181 So. 3d 795
La. Ct. App.2015Background
- Hebert pled guilty to five counts of indecent behavior with a juvenile; three victims communicated with him and one sent a pornographic image.
- The court sentenced him to two years’ hard labor on each count, consecutive, with credit for time served.
- Hebert appealed arguing the consecutive sentences are excessive and that the court failed to articulate reasons for consecutive terms.
- The State introduced undercover-incident evidence from SVU showing extensive sexual conduct with a 14-year-old-identity decoy; plea was entered December 15, 2014.
- The trial court advised the plea included a 10-year total sentence; Hebert reserved his right to appeal the sentence under Crosby; no motion to reconsider sentence was filed.
- Appeal reviewed for constitutional excessiveness because Hebert did not file a motion to reconsider sentence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the consecutive sentences are constitutionally excessive | Hebert argues five consecutive two-year terms are grossly disproportionate | State contends the sentences are within statutory range and tailored to offender | No abuse of discretion; sentences not grossly disproportionate. |
| Whether the court was required to articulate reasons for consecutive sentences | Hebert argues failure to articulate reasons violates Art. 894.1 | Court's reasons not required due to plea agreement and record supports consecutive terms | Not reversible; record provides adequate factual basis for consecutive sentences. |
| Effect of plea agreement on appellate review of sentences | Reservation of right to appeal permits review | Plea range limits review when sentence within agreed range | Hebert entitled to appellate review; failure to cite Art. 894.1 does not preclude review. |
| Impact of lack of presentence investigation and aggravating/mitigating factors | Defendant claims no PSR or factor consideration | Record supports aggravating factors and unlikely to mitigate | Absent remand, record supports consecutive sentences; no reversible error. |
Key Cases Cited
- Lobato v. State, 603 So.2d 739 (La. 1992) (constitutional excessiveness standard for sentences)
- Dorthey v. State, 623 So.2d 1276 (La. 1993) (gross disproportionality standard to shock the sense of justice)
- Robinson v. State, 948 So.2d 379 (La. App. 2d Cir. 2007) (consecutive sentences; proportionality review)
- Jett v. State, 419 So.2d 844 (La. 1982) (plea-bargain sentence factors considered in excessiveness)