State v. Calhoun

669 So. 2d 1351, 1996 WL 95132
CourtLouisiana Court of Appeal
DecidedFebruary 23, 1996
Docket94 KA 2567
StatusPublished
Cited by5 cases

This text of 669 So. 2d 1351 (State v. Calhoun) 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. Calhoun, 669 So. 2d 1351, 1996 WL 95132 (La. Ct. App. 1996).

Opinion

669 So.2d 1351 (1996)

STATE of Louisiana
v.
Robert CALHOUN.

No. 94 KA 2567.

Court of Appeal of Louisiana, First Circuit.

February 23, 1996.

*1353 Doug Moreau, District Attorney, Baton Rouge, and Tom Walsh, Assistant District Attorney, Baton Rouge, for Appellee-Plaintiff, State of Louisiana.

Edward Greenlee, Baton Rouge, for Appellant-Defendant, Robert Calhoun.

Before WATKINS and FOIL, JJ., and TANNER, J. Pro Tem.[*]

FOIL, Judge.

The defendant, Robert Calhoun, was charged by grand jury indictment with one count of sexual battery, a violation of La.R.S. 14:43.1 and one count of molestation of a juvenile, a violation of La.R.S. 14:81.2. He pled not guilty to the charges. Subsequently, the charge of sexual battery was dismissed and the defendant pled guilty to the charge of molestation of a juvenile. The defendant was sentenced to six years at hard labor with credit for time served.[1] He has appealed, urging the following assignments of error:

1. The trial court erred in imposing an excessive sentence, failing to apply the sentencing guidelines of La.C.Cr.P. art. 894.1, and subjecting the defendant to the provisions of La.R.S. 15:540, et seq., in violation of the Louisiana and United States Constitutions.
2. The trial court erred in denying the defendant's Motion to Withdraw Guilty Plea.
3. The trial court erred in ordering the defendant to comply with La.R.S. 15:540, et seq., as those provisions are unconstitutional.
4. The defendant was not afforded his right to effective assistance of counsel.

*1354 In his brief to this Court, the defendant expressly abandoned assignment of error number four except for the arguments presented in assignment of error number two.

FACTS

Because the defendant pled guilty, the facts of the offense were not fully developed. The facts adduced at the Boykin hearing reveal that between July 1, 1992, and April 1, 1993, the defendant committed a lewd and lascivious act upon or in the presence of a minor, C.M., with the intent of arousing and gratifying the sexual desire of the defendant. The defendant was born March 17, 1946 and the victim was born on October 12, 1978.

ASSIGNMENT OF ERROR NUMBER ONE[2]

In his first assignment of error, the defendant contends that the trial court erred in imposing an excessive sentence. He contends that in imposing sentence, the trial court failed to list mitigating factors and that sentencing him to the maximum sentence was a "needless imposition of suffering."

The statutory penalty for molestation of a juvenile is a fine of not more than five thousand dollars and/or a term of imprisonment with or without hard labor of not less than one nor more than ten years. La.R.S. 14:81.2(B). Thus, the defendant's sentence of six years at hard labor does comply with the statutory requirements.

The defendant was sentenced on October 14, 1994. The defendant timely filed a written motion to reconsider the sentence based on the excessiveness of the sentence, the court's failure to articulate reasons for the sentence in accordance with La.C.Cr.P. art. 894.1, the court's failure to consider or follow the sentencing guidelines, and the fact that the sentence subjects him to the unconstitutional provisions of La.R.S. 15:540, et seq. The trial court denied the defendant's motion for reconsideration of sentence. Prior to its recent amendment, former La. C.Cr.P. art. 894.1(A) required a trial court to consider the sentencing guidelines promulgated by the Louisiana Sentencing Commission.[3] Provided that the court complied with the requirements of former Article 894.1, it had "complete discretion to reject the Guidelines and impose any sentence which is not constitutionally excessive, but is within the statutory sentencing range for the crime of which a defendant has been convicted...." State v. Smith, 93-0402, p. 3 (La. 7/5/94), 639 So.2d 237, 240 (on rehearing) (footnote omitted).

In sentencing the defendant, the trial court stated that it considered the sentencing guidelines but was sentencing the defendant "outside of the guidelines." The court stated that the defendant was not a youthful offender and that the victim was young and vulnerable. The court felt that the defendant used his status in order to facilitate the crimes and that his conduct did threaten to cause serious emotional harm. The court stated that, although the defendant was classified as a first felony offender, he had a significant criminal history with arrests for twelve different felonies and/or crimes against the person. The court noted that the defendant had not shown remorse or accepted responsibility for his actions. The court stated that the defendant was the beneficiary of a reduced charge as the prosecutor dropped other pending charges in exchange for the defendant's plea. The court felt that the defendant was in need of a custodial environment or correctional treatment and that he appears to be a chronic offender. The court further stated that:

Defendant has a good education and is able, but unwilling to be a contributing member of society. The defendant preyed *1355 on the hopes and dreams of very young girls and lured them into posing nude with promises of financial success. It is obvious that the defendant carefully planned his method of exploitation and worked to keep it a secret by warning the underage girls that they must not tell anyone, especially their family. The pattern of exploitation of these girls was the same and was used extensively in order to gratify the defendant's own perversions. Some of the victims were only 13 years of age. The girls were easy prey for the defendant's intimidating practices. He's been arrested before for juvenile pornography, so the defendant is no novice to this crime and certainly committed it knowingly and willfully. His behavior was despicable and has caused a great deal of trauma to the victims and stress for their families. There was nothing legitimate or professional or, as Mr. Calhoun describes it, artistic about the way he used these young girls.

It is apparent from the court's comments that it considered the Guidelines before imposing sentence and that it adequately stated the considerations taken into account and the factual basis for the sentence. Thus, we are limited to a review of the sentence for constitutional excessiveness. Article I, section 20, of the Louisiana Constitution prohibits the imposition of excessive punishment. A sentence is constitutionally excessive if it is grossly disproportionate to the seriousness of the offense or is nothing more than a purposeless and needless infliction of pain and suffering. A sentence is grossly disproportionate if, when the crime and punishment are considered in light of the harm to society, it shocks the sense of justice. The sentence imposed will not be set aside absent a showing of manifest abuse of the trial court's wide discretion to sentence within the statutory limits. State v. Lobato, 603 So.2d 739, 751 (La.1992).

After reviewing the record and considering the facts of the instant case, we are unable to say that the trial court abused its discretion in sentencing the defendant. Although the defendant claims that he was given the maximum sentence for his conviction of molestation of a juvenile, he was not. The defendant was sentenced to six years at hard labor and according to La.R.S.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. Fontenot
934 So. 2d 935 (Louisiana Court of Appeal, 2006)
State of Louisiana v. Daniel R. Fontenot, Jr.
Louisiana Court of Appeal, 2006
State v. Green
765 So. 2d 1097 (Louisiana Court of Appeal, 2000)
State v. Stevens
992 P.2d 1244 (Court of Appeals of Kansas, 1999)
State v. Calhoun
694 So. 2d 909 (Supreme Court of Louisiana, 1997)
State v. Calhoun
669 So. 2d 1359 (Louisiana Court of Appeal, 1996)

Cite This Page — Counsel Stack

Bluebook (online)
669 So. 2d 1351, 1996 WL 95132, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-calhoun-lactapp-1996.