State v. Austin

250 So. 3d 1147
CourtLouisiana Court of Appeal
DecidedJune 27, 2018
DocketNo. 52,053–KA
StatusPublished

This text of 250 So. 3d 1147 (State v. Austin) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Austin, 250 So. 3d 1147 (La. Ct. App. 2018).

Opinion

McCALLUM, J.

The case currently before this Court, a domestic dispute turned violent between a sister and her brother, arises out of a seemingly inconsequential act, i.e. , the unauthorized erasure by the former of a television program previously recorded by the latter.

The defendant, Gerwanna Austin ("Austin"), having pled guilty as charged to aggravated battery, appeals her sentence of eight years as excessive. We affirm her conviction and sentence.

FACTS

On November 12, 2016, Austin and her brother, Brandon, began arguing after Austin erased a television program that Brandon had recorded. Austin, who became angry when Brandon called her names, waited for him to come inside the house from his yard work and then she stabbed him in the neck with a kitchen knife. Austin was 26 years old at the time.

Austin was charged by bill of information with one count of aggravated battery, in violation of La. R.S. 14:34. On May 15, 2017, Austin accepted the state's offer to plead guilty as charged in exchange for the state's agreement not to file an habitual offender bill. She was informed that the applicable sentencing range was 0-10 years and that a presentence investigation (PSI) report would be ordered.

The PSI, which incorrectly stated that Austin pled guilty to aggravated assault, showed that she was born October 21, 1990, and finished high school at age 20. Austin never held a job and relied on family members for financial assistance. Austin was not married and had no children. She denied any alcohol or substance abuse. In her statement for the PSI, Austin showed remorse and said, "I'm willing to take anger management. I apologize for my actions and I know that I need to learn to walk away from things."

Austin's criminal history included an arrest for aggravated second degree battery in 2014 when she stabbed her uncle during an argument about her discipline of her niece and nephew. This argument also turned physical and the uncle grabbed her by the hair and put her on the ground. Using a kitchen knife, Austin stabbed the uncle in the back and chest. She pled guilty on September 29, 2015, to a reduced charge of attempted second degree battery and was sentenced on December 1, 2015, to serve 18 months.

Austin appeared for sentencing on the current conviction August 23, 2017.1 The judge stated that she had reviewed Austin's guilty plea transcript and confirmed *1150that Austin pled guilty to aggravated battery. The judge also stated that she had reviewed the factual basis for the guilty plea, Austin's PSI report, and the sentencing guidelines in La. C. Cr. P. art. 894.1.

The judge noted that Austin stabbed her brother in the neck four times with a large kitchen knife when he entered the house to wash his hands following their argument. The judge also noted Austin's prior conviction for attempted second degree battery when she stabbed her uncle in the back and chest after an argument. The judge observed that Austin's behavior indicated that she had anger issues and was in need of custodial treatment. Austin had committed two intentional crimes against victims when their backs were turned, and the judge was concerned that Austin would commit other crimes. The judge recognized that Austin was 26 years old, and hoped that she would become calmer and more patient as she aged. Citing Austin's aggressive manner and her crime's potential for serious injury, the judge concluded that the appropriate sentence was eight years, with credit for time served. Austin was informed of the time limit to seek post-conviction relief.

On August 31, 2017, Austin filed a motion to reconsider sentence in which she contended that: (i) the sentence was excessive because the reasons given by the court as sentencing factors were inadequate; (ii) the court failed to consider mitigating circumstances, such as her lack of education somewhat impaired her capacity to appreciate the criminality of her conduct or to conform her conduct to the requirements of the law; and (iii) her sentence was excessive, cruel, and unusual. The court denied the motion, and on the order of denial, noted that the sentence was not imposed without benefit of parole.

DISCUSSION

Austin has appealed her sentence, arguing that it is unconstitutionally harsh and excessive, and that it serves no purpose. The state argues that the trial court sufficiently reviewed Austin's criminal and social history, her age, and the factual basis for the sentence. The state asserts that the imposed sentence was within the statutory sentencing range and that the trial court did not abuse its discretion in imposing the eight-year sentence.

Appellate review of sentences for excessiveness is a two-pronged inquiry. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. A review of the sentencing guidelines does not require a listing of every aggravating or mitigating circumstance; the trial court need only articulate a factual basis for the sentence. State v. Cunningham , 46,664 (La. App. 2 Cir. 11/2/11), 77 So.3d 477. The important elements which should be considered are the defendant's personal history, prior criminal record, seriousness of the offense and the likelihood of rehabilitation. State v. Moton , 46,607 (La. App. 2 Cir. 9/21/11), 73 So.3d 503, writ denied , 2011-2288 (La. 3/30/12), 85 So.3d 113 ; State v. Caldwell , 46,645 (La. App. 2 Cir. 9/21/11), 74 So.3d 248, writ denied , 2011-2348 (La. 4/27/12), 86 So.3d 625.

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 *1151justice. State v. Weaver , 2001-0467 (La. 1/15/02), 805 So.2d 166 ; State v. Robinson , 40,983 (La. App. 2 Cir. 1/24/07), 948 So.2d 379.

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Bluebook (online)
250 So. 3d 1147, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-austin-lactapp-2018.