State v. GardnerState v. Gardner
- Reporters:
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- Before:
- Stewart
11 After being indicted for aggravated rape, the defendant, Jeremy K. Gardner,
FACTS
On August 30, 2010, the defendant pled guilty pursuant to a plea agreement reducing a charge of аggravated rape to that of aggravated incest, a violation of
The defendant appeared for sentencing on October 5, 2010. The trial judge noted that he had reviewed the prеsentence investigation report, which included both positive and negative information, and letters submitted on the defendant’s behalf. The trial judge recognized that the defendant received two benefits by virtue of the plea agreement. First, he was spared the possibility of the mandatory life sentence for aggravated rape. Second, he did not face the harsher sentence provided by
|2The trial judge also recognized that this was the defendant’s first offense. However, the trial judge noted a prior arrest on November 26, 2008, fоr contributing to the delinquency of a minor, when a deputy came upon the defendant with two girls, ages 10 and 12, with him in his car at 1:15 a.m., without their parents’ approval.
In reviewing the defendant’s social history, the trial judge noted that he was a father of two young boys and recognized the hardship that would result to these children from the defendant’s imprisonment. The defendant’s young age, the lack of any indication of drug or alcohol abuse, the fact that he admitted his involvement in the offеnse, and the letters submitted on his behalf were considered as additional mitigating factors. Aggravating factors noted by the trial judge included the substantial benefit reсeived from the plea agreement, the vulnerability of the victim who was only 12 years of age, the fact that the defendant used his position as her older brother to commit the offense, and the prior incident involving two young girls.
After considering all of the above, the trial judge sentenced the defendant to 12 years at hard labor with credit for time served. Believing that the defendant would likely commit another crime involving young girls, the trial judge found him to be in need of correctional treatment in a custodial environment and found that a lesser sentence would deprecate the seriousness of the crime.
On October 27, 2010, the defendаnt filed a motion to reconsider the sentence, which he alleged to be excessive. He asserted that the trial judge [3did not give adequate weight to the hardship on his family, his young age, the lack of any prior felony conviction, and his social and work history. He also claimed the trial judge did not tailor the sentеnce to fit the crime. The trial judge denied the motion on March 20, 2011. This appeal followed.
DISCUSSION
In this appeal, the defendant reiterates that his sentence is harsh under the circumstances presented. He points to his lack of a criminal record or history of drug
In determining whether a sentence is exсessive, the reviewing court uses a two-prong process. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. аrt. 894.1. The trial judge is not required to list every aggravating and mitigating circumstance so long as the record reveals that he adequately considered the guidelinеs of the article. State v. Smith, 438 So.2d 688 (La.1983); State v. Dillard, 45,633 (La.App.2d Cir.11/3/10), 55 So.3d 56. Important elements which should be considered include the defendant’s personal history (age, family ties, marital status, health, employment record), his criminal history, the 14seriousness of the offense, and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Dillard, supra.
Second, a sentence violates
A trial court has wide discretion to sentence within the statutоry limits. State v. Black, 28,100 (La.App.2d Cir.2/28/96), 669 So.2d 667, writ denied, 96-0836 (La.9/20/96), 679 So.2d 430. Absent a showing of manifest abuse of discretion, a sentence will not be set aside as excessive. Id., citing State v. Square, 433 So.2d 104 (La.1983). Where a defendant has pled guilty to an offensе which does not adequately describe his conduct or has received a significant reduction in potential exposure to confinement through a plea bargain, the trial court has great discretion to impose even the maximum sentence. Id.; State v. Boswell, 46,181 (La. App.2d Cir.4/13/11), 62 So.3d 874.
As provided by the plea agreement, the trial court sentenced the defendant under
A person convicted of aggravated incest shall be fined an amount not to exceed fifty thousand dollars, or imprisonеd, with or without hard labor, for a term not less than five years nor more than twenty years, or both.
|fiThe trial judge imposed a midrange sentence of 12 years under this prоvision. In doing so, the trial judge took into account all those factors pointed out by the defendant in his brief and gave adequate consideration to thе sentencing guidelines provided in La. C. Cr. P. art. 894.1. Specifically, the trial judge noted the defendant’s young age, the fact that this was his first offense, and the potential hаrdship on the defendant’s children and their mother due to his imprisonment. However, the trial judge recognized that the defendant had exhibited inappropriatе behavior with young girls other than in this instance and found it likely that he would commit another offense involving a young girl if not incarcerated. We find it appropriate for the trial court to have taken into account the prior arrest for contribut
The trial judge explained that he took the victim’s mother’s recommendation for a 10-year sentence into consideration and imposed a shorter sentence than he first intended. Moreover, the plea agreеment gave the defendant a significant reduction in potential exposure to confinement. He avoided the possibility of a mandatory life sentence if convicted of aggravated rape. Even though the victim was under the age of 13 when the offense occurred and the sentencing provisions of
The defendant’s 12-year hard labor sentence under the facts of this case is neither grossly disproportionate to the severity of the offense nor shocking to the sense of justice. We find no abuse of discretion by the trial court in imposing this sentence that falls within the statutory limits.
CONCLUSION
For the reasons stated, we affirm the defendant’s conviction and sentence.
AFFIRMED.