WEIMER, Justice.
The 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.
Toby James Fruge was charged with the
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 fiancé. 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 car as he was being pursued on foot by the fiancé 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.
On 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
While examining the sentences for excessiveness, 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 defendant 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,
The 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., 13-1386
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.
The imposition of a sentence, even though within statutory limits, may violate a defendant's right, under the Louisiana Constitution,
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.
Here, 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 finding.
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, 594 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 957, 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 the [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.1984).
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),
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.Cr.P. 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,
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).
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 resentencing. The district court's simple rape sentence is reinstated, and the matter is remanded for execution of the sentence.
See 2001 La. Acts 403, § 2, effective June 15, 2001. Louisiana R.S. 15:529.1(A)(1) was enumerated as La. R.S. 15:529.1(A) and rewritten by 2010 La. Acts 911, § 1 and 973, § 2 to read:
The habitual offender statute does not create a separate offense or punish an individual for past crimes; rather the statute increases punishment on the basis of an individual's status as a repeat offender. The goal is to deter and punish recidivism by punishing more harshly those who commit the most crimes because of their continuing disregard for the law. State v. Johnson, 97-1906 (La.3/4/98), 709 So.2d 672, 677.
J.H. was not prevented from resisting the act by the use of force once she awoke and pushed defendant off her. However, J.H.'s resistance was too late to keep defendant from taking advantage of her while she was in alcohol aided, if not alcohol induced, sleeping condition on the couch. Because of her intoxicated state, defendant was able to, without resistance, take down J.H.'s pants and underwear and penetrate her in the commission of a simple rape before she regained full awareness of what was happening and responded.