State v. Hardman

103 So. 3d 472, 2012 WL 3104223, 2012 La. App. LEXIS 999
CourtLouisiana Court of Appeal
DecidedAugust 1, 2012
DocketNos. 47,251-KA, 47,252-KA
StatusPublished

This text of 103 So. 3d 472 (State v. Hardman) 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. Hardman, 103 So. 3d 472, 2012 WL 3104223, 2012 La. App. LEXIS 999 (La. Ct. App. 2012).

Opinion

MOORE, J.

hThe defendant, Valdez Delon Hard-man, pled guilty to cruelty to juveniles, a violation of La. R.S. 14:93 and a charge of attempted distribution of cocaine, a violation of La. R.S. 14:27 and La. R.S. 40:967 A(l). He was sentenced to nine years’ imprisonment at hard labor for the cruelty conviction and ten years’ imprisonment at hard labor for the narcotics conviction, sentences to be served consecutively. A timely motion to reconsider sentence was denied. The defendant now appeals. For the reasons stated below, we affirm the convictions and sentences.

FACTS

On May 1, 2010, an undercover Bossier Parish Sheriffs Office officer wired with audio and video equipment purchased Ec[474]*474stasy pills (MDMA) and marijuana from the defendant. Another purchase was arranged on May 6, 2010, at the defendant’s home. Again, narcotics agents wired with audio and video equipment purchased crack cocaine for $50 from the defendant. Warrants were issued for the defendant’s arrest for distribution of marijuana, MDMA, and cocaine on November 3, 2010.

On January 25, 2011, J.H.,1 age 8, returned to school after a one-day absence bearing a large red mark on the side of her face. She was sent to the school nurse for an assessment, during which several other marks were discovered on J.H.’s body. J.H. stated a snake had bitten her. After she was told that she would not be in trouble for giving- the true reason, J.H. reported that her father (she was referring to the defendant, her mother’s boyfriend) whipped her with an extension cord. She reported that her parents put ice |2on the marks in an attempt to make them go away. J.H.’s mother told her to say the mark on her face had come from a bite. J.H. also told detectives and a child protective services worker (“CPS”) that she was whipped because she ate potato chips that belonged to a man, Terry Little, with whom her family lived during that time.

J.H. was taken for a more thorough physical examination by a physician who found bruises too' numerous to count about her thighs, arms, hands, and buttocks. J.H.’s mother was interviewed. She denied that the defendant was living with them and that he was responsible for whipping J.H. She accepted responsibility for whipping J.H. She- was subsequently arrested for cruelty to juveniles, and J.H. was placed in foster care.

Investigators interviewed Terry Little. He confirmed that the defendant, J.H., and her mother were all living with him. Mr. Little knew J.H. had been disciplined for eating his potato chips, but he stated he had not complained. Mr. Little went outside while J.H. was being whipped because he did not like to be around while she was being punished.

The defendant was not at the home when J.H.’s mother was arrested, but he later contacted detectives to arrange a meeting at their office. He failed to . appear. The next day, sheriffs deputies received an anonymous tip where the defendant could be found. The defendant was apprehended in the general area, hiding in the woods. He was placed under arrest for cruelty to juveniles as well as distribution of MDMA, distribution of marijuana, and distribution of cocaine.

|3By plea agreement the defendant pled guilty to cruelty to juveniles and attempted distribution of cocaine. In exchange, the state nolle prossed the remaining charges and agreed not to file a multiple offender bill of information against the defendant. There was no agreement regarding the defendant’s sentence; a presen-tence investigation was ordered. During the sentencing hearing, the trial-judge noted the facts of all of the offenses. He chronicled the defendant’s criminal history that included a prior misdemeanor conviction for contributing to the delinquency of a juvenile and a prior felony conviction for cruelty to juveniles. The defendant’s criminal history included various offenses of battery and domestic violence, which the trial judge noted as part of a history of assaultive behavior against individuals. The defendant’s criminal history was considered as an aggravating factor in determining the sentence while the trial judge considered the defendant’s substance abuse history as a mitigating factor in determining the sentence. After artieulat-[475]*475ing the reasons for sentencing, the trial judge sentenced the defendant to nine years’ imprisonment at hard labor for cruelty to a juvenile and ten years’ imprisonment at hard labor for attempted distribution of cocaine. The trial judge ordered the sentences to be served consecutively to each other and recommended the defendant for substance abuse treatment and counseling. A timely motion to reconsider the sentence was denied. The instant appeal followed.

Because all proceedings in both matters were conducted simultaneously in the trial court, this court, by order dated February 5, 2012, consolidated the matters for appeal purposes.

J^DISCUSSION

By his sole assignment of error, the defendant alleges that the nine-year sentence at hard labor for cruelty to a juvenile and the ten-year sentence at hard labor for distribution of cocaine, to run consecutively with the other, are cruel and excessive in this case. Specifically, he contends that the 19-year total sentence is grossly disproportionate to the severity of the offenses and serves no useful purpose. The prior felony alluded to by the court at sentencing was committed more than 10 years before the instant offense. The court also noted the several misdemeanor offenses; however, some of these were not convictions. The defendant contends that he is not the worst offender in his offender class and that the record does not support the harsh sentence imposed.

The defendant also argues that he was under the influence of drugs and alcohol at the time of the commission of the offense of cruelty to a juvenile, thereby mitigating his culpability. He has expressed extreme remorse for his actions. He contends that the goals of punishment and rehabilitation can be met in this case with a less severe sentence. He requests the court to vacate the sentence and remand for the imposition of a non-excessive sentence tailored to this offender and offense,

The state contends that the sentence is appropriate for this defendant and is not excessive, noting that the trial court care-funy considered the defendant’s personal history, prior criminal history, the factors enunciated in La. C. Cr. P. art. 894.1, as -well as the circumstances of the offense and the presentenee investigation. The state urges that the sentence be affirmed,

| ¿Review for Excessive Sentence

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. 2 Cir. 2/28/07), 953 So.2d 890, writ denied, 2007-0805 (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. 2 Cir.

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Bluebook (online)
103 So. 3d 472, 2012 WL 3104223, 2012 La. App. LEXIS 999, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-hardman-lactapp-2012.