State of Louisiana v. J.B. B.

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

09-746

STATE OF LOUISIANA

VERSUS

J.B.B.

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APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 260,779
HONORABLE GEORGE C. METOYER, JR., DISTRICT JUDGE

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MICHAEL G. SULLIVAN
JUDGE

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Court composed of Jimmie C. Peters, Marc T. Amy, and Michael G. Sullivan, Judges.

AFFIRMED.

James C. Downs
District Attorney
Brian C. Cespiva
Assistant District Attorney
701 Murray Street
Alexandria, Louisiana 71301
(318) 473-6650
Counsel for:
State of Louisiana

Annette Fuller Roach
Louisiana Appellate Project
Post Office Box 1747
Lake Charles, Louisiana 70602-1747
(337) 436-2900
Counsel for Defendant/Appellant:
J.B.B.

J.B.B. #324154
In Proper Person
Camp Raven 1Right Cell #2
Angola State Penitentiary
Angola, Louisiana 70712

SULLIVAN, Judge.

Defendant appeals his mandatory life sentence for aggravated rape of a child

under the age of twelve. We affirm.

Facts

J.B.B.1 was indicted with four counts of aggravated rape of a child under the

age of twelve2 in violation of La.R.S. 14:42. The indictment asserted that the rapes

were committed between August 1, 2000 and March 10, 2001. Defendant waived his

right to trial by jury, and a trial on the merits was held. At trial, the State introduced

evidence showing that Defendant anally raped his ten-year-old nephew while the boy

was spending the night with him. The child reported anal penetration, and a medical

examination of the child corroborated the sodomy. Medical evidence established that

the child’s sphincter muscles were unusually lax and caused anal gaping, such that

the sphincter muscles were no longer capable of closing completely.

The trial court found Defendant guilty of one count of aggravated rape and not

guilty of the remaining three counts. The trial court believed the child’s testimony

was “truthful, believable, and unwavering. The court listened very carefully for any

hesitations, any waverings[,] or any retractions, and there were none.” The trial court

found that the medical evidence corroborated the child’s story and observed, “What

makes this case even more concerning is the mental damage that [the victim] will

have to live with and the damage to all family members concerned.” Defendant was

1
In accordance with La.R.S. 46:1844(W), the initials are being used to protect the identity
of the minor victim.
2
Acts 2003, No. 795, § 1, substituted “thirteen years” for “twelve years” in La.R.S.
14:42(A)(4).
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sentenced to serve life imprisonment without benefit of probation, parole, or

suspension of sentence. He now appeals his conviction and sentence.

Waiver of Jury Trial

Defendant filed a pro se brief in which he contends that he could not be tried

by a judge because the potential penalties for aggravated rape at the time of the

offense included the death sentence. He further alleges that he could not have validly

waived his right to trial by jury because the prosecution did not formally state it was

not seeking a death sentence in his case.

Article I § 17(A) of the Louisiana Constitution provides, “A criminal case in

which the punishment may be capital shall be tried before a jury of twelve persons,

all of whom must concur to render a verdict. . . . Except in capital cases, a defendant

may knowingly and intelligently waive his right to a trial by jury,” and La.Code

Crim.P. art. 782 provides, “A. Cases in which punishment may be capital shall be

tried by a jury of twelve jurors, all of whom must concur to render a verdict . . . .

B. Trial by jury may be knowingly and intelligently waived by the defendant except

in capital cases.”

These two articles require a unanimous jury verdict only if the “punishment

may be capital.” See also, State v. Singleton, 05-622 (La.App. 5 Cir. 1/31/06), 922

So.2d 647. Defendant appeared in open court to waive his right to a jury trial. At that

time, the trial court informed him, “if the State can prove certain things then . . .

you’ll be going to jail for the rest of your life.” At the sentencing hearing, the trial

court, unopposed by the State, imposed life imprisonment. The record does not

establish that the State formally waived its right to seek the death penalty; however,

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the State did not attempt to have the trial court impose the death penalty at

sentencing. Accordingly, we find Defendant’s pro se argument is without merit.

Defendant also seeks to have his conviction and sentence set aside and a new

trial ordered because the trial court failed to assure that his “waiver of his right to a

jury trial was voluntarily entered.” He urges that the questioning by the trial court

during his waiver of his right to jury trial was insufficient to fully inform him of his

right to trial by jury and the consequences of being tried by judge alone because the

trial court did not: 1) explain the function of the jury; 2) determine that his waiver

was free and voluntary; 3) question whether his waiver of trial by jury was to obtain

a speedy trial; 4) inquire about his educational background; 5) examine whether he

understood the waiver; or 6) indicate it was familiar with his education or

understanding. Defendant also claims that his responses to the trial court’s questions

were vague and that the record establishes he nodded his head at one point with no

indication of whether it implied an affirmative or negative answer.

The supreme court has determined that significantly less is required to obtain

a valid waiver of a defendant’s right to trial by jury than what Defendant claims is

necessary. In State v. Pierre, 02-2665, pp. 1-2 (La. 3/28/03), 842 So.2d 321, 322

(citations omitted), the supreme court observed:

Although it remains the preferred method for the district court to advise
a defendant of her right to trial by jury in open court before obtaining a
waiver, such a practice is not statutorily required. Likewise, it is
preferred but not necessary, for the defendant to waive her right to jury
trial personally. Counsel may waive the right on the defendant’s behalf,
provided that the defendant’s decision to do so was made knowingly and
intelligently.

In the instant case, the record reflects that counsel waived a jury
trial on the defendant’s behalf. On the second day of trial, the district
court memorialized the defendant’s earlier waiver in her presence. At
this time, defense counsel stated that he and his client had discussed the

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waiver at length and on several occasions, and that both agreed to the
waiver. In these circumstances, the court of appeal erred in its
determination that the defendant did not waive her right to a jury trial
knowingly and intelligently.

In open court, on January 14, 2002, the prosecution informed the trial court that

Defendant desired a trial on the merits instead of a jury trial, and defense counsel

stated, “It is his jury trial[,] and he’s the one who must verbally waive same.” The

trial court then asked Defendant if he had discussed the matter with his attorney,

whether “after discussing this matter with [counsel], you find it to be in your best

interest to go ahead and have this matter tried,” and if he wanted his day in court.

Defendant answered, “Yes” to all these questions.

The trial court then asked Defendant, “you’re asking that upon getting your day

in court that you would like for me to try the case as opposed to a jury. Is that

correct?” Defendant initially replied, “If you want,” then immediately stated, “Yes,

Sir.” Defendant next stated, “I swear to God I was set up,” to which the trial court

explained:

No, no, no. I don’t want you to try the case but I understand
exactly what you’re telling me. I just need to know that you understand
the ramifications of what you do. Okay. The charge that you’re facing
is a very serious charge and if the State can prove certain things then
what happens is that it puts you in a position that you’ll be going to jail
for the rest of your life. That’s what that means. See, that’s what kind
of charge you’ve got. You understand that.

Defendant did not verbally respond, but the court reporter noted, “defendant nods.”

Although Defendant did not verbally respond to the trial court’s last statements,

the colloquy prior to this final exchange establishes that the trial court clearly

informed Defendant of his right to trial by jury and that Defendant, both personally

and through his attorney, stated that he desired a bench trial instead. This assignment

is without merit.

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Excessive Sentence

Defendant contends that the life sentence imposed on him is “nothing more

than a needless imposition of pain and suffering and thus a violation of Article I, §

20 of the Louisiana Constitution and the Eighth Amendment of the United States

Constitution” and that the trial court would have deviated from the mandatory life

sentence if allowed. He correctly notes that, although a mandatory life sentence is

presumed constitutional, a defendant can rebut the presumption by showing he is

exceptional. See State v. Johnson, 97-1906 (La. 3/4/98), 709 So.2d 672.

In support of his claim that his sentence is excessive, Defendant points out that,

while he has a prior felony record, he has never before been accused of a sex offense.

He also claims that the evidence was minimal, internally inconsistent, and vague as

to what occurred and whether it occurred on more than one occasion. Defendant’s

support for this claim is the lack of evidence concerning the degree of penetration and

the physical and psychological injury suffered by the child as a result of Defendant’s

actions. Defendant further contends that the penalty imposed on him for the

aggravated rape of his nephew should be less than what would have been imposed if

he had “thrash[ed] the victim within an inch of his life.”

Defendant is not entitled to a review of his sentence because he did not make

an oral motion for reconsideration of his sentence and he did not file a written motion

to reconsider sentence with the trial court alleging specific errors. La.Code Crim.P.

art. 881.1. However, we will review his sentence for bare excessiveness in the

interest of justice. State v. Graves, 01-156 (La.App. 3 Cir. 10/3/01), 798 So.2d 1090,

writ denied, 02-29 (La. 10/14/02), 827 So.2d 420 (citing La.Code Crim.P. art. 881.1).

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The life sentence for a conviction of aggravated rape is a mandatory sentence.

La.R.S. 14:42. In State v. Prudhomme, 02-511, p. 17 (La.App. 3 Cir. 10/30/02), 829

So.2d 1166, 1177, writ denied, 02-3230 (La. 10/10/03), 855 So.2d 324, this court

discussed whether a mandatory minimum sentence can be excessive, explaining:

A mandatory minimum sentence may be excessive if the sentence
makes no measurable contribution to acceptable goals of punishment
and amounts to the purposeful imposition of pain and suffering and is
grossly disproportionate to the crime. State v. Dorthey, 623 So.2d 1276
(La.1993). On the other hand, a mandatory minimum sentence is
presumed to be constitutional. State v. Johnson, 97-1906 (La.3/4/98);
709 So.2d 672. To rebut this presumption, the defendant must carry the
burden to show that he is exceptional. Id. Specifically, the defendant
must show that, due to 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 of the case.” Id. at p. 8; 709 So.2d at 676 (quoting State
v. Young, 94-1636, pp. 5-6 (La.App. 4 Cir. 10/26/95); 663 So.2d 525,
528, writ denied, 95-3010 (La.3/22/96); 669 So.2d 1223).

The trial court sentenced Defendant in accordance with La.R.S. 14:42, and

Defendant’s arguments do not establish that he is “exceptional.” Additionally,

contrary to Defendant’s argument that the evidence is lacking as to the degree of

penetration, the medical evidence established that he penetrated the victim to the

extent that it caused his anus to gape open. Moreover, while the full extent of the

physical and emotional trauma suffered by the victim was not established at trial, the

trial court recognized in its reasons the traumatic effect Defendant’s actions had on

the victim as well as his family. Furthermore, this court has consistently held that life

imprisonment for aggravated rape is not constitutionally excessive, even in cases

where the physical violence against the victim was not particularly vicious. State v.

H.J.L., 08-823 (La.App. 3 Cir. 12/10/08), 999 So.2d 338; State v. Leyva-Martinez,

07-1255 (La.App. 3 Cir. 4/30/08), 981 So.2d 276, writ denied, 08-1200 (La. 1/30/09),

999 So.2d 747; State v. Viree, 95-176 (La.App. 3 Cir. 3/6/96), 670 So.2d 733, writ

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denied, 96-885 (La. 9/20/96), 679 So.2d 431; State v. Thibodeaux, 94-605 (La.App.

3 Cir. 12/7/94), 647 So.2d 525.

This assignment of error is without merit.

Effective Assistance of Counsel

Defendant claims that he was denied effective assistance of counsel by his trial

attorney’s failure to file a “written motion to reconsider sentence, to correct the trial

court’s mis-conception that it could not deviate below the mandatory sentence of life

imprisonment” after the trial court indicated it would not have a problem deviating

from the sentence if allowed. He alleges that his trial lawyer further failed to preserve

the issue for review and failed to provide the sentencing court with the proper

authority and facts upon which it could base a downward departure from the

mandatory life sentence. Defendant submits these failures prejudiced the trial court

and negatively affected the penalty it imposed. He asks this court to set aside his

sentence and remand the matter for resentencing.

Usually, ineffective assistance of counsel claims raised on appeal are relegated

to post-conviction relief. State v. Lee, 08-456 (La.App. 3 Cir. 11/5/08), 996 So.2d

1217. However, because Defendant’s claim involves allegations of sentencing errors,

it is not reviewable in an application for post-conviction relief. State ex rel. Melinie

v. State, 93-1380 (La. 1/12/96), 665 So.2d 1172. Therefore, we will review the merits

of these claims.

Defendant relies on a statement made by the trial court at the sentencing

hearing for support of his claim that the trial court would have deviated from the

mandatory life imprisonment sentence provided in La.R.S. 14:42 if it had been

informed that it could do so. When sentencing Defendant, the trial court stated:

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“You were found guilty. And the sentence is not something that I can deviate from.

If I could, I would. I wouldn’t have any problem.” Contrary to Defendant’s

contention, the trial court’s statement does not clearly indicate it was open to

deviating toward a more lenient sentence, as the statements could also be interpreted

as an indication that the trial court felt the death penalty would have been more

appropriate than life imprisonment.

This court has held that ineffective assistance of counsel claims must meet two

separate criteria in order to have merit:

In order to prove that counsel was ineffective, the defendant must meet
the two-pronged test enunciated by the Supreme Court. First, the
defendant must show that counsel’s performance was deficient. Second,
the defendant must show that this deficiency prejudiced the outcome of
the trial. To establish a claim of ineffective assistance of counsel, a
defendant must demonstrate that his defense attorney failed to meet the
level of competency normally demanded of attorneys in criminal cases.

In considering allegations of ineffectiveness, defense attorneys are
entitled to a strong presumption that their conduct fell within the broad
range of reasonable professional assistance. The United States Supreme
Court has held that the benchmark for judging a charge of
ineffectiveness is whether the attorney’s conduct so undermined the
proper functioning of the adversarial process that the trial cannot be
considered to have produced a just result.

It is not enough for an accused to make allegations of
ineffectiveness; the accused must couple these allegations with a
specific showing of prejudice. A claim of ineffective assistance of
counsel may be disposed of based upon a failure to satisfy either criteria
of the established two-pronged test; if the accused’s claim fails to satisfy
one, the reviewing court need not address the other. A brief review of
the defendant’s complaints against his attorneys will demonstrate the
deficiency of his arguments.

State v. James, 95-962, pp. 4-5 (La.App. 3 Cir. 2/14/96), 670 So.2d 461, 465

(citations omitted).

Defendant has not established that he is exceptional and warrants a lesser

sentence than the mandatory life sentence provided for by La.R.S. 14:42. Therefore,

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he has not establish that his trial counsel’s performance was deficient. Furthermore,

he has not established he was prejudiced by trial counsel’s performance because he

has not established that the trial court would have considered imposing a lesser

sentence. This assignment of error is without merit.

Disposition

Defendant’s conviction and sentence are affirmed.

AFFIRMED.

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

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