State v. Milstead

681 So. 2d 1274, 1996 WL 551619
CourtLouisiana Court of Appeal
DecidedSeptember 27, 1996
Docket95 KA 1983
StatusPublished
Cited by6 cases

This text of 681 So. 2d 1274 (State v. Milstead) 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. Milstead, 681 So. 2d 1274, 1996 WL 551619 (La. Ct. App. 1996).

Opinion

681 So.2d 1274 (1996)

STATE of Louisiana
v.
Richard MILSTEAD.

No. 95 KA 1983.

Court of Appeal of Louisiana, First Circuit.

September 27, 1996.

*1275 E. Sue Bernie, Baton Rouge, for State of Louisiana.

Danny S. Gauthier, Baton Rouge, for Defendant-Appellant.

Before SHORTESS, LeBLANC and TANNER,[1] JJ.

SHORTESS, Judge.

The East Baton Rouge Parish District Attorney charged Richard Milstead (defendant) with one count of molestation of a juvenile. La. R.S. 14:81.2. He waived formal arraignment and pled guilty. The trial court sentenced him to five years imprisonment at hard labor with credit for time served. Defendant argues on appeal that the trial court erred by denying his motion to reconsider the sentence. He urges this court to reverse his sentence because the probation officer omitted relevant and mitigating information from the presentence investigation report ("PSI") and the trial court relied upon this defective PSI when imposing a sentence which exceeded the penalty range recommended by the sentencing guidelines.

BACKGROUND

The parties do not dispute the following facts contained in the record. Upon noticing her husband missing from their bed late at night, the victim's mother entered her daughter's bedroom and found her husband and her fourteen-year-old daughter, the victim, in a sexually suspicious setting. She confronted her husband, and eventually he confessed to indecent sexual fondling and touching the victim during a three-month period, between June and September 1994. The record establishes defendant also confessed this illegal sexual conduct with his stepdaughter to a social worker and later to police. As a result, *1276 he was arrested for aggravated incest. La. R.S. 14:78.1.

Defendant pled guilty to the lesser felony of molestation of a juvenile on March 15, 1995. The trial court held a Boykin hearing and determined he knowingly, intelligently, and freely waived his right to plead not guilty. The trial court accepted his guilty plea and ordered a PSI. The assigned parole officer completed the PSI and on May 17, 1995, defendant's counsel saw the PSI very briefly immediately before the sentencing hearing.[2] After finding defendant's position of supervision and authority was an aggravating circumstance, the court deviated from the sentencing guidelines which suggested a sentence of between two and four years and sentenced defendant to five years imprisonment at hard labor with credit for time served. In comparison, the statutory penalty is a $10,000.00 fine, or imprisonment with or without hard labor for a minimum of one year to a maximum of fifteen years, or both. La. R.S. 14:81.2(C).

Defendant timely filed a motion to reconsider sentence. He argued the PSI failed to include information from his psychologist, Dr. Pat Appleton, concerning his likelihood of being rehabilitated and other treatment information. The PSI also did not include statements from defendant's mother, Carole Spurlin, or his employer concerning defendant's family and employment circumstances. Appleton and Spurlin did sign affidavits which defendant attached to his motion to reconsider sentence. Nevertheless, the trial court denied his motion without a hearing or written reasons.

Defendant argues on appeal the trial court erred by imposing an excessive sentence which exceeded the range suggested by the sentencing guidelines and one based in part on a fatally defective PSI that omitted mitigating information in his favor. He asks this court to reverse his sentence and to grant him probation or alternatively, to remand the case, to allow him an opportunity to present the omitted information to the trial court.

The State argues defendant did not timely attempt to rebut the PSI since he did not object before the sentencing hearing, so he lost the right to object. It also asserts the PSI was not materially prejudicial since the trial court based its sentence primarily on defendant's position of authority or supervision over the victim.

LEGAL ANALYSIS

Assignment of Error No. 1

Defendant contends the PSI failed to comply with Code of Criminal Procedure article 875(A)(1), which reads in part:

In making the investigation, the probation officer shall inquire into the circumstances attending the commission of the offense, the defendant's history of delinquency or criminality, his family situation and background, economic and employment status, education, and personal habits.

(Emphasis added.)

State v. Jones, 398 So.2d 1049, 1051-52 (La. 1981), noted the important elements of Code of Criminal Procedure article 894.1 a trial court should consider before imposing sentence are the defendant's personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of the offense, and the likelihood of rehabilitation. See also State v. McGhee, 469 So.2d 1051, 1053 (La.App. 2d Cir.1985); State v. Roberts, 541 So.2d 961, 967 (La.App. 2d Cir.1989). The information from defendant's psychologist, mother, and employer omitted from the PSI is direct evidence of defendant's "family situation," "economic and employment situation," and "personal habits." Article 875(A) requires a probation officer to inquire into these areas when making a PSI.

Here, the PSI includes sections entitled "Offender's Statement," "Complainant's Statement," and "Social History." In the Offender's Statement section, the parole officer opined defendant "showed no apparent remorse for committing this instant offense." The defendant's psychologist, Pat Appleton, *1277 is acknowledged, but the officer notes defendant's therapy sessions have "not been verified." In the Complainant's Statement section, it is noted the victim's mother said defendant showed no remorse and she was in favor of a jail sentence. The PSI also includes defendant's educational and employment histories, along with his present living arrangements, in the Social History section.

Defendant contends that had the parole officer interviewed Appleton, Spurlin, and defendant's employer, "he [would] have discovered that the defendant was a hard working and responsible employee, who was the main source of income of his family, including the victim." Defendant adds "[t]he parole officer would also have discovered that the defendant and his wife had voluntarily entered into counseling. The defendant voluntarily left the matrimonial domicile, where the victim lived, but still continued to support the family." Though the parole officer omitted the aforesaid factors, counsel supplied the court with defendant's mitigating circumstances when he filed his motion to reconsider sentence. We must assume the trial court reviewed the motion and considered the attached affidavits before denying the motion. This court remarked in State v. Matthews, 572 So.2d 250, 253 (La.App. 1st Cir.1990), writ denied, 575 So.2d 387 (La.1991), that "there is little support in LSA-C. Cr. P. art. 894.1 for [a] defendant's argument" that a sentence is excessive (i.e., fatally flawed) solely because a trial court failed to consider defendant's social history before sentencing.[3] This assignment of error is without merit.

Assignments of Error Nos. 2 and 3

Defendant argues the trial court's reliance on a prejudicial PSI, coupled with his lack of opportunity to address its insufficiency at a meaningful hearing, denied him due process of law.

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Cite This Page — Counsel Stack

Bluebook (online)
681 So. 2d 1274, 1996 WL 551619, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-milstead-lactapp-1996.