State Of Louisiana v. Joshua James Simon ( 2022 )

STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
NO. 2022 KA 0726
L K STATE OF LOUISIANA
VERSUS
JOSHUA JAMES SIMON
Judgment Rendered: DEC 2 2 2022
Appealed from the
17th Judicial District Court
Parish of Lafourche, State of Louisiana
No. 581591
The Honorable Marla M. Abel, Judge Presiding
Kristine Russell Attorneys for the State of Louisiana
District Attorney
Jennifer F. Richard
Joseph S. Soignet
Allie Fournet
Assistant District Attorneys
Thibodaux, Louisiana
Gwendolyn K. Brown Attorney for Defendant/Appellant,
Baton Rouge, Louisiana Joshua James Simon
BEFORE: WHIPPLE, C.J., GUIDRY AND WOLFE, JJ.
M
WOLFE, J.
The defendant, Joshua James Simon, was charged by amended bill of
information with simple kidnapping ofM.B.' ( count I), a violation of La. R.S. 14: 45;
aggravated second degree battery of C. B. ( count III), a violation of La. R.S. 14: 34. 7,
and domestic abuse battery by burning of C. B. ( count IV), a violation of La. R.S.
14: 35. 3( M)( 1). Z He pled not guilty on all counts. Following a jury trial, he was
found guilty as charged by unanimous verdicts on all counts. The trial court denied
the defendant' s motion for new trial and sentenced him as follows: on count I, five
years at hard labor; on count III, fifteen years at hard labor; and on count IV, three
years at hard labor. The trial court ordered that the sentences be served consecutively
and without the benefit of parole, probation, or suspension of sentence. The defendant
made a motion for reconsideration of sentence, but the motion was denied. He now
appeals,' raising six assignments of error. For the following reasons, we affirm the
convictions on counts I, III, and IV; affirm the sentence on count IV, and vacate the
sentence and remand for resentencing on counts I and III.
FACTS
On October 21, 2018, C. S., the victim of the aggravated second degree battery
and the domestic abuse battery by burning, drove to the defendant' s house to return
his belongings, as she and the defendant had ended a two-month intimate relationship
the previous night. In the car with C. S. was her seven -month-old daughter, M.B., the
This case involves a crime victim who was a minor under the age of eighteen at the time
of the commission of count I. Accordingly, we reference that victim and her relatives only by their
initials. See La. R. S. 46: 1844( W); State v. Mangrum, 2020- 0243 ( La. App. 1st Cir. 2122121),
321 So. 3d 986, 989 n. l, writ denied, 2021- 00401 ( La. 10/ l/ 21), 324 So. 3d 1050,
2
The State entered a nolle prosequi on count II.
3
The trial court granted the defendant an out -of t-ime appeal. ( R. 118). See State v.
Counterman, 475 So. 2d 336, 340 ( La. 1985) (" While La. [ Code Crim.] P. [ a] rt. 930. 3 does not
expressly provide for the specific form of relief to be granted when the defendant loses his
constitutional right to appeal without fault on his part, the court arguably has the inherent authority
to grant the limited relief of an out -of time
- appeal ( as opposed to the usual relief of a new trial in
successful post conviction applications).").
2
victim in count I. When C.S. arrived at the defendant' s house, she knocked on the
door. The defendant came to the door, cursed at her, spit in her face, and slammed the
door. He subsequently reopened the door and asked C.S. to come inside with him.
C. S. refused and began walking to her car. The defendant followed C. S., removed
M.B. from the car, and took M.B. inside of his house. C. S. did not give the defendant
permission to remove M.B. from the car.
C.S. followed the defendant into the house in order to get M.B. back. Once
inside, the defendant placed M.B. on a chair in the living room. He then talked to C. S.
and wanted her to follow him into the kitchen, which she did. While in the kitchen,
the defendant slapped C.S. in the face twice, forced her to the floor, placed his hands
around her neck, and choked her. C. S. was wearing a " cross necklace" around her
neck, and the choking caused the cross to cut her. She still had the scar from the injury,
which she showed the jury at trial.
The defendant subsequently dragged C. S. by her hair to his bedroom, where he
repeatedly struck her with two leather belts. The defendant hit her so many times that
one of the belts broke in half over her. C. S. fought back, but the defendant
overpowered her. At some point, the defendant dragged C.S. by the hair to the
bathroom. While in the bathroom, the defendant continued striking her with the belts
while punching her in the face and burning her on the back with a cigarette. The
cigarette left a burn mark, which was still present at the time of trial. Eventually, C. S.,
was able to grab M.B. and run to her car. Before she could leave, the defendant again
removed M.B. from the car without C. S.' s permission and took M.B. back inside the
house. C. S. followed the defendant into the house. The defendant then beat C.S. with
the belts again for " a few hours," while also stopping and taking breaks throughout the
attack.
After C. S. agreed to drive the defendant to get drugs, C. S. and M.B. left the
house with the defendant. Following several stops, C. S. drove to her cousin' s house,
3
to whom she explained everything, and who then called C. S.' s brother. Upon his
arrival, C. S.' s brother saw the defendant, exited his truck, and chased the defendant
with a bat. C.S.' s brother later returned to the cousin' s house and advised C. S. of the
defendant' s location. The defendant ended up at a home on West Main Street, where
he broke a window. Officers were dispatched to that location after they received
reports of a residential burglary. When the officers arrived, the defendant was sitting
on the porch of the residence. C. S. then traveled to West Main Street and reported the
incident to the officers present.
At trial, C. S. testified she was in pain for days after the incident, struggling with
normal activities, including being able to pick up her children, because her arms hurt
too much. She further testified she had scars on her neck and back from the injuries
inflicted by the defendant.'
On October 22, 2018, after being advised of his Miranda5 rights by the
Lafourche Parish Sheriffs Office, the defendant stated he only knew C. S. because he
worked with M.B.' s father. The defendant stated he had not seen C.S. in approximately
one to two days. He denied being in a relationship with C.S. and denied seeing her on
October 21, 2018.
FAIR AND IMPARTIAL JURY
In assignment of error number 1, the defendant contends the trial court erred by
denying defense counsel' s request to voir dire members of the jury venire on the effect
that the defendant' s outbursts had upon their partiality. In assignment of error number
2, the defendant contends the trial court erred by denying defense counsel' s request to
voir dire members of the jury regarding their knowledge of the cause for the
defendant' s removal and the effect that his absence would have upon their partiality.
4
At trial, Officer Devin LeBouef testified that when C. S. arrived at the residence where the
defendant had broken the window, she was "[ c] overed pretty much head to toe in bruises and
swelling."
5
Miranda v. Arizona, 384 U. S. 436, 86 S. Ct. 1602, 16 L.Ed. 2d 694 ( 1966).
n
In assignment of error number 3, the defendant contends the trial court erred by
denying the motion for new trial. He combines these assignments of error for
argument.
Specifically, the defendant claims he was denied his right to be tried by a
fair and impartial jury when the trial court: erred in returning jurors to the courtroom
while it was still actively engaged in a heated debate with him; erred in denying defense
counsel' s request to strike the members of the panel that had witnessed the exchange;
erred in refusing to allow defense counsel to speak with the members of the panel who
had witnessed the exchange concerning the impact the exchange may have had on their
impartiality; and erred in refusing to allow defense counsel the opportunity to discuss
with those who had already been selected, their knowledge of the outburst and the
effect of the defendant' s absence on their deliberations.
The United States Supreme Court has held:
It is essential to the proper administration of criminal justice that
dignity, order, and decorum be the hallmarks of all court proceedings in
our country. The flagrant disregard in the courtroom of elementary
standards of proper conduct should not and cannot be tolerated. We
believe trial judges confronted with disruptive, contumacious, stubbornly
defiant defendants must be given sufficient discretion to meet the
circumstances of each case. No one formula for maintaining the
appropriate courtroom atmosphere will be best in all situations. We think
there are at least three constitutionally permissible ways for a trial judge
to handle an obstreperous defendant ... ( 1) bind and gag him, thereby
keeping him present; ( 2) cite him for contempt; ( 3) take him out of the
courtroom until he promises to conduct himself properly.
Illinois v. Allen, 397 U.S. 337, 343- 44, 90 S. Ct. 1057, 1061, 25 L.Ed.2d 353 ( 1970).
Louisiana Constitution article I, section 17( A) sets forth, in pertinent part, "[ t] he
accused shall have a right to full voir dire examination of prospective jurors and to
challenge jurors peremptorily." Thus, a defendant in a criminal case is constitutionally
entitled to a full and complete voir dire examination and to the exercise of peremptory
challenges. The court, the State, and the defendant shall have the right to examine
prospective jurors. State v. Mickey, 626 So. 2d 24, 26 ( La. App. 1 st Cir. 1993).
5
Voir dire is designed to discover grounds for challenges for cause and to secure
information for the intelligent exercise of peremptory challenges. The scope of the voir
dire examination is within the sound discretion of the trial court; therefore, those
rulings will not be disturbed on appeal in the absence of a clear abuse of discretion. A
review of the trial court' s rulings should be undertaken only on the record of the voir
dire examination as a whole to determine whether the defendant was afforded a
sufficiently wide latitude in his examination of prospective jurors. The trial court must
afford the defendant a wide latitude in the exercise of this constitutionally guaranteed
right. Id.Although voir dire may not encompass unlimited inquiry into all possible
prejudices of prospective jurors, the defendant in a criminal proceeding should,
however, be allowed to make such inquiries that will enable him to secure his
constitutional rights by eliciting facts which show grounds for challenges. His right to
intelligently exercise cause and peremptory challenges may not be curtailed by the
exclusion of non -repetitious voir dire questions which reasonably explore the
prospective jurors' potential prejudices, predispositions, or misunderstandings, which
are relevant to the central issues of the particular case. The scope of inquiry is best
governed by a liberal discretion on the part ofthe court so that if there is any likelihood
that some prejudice is in the juror' s mind which will even subconsciously affect his
decision, it may be discovered on voir dire. Id. at 26- 27.
Louisiana Code of Criminal Procedure article 832, in pertinent part, provides:
A. A defendant initially present for the commencement of trial shall not
prevent the further progress ofthe trial, including the return ofthe verdict,
and shall be considered to have waived his right to be present if his
counsel is present ... and either of the following occur:
2) After being warned by the court that disruptive conduct will cause
him to be removed from the courtroom, he persists in conduct which
justifies his exclusion from the courtroom.
T
During voir dire on the second day of trial, defense counsel requested a bench
conference and alerted the trial court that the defendant " want[ ed] to go back to the
jail[.]" After the panel of prospective jurors were removed from the courtroom, the
trial court denied the request, advising the defendant that since he had elected to have
a jury trial, his presence in the courtroom was mandatory under the Criminal Code.6
Additionally, the court cautioned the defendant:
You will keep your behavior appropriate. I' ll remind you that
these are potential jurors and you will not be allowed to act out in any
way that will potentially affect them and their ability to remain impartial,
okay? These people have sat around for a day and a half now to try to
give you a fair trial and you will not disrespect them. Do you understand?
The defendant did not answer the court and became argumentative.' The
defense moved to strike the uncalled members of the jury pool, " due to the prejudicial
comments that were made in their presence." The State argued there were no grounds
to strike the entire jury pool, which was required to be there. The court denied the
motion, ruling that " a defendant cannot intentionally try to taint a jury pool by acting
out and it is the Court' s opinion that that is what has happened in this matter." The
defense objected to the ruling of the court.
Thereafter, the prospective jurors previously removed from the courtroom were
returned to the courtroom. The defendant repeatedly interrupted the calling of names
See La. Code Crim. P. art. 831( A)(3) - ( A)(&).
The court asked the defendant " Do you understand, sir?" The defendant answered, " Why
you getting loud with me? You trying to take my life from me. For real." Thereafter, the court
stated, " It' s a yes or no question. Do you understand?" The defendant answered, " Nope." The
court asked, " You don' t understand that?" The defendant again replied, " Nope." Thereafter, the
defendant interrupted the court as it cautioned him, " you will not act out in front of these jurors
and then complain later that they were in any way tainted. Any way that you act, your behavior,
your mannerisms, anything that you say in front of them is voluntary ..." The defendant replied,
What you gonna do, put hands on me" You can' t do me nothing. You taking my life away from
me already." The defendant continued to taunt the court, " What you gonna do?" The court told
the defendant he had asked for a jury trial " and we are here to give you one." The defendant
replied, " I didn' t ask for nothing. I asked for Tracy Schwab to represent me and not f --- in' lie to
me. It' s all this little short f ---
er' s fault." The court advised the defendant, " We are going to bring
the jurors in and we are going to pick them and you will not be disrespective or disruptive to
anybody in this courtroom." The defendant then insisted that the court " go look at [ the
defendant' s] two kids." The court told the defendant it would not argue with him and to stop
talking. The defendant replied, " All right. I gotcha."
7
from the panel.' At a bench conference, the State set forth, " I don' t think at this point
you can kick [the defendant] out." Defense counsel stated, " At any point Your Honor
would like to exercise your judicial discretion and have him removed, that would be
fine." Thereafter, the entire jury pool was removed from the courtroom. The court
then ruled:
Okay, Mr. Simon, I previously warned you about your disruptive
conduct. And at this time, you have now spoken in front of the jury pool
and disrupted the roll call proceedings. So, the Court is going to order
that you be removed from the courtroom given that you persisted in your
conduct that I previously warned you to please refrain from.
Jury selection then continued in the defendant' s absence, and the clerk resumed
calling names for the next panel of prospective jurors. The defense moved to have the
rest of the jury pool excluded from the courtroom during the questioning of the panel
on the basis of "the prejudicial factor that if something is said during a particular
panel." The motion was denied. The court cautioned the prospective jurors " while
you' re being asked questions, if there is anything that you discover that you know
about this case, in particular about the defendant, or the victim, I would ask that you
please not say it out loud." Jury selection was then completed without an additional
panel of prospective jurors being called.
Defense counsel raised claims regarding these assignments of error in
connection with the defendant' s motion for new trial. Counsel argued the defendant
was removed from the courtroom on the day following the seating of six jurors.
Counsel claimed to have had no opportunity to examine the selected jurors " in terms
of their knowledge of [the defendant' s] removal from the courtroom or his absence
from the courtroom and how his absence and [ his] not being present [in the courtroom]
would affect their judgment and a ruling in [the] case."
S
The defendant stated, " Hey Morn, just go home, cause it' s ... it' s just for ...
This really
sucks. You can just go home. They' re trying to give me life here. Just go home Mom. I love
you. ... .
lust come visit me up the road. ... Just go home, Mom. You gonna be okay. Just go
home."
0
The court found that the defendant' s outburst occurred on the second day of
trial, when the first six jurors were not present in the courtroom and " likely not even
present in the building," as they were not due back until later in the day. The court
further found:
The court cannot foresee any fairness in allowing a defendant to
intentionally behave in a certain way and then later say that [ behavior is]
prejudicial. It does not seem to be consistent with the fairness that is
required in jury trials.
The prospective jurors who [ were] present in the courtroom were
actually removed from the courtroom to allow the Court to advise [ the
defendant] that any outbursts would not be tolerated and that he was
ordered to behave accordingly. The jurors were brought back in and [ the
defendant] made remarks to his mother, I believe, in front of the
prospective jurors.
The issue, as I recall, is that before the trial started, the defense did
at a bench conference request to question the six [jurors] from the first
day of trial about whether or not they had talked to any of the eight
jurors] selected at the second day of trial about the outburst. And this
Court noted that both the six jurors selected on the first day and the eight
jurors selected on the second day had all been ordered to not discuss the
case with each other or anyone else until deliberations began.
The Court also felt that beginning the process of questioning each
juror] one by one about anything they may have seen or heard about
would only make the matter a bigger issue and confuse the jury even
more.
So, the Court assumed that the jurors did what they should have
done, which was not speak to each other about the case before the
deliberations began.
The Court also will note that in the standard jury instructions that
were given before deliberations, the Court told the jurors what the law is
as it relates to a person' s right to not testify. And they heard that
instruction and they had all indicated that during voir dire that they would
take the law and apply it as I told it to them.
So, I don' t believe that there was any prejudicial error in the failure
to allow the defendant' s counsel to speak to the six jurors from the first
day individually about anything that they may have seen or may have
heard regarding the defendant' s conduct.
The defendant waived his right to be present in the courtroom by ignoring
repeated warnings from the trial court that his disruptive behavior was not respectful
of the prospective jurors and if he persisted in that behavior, he would be removed
from the courtroom. Rather than heed the warnings, the defendant defied the court.
E
The trial court correctly found no prejudicial error in its ruling denying the defense
request to individually speak to the six jurors selected on the first day of voir dire about
anything that they may have seen or may have heard regarding the defendant' s
conduct. That conduct occurred outside the presence of the jurors. There was also no
prejudicial error in denying the motion to strike the remaining members of the jury
pool on the second day of voir dire " due to the prejudicial comments that were made
in their presence." Jury selection was completed without the need to call any of these
prospective jurors. A court has the duty to require that criminal proceedings shall be
conducted with dignity and in an orderly and expeditious manner and to so control the
proceedings that justice is done. La. Code Crim. P. art. 17. The trial court faithfully
performed its duty in this matter by ordering the removal of the defendant. The
defendant' s disruptive behavior and refusal to be present during the proceedings are in
no way attributable to any error on the part of the trial court. See State v. McCloud,
2009- 0911 ( La. App. 1 st Cir. 12/ 23/ 09), 2009 WL 5647222, * 3 ( unpublished).
These assignments of error are without merit.
ILLEGAL AND EXCESSIVE SENTENCES
In assignments of error numbers 4, 5, and 6 respectively, the defendant contends
the trial court erred by imposing consecutive sentences, that the sentences are illegally
excessive, and the trial court erred by denying the motion to reconsider sentence. He
combines the assignments of error for argument. He claims the trial court imposed
illegal sentences on counts 1, III, and IV by denying parole. He further claims the court
imposed excessive sentences on those counts by imposing maximum sentences and
ordering that they run consecutively with one another.
An illegal sentence is primarily restricted to those instances in which the term
of the prisoner' s sentence is not authorized by the statute or statutes which govern the
penalty for the crime of conviction. Montgomery v. Louisiana, 577 U.S. 190, 196,
136 S. Ct. 718, 726, 193 L.Ed. 2d 599 ( 2016); State v. Murray, 2019- 1092 ( La. App.
10
I st Cir. 5/ 11120), 303 So. 3d 655, 660.
An illegal sentence may be corrected at any
time by the court that imposed the sentence or by an appellate court on review. La.
Code Crim. P. art. 882( A).
The Eighth Amendment of the United States Constitution and Louisiana
Constitution article I, § 20 prohibit 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. Parker,
2013- 1050 ( La. App. 1st Cir. 2/ 20/ 14), 2014 WL 687992, * 2 ( unpublished), writ
denied, 2014.0631 ( La. 10/ 24/ 14), 151 So. 3d 601, cert. denied, 575 U.S. 941, 135
S. Ct, 1714, 191 L.Ed.2d 687 ( 2015). Generally, a sentence is considered excessive if
it is grossly disproportionate to the severity of the crime or is nothing more than the
needless imposition of pain and suffering. A sentence is considered grossly
disproportionate if,when the crime and punishment are considered in light of the harm
to society, it is so disproportionate as to shock one' s sense ofjustice. Id. A trial judge
is given wide discretion in the imposition of sentences within statutory limits, and the
sentence imposed should not be set aside as excessive in the absence of manifest abuse
of discretion. Id.The Louisiana Code of Criminal Procedure sets forth items that must be
considered by the trial court before imposing a sentence. La. Code Crim. P. art. 894. 1.
The trial court need not recite the entire checklist of Article 894. 1, but the record must
reflect that it adequately considered the criteria. In light of the criteria expressed by
Article 894. 1, a review for individual excessiveness should consider the circumstances
of the crime and the trial court' s stated reasons and factual basis for its sentencing
decision. Remand for full compliance with Article 894. 1 is unnecessary when a
sufficient factual basis for the sentence is shown. Parker, 2014 WL 687992 at * 2.
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
11
imprisonment shall be served concurrently unless the court expressly directs that some
or all be served consecutively. La. Code Crim. P. art. 883. Thus, La. Code Crim. P.
art. 894. 1 specifically excludes from its scope sentences which the court expressly
directs to be served consecutively. A trial judge retains discretion to impose
consecutive penalties based on the offender' s past criminality, violence in the charged
crimes, or the risk he or she poses to the general safety of the community. State v.
Alexander, 2021- 1346 (La. App. 1st Cir. 7/ 13122), 344 So. 3d 705, 725. Although the
imposition of consecutive sentences requires particular justification when the crimes
arise from a single course of conduct, consecutive sentences are not necessarily
excessive. Alexander, 344 So. 3d at 725- 26. The failure to articulate specific reasons
for imposing consecutive sentences does not require remand if the record provides an
adequate factual basis to support the consecutive sentences. Alexander, 344 So.3d at
726.
RESTRICTION OF PAROLE
Whoever commits the crime of simple kidnapping shall be fined not more than
five thousand dollars, imprisoned with or without hard labor for not more than five
years, or both. La. R.S. 14: 45( B). On count I, the trial court sentenced the defendant
to five years at hard labor. Additionally, the court ordered the sentence to be served
consecutively to the sentences imposed on counts III and IV and without benefit of
parole, probation, or suspension of sentence.
The restriction of parole on count 1, simple kidnapping, is not authorized by La.
R.S. 14: 45( B), and thus, is illegal. Accordingly, the sentence imposed on count I is
vacated and this matter is remanded for resentencing on count 1 in accordance with
law. Our disposition of this issue causes us to pretermit consideration of the
defendant' s claims of excessive sentence concerning count 1.
Whoever commits the crime of aggravated second degree battery shall be fined
not more than ten thousand dollars or imprisoned, with or without hard labor, for not
12
more than fifteen years, or both. La. R. S. 14: 34. 7( 0). On count III, the trial court
sentenced the defendant to fifteen years at hard labor. Additionally, the court ordered
the sentence to be served consecutively to the sentences imposed on counts I and IV
and without benefit of parole, probation, or suspension of sentence.
The restriction of parole on count III, aggravated second degree battery, is not
authorized by La. R.S. 14: 34.7( 0), and thus, is illegal. Accordingly, the sentence
imposed on count III is vacated and this matter is remanded for resentencing on count
III in accordance with the law. Our disposition of this issue causes us to pretermit
consideration of the defendant' s claims of excessive sentence concerning this count.
In regard to domestic abuse battery, La. R. S. 14: 35.3, in pertinent part, provides:
C. On a first conviction, notwithstanding any other provision of law to
the contrary, the offender shall be fined not less than three hundred dollars
nor more than one thousand dollars and shall be imprisoned for not less
than thirty days nor more than six months. At least forty-eight hours of
the sentence imposed shall be served without benefit of parole, probation,
or suspension of sentence. Imposition or execution of the remainder of
the sentence shall not be suspended unless either of the following occurs:
1) The offender is placed on probation with a minimum condition that
he serve four days in jail and complete a court -monitored domestic abuse
intervention program, and the offender shall not own or possess a firearm
throughout the entirety of the sentence.
2) The offender is placed on probation with a minimum condition that
he perform eight, eight-hour days of court -approved community service
activities and complete a court -monitored domestic abuse intervention
program, and the offender shall not own or possess a firearm throughout
the entirety of the sentence.
M. ( 1) Notwithstanding any provision of law to the contrary, if the
domestic abuse battery is committed by burning, the offender, in addition
to any other penalties imposed pursuant to this Section, shall be
imprisoned at hard labor for not more than three years.
On count IV, domestic abuse battery by burning, the trial court sentenced the
defendant to three years at hard labor. Additionally, the court ordered the sentence to
be served consecutively to the sentences imposed on counts I and III and without
benefit of parole, probation, or suspension of sentence.
13
The restriction of parole on count IV is authorized by La. R.S. 14: 35.3( M)( 1),
and thus, the sentence legally restricts parole. That statute provides that the penalty set
forth is " in addition to any other penalties imposed pursuant to this Section." La. R. S.
14: 35. 3( 0) provides, " fall least forty-eight hours of the sentence imposed shall be
served without benefit of parole, probation, or suspension of sentence." See State v,
Ard, 2020-221 ( La. App. 5th Cir. 4/ 28/ 21), 347 So -3d 1046, 1060 ( failure to restrict
parole when imposing enhanced sentence for domestic abuse battery by strangulation,
a violation of La. R.S. 14: 35. 3( L), required remand for resentencing " with instructions
to the district court to impose defendant' s enhanced sentence in accordance with the
provisions of the underlying statute, La. R.S. 14: 35. 3( C), as it relates to the restriction
of parole").
CONSECUTIVE SENTENCES
Prior to imposing the sentence, the trial court found: there was an undue risk
that during the period of a suspended sentence or probation, the defendant would
commit another crime, the defendant was in need of correctional treatment or a
custodial environment that could be provided most effectively by his commitment to
an institution; and that a lesser sentence would deprecate the seriousness of the
defendant' s crimes. The court further found the defendant' s conduct during the
commission of the crimes manifested deliberate cruelty to the victim. The court noted
the injuries sustained by the victim in this case are so numerous and so serious that
they were imposed with a significant amount of force and out of deliberate cruelty to
the victim." Additionally, the court found the defendant used actual violence in the
commission of the offense, and the victim suffered " numerous and ... severe" injuries
from the defendant " over the course of some hours." Lastly, the court stated it was
considering the defendant' s history, his prior criminal record, the seriousness of the
offense, and the likelihood of rehabilitation.
14
Following imposition of sentence at the sentencing hearing, the defendant made
an " oral motion"'
that the sentence was excessive, arguing:
considering... the defendant' s age[,] that he can be rehabilitated through
anger management. Until this point in time, he has not had any
rehabilitated (sic) effort. And that the crimes of violence will put him and
the fact that the sentences are consecutive in jail for a significant amount
of time that would outweigh any fairness under the law.
The State opposed the motion to reconsider sentence, arguing that the sentences
were " very much appropriate for the crimes that were committed upon [ the victim]."
Additionally, the State set forth that the defendant' s criminal history included battery
charges against additional victims. The court denied the motion to reconsider sentence,
noting the defendant had a significant criminal history with similar actions.
Additionally, the court found the defendant had made no effort to avail himself of
rehabilitative services that were available to him pretrial.
The trial court specifically found consecutive sentences were appropriate in this
matter on the basis of the defendant' s deliberate cruelty against the victim during the
incident and the " extremely violent" acts he committed against her. The trial court
also adequately considered the criteria of Article 894. 1 and did not manifestly abuse
its discretion in imposing the sentence on count IV. See La. Code Crim. P. art. 894. 1
A)( 1), ( A)( 2), ( A)(3), ( B)( 1), ( B)( 6), and ( B)( 21). Further, the sentence on count
IV was not grossly disproportionate to the severity of the offense, and, thus, was not
unconstitutionally excessive. Additionally, a maximum sentence was warranted in
this matter. Maximum sentences may be imposed for the most serious offenses and
the worst offenders, or when the offender poses an unusual risk to the public safety due
to his past conduct of repeated criminality. State v. Parker, 2012- 1550 ( La. App. 1 st
Cir. 4/ 26113), 116 So.3d 744, 754, writ denied, 2013- 1200 ( La. 11/ 22/ 13), 126 So. 3d
478. A maximum sentence was appropriate because of the " numerous and ... severe"
9
Louisiana Code of Criminal Procedure article 881. 1( A)( 1) allows the State or the defendant
to " make or file a motion to reconsider sentence."
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injuries the defendant inflicted upon the victim, because the victim "endured these acts
at the hands of the defendant over the course of some hours[,]" and because the
defendant used the child ofthe victim to force her to enter his home and to prevent her
from leaving.
This assignment of error is without merit.
CONVICTIONS ON COUNTS I, III, AND IV AFFIRMED; SENTENCE ON
COUNT IV AFFIRMED; SENTENCES ON COUNTS I AND III VACATED;
REMANDED FOR RESENTENCING.
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