State of Louisiana v. Paul B. Stephan

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

11-648

STATE OF LOUISIANA

VERSUS

PAUL B. STEPHAN

**********

APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, DOCKET NO. 13658-08
HONORABLE CLAYTON DAVIS, DISTRICT JUDGE

**********

SYLVIA R. COOKS
JUDGE

**********

Court composed of Sylvia R. Cooks, John D. Saunders and Shannon J. Gremillion,
judges.

AFFIRMED.

Paula C. Marx
Louisiana Appellate Project
P.O. Box 80006
Lafayette, LA 70598-0006
(337) 991-9757
Counsel for Defendant/Appellant, Paul B. Stephan

Karen C. McLellan
Assistant District Attorney
Hon. John F. DeRosier
District Attorney
1020 Ryan Street
Lake Charles, LA 70601
(337) 437-3400
Counsel for Appellee, State of Louisiana

COOKS, Judge.

PROCEDURAL HISTORY

Paul Stephan (Defendant), was charged by bill of indictment with the

offenses of attempted second degree murder, theft of a vehicle valued over

$500.00, and second degree robbery. Defendant originally pled not guilty to the

charges but later entered a guilty plea to the charge of second degree robbery as

part of a plea bargain in which the State dismissed the charges of attempted second

degree murder and theft. A presentence investigation was ordered by the court,

and on November 10, 2010, the Defendant was sentenced to serve thirty years in

the custody of the Louisiana Department of Corrections. Defendant appeals his

conviction and alleges his sentence is excessive. Defendant did not file a motion

for reconsideration of sentence in the trial court.

FACTS

The factual basis provided by the State at the guilty plea proceeding simply

indicated that investigation by the Calcasieu Parish Sheriff‟s Office revealed

Defendant committed a second degree robbery of Cesar Torres (Torres). No

further particular facts were mentioned. Facts established during the sentencing

phase of this case show that Torres had been a helpful friend to Defendant.

Defendant invited Torres to his home in the guise of introducing him to some girls.

Upon arriving at Defendant‟s home, Torres knocked on the front door but no one

answered. After Torres turned to walk away, Defendant shot him in the back of

the head and took him inside his home. He told Torres that he had fallen and hit

his head on a nail. Defendant laid Torres on the couch and left him there bleeding

for approximately five hours without seeking medical assistance. Defendant took

Torres‟ coat which contained his credit cards and truck keys before calling an

ambulance. After the ambulance took Torres to a hospital, Defendant took a nap,

and then drove to Texas in Torres‟ vehicle and proceeded to use Torres‟ credit

cards. Defendant admits using Torres credit cards and taking his truck. The

indictment also charged Defendant with taking cash from Torres but the cash

which Torres had on him when he arrived at Defendant‟s home was still on his

person at the hospital.

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

errors patent on the face of the record. There are no errors patent.

ASSIGNMENT OF ERROR NO. 1

Defendant contends the trial court erred in denying his motion to withdraw

his guilty plea because the record does not demonstrate sufficient compliance with

statutory and constitutional requirements. More specifically, Defendant contends

his plea should be vacated because it was taken in the absence of advice as to the

nature of the charges and his right to maintain his plea of not guilty.

Defendant claims his colloquy with the court does not establish that he fully

understood the nature of the charge against him. He sets forth his argument as

follows:

The colloquy between the court and Mr. Stephan in this case
does not evidence a sufficient exchange to establish Mr. Stephan fully
understood the nature of the charges against him and that the plea was
freely and voluntarily entered. The record does not reflect Mr.
Stephan was advised he had the right to maintain his plea of not
guilty, as is required by Article 556.1.

The court read the plea form which included a statement that
Paul Stephan understood the nature of the charge. But there was no
explanation and appellant‟s answers were simply, “yes, sir” or “no,
sir” to the questions posed in the reading of the form. While the court
went over the Boykin rights in this process, the elements of second
degree robbery were not read, nor were the specifics of the indictment
mentioned in the colloquy. The factual basis for the conviction of
second degree robbery was conclusory as well.

2

This deficiency is significant since the indictment charges the
thing taken in the robbery was U.S. currency, and Mr. Stephan
admitted only to using Torres‟ truck and credit cards. A sealed bag of
money was still in Torres‟ possession when he was taken by
ambulance to the hospital, thus, this currency clearly was not taken by
Mr. Stephan. Also, Mr. Stephan denied shooting Torres. Thus, the
explanation of the nature of the charge is essential since one element
of second degree robbery is that the offender intentionally inflict
serious bodily injury. LSA R.S. 14:64.4.

Defendant contends the record before this court shows he lacked awareness

of the essential nature of the offense to which he was pleading, and for this reason,

he argues, his plea cannot stand. He requests a remand to be given the option to

proceed to trial or plead anew with full advice of his rights.

Second degree robbery is defined as “the taking of anything of value

belonging to another from the person of another or that is in the immediate control

of another when the offender intentionally inflicts serious bodily injury.” La.R.S.

14:64.4.

At the plea proceeding, the State indicated Defendant was charged with

theft, second degree robbery, and attempted second degree murder. It further

indicated that upon his guilty plea to second degree robbery, the State would move

to nolle prosse the remaining two charges. Defendant acknowledged he had

reviewed the plea form with his attorney. The judge read over the form with

Defendant and instructed Defendant to stop him if he had any questions. In

pertinent part, the written plea form stated, “I understand the nature of the charge

and that this is a felony offense which could result in a penitentiary sentence . . . .”

The court read this statement to Defendant and advised him of the penalty range

for the offense. Defendant indicated to the court he understood what he was being

told. The court then reviewed the rights Defendant was waiving by pleading

guilty, specifically, a right to a jury trial, the right to confront and cross-examine

3

witnesses, the right to compulsory process, the privilege against self-incrimination,

the right to counsel, and the right to appeal from a verdict of guilt. When asked by

the court whether Defendant‟s attorney had “gone over all of this,” Defendant

answered in the affirmative. The court asked Defendant whether he had any

questions concerning the form or his plea. He replied he did not. The factual basis

provided by the State was, “the state would prove that on or about November 25,

2007, investigation by the Calcasieu Parish Sheriff‟s Office revealed the defendant

did commit a second degree robbery of Cesar Torres.” Defendant acknowledged

that this fact was correct.

Louisiana Code of Criminal Procedure Article 556.1 provides in pertinent

part:

A. In a felony case, the court shall not accept a plea of guilty or
nolo contendere without first addressing the defendant personally in
open court and informing him of, and determining that he
understands, all of the following:

(1) The nature of the charge to which the plea is offered, the
mandatory minimum penalty provided by law, if any, and the
maximum possible penalty provided by law.

....

(3) That he has the right to plead not guilty or to persist in that
plea if it has already been made, and that he has the right to be tried
by a jury and at that trial has the right to the assistance of counsel, the
right to confront and cross-examine witnesses against him, and the
right not to be compelled to incriminate himself.

....

E. Any variance from the procedures required by this Article
which does not affect substantial rights of the accused shall not
invalidate the plea.

In support of his position, Defendant cites State v. Ford, 06-1435 (La.App. 3

Cir. 4/4/07), 954 So.2d 876. In Ford, the defendant was originally charged with

one count of vehicular homicide, one count of hit and run driving, and one count of
4

operating a vehicle while intoxicated. The latter two charges were dismissed by

the state upon the defendant entering a plea of guilty to the offense of vehicular

homicide. On appeal, the defendant claimed the trial court failed to inform him

that causation was an element of vehicular homicide, and because of that failure,

his motion to withdraw his guilty plea should have been granted by the trial court.

This court determined that the trial court‟s failure to advise the defendant of

causation, an essential element of the offense, was not harmless error1:

The record of the plea proceedings establishes that the trial
court informed the defendant that he was charged with vehicular
homicide, but did not inform him of the nature of the charge by
explaining its elements. Thus, the trial court failed to comply with its
obligations pursuant to La.Code Crim.P. art. 556.1(A)(1). However,
in State v. Longnon, 98-551, p. 7 (La.App. 3 Cir. 10/28/98), 720 So.2d
825, 829, writ denied, 98-2969 (La.3/19/99), 739 So.2d 781, this court
concluded that because the requirement of La.Code Crim.P. art.
556.1(A)(1) “is a statutory requirement rather than a constitutional
requirement (as is the requirement that the trial court inform the
Defendant of the three Boykin rights)” it is subject to a harmless error
analysis. See also State v. Roe, 05-116 (La.App. 3 Cir. 6/1/05), 903
So.2d 1265, writ denied, 05-1762 (La.2/10/06), 924 So.2d 163; State
v. Morrison, 99-1342 (La.App. 3 Cir. 3/1/00), 758 So.2d 283; State v.
Whiddon, 99-1 (La.App. 3 Cir. 6/2/99), 741 So.2d 797. In reviewing
the record before us, we find that the trial court‟s failure to comply
with La.Code Crim.P. art. 556.1(A)(1) is not harmless error. The
record contains nothing that would give notice to the defendant of the
specific elements of the offense for which he was charged. In fact, the
only other reference in the record to the nature of the offense is found
in an inadequate factual basis presented by the state to the trial court
during the plea proceedings. That factual basis presented is as
follows:

The State would prove, on October 29th, 2004,
[the defendant] was the operator of a motor vehicle in the
approximate 200 block of 16th Street, in Lafayette. Also

1
In the present case, the State was not required to provide a factual basis because the
Defendant entered a plea of guilty rather than one pursuant to North Carolina v. Alford, 400 U.S.
25, 91 S.Ct. 160 (1970). See State v. Tauzin, 98-46 (La.App. 3 Cir. 10/7/98), 720 So.2d 98.

In Ford, the defendant entered a plea of guilty. Hence, the state was not required to
provide a factual basis, although this was not mentioned in the opinion. However, the factual
basis that was provided was considered in this court‟s analysis of whether the defendant was
made aware of the elements of the crime.
5

in and around that area was a bicycle being operated by
McDaniel Landry.

Mr. Ford collided with and struck the bicycle
being maneuvered by Mr. McDaniel Landry. The impact
caused Mr. Landry to travel across the top of the
defendant―Mr. Ford‟s vehicle. He landed face down in
the roadway about 25 feet away.

Mr. Ford was―had been smoking marijuana and
was smoking marijuana at the time of the crash. This, he
admitted to Officer Chad Fontenot. Mr. Landry died as a
result of the injuries that were suffered during the course
of this accident.

....

No question that the accident was proximately
caused by the operation of that motor vehicle while he
was under the influence of marijuana.

This factual basis established only that an accident involving the
defendant and the victim occurred on October 29, 2004, and that the
victim died as a result of the injuries he sustained therein. It is silent
as to the particulars of the accident and does not impart knowledge of
the elements of the offense to the defendant. That is to say, the record
contains nothing to suggest who caused the accident.1 As pointed out
by the defendant on appeal, this factual basis coupled with the trial
court‟s failure to inquire into his understanding of the nature of the
charge would lead the defendant to conclude that he was guilty of
vehicular homicide by having been involved in an accident which
resulted in a fatality after having smoked marijuana sometime in the
immediate past. Such an understanding does not address who caused
the accident as is a required element of La.R.S. 14:32.1.

We find merit in this assignment of error. The noncompliance
with La.Code Crim.P. art. 556.1(A)(1) requires that we vacate the
defendant‟s conviction and sentence and remand this matter to the
trial court for further proceedings.
1
The last comment of the state concerning causation is nothing more than an unsubstantiated
conclusion if based on the factual basis presented.

Id. at 879-80.

In Defendant‟s brief, although he denies he took currency from the victim,

Defendant notes he admitted to using the victim‟s truck and credit cards. Second

degree robbery requires the taking of “something of value belonging to another.”

6

Thus, Defendant‟s acknowledgement that he took the victim‟s truck and credit

cards refutes his allegation that he was unaware of this particular element of the

offense.

This case is distinguishable from Ford. Although the trial court did not

specifically inform the Defendant of the nature of the charge in this case, it did

inquire as to whether he understood the nature of the charge:

THE COURT:

....

“I understand the nature of the charge and that it is a felony
offense which could result in a penitentiary sentence if I am guilty
thereof. I am also aware of the minimum and maximum sentences
provided therefor by law.”

There is a minimum sentence of two years Department of
Corrections, not more than forty years.

Do you understand that?

MR. STEPHAN:

Yes, sir.

Further, Defendant in the present case was originally charged with attempted

second degree murder of the victim, a charge dismissed in conjunction with his

plea of guilty. The presence of the charge of attempted murder of the victim

demonstrates an awareness by Defendant that the State alleged he inflicted serious

bodily injury on his victim. This, combined with Defendant‟s representation to the

court that he understood the nature of the charge, distinguishes this case from

Ford.

7

HARMLESS ERROR

In State v. Gross, 99-3534 (La. 6/23/00), 768 So.2d 592, 592-93, the

supreme court issued the following ruling regarding a similar violation of La.Code

Crim.P. art. 556.1:

Writ granted. The judgment of the court of appeal vacating
defendant‟s guilty plea is reversed, defendant‟s conviction and
sentence are reinstated. The defendant made the critical decision not
to risk the self-defense scenario outlined in his confession in the
context of a capital murder trial at which he could receive the death
penalty, and to accept a life sentence running concurrently with
another life sentence imposed in Arkansas for an unrelated murder.
Given that choice, the trial court‟s failure to advise the defendant, as
part of the plea colloquy required by La.Code Crim. Proc. art. 556.1,
that a charge of first degree felony murder under La.Rev.Stat.
14:30A(1) requires the state to prove specific intent to kill or to inflict
great bodily harm, as opposed to second degree felony murder,
another life offense, which does not have a specific intent component,
La.Rev.Stat. 14:30.1A(2)(a), cannot “ „reasonably be viewed as
having a material factor affecting the [defendant‟s] decision to plead
guilty.[‟] [”] State v. Guzman, 99-1528, p. 11 (La.5/16/00), 769 So.2d
1158, 1165 (quoting United States v. Johnson, 1 F.3d 296, 301-02 (5th
Cir.1993)).

In a number of cases, this court has found noncompliance with La.Code

Crim.P. art. 556.1, but has found such error harmless. For example, in State v.

Morrison, 99-1342 (La.App. 3 Cir. 3/1/00), 758 So.2d 283, the defendant

complained on appeal that the trial court failed to comply with art. 556.1 because

it failed to inform him of the elements of the charge. The guilty plea form signed

by the defendant indicated he was informed of the nature of the charge, but the

guilty plea colloquy did not indicate that he was informed by either his attorney or

the trial judge of the elements of the charge. This court held:

Prior to the enactment of Article 556.1, this court chose not to
vacate guilty pleas based on the trial court‟s failure to advise the
defendant of the nature and penalties of his crime. Since the
enactment of Article 556.1, however, such an advice is mandatory.
Thus far, this court has found that when noncompliance with Article
556.1 involves a statutory requirement rather than a constitutional
requirement (i.e., advising of the three Boykin rights) the
8

noncompliance is harmless if the defendant does not “allege any
misunderstanding as to the nature of the charges to which he pled.”
See State v. Whiddon, 741 So.2d at 800. In the instant case, the
Defendant specifically alleges that the trial court did not satisfy the
requirements of Article 556.1 by failing to advise him of the elements
of the charge against him. However, the Defendant does not allege
that he did not understand the nature of the charges to which he pled.
The record clearly reflects that the Defendant was properly
Boykinized, informed of the charge and sentencing exposure, and of
the factual basis for the charge. Under the circumstances, we find the
trial court‟s failure to delineate the specific elements of the charge to
be harmless error.

Id. at 284-85.

In State v. Whiddon, 99-1 (La.App. 3 Cir. 6/2/99), 741 So.2d 797, this court,

on error patent review,2 found that the trial court did not personally inform the

defendant of the nature of the charge to which he pled guilty. At the Boykin

proceeding, the prosecutor stated the defendant was charged with driving while

intoxicated, third offense, and the judge later stated he was charged with DWI,

third offense. This court found the advice sufficient since DWI is a fairly

straightforward crime. However, this court pointed out that the trial court did not

read the elements of the offense and did not explain the prior offense element.

Accordingly, this court found a violation of art. 556.1 had occurred, but it held:

Nevertheless, “since this requirement is a statutory requirement, rather
than a constitutional requirement . . . and the Defendant does not
allege any misunderstanding as to the nature of the charges to which
he pled,” nor is there any indication from the Boykin analysis, which
follows, that his plea was involuntary.” Accordingly, we find the
error harmless.

Id. at 800.

In State v. Roberts, 08-1026 (La.App. 3 Cir. 3/4/09), 4 So.3d 1011, this court

faced a similar issue:

2
Whiddon was decided before the supreme court‟s ruling in Guzman, 769 So.2d 1158,
which held that examination of a guilty plea transcript for compliance with La.Code Crim.P. art.
556.1 is beyond the scope of an error patent review.
9

Defendant contends that the trial court failed to ascertain his
ability to make a knowing and intelligent decision to enter a plea of
guilty.

A valid guilty plea must be a free and voluntary
choice by the defendant. A guilty plea will not be
considered free and voluntary unless, at the very least,
the defendant was advised of his constitutional rights
against self-incrimination, to a trial by jury, and to
confront his accusers. Boykin v. Alabama, 395 U.S. 238,
89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); State v. Kennedy,
42,850 (La.App.2d Cir.1/9/08), 974 So.2d 203. An
express and knowing waiver of those rights must appear
on the record, and an unequivocal showing of a free and
voluntary waiver cannot be presumed.

State v. Minniefield, 43,300, p. 3 (La.App. 2 Cir. 6/4/08), 986 So.2d
227, 230.

....

Defendant asserts that despite his claim of self-defense, the trial
court failed to determine whether he understood his right to continue
his plea of not guilty and prove that he acted in self-defense. The trial
court informed Defendant that he had the right to plead not guilty.
Defendant does not allege that he did not understand that he had the
right to persist in his plea of not guilty. Self-defense was not asserted
by Defendant or defense counsel at the time Defendant entered his
plea of guilty, and Defendant never filed a motion to withdraw his
guilty plea on these grounds.

Defendant asserts that although the trial court discussed each
Boykin right and read the statute for aggravated second degree battery,
including the penalty range, it did not assure itself that he understood
what was being said. Defendant has not alleged that he did not
understand the information explained to him by the trial court or that
he did not intend to enter a plea of guilty. Defendant was represented
by counsel. The transcript indicates that the trial court fully explained
Defendant‟s Boykin rights to him and that he indicated that he
understood each of those rights. We conclude that the inquiry made
by the trial court at Defendant‟s guilty plea hearing satisfied the
requirements of Boykin and La.Code.Crim.P. art. 556.1.

Defendant complains that the trial court did not define battery
when giving the definition of aggravated second degree battery, and
thus, he was not properly and fully informed of the nature of the
charge against him. In support of his argument, Defendant cites State
v. Ford, 06-1435 (La.App. 3 Cir. 4/4/07), 954 So.2d 876. . . .

10

In State v. Roe, 05-116 (La.App. 3 Cir. 6/1/05), 903 So.2d
1265, writ denied, 05-1762 (La.2/10/06), 924 So.2d 163, the
defendant challenged the sufficiency of the trial court‟s description of
the nature of the offense of aggravated second degree battery. In
rejecting Roe‟s argument, we noted:

[O]ur review indicates that the record supports the
defendant‟s assertion that the trial court did not list the
elements of the offense at the sentencing hearing.
However, as in [State v.] Morrison [, 99-1342 (La.App. 3
Cir. 3/1/00), 758 So.2d 283], our review indicates that the
defendant was properly Boykinized, informed of the
factual basis for the charge and informed of the possible
sentencing exposure. Furthermore, the defendant does
not allege on appeal that he did not understand the nature
of the charge against him, merely that the district court
did not ascertain that he understood. Based on these
circumstances, we find the trial court‟s failure to list the
specific elements of the defendant‟s charge to be
harmless error.

Id. at 1269. See also State v. Matthew, 07-1326 (La.App. 3 Cir.
5/28/08), 983 So.2d 994.

The definition of battery is fairly straightforward. Defendant
admitted that he hit the victim and cut him with a box cutter.
Moreover, he failed to allege he did not understand the nature of the
charge against him. We conclude that the trial court‟s failure to
inform Defendant of the definition of battery was harmless error.

Defendant complains that the trial court did not inform him of
the intent necessary to commit the offense of aggravated second
degree battery. He contends that the facts which he recited when he
entered his plea of guilty do not indicate he had the specific intent to
commit battery but instead show that he was defending himself.
Nevertheless, neither Defendant nor defense counsel claimed self-
defense at the guilty plea. Furthermore, Defendant does not allege
that he did not understand the intent necessary to commit the offense
or the nature of the offense.

Defendant argues that the trial court failed to inform him of the
additional penalty required by La.Code Crim.P. art. 883.2. This
assertion is correct; however, nothing in La.Code Crim.P. art. 556.1
requires the trial court to inform a defendant about the mandates of
La.Code Crim.P. art. 883.2. Additionally, Defendant does not assert
he was unaware of the provisions of that article or that he would not
have pled guilty had he known he could be ordered to pay restitution.
Further, it appears Defendant was aware restitution was an issue as his
attorney mentioned it immediately after the plea.

11

Defendant next asserts that the trial court failed to inform him
of the injuries suffered by the victim. Louisiana Code of Criminal
Procedure Article 556.1 does not require the trial court to inform a
defendant of the injuries suffered by a victim. Additionally,
Defendant does not allege that he was unaware of the injuries suffered
by the victim.

Defendant‟s guilty plea was knowingly and intelligently made.
We find the case at bar distinguishable from Ford in that Defendant
informed the trial court that he fought with the victim and admitted to
cutting the victim with a box cutter. Thus, causation was clearly
established. For the reasons outlined above, Defendant‟s second
assignment of error lacks merit.

Id. at 1016-19.

Next, in State v. Sullivan, 02-360 (La.App. 3 Cir. 10/2/02), 827 So.2d 1260,

writ denied, 02-2931 (La. 4/21/03), 841 So.2d 790, and writ denied, 02-2965 (La.

9/5/03), 852 So.2d 1024, the defendant argued that the trial court failed to advise

him of the minimum and maximum sentences for his offense, information that is

required to be given in accordance with La.Code Crim.P. art. 556.1. This court

granted no relief, stating:

We do not conclude that knowledge of the minimum and
maximum penalties for first degree robbery would have affected the
defendant‟s decision to plead to second degree robbery. He has an
extensive criminal history, agreed to an open-plea, and was well
aware that he could have been charged as an habitual offender. In
fact, at the August 7, 1997 hearing, the trial court specifically called to
the defendant‟s attention the life-imprisonment provisions of La.R.S.
15:529.1 for multiple offenders. We find it unlikely that knowing the
minimum and maximum penalties would have affected the
defendant‟s decision to plead guilty.

Id. at 1265.

In the present case, Defendant alleges his colloquy with the court does not

show a sufficient exchange to establish that he fully understood the nature of the

charges, and that the plea was voluntarily entered. He claims the record shows he

lacked awareness of the nature of the offense. There is nothing in the guilty plea

transcript suggesting Defendant was unaware of the nature of the charge nor
12

anything indicating the plea was involuntary. Defendant was apprised of, indicated

he understood, and waived his right to a trial by jury, his right to confront his

accusers, and his privilege against self-incrimination. As in Gross, given the fact

that Defendant was originally facing charges of attempted second degree murder

and theft (dismissed in conjunction with Defendant‟s guilty plea), the trial court‟s

failure to advise Defendant that a charge of second degree robbery required the

State to prove that he intentionally inflicted serious bodily injury on the victim

cannot “ reasonably be viewed as having [been] a material factor affecting the

[defendant‟s] decision to plead guilty.” Gross, 768 So.2d at 593. Accordingly, we

find that although an art. 556.1 violation occurred, it is harmless error.

Defendant, in a single sentence, also asserts that “[t]he record does not

reflect Mr. Stephan was advised he had the right to maintain his plea of not guilty,

as is required by Article 556.1.” While Defendant points out the trial court‟s

noncompliance with art. 556.1 on this basis, he does not allege on appeal that he

did not understand that he could maintain his plea of not guilty. He simply alleges

he was not specifically advised that he could do so. Thus, for the reasons stated

above, this error is harmless as well.

ASSIGNMENT OF ERROR NO. 2:

Defendant contends the trial judge, who did not preside over the taking of

the guilty plea, failed to sufficiently articulate the factors considered for sentencing

as required by La.Code Crim.P. art. 894.1 and that he received an excessive

sentence. He claims the excessiveness of his sentence cannot be fully explored

without sufficient articulation for the reasons for sentencing.

Defendant did not file a motion to reconsider sentence, thus, Defendant‟s

claims are barred by La.Code Crim.P. art. 881.1. See State v. Baylor, 08-141

13

(La.App. 3 Cir. 11/26/08), 998 So.2d 800, writ denied, 09-275 (La. 11/20/09), 25

So.3d 795. Accordingly, Defendant‟s claim concerning the trial court‟s

noncompliance with La.Code Crim.P. art. 894.1 cannot be considered. Our review

of Defendant‟s sentence is limited to a bare claim of excessiveness. See State v.

Boyer, 10-693 (La.App. 3 Cir. 2/2/11), 56 So.3d 1119.

Defendant points out for this court‟s consideration that he is sixty years old

and has COPD, making a thirty year sentence essentially a life sentence for him.

He notes that despite his illness he has held a full-time job and has served in the

military.

In State v. Guilbeau, 11-99, p. 8-9 (La.App. 3 Cir. 6/22/11), __ So.3d __,

this court discussed the basis for reviewing a bare claim of excessiveness. We

stated therein:

The analysis for an excessive sentence claim is well-established:

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, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01),
779 So.2d 1035, 1042-43, writ denied, 01-0838 (La.2/1/02), 808
So.2d 331 (alteration in original).

14

In State v. Lisotta, 98-648 (La.App. 5 Cir. 12/16/98), 726 So.2d
57, writ denied, 99-0433 (La.6/25/99), 745 So.2d 1183, our colleagues
on the Fifth Circuit Court of Appeal noted three factors the appellate
court should consider in reviewing a judge‟s sentencing discretion.
They are:

1. the nature of the crime,

2. the nature and background of the offender, and

3. the sentence imposed for similar crimes by the
same court and other courts.

State v. Telsee, 425 So.2d 1251 (La.1983); State v. Richmond, 97-
1225 (La.App. 5 Cir. 3/25/98), 708 So.2d 1272.

Id. at 58.

State v. Baker, 06-1218, pp. 7-8 (La.App. 3 Cir. 4/18/07), 956 So.2d
83, 89, writs denied, 07-320 (La.11/9/07), 967 So.2d 496 and 07-1116
(La.12/7/07), 969 So.2d 626.

The penalty range for second degree robbery is not less than three nor more

than forty years at hard labor. La.R.S. 14:64.4.

We first note that at sentencing, the victim was not available, but the judge

stated he had read the statement prepared by the victim explaining the grief

Defendant caused him. The State explained to the court that the victim was a

jockey at Delta Downs who made a significant amount of money before this

incident. He thought he was Defendant‟s friend and did everything he could to

help him. Nevertheless, Defendant robbed him, took his vehicle to Texas, and

used his credit cards having no remorse for Torres who sustained serious injuries to

his brain as a result of his offense. According to the prosecutor, the victim was sent

to the hospital in Orange, Texas and was then transferred to Beaumont. Due to his

injuries, at the time of sentencing, he was no longer gainfully employed in the

capacity that he was before the offense.

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Defense counsel noted for the court that Defendant pled to second degree

robbery and that “sometimes, there are reasons where the district attorney‟s office

may not push an attempted second-degree murder, because sometimes it‟s not

such.” Defense counsel requested a sentence of three years.

The prosecutor objected, noting that Defendant‟s lack of remorse spoke

volumes about his character. He further pointed out to the court, “He [the victim]

also has - - I think - - I don‟t want to misstate it, but he does have a severe mental

defect as a result of that bullet in his head. . . .” The following colloquy then took

place between the court and Defendant: (emphasis added)

THE COURT:

Looks like he wasn‟t particularly cooperative or
truthful, I should say, initially. Obviously, there were
problems with proof on the other charges. And I do note
that Mr. Stephan has a very impressive history of
criminal behavior consistent through his life. He’s a
seventh felony offender.

THE DEFENDANT:

May I say something , Your Honor?

....

THE DEFENDANT:

Them felonies, four of them was [sic] committed
at one time, and three was [sic] committed at another
[sic] on the same day.

THE COURT:

Okay. Given the extreme circumstances of the
event and the - - and the record of the defendant, and the
effect on the victim, I‟m going to sentence Mr. Stephan
to 30 years DOC, credit for time served.

In State v. Guillory, 10-1175 (La.App. 3 Cir. 4/6/11), 61 So.3d 801, the

defendant contended on appeal that his fifty-year sentence for attempted second

16

degree murder and his forty-year sentence for second degree robbery were

excessive. This court, finding no merit to the defendant‟s claim, stated:

The trial court‟s reasons for the sentences, although quite brief,
fully support them. After punching her several times, Defendant
choked the supine victim. To save herself, she simulated death. As
the trial judge‟s brief remarks at sentencing indicated, it is likely that
the victim preserved her own life by pretending to die. The act of
choking another person has been repeatedly recognized as indicative
of a specific intent to kill. See, e.g., State v. Young, 00-1437
(La.11/28/01), 800 So.2d 847; State v. Ware, 07-968 (La.App. 3 Cir.
3/5/08), 980 So.2d 730, writ denied, 08-847 (La.10/31/08), 994 So.2d
534; State v. Durand, 07-4 (La.App. 5 Cir. 6/26/07), 963 So.2d 1028,
writ denied, 07-1545 (La.1/25/08), 973 So.2d 753; State v. Bernard,
39,579 (La.App. 2 Cir. 4/6/05), 899 So.2d 818.

Thus, in the course of the second degree robbery, Defendant
inflicted a brutal beating on the victim. Her left eye swelled shut, and
she suffered a broken ankle bone. Defendant ended the incident by
trying to kill the victim. The victim‟s quick thinking prevented the
incident from becoming a completed murder. For these reasons, we
find that the sentences are not excessive.

Id. at 809.

Additionally, in State v. Allen, 05-1622 (La.App. 1 Cir. 3/29/06), 934 So.2d

146, the first circuit concluded that a twenty-five year sentence for second degree

robbery was not unconstitutionally excessive:

At sentencing, the court noted the defendant‟s criminal history
indicated he had three prior felony convictions, specifically,
convictions for simple burglary, and two convictions for possession of
cocaine. As a result of those convictions, the defendant had been
incarcerated on two occasions and his parole had been revoked on one
occasion.

In regard to the evidence introduced at trial, the court found the
evidence proved beyond a reasonable doubt that the defendant‟s
conduct during the commission of the offense manifested deliberate
cruelty to the victim. The court also noted the instant offense was a
crime of violence, and the defendant had committed the crime to
obtain a controlled dangerous substance. The court rejected the
alleged mitigating circumstance that the defendant was “only
considered a principal” to the offense, noting that being a principal to
an offense was not a mitigating circumstance, especially when the
defendant had physically held the victim while the defendant‟s
accomplices kicked the victim. The court also rejected the alleged
17

mitigating circumstance that Curole had received “only” an eight-year
sentence, noting Curole had availed himself of a plea agreement and it
had not been necessary for a trial to be undertaken to prove his guilt.

The court also rejected the alleged mitigating circumstances
that the defendant was mentally challenged, a high-school drop out,
addicted to cocaine, and homeless. The court noted it did not consider
any of the aforesaid conditions to be mitigating factors, and moreover,
no evidence had been presented that the defendant suffered from
mental illness or had an IQ of 70 or less. The court stated it had
considered the defendant‟s age of twenty-eight years in determining
an appropriate sentence. The court also stated it had considered the
fact that the defendant had no other convictions for crimes of
violence.

The court conceded the defendant‟s prior criminal history
included many misdemeanors, but noted it also included three felony
convictions, two terms of incarceration, and a revocation of parole.
The court rejected the defendant‟s claim that he had shown remorse
for the victim, noting the only time the defendant showed remorse was
after he was being investigated as one of the parties who committed
the robbery.

The court did not dispute that the victim did not lose any bodily
organs or limbs as a result of the offense, but noted the evidence
proved beyond a reasonable doubt that he suffered a fracture of the
orbit of his eye during the offense and had to take narcotic pain
medication over ten hours after being attacked. The court noted it had
taken into consideration the fact that there was no proof of permanent
impairment of the victim‟s eye.

Additionally, the court determined there was an undue risk that
during the period of a suspended sentence, the defendant would
commit another crime; that the defendant was in need of correctional
treatment; and that a lesser sentence would minimize the seriousness
of the defendant‟s offense.

Id. at 156-57.

The nature of the offense in this case is serious and the victim is suffering

long-term effects from the injury inflicted upon him by the Defendant, a gunshot

wound to the head with a bullet still lodged in the victim‟s brain. As the trial court

noted information contained in the Presentence Investigation Report (PSI) revealed

Defendant is a seventh felony offender. Although the trial court stated there may

have been proof problems with the companion charge of attempted second degree
18

murder, these problems are not stated in the record. We note that dismissal of the

two felonies of attempted second degree murder and theft in conjunction with the

Defendant‟s guilty plea benefitted him significantly. Viewing Defendant‟s thirty-

year sentence in light of Barling, Baker, and Lisotta, we find it is not

unconstitutionally excessive.

ASSIGNMENT OF ERROR NO. 3:

In this assignment of error, Defendant contends he sufficiently objected to his

sentence to allow this court to conduct an excessive sentence review.

Alternatively, if the objection is found to be inadequate to preserve an excessive

sentence claim, Defendant argues counsel was ineffective in failing to file a motion

to reconsider sentence or object to the sentence. In State v. Doucet, 09-1065, pp.

7-9 (La.App. 3 Cir. 5/5/10), 36 So.3d 1105, 1110-12, writ denied, 10-1195 (La.

12/17/10), 51 So.3d 19, we reviewed the law on this subject and stated: (emphasis

added)

When the defense counsel fails to file a motion to reconsider
sentence, Defendant may have a claim of ineffective assistance of
counsel when Defendant “can show a reasonable probability, but for
defense counsel’s error, his sentence would have been different.”
Prudhomme, 829 So.2d at 1177 (citing State v. Texada, 98-1647
(La.App. 3 Cir. 5/5/99), 734 So.2d 854). Moreover,

[a] claim of ineffective assistance of counsel is
properly raised in an application for post-conviction
relief. This allows the trial judge an opportunity to order
a full evidentiary hearing on the matter. State v.
Burkhalter, 428 So.2d 449 (La.1983). However, where
the record contains evidence sufficient to decide the issue
and the issue is raised by an assignment of error on
appeal, it may be considered. State v. James, 95-962
(La.App. 3 Cir. 2/14/96); 670 So.2d 461.

To prove an allegation of ineffectiveness, Defendant must
specifically show prejudice. Blake, 872 So.2d 602 (citing State v.
Reed, 00-1537 (La.App. 3 Cir. 3/6/02), 809 So.2d 1261, writ denied,
02-1313 (La.4/25/03), 842 So.2d 391). “Whether or not a defendant
received ineffective assistance of counsel is a two-part inquiry. First,
19

we must determine whether the trial court would have reduced the
Defendant‟s sentences upon the filing of a „Motion to Reconsider
Sentence.‟ Second, we must determine whether the sentences were
excessive.” Id. at 609.

(1) Would the Trial Court Have Reduced the Defendant’s
Sentence

Doucet did not file a motion to reconsider sentence and did not
object to the sentence at the time it was imposed. In brief to this
court, Doucet asserts the trial court did not inquire into his family or
work history. He maintains the record does not indicate a lengthy
criminal record and none of his prior offenses are in the same “crime
family” as vehicular homicide. He further asserts that he had no prior
convictions for driving while intoxicated.

Doucet contends he assisted police in locating the vehicle after
the accident and accepted responsibility for his actions by pleading
guilty. He avers the trial court failed to give consideration to these
mitigating factors. Further, the trial court failed to consider his need
for substance abuse rehabilitation.

Doucet also argues that the victim‟s death and his use of drugs
are elements of the offense and should not be considered as
aggravating factors. Further, the record does not support the trial
court's conclusion that the events were likely to re-occur. Doucet
asserts that considering the factors listed by the trial court at
sentencing, it failed to give sufficient weight to La.Code Crim.P. art.
894.1 in arriving at the sentence. Doucet then contends his sentence is
excessive.

At sentencing, the trial court noted Doucet‟s extensive criminal
record, which began at a very early age. The trial court commented
that it reviewed the PSI and that it has carefully considered the
provisions of La.Code Crim.P. art. 894. The trial court distinguished
factual circumstances of this case from the one where two people have
been drinking together and then decided to get into a car together and
one of the persons gets killed in an accident. The trial court reasoned
that unlike Doucet‟s victim, the victim who gets into the car and gets
killed assumed a certain amount of risk. Thus, the trial court
concluded that a lesser sentence than what it was going to impose
would deprecate the seriousness of Doucet‟s offence, especially in
light of Doucet‟s criminal record that pointed to probable recidivism.

We find that the trial court considered the circumstances of this
case and Doucet‟s circumstances before imposing the sentence. Thus,
we conclude that the trial court was unlikely to have reduced Doucet‟s
sentence had a motion to reconsider sentence been filed.

20

The Doucet court went on to determine that the defendant‟s sentence was

not excessive. It concluded that even if defense counsel had filed a motion to

reconsider sentence, the sentence would have been deemed appropriate.

Accordingly, prejudice was not shown.

In the present case, the sentencing judge reviewed the victim‟s statement and

the PSI. He noted Defendant‟s extensive criminal history and felt that the extreme

circumstances of the incident, Defendant‟s record, and the effect on the victim

warranted a thirty-year sentence. Under these circumstances, we find it is unlikely

the trial court would have reduced Defendant‟s sentence had defense counsel filed

a motion to reconsider sentence. Additionally, as discussed above, Defendant‟s

sentence is not excessive. Accordingly, Defendant has not established a claim of

ineffective assistance of counsel.

For the reasons as stated, Defendant‟s conviction and sentence are affirmed.

AFFIRMED.

21