The victim responded:

A. No.

Q. Is your reason for walking with a cane a direct result of the
beating?

A. No [sic] a direct result with the beating because I had
tremendous back surgery which you cannot return for sure sure [sic] if
that indicated some of the cause.

In his defense, Defendant presented the testimony of one officer regarding a

voluntary statement he received from an eye-witness. The witness stated that he

saw “a white male elderly man push Gerrell, Gerrell then punched him in the face,

the police were then called.” Additionally, the victim’s wife testified that when

she told her husband (the victim) about her run-in with Defendant, her husband

said that it did not sound like Defendant. Defendant testified that on the day in

question, he was having an issue with the victim’s wife trying to supervise him.

When Defendant discussed the issue with his real supervisor, the victim’s wife got

upset and left. Shortly thereafter, Defendant testified, the victim drove up,

slammed his car door, walked up to Defendant, and pushed Defendant in the chest.

The victim threatened to “plant” Defendant “in the ground” if he ever called his

wife a “b-i-t-c-h” again. Defendant testified that the victim followed him and tried

to grab his shirt. Defendant further testified that he automatically “went on

defense” and hit the victim. Defendant denied jumping or “stumping” the victim.

Defendant testified that he was approved for the work release program

because of his “outstanding disciplinary jacket.” According to Defendant, he had

“no violence in [his] jacket” in almost twenty years of incarceration. On cross-

4

examination, Defendant testified that he participated in the sport of boxing while in

prison.

After hearing the evidence presented, the trial court found Defendant guilty

of both offenses, ruling as follows:

BY THE COURT:

I thank you for your presentations of evidence here today. And
really in two separate charges and I will address them separately.

Second Degree Battery is defined by Louisiana Revised Statute
14:34.1, second degree battery is a battery when the offender
intentionally inflicts serious bodily injury. The evidence presented
here today it is abundantly clear that the State met it’s [sic] burden of
proof the defendant is guilty as charged of second degree battery. The
victim Mr. Ruddi Rico sustained very severe injuries to his left eye
and lost the left eye, has a prosthetic eye today, severe damage to his
right vision. He has damage to his face, damage to his nose and lots
of bleeding, lots of pain, loss of teeth and has memory problems all as
a result of the and as a consequence of the beating that was inflicted
upon him by Gerrell Washington on May 1st, 2017.

This court has not considered if a defense to the charge that
anybody exercised any authority over anybody, the series of events
are most regrettable that occurred that day. Regrettable as they may
be the consequence and the results that occurred are clear violations of
the criminal statute for which there has been no defense shown in this
courtroom here today.

Accordingly I find the defendant guilty as charged of Second
Degree Battery based upon the events and testimony of the victim,
Ms. Sherry Guillory and Officer Lee who all testified about the events
that occurred that day.

As far as the next charge Cruelty to Persons with Infirmities,
that statute and I’m just going to read the words that apply to today’s
case and it says ‘[c]ruelty to persons with infirmities under 93.3 of the
criminal code is the intentional mistreatment by any person whereby
unjustifiable pain is caused to a person who is aged.

Aged is defined in Section C as a person or individual 60 years
of age or older. It is without doubt that the victim of this crime was
68 years old on May 1st, 2017.

The State has proven each and every element of this offense
beyond a reasonable doubt as to each element charged in this crime, in

5

both crimes, accordingly I find the defendant guilty as charged to both
crimes by evidence beyond a reasonable doubt.

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 present.

ASSIGNMENT OF ERROR

Defendant asserts the maximum ten-year sentence is excessive for the

cruelty to persons with infirmities offense because Defendant was not the victim’s

caretaker, and Defendant felt threatened by the victim’s verbal confrontation. The

penalty range for cruelty to persons with an infirmity is the following:

E. (1) Whoever commits the crime of cruelty to any person with
an infirmity, adult with a disability, or person who is aged shall be
fined not more than ten thousand dollars or imprisoned with or
without hard labor for not more than ten years, or both. At least one
year of the sentence imposed shall be served without benefit of parole,
probation, or suspension of sentence when the act of cruelty to
persons with infirmities was intentional and malicious.

La.R.S. 14:93.3. Although the trial court did not impose a fine, the trial court

imposed the maximum term of imprisonment and the maximum amount of time to

be served without benefits.

In the same sentencing proceeding, the trial court sentenced Defendant for

second degree battery to eight years in the Department of Corrections, to run

concurrently with the sentence imposed for cruelty to persons with infirmities.

Like the penalty for cruelty to a person with an infirmity, the trial court did not

impose a fine for second degree battery but imposed the maximum term of

imprisonment.

The analysis for an excessive-sentence claim is well-settled:

6

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];
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).

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, 519 U.S. 1043, 117 S.Ct.
615 (1996)].

7

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. “[M]aximum

sentences ‘are reserved for . . . the most serious violations of the charged offense

and for the worst kind of offender.’” State v. Cozzetto, 07-2031, p. 2 (La. 2/15/08),

974 So.2d 665, 666 (quoting State v. Quebedeaux, 424 So.2d 1009, 1014

(La.1982)).

Sentencing Hearing

The victim’s wife gave the following statement at sentencing:

What made that day any different than any other day because he
took orders from (INAUDIBLE) along with all the others in the
center, he mentioned he never had a problem. I prayed to God to give
me strength to forgive him but I can’t. My husband is a hundred per
cent [sic] disabled vet and was trying to help the center get a new face
lift. He destroyed my husband’s life and our entire family. My
husband loves to hunt and fish he took his sight, the use of his left
hand, his memory loss, hearing and he broke a lot of his teeth. He has
to have someone with just about all the things because it’s hard for
him to get around. He has to have someone with him all the time. I
now pray that this court has . . . take his life and sentence him to life
without the possibility of parole and credit him for time served. If he
doesn’t get life please give him the maximum sentence without
possibility of parole. This person is a repeat offender and if released
he will end up killing someone due to his violence.

The trial court stated the following when imposing the sentence in the

present case:

The Court considers the following sentencing guidelines under Article
894.1 of the Code of Criminal Procedure pertinent to these
proceedings; to wit:

1. there is an undue risk that during the period of a
suspended sentence or probation that the defendant may
commit another crime;

2. the defendant is in need of correctional treatment or a
custodial environment that can be provided most
effectively by his commitment to an institution; and,

8

3. a lesser sentence will deprecate the seriousness of the
defendant’s crime.

Additionally, the Court considers the following grounds
provided in Code of Criminal Procedure Article No.: 894.1, relevant
to the sentencing of this defendant, to-wit:

1. the offender’s conduct during the commission of the
offense manifested deliberate cruelty to the victim;

2. the offender knew or should have known that the victim
of the offense was particularly vulnerable or incapable of
resistance due to advanced age, disability or ill health;

3. the offense resulted in a significant permanent injury to
the victim; and,

4. the offender used actual violence in the commission of
the offense.

A pre-sentence investigation report was prepared by Probation
and Parole Officer, Kristin Brouillette, and same has been filed of
record in these proceedings. Gerrell Washington is classified as a
fourth felony offender with a previous conviction for aggravated
battery on 5/1/1995 in Terrebonne Parish, Louisiana (original charge
was second degree battery). The defendant’s record further bears a
conviction for armed robbery on 4/1/1999 which also occurred in
Terrebonne Parish, Louisiana. Gerrell Washington has a pre-trial date
scheduled for 10/30/2018 and a trial date scheduled for 11/13/2018 for
the pending charge of battery of a correctional facility employee in
Allen Parish, Louisiana (date of alleged offense 6/06/2018). The
defendant’s criminal history reflects a propensity for violent crime
and a felony record with offenses that have not been considered for
multiple offender adjudication (see pre-sentence investigation report).

The Court has taken into consideration the severity of the
beating inflicted upon the victim, Ruddie Rico, and the permanent
physical injury that has resulted to him. The Court has further
considered the great pain and suffering that Mr. Rico has endured by
virtue of the defendant’s criminal conduct, the significant cost of
medical expenses attendant thereto, the need for continuing and future
medical treatment for Mr. Rico and the permanent loss of eyesight
suffered by him. The Court recognizes that under the factual situation
presented at bar that the defendant may have felt personal anger from
the circumstances arising in his work release environment. However,
those personal feelings do not justify by any means whatsoever the
cruel and severe beating inflicted upon the physical-ill [sic], sixty-
eight-year-old victim. As required by the cruelty to the infirmed
statute (La.R.S. 14:93.3), the evidence presented at trial supports a

9

finding beyond reasonable doubt that the victim, Ruddie Rico, was a
person with infirmities and of advanced age, who was subject [sic] to
intentional mistreatment by Gerrell Washington that resulted in
unjustifiable pain and suffering to Mr. Rico.

. . . Without any question and beyond any reasonable doubt, the
trial evidence supports a finding that the acts of cruelty inflicted upon
the victim, Ruddie Rico, were both intentionally and maliciously
committed by Gerrell Washington. Accordingly, the defendant is
ordered to serve ten (10) years in the custody of the Department of
Corrections with the State of Louisiana with all ten (10) years of the
sentence imposed being without benefit of probation, parole or
suspension of sentence; the defendant is further awarded credit for
time served since arrest for this offense.

Second degree battery is defined as follows, to-wit:

“La.R.S. 14:34.1: Second degree battery

A. Second degree battery is a battery when the offender
intentionally inflicts serious bodily injury; however, this
provision shall not apply to a medical provider who has
obtained the consent of the patient.”

Serious bodily injury is defined as a bodily injury which involves
unconsciousness, extreme physical pain or protracted and obvious
disfigurement, or protracted loss or impairment of the function of a
bodily member, organ, or mental faculty, or a substantial risk of death.
The evidence presented at trial supports a verdict of guilty to the
charge of second degree battery as the battery committed by the
defendant, Gerrell Washington, upon the victim was intentional and
the victim suffered serious bodily injury. Serious bodily injury in this
case involved extreme physical pain, protracted and obvious
disfigurement and impairment/permanent loss of eyesight for Mr.
Ruddie Rico with a need for a prosthetic eye.

. . . Accordingly, and because of the intentional infliction of
such extremely serious bodily injury upon the victim in this case, the
Court imposes a sentence of eight (8) years in the custody of the
Department of Corrections for the State of Louisiana, with credit for
time served since arrest for this offense, said sentence to run
concurrent with the sentence imposed this date in Criminal Docket
No.: 200,824 on the charge of cruelty to the infirmed.

At the hearing on the motion to reconsider sentence, the trial court denied

the motion, reasoning as follows:

BY THE COURT:

10

All right. And I thank you both. I do appreciate the
opportunity to revisit and reconsider the situation. If memory serves
me correctly and I think it does I think this particular case involved
some very, very serious injuries, in fact permanent injuries which the
victim lost eye sight and has underwent surgeries in fact multiple
surgeries and large hospital bills and his life is forever . . . it will never
be the same; 68 years or whatever age he was. I mean his life is
impacted so negatively and the injury to him was so great his life will
never be the same.

I just under the circumstances I thought the court was very
lenient, very gracious and very kind when I did not impose
consecutive sentences for what happened. And although I had the
discretion under the law and could have those sentences run
consecutively, chose not to run them based on the circumstances, it all
alleged[ly arose] out of the same occurrence and the same situation.

I have given consideration to that fact in the initial sentencing
and I did not overlook the fact that it involved a single event and a
single hitting as has been argued here today. I find that the motion is
without merit and there are no legal grounds for the court to grant the
reconsideration, in fact I do think full benefit was granted and my
latitude begs the positions that the event was a singular event and a
single hitting. When I imposed sentence and made sentence run
concurrent in this case instead of consecutive, even in light of the
serious nature of the injuries and the permanent injuries that were
inflicted as a result of the beating that was inflicted in this case.

The Motion is denied.

Defendant’s Argument in Brief

Defendant argues the trial court’s imposition of the maximum sentence for

cruelty to a person with an infirmity was excessive in this case. Defendant claims

he was afraid of the victim and hit the victim only once after the victim pushed him

and threatened to “plant him in the ground.” Defendant further argues that this

case is “not the typical case involving abuse by one assigned to the care of a

helpless person.” According to Defendant, the intent of the original enactment of

La.R.S. 14:93.3:

[W]as to shield those who need special protection, that is, those who
are infirm and reside in “a nursing home, mental retardation facility,

11

mental health facility, hospital or other residential facility” licensed or
operated under the laws of the State of Louisiana.

We note that Defendant is not challenging the sufficiency of the evidence as to his

conviction for cruelty to a person with an infirmity.

Defendant further argues that the trial court failed to give sufficient weight

to the victim’s threat “to plant [Defendant] in the ground,” especially since the

victim was a hunter. Additionally, Defendant claims he had a non-violent prison

record for almost twenty years prior to the offense at issue. Finally, Defendant

asserts he was not the victim’s caretaker, this was not a case of on-going abuse,

Defendant is remorseful, and the action will not likely reoccur.

Defendant cites several cases in which a lesser sentence was imposed for the

offense of cruelty to persons with infirmities. In State v. Echeverria, 02-2592

(La.App. 1 Cir. 6/27/03), 858 So.2d 632, writ denied, 03-2332 (La. 8/20/04), 882

So.2d 580, the defendant was sentenced to seven years at hard labor as a third

habitual offender for cruelty to the infirmed. Echeverria “shoved his eighty-four-

and-one-half-year-old grandmother into kitchen furniture with both hands, thereby

causing her unjustifiable pain and bruises.” Echeverria, 858 So.2d at 636.

Although the present Defendant received a more severe sentence and was not

adjudicated a habitual offender, Defendant does have a criminal history of felonies,

and the injuries caused by Defendant were more severe than the injuries caused by

Echeverria.

Defendant also cites State v. Pullard, 10-863 (La.App. 3 Cir. 2/9/11), 56

So.3d 1205, a case in which this court upheld the maximum term of imprisonment

for cruelty to the infirmed - ten years at hard labor. Defendant argues Pullard is

distinguishable since the victim in Pullard died. Notably, at the time Pullard

12

committed the offense, the penalty provision did not require any portion to be

served without benefits. Pullard entered an Alford plea in exchange for which the

State dismissed two other charges. Id. Pullard was the victim’s live-in caregiver,

and her “actions and/or omissions contributed to the victim’s malnourishment,

cardiac arrhythmia, dehydration, urinary tract and kidney infection, and bedsores.”

Pullard, 56 So.3d at 1206. “[T]he State urged the trial court to impose the

maximum sentence, asserting the evidence supported the contention that the victim

died” as a result of Pullard’s treatment of the victim. Id at 1207. Although Pullard

had been previously arrested, she had no previous convictions. Id. In reviewing

Pullard’s excessive sentence claim, this court stated the following:

In support of her argument that the maximum sentence is
excessive, Defendant refers this court to State v. Browhow, 41,686
(La.App. 2 Cir. 12/13/06), 945 So.2d 890, asserting that the facts are
similar to those of the instant case. We note, however, that the
defendant in Browhow was convicted of the lesser offense, attempted
cruelty to the infirm, and was sentenced to the maximum five years at
hard labor. As such, the conviction and sentence are not analogous to
the instant case for comparison purposes.

Only a few reported cases involving a conviction for cruelty to
the infirm were found in the jurisprudence. The facts of the cases
reviewed involved either a professional caretaker working in such
capacity or a relative that may or may not have been responsible for
the victim’s care. Although Defendant herein alleges she was not
working for the victim in a professional capacity, she does not deny
that she was his caregiver and had experience in caring for elderly
patients as a certified nurse aide.

The lengthiest sentence for a conviction of cruelty to the infirm
was imposed in State v. Echeverria, 02–2592 (La.App. 1 Cir.
6/27/03), 858 So.2d 632, writ denied, 03–2332 (La.8/20/04), 882
So.2d 580. In Echeverria, the defendant, using both hands, pushed his
eighty-four and one-half-year-old grandmother into the kitchen
furniture. The victim reported that the defendant arrived at her home
intoxicated and called her names before getting in her face and
pushing her down. The victim suffered from soreness and bruises
from the incident. Photographs of the victim introduced into evidence
showed large bruises on the right side of her back and on her right hip.
Following a bench trial, the defendant was convicted of cruelty to the

13

infirm and sentenced to five years at hard labor. After his adjudication
as a third felony habitual offender, his sentence was vacated, and he
was then sentenced to seven years at hard labor. On appeal, the court
held that the sentence imposed was not unconstitutionally excessive or
grossly disproportionate to the severity of the offense.

In State v. Booker, 42,596 (La.App. 2 Cir. 10/31/07), 968 So.2d
1190, writ denied, 07–2295 (La.4/25/08), 978 So.2d 364, the
defendant was sentenced to three years at hard labor for cruelty to the
infirm. The defendant was living with his ninety-five-year-old
grandmother who was found home alone by emergency personnel
dispatched to the home when she failed to answer the door. Upon
forced entry, the victim was discovered sitting nude in her own waste
with roaches crawling on her, unable to get up from her couch. She
was then transported to a hospital and diagnosed with dehydration and
malnutrition. Photos of the home introduced at trial depicted a home
in deplorable condition. The defendant acknowledged to police at the
scene and in his subsequent statement that he was the victim’s
caregiver. He paid the bills with the victim’s money and was the only
person living with the victim. Also, the defendant and the victim had
no other family in the area. The defendant asserted he was doing the
best he could and admitted that he needed some help caring for the
victim. On appeal, the court noted that the sentence imposed was in
the minimum range and concluded it was not excessive viewed in
light of the harm done to society by cruelty to the aged and infirm.

In two cases, the defendants received suspended sentences.
First, in State v. Pratt, 573 So.2d 607 (La.App. 2 Cir.1991), the
defendant was convicted of three counts of cruelty to the infirm and
was sentenced on each count to three years at hard labor, to be served
concurrently. The sentences were suspended, and the defendant was
placed on supervised probation for three years. The defendant was
working at a nursing home as a nurse’s aide where she physically
assaulted three patients, repeatedly slapping and pinching them. The
three female victims were ages seventy, eighty-four, and eighty-nine
years old. The victims sustained bruising and/or swelling to their
faces, and one victim was choked. Although the defendant had no
prior felony convictions, the trial court found aggravating the fact that
she denied the occurrences despite the testimony of co-workers who
witnessed the abuse. Also, the defendant frequently used alcohol
while on the job. Although there were no lasting physical injuries to
the victims, the trial court concluded that the offenses were serious as
they both threatened and caused serious harm. On appeal, the court
did not find the sentences to be an abuse of the trial court’s discretion.

Also, in State v. Baker, 41,325 (La.App. 2 Cir. 11/1/06), 942
So.2d 677, the defendant was convicted of cruelty to the infirm and
sentenced to two years at hard labor, suspended, and was given three
years of probation. Defendant was employed as a certified nurse aide

14

at an assisted living facility and nursing home for veterans. The victim
became angry with the defendant when she tried to rouse him from his
sleep. He also became upset with the defendant and then argued with
her when she placed him in his wheelchair in a hard manner. During
the argument, the victim had his hand in front of the defendant’s face
and called her a “black b–––h.” The defendant then grabbed the
victim’s hand and bent his fingers backwards. When the victim told
the defendant to stop, she released his hand. The victim’s hand was
later found to be swollen and bruised. The defendant did not challenge
her sentence on appeal.

Lastly, the shortest sentence imposed for cruelty to the infirm
was found in State v. Scott, 582 So.2d 864 (La.App. 5 Cir.), writ
denied, 584 So.2d 1171 (La.1991). The defendant in Scott was
convicted of four counts of cruelty to the infirm and was sentenced to
one year in parish prison on each count, the sentences to run
consecutively, and fined $10,000, plus costs. The defendant worked at
a home for mentally retarded individuals as an Assistant Home
Manager. During his employ, two of the defendant’s clients were
found to have burns caused by an electric iron. Also, there was
testimony that the defendant hit, pushed, and tied up some of his
clients, in addition to physical evidence of injurious marks. The
defendant did not challenge his sentences on appeal.

Defendant’s sentence in the instant case, the maximum possible
sentence, is twice that of the longest sentence imposed for cruelty to
the infirm found in the jurisprudence. Echeverria, 858 So.2d 632.
Only the enhanced sentence of seven years imposed in Echeverria
compares to the maximum sentence imposed upon Defendant, a first
felony offender.

Id. at 1209-11 (footnotes omitted).

The court in Pullard found the case to be significantly different from the

cases wherein a lesser sentence had been imposed. First, Pullard involved the

death of the victim. Second, as a certified nurse aide, Pullard clearly knew or

should have known the victim was vulnerable or incapable of resistance due to his

extreme age, disability, and ill health. Id. Third, Pullard had a significant

monetary interest in her relationship with the victim, the abuse of which was wiped

away by Pullard’s plea agreement. Id. This court concluded its analysis by stating

the following:

15

This is a severe sentence. However, it is clear to this court that
the trial court did not impose it lightly. We are moved by the trial
court’s divulgence that this matter represents the first occasion
wherein it has imposed a maximum sentence on a first time offender.
Therefore, in light of the victim’s death and the other aggravating
factors identified by the trial court at sentencing, this court finds that
the trial court did not abuse its discretion when it imposed the
maximum sentence.

Id. at 1212.

State’s Argument in Brief

The State asserts that the sentence imposed is not excessive:

The State asserts that this was a serious crime which resulted in
permanent disfigurement to Mr. Rico. Not only did Gerrell
Washington cruelly maim Ruddie Rico, he justified his actions behind
the ridiculous notion that a 68 year old man, nowhere near his
physical condition, would cause him sustained fear of life. Not only
did Washington deliver such a severe punch to Mr. Rico that it caused
him to lose his eyeball and several teeth, he also continued to kick and
stomp on Mr. Rico until he caused other permanent damage.
Washington did not stop even at the point where he rendered Mr. Rico
unconscious. Before the sentence the defendant showed no remorse
for the permanent disfigurement he caused to a veteran, he only
disrespected the court even further by yelling obscenities as he was
removed from the courtroom. 4 The State asserts that the proper
analysis under La.Code of Criminal Procedure Article 894.1 was
utilized by the Trial Court. These factors were all considered in the
sentence imposed.

Analysis

Even though the sentence imposed in the present case is severe in

comparison with other cases, the sentence is not so grossly disproportionate as to

shock the sense of justice. Although the trial court imposed the maximum term of

imprisonment, it is clear the trial court did not impose it lightly. Additionally, the

trial court did not impose any fine even though it was permitted to do so by the

penalty provision. See La.R.S. 14:93.3. As noted by the trial court, even though

4
The record does not reflect the State’s assertion that Defendant yelled obscenities at the
court.

16

Defendant received the maximum sentence for both cruelty to a person with an

infirmity and second degree battery, Defendant received concurrent sentences.

This court has stated the following regarding a sentencing court’s ability to impose

consecutive sentences even when the offenses arose out of the same transaction:

Considering the serious nature and violence used in the
commission of the offenses, the trial court in its discretion could have
reasonably imposed consecutive sentences for one or more of these
offenses even though they constituted parts of a common scheme or
plan. “Although Louisiana law favors concurrent sentences for crimes
committed as part of a single transaction, La.C.Cr.P. art. 883; State v.
Underwood, 353 So.2d 1013, 1019 (La.1977), a trial judge retains
discretion to impose consecutive penalties on the basis of other
factors, including the offender’s past criminality, violence in the
charged crimes, or the risk he or she poses to the general safety of the
community. State v. Williams, 445 So.2d 1171, 1182 (La.1984); State
v. Jacobs, 371 So.2d 727, 732–33 (La.1979) (on reh’g).” State v.
Thomas, 98–1144, p. 1 (La.10/9/98), 719 So.2d 49, 49.

State v. Bartie, 12-673, p. 25 (La.App. 3 Cir. 12/5/12), 104 So.3d 735, 750, writ

denied, 13-39 (La. 8/30/13), 120 So.3d 256. As discussed below, the imposition of

consecutive sentences was within the trial court’s discretion in the present case.

As stated by the trial court, the offense committed in the present case

involved significant, permanent injuries to the victim. While Defendant argues

that he hit the victim only once, the police investigation shows that the victim

suffered a violent and sustained beating. The exhibits introduced at trial, including

original photos of the injuries sustained by the victim, are not part of the appeal

record. However, copies of those photos are attached to the probable cause

affidavit. The photos show significant injuries sustained by the victim to his eye

and hand. The record of the 911 emergency call from the incident, referencing

injuries to the victim’s eye and finger, is also attached to the probable cause

affidavit. In the PSI, the victim stated Defendant caused him to lose his eye and

caused his hand to be paralyzed. The victim also stated that his hand is wired

17

together, he has had back surgery, he has had memory and hearing loss, and he is

responsible for reimbursing Medicare for his medical bills, which are estimated to

be around two million dollars.5

Additionally, according to the PSI, Defendant is classified as a fourth-felony

offender, with a lengthy criminal history:

• 4/19/1993 – Pled guilty to damage to property over $500.

• 7/14/1994 – Pled guilty to shoplifting.

• 1/27/1994 – Arrested and later pled guilty to possession of stolen property
over $1000.

• 1/27/1994 – Arrested and later pled guilty to reckless operation of a vehicle.

• 2/3/1994 – Arrested and later pled guilty to simple criminal damage to
property.

• 5/1/1995 – Pled guilty to aggravated battery.

• 5/1/1995 – Pled guilty to possession with the intent to distribute cocaine.

• 9/26/1995 – Arrested and later pled guilty to simple criminal damage to
property.

• 6/12/1997 – Arrested and later pled guilty to enter/remain in places/on land
after being forbidden.

• 6/15/1997 – Arrested and later pled guilty to misrepresentation during
booking.

• 4/1/1999 – Pled guilty to armed robbery.

• 4/1/1999 – Pled guilty to manufacture/distribution of CDS II

• 7/19/2018 – Convicted of second degree battery (instant offense).

5
Although the victim’s injuries clearly required significant medical treatment, no
mention of restitution was made in this case. Louisiana Code of Criminal Procedure Article
883.2 requires restitution to the victim to be ordered as part of a sentence when the court finds
the victim suffered an actual pecuniary loss in connection with a criminal prosecution. Even
though the trial court mentioned the victim’s medical bills, it did not make a finding of actual
pecuniary loss.

18

• 7/19/2018 – Convicted of cruelty to persons with infirmities (instant

offense).

• 3/7/2018 – Pled guilty to public intimidation.

• 6/6/2018 – Arrested for battery of a correctional facility employee.
Of particular note is Defendant’s history of violent offenses, including a previous

conviction for aggravated battery in 1995 and a conviction for armed robbery in

1999. In June 2018, Defendant committed a battery on a correctional facility

employee, which was still pending at the time of sentencing. Thus, Defendant’s

propensity for violence continued even after the current offense.

When the offense at issue occurred, Defendant was on a work release

program, a time during which he should have been on his best behavior. Even

considering Defendant’s claim that he was provoked and in fear of a sixty-eight-

year-old man, the extreme beating that Defendant inflicted upon the victim while

on a work release assignment shows Defendant is a danger to society. Considering

this fact along with Defendant’s past criminal history, the trial court could have

ordered the sentence imposed for cruelty to a person with an infirmity to run

consecutively to the sentence imposed for second degree battery. Nonetheless, the

trial court ordered Defendant’s sentence for cruelty to a person with an infirmity to

run concurrently with the sentence for second degree battery. Consequently, even

though Defendant’s sentences are the maximum for each crime, Defendant will

actually be serving only one maximum sentence when he could be serving two.

Considering the extreme injuries suffered by the victim in the present case,

Defendant’s criminal history, Defendant’s continued propensity for violence, and

the trial court’s order that the present sentence be served concurrently with the

offense of second degree battery, we find that the sentence imposed for cruelty to a

19

person with an infirmity is not excessive. Additionally, the supreme court has

repeatedly stated “that sentence review under the Louisiana constitution does not

provide an appellate court with a vehicle for substituting its judgment for that of a

trial judge as to what punishment is more appropriate in a given case.” State v.

Savoy, 11-1174, p. 5 (La. 7/2/12), 93 So.3d 1279, 1283 (citing State v. Walker, 00-

3200 (La. 10/12/01), 799 So.2d 461; State v. Cook, 95-2784 (La. 5/31/96), 674

So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615 (1996); and State v.

Humphrey, 445 So.2d 1155 (La.1984)).

For the foregoing reasons, we find that this assignment lacks merit.

DECREE

Defendant’s sentence is affirmed.

AFFIRMED.

20