State Of Louisiana VS Marvin Brown
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2007 KA 1163 @ ctlrk STATE OF LOUISIANA VERSUS MARVIN BROWN Judgment Rendered December On Appeal 21 2007 from the 22nd Judicial District Court In and For the Parish of Washington Trial Court No 03 CR10 88664 Honorable William J Counsel for Appellee State of Louisiana Walter P Reed District Knight Judge Presiding AttOlney Franklinton LA and Kathryn Landry Special Appeals Baton Rouge Counsel LA Christopher A Aberle Louisiana Appellate Project Counsel for Defendant Appellant Marvin Brown Mandeville LA BEFORE WHIPPLE GUIDRY AND HUGHES JJ HUGHES J The defendant Marvin Brown with four counts entering plea a of guilty found the defendant on Count III labor to run violations of LSA R S obscenity of not guilty Defendant the defendant as charged was consecutively to charged by bill of infonnation was on sentenced was l4 106 A tried before The jury a After I Counts I II and IV and not jury guilty each count to two years at hard on to the sentence he each other and was already servmg The State instituted habitual offender defendant adjudicated as a third to have the proceedings seeking felony habitual offender Pursuant to a plea agreement the defendant agreed with the allegations of the habitual offender The trial court vacated the bill of infonnation on to Counts I II and IV and sentenced the defendant three years and to the In at hard labor sentence the a La convictions on defendant Counts I II and IV were State Court table remanded for further and IV Counts I II v Brown the defendant s vacated and the proceedings and the defendant sentence Defendant was which appeals the habitual was to run at consecutively already serving was denied were again adjudicated sentenced to three years enhanced obscenity conviction amend other affirmed but his habitual offender on sentences habitual offender reconsider to each consecutively 912 So 2d 113 Following remand the defendant sentence run Counts I II and IV already serving was 1 Cir 9 23 05 App adjudications and was each count to on prior unpublished opinion issued by this 2004 2545 matter on sentences previously imposed hard sentences 2 felony on each to each other and to any Defendant filed by the trial third labor a motion to court We affirm his habitual offender offender a affirm the adjudications habitual offender sentences as amended entry and and remand for correction of minute commitment papers FACTS Defendant three s episodes where he obscenity convictions was seen in the presence masturbating employee of Washington Correctional Institute affirmed the defendant LSA C Cr P 920 2 art and sentences s obscenity convictions we from three separate arose I In our matter for fmiher a female prior opinion but because of an vacated his habitual offender remanded the of we error under adjudications and State proceedings v Brown 2004 2545 at p 8 On remand of this matter the trial court held 14 2006 to determine the defendant the defendant on his 1993 a predicate convictions entered hearing on habitual offender status s again adjudicated was a third Thereafter felony habitual offender based January on December 7 19912 and March 23 3 EXCESSIVE SENTENCE In his first assignment of error the defendant argues that his total In suppOli of his argument that his sentence is excessive and unreasonable sentence is excessive the defendant contends that the prison crimes is substantially mitigating argues his behavior must be prison and I was an for several regarded as reasons setting for these First the defendant less serious because it occurred in obvious consequence a of the forced sexual abstinence April 22 2002 and October 25 2002 and the victims were Washington Correctional Institute employees Frances Spears Sonya Hess and be Amy Penny respectively The detailed facts surrOlll1ding the defendant s convictions can found in this COlui s prior opinion State v Brown 2004 2545 at pp 3 5 2 The dates of the offenses On January 7 1991 were November 6 2001 the defendant pled guilty to in the Sixth Judicial District COUli Madison Parish 3 possession Docket Number 60365 Also in the Sixth Judicial District COUli Madison Parish guilty to simple kidnapping of cocaine with intent to distribute on March 23 three counts of distribution of cocaine and Numbers 60196 67919 67920 67921 and 67922 3 respectively 1993 the defendant simple burglary pled Docket incarceration accompanymg Second the defendant argues that these victims differed from the average citizen because employees of an all male prison facility and prevalence of such behavior faced officials well extent that he was committing these Article limits statutory excessive and itself had over protect to him and type of acts to the to deter him from of the Louisiana Constitution punishment it may violate and is a Although defendant to subject or is nothing more punishment as imposed to are constitutional s the prohibits sentence may be within appellate right against review Generally grossly disproportionate imposition to a the of pain grossly disproportionate if when considered in shock a than the needless A sentence is considered wide discretion in the light of the harm to of justice one s sense society A trial judge is it is given imposition of sentences within statutory limits and the should not be set aside manifest abuse of discretion 1 Cir 10 3 00 these tendency to commit special jumpsuit designed a Section 20 disproportionate sentence already type of acts of the crime suffering of the aware responsibility a prison had control is considered excessive if it is the crime and so provided punishment sentence severity I of his aware of excessive imposition prison Defendant argues the were well and loss of good time credit for this behavior the defendant argues the these victims were professional were Third the defendant argues he has disciplinary proceedings Finally they State 797 So 2d 75 83 as excessive in the absence of Hurst 99 2868 pp v 10 11 La writ denied 2000 3053 La 10 5 01 App 798 So 2d 962 The obscenity applicable penalty provision is a fine of not less than thousand five hundred dollars or one for a first conviction for the crime of thousand dollars imprisonment with 4 or nor more than two without hard labor for less than six months not 14 1 06 G nor more than three years or LSA R S both l Louisiana Revised Statutes 15 529 1 in pertinent part A within l Any this state subsequent felony shall be felony person who of a felony within this punished after having been thereafter provides convicted commits any upon conviction of said state follows as b If the third felony is such that upon a first conviction the offender would be punishable by imprisomnent for any term less than his natural life then i The person shall be sentenced to imprisonment for a determinate term not less than two thirds of the longest possible sentence for the conviction and not more than twice the longest possible sentence prescribed for a first conviction In sentencing the defendant the trial habitual offender the defendant imprisonment years on eligible was each count noted that court to receive The trial defendant to terms of three years maximum sentence a court felony term of two to six then sentenced the he could have received In reviewing mi 894 1 Sentencing Furthermore we be considered During reasons There or reject the defendant as a the sentences s are Guidelines s on each count we note that recognized LSA R S none of his under either LSA C Cr P 14 106 Obscenity statute assertion that his incarceration should original sentencing hearing imposed These the trial court articulated reasons included the certain basic rules of human conduct which and which this Comi will not tolerate to be violated The crime of half of the mitigating factor for the sentences are at the defendant arguments in favor of mitigation hard labor third as a obscenity is one which involved in the process 5 is cannot This is totally distasteful following be one ignored of them to everyone We do not find the trial court abused its discretion in defendant three years to hard at labor each on sentencing count to be the served consecutively assignment of error is without merit This SENTENCING ERROR In his second imposed charge a sentence Count III was was defendant should and term of the fact he despite originally sentenced resentencing the trial Clearly this IV on argues the trial court was acquitted The jury convicted the defendant of Counts I II and IV the defendant and assigmnent of error the defendant we a court imposed misstatement correct the sentences on by the trial defendant imprisomnent of three conviction for Count IV is counts not have been sentenced hereby sentences he these on serving to be years served s on Counts I II and III We note that the court Count III hard labor consecutively Although following remand but rather sentence to reflect at of this to all enhanced an for his Count obscenity of the other We remand this matter to the trial court for the limited purpose of correction of the minute entry and if necessary correction of the commitment papers HABITUAL HABITUAL ADJUDICATIONS OFFENDER OFFENDER OFFENDER SENTENCES REMANDED FOR SENTENCES AFFIRMED CORRECTION COMMITMENT PAPERS 6 OF AMENDED AS AFFIRMED HABITUAL AMENDED MINUTE ENTRY AND AND
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