State of Louisiana v. Brandy Mize

• Court: Louisiana Court of Appeal
• Decided: September 28, 2016
• Docket: KA-0016-0158
• Status: Unknown

Opinion

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

16-158

STATE OF LOUISIANA

VERSUS

BRANDY MIZE

**********

APPEAL FROM THE THIRTIETH JUDICIAL DISTRICT COURT PARISH OF VERNON, NO. 87684 HONORABLE C. ANTHONY EAVES, DISTRICT JUDGE

JOHN E. CONERY JUDGE

Court composed of Jimmie C. Peters, James T. Genovese, and John E. Conery, Judges.

AFFIRMED. Paula C. Marx Louisiana Appellate Project Post Office Box 80006 Lafayette, Louisiana 70598-0006 (337) 991-9757 COUNSEL FOR DEFENDANT/APPELLANT: Brandy Mize

Honorable Asa A. Skinner District Attorney Terry W. Lambright First Assistant District Attorney Thirtieth Judicial District Post Office Box 1188 Leesville, Louisiana 71446 (337) 239-2008 COUNSEL FOR APPELLEE: State of Louisiana CONERY, Judge.

On April 1, 2015, Defendant, Brandy Mize, was charged with being a

principal to the forcible rape of her sixteen-year-old daughter, a violation of

La.R.S. 14:24 and 14:42.1; being an accessory after the fact to the forcible rape, a

violation of La.R.S. 14:25 and 14:42.1; and four counts of being a principal to

aggravated crime against nature, violations of La.R.S. 14:24, La.R.S.

14:89.1(A)(2) and (C)(1). Defendant pled guilty on September 9, 2015, to being a

principal to one count of forcible rape and to accessory after the fact to the rape.

The State dismissed the remaining charges.

The trial court ordered a pre-sentencing investigation. On November 10,

2015, the trial court sentenced Defendant to the maximum sentence of forty years

at hard labor on the forcible rape charge and to five years at hard labor on the

accessory charge. 1 The trial court ordered the sentences to run consecutively.

Defendant filed a motion to reconsider her sentences on December 1, 2015,

alleging they were excessive. The trial court denied the motion on December 4,

2015, without a hearing. Defendant now appeals the length and consecutive nature

of her sentences.

FACTS AND PROCEDURAL HISTORY

While Defendant’s version of the facts changed over the course of her

statements to police, the evidence proved that Travis McKee and Defendant had a

conversation concerning the juvenile’s “sexual training.” Following the

conversation and at the direction of Defendant, McKee showed the daughter into a

bedroom, handcuffed her, beat her, and performed oral sex on her while Defendant

1 Although the trial judge ordered a pre-sentence investigation, the report is not included in the record on appeal. watched. Defendant immediately thereafter left her daughter at the house with

McKee so she could go get her paycheck. Upon her return, Defendant asked her

daughter “was she okay” because she looked as if she had been crying. When

McKee told Defendant he had just vaginally raped her daughter, Defendant’s only

response was to tell her daughter to get in a tub of hot water.

Defendant’s daughter was brought into Defendant’s bedroom the next night,

where her daughter made a recording of McKee saying “that the more she did it the

better it would get, the less it would hurt.” Defendant saw McKee engage in

sexual intercourse with her daughter. Defendant and McKee got in bed with

Defendant’s daughter. McKee used a vibrator on Defendant’s daughter and then

directed her to use it on herself while Defendant performed oral sex on him. While

Defendant and McKee then had sexual intercourse, McKee groped her daughter.

Another vaginal rape of Defendant’s daughter occurred in her presence, and

McKee again made her perform oral sex on him, also in Defendant’s presence.

When Defendant’s daughter complained of hurting and being tired the next

morning, Defendant gave her a morphine pill. Defendant’s daughter was able to

escape the house after Defendant and McKee left.

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 that

there is one error patent concerning Defendant’s sentence for forcible rape.

As a principal to forcible rape, Defendant was sentenced to serve forty years

at hard labor. Louisiana Revised Statutes 14:42.1 requires at least two years of the

sentence to be served without the benefit of parole, probation, or suspension of

sentence. The trial court failed to impose any portion of this sentence without

2 benefits. Accordingly, Defendant’s sentence is illegally lenient. See State v.

Sanmiguel, 626 So.2d 957 (La.App. 3 Cir. 1993); State v. Jones, 02-1176 (La.App.

3 Cir. 2/5/03), 839 So.2d 439, writ denied, 03-886 (La. 11/7/03), 857 So.2d 516.

However, we need take no action, as the illegally lenient sentence was not raised as

an error. See State v. Thacker, 15-745 (La.App. 3 Cir. 3/9/16), 187 So.3d 552.

ASSIGNMENT OF ERROR ONE

Defendant contends her maximum sentences of a total of forty-five years are

excessive under these circumstances. She claims that she was a nurse, a first

felony offender, and under the influence of drugs and alcohol at the time of the

offenses. Defendant argues she played a limited part in the rape of her daughter,

and she “acted under strong provocation and fear.” She alleges that she is not an

egregious offender to whom maximum sentences apply.

At the sentencing hearing, the trial court did not consider the lack of a

criminal history to be a mitigating factor because Defendant’s conduct caused

serious harm, and she must have contemplated that it would. The trial court

believed “the repeated offenses of letting her child be handcuffed, be orally raped,

be vaginally raped” indicated such incidents would “likely occur again should

[Defendant] not be placed in the custody of the State of Louisiana.” After a

lengthy recitation of the horrendous acts committed by Defendant and McKee, the

trial court found no substantial grounds existed to either justify or excuse

Defendant’s behavior. The trial court then found a lesser sentence would deprecate

the seriousness of the crimes.

This court has previously discussed the standard for reviewing excessive

sentence claims:

3 [Louisiana Constitution Article 1], ' 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. 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. The relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate.

State v. Barling, 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d

1035, 1042 (citations omitted), writ denied, 01-838 (La. 2/1/02), 808 So.2d 331.

The sentencing range for the crime of forcible rape is from five to forty

years at hard labor, with at least two years of the sentence without benefit of

probation, parole, or suspension of sentence. La.R.S. 14:42.1. One convicted of

being an accessory after the fact may be sentenced to up to five years with or

without hard labor and/or a fine of up to $500. La.R.S. 14:25.

Defendant received the maximum sentences for both crimes. Even though

her sentences are allowed by statute, they may still be unconstitutionally excessive.

In deciding whether a sentence is shocking or makes no meaningful contribution to acceptable penal goals, an appellate court may consider several factors including the nature of the offense, the circumstances of the offender, the legislative purpose behind the punishment and a comparison of the sentences imposed for similar crimes. State v. Smith, 99-0606 (La. 7/6/00); 766 So.2d 501. While a comparison of sentences imposed for similar crimes may provide some insight, “it is well settled that sentences must be individualized to the particular offender and to the particular offense committed.” State v. Batiste, 594 So.2d 1 (La.App. 1 Cir. 1991). Additionally, it is within the purview of the trial court to particularize the sentence because the trial judge “remains in the best position to assess the aggravating and mitigating circumstances presented by each case.” State v. Cook, 95-2784 (La. 5/31/96); 674 So.2d 957, 958

4 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. State v. Cook, 95-2784 (La.

5/31/96); 674 So.2d 957, 958

As noted in State v. Smith, 433 So.2d 688, 698 (La.1983) (citations omitted), “[w]hile the trial judge need not articulate every aggravating and mitigating circumstance outlined in art. 894.1, the record must reflect that he adequately considered these guidelines in particularizing the sentence to the defendant.” This does not mean, however, that the trial judge’s failure to comply with Article 894.1 renders a sentence invalid, as the goal of this article is articulation of the factual basis for a sentence, “not rigid or mechanical compliance with its provisions.” State v. Lanclos, 419 So.2d 475, 478 (La.1982). Accordingly, if “the record clearly shows an adequate factual basis for the sentence imposed[,] . . . remand is unnecessary, even where there has not been full compliance with Article 894.1.” Id.

State v. H.A., Sr., 10-95, pp. 25-26 (La.App. 3 Cir. 10/6/10), 47 So.3d 34, 50

(alteration in original).

Defendant argues on appeal that she was afraid of McKee, who exerted great

control over her and had threatened her life. Nevertheless, Defendant made no

attempt to separate herself and/or her daughter from McKee. She, a mother who

held a position of authority over her daughter, was present for most of the acts and

actively participated in some of them. She basically furnished her daughter to

McKee. She made no attempt to shelter her daughter from this rapist, and she

allowed him to use her daughter in any way and at any time he chose over a two to

three-day period until her daughter was able to escape. We find that the facts show

these acts could not have occurred absent Defendant’s approval and involvement.

Defendant argues mitigating factors make her maximum sentences

excessive: she was not the actual perpetrator of the crimes; she was under the

influence of drugs and alcohol; and she was threatened by Mckee. She contends

nothing in the record suggests she would commit another crime during a period of

5 suspended sentence or probation, contrary to the trial court’s findings. Defendant

believes a sentence in the lower range for her crimes is appropriate.

In support of her argument, Defendant cites State v. Fontenot, 09-1044

(La.App. 3 Cir. 5/12/10), 38 So.3d 1122, writ denied, 10-1758 (La. 8/19/11), 67

So.3d 1257. The Fontenot defendant alleged the trial court failed to consider the

mitigating factors of his age (thirty-four), lack of criminal history, and brain injury.

Originally charged with aggravated rape, he pled guilty to the forcible rape of an

eighty-five-year-old woman. This court considered him “the worst of offenders,”

noted the great benefit he received by pleading to a reduced charge, and affirmed

his maximum sentence. Id. at 1127.

Defendant here considers the defendant in Fontenot to be a much worse

offender than she. We find that Fontenot, contrary to Defendant’s argument,

actually supports the trial court’s imposition of the maximum sentences here.

Defendant’s actions indicated she not only condoned what McKee did, but she

actually helped him carry out his evil deeds. Even though Defendant now

proclaims she loves her daughter and would never let anything happen to her, she

did in fact allow horrible things to happen to her. Defendant blames her acts on

her voluntary intoxication, but she shows nothing to indicate she was intoxicated

during the entirety of the offenses committed against her child over a two to three-

day period, acts which she participated in and condoned.

In Fontenot, this court found the record supported the defendant’s guilt on

the original, greater charge of aggravated rape and considered that fact to support

the maximum sentence in the lesser charge to which he pled. Here, we find that

the record supports Defendant’s guilt in the additional four separate counts of

being a principal to aggravated crime against nature. Defendant received

6 substantial benefit from her plea bargain as these charges were dismissed. Each of

those counts exposed her to an additional sentence of five to twenty years, with or

without hard labor, and/or a fine of up to $50,000, for a total additional sentencing

exposure of twenty to eighty years of imprisonment and/or a fine of up to

$200,000.

The trial court specifically considered some of the factors of La.Code

Crim.P. art. 894.1, and the record supports an adequate factual basis for the

maximum sentences. The sentences imposed are not disproportionate to the crimes

Defendant committed and do not shock the sense of justice. Accordingly, we find

that the trial court did not abuse its sentencing discretion in imposing maximum

sentences in this case. See also State v. Childs, 466 So.2d 1363 (La.App. 3 Cir.

1985); State v. Downs, 30,348 (La. App. 2 Cir. 1/21/98), 705 So.2d 1277.

ASSIGNMENT OF ERROR TWO

Defendant also argues the trial court erred by imposing consecutive

sentences because her crimes constituted part of a common scheme or plan. She

alleges the events were all related to McKee’s criminal acts of abuse against her

daughter. Thus, consecutive sentences are not warranted.

Louisiana Code of Criminal Procedure Article 883 provides for concurrent

sentences when the offenses for which a defendant is convicted constitute parts of

“a common scheme or plan,” unless the trial court “expressly directs that some or

all be served consecutively.” Here, the trial court gave that express direction for

consecutive sentences. The trial court is not required to order the sentences to be

served concurrently even when multiple offenses are part of a common scheme or

plan. See State v. Burns, 44,937 (La.App. 2 Cir. 2/2/10), 32 So.3d 261; State v.

Touchet, 06-281 (La.App. 3 Cir. 5/31/06), 931 So.2d 1264.

7 Here, Defendant’s daughter was subjected to oral and vaginal rapes on

Friday evening. The next night, she was vaginally raped again and made to

perform oral sex on McKee. She was further assaulted that night. These were

separate criminal acts on separate days and do not arise out of the same transaction

or occurrence. Additionally, even if part of a common scheme or plan, the trial

court still had the discretion to impose the sentences consecutively, and we find no

abuse of that discretion.

This court should consider “the offender’s past criminality, violence in the

charged crimes, or the risk he or she poses to the general safety of the community,”

when reviewing the imposition of consecutive sentences. State v. Cornejo-Garcia,

11-619, p. 10 (La.App. 5 Cir. 1/24/12), 90 So.3d 458, 465.

In this case, the trial court recognized Defendant’s lack of criminal history,

but found it was not a mitigating factor because of the serious acts of violence and

harm her behavior caused her daughter. It found Defendant “did not act under any

type of provocation from anyone.” Nothing justified or excused her criminal

conduct. The trial court also indicated its belief that Defendant was “not likely to

respond affirmatively to probationary treatment[,] and imprisonment would not be

an excessive hardship on herself nor her dependents.” The trial court believed

Defendant showed an undue risk that she would commit another crime during any

period of suspended sentence or probation, and lesser sentences would deprecate

the seriousness of her offenses. Defendant’s daughter requested the sentences

recommended by the State.

We find that the trial court had the discretion to impose consecutive

sentences and did not abuse that discretion.

8 DISPOSITION

Defendant’s convictions and sentences as imposed by the trial court are

affirmed.

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