State of Louisiana v. D. S. J.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

08-1555

STATE OF LOUISIANA

VERSUS

D. S. J.

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APPEAL FROM THE
TWENTY-EIGHTH JUDICIAL DISTRICT COURT
PARISH OF LASALLE, NO. 84,432
HONORABLE J.P. MAUFFRAY, JR., PRESIDING
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SYLVIA R. COOKS
JUDGE

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Court composed of Sylvia R. Cooks, James T. Genovese, and Shannon J. Gremillion,
Judges.

AFFIRMED.

J. Reed Walters
District Attorney - Twenty-Eighth Judicial District
P.O. Box 1940
Jena, LA 71342
(318) 992-8282
COUNSEL FOR APPELLEE:
State of Louisiana

Joseph Kutch
1010 Main Street
Pineville, LA 71360
(318) 448-6155
COUNSEL FOR DEFENDANT-APPELLANT:
D. S. J.

COOKS, Judge.

During the period between March 1 and March 31, 2007, it was alleged

Defendant, D.S.J., touched the vagina of his eleven-year-old daughter on two separate

occasions.1 Defendant also rubbed her breasts.

Defendant was charged by bill of indictment with sexual battery, a violation

of La.R.S. 14:43.1, and indecent behavior with a juvenile, a violation of La.R.S.

14:81. Defendant entered a plea of not guilty.

A Motion to Quash was filed and denied on the same day. Defendant

subsequently entered a plea of guilty to sexual battery pursuant to State v. Crosby,

338 So.2d 584 (La.1976), and reserved his right to appeal the denial of his Motion to

Quash. The charge of indecent behavior with a juvenile was dismissed. Defendant

was then sentenced to serve twenty-five years at hard labor without benefit of parole,

probation, or suspension of sentence. Defense counsel objected, asserting the

sentence was excessive and asked the trial court to reconsider the sentence. The

motion to reconsider was denied. Defense counsel then made an oral motion for

appeal.

A written motion for appeal was filed and subsequently granted. Defendant is

now before this court asserting one assignment of error. Therein, Defendant contends

the trial court erred in not declaring La.R.S. 14:43.1(C) unconstitutional in violation

of La.Const. art. 1, § 3 and/or § 20, in general or as it was applied to him. For the

following reasons, we find no merit in Defendant’s contention.

ANALYSIS

Defendant pled guilty to sexual battery. At the time of the offense, the penalty

for sexual battery committed against a child under the age thirteen by an offender

1
Defendant’s initials are being used in accordance with La.R.S. 46:1844(W).
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seventeen years of age or older was imprisonment at hard labor for not less than

twenty-five years nor more than life. At least twenty-five years of the sentence must

be served without benefit of parole, probation, or suspension of sentence. La.R.S.

14:43.1 (C)(2). Defendant was sentenced to serve the mandatory minimum sentence.

Defendant is contesting his sentence in this appeal. It is unclear from the

record whether the Defendant entered a plea for an agreed-upon sentence, of which

he could not seek review. La.Code Crim.P. art. 881.2. The trial court stated the

following prior to accepting Defendant’s guilty plea: “It’s already been discussed

that your particular plea bargain involves a sanction of 25 years at hard labor, that’s

without parole, plus pay cost.” Additionally, at the time Defendant was sentenced,

the trial court stated the following: “It will be the sentence of the Court in accordance

with the plea bargain agreement that you serve the minimum mandatory which is 25

years at hard labor without parole.” We note the specific terms of the plea agreement

were not set forth for the record. Because we cannot determine whether the sentence

was an agreed-upon sentence, out of an abundance of caution and so as not to call

into question the voluntariness of his plea, we will review the claims set forth by

Defendant in brief to this court. State v. Singleton, 614 So.2d 1242 (La.1993).2

2
In Singleton, the supreme court stated the following:

Writ is granted. This case is remanded to the court of appeal for
review on the merits of defendant’s sentencing claims.

Even assuming that La.C.Cr.P. art. 881.1 retroactively applied to
defendant’s sentencing on January 21, 1992, ten days before the
statute’s effective date on January 31, 1992, the statute provides that a
motion to reconsider sentence ‘shall be oral at the time of sentencing or
in writing thereafter....” Defense counsel began the combined guilty
plea and sentencing proceeding on January 21, 1992, by objecting to the
excessiveness of the eight-year sentences the court would impose, and
by reserving appellate review of the sentence as part of defendant’s
guilty plea. State v. Crosby, 338 So.2d 584 (La.1976). Counsel urged
the specific grounds on which the court had not followed the new
sentencing guidelines, effective January 1, 1992, relative to computing
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Prior to entering his guilty plea, Defendant filed a Motion to Quash asserting

the following:

Mover shows that the sentence is unconstitutional as excessive
and, unconstitutionally excessive where applied to this defendant.

Mover shows that the mandatory minimum sentence makes no
allowance for considering the actual conduction [sic] of the accused, the
actual injury inflicted on the victim, to include physical and/or
emotional trauma actually inflicted on the victim, nor allows the court
any latitude in sentencing as outlines [sic] in the Code of Criminal
Procedure, Article 894.1. Moreover, Section 43.2 is inherently a more
violent and dangerous offense yet carries the same penalty in subsection
(C) (2).[3]

the length of sentence and to improperly rejecting suspension of
sentence and probation as an alternative to imprisonment. These
remarks constituted an oral motion to reconsider made “at the time of
sentencing,” alerting the court to specific problems that counsel found
with the sentences at a time when the court could take corrective action,
and obviating the need for a written motion filed after sentencing. To
the extent that counsel also reserved appellate review of sentence as part
of the guilty pleas, denial of that review on the basis of art. 881.1 would
jeopardize the voluntariness of those pleas.
3
Louisiana Revised Statute 14:43.2 defines sexual battery as follows:

A. Second degree sexual battery is the intentional engaging in any
of the following acts with another person when the offender
intentionally inflicts serious bodily injury on the victim:

(1) The touching of the anus or genitals of the victim by the
offender using any instrumentality or any part of the body of the
offender; or

(2) The touching of the anus or genitals of the offender by the
victim using any instrumentality or any part of the body of the victim.

B. For the purposes of this Section, serious bodily injury means
bodily injury which involves unconsciousness, extreme physical pain or
protracted and obvious disfigurement, or protracted loss or impairment
of the function of a bodily member, organ, or mental faculty, or a
substantial risk of death.

C. (1) Whoever commits the crime of second degree sexual
battery shall be punished by imprisonment, with or without hard labor,
without benefit of parole, probation, or suspension of sentence, for not
more than fifteen years.

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At a hearing on the motion, defense counsel asserted the mandatory minimum

sentence was unconstitutionally excessive as written and as applied to Defendant.

Defense counsel then argued the mandatory minimum sentence made no allowance

for considering a defendant’s conduct, injuries suffered by the victim, or the

sentencing guidelines. Additionally, second degree sexual battery carried the same

penalty and is a substantially more serious offense. The trial court denied the motion,

stating the following:

I think the Legislature wanted to address the age thing more than any
other thing versus the amount of intentional infliction. So, that being
the case, I’m not gonna impose my thoughts on what the Legislature was
thinking when they passed the Statute raising it - if it’s less than 13, it’s
at least 25.

In brief to this court, Defendant sets forth the following three issues:

1) whether the penalty portion of La.R.S. 14:43.1(C) is unconstitutionally excessive,

either in all cases or as applied to him, when compared with that in La.R.S. 14:43.2;

2) whether the wide disparity of actions that are possible to be inflicted under the

definition of La.R.S. 14:43.1 creates the reasonable likelihood of an excessive

sentence based upon the harm done; and 3) whether the disparity between the harm

inflicted between La.R.S. 14:43.1 and La.R.S. 14:43.2 and imposition of the identical

sanction affords him the equal protection of the law.

Defendant asserts the penalty for second degree sexual battery is identical,

(2) Whoever commits the crime of second degree sexual battery
on a victim under the age of thirteen years when the offender is
seventeen years of age or older, shall be punished by imprisonment at
hard labor for not less than twenty-five years nor more than life
imprisonment. At least twenty-five years of the sentence imposed shall
be served without benefit of parole, probation, or suspension of
sentence.

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where the age criteria exists, to that for sexual battery although second degree sexual

battery requires the intentional infliction of serious bodily injury. Defendant further

asserts this amounts to an equal protection violation. Defendant then discusses State

v. Beasley, 42,143 (La.App. 2 Cir. 6/20/07), 960 So.2d 1182, wherein the defendant

in that case was convicted of molestation of a juvenile under his control or

supervision for impregnating his girlfriend’s sixteen-year-old daughter and was

sentenced as a second felony offender to serve thirty years at hard labor. We note the

offense in Beasley occurred in 2002, and the penalty at issue in the instant case was

added in 2006.

Defendant then discusses the law regarding downward departure from a

minimum sentence, asserting that defense counsel made an argument for a downward

departure, and the trial court refused to second-guess a decision by the legislature.

He also asserts the sentencing provision of La.R.S. 14:43.1(C) facially violates the

state constitutional prohibition against excessive punishment.

“A punishment is constitutionally excessive if it makes no measurable
contribution to acceptable goals of punishment and is nothing more than
the purposeless imposition of pain and suffering and is grossly out of
proportion to the severity of the crime.” State v. Dorthey, 623 So.2d
1276, 1280 (La.1993). “A sentence is grossly disproportionate if, when
the crime and punishment are considered in light of the harm done to
society, it shocks the sense of justice.” State v. Lobato, 603 So.2d 739,
751 (La.1992). It is a well established principle that the legislature has
the unique responsibility to define criminal conduct and to provide for
the penalties to be imposed against persons engaged in such conduct.
Dorthey, 623 So.2d at 1278; State v. Woljar, 477 So.2d 80, 81-82
(La.1985). The penalties provided by the legislature reflect the degree
to which the criminal conduct affronts society. State v. Ryans, 513
So.2d 386, 387 (La.App. 4th Cir.1987), writ denied, 516 So.2d 366
(La.1988). Courts must apply these penalties unless they are found to
be unconstitutional. Dorthey, 623 So.2d at 1278.

In State v. Telsee, 425 So.2d 1251 (La.1983), this court outlined several
factors which are useful in determining whether a sentence, by its
excessive length or severity, is grossly out of proportion to the
underlying crime. This analysis is cumulative and focuses on a
combination of these factors. Id. at 1253. These factors include the

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nature of the offense and the offender, a comparison of the punishment
with sentences imposed for similar crimes, the legislative purpose
behind the punishment, and a comparison of the punishment provided
for this crime in other jurisdictions. Id. at 1253-54.

State v. Baxley, 94-2982, pp. 9-10 (La. 5/22/95), 656 So.2d 973, 979-80.

In 2006 La. Acts No. 103, § 1, the sentencing provisions for sexual battery,

La.R.S. 14:43.1(C); second degree sexual battery, La.R.S. 14:43.2(C); oral sexual

battery, La.R.S. 14:43.3(C); pornography involving juveniles, La.R.S. 14:81.1(E);

and molestation of a juvenile, La.R.S. 14:81.2(E), were amended or enacted to

provide for a mandatory minimum sentence of twenty-five years at hard labor, with

at least twenty-five years of the sentence to be served without benefit of parole,

probation, or suspension of sentence, when the victim of the offense is under the age

of thirteen and the offender is seventeen years of age or older. This act was known

as the Mary Jean Thigpen Law and within that act, the legislature also provided that

the penalty for indecent behavior with a juvenile under the age of thirteen by an

offender seventeen years of age or older would be imprisonment for not less than two

nor more than twenty-five years, with at least two years of the sentence to be served

without benefit of parole, probation, or suspension of sentence.4 La.R.S. 14:81.

In 2006 La. Acts No. 325, § 2, the legislature provided for a mandatory

minimum sentence of not less than twenty-five years at hard, with at least twenty-five

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

of sentence, for the commission of aggravated incest and molestation of a juvenile by

an offender seventeen years of age or older against a victim under the age of thirteen.

The legislature, in 2006 La. Acts No. 103, § 2, stated the Mary Jean Thigpen
4

Law was enacted in memory of Mary Jean Thigpen, a four year old who was
murdered on November 12, 2001, by a multiple sexual offender.

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La.R.S. 14:78.1(D); La.R.S. 14:81.2(E).

Additionally, in 2006 La. Acts No. 325, § 1, the legislature stated the

following:

The Louisiana Legislature has long recognized the need to protect our
most innocent and defenseless citizens and has enacted statutory
provisions to protect children from sexual offenders and predators.
Louisiana has some of the strictest penalties for sex offense violations
and some of the most extensive provisions for sexual offender and
sexual predator registration and notification in the United States. The
Louisiana Legislature recognizes the tragedy associated with the story
of Jessica Lunsford who at the age of nine was abducted, abused, and
murdered by a convicted sexual offender. Motivated by the tragedy
associated with Jessica Lunsford, the Florida Legislature enacted the
Jessica Lunsford Act which provided for a minimum twenty-five-year
sentence for child molesters and lifetime monitoring following
incarceration. The Louisiana Legislature in enacting the provisions of
this Act seeks to incorporate those provisions into the Louisiana Law.

A mandatory minimum sentence is presumed to be constitutional. State v.

Rogers, 07-427, p. 4 (La.App. 3 Cir. 10/31/07), 969 So.2d 707, 710. Defendant agues

imposition of the mandatory minimum sentence makes no allowance for considering

a defendant’s conduct, injuries suffered by the victim, or the sentencing guidelines.

Regardless, the legislature exercised its prerogative to protect children under the age

of thirteen from sexual predators when enacting 2006 La.Acts No. 103, § 1. Thus,

we find the mandatory minimum sentence for sexual battery is not excessive on its

face.

Furthermore, based on the fact Defendant committed a sexual act against his

own daughter and violated a position of trust, we cannot say the imposition of the

mandatory minimum sentence is excessive in this case.

Defendant also contends he was entitled to a downward departure from the

mandatory minimum sentence. In State v. Smith, 07-468, p. 10 (La.App. 3 Cir.

10/31/07), 969 So.2d 694, 701, writ denied, 07-2484 (La. 5/16/08), 980 So.2d 707

(alteration in original), this court discussed departure from mandatory penalties as

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follows:

[A] court may depart from mandatory penalties provided by the
legislature for an offense upon a showing by the defendant that he is
“exceptional, which in this context means that because of unusual
circumstances [he] is a victim of the legislature’s failure to assign
sentences that are meaningfully tailored to the culpability of the
offender, the gravity of the offense, and the circumstances.” State v.
Johnson, 97-1906, p. 8 (La.3/4/98), 709 So.2d 672, 677 (internal
quotation marks and citation omitted); see also State v. Dorthey, 623
So.2d 1276, 1280-81 (La.1993) (holding that a trial court must reduce
a defendant’s sentence to one not constitutionally excessive if the trial
court finds that the sentence mandated by the Habitual Offender Law
“makes no measurable contribution to acceptable goals of punishment,”
or is nothing more than “the purposeful imposition of pain and
suffering” and is “grossly out of proportion to the severity of the
crime”).

State v. Lemons, 06-1051, p. 1 (La.11/17/06), 942 So.2d 33, 33-34.

The only argument presented regarding a downward departure from the

mandatory minimum sentence was Defendant’s assertion that the mandatory

minimum sentence for both sexual battery and second degree sexual battery were the

same despite the fact that an offender convicted of second degree sexual battery

would have to inflict seriously bodily injury. Additionally, La.R.S. 14:43.1(C) did

not allow for the consideration of Defendant’s actual conduct, the injury inflicted

upon the victim, or the sentencing guidelines.

We believe the legislature was aware the mandatory minimum sentence for

sexual battery and second degree sexual battery were the same when it enacted 2006

La. Acts 103, § 1 and that the trial court would not consider a defendant’s actual

conduct, the injury inflicted upon the victim, or the sentencing guidelines when

imposing the mandatory minimum sentence. The legislature sought to protect

innocent children by enacting the penalty provision at issue and Defendant failed to

present facts particular to his case that would support a departure from the mandatory

minimum sentence.

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Lastly, Defendant asserts that imposing the same mandatory minimum sentence

for sexual battery and second degree sexual battery, which requires the victim to

suffer serious bodily injury, is not the equal protection of the law guaranteed by

La.Const. art. 1, § 3. Essentially, Defendant argues imposition of the same penalty

for two separate and distinct offenses is a violation of equal protection. We disagree.

In Parker v. Cain, 445 F.Supp.2d 685 (E.D.La. 2006), the defendant, who had

been convicted of second degree murder and sentenced to life imprisonment, argued

his right to equal protection was violated because life imprisonment at hard labor

without benefit of probation, parole, or suspension of sentence was a possible penalty

for both second degree murder and first degree murder. The court found the

defendant’s “equal protection argument simply makes no sense. The fact that the

same penalty is a possibility under two different statutes in no way violates the Equal

Protection Clause. [Defendant] cites no authority which holds otherwise, and this

Court is aware of none.” Id. at 699 (footnote omitted). Likewise, we find

Defendant’s Equal Protection claim in this case lacks merit.

DECREE

For the foregoing reasons, Defendant’s sentence is affirmed.

AFFIRMED.

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