State v. Johnston
| Decision Date | 22 June 2016 |
| Docket Number | No. 50,706–KA.,50,706–KA. |
| Citation | 198 So.3d 151 |
| Parties | STATE of Louisiana, Appellee v. Jacob JOHNSTON, Appellant. |
| Court | Court of Appeal of Louisiana — District of US |
Louisiana Appellate Project, by Peggy J. Sullivan, Monroe, LA, for Appellant.
Jerry L. Jones, District Attorney, Cynthia P. Lavespere, Assistant District Attorney, for Appellee.
Before DREW, MOORE and PITMAN, JJ.
DREW
, J.
Jacob Johnston was indicted for one count of aggravated rape. La. R.S. 14:42
. He pled guilty to the responsive crime of attempted aggravated rape. La. R.S. 14:27 ; 14:42. He was sentenced to 50 years at hard labor, to be served concurrently with any other sentence.
Through counsel, defendant appeals the excessiveness of his sentence.
The defendant has also filed a pro se brief, alleging excessiveness and that his guilty plea was not knowingly and intelligently made.
Noting three errors patent, we affirm in all respects.
On January 27, 2014, Rev. Barry Brister contacted the Sterlington Police Department and reported that he was en route to the station with Jacob Johnston, then 17 years old, who had confessed to sexually assaulting E.H. (d.o.b. 7/1/05), an eight-year-old girl. Rev. Brister advised that E.H.'s parents had contacted him after E.H. had asked them if all boys' penises were the same. When E.H.'s parents asked her about the strange question, she told them that the defendant took her pants off, made her sit on his lap, and “bounced up and down.” Brister told police that the defendant had admitted doing this.
After being Mirandized, the defendant said:
He was then placed under arrest.
Two days after the crime, E.H. underwent a medical examination at the Children's Advocacy Center, where she was also interviewed. Evidence of sexual molestation was found.
Four days after the crime, the defendant was interviewed by Meredith Brooks of Child Protective Services, who later advised that the defendant made the stunning statement that he “knew what he was doing and knew it was wrong” and “he has a problem and if given the chance he would do it again.”
The trial court conducted a comprehensive guilty plea colloquy, discussing the implications of pleading guilty and inquiring into the defendant's understanding of the implications of waiving: his right against self-incrimination, trial by judge or jury, any defense on the merits, his right to confront and cross-examine witnesses, his presumption of innocence, his right to remain silent, his right to compulsory process of the court, and any right to appeal, other than attacks on the guilty plea and sentence.
The trial court also had an interesting conversation with the defendant.1
The trial court asked the state to describe what it was prepared to show if the case were to go to trial. The state described its case as follows:
We'd be prepared to show that on the 26th of ... January of this year at approximately 3 o'clock at the residence of the place where the defendant was staying, he had sexual intercourse with a—an eight year old whose name we will not mention, and that he inserted his penis into her and was able to get it in about half an inch but wouldn't go ... no further. And that's the allegation for this charge.
The defendant agreed with the state's recitation of the facts and indicated that he did not wish to make any changes. The trial court accepted the plea of guilty and ordered a presentence investigation report (“PSI”).
The defendant was sentenced to 50 years at hard labor, concurrent with any sentence imposed prior to the imposition of the present sentence.
The trial court found the following mitigating factors:
The defendant filed a motion to reconsider sentence, arguing that the trial court failed to adequately consider his young age and other mitigating factors during sentencing. The trial judge ordered a hearing on the motion.
Prior to the hearing, the state filed an opposition to the defendant's motion to reconsider sentence, asserting that the 50–year sentence was valid based on the underlying facts of the crime, the trial court's enumerated aggravating factors, and the fact that the defendant admitted that, if he had the chance, he would do it again.
The defendant argued that, because of his age, there was a higher likelihood of rehabilitation. The defendant also argued that the fact that he was sexually assaulted when he was nine years old should have been considered a mitigating factor. The defendant argued that it was not uncommon for a 17–year–old not to have a “meaningful employment history,” implying that the trial court should not have considered his lack of employment as an aggravating factor. He produced letters from friends and family in support of his character.
At the hearing, he attempted to reference a police report, which allegedly supports the contention that the defendant was sexually assaulted when he was nine. The state objected, and the trial court sustained the objection.
The trial court eloquently refuted defendant's argument that the trial court did not adequately consider his youth at sentencing.3
The trial judge also clearly responded to defendant's argument that the trial court did not give proper consideration to his lack of criminal history.4
Counseled Assignment of Error: The maximum sentence was excessive.5
Appellant's counsel argues that this 50–year sentence amounts to excessive punishment and the trial court erred in imposing such a harsh sentence because:
• it failed to adequately consider this particular defendant at sentencing;
• it improperly considered each step in the commission of the crime against E.H. as an aggravating factor;
• the unsubstantiated allegations of prior incidents of molestation should not have been considered;
• there was not adequate consideration of such mitigating factors as the defendant's young age and the fact that he had been molested as a child;
• a 50–year sentence is essentially a life sentence;
• the maximum sentence for a crime is reserved for the most egregious crimes, and the instant crime was “far from the most heinous”;
• the sentence was not particularized to this defendant or this crime;6 and
• the trial court's statement that it had “heard music” was improper.
In response, the state argues that the defendant's particularized conduct warranted a 50–year sentence, and this sentence is supported by these factors:
• the aggravating factors and seriousness of the offense;
• the defendant benefitted from pleading guilty to a responsive charge;
• the trial court has extensive experience;
• the court was cognizant of all circumstances; and
• the trial court's thorough discussion of the La. C. Cr. P. art. 894.1
factors, and the sordid, horrific facts of the case.
Our law is well settled as to the review of excessiveness claims.7
The elements of and penalty for this crime charged could not be clearer.8
and La. R.S. 14:42(A)(4), the range of this sentence is 10 to 50 years at hard labor without benefit of parole, probation, or suspension of sentence. The defendant got it all, but this sentence is lawful.
The trial court conducted an extremely thorough analysis of the sentencing factors he considered. The record indicates that the trial court considered the specific details of the crime, the defendant's conduct, his criminal history, and his social background as described in the PSI. This is more than adequate compliance with La. C. Cr. P. art. 894.1
.9
There is an adequate factual basis for the sentence for this truly heinous crime. The defendant avoided a life sentence. The offense of conviction does not adequately describe his egregious actions.
Recent convictions for attempted aggravated rape reveal that similarly situated defendants have received similar sentences.10
Considering the totality of the record, the 50–year maximum sentence, while most certainly harsh, is not constitutionally excessive. Based on review of the facts of this case, as well as the trial court's thoughtful and thorough explanation for the sentence imposed, the trial court did not abuse its sentencing discretion.
The defendant's guilty plea was constitutionally infirm because it was not knowingly and intelligently made.
The defendant's guilty plea was constitutionally infirm because the maximum 50–year sentence imposed did not provide him with a substantial break in sentence exposure.
The defendant's first and second pro se assignments of error both contest the validity of his guilty plea. The defendant argues:
• the trial court's explanation of his potential sentencing exposure, should he choose to go to trial, was “inherently coercive”;11
• he did not substantially benefit from pleading guilty to the responsive charge of attempted aggravated rape;
• if he had been convicted of aggravated rape and sentenced to life, he would be eligible for parole when he turned 47;
• based on his guilty...
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State v. Breedlove
...at 201 (quoting State v. Mayfield , 493 So.2d 652, 653–54 (La. App. 2d Cir. 1986) ).Recently, this Court in State v. Johnston , 50,706 (La.App. 2d Cir. 6/22/16), 198 So.3d 151, 158, explained Louisiana's procedure for considering prior cases in determining whether a sentence is excessive:Th......
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State v. Sandifer
...the defendant's punishment with the sentences imposed for similar crimes by the same court or other courts. State v. Johnston , 50,706 (La. App. 2 Cir. 6/22/16), 198 So. 3d 151, writ granted on other grounds , 16-1460 (La. 6/5/17), 221 So. 3d 46 ; State v. Ferguson , 44,009 (La. App. 2 Cir.......
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State v. Sandifer
... ... Moreover, ... when determining whether a defendant's sentence is ... excessive, a reviewing court should compare the ... defendant's punishment with the sentences imposed for ... similar crimes by the same court or other courts. State ... v. Johnston , 50, 706 (La.App. 2 Cir. 6/22/16), 198 So.3d ... 151, writ granted on other grounds , 16-1460 (La ... 6/5/17), 221 So.3d 46; State v. Ferguson , 44, 009 ... (La.App. 2 Cir. 2/25/09), 4 So.3d 315 ... A trial ... court maintains wide discretion to sentence ... ...
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State v. Sandifer
...the defendant's punishment with the sentences imposed for similar crimes by the same court or other courts. State v. Johnston , 50,706 (La. App. 2 Cir. 6/22/16), 198 So. 3d 151, writ granted on other grounds , 16-1460 (La. 6/5/17), 221 So.3d 46 ; State v. Ferguson , 44,009 (La. App. 2 Cir. ......