State of Louisiana v. Torino Adarryl Cormier

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

13-1141

STATE OF LOUISIANA

VERSUS

TORINO ADARRYL CORMIER

**********

APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 10184-12
HONORABLE CLAYTON DAVIS, DISTRICT JUDGE

**********

JOHN D. SAUNDERS
JUDGE

**********

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
La 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
(337) 437-3400
COUNSEL FOR PLAINTIFF APPELLEE:
State of Louisiana

SAUNDERS, Judge.

Defendant, Torino Cormier, was indicted for one count of possession of a

controlled dangerous substance, Schedule II, a violation of La.R.S. 40:967(C),

under lower court docket number 10184-12. On December 17, 2012, Defendant

pled guilty pursuant to a plea agreement. The trial court ordered a presentence

investigation report to be completed. He was sentenced on March 13, 2013, to five

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

Whereas Defendant pled guilty, there were no facts given regarding the

offense other than he was found to be in possession of cocaine on February 15,

2012.

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

1
Defendant was also sentenced at the same time on a conviction for indecent behavior
with a juvenile. Defendant was sentenced to seven years at hard labor on the conviction for
indecent behavior, and the sentences were ordered to be served consecutively. An appeal has
been filed concerning the seven year sentence under this court‟s docket number 13-1140.

Defendant argues that the sentences are excessive. Defendant was also

sentenced to the maximum sentence of seven years on the conviction of indecent

behavior with a juvenile on the same date, to be served consecutively with the

maximum sentence of five years. It is not clear from Defendant‟s brief whether he

is arguing that the maximum sentence imposed on the conviction for possession of

cocaine is excessive is excessive by itself, the maximum sentence imposed on the

conviction for indecent behavior with a juvenile 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 pertaining to possession of controlled dangerous substances, in

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

2

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). 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). 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

3

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

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.”

By way of comparison to similarly situated defendants, 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. In the current case,

Defendant‟s arrest record also includes several drug-related charges.

Furthermore, 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

4

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, simple kidnapping, simple battery, and a

conviction for cruelty to a juvenile. He also had charges for driving while

intoxicated, no driver‟s license, and switching license plates.

As for the sentence imposed on conviction for indecent behavior with a

juvenile, 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 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

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.

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

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

5

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

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

consecutively.

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

discretion when it imposed the maximum sentences for the conviction of

possession of cocaine and for the conviction of indecent behavior with a juvenile,

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

possession of cocaine is not excessive, nor is the maximum sentence imposed on

the conviction for indecent behavior with a juvenile excessive, and finally, the two

consecutive sentences for a total of twelve years 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.

6