Opinion
2011 KA 2292-R
2013-09-16
STATE OF LOUISIANA v. RON PETERSON
Walter P. Reed District Attorney Covington, Louisiana And Kathryn Landry Special Appeals Counsel Baton Rouge, Louisiana Attorney for Appellee State of Louisiana Lieu T. Vo Clark Mandevilie, Louisiana Attorney for Defendant/Appellant Ron Peterson
NOT DESIGNATED FOR PUBLICATION
ON REMAND FROM THE SUPREME COURT
APPEALED FROM THE TWENTY-SECOND JUDICIAL DISTRICT COURT
IN AND FOR THE PARISH OF ST. TAMMANY
STATE OF LOUISIANA
DOCKET NUMBER 503203, DIVISION "A"
HONORABLE RAYMOND S. CHILDRESS, JUDGE
Walter P. Reed
District Attorney
Covington, Louisiana
And
Kathryn Landry
Special Appeals Counsel
Baton Rouge, Louisiana
Attorney for Appellee
State of Louisiana
Lieu T. Vo Clark
Mandevilie, Louisiana
Attorney for Defendant/Appellant
Ron Peterson
BEFORE: McDONALD, THERIOT, AND DRAKE, JJ.
McDONALD, J.
The defendant, Ron Peterson, was charged by bill of information with sexual battery, a violation of La. R.S. 14:43.1. He pled not guilty and, following a jury trial, was found guilty as charged. He was sentenced to seventy-five years imprisonment at hard labor with the first twenty-five years of the sentence to be served without benefit of parole, probation, or suspension of sentence. The defendant filed a motion to reconsider sentence, which was denied.
The State filed a multiple offender bill of information. Following a hearing on the matter, the defendant was adjudicated a second-felony habitual offender. The trial court vacated the previously imposed seventy-five-year sentence and resentenced the defendant to ninety-nine years at hard labor. The defendant appealed his sentence, asserting in two assignments of error that the trial court erred in denying his motion to reconsider sentence and that his sentence was excessive. Affirming the conviction, habitual offender adjudication, and sentence, this court found that while the defendant filed a motion to reconsider sentence after the trial court imposed the original seventy-five-year sentence, the defendant failed to make or file a second motion to reconsider sentence after the original sentence was vacated and the new ninety-nine-year sentence was imposed at the habitual offender hearing. See La. Code Crim. P. arts. 881.1(E) & 881.2(A)(1). Thus, we found the defendant was procedurally barred from having these assignments of error reviewed. We further noted in a footnote that when the defendant was resentenced, defense counsel stated, "Note defense objection to the harsh sentence, Your Honor." We found that this objection did not constitute an oral motion to reconsider sentence and that a general objection to a sentence without stating specific grounds, including excessiveness, preserved nothing for appellate review. See State v. Peterson, 2011-2292 (La. App. 1st Cir. 6/8/12), 2012 WL 2089512 (unpublished).
The defendant applied for a writ of certiorari to our supreme court, which was granted. The supreme court found that given the defendant's initial motion to reconsider when the trial court imposed its original sentence, defense counsel's objection at the habitual offender hearing to the "harsh" sentence imposed by the trial court that "significantly increased" the defendant's term of imprisonment adequately preserved a bare claim of excessiveness for review. Accordingly, the supreme court remanded the case to this court for consideration of the defendant's excessive sentence claim. See State v. Peterson, 2012-1620 (La. 3/1/13), 108 So.3d 781. We affirm the conviction, habitual offender adjudication, and sentence.
FACTS
Michelle had been dating the defendant for a few years. They both lived in Lacombe, but in separate houses. Sometimes when Michelle was at work, the defendant would watch her son and M.H., her daughter, at his house. One day during the summer of 2010 when M.H. was ten years old, she and her brother were at the defendant's house. At some point, while they were watching a movie, the defendant grabbed M.H.'s hand and put it on his penis. M.H.'s hand was on the top of the defendant's shorts.
ASSIGNMENTS OF ERROR NOS. 1 and 2
In these related assignments of error, the defendant argues, respectively, the trial court erred in denying the motion to reconsider sentence, and the sentence imposed is unconstitutionally excessive. Specifically, the defendant contends that his ninety-nine-year sentence as a second-felony habitual offender is excessive.
The Eighth Amendment to the United States Constitution and Article I, § 20, of the Louisiana Constitution prohibit the imposition of cruel or excessive punishment. Although a sentence falls within statutory limits, it may be excessive. State v. Sepulvado, 367 So.2d 762, 767 (La. 1979). A sentence is considered constitutionally excessive if it is grossly disproportionate to the seriousness of the offense or is nothing more than a purposeless and needless infliction of pain and suffering. A sentence is considered 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. Andrews, 94-0842 (La. App. 1st Cir. 5/5/95), 655 So.2d 448, 454. The trial court has great discretion in imposing a sentence within the statutory limits, and such a sentence will not be set aside as excessive in the absence of a manifest abuse of discretion. See State v. Holts, 525 So.2d 1241, 1245 (La. App. 1st Cir. 1988). Louisiana Code of Criminal Procedure article 894.1 sets forth the factors for the trial court to consider when imposing sentence. While the entire checklist of Art. 894.1 need not be recited, the record must reflect the trial court adequately considered the criteria. State v. Brown, 02-2231 (La. App. 1st Cir. 5/9/03), 849 So.2d 566, 569.
The articulation of the factual basis for a sentence is the goal of Art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with the article. State v. Lanclos, 419 So.2d 475, 478 (La. 1982). The trial judge should review the defendant's personal history, his prior criminal record, the seriousness of the offense, the likelihood that he will commit another crime, and his potential for rehabilitation through correctional services other than confinement. See State v. Jones, 398 So.2d 1049, 1051-52 (La. 1981). On appellate review of a sentence, the relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. State v. Thomas, 98-1144 (La. 10/9/98), 719 So.2d 49, 50 (per curiam).
In the instant matter, the defendant, facing a maximum sentence of one hundred ninety-eight years at hard labor as a second-felony habitual offender, was sentenced to ninety-nine years at hard labor. See La. R.S. 14:43.1(C)(2) & La. R.S. 15:529.1(A)(1). The defendant argues in brief that considering the specific facts of his case, the ninety-nine year sentence is excessive. Specifically, the defendant notes that the incident involved in this case was "one isolated instance that occurred where the alleged touching was on top of clothing." The defendant continues that this "case is clearly not the worst type of sexual battery case."
The defendant did not receive a ninety-nine year enhanced sentence for forcing a ten-year old girl to touch him on top of his clothing. While the instant offense might not be considered "the worst type of sexual battery case," the defendant was not being sentenced for the instant offense alone. Rather, under the Habitual Offender Law, the defendant, a recidivist with prior felony convictions, was being punished for the instant crime in light of his continuing disregard for the laws of our State. See State v. Johnson, 97-1906 (La. 3/4/98), 709 So.2d 672, 676-77.
We note that in imposing the initial seventy-five year sentence for the sexual battery conviction, the trial court provided the following reasons, including that the defendant had a history of violent crimes:
The defendant is now being sentenced in accordance with the sentencing agreement [sic] in the Louisiana Code of Criminal Procedure, Article 894.1, et seq.
Some of the factors taken into consideration in this sentencing is the age of the victim.
The offender knew, or should have known, that the victim was particularly vulnerable and incapable of resistance due to extreme youth.
He, obviously, had had a relationship with the victim's mother and knew the age of the victim. That was not in question.
The Court, taking that matter into consideration and having considered that the defendant has a prior criminal history of violent crimes, hereby sentences the defendant to seventy-five (75) years at hard labor;
The first twenty-five (25) years of that sentence shall be imposed without the benefit of probation, parole or suspension of sentence.
The Court is of the opinion that to impose a lesser sentence would deprecate the seriousness of the offense.
And furthermore, I've taken into consideration the testimony this Court heard here today as it pertains to the defendant. That was another factor.
The testimony the trial court "heard here today" referred to a motion for maximum sentence filed by the State. At the sentencing hearing, prior to the imposition of sentence, the prosecutor elicited the testimony of Detective Brian Williams, with the St. Tammany Parish Sheriffs Office, about an incident that occurred around the time of the instant sexual battery incident. Detective Williams testified that he had investigated a rape that had occurred on November 25, 2010. The victim of the alleged rape knew the defendant by his nickname, "Yogi." Detective Williams indicated that the defendant's DNA was found on the victim's clothes and panties. The parties stipulated to the DNA evidence. On cross-examination, the detective testified the case was still active and the defendant had not yet been charged with rape. According to the detective, the defendant had gone to the victim's house and they consumed alcohol. The next day the victim felt she had been raped and went to the hospital. When asked if the DNA showed that the victim and the defendant may have had sex, the detective answered in the affirmative.
The following day at the habitual offender hearing, the State established that the defendant had a prior armed robbery conviction and a first degree robbery conviction. Although the defendant committed these crimes on separate dates in St. Tammany Parish, the crimes were joined in a single bill of information (docket number 133323), and he pled guilty to both crimes on the same date, November 19, 1985. For the armed robbery conviction, the defendant was sentenced to eighteen years at hard labor without benefit of probation, parole, or suspension of sentence, and for the first degree robbery conviction, he was sentenced to fifteen years at hard labor without benefit of probation, parole, or suspension of sentence. The sentences were ordered to run consecutively. Lindsey Lousteau, the defendant's probation officer, testified the defendant had been released from prison on "good time parole" on July 14, 2001. Lousteau further indicated that the defendant's parole was to run until 2017 and, as such, he was still on parole at the time he committed the instant sexual battery.
In sentencing the defendant as a second-felony habitual offender, the trial court stated in pertinent part:
All right. As I stated yesterday, he was found guilty in the case before me on the 19th of July, 2011. He was previously sentenced yesterday. . . . As I've stated, he was previously convicted here in the Parish of St. Tammany, State of Louisiana in 133323, as indicated by that, which has been filed into the record.
The record before us clearly established an adequate factual basis for the sentence imposed on the defendant. The defendant had prior convictions for violent crimes, he was being investigated at the time of sentencing for rape, and while he was still on parole, he committed the instant offense of sexual battery of his girlfriend's ten-year-old daughter. His girlfriend had placed her daughter in the defendant's care while she worked, and the defendant exploited that position of trust. See State v. Kirsch, 02-0993 (La. App. 1st Cir. 12/20/02), 836 So.2d 390, 395-96, writ denied, 03-0238 (La. 9/5/03), 852 So.2d 1024.
Considering the trial court's review of the circumstances, the nature of the crime, the defendant's criminal history, and the fact the defendant was sentenced to half of the maximum sentence allowable under the law, we find no abuse of discretion by the trial court. The sentence imposed by the trial court is not grossly disproportionate to the severity of the offense and, therefore, is not unconstitutionally excessive. The trial court did not err in denying the defendant's objection to the "harsh" sentence.
These assignments of error are without merit.
CONVICTION, HABITUAL OFFENDER ADJUDICATION, AND SENTENCE AFFIRMED.