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State v. Shaikh

Court of Appeals of Louisiana, Third Circuit

December 7, 2017

STATE OF LOUISIANA
v.
FAHIM A. SHAIKH

         APPEAL FROM THE THIRTY-SIXTH JUDICIAL DISTRICT COURT PARISH OF BEAUREGARD, NO. 2014-313 HONORABLE C. KERRY ANDERSON, DISTRICT JUDGE

          Annette Fuller Roach Counsel for Defendant/Appellant Fahim A. Shaikh

          James R. Lestage District Attorney Richard A. Morton First Assistant District Attorney Thirty-Sixth Judicial District Counsel for Appellee State of Louisiana

          Court composed of Ulysses Gene Thibodeaux, Chief Judge, Shannon J. Gremillion, and Phyllis M. Keaty, Judges.

          ON REMAND FROM THE LOUISIANA SUPREME COURT

          PHYLLIS M. KEATY JUDGE

         As a result of the remand from the supreme court in State v. Shaikh, 16-750 (La. 10/18/17), So.3d, we consider Defendant's pretermitted claim regarding his allegedly excessive sentence arising from his conviction for indecent behavior with a juvenile. For the following reasons, Defendant's sentence for indecent behavior with a juvenile is vacated, and the case is remanded to the trial court for resentencing.

         FACTS AND PROCEDURAL BACKGROUND

         This court is familiar with the factual background in this case in light of State v. Shaikh, 15-68 (La.App. 3 Cir. 3/23/16), 188 So.3d 409. As the facts have not materially changed since that opinion, we adopt the facts set forth therein by reference as though set forth in full herein:

In this criminal matter, the thirteen-year-old victim, A.G. [1] was at her house on the morning of April 17, 2014, when her mother, Mitzi Gormanous, left with her older daughter and grandson to go shopping. A.G. did not go shopping because she was punished for inappropriate behavior. When they returned approximately an hour and a half later, A.G. was gone. This was the second time that A.G. had run away according to her mother, and following a brief search, Gormanous called the sheriff's office and reported A.G. as a runaway. A.G. was found later that day when she went to the sheriff's station with Mrs. Judith Knox.
Mrs. Knox was the grandmother of her friend, Alexis Knox, and with whom Alexis lived. A.G.'s trial testimony indicates that on the morning in question, she planned on running away to Alexis's house. As such, she packed a bag with her clothes and began walking towards her destination. As she was walking, Shaikh, who was driving his car, stopped and asked A.G. if she needed a ride. A.G. obliged and asked to be taken to Alexis's house. Since Alexis was not going to be home until later that day, Shaikh and A.G. went to the Dairy Queen drive-through to get food, went to Shaikh's friend's apartment, ran other errands, and finally ended up at Alexis's house. A.G. alleged that during this time, Shaikh kissed her cheek, tickled her, slapped her butt, and professed his love for her.
As a result, Shaikh was charged on June 12, 2014 with one count of simple kidnapping, a violation of La.R.S. 14:45, and one count of indecent behavior with a juvenile, a violation of La.R.S. 14:81. Following a three-day jury trial which began on February 23, 2014, Shaikh was convicted as charged. Shaikh subsequently filed a Motion for New Trial and a Motion for Post-Verdict Judgment of Acquittal Pursuant to Code of Criminal Procedure Article 821, which the trial court summarily denied on April 2, 2014.
On April 13, 2014, Shaikh was sentenced to five years, with two years suspended, on the simple kidnapping conviction. As to the indecent behavior with a juvenile conviction, he was sentenced to seven years with three years suspended. Both sentences were ordered to be served concurrently with Shaikh receiving credit for time served, for a total of four years of incarceration and five years of supervised probation upon release. He was also ordered to pay a fine of $2, 500 on each count, plus court costs. The general conditions of probation were ordered, along with $500 to be paid to the Criminal Court Fund, $300 for cost of prosecution, and $300 to the Public Defender's Fund. The fines, fees, and costs were ordered by the trial court to be paid on a twenty-four month payment plan. Shaikh subsequently filed a Motion to Reconsider Sentence which was denied by the trial court on May 4, 2015.

State v. Shaikh, 188 So.3d at 412.

         Defendant perfected a timely appeal, following which this court vacated his conviction and sentence for indecent behavior with a juvenile, finding that there lacked sufficient evidence. State v. Shaikh, 188 So.3d 409. We further held that Defendant's sentence arising from his conviction for simple kidnapping was constitutionally excessive and, as such, vacated the sentence and remanded the matter to the trial court for resentencing. Id. The supreme court subsequently reinstated Defendant's conviction for indecent behavior with a juvenile as well as reinstated his sentence for simple kidnapping, as originally imposed. State v.Shaikh, __ So.3d__. It remanded the matter to this court to address ...


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