State of Louisiana v. Christifor Austin

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

13-1322

STATE OF LOUISIANA

VERSUS

CHRISTIFOR AUSTIN

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 34389-09
HONORABLE RONALD F. WARE, DISTRICT JUDGE

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SHANNON J. GREMILLION
JUDGE

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Court composed of Elizabeth A. Pickett, Shannon J. Gremillion, and Phyllis M.
Keaty, Judges.

REMANDED FOR CLARIFICATION OF SENTENCE;
CONVICTIONS AND SENTENCES AFFIRMED.

John F. DeRosier
District Attorney, Fourteenth Judicial District Court
Carla S. Sigler, Assistant District Attorney
Karen C. McLellan, Assistant District Attorney
907 Lakeshore Dr., Suite 800
Lake Charles, LA 70601
(337) 437-3400
COUNSEL FOR APPELLEE:
State of Louisiana

Edward K. Bauman
Louisiana Appellate Project
P. O. Box 1641
Lake Charles, LA 70602-1641
(337) 491-0570
COUNSEL FOR DEFENDANT/APPELLANT:
Christifor Austin

GREMILLION, Judge.

The record contains the following recital to the trial court regarding the

factual background of this criminal matter:

Your Honor, the factual basis is that relative to the sexual
battery that in Calcasieu Parish, Louisiana, in between the dates of 29
July ’09 through 29 August ’09 that the defendant did commit a
sexual battery upon H.M., a white female, date of birth 27 December
2003 in that the defendant caused serious injury to the vaginal and
perineal area of this victim either from sexual activity or from kicking
the victim in that part of the victim’s body resulting in a significant
tear to the vaginal and perineal area, requiring stitches at the hospital
which caused bleeding which was a significant injury.

The second charge of second degree cruelty to juvenile
occurred in Calcasieu Parish during the same time frame, 29 July, ’09
through 29 August ’09 on victim S.B., white female, date of birth 11
October 2006; and was the result of physical abuse in which the
victim suffered a broken pelvis. The victim, as you saw, Your Honor,
was two years old at the time.

Defendant, Christifor Austin, was charged by a bill of indictment with

thirteen counts of cruelty to a juvenile, violations of La.R.S. 14:93; one count of

second degree cruelty to a juvenile, a violation of La.R.S. 14:93.2.3; and one count

of sexual battery, a violation of La.R.S. 14:43.1. Defendant pled not guilty.

Thereafter, as part of a plea negotiation, the State amended the bill of indictment to

reflect that Defendant was charged with one count of second degree cruelty to a

juvenile and one count of sexual battery. The remaining thirteen counts of cruelty

to a juvenile were dismissed.

Defendant then entered a plea of guilty to each of the two remaining

charges. Part of the plea negotiation between the State and Defendant was that the

State would not pursue a possible charge against Defendant in Jefferson Davis

Parish and that Defendant would testify against Sarah Marshall, his girlfriend and

the biological mother of the victims.

The trial court accepted the plea recommendation and sentenced Defendant

to thirty-five years for each count, to run concurrently, and “at least the 25 years is

without benefit, but the balance is at least 85% without being eligible for

probation, parole, or suspension.” Defense counsel did not file a motion to

reconsider the sentences.

Defendant filed a motion for an out-of-time appeal, for which the trial court

ordered a hearing. The trial court granted the motion following an October 10,

2012 hearing. Defendant initially filed a pro se appeal, which this court remanded

to the trial court to determine if Defendant was entitled to court-appointed counsel,

and to inform Defendant of the dangers and disadvantages of self-representation.

State v. Austin, 13-461 (La.App. 3 Cir. 10/15/13) (unpublished opinion). After that

hearing, the Louisiana Appellate Project was assigned to represent Defendant.

Defendant is now before this court asserting that his sentences are

constitutionally excessive.

CLARIFICATION OF SENTENCE

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 no

errors patent, but we do find that the trial court’s minute entry regarding sentencing

requires clarification.

At sentencing, the trial court stated in pertinent part:

I’m going to accept the recommendation and make the
recommendation the order of the Court; and, sir, order that you serve
35 years on each one of these offenses and that these sentences run
concurrent.

....

At least the 25 years is without benefit, but the balance is at least 85%

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without being eligible for probation, parole or suspension. 1

It is clear to us that the trial court intended to impose the first twenty-five years of

the sexual battery sentence without benefit of probation, parole, or suspension of

sentence. There is, however, ambiguity reflected in the court minutes, which read

in pertinent part:

As to each charge, to run concurrently, the court sentences defendant
to serve thirty-five (35) years in the custody of the Louisiana
department of corrections, with the first twenty-five years (25) to be
served without benefit of probation, parole or suspension of sentence,
with credit being given for time served.

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When the trial court was advising Defendant of applicable penalties, it stated in pertinent
part:

Sexual battery, Mr. DeRosier, you informed me that it is 25 to 99 years.

....

. . . Also, the penalty range on cruelty to a juvenile, Mr. DeRosier, did you inform
me up to 40?

....

And on the sexual battery the first 25 years is without benefit of probation,
parole or suspension of sentence; is that correct?

....

. . . Also, Mr. Austin, we haven’t talked about the number of the sentencing yet,
but the time that you will be sentenced to, I understand I know what the
agreement is and we’ll get to that in a second, but these are all mandatory
sentences that carry – that require that the defendant serve at least 85% of the
sentence before being eligible for parole. Is that correct?

....

But that doesn’t apply to the first 25 years of the sexual battery sentence,
sir. That has to be served unless there is some internal good time computation by
the Louisiana Department of Public Safety & Corrections. Otherwise, it is going
to be day for day, the first 25 years, without benefit of probation, parole or
suspension of sentence. You may be eligible, I’m not saying that you are, I don’t
know and you may not be entitled to what we call good time or diminution of
sentence. That may not apply in your case, so I need you to understand that now.

Although it appears that the trial court intended to impose the first twenty-five years of the
sexual battery sentence without benefit of probation, parole, or suspension of sentence, it did not
clearly do so when it imposed the sentence. This ambiguity is reflected in the court minutes.

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Louisiana Revised Statutes 14:43.1(C) provides in pertinent part:

(2) Whoever commits the crime of sexual battery on a victim
under the age of thirteen years when the offender is seventeen years of
age or older shall be punished by imprisonment at hard labor for not
less than twenty-five years nor more than ninety-nine years. At least
twenty-five years of the sentence imposed shall be served without
benefit of parole, probation, or suspension of sentence.

Louisiana Revised Statutes 14:93.2.3 provides in pertinent part:

C. Whoever commits the crime of second degree cruelty to
juveniles shall be imprisoned at hard labor for not more than forty
years.

Louisiana Code of Criminal Procedure Article 879 provides: “If a defendant

who has been convicted of an offense is sentenced to imprisonment, the court shall

impose a determinate sentence.”

The minute entry failed to specify which sentence the trial court was

referring to when it ordered the sentence to be served with at least twenty-five

years without benefit of probation, parole, or suspension of sentence. Considering

the trial court’s comments at sentencing, and the fact that only the penalty for

sexual battery provides for the benefits restrictions, we have no difficulty in

determining the intent of the trial court. Thus, we do not find that the sentence is

indeterminate. Rather, we order the trial court to amend and clarify its sentencing

minute entry.

EXCESSIVE SENTENCE

Defendant contends that the trial court imposed sentences that were

constitutionally excessive. Defendant neither objected to the sentences imposed at

sentencing, nor filed a motion to reconsider the sentences. He has, therefore,

waived his right to appeal to this court on the basis of an excessive sentence. See

State v. Green, 96-208 (La.App. 3 Cir. 11/6/96), 683 So.2d 1292, writ denied, 96-

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2892 (La. 6/13/97), 695 So.2d 963. We also note that the trial court merely

accepted the parties’ own recommendations for sentencing. “[W]here the court

sentences the defendant in accordance with the parties’ recommendation for a

specific sentence or a sentencing range, it is clear that review of the imposed

sentence is precluded.” State v. Jordan, 98-101, p. 4 (La.App. 3 Cir. 6/3/98), 716

So.2d 36, 38. We will, however, review the sentence for bare excessiveness. See

State v. Thomas, 08-1358 (La.App. 3 Cir. 5/6/09), 18 So.3d 127.

A conviction on the charge of sexual battery of a juvenile carries a

sentencing range of twenty-five to ninety years of imprisonment at hard labor with

at least twenty-five years without benefit of probation, parole, or suspension of

sentence. La.R.S. 14:43.1(C)(2). A conviction on the charge of second degree

cruelty to a juvenile subjects a defendant to up to forty years of imprisonment at

hard labor. La.R.S. 14:93.2.3(C). The trial court sentenced Defendant to thirty-

five years for sexual battery and thirty-five years for cruelty to a juvenile with both

sentences to run concurrently.

Given his guilty pleas, Defendant could have been sentenced to a maximum

of 130 years. His sentences were less than a third of that length. Furthermore, but

for the substantial benefit he received from his plea bargain with the State to

dismiss over a dozen charges, he would have been subjected to several lifetimes in

prison.

This assignment lacks merit.

DECREE

Defendant’s convictions and sentences are affirmed. We remand to the trial

court and order that, within thirty days, the sentencing minute entry be amended to

clarify that the first twenty-five years of Defendant’s sentence for conviction for

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sexual battery is to be served without benefit of probation, parole, or suspension of

sentence in accordance with La.R.S. 14:43.1(C)(2).

REMANDED FOR CLARIFICATION OF SENTENCE;

CONVICTIONS AND SENTENCES AFFIRMED.

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