State of Louisiana v. Darrell Allen

• Court: Louisiana Court of Appeal
• Decided: October 25, 2023
• Docket: 55,302-KA
• Status: Published

Opinion

Judgment rendered October 25, 2023. Application for rehearing may be filed within the delay allowed by Art. 922, La. C. Cr. P.

No. 55,302-KA

COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA

*****

STATE OF LOUISIANA Appellee

versus

DARRELL ALLEN Appellant

Appealed from the Forty-Second Judicial District Court for the Parish of DeSoto, Louisiana Trial Court No. 22-CR-32687

Honorable Nicholas E. Gasper, Judge

LOUISIANA APPELLATE PROJECT Counsel for Appellant By: Douglas Lee Harville

CHARLES B. ADAMS Counsel for Appellee District Attorney

RHYS E. BURGESS NANCY F. BERGER-SCHNEIDER Assistant District Attorneys

Before STONE, ROBINSON, and ELLENDER, JJ.

STONE, J., dissents in part. ELLENDER, J.

Darrell Allen appeals his four consecutive five-year hard labor

sentences following guilty pleas to three counts of obscenity and one count

of obscenity in the presence of a minor, La. R.S. 14:106(A)(1), (G)(3), and

(G)(4). For the reasons expressed, we affirm.

FACTS

Over a two-month period in April and May 2022, Darrell Allen

intentionally exposed himself to a local school bus carrying young children

as it passed by his house in Pelican, La. After multiple occurrences, the bus

driver reported these incidents to the DeSoto Parish Sherriff’s Office

(“DPSO”). The driver told officers Allen would stand naked in his front

yard with his genitals exposed and wave at the children as the bus passed by.

The driver further reported Allen would intentionally try to draw the

attention of the children on board, whose ages ranged from kindergarten to

10th grade, and sometimes masturbated in view of the bus.

On May 24, 2022, the DPSO met with three postal employees who

also complained of Allen exposing himself to them. All three employees,

one of whom passed Allen’s house on a daily basis, informed the DPSO

Allen would stand in his front yard with his genitals exposed and, as they

passed by, would wave and, at times, masturbate in front of them.

After receiving these reports, four DPSO deputies decided to ride the

school bus past Allen’s house. On May 26, 2022, as the bus with the

deputies drove by, Allen stood naked outside his house and waved at the

bus. The officers made four separate passes in front of Allen’s house and,

on one of the trips, Allen was masturbating. After these observations, a

warrant was obtained for Allen’s arrest. Following his arrest, Allen was charged by bill of information with

three counts of obscenity – third offense, La. R.S. 14:106(A)(1) and (G)(3),

and one count of obscenity in the presence of a minor, La. R.S. 14:106(A)(1)

and (G)(4). On July 19, 2022, Allen pled guilty to all four charges. The trial

court conducted a thorough Boykin examination of Allen and, after

accepting his guilty pleas, ordered a presentence investigation report (“PSI”)

be prepared prior to sentencing.

SENTENCING

On September 14, 2022, Allen was sentenced to four consecutive five-

year hard labor sentences, the maximum for each offense. The sentence for

obscenity in the presence of a minor was imposed without benefits as

required by La. R.S. 14:106(G)(4).

At sentencing, the trial court first outlined the findings in the PSI and

recounted the facts surrounding Allen’s multiple offenses. Next, the trial

court articulated Allen’s entire criminal history, which consisted of 20

arrests and 17 guilty pleas. The trial court specifically referenced Allen’s

numerous felony convictions: (1) unauthorized entry of an inhabited

dwelling, (2) unauthorized entry of a business, (3) felony theft, (4) resisting

an officer by force or violence, (5) two counts of obscenity, and (6) Allen’s

current convictions of obscenity and obscenity in the presence of a minor.

The trial court also noted Allen had been arrested three times for obscenity

since August of 2020. The trial court then stated its concern that Allen

exposed himself to a bus full of young children. Lastly, the trial court

articulated the La. C. Cr. P. art. 894.1 factors it had taken into account in

sentencing Allen, specifically its consideration of sections A(1), A(2), and

A(3) of the article. 2 When imposing these sentences consecutively, the trial court

concluded Allen’s offenses were not part of the same act or occurrence and

not part of a common scheme. The trial court requested mental health

treatment be made available to Allen and advised him to take full advantage

of that treatment. Following sentencing, Allen filed this motion to appeal

his sentence. Allen did not make an oral motion to reconsider sentence, nor

did he file a written motion to reconsider.

DISCUSSION

In his sole assignment of error, Allen argues his 20-year total

sentence, the maximum allowed for his four convictions, is excessive given

the circumstances. Allen, who was 42 years old at the time of these

offenses, argues he had been diagnosed with bipolar disorder and

schizophrenia, and had ceased taking his medication. Allen also submits he

is completely blind in his left eye, with limited vision in his right eye. Allen

maintains his sentences are excessive because the trial court failed to balance

the seriousness of his offenses with the impact his mental illness had on his

conduct.

When a defendant fails to timely file a motion to reconsider sentence,

the appellate court’s review of the sentence is limited to a bare claim of

constitutional excessiveness. State v. Benson, 53,578 (La. App. 2 Cir.

11/10/2020), 305 So. 3d 135. Here, Allen did not make an oral request to

reconsider sentence at the sentencing hearing, nor did he file a written

motion. Therefore, he did not preserve whether the trial court complied with

La. C. Cr. P. art. 894.1, and thus, our review is limited to whether or not

Allen’s sentence is constitutionally excessive. See State v. Dickerson,

55,088 (La. App. 2 Cir. 6/28/23) 367 So. 3d 958; State v. Cooksey, 53,660 3 (La. App. 2 Cir. 5/26/21), 316 So. 3d 1284, writ denied, 21-00901 (La.

10/12/21), 325 So. 3d 1074. A sentence violates La. Const. art. I, § 20, if it

is grossly out of proportion to the severity of the crime or nothing more than

a purposelessness and needless infliction of pain and suffering. State v.

Trotter, 54,496 (La. App. 2 Cir. 6/29/22), 342 So. 3d 1116; State v. Dorthey,

623 So. 2d 1276 (La. 1993). 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. As a general rule, maximum or near

maximum sentences are reserved for the worst offenders and the worst

offenses. State v. Cozzetto, 07-2031 (La. 2/15/08), 974 So. 2d 665; State v.

Gibson, 54,400 (La. App. 2 Cir. 5/25/22), 338 So. 3d 1260, writ denied, 22-

00978 (La. 3/7/23), 356 So. 3d 1053.

The trial court has wide discretion in the imposition of sentences

within the statutory limits and such sentences should not be set aside as

excessive in the absence of a manifest abuse of that discretion. State v.

Williams, 03-3514 (La. 12/13/04), 893 So. 2d 7; State v. Trotter, supra. A

trial judge 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. Trotter, supra; State v. Bell, 53,712 (La. App. 2 Cir.

1/13/21), 310 So. 3d 307. 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. Trotter, supra; State v. Bell, supra.

Allen was convicted of three counts of obscenity and one count of

obscenity in the presence of a minor. Obscenity is defined in La. R.S.

14:106 as: 4 A. [T]he intentional:

(1) Exposure of the genitals, pubic hair, anus, vulva, or female breast nipples in any public place or place open to the public view, or in any prison or jail, with the intent of arousing sexual desire or which appeals to prurient interest or is patently offensive.

La. R.S. 14:106 (G)(3) and (4) provide the sentencing guidelines applicable

to this case:

(3) Except as provided in Paragraph (5) of this Subsection, on a third or subsequent conviction, the offender shall be imprisoned with or without hard labor for not less than two years nor more than five years, and in addition may be fined not less than five thousand dollars nor more than ten thousand dollars.

(4) When a violation of Paragraph (1), (2), or (3) of Subsection A of this Section is with or in the presence of an unmarried person under the age of seventeen years, the offender shall be fined not more than ten thousand dollars and shall be imprisoned, with or without hard labor, for not less than two years nor more than five years, without benefit of parole, probation, or suspension of sentence.

Following his convictions, Allen was sentenced to the maximum of

five years at hard labor for each of his four convictions, and the conviction

involving minors was imposed without benefits. The trial court specifically

designated each sentence run consecutively with the other (for a total

sentence of 20 years) and provided numerous factors it considered when

sentencing Allen. First, the trial court noted its “biggest issue” was Allen

exposing himself to minors. The trial court stated it was particularly

concerned that Allen chose to expose himself to a bus full of children on

multiple occasions. Further, the trial court stated no parents should send

their child to school and have them subjected to this kind of behavior or

have to explain this type of behavior to them. Next, the trial court noted

Allen did everything he could to make sure people observed his obscene

5 behavior, and that one of the witness statements disclosed Allen did not

expose himself to anyone when his mother was present. The trial court

concluded this showed Allen knew that what he was doing was wrong since

he did not engage in the obscene conduct in front of his mother. Lastly, the

trial court stated multiple people were subjected to Allen’s behavior and, as

such, he could have faced many more counts of obscenity and obscenity in

the presence of a minor. Following this reasoning, the trial court also

provided its considerations regarding La. C. Cr. P. art. 894.1.1

As indicated, Allen’s sentences were imposed consecutively.

Pursuant to La. C. Cr. P. art. 883, when two or more convictions arise from

the same act or transaction, or constitute parts of a common scheme or plan,

the terms of imprisonment shall be served concurrently unless the court

expressly directs that some or all be served consecutively. However,

concurrent sentences arising out of a single course of conduct are not

mandatory, and consecutive sentences are not necessarily excessive. State v.

Green, 54,955 (La. App. 2 Cir. 4/5/23), 361 So. 3d 546; State v. Dale,

53,736 (La. App. 2 Cir. 1/13/21), 309 So. 3d 1031. It is within the trial

court’s discretion to make sentences consecutive rather than concurrent.

State v. Green, supra; State v. Dale, supra. The trial court’s failure to

articulate specific reasons for consecutive sentences will not require a

remand if the record provides an adequate basis to support separate

sentences. State v. Green, supra; State v. Williams, 52,052 (La. App. 2 Cir.

6/27/18), 250 So. 3d 1200.

1 While this Court’s review is limited to constitutional excessiveness due to the lack of a motion to reconsider sentence, we note the trial court thoroughly complied with Art. 894.1, including taking Allen’s mental health into consideration as reflected by the trial court’s request that mental health treatment be made available to him. 6 We find Allen’s maximum sentences are not excessive in light of his

extensive criminal record, including repeated engagement in similar crimes,

and Allen’s intentional exposure to numerous minor children. The record

reflects Allen intentionally and repeatedly exposed himself to a bus full of

minor children over the course of a two-month period. Allen purposefully

attempted to gain the attention of young children as their bus passed and, at

times, would masturbate in front of them. Additionally, Allen exposed

himself multiple times to more than one postal employee, who likewise

informed deputies Allen intentionally tried to gain their attention by waving,

exposing his genitals, and masturbating in front of them. Further, Allen

continued this lewd conduct when multiple deputies passed by his house on

a school bus.

As the record clearly shows, with each person or group who passed

by, Allen intentionally tried to gain their attention by waving and revealing

himself to them. At the guilty plea hearing, in an apparent attempt to

mitigate the consequences of his conduct, Allen informed the court, “I’m

blind in my left eye” and “going blind in my right eye.” However, as

evidenced by his demonstrative, attention-seeking conduct, Allen clearly had

sufficient vision to spot these individuals, including buses full of children, a

bus of officers, and numerous postal workers. As such, it is apparent Allen’s

eye condition had little effect on his ability to see and recognize someone

passing by his home, and this condition does not diminish his culpability for

these vulgar acts.

Allen’s obscene conduct, coupled with his repeated arrests and

convictions for similar behavior, more than justifies the 20-year total

sentence imposed. The record before us evidences Allen’s conduct has not 7 changed despite his previous convictions and imprisonment. Further, as

emphasized by this court in Green, supra, and Dale, supra, it was well

within the trial court’s discretion to impose these sentences consecutively.

Additionally, the trial court provided numerous factors and

considerations it contemplated while imposing Allen’s sentences. The trial

court also properly pointed out Allen’s four charges did not arise from one

course of criminal conduct. As evidenced by the record, Allen repeatedly

exposed himself to a host of adults and children over the course of two

months. Allen could have easily been charged with many more additional

counts of obscenity and obscenity in the presence of a minor. Further, Allen

has a long criminal history with six prior felony convictions, including two

for obscenity, the same crime for which he has been convicted of here. As

such, Allen could have been adjudicated a habitual felony offender had the

prosecution chosen to do so, and would have faced far greater sentencing

exposure, possibly up to life in prison as he has more than four prior felony

convictions, La. R.S. 15:529.1(A)(4)(a).

Allen’s habitual, explicit, and obscene conduct, as well as his

extensive criminal history, provide more than an adequate basis to support

consecutive, maximum sentences. We find the four consecutive five-year

hard labor sentences are not constitutionally excessive, do not shock the

sense of justice, and are not a needless infliction of pain and suffering.

Allen’s assignment of error lacks merit.

CONCLUSION

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

AFFIRMED.

8 STONE, J., dissents in part.

I concur with the majority that Mr. Allen’s convictions on three counts

of obscenity and one count of obscenity in the presence of a minor be

Mr. Allen was sentenced to a combined term of 20 years

imprisonment at hard labor (the statutory maximum combined sentence) for

the four convictions to which he pled guilty.

No person, let alone, a child should ever be subjected to this kind of

moral degeneracy. Mr. Allen’s offenses while serious, despicable and

disturbing on many levels, nonetheless require that the judiciary consider the

punitive and rehabilitative goals of our penal system when imposing lengthy

sentences on persons with diagnosed bipolar schizophrenia.

The record reflects that Mr. Allen’s offenses, at least in part, arise

from his untreated mental illness; and therefore, Mr. Allen cannot be

considered the worst of the worst offenders for low-grade felonies like

obscenity. In the instant case, a sentence totaling twenty years of

imprisonment at hard labor for a 42-year old blind man with untreated

mental health issues is grossly disproportionate to the severity of the crime

and nothing more than a purposeless and needless infliction of pain and

suffering, and therefore, is constitutionally excessive.

I recognize that incarceration and the maximum sentence on each

count of obscenity for Mr. Allen may be appropriate. However, in the

absence of physical violence or threats and further considering his diagnosis,

I believe a modification of the consecutive nature of the sentences is

merited.

1 Mr. Allen’s convictions should be affirmed and his sentences should be

ordered to run concurrently.

I, therefore, respectfully dissent in part.