State v. Young

• Decision Date: 01 May 2019
• Docket Number: 18-790
• Citation: 270 So.3d 770
• Parties: STATE of Louisiana v. Kenny Roy YOUNG
• Court: Court of Appeal of Louisiana — District of US

270 So.3d 770

STATE of Louisiana

v.Kenny Roy YOUNG

18-790

Court of Appeal of Louisiana, Third Circuit.

May 1, 2019

Annette Roach, Louisiana Appellate Project, P.O. Box 1747, Lake Charles, LA 70602-1747, (337) 436-2900, COUNSEL FOR DEFENDANT/APPELLANT: Kenny Roy Young

Hon. Keith A. Stutes, Lafayette Parish DA, P.O. Box 3306, Lafayette, LA 70502-3306, (337) 232-5170, COUNSEL FOR APPELLEE: State of Louisiana

Ted L. Ayo, Assistant District Attorney, 100 North State Street, Ste. 215, Abbeville, LA 70510, (337) 898-4320, COUNSEL FOR APPELLEE: State of Louisiana

Court composed of D. Kent Savoie, Candyce G. Perret, and Jonathan W. Perry, Judges.

SAVOIE, Judge.

On May 9, 2017, a Vermilion Parish Grand Jury charged Defendant, Kenny Roy Young, by bill of indictment with five counts of oral sexual battery, in violation of La.R.S. 14:43.3, and five counts of felony carnal knowledge of a juvenile, in violation of La.R.S. 14:80. All ten charges were alleged to have occurred between December 1, 2015, and December 31, 2016, and involved the same juvenile victim, K.V.¹ , whose date of birth is July 8, 2002.

On March 22, 2018, Defendant pled guilty as charged to three counts of oral sexual battery and three counts of felony carnal knowledge of a juvenile. The remaining four counts of the indictment were dismissed. No sentencing recommendation was made, and a Pre-Sentence Investigation (PSI) was ordered.

On May 25, 2018, the trial court had a sentencing hearing for Defendant, wherein the only witness to testify was Cindy Abshire, who is K.V.'s mother and Defendant's former girlfriend. At that time, the State recommended a minimum sentence of twenty years, while defense counsel requested that the sentence be less than the maximum for any count, with all sentences to run concurrently, and that Defendant receive sex offender treatment while incarcerated. Furthermore, defense counsel had previously filed a sentencing memorandum, which asked for "a sentence of two years at hard labor and that he be recommended for sex offender treatment while in Department of Corrections['] custody."

The trial court expressed that it was "quite disturbed by the facts presented in th[e] pre-sentence investigation[,]" noting Defendant groomed the victim and that K.V. would "feel this effect for the rest of her life[.]" The trial court noted the abuse was ongoing for about a year. The trial court then sentenced Defendant to seven years at hard labor without benefits on each count of oral sexual battery, with those sentences to run concurrently to each other. Defendant was also sentenced to five years at hard labor for each count of felony carnal knowledge of a juvenile, with those sentences to run concurrently to each other and consecutively to the oral sexual battery sentences. Thus, Defendant received a total sentence of twelve years at hard labor, the first seven of which are without benefits. Defendant is also required to register as a sex offender for twenty-five years after his release.

On June 15, 2018, defense counsel filed a Motion to Reconsider Sentence, arguing Defendant's sentences were excessive in light of mitigating factors and again asking for a two-year sentence. On August 2, 2018, the trial court held a hearing on the Motion to Reconsider. The trial court denied the motion noting the following:

The mother of the child testified at the hearing. I said it then and I will say it again today. I think [Defendant] took advantage of the mother as well as the child that was in -- somewhat in his control and was a master of manipulation and used his skills to fulfill his own sexual deviancy and sexual desires, which is illegal, immoral, and disgusting.

And I think that his original sentence handed down on May 25th is appropriate. And the more I think about it, the more I probably should have handed down a much harsher sentence.

However, twelve years is not excessive, considering that this was a repeated offense that happened on different days and this was an ongoing relationship where he took advantage of such a young child who will pay for this for the rest of her life. So motion denied.

Defendant now appeals his sentences, arguing the lengths of the sentences are excessive and that the trial court erred in running his felony carnal knowledge of a juvenile sentences consecutively to his oral sexual battery sentences. For the following reasons, we affirm.

FACTS

The State gave the following factual basis for the oral sexual battery charges:

Your Honor, on Mr. Kenny Young, the State would show, under Docket No. 61768, that between the dates of December 1st of 2015 and December 31st of 2016, on three different counts, he intentionally touched the anus or genitals of K.B. [sic], whose date of birth is 7-8-2002, by using his mouth or tongue or touching the offender with -- and she was not the spouse of the offender, and she was under the age of 15 and was at least three years younger than me [sic]. And this occurred in Vermilion Parish, Your Honor.

With regard to the felony carnal knowledge of a juvenile charges, the State gave the following: "And Your Honor, he also had three counts of having sexual intercourse, with consent, with the same victim, whose date of birth is July 8, 2002, a person who is 13 years of age or older but less than 17. And this also occurred here in Vermilion Parish."

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find that there is one error patent involving the sentences imposed for felony carnal knowledge of a juvenile.

The trial court imposed illegally lenient sentences for Defendant's guilty pleas to three counts of felony carnal knowledge of a juvenile. The penalty provision for felony carnal knowledge of a juvenile requires the trial court to order the seizure and impoundment of any personal property used in the commission of the offense. La.R.S. 14:80(D)(2). The trial court failed to impose such an order in the present case. Thus, the sentences imposed for felony carnal knowledge of a juvenile are illegally lenient. However, because the issue was not raised as an error, we will take no action related to this issue on appeal. See State v. Aguillard , 17-798 (La.App. 3 Cir. 4/11/18), 242 So.3d 765, writ denied , 18-1207 (La. 3/6/19), 266 So.3d 897 ; State v. Goodeaux , 17-441 (La.App. 3 Cir. 11/2/17), 231 So.3d 124, writ denied , 17-2143 (La. 9/14/18), 252 So.3d 488 ; State v. Celestine , 11-1403 (La.App. 3 Cir. 5/30/12), 91 So.3d 573 ; and State v. Smith , 10-830 (La.App. 3 Cir. 2/9/11), 58 So.3d 964, writ denied , 11-503 (La. 9/30/11), 71 So.3d 279.

ASSIGNMENT OF ERROR NO. 1

In his first assignment of error, Defendant contends his sentences are excessive because "they are nothing more than cruel and unusual punishment." Defendant's argument is based upon a claim that the trial court failed to consider mitigating factors and concluded, as Defendant believes, that "[l]esser terms of imprisonment without benefit of probation, parole, or suspension of sentence on the oral sexual battery offenses and probated sentences on the felony carnal knowledge of a juvenile offenses with special conditions of probation to include treatment programs would best serve the community and Appellant." Defendant argues the trial court failed to give proper consideration to the fact that he is a first felony offender, admitted to police that he had had sexual intercourse with the victim, pled guilty, and had a long history of working hard and helping support those around him, including family, neighbors, and members of his church while young.

Louisiana courts have laid out the following guidelines regarding a review for excessive sentence:

Sentences within the statutory sentencing range can be reviewed for constitutional excessiveness. State v. Sepulvado , 367 So.2d 762 (La.1979). In State v. Barling , 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035, 1042-43, writ denied , 01-838 (La. 2/1/02), 808 So.2d 331, a panel of this court discussed the review of excessive sentence claims, stating:

La. Const. art. I, § 20 guarantees that, "[n]o law shall subject any person to cruel or unusual punishment." To constitute an excessive sentence, the reviewing court must find the penalty so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no measurable contribution to acceptable penal goals and is, therefore, nothing more than a needless imposition of pain and suffering. State v. Campbell , 404 So.2d 1205 (La.1981). The trial court has wide discretion in the imposition of sentence within the statutory limits and such sentence shall not be set aside as excessive absent a manifest abuse of discretion. State v. Etienne , 99-192 (La.App. 3 Cir. 10/13/99), 746 So.2d 124, writ denied , 00-0165 (La. 6/30/00), 765 So.2d 1067. The relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. State v. Cook , 95-2784 (La. 5/31/96), 674 So.2d 957, cert. denied , 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).

Further, in reviewing the defendant's sentences, the appellate court should consider the nature of the crime, the nature and background of the offender, and the sentences imposed for similar crimes. State v. Lisotta , 98-648 (La.App. 5 Cir. 12/16/98), 726 So.2d 57 (citing State v. Telsee , 425 So.2d 1251 (La.1983) ), writ denied , 99-433 (La. 6/25/99), 745 So.2d 1183. In State v. Smith , 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ denied , 03-562 (La. 5/30/03), 845 So.2d 1061, a panel of this court observed that:

While a comparison of sentences imposed for similar crimes may provide some insight, "it is well settled that sentences must be individualized to the particular offender and to the particular offense committed." State v. Batiste , 594 So.2d 1 (La.App. 1 Cir.1991).

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