State of Louisiana v. David W. Lupton, III

Judgment rendered September 10, 2025.
Application for rehearing may be filed
within the delay allowed by Art. 922,
La. C. Cr. P.

No. 56,375-KA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

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STATE OF LOUISIANA Appellee

versus

DAVID W. LUPTON, III Appellant

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Appealed from the
Twenty-Sixth Judicial District Court for the
Parish of Bossier, Louisiana
Trial Court No. 249,650B

Honorable Michael Owens Craig, Judge

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LOUISIANA APPELLATE PROJECT Counsel for Appellant
By: Christopher Albert Aberle

JOHN SCHUYLER MARVIN Counsel for Appellee
District Attorney

RICHARD RUSSELL RAY
C. CARTER LAWRENCE, JR.
Assistant District Attorneys

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Before PITMAN, ROBINSON, and HUNTER, JJ.

ROBINSON, J.

David W. Lupton, III (“Lupton”) was charged with computer-aided

solicitation of a minor on January 30, 2024, in violation of La. R.S. 14:81.3.

He pled guilty to attempted computer-aided solicitation of a minor on

August 7, 2024. As part of the same plea agreement, Lupton also pled guilty

to the charge of attempted possession of pornography involving juveniles in

a separate matter. A presentence investigation (“PSI”) was ordered.

Following a sentencing hearing on October 16, 2024, Lupton was sentenced

to five years with three years’ active probation for the charge of attempted

possession of pornography involving juveniles and five years at hard labor

for the charge of attempted computer-aided solicitation of a minor. He

objected in open court only to the sentence for attempted computer-aided

solicitation of a minor charge and filed a motion to reconsider sentence on

October 25, 2024, which was denied. He filed a notice of appeal on

November 19, 2024, which was granted.

For the reasons set forth below, we VACATE the sentence and

REMAND for resentencing.

FACTS AND PROCEDURAL HISTORY

According to the basic facts provided in connection with the plea

agreement, Lupton unlawfully produced, promoted, or advertised

pornography involving a juvenile with a date of birth of September 4, 2008,

being 15 years old at the time of the offense, during the time frame of

September 27, 2023, through December 6, 2023, when Lupton was 19 years

old. On November 9, 2023, the Bossier Parish Sheriff’s Office (“BPSO”)

received an Internet Crimes Against Children (“ICAC”) Task Force Cybertip

Report from the National Center for Missing and Exploited Children

(“NCMEC”) regarding pornographic content exchanged between Lupton

and the minor via Xbox Live Messaging. Lupton sent nude photographs of

himself to the minor, messages about having sexual intercourse with her, and

requested nude images of the minor. The minor also sent nude photographs

of herself to Lupton. An arrest warrant was issued, and Lupton’s phone and

iCloud account were ultimately searched, revealing additional messages

exchanged between him and the minor. Among the exchanges were another

nude photograph of the minor and several videos of herself nude engaging in

solo sexual behavior. In addition, a video was located in Lupton’s iCloud

account of an adult female having sexual intercourse with a dog. There is no

indication in the record that Lupton had any involvement with the video

other than his possession thereof.

Lupton was first charged with one count of pornography involving

juveniles in violation of La. R.S. 14:81.1, one count of computer-aided

solicitation of a minor in violation of La. R.S. 14:81.3, and one count of

indecent behavior with juveniles in violation of La. R.S. 14:81. As the

investigation progressed, he was later charged with an additional four counts

of pornography involving juveniles in violation of La. R.S. 14:81.1 and one

count of sexual abuse of an animal in violation of La. R.S. 14:89.3.

Lupton pled guilty to the amended charges of one count of attempted

computer-aided solicitation of a minor and one count of attempted

possession of pornography involving juveniles, and the remaining charges

were dismissed. During the plea hearing, the trial court did not specifically

inform Lupton of the sentencing ranges; rather, the court confirmed with

Lupton’s counsel that those ranges had been discussed with Lupton. A PSI

was ordered by the court following acceptance of the plea agreement.
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Lupton was ultimately sentenced to five years with three years’ active

probation for the charge of attempted possession of pornography involving

juveniles and five years at hard labor for the charge of attempted computer-

aided solicitation of a minor. He objected in open court only to the sentence

for attempted computer-aided solicitation of a minor charge and filed a

motion to reconsider sentence on October 25, 2024, which was denied. He

filed a notice of appeal on November 19, 2024, for only the sentence

imposed for the charge of attempted computer-aided solicitation of a minor.

DISCUSSION

Lupton raises the issue in his brief that the trial court used an incorrect

sentencing range for the charge of attempted computer-aided solicitation of a

minor. The court indicated that the range for computer-aided solicitation of

a minor was 5 to 15 years, thus 2 ½ to 7 ½ years for attempt. It is

uncontested by the parties that the correct sentencing range for computer-

aided solicitation of a minor is 5 to 10 years, per La. R.S. 14:81.3; therefore,

the attempt charge would be a range of 2 ½ to 5 years, per La.

14:81.3B(1)(a). As a result, Lupton received a maximum sentence for

attempted computer-aided solicitation of a minor.

Lupton made an oral objection during the sentencing hearing to the 5-

year sentence for the charge and filed a timely motion to reconsider

sentence; however, he did not specifically refer to the grounds for objection

at either juncture. It was not until Lupton’s brief that the issue of the

incorrect sentencing range was specifically raised.

La. C. Cr. P. art. 920 provides for the scope of appellate review:

Only the following matters and no others shall be considered on
appeal: (1) An error designated in the assignment of errors; and
(2) An error that is discoverable by a mere inspection of the
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pleadings and proceedings and without inspection of the
evidence.

In addition, La. C. Cr. P. art. 881.1 states:

Failure to make or file a motion to reconsider sentence or include
a specific ground upon which a motion to reconsider sentence
may be based, including a claim of excessiveness, shall preclude
the state or the defendant from raising an objection to the
sentence or from urging any ground not raised in the motion on
appeal or review.

Although Lupton did not specifically designate the sentencing error as one

of the grounds in his motion to reconsider sentence, it is nevertheless subject

to error patent review.

Errors that are not prejudicial to the defendant are not considered

reversible error patent, while those errors that are prejudicial to the

defendant would be reversible patent error, the same as “plain error” under

federal law. State v. Price, 05-2514 (La. App. 1 Cir. 12/28/06), 952 So. 2d

112, writ denied, 07-0130 (La. 2/22/08), 976 So. 2d 1277, citing State v.

Jackson, 04-2863 (La. 11/29/05), 916 So. 2d 1015, and State v. Jones, 05-

0226 (La. 2/22/06), 922 So. 2d 508.

This Court in State v. Smith, 54,510 (La. App. 2 Cir. 11/8/23), 374 So.

3d 1035, 1048, writ denied, 24-00189 (La. 10/8/24), 394 So. 3d 267, noted

that “the misstatement of the sentencing range does not constitute error

patent,” citing State v. Martin, 52,674 (La. App. 2 Cir. 5/22/19), 273 So. 3d

578. The trial court had incorrectly relied on the multiple offender sentence

at the time of sentencing, which was 16 to 100 years, rather than the time of

the offense, which was 25 to 100 years. There was no discussion regarding

the trial court’s reasoning, only that the sentence was still in the correct

range.

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This Court in Martin, supra, actually held that a misstatement of

sentencing range is an error patent but considered harmless error because it

is within range. The sentencing error in Martin was virtually identical to

that in Smith. The trial court incorrectly stated that the sentencing range for

a habitual offender convicted of attempted second degree murder was 16

years and 8 months to 100 years at hard labor, but the correct range was 25

to 100 years. This court found the error patent to be harmless because the

sentence fell within the proper range. There was no further explanation

concerning the finding other than some discussion regarding the trial court’s

sentencing factors and indications that the sentence was not excessive.

Both the Smith and Martin opinions discuss whether the trial court’s

application of an incorrect sentencing range is considered an error patent but

found the error to be harmless simply due to the sentence still falling within

the correct range. Notably, in both cases, the correct range had a higher

minimum sentence, which could have increased the sentence had that

correct range been applied. Although not specifically stated, it does not

appear that the trial courts in either case intended to impose lenient

sentences.

This Court also affirmed the lower courts’ sentences when an

incorrect sentencing range was applied in the cases State v. Davis, 48,512

(La. App. 2 Cir. 11/20/13), 128 So. 3d 1230, and State v. Preston, 47,273

(La. App. 2 Cir. 8/8/12), 103 So. 3d 525. In Davis, the defendant was

convicted of distribution of cocaine and sentenced to 20 years at hard labor

and appealed his sentence based on the trial court’s application of an

incorrect sentencing range. The court had incorrectly stated that the

minimum sentence for the charge was 10 years, when the correct range was
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2 to 30 years, with the first 2 years without benefits. This Court noted that,

although the trial court had not discussed the factors of La. C. Cr. P. art.

894.1 in detail, all but one mitigating factor could have been ignored without

manifest error. The Court reasoned that the incorrect range was harmless

error because the trial court did not manifest any intention to give a sentence

near the statutory minimum.

In Preston, supra, the defendant, the boyfriend of the victim’s aunt,

was convicted of attempted sexual battery of a 14-year-old girl and was

sentenced to 7 years after being adjudicated a third-felony habitual offender.

The defendant claimed that the trial court erred in his sentence due to an

incorrect sentencing range. This Court noted that, although the trial court

incorrectly stated that the defendant’s sentencing range was 6 to 20 years

when it was actually 3.33 to 10 years, “nothing in this record convinces us

that the trial court intended to impose a lenient sentence for this defendant.”

Id. at 535.

Regardless of whether appellate review resulted from an assigned

error or error patent review, the consistent theme in Smith, Martin, Davis,

and Preston, was whether the error resulted in prejudice to the defendant. In

all those cases, there was either no prejudice to the defendant because the

correct range would have subjected him to an increased sentence, and/or the

trial court manifested no intention to impose a more lenient sentence and the

outcome would not have changed had the incorrect range been applied.

There is an otherwise significant body of law supporting that a

sentence founded on an incorrect view of the law should be set aside. State

v. Spruell, 403 So. 2d 63 (La. 1981); State v. Hopkins, 367 So. 2d 346 (La.

1979); State v. Culp, 44,270 (La. App. 2 Cir. 7/15/09), 17 So. 3d 429; State
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v. Mims, 550 So. 2d 760 (La. App. 2 Cir. 1989); State v. Butler, 93-1317

(La. App. 1 Cir. 10/7/94), 646 So. 2d 925, writ denied, 95-0420 (La.

6/16/95), 655 So. 2d 340; State v. Dewhirst, 527 So. 2d 475 (La. App. 5 Cir.

1988), writ denied, 535 So. 2d 740 (La. 1989).

In Spruell, supra, the defendant pled guilty to possession of marijuana

with intent to distribute and was sentenced to 5 years at hard labor. The trial

court cited the statute pertaining to distribution of Schedule II narcotics

rather than a Schedule I narcotic such as marijuana and believed it was

imposing a minimum sentence. However, the correct sentencing range for

the charge was 0 to 10 years. The Louisiana Supreme Court vacated the trial

court’s sentence and remanded for resentencing, explaining:

Though the sentence actually imposed fell within the statutorily-
prescribed range, the danger that such a mistake of law might
have affected the trial court’s attempt at leniency appears
significant. For this reason, a sentence founded on an incorrect
view of the law should usually be set aside.

The trial court’s mistaken view of the statutorily authorized
penalty also resulted in its unknowing imposition of a relatively
stiff sentence rather than a minimal one. The imposition of such
an apparently severe sentence requires record justification by the
trial court, whose responsibility it is to ensure that the sentence
has a sufficient informational basis to protect the accused’s right
of review on appeal. Such factual justification is especially
crucial where, as here, the accused’s guilty plea leaves no other
evidence of record which clearly illumines the trial court’s
sentencing choice.

Id. at 64-65.

In Mims, supra, the defendant was convicted of distribution of

marijuana and possession of marijuana with intent to distribute, with both

convictions entered on the same day. The trial court imposed consecutive

sentences of 10 years for each count. It reasoned that, as a habitual offender,

the defendant could be sentenced to maximum consecutive periods of

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incarceration of 20 years at hard labor for each count. This Court vacated

the sentences and remanded for resentencing due to the lower court’s

incorrect application of the habitual offender enhancement, as a defendant

cannot be subject to the enhancement for convictions entered the same day.

This Court reasoned:

Having reviewed all the circumstances of this case, we are unable
to determine that the court’s error did not affect its sentencing
decision or operate to the prejudice of the defendant. We must
presume that it did. Therefore we must vacate the sentences and
remand the case to the sentencing court.

Id. at 764.

In Culp, supra, the defendant was convicted of distribution of

methamphetamine. The penalty for the offense was imprisonment at hard

labor for not less than 2 years nor more than 30 years and a possible fine of

not more than $50,000, with no requirement that any portion of the sentence

be served without benefits. The district court sentenced the defendant to 15

years at hard labor without benefit of probation or suspension of sentence.

Because the district court incorrectly believed that the statute required the

defendant to serve at least 5 years of his sentence without benefit of

probation or suspension of sentence, this Court vacated the sentence and

remanded for resentencing.

In the case at hand, had the trial court’s sentencing range of 2 ½ to 7

½ years been correct, the 5-year sentence imposed would have been

midrange. Instead, Lupton received a maximum sentence based on the

correct range of 2 ½ to 5 years. Before stating the sentences for both

charges of the plea agreement the trial court discussed the following factors

applicable to the sentences for both charges of the plea agreement: The

judicial system’s role as gatekeepers to prevent/deter child predators from
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enticing minors to do something they normally would not when the

defendant is in the position of having more age and experience; Lupton’s

lack of criminal history, which was one of the biggest factors leading to the

plea deal that resulted in charges being dropped that could have exposed him

to a greater sentencing range, and which was also considered as a mitigating

factor pursuant to La. C. Cr. P. art. 894.1; the impact of sentencing on the

defendant’s life; and deterring the risk to the public of a repeated offense.

When referring specifically to Lupton’s 5-year sentence at hard labor, the

court noted that: Anything less would deprecate the seriousness of the

offense and the seriousness of the risk to the public; consideration was given

that this was Lupton’s first offense; with help, Lupton could get control of

his issues; and although there was a split in circuits as to whether an attempt

charge meant “zero to half the maximum,” or “half the minimum (2 ½ years)

to half the maximum” (the maximum incorrectly stated as 7 ½ years), it did

not change what the ultimate sentence would be (5 years).

It does not appear that the court intended to impose the minimum

sentence based on its discussion of the sentencing reduction for an attempt

charge and that he had received the benefit of other charges being dismissed

by the State. On the other hand, it did not give any reasons as to why it

would have imposed a maximum sentence, presumably, because it did not

believe it was doing so. Rather, the court specifically referred to the

mitigating factors of the charges being Lupton’s first offense and that it

believed rehabilitation was possible, which would seem to indicate that there

was no intent to impose a maximum sentence.

The trial court’s mistaken view of the statutorily authorized penalty

resulted in its unknowing imposition of a maximum sentence, for which no
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justification was provided in its reasoning. Such factual justification is

especially crucial where, as here, the accused’s guilty plea leaves no other

evidence of record which clearly illumines the trial court’s sentencing

choice. As in Spruell, supra, though the sentence actually imposed fell

within the statutorily prescribed range, the danger that such a mistake of law

might have affected the trial court’s decision appears significant. The trial

court’s mistaken belief of law regarding the sentencing range may have

influenced the trial court’s sentence to the prejudice of the defendant.

Accordingly, we hereby VACATE and REMAND FOR RESENTENCING.

Excessive Sentence

Lupton argues that his sentence for computer-aided solicitation of a

minor is constitutionally excessive for a young first offender and is

excessive because the trial court failed to give sufficient weight to the

mitigating factors pursuant to La. C. Cr. P. art. 894.1.

Based on our finding that the trial court acted under a mistake of law

concerning the sentencing range for the charge of attempted computer-aided

solicitation of a minor, Lupton’s assignment of error concerning

excessiveness of sentence is pretermitted.

CONCLUSION

For the reasons stated hereinabove, Lupton’s sentence is hereby

VACATED and REMANDED FOR RESENTENCING.

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