State Of Louisiana VS Joe Mitchell, Jr.
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2008 KA 0372 STATE OF LOUISIANA VERSUS JOE MITCHELL JR Judgment On Rendered September 12 2008 Appeal from the 22nd Judicial District Court in and for the Parish of St Tammany State of Louisiana District Court No 398369 The Honorable Martin E Counsel for PlaintifflAppellee State of Louisiana Walter P Reed District Attorney Covington La Kathryn W Landry Baton Rouge La Counsel for Defendant Appellant Joe Mitchell Jr Jane Beebe New Orleans La BEFORE Coady Judge Presiding CARTER J C WHIPPLE AND DOWNING 11 CARTER cJ The defendant with carnal Joe Mitchell Jr knowledge of defendant entered a in an State v guilty to ten years at for A information the we La jury sentenced the appealed to or held was was filed This court 953 So 2d 206 not years prior suspension of sentence at of bill of habitual adjudicated imprisonment constitutionality of the enhanced habitual offender bill a the on vacated the court eighteen affirm the 1 Cir 3 23 07 App the State 2007 hearing The trial probation court The jury challenged the sufficiency of the evidence and the defendant information defendant a The publication On March 21 of hard labor and the defendant Mitchell 2006 1824 offender tried before The trial charged as wherein the defendant designated was 14 80 unpublished opinion affirmed the defendant s conviction and earlier sentence violation of La R S a plea of not guilty and found the defendant defendant juvenile a bill of information charged by was a offender second felony habitual and sentenced the sentence hard labor without the benefit The defendant appeals challenging For the sentence following reasons sentence STATEMENT OF FACTS During the living with her 2002 L summer family of 2002 LB I the fifteen year old victim in Slidell Sometime between Bs uncle the defendant arrived unexpectedly in Slidell The defendant is the brother ofL In accordance with La R S her initials July 15 and at her August family home 46 1844W the victim herein is referenced 2 15 Bs mother J B We have also referenced the minor victim initials to protect her privacy was s immediate family only by members by away from home and not son at the back was who was Later that had Sr Reconstruction supposed to years old seventeen their home when their parents P B door of their house immediately allowed inside the home P B were at arranged to the time was to let him The defendant to J B no one was allowed get the defendant Company doing next According was oldest s allowed in away morning the defendant begin the called her while she Sr relayed that the children had called him know that the defendant was her husband P B to J B According work concrete job a to enter the garage at Deano The defendant Marine s s job was day testified that he grew uncomfortable with the way the defendant P B acted toward his sister LB L B testified that upon the defendant s arrival he immediately began making was wearing when she statements toward L B concerning what she get the mail how L B turned him went to on while dancing with her brothers and the fact that the defendant made references knowing LB that L B had been raped two months earlier some years earlier and wound up According to LB the because she was he wanted he would do the under the messed with defendant s impression same that there was a way to have defendant also told L B a sixteen year old beating the girl statements thing sex to her went LB her afraid get what testified that the The defendant later told without anyone that he would rather have 3 made that if the defendant did not defendant shadowed her around wherever she LB The defendant told explicit details about the sexual relationship between him and his wife The defendant also told L B that he had girl to finding someone out in her The family teach her how to be rubbed and touched than have someone from the street do it Sometime after the defendant her Later that have bedroom that her brothers her clothes off LB the defendant was to to see the defendant defendant inserted his penis calling for with L B L B her went into the vagina on asking was upstairs The defendant told L B using into her shower a bathroom s L B knew the defendant complied and then lay down sex her mother and the defendant were not began having heard her mother pleased J B returned from the defendant called L B ready LB with him sex not adjacent in the shower was kitchen and asked her if she to was in her bedroom was While her mother her Slidell day in J B went into her first floor bathroom to take evening At the time L B her mother to L B trip According first s take to At that the bed the to point specifically testified that the began crying LB and then got up and the defendant began LB If grabbing her chest but she moved his hand dressed and According movie with all the was her extremely appeared to be calling for uncommon on shaking for L B to be very that she s was called was walking funny holding what she 4 to was bring laid testified that when lB trembling and her upstairs a bedroom downstairs it upset As L B got closer her voice was LB upstairs the staircase she When her mother asked L B responded they could watch so throughout the first floor of the boys bedrooms upstairs and appeared LB downstairs locate her Because of the way the house not daughter appeared the wall and was J B had looked for L B together residence but could out she to J B went was to her eyes mother were onto she very red doing upstairs LB to the boys some towels bathroom Her mother did not believe this and continued to After time the defendant at some trial that she did not appeared on the stairs question L L B later B explained tell her mother what occurred because she knew her mother would become upset and that her mother could defend herself not against the defendant lB called her oldest P B son confrontation with the defendant restricted to certain to come According of the house and areas home from his the defendant to J B was not allowed testified that her mother had her back toward the defendant them both and that the defendant shaking his head happened Although no a friend incident L B s a to year later L B not so Charlie Craddock Office made this incident contact a told her mother what that between the detective with the St with L B and her mother was that she had been summer flirting with happened after poem about the Bs mother of the a m one day in Tammany Parish Sheriffs initial report of following the impression after sexually abused of 2002 and the time the incident The defendant testified denied to everything her L B had become withdrawn and her LB a Detective Craddock testified that his initial with L B spoke his mouth while L B woke her mother at 3 00 November 2003 and told her she night journal that contained read her LB upstairs as was kept telling her mother that nothing friend had told her that she would tell L incident if she did speaking LB over J B made the defendant leave their house that Approximately allowing kept his finger job during the LB at was testified reported to grades declined trial The defendant denied and denied 5 J B telling having her that he sex with previously had sex with another sixteen year old girl The defendant claimed his brother in law had told him that he could get him a that he knew the defendant The defendant said that his sister Sonya had purchased a coming was bus ticket for him Slidell but when he arrived he could family residence to not travel from Pensacola get in touch with anyone been staying previously raped at but to at the B the B family allowing was believe she had The defendant admitted to his he not to The defendant testified that while home L B revealed that she had her parents job working for the railroad and had spent of his seventeen acknowledged prior lengthy criminal history estimating that The defendant forty years in prison convictions for armed theft robbery burglary and DWI ASSIGNMENT OF ERROR In the sole enhanced sentence felony offender offense a assignment of as is excessive he had guilty plea to forgery sex The defendant and that notes conviction within one The defendant further the defendant contends that the error notes that none the that he is prior conviction The defendant also contends that the trial cnmes considering the older convictions in imposing the argues that the sentence was based on were based on court erred in The defendant punishment is cruel and unusual Article 1 section 20 of the Louisiana Constitution excessive second of the instant ten years of his older convictions a sentences Although sentence may still violate punishment In a reviewing a sentence is within the statutory limits the defendant s constitutional a sentence for 6 explicitly prohibits right against excessive excessiveness the appellate court consider the must punishment and gauge whether the justice that the or and the crime in penalty is sentence so makes disproportionate no penal goals and therefore is nothing and pain See State suffering 5116 00 769 So 2d 1158 imposing a be aside set State sentence v 1167 of the harm to as to shock its reasonable contribution than the needless more 2003 0977 pp that must be considered trial court need 905 La not 19 20 La 23 2 I Cir App La 9 24 04 La 2005 0150 App La 882 for offenders 2d So cases In State Louisiana v v nothing 873 So 2d 690 involving Easley the to 15 p La will not 1167 forth items sets The sentence than the 897 most State La purposeful imposition 7 or p 4 Faul 2003 1423 App sentences are worst 1st Cir 1983 1280 1281 if a trial writ 546 U S offenses and the serious of punishment Leblanc 743 denied cert v v So 2d 736 Maximum 692 So 2d 1276 State La 1993 judge determines the Habitual Offender Law makes acceptable goals more 874 So 2d 04 imposing the criteria 432 So 2d 910 914 Dorthey 623 punishment mandated by to 2005 Supreme Court recognized that contribution before 901 So 2d 1063 254 163 L Ed 2d 231 State court 1 Cir 12117 04 4 29 05 1 Cir 2 23 04 App reserved by the trial adequately considered 10 126 S Ct imposition of recite the entire checklist of Article 894 1 but the record reflect that it denied of acceptable sentence a Louisiana Code of Criminal Procedure article 894 1 p sense excessive in the absence of manifest abuse of discretion as Loston 2004 1032 society wide discretion in court has The trial within the statutory limits and such 197 210 writ denied 2004 0792 must to 99 1528 99 1753 Guzman v light no the that the measurable that the sentence amounts of pain and suffering and is grossly out of proportion reduce the sentence the However to in express that punishable Dorthey recognition by the are So 2d at 1278 crimes as It is the the sentence imposed are charged with court of the crime severity that would to one holding the not be made was he is duty bound constitutionally excessive only after and in light of that the determination and definition of purely legislative functions are Legislature s prerogative for crimes classified as to to Id felonies 623 Dorthey detennine the acts of length Moreover courts applying these punishments unless they are found be to unconstitutional Id As a second 15 529 1A 1 RS to a a stated the defendant hard labor at the trial may consider court the habitual offender bill 4 Cir 11 20 02 855 So 2d 307 an Based on years imprisonment behavior not sentenced s criminal to 14 80D eighteen history that is not a As years 1 part of Williams 2002 1815 pp 7 8 La the record before abused its discretion in is and imprisonment App 833 So 2d 428 433 writ denied 2003 0036 La 10 3 03 court sentence v under La sentencing guidelines Article 894 offender State subject See also La R S was Under the imprisonment was minimum of five years imprisonment maximum of twenty years previously the defendant felony offender at hard shocking imposing labor or The defendant s sole an us we do enhanced Considering not sentence of eighteen the facts of the offense grossly disproportionate assignment find that the trial to the the defendant s of error is without merit REVIEW FOR ERROR The defendant asks that this court examine the record for La Code Crim P art 920 2 This court 8 routinely error under reviews the record for such errors whether Article 920 2 inspection we are of the After found reversible App 0130 a such a request is made by limited in our review to errors a defendant discoverable careful review of the record in these errors 1 Cir 12 28 06 La 2 22 08 not by Under a mere pleadings and proceedings without inspection of evidence no or See State 952 So 2d 112 v 123 976 So 2d 1277 SENTENCE AFFIRMED 9 proceedings Price 2005 2514 pp 125 en banc we 18 22 the have La writ denied 2007
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