State v. Pashandi

• Citation: 490 So.2d 679
• Decision Date: 11 June 1986
• Docket Number: No. 17893-KA,17893-KA
• Parties: STATE of Louisiana, Appellee, v. Kamaleddin "Ken" PASHANDI (Fashandi), Appellant.
• Court: Court of Appeal of Louisiana — District of US

Page 679

490 So.2d 679

STATE of Louisiana, Appellee, v. Kamaleddin "Ken" PASHANDI (Fashandi), Appellant.

No. 17893-KA.

Court of Appeal of Louisiana,

Second Circuit.

June 11, 1986.

Daryl Blue, Monroe, for appellant.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Baton Rouge, James Allan Norris, Jr., Dist. Atty., Michael J. Fontenot, Asst. Dist. Atty., Monroe, for appellee.

Before HALL, JASPER E. JONES and LINDSAY, JJ.

LINDSAY, Judge.

The defendant, Kamaleddin Pashandi, operator of a video tape rental business, was convicted by jury verdict of obscenity, a violation of LSA-R.S. 14:106. Defendant appeals, urging as error that his sentence is excessive and objecting to a special condition of probation imposed by the trial court. We affirm defendant's sentence.

The defendant owned and operated a business in Monroe, Louisiana, known as "The Movie Shack." In June, 1985 the defendant rented four video cassette tapes to an undercover police officer. These tapes were determined to be obscene and the defendant was placed under arrest and subsequently charged with the offense of obscenity. In September, 1985 the defendant was convicted by jury verdict of the offense of obscenity. On November 7, 1985 defendant was sentenced to serve seven months in jail and pay a fine of $1,750 and costs. In default of payment of the fine, the defendant was to serve six months in the parish jail. The portion of the sentence requiring the defendant to be imprisoned for seven months was suspended and defendant was placed on supervised probation for a period of three years. Defendant was ordered to comply with the general conditions for probation found in LSA-C.Cr.P. Art. 895. In addition, the court imposed several special conditions of probation including that the defendant serve a term of fifteen days imprisonment in the Ouachita Parish Jail, that the defendant pay a monthly fee of $10 to the Department of Public Safety and Corrections to defray the cost of probation, and that within forty-five days, the defendant terminate any and all involvement with the business of video tape rentals or sales during the term of probation. Defendant appealed, arguing the sentence imposed by the court was excessive and particularly that the condition of probation that the defendant terminate all involvement with video tape rental and sales was improper.

It is well-settled the sentencing judge is given wide discretion in imposing a sentence within the statutory limits and such a sentence should not be set aside as excessive in the absence of a manifest abuse of discretion by the sentencing judge. State v. Square, 433 So.2d 104 (La.1983); State v. Brooks, 431 So.2d 865 (La.App. 2d Cir.1983); State v. Hammonds, 434 So.2d 452 (La.App. 2d Cir.1983), writ denied 439 So.2d 1074 (La.1983).

The sentencing guidelines of LSA-C.Cr.P. Art. 894.1 provide the criteria to consider in determining whether a sentence is excessive. State v. Sepulvado, 367 So.2d 762 (La.1979); State v. Tully, 430 So.2d 124 (La.App. 2d Cir.1983), writ denied 435 So.2d 438 (La.1983). While the trial judge need not articulate every aggravating and mitigating circumstance outlined in LSA-C.Cr.P. Art. 894.1, the record must reflect that he adequately considered these guidelines in particularizing the sentence of the defendant. State v. Smith, 433 So.2d 688 (La.1983); State v. Hammonds, supra; State v. Cunningham, 431 So.2d 854 (La.App. 2d Cir.1983), writ denied 438 So.2d 1112 (La.1983).

A sentence is constitutionally excessive in violation of La. Const. of 1974, Art. 1, Sec. 20 if the sentence is grossly out of proportion to the severity of the offense or nothing more than needless and purposeless imposition of pain and suffering. State v. Bonanno, 384 So.2d 355 (La.1980); State v. Cunningham, supra.

A violation of the obscenity statute carries a minimum penalty of a $1,000 fine or six months imprisonment with or without hard labor or both. The maximum sentence for violation of the statute is a fine of $2,500 or imprisonment for three years with or without hard labor, or both. The defendant was sentenced to pay a fine of $1,000 and to serve six months imprisonment in default of payment of the fine. In addition, defendant was sentenced to serve seven months imprisonment without hard labor. The sentence of imprisonment was suspended and defendant was placed on three years supervised probation. This sentence was very close to the minimum required by the obscenity statute and therefore was not excessive and was not an abuse of discretion by the sentencing court.

The sentencing guidelines of LSA-C.Cr.P. Art. 894.1 were adequately complied with by the trial court in individualizing the sentence to the defendant. At the sentencing hearing, the sentencing court reviewed a statement by the defendant that he had contacted local police officers and the city attorney's office to determine the legality of renting such films. Defendant claims he was told it was legal to rent such films as long as they were not rented to minors. The sentencing court discounted defendant's contentions and found that defendant "heard what he wanted to hear" regarding the rental of pornographic tapes.

The sentencing court noted that the defendant was Iranian and entered the United States in 1976 on a student visa. The defendant earned a bachelor of science degree from Northeast University in computer science and had done work toward a degree in engineering at a university in Arizona. Defendant had no prior criminal record and had a good employment record as an engineering technician with an engineering firm in Monroe.

The sentencing court, in placing defendant on active, supervised probation for three years, ordered him to comply with the usual conditions of probation found in LSA-C.Cr.P. Art. 895. In addition, as a special condition of probation, defendant was given forty-five days to completely terminate his involvement in the the business of video tape rentals or sales. On appeal, defendant argues this special condition of probation is improper. It appears that the crux of this appeal relates to this special condition of probation.

The special conditions of probation are set forth in LSA-C.Cr.P. Art. 895, which provides:

A. When the court suspends the imposition or execution of sentence and places a defendant on probation, it shall require the defendant to refrain from criminal conduct and it may impose any specific conditions reasonably related to his rehabilitation, including any of the following:

That the defendant shall:

(1) Make a full and truthful report at the end of each month;

(2) Meet his specified family responsibilities;

(3) Report to the probation officer as directed;

(4) Permit the probation officer to visit him at his home or elsewhere;

(5) Devote himself to an approved employment or occupation;

(6) Refrain from owning or possessing firearms or other dangerous weapons;

(7) Make reasonable reparation or restitution to the aggrieved party for damage or loss caused by his offense in an amount to be determined by the court;

(8) Refrain from frequenting unlawful or disreputable places or consorting with disreputable persons; or

(9) Remain within the jurisdiction of the court and get the permission of the probation officer before any change in his address or his employment.

B. In felony cases, an additional condition of the probation may be that the defendant shall serve a term of imprisonment without hard labor for a period not to exceed two years.

C. The defendant shall be given a certificate setting forth the conditions of his probation and shall be required to agree in writing to the conditions.

In addition to the conditions of probation enumerated in LSA-C.Cr.P. Art. 895, the sentencing court is given authority to "impose any specific conditions reasonably related to his rehabilitation." In the present case, requiring defendant to completely abstain from the sale or rental of video tapes during the term of probation is reasonably related to his rehabilitation. The sentencing court stated that determining whether a particular film violates the obscenity statute is often a difficult task and that defendant's continued involvement in the business of video tape rental and sales would almost certainly lead to a violation of the condition of his probation not to engage in illegal conduct. The trial court also noted in imposing this condition of probation that defendant was well-educated and had the capacity to support himself in another field of work.

The jurisprudence applying LSA-C.Cr.P. Art. 895 has upheld special conditions of probation reasonably related to the rehabilitation of a defendant. In State v. Credeur, 328 So.2d 59 (La.1976) a defendant convicted of aggravated crime against nature with one of his children was ordered, as a special condition of probation, not to communicate with his children except through the Department of Welfare, until the children reached eighteen years of age. In State v. Morgan, 389 So.2d 364 (La.1980), a defendant convicted of attempted prostitution was placed on probation and as a special condition ordered not to go into the French Quarter of New Orleans, an area known for night life and prostitution. The court found defendant's rehabilitation would best be served by removal from an environment in which the court stated offenses of prostitution are commonly committed. In State v. Thomas, 428 So.2d 950 (La.App. 1st Cir.1983), writ denied 434 So.2d 410 (La.1983), a defendant and his brother were convicted of forgery. As a special condition of probation, the defendant was ordered not to associate with his brother. The court found that during probation, defendants frequently revert to former lifestyles and reestablish former relationships which encourage and promote the commission of other crimes unless such problems are removed.

Conditions of probation not reasonably related to the rehabilitation of the defendant have been...