State of Louisiana v. Toby James Fruge

JjThe state’s writ application was granted to review those portions of the appellate court decision that reversed the district court’s imposition of the maximum sentence for defendant’s simple rape conviction and remanded the case to the district court with instructions for resentencing. For the following reasons, we reverse the decision of the appellate court, in part, reinstate defendant’s simple rape sentence, and remand to the district court for the execution of the sentence.

FACTS AND PROCEDURAL HISTORY

Toby James Fruge was charged with the *581 forcible rape 1 of two women, R.A. (count 1) and J.H, (count 2), in two separate incidents that occurred approximately two years apart.

In 2004, R.A., approximately 20 years old, went out for drinks after work with a friend. While consuming drinks at a bar, R.A. danced with defendant before leaving with her friend. Distracted by defendant who was following them in his | ¿vehicle, R.A.’s friend inadvertently steered her car into a ditch. Thereafter, defendant drove R.A.’s friend home and, then, while supposedly in route to R.A.’s- home, took R.A., who was- sleeping or passed out, to a dark gravel road where he grabbed her, put her in the driver’s seat, pulled down her pants, and raped her while she screamed and begged for her life. After the rape, defendant drove R.A. home.

In 2006, 20-year-old J.H. spent the night at her sister’s home and played a drinking game with defendant and her sister’s ñaneé. She then went to sleep on the couch, only to awaken when defendant, who had pulled down her jeans and underwear to her knees, held her down by her breasts. After penetration by defendant, J.H. pushed him onto the floor and ran crying to her sister’s room while defendant ran out of the residence and fled the scene in his ear as he was being pursued on foot by the flaneé of J.H.’s sister.

■These counts were tried together. Although at trial defendant maintained that the sex with R.A. in 2004 was consensual and he denied having sex with J.H. in 2006, a jury in 2009 found .defendant guilty of the forcible rape of R.A, and guilty of the simple rape of J.H. 2 He was then sentenced to 30 years of imprisonment at hard labor with at-least two years served without the benefit of probation, parole, or suspension of sentence on the forcible rape 3 and to 26 years of imprisonment at hard labor .without the benefit of probation, parole, or suspension of sentence on the simple rape conviction. 4 The sentences were ordered to run concurrently.

l áOn appeal of the convictions and sentences, the appellate court examined the Underlying facts of both rapes and found there was sufficient evidence to affirm the convictions; however, the sentences for both were vacated. See State v. Fruge, 09-1131 (La.App. 3 Cir. 4/7/10), 34 So.3d 422, writ denied, 10-1054 (La.11/24/10), 50 So.3d 828. The appellate' court vacated the forcible rape sentence because it lacked specification of the number of years to be served “without benefit.” Id., 09-1131 at 2, 34 So.3d at 424. The simple rape sentence was also vacated in the absence of findings to support the imposition of the maximum. available sentence. Id., 09-1131 at 20, 34 So.3d at 434. The matter was remanded for resentencing to allow the district court to impose a determinate sentence relative to the forcible rape conviction and to comply with the sentencing guidelines of La.C.Cr.P. art. 894.1 5 relative to the simple rape conviction. Id.

*582 On remand, defendant was resentenced by the district court to 30 years of imprisonment at hard labor for the forcible rape conviction, two years of which was ordered to be served without the benefit of parole, probation, or suspension of sentence. As to the simple rape conviction, defendant was again sentenced to 25 years of imprisonment at hard labor “without benefit.” Once more, these sentences were ordered to run concurrently.

While examining the sentences for ex-cessiveness, the appellate court observed that the district court found the crimes “manifested deliberate cruelty to the victims; that the offenses were violent and brutal in nature; and that the offenses resulted in significant physical and psychological suffering to the victims.” State v. Fruge, 13-1386, p. 5 (La.App. 3 Cir. 5/7/14), 139 So.3d 602, 605. Notably, the 32-year-old Rdefendant had a “couple” of misdemeanor convictions, but no prior felony convictions. Fruge, 13-1386 at 6, 139 So.3d at 605. However, defendant, as observed by the district court, had been convicted in this case of two separate rapes. Id.

Comparing the forcible rape sentence to that imposed in State v. Steele, 10-1336 (La.App, 3 Cir. 5/4/11), 63 So.3d 412, 6 the appellate court found that the district court did not abuse its discretion in imposing a 30-year sentence and restricting only two years of that sentence to “without benefit.” See Fruge, 13-1386 at 7, 139 So.3d at 606. Accordingly, the forcible rape sentence was affirmed. As to the 25-year sentence on the simple rape conviction, the district court considered the sentences imposed in State v. Clark, 05-0647 (La.App. 3 Cir. 12/30/05), 918 So.2d 552, 7 and State v. Cleveland, 12-0163 (La.App. 4 Cir. 4/10/13), 115 So.3d 578, writ denied, 13-0926 (La.11/8/13), 125 So.3d 444. 8 Finding that the record supported neither a determination that defendant was the worst type of offender nor the imposition of the maximum 25-year sentence, the appellate court vacated the simple rape sentence and “remand[ed] the matter instructing the [district] court that a mid-range sentence at hard labor, with no opportunity for probation or parole, to run concurrently with the thirty-year sentence for forcible rape, is supported by the record.” See Fruge, 13-1386 at 9, 139 So.3d at 607.

|fiThe dissenting appellate, court judge was troubled by the majority’s focus “on the maximum sentence for simple rape” and its failure to properly consider “the total sentencing exposure for both crimes.” Id., 13-1386 at 2 n. 2, 139 So.3d at 608 n. 2 (Conery, J., dissenting). Admittedly, a lesser sentence “may have been more appropriate” on the simple rape conviction under the facts of this case; however, the dissenting judge cautioned that the appellate court “should not substitute [its] judgment for that of the trial judge.” Id., 13-1386 at p. 2 n. 2 and p. 3, 139 So.3d at 608 n. 2 and 609 (Conery, J., dissenting). Given that defendant’s crimes involved two separate victims in two separate incidents, the district court had the discretion to run the sentences consecutively. See id., 13- *583 1386 at 2, 139 So.3d at 608 (Conery, J., dissenting). Although defendant could have possibly been' sentenced to a total maximum term of 65 years of imprisonment at hard labor without benefit of parole, probation, or suspension of sentence for the two rapes, the district court judge exercised sentencing restraint by ordering' that defendant’s sentences run concurrently, thereby, making his total term of imprisonment for the two rapes 30 years. Id. Therefore, in the opinion of the dissenting judge, the 25-year simple rape, sentence was not constitutionally excessive, especially when considering the deference afforded to the district court in this regard. See id., 13-1386 at 3, 139 So.3d at 609 (Conery, J., dissenting).

From that portion of the appellate court’s decision that vacated the simple rape sentence, the state sought review by this court, contending that the appellate court erred in finding that the simple rape sentence was excessive under the facts of this case and in ordering the imposition of a mid-range sentence for simple rape to run [ ^concurrently with his sentence for forcible rape. 9 The state’s writ application was granted for consideration of whether the district .court abused its sentencing discretion under the facts of this case by imposing the maximum sentence for defendant’s simple rape conviction. See State v. Fruge, 14-1172, (La.4/24/15), 168 So.3d 406.

DISCUSSION

The imposition of a sentence, even though within statutory limits, may violate a defendant’s right, under the Louisiana Constitution, 10 against excessive punishment. Stat e v. Campbell, 404 So.2d 1205, 1207 (La.1981). A penalty is excessive if it is grossly disproportionate to the severity of the crime. See State v. Goode, 380 So.2d 1361, 1364 (La.1980). In determining whether the penalty is grossly disproportionate to the crime, a reviewing court must consider the punishment and the crime in light of the harm to society caused by its commission and decide whether the penalty is so disproportionate to the crime committed as to shock the sense of justice. See id., citing Gregg v. Georgia, 428 U.S. 153, 187, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976).

The following factors are useful in determining whether a sentence, by its excessive length or severity, is grossly out of proportion to the underlying crime: the nature of the offense and the offender, a comparison of the punishment in this case with the sentences imposed for similar crimes, the legislative purpose behind the punishment, a comparison of the punishment with sentences imposed for similar crimes, and a comparison of the punishment provided for this crime in other jurisdictions. State v. Smith, 99-0606, p. 18 (La.7/6/00), 766 So.2d 501, 514-15.

17Here, the district court noted the seriousness of the offenses, stating that defendant’s “conduct during the commission of the offenses manifested deliberate cruelty to the victims.” The nature of the offenses was characterized as “violent and brutal.” The offenses were found to have “resulted in significant physical and psychological suffering to the victims.” Although defendant challenges this finding based on the lack of medical evidence, witness testimony provides a reasonable basis for this find *584 ing. Furthermore, the district court had the opportunity to observe the demeanor and mannerisms of witnesses, including inflections or hesitations in their voices or manner of speaking, in determining credibility. While defendant was a first-time offender, the district court observed that defendant had been convicted by the jury in this case of two separate rapes, occurring two years apart.

A comparison of defendant’s punishment for the simple rape conviction with sentences imposed for similar crimes, particularly, in Clark, 05-0647 at 5, 918 So.2d at 556, and Cleveland, 12-0163 at 17, 115 So.3d at 588, raises questions as to the district court’s imposition of the maximum sentence in this case. While a comparison of sentences imposed for similar crimes may provide some insight, “sentences must be' individualized to the particular offender and to the particular offense committed.” State v. Batiste, 694 So.2d 1, 3 (La.App. 1 Cir.1991). It is within .the'purview of the district court to particularize the sentence because the district court “remains in the best position to assess the aggravating and mitigating circumstances presented by each case.” State v. Cook, 95-2784, p. 2 (La.5/31/96), 674 So.2d 967, 958. The district court is given wide discretion in the imposition of sentences within statutory limits, and the sentence imposed should not be set aside as excessive in the absence of a manifest abuse of discretion by the trial court. State v. Spencer, 374 So.2d 1195, 1202 (La.1979). Therefore, the only relevant question on review is “whether lathe [district] court¡abused its broad sentencing discretion, not whether another sentence might have been more appropriate.” Cook, 95-2784 at 3, 674 So.2d at 959, quoting State v. Humphrey, 445 So.2d 1155, 1165 (La.1084).

In this case, defendant was indicted for two counts of forcible rape arising from separate incidents during which he took advantage of different intoxicated young women years apart. The district court imposed a sentence of 30 years, ten years shy of the maximum, with only two years being “without benefit,” the minimum term of parole' disability, for the 2004 forcible rape, while it imposed a sentence of 25 years, the maximum, for the 2006 simple rape. The district court did not explain why it punished defendant for less than the maximum sentence for the more serious offense of forcible rape, but imposed the maximum sentence for the less serious offense. However, we note that under La. R.S. 15:574.4(B)(1), 11 defendant would not become eligible for early release on parole on the 30-year forcible rape sentence until he served 25-and-ar-half years of imprisonment at hard labor, which is longer than his 25-year simple rape sentence.

Important to the consideration of the excessiveness of the simple rape sentence is' the fact that the district court ordered the sentences in this case to run concurrently. Under La.C.CrJL art. 883, it is presumed that consecutive sentences are ordinarily appropriate for crimes, as in the instant case, that do not form part of the same transaction or series of transactions. Apparently because defendant was a first-time felony offender, 12 the district court, after considering the sentences imposed *585 for the | ¡forcible rape conviction and the simple rape conviction, believed that the imposition of concurrent rather than consecutive sentences was proper. 13

The crime Of simple rape presupposes that the defendant has taken advantage of the victim’s abnormal state of mind induced by. intoxication or any other cause. See La. R.S. 14:43(A). 14 That a defendant may have taken advantage of an |inunconscious .or sleeping victim. alone' does not place him among the most blameworthy, of offenders- committing the crime of simple rape. 15 Nevertheless, the evidence related to the similar sexual assaults *586 in this case shows that this defendant had engaged in a pattern of preying on young, incapacitated women, a factor the district court was free to consider in rendering the sentences in this case. Considering defendant’s 2006 rape of J.H. in the context- of his behavior over an extended period of time, rather than in isolation, we are unable to find that the district court manifestly abused its broad sentencing discretion by imposing the maximum term of imprisonment for the rape of J.H., particularly since the district court would have been justified in ordering consecutive sentences in this case, thus, extending the period for parole ineligibility. 16 Under the facts of this particular case, the reduction in sentencing exposure that defendant received by the district court’s decision to order the sentences to run concurrently supports the constitutionality of defendant’s simple rape sentence.

JyDECREE

Finding no manifest abuse of the district court’s broad sentencing discretion in this case, we reverse those portions of the appellate court decision that (1) vacated the simple rape sentence and (2) remanded the matter to the district court for resentenc-ing. The district court’s simple rape sentence is reinstated, and the matter is remanded for execution of the sentence.

REVERSED IN PART; SIMPLE RAPE SENTENCE REINSTATED; REMANDED FOR EXECUTION OF SENTENCE.