Case Number: 51,888-KA

Judge: Jeff Cox

Court: COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA

Plaintiff's Attorney: ROBERT STEPHEN TEW
District Attorney

MICHAEL J. FONTENOT
Assistant District Attorney

Defendant's Attorney: LOUISIANA APPELLATE PROJECT
By: Paula Corley Marx

Description: On October 13, 2016, Turner was charged by bill of information with
the second degree battery of his mother, Nelwyn Turner, in violation of La.
R.S. 14:34.1, which occurred on or about July 23, 2016. The initial bill
incorrectly named the victim and, on December 19, 2016, was amended to
change the victim’s name to Ms. Turner. Also on December 19, 2016,
pursuant to a plea agreement, Turner pled guilty to the second degree battery
charge. In exchange for the guilty plea, the state agreed to dismiss charges
of possession of a controlled dangerous substance, illegal possession of a
stolen firearm, and two counts of possession of a controlled dangerous
substance.
The factual basis for the plea was recited by the district attorney and
agreed to by Turner:
Judge, this charge arises from an incident that happened on July 23, 2016, at 200 Leachman Street, which is the residence of, uh – of him and his mother at that time – at the time of his arrest
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the residence of him and his mother. Uh, on that date, at approximately 3:00 o’clock in the morning, he and his mother were talking in her bedroom when he began to attack her and struck her multiple times with his fist in the face, including the eye and jaw. She had to go to the hospital for injuries, uh, that she received in the incident. And, at the hospital, there was discovery that she had some bleeding on the brain and blood clots. She was transferred to Shreveport. So because of the nature of the number of times he hit her and the injuries she received, we believe second degree battery is the proper charge.
Turner agreed to the factual basis and was advised of his rights and
freely and voluntarily entered a plea of guilty. There was no agreement as to
sentencing and the trial court ordered a PSI report. Before the conclusion of
the plea, Turner requested that he be given some help in the way of “rehab
or something.” The trial judge stated that he would work that into
sentencing. Sentencing was set for February 13, 2017. For reasons not clear
in the record, the matter was reset twice and the sentencing hearing was held
on May 31, 2017.
Prior to sentencing, on January 4, 2017 and February 6, 2017, Turner
filed two pro se motions to withdraw his guilty plea on the sole basis that
sentencing had not yet occurred. Both motions were denied. On March 2,
2017, Turner filed a pro se motion to clarify sentence which was denied as
premature because he had not yet been sentenced.
Turner declined to make any comments at the sentencing hearing.
Ms. Turner made the following statement:
I’m not scared of my son. That’s the only time he’s ever put a finger on me and if he doesn’t get out pretty soon, he’s going to lose his children and he got a place to stay and a job waiting on him.
The trial judge stated that he had reviewed the PSI report and the
factors under La. C. Cr. P. art. 894.1. The trial judge noted that the police
were called to the Turner home where Ms. Turner was found with injuries to
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her face and eye and her face was red and swollen. Although Ms. Turner
advised officers that morning that her son had never before “put his hands on
her in that manner,” the trial judge noted that Ouachita Parish Sheriff’s
Office records indicated one previous complaint that Turner had struck his
mother. The trial judge then took note of the injuries to Ms. Turner, which
ultimately resulted in a brain bleed and clots and required hospitalization.
The trial judge further stated that Turner indicated on questioning that
he did not remember the incident but that he knew he had caused his
mother’s injuries. Turner stated that he had been drinking on the night of the
incident and had “blacked out.” Turner told police that if he had been in a
better state of mind, he would not have done this and he was sorry for his
actions. Noting Ms. Turner’s request for leniency, the trial judge also
commented that Ms. Turner was not seeking restitution because Medicaid
had paid all of her medical expenses.
The trial judge reviewed Turner’s criminal history as outlined in the
PSI report. While the instant offense is Turner’s first felony conviction, the
trial judge outlined Turner’s past arrests and misdemeanor convictions,
which are as follows:
 April 12, 2006 – arrested for possession of marijuana and paraphernalia – dismissed.

 August 19, 2008 – arrested for second degree battery and pled guilty to disturbing the peace.

 May 16, 2009 – arrested for careless operation, hit and run, possession of marijuana and DWI and pled guilty to DWI and hit and run.

 July 7, 2010 – arrested for resisting an officer – dismissed.

 April 18, 2011 – arrested for crimes of flight from an officer and public intimidation and pled guilty (probation later revoked).

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 January 19, 2012 – arrested for unauthorized entry of an inhabited dwelling— no disposition found.

 December 10, 2013 – arrested for an unknown charge in Indiana.

 January 14, 2014 – failure to appear.

 February 16, 2014 – arrested for taking contraband into a penal institution – dismissed.

 October 29, 2014 – arrested for domestic abuse battery and pled guilty.

 January 24, 2015 – arrested for violation of protective orders and pled guilty.

 June 10, 2015 – arrested for cruelty to a juvenile, battery on a police officer and resisting an officer and pled guilty to a misdemeanor charge.

 September 22, 2015 – arrested for possession of a firearm by a convicted felon, possession of marijuana, possession of schedule IV, illegal carrying of a weapon – all dismissed.

 January 30, 2016 – arrested for possession of schedule IV and marijuana, child desertion, illegal use of controlled dangerous substance in the presence of persons under the age of 17, and appearing intoxicated – dismissed in the current matter.
The trial judge reviewed Turner’s social history, noting that he
completed the eighth grade and was expelled for marijuana use and
troublemaking. He had no further education and held jobs doing carpentry
work for 10 years. Turner was a maintenance man for a realty company
when he was arrested on the instant offense. Turner admitted to having an
alcohol and drug problem and requested help for those issues. The trial
judge noted Turner did not pay child support, but claimed that he provided
for his children.
Based on the foregoing considerations, the trial judge found that a
suspended sentence was not appropriate due to the undue risk that Turner
would commit another crime. Turner was found to be in need of
correctional treatment. Finding that a lesser sentence would deprecate the
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seriousness of the instant offense, the trial judge imposed a sentence of five
years at hard labor, three of which were suspended. Upon release, Turner
would be placed on three years’ active supervised probation. During
incarceration, Turner was to enroll in anger management and substance
abuse treatment, which was to continue into the probationary period if not
completed.
Turner’s motion to reconsider sentence was denied and this appeal of
the sentence followed.
DISCUSSION
Turner’s sole assignment of error challenges the alleged excessiveness
of his sentence. Turner emphasizes that he has an alcohol problem and
blacked out when the offense was committed. He argues that his mother is
not afraid of him and that he would never have committed this offense had
he been in his right mind. Turner argues that he needs treatment, not a five
year sentence. He claims the upper-end sentence for a first-felony offender
is unduly harsh.
In reviewing a sentence for excessiveness, an appellate court uses a
two-step process. First, the record must show that the trial court took
cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The
articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art.
894.1, not rigid or mechanical compliance with its provisions. The trial
court is not required to list every aggravating or mitigating circumstance so
long as the record reflects that it adequately considered the guidelines of the
article. State v. Smith, 433 So. 2d 688 (La. 1983); State v. Brown, 51,352
(La. App. 2 Cir. 5/2/17), 223 So. 3d 88, reh'g denied (June 15, 2017). The
important elements which should be considered are the defendant’s personal
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history (age, family ties, marital status, health, and employment record),
prior criminal record, seriousness of offense, and the likelihood of
rehabilitation. State v. Jones, 398 So. 2d 1049 (La. 1981); Brown, supra;
State v. Ates, 43,327 (La. App. 2 Cir. 8/13/08), 989 So. 2d 259, writ denied,
08-2341 (La. 5/15/09), 8 So. 3d 581. There is no requirement that specific
matters be given any particular weight at sentencing. Brown, supra.
Second, the court must determine whether the sentence is
constitutionally excessive. A sentence violates La. Const. art. I, § 20, if it is
grossly out of proportion to the severity of the crime or nothing more than a
purposeless and needless infliction of pain and suffering. State v. Dorthey,
623 So. 2d 1276 (La. 1993); Brown, supra. A sentence is considered grossly
disproportionate if, when the crime and punishment are viewed in light of
the harm done to society, it shocks the sense of justice. State v. Weaver, 01
0467 (La. 1/15/02), 805 So. 2d 166; Brown, supra.
The trial court has wide discretion in the imposition of sentences
within the statutory limits and such sentences should not be set aside as
excessive in the absence of a manifest abuse of that discretion. State v.
Williams, 03-3514 (La. 12/13/04), 893 So. 2d 7; Brown, supra. A trial judge
is in the best position to consider the aggravating and mitigating
circumstances of a particular case, and, therefore, is given broad discretion
in sentencing. On review, an appellate court does not determine whether
another sentence may have been more appropriate, but whether the trial
court abused its discretion. Brown, supra.
A substantial advantage obtained by means of a plea bargain is a
legitimate consideration in sentencing. State v. Mendenhall, 48,028 (La.
App. 2 Cir. 5/15/13), 115 So. 3d 727. Accordingly, where a defendant has
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pled guilty to an offense 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 in imposing even
the maximum sentence for the pled offense. State v. Shelton, 50,318
(La.App. 2 Cir. 2/24/16), 188 So. 3d 304.
The penalty for second degree battery is a fine of not more than
$2,000 or imprisonment, with or without hard labor, for not more than eight
years, or both. La. R.S. 14:34.1(C).
Turner’s sentence is not excessive. The trial court complied with La.
C. Cr. P. art. 894.1 and expressly addressed the relevant aggravating and
mitigating factors. The trial judge outlined Turner’s extensive history of
arrests and misdemeanor pleas, including domestic battery charges. The
trial judge emphasized the serious nature of the injuries suffered by the
victim, Turner’s mother, which resulted in a brain bleed and clotting.
For mitigating factors, the trial judge considered Ms. Turner’s
statement that her son had never hit her and properly weighed that statement
against the previous report to the sheriff’s office of Turner battering her on
at least one prior occasion. The trial judge stated that he had carefully
considered Turner’s situation with his children possibly being taken into
state custody.
Turner received great benefit from the plea bargain with the state’s
dismissal of other felony charges. Turner’s characterization of his sentence
as “upper-end” is misleading as three of the five years were suspended. The
sentence imposed for Turner’s beating his mother in the face with a closed
fist to the point where she suffered a brain bleed does not shock the sense of
justice and does not suggest purposeless and needless infliction of pain and
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suffering. The trial judge was within his discretion in imposing the
sentence, which is not excessive.

Outcome: Finding Turner’s sentence is not excessive, we affirm the defendant’s
conviction and sentence.

Plaintiff's Experts:

Defendant's Experts:

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