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State v. Mitchell

Court of Appeal of Louisiana, Second Circuit

June 24, 2015

STATE OF LOUISIANA, Appellee
v.
BRYAN PHILLIP MITCHELL, Appellant

Appealed from the Twenty-Sixth Judicial District Court for the Parish of Bossier, Louisiana. Trial Court No. 197,983. Honorable Jeffrey S. Cox, Judge.

DOUGLAS L. HARVILLE, Louisiana Appellate Project, Counsel for Appellant.

J. SCHUYLER MARVIN, District Attorney, CHARLES A. SMITH, JOHN M. LAWRENCE, Assistant District Attorneys, Counsel for Appellee.

Before BROWN, STEWART, and GARRETT, JJ.

OPINION

Page 750

[49,873 La.App. 2 Cir. 1] BROWN, CHIEF JUDGE

Defendant, Bryan Phillip Mitchell, pled guilty, with an agreement of a 30-year sentencing cap, to aggravated incest, indecent behavior with a juvenile and pornography involving juveniles. He was subsequently sentenced to a total of 30 years at hard labor. Defendant now appeals, arguing that the trial court erred in denying his motion to withdraw his guilty pleas and that his sentences are excessive. For the following reasons, we affirm defendant's convictions and sentences.

Facts

In January 2013, the Bossier Parish Sheriff's Office received a complaint from the mother of R.W., a 14-year-old girl, concerning inappropriate contact by defendant

Page 751

with her daughter. Defendant went to the sheriff's office and, following Miranda warnings, confessed. He further confessed to relations with his step daughter, which started when she was 12 years old, and to possessing child pornography on his computer. The deputies obtained a search warrant and seized defendant's computer. On February 28, 2013, a three-count bill of information was filed charging defendant, who at that time was 35 years old, as follows: count one--aggravated incest, in violation of La. R.S. 14:78.1[1]; count two--indecent behavior with a juvenile, in violation of La. R.S. 14:81; and, count three--pornography involving juveniles, in violation of La. R.S. 14:81.1.

After plea offers had been rejected by defendant, a jury trial was set to commence on April 21, 2014. Prior to the empaneling of a jury, however, [49,873 La.App. 2 Cir. 2] defendant agreed to plead guilty to all three counts, pursuant to a plea agreement which included a sentencing cap of 30 years and an agreement that on the aggravated incest count the victim would be considered over the age of 13.[2] The trial court advised defendant of his constitutional rights, and defendant stated that he understood and wanted to waive his rights.

The state provided a factual basis for each of the charges, which represented a continuing course of conduct. Regarding aggravated incest, the state charged that this offense occurred between the dates of January 1, 2008, and September 1, 2012, with defendant's stepdaughter, whose date of birth was March 4, 1995. Specifically, defendant would go into the child's bedroom, touch her vagina and masturbate in front of her while she was pretending to be asleep. As to the crime of indecent behavior with a juvenile, the state charged that this crime occurred between the dates of September 1, 2012, and January 6, 2013, with M.K., whose date of birth was July 13, 1998. Specifically, defendant engaged in a relationship with M.K. on the computer, they met on several occasions and, at defendant's request, M.K. sent defendant a picture of herself wearing only her underwear. Based on defendant's confession, deputies obtained a search warrant for his home, wherein they recovered a computer containing 55 images of children under the age of 17 engaged in sexual acts. The state charged that this pornography offense occurred between the dates of January 1, 2008, and [49,873 La.App. 2 Cir. 3] September 1, 2012.[3] Defendant admitted that the prosecutor's statement of facts was correct. The trial court accepted defendant's guilty pleas and ordered a pre-sentence investigation report.

On May 5, 2014, two weeks after pleading guilty, defendant filed a pro se motion to rescind his guilty pleas. The hearing on the motion was held on June 10, 2014. After being warned and advised that he had the right for his attorney to be present, ...


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