State v. Muth

145 So. 3d 495, 13 La.App. 5 Cir. 1003, 2014 WL 2861568, 2014 La. App. LEXIS 1605
CourtLouisiana Court of Appeal
DecidedJune 24, 2014
DocketNo. 13-KA-1003
StatusPublished
Cited by4 cases

This text of 145 So. 3d 495 (State v. Muth) 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. Muth, 145 So. 3d 495, 13 La.App. 5 Cir. 1003, 2014 WL 2861568, 2014 La. App. LEXIS 1605 (La. Ct. App. 2014).

Opinion

JUDE G. GRAVOIS, Judge.

| ¡¿Defendant, Carlo Muth, appeals his sentence for failing to comply with the registration requirements as a convicted sex offender. For the reasons that follow, we affirm defendant’s sentence and remand the matter to the trial court for correction of an error patent noted herein.

PROCEDURAL HISTORY

On March 28, 2013, the Jefferson Parish District Attorney filed a bill of information charging defendant, Carlo Muth, with failure to maintain his sex offender registration by failing to provide community notification, in violation of La. R.S. 15:542. On May 3, 2013, defendant was arraigned and entered a plea of not guilty to the charge. Following a trial by jury on September 17, 2013, twelve jurors unanimously found defendant guilty as charged. On September 26, 2013, after denying defendant’s motion for a new trial and in arrest of judgment, the trial court sentenced defendant to three years imprisonment at hard labor without the | ¡¡benefit of parole, probation, or suspension of sentence. Defendant’s motion to reconsider sentence was filed and denied that day. This timely appeal followed.

FACTS

On November 22, 2005, in the 25th Judicial District Court, Plaquemines Parish, defendant pled guilty to molestation of a juvenile in violation of La. R.S. 14:81.2. In conjunction with his guilty plea, defendant was fingerprinted and informed of the sex offender registration requirements.

Nearly seven years later, on October 17, 2012, in accordance with La. R.S. 15:542, defendant notified the Jefferson Parish [498]*498Sheriffs Office of his intent to establish residency in Jefferson Parish. On that date, defendant completed a Jefferson Parish Sheriffs Office sex offender registration form and was fingerprinted. As provided in La. R.S. 15:542.1(2)(a), defendant was informed that he had twenty-one days to notify the community of his status as a convicted sex offender.

Defendant, a commercial diver, alleged that he was experiencing financial difficulties in November of 2012 and could not afford the required $628.75 community notification fee. He reported his financial situation to Lieutenant Luis Munguia of the Jefferson Parish Sheriffs Office who supervised the sex offender registry. Lt. Munguia granted defendant an extension until January 18, 2013 to comply with all registration requirements. However, defendant remained non-compliant as of that date. On January 22, 2018, Lt. Munguia obtained a warrant for defendant’s arrest. In March, defendant moved back to Plaquemines Parish and, while attempting to register with the Plaquemines Parish Sheriffs Office on March 18, 2013, was arrested pursuant to the Jefferson Parish warrant. Defendant acknowledged that he had received a paycheck on Thursday, March 14, 2013, but|4made no effort to pay his community notification fee prior to his arrest on Monday, March 18.

Deputy Dona Quintanilla, an expert in the field of latent print examination with the Jefferson Parish Sheriffs Office, compared the fingerprints obtained from defendant at trial in the instant matter with the fingerprints obtained from defendant in connection with his underlying conviction for molestation of a juvenile in Plaque-mines Parish and the fingerprints obtained from defendant during the process of his sex offender registration in Jefferson Parish. Deputy Quintanilla testified that these latter sets of fingerprints matched the fingerprints obtained from defendant at trial.

ASSIGNMENT OF ERROR

In his sole assignment of error, defendant argues that his sentence is unconstitutionally excessive. Specifically, he claims that the trial court failed to consider mitigating or aggravating factors as set forth in La.C.Cr.P. art. 894.1. Defendant maintains that his sentence is excessive in light of the fact that his non-compliance resulted from his inability to afford the registration fee rather than a deliberate evasion of his registration obligation.

The failure to file a motion to reconsider sentence, or to state the specific grounds upon which the motion is based, limits a defendant to a bare review of the sentence for unconstitutional excessiveness. State v. Gatewood, 12-281 (La.App. 5 Cir. 10/30/12), 103 So.3d 627, 639. Defendant filed a motion to reconsider sentence, in which he argued that his sentence was excessive on account of his limited criminal history, his employment, and his maintaining a residence. On appeal, defendant argues that his sentence is unconstitutionally excessive because the trial court did not adequately consider the criteria set forth in La.C.Cr.P. art. 894.1.

| .^Defendant did not raise this issue below; he raises it for the first time on appeal. Consequently, this issue is precluded from appellate review. See State v. Brooks, 00-953 (La.App. 5 Cir. 2/11/03), 841 So.2d 854, 858; State v. Wickem, 99-1261 (La.App. 5 Cir. 4/12/00), 759 So.2d 961, 967-68, writ denied, 00-1371 (La.2/16/01), 785 So.2d 839; State v. Battie, 98-1296 (La.App. 5 Cir. 5/19/99), 735 So.2d 844, 855-56, unit denied, 750 So.2d 980 (La.1999). Nevertheless, even if defendant was not precluded from raising this issue on appeal, we note that the trial court’s failure to articulate every circum[499]*499stance listed in La.C.Cr.P. art 894.1 will not require a remand for re-sentencing if there is an adequate factual basis for the sentence contained in the record. Brooks, 841 So.2d at 858.

The Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. A sentence is considered excessive if it is grossly disproportionate to the offense or imposes needless and purposeless pain and suffering. State v. Smith, 01-2574 (La.1/14/03), 839 So.2d 1, 4. A sentence is grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. State v. Lawson, 04-334 (La.App. 5 Cir. 9/28/04), 885 So.2d 618, 622.

A trial judge has broad discretion when imposing a sentence and a reviewing court may not set a sentence aside absent a manifest abuse of discretion. Indeed, the issue on appeal is not whether another sentence might have been more appropriate, but whether the trial court abused its discretion. State v. Dorsey, 07-67 (La.App. 5 Cir. 5/29/07), 960 So.2d 1127, 1130. If the record supports the sentence imposed, the appellate court shall not set aside a sentence for excessiveness. State v. Pearson, 07-332 (La.App. 5 Cir. 12/27/07), 975 So.2d 646, 656. In reviewing a trial court’s sentencing discretion, three factors are ^considered: (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. Pearson, 975 So.2d at 656.

In the instant case, defendant was convicted of failing to provide community notifications, for which the penalty is a fine of not more than one thousand dollars and imprisonment at hard labor for not less than two nor more than ten years, without the benefit of parole, probation, or suspension of sentence. See La. R.S. 15:542.1.4(A)(1). Defendant was sentenced to three years imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence. Although defendant’s sentence is within statutory limits, it is nonetheless subject to review for unconstitutional excessiveness. Smith, 839 So.2d at 4.

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Bluebook (online)
145 So. 3d 495, 13 La.App. 5 Cir. 1003, 2014 WL 2861568, 2014 La. App. LEXIS 1605, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-muth-lactapp-2014.