State of Louisiana v. Jacob Cobb

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

22-762
STATE OF LOUISIANA
VERSUS
JACOB COBB
AR A HK
APPEAL FROM THE

FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF VERMILION, NO. 65142
HONORABLE THOMAS JAMES FREDERICK, DISTRICT JUDGE

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VAN H. KYZAR
JUDGE

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Court composed of Elizabeth A. Pickett, Van H. Kyzar and Guy Ernest Bradberry,
Judges.

AFFIRMED.

Annette Fuller Roach

Louisiana Appellate Project

P. O. Box 6547

Lake Charles, LA 70606-6547

(337) 436-2900

COUNSEL FOR DEFENDANT/APPELLANT:
Jacob Cobb

Aaron M. Meche
Assistant District Attorney Vermilion
15" Judicial District Court
100 N. State Street Ste 215
Abbeville, La 70510
(337) 898-4320
COUNSEL FOR APPELLEE:
State of Louisiana

Donald Dale Landry

District Attorney

15" Judicial District Court

P. O. Box 3306

Lafayette, LA 70502

(337) 232-5170

COUNSEL FOR APPELLEE:
State of Louisiana

KYZAR, Judge.

Defendant appeals his sentence of five years at hard labor to be served
without benefits imposed following his entry of a plea of no contest to the offense
of sexual battery in violation of La.R.S. 14:43.1(A)(2), pursuant to a plea
agreement but where no sentence was agreed to therein. For the reasons set forth
below, we affirm Defendant’s sentence.

FACTS AND PROCEDURAL HISTORY

On November 18, 2019, Defendant, Jacob Cobb, was indicted and charged
with first degree rape of a child under the age of thirteen, in violation of La.R.S.
14:42(A)(4), and possession with intent to distribute child pornography, in
violation of La.R.S. 14:81.1.

Defendant, who was sixteen years old at the time, admitted to sexual
conduct with a child, who was twelve years old and just shy of her thirteenth
birthday. The investigation revealed that the victim told Defendant in a series of
text messages that she was fifteen years of age. The victim acquired her
grandmother’s credit card and used it for an Uber to ride to Defendant’s house on
more than one occasion, and while there, Defendant engaged in sexual activity
with the child. The State asserted that it was Defendant that coaxed the twelve
year old victim into stealing her grandmother’s credit card to pay for an Uber ride
and coming to his house for the purposes of having sex on two occasions. !

Defendant initially entered a plea of not guilty to both offenses. On
September 14, 2020, the State dismissed the possession with intent to distribute

child pornography charge. On February 7, 2022, Defendant entered into a plea

' The facts are derived from comments made during the sentencing hearing as there was
no transcript of the plea hearing or other pre-plea hearings wherein testimony was elicited.

agreement with the State in which count one was amended to sexual battery, in
violation of La.R.S. 14:43.1(A)(2), and Defendant entered a plea of no contest.

On May 13, 2022, the trial court held a sentencing hearing and sentenced
Defendant to five years at hard labor to be served without benefits. A motion for
reconsideration of sentence was filed on June 10, 2022, but the motion was denied
on June 15, 2022.

A motion to appeal and designation of the record was filed and later granted
by the trial court. Defendant is now before this court raising one assignment of
error, that his trial counsel was ineffective for failing to raise in a motion to
reconsider sentence that the sentence is excessive.

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 such
error.

DISCUSSION

Defendant argues by this appeal that his counsel was ineffective for failing
to seek reconsideration of the sentence based on the excessiveness of the sentence.”
Defendant notes that a claim of ineffective assistance of counsel is analyzed under
the two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct.
2052 (1984). Defendant notes that under this test he must show his counsel’s
performance was deficient and that the deficient performance prejudiced his
defense. /d. Defendant also acknowledges in his brief that the mere failure to file

a motion to reconsider sentence does not in and of itself constitute ineffective

2 Counsel for Defendant did file a motion to reconsider sentence, the grounds for which
was Defendant’s request that the court reconsider the sentence to give Defendant the benefit of
the provisions of La.Code Crim.P. art 893(E). However, this provision is not applicable to a
sentence for a crime designated as a “sex offense” in La.R.S. 15:541, when it involves a child
under the age of seventeen, and sexual battery is a sex offense under the article. The motion was
denied.

2

assistance of counsel. State v. Fairley, 02-168 (La.App. 5 Cir. 6/26/02), 822 So.2d
812. A basis for ineffective assistance of counsel may only be found if a defendant
can “‘show a reasonable probability that, but for counsel’s error, his sentence
would have been different.”” Jd. at 816. Defendant also acknowledges that in
order to determine if there was a reasonable probability that Defendant’s sentence
would have been different had counsel raised the proper objection, this court must
actually examine whether the sentence was in fact excessive. Accordingly, we do
so here.

In State v. Green, 16-938, pp. 36-37 (La.App. 3 Cir. 7/19/17), 248 So.3d
360, 383-84 (alterations in original), writ denied, 17-1348 (La. 4/27/18), 239 So.3d
836, this court restated the standard for proving ineffective assistance of counsel:

“The standard of review on a claim of ineffective
assistance of counsel is deficiency in counsel’s
performance giving rise to a reasonable probability that,
but for counsel’s unprofessional errors, the result of the
proceeding would have been different.”

A criminal defendant is guaranteed
the effective assistance of counsel. United
States Sixth Amendment; La.Const. art. I, §
13. To establish a claim for ineffective
assistance, a defendant must show that
counsel’s performance fell below an
objective standard of reasonableness under
prevailing professional norms; and, that
counsel’s professional errors resulted in
prejudice to the extent that it undermined the
functioning of the adversarial process and
rendered the verdict suspect.

A claim of ineffectiveness is generally
relegated to post-conviction, unless the
record permits definitive resolution on
appeal. However, when the record is
sufficient for review, this Court will reach
the merits of complaints about counsel’s
performance and_= grant relief when
appropriate.

Celt

State v. Nargo, 15-779, pp. 7-8 (La.App. 3 Cir. 6/1/16), 193
So.3d 1263, 1268 (citations omitted).

More specifically, under Strickland v. Washington, 466 U.S.
668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), for a defendant to
establish that he received ineffective assistance of counsel, he must
show that (1) “counsel’s representation fell below an objective
standard of reasonableness” and that (2) “there is a reasonable

probability that, but for counsel’s unprofessional error, the result of
the proceeding would have been different.” Jd. at 687-88, 104 S.Ct.

2052. If the defendant fails to meet one of the criteria of the two-

pronged test, the reviewing court is not required to address the other

one. State v. James, 95-962 (La.App. 3 Cir. 2/14/96), 670 So.2d 461

(citing State v. James, 555 So.2d 519 (La.App. 4 Cir.1989), writ

denied, 559 So.2d 1374 (La.1990)). “The object of an ineffectiveness

claim is not to grade counsel’s performance. If it is easier to dispose

of an ineffectiveness claim on the [second] ground of lack of

sufficient prejudice, which [ ] will often be so, that course should be

followed.” Strickland, 466 U.S. at 697, 104 S.Ct. 2052.

In Green, the defendant asserted his counsel was ineffective for failing to
raise certain claims in a motion to reconsider sentence. /d. This court noted that
ineffective assistance of counsel claims are more properly raised in an application
for post-conviction relief, but the claims may be addressed on appeal when there is
a sufficient record for review. /d. This court then noted that while the failure to
file a motion to reconsider sentence in and of itself does not constitute ineffective
assistance of counsel, if a defendant can show a reasonable probability that but for
counsel’s error in failing to do so his sentence would have been different, a basis
for an ineffective assistance claim may be found on direct appeal. /d. This court
then proceeded with an excessive sentence review.

After reviewing the facts of the case, this court in Green determined the
sentence imposed was not excessive. We further held that after considering the

detailed reasons given by the trial court, it was not probable that a motion to

reconsider sentence alleging the assertions made by Green would have caused the

trial court to impose a lesser sentence. /d. Thus, this court found there was no
merit to his claim that his counsel was ineffective. /d.

As in Green, we will first proceed with a review of whether Defendant’s
sentence is constitutionally excessive. 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:

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

5

v. Batiste, 594 So.2d 1 (LaApp. 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 So0.2d 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, Defendant was sentenced to five
years for sexual battery under La.R.S. 14:43.1(A)(2). Defendant, as a sixteen year
old, had sexual relations with a twelve-year-old child. Louisiana Revised Statutes
14:2(B) denotes sexual battery as a crime of violence. Under La.R.S.
14:43.1(C)(1), the penalty for sexual battery is imprisonment, with or without hard
labor, without benefit of parole, probation, or suspension of sentence, for not more
than ten years. Thus, Defendant received only half of the maximum.

As to the nature and background of the offender, we look to the remarks
made during the sentencing hearing. At the hearing, the trial court noted that the
presentence investigation report indicated Defendant had a small number of felony
arrests but no felony convictions, and so the court officially classified Defendant as

a first felony offender. The court also took notice of the fact that Defendant was

under the age of seventeen at the time of the commission of the offense, which

6

weighed in favor of mitigation for Defendant, but did not lessen the seriousness of
the offense. The court similarly took notice of the fact that the victim was an even
younger age and appeared, through her father, for the purpose of making a
statement for the report. Additionally, the court indicated Defendant openly
admitted to the offense and gave a statement saying he wanted to live a better life
and correct the things he had done wrong. The trial court then allowed Defendant
to speak on the record, and Defendant said, “I can just say I was being stupid at the
time. I really didn’t know right from wrong. At the time, I wasn’t really thinking
too much. And I’m just . . . like I said, I’m working on bettering my life.”

At the hearing, the defense called Defendant’s mother, Mary Kay Cobb, in
mitigation. Ms. Cobb confirmed that at the time of the incident Defendant was
sixteen years old and on probation for using his grandmother’s vehicle without
permission. She confirmed both she and Defendant were living with his
grandmother at the time of the offense, and Defendant’s probation was revoked as
a result of the arrest. Ms. Cobb additionally confirmed that the victim lied about
her age in text messages with Defendant. She also stated that there have been
changes in Defendant’s life since the arrest because Defendant now has a young
child. Ms. Cobb said Defendant has made an effort to secure employment since
the baby’s birth and stated that Defendant could live with her if the court imposed
a sentence of house arrest. Ms. Cobb stated she felt her son had changed since the
birth of his child and had grown up.

Before the imposition of sentence, counsel for Defendant argued there were
certain mitigating factors the court should consider, including the victim’s lie
regarding her age, Defendant’s lack of any felony convictions, a newborn baby,

Defendant’s young age at the time of the offense, and the victim was close to the

age requirement where he would not have been charged with such a serious
offense.

The court indicated it reviewed the presentence investigation report, the
record of prior offenses, the aggravating factors presented by the State, and the
mitigating factors presented by the defense. The court noted that Defendant’s
crime inflicted emotional injury on the victim due to her youthful age, as the
victim’s father indicated she was in therapy. The court further noted Defendant
was originally charged with much more serious offenses and faced the possibility
of a much greater sentence. The court acknowledged Defendant may benefit from
supervision but also found that a lesser sentence would deprecate the seriousness
of the crime, and, thus, the trial court ruled imprisonment was warranted.

The final factor in the Baker? analysis is a comparison of the sentences
imposed for similar crimes. We note that there are a limited number of similar
cases to Defendant’s based on his status as a juvenile. There are cases involving
first-offender adult defendants that are somewhat analogous. In State v. Reynolds,
41,612 (La.App 2 Cir. 2/28/07), 954 So.2d 179, writ denied, 07-1023 (La.
11/16/07), 967 So.2d 522, the defendant pled guilty to sexual battery and was
sentenced to five years at hard labor without benefits. The defendant argued his
sentence was excessive. The second circuit noted the following: the defendant
was initially indicted on a charge of forcible rape but pled guilty to sexual battery;
several letters in mitigation were introduced on the defendant’s behalf; the victim
and the defendant had a prior relationship; the defendant was a first-time felony
offender but had been charged with numerous misdemeanors. /d. In affirming the
defendant’s five-year sentence, the second circuit noted the defendant was thirty-

eight years old without prior felony convictions. However, the court also noted

3 956 So.2d 83.

that the defendant received a significant benefit by virtue of his plea bargain. Jd.
The second circuit stressed that a substantial advantage obtained by a plea is a
legitimate consideration in sentencing. /d. The second circuit also noted that the
trial judge is not required to list every aggravating or mitigating circumstance, so
long as the record reflects the court adequately considered the guidelines of the
article. /d.; See also, State v. Smith, 433 So.2d 688 (La.1983). The second circuit
found the trial court adequately complied with the sentencing guidelines found in
La.Code Crim.P. art. 894.1. Reynolds, 967 So.2d 522.

Defendant’s sentence is comparable to other cases involving first-time
felony offenders, although the trial court did not necessarily review all of the
sentencing guidelines contained in La.Code Crim.P. art. 894.1. 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 State v. Wortham, 47,431, pp. 4-6 (La.App. 2 Cir. 11/14/12), 107 So.3d 132,
135-36 (emphasis added), the second circuit provided a useful recitation of law:

Where the record shows an adequate factual basis for the
sentence imposed, remand is unnecessary even where the trial
court has not fully complied with the sentencing guidelines of
[La.Code Crim.P.] art. 894.1. State v. Lanclos, 419 So.2d 475
(La.1982); State v. McGraw,[616 So.2d 262 (La.App 2 Cir. 1993).]
The important elements which should be considered are the
defendant’s personal history, prior criminal record, seriousness of
offense, and the likelihood of rehabilitation. State v. McGraw, supra.
The trial court is not required to weigh any specific matters over other
matters. State v. Moton, 46,607 (La.App.2d Cir. 9/21/11), 73 So.3d
503, writ denied, 11-2288 (La. 3/30/12), 85 So.3d 113; State v.
Caldwell, 46,645 (La.App.2d Cir. 9/21/11), 74 So.3d 248, writ denied,
11-2348 (La. 4/27/12), 86 So.3d 625.

When a defendant has received a significant reduction in
potential exposure to confinement through a plea bargain, the
trial court has great discretion in imposing even the maximum
sentence possible for the pled offense. State v. Fatheree, (46,686, p.
6 (La.App. 2 Cir. 11/2/11}, 77 So.3d 1047, 1051]; State v. Germany,
42,239 (La.App.2d Cir.4/30/08), 981 So.2d 792.

Despite the lack of a specific recitation of the 894.1 factors by
the court, we find an adequate factual basis for the imposed sentence
on the record before us. Before his guilty plea, the court obtained
information from Wortham regarding both his age and education.
Thus, the record adequately demonstrates the court’s awareness of
Wortham’s youth and educational history. Furthermore, the facts as
set forth in the record by the State clearly indicate that Wortham sold
only $20 worth of crack cocaine to a confidential informant. Thus,
the court also understood the amount of drugs and money involved in
the transaction. The court had knowledge of Wortham’s criminal
history as it conducted his probation revocation hearing immediately
after sentencing. Accordingly, consideration by the trial court of the
important elements including Wortham’s personal history, prior
criminal record and seriousness of offense are evident from the record
before us and provide a sufficient factual basis for the imposed
sentences.

Despite the lack of a specific recitation of some of the sentencing factors, the
record in this case indicates the court was aware of Defendant’s young age and
status as a first-time felony offender. However, the trial court focused on the
severity of the crime and the young age of the victim. The trial court indicated that
it considered the facts presented by the defense in mitigation, which included
testimony from Defendant’s mother and Defendant’s own statement, as well as
certain aggravating factors presented by the State. The court noted that while
Defendant may benefit from supervision, a lesser sentence would deprecate the
seriousness of the offense. As to the severity of the crime, the court specifically
indicated that had Defendant not pled guilty, he could have been facing a much
more serious penalty for first degree rape of a child under the age of thirteen and

for possession with intent to distribute child pornography. Defendant’s plea

10

agreement resulted in a significant reduction in confinement, so the trial court had
great discretion when imposing a sentence for the offense he ultimately pled to. Id.
Defendant’s sentence of five years is half of the total amount of time he could have
been ordered to serve.

Appellate counsel for Defendant makes the good faith and impassioned
argument that had Defendant been originally charged with the offense in juvenile
court, or charged therein with sexual battery, rather than the greater charge of first
degree rape of a child under the age of thirteen, his punishment would have been
less severe.4 We note, however, that it was in the discretion of the District
Attorney in determining the initial charge, and the grand jury in this case since he
was charged by way of a bill of indictment, and it is not for us to second guess that
decision. La.Code Crim.P. art 61. Further, even had Defendant been adjudicated
in juvenile court for the first degree rape charge, he would also have faced a five-
year term of custody, without benefits, being until his twenty-first birthday. °
While we acknowledge a potential difference in the manner of incarceration, we

cannot conclude that this makes the sentence here excessive.

4 La.Ch.Code art. 857.

5 See La.Ch.Code art. 897.1(B):

After adjudication of a felony-grade delinquent act based upon a
violation of R.S. 14:42, first degree rape, or R.S. 14:44, aggravated
kidnapping, the court shall commit the child who is fourteen years or older
at the time of the commission of the offense to the custody of the
Department of Public Safety and Corrections to be confined in secure
placement until the child attains the age of twenty-one years without
benefit of probation or suspension of imposition or execution of sentence.

Further, given the time frame for handling juvenile delinquency matters, he would most
likely have been adjudicated within the year of his charge.

11

For all of these reasons, we find there was a sufficient basis for the imposed
sentence. As we conclude that the sentence imposed is not constitutionally
excessive, we also find that counsel did not err in failing to raise excessiveness of
the sentence in the motion to reconsider sentence. After considering the reasons
given by the trial court, it was not probable that a motion to reconsider sentence
alleging the assertions made by Defendant would have caused the trial court to
impose a lesser sentence. Green, 248 So.3d 360. Thus, there is no merit to
Defendant’s claim that his counsel was ineffective. /d. Accordingly, we affirm
Defendant’s sentence.

DECREE

Defendant’s sexual battery in violation of La.R.S. 14:43.1(A)(2) and the
sentence imposed therefore of five years at hard labor without the benefit of parole,
probation, or suspension of sentence, with credit for time served, is affirmed.

AFFIRMED.