Opinion
NO. 2017 KA 0025
02-20-2018
STATE OF LOUISIANA v. LAKEISHA MARSHALL
Ricky L. Babin, District Attorney Donaldsonville, Louisiana Donald D. Candell, Lindsey Manda, Assistant District Attorneys Gonzales, Louisiana Attorneys for Appellee, State of Louisiana Gwendolyn K. Brown Baton Rouge, Louisiana Attorney for Defendant/Appellant, Lakeisha Marshall
NOT DESIGNATED FOR PUBLICATION
On Appeal from the 23rd Judicial District Court, Parish of Ascension, State of Louisiana
Trial Court No. 35553
The Honorable Thomas Kliebert Jr., Judge Presiding Ricky L. Babin,
District Attorney
Donaldsonville, Louisiana
Donald D. Candell,
Lindsey Manda,
Assistant District Attorneys
Gonzales, Louisiana Attorneys for Appellee,
State of Louisiana Gwendolyn K. Brown
Baton Rouge, Louisiana Attorney for Defendant/Appellant,
Lakeisha Marshall BEFORE: GUIDRY, PETTIGREW, AND CRAIN, JJ. CRAIN, J.
The defendant, Lakeisha Marshall, pled guilty to failure to register and notify as a sex offender or child predator, a violation of Louisiana Revised Statute 15:542.1.4. The trial court sentenced her to eight years at hard labor without the benefit of parole, probation, or suspension of sentence. Three pro se motions for reconsideration of sentence were denied. The defendant appeals. We affirm the conviction and sentence.
FACTS
Because the defendant pled guilty, the facts were not fully developed. According to the Boykin colloquy, on January 4, 2016, the defendant failed to comply with her registration obligations as a sex offender, after having been convicted of enticing a person into prostitution.
EXCESSIVE SENTENCE
In two related assignments of error, the defendant asserts the trial court erred in imposing an excessive sentence and in denying her motions to reconsider sentence. According to the defendant, the trial court failed to provide sufficient justification for the sentence and failed to consider mitigating circumstances, such as her employment background, family history, and role as a caregiver for her ill husband. The defendant further contends her failure to comply with the registration requirements arose from circumstances related to her homelessness.
Article I, Section 20 of the Louisiana Constitution prohibits the imposition of excessive punishment. Although a sentence may be within statutory limits, it may violate a defendant's constitutional right against excessive punishment and is subject to appellate review. State v. Sepulvado, 367 So. 2d 762, 767 (La. 1979). A sentence is unconstitutionally excessive if it is grossly disproportionate to the severity of the offense or is nothing more than a purposeless and needless infliction of pain and suffering. State v. Dunn, 15-1972 (La. App. 1 Cir. 12/22/16), 208 So. 3d 954, 961, writ denied, 17-0297 (La. 10/27/17), 228 So. 3d 1222. A sentence is grossly disproportionate if, when the crime and punishment are considered in light of the harm to society, it shocks one's sense of justice. State v. Reed, 409 So. 2d 266, 267 (La. 1982). The sentence imposed will not be set aside absent a showing of manifest abuse of the trial court's wide discretion to sentence within statutory limits. State v. Lobato, 603 So. 2d 739, 751 (La. 1992).
Louisiana Code of Criminal Procedure article 894.1 sets forth what must be considered by the trial court before imposing a sentence. The trial court need not recite the entire checklist of Article 894.1, but the record must reflect the guidelines were adequately considered. State v. Herrin, 562 So. 2d 1, 11 (La. App. 1 Cir.), writ denied, 565 So. 2d 942 (La. 1990). A review for individual excessiveness should consider the circumstances of the crime and the trial court's stated reasons and factual basis for the sentencing decision. Herrin, 562 So. 2d at 11. Remand for full compliance with Article 894.1 is unnecessary when a sufficient factual basis for the sentence is shown. See State v. Lanclos, 419 So. 2d 475, 478 (La. 1982).
The defendant pled guilty to failure to register and notify as a sex offender or child predator under Section 15:542.1.4. A person guilty of this offense shall, upon first conviction, be fined not more than one thousand dollars and imprisoned with hard labor for not less than two years nor more than ten years without benefit of parole, probation, or suspension of sentence. See La. R.S. 15:542.1.4A(1).
In sentencing the defendant to eight years at hard labor without the benefit of probation, parole, or suspension of sentence, the trial court relied, in part, on a presentence investigation report that identifies the defendant's criminal history, including a 2014 conviction for enticing minors into prostitution. According to the report, the defendant's probation for that conviction was revoked when she and her newborn baby tested positive for cocaine. The defendant failed to report to her probation officers for several months and absconded supervision until her arrest for the present offense. The report states the defendant is a threat both to the public and her own children, and recommends a maximum sentence of ten years at hard labor. The trial court also considered the defendant's age and supportive letters from the defendant's friends and family.
In written reasons, the trial court said there is an undue risk the defendant will commit another crime during the period of a suspended sentence or probation, the defendant is in need of correctional treatment or a custodial environment that is provided most effectively by commitment to an institution, and any lesser sentence will deprecate the seriousness of the offense. See La. Code Crim. P. art. 894.1A(1)-(3). The trial court further found the defendant knowingly created a risk of death or great bodily harm to more than one person, and her continued substance abuse is a threat to the public and her own children. See La. Code Crim. P. art. 894.1B(5) and (21). The trial court also pointed out that, after being given the opportunity of rehabilitation while on probation and parole, the defendant continued to disregard the law and commit crimes involving substance abuse and harm to the well-being of children.
The record confirms the trial court, prior to sentencing, considered the guidelines in Article 894.1, reviewed the presentence investigation report, and considered mitigating circumstances, including the defendant's impoverished condition. The sentencing statute requires any sentence imposed be served without benefit of parole, probation, or suspension of sentence. The trial court complied with that requirement. The pre-sentence investigation report and the trial court's articulated reasons support the choice of an eight-year sentence from a range of two to ten years. The sentence was ordered to be served consecutive to the sentence imposed following the revocation of the defendant's probation. Louisiana Code of Criminal Procedure article 883 only requires concurrent sentences when the offenses derive from the same act or transaction or are part of a common scheme or plan and, even then, only if the sentencing judge does not order the sentences to be served consecutively. Otherwise, sentences must be served consecutively, unless ordered to run concurrent. The defendant's offenses do not require a concurrent sentence under Article 883. The trial court did not err in ordering the sentences be served consecutively.
The defendant's sentence is within the statutory parameters and is legally correct. We cannot say the sentence is grossly disproportionate to the severity of the offense and shocks one's sense of justice. Therefore, the sentence is not excessive and does not constitute a manifest abuse of the trial court's wide discretion. The trial court did not err in denying the motions to reconsider sentence. The defendant's assignments of error are without merit.
CONVICTION AND SENTENCE AFFIRMED.
Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).