State of Louisiana v. Eric Dainelle Montgomery

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

09-212

STATE OF LOUISIANA

VERSUS

ERIC DAINELLE MONTGOMERY

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APPEAL FROM THE
ELEVENTH JUDICIAL DISTRICT COURT,
PARISH OF SABINE, NO. 63879
HONORABLE CHARLES B. ADAMS, DISTRICT JUDGE

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J. DAVID PAINTER
JUDGE

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Court composed of Jimmie C. Peters, Elizabeth A. Pickett, and J. David Painter,
Judges.

AFFIRMED.

G. Paul Marx, Attorney at Law
Louisiana Appellate Project
P.O. Box 82389
Lafayette, LA 70598
Counsel for Defendant-Appellant:
Eric Dainelle Montgomery

Anna L. Garcie, Assistant District Attorney
Office of the District Attorney
P.O. Box 1557
Many, LA 71449
Counsel for Appellee:
State of Louisiana

PAINTER, Judge.

Defendant, Eric Dainelle Montgomery, appeals his sentence of seven years at

hard labor after his plea of guilty to the charge of felony carnal knowledge of a

juvenile.

FACTUAL AND PROCEDURAL BACKGROUND

On August 31, 2007, Defendant, Eric Dainelle Montgomery, entered the

victim’s home without an invitation, got on top of the female victim who was

sleeping on the sofa, put a pillow over her face, and forced her to have sexual

intercourse. At the time of the offense, Defendant was twenty-five years old, and the

victim was fifteen years old.

On October 12, 2007, Defendant was charged by bill of information with

forcible rape, a violation of La.R.S. 14:42.1. Defendant pled guilty on September 11,

2008, to the reduced charge of felony carnal knowledge of a juvenile, a violation of

La.R.S. 14:80. On November 21, 2008, Defendant was sentenced to seven years at

hard labor with credit for time served. A Motion to Reconsider Sentence was filed

on November 25, 2008, and summarily denied on December 2, 2008. Defendant is

now before this court on appeal, asserting that his sentence is excessive. For the

following reasons, we disagree with Defendant’s contention and affirm his sentence

of seven years at hard labor with credit for time served.

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 a thorough review of the record in this

case, we find that there are no errors patent.

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Excessiveness of Sentence

Defendant argues that the seven years at hard labor is excessive when

considering his age and the circumstances of this case. This court has set forth the

following standard to be used in reviewing excessive sentence claims:

La.Const. art. I, § 20 guarantees that, “[n]o law shall subject any
person to cruel or unusual punishment.” To constitute an excessive
sentence, the reviewing court must find the penalty so grossly
disproportionate to the severity of the crime as to shock our sense of
justice or that the sentence makes no measurable contribution to
acceptable penal goals and is, therefore, nothing more than a needless
imposition of pain and suffering. State v. Campbell, 404 So.2d 1205
(La.1981). The trial court has wide discretion in the imposition of
sentence within the statutory limits and such sentence shall not be set
aside as excessive absent a manifest abuse of discretion. State v.
Etienne, 99-192 (La.App. 3 Cir. 10/13/99); 746 So.2d 124, writ denied,
00-0165 (La.6/30/00); 765 So.2d 1067. The relevant question is
whether the trial court abused its broad sentencing discretion, not
whether another sentence might have been more appropriate. State v.
Cook, 95-2784 (La.5/31/96); 674 So.2d 957, cert. denied, 519 U.S.
1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).

State v. Barling, 00-1241, 01-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035,

1042-43, writ denied, 01-838 (La. 2/1/02), 808 So.2d 331.

To decide whether a sentence shocks the sense of justice or makes no

meaningful contribution to acceptable penal goals, this court has held:

[An] appellate court may consider several factors including the nature
of the offense, the circumstances of the offender, the legislative purpose
behind the punishment and a comparison of the sentences imposed for
similar crimes. State v. Smith, 99-0606 (La.7/6/00), 766 So.2d 501.
While a comparison of sentences imposed for similar crimes may
provide some insight, “it is well settled that sentences must be
individualized to the particular offender and to the particular offense
committed.” State v. Batiste, 594 So.2d 1 (La.App. 1 Cir.1991).
Additionally, it is within the purview of the trial court to particularize
the sentence because the trial judge “remains in the best position to
assess the aggravating and mitigating circumstances presented by each
case.” State v. Cook, 95-2784 (La.5/31/96), 674 So.2d 957, 958.

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State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ denied,

03-562 (La. 5/30/03), 845 So.2d 1061.

Defendant filed a written motion to reconsider sentence, in which he asserted

that “[s]even years is excessive when considering the defendant [sic] age (26) and the

fact the defendant is a first felony offender . . . and due to the circumstances of the

case.”

On appeal, Defendant urges this court to consider his youth and his status as

a first felony offender. Additionally, Defendant argues that the trial court gave too

much weight to his Presentence Investigation (PSI) report. Defendant contends that

the DNA evidence contradicts the victim’s story, and thus, there was no reason to

give the PSI more weight than the DNA evidence.

Defendant also maintains that the reduced charge was an accurate reflection of

the offense rather than an advantage for him. Additionally, Defendant states that

there was no testimony to suggest any exceptional trauma, cruelty, or offense

characteristics. Lastly, Defendant asserts that he has three children and has an

employment history of oilfield work. In light of all these facts, Defendant concludes

that the trial court did not consider the strong mitigating factors of his age and

personal history.

The maximum possible sentence for felony carnal knowledge of a juvenile is

ten years, with or without hard labor, or a fine of up to $5,000.00, or both. La.R.S.

14:80. As such, Defendant’s sentence is almost seventy-five percent of the maximum

possible sentence. Defendant, however, was spared a fine. Additionally, Defendant

received a significant benefit from his plea agreement. Prior to his plea, he faced a

maximum possible sentence of forty years at hard labor. La.R.S. 14:42.1.

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At sentencing, the trial court observed that the case started out as a forcible

rape case that was amended to felony carnal knowledge of a juvenile. It found that

the police reports reflected that the case was “more of a forcible rape case rather than

a carnal knowledge case.” The State admitted, however, that evidentiary issues

existed with regard to where the forcible rape allegedly took place as compared to

where consensual sex allegedly took place. The State asserted that the only reason

a plea agreement was offered was because of the lack of “evidentiary evidence.”

The trial court then inquired as to why Defendant was being convicted of any

offense. The State explained that the victim never recanted her statement and that she

wanted to avoid a trial due to the amount of trauma she was already experiencing at

that point. The State added that Louisiana law makes it impossible for a child of the

victim’s age to consent to sexual intercourse and that Defendant did not plead guilty

to a charge that states that the offense was consensual.

Mitzi Harris, a Sexual Assault Advocate, testified at the sentencing hearing.

According to Ms. Harris, the victim chose not to submit a victim impact statement

because she felt that the repercussions would cause her more harm than good. Ms.

Harris explained that the town where the offense occurred, Many, Louisiana, is a

small town and that “things are still being said when she’s [the victim] seen out in

town” and that the victim had changed to a different school due to “the situation she

had at school.” Ms. Harris was not asked about the specific details or the victim’s

difficulties about town or at school. Lastly, Ms. Harris testified that she had no

reason to believe that the victim’s statement regarding the offense was inaccurate.

Defendant submitted four letters written on his behalf regarding his character.

The trial court admitted the letters for its consideration but made no comments

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regarding the content thereof. Counsel for Defendant urged the trial court to consider

that the youthful Defendant was a first felony offender.

The trial court summarized the mitigating and aggravating factors it considered

in sentencing Defendant as follows:

The Court has received a pre-sentence investigation on you and
on this case. It indicates that you were originally charged in the original
arrest with carnal knowledge. That charge was upgraded to forcible
rape. You were actually billed with forcible rape. And that charge, you
were allowed, was reduced and you were allowed to plead guilty to
carnal knowledge of a juvenile. Criminal history, talks about this being
your first felony offense. Indicates, however, in 2005 in Bossier City
you were charged with manufacturing and distribution or possession
with intent to distribute schedule I. You plead guilty to possession of
schedule I. So you were not convicted of a felony but you did have a
felony arrest. Two other misdemeanor arrests and convictions,
contributing to the delinquency of juveniles September 3, 2000.
Reckless operation of a motor vehicle. In addition to that, DWI,
operating a motor vehicle while intoxicated in 2005. Mr. Montgomery,
there was some indication in this pre-sentence that you originally made
a statement that the girl lied to you. You didn’t know how old she was.
But then it appears from the record that she’s been a lifetime friend of
the family. The Court is finding as a matter, the facts in this case are
that you did know this girl, now still a minor, and have known her for
quiet [sic] some time. That you did know how old she is. . . And having
discussed the facts on the record previously, the Court finds this case is
a very serious case, Mr. Montgomery. The record indicates that you
have three children. You pay some child support by three different
mothers. You’ve never been married . . . And you’re currently at age
twenty-six or at least prior to this, living with your grandmother.
Completed ninth grade. Some employment, D&R Grocery two years,
Alliance Compressors for one year. You worked for four different oil
field drilling companies but never for anyone more than three months.

In comparing his sentence to similar sentences for similar offenses, Defendant

refers this court to its decision in State v. Brister, 06-884 (La.App. 3 Cir. 12/6/06),

946 So.2d 258. In Brister, the defendant was sentenced to five years at hard labor

and ordered to pay a $1,000.00 fine, plus court costs, for felony carnal knowledge of

a juvenile. Brister was originally charged with two counts of carnal knowledge of a

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juvenile. Pursuant to a plea agreement, he pled guilty to one count of felony carnal

knowledge of a juvenile and the remaining count was dismissed.

After reviewing the record, we find that Defendant’s sentence of seven years

at hard labor is not excessive. The trial court clearly considered Defendant’s age and

the fact that the instant offense was his first felony conviction. Defendant’s criminal

history, however, reveals a number of arrests and misdemeanor convictions. Simply

put, Defendant is no stranger to the judicial system.

With regard to DNA evidence, the record does not support Defendant’s

allegation that the DNA evidence contradicts the victim’s story. The State indicated

that there was a lack of DNA evidence which would have supported her claim that

she had been forcibly raped, not that the evidence contradicted her story.

Additionally, the testimony of the victim, alone, is sufficient to establish that she did

not willingly participate in sexual intercourse with Defendant. In State v. Rideaux,

05-446, p. 2 (La.App. 3 Cir. 11/2/05), 916 So.2d 488, 491, the court observed the

following ruling in State v. Roca, 03-1076, pp. 11-12 (La.App. 5 Cir. 1/13/04), 866

So.2d 867, 874, writ denied, 04-583 (La. 7/2/04), 877 So.2d 143, which stated:

In the absence of internal contradiction or irreconcilable conflict
with physical evidence, one witness’s testimony, if believed by the trier
of fact, is sufficient support for a requisite factual finding. State v. Stec,
99-633, p. 4 (La.App. 5 Cir. 11/30/99), 749 So.2d 784, 787. In the case
of sexual offenses, the testimony of the victim alone can be sufficient to
establish the elements of a sexual offense, even where the State does not
introduce medical, scientific or physical evidence to prove the
commission of the offense.

Although DNA evidence may have strengthened the State’s case against Defendant,

such evidence in addition to the victim’s testimony is not required. As such, the

State’s decision to offer a plea bargain due to the lack of physical evidence does not

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equate with Defendant’s assertion that the facts do not support a conviction for

forcible rape.

The State also indicated that the plea bargain was offered to prevent the victim

from enduring a trial on the merits. Additionally, based on the police reports, the trial

court disagreed that the reduced charge of felony carnal knowledge of a juvenile was

an accurate reflection of the offense. Lastly, the trial court indicated that

Defendant’s credibility was called into question as a result of his claim that the victim

lied to him about her age, in spite of the fact that he more than likely knew her age

since she had been a longtime friend of his family.

As for trauma sustained by the victim, the evidence suggests that the victim

suffered significant repercussions from her allegation against Defendant to the point

that she changed schools and was too afraid to complete a victim impact statement.

As such, the record suggests that the victim did sustain exceptional emotional trauma

as result of the offense.

Lastly, the record indicates that the trial court considered that Defendant is the

father of three children for which he provides some support and that he has been

employed in the oilfield. Defendant’s employment history, however, was sporadic.

Although Defendant’s sentence is toward the upper end of the sentencing

range, he nonetheless did not receive the maximum sentence, nor was he fined. Also,

his sentence is only two years longer than the sentence in Brister, the jurisprudence

upon which Defendant relies in comparing his case. Additionally, Defendant

significantly reduced his sentencing exposure as a result of his plea agreement.

Accordingly, we find that the trial court did not abuse its discretion in imposing the

Defendant’s sentence.

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DECREE

For all of the foregoing reasons, Defendant’s sentence of seven years at hard

labor is affirmed.

AFFIRMED.

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

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