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State v. Fleming

Court of Appeals of Louisiana, Second Circuit

May 2, 2017

STATE OF LOUISIANA Appellee
v.
DAVID M. FLEMING Appellant

         Appealed from the Fourth Judicial District Court for the Parish of Ouachita, Louisiana Lower Court Case No. 13F2423 Honorable Alvin Rue Sharp, Judge

          STEVEN A. HANSEN Counsel for Appellant.

          ROBERT STEPHEN TEW District Attorney Counsel for Appellee.

          SHIRLEY M. WILSON DAVIS Assistant District Attorney.

          Before LOLLEY, GARRETT, and STONE, JJ.

          STONE, J.

         Pursuant 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.

         FACTS

         On 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.

         On 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.

         DISCUSSION

         On 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.

         An 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.

         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. 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 ...


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