State Of Louisiana VS Jonathan Parker

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EOE l A 1 SLOUISfANA COURT OF APVEAL FrRST CIKCUIT 2012 KA 1550 LOF LOUISIANA STAI VERSUS rHAN R JONA PARK Judgment Rendered APR 2 6 ZQ 3 APPCAL D FROM TFiE TWENTY 7DDICIAL DISTRICT COURT THIRD IN AND FOR THF PARISH OI ASCENSION E 1 S7 OF LOUISIAN I DOCKF NUMBER 27 572 573 27 HONORABLE R11LPH TUREAU JUDGE Itidcy Sabin ict Dist Attorn Attorneys for Appellec State of Louisiana dsonville Dona Louieiana 1nd Donald Candell ilssistant Dislrict Attorney iles Gonz Louisiana Jutie C iazard ey Attor foi Defendant Appellant v Ne Orleans Louisiana iathan Jo Parker FORI B KUHN PETTIGREW AND McDONALD JJ iVIcllONALD J The defend2nt Jonathan Narker was charged by bilt of information 7572 with one count of indecent behavior vith a count T a violation of La R S 2 E1 41 14 and one count of pornography involving juveniles count lI a violation of La R 14 and initially pled not guilty on both counts Additionally he S 81 1 was charged by bill of infor7nation 27573 with one count of computer itation sulic of i minor co 1 a violation of La R 14 and one count of uit S 81 3 extortion c6unt ll a violation of La K 14 1 he withdrew his S 66 hereafter 3 initial pleas and pled guilty to all four counts He subsequently moved to withdraw his guilry pleas but the motion was denied As to bill 27572 the defendant was sentenced to seven years at ha labor on count 1 and ten years at hard labor without d the beiiefit of parole pi or suspcnsion of sentence on couut Il obation As to bill 27573 he was sentences to ten years at hard labor vithout benefit of parole probatior or suspension of sentence on count l and 6l years at hard labor on een cotmt ll 1 trial cow ordered all iour sentences to be seived concurrently he He nloved for reconsideration of sentence but the motiori was denicd He now appeals allegirig ree tl assignrnents of error the trial court acked jurisdiction 2 the tria t coui erred i denying the iliotion to withdraw flle guilty pleas and 3 the trial court erred in denying the itlotion to reconsider sentence For the following reasons we affirm the convictions and se lences F AC TS Due to t defendant guilry pleas there was no triaJ a tbus no trial ic s ld tcstimony co the off At the Boykin hearing however the trial court lecrning nses rciterated the factual bases for the charges set forth by the State which thc defendant The record docs not reflect the defendant inirial pleas to these counts s Bovkin Alabaina 395 U 23R 89 S 1709 23 L274 1969 S Ct 2d Ed 2 eplui ac as accurate In regard to bill 2757 count I indecent behavior with a nile e juv tl State se furth that o or about March l 200 tl July 6 ZO10 in i ough i Asce u Paiisti thc defendant trarismitted electronic textual communication or ion ic electmi visual communication depicting ewd or lascivious conduct text or irnages to a person reasonably believed to be under the agc of seventeen and reasonably believed to be at least tyears younger than the offeilder with the intent vo of arousing the sexua desites ol the defendant or lhe victim hee ei In regard to bill 27572 count I porno involvingjuveniles the State aphy set fc that on c about Marcll l 2009 through July 6 2010 i Ascension Parish t11 r Uie defcnda hotobraplted videotaped filmed or otherwise reproduced visual lt sexual perlorinances in a cl under the age of seveiitcen olving ild ln regard to bill 27573 count I aided computer solicitation of a minor tile State set forth tl on or about March l 2009 throug July 6 2010 in Ascension at 1 Parish the defendan eing t eighteen years of age or older coi or tacted unicated comn through the use of electronic textual communication with a person o vl had tiot yct attained the age of eighteen oi a person reasonably belicved not to avc t attained the age of eighteen for the purpose of or with intent to persuade cnticc induce o coerce the person to engagc or participate in any sexual conduct or cximc of violenee or with intent to engage or paz in sexual conduct in the presence of the person who has not yet attained xhe age of eighteen or a person reasonably believed not to have attained the age of eighteen In regard to bill 27573 cowit li extoriion the State set forth that the defendant on or about March 1 2009 t July 6 2010 in A Yarish ough u cension conununicated threats to S to expose or impute any deformity or disgrace to her M or to any meinber of her family or to any person dear to her The vi initials rather then name are usedpursuaiitto La R s tit S 6 I 44 W 3 Adcjitionally the presentence investigation PSI repoil indicated the victim s ather 1 conlacted authoiities after tlle defendant senl explicit photographs of the victim to t victim fat and the victim mother cell pliones ie s ier s s s When the victiir s fathcr tried to call the defeildant he claimed to be someone else Subsequently vcrthe defendant adn that he isent tPic photographs N ho itted d 1in r Accc to the PS1 the victim indicated she met the defendant on twire rc and I MSN approkirnately twn years earlier After approximately five months the eonvet between Che defiendant and the victim turned to a sexual sations manner and he began askiilg inude p of the viclim periorming sexual ar otographs acts The defendant insh tl victim as to the type manner and sexual acts that e she was to perform wantcd to take Subsequently the victinl told tl defendaut shc no longer e pictures of herself and Send them to him The defendant the 1 nailed black the victim threatening to contact her parents unless she sen him more explicit photu with the juveilile performing sex acts with a hairbrush a n ana baG a curling iron and witih approximatety 30 r dog l he I viclim sent the defendant 40 poi images The defendant sent the photographs to iograpllic llis Igirlfi in W6arto Texas an adult male in Baton Rouge and a old yeak iend l 14 year female in Hammond in an attempt to arrange a sexual encounter old The deCendant also sent pornogiaphic pictures of himself and his 14 girlfi to old year he victiin Nt1E VF I assignment of eiror number l the defendant argues that trial counsel was tive ineffci for failin to movc to quash for itn vcnue or lack of ju roper isdiction ause bec the entirety of the crinie in question occun in Texas wholly outside s ed of Louisiai a A claim of ine assistance of counsel is generally relegated to post ffective conviciion proceedings unless ihe record permits definitive resolution on appeal 4 Statc v lillei 99 La 9i6 77C So 396 411 cert denied 531 U 0192 OOj d S 1 194 1 1 S l I 96 l44 L Ed 11 1 7 Ct 2c 2001 A claiin of ii of couasel is analyzed under the two test effectivcucss pronged eloped de by t Unitel States Suprenle Court in Strickland v Washington 466 e S U 2d Ed Ct 668 J 04 S 2052 80 L 674 984 ln ordee to establish ihat his trial e attari was inel the defeildant must first show that the attorney fective s ance i l r ewas deticient which cequires a sllowing that cc nlade errors so unsel serious that 11e was not functioning as counsel guaranteed by the Sixlh nmendment Secondly tlle defendant must prove that the deficient performance ieed ju pr the defensa The defenaant n rove actual prejudice before relief ust will be gra T elc requires a showirtg that the errors were so serious ited is ncnt iat t the defend was deprived of a fair h it is not sufficient for the defendant t u to show that the error had some conceivable effect on the outcome of the proceeding Rather he musl sl that but for the counsel unpro errors ow s essional tliere is s reasonable robability the outcome of the trial would have been different Further it is umiecessary to address the issues of bolh counsel perfor and s nance prcjudice to the defend if the defendant makes an inadcquate showing on one of it the coinponents State v Serigny 610 So 857 859 La App lst Cir 2d 60 199 vrit denied 614 So 1263 La 1993 2d ouisiana ConsCilukion Artide I 6 in perlinenl part pcovides that evety l persori chat with a crime has the right to an impartial trial in the parish where e e tl offen or an element of the offense occurred unless venuc is changed in datice acco3 with law Additionally Loti Code of Crii7iinal Procedure art 61 l isiana A provides All trials shall t place iri trie parish where the offense has been ake committed uniess the venue is changed If acts constituting an se offea or i f ihe elements of an offense occuired in more than one place in or out of the parish or state the offensc is deemed to 5 have bc committed in ai parish in this state in wllich any such en y ac ur clement occ red n Venue is not an essei element of the offense rather it is a jurisdictional tial inatter Objectioi to venue must be raised by a motion tu yuash to be ruled on by s the oui in advance of the trial At the hearing the burden is on the State to prove t s vcnu by a preponderaiice of the evidence a l Code Grim P art 615 State v Roblo i23 So 51 55 La App I st Cir 1993 2d We vill a assignment of error number 1 even in the absence of a ess dt ion ino to quash because it would be riecessary to do so as part oi analysis of the the ii assistance of counsel claim See State v 3ickham 9 La cfFcetive 1839 np lst Cir 6 739 So 887 891 99 25 d 92 In re to indeceot behavior with juveniles prior to arnendnicnt by 2009 ard La Acts No 198 I La ILS 14 provided 41 nn offense cc under his Section and based upon the mmitted of or and receipt electronic textual visual conunGmications may be deerned to have L committed where the een F transn7ission nnmuilication as c w riginally sent originally received or originally viewed by ai person y Kegarding to coinputer soGcitation ofa minor La RS 14 aided 813 covidcs F An ofFerise conlr under this Section may be deemed to have itted been conimitted where the electronic textual communication was originally sent originally t originally viewed by any or sori pei oi where any other elert of the ofi was committed ent ense Concerning bill 27572 count 1behavioi with a juvei and bill indecenl ile 7i 7 count i aided solicitation minor the defendant argucs computer ofa nthe receipt or viewing referr to in the above teferenced statute refers wkie d s to an action takeu by somcoiie other than thc defendant we would argue that the ckion can be imputed to a deferGdant outsidc of the jurisdictional borders of t Louisiana for the purpose of obtaining jurisdiction ovet him n regard to bill 6 27573 count Il exYOrtion tl ci argues if said coilin was e f dant i unication initiated il w initiated in I s exas he T place wl the eFfect of the criminal coi occurs is an important iere duct cation sicl co uz deteriiuning wl the charged criminal acts have substantial er etl contacts with thc venue e fot pt Sec State v Hayes 2001 hosen osecution 3193 2d 5 La J 837 So I 1 1 99 per curiau SYate 03 28 Odom 2002 La 2701 pp I st Cir bl 861 So 195 201 wriL denied 2003 La 10 03 7 2ci 2147 03 17 855 So 766 1lthough defendant resided in Texas his actions victimized a 2d the child and hei pacents in lscension Parish and thus Ascension Parish was a proper venuc ir tllis matter ther Fux the defcndant tocuses on certain elcments of thc cs officn while ignoring others The transmission of a picture to the arnographic victii was uot a completed offense L receipt of that picture Additionally the ntil s mnunication deiendant co through tl use f electr textual communication e nic witfi the victini for the purpo of or with intent to peisuade iior coerce her e duce to engage o participaLe in sexual c was not a cornpleted offense until nduct receipt of the cominunication Similarly the dcfendant communication of a s tllreat to disgrace the victim to force her to continue to providc naked pictures of to her5elt him was noi a completed offense until receipt of the ti by the victim rcat in nscei 1 sion arish ln regard to bill 27572 count 1 pornography involving juveniles the ndant def argues talle act of possession receipt and distribution of said he ed s s phot occurrcd in Texas he s T defendant arguntent ignores the fact that porziograpliy involvingjuveniles iiicludes tll coerciou of any child uuder the age of teen sevea for the purpose scxual of raphing photo mance perfoi involving 2 A 1 81 14 priox to a amcndment or otl reproducing visually any erwise child under the age by 2010 La Acts No of sevEnteen 516 La R S 1 The victim was d cocrc iu ilsce Parish arlc lhus Ascension Narish was a proper venue in tllis nsion 7 natte lccordingiy the defendani tails tu shc de perfotmance by defense w icient el coun in failing to n to c he bills of ii improper venue ove uash foroiatian for owcvcr L cven a5swning acguendo defense counsel had performed tly deficiez in failiiig to movc to quash the defendant suf no prejudice from the ered ntperfor defici nance because this cou considered the defendant challenges to t s venuc and in connec with the inef assistai of counsel claim jurisdiction ioil eclive ce and found them to be withoi rnerit it his nent 7 assigu of err is wit merit r ouL ION 1 O MWCCHDRAW GUILTY PLEA In ignmcnt as oi ror ei nuinber flic dc argucs the trial cotiirt erred in fcndant not allowing ihe guilry pleas to be wid becausc defense counscl told the drawii dufcndant hc would not receive maximum scntences A gui plea is a wrrviction and therefore should be afforded a great measure ry of liiiality A defenda may iwithdraw a gui plea simply because the sentence t ol ly ed impoa is heavier tha anticipated It is not unreasonable foi a trial court to deny a dant e defei tl luxury of gamblin on his sentence then being able to withdraw his plea if and when he discovers tl scntciicc is ttot to his liking Neve a guilty c theless plca is co infirm if a defendant is induced to enter the plea by a plea y stitutioiiail barbain or whal he justitiably believes to be a plea bargain and that bargain is not Icept In such cases the guilly plea was not given ii and knowingiy State v eely Roberts 2001 La App l st Cir 6 02 822 So 156 I 58 writ denied 3030 21 2ci La 1 LO5 14iO3 2002 3439 So 31 2d On July 1 L 201 l the defendant with benefit of counsel pled guilty to all four charges gainst him He indicated that he was twenry years old and had some two e cvlle cr He stated that defense counsel had explained his rights to him He 8 also staled UZat he u his E rights when ihe court explained them to iderstood ykin t him ln regard to bill 27572 count I iridecent behavior with a juvenile the court explai led The ran of penalties fo tllis offensc is a i not more e ine of Court daazi S or imprisonrtieat with or without llabor for not inore OOU ard than sevcil ycars or both So you understatid thc possibility of sentence for thak oite se C i DeFend Yes ir In regard to bill 27572 count II pornography involving juveniles the court explained Court Now the range of pe for that ot is a fine of not alties ense more than 10 and iinprisomnent fi not less than two year noi 000 r s more ttlan tcn years without benetit of parole probation or suspension of sentence So do you understand the ossibility of sentence for Yhat offense Defendant Yes sia In regard to bill 27573 count I aided eompuCer solicitation of a minor the court cxp L une Court Now the range of per for that offense is a fine of up alties to 10 imprisonnlent for less than five years nor more tha ten 000 not n years without benefit of parole probation or suspension of scntence So do you understaud the possibility of sentei for that ofifense ce Defendant Yes sir In rcgai to bill 27573 count ll extortion the court explained i I Bovlcin v Alabama th United States Supreme Coint reversed five rubbery coi lotu i s vicUot ideci on guilly pLeas beeause the court accepting the as ad pl lnot ascectaincd that thc defendaiit vohintarily and intelligently waived his ht ainst ri a compulsory seli right to trial by jury and right to rtion incrimin confrorlt his accusers 395 U at 243 Boykin only rec a defendant be S 44 uires ned izifoi of these thcee rights Id lts scc has not been expanded to include pe advising tl defendaiit o any other rights which he tnay llave nor of the possible e f ces conseque ofhis actioi State v Smith 97 App lst Gir 11 is La 2849 98 6 2 2d 7 So 048 9 No4v the ran of penalties c that c is imprisonment e f ffense ior not less than one iio more tlia I5 years 5o do you undeista the d ibility e i pos of enten yoi cuuld receive for that rt Cc t cndar Del Yes sir Additionally the couit advised thc defendant Court Now in youi case your attorney and the district attorney have conducted plea baa Tt agree that there will be no iaig gai ey sentencin today that they going to ordet a pre re senlence investigation A pre invetitigation is perfornied by probation sentence and parole fhey can loolc aY you your backQround have any pastor or any member you want to participate iu the pre investigation sentence he State is also entitled to participate in it and then they i llsend a report to the coui wilh a recommendation as to what they think the senteuce t stiould be That repot will be made available to you through your e twill then schedule it foc a sentencing So attorney ancl tl Cou knowing that that the pr we goiilg to ftin this case do s cedure rc Ilow yota still vant to plead giulty nt d Defei Yes sii On February 6 2012 piior to sentencing defense counsel moved to witlldraw tl7e uilty pleas claiming they were not knowingly inCelligenkly or voluntarily tered e n er I motic set Lorth thaY defense coun5e lhad adviseci the defendant that since he was a firsY o and the sentences would ikely be servcd felony Ffender concnrcently he could ex to be sentenced to somewhere between five and ten ect vca total The motioti alleged the defendant never would have p4ecl guilty had he r ci aL be dvis ti he could i easoiiabty ehE to be senlenced to anything close to 42 l ec yea hici is what this court has now proposed At the hearing o the motic the defendatlt claimed he had been forced into n ie t lea Te stated I was told a sentencc a that what I get Defense counsel lcj s l respond that he had not forced anyone into a plea F7e stated the defendant was a tiiue first offender and tlle motion was filed because the court had sent out a proposed sentencing of 42 years whicl means every charge to be run consecutively vith each other 111e lt cow denied the motion to withdraw noting we went et o ihe B very carefully oykin 0 The ttial court did not abuse its discretion in denying the motion to withdiaw the builty pleas Tlie defenda tmoved to withdraw his guilty pleas because he was aiiaicl 11e woiild receivc conscct sentences There as no plea bai for non tice gain consecutive se tno subst rights of the accuscd were affected tences loreover lntial ecau5e thc i defendant reccivcd concurrent rati than consecutive sentences er See Lsa ode Cxim P art 9 I his assignrue of error is witl meril l t oul VG ENCES EXCESS SEN7 ln assignmenl of error numher 3 the defendant arg that the trial court ies abuscd its discretion in de d nlotiou to reconsider as the sentences were ying c excessive He claims that Ite vas o nineteen when he began communicating with ly tlle ictim using tl internet l prior f ie ad no elony convictions vld that the victim was rnore savvv and sexuall yexperienced thanJ tlle defendant The Louisiana Code of Criminal Procedure sets forth items that must be considered by the liial court belbre imposin a se La Code Crim P art r tence 1 894 Thc n court need not recite the critire checklist of Articic 894 but the 1 record must reflect that it adequately coiisidered the criteria n light of the critcria essed expi by Article 894 a review for individual excessiveness sllould consider 1 e tl circumstances of the cr and the trial couri stated reasons and i basis ime s actual for its sentencing decision State v Hurst 99 La npp lst Cir 0 2868 QO 3 797 So 75 83 w denied 2000 I 10 798 So 9b2 2d 3053 a 5 O1 2d Remand for full compliaiice with Aiticle 894J is unnecessary when a sufficient factual basis fot the scntence is shown State v Narper 2007 La App lst Cir 0299 1970 So2d 592 602 wril deniec 2007 La 2976 So 173 Sl0 9 1931 08 15 2d LouiSiatla Constit Article 1 ition 20 prohibits the imposition of excessive ishillent ptiu Although a sentence may be witl statutoey limits it may violate a in s al derendant conslitulior right against excessive punisllment and is subject to Il ellale ap review Generally a sei is co excessive if it is grossly tence tsidered proportionate di to the severity of the crime or is nolhing more than the needless ition unpv ot pain aod i A suffe sentence is considered grossly tionate apoi r dis if when tlic criai and pun are considered in light of the e shmeut arn1 1 to society it is so disproporlionate as to shock one sense of justice A trial s judge is given wide aiscretion in the intposition of sentences within statutory limit and the sei impo5ed should not be set aside as excessive in the absence tence oCmanifest abuse oPcliscretioii Hu 797 So at 83 st 2d loever W commits the crime ofi indecent bahavior witli juveniles bill 27572 count I shal be fined not more than five Yhousand dollars or imprisoned with or witllnut t labor for not nore than sevcn years or both provided that the defendant ard sliall r be eligibls to have his com set asid or his prosecution distnissed in ot ictioil accordance with the provisions of Code oT Criminal Procedure Article 893 La R S 1 F R1 14 On bill 27572 count I lhe defe vas senLenced to seven years at dant hac labor Whoeve comniits tlle crime of pornogcaphy involvin juveniles bill 27572 coun lI shall be fined not more than ten thousand dollars arid be im at hai risoned d abor for not less than two years ar inore than ten years without benefit of parole probalion or sus of senteilce I R 14 prior to amendment by ension a S 81 E 1 a cts 201 Q I fNo 5 I 6 012 La Acts No 446 1 On bill 27572 count I the d was sentenccd to ten years tt hard labor without benefit of Uarole fendant probation or su of sentence n pcusic As applicablc here whoever commits the crime of computerizcd solicitation of a minor by viola t provisions of La R 14 bill 27573 count I shall be ig ia ie S 813 fined not more than teil thonsan dollars and shall be impi at hard labor for not i isoned lcss than tive years nur more than ten years without bene6t of parole pr or obation erision sus of sentence La R S a I B 813 14 On bill 27573 count I the defendant was sentenced to ten y at I labor wiUiout benefil of parole ears ard bation pr or suspc ol s nsion nLence Whoevcr commits the crime of extortion bill 27573 count II shall be isoned impi at hard labor for not less than one nor more than fifteen years La R S bE 14 pcior to amendment by 011 La Acts No 243 1 Ori bill 27573 count 11 Uie de was senCenced lo iliecn years at llabrn ndant fc iard he court ordered the sentences imposed would iun concUn so ten years l of the sentence hall be wilhout beneGt of parole probation or a suspension of sentence n scntei tlZe dcCcndant the court noted he was twenty ycars old and cing two officially classi as a first offender The court indicated it had ordered and 6ed feloiiy ed ti rece a PSl to assist in inaking a fair decision on sentencing Thc court stated it considers thoeoughly that repoit that tec as well as the comments made today s eived ancl as well s ihe letters that the Cot has received in sLippoz rt tof the defendant he cour l Iound The subject h multiple offenses involving juveniles Bascd on s this inforrnatic nth State of Louisiana Depa ofPublic Safety and tment Corrections is recomroend that he receive a sentcnce of seven years g n at hard labor for indecent behavior with a juvenile ten yeais at hard labor for pornograplry involving juvcniles without benefit ofi parole probation oe a nof scntence ten yeais at hatd labor for ensi susE aided r cotnpute solicitation of a rninor without benefit of parole probation a suspensiori of sentence anc fifteen years at hard labor for Louisian Departinent of Public Safety and Con recommends thai these sentetices be run consecutively ia total of 42 or years witll 20 years of the sentence to be imposed without beilefit of extorlion ole par probation or a suspension of sentence A thorough review of tl rccord reveals the trial court adcquatcly considered e the cr of 1 8y4 I and dicJ not manifestly abuse its discretion in imposing ia teG rticic the scutcnces llerein 5ce La C Crim P art 894 A B B ode 1 3 2 21 er urt l the sentences imposed were not grossly disproportionate to the severity of the offenses and thus wer not unconstitutionally 13 excessive Adclitionally maxirnum senLence were wan in this matter anted Maximum sentences may be ed ly po i iil c or the most erious offei ind the worst o1 or when tl ses fendets e le es i oife po an unusual iisk to thc public safety due to his past conduct ofrepeated ality iiniE ca State v Millea 96 i1pp lst Cir 1I 703 So 698 2040 a 97 7 2d 741 h deniect 98 9 La 5 15 7 L9 So 459 Defendant acrions were rit 00 98 2d s jsaified c1 as the n serious offenses because the defendant coerced a minor child ost l ii sending him sexua explicit photographs of herself and then roceeded to ly circulate ihose photographs to others He falls irlto Che category of the woist offender because he repeatedly victimired the child and also victimized her family Tbis assigoment of en is without rncrit oi tONS l IC ON AND SEN AFFI121 NCGS D E 1I I 14

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