State v. Morris

46 So. 3d 774, 2010 La. App. LEXIS 1154, 2010 WL 3156827
CourtLouisiana Court of Appeal
DecidedAugust 11, 2010
DocketNo. 45,436-KA
StatusPublished

This text of 46 So. 3d 774 (State v. Morris) 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. Morris, 46 So. 3d 774, 2010 La. App. LEXIS 1154, 2010 WL 3156827 (La. Ct. App. 2010).

Opinion

WILLIAMS, J.

11A Ouachita Parish Grand Jury returned an indictment charging the defendant, Kerry Morris, with felony theft of over $1 million dollars, in violation of LSA-R.S. 14:67(B)(1). As part of a plea agreement with the state, the defendant pled guilty to one count of theft of over $500. He was sentenced to serve 8½ years in prison at hard labor, with three-years of the sentence suspended. He was placed on supervised probation for a period of five years, to begin upon his release from prison. The defendant was also ordered to pay restitution in the amount of $1,249,780, with a credit of $200,000 which previously had been paid. For the reasons set forth herein, we affirm the defendant’s conviction and sentence.

FACTS

The defendant was a 49% owner of Southwest Express, Inc., a trucking company operating out of West Monroe, Louisiana. The other shareholders in the company were Gerald Beene, who financed the start-up of the corporation, and Denise Laurenson, Beene’s daughter. Laurenson also owned 49% of the stock, while Beene owned the remaining 2%. The defendant was a director and the day-to-day operator of the business; Beene was a director and the registered agent for the corporation; and Laurenson was also a director. The defendant was paid an annual salary of $52,000, given a car allowance in the amount of $500 per month and had use of the corporation’s credit card.

In 2004, Laurenson’s daughter was killed in a car accident. Thereafter, Lau-renson and Beene went through a period of mourning, followed by litigation related to the accident. During this period of time, the |2defendant was entrusted with operating the business. In 2006, Beene and Laurenson were notified by their certified public accountant that the business was experiencing a significant decline in profits. They also discovered that the defendant had been diverting customers’ payments into an account that he had opened in the name of “Southwest Express” at Community Trust Bank, rather than depositing the payments in the corporation’s bank account at Capital One Bank.1

On November 21, 2006, Laurenson filed a complaint against the defendant with the Ouachita Parish Sheriffs Office, and an investigation commenced. The investigation revealed that the defendant had misappropriated corporate funds from October 10, 2002, through January 1, 2007. Investigators also learned that the defendant had diverted approximately $80,000 per month into his account at Community Trust Bank.2 The investigation ultimately revealed that the defendant had stolen $1,249,780 from the corporation over a period of approximately four years.

[776]*776On July 17, 2007, a Ouachita Parish grand jury indicted the defendant with “felony theft between 10 Oct 2002 and 01 Jan 2007 ... totaling over $1,000,000.00 ... contrary to the provisions of R.S. 14:67.” On January 30, 2008, the defendant entered a plea agreement with the state whereby he pled ] 3guilty to one count of theft of over $500. The state agreed that there would be no new charges filed arising out of the defendant’s criminal conduct in this case.3

On October 9, 2008, the defendant was sentenced to serve 8⅜ years in prison at hard labor, with the first 5½ years to be served without suspension of sentence; the remaining three years at hard labor were suspended. He was placed on five years’ supervised probation to begin upon his release from incarceration, and was ordered to make restitution in the amount of $1,249,780. The defendant received a credit of $200,000 toward that amount;4 the five years of probation were ordered to commence upon the defendant’s release from incarceration and to be extended if restitution was not paid during the period of probation. The defendant appeals his sentence and the amount of restitution ordered.

DISCUSSION

Excessive Sentence

The defendant contends the sentenced imposed is excessive and disproportionate to this offense and this offender. He argues that the trial court failed to consider the factors set forth in LSA-C.Cr.P. 894.1, such as |4his age, family obligations and lack of significant criminal history. The defendant also argues that the court failed to consider the “undue hardship” the sentence would create on himself and his family. He further argues that probation would have been the appropriate sentence in this case, and the trial court failed to articulate the reasons why he was not sentenced to probation only.

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 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. 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 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); State v. Hamp[777]*777ton, 38,017 to 38,022 (La.App.2d Cir.1/28/04), 865 So.2d 284, writs denied, 2004-0834 (La.3/11/05), 896 So.2d 57 and 2004-2380 (La.6/3/05), 903 So.2d 452. The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, the seriousness of the offense Land the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Haley, 38,258 (La.App.2d Cir.4/22/04), 873 So.2d 747, writ denied, 2004-2606 (La.6/24/05), 904 So.2d 728. 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; State v. Jones, 33,111 (La.App.2d Cir.3/1/00), 754 So.2d 392, writ denied, 2000-1467 (La.2/2/01), 783 So.2d 385.

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; State v. Dorthey, 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. Weaver, 2001-0467 (La.1/15/02), 805 So.2d 166; State v. Lobato, 603 So.2d 739 (La.1992); State v. Robinson, 40,983 (La.App.2d Cir.1/24/07), 948 So.2d 379; State v. Bradford, 29,519 (La. App.2d Cir.4/2/97), 691 So.2d 864.

A trial court has broad discretion to sentence a defendant within the statutory limits.

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Related

State v. Jones
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State v. Weaver
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State v. Bonanno
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State v. Smith
839 So. 2d 1 (Supreme Court of Louisiana, 2003)
State v. Lathan
953 So. 2d 890 (Louisiana Court of Appeal, 2007)
State v. Shumaker
945 So. 2d 277 (Louisiana Court of Appeal, 2006)
State v. Shirley
945 So. 2d 267 (Louisiana Court of Appeal, 2006)
State v. Bradford
691 So. 2d 864 (Louisiana Court of Appeal, 1997)
State v. Smith
433 So. 2d 688 (Supreme Court of Louisiana, 1983)
State v. June
873 So. 2d 939 (Louisiana Court of Appeal, 2004)
State v. Haley
873 So. 2d 747 (Louisiana Court of Appeal, 2004)
State v. Lobato
603 So. 2d 739 (Supreme Court of Louisiana, 1992)
State v. Guzman
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State v. Lanclos
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State v. Robinson
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46 So. 3d 774, 2010 La. App. LEXIS 1154, 2010 WL 3156827, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-morris-lactapp-2010.