State of Louisiana v. Louis Rutan

Judgment rendered November 20, 2019.
Application for rehearing may be filed
within the delay allowed by Art. 992,
La. C. Cr. P.

No. 53,005-KA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

STATE OF LOUISIANA Appellee

versus

LOUIS WAYNE RUTAN Appellant

*****

Appealed from the
Forty-Second Judicial District Court for the
Parish of DeSoto, Louisiana
Trial Court No. 17CR28942

Honorable Charles Blaylock Adams, Judge

*****

LOUISIANA APPELLATE PROJECT Counsel for Appellant
By: Chad M. Ikerd

LOUIS WAYNE RUTAN Pro Se

GARY V. EVANS Counsel for Appellee
District Attorney

KENNETH P. HAINES
HUGO A. HOLLAND, JR.
Assistant District Attorneys

*****

Before GARRETT, STONE, and McCALLUM, JJ.

STONE, J.

The defendant, Louis Rutan (“Rutan”), pled guilty to molestation of a

juvenile, in violation of La. R.S. 14:81.2(A)(1) and (D)(1). Rutan was

sentenced to 75 years at hard labor without benefit of parole, probation, or

suspension of sentence, to run consecutively with any other sentence. No

motion to reconsider sentence was filed. Rutan now appeals. For the

reasons stated herein, Rutan’s conviction and sentence of 75 years are

affirmed. However, the parole restriction thereon is vacated, even though it

does not render the sentence excessive. We remand with instructions for the

trial court to reconsider the parole restriction and to comply with the sex

offender notification law.

FACTS

On November 8, 2017, Rutan was charged by bill of information with

one count of molestation of a juvenile under the age of thirteen. On January

14, 2019, Rutan entered a plea of guilty as charged of molestation of a

juvenile under the age of thirteen.

The factual basis for the guilty plea was that between May and August

of 2017, Rutan committed lewd and lascivious acts upon the person of his

biological daughter, A.B. Rutan had genital contact with A.B., oral to

genital contact with A.B., and oral to anal contact with A.B. Specifically,

Rutan would rub his genitals upon the genitals of A.B, in addition to making

A.B. touch his genitals with her hands. At the time of the offense, A.B. was

approximately 6 years of age, and Rutan was approximately 38 years old.

During the investigation, the Desoto Parish Sheriff’s Office cut off the

mattress top of A.B.’s bed. It was found to contain Rutan’s skin cells and

sperm.

There was no agreement regarding sentence. The trial court ordered a

presentence investigation, and scheduled a sentencing hearing for March 13,

2019. During the sentencing hearing, Dianna Green made a statement on

behalf of the victim and her family. Ms. Green is the victim’s maternal aunt,

and she acted as the spokesperson for the family. Ms. Green read into the

record a letter that she wrote, and a letter written by the victim’s mother. The

trial court also reviewed the presentence investigation report and took

particular notice of the fact that Rutan was a fourth felony offender with a

history of violence. The trial court sentenced Rutan to 75 years of

incarceration at hard labor, without parole, to run consecutively with any

other sentence he may be serving.

DISCUSSION

On appeal, Rutan urges two assignments of error: (1) his sentence is

constitutionally excessive; and (2) the trial court improperly interpreted the

law as it relates to his parole eligibility. He also raises an ineffective

assistance of counsel claim based on the fact that his trial counsel did not file

a motion to reconsider sentence.

Excessive sentence

In support of this assignment, Rutan contends that he received no

benefit of a reduced charge because he pled guilty as charged by the

prosecution. Rutan further argues that a 75-year sentence is the equivalent

of a life sentence for him. Additionally, Rutan points out that by his

admission of guilt, he spared the victim and her family the ordeal of a trial.

The state argues that the sentence is constitutionally valid based on

the following facts. The sentence is well below the statutory maximum for

molestation of a juvenile. Rutan was an authority figure over A.B., as he was
2

her father. Rutan had been arrested numerous times, many of which involved

family violence. The state argues that Rutan is a fourth-felony offender and

that his adjudication as such would require an actual life sentence. Rutan

was on probation for felony domestic abuse battery at the time he committed

this offense.

Appellate courts apply a two-pronged test when reviewing a sentence

for excessiveness: (1) whether the trial court adequately considered the

guidelines established in La. C. Cr. P. art. 894.1; and (2) whether the

sentence is constitutionally excessive. State v. Gardner, 46,688 (La. App. 2

Cir. 11/2/11), 77 So. 3d 1052.

As previously stated, we must first determine whether the record

shows that the trial court took cognizance of the criteria set forth in La.

C.Cr.P. art. 894.1. The trial judge is not required to list every aggravating or

mitigating circumstance so long as the record reflects that he adequately

considered the guidelines of the article. State v. Smith, 433 So. 2d 688 (La.

1983); State v. DeBerry, 50,501 (La. App. 2 Cir. 4/13/16), 194 So. 3d 657,

writ denied, 16-0959 (La. 5/1/17), 219 So. 3d 332. Articulation of the

factual basis for a sentence is the goal of La. C.Cr.P. art. 894.1, not rigid or

mechanical compliance with its provisions. Where the record clearly shows

an adequate factual basis for the sentence imposed, remand is unnecessary

even where there has not been full compliance with La. C.Cr.P. art. 894.1.

State v. Lanclos, 419 So. 2d 475 (La. 1982); State v. DeBerry, supra.

The La. C.Cr.P. art. 894.1 factors to be considered include the

defendant’s personal history (age, family ties, marital status, health,

employment record), prior criminal record, the seriousness of the offense,

and the likelihood of rehabilitation. State v. Jones, 398 So. 2d 1049 (La.
3

1981); State v. DeBerry, supra. There is no requirement that any specific

factor be given any particular weight at sentencing. State v. DeBerry, supra;

State v. Shumaker, 41,547 (La. App. 2 Cir. 12/13/06), 945 So. 2d 277, writ

denied, 07-0144 (La. 9/28/07), 964 So. 2d 351.

The trial judge is given wide discretion in the imposition of sentences

within the statutory limits, and the sentence imposed should not be set aside

as excessive in the absence of a manifest abuse of his discretion. State v.

Williams, 03-3514 (La. 12/13/04), 893 So. 2d 7; State v. Diaz, 46,750 (La.

App. 2 Cir. 12/14/11), 81 So. 3d 228. 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. Williams, supra; State

v. Free, 46,894 (La. App. 2 Cir. 1/25/12), 86 So. 3d 29.

Second, this court must determine whether the sentence is

constitutionally excessive. A sentence can be constitutionally excessive,

even when it falls within statutory guidelines if: (1) the punishment is so

grossly disproportionate to the severity of the crime that, when viewed in

light of the harm done to society, it shocks the sense of justice; or (2) it

serves no purpose other than to needlessly inflict pain and suffering. State v.

Dorthey, 623 So. 2d 1276 (La. 1993); State v. Bonanno, 384 So. 2d 355 (La.

1980); State v. Weaver, 01-0467 (La. 1/15/02), 805 So. 2d 166; State v.

DeBerry, supra.

In this case, the applicable sentencing range is set forth in the 2017

version of La. R.S. 14:81.2(D)(1). It provides that the punishment for

molestation of a juvenile victim under the age of 13 is imprisonment “at hard

labor for not less than 25 years nor more than 99 years. At least 25 years of

4

the sentence imposed shall be served without benefit of probation, parole, or

suspension of sentence.”

The trial court did not abuse its discretion in sentencing Rutan to 75

years at hard labor. During Rutan’s sentencing hearing, the trial court noted

its review of the presentence investigation report and Rutan’s extensive,

violent criminal history, and his status as a fourth-felony offender.

Additionally, the record reflects applicability of several aggravating factors

not mentioned explicitly by the trial judge. Rutan manifested deliberate

cruelty to his 6-year old daughter by sexually molesting her. He used his

position as her father, and an authority figure in her household, to facilitate

his molestation of A.B. Rutan knew that his daughter, a 6-year old, was

particularly vulnerable and incapable of resistance due to her age. Rutan’s

crime will scar his daughter for life; already, she has been experiencing

emotional, mental and behavioral problems, in addition to undergoing

counseling, as a result of the crime. An adequate factual basis for the

sentence exists on the record.

Considering the fact that Rutan molested his own 6-year old daughter,

his 75-year sentence is not constitutionally excessive. Though Rutan’s

sentence likely amounts to a life sentence, due to his age, the sentence does

not shock the sense of justice, nor is it grossly disproportionate to the

severity of the offense. This assignment of error is without merit.

Parole eligibility restriction

Rutan correctly points out that the trial court erroneously believed it

was statutorily required to impose a parole restriction for the entirety of the

sentence. The following exchange during his sentencing hearing supports

Rutan’s argument.
5

THE COURT: Thirty-nine years of age. You stand before the
Court having pled guilty to the charge of molestation of a
juvenile. The range on that charge, given the category of
molestation of a juvenile, is twenty-five years at hard labor to
ninety-nine years. And that is without the benefit of probation,
parole or suspension of sentence. Is that your understanding of
the sentencing range, Mr. Rutan?

THE DEFENDANT: Yes, sir.

THE COURT: Is that the State’s understanding of the
sentencing range?

MR. HOLLAND: Yes, sir.

THE COURT: And it is the Court’s understanding that the
sentence, whatever the numerical amount of that sentence is, is
to be served without benefit of probation, parole or suspension
of sentence, correct?

The applicable provision of child molestation statute, La. R.S.

14:81.2(D)(1), only requires “at least” the first 25 years be served without

benefit of parole, probation or suspension of sentence. As shown by the

above excerpt from the transcript, the trial court incorrectly believed that it

was required to prohibit Rutan’s parole eligibility for the length of the entire

sentence. Because the trial court might not have prohibited parole eligibility

for the full 75-year sentence, had it properly read the statute, this case must

be remanded for reconsideration of the parole eligibility restriction.

Ineffective assistance of counsel

Rutan argues that his trial counsel was ineffective because he did not

file a motion to reconsider sentence, and in effect, that this omission

prejudiced him by waiving his right to review regarding: (1) whether the

trial court adequately articulated a factual basis for the sentence on the

record; and (2) whether the trial court was incorrect in its interpretation of

parole eligibility restriction.

6

This opinion disposes of both issues. As stated previously, the parole

eligibility restriction on Rutan’s sentence is vacated, and this case is

remanded for redetermination of the length of Rutan’s parole ineligibility in

accordance with this opinion. Second, the record adequately supports

Rutan’s sentence, even though the trial judge did not give an explanation of

his view of the applicability or inapplicability of each sentencing factor

under La. C.Cr.P. art. 894.1. In light of this opinion, Rutan’s trial counsel’s

failure to file a motion to reconsider sentence on the aforementioned grounds

caused Rutan no prejudice. Rutan is denied a hearing on the alleged

ineffectiveness of counsel, and is denied resentencing except as provided

herein regarding the parole eligibility restriction.

Notice of the sex offender notification and registration requirements as
required by La. R.S. 15:543.

The record reveals that the trial court did not comply with the

statutory sex offender notification requirements. Molestation of a juvenile is

a sex offense as defined by La. R.S. 15:541, and La. R.S. 15:542 provides

registration requirements for convicted sex offenders. Pursuant to La. R.S.

15:543(A), the trial court must, on the record, give a convicted sex offender

the prescribed notice of the sex offender registration requirements:

The court shall provide written notification to any person
convicted of a sex offense and a criminal offense against a
victim who is a minor of the registration requirements and the
notification requirements of this Chapter. For purposes of this
Subsection, the court shall use the form contained in R.S.
15:543.1 and shall provide a copy of the registration and
notification statutes to the offender. Such notice shall be
included on any guilty plea forms and judgment and sentence
forms provided to the defendant, and an entry shall be made in
the court minutes stating that the written notification was
provided to such offenders. If the offender is not sentenced to
incarceration, then the court shall notify the bureau of the
conviction of the offender.
7

The record does not reflect the trial court providing Rutan with the

prescribed written notice of his obligation to register as a sex offender.

Therefore, this matter must be remanded for the trial court to provide the

appropriate written notice to the defendant of the sex offender registration

requirements, and to confirm the written notification on the record. State v.

Barrett, 51,921 (La. App. 2 Cir. 4/11/18), 247 So. 3d 164, writ denied, 18-

0744 (La. 2/18/19), 265 So. 3d 770; State v. Williams, 49,249 (La. App. 2

Cir. 10/1/14), 149 So. 3d 462, writ denied, 14-2130 (La. 5/22/15), 173 So.

3d 1167; State v. Hough, 47,308 (La. App. 2 Cir. 8/1/12), 103 So. 3d 477,

writ denied, 12-1936 (La. 3/8/13), 109 So. 3d 357.

CONCLUSION

Rutan’s conviction and his sentence of 75 years at hard labor is

AFFIRMED. His sentence, though not excessive in any regard, is

VACATED as to the parole eligibility restriction, only, and is

REMANDED for the trial court to reconsider the restriction of parole

eligibility in light of this opinion. The trial court is also INSTRUCTED

to provide Rutan with written notice of the sex offender registration

requirements, and to document on the record that the notice was given.

8