State v. Strother

606 So. 2d 891, 1992 WL 233360
CourtLouisiana Court of Appeal
DecidedSeptember 23, 1992
Docket24158-KA
StatusPublished
Cited by49 cases

This text of 606 So. 2d 891 (State v. Strother) 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. Strother, 606 So. 2d 891, 1992 WL 233360 (La. Ct. App. 1992).

Opinion

606 So.2d 891 (1992)

STATE of Louisiana, Appellee,
v.
David Ralph STROTHER, Appellant.

No. 24158-KA.

Court of Appeal of Louisiana, Second Circuit.

September 23, 1992.

*892 Blanchard, Walker, O'Quin & Roberts by A.M. Stroud, III, Shreveport, for appellant.

Richard Ieyoub, Atty. Gen., Baton Rouge, Paul J. Carmouche, Dist. Atty., Catherine M. Estopinal, Asst. Dist. Atty., Shreveport, for appellee.

Before MARVIN, C.J., and NORRIS and BROWN, JJ.

MARVIN, Chief Judge.

In this conviction in which the Louisiana Felony Sentencing Guidelines were applied, we affirm concurrent and consecutive hard labor sentences which aggregate 16 years imposed on a Shreveport "financial planner," David Ralph Strother, who bargained to plead guilty to five counts of theft over $500 perpetrated in his scheme to defraud five victims of more than $750,000 from 1986 into 1990.

Appealing the sentences as excessive, Strother additionally contends that the trial court's upward departure from the recommended sentence range on the Sentencing Guidelines grid is not supported by the circumstances and that the sentences should not have been made, in part, to run consecutively because his conduct in each count, charged in one bill of information, constituted a part of a common or continuing scheme.

The plea agreement was between the prosecution and Strother. The prosecution agreed not to file charges of theft from eight other victims totaling $192,682, and not to oppose Strother's request to the court that all sentences run concurrently. The court made no agreement with defendant and its sentencing authority was not enervated in any respect.

This court's review of the sentence is primarily based on La. Const. Art. 1, § 20 (1974), which prohibits the imposition of "excessive" punishment. We must also determine whether the trial court has complied with the mandate of CCrP Art. 894.1 to consider the recommendations of the Felony Sentencing Guidelines, effective January 1, 1992, and to state for the record the considerations it has taken into account, including any aggravating and mitigating circumstances which may be present, and the factual basis for imposing sentence. LRS 15:328.

We conclude the trial court's reasons for imposing the sentences, which are an upward departure from the Sentencing Guidelines Grid, are supported by the record and are justified.

Affirming, we find the sentences are not constitutionally excessive. See Guidelines § 101, 209; LRS 15:321-329. State v. Joles, 492 So.2d 490 (La.1986). U.S. cert. denied.

FACTS

Strother, a 49-year-old, was self-employed, preparing and filing income tax returns and operating an investment firm, known as Assets Management. He styled himself as a financial planner. Beginning in the mid-1980s he successfully began soliciting funds from some selected customers whose ability to "invest" he learned from the income tax returns he prepared for them. He represented to his victims that *893 he could provide for them a safe, secure, high yield, federally-insured investment in what he called IMC, "Institution Management Corporation."

IMC was not an institution or a corporation, but a checking account, solely controlled and created by Strother in a Shreveport bank. He induced his victims to "invest" their funds in his deceptively-named bank account.

Occasionally and when necessary to preserve the confidence of a particular victim of the scheme, he wrote to a victim an IMC check which appeared to be a high-interest return on invested funds. More often, however, he wrote IMC checks for his personal and "business" expenses, utilities, credit cards, membership fees and dues in a country club and a dinner club, a lease and maintenance on a Mercedes Benz, salaries of his Assets Management employees and office rent. From the IMC account he also paid himself a salary (more than $41,000) during one 18-month period and $7,600 in NSF bank overdraft charges on another bank account.

Ironically, the "books" Strother secretly kept on the IMC scam were discovered by Strother's employees at Assets Management, who revealed the scheme, causing the investigation and later institution of charges.

The district attorney's office found 13 investors who had been bilked out of almost $946,000 by Strother. The five victims named in the bill of information, like most of the other eight victims, were persons for whom Strother had prepared income tax returns, whose financial worth and ability were known in detail by Strother. Most of his victims were elderly retirees, some of whom were shown to have sustained emotional trauma as a result of Strother's thefts and inability to make any significant restitution.

In short, Strother practiced a rather typical Ponzi scheme, using, in part, the proceeds of later thefts to cover up earlier thefts to maintain the scam.

THE FIVE COUNTS AND THE SENTENCES IMPOSED

Strother defrauded each victim named in the bill of the respective totals shown, stealing from the five a total of $753,318 during these inclusive dates:

Graham        5/21/86-04/02/87         $260,470         (Count 4)
Young         7/24/87-04/12/89         $167,000         (Count 5)
Cook          5/25/88-01/19/89         $218,848         (Count 2)
Galliher      6/21/89-11/27/89         $ 82,000         (Count 3)
Black         4/4 and 04/06/90         $ 25,000         (Count 1)

On Count 4, in which a total of $260,470 was stolen from the victim for about a year which did not overlap in time with the other four counts, the sentence was eight years.

On Counts 1 ($25,000) and 3 ($82,000), which, like Count 4, did not overlap in time, the sentence on each count was three years, concurrent with each other, but consecutive to the eight-year sentence on Count 4.

On Counts 2 ($218,848) and 5 ($167,000), which overlapped in time, the sentence on each was five years, concurrent with each other, but consecutive to all other sentences. The aggregate is 16 years, eight years on Count 4, three years on Counts 1 and 3, and five years on Counts 2 and 5.

The trial court considered the time periods and the amount swindled from each of the five victims to assess the hard labor sentence in each count. No fines were imposed and restitution was not ordered.

THE FELONY SENTENCING GUIDELINES

The Louisiana Felony Sentencing Guidelines recommend a uniform sanctioning policy in felony cases for the purposes of achieving certainty, uniformity, consistency *894 and proportionality of punishment, fairness to victims and the protection of society. § 101A and D. See also LRS 15:326 D. The severity of the sentence should be "proportional" to the seriousness of the offense of conviction and the severity of the offender's criminal history. §§ 101E2, 103C.

The guidelines are advisory, not mandatory. LRS 15:326. A sentence shall not be declared unlawful or excessive solely because the sentencing court imposes a sentence that does not conform with the designated sentence range in the guidelines grid. LRS 15:328; CCrP Art. 894.1; § 103J.

TYPICAL VS. ATYPICAL CASES

The sentencing ranges in the guidelines grid are intended to be appropriate for, and to apply to, the "typical case" in which aggravating and mitigating circumstances are not present. § 103D.

Upward departures from the designated sentence range of the guideline grid should be made when one or more aggravating circumstances significantly differentiates the particular case from the "typical." § 209A3.

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Bluebook (online)
606 So. 2d 891, 1992 WL 233360, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-strother-lactapp-1992.