State of Louisiana v. Torino Adarryl Cormier

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

13-1140

STATE OF LOUISIANA

VERSUS

TORINO ADARRYL CORMIER

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 28065-12
HONORABLE CLAYTON DAVIS, DISTRICT JUDGE

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JOHN D. SAUNDERS
JUDGE

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Court composed of John D. Saunders, Marc T. Amy, and J. David Painter, Judges.

AFFIRMED.

John Foster DeRosier
14th JDC District Attorney
P. O. Box 3206
Lake Charles, LA 70602-3206
(337) 437-3400
COUNSEL FOR PLAINTIFF APPELLEE:
State of Louisiana

Edward Kelly Bauman
Louisiana Appellate Project
P. O. Box 1641
Lake Charles, LA 70602-1641
(337) 491-0570
COUNSEL FOR DEFENDANT APPELLANT:
Torino Adarryl Cormier

Karen C. McLellan
14th JDC, Assistant District Attorney
P. O. Box 3206
Lake Charles, LA 70602-3206
(337) 437-3400
COUNSEL FOR PLAINTIFF APPELLEE:
State of Louisiana

SAUNDERS, Judge.

Defendant, Torino Cormier, was indicted on three counts of aggravated

incest on September 20, 2012. On December 17, 2012, the State reduced one

count to indecent behavior with a juvenile, a violation of La.R.S. 14:81, and

dismissed the remaining two counts. Defendant pled guilty accordingly. The trial

court ordered a presentence investigation report to be completed. He was

sentenced on March 13, 2013, to seven years at hard labor. 1 Defendant filed a

Motion to Reconsider Sentence on March 19, 2013. A hearing was held on April

19, 2013, and following arguments, the motion was denied.

Defendant has perfected a timely appeal, wherein he alleges the sentences

imposed were excessive under the circumstances. However, for the following

reasons, we find there is no merit to this assignment of error.

FACTS

On or about June 23, 2012, Defendant, with the intent of arousing or

gratifying the sexual desires of either person, fondled the victim‟s breasts and/or

touched her vaginal area with his hands. At the time of the offense, the victim was

under the age of seventeen and there was an age difference of greater than two

years between the victim and Defendant.

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

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Defendant was also sentenced at the same time on a conviction for possession of a
controlled dangerous substance, Schedule II. Defendant was sentenced to five years at hard labor
on the conviction for possession and the sentences were ordered to be served consecutively. An
appeal has been filed concerning this sentence under this court‟s docket number 13-1141.

Defendant argues that the sentences are excessive. Defendant was also

sentenced to the maximum sentence of five years on the conviction for possession

of cocaine on the same date, to be served consecutively with the seven year

sentence. It is not clear from Defendant‟s brief whether he is arguing that the

maximum sentence imposed on the conviction for indecent behavior with a

juvenile is excessive by itself, the maximum sentence imposed on the conviction

for possession of cocaine is excessive, or that the two sentences together are

excessive. In his Motion to Reconsider Sentence, while mentioning both

sentences, he alleged only that “the sentence is unconstitutionally excessive.”

Pursuant to La.Code Crim.P. art. 881.1(E), we find that review of the

defendant‟s excessiveness claim is precluded. Article 88.1(E) states:

Failure to make or file a motion to reconsider sentence or to
include a specific ground upon which a motion to reconsider sentence
may be based, including a claim of excessiveness, shall preclude the
state or the defendant from raising an objection to the sentence or
from urging any ground not raised in the motion on appeal or review.

Additionally, in State v. Bamburg, 00-675 (La.App. 3 Cir. 11/2/00), 772 So.2d 356,

the defendant failed to object to the sentence imposed at the sentencing hearing and

did not timely file a motion to reconsider sentence. Thus, this court found his

claim of excessiveness of sentence was barred. See also State v. Williams, 01-998

(La.App. 3 Cir. 2/6/02), 815 So.2d 908, writ denied, 02-578 (La. 1/31/03), 836

So.2d 59. Therefore, the sentences will be reviewed under a bare excessiveness

claim. See State v. Clark, 06-508 (La.App. 3 Cir. 9/27/06), 940 So.2d 799, writ

denied, 06-2857 (La. 9/21/07), 964 So.2d 324.

The statute regarding indecent behavior with a juvenile, in pertinent part,

provides that “[w]hoever commits the crime of indecent behavior with juveniles

shall be fined not more than five thousand dollars, or imprisoned with or without

hard labor for not more than seven years, or both[.]” La.R.S. 14:81(H)(1). The
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statute pertaining to possession of controlled dangerous substances, in pertinent

part, provides that “[a]ny person who violates this Subsection as to any other

controlled dangerous substance shall be imprisoned with or without hard labor for

not more than five years and, in addition, may be sentenced to pay a fine of not

more than five thousand dollars.” La.R.S. 40:967(C)(2). Defendant received the

maximum terms of imprisonment in both cases.

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. Salameh, 09-1422, p. 4 (La.App. 3 Cir. 5/5/10), 38 So.3d 568, 570

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

So.2d 1035, 1042-43, writ denied, 01-838 (La. 2/1/02), 808 So.2d 331).

Furthermore, the appellate court shall not set aside a sentence for excessiveness if

the record supports the sentence imposed. “In reviewing a trial court‟s sentencing

discretion, three factors are considered: 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. Pearson, 07-332, p. 15-16 (La.App. 5 Cir.

12/27/07), 975 So.2d 646, 656. Finally, “where a defendant has pled guilty to an

offense which does not adequately describe his conduct or has received a
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significant reduction in potential exposure to confinement through a plea bargain,

the trial court has great discretion in imposing even the maximum sentence

possible for the pled offense.” State v. Falcon, 44,829, p. 4 (La.App. 2 Cir.

10/28/09), 26 So.3d 172, 175.

In brief, Defendant argues he is entitled to lesser sentences because at the

sentencing hearing, his wife “addressed the court and asked for leniency. She also

read a letter from the victim in which the victim forgave Torino and wished that

they could all be „one big happy family again.‟” Furthermore, Defendant took

responsibility for his actions as “evidenced by his pleas of guilty.”

As noted above, Defendant was originally charged with three counts of

aggravated incest, an offense which carries a range of imprisonment from five to

twenty years with or without hard labor on each count. La.R.S. 14:78.1(D)(1).

Because the victim alleged three separate occurrences, Defendant could have

received consecutive sentences and was facing potentially fifteen to sixty years

imprisonment. The trial court further noted at the sentencing hearing that it had

reviewed the presentence investigation report and Defendant had a long history of

offenses involving victims: resisting arrest, simple robbery, several domestic abuse

battery charges, and a conviction for cruelty to a juvenile. Defendant‟s arrest

record also includes several drug-related charges, driving while intoxicated, and

several misdemeanor offenses of simple kidnapping, simple battery, and no

driver‟s license and switching license plates.

By way of comparison to similarly situated defendants, in State v. Albarado,

03-2504 (La.App. 1 Cir. 6/25/04), 878 So.2d 849, writ denied, 04-2231 (La.

1/28/05), 893 So.2d 70, the first circuit found that the trial court acted within its

discretion when it imposed a maximum sentence of seven years for indecent

behavior with a juvenile. The first circuit noted that the defendant was the victim‟s
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teacher and exploited his position over the victim. Furthermore, he received a

significant benefit when he pled guilty to the reduced charge. In State v. Haltom,

45,460 (La.App. 2 Cir. 8/11/10), 46 So.3d 708, despite the fact that the defendant

had no criminal history, the second circuit did not find the maximum sentence of

seven years for indecent behavior with a juvenile excessive when the defendant

had arranged to meet a fourteen-year-old girl via the internet and had child

pornography on the computer.

In the current case, besides having a history of violence offenses, Defendant

was the victim‟s step-father and in an authoritative position. When he should have

been protecting her, he was abusing her. In this case, the offense to which

Defendant plead guilty did not adequately reflect the seriousness of the offense

committed. We cannot say the trial court abused its vast discretion when it

imposed the maximum sentence in this case.

As for the sentence imposed on the possession of cocaine, in State v.

Williams, 07-490 (La.App. 3 Cir. 10/31/07), 969 So.2d 744, this court did not find

the maximum sentence of five years imposed on the defendant excessive

considering that he had prior drug convictions. See also State v. Allen, 09-1281

(La.App. 3 Cir. 5/5/10), 36 So.3d 1091, wherein the defendant was a fourth felony

offender and received the maximum of five years for possession of cocaine. As

noted above, in the current case, Defendant had several drug-related charges.

Together the two sentences total twelve years imprisonment. We find it was

proper for the trial court to order the sentences to be served consecutively as the

offenses were not “based on the same act or transaction, or constituting parts of a

common scheme or plan[.]” La.Code Crim.P. art. 883. Therefore, the trial court

was not obligated to order the sentences to be served concurrently, nor was the trial

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court obligated to state for the record reasons it ordered the sentences to be served

consecutively.

We find that Defendant has failed to show that the trial court abused its vast

discretion when it imposed the maximum sentence for the conviction of indecent

behavior with a juvenile, five years on the conviction for possession of cocaine,

and ordered the sentences to be served consecutively for a term of twelve years

imprisonment.

CONCLUSION

We find that the maximum sentence imposed on the conviction for indecent

behavior with a juvenile is not excessive, nor is the maximum sentence imposed on

the conviction for possession of cocaine excessive, and finally, the two consecutive

sentences are not constitutionally excessive under the circumstances of the case.

AFFIRMED.

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

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