State v. Price

677 So. 2d 705, 1996 WL 374973
Louisiana Court of Appeal·Decided June 28, 1996·No. 95 KA 0997·Published·Cited by 7 cases

Opinion

677 So.2d 705 (1996)

STATE of Louisiana
v.
David PRICE.

No. 95 KA 0997.

Court of Appeal of Louisiana, First Circuit.

June 28, 1996.

*706 Sue Bernie, Assistant District Attorney, Baton Rouge, for State of Louisiana.

Brent K. Delee, Baton Rouge, for Defendant-Appellant David Price.

Before LOTTINGER, C.J., and GONZALES and FITZSIMMONS, JJ.

LOTTINGER, Chief Judge.

The defendant, David Price, was charged by bill of information with one count of aggravated oral sexual battery, La.R.S. 14:43.4, and four counts of molestation of a juvenile by virtue of a position of control or supervision over the juvenile, La.R.S. 14:81.2. Initially, the defendant pleaded not guilty. Thereafter, pursuant to a plea bargain agreement, the defendant pleaded guilty as charged. On appeal, we affirmed the defendant's convictions, vacated his sentences and remanded the case for resentencing.[1] On resentencing, the defendant received a sentence of fifteen years at hard labor on the aggravated oral sexual battery conviction and fifteen years at hard labor on each of the four molestation convictions, all sentences to run consecutive to one another, for a total of seventy-five years, with credit for time served.[2] He has appealed, alleging two assignments of error:

1. The trial court erred in imposing consecutive, rather than concurrent, sentences.
2. The trial court erred in imposing the maximum sentence on the four (4) counts of molestation of a juvenile.

FACTS

Because there was no trial in this case, the factual information is derived from the presentence investigative report and the trial court's comments on the facts during both sentencing hearings. The defendant, age thirty at the time of conviction, befriended the victims' mother while she was separated from the victims' father; at that time, the children were ages one, four, five, and seven. After the parents reunited, defendant remained a friend of the family and continued to be entrusted with the care of the children in the parents' absence. Defendant molested each of the four children on numerous occasions and photographed the children in posed, sexually explicit positions, both separately and together. His crimes against these children were discovered when a photo lab employee notified authorities of the content of film she was processing; the defendant was identified when he examined the negatives and ordered prints made.[3]

For his conviction of aggravated oral sexual battery, the defendant could have been sentenced to imprisonment for not more than twenty years, with or without hard labor.[4] La.R.S. 14:43.4(C). For each of the counts of molestation of a juvenile, he could have been sentenced to fifteen years imprisonment, with or without hard labor. La.R.S. 14:81.2(C).

ASSIGNMENTS OF ERROR NUMBERS ONE AND TWO

In assignment of error number one, defendant contends the trial court erred in failing to comply with the sentencing guidelines of *707 La.Code Crim.P. art. 894.1[5] in imposing consecutive sentences.

A trial court is required to "consider" the Felony Sentencing Guidelines in imposing sentence and to state for the record the considerations taken into account and the factual basis for the sentence imposed. La. Code Crim.P. art 894.1(A) & (C). Provided the court complies with these requirements of article 894.1, it has "complete discretion to reject the Guidelines and impose any sentence which is not constitutionally excessive, but is within the statutory sentencing range for the crime of which a defendant has been convicted...." State v. Smith, 93-0402, p. 3 (La. 7/5/94), 639 So.2d 237, 240 (on rehearing) (footnote omitted). The supreme court has described our duty as a reviewing court as follows:

[W]here the trial judge has considered the Guidelines and imposed a sentence, adequately stating for the record the considerations taken into account and the factual basis for imposition of that sentence, an appellate court is limited to a review of the sentence imposed for constitutional excessiveness, without regard as to whether the trial judge either employed or deviated from the Guidelines.

Smith, 93-0402, p. 3, 639 So.2d at 240.

At resentencing, the trial court referred to and incorporated its reasons on original sentencing and commented again upon the defendant's crimes and criminal history.[6] The court had reviewed the presentence investigation report, which recommended the imposition of maximum sentences of incarceration. The report bases this recommendation on several factors including defendant's predatory nature in seeking out his victims and gaining their trust and affection and his total lack of pity for his victims while committing these "vile crimes." The report deplores the appalling effect of the "repulsive pictures" defendant took of the children which, according to the report, "leads one to wish that this individual will never be allowed to roam free within society again."

At the beginning of defendant's first sentencing hearing, the district court took cognizance of defendant's status as a second felony offender with numerous other arrests for crimes against children. The court noted that defense counsel had been given an opportunity to review the presentence investigation report[7] and that defendant and his counsel had been afforded an opportunity to make comments, which they declined. At the second sentencing hearing, the court again referred to the presentence investigation report and stated it had considered the sentences within the Sentencing Guidelines but rejected them because they were "inapplicable under the heinous circumstances of these offenses."[8] The court found that there were no mitigating circumstances.[9] The instant record clearly shows that the district court considered the sentencing guidelines, decided to depart from them, and gave extensive reasons for its upward departure. Therefore, the defendant's arguments regarding the district court's failure to follow the sentencing guidelines is without merit.

Although a sentence falls within the statutory limits, it may be excessive either by reason of its length or because the circumstances warrant a less onerous sentencing alternative. State v. Willis, 591 So.2d 365, 373 (La.App. 1st Cir.1991), writ denied, 594 So.2d 1316 (La.1992). However, a trial court has great discretion in imposing a sentence within the statutory limits and such a *708 sentence will not be set aside as excessive in the absence of manifest abuse of discretion. State v. Lanclos, 419 So.2d 475, 478 (La. 1982).

Defendant also contends that the sentences are constitutionally excessive arguing that the crimes arise out of a "common scheme or plan" justifying concurrent, rather than consecutive, sentences. La.Code Crim.P. art. 883 provides in pertinent part as follows:

If the defendant is convicted of two or more offenses based on the same act or transaction, or constituting parts of a common scheme or plan, the terms of imprisonment shall be served concurrently unless the court expressly directs that some or all be served consecutively.

However, even if convictions arise out of a single course of conduct, consecutive sentences are not necessarily excessive. State v. Ortego, 382 So.2d 921, 923 (La.), cert. denied, 449 U.S. 848, 101 S.Ct. 135, 66 L.Ed.2d 58 (1980). Other facts must be taken in

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State v. Price, 677 So. 2d 705, 1996 WL 374973 (La. Ct. App. 1996).

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