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State v. Boehm

Court of Appeals of Louisiana, Second Circuit

April 5, 2017

STATE OF LOUISIANA Appellee
v.
ERNEST ALLEN BOEHM, JR. Appellant

         Appealed from the Third Judicial District Court for the Parish of Lincoln, Louisiana Lower Court Case No. 67659 Honorable Thomas W. Rogers, Judge

          RICHARD J. GALLOT, JR. Counsel for Appellant.

          JOHN F.K. BELTON District Attorney LEWIS A. JONES TRACY W. HOUCK Assistant District Attorneys Counsel for Appellee.

          Before LOLLEY, PITMAN, and GARRETT, JJ.

          GARRETT, J.

         The defendant, Ernest Allen Boehm, Jr., pled guilty to 50 counts of molestation of a juvenile involving his two daughters. He was ordered to serve 30 years at hard labor on each count, with all of the sentences to be served concurrently. He now appeals his sentences as excessive. For the following reasons, we affirm the convictions, vacate the illegally lenient sentences, and remand for resentencing.

         FACTS

         Following a report of alleged sexual abuse made to law enforcement officers by a youth minister in June 2015, Boehm was arrested and confessed to the sexual activity discussed below. In July 2015, he was originally indicted by a Lincoln Parish grand jury for 25 counts of molestation of a juvenile and 25 counts of aggravated incest. He was represented by retained counsel and discovery was undertaken. Pursuant to plea negotiations, on October 20, 2015, Boehm was charged by bill of information with 50 counts of molestation of a juvenile, violations of La. R.S. 14:81.2. The offenses occurred from 2010 through June 24, 2015. Boehm was arraigned, fully advised of his rights under Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), and waived those rights. He was fully informed of the possible sentences for the offenses, and entered a plea of guilty as charged. No promises were made as to any sentences that might be imposed.

         The factual basis for the pleas was given by the state. Boehm and his wife adopted two children when they were five and eight years old. When the children were 12 or 13 years old, Boehm began molesting them, and continued until they were 16 years old.[1] Boehm admitted molesting each child at least 25 times. The state detailed the behavior admitted by Boehm that met the statutory definition of the offenses. The incidents included digital penetration, oral sexual intercourse, and vaginal sexual intercourse. Discovery conducted in the case was filed into the record. The trial court accepted the guilty pleas. The pending grand jury indictments were dismissed and a presentence investigation report ("PSI") was ordered.

         Boehm appeared before the court for sentencing on December 15, 2015. He confirmed receipt of his sex offender notification, as required by La. R.S. 15:542-543.1. The state recommended that Boehm receive a minimum of 20 years at hard labor on each count. Boehm's attorney noted that there was no agreement as to the sentences to be imposed in this case. The trial court again informed Boehm of the applicable penalty for the offenses under La. R.S. 14:81.2(C)(1), which provides in part:

Whoever commits the crime of molestation of a juvenile by violating the provisions of Paragraph (A)(1) of this Section, when the incidents of molestation recur during a period of more than one year, shall, on first conviction, be fined not more than ten thousand dollars or imprisoned, with or without hard labor, for not less than five nor more than forty years, or both. At least five years of the sentence imposed shall be without benefit of parole, probation, or suspension of sentence.[2]

         The trial court stated that it carefully reviewed the PSI, as well as letters submitted concerning Boehm. According to the PSI, Boehm admitted that the molestation of the children began when they were under the age of 13, while the family lived in another state. The court considered the sentencing factors set forth in La.C.Cr.P. art. 894.1. It determined that Boehm was in need of correctional treatment best provided by commitment to an institution and that lesser sentences than those imposed would deprecate the heinous nature of the offenses. The trial court stated:

The offenses that you committed over a protracted period of time were a reprehensible violation of the most sacred responsibility a man can have to his family. You have robbed your victims of the trust and protection you owed to them. There can be no doubt that they will suffer grave psychological scars for many years to come, if not for their entire lifetimes.

         The court noted that Boehm did not have a prior criminal record, confessed early in the case, and admitted his guilt without any guarantee of limitation of sentence. The court considered these factors as evidence of Boehm's remorse. The trial court allowed Boehm to ...


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