State of Louisiana v. L.A.C.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

07-1411

STATE OF LOUISIANA

VERSUS

L.A.C.

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APPEAL FROM THE
THIRTY-FIRST JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON DAVIS, NO. CR-135-06
HONORABLE ANNE LENNAN SIMON, DISTRICT JUDGE

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MARC T. AMY
JUDGE

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Court composed of Marc T. Amy, Billy Howard Ezell, and J. David Painter, Judges.

AFFIRMED AS AMENDED; REMANDED WITH INSTRUCTIONS.

Michael C. Cassidy
District Attorney
Stacey C. Naquin
Assistant District Attorney
Post Office Box 1388
Jennings, LA 70546
(337) 824-1893
COUNSEL FOR APPELLEE:
State of Louisiana

Patricia A. Thomas
Post office Box 142
205 Charity Street
Abbeville, LA 70511-0142
(337) 893-6082
COUNSEL FOR DEFENDANT/APPELLANT:
L. A. C.

AMY, Judge.

Factual and Procedural Background

The defendant, L.A.C.,1 was charged by bill of indictment with aggravated

rape. The defendant entered an Alford plea to the reduced charge of simple rape, a

violation of La.R.S. 14:43.2 He was sentenced to seventeen years at hard labor

without the benefit of parole, probation, or suspension of sentence. Upon the denial

of his motion to reconsider sentence, the defendant has perfected this appeal, arguing

that his sentence is excessive. For the following reasons, we affirm as amended and

remand with instructions.

Discussion

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 reviewing the record, we find one error

patent.

Louisiana Revised Statutes 15:537(A) provides that a person convicted of or

who pleads guilty to a sex offense, including simple rape, “shall not be eligible for

diminution of sentence for good behavior.” The trial court’s failure to deny the

defendant diminution eligibility under the statute renders his sentence illegally

lenient. Thus, pursuant to State v. Williams, 00-1725 (La. 11/28/01), 800 So.2d 790,

and La.Code Crim.P. art. 882, we amend the defendant’s sentence to reflect that

1
Pursuant to La.R.S. 46:1844(W), the initials of the defendant and the victim have been
used.
2
According to the facts adduced at the guilty plea hearing:

On or about June 4, 2005, victim, [T.C.], approached her family and reported
that her grandfather, the defendant, [L.A.C.], had been molesting her and had raped
her both anally, vaginally, and orally. In response to those claims, they brought her
to Dr. Maria Fontanz who examined her. As a result of that examination, Dr. Maria’s
office and the family reported this crime to the Jeff Davis Sheriff’s Department and
the Lake Arthur Police Department.

diminution eligibility is denied under La.R.S. 15:537(A). We instruct the trial court

to make a notation in the minutes reflecting the amendment.

Excessive Sentence - Remorse

The defendant argues that the trial court erred in considering lack of remorse

when imposing his sentence and that his sentence is excessive as a result thereof.

We note that at his sentencing hearing, the trial court did not state that the

defendant lacked remorse for his actions. Rather, the trial court stated that “the

defendant has not taken responsibility for his actions.” We note that after his

sentence was pronounced, the defendant addressed the court, stating: “I’m sorry for

what happened to my granddaughter. I hope she’s getting counseling for what

happened to her[.]” The trial court explained, “I accept that as a mitigating factor,

that you didn’t want your granddaughter to go through it, but I stand by my sentence

for this offense under the Alford plea for this defendant.”

Pursuant to La.Code Crim.P. art. 894.1(21), the trial court can consider any

relevant aggravating circumstances not otherwise specified in the article. The article

does not prohibit the trial court from considering a defendant’s lack of remorse.

Additionally, the trial court specifically noted as a mitigating factor that the defendant

had made statements of remorse. Accordingly, we find no merit in the defendant’s

assertion that the trial court improperly assessed remorse as a factor at sentencing.

Excessive Sentence - Victim Impact Statements

The defendant contends that the trial court “erred in imposing an excessive

sentence which imposition was based on inadmissible victim impact evidence and

other improper considerations.”

2

At the outset, we note that in his motion to reconsider sentence, the defendant

did not allege that his sentence was excessive because the trial court considered

inadmissible victim impact evidence. Consequently, the defendant is precluded from

raising this issue for the first time on appeal. See La.Code Crim.P. art. 881.1 and

State v. Grogan, 00-1800 (La.App. 3 Cir. 5/2/01), 786 So.2d 862. Because he failed

to raise this specific ground in his motion to reconsider sentence, “the defendant is

simply relegated to having the appellate court consider the bare claim of

constitutional excessiveness. State v. Mims, 619 So.2d 1059 (La.1993)[.]” State v.

D.M., 42,038, p. 11 (La.App. 2 Cir. 5/9/07), 958 So.2d 77, 85.

“La. Const. art. I, § 20 guarantees that, ‘[n]o law shall subject any person to

cruel or unusual punishment.’” State v. Barling, 00-1241, 01-1591, p. 12 (La.App.

3 Cir. 1/31/01), 779 So.2d 1035, 1042, writ denied, 01-838 (La. 2/1/02), 808 So.2d

331 (alteration in original). The penalty for simple rape is imprisonment “with or

without hard labor, without benefit of parole, probation, or suspension of sentence,

for not more than twenty-five years.” La.R.S. 14:43. Here, the defendant was

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

suspension of sentence. Because the trial court has wide discretion in imposing

sentence, this sentence will not be overturned absent a manifest abuse of discretion.

See Barling, 779 So.2d 1035.

In light of the circumstances of this offense, we cannot say that the trial court

abused its discretion in imposing the defendant’s sentence. See State v. Etienne, 99-

192 (La.App. 3 Cir. 10/13/99), 746 So.2d 124, writ denied, 00-165 (La. 6/30/00), 765

So.2d 1067.

3

Furthermore, even had we considered the evidentiary issue raised by the

defendant, we find no indication that the trial court acted improperly in admitting the

victim impact statements. In brief, the defendant refers to the eligibility requirements

of victims pursuant to La.R.S. 46:1843, which states: “A victim has the rights and is

eligible for the services under this Chapter only if the victim reported the crime to law

enforcement authorities within seventy-two hours of its occurrence or discovery,

unless extenuating circumstances exist for later reporting.” The defendant alleges

that the “requirement of registration is reiterated in [La.R.S. 46:]1844(H) and (T),

concerning victim access to pre-sentence investigative reports and eligibility for

notice and other rights provided by Chapter 46.” Moreover, he points out that under

La.R.S. 46:1844(K), a registered victim or family member has the right to make a

victim impact statement.

We note that La.R.S. 46:1843 does not require a victim to register to obtain the

rights and be eligible for the services provided in Chapter 21-B, Rights of Crime

Victims and Witnesses. Rather, the victim need only report the crime to law

enforcement authorities within seventy-two hours of its occurrence. Additionally, the

registration requirements found in La.R.S. 46:1844(H) and (T) do not preclude a trial

court from accepting the statements of unregistered victims or family members.

Rather, if a victim or family member wants to exercise his or her right to review and

comment on presentence and postsentence reports or to receive notices, then the

person must register according to the statute. Otherwise, the trial court would not

know if the victim or victim’s family member wanted to exercise these rights, and

further, the trial court would not have the contact information to disseminate such

information to the victim or victim’s family member.

4

Likewise, under La.R.S. 46:1844(K), the trial court can allow the victim and

the victim’s family to make a written and oral impact statement. However, La.R.S.

46:1844(K) provides that the trial court cannot deny the victim and the victim’s

family this right if they register with the appropriate law enforcement or judicial

agency. Thus, the defendant’s reasoning and conclusion that the victim or the

victim’s family member must be registered to make a victim impact statement is

erroneous.

Moreover, in State v. Reynolds, 99-1847, p. 5 (La.App. 3 Cir. 6/7/00), 772

So.2d 128, 131 (quoting State v. Jones, 587 So.2d 787, 796 (La.App. 3 Cir.), writ

denied, 590 So.2d 78 (La.1991) (alteration in original)), this court stated that the

“[s]ources of information from which a sentencing court may draw are extensive and

the traditional rules of evidence are not bars to consideration of otherwise relevant

information.” Therefore, we find no error in the trial court’s consideration of the

victim impact statements submitted by the State, regardless if the victim and her

family were registered victims.

DECREE

For the foregoing reasons, the defendant’s sentence is amended to reflect that

diminution eligibility is denied pursuant to La.R.S. 15:537(A). The defendant’s

sentence is affirmed as amended. This matter is remanded to the trial court with

instructions to make a notation in the minutes reflecting the amendment.

AFFIRMED AS AMENDED; REMANDED WITH INSTRUCTIONS.

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