State v. Frye

847 So. 2d 151, 2003 La. App. LEXIS 1401, 2003 WL 21076205
CourtLouisiana Court of Appeal
DecidedMay 14, 2003
DocketNo. 37,009-KA
StatusPublished
Cited by1 cases

This text of 847 So. 2d 151 (State v. Frye) 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. Frye, 847 So. 2d 151, 2003 La. App. LEXIS 1401, 2003 WL 21076205 (La. Ct. App. 2003).

Opinions

| WILLIAMS, J.

The defendant, Terry D. Frye, was charged by bill of information with seventeen (17) counts of extortion, violations of LSA-R.S. 14:66. After a jury trial, the defendant was found guilty as charged. He was sentenced to serve a total of 35 years at hard labor. The defendant failed to timely file a motion to reconsider sentence. On appeal, we affirmed the defendant’s convictions in an unpublished opinion. State v. Frye, 28,132 (La.App.2d Cir.5/10/96), 673 So.2d 367, writ denied, 96-1421 (La.11/15/96), 682 So.2d 759. Defendant was granted an out-of-time appeal of his sentence following his submission of an application for post-conviction relief, which alleged his trial defense counsel had been ineffective for failing to preserve his right to appeal his sentence by failing to file a motion for reconsideration of sentence. The trial court allowed the defendant to file a motion for reconsideration, which was denied. This appeal followed. We affirm the defendant’s sentence.

FACTS

The trial testimony showed that the victim, Edgar Allen (Jack) Poe, molested several male juveniles during his life, including defendant Frye. The defendant later blackmailed Poe with threats of exposure in the media and threats of death. The defendant took $185,700 from Poe within an eight-month period, from December 1993 through July 1994. Poe committed suicide in July 1994.

After Poe’s death, an investigation into his finances revealed the checks he had written to the defendant. Poe left an audio cassette tape explaining detailed financial matters of the company, Cypress Grove | ¡¡Plantation, of which he was a partner. Poe also left a letter in which he pledged the proceeds of an annuity to the business as reimbursement for the money he had taken. Poe explained in the letter that he had transferred funds from the business accounts of Cypress Grove farming operation into his personal accounts for the purpose of helping some people who needed financial help and he had gotten “over his head.” Poe did not mention the defendant’s name in either the audio cassette or the letter.

Several witnesses, some who also had been molested by Poe as children and also had received large sums of money from him, testified that the defendant made statements with regard to getting money from Poe, the defendant was “blackmailing” Poe and there were arguments between Poe and the defendant.

DISCUSSION

By this out-of-time appeal, the defendant contends the sentence is excessive and unwarranted. The defendant also argues that the court did not adequately [154]*154consider mitigating circumstances, failed to articulate adequate reasons for the sentence, erred in imposing consecutive sentences and failed to consider a significantly less harsh sentence, such as one including probation.

The test imposed by the reviewing court in determining the exeessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in LSA-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. Dunn, 30,767 (La.App.2d Cir.6/24/98), 715 So.2d 641. The articulation of the factual basis for a sentence is the goal of LSA-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 LSA-C.Cr.P. art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982). In the instant case, the record shows an adequate factual basis for the sentence imposed. Equally, the record shows the trial court adequately considered the guidelines of Article 894.1 and the Sentencing Guidelines which were in effect at the time of sentencing.

Whether the sentence imposed is too severe depends on the circumstances of the case and the background of the defendant. A sentence violates LSA-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. Dorbhey, 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 justice. State v. Hogan, 480 So.2d 288 (La.1985); State v. Bradford, 29,519 (La.App.2d Cir.4/2/97), 691 So.2d 864.

When two or more convictions arise from the same act or transaction, or constitute parts of a common scheme or plan, the terms of imprisonment shall be served concurrently unless the court expressly directs that some or |4all be served consecutively. LSA-C.Cr.P. art. 883. It is within a trial court’s discretion to order sentences to run consecutively rather than concurrently. State v. Robinson, 33,921 (La.App.2d Cir.11/1/00), 770 So.2d 868; State v. Coleman, 32,906 (La.App.2d Cir.4/5/00), 756 So.2d 1218, 1247-48; State v. Derry, 516 So.2d 1284 (La.App. 2d Cir.1987), writ denied, 521 So.2d 1168 (La.1988).

Concurrent sentences arising out of a single course of conduct are not mandatory, State v. Pickett, 628 So.2d 1333 (La.App. 2d Cir.1993); State v. Nelson, 467 So.2d 1159 (La.App. 2d Cir.1985), and consecutive sentences under those circumstances are not necessarily excessive. State v. Ortego, 382 So.2d 921 (La.1980), cert. denied, 449 U.S. 848, 101 S.Ct. 135, 66 L.Ed.2d 58 (1980); State v. Williams, 445 So.2d 1171 (La.1984); State v. Mills, 505 So.2d 933 (La.App. 2d Cir.), writ denied, 508 So.2d 65 (La.1987).

A trial court is not required to render a suspended sentence or probation on a first or qualifying second felony offense. The judge may consider whatever factors and evidence he deems important to a determination of the best interest of the public and the defendant. State v. Bradford, supra; State v. Woodman, 28,-004 (La.App.2d Cir.1/24/96), 666 So.2d 1255, writ denied, 96-0489 (La.5/3/96), 672 So.2d 696; State v. Tully, 430 So.2d 124 [155]*155(La.App. 2d Cir.), writ denied, 435 So.2d 438 (La.1983).

There is no requirement that specific matters be given any particular weight at sentencing. State v. Jones, 33,-111 (La.App.2d Cir.3/1/00), 754|RSo.2d 392, 394, writ denied, 2000-1467 (La.2/2/01), 783 So.2d 385; State v. Callahan, 29,351 (La.App.2d Cir.2/26/97), 690 So.2d 864, writ denied, 97-0705 (La.9/26/97), 701 So.2d 979.

Prior to imposing sentence, the trial court considered the evidence adduced at trial, the statements contained in the presentence investigation report (PSI), the defendant’s criminal history, the provisions of LSA-C.Cr.P. art. 883 concerning consecutive and concurrent sentences and the Louisiana Sentencing Guidelines which were then in effect.1

The sentencing guidelines used by the trial court indicated that the crime of extortion fell within sentencing guidelines grid cell 4-G, and provided for a minimum time of incarceration of 18 months or a maximum of 36 months, with probation periods ranging from a minimum of 90 months to a maximum of 135 months.

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Bluebook (online)
847 So. 2d 151, 2003 La. App. LEXIS 1401, 2003 WL 21076205, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-frye-lactapp-2003.