Calhoun man sentenced to 50 years for crimes against nature
Case Number: 51,761-KA
Judge: Jeff Cox
Court: COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
Plaintiff's Attorney: ROBERT STEPHEN TEW
MICHELLE ANDERSON THOMPSON
Assistant District Attorney
Defendant's Attorney: LOUISIANA APPELLATE PROJECT By:
Description: Thomas was charged by bill of information with 13 counts of
aggravated crime against nature. The victim, M.C.1, is Thomas’
stepdaughter. The bill alleged that these crimes occurred between October
6, 2012, and July 25, 2016.
On December 19, 2016, pursuant to a plea agreement, Thomas
appeared and pled guilty to four counts of the reduced charge of attempted
aggravated crime against nature. During the plea colloquy, the trial court
advised Thomas: “[A]s a result of the guilty plea, you’ll be subjected to a
minimum of 20 years imprisonment at hard labor, the first 20 years being
without benefit of parole, probation or suspension of sentence. And the
maximum would be 49 years, each count[.]” Thomas affirmed that was his
understanding of the full and complete plea agreement. He signed the
1 M.C. was born on 10/6/09.
written plea agreement, which did not include a cap on the maximum
sentence or indicate whether the sentences would be served consecutively or
As a factual basis for the plea, the state noted that Thomas sexually
abused his stepdaughter on multiple occasions between October 6, 2012, and
July 25, 2016. The abuse was disclosed when the victim’s 15-year-old sister
observed Thomas standing in a closet with M.C. in front of him; Thomas
quickly zipped up his pants and turned around.
The victim was interviewed at the Child Advocacy Center. After a
series of interviews, she disclosed that Thomas had been sexually abusing
her since she was three years old. She stated Thomas had abused her over
20 times, and the abuse included forcing her to touch his penis, forcing her
to put her mouth on his penis and scrotum, and forcing her to lie naked on
top of Thomas’ private parts. Thomas conceded that these facts were
On March 22, 2017, after reviewing the presentence investigation
report, the trial court sentenced Thomas. On Counts One and Two, Thomas
was sentenced to 25 years at hard labor, with the first 20 years to be served
without the benefit of parole, probation, or suspension of sentence. Counts
One and Two were ordered to be served concurrently with each other. On
Counts Three and Four, Thomas was sentenced to 25 years at hard labor.
Counts Three and Four were ordered to be served concurrently with each
other, but consecutively to Counts One and Two.
The defense filed a motion to reconsider sentence, arguing that
Thomas’ sentences were unduly harsh since he was a true first-offender.
The trial court denied the motion. This appeal followed.
Thomas argues that his sentences, as imposed consecutively, are
excessive. Thomas notes he is a 39-year-old, first-offender with no criminal
record, and a 50-year sentence is essentially a life sentence. Specifically, he
contends that the trial court failed to give proper consideration to the
sentencing factors, as evidenced by the trial court’s assertion that, due to the
nature of Thomas’ crime, he would always be a danger to others and could
not be rehabilitated. Further, Thomas asserts that it was unfair for the trial
court to use the plea agreement as a factor in favor of a harsh sentence. He
claims that the trial court failed to consider the fact that he admitted to the
offenses, was remorseful, and spared the victim any further trauma by
accepting the plea.
In reviewing a sentence for excessiveness, an appellate court utilizes a
two-step process. 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 goal of
La. C. Cr. P. art. 894.1 is for the court to articulate the factual basis for the
sentence imposed, not to impose rigid or mechanical compliance with its
provisions. State v. Nixon, 51,319 (La. App. 2 Cir. 5/19/17), 222 So. 3d 123.
The article provides a list of aggravating and mitigating factors that the court
may consider to determine if the defendant is eligible for a suspended
sentence or probation. Although the trial court is not required to list every
aggravating or mitigating circumstance present in the case, the record should
reflect that the court adequately considered the guidelines of the article. Id.
The important elements which should be considered are the defendant’s
personal history (age, family ties, marital status, health, and employment
record), prior criminal record, seriousness of the offense, and the likelihood
of rehabilitation. State v. Johnson, 51,430 (La. App. 2 Cir. 7/5/17), 224 So.
3d 505. There is no requirement that specific matters be given any particular
weight at sentencing. State v. Thompson, 50,392 (La. App. 2 Cir. 2/24/16),
189 So. 3d 1139.
Second, the appellate court must consider whether the sentence is
constitutionally excessive. A sentence violates La. Const. art. I, § 20 if it is
grossly out of proportion to the severity of the crime or nothing more than a
purposeless and needless infliction of pain and suffering. State v. Lewis,
49,138 (La. App. 2 Cir. 6/25/14), 144 So. 3d 1174, writ not cons., 16-0235
(La. 3/14/16), 188 So. 3d 1070. A sentence is considered grossly
disproportionate if, when the crime and punishment are viewed in light of
the harm done to society, it shocks the sense of justice. Id.
The trial court has wide discretion in the imposition of sentences
within the statutory limits, and such sentences should not be set aside as
excessive in the absence of a manifest abuse of that discretion. State v.
Allen, 49,642 (La. App. 2 Cir. 2/26/15), 162 So. 3d 519, writ denied, 15
0608 (La. 1/25/16), 184 So. 3d 1289. A trial judge is in the best position to
consider the aggravating and mitigating circumstances of a particular case.
Id. On review, an appellate court does not determine whether another
sentence may have been more appropriate, but whether the trial court abused
its discretion. State v. Jackson, 48,534 (La. App. 2 Cir. 1/15/14), 130 So. 3d
A substantial advantage obtained by means of a plea bargain is a
legitimate consideration in sentencing. State v. Mendenhall, 48,028 (La.
App. 2 Cir. 5/15/13), 115 So. 3d 727. Accordingly, where a defendant has
pled guilty to an offense which does not adequately describe his conduct or
has received a significant reduction in potential exposure to confinement
through a plea bargain, the trial court has great discretion in imposing even
the maximum sentence for the plea offense. State v. Lapoole, 51,199 (La.
App. 2 Cir. 2/15/17), 215 So. 3d 430.
When two or more convictions arise from the same act or transaction,
or constitute parts of a common scheme or plan, the terms of imprisonment
shall be served concurrently, unless the court expressly directs that some or
all be served consecutively. La. C. Cr. P. art. 883. Concurrent sentences
arising out of a single course of conduct are not mandatory, and consecutive
sentences under those circumstances are not necessarily excessive. State v.
Hebert, 50,163 (La. App. 2 Cir. 11/18/15), 181 So. 3d 795. It is within the
trial court’s discretion to make sentences consecutive rather than concurrent.
State v. Robinson, 49,677 (La. App. 2 Cir. 4/15/15), 163 So. 3d 829, writ
denied, 15-0924 (La. 4/15/16), 191 So. 3d 1034.
A judgment directing that sentences stemming from a single course of
conduct be served consecutively requires particular justification from the
evidence or record. When consecutive sentences are imposed, the trial court
shall state the factors considered and its reasons for the consecutive terms.
Among the factors to be considered are: (1) the defendant’s criminal history;
(2) the gravity or dangerousness of the offense; (3) the viciousness of the
crimes; (4) the harm done to the victims; (5) whether the defendant
constitutes an unusual risk of danger to the public; (6) the potential for the
defendant’s rehabilitation; and (7) whether the defendant has received a
benefit of a plea bargain. State v. McDuffy, 42,167 (La. App. 2 Cir.
6/20/07), 960 So. 2d 1175, writ denied, 07-1537 (La. 1/11/08), 972 So. 2d
1163. However, the failure to articulate specific reasons for consecutive
sentences does not require remand if the record provides an adequate factual
basis to support consecutive sentences. State v. Robinson, supra.
La. R.S. 14:89.1(C)(2) provides:
Whoever commits the crime of aggravated crime against nature as defined by Paragraph (A)(2) of this Section with a victim under the age of thirteen years when the offender is seventeen years of age or older shall be punished by imprisonment at hard labor for not less than twenty-five years nor more than ninetynine years. At least twenty-five years of the sentence imposed shall be served without benefit of parole, probation, or suspension of sentence.
When a defendant is convicted of an attempted offense, the
punishment is “in the same manner as for the offense attempted,” but the
term of imprisonment “shall not exceed one-half of the longest term of
imprisonment prescribed for the offense so attempted.” La. R.S.
14:27(D)(3). There is no express statutory minimum sentence for being
convicted of an attempt, and principles of lenity require that the statute be
strictly construed. State v. Fleming, 51,332 (La. App. 2 Cir. 5/2/17), 219 So.
After reviewing the record, we find the trial court did not abuse its
discretion in sentencing Thomas to 25 years at hard labor on each of four
counts of attempted aggravated crime against nature, for a total sentence of
50 years at hard labor. We do not believe the trial court abused its discretion
in sentencing Thomas, pursuant to the plea agreement, to serve 25 years at
hard labor on Counts One and Two, and 25 years at hard labor on Counts
Three and Four, to run consecutively with each other.
At the sentencing hearing, the trial court adequately considered the
facts of this case, the information provided in the presentence investigation
report, and the applicable sentencing factors set forth in La. C. Cr. P. art.
894.1. The trial court also considered all filings and testimony received on
behalf of Thomas and the victim,2 the applicable sentencing range, and the
benefit Thomas received as a result of the plea agreement.
The trial court stated that although Thomas has no criminal history
and is now remorseful, there are certain crimes that are “unforgivable” and
“inexcusable.” In outlining the facts of this case, the trial court noted that
Thomas’ acts are “disgusting and despicable acts against a mere child; a
child who is defenseless.” On multiple occasions, Thomas took the victim
to his room, closed the door, and forced her to perform oral sex on him.
Thomas also rubbed his penis on the victim to the point where it caused her
In reviewing the sentencing guidelines under La. C. Cr. P. art. 894.1,
the trial court noted several aggravating factors. The trial court stated that
Thomas’ conduct during the commission of the offense manifested
deliberate cruelty to the victim. He terrorized the victim by threatening to
kill her mother if she told anyone. The victim was forced to perform
“vulgar, disgusting and unacceptable sexual acts,” and when she tried to
resist, she was slapped, threatened, and her hair was pulled. The trial court
also found that Thomas knew or should have known that the victim was
particularly vulnerable or incapable of resisting due to her extreme youth, as
she was only three years old when the abuse began. Thomas used his
position of trust, as the victim’s stepfather, to facilitate the commission of
2 The trial court received letters on Thomas’ behalf from his ex-wife, children, family members, and friends. Also, at the sentencing hearing, Thomas admitted that he made a mistake, stated he was truly sorry for his actions, and asked the trial court for leniency. Jennifer Thomas, Thomas’ wife and the victim’s mother, and Amanda Desean, Jennifer’s friend, testified as to the emotional impact on the victim and her family, noting that Thomas took away the victim’s innocence, and she now lives in constant fear.
the offense. Additionally, the trial court observed that the offense resulted in
a significant, permanent injury and loss to the victim and her family. The
trial court indicated that the victim will have lifelong psychological injuries
and will need extensive counseling. Further, the trial court believed there
was an undue risk that, during a period of a suspended sentence or probation,
Thomas would commit another crime. The court expressed its doubt that
Thomas could be rehabilitated, stating that sex offenders represent a danger
As it relates to mitigating factors, the trial court considered that
Thomas has no prior criminal history, but noted his arrest in 2014 for
domestic abuse battery against his wife.3 The court also indicated that
Thomas’ incarceration would cause an excessive hardship on his three sons,
ages 19, 17, and 13. Additionally, the trial court recognized that Thomas has
been employed by Coca-Cola Bottling Company since high school and has
undergone cancer treatment through chemotherapy.
The record adequately supports the sentences imposed. At the
sentencing hearing, the trial court stated it considered each of the counts
against Thomas to be separate and distinct acts, and it believed it could
justify consecutive sentences for each count.
Thomas’ mid-range sentences, although ordered to be served
consecutively, are not constitutionally excessive. Thomas admitted to
engaging in sexual activities with his three-year-old stepdaughter multiple
times over the course of three years. He forced the child to perform oral sex
on him and threatened to kill her mother if she told anyone.
3 This charge was later dismissed.
Thomas received a substantial benefit in sentencing as a result of the
plea agreement, as he was facing thirteen counts of aggravated crime against
nature. In exchange for his plea, the state reduced four of the counts against
Thomas to attempted aggravated crime against nature and dismissed the
remaining nine counts. His total sentence of 50 years for four counts is only
six months longer than the maximum sentence for one count of attempted
aggravated crime against nature.
Based on the record and the benefit Thomas received from the plea
agreement, the sentences imposed by the trial court do not shock the sense of
justice, nor are they grossly disproportionate to the severity of the offenses.
Outcome: For the foregoing reasons, we affirm the defendant’s convictions and