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State v. Austin

Court of Appeals of Louisiana, Second Circuit

June 27, 2018

STATE OF LOUISIANA Appellee
v.
GERWANNA TASHAY AUSTIN Appellant

          Appealed from the Twenty-Sixth Judicial District Court for the Parish of Bossier, Louisiana Trial Court No. 222, 009 Honorable Gay C. Gaskins, Judge Pro Tempore

          LOUISIANA APPELLATE PROJECT Douglas Lee Harville Counsel for Appellant.

          JOHN SCHUYLER MARVIN District Attorney JOHN MICHAEL LAWRENCE DALE NEWTON MONTGOMERY II Assistant District Attorneys Counsel for Appellee.

          Before WILLIAMS, STONE, and McCALLUM, JJ.

          McCALLUM, J.

         The case currently before this Court, a domestic dispute turned violent between a sister and her brother, arises out of a seemingly inconsequential act, i.e., the unauthorized erasure by the former of a television program previously recorded by the latter.

         The defendant, Gerwanna Austin ("Austin"), having pled guilty as charged to aggravated battery, appeals her sentence of eight years as excessive. We affirm her conviction and sentence.

         FACTS

         On November 12, 2016, Austin and her brother, Brandon, began arguing after Austin erased a television program that Brandon had recorded. Austin, who became angry when Brandon called her names, waited for him to come inside the house from his yard work and then she stabbed him in the neck with a kitchen knife. Austin was 26 years old at the time.

         Austin was charged by bill of information with one count of aggravated battery, in violation of La. R.S. 14:34. On May 15, 2017, Austin accepted the state's offer to plead guilty as charged in exchange for the state's agreement not to file an habitual offender bill. She was informed that the applicable sentencing range was 0-10 years and that a presentence investigation (PSI) report would be ordered.

         The PSI, which incorrectly stated that Austin pled guilty to aggravated assault, showed that she was born October 21, 1990, and finished high school at age 20. Austin never held a job and relied on family members for financial assistance. Austin was not married and had no children. She denied any alcohol or substance abuse. In her statement for the PSI, Austin showed remorse and said, "I'm willing to take anger management. I apologize for my actions and I know that I need to learn to walk away from things."

         Austin's criminal history included an arrest for aggravated second degree battery in 2014 when she stabbed her uncle during an argument about her discipline of her niece and nephew. This argument also turned physical and the uncle grabbed her by the hair and put her on the ground. Using a kitchen knife, Austin stabbed the uncle in the back and chest. She pled guilty on September 29, 2015, to a reduced charge of attempted second degree battery and was sentenced on December 1, 2015, to serve 18 months.

         Austin appeared for sentencing on the current conviction August 23, 2017.[1] The judge stated that she had reviewed Austin's guilty plea transcript and confirmed that Austin pled guilty to aggravated battery. The judge also stated that she had reviewed the factual basis for the guilty plea, Austin's PSI report, and the sentencing guidelines in La.C.Cr.P. art. 894.1.

         The judge noted that Austin stabbed her brother in the neck four times with a large kitchen knife when he entered the house to wash his hands following their argument. The judge also noted Austin's prior conviction for attempted second degree battery when she stabbed her uncle in the back and chest after an argument. The judge observed that Austin's behavior indicated that she had anger issues and was in need of custodial treatment. Austin had committed two intentional crimes against victims when their backs were turned, and the judge was concerned that Austin would commit other crimes. The judge recognized that Austin was 26 years old, and hoped that she would become calmer and more patient as she aged. Citing Austin's aggressive manner and her ...


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