State v. J.P.F.

58 So. 3d 650, 2011 WL 798892
CourtLouisiana Court of Appeal
DecidedMarch 9, 2011
DocketNo. 10-1052
StatusPublished

This text of 58 So. 3d 650 (State v. J.P.F.) 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. J.P.F., 58 So. 3d 650, 2011 WL 798892 (La. Ct. App. 2011).

Opinion

GENOVESE, Judge.

hln this criminal case, Defendant, J.P.F., appeals the two eighteen-year concurrent sentences he received pursuant to resentencing upon his “Alford plea”1 convictions on two counts of attempted oral sexual battery. He claims excessive sentences. For the following reasons, we affirm- Defendant’s sentences in all respects.

FACTS AND PROCEDURAL HISTORY

At the plea hearing in this ease, the State maintained that in 2007, while J.P.F. was watching movies with C.B., [652]*652his nine-year-old step-daughter, J.P.F. had C.B. rub her face on his “private area.” The State also asserted that J.P.F. engaged in the same conduct with his eleven-year-old daughter, J.F.
In the record, the investigative progress report contains more detailed allegations of J.P.F.’s conduct.... J.F. reported that J.P.F. had her play “horsey” with him whereby she would have to get on top of him and ride him like a horsey, usually without clothes or underwear. J.F. also stated that J.P.F. “would try to put his personal place inside of her.” The same report contains C.B.’s statement that J.P.F. “did touch her on her forehead with his penis.”

State v. J.P.F., 09-904, pp. 1-2 (La.App. 3 Cir. 3/3/10), 32 So.3d 1016, 1018 (footnote omitted).

The defendant, J.P.F., entered an “Alford plea” to two counts of attempted ... oral sexual battery pursuant to La. R.S. 14:27 and La. R.S. 14:43.3. The trial court sentenced J.P.F. to two concurrent sentences of twenty years at hard labor. The trial court denied J.P.F.’s motion to reconsider sentence, and J.P.F. appealed.

Id. at 1018 (footnotes omitted).

On appeal, this court vacated Defendant’s sentences and remanded the matter for resentencing, ruling that the trial court’s failure to allow Defendant an “opportunity to deny, explain, or rebut allegations of [his] prior similar conduct with other persons” constituted a violation of his due process rights. Id. at 1020.

12At resentencing, Defendant was sentenced to serve eighteen years with the Louisiana Department of Corrections on each count, to run concurrently. A Motion to Reconsider Sentence was filed and denied. Defendant is now and again before this court, appealing his sentences as being excessive.

ERRORS PATENT

In accordance with La. Code Crim.P. art. 920, we have reviewed this appeal for errors patent on the face of the record. After reviewing the record, we find that there are no actionable errors patent.

ASSIGNMENT OF ERROR

In his only assignment of error, Defendant contends that the sentences imposed by the trial court are constitutionally excessive when considered in light of the nature of the offenses, the circumstances of the offender, the legislative purpose behind the punishment, and a comparison of sentences imposed for similar crimes.

Defendant was convicted of two counts of attempted oral sexual battery. Defendant was sentenced to serve eighteen years at hard labor on each count.

The Eighth Amendment to the United States Constitution and La. Const, art. 1, § 20 prohibit the imposition of cruel or excessive punishment, and the law is well settled with regard to what constitutes cruel or excessive punishment. An excessive sentence is a penalty that is so grossly disproportionate to the severity of the crime that it shocks our sense of justice or it makes no measurable contribution to acceptable penal goals and, therefore, is nothing more than a needless imposition of pain and suffering. State v. Campbell, 404 So.2d 1205 (La.1981). Additionally, the trial court is given wide discretion in imposing a sentence, and, absent a manifest abuse of that discretion, the reviewing court should not deem as excessive a sentence imposed within statutory limits. State v. Howard, 414 So.2d 1210 (La.1982); State v. Pyke, 95-919 (La.App. 3 Cir. 3/6/96), 670 So.2d 713. Still, a sentence that falls within the statutory limits may [653]*653be excessive under the particular circumstances of a given case. State v. Sepulvado, 367 So.2d 762 (La.1979). Additionally, “[m]aximum sentences are reserved for the most serious violations and the worst offenders.” State v. Far-hood, 02-490, p. 11 (La.App. 5 Cir. 3/25/03), 844 So.2d 217, 225. The only | .^relevant question for the reviewing court to consider is not whether another sentence would be more appropriate, but rather whether the trial court abused its broad discretion in sentencing a defendant. State v. Cook, 95-2784 (La.5/31/96), 674 So.2d 957, cert, denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).
Louisiana Code of Criminal Procedure Article 894.1(A) provides that the trial court should impose an imprisonment sentence if any of the following are established by the record:
(1) There is an undue risk that during the period of a suspended sentence or probation the defendant will commit another crime.
(2) The defendant is in need of correctional treatment or a custodial environment that can be provided most effectively by his commitment to an institution.
(3) A lesser sentence will deprecate the seriousness of the defendant’s crime.
Additionally, the trial court must “state for the record the considerations taken into account and the factual basis therefor in imposing sentence.” La. Code Crim.P. art. 894.1(C). However, in complying with this article, the trial court “need not articulate every circumstance or read through a checklist of items.” State v. Anderson, 95-1688, p. 4 (La.App. 3 Cir. 5/8/96), 677 So.2d 480, 483.
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Citing the supreme court in State v. Telsee, 425 So.2d 1251 (La.1983), the fifth circuit, in State v. Lisotta, 98-648, p. 4 (La.App. 5 Cir. 12/16/98), 726 So.2d 57, 58, writ denied, 99-433 (La.6/25/99), 745 So.2d 1183, suggested that:
The court should consider three factors in reviewing a judge’s sentencing discretion:
1. the nature of the crime,
2. the nature and background of the offender, and
3. the sentence imposed for similar crimes by the same court and other courts.

State v. Fontenot, 09-1044, pp. 4-6 (La.App. 3 Cir. 5/12/10), 38 So.3d 1122, 1125-26.

At the sentencing hearing, the trial court noted that there was economic harm Lin that the victims had to undergo counseling, there was emotional and psychological harm to the victims, and there were no grounds to excuse Defendant’s conduct. The trial court also noted that Defendant was thirty-four or thirty-five years old, had one child, was in excellent health, had a high school education, and was employed in the computer field. Defendant may have abused alcohol, but had not sought any type of treatment, and he had no prior criminal record other than a conviction for driving while intoxicated. The trial court found that Defendant was in need of correctional treatment and that he was given a break by the State when he was allowed to enter his plea rather than go forward with his original charges of aggravated incest.

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Related

North Carolina v. Alford
400 U.S. 25 (Supreme Court, 1970)
State v. Telsee
425 So. 2d 1251 (Supreme Court of Louisiana, 1983)
State v. Fontenot
38 So. 3d 1122 (Louisiana Court of Appeal, 2010)
State v. Cook
674 So. 2d 957 (Supreme Court of Louisiana, 1996)
State v. Farhood
844 So. 2d 217 (Louisiana Court of Appeal, 2003)
State v. Pyke
670 So. 2d 713 (Louisiana Court of Appeal, 1996)
State v. Anderson
677 So. 2d 480 (Louisiana Court of Appeal, 1996)
State v. Sepulvado
367 So. 2d 762 (Supreme Court of Louisiana, 1979)
State v. Howard
414 So. 2d 1210 (Supreme Court of Louisiana, 1982)
State v. Lisotta
726 So. 2d 57 (Louisiana Court of Appeal, 1998)
State v. McDUFFEY
960 So. 2d 1175 (Louisiana Court of Appeal, 2007)
State v. Campbell
404 So. 2d 1205 (Supreme Court of Louisiana, 1981)
State v. D.S.J.
15 So. 3d 1188 (Louisiana Court of Appeal, 2009)
State v. J.P.F.
32 So. 3d 1016 (Louisiana Court of Appeal, 2010)
State v. J.T.S.
865 So. 2d 1032 (Louisiana Court of Appeal, 2004)

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Bluebook (online)
58 So. 3d 650, 2011 WL 798892, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-jpf-lactapp-2011.