from the Fourth Judicial District Court for the Parish of
Ouachita, Louisiana Lower Court Case No. 13F2423 Honorable
Alvin Rue Sharp, Judge
A. HANSEN Counsel for Appellant.
STEPHEN TEW District Attorney Counsel for Appellee.
SHIRLEY M. WILSON DAVIS Assistant District Attorney.
LOLLEY, GARRETT, and STONE, JJ.
to a plea agreement, David M. Fleming pled guilty to one
count of attempted indecent behavior with juveniles, a
violation of La. R.S. 14:81 and 14:27. Fleming was sentenced
to six years at hard labor with five years suspended, and
five years of supervised probation. He was fined $2, 000.00,
and in lieu of court costs, sentenced to 120 days in jail to
run consecutive to his hard labor sentence. For the following
reasons, we affirm Fleming's conviction and amend
Fleming's sentence to omit the $2, 000.00 fine. We remand
to the trial court for the sole purpose of compliance with
the sex offender notification and registration requirements.
La. R.S. 15:542-543.1.
October 18, 2013, David M. Fleming ("Fleming") was
charged by bill of information with one count of indecent
behavior with juveniles in violation of La. R.S. 14:81. On
December 3, 2015, after being advised of and waiving his
rights, Fleming entered a guilty plea to the crime of
attempted indecent behavior with juveniles. Fleming admitted
to "letting" his granddaughter touch him
inappropriately between the dates of August 1, 2013 and
September 1, 2013. Thereafter, the trial court sentenced
Fleming to six years at hard labor, a $2, 000.00 fine, and in
lieu of paying court costs, 120 days in jail to run
consecutively. The trial court suspended five years of the
sentence and placed Fleming on five years of supervised
probation upon his release.
August 1, 2016, Fleming filed a motion to reconsider sentence
arguing his sentence is excessive. However, the trial court
denied the motion. Fleming now appeals.
appeal, Fleming asserts the trial court did not sufficiently
consider the mitigating circumstances of the case and gave
undue weight to the aggravating circumstances. Fleming argues
that he should have been accorded a minimum sentence without
any hard labor and the requirement that he serve one year in
prison is nothing more than a purposeless and needless
infliction of pain and suffering.
appellate court utilizes a two-pronged test in reviewing a
sentence for excessiveness. 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 trial court is not required to
list every aggravating or mitigating circumstance, so long as
the record reflects that he adequately considered the
guidelines of the article. State v. Smith, 433 So.2d
688 (La. 1983); State v. Lathan, 41, 855 (La.App. 2
Cir. 02/28/07), 953 So.2d 890, writ denied,
2007-0805 (La. 03/28/08), 978 So.2d 297.
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. Where the record clearly shows an
adequate factual basis for the sentence imposed, remand is
unnecessary even where there has not been full compliance
with La.C.Cr.P. art. 894.1. State v. Lanclos, 419
So.2d 475 (La. 1982); State v. Swayzer, 43, 350
(La.App. 2 Cir. 08/13/08), 989 So.2d 267. The important
elements which should be considered are the defendant's
personal history (age, family ties, marital status, health,
employment record), prior criminal record, seriousness of the
offense, and the likelihood of rehabilitation. State v.
Jones, 398 So.2d 1049 (La. 1981); State v.
Ates, 43, 327 (La.App. 2 Cir. 08/13/08), 989 So.2d 259,
writ denied, 2008-2341 (La. 05/15/09), 8 So.3d ...