State v. Ferguson

4 So. 3d 315, 2009 La. App. LEXIS 270, 2009 WL 455537
CourtLouisiana Court of Appeal
DecidedFebruary 25, 2009
DocketNo. 44,009-KA
StatusPublished
Cited by7 cases

This text of 4 So. 3d 315 (State v. Ferguson) 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. Ferguson, 4 So. 3d 315, 2009 La. App. LEXIS 270, 2009 WL 455537 (La. Ct. App. 2009).

Opinion

GASKINS, J.

11 The defendant, James Daniel Ferguson, appeals his maximum sentence of 20 years at hard labor and a fine of $10,000 following his plea of guilty to one count of molestation of a juvenile. For the following reasons, we affirm the conviction and sentence.

FACTS

On July 25, 2007, the 31-year-old defendant molested K.S., the 15-year-old daughter of his girlfriend.1 The defendant placed his hand or fingers in the vaginal area of the victim and used his hand in such a manner as to arouse or gratify the sexual desires of himself or the victim. This act was witnessed by a friend of the victim who was approximately her same age. The defendant was charged by bill of information with one count of molestation of a juvenile, a violation of La. R.S. 14:81.2.

On March 24, 2008, the defendant entered a plea of guilty as charged to one count of molestation of a juvenile, with the understanding that he would be sentenced under the provisions of La. R.S. 14:81.2(0 which provides that whoever commits the crime of molestation of a juvenile, when the victim is 13 years of age or older, but [317]*317has not yet attained the age of 17, and when the offender has control or supervision over the juvenile, shall be fined not more than $10,000, or imprisoned, with or without hard labor, for not less than five nor more than 20 years, or both. In exchange for the guilty plea, the state agreed to dismiss other charges pending against the defendant.

|2These offenses came to light after K.S. made a written statement during a therapy session. Thereafter, a physical examination of the victim by medical personnel showed that intercourse had occurred. The victim’s vaginal washings and bedspread were submitted to the Crime Lab and revealed the presence of the defendant’s sperm.

The defendant appeared before the court for sentencing on June 17, 2008. The court imposed the maximum sentence upon the defendant, 20 years at hard labor with a $10,000 fine and credit for time served.

On June 23, 2008, the defendant filed a motion to reconsider the sentence on the basis that the sentence was constitutionally excessive and alleging that the trial court failed to properly consider various mitigating factors. The motion was denied. The defendant appealed.

EXCESSIVE SENTENCE

The defendant urges that the sentence imposed is cruel, unusual and excessive, in violation of the constitutions of the United States and Louisiana. The defendant argues that the trial court failed to properly consider the mitigating factors set forth in La. C. Cr. P. art. 894.1 in imposing sentence. He also claims that the trial court failed to articulate sufficient justification for the imposition of the maximum sentence of 20 years at hard labor for this first felony offender. These arguments are without merit.

Legal Principles

The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show |sthat 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, 2007-0805 (La.3/28/08), 978 So.2d 297. 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 offense and the likelihood 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. 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, 2007-0144 (La.9/28/07), 964 So.2d 351.

Second, a sentence violates La. Const, art. 1, § 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. Smith, 2001-2574 (La.1/14/03), 839 So.2d 1. 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, 2001-0467 (La.1/15/02), 805 So.2d 166; State v. Lobato, 603 So.2d 739 (La. 1992); State v. Bradford, 29,519 (La. App.2d Cir.4/2/97), 691 So.2d 864.

|/The trial judge is afforded wide discretion in determining a sentence, and [318]*318the court of appeal will not set aside a sentence for excessiveness if the record supports the sentence imposed. State v. Shaw, 37,168 (La.App.2d Cir.6/25/03), 850 So.2d 868. A sentence within statutory limits will not be set aside as excessive absent manifest abuse of discretion. State v. Square, 433 So.2d 104 (La.1983); State v. Wilson, 38,219 (La.App.2d Cir.3/5/04), 867 So.2d 988. Where a defendant has pled guilty to an offense which does not adequately describe his conduct or has received a significant reduction in sentencing exposure through a plea bargain, the trial court has great discretion to impose even the maximum sentence possible for the pled offense. State v. Black, 28,100 (La. App.2d Cir.2/28/96), 669 So.2d 667, writ denied, 96-0836 (La.9/20/96), 679 So.2d 430.

As a general rule, however, maximum or near maximum sentences are reserved for the worst offenders and the worst offenses. State v. Cozzetto, 2007-2031 (La.2/15/08), 974 So.2d 665; State v. McKinney, 43,061 (La.App.2d Cir.2/13/08), 976 So.2d 802; State v. Woods, 41,420 (La. App.2d Cir.11/1/06), 942 So,2d 658, writ denied, 2006-2768 (La.6/22/07), 959 So.2d 494, and writ denied, 2006-2781 (La.6/22/07), 959 So.2d 494; State v. Grissom, 29,718 (La.App.2d Cir.8/20/97), 700 So.2d 541.

The Louisiana Supreme Court has outlined several factors which are useful in determining whether a sentence, by its excessive length or severity, is grossly out of proportion to the underlying crime. The analysis is cumulative and considers the nature of the offense and the offender, a | ^comparison of the punishment with sentences imposed for similar crimes, and the legislative purpose behind the punishment. State v. Telsee, 425 So.2d 1251 (La.1983); State v. Smith, 1999-0606 (La.7/6/00), 766 So.2d 501.

Discussion

At the sentencing hearing, the state offered victim impact statements from the victim and her parents. The mother stated that the defendant betrayed her trust in him and her daughter’s trust by “molesting her and raping her and drugging her.” The victim’s father said that the defendant “utilized his position as a trusted, parental figure in my daughter’s home” and that because of the defendant, the victim would now battle trust and self-esteem issues for the rest of her life. He said that the offense had also affected the victim’s younger brother with whom the defendant had shared a position of trust.

After reviewing a presentence investigation (PSI) report, the trial court noted that the defendant was a first felony offender whose criminal history consisted mostly of traffic violations.

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Bluebook (online)
4 So. 3d 315, 2009 La. App. LEXIS 270, 2009 WL 455537, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-ferguson-lactapp-2009.