STATE OF LOUISIANA v. JOSHUA JAMES SIMON (2025)

The defendant, Joshua James Simon, was charged by amended bill of information with simple kidnapping (count one), in violation of La. R.S. 14:45; aggravated second degree battery (count three), in violation of La. R.S. 14:34.7; and domestic abuse battery by burning (count four), in violation of La. R.S. 14:35.3(M).¹ He pled not guilty and, following a jury trial, was found guilty as charged. The trial court sentenced the defendant to serve five years at hard labor on count one, fifteen years at hard labor on count three, and three years at hard labor on count four with all sentences to be served consecutively and without the benefit of parole, probation, or suspension of sentence. On appeal, this court affirmed the defendant's convictions, affirmed the sentence on count four, vacated the sentences on counts one and three, and remanded for resentencing.² State v. Simon, 2022-0726 (La. App. 1st Cir. 12/22/22), 360 So.3d 528, 532, writ denied, 2023-00148 (La. 12/5/23), 373 So.3d 714.

On remand, the trial court resentenced the defendant to serve five years at hard labor on count one and fifteen years at hard labor on count three, to be served consecutively. The defendant again appealed, alleging the trial court erred: (1) in sentencing him without either appointing counsel to represent him or obtaining a valid waiver of his right to counsel and (2) in imposing excessive sentences, and (3) in denying his motion to reconsider sentence. State v. Simon, 2023-0643 (La. App. 1st Cir. 12/27/23), 3 80 So.3d 674, 676. This court found merit to the defendant's first assignment of error and, thus, vacated the sentences on counts one and three and remanded for resentencing. Id. at 678-79.

At his second resentencing, the defendant was sentenced to five years at hard labor on count one and fifteen years at hard labor on count three, and the trial court ordered the sentences imposed on counts one, three, and four be served consecutively. The trial court subsequently denied the defendant's pro se and counseled motions to reconsider sentence. The defendant now appeals, assigning as error the trial court's imposition of consecutive and excessive sentences, and denial of his motion to reconsider sentence. For the following reasons, we affirm the sentences on counts one and three.

FACTS

On October 21, 2018, C.S., the victim of counts three and four, went to the defendant's house to return his belongings, as they had ended an intimate relationship the previous night. When C.S. refused to enter the house, the defendant followed C.S. to her car, took M.B.,³ C.S.’s seven-month-old daughter and the victim of count one, from the car and brought M.B. into the house without C.S.’s permission. When C.S. entered the house to retrieve M.B., the defendant brutally attacked her for hours slapping, pushing, choking, dragging, punching, repeatedly striking her with two leather belts, and burning her with a cigarette. Eventually, C.S. was able to escape with M.B., and C.S. reported the attack to a Lafourche Parish Sheriff's Office deputy. The defendant was subsequently arrested. C.S.’s injuries consisted of a black eye, busted lip, bruised forehead, scratches on her face, abrasions on her cheeks, bruises and welts on her legs and back, scars on her neck, and cigarette burns on her lower back.

ASSIGNMENTS OF ERROR

On appeal, the defendant raises three assignments of error: (1) the trial court erred in imposing consecutive sentences; (2) the statutory maximum sentences are excessive; and (3) the trial court erred in denying the motions to reconsider sentence. As these assignments of error all generally contend the trial court imposed excessive sentences, we will address them together.

Both the United States and Louisiana Constitutions prohibit the imposition of cruel or excessive punishment. U.S. Const. amend. VIII; La. Const. art. I, § 20. Although a sentence falls within statutory limits, it may be excessive. See State v. Sepulvado, 367 So.2d 762, 767 (La. 1979). A sentence is unconstitutionally excessive if it is grossly disproportionate to the severity of the offense or constitutes nothing more than a needless infliction of pain and suffering. A sentence is grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks one's sense of justice. State v. Livous, 2018-0016 (La. App. 1st Cir. 9/24/18), 259 So.3d 1036, 1044, writ denied, 2018-1788 (La. 4/15/19), 267 So.3d 1130. The trial court has great discretion in imposing a sentence within the statutory limits, and such a sentence will not be set aside as excessive in the absence of an abuse of discretion. State v. Scott, 2017-0209 (La. App. 1st Cir. 9/15/17), 228 So.3d 207, 211, writ denied, 2017-1743 (La. 8/31/18), 251 So.3d 410.

Louisiana Code of Criminal Procedure article 894.1 sets forth the factors for the trial court to consider when imposing sentence. While the entire checklist of La. Code Crim. P. art. 894.1 need not be recited, the record must reflect the trial court adequately considered the criteria. Scott, 228 So.3d at 211. The articulation of the factual basis for a sentence is the goal of La. Code Crim. P. art. 894.1, not rigid or mechanical compliance with its provisions. The trial court should review the defendant's personal history, his prior criminal record, his family dependents, the seriousness of the offense, the likelihood that he will commit another crime, and his potential for rehabilitation through correctional services other than confinement. On appellate review of a sentence, the relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. State v. Baker, 2023-0815 (La. App. 1st Cir. 4/19/24), 389 So.3d 839, 843.

The factors guiding the decision of the trial court are necessary for an appellate court to adequately review a sentence for excessiveness and, therefore, should be in the record. State v. Naquin, 2024-0832 (La. App. 1st Cir. 7/11/25), 2025 WL 1913567, *2. Otherwise, a sentence may appear to be arbitrary or excessive and not individualized to the particular defendant. Naquin, 2025 WL 1913567 at *2.

Regarding consecutive and concurrent sentences, La. Code Crim. P. art. 883 provides, in pertinent part:

If the defendant is convicted of two or more offenses based on the same act or transaction, or constituting 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. Other sentences of imprisonment shall be served consecutively unless the court expressly directs that some or all of them be served concurrently.

Louisiana law favors concurrent sentences for crimes committed as part of the same transaction or series of transactions; however, the trial court retains the discretion to impose consecutive sentences on the basis of other factors, including past criminality, violence in the charged crimes, or the risk the defendant poses to the general safety of the community. State v. Dantin, 2019-0407 (La. App. 1st Cir. 12/17/19), 291 So.3d 1096, 1105. Even if convictions arise from a single course of conduct, consecutive sentences are not necessarily excessive, and the trial court must take other facts into consideration in making this determination. See State v. Ortego, 3 82 So.2d 921, 923 (La.), cert. denied, 449 U.S. 848, 101 S.Ct. 13 5, 66 L.Ed.2d 58 (1980); State v. Kitchen, 2022-1274 (La. App. 1st Cir. 4/14/23), 363 So.3d 1254, 1259, writ denied, 2023-00589 (La. 12/5/23), 373 So.3d 716. 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, (7) multiplicity of acts, and (8) the defendant's lack of remorse. Kitchen, 363 So.3d at 1259-60.

The penalty for simple kidnapping (count one) is a fine of not more than five thousand dollars, imprisonment with or without hard labor for not more than five years, or both. La. R.S. 14:45(B). Further, a conviction for aggravated second degree battery (count three) carries a fine of not more than ten thousand dollars and/or imprisonment, with or without hard labor, for not more than fifteen years, or both. La. R.S. 14:34.7(C).⁴ The defendant was sentenced to five years at hard labor on count one and fifteen years at hard labor on count three, and the trial court ordered the sentences be served consecutively. Thus, the defendant received the maximum term of imprisonment for each conviction.⁵ Maximum sentences may be imposed only for the most serious offenses and the worst offenders, or when the offender poses an unusual risk to the public safety in light of his past repeated criminality. State v. Parker, 2012-1550 (La. App. 1st Cir. 4/26/13), 116 So.3d 744, 754, writ denied, 2013-1200 (La. 11/22/13), 126 So.3d 478.

At the resentencing hearing, the State requested the trial court consider imposing the maximum sentence on each count and imposing the sentences consecutively due to the heinous nature of the offenses. The defense argued the imposition of consecutive sentences would result in an excessive aggregate sentence and asked the court to impose sentences less than the maximum allowed by the statutes.

Prior to imposing the sentences, the trial court found there was an undue risk during the period of a suspended sentence or probation that the defendant would commit another crime; that the defendant needed correctional treatment or a custodial environment that could be provided most effectively by his commitment to an institution; and that a lesser sentence would deprecate the seriousness of the defendant's crimes. The trial court further found the defendant's conduct during the commission of the crimes manifested deliberate cruelty to the victims. The trial court noted the defendant's actions “were so cruel and so brutal” that the adult victim still had injuries on her body at the time of trial, which was several years after the incident occurred. Additionally, the trial court found the defendant used actual violence in the commission of the offense and used violence, force, or threats with the intent to influence the outcome of the criminal proceedings, noting there were allegations the defendant made phone calls to the victim in an attempt to get her to drop the charges. The trial court opined the simple kidnapping was the crudest type of crime because the defendant lured C.S. into his house by taking the infant and using the infant to exercise control over C.S., showing a lack of regard for the infant's safety. Further, the trial court found the defendant showed deliberate cruelty when committing the aggravated second degree battery, given that the defendant beat C.S. with his fists and belts over the course of several hours. The trial court then found the imposition of consecutive sentences was warranted, reasoning:

The defendant does have a criminal history of domestic abuse. Again, these injuries are so grave and so horrendous, so vicious that the Court finds that the defendant does constitute an unusual risk of danger to the public and is not likely to be rehabilitated. Consecutive ․ sentences are appropriate when a defendant is convicted of a distinct [offense]. In other words, those affecting different victims at different times and at different locations.

Here, the three charges, the simple [kidnapping] involved the victim who is the child, [M.B.] That happened outside of the home. The aggravated second degree battery happened with a belt to [C.S.] And the domestic abuse battery by burning happened sometime later on when the defendant burned [C.S.] with a cigarette. So, the Court finds that․ these are separate acts happening at different times. And, obviously, the [kidnapping] involved a different victim.

The actions against [C.S.] happened over the course of hours. And, again, the Court finds there was deliberate cruelty used by the defendant to take a newborn as a device to manipulate and control the child's mother into coming into the home. The Court will note that the relevant criminal history shows a March 2012 arrest for domestic abuse battery, October 2013 arrest for domestic abuse battery, December 2017 arrest for domestic abuse battery and simple criminal damage to property, and a February 2018 arrest for violation of a protective order and telephone harassment.

So, for the reasons that I have stated and the factors that I have to consider, the Court will order that these sentences run consecutive for a total of 23 years at hard labor. Five years on the simple [kidnapping] and 15 years on the aggravated second degree battery. Those will run consecutive to each other and consecutive to the three-year sentence for domestic abuse battery by burning.

After a thorough review of the record, we find the trial court did not abuse its discretion in imposing the maximum sentence on each count and did not err in denying the defendant's motions to reconsider sentence. The trial court's reasons reflect the sentences were based in part on the long-lasting, heinous injuries inflicted by the defendant. Considering C.S.’s injuries and the lifelong physical and emotional scars, the sentences are not grossly out of proportion to the severity of the crimes and do not shock the sense of justice. A maximum sentence is generally reserved for the worst offenders and the worst offenses. The trial court's explanation of the sentences demonstrates the defendant is one of the worst offenders and the abuse inflicted is one of the worst offenses.

The defendant notes the trial court did not order a presentence investigation (“PSI”) to consider his criminal history before determining he was one of the worst offenders. Louisiana Code of Criminal Procedure article 875(A)(1) provides, in pertinent part: “If a defendant is convicted of a felony offense ․ the court may order the Department of Public Safety and Corrections, division of probation and parole, to make a presentence investigation.” Ordering a PSI is discretionary with the trial court; there is no mandate that a PSI be ordered. Such an investigation is an aid to the court and not a right of the accused. See State v. Rieckmann, 2014-1441 (La. App. 1st Cir. 9/18/15), 2015 WL 5515017, *16 (unpublished). We find the trial court did not abuse its discretion in failing to order a PSI.

We also find the trial court did not abuse its discretion in imposing consecutive, rather than concurrent, sentences. Even assuming the three offenses involved were close enough in temporal proximity to be considered to have arose from the “same act or transaction,” the trial court was not obligated to impose concurrent sentences. See State v. Milton, 2006-1623 (La. App. 1st Cir. 2/9/07), 2007 WL 437837, writ denied, 2007-0620 (La. 10/26/07), 966 So.2d 573. In its detailed reasons for sentencing, the trial court noted the gravity and viciousness of the defendant's actions, the defendant's need for rehabilitation, and the defendant's risk to public safety. The trial court found the defendant's offenses involved multiple victims and occurred over the course of several hours. Thus, the trial court considered the appropriate factors in imposing the sentences. Ortego, 382 So.2d at 923. Given the seriousness of the crimes, we find the sentences imposed were not grossly disproportionate to the severity of the offenses, and therefore, are not unconstitutionally excessive. See Kitchen, 363 So.3d at 1260. Accordingly, these assignments of error lack merit.

PATENT ERROR

Pursuant to La. Code Crim. P. art. 920(2), this court routinely conducts a review of all appeals for error discoverable by mere inspection of the pleadings and proceedings and without inspection of the evidence. State v. Anthony, 2023-0117 (La. App. 1st Cir. 11/3/23), 378 So.3d 766, 775, writ denied, 2024-00027 (La. 5/21/24), 3 85 So.3d 242. After a careful review of the record, we have found one patent error.

The transcript reflects that after the trial court imposed the defendant's sentences, it advised he had “two years from the date this conviction becomes final to apply for post conviction relief.” The prescriptive period for filing an application for post-conviction relief is two years after the judgment of convictions and sentences become final under the provisions of La. Code Crim. P. arts. 914 or 922. See La. Code Crim. P. art. 930.8(A); State v. LeBoeuf, 2006-0153 (La. App. 1st Cir. 9/15/06), 943 So.2d 1134, 1143, writ denied, 2006-2621 (La. 8/15/07), 961 So.2d 1158. Though the transcript states the trial court provided the defendant with a copy of La. Code Crim. P. art. 930.8 setting forth the post-conviction relief prescriptive period, the record does not contain a copy, if one was provided. Nevertheless, the trial court's failure to correctly advise the defendant of the prescriptive period has no bearing on the sentences and is not grounds to reverse the sentences or remand for resentencing.

Out of an abundance of caution and in the interest of judicial economy, we advise the defendant La. Code Crim. P. art. 930.8 generally provides that no application for post-conviction relief, including applications which seek an out-of-time appeal, shall be considered if filed more than two years after the judgment of convictions and sentences have become final under the provisions of La. Code Crim. P. arts. 914 or 922. State v. Charpentier, 2024-0089 (La. App. 1st Cir. 12/6/24), 2024 WL 5000492, *4 (unpublished).

Accordingly, we affirm the defendant's sentences on counts one and three.

SENTENCES ON COUNTS ONE AND THREE AFFIRMED.

FOOTNOTES

1.   The State entered a nolle prosequi on count two.

2.   The sentences on counts one and three were illegal insomuch as the respective statutes did not authorize the trial court to restrict the benefit of parole. See La. R.S. 14:45(B) and 14:34.7(C).

3.   Initials are used to protect the identity of the child victim and her mother. La. R.S. 46:1844(W); State v. Williams, 2024-0806 (La. App. 1st Cir. 4/11/25), 409 So.3d 1088, 1095 n.5; State v. Clark, 2012-1215 (La. App. 1st Cir. 3/22/13), 2013 WL 1189429, *1, n.1, writ denied, 2013-0850 (La. 11/8/13), 125 So.3d 442.

4.   Louisiana Revised Statutes 14:34.7(B) was amended by 2025 La. Acts No. 137 § 2, but the amendment does not affect the defendant's sentence.

5.   The trial court elected not to impose a fine on either count, however.

FIELDS, J.