State v. BorosState v. Boros
Robert S. Toale, Gretna, for defendant-appellant.
Before GAUDIN, DUFRESNE, JJ., and JOHN C. BOUTALL, Judge Ad Hoc.
DUFRESNE, Judge.
These companion appeals arise out of related criminal proceedings in the district court against defendant, Andrew Boros. On January 6, 1993, the Jefferson Parish District Attorney charged defendant with forcible rape,
Defendant was arraigned on both bills and pled not guilty to all charges. Pursuant to a plea agreement, the state nolle prossed counts one and three in case number 93-69. The state also reduced the forcible rape charge in case number 93-68 to molestation of a juvenile,
On December 28, 1993, defendant filed a Motion to Reconsider Sentence in each of the two cases. On February 24, 1994, defendant filed in each case an Amended and Supplemental Motion to Reconsider Sentence. Defendant also filed a Motion to Withdraw Guilty Plea in each case on February 24, 1994. The court heard these motions on April 8, 1994 and denied all of the defendant‘s motions.
Defendant filed a timely Motion for Appeal in each case.
FACTS
The only available account of the facts leading to defendant‘s prosecution is contained in the presentence investigation report, made part of the record herein.
On October 20, 1992, a minor, N.R., reported to police that defendant had sexually molested her repeatedly over the preceding year. The incidents progressed from inappropriate touching to, eventually, sexual intercourse. She did not report these incidents immediately because defendant threatened that if his behavior was discovered she would never see her family again.
Another minor, B.C., defendant‘s other alleged victim, was a friend of defendant‘s daughter. She reported that on October 14, 1992, she was at defendant‘s residence when he lifted the skirt she was wearing to look under it. He also straddled her legs as she lay on her stomach and began kissing and licking her back and buttocks.
ASSIGNMENT OF ERROR NUMBER ONE
This honorable court should reverse appellant‘s conviction because the plea of guilty was not voluntarily, freely, knowingly, and intelligently made, and appellant was allowed to plead guilty to crimes for which he was not charged.
DISCUSSION
Defendant here complains that his guilty plea was not knowingly and voluntarily made because the bills of information in the instant case did not specify what section of the child molestation statute he was charged with violating. Defendant further argues that the trial judge failed to inform him as to what section of the statute he was accused of violating.
To be valid, a guilty plea must be made knowingly and voluntarily, and must not be a product of coercion, intimidation or force. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). Due process requires, and the record must show, that the plea was made after a knowing waiver of the right to trial by jury, the right to confront one‘s accusers and the privilege against self-incrimination. Boykin v. Alabama, 395 U.S. at 240-42, 89 S.Ct. at 1711; State v. Galliano, 396 So.2d 1288, 1290 (La.1981); State v. Lewis, 601 So.2d 379, 380 (La.App. 5th Cir.1992). Additionally, a guilty plea cannot be considered voluntary in the sense that it constitutes an intelligent admission that he committed the offense unless the defendant receives real notice of the true nature of the charges against him. Henderson v. Morgan, 426 U.S. 637, 96 S.Ct. 2253, 49 L.Ed.2d 108 (1976); State ex rel Halvorsen v. Blackburn, 388 So.2d 806 (La. 1980). This does not mean that the trial court must specifically inform defendant of every element of the offense charged. Rather, the defendant must establish that his lack of awareness of the elements resulted in his unawareness of the essential nature of the offense to which he was pleading. State v. Bowick, 403 So.2d 673 (La.1981); State v. Barrio, 608 So.2d 641 (La.App. 5th Cir.1992).
A. Molestation of a juvenile is the commission by anyone over the age of seventeen of any lewd or lascivious act upon the person or in the presence of any child under the age of seventeen, where there is an age difference of greater than two years between the two persons, with the intention of arousing or gratifying the sexual
desires of either person, by the use of force, violence, duress, menace, psychological intimidation, threat of great bodily harm, or by the use of influence by virtue of a position of control or supervision over the juvenile. Lack of knowledge of the juvenile‘s age shall not be a defense. B. Whoever commits the crime of molestation of a juvenile shall be fined not more than five thousand dollars, or imprisoned, with or without hard labor, for not less than one nor more than ten years, or both, provided that the defendant shall not be eligible to have his conviction set aside or his prosecution dismissed in accordance with the provisions of Code of Criminal Procedure Article 893.
C. Whoever commits the crime of molestation of a juvenile when the offender has control or supervision over the juvenile shall be fined not more than ten thousand dollars, or imprisoned, with or without hard labor, for not less than one nor more than fifteen years, or both, provided that the defendant shall not be eligible to have his conviction set aside or his prosecution dismissed in accordance with Code of Criminal Procedure Article 893.
Paragraph A of the statute describes the prohibited conduct and paragraphs B and C delineate the penalties for violation. The sentencing range is determined by whether or not it is alleged that the offender was in a position of control or supervision over the victim.
Both of the bills of information herein allege a violation of
The amended bill of information in case number 93-69 specifically sets forth
During the Boykin colloquy, the trial judge advised defendant of the general elements of
Defendant stated on the record that his attorney had explained to him his rights to trial by jury, to confront his accusers and against self-incrimination and that he understood that by pleading guilty he was giving up those rights. When the judge asked defense counsel whether he was satisfied that defendant was knowingly, willingly and voluntarily entering his pleas of guilty, counsel responded “I am your Honor. We have conducted extensive discussions with him. Both Ms. Jackson and I have gone over the entire matter thoroughly.” It is further noted in the court‘s minute entries that defendant was advised of all of his rights and indicated that he understood them. It appears from the foregoing that defendant entered his guilty pleas intelligently and voluntarily with full knowledge of his rights and of the crimes with which he was charged.
Defendant further complains by this assignment that the trial court ordered him upon his release from prison to register with the sheriff of his parish of residence as a sex offender pursuant to
A. The court shall provide written notification to any defendant charged with a sex offense of the registration requirements of R.S. 15:542. Such notice shall be included on any guilty plea forms and judgment and sentence forms provided to the defendant.
Defendant is correct in his contention that neither the waiver of rights form nor the guilty plea transcript show that he received proper notice under
Registration under
Based on the foregoing, this assignment of error is without merit.
ASSIGNMENT OF ERROR NUMBER TWO
Appellant‘s sentence should be reversed because the sentence is excessive, and the trial court failed to consider mitigating factors in imposing sentence and failed to give reasons for the sentence.
DISCUSSION
Defendant here argues that the trial court erred in imposing excessive sentences and did not follow the Louisiana Sentencing Guidelines (hereinafter referred to as “Guidelines“). Defendant previously made this argument in his Amended and Supplemental Motion to Reconsider Sentence
Both the United States and Louisiana Constitutions prohibit the imposition of excessive or cruel punishment.
In reviewing a sentence for excessiveness, the Court of Appeal must consider the punishment and crime in light of the harm to society and gauge whether the penalty is so disproportionate as to shock its sense of justice, recognizing at the same time the wide discretion afforded the trial judge in determining sentence. State v. Davis, 449 So.2d 452 (La.1984); State v. Jackson, 597 So.2d 1188 (La.App. 5th Cir.1992). Even a sentence within the prescribed statutory limit may be found to violate defendant‘s constitutional right against excessive punishment if it is grossly disproportionate to the severity of the offense. State v. Riche, 608 So.2d 639 (La.App. 5th Cir.1992), writ denied, 613 So.2d 972 (La.1993).
Under the Guidelines, defendant‘s first offender status and the category of crime of which he was convicted resulted in a sentencing range of 24 to 48 months (2-4 years) for concurrent sentences and 36 to 60 months (3-5 years) if the sentences were consecutive. The trial court sentenced defendant to seven years on each count, a term above the suggested range, but still well within the statutory range.
In its recent decision in State v. Smith, 639 So.2d 237 (La.1994), the Louisiana Supreme Court considered the extent to which the Guidelines are mandatory. The Smith Court held that:
The only mandatory aspects of the statutory scheme are contained in the
La.C.Cr.P. art. 894.1 , which requires the trial judge to consider the Guidelines, and to state for the record the considerations taken into account and the factual basis for the sentence imposed. The requirements ofLa. C.Cr.P. art. 894.1 attach whether the trial judge chooses to adhere to or instead deviate from the sentence recommended by the Guidelines.Furthermore, because the Guidelines are not mandatory, whether the judge adheres to the requirements of
La.C.Cr.P. art. 894.1 , and imposes a sentence within the statutory range, an appellate court is limited to a traditional review of the sentence for constitutional excessiveness, regardless of whether the trial court imposed sentence pursuant to the Guidelines or outside of the range called for by the Guidelines.
State v. Smith, 639 So.2d at 242.
The trial judge appears to have substantially complied with the requirements in Article 894.1 and State v. Smith in imposing sentence. Before sentencing defendant, the judge stated: “Prior to imposing sentence in this case, it‘s necessary that I state for the record the considerations taken into account and the factual basis for the sentence.” The judge then went on to discuss the defendant‘s personal history as outlined in the Pre-Sentence Investigation Report. The judge noted the defendant was a first time offender. She also reviewed the factual basis for each charge and the ages of the victims. The judge stated finally that “[i]t appears likely that the defendant would commit the same offense given the opportunity to do so. It is the opinion of this Court that incarceration and treatment for sexual deviance are required. A lesser sentence would deprecate the seriousness of the crime.” The judge did not state whether she had taken into account the sentencing ranges derived from the Guidelines or why she chose to disregard them. She did, however, cover most of the factors enumerated in the Guidelines.
As noted above, the sentences imposed by the trial court—while greater than those suggested by the Guidelines—are well within the statutory range. They are also well below the sentencing cap set by the court pursuant to the plea bargain. Both the Louisiana Supreme Court and this Court have held that a plea bargain should be considered as a factor in determining whether the sentence imposed in accordance therewith is excessive. State v. Smack, supra at 740; State v. Sosa, 559 So.2d 980 (La.App. 5th Cir.1990). Defendant was originally charged with four felony counts, including forcible rape. The rape charge alone carries a maximum sentence of forty years.
The defendant‘s sentences do not appear to be grossly out of proportion to the severity of the crime nor do they seem to constitute needless infliction of pain and suffering. Considering the foregoing factors, along with the wide discretion afforded the trial judge in sentencing a defendant, the two seven-year sentences are not constitutionally excessive.
If the defendant is convicted of two or more offenses based on the same act or transaction, or constituting parts of a common scheme or plan, the terms of imprisonment shall be served concurrently unless the court expressly directs that some or all be served consecutively. Other sentences of imprisonment shall be served consecutively unless the court expressly directs that some or all of them be served concurrently. In the case of the concurrent sentence, the judge shall specify, and the court minutes shall reflect, the date from which the sentences are to run concurrently.
In defendant‘s case, the bills of information allege offenses that occurred on different dates, at different locations and to two different juveniles. In cases such as defendant‘s, consecutive sentences are indicated under Article 883.
We have further reviewed the record for any errors patent and we find none.
Accordingly, the sentence of the defendant is affirmed.
AFFIRMED.