State of Louisiana v. Edwin N. Rivera

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

KA 11-1460

STATE OF LOUISIANA

VERSUS

EDWIN N. RIVERA

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 25274-10
HONORABLE DAVID KENT SAVOIE, DISTRICT JUDGE

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BILLY HOWARD EZELL
JUDGE

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Court composed of John D. Saunders, Billy Howard Ezell, and Phyllis M. Keaty,
Judges.
AFFIRMED.
John Foster DeRosier
District Attorney
Carla Sue Sigler
Assistant District Attorney
P. O. Box 3206
Lake Charles, LA 70602-3206
(337) 437-3400
COUNSEL FOR PLAINTIFF/APPELLEE:
State of Louisiana

Beth Smith Fontenot
Louisiana Appellate Project
P. O. Box 3183
Lake Charles, LA 70602
(337) 491-3864
COUNSEL FOR DEFENDANT/APPELLANT:
Edwin N. Rivera

EZELL, Judge.

The Defendant, Edwin N. Rivera, was charged by bill of information filed on

July 28, 2010, with home invasion, a violation of La.R.S. 14:62.8, and second degree

sexual battery, a violation of La.R.S. 14:43.2. The Defendant entered a plea of not

guilty on August 9, 2010. On January 26, 2011, the Defendant entered a plea of guilty

to the charges. The Defendant was sentenced on May 11, 2011, to serve fifteen years

with the Department of Corrections, with five years suspended, for home invasion.

The first five years of the sentence were to be served without benefit of probation,

parole, or suspension of sentence. The trial court further ordered the Defendant be

placed on probation for five years upon his release from incarceration. He was also

sentenced to serve twelve years with the Department of Corrections without benefit of

probation, parole, or suspension of sentence for second degree sexual battery. The

sentences were to be served concurrently.

A motion for appeal was filed on May 13, 2011, and was granted. A motion to

reconsider sentence was filed on May 27, 2011, and was subsequently denied.

The Defendant is now before this court asserting two assignments of error.

Therein, he contends his guilty pleas to both home invasion and second degree sexual

battery violated his constitutional protection against double jeopardy, as the same

evidence was used to support his plea to both offenses. He additionally contends the

sentences imposed by the trial court were excessive. We find the Defendant‟s double

jeopardy and excessive sentence claims lack merit.

FACTS

The Defendant pled guilty to home invasion and second degree sexual battery.

The factual basis for the plea is set forth in our analysis of the Defendant‟s double

jeopardy claim.

ERRORS PATENT

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

patent on the face of the record. After reviewing the record, we find there are no

errors patent.

ASSIGNMENT OF ERROR NUMBER ONE

In his first assignment of error, the Defendant contends his guilty plea to both

home invasion and second degree sexual battery violated his constitutional protection

against double jeopardy, as the same evidence was used to support his plea to both

offenses.

Generally, guilty pleas constitute a waiver of all non-jurisdictional
defects, see, e.g., State v. McKinney, 406 So.2d 160, 161 (La.1981), and
generally courts review them only to ensure that the plea “was both
counseled and voluntary.” United States v. Broce, 488 U.S. 563, 569,
109 S.Ct. 757, 762, 102 L.Ed.2d 927 (1989). Though the Supreme Court
and this Court have created an exception to this rule for double jeopardy
violations, Broce, 488 U.S. at 575-76, 109 S.Ct. at 765; State ex rel.
Adams v. Butler, 558 So.2d 552, 553 n. 1 (La.1990), that exception
applies only “where on the face of the record the court had no power to
enter the conviction or impose the sentence.” Broce, 488 U.S. at 575-76,
109 S.Ct. at 765. Properly applied, the exception requires limited review
of only the charging documents and plea colloquy. See Hagan v. State,
836 S.W.2d 459, 461 (Mo.1992).

State v. Arnold, 01-1399, p. 1 (La. 4/12/02), 816 So.2d 289, 290.

In State v. Archield, 09-1116, p. 4 (La.App. 3 Cir. 4/7/10), 34 So.3d 434, 438,

writ denied, 10-1146 (La. 5/20/11), 63 So.3d 972, this court set forth the tests to be

applied when reviewing a double jeopardy claim, explaining:

Both the United States and Louisiana Constitutions prohibit double
jeopardy; the imposition of multiple punishments for a single criminal
act. See U.S. Const. amend. V; La. Const. art. 1, § 15. See also, La.Code
Crim.P. art. 591. Louisiana courts use two methods, the “Blockburger
Test” and the “same evidence test”, to determine whether double
jeopardy exists. State v. Williams, 07-931 (La.2/26/08), 978 So.2d 895.

In Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180,
182, 76 L.Ed. 306 (1932), the United States Supreme Court interpreted
the Fifth Amendment‟s prohibition of double jeopardy and enunciated
the following test to be employed by the federal courts, as follows:
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The applicable rule is that, where the same act or
transaction constitutes a violation of two distinct statutory
provisions, the test to be applied to determine whether there
are two offenses or only one is whether each provision
requires proof of an additional fact which the other does not.

In interpreting Article 1, Section 15 of the Louisiana Constitution,
Louisiana courts have also used the broader “same evidence test” which
provides:

If the evidence required to support a finding of guilt
of one crime would also have supported conviction of the
other, the two are the same offense under a plea of double
jeopardy, and a defendant can be placed in jeopardy for only
one. The test depends on the evidence necessary for
conviction, not all the evidence introduced at trial.

State v. Cotton, 00-850, p. 5 (La.1/29/01), 778 So.2d 569, 573, quoting
State v. Steele, 387 So.2d 1175, 1177 (La.1980).

The Defendant alleges his convictions for home invasion and second degree

sexual battery constitute double jeopardy under the same evidence test; thus, we will

not address the Blockburger test.

Louisiana Revised Statutes 14:62.8 defines home invasions as follows:

[T]he unauthorized entering of any inhabited dwelling, or other structure
belonging to another and used in whole or in part as a home or place of
abode by a person, where a person is present, with the intent to use force
or violence upon the person of another or to vandalize, deface, or damage
the property of another.

Louisiana Revised Statutes 14:43.2 defines second degree sexual battery, in pertinent

part:

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

....

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
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the function of a bodily member, organ, or mental faculty, or a
substantial risk of death.

At the time the Defendant entered his plea of guilty, the State set forth the

following factual basis (emphasis added):

June 28th, 2010, a white female, date of birth June 12th, 1992, was
at 3918 Auburn Street, her boyfriend‟s home. -- I‟m sorry -- 3917. And
her boyfriend left to go to school; and about ten minute[s] later, the
backdoor [sic] comes open. The defendant comes into the residence.
Immediately, in an aggressive manner, heads toward the female, spraying
her in her face and eyes with pepper spray, battering her, throwing her
down on the floor, pulled her boxer shorts and panties down, and inserted
his finger into her vagina.

She was put in extreme pain by the amount of pepper spray that
was sprayed into her eyes and facial area and suffer [sic] the pain for at
least a week later.

Between her fighting and I believe her dog, who was there, coming
after the defendant, she was able to free herself from the defendant. And
then he fled from the scene. Just so happened that an off duty officer was
out jogging and had noticed him earlier, acting suspiciously, saw him
running; and when the call came through, the cop put two and two
together. And he was stopped before he had gotten back to his vehicle,
which he had parked down the street from her residence.

When the police got there, they, of course, were gathering
evidence, including the clothing from the victim; and they found a dark
blue condom on a table in the residence, close to the area where he had
thrown the victim down. D N A testing revealed that his D.N.A. was on
that condom.

So, all of the elements of home invasion came in: With a
person present, used force or violence upon her, then attacked her,
forced his finger into her penis (sic) and injured her, causing extreme
pain to her eye and facial area by the excessive amount of pepper
spray that he sprayed into her face and eyes.

The Defendant quotes the highlighted portion of the factual basis set forth by

the State. The Defendant contends the crime of home invasion would have been

complete when he entered the residence with the intent to use force or violence and

sprayed pepper spray in the victim‟s eyes. Further, the crime of second degree sexual

battery was not a separate and distinct offense, as the State relied upon the spraying of

pepper spray to prove the serious bodily injury element of second degree sexual
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battery. The Defendant avers the State relied on the evidence of spraying pepper

spray to prove both offenses.

The State contends it listed a multitude of evidence available to support the

home invasion offense and did not limit itself since so much evidence supported the

charge. The State then contends the evidence it used to support the intent to use force

or violence element of home invasion was the Defendant‟s battery of the victim when

he threw her to the floor.

When the Defendant entered the residence with pepper spray, he did not have to

actually discharge the pepper spray, causing serious bodily injury to the victim, or

touch the victim to be found guilty of home invasion. The Defendant only had to

intend to discharge the pepper spray or forcefully touch the victim. Furthermore, in

order to convict the Defendant of second degree sexual battery, the State was required

to prove the Defendant actually caused serious bodily injury to the victim by spraying

her with pepper spray and that he inserted his finger in her vagina. We find that the

record supports the determination that in the present matter the crimes of home

invasion and second degree sexual battery were separate and distinct offenses. For

these reasons, this assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER TWO

In his second assignment of error, the Defendant contends the sentences

imposed by the trial court are excessive.

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
5

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:

[A]n 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[, 3] (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[, p. 2]
(La.5/31/96); 674 So.2d 957, 958.

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.

State v. Guidry, 11-695, p. 3 (La.App. 3 Cir. 12/7/11), 79 So.3d 1242, 1244-45

(alterations in original).

The Defendant pled guilty to home invasion, which is punishable by a term of

five to twenty years at hard labor with at least five years of the sentence imposed

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

14:62.8(B)(1). The Defendant was sentenced to fifteen years with the Department of

Corrections. The trial court suspended five years of that sentence and ordered the first

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

suspension of sentence. The trial court further ordered that, upon the Defendant‟s

release from incarceration, he be placed on probation for five years.

The Defendant also pled guilty to second degree sexual battery, which is

punishable by a term of not more than fifteen years with or without hard labor without

benefit of probation, parole, or suspension of sentence. La.R.S. 14:43.2(C)(1). The

Defendant was sentenced to twelve years with the Department of Corrections without

benefit of probation, parole, or suspension of sentence.

At the sentencing hearing, defense counsel informed the trial court that the

Defendant had a substance abuse problem that may have contributed to his lack of

judgment. Defense counsel noted the Defendant was nineteen years old, the child of a

disabled single mother, had not completed high school, and had no criminal record.

Defense counsel then stated the victim asked that the sentence be “not less than five

years.”

When sentencing the Defendant, the trial court stated:

The defendant, in his statement to the probation officer, indicated that
something happened and he didn‟t intend for the attempted rape of the
victim in this case to happen. The physical facts seem to belie that. It
appears to me that an open condom and a condom still in its wrapper
found in the house and being armed with pepper spray, for someone who
says he believes that the house is empty, is ludicrous. I think he made up
that story. I think that it is more like what Mr. Kimball describes as he
stalked, observed what was going on. The boyfriend left. He went in the
house. He broke in. He saw her on the couch, jumped over the couch,
sprayed her with pepper spray, grabbed her clothes, kept her from trying
to escape, and attempted to rape her. That‟s what I believe, and I am
going to sentence him accordingly.

I am taking into account the fact that he did save the Court the time
and effort from having to present this case for trial. I feel like any lesser
sentence would seriously deprecate the seriousness of what he did.

The Defendant contends the trial court imposed much longer sentences than the

five year minimum requested by the victim. Additionally, he admitted his guilt, lacks

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a criminal record, is young, and is in need of substance abuse treatment; thus,

Defendant argues, the sentences imposed make no measurable contribution to

acceptable goals of punishment. Further, Defendant claims that the trial court‟s

intention to suspend five years of the sentence imposed for home invasion was

thwarted by the trial court‟s imposition of twelve years without benefits for second

degree sexual battery.

The State contends the Defendant‟s sentences are not excessive, and he

benefitted from the dismissal of several other charges, including simple burglary,

unlawful possession of alcohol, and disturbing the peace, as part of his plea

agreement. We note that the State did dismiss the above-referenced charges that were

pending in two other docket numbers. However, there was no mention of the

dismissal being part of a plea agreement.

This court could find no similar cases for comparison with the sentences

imposed in the case at bar. “While comparisons with other similar cases „is useful in

itself and sets the stage,‟ [State v.] Telsee, 425 So.2d [1251] at 1254 [(La.1983)], the

focus of sentence review remains on the character and propensities of the offender and

the circumstances of the offense. Id.” State v. LeBlanc, 09-1355, p. 10 (La. 7/6/10),

41 So.3d 1168, 1173.

“[S]entences at or near the maximum should ordinarily apply only to the most

blameworthy offenders committing the most serious violations of the described

offense.” Id. This court finds the circumstances of the offenses were appalling, as the

Defendant apparently waited for the victim‟s boyfriend to leave, entered the residence

with an open condom, sprayed the victim with pepper spray to disorient or overcome

her, threw her to the ground, removed her shorts, and inserted his finger in her vagina.

In light of these circumstances, we hereby rule that the near maximum sentences

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imposed were within the statutory range and are not excessive despite the Defendant‟s

classification as a first offender.

DISPOSITION

The Defendant‟s sentences are hereby affirmed.

AFFIRMED.

This opinion is NOT DESIGNATED FOR PUBLICATION. Uniform Rules-
Courts of Appeal. Rule2-16-3.

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