State of Louisiana v. Robin Leblanc

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

07-654

STATE OF LOUISIANA

VERSUS

ROBIN LEBLANC

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT,
PARISH OF CALCASIEU, NO. 6130-03
HONORABLE G. MICHAEL CANADAY, DISTRICT JUDGE

**********

J. DAVID PAINTER
JUDGE

**********

Court composed of John D. Saunders, Oswald A. Decuir, and J. David Painter,
Judges.

AFFIRMED AS AMENDED,
WITH INSTRUCTIONS.

Honorable John F. DeRosier, District Attorney
Stephanie L. Cochran, Assistant District Attorney
Carla S. Sigler, Assistant District Attorney
1020 Ryan Street
Lake Charles, LA 70601
Counsel for State of Louisiana

Sherry Watters, Attorney at Law
Louisiana Appellate Project
P.O. Box 58769
New Orleans, LA 70158-8769
Counsel for Defendant-Appellant:
Robin LeBlanc

PAINTER, Judge.

Defendant, Robin LeBlanc, pled guilty to two counts of forcible rape and was

sentenced to serve twenty years at hard labor on each count, to run consecutively,

with the first two years of each sentence to be served without benefit of probation,

parole, or suspension of sentence. Further, five years of each sentence were

suspended, and Defendant was placed on five years supervised probation on each

count to run concurrently, subject to general and special conditions. Defendant now

appeals, asserting that his guilty plea was involuntary and that his sentences are

excessive. We find that Defendant waived review of all issues relating to the

voluntariness of his guilty plea, and, for the reasons that follow, we affirm

Defendant’s sentences. However, we amend the sentences to reflect that he is not

eligible for diminution of sentence pursuant to La.R.S. 15:537(A), and we further

instruct the trial court to note the amendment in the court minutes.

FACTUAL AND PROCEDURAL BACKGROUND

The following factual basis was provided by the State at the guilty plea

proceeding:

Between July and October of 2001, Mr. LeBlanc forcibly raped
two underage juvenile females, the first being related to him as his step-
daughter, the second being her friend.

On December 13, 2005, Defendant pled guilty to two counts of forcible rape,

in violation of La.R.S. 14:42.1. On March 17, 2006, Defendant was sentenced to

serve twenty years at hard labor on each count, to run consecutively, with the first two

years of each sentence to be served without benefit of probation, parole, or

suspension of sentence. Five years of each sentence were suspended, and Defendant

was placed on supervised probation subject to general and special conditions. In

State v. LeBlanc, an unpublished opinion bearing docket number 06-794 (La.App. 3

1

Cir. 12/6/06), Defendant’s sentences were vacated and set aside because the trial

court failed to set the specific amount of restitution owed, and the matter was

remanded to the trial court for resentencing.

On February 21, 2007, Defendant was resentenced to serve twenty years at hard

labor on each count, to run consecutively, with the first two years of each sentence

to be served without benefit of probation, parole, or suspension of sentence. Five

years of each sentence were suspended, and Defendant was placed on five years

supervised probation on each count, to run concurrently, subject to general and

special conditions. The State advised the trial court that no restitution was due in this

matter. Defendant’s motion to reconsider sentence was denied.

Defendant now appeals and contends that his guilty plea was involuntary

because notice of the requirements of the sex offender registration law was untimely

given and because consecutive twenty year sentences were imposed after the trial

court said the sentences would be in the five to twenty year range due to his first

offender status. Defendant also alleges his sentences are excessive. We find that

Defendant waived review of all issues relating to the voluntariness of his guilty plea

and affirm Defendant’s sentences. However, we amend the sentences to reflect that

he is not eligible for diminution of sentence pursuant to La.R.S. 15:537(A). We

further instruct the trial court to note the amendment in the court minutes.

DISCUSSION

Procedural Objection by the State

The State asserts that Defendant failed to file any formal assignments of error

into the present record or in LeBlanc, an unpublished opinion bearing docket number

06-794 (La.App. 3 Cir. 12/6/06). The State further asserts that La.Code Crim.P. art.

844 requires an appealing party to designate, in writing, the errors he will urge on

2

appeal. The State cites State v. Gadison, 441 So.2d 831 (La.App. 3 Cir. 1983),

wherein this court held that where a defendant filed no assignments of error into the

record but did file a brief assigning error, his case was subject to only patent error

review. See also State v. Melbert, 438 So.2d 1292 (La.App. 3 Cir. 1983). The State

asserts that in State v. Sam, 586 So.2d 699 (La.App. 3 Cir. 1991), this court held that

it would not arbitrarily refuse to consider an appellate contention of constitutional

dimension because of a deficiency in the appellate record.1

Louisiana Code of Criminal Procedure Article 844 provides, in pertinent part:

A. The party appealing shall file with the appellate court a written
designation of those errors which are to be urged on appeal and furnish
a copy to the trial judge and all counsel. This assignment of errors shall
be filed in accordance with the uniform rules of the appropriate appellate
court.

The first circuit discussed the evolution of La.Code Crim.P. art. 844 in State

v. Jackson, 98-4, pp. 3-6 (La.App. 1 Cir. 11/6/98), 724 So.2d 215, 217-19, writ

denied, 98-3056 (La. 4/1/99), 741 So.2d 1283 (footnotes omitted), as follows:

Article 920 of the Louisiana Code of Criminal Procedure provides
that the scope of appellate review extends only to errors designated in
the assignment of errors and error patent on the face of the record.
Therefore, some type of designation of error is required to consider
errors not patent on the face of the record. However, while defendant
herein did not file a formal assignment of errors, the extent to which a
defendant needs to separately designate errors outside the appellate brief
is unclear.

In State v. Galliano, 93-1101, p. 2 (La.App. 1 Cir. 6/24/94), 639
So.2d 440, 442, this court initially refused to consider six assignments
of error argued in brief but not contained in the formal assignment of
errors. Thereafter, in a brief per curiam, the Louisiana Supreme Court
remanded the appeal to this court for consideration of the merits of the
assignment of errors raised in brief for the first time, noting “[t]he court
of appeal may require relator to file supplemental assignments of error
in the district court to provide that court with the opportunity to

1
In Sam, this court remanded the case to the trial court for the purpose of extending the time
within which defendant’s appellate counsel could file written assignments of error in the trial court
for subsequent review by this court.

3

respond.” State v. Galliano, 94-2030, 94-2280 (La.1/6/95), 648 So.2d
911.

After the Galliano remand, several panels of this court concluded
that assignments of error raised in this court in the first instance should
be considered to the same extent the court considered errors formally
designated under Louisiana Code of Criminal Procedure article 844. See
State v. Galliano, 93-1101, p. 2 n. 1 (La.App. 1 Cir. 5/5/95), 655 So.2d
538, 540 n. 1 (which criticized the remand by the Louisiana Supreme
Court). See also State v. Barnett, 96-2050, p. 2 n. 2 (La.App. 1 Cir.
9/23/97), 700 So.2d 1005, 1007 n. 2; State v. Cousin, 96-2035, p. 2 n.
3 (La.App. 1 Cir. 9/23/97), 700 So.2d 1016, 1017 n. 3, writ denied,
97-2809 (3/13/98), 712 So.2d 875; State v. Johnson, 96-1834, p. 2 n. 4
(La.App. 1 Cir. 6/20/97), 697 So.2d 288, 289 n. 4.

In its earliest form, Article 844 required that a defendant seeking
appellate review file a formal bill of exceptions, signed by the trial
court, setting forth the circumstances of the alleged error and the
evidence on which it was based. Thereafter, the Legislature dispensed
with the need to file a formal bill of exceptions, replacing it with a
written assignment of errors. However, the trial court determined the
date by which the assignment of errors should be filed, and the
appealing party was required to furnish a copy of the assignment of
errors to the trial court to enable the court to file per curiam comments.

By Acts 1997, No. 642, the Louisiana Code of Criminal
Procedure article 844 was again rewritten. Comments to the 1997
amendment indicate the change was expressly for the purpose of
expediting the appellate process by allowing the clerk of the trial court
to lodge the record before preparation of the assignment of errors. Now,
the party appealing must file a written designation of errors with the
appellate court, “in accordance with the uniform rules of the appropriate
appellate court.” While the trial court (and all counsel) must still be
furnished with a copy of the specified errors, the lower court no longer
even determines the time frame for filing the errors, a dramatic change
from when that tribunal had to sign bills of exception before a party
could appeal.

Thus, we acknowledge that the procedures for filing the
assignment of errors are unclear. While Galliano has been interpreted
as requiring the appellate courts to consider the merits of assignments
of error raised for the first time in brief, the Louisiana Supreme Court
may have intended for the appellate court to order the assignment of
errors argued in the brief to be filed in the district court (although
presumably that filing would not be in conformity with the time delays
set by the trial court under Article 844). In any event, even prior to the
most recent amendment to Article 844, the time delays and necessity for
filing the formal assignment of errors became unclear.

4

Article 844 now requires the assignment of errors to be filed in
the appellate court “in accordance with the uniform rules of the
appropriate appellate court.” The Uniform Rules do not contain a
specific provision requiring a separate assignment of errors. Rather, the
only requirements for filing an assignment of errors, and the time delays
for the filing, are provided in the rules pertaining to the contents of the
record and the filing of briefs. See Uniform Rules--Courts of Appeal,
Rule 2-1.8, concerning the order of items to be included in the record;
and Rule 2-12.4, listing the items to be included in the appellant’s brief.
To the extent that Rule 2-1.8 requires the “assignments of error” to be
included in the record and Rule 2-12.4 requires “a specification or
assignment of alleged errors” to be designated in the brief, the Uniform
Rules as currently written provide a hazy procedure for designating error
in the appellate courts.

At this time, statutory provisions, the Uniform Rules, and
jurisprudential interpretations thereof are apparently in conflict
regarding the necessity of and procedure for filing and designating
assignment of errors.

Although the matter is less than clear, this court believes that the
filing of an assignment of errors in brief in compliance with Rule 2-12.4
satisfies the provisions of Article 844 which require that “[t]he party
appealing shall file with the appellate court a written designation of
those errors which are to be urged on appeal.”

We are further guided by Court of Appeal—Third Circuit, Internal Rule 15,

which provides that:

A written designation of the assignments of error to be urged on
appeal in a criminal case shall be filed with this court on or before the
date of filing of the appellant’s brief with this court. Accompanying this
designation shall be a certificate of service indicating a copy has been
forwarded to the trial court and all counsel of record.

Based on the first circuit’s ruling in Jackson and our own Internal Rule 15, we

find that the filing of assignments of error in brief to this court complies with the

mandates of article 844. Thus, the State’s procedural objection lacks merit.

The State also objects on the basis that Defendant assigns as error matters that

he did not raise in his first appeal. These issues are discussed below.

5

Errors Patent

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for

errors patent on the face of the record. After a thorough review of the record, we find

that there are no errors patent.

Voluntariness of Guilty Plea

In his first assignment of error, Defendant contends that the trial court erred in

failing to give him timely notice of the requirements of the sex offender registration

law and that notice during Boykinization was too late, such that his guilty plea was

rendered involuntary. The State asserts that this issue was not raised in Defendant’s

previous appeal and that Defendant failed to make a contemporaneous objection in

the trial court as required by La.Code Crim.P. art. 841. Therefore, the State argues

that this issue should not be addressed by this court.

In State v. Porter, 533 So.2d 112 (La.App. 4 Cir. 1988), one defendant,

Freeman, appealed and alleged that his sentence was ambiguous and that the state

improperly utilized each of two convictions to charge him as a third offender. The

fourth circuit affirmed his convictions and found no error in his status as a third

offender, but the case was remanded for clarification of the sentences. The trial court

subsequently clarified the sentence. In a second appeal, State v. Freeman, 565 So.2d

1084 (La.App. 4 Cir. 1990), the defendant asked the fourth circuit to consider the

merits of his multiple bill hearing. The court found the following:

This issue was not raised in the previous appeal and relates to the April
1986 multiple bill hearing, not to the clarification of sentencing in 1988.
This court reviewed the 1986 multiple bill hearing in the original appeal.
Thus, the appellant has waived the issue of the adequacy of the multiple
bill hearing because he did not raise it in his original appeal. Talley v.
Maggio, 451 So.2d 1358 (La.App. 4th Cir.1984).

Freeman, 565 So.2d at 1085.

6

In State v. Anderson, 95-1252 (La.App. 4 Cir. 7/31/96), 679 So.2d 181, the

fourth circuit affirmed the defendant’s convictions, vacated the sentences, and

remanded the matter for resentencing because Anderson had been sentenced prior to

the hearing on his post-trial motions. On subsequent appeal in State v. Anderson, 97-

2587 (La.App. 4 Cir. 11/18/98), 728 So.2d 14, Anderson raised several claims of trial

error. The fourth circuit found that Anderson could appeal only his resentencing and

that the alleged trial errors should have been raised in the first appeal. The fourth

circuit stated: “Any issues not raised in the original appeal, which could have been

raised, are considered waived. State v. Freeman, 565 So.2d 1084 (La.App. 4

Cir.1990).” Id. at 18.

The only issue raised in Defendant’s initial appeal, State v. LeBlanc, an

unpublished opinion bearing docket number 06-794 (La.App. 3 Cir. 12/6/06), was an

excessive sentence claim which was not considered because his sentences were

vacated based on an error patent. The matter was remanded for resentencing.

Defendant is now before this court in a subsequent appeal alleging that his guilty plea

was involuntary because he was not given timely notice of the requirements of the sex

offender registration law. This issue was not raised in the Defendant’s original appeal

and does not relate to resentencing. Therefore, review of this issue was waived, and

we do not consider it herein.

In his second assignment of error, Defendant contends his plea was conditioned

on the State’s recommendation of concurrent sentences of not more than twenty years

and on the trial court’s statement during Boykinization that the sentences would be

in the five to twenty year range because of his first offender status. Accordingly,

Defendant contends that the imposition of consecutive twenty-year sentences by the

trial court, with the suspension of five years of each, resulting in a total sentence of

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thirty years, rendered his guilty plea involuntary. Review of this issue was also

waived by Defendant based on his failure to assert it in his original appeal, and we

do not consider it herein.

Excessiveness of Sentences

In his third assignment of error, Defendant contends that the trial court erred

in imposing unconstitutionally excessive sentences on a thirty-eight-year-old first

felony offender, including the order that sentences be served consecutively,

particularly where the sentences were based on allegations that were neither proven

or admitted.

As previously noted, Defendant was originally sentenced on March 17, 2006,

to serve twenty years at hard labor on each count to run consecutively, with the first

two years of each sentence to be served without benefit of probation, parole, or

suspension of sentence. Five years of each sentence were suspended and the

Defendant was placed on supervised probation subject to general and special

conditions. In his previous appeal of this matter, Defendant’s sentences were vacated

and set aside because the trial court failed to set the specific amount of restitution

owed, and the matter was remanded to the trial court for resentencing.

On February 21, 2007, Defendant was resentenced to serve twenty years at

hard labor on each count, to run consecutively, with the first two years of each

sentence to be served without benefit of probation, parole, or suspension of sentence.

Five years of each sentence were suspended, and Defendant was placed on five years

supervised probation on each count, to run concurrently, subject to general and

special conditions. The State advised the trial court that no restitution was due. The

trial court relied on the information given at the original sentencing hearing to impose

this sentence.

8

Defendant now argues that the trial court re-imposed the same sentences

previously imposed without the indeterminate portion noted by this court. He further

argues that, at the original sentencing, the trial court mistakenly went beyond the

admitted facts and found, without proof, that the incidents happened “over a number

of years,” that there were “multiple incidents,” and that there were “multiple acts over

three years.” Defendant avers that he pled guilty and admitted to only two very

distinct acts occurring between July and October of 2001: one involving his

girlfriend’s daughter and the other involving the daughter’s friend.

Defendant did not object to or attempt to correct the alleged incorrect remarks

at the time that they were made by the trial court. Accordingly, Defendant waived

review of this issue. La.Code Crim.P. art. 841.

Next, Defendant argues that his sentences are excessive because of their length

and/or because of the requirement that they be served consecutively. Defendant

further argues that the trial court did not properly consider the mitigating factors in

this case. Defendant states that acceptance of responsibility for his actions is the first

step and best indicator of his amenability to treatment. The trial court noted that his

lack of a criminal record indicated he would respond to treatment but imposed thirty

years of imprisonment before treatment would begin. Defendant contends that there

was evidence that he used his four years of incarceration prior to entering his guilty

plea to achieve religious guidance. Defendant asserts that the trial court noted, but

failed to consider, his responsibility to his dependents. Additionally, Defendant

asserts that the trial court improperly emphasized the mistaken facts of “multiple

incidents” “over three years” as the overriding factor, without considering the other

relevant factors.

9

Defendant asserts the following as mitigating factors:

1) He is thirty-eight years old with no criminal record;

2) He is a first offender who lived a law abiding life until the current
offenses;

3) He is a veteran of the armed forces;

4) There was no evidence he could not respond to probationary
treatment;

5) The offenses arose out of a single course of conduct;

6) There was no medical or physical evidence to support or corroborate
the most serious charges or to support consecutive sentences;

7) There is no evidence of a threat to the safety of the general public;

8) He has accepted his responsibility and taken steps while incarcerated
to start his rehabilitation; and

9) A lesser sentence will not lessen the seriousness of the crime.

Defendant additionally asserts he has not committed any disciplinary offenses while

incarcerated.

The supreme court discussed the standard applicable to excessive sentencing

claims in State v. Williams, 03-3514, p. 14 (La. 12/13/04), 893 So.2d 7, 16-17, as

follows:

The trial judge is given a wide discretion in the imposition of
sentences within the statutory limits, and the sentence imposed by him
should not be set aside as excessive in the absence of a manifest abuse
of his discretion. State v. Thompson, 2002-0333 (La.4/9/03), 842 So.2d
330; State v. Washington, 414 So.2d 313 (La.1982); State v.
Abercrumbia, 412 So.2d 1027 (La.1982). A trial judge is in the best
position to consider the aggravating and mitigating circumstances of a
particular case, and, therefore, is given broad discretion in sentencing.
State v. Cook, 95-2785 (La.5/31/96), 674 So.2d 957. On review, an
appellate court does not determine whether another sentence may have
been more appropriate, but whether the trial court abused its discretion.
Id.

According to La.Code Crim.P. art. 881.3, this court may consider “any

evidence or relevant information introduced at preliminary hearings, hearings on

10

motions, arraignments, or sentencing proceedings, and any relevant information

included in a presentence investigation report filed into the record at sentencing”

when evaluating whether a sentence is excessive. See State v. Fomond, 05-540

(La.App. 3 Cir. 1/18/06), 921 So.2d 1103.

At the original sentencing hearing, the trial court noted the Defendant was

thirty-seven years old, had graduated from high school, and was previously a welder.

The trial court then made the following remarks:

Referencing under Article 894.1 of our Code of Criminal Procedure,
Section A indicates that if the defendant has convicted a felony, the
Court should impose the sentence of imprisonment if any of the
following do occur.

Is there an undue risk that during a period of a suspended sentence
or probation would the defendant commit another crime [sic]? You are
-- you are a first time offender. You have no prior history. The Court
answers that in the negative.

Is the defendant in need of correctional treatment or a custodial
environment that can be provided most effectively by his commitment
to an institution? It’s obvious that the offense is one of such severity
that the legislature has mandated some incarceration time as a result of
showing that two years, no matter what, must be served without benefit
of probation, parole or suspension of sentence.

In addition, the problems that have come forth clearly show that
there needs to be some type of correctional treatment or custodial
environment to help to control that type of behavior. As well as some
type of punitive measure to let you know of the consequences of the
severity of your behavior. The Court has answered that in the
affirmative.

Number Three, would a lesser sentence deprecate the seriousness
of the defendant’s crime? Again, the Court has answered that in the
affirmative. The offense here is one of the most serious, specifically, the
taking of innocense [sic] of a child which can be shadowed only in
severity by the taking of the life itself as far as this Court is concerned.

. . . the Court notes that this is not a very quick or brief instance
but appears to have existed over a three year time frame before coming
to light. The Court answers that also, yes.

. . . the Court finds that the offender’s conduct during the
commission of the events manifest [sic] deliberate cruelty to the victim

11

by actions and by the information relayed showing how the effects of the
offense has [sic] been on these children. The Court finds that clearly
this was cruel use of supervisory or adult behavior over a child of tender
years.

Two, that the offender knew, or should have known, the victims
were potentially vulnerable and incapable of resistance due to the
extreme youth of two females being approximately between the ages 7
to 10 based on what’s been presented to me.

....

Then I would find that you did have a position or status that
helped to facilitate the commission of the offense that gave you that
apparent air of supervision or trust. I do find that this offense has
resulted in the significant permanent injury and losses to the victims and
their family. . . .

Also, because of the time frame, there being approximately three
years of abuse to these victims, the Court would find that there were
multiple incidents for which separate sentences are not imposed.
However, it is noted that there are two distinct incidents and two distinct
victims for [sic] which the Court must address today.

. . . moving forward toward mitigating circumstances where it
asks that the defendant has no history of prior delinquency or criminal
activity and has led a law-abiding life for a period of time before the
commission of the offense. While I do note that it is a first offense, I
also note that there are two distinct victims with two -- or many
distinctive offensive acts against these victims. The Court would find
it both to be mitigating to some extent and aggravating to some extent
because of the multiple victims that are involved before us as well as the
counts.

The defendant is particularly likely to respond to probationary
treatment. The defendant’s never had the opportunity for probation and
would have to give him the benefit of that and makes that a mitigating
circumstance [sic].

I find that the defendant, as far as other mitigating circumstances,
does seem to accept responsibility for the entirety of his actions.
However, the consequences are severe with regard to these offenses.
And from what I’ve been told today, there apparently may be some
hardship to his dependents if he were to be incarcerated for a period of
time, specifically, some actions to his grandmother.

The Court has reviewed all of 894.1 with regard to sentencing
guidelines and if they were not specifically mentioned they were
considered and deemed either insignificant or inapplicable to the
incident offense by their omission.

12

Defendant cites several cases in brief to this court for the proposition that his

sentences are excessive. In State v. Lathers, 444 So.2d 96 (La.1983), the defendant

was charged with aggravated rape and found guilty of the responsive verdict of

forcible rape. The defendant was sentenced to serve forty years at hard labor without

benefit of probation, parole, or suspension of sentence. The supreme court compared

the defendant’s case to several cases and noted that in State v. Telsee, 425 So.2d 1251

(La.1983), it stated that “generally the sentences for forcible rape which have been

reviewed by this Court reflect a range of sentences from ten to twenty-five years at

hard labor, with parole excluded for periods of two to eight years.” Lathers, 444

So.2d at 101. In Lathers, the supreme court went on to find that imposition of the

maximum sentence of forty years imprisonment at hard labor, all to be served without

benefit of parole, probation or suspension of sentence, was grossly disproportionate

to similar cases and was excessive. Defendant in the case at bar notes that the

supreme court commented on the fact that the victim incurred no permanent physical

injury. In Telsee, 425 So.2d 1251, the supreme court also found that imposition of

the maximum sentence for forcible rape was excessive. The court amended the

sentence to twenty-five years at hard labor, with two years to be served without

benefit of probation, parole, or suspension of sentence.

Defendant also cites State ex rel. Graffagnino v. King, 436 So.2d 559

(La.1983). Therein, the defendant was sentenced to eight years at hard labor, with

two years to be served without benefit of probation, parole, or suspension of sentence,

for raping a sixteen-year-old girl who incurred no permanent physical injury.

Defendant further cites State v. Childs, 466 So.2d 1363 (La.App. 3 Cir. 1985),

wherein the defendant was charged with three counts of aggravated rape of his eight-

year-old daughter and entered a plea of guilty to one count of forcible rape. The

13

defendant was sentenced to forty years at hard labor, of which twenty years was to be

served without benefit of probation, parole, or suspension of sentence. This court

found the defendant’s sentence was not excessive. This court noted the offense

committed by the defendant was one of the most flagrant and sordid acts of rape that

can be committed and the defendant’s actions flouted the trust a community extends

a parent to act in his child’s best interest. The Defendant in the case at bar states that

he was not related to either of his victims; thus, the stigma of the offense being

committed by a parent was not present.2

In State v. Vallery, 04-1589, pp. 5-6 (La.App. 3 Cir. 4/6/05), 899 So.2d 836,

840, this court stated the following:

Additionally, the Defendant was originally charged with
aggravated rape, a violation of La.R.S. 14:42. By agreeing to plead
guilty to forcible rape, a violation of La.R.S. 14:42.1, the Defendant
received a significant benefit by reducing his sentence exposure from a
minimum of life imprisonment to a maximum of forty years
imprisonment. The sentence was within the statutory range for forcible
rape.

. . . Accordingly, in light of the significant benefit gained by the
Defendant in agreeing to plead guilty to forcible rape, rather than face
an aggravated rape charge, the trial court did not abuse its wide
discretion in imposing a sentence of thirty-five years of imprisonment
without benefits. [State v.] Cook, [95-2784 (La.5/31/96),] 674 So.2d
957[, cert. denied, 519 U.S. 1043, 117 S.Ct. 615,(1996)].

In State v. Malloy, 01-1118 (La.App. 3 Cir. 2/6/02), 815 So.2d 940, the

defendant was charged with the aggravated rape of his seven-year-old stepdaughter.

He pled guilty to forcible rape in exchange for the dismissal of one count of oral

sexual battery. The defendant was sentenced to thirty-five years at hard labor with

the first twenty years to be served without benefit of probation, parole, or suspension

2
The factual basis given at the guilty plea indicated one of the victim’s was Defendant’s
stepdaughter. However, Defendant states, in brief to this court, that that victim was his girlfriend’s
daughter.

14

of sentence. This court found the twenty-five-year-old first offender’s sentence was

not excessive.

Defendant in the case at bar was originally charged with two counts of

aggravated rape, one count of sexual battery, and one count of molestation of a

juvenile. As part of a plea agreement, Defendant entered a plea of guilty to two

counts of forcible rape and the charges of sexual battery and molestation of a juvenile

were dismissed. Defendant received a significant benefit by reducing his sentencing

exposure from a minimum of life imprisonment on each count of aggravated rape to

a maximum of forty years imprisonment on each count of forcible rape.

Defendant also argues that the trial court improperly emphasized mistaken facts

as the overriding factor, without considering the other relevant mitigating factors.3

We find that the trial court thoroughly reviewed the mitigating and aggravating

factors in this case and considered the nature and background of Defendant and the

nature of the offenses at issue. Furthermore, “[t]he court was not required to give any

of the mitigating factors any particular weight.” State v. Insley, 04-1006, p. 6

(La.App. 3 Cir. 2/2/05), 893 So.2d 209, 214 (citing State v. Bey, 03-277 (La.App. 3

Cir. 10/15/03), 857 So.2d 1268). Accordingly, we find that Defendant’s sentences

are not excessive.

Consecutive Sentences

Defendant also contends that consecutive sentences were not appropriate in this

case. Defendant asserts that, at the original sentencing, the trial court mistakenly

believed he would be eligible for parole after serving one-third of his sentences,

which would be after thirteen years of incarceration, and it was only after the

3
Defendant asserts the trial court mistakenly believed there were multiple incidents occurring
over three years. As previously noted in this assignment of error, Defendant did not object to the
alleged mistaken facts. Additionally, the indictment references events occurring from November
1998 through October 5, 2001.

15

sentences were imposed that the State clarified that he would have to serve eighty-

five percent of the sentences, which would be thirty-four years of incarceration,

before parole eligibility. Defendant asserts that the trial court could have fixed the

prior error of law that led to ordering consecutive sentence because of the mistaken

belief that he would only serve thirteen years, by ordering the sentences be concurrent

or by lessening the terms of the sentences on remand. Instead, on remand, the trial

court noted the requirement that he serve eighty-five percent of his sentences but did

not adjust the sentences accordingly. Defendant asserts that because the error was not

corrected on remand, the sentences imposed at that time exceeded those that the trial

court intended in the original sentencing. Defendant further asserts that the trial court

did not give a true and adequate factual basis for imposition of the substantial,

consecutive sentences.

At the original sentencing hearing, the trial court informed Defendant that he

would be eligible for parole after serving one-third of his sentences or approximately

ten years. The trial court then stated that it “would always defer to the Department

of Corrections for offender status, behavior, compliance with sex offender and parole

eligibility process before those would be determined.” The trial court further

informed Defendant that his sentences were to be served consecutively, stating the

following: “The Court finds that there are two distinct victims with multiple acts of

abuse that occurred over a three-year period of time and the Court specifically

designates that the offenses be served consecutively as a result.”

We find that the trial court clearly informed Defendant that parole eligibility

was ultimately in the hands of the Department of Corrections. Furthermore, based on

the remarks by the trial court, it appears that Defendant incorrectly interpreted the

trial court’s basis for imposition of consecutive sentences. Thus, Defendant failed to

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prove that the trial court intended to sentence him to anything other than the

sentences imposed at the original sentencing hearing.

Defendant discusses several cases involving consecutive sentences including,

State v. Mosley, 466 So.2d 733, 735-36 (La.App. 4 Cir.), writ denied, 468 So.2d 1202

(La.1985), in which the fourth circuit stated the following:

As a general rule, the imposition of consecutive sentences for crimes
arising from a single course of conduct requires particular justification.
State v. Messer, 408 So.2d 1354 (La.1982). Because the function of the
consecutive sentence is similar to that of the sentence imposed upon
habitual or dangerous offenders, sentences for contemporaneous crimes
should be concurrent unless it is shown that the offender poses an
unusual risk to the safety of the public. State v. Sherer, 437 So.2d 276
(La.1983).

Defendant in the case at bar asserts that there is nothing in the record to support the

conclusion that he poses an unusual risk to public safety.

In State v. Brown, 627 So.2d 192 (La.App. 3 Cir. 1993), writ denied, 93-3101

(La. 3/18/94), 634 So.2d 850, the defendant was convicted of one count of forcible

rape and three counts of sexual battery for having sexual intercourse with his

stepdaughter in March and April of 1991. The defendant’s four sentences were

ordered to run consecutively. This court stated the following regarding the

defendant’s sentences:

[I]n cases involving offenders without prior felony record, concurrent
rather than consecutive sentences should be imposed, particularly where
the convictions arise out of the same course of conduct. State v. Jacobs,
383 So.2d 342 (La.1980); State v. Cox, 369 So.2d 118 (La.1979). The
absence of a criminal past mitigates in favor of defendant; and all the
offenses originally charged against him arose out of the same course of
conduct. Accordingly, the trial judge should have imposed concurrent
sentences under the circumstances.

Id. at 199-200.

In State v. Taylor, 95-179 (La.App. 3 Cir. 10/4/95), 663 So.2d 336, the

defendant was convicted of sexual battery and attempted indecent behavior with a

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juvenile for rubbing the victim’s penis and buttocks and performing oral sex on the

victim. His sentences were ordered to run consecutively. In reviewing the

defendant’s sentences, this court stated the following:

[W]hile the convictions arose out of the same course of conduct,
defendant has a previous conviction for indecent behavior with a
juvenile. Additionally, La.Code Crim.P. art. 883 gives the trial judge
the discretion to impose consecutive sentences if he expressly directs
such. The trial judge did so in this case.

Id. at 343.

In State v. Thibodeaux, 05-1187, pp. 11-12 (La.App. 3 Cir. 3/1/06), 924 So.2d

1205, 1212-1213, writ denied, 06-700 (La. 10/6/06), 938 So.2d 65, this court

discussed the state of the law regrading consecutive and concurrent sentences as

follows:

In the case cited above by the trial court, State v. Thomas,
98-1144 (La.10/9/98), 719 So.2d 49, the defendant, a first-time felony
offender, was sentenced to consecutive terms of imprisonment on three
convictions, one of which was armed robbery. The remaining two
convictions were offenses which occurred during and after the armed
robbery. The supreme court affirmed the trial court’s imposition of
consecutive sentences, despite the fact the offenses were committed as
a part of a common scheme or plan. The supreme court noted:

Although Louisiana law favors concurrent sentences
for crimes committed as part of a single transaction
(citation omitted), a trial judge retains discretion to impose
consecutive penalties on the basis of other factors,
including the offender’s past criminality, violence in the
charged crimes, or the risk he or she poses to the general
safety of the community.

Id. at 49. The supreme court went on to state that “[e]ven
granting the consecutive nature of the penalties imposed on all three
counts, the defendant’s total sentence remains within the 35 to 50 year
range this Court has found acceptable for first offenders convicted of
armed robbery.” Id. at 50.

In State v. Hilton, 99-1239 (La.App. 1 Cir. 3/31/00), 764 So.2d
1027, writ denied, 00-958 (La.4/9/01), 786 So.2d 113, the defendant
received maximum sentences for four convictions, which included
indecent behavior with juveniles, molestation of a juvenile, and cruelty
to juveniles. Two of the sentences were ordered to be served

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concurrently, but consecutively with the remaining two concurrent
sentences for a total term of imprisonment of seventeen and one half
years. Hilton alleged the sentences were excessive in light of the fact
she was an abused person herself and that she was a first time felony
offender. . . .

....

In Hilton, the trial court noted for the record the severity of the
injuries she inflicted on the children as “most atrocious acts I’ve ever
seen.” The trial court noted that the children were only four or five
years of age. The first circuit noted: “It is obvious that the judge found
that defendant was the worst kind of offender and that the offenses were
the most serious.” Hilton, 764 So.2d at 1038. The first circuit affirmed
the trial court’s imposition of the maximum sentences and the
consecutive application of the sentences.

While we acknowledge defendant’s status as a first
felony offender, we believe that the reasons given by the
trial court support the sentences. Considering the
circumstances of the instant offenses, particularly the
reprehensible nature of the crimes and the permanent effect
that the offenses will have on the children, we believe that
the defendant is one of the most egregious and
blameworthy offenders.

Id.

In the instant case, the trial court expressly directed that Defendant’s sentences

be served consecutively and, based on the cases cited herein, it did not abuse its

discretion in doing so. For the foregoing reasons, this assignment of error lacks

merit.

Diminution of Sentence

In sentencing Defendant, the judge stated:

I would note that it is listed as a crime of violence and you are eligible
for diminution for good time, but it is under the guidelines of the
Department of Corrections for crimes of violence. I think commonly it
is referred to as serving 85% of that time period before being eligible for
release. In fact, I believe you have already received information as to
parole eligibility dates as a result of the offense which are commuted
under similar guidelines for parole from the Department of Corrections.

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Immediately after making these statements, the judge noted for Defendant that

his sentence had not been enhanced under La.R.S. 15:529.1 or La.Code Crim.P. art.

893. Thus, it appears that the judge was complying with La.Code Crim.P. art.

894.1(D) and was advising Defendant whether his sentence was subject to diminution

for good behavior.

Louisiana Revised Statutes 15:537(A) requires that diminution of sentence be

denied to a person who is sentenced to imprisonment for a stated number of years or

months and is convicted of or pleads guilty to certain sex offenses, including forcible

rape, a violation of La.R.S. 14:42.1. This court addressed this issue in State v. S.D.G.,

06-174, pp. 4-5 (La.App. 3 Cir. 5/31/06), 931 So.2d 1244, 1247, writ denied, 06-1917

(La. 3/16/07), 952 So.2d 694:

Louisiana Revised Statutes 15:537(A) requires that diminution of
sentence be denied to all offenders who are convicted of or plead guilty
to sex offenses, including aggravated rape and aggravated incest. Here,
the trial court failed to deny the defendant diminution eligibility under
La.R.S. 15:537(A) for both sentences imposed. In State v. G.M.W., Jr.,
05-391, p. 2 (La.App. 3 Cir. 11/2/05), 916 So.2d 460, 461, the court
stated:

We note that the second paragraph of La.R.S. 15:537 is
clearly directed to the sentencing court, and the trial court’s
failure to include a denial of diminution of sentence
thereunder renders Defendant’s sentences illegally lenient.
Pursuant to State v. Williams, 00-1725 (La.11/28/01), 800
So.2d 790 and La.Code Crim.P. art. 882, this court is
authorized to recognize and correct illegally lenient
sentences.

Here, the trial court’s failure to deny diminution of sentence
renders the defendant’s sentences illegally lenient. Therefore, we amend
the defendant’s sentences to reflect that diminution eligibility is denied
pursuant to La.R.S. 15:537(A). We also instruct the trial court to make
a notation in the minutes reflecting the amendment.

Therefore, we amend Defendant’s sentences to reflect that he is not eligible for

diminution of sentence pursuant to La.R.S. 15:537(A), and we hereby instruct the trial

court to note the amendment in the court minutes.

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DECREE

Defendant’s sentences are affirmed. We, however, amend the sentences to

reflect that Defendant is not eligible for diminution of sentence pursuant to La.R.S.

15:537(A). The trial court is hereby instructed to note this amendment in the court

minutes.

AFFIRMED AS AMENDED, WITH INSTRUCTIONS.

This opinion is NOT DESIGNATED FOR PUBLICATION.
Uniform Rules—Courts of Appeal. Rule 2-16.3.

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