State Of Louisiana VS Kendall Ray Smith
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2011 KA 1081 STATE OF LOUISIANA VERSUS KENDALL RAY SMITH Judgment rendered December 21 2011 ry Appealed from the 21st Judicial District Court in and for the Parish of Livingston Louisiana Trial Court No 24337 Honorable Brenda Bedsole Ricks Judge HON SCOTT M PERRILLOUX ATTORNEYS FOR DISTRICT ATTORNEY STATE OF LOUISIANA PATRICIA PARKER ASSISTANT DISTRICT ATTORNEY LIVINGSTON LA FRANK SLOAN ATTORNEY FOR MANDEVILLE LA DEFENDANTAPPELLANT KENDALL RAY SMITH BEFORE PETTIGREW McCLENDON AND WELCH 33 PETTIGREW J Defendant Kendall Ray Smith was charged by bill of information with two counts of sexual battery violations of La R 14 He pled not guilty After a trial by jury S 43 1 he was found guilty as charged on count one and not guilty on count two The trial court sentenced defendant to ten years at hard labor without the benefit of parole probation or suspension of sentence Defendant now appeals alleging as his sole assignment of error that the sentence imposed was excessive For the following reasons we affirm s defendant conviction and sentence FACTS H W the victim in the instant case is the sister of defendant wife and was s seventeen years old at the time of the offense On June 13 2009 W was at H s defendant home swimming with her sister her niece and defendant Initially the group was playing a game that involved defendant pushing them around the pool When defendant began grabbing W on her rear end she became nervous and attempted to H evade him After her sister grew tired and left the pool defendant touched W vagina s H with his hand When he asked if it hurt and she responded affirmatively he stopped However defendant later grabbed W hand and forcibly placed it on the outside of his s H clothing over his penis EXCESSIVE SENTENCE In his sole assignment of error defendant contends the sentence imposed was unconstitutionally excessive Specifically he contends that the trial court abused its discretion in imposing a maximum sentence because he is not the most egregious type of offender for whom maximum sentences were intended Defendant further complains that the trial court failed to adequately consider the sentencing criteria of La Code Crim P art 894 or to give any sentencing reasons 1 Defendant suggests that the trial court imposed the maximum sentence as punishment for defendant exercising his constitutional right to a jury trial rather than accepting a plea bargain that was offered by the State 1 Pursuant to La R 46 the initials of the victim will be used to protect her identity S 1844W a I The Eighth Amendment to the United States Constitution and Article I 20 of the Louisiana Constitution prohibit the imposition of cruel or excessive punishment Even when a sentence falls within statutory limits it may be unconstitutionally excessive See State v Sepulvado 367 So 762 767 La 1979 2d 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 grossly disproportionate if when the crime and punishment are considered in light of the harm to society it shocks the sense of justice State v Andrews 940842 pp 8 9 La App 1 Cir 5 655 So 448 454 A trial court has wide although not 95 2d unbridled discretion in imposing a sentence within statutory limits State v Trahan 93 1116 p 25 La App 1 Cir 5 637 So 694 708 The sentence imposed will not 94 20 2d be set aside absent a showing of manifest abuse of the trial court wide discretion s Andrews 940842 at 9 655 So at 454 2d For the crime of sexual battery defendant was exposed to a term of imprisonment with or without hard labor for not more than ten years without the benefit of parole probation or suspension of sentence See La R 14 S 43 1 iC He received the maximum sentence of ten years at hard labor without the benefit of parole probation or suspension of sentence This court has stated that maximum sentences may be imposed only 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 Hilton 991239 p 16 La App 1 Cir 3 764 So 1027 1037 writ 00 31 2d denied 2000 0958 La 3 786 So 113 01 9 2d Louisiana Code of Criminal Procedure article 894 sets forth items that should be 1 considered by the trial court before imposing sentence Although a trial court need not 2 Defendant asserts that this standard as generally applied is inconsistent with the general standard of appellate review of sentences providing that a trial court has wide discretion in imposing a sentence which will not be set aside as excessive absent an abuse of that discretion We disagree finding no inconsistency in the standards While a trial court has wide discretion in imposing sentence that discretion must be exercised in light of the requirement that maximum sentences are to be imposed only for the worst offenders and the worst offenses In reviewing a sentence on appeal an appellate court remains mindful of this requirement 3 recite the entire checklist of Article 894 the record should reflect that it adequately 1 considered the criteria State v Wilkinson 99 0803 p 3 La App 1 Cir 2 754 00 18 2d So 301 303 writ denied 2000 2336 La 4 790 So 631 However the goal 01 20 2d of Article 894 is the articulation of the factual basis for a sentence not rigid or 1 mechanical compliance with its provisions State v Lanclos 419 So 475 478 La 2d 1982 Therefore even in the absence of adequate compliance with Article 894 it is 1 not necessary to remand the matter for resentencing when the sentence imposed is not apparently severe in relation to the particular offender or the particular offense Even when a trial court assigns no reasons the sentence will be set aside on appeal and remanded for resentencing only if the record is either inadequate or clearly indicates that the sentence is excessive See La Code Crim P art 881 State v Harris 601 So 41 2d 775 778 779 La App 1 Cir 1992 In sentencing defendant the trial court stated that having heard the testimony of the witnesses and all the evidence defendant was sentenced to ten years at hard labor Therefore the trial court presumably considered the particular circumstances of the instant offense in imposing sentence Moreover immediately prior to sentencing defense counsel informed the trial court of mitigating factors he believed were applicable in this case including the lack of a prior criminal record Thus the trial court clearly was aware of the alleged mitigating circumstances See State v Morgan 97997 pp 45 La App 3 Cir 2 706 So 1084 1087 Nevertheless as alleged by defendant the trial 98 4 2d court failed to specifically articulate its reasons for the sentence imposed Defense counsel argues that the maximum sentence was not justified in this case because he is not the worst type of offender In support of this claim he notes that he has no prior criminal record that imprisonment would be a hardship upon him and his dependents that the offense involved no violence or threats and that it resulted from circumstances unlikely to reoccur harm that would be caused He further asserted that he did not contemplate the Defendant further claims that the instant crime did not involve the worst type of offense noting in brief that it consisted of a very brief digital penetration of the victim and forcing her hand onto the clothing covering his penis 4 We do not agree with defendant scontentions Despite the absence of sentencing reasons our review of the record reveals that the sentence imposed is not apparently severe in relation to the particular offender or the particular offense At the time of the offense the victim was seventeen years old and defendant was forty over twice her age Even more significant defendant was the victim brotherin law and as such occupied a s unique position of trust as a family member In fact the victim grew up knowing defendant as a member of her family since she was approximately five years old when defendant married her sister Nevertheless defendant heinously abused the position of trust he enjoyed as a family member to perpetrate a sexual battery upon the victim The resulting consequences to both the victim and her family have been devastating The unique circumstances involving this violation of trust distinguishes the instant case from the typical case of sexual battery rendering it more egregious See State v Penn 633 2d So 337 339 La App 1 Cir 1993 See also State v Badeaux 2001 406 pp 9 10 La App 5 Cir 9 798 So 234 239240 writ denied 2001 2965 La 01 25 2d 02 14 10 827 So 414 Under the circumstances it is difficult to credit the defense 2d s assertion that defendant did not contemplate the level of harm his actions would cause The devastation caused by the instant offense is illustrated by the victim written s impact statement which was read to the court by the prosecutor prior to sentencing H W indicated that the sexual assault by defendant has resulted in her formerly close family being torn apart and has affected her relationships with her entire family particularly her sister She has recollections of the sexual assault on a daily basis and it has affected her outlook on men Even though W made no mention of professional H counseling she indicated that the assault has caused her to suffer hurt fear depression insecurity and selfesteem problems and she believes these feelings would remain with her forever Finally we note that defendant has not acknowledged his full culpability in this matter At trial he admitted committing the acts constituting sexual battery but claimed that the conduct was consensual which undoubtedly inflicted additional pain upon the 5 victim As such defendant has failed to accept full responsibility for his actions and the resulting harm to the victim and her family Given the circumstances we find the instant offense to be among the most serious and defendant to be among the worst type of offender An appellate court will not set aside a sentence for excessiveness if the record supports the sentence imposed Code Crim P art 881 4D La On appellate review of a sentence the relevant question is whether the trial court abused its sentencing discretion and not whether another sentence might have been more appropriate State v Cook 95 2784 p 3 La 96 31 5 674 So 957 959 cert denied 519 U 1043 117 S 615 136 L 2d S Ct 2d Ed 539 1996 We find that despite the trial court sfailure to articulate sentencing reasons the sentence in this case is not apparently severe in relation to the particular offender or the particular offense and is supported by the record compliance with Article 894 is not necessary 1 Accordingly a remand for full Even in light of the mitigating factors urged by defendant we cannot find that the trial court abused its wide discretion in imposing sentence The sentence imposed was not unconstitutionally excessive Additionally we reject defendant sposition that the trial court failure to order a s presentence investigation PSI supports his contention that the court imposed the maximum sentence possible as punishment for his decision to reject the State plea s bargain offer and proceed to trial Defendant also contends that the lack of a PSI indicates the trial court was not open to considering mitigating factors First it is well established that the ordering of a PSI lies within the discretion of the trial court there is no duty that the trial court do so La Code Crim P art 875A State v Johnson 604 1 2d So 685 698 La App 1 Cir 1992 writ denied 610 So 795 La 1993 Moreover 2d following defendant sargument regarding the PSI to its logical conclusion would require that a trial court always order a PSI lest it be accused of failing to fulfill its duty to consider relevant mitigating circumstances conclusion No legal or rational basis exists for such a We further note that defendant does not contend that he requested the preparation of a PSI as he could have done 7 G Secondly the record does not support defendant scontention that the trial court imposed the maximum sentence as punishment for defendant exercising his right to a jury trial Defendant bases this contention on the fact that the trial court after being advised that defendant had declined a plea bargain from the State had defendant face the deputy clerk and be sworn in before warning him that if he went to trial he faced a potential maximum sentence of ten years on each of the two counts against him which could also be made consecutive for a total of twenty years Our examination of the record reveals that the State offered a plea bargain to defendant whereby he would plead guilty in exchange for receiving a sentence of five years two of which would be suspended and five years active probation Upon learning that defendant had declined the offer the trial court had him sworn and questioned him as to his understanding of the consequences of his decision Rather than having some ominous purpose for having defendant sworn as suggested by defendant it appears that the trial court merely wished to ascertain on the record that defendant fully comprehended the potential consequences of declining what the court obviously considered a very favorable plea bargain There is no indication in the record that the trial court imposed the maximum sentence as punishment for defendant exercising his right to a jury trial For the above reasons this assignment of error is without merit CONVICTION AND SENTENCE AFFIRMED VA
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