STATE OF LOUISIANA VERSUS WAHHAD HAZZIEZ AKA JOHNNY JOHNSON

• Court: Louisiana Court of Appeal
• Decided: November 26, 2008
• Docket: KA-0008-0434
• Status: Unknown

Opinion

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

08-434

VERSUS

WAHHAD HAZZIEZ a/k/a JOHNNY JOHNSON

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APPEAL FROM THE TWENTY-SEVENTH JUDICIAL DISTRICT COURT PARISH OF ST. LANDRY, NO. 01-K-2650-B HONORABLE ELLIS J. DAIGLE, DISTRICT JUDGE

JAMES T. GENOVESE JUDGE

Court composed of John D. Saunders, James T. Genovese, and Chris J. Roy, Sr.,* Judges.

AFFIRMED.

Edward K. Bauman Louisiana Appellate Project Post Office Box 1641 Lake Charles, Louisiana 70602 (337) 491-0570 COUNSEL FOR DEFENDANT/APPELLANT: Wahhad Hazziez a/k/a Johnny Johnson

Earl B. Taylor District Attorney – Twenty-Seventh Judicial District ADA Jennifer M. Ardoin Post Office Drawer 1968 Opelousas, Louisiana 70571-1968 (337) 948-0551 COUNSEL FOR APPELLEE: State of Louisiana _____________________ *Honorable Chris J. Roy, Sr., participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore. GENOVESE, Judge.

On February 27, 2002, the Defendant, Wahhad Hazziez a/k/a Johnny Johnson,

was indicted for indecent behavior with a juvenile under the age of seventeen, in

violation of La.R.S. 14:81. The Defendant entered an Alford1 plea of guilty to the

charge on February 14, 2008, and was sentenced that same day to four years at hard

labor with credit for time served from the date of his arrest, June 21, 2001. The

sentence was then suspended, and the Defendant was placed on active supervised

probation for three years, with general and special conditions of probation. On March

4, 2008, the Defendant’s sentence was amended to reflect that the conditions of active

supervised probation included compliance with the Sex Offender Act, La.R.S. 15:542,

et seq.

On March 14, 2008, the Defendant’s sentence was amended a second time

when the trial court was informed that the Defendant was classified as a third felony

offender and, therefore, ineligible for probation. Accordingly, the trial court removed

the probated portion of his sentence. The Defendant orally motioned the trial court

to reconsider his sentence, which was denied.

The Defendant is now before this court on appeal, asserting that his sentence

is excessive and was imposed without sufficient consideration of La.Code Crim.P. art.

894.1. For the reasons that follow, we affirm the Defendant’s sentence.

FACTS

The facts set forth in the record at the Defendant’s guilty plea indicate that the

Defendant, who was approximately fifty-six years of age at the time of the alleged

offense, touched the breast of a girl under the age of seventeen and placed his hand

1 An Alford plea is a guilty plea accompanied by a claim of innocence made pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).

1 on her thigh.

ASSIGNMENT OF ERROR

In his sole assignment of error, the Defendant argues that his sentence is

constitutionally excessive and was imposed without sufficient consideration of

La.Code Crim.P. art. 894.1. Counsel for the Defendant orally motioned to reconsider

the Defendant’s sentence following the second amendment to his sentence, but did

not set forth a specific ground in support of reducing the sentence. “Failure to . . .

include a specific ground upon which a motion to reconsider sentence may be based,

including a claim of excessiveness, shall preclude the state or the defendant from

raising an objection to the sentence or from urging any ground not raised in the

motion on appeal or review.” La.Code Crim.P. art. 881.1(E). Because defense

counsel clearly failed to argue that the trial court did not comply with La.Code

Crim.P. art. 894.1, the Defendant is relegated to having this court consider the bare

claim of excessiveness.

As stated by this court in State v. Whatley, 03-1275, pp. 5-6 (La.App. 3 Cir.

3/3/04), 867 So.2d 955, 958-59:

The Eighth Amendment to the United States Constitution and La. Const. art. I, § 20 prohibit the imposition of cruel or excessive punishment. “‘[T]he excessiveness of a sentence becomes a question of law reviewable under the appellate jurisdiction of this court.’” State v. Dorthey, 623 So.2d 1276, 1280 (La.1993) (quoting State v. Sepulvado, 367 So.2d 762, 764 (La.1979)). Still, the trial court is given wide discretion in imposing a sentence, and, absent a manifest abuse of that discretion, we will not deem as excessive a sentence imposed within statutory limits. State v. Pyke, 95-919 (La.App. 3 Cir. 3/6/96), 670 So.2d 713. However, “[m]aximum sentences are reserved for the most serious violations and the worst offenders.” State v. Farhood, 02-490, p. 11 (La.App. 5 Cir. 3/25/03), 844 So.2d 217, 225. The only relevant question for us to consider on review is not whether another sentence would be more appropriate, but whether the trial court abused its broad

2 discretion in sentencing a defendant. 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).

The fifth circuit, in [State v.] Lisotta, [98-646 (La.App. 5 Cir. 12/16/98),] 726 So.2d [57] at 58, stated that the reviewing court should consider three factors in reviewing the trial court’s sentencing discretion:

1. The nature of the crime,

2. The nature and background of the offender, and

3. The sentence imposed for similar crimes by the same court and other courts.

See also State v. Semien, 06-841 (La.App. 3 Cir. 1/31/07), 948 So.2d 1189, 1197, writ

denied, 07-448 (La. 10/12/07), 965 So.2d 397.

Also in Whatley, 867 So.2d at 959, this court stated that “[t]he offense of

indecent behavior with a juvenile is a heinous crime,” as “[i]t involves the use of

innocent children to satisfy the sexual desires of an adult and requires the commission

of a ‘lewd or lascivious act’ upon, or in the presence of the child. La.R.S. 14:81.” In

the instant case, the facts set forth at the Defendant’s guilty plea indicate that the

Defendant, who was approximately fifty-six years of age at the time of the offense,

touched the breast of a girl under the age of seventeen and placed his hand on her

thigh.2 The maximum sentence as provided in La.R.S. 14:81(H)(1) is seven years,

with or without hard labor. Thus, the Defendant received just over half of the

maximum possible sentence. The Defendant was also spared a possible fine of up to

$5,000.00.

As to the nature and background of the Defendant, his conviction was the result

of an Alford plea, and a pre-sentence investigation was not ordered. Thus, there are

2 The Defendant was sixty-three years old at the time of sentencing; the offense occurred on June 21, 2001.

3 only limited facts to review regarding same. At sentencing, the trial court stated that

it had considered the guidelines set forth by La.Code Crim.P. art. 894.1 and noted the

following factors it felt were pertinent in sentencing the Defendant. The trial court

observed that the Defendant was sixty-three years old and was classified as a second

felony offender, having been convicted of a felony in the early to mid 1970s. No

additional facts regarding the felony were provided. When the Defendant’s sentence

was amended the second time, the trial court noted that the Defendant was, in fact,

a third felony offender. However, no additional facts were provided, such as the

nature of the prior crimes or the dates the prior felonies were committed.

Lastly, we have reviewed the jurisprudence involving similar sentences for the

same crime. In State v. Robinson, 43,063 (La.App. 2 Cir. 2/13/08), 975 So.2d 853,

the trial court imposed a five-year hard labor sentence, suspended, upon the defendant

who grabbed the buttocks of a fourteen-year-old girl for a few moments and tried to

run his hands up her shirt before she could run away. There was evidence that he had

also engaged in similar groping behavior with another victim. On appeal, the court

noted that the defendant’s five-year hard labor sentence was at the upper end of the

sentencing range, but did not find that it shocked the sense of justice, especially in

light of the fact that the term of imprisonment was suspended in its entirety in favor

of two years supervised probation.

In State v. Whatley, 06-316 (La.App. 3 Cir. 11/2/06), 943 So.2d 601, writ

denied, 06-2826 (La. 8/31/07), 962 So.2d 424, this court affirmed the defendant’s

4 five-year hard labor sentence, eighteen months of which would be suspended.3 In the

defendant’s previous appeal, State v. Whatley, 03-1275 (La.App. 3 Cir. 3/3/04), 867

So.2d 955, this court made the following observations with regard to the factors

associated with the defendant’s sentence. First, the defendant touched the sides of the

sixteen-year-old victim’s breasts through her clothing and placed his hand into the

back of her pants. Also, at the time of the offense, the defendant was fifty-three years

of age and had led a crime-free life. Further, the evidence indicated that the

defendant used some physical restraint, but no physical violence. Lastly, when the

victim rebuffed the defendant’s advances, he did not attempt to press his physical and

timing advantage on his victim. This court concluded that, while the nature of the

defendant’s touching was inexcusable, it was not compatible with the degree of

touching associated with cases wherein the courts chose to render a maximum

sentence.

We have reviewed several cases addressing excessive sentencing for indecent

behavior with a juvenile. In State v. Logwood, 37,178 (La.App. 2 Cir. 5/14/03), 847

So.2d 115, the second circuit concluded that the defendant’s sentence of five years

on each of two counts of indecent behavior with a juvenile for fondling his niece’s

vaginal area was not excessive.

In State v. Delgado, 03-46 (La.App. 3 Cir. 4/30/03), 845 So.2d 581, the twenty-

one-year-old defendant and the thirteen-year-old victim had been drinking and were

3 We note that the Whatley matter was before this court on appeal on three separate occasions. In the first appeal, State v. Whatley, 03-1275, (La.App. 3 Cir. 3/3/04), 867 So.2d 955, we found that the maximum seven-year sentence was excessive, vacated and set aside the sentence, and remanded the case to the trial court for resentencing. In the second appeal, State v. Whatley, an unpublished opinion bearing docket number 04-724 (La.App. 3 Cir. 12/8/04), an error patent existed in that the trial court suspended a portion of the Defendant’s sentence without placing him on probation. As a result of same, the defendant’s sentence was vacated and set aside, and the case was remanded for resentencing.

5 found in bed, naked from the waist down, with the defendant lying on top of the

victim. This court found that a sentence of five years for indecent behavior with a

juvenile was not excessive in light of the fact that the defendant was a second felony

offender who benefitted from a plea bargain.

In State v. Jones, 34,863 (La.App. 2 Cir. 8/22/01), 794 So.2d 107, writ denied,

01-2648 (La. 8/30/02), 823 So.2d 938, the defendant’s behavior included having the

nine-year-old victim roll her hips, fondling, digital penetration, and oral sex. The

court concluded the defendant’s five year sentence for indecent behavior with a

juvenile was not excessive.

In State v. Collins, 32,409 (La.App. 2 Cir. 9/22/99), 763 So.2d 618, the

defendant attempted to remove the victim’s shorts and underwear and began to fondle

her. The defendant also licked behind the victim’s ears and on her chest and blocked

her access to the door when she attempted to leave the bedroom. The court held that

the defendant’s sentence of three and one-half years for indecent behavior with a

In State v. Douglas, 28,518 (La.App. 2 Cir. 8/21/96), 679 So.2d 469, the court

held that the defendant’s three year sentence for indecent behavior with a juvenile

was not excessive. The defendant was a first felony offender who abused a position

of trust when he had sexual intercourse several times with his stepdaughter.

CONCLUSION

Although the actions of the Defendant in the instant case, touching the breast

of a girl under the age of seventeen and placing his hand on her thigh, are not as

extreme as those in the cases referred to above, the Defendant’s four-year sentence

is proportionate to the sentences in Robinson and Whatley. We also note that the

6 Defendant does not dispute his classification as a third felony offender and that his

entire sentence would have been suspended otherwise. Lastly, the Defendant did not

receive a maximum or near-maximum sentence. Although the trial court concluded

that only a few facts were pertinent to this case, it, nonetheless, confirmed that it had

considered the guidelines set forth by La.Code Crim.P. art. 894.1. As such, we find

that the trial court did not abuse its discretion; therefore, the Defendant’s sentence is