State v. Goodman

The defendant, Ricky Wayne Goodman, was charged by Bill of Information with the offense of aggravated crime against nature arising from an incident involving both oral sexual intercourse and sodomy with a twelve year old boy. At the time of the offense defendant was 27 years of age. Defendant initially pled not guilty to that charge, but, pursuant to a plea bargain with the District Attorney’s office which did not involve any sentencing guarantees, he withdrew his not guilty plea and entered a plea of guilty to the reduced charge of simple crime against nature. Following a presen-tencing investigation, the trial judge sentenced defendant to five years at hard labor, the maximum imprisonment penalty for the crime to which he pled guilty. Defendant challenges the sentence imposed raising two assignments of error: (1) the trial court erred in imposing an excessive sentence in violation of La. Const. Art. 1, Sec. 20; and (2) the trial court erred by failing to follow and in applying the sentencing guidelines provided in La.C.Cr.P. Art. 894.1.

The facts of this case are primarily gleaned from an inspection of the presen-tencing investigation report, the contents of which are uncontested. In late February of 1982 defendant hired the twelve year old to help him repair fences, and while in a wooded area he performed upon the young boy the deviant sexual acts involving oral sexual intercourse and sodomy. The victim stated that he failed to resist from a fear that the older man would hurt him if he did so. Defendant, conversely, avers that both parties acted voluntarily. The presentence investigation report also revealed previous criminal activities of defendant involving similar behavior. The 27 year old defendant had on one prior occasion with the same victim engaged in acts constituting indecent behavior with a juvenile. La.R.S. 14:81. Additionally, the report indicates that defendant had committed three or four offenses of oral sex and sodomy with the victim’s older brother, who was also a juvenile. The acts involved and the ages of that victim and defendant are the necessary elements constituting other offenses of aggravated crime against nature. However, charges involving those crimes had not been brought, and they are not directly at issue.

Defendant’s plea of not guilty to the initial charge of aggravated crime against nature (considered aggravated because of the victim’s young age and the defendant’s older age under La.R.S. 14:89.1(5)) was replaced by a guilty plea to the charge of simple crime against nature. La.R.S. 14:89. The trial judge imposed the maximum imprisonment penalty provided, i.e., five years at hard labor. Defense counsel contests that sentence’s severity, primarily alleging that the trial judge was unduly influenced by the initial charge and should have considered only the offense of simple crime against nature. For the sake of clarity both assignments have been joined into one discussion.

Defendant challenges the constitutionality of the sentence imposed, alleging that it was excessive in violation of La. Const. Art. 1, Section 20. The Louisiana Constitution of 1974 added the word “excessive” to what had previously been Article 1, Section 12 of the 1921 Constitution, and five years later the Louisiana Supreme Court determined that a sentence imposed within the statutory guidelines was, nevertheless, reviewable for excessiveness as a question of law. State v. Sepulvado, 367 So.2d 762 (La. 1979).

A sentence has been held to be constitutionally excessive when the penalty is so disproportionate to the crime as to shock the senses of justice or if it is nothing more than the purposeless and needless imposition of pain and suffering. State v. Reed, 409 So.2d 266 (La.1982); State v. Bonanno, 384 So.2d 355 (La.1980). Subjective differences among individuals create varying opinions as to the degree of severity merited by a particular crime and particular offense. Due to his unique position in viewing factors not present on appeal, the trial judge is necessarily afforded wide discretion in imposing sentences within the statutory limits, and those sentences should not be deemed excessive unless he has manifestly abused his discretion. State v. Lanclos, 419 So.2d 475 (La.1982); State v. Fergus, 418 So.2d 594 (La.1982); State v. Washington, 414 So.2d 313 (La.1982).

Defendant also contends that the trial judge failed to consider the fact that he has a good work and employment history, and retained a favorable report from the examining psychiatrist who recommended against the defendant’s incarceration.

At the sentencing hearing, the trial judge stated that he had considered the guidelines of La.C.Cr.P. Art. 894.1, and found that none of the eleven conditions set forth in paragraph B bear any weight of any significance in favor of a suspended sentence. Failure to strictly comply with C.Cr.P. Art. 894.1 does not ipso facto render a sentence invalid. In discussing the guidelines set out in C.Cr.P. Art. 894.1 our Supreme Court in State v. Landos, supra, stated:

“This court has held that although Article 894.1 provides useful guidelines for the determination of the nature and length of a sentence, compliance with its provisions is not an end in itself. State v. Wimberly, 414 So.2d 666 (La.1982). Article 894.1 is intended to provide an impartial set of guidelines within which the trial judge’s sentencing discretion may be exercised. State v. Price, 403 So.2d 660 (La.1981); State v. Douglas, 389 So.2d 1263 (La. 1980). Compliance with Article 894.1 further provides a record which is detailed enough to allow for a reasoned review of allegedly excessive sentences. The articulation of the factual basis for a sentence is the goal of Article 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed this court has held that remand is unnecessary, even where there has not been full compliance with Article 894.1. State v. Boatright, 406 So.2d 163 (La. 1981); State v. McDonald, 404 So.2d 889 (La.1981); State v. Martin, 400 So.2d 1063 (La.1981); State v. Douglas, supra.”

In the instant case the trial judge in sentencing defendant expressly referred to the guidelines of 894.1. He noted that defendant’s past actions created an undue risk that he would commit similar crimes should he be given a suspended sentence or released on probation. The sentencing judge believed that a custodial environment was necessary to shield society from defendant’s behavior and that a lesser sentence would deprecate the seriousness of the odious and highly repugnant offense perpetrated by defendant.

Eleven mitigating grounds are listed in Sub-section B of 894.1. Finding the first six grounds inapplicable, the trial judge noted that (7) failed to mitigate in defendant’s favor, as he had a prior juvenile record of unknown substance followed by a probationary period and as he had engaged in similar criminal behavior. Additionally, defendant had been arrested, but never prosecuted, on a theft charge in 1976. The remaining four grounds were, also, not considered applicable.

Despite the fact that the examining psychiatrist recommended probation for the defendant, the trial judge chose to ignore that report. An analogy to the rejection of the psychiatric report may be made to the discretion afforded the trial court in matters concerning the competency of experts to venture opinions within their fields of expertise. That discretion has been termed great and is to be upheld in the absence of a manifestly erroneous decision. State v. Rives, 407 So.2d 1195 (La.1981); State v. Walker, 394 So.2d 1181 (La.1981).

In examining the trial judge’s refusal to follow or even to note the psychiatric recommendation, we observe that his opinion was derived from only one interview with the defendant and from personal facts obtained from that same defendant. Of importance, also, is the significantly different story told the psychiatrist regarding defendant’s prior criminal action. - The uncontested presentence report indicated the existence of a signed statement by defendant admitting to three or four other acts of aggravated crime against nature, which he failed to relate during his psychiatric evaluation.

From the facts present, we cannot find that the trial judge manifestly erred in ignoring the psychiatrist’s recommendation dr prior work history. Balanced against the two aforementioned mitigating factors are: (1) Defendant had engaged in similar unlawful conduct in the past; (2) Defendant had a prior juvenile record; (3) The crime was committed upon a victim of a tender age; (4) Defendant had already been afforded a considerable degree of leniency, when he was allowed to plead guilty to a lesser offense; and (5) Defendant was unmarried and 27 years of age at the time of the crime. Additionally, the facts overwhelmingly support a conclusion that the defendant’s actions constituted all of the elements required to be found guilty of aggravated crime against nature. The trial judge’s failure to articulate consideration of mitigating factors does not change these facts. As aforementioned, the trial judge is given wide discretion in the imposition of sentences within statutory limits, and absent manifest abuse of that discretion the sentence imposed by the trial judge should not be set aside as excessive.

Our Supreme Court has held that maximum sentences are appropriate only in cases involving the most serious violation of the relevant statute and the worse type of offender. State v. Jones, 398 So.2d 1049 (La.1981). In a case such as this, where the offense to which the defendant has pled guilty inadequately describes his conduct, we find no abuse in the trial court’s great discretion in imposing the maximum sentence possible for the crime to which a guilty plea is entered. This is particularly true where a significant reduction in potential exposure to imprisonment has been obtained through plea bargaining.

For the above and foregoing reasons the sentence imposed by the trial court is maintained. The sentence and conviction are affirmed.

AFFIRMED.

DOMENGEAUX, J., files additionally a concurring opinion.

For reasons stated therein, the writer of this opinion has also filed a concurring opinion.

. La.R.S. 14:89.1(5) provides:

“Aggravated crime against nature is crime against nature committed under any one or more of the following circumstances:

* * * * * *

(5) Where the victim is under the age of seventeen years and the offender is at least three years older than the victim.

Whoever commits the crime of aggravated crime against nature shall be imprisoned at hard labor for not less than three nor more than fifteen years, such prison sentence to be without benefit of suspension of sentence, probation or parole.”

. Acts 1982, No. 703 (effective September 10, 1982) amended R.S. 14:89 but is not pertinent to this discussion. The statute at the time of the offense read as follows:

“Crime against nature is the unnatural carnal copulation by a human being with another of the same sex or opposite sex or with an animal, except that anal sexual intercourse between two human beings shall not be deemed as a crime against nature when done under any of the circumstances described in R.S. 14:41, 14:41.1, 14:42, or 14:43. Emission is not necessary; and, when committed by a human being with another, the use of the genital organ of one of the offenders of whatever sex is sufficient to constitute the crime.

Whoever commits the crime against nature shall be fined not more than two thousand dollars, or imprisoned, with or without hard labor, for not more than five years, or both.”

. “No law shall subject any person to euthanasia, to torture, or to cruel, excessive, or unusual punishment. Full rights of citizenship shall be restored upon termination of state and federal supervision following'conviction for any offense.” Art. 1, § 20.

. Not all are in agreement with this authority to review. See this writer’s concurring opinion; Sepulvado, supra, at 773 (Marcus, Justice, dissenting); State v. Tilley, 400 So.2d 1363, 1368 (La. 1981) (Marvin, Justice, Ad Hoc, dissenting); and State v. Touchet, 372 So.2d 1184, 1185 (La. 1979) (Summers, Justice, dissenting). Notwithstanding these views, the Sepulvado opinion remains the position taken by our Supreme Court.

. See e.g. State v. Smith, 404 So.2d 210 (La. 1981); State v. Acliese, 403 So.2d 665 (La. 1981); Sepulvado, supra, at 767.

. State v. Landos, supra; State v. Washington, supra.

. The penalty for crime against nature to which defendant pled guilty is a maximum fine of Two Thousand Dollars or imprisonment “with or without hard labor, for not more than five years, or both.” Parole is available to defendants convicted of crime against nature, unlike the counterpart statute addressing aggravated crime against nature, which also imposes imprisonment for not less than three nor more than fifteen years.