State v. Smith

839 So. 2d 165, 2002 La.App. 5 Cir. 451, 2003 La. App. LEXIS 34, 2003 WL 118399
CourtLouisiana Court of Appeal
DecidedJanuary 14, 2003
DocketNos. 02-KA-451, 02-KA-1001
StatusPublished
Cited by3 cases

This text of 839 So. 2d 165 (State v. Smith) 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. Smith, 839 So. 2d 165, 2002 La.App. 5 Cir. 451, 2003 La. App. LEXIS 34, 2003 WL 118399 (La. Ct. App. 2003).

Opinion

J^CLARENCE E. McMANUS, Judge.

STATEMENT OF THE CASE

On February 25, 1997, the District Attorney for St. James Parish filed a bill of information charging the defendant, Terry Smith, with committing two counts of LSA-R.S. 14:89.1(A)(6), aggravated crime against nature, by engaging in unnatural carnal copulation with E.C., a child under the age of seventeen, when the defendant was at least three years older than the victim. On the same day, but in a separate bill of information, the St. James District Attorney charged the defendant with committing two counts of sexual battery upon E.C., when the victim had not yet attained the age of fifteen and was at least three years younger than the defendant. The bills of information alleged that the defendant committed the crimes of sexual battery and aggravated crime against nature between May 31, 1996 and January 3, 1997. During this time, the defendant was a thirty-three-year-old police officer and E.C. was a twelve-year-old girl. E.C. became pregnant and a paternity test established with a 99 percent certainty that the defendant was the father of the child.

The defendant originally pled not guilty to all of these charges at arraignment. However, on November 4, 1997, the defendant withdrew his former pleas of not guilty, executed a waiver of rights form, and pled guilty as charged to |sall counts. The trial judge advised the defendant of his constitutional rights, accepted the guilty plea and ordered a pre-sentence investigation to be conducted.

On February 2, 1998, the trial judge sentenced the defendant to eight years at hard labor without benefit of probation, [167]*167parole or suspension of sentence on each count of sexual battery to be served concurrently with each other. For the two counts of aggravated crime against nature, the defendant received sentences of twelve years at hard labor without benefit of probation, parole or suspension of sentence to be served concurrently with each other, but consecutively with the sexual battery sentences. After a hearing on the defendant’s application for post-conviction relief, the trial judge granted defendant’s request for an out-of-time appeal.

ASSIGNMENT OF ERROR NUMBER ONE

The defendant contends that he was incorrectly sentenced to an unusually harsh and excessive sentence. He argues that his aggregate sentence of twenty years at hard labor without benefit of probation, parole, or suspension of sentence is excessive because the trial judge imposed consecutive sentences. Specifically, the defendant asserts that he should have received concurrent sentences under LSA-C.Cr.P. art. 883 because all of the offenses were part of one continuous act. Further, defendant argues that the trial court did not provide sufficient justification for imposing consecutive sentences in his case.

First, we note that the record does not reflect that the defendant made or filed a motion to reconsider his sentence pursuant to LSA-C.Cr.P. art. 881.1. The failure to file a motion to reconsider sentence, or to state specific grounds upon which the motion is based, limits a defendant to a bare review of the sentence for constitutional excessiveness. State v. Hester, 99-426 (La.App. 5 Cir. 9/28/99), 746 So.2d 95, 103, writ denied, 99-3217, (La.4/20/00), 760 So.2d 342. The defendant’s chief complaint in this assignment is that the trial judge did not | ¿provide justification for consecutive sentences that were presumed to be concurrent. This Court has recognized that “[t]he issue of the excessiveness of a consecutive sentence is not included in a bare constitutional review.” State v. Christoff, 00-1823 (La.App. 5 Cir. 5/30/01), 788 So.2d 660, 666; State v. Badeaux, 01-406 (La.App. 5 Cir. 9/25/01), 798 So.2d 234, 240, writ denied, 01-2965 (La.10/14/02), 827 So.2d 414, 2002 La. LEXIS 3002; State v. Hester, supra.

However, this Court, in both Hester and Badeaux reviewed the defendant’s argument regarding his consecutive sentences even in the absence of a properly filed motion to reconsider sentence. Therefore, we will review defendant’s arguments regarding the alleged excessiveness of his consecutive sentences.

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. In reviewing a sentence for exces-siveness, the reviewing court must consider the crime and the punishment in light of the harm to society and gauge whether the penalty is so disproportionate as to shock its sense of justice. State v. Lobato, 603 So.2d 739, 751 (La.1992); State v. Williams, 98-1146 (La.App. 5 Cir. 6/1/99), 738 So.2d 640, 655, writ denied, 99-1984 (La.1/7/00), 752 So.2d 176.

Three factors are considered in reviewing a trial court’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. Watts, 99-311 (La.App 5 Cir. 8/31/99), 746 So.2d 58, 64, writ denied, 99-2733 (La.3/24/00), 758 So.2d 145.

[168]*168The defendant pled guilty to two counts of sexual battery and two counts of aggravated crime against nature. For each sexual battery count, the defendant was exposed to a possible imprisonment, with or without hard labor, for not more than | sten years without benefit of parole, probation, or suspension of sentence. LSA-R.S. 14:43.1(C). For each count of aggravated crime against nature, defendant was subject to possible imprisonment of not less than three nor more than fifteen years without benefit of parole, probation or suspension of sentence. LSA-R.S. 14:89.1(13).

Before sentencing, the trial judge provided extensive reasons for his decision. The trial judge noted that a pre-sentence investigation was ordered and the report had been filed into the record. The judge stated that he had read and considered two letters from the defendant, as well as letters in support of the defendant from his mother, his wife, his sister, two friends, and the defendant’s pastor. The judge further stated that he had considered a letter from the victim as well. Thereafter, the court stated as follows:

The Court believes there is an undue risk that during a period of suspended sentence of probation the defendant would commit another crime. He is in need of correctional treatment or a custodial environment that can be provided most effectively by his commitment to an institution and that a lesser sentence to be imposed herein than the sentence to be imposed herein would deprecate the seriousness of defendant’s offense.
The Court also noted the defendant’s multiple first offender status. In arriving at the sentence the Court considered all factors mentioned in Code of Criminal Procedure Article 894.1, in addition to positive (a)(1), (2), and (3) findings under Subparagraph (b). Particular mention should be made that: (1) the defendant’s conduct during the commission of the offense manifested deliberate cruelty to the victim. (2) The offender knew that the victim of the offense was particularly vulnerable or incapable of resistance due to extreme youth. (4) The offender used his position and status to facilitate the commission of the offense. (6) The defendant used threats of actual — of an actual violence in commission of the offense.

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Bluebook (online)
839 So. 2d 165, 2002 La.App. 5 Cir. 451, 2003 La. App. LEXIS 34, 2003 WL 118399, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-smith-lactapp-2003.