State v. Fatheree

77 So. 3d 1047, 2011 La. App. LEXIS 1296
CourtLouisiana Court of Appeal
DecidedNovember 2, 2011
DocketNo. 46,686-KA
StatusPublished
Cited by1 cases

This text of 77 So. 3d 1047 (State v. Fatheree) 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. Fatheree, 77 So. 3d 1047, 2011 La. App. LEXIS 1296 (La. Ct. App. 2011).

Opinion

CARAWAY, J.

| Richard Stephenson Fatheree, II, pled guilty to an amended charge of indecent behavior with a juvenile and was sentenced to seven years at hard labor, four years suspended, and five years’ supervised probation upon his release. Fatheree appeals raising three sentencing complaints. We affirm.

Facts

On October 27, 2009, the state filed a bill of information charging Fatheree with one count of molestation of a juvenile and one count of carnal knowledge of a juvenile for conduct occurring between May 1, 2009 and July 29, 2009, between Fatheree and T.Z., a fifteen-year-old minor (date of birth November 30, 1993). Fatheree initially entered not guilty pleas to both counts.

On September 27, 2010, Fatheree withdrew his not guilty plea and entered a plea of guilty to the amended charge of indecent behavior with a juvenile, a violation of La. R.S. 14:81. In exchange, the state agreed to nolle prosequi the carnal knowledge charge. The state supplied the following factual basis for the plea:

Mr. Fatheree’s date of birth is September 16, 1968. And during a period of time between February of 2009 and July of 2009 he began a relationship that— with an underage female whose date of birth is November 3 of 1993. And this relationship included — began with text-ing and communication and — and ended with inappropriate touching, including specifically he had placed his hand on her body and on her legs, kissed her using his tongue as part of that, and that these events occurred within the confines of Bossier Parish, Louisiana. The intent in this was to arouse or gratify the sexual desires of either the defendant or the minor, T.Z., in this matter.

LThe court accepted Fatheree’s plea and ordered a presentence investigation report (PSI). According to the PSI, on July 29, 2009, T.Z.’s parents contacted the Bossier Parish Sheriffs Office and reported that their 15-year-old daughter had been the victim of inappropriate conduct, including kissing, by her martial arts instructor, Fatheree. T.Z. told deputies that the defendant had given her jewelry and professed his love for and desire to marry her. On one occasion, T.Z. met Fatheree at a shopping mall under the auspices that her class was going to a movie. When T.Z.’s father dropped her off, the defendant told him that no other students had been able to come. Another student spotted Father-ee and T.Z. kissing while they sat in defendant’s vehicle parked in the mall garage. T.Z. claimed she was afraid to say anything earlier out of concern that it might affect her standing in Fatheree’s class. When questioned, defendant admitted kissing the victim and texting her inappropriately. Fatheree was initially arrested on the charge of molestation of a juvenile.

Several months later, however, T.Z., her mother, and Suzanne Craig, a mental health counselor, contacted the detectives and informed them that Fatheree had sex with T.Z. on the night they were spotted in the mall garage. On the basis of this information, the defendant was also charged with carnal knowledge of a juvenile.

At sentencing, the trial judge reviewed the various mitigating and aggravating factors he considered before sentencing Fath-eree. As mitigating factors, the court noted that Fatheree was 42 years old and a true first-time felony offender. The court [1050]*1050considered that Fatheree had a small | schild and elderly parents for whom his incarceration would cause a hardship. The court also indicated that it had received several letters on Fatheree’s behalf.

As aggravating factors, the court noted the vast difference between the defendant’s and the victim’s ages and considered that Fatheree’s use of his position as the victim’s martial arts instructor rendered his conduct more akin to molestation of a juvenile which is punishable by not less than five nor more than 25 years’ imprisonment at hard labor. While the court recognized that there remained a dispute as to whether the defendant actually engaged in sexual intercourse with the victim, the court considered that Craig, a mental health expert, was of the opinion that sexual intercourse had occurred. The court also considered Craig’s mental health evaluation which was submitted to the court by letter and attached to the PSI. From the information provided by Craig, the court identified some of the problems that had been experienced by the victim, including anxiety, conduct problems, depression, poor concentration, agitation, irritability, panic attacks, fears, sexual dysfunction, sleep disturbance and nightmares, flashbacks, sexuality confusion, lack of trust, shame and fear. Without expressing an opinion as to whether intercourse had occurred, the trial court concluded that at a minimum Fatheree had downplayed his conduct as a one-time mistake. In light of all these factors, the court sentenced the defendant to seven years’ imprisonment at hard labor, four years suspended, and five years’ supervised probation upon his release. Father-ee objected to the sentence on the grounds that he was being punished for a crime, carnal | ¿knowledge of a juvenile, for which he had not been convicted. The court declined to modify the sentence.

On February 15, 2011, Fatheree filed a motion to reconsider arguing constitutional excessiveness in light of his work and family history and lack of prior criminal conduct. The motion was denied without a hearing on February 16, 2011. The instant appeal followed.

Discussion

On appeal, Fatheree argues that in light of his lack of a criminal history, the imposition of a maximum sentence is excessive and that the trial court should not have considered the report by the mental health expert which was used to bolster the victim’s uncorroborated allegation that the defendant had sex with her.

The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. 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. Lathan, 41,855 (La.App.2d Cir.2/28/07), 953 So.2d 890, writ denied, 07-0805 (La.3/28/08), 978 So.2d 297. 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. Swayzer, 43,350 (La. App.2d Cir.8/13/08), 989 So.2d 267, writ denied, 08-2697 (La.9/18/09), 17 So.3d 388. 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 [1051]*1051likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Ates, 43,327 (La.App.2d Cir.8/13/08), 989 So.2d 259, writ denied, 08-2341 (La.5/15/09), 8 So.3d 581. There is no requirement that specific matters be given any particular weight at sentencing. State v. Shumaker, 41,547 (La.App.2d Cir.12/13/06), 945 So.2d 277, writ denied, 07-0144 (La.9/28/07), 964 So.2d 351.

Second, a sentence violates La. Const, art.

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State v. Fatheree
77 So. 3d 1047 (Louisiana Court of Appeal, 2011)

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77 So. 3d 1047, 2011 La. App. LEXIS 1296, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-fatheree-lactapp-2011.