State of Louisiana v. Christopher Fisk

• Court: Louisiana Court of Appeal
• Decided: March 3, 2021
• Docket: 53,796-KA
• Status: Published

Opinion

Judgment rendered March 3, 2021. Application for rehearing may be filed within the delay allowed by Art. 922, La. C. Cr. P.

No. 53,796-KA

COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA

*****

STATE OF LOUISIANA Appellee

versus

CHRISTOPHER FISK Appellant

Appealed from the Forty-Second Judicial District Court for the Parish of DeSoto, Louisiana Trial Court No. 19-CR-30192

Honorable Amy Burford McCartney, Judge

LOUISIANA APPELLATE PROJECT Counsel for Appellant By: Peggy J. Sullivan

CHARLES B. ADAMS Counsel for Appellee District Attorney

GEORGE WINSTON III Assistant District Attorney

Before GARRETT, THOMPSON, and BODDIE (Ad Hoc), JJ. GARRETT, J.

The defendant, Christopher Fisk, pled guilty to one count of accessory

after the fact to simple burglary of an inhabited dwelling and one count of

accessory after the fact to simple burglary. He was sentenced to serve five

years at hard labor on each count, with the sentences to be served

concurrently. Fisk appeals his sentences as unconstitutionally excessive.

For the following reasons, we affirm the convictions and sentences.

FACTS

On April 19, 2019, Fisk assisted another man who burglarized a house

and barn. Fisk parked near the area and helped the man carry stolen items

away from the property. Fisk was charged by bill of information with one

count of accessory after the fact to simple burglary of an inhabited dwelling

and one count of accessory after the fact to simple burglary. In January

2020, he entered pleas of guilty as charged to both offenses. The state

agreed not to file a habitual offender bill, but there was no agreement on

sentencing. In April 2020, he was sentenced to serve five years at hard labor

on each count, with the sentences to be served concurrently. Fisk timely

filed a motion to reconsider sentence, arguing that the maximum sentences

were excessive. He claimed that he aided in the identification and arrest of

the individual who committed the burglaries, no gun or violence was used in

the offenses, the residents were not at home when the burglaries were

committed, he was on drugs when he committed the offenses, and he pled

guilty to avoid the necessity of a trial. The motion was denied by the trial

court without a hearing. Fisk now appeals his sentences, arguing that the

imposition of the maximum sentences of incarceration was

unconstitutionally excessive, given the circumstances of the case. LEGAL PRINCIPLES

An appellate court utilizes a two-pronged test in reviewing a sentence

for excessiveness. First, the record must show that the trial court took

cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial judge

is not required to list every aggravating or mitigating circumstance so long

as the record reflects that he adequately considered the guidelines of the

article. State v. Smith, 433 So. 2d 688 (La. 1983); State v. West, 53,526 (La.

App. 2 Cir. 6/24/20), 297 So. 3d 1081; State v. DeBerry, 50,501 (La. App. 2

Cir. 4/13/16), 194 So. 3d 657, writ denied, 16-0959 (La. 5/1/17), 219 So. 3d

332.

The articulation of the factual basis for a sentence is the goal of La.

C. Cr. P. art. 894.1, not rigid or mechanical compliance with its provisions.

Where the record clearly shows an adequate factual basis for the sentence

imposed, remand is unnecessary even where there has not been full

compliance with La. C. Cr. P. art. 894.1. State v. Lanclos, 419 So. 2d 475

(La. 1982); State v. Lee, 53,461 (La. App. 2 Cir. 4/22/20), 293 So. 3d 1270,

writ denied, 20-00582 (La. 10/14/20), 302 So. 3d 1113; State v. Payne,

52,310 (La. App. 2 Cir. 1/16/19), 262 So. 3d 498; State v. DeBerry, supra.

The important elements which should be considered are the defendant’s

personal history (age, family ties, marital status, health, employment record),

prior criminal record, seriousness of the offense, and the likelihood of

rehabilitation. State v. Jones, 398 So. 2d 1049 (La. 1981); State v. DeBerry,

supra.

Where a defendant has pled guilty to an offense which does not

adequately describe his conduct or has received a significant reduction in

potential exposure to confinement through a plea bargain, the trial court has 2 great discretion in imposing even the maximum sentence possible for the

pled offense. State v. Robinson, 49,825 (La. App. 2 Cir. 5/20/15), 166 So.

3d 403; State v. Reese, 49,849 (La. App. 2 Cir. 5/20/15), 166 So. 3d 1175,

writ denied, 15-1236 (La. 6/3/16), 192 So. 3d 760; State v. Wooten, 49,710

(La. App. 2 Cir. 4/15/15), 164 So. 3d 937; State v. Key, 46,119 (La. App. 2

Cir. 3/2/11), 58 So. 3d 578, writ denied, 11-0594 (La. 10/7/11), 71 So. 3d

310; State v. Boudreaux, 44,502 (La. App. 2 Cir. 9/23/09), 21 So. 3d 1022.

See also State v. Washington, 52,518 (La. App. 2 Cir. 2/27/19), 266 So. 3d

430, writ denied, 19-00776 (La. 10/21/19), 280 So. 3d 1174. There is no

requirement that specific matters be given any particular weight at

sentencing. State v. DeBerry, supra; State v. Shumaker, 41,547 (La. App. 2

Cir. 12/13/06), 945 So. 2d 277, writ denied, 07-0144 (La. 9/28/07), 964 So.

2d 351.

Second, the court must determine whether the sentence is

constitutionally excessive. A sentence violates La. Const. art. I, § 20, if it is

grossly out of proportion to the seriousness of the offense or nothing more

than a purposeless and needless infliction of pain and suffering. State v.

Dorthey, 623 So. 2d 1276 (La. 1993); State v. Bonanno, 384 So. 2d 355 (La.

1980). A sentence is considered grossly disproportionate if, when the crime

and punishment are viewed in light of the harm done to society, it shocks the

sense of justice. State v. Weaver, 01-0467 (La. 1/15/02), 805 So. 2d 166;

State v. West, supra; State v. Meadows, 51,843 (La. App. 2 Cir. 1/10/18),

246 So. 3d 639, writ denied, 18-0259 (La. 10/29/18), 254 So. 3d 1208.

The sentencing court has wide discretion in imposing a sentence

within statutory limits, and such a sentence will not be set aside as excessive

in the absence of manifest abuse of that discretion. State v. Williams, 03- 3 3514 (La. 12/13/04), 893 So. 2d 7; State v. Duncan, 47,697 (La. App. 2 Cir.

1/16/13), 109 So. 3d 921, writ denied, 13-0324 (La. 9/13/13), 120 So. 3d

280.

The trial court is in the best position to consider the aggravating and

mitigating circumstances of a particular case and, therefore, is given broad

discretion in sentencing. 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);

State v. West, supra; State v. Valadez, 52,162 (La. App. 2 Cir. 8/15/18), 251

So. 3d 1273; State v. Jackson, 51,575 (La. App. 2 Cir. 9/27/17), 244 So. 3d

764. On review, an appellate court does not determine whether another

sentence may have been more appropriate, but whether the trial court abused

its discretion. State v. Tubbs, 52,417 (La. App. 2 Cir. 11/20/19), 285 So. 3d

536, writs denied, 20-00307 (La. 7/31/20), 300 So. 3d 404, 20-00307 (La.

9/8/20), 301 So. 3d 30; State v. Kelly, 52,731 (La. App. 2 Cir. 6/26/19), 277

So. 3d 855, writ denied, 19-01845 (La. 6/3/20), 296 So. 3d 1071.

Simple burglary of an inhabited dwelling has a sentencing range of

imprisonment at hard labor for not less than one year nor more than 12

years. La. R.S. 14:62.2. Simple burglary has a sentencing range of a fine of

not more than $2,000, imprisonment with or without hard labor for not more

than 12 years, or both. La. R.S. 14:62. Whoever becomes an accessory after

the fact shall be fined not more than $500, or imprisoned, with or without

hard labor, for not more than five years, or both; provided that in no case

shall the punishment be greater than one-half of the maximum provided by

law for a principal offender. La. R.S. 14:25.

4 DISCUSSION

On appeal, Fisk argues that the imposition of maximum concurrent

sentences is unconstitutionally excessive under the facts of this case. He

points out that he has no convictions for crimes of violence, he was eligible

for probation, and he needs drug abuse treatment that could have been

ordered as part of a probated sentence. He urges that he is a family man in a

long-term relationship, has two children, and has a good work history.

Under the facts presented, we find that the sentences imposed are not

unconstitutionally excessive.

The record shows that the trial court adequately considered the

sentencing criteria set forth in La. C. Cr. P. art. 894.1 in imposing these

sentences upon Fisk. A sentencing hearing was held in this matter on

April 9, 2020, by video conference, with the consent of all parties. The trial

court reviewed materials provided by defense counsel that were not filed

into the record. The trial court also considered a presentence investigation

(“PSI”) report and a letter submitted by the defendant. The trial court noted

that Fisk was 41 years old at the time the offenses were committed and was

42 years old at the time of sentencing. The trial court noted that Fisk had

been adopted at the age of ten months and had a good relationship with his

adoptive parents and sister, all of whom were deceased. Fisk had contacted

his biological mother, but did not have a good relationship with her. Fisk

was single, but had been in a relationship with his girlfriend for 19 years.

They have two children together, aged 19 and 17.

Fisk obtained a GED and was a certified welder. He had worked as a

mechanic on a pipeline for 15 years. Fisk had a long history of drug abuse

5 beginning when he was a teenager. In 2016, he attended a 25-day drug

program at the Red River Treatment Center in Pineville, Louisiana.

The trial court noted that Fisk had an extensive criminal history and

the present offenses were his third felony conviction. According to the trial

court, Fisk was arrested in March 2011 for resisting an officer and

unauthorized use of a credit card over $500. In connection with that arrest,

in May 2012, Fisk pled guilty to the charge of resisting an officer and was

sentenced to 15 days in the parish jail. In June 2013, he pled guilty to the

charge of unauthorized use of a credit card over $500 and was sentenced to

two years at hard labor. The sentence was suspended. He was placed on

three years’ supervised probation. He performed poorly on probation due to

multiple violations, including a failed drug screen and failure to meet

financial obligations. His probation was extended for two years due to

failure to pay restitution. On May 30, 2017, his probation was terminated

unsatisfactorily.

In April 2013, Fisk was arrested for contempt of court,

creation/operation of a clandestine laboratory for the manufacture of

controlled dangerous substances, intent to manufacture or distribute a

Schedule II controlled dangerous substance, and possession of a Schedule II

controlled dangerous substance. In connection with that arrest, Fisk pled

guilty in March 2014 to possession with intent to manufacture or distribute a

Schedule II controlled dangerous substance and possession of a Schedule II

controlled dangerous substance. He was sentenced to serve five years at

hard labor. The sentence was suspended and he was placed on five years’

supervised probation. Due to Fisk’s failure to adhere to the special

conditions of probation and his multiple violations of the Rapides Parish 6 Drug Court Program, his probation was terminated unsatisfactorily on

May 30, 2017.

The trial court observed that Fisk had numerous misdemeanor

convictions. In 1999, he pled guilty to having an expired license plate and

no driver’s license. He pled guilty in 2004 to speeding and reckless

operation of a vehicle. In 2011, he pled guilty to theft. He pled guilty to

domestic abuse battery in 2009, and, in 2017, he pled no contest to another

charge of domestic abuse battery. Fisk pled guilty to possession of drug

paraphernalia in 2018. He pled guilty to simple battery in 2019. The trial

court observed that Fisk had numerous other arrests that were nolle prossed,

dismissed, or not billed.

The trial court stated that it reviewed a letter from the defendant and

documents that were submitted by his counsel. The trial court noted the

sentence ranges for the offenses in this case. The court considered all the

information presented during the guilty plea, the PSI report, and the

sentencing guidelines of La. R.S. 14:894.1.

The trial court noted that lesser sentences than those imposed would

deprecate the seriousness of Fisk’s offenses. The trial court observed that, in

the past, Fisk performed poorly on probation, resulting in unsatisfactory

terminations. In light of those factors, the trial court sentenced Fisk to serve

five years at hard labor on both charges, to be served concurrently, with

credit for time served. The trial court noted that Fisk said he was using

methamphetamines on the day of the offenses and the court recommended

substance abuse treatment while Fisk is serving his sentences. Fisk was

properly informed of the delays for applying for post conviction relief.

7 We have reviewed the record in its entirety and find that the sentences

imposed by the trial court were not unconstitutionally excessive under the

facts of this case. The trial court considered Fisk’s personal history, noting

that he had a stable employment history and had maintained a relationship

with the mother of his children for many years. However, he also had a

significant criminal history, which included several instances of domestic

abuse battery. Fisk could have been charged as a third felony offender, but

the state agreed not to do so as part of the plea agreement. The PSI shows

that, although charged as an accessory after the fact to both simple burglary

of an inhabited dwelling and simple burglary, Fisk was an active participant

in these burglaries. Therefore, even though the maximum sentences of

incarceration were imposed, Fisk received the benefit of a favorable plea

agreement and was charged with lesser offenses than those actually

committed.

Fisk argues that the trial court erred in failing to suspend his sentence

and place him on probation. He had been placed on supervised probation

twice for prior offenses and, in both instances, he failed to satisfactorily

complete probation. At oral argument, counsel for Fisk argued that his

failures were attributable to “being poor.” We note that Fisk purports to

have maintained employment for 15 years. The record shows that his

probation difficulties were not only attributable to failure to pay fines and

restitution, but also to failed drug screens, failure to adhere to special

conditions of probation, and multiple violations of the Rapides Parish Drug

Court Program.

These circumstances demonstrate that there is an undue risk that Fisk

would commit another crime during a period of a suspended sentence or 8 probation. Also, given Fisk’s long history of substance abuse and his failure

to respond favorably to previous periods of probation, he is in need of

correctional treatment or a custodial environment that can be most

effectively provided by his commitment to an institution. As stated by the

trial court, lesser sentences than those imposed would deprecate the

seriousness of the offenses.

Fisk’s sentences are not grossly out of proportion to the seriousness of

the offenses and are not needless infliction of pain and suffering. They are

not shocking to the conscience. The sentences were tailored to the offender

and the offenses. The trial court did not abuse its discretion in imposing the

maximum sentences in this case.

CONCLUSION

For the reasons stated above, Fisk’s convictions and sentences are

affirmed.