State of Louisiana v. Dewey Glenn Burnworth, Jr.

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

22-291

STATE OF LOUISIANA

VERSUS

DEWEY GLENN BURNWORTH, JR.

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 2548-20
HONORABLE CLAYTON DAVIS, DISTRICT JUDGE

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ELIZABETH A. PICKETT
JUDGE

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Court composed of Elizabeth A. Pickett, Shannon J. Gremillion, and John E.
Conery, Judges.

AFFIRMED.

Holli Ann Herrle-Castillo
Louisiana Appellate Project
P.O. Box 2333
Marrero, LA 70073
(504) 345-2801
COUNSEL FOR DEFENDANT-APPELLANT:
Dewey Glenn Burnworth, Jr.

Stephen C. Dwight
District Attorney, Fourteenth Judical District
David S. Pipes
Assistant District Attorney
P. O. Box 3206
Lake Charles, LA 70601
(337) 437-3400
COUNSEL FOR STATE-APPELLEE:
State of Louisiana

PICKETT, Judge.

FACTS

Since this case resolved with a guilty plea, the facts in the record are not

fully developed. However, a factual basis was placed on the record as part of the

plea entered by Dewey Glenn Burnworth, Jr.:

[O]n or between August 1st, 2015 and February 28th, 2017, the
defendant did commit indecent behavior with a juvenile under the age
of 13, two counts, with the victims with the initials of A.G., date of
birth, July 21st, 2005, and the initials D.G. with a date of birth of
February 6th, 2007 by . . . the touching of the genitals of both victims
by the defendant in Calcasieu Parish . . . when they were under the
age of 13.

On February 13, 2020, the defendant was indicted by the Calcasieu Parish

Grand Jury with two counts of first degree rape of a victim under thirteen, in

violation of La.R.S. 14:42(A)(4), and two counts of sexual battery of a victim

under thirteen, in violation of La.R.S. 14:43.1(A)(2) and (C)(2).

On February 24, 2020, the defendant pled not guilty and requested a trial by

jury. Trial was set for June 1, 2020. The pandemic forced postponement of the

trial.

On January 31, 2022, the defendant and the state entered into a plea

agreement in which the defendant would plead no contest to two counts of indecent

behavior with a child under age thirteen, in violation of La.R.S. 14:81, subject to

the relevant penalty provisions of La.R.S. 14:81(H)(2). The remaining charges

were dismissed, and, as part of the plea agreement, the defendant reserved his right

to appeal the prior rulings of the court relative to double jeopardy and prescription.

The trial court accepted the recommended sentence set forth in the plea agreement

and sentenced the defendant to twenty years at hard labor without benefits on each

count, to run concurrently.

On February 7, 2022, the defendant filed a motion to reconsider the

sentence, but the motion was denied on the same day. On February 8, 2022, the

defendant moved for an appeal and is now before this court alleging his sentence is

excessive.

ASSIGNMENT OF ERROR

The defendant asserts one assignment of error:

1. The trial court erred in imposing an excessive sentence.

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 are no errors patent.

DISCUSSION

In the defendant’s sole assignment of error, he argues the trial court imposed

an excessive sentence. Specifically, the defendant argues the trial court erred in

failing to allow the defense to present mitigating factors by refusing defense

counsel’s request that the defendant’s father make a statement at sentencing.

The defendant further asserts the trial court failed to consider any of the

sentencing factors contained in La.Code Crim.P. art. 894.1 when imposing

sentence. The defendant claims he pled guilty with no agreed-upon sentence.

The defendant notes the trial court advised him that he was facing up to

twenty-five years on each charge, despite any sentencing recommendation. The

defendant further notes the trial court provided the father of the victims an

opportunity to provide a victim impact statement, and the trial court sympathized

with the victims and thanked the father. However, when the defendant’s father

asked if he could speak, the trial court answered, “Nope.” Trial counsel objected,

and the court responded by asking if it was required to allow the defendant’s father
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to speak, but neither the state nor defense provided an answer. The trial court then

stated it was accepting the “recommendation of the prosecutor and the defense on

the twenty years hard labor, and that will be imposed without benefit for the full 20

years. Those are to run concurrent[ly.]” At this time, defense counsel objected to

the entire sentence being imposed without benefits as well as to the court depriving

the defense the opportunity to present mitigating factors through the defendant’s

father.

The defendant notes the plea form states, “Amended from 2 counts (14:42) -

20 years at hard labor on each count, concurrent, without benefit. Plea under North

Carolina v. Alford & Rights to appeal reserved under State v. Crosby.” He argues

trial counsel did not intend to recommend the entire sentence to be served without

benefits, based on counsel’s objection. Additionally, the defense raised the issue in

the motion to reconsider the sentence. However, the defendant argues his counsel

was vague in the plea form because counsel did not specify which portion of the

sentence was to be served without benefit and “which specific benefits it was being

imposed without.” The defendant argues the trial court also used vague

terminology in saying without benefit.

The defendant concludes by arguing his plea deal did not have a known

sentence. He further asserts the trial court failed to impose a sentence

appropriately tailored to the defendant because the trial court failed to consider

mitigating circumstances in that it did not allow the defendant to present mitigating

evidence from his father. Therefore, the defendant argues his sentence must be

vacated.

In brief, the state argues the trial court did not impose an excessive sentence.

The state explains that the trial court imposed a sentence it believed both sides had

recommended, so the trial court did not provide a more thorough explanation of the
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sentencing factors. However, the state argues that the failure to comply with

La.Code Crim.P. art. 894.1 does not automatically render a sentence invalid. State

v. Deville, 525 So.2d 574 (La.App. 3 Cir. 1988); State v. Davis, 448 So.2d 645

(La.1984). As long as the record clearly reflects an adequate basis for the sentence

imposed, remand is unnecessary. State v. Lanclos, 419 So.2d 475 (La.1982).

The state notes the defendant argues trial counsel did not intend to

recommend the entire sentence be served without benefit because defense counsel

filed a motion to reconsider the sentence contesting the trial court’s order that the

sentence be served without benefit. However, the state argues that the record

clearly establishes a basis for such a sentence. The state argues the two child

victims suffered from the defendant’s actions, and the trial court heard how the

children were still in counseling and would likely suffer for some time into the

future. The state notes documentation showed the defendant was the godfather to

one of the victims and best friend to the children’s father, but the defendant abused

his position of trust, and it was alleged the defendant may have violated the victims

more than once.

The state directs this court’s attention to several prior cases in which courts

have upheld similar sentences for the same conduct. In State v. Howard, 18-159

(La.App. 5 Cir. 11/7/18), 259 So.3d 583, writ denied, 18-2034 (La. 4/29/19), 268

So.3d 1031, the fifth circuit upheld a twenty-year sentence without benefit for a

single incident of indecent behavior based on a finding that the defendant exploited

his position of authority over the victim to commit the abuse. In State v. Modisette,

50,846, 50,847 (La.App. 2 Cir. 9/28/16), 207 So.3d 1108, the second circuit upheld

a twenty-five-year sentence without benefit where the defendant committed acts of

indecent behavior upon different minor victims under the age of thirteen by

exploiting his relationship with the victims. In State v. Vincent, 13-538 (La.App. 3
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Cir. 11/6/13) (unpublished opinion), this court upheld two twenty-year consecutive

sentences with twenty years to be served without benefits for indecent behavior

with a juvenile.

The state asserts the record fully supports the trial court’s decision to impose

a twenty-year sentence without benefits. Additionally, the state argues the

defendant’s claim that his father was not permitted to speak at the sentencing

hearing is without merit. As there was no indication in the record that the

defendant’s father intended to speak in mitigation of his son’s offense, and the

record shows the defendant’s father interrupted the proceedings at the conclusion

of the victim impact testimony by the victims’ father. The state notes defense

counsel objected for the record, but no testimony was proffered nor was any record

made of what the defendant’s father intended to say. Additionally, the state notes

that in the motion to reconsider the sentence there was no reference to the father

nor affidavits or any other indication as to what the father would have added to the

proceedings. The state argues the defendant presented no authority that the court

was required to allow the defendant’s father to speak in such circumstances.

In conclusion, the state contends the trial court was acting within its

discretion in imposing the sentence without benefits, and the record reflects

sufficient reasons for the trial court’s actions. Therefore, the defendant’s

conviction and sentence are affirmed.

In the defendant’s motion to reconsider sentence, he alleged his sentence is

excessive, particularly the amount of the sentence to be served without benefit of

probation, parole, or suspension of sentence. Under La.Code Crim.P. art.

881.1(E), the failure to include a specific ground upon which a motion to

reconsider sentence may be based precludes the defendant from urging any ground

not raised in the motion on appeal.
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In State v. Vital, 12-881, pp. 5-6 (La.App. 3 Cir. 2/6/13), 107 So.3d 1274,

1278, writ denied, 13-430 (La. 9/13/13), 120 So.3d 692, this court noted that

La.Code Crim.P. art. 881.2(A)(2) provides that a “defendant cannot appeal or seek

review of a sentence imposed in conformity with a plea agreement which was set

forth in the record at the time of the plea.” This court went on to note that based

on this article, this court has held “in instances where the court sentences a

defendant in accordance with the parties’ recommendation for a specific sentence

or sentencing range, review of the imposed sentence is precluded.” Id. at 1278,

quoting State v. Jordan, 98-101, p. 4 (La.App. 3 Cir. 6/3/98), 716 So.2d 36, 38. In

the instant case, the signed plea form contains the following language: “20 years at

hard labor on each count, concurrent, without benefit.” However, as the defendant

notes, trial counsel objected to the imposition of the entirety of the sentence to be

served without benefits during the sentencing hearing as well as in the motion to

reconsider sentence.

As we have noted, under La.Code Crim.P. art. 881.2, a defendant is

precluded from seeking review of a sentence imposed in conformity with a plea

agreement when the plea agreement is set forth in the record at the time of the plea.

The plea agreement was made a part of the record, signed by both the defendant,

defense counsel, and the trial judge. It was referenced by all parties at the time the

plea was entered. The trial court only imposed the sentence agreed upon by the

defendant and his counsel, as evidenced by the plea agreement. Accordingly, we

will not review the term of the sentence, twenty years as to each count to be served

concurrently. We find no ambiguity here with respect to the fact that the plea

agreement contemplated a sentence not subject to the benefits of probation, parole,

or suspension of sentence. Nevertheless, out of an abundance of caution, we will

review the defendant’s sentence for constitutional excessiveness.
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At the outset, we note the substantial benefit the defendant received from his

plea bargain. Had the defendant been found guilty of two counts of first degree

rape, he would have been subject to a sentence of life imprisonment on each count.

Had the defendant been found guilty of two counts of sexual battery, he would

have been subject to a sentence of twenty-five to ninety-nine years on each count.

Louisiana courts have laid out the following guidelines regarding 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).

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:

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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)].

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.

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, which established that an appellate court

should consider the nature of the crime, the nature and background of the offender,

and the sentences imposed for similar crimes.

Looking first to the nature of the crime, we note that the defendant pled

guilty to two counts of indecent behavior with a juvenile under the age of thirteen.

The state noted the defendant was a godparent to one of the children and was a

good friend to the children’s father. La.R.S. 14:81(H)(2) sets the sentencing range

for indecent behavior in this case:

(2) Whoever commits the crime of indecent behavior with
juveniles on a victim under the age of thirteen when the offender is
seventeen years of age or older, shall be punished by imprisonment at
hard labor for not less than two nor more than twenty-five years. At
least two years of the sentence imposed shall be served without
benefit of parole, probation, or suspension of sentence.

As to the nature and background of the offender, we look to the remarks

made during the defendant’s no contest plea and sentencing. As the state

8

indicated, the trial court believed the plea recommendation was a joint

recommendation, so the trial court did not conduct a presentence investigation nor

did the trial court consider all the aggravating and mitigating factors in the

sentencing guidelines.

The final factor in the Baker analysis is a comparison of the sentences

imposed for similar crimes. Along with the cases cited by the state, we have

reviewed additional case law. In State v. Collins, 52,885 (La.App. 2 Cir. 9/25/19),

280 So.3d 891, the second circuit affirmed the defendant’s twenty-five-year

sentence without benefits for indecent behavior with juveniles (count 3). The

sentence was ordered to run concurrently with his twenty-five-year sentence in

count one for indecent behavior with juveniles. Id. However, count one, which

was originally sexual battery, was vacated on an error patent since indecent

behavior is not a proper responsive verdict. Id. In affirming the sentence for

indecent behavior (count 3), the second circuit noted: the defendant committed a

crime that will forever affect and scar the minor victims; his actions involved

multiple violations of the reliance and trust afforded to a neighbor; and while the

defendant’s sentence will end, the victims will carry the emotional scars for life.

The second circuit further held, “Considering the emotional and mental pain in

addition to the extreme negative consequences that Collin’s actions will have on

both the victims and their families, his sentence is within the statutorily permitted

allowance for his crime and does not shock the sense of justice.” Id. at 897.

In State v. Patterson, 09-199 (La.App. 3 Cir. 11/4/09), 21 So.3d 1119, the

defendant was adjudicated a second felony habitual offender and sentenced to

twenty years at hard labor. This court noted the defendant’s sentencing range as a

second felony habitual offender was between twelve and one-half years to fifty

years. Id. In affirming the sentence, this court considered the “heinous nature of
9

the offense and the defendant’s past criminal history which included a prior

conviction for indecent behavior with a juvenile[.]” Id. at 1122.

The defendant’s sentence is comparable to other cases involving similar

crimes, but the trial court did not specifically review the sentencing guidelines

contained in La.Code Crim.P. art. 894.1. However, under La.Code Crim.P. art.

881.3 (emphasis added):

In reviewing a sentence the appellate court may consider the
record of the case which shall include any evidence or relevant
information introduced at preliminary hearings, hearings on
motions, arraignments, or sentencing proceedings, and any
relevant information included in a presentence investigation report
filed into the record at sentencing. In order to preserve confidentiality,
in appropriate cases, the court may order that the presentence report,
or any portion thereof, be held under seal.

In discussing review of sentences, this court stated in State v. Williams, 02-

707, pp. 8-9 (La.App. 3 Cir. 3/5/03), 839 So.2d 1095, 1100-01:

The trial court must state for the record the considerations taken
into account and the factual basis for the sentence. La.Code Crim.P.
art. 894.1(C). Although the trial court need not refer to every factor
listed in Article 894.1(A), the record should affirmatively reflect that
adequate consideration was given to codal guidelines in
particularizing the defendant's sentence. State v. Iron, 00-1238
(La.App. 3 Cir. 2/15/01); 780 So.2d 1123, writ denied, 01-1232
(La.3/15/02); 811 So.2d 898. Yet, when the trial court fails to
adequately address the factors of La.Code Crim.P. art. 894.1, “the trial
court’s reasoning alone will not necessitate the need for re-sentencing
as long as an adequate factual basis is found within the record.” State
v. Butler, 98-1258, p. 7 (La.App. 3 Cir. 2/3/99); 734 So.2d 680, 684.

The trial court may also consider other factors not provided by
La.Code Crim.P. art. 894.1. Specifically, when the offense to which
the defendant has pled guilty inadequately describes the entire course
of the defendant’ s conduct, the court may consider the benefit
obtained by the defendant through the plea bargain. State v. Lanclos,
419 So.2d 475 (La.1982). The trial court should particularly make
such considerations where the plea bargain results in a significant
reduction in the defendant’s potential exposure to imprisonment.
State v. Robinson, 33,921 (La.App. 2 Cir. 11/1/00); 770 So.2d 868;
State v. Waguespack, 589 So.2d 1079 (La.App. 1 Cir.1991), writ
denied, 596 So.2d 209 (La.1992).

10

Despite the lack of a specific recitation of the sentencing factors, the record

indicates the defendant’s date of birth is November 19, 1987, and he completed a

twelfth-grade education. The state provided a sufficient factual basis which

alleged the defendant touched the genitals of both children while they were under

the age of thirteen. Additionally, the defendant was originally charged with two

counts of first degree rape of a victim under thirteen and two counts of sexual

battery of a victim under thirteen. This plea agreement resulted in a significant

reduction in potential confinement at hard labor, so the trial court has great

discretion in imposing a maximum sentence for the pled offenses. Also, the trial

court allowed the victims’ father to present an impact statement. He stated his sons

have nightmares and continue to suffer, and he sought out counselors and doctors

to help his children. The father said his children have not had time to heal, have

trust issues, and the trauma will remain for some time. The father stated he wished

the defendant would never get out of prison. This victim impact statement is

suggestive of an aggravating factor. Therefore, we find there was a sufficient basis

for the imposed sentence, especially when considering similar sentences in other

cases.

While not included in the motion to reconsider sentence, defense counsel

objected during sentencing to the failure to allow the defendant’s father to speak on

the record. Thus, this court will consider this claim. We find that the failure to

allow the defendant’s father to speak should not result in reversal of the

defendant’s sentence. At no point in the hearing did the defendant attempt to call

his father as a mitigation witness; rather, the defendant’s father spoke up on his

own and asked if he could say something. When the trial court asked if the

defendant’s father was required to speak, defense counsel could not provide an

answer and simply said he did not know. In State v. Wilson, 53,913, p. 10-11
11

(La.App. 2 Cir. 5/26/21), 317 So.3d 923, 930, the second circuit provided a concise

summary of the law:

The defendant must be given an opportunity to rebut or explain
misinformation upon which the trial court relies or to which it is
exposed in its sentencing decision. State v. Ray, 423 So. 2d 1116 (La.
1982); State v. Cox, 369 So. 2d 118 (La. 1979). The jurisprudence
also holds that the accused must likewise be given an opportunity to
make a showing, by argument of counsel or otherwise, of mitigating
factors under La. C. Cr. P. art. 894.1(B), which the trial court may
have overlooked. See State v. Cox, supra. The opportunity to do so is
waived if not asserted before sentence is passed. State v. Cox, supra;
State v. Hughes, 587 So. 2d 31 (La. App. 2 Cir. 1991), writ denied,
590 So. 2d 1197 (La. 1992); State v. Buie, 477 So. 2d 157 (La. App. 1
Cir. 1985). Moreover, error in denying the defendant this opportunity
is harmless if there is no proof that the sentencing information was
materially and prejudicially false. State v. Washington, 414 So. 2d 313
(La. 1982); State v. Hughes, supra.

The court does not have the affirmative duty to ask whether the
defendant has anything to say at a sentencing hearing. State v.
Hughes, supra.

There was no indication in the record that the defendant specifically intended to

call his father as a mitigation witness; however, as noted above, the defendant’s

counsel objected when the trial court denied permission for his father to speak.

The defendant did not seek to proffer the defendant’s father’s testimony. As

indicated above, the trial court does not have an affirmative duty to ask whether a

defendant has anything to say at the sentencing hearing. When considering that the

defendant’s father interrupted proceedings rather than being called as a witness, we

find there was no error in not allowing the father to speak.

CONCLUSION

We affirm the defendant’s conviction and sentence.

AFFIRMED.

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