State v. FrithState v. Frith
Richard Ieyoub, Attorney General, Jerry L. Jones, District Attorney, Susan E. Hamm, Assistant District Attorney, for Appellee.
Before MARVIN, C.J., and WILLIAMS and PEATROSS, JJ.
MARVIN, Chief Judge.
After pleading guilty as charged to the crime of sexual battery of a seven-year-old male victim in exchange for the state‘s dismissal of an aggravated incest charge involving another victim, Robert Frith was sentenced to serve ten years in the parish jail without benefit of parole, probation or suspension of sentence, the maximum term of imprisonment for sexual battery.
In his motion to reconsider sentence, which the trial court denied, and on appeal, Frith complains that the maximum sentence is constitutionally excessive and contends he should not have been denied the right to earn good time. We shall discuss Frith‘s complaint on appeal of the denial of good time, which is somewhat different than his complaint in the motion to reconsider in the trial court.
On this record, we affirm.
FACTS
During the month of August 1996, while baby-sitting the seven-year-old son of a female acquaintance, Frith molested the child by inserting his finger in the child‘s anus as the child slept. The child reported the incident to his mother a few months later, telling her that he had “cried because it hurt” and that he “was afraid of [Frith,] who told him not to tell [anyone what happened].” Our brackets. The child claimed Frith molested him again in the same manner in September 1996. Frith admitted the earlier incident but denied the latter. After the child‘s mother contacted police in December 1996, the child was examined by a pediatrician who found evidence of anal penetration.
The bill of information charging Frith with sexual battery alleges that the offense occurred between August 1 and September 1, 1996. Frith was then 22 years old and had prior convictions for sexual battery of a five-year-old girl in 1991, misdemeanor theft in 1993 and simple battery in April 1996, to which Frith bargained to plead after being charged with aggravated battery.
Frith initially received a three-year suspended sentence and five years’ probation for the 1991 sex offense, but his probation was revoked in March 1994, after he pleaded
At Frith‘s sentencing in June 1997, about ten months after the offense, the victim‘s mother told the court:
I just wanted to state that it was rather horrific and a traumatic experience for my son. He‘s been ... undergoing psychological counseling and is continuing it. As a result of the trauma he ended up having five intestinal blockages because he would not eat, he would not sleep. He was afraid to defecate because of the act itself. It brought back the memories of it all.
According to the PSI, Frith dropped out of school after completing the ninth grade and has not obtained a GED. He has held only one job, doing construction work for about six months after his release on parole in 1995. He has no dependents. He received psychological counseling while on probation for the 1991 sexual battery, disclosing to his counselor, against his mother‘s wishes, that he and his siblings had been sexually abused by his stepfather.
DENIAL OF GOOD TIME
FRITH‘S CONTENTIONS
In his motion to reconsider sentence, Frith essentially argued that the trial court‘s denial of his good time eligibility amounted to an ex post facto application of
On appeal, Frith‘s new basis for attacking the trial court‘s denial of his good time eligibility under
Frith has not asserted that he was unaware of the provisions of
DISCUSSION
A defendant who desires to have his sentence modified must file a motion to reconsider sentence in the trial court, asserting the specific ground or grounds on which reconsideration is sought, and may appeal the sentence only on those grounds.
Appellate review is further limited by what is included in the appellate record, as designated by the appellant in light of his assignments of error.
Even should we construe Frith‘s objection in the trial court to the denial of good time, albeit on a different ground than the ground asserted on appeal, as sufficient to preserve the due process issue for appellate review under
Frith has not asserted that he was unaware of the potential discretionary denial of good time when he entered his guilty plea. He simply contends the state was required to notify him of its intention to seek such denial, as an additional penalty for the offense, before he entered his guilty plea. Frith attempts to analogize the potential denial of good time under
Frith‘s analogy is misplaced. The notice requirements for enhancement under
In contrast, the denial of good time under
Frith alternatively contends that the trial court was required to notify him of its discretion to deny him good time before accepting his guilty plea. We shall assume without deciding that the discretionary denial of good time under
[T]his circuit has adhered to Boykin in holding that the record must affirmatively show that defendant knowingly and intelligently waived the three constitutionally guaranteed fundamental rights and, further, understood the nature of the offense with which he was charged and the permissible penalty range for that offense.... [T]his circuit has not expressly required that the trial court explicitly enumerate the possible sentences for the offense with which defendant is charged and the eligibility of defendant for parole, probation or suspension of sentence. We have held that a record affirmatively showing that defendant understood the charge against him and was aware of the permissible penalty range for that offense is sufficient and will not render a guilty plea invalid.
28,929 at p. 8; 691 So.2d at 862. Italics in original; boldface supplied.
As mentioned, Frith has not asserted that his plea was invalid or that he was unaware of the permissible penalty range for sexual battery before he entered his guilty plea. He complains only that the trial court did not fully inform him of the potential penalties before accepting his plea. Frith has not designated the guilty plea colloquy as part of the appellate record, however. The minutes do state that Frith was advised of the maximum penalty. This record does not allow us to determine exactly what Frith was told by whom (by his attorney, by the prosecutor or by the trial court) about the possible penalties for the offense before Frith pleaded guilty. On this record, any further discussion of Frith‘s due process claim would be speculative.
CONSTITUTIONAL EXCESSIVENESS
Considering Frith‘s criminal history, the evidence of the physical and psychological harm suffered by the young victim who was entrusted to Frith‘s care, and the benefit Frith received from the plea bargain, we do not find the maximum ten-year sentence for sexual battery excessive by constitutional standards.
Frith has two prior convictions for offenses against the person, one for sexually battering a five-year-old girl in 1991, shortly before Frith turned 18, and the other for participating in a fight with other young men in 1996, while on parole for the 1991 crime. A misdemeanor theft conviction and a burglary arrest in 1994 caused Frith‘s probation to be revoked. The year he served in jail for the 1991 sexual battery did not deter him from repeating that crime on this young victim in 1996, while serving as the child‘s baby-sitter. By pleading guilty to this offense, Frith avoided being exposed to another five to 20 years of imprisonment for aggravated incest,
The victim‘s mother appeared at Frith‘s sentencing to substantiate the statement in the PSI report that her son has suffered “some serious psychological problems” as a result of the abuse by Frith, for which he was receiving counseling, and to inform the court that Frith‘s conduct also caused her son to suffer physical problems which required medical care.
Frith has no dependents who would be adversely affected by his incarceration.
Under the circumstances of this record, we do not find the maximum sentence of ten years, albeit without parole and without eligibility for good time, to be shockingly disproportionate to the severity of Frith‘s conduct, or a needless and purposeless punishment for his crime. See and compare State v. Winzer, 465 So.2d 817 (La.App. 2d Cir.1985); State v. Billiot, 521 So.2d 763 (La.App. 2d Cir.1988); and State v. Sturdivant, 27,680 (La.App.2d Cir. 2/28/96), 669 So.2d 654.
DECREE
Frith‘s sentence is AFFIRMED.