State v. Parker, 2012 KA 1550.
| Decision Date | 26 April 2013 |
| Docket Number | No. 2012 KA 1550.,2012 KA 1550. |
| Citation | 116 So.3d 744 |
| Parties | STATE of Louisiana v. Jonathan PARKER. |
| Court | Court of Appeal of Louisiana — District of US |
OPINION TEXT STARTS HERE
Ricky Babin, District Attorney, Donaldsonville, LA, Donald Candell, Assistant District Attorney, Gonzales, LA, for Appellee, State of Louisiana.
Julie C. Tizzard, New Orleans, LA, for Defendant/Appellant, Jonathan Parker.
Before KUHN, PETTIGREW, and McDONALD, JJ.
[1 Cir. 2]The defendant, Jonathan Parker, was charged by bill of information # 27572, with one count of indecent behavior with a juvenile (count I), a violation of La. R.S. 14:81(A)(2); and one count of pornography involving juveniles (count II), a violation of La. R.S. 14:81.1, and initially pled not guilty, on both counts. Additionally, he was charged by bill of information # 27573, with one count of computer-aided solicitation of a minor (count I), a violation of La. R.S. 14:81.3; and one count of extortion (count II), a violation of La. R.S. 14:66(3).1 Thereafter, he withdrew his initial pleas and pled guilty to all four counts. He subsequently moved to withdraw his guilty pleas, but the motion was denied. As to bill # 27572, the defendant was sentenced to seven years at hard labor on count 1, and ten years at hard labor without the benefit of parole, probation, or suspension of sentence on count II. As to bill # 27573, he was sentences to ten years at hard labor without benefit of parole, probation, or suspension of sentence on count 1, and fifteen years at hard labor on count II. The trial court ordered all four sentences to be served concurrently. He moved for reconsideration of sentence, but the motion was denied. He now appeals, alleging three assignments of error: (1) the trial court lacked jurisdiction; (2) the trial court erred in denying the motion to withdraw the guilty pleas; and (3) the trial court erred in denying the motion to reconsider sentence. For the following reasons, we affirm the convictions and sentences.
Due to the defendant's guilty pleas, there was no trial, and thus, no trial testimony concerning the offenses. At the Boykin2 hearing, however, the trial court reiterated the factual bases for the charges set forth by the State, which the defendant [1 Cir. 3]accepted as accurate. In regard to bill # 27572, count I (indecent behavior with a juvenile), the State set forth that, on or about March 1, 2009, through July 6, 2010, in Ascension Parish, the defendant transmitted electronic textual communication or electronic visual communication depicting lewd or lascivious conduct, text, or images to a person reasonably believed to be under the age of seventeen, and reasonably believed to be at least two years younger than the offender, with the intent of arousing the sexual desires of either the defendant or the victim.
In regard to bill # 27572, count II (pornography involving juveniles), the State set forth that, on or about March 1, 2009, through July 6, 2010, in Ascension Parish, the defendant photographed, videotaped, filmed, or otherwise reproduced visual sexual performances involving a child under the age of seventeen.
In regard to bill # 27573, count I (computer-aided solicitation of a minor), the State set forth that, on or about March 1, 2009, through July 6, 2010, in Ascension Parish, the defendant, being eighteen years of age or older, contacted or communicated through the use of electronic textual communication with a person who had not yet attained the age of eighteen, or a person reasonably believed not to have attained the age of eighteen, for the purposeof, or with intent to persuade, entice, induce, or coerce the person to engage or participate in any sexual conduct or crime of violence, or with intent to engage or participate in sexual conduct in the presence of the person who has not yet attained the age of eighteen, or a person reasonably believed not to have attained the age of eighteen.
In regard to bill # 27573, count II (extortion), the State set forth that the defendant, on or about March 1, 2009, through July 6, 2010, in Ascension Parish, communicated threats to S.M.3 to expose or impute any deformity or disgrace to her, or to any member of her family or to any person dear to her.
[1 Cir. 4]Additionally, the presentence investigation (PSI) report indicated the victim's father contacted authorities after the defendant sent explicit photographs of the victim to the victim's father's and the victim's mother's cell phones. When the victim's father tried to call the defendant, he claimed to be someone else. Subsequently, however, the defendant admitted that he had sent the photographs.
According to the PSI, the victim indicated she met the defendant on “Frostwire” and “MSN” approximately two years earlier. After approximately five months, the conversations between the defendant and the victim “turned to a sexual manner,” and he began asking for nude photographs of the victim performing sexual acts. The defendant instructed the victim “as to the type, manner and sexual acts that she was to perform.” Subsequently, the victim told the defendant she no longer wanted to take pictures of herself and send them to him. The defendant then blackmailed the victim, threatening to contact her parents unless she sent him “more explicit photography with [the] juvenile performing sex acts with a hairbrush, a banana, a curling iron and with her dog.” The victim sent the defendant approximately 30–40 pornographic images. The defendant sent the photographs to his 14–year–old girlfriend in Wharton, Texas, an adult male in Baton Rouge, and a 14–year–old female in Hammond in an attempt to arrange a sexual encounter. The defendant also sent pornographic pictures of himself and his 14–year–old girlfriend to the victim.
In assignment of error number 1, the defendant argues that trial counsel was ineffective for failing to move to quash for improper venue or lack of jurisdiction because “the entirety of the crime[s] in question occurred in Texas wholly outside of Louisiana.”
A claim of ineffective assistance of counsel is generally relegated to post-conviction proceedings, unless the record permits definitive resolution on appeal. [1 Cir. 5]State v. Miller, 99–0192 (La.9/6/00), 776 So.2d 396, 411,cert. denied,531 U.S. 1194, 121 S.Ct. 1196, 149 L.Ed.2d 111 (2001).
A claim of ineffectiveness of counsel is analyzed under the two-pronged test developed by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In order to establish that his trial attorney was ineffective, the defendant must first show that the attorney's performance was deficient, which requires a showing that counsel made errors so serious that he was not functioning as counsel guaranteed by the Sixth Amendment. Secondly, the defendant must prove that the deficient performance prejudiced the defense. The defendant must prove actual prejudice before relief will be granted. This element requires a showing that the errors were so serious that the defendant was deprived of a fair trial; it is not sufficient for the defendant to show that the error had some conceivable effect on the outcome of the proceeding. Rather, he must show that, but for the counsel's unprofessional errors, there is a reasonable probability the outcome of the trial would have been different. Further, it is unnecessary to address the issues of both counsel's performance and prejudice to the defendant if the defendant makes an inadequate showing on one of the components. State v. Serigny, 610 So.2d 857, 859–60 (La.App. 1st Cir.1992), writ denied,614 So.2d 1263 (La.1993).
Louisiana Constitution Article I, § 16, in pertinent part, provides that every person charged with a crime has the right to an impartial trial “in the parish where the offense or an element of the offense occurred, unless venue is changed in accordance with law.”
Additionally, Louisiana Code of Criminal Procedure art. 611(A) provides:
All trials shall take place in the parish where the offense has been committed, unless the venue is changed. If acts constituting an offense or if the elements of an offense occurred in more than one place, in or out of the parish or state, the offense is deemed to [1 Cir. 6]have been committed in any parish in this state in which any such act or element occurred.
Venue is not an essential element of the offense; rather, it is a jurisdictional matter. Objections to venue must be raised by a motion to quash to be ruled on by the court in advance of the trial. At the hearing, the burden is on the State to prove venue by a preponderance of the evidence. La.Code Crim. P. art. 615. State v. Roblow, 623 So.2d 51, 55 (La.App. 1st Cir.1993).
We will address assignment of error number 1, even in the absence of a motion to quash, because it would be necessary to do so as part of the analysis of the ineffective assistance of counsel claim. See State v. Bickham, 98–1839 (La.App. 1st Cir.6/25/99), 739 So.2d 887, 891–92.
In regard to indecent behavior with juveniles, prior to amendment by 2009 La. Acts No. 198, § 1, La. R.S. 14:81 provided;
E. An offense committed under this Section and based upon the transmission and receipt of electronic textual or visual communications may be deemed to have been committed where the communication was originally sent, originally received, or originally viewed by any person.
Regarding to computer-aided solicitation of a minor, La. R.S. 14:81.3 provides:
F. An offense committed under this Section may be deemed to have been committed where the electronic textual communication was originally sent, originally received, or originally viewed by any person, or where any other element of the offense was committed.
Concerning bill # 27572, count 1 (indecent behavior with a juvenile) and bill. # 27573, count I (computer aided solicitation of a minor), the defendant argues “when the ‘receipt’ or ‘viewing’ referred to in the above referenced statute[s] refers to an...
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