State of Louisiana v. Victor Sarvaunt

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

13-1410

STATE OF LOUISIANA

VERSUS

VICTOR SARVAUNT

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 6530-08
HONORABLE RONALD F. WARE, DISTRICT JUDGE

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JOHN E. CONERY
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, James T. Genovese,
and John E. Conery, Judges.

AFFIRMED.

John F. DeRosier
District Attorney
Carla S. Sigler
Assistant District Attorney
Karen C. McLellan
Assistant District Attorney
14th Judicial District
901 Lakeshore Drive, Suite 800
Lake Charles, Louisiana 70601
(337) 437-3400
COUNSEL FOR APPELLEE:
State of Louisiana

Paula C. Marx
Louisiana Appellate Project
Post Office Box 80006
Lafayette, Louisiana 70598-0006
(337) 991-9757
COUNSEL FOR DEFENDANT/APPELLANT:
Victor Sarvaunt

CONERY, Judge.

Defendant, Victor Sarvaunt, was charged by bill of indictment with counts

one and two – sexual battery, violations of La.R.S. 14:43.1, and counts three and

four – aggravated rape, violations of La.R.S. 14:42. The victim, S.G.,1 was under

the age of thirteen.

Counts three and four were amended to aggravated incest, violations of

La.R.S. 14:78.1, and on the day the matter was set to go to trial, the State amended

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

Defendant entered an Alford 2 plea to count four, and in exchange, the State

dismissed counts one, two, and three.

On July 16, 2013, the trial court sentenced Defendant to seven years at hard

labor, four years suspended, and Defendant was placed on four years of supervised

probation. Conditions of probation were ordered.

A motion to reconsider sentence was filed in the trial court and was

subsequently denied.

FACTS

The factual basis given by the State at the guilty plea proceeding indicated

that between August 29, 2006, and August 28, 2007, Defendant touched the

vaginal area of S.G., date of birth August 29, 2000, with his mouth and penis on

more than one occasion.

1
The victim’s initials are used pursuant to La.R.S. 46:1844(W).
2
See North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160 (1970).

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 that

there are no errors patent.

ASSIGNMENT OF ERROR

Defendant argues that his sentence is excessive for a first time offender.

Defendant entered an Alford plea to one count of indecent behavior with juveniles.

Louisiana Revised Statutes 14:81 provides, in pertinent part:

A. Indecent behavior with juveniles is the commission of any of
the following acts with the intention of arousing or gratifying the
sexual desires of either person:

(1) Any lewd or lascivious act upon the person or in the
presence of any child under the age of seventeen, where there is an
age difference of greater than two years between the two persons.
Lack of knowledge of the child’s age shall not be a defense; or

(2) The transmission, delivery or utterance of any textual,
visual, written, or oral communication depicting lewd or lascivious
conduct, text, words, or images to any person reasonably believed to
be under the age of seventeen and reasonably believed to be at least
two years younger than the offender. It shall not be a defense that the
person who actually receives the transmission is not under the age of
seventeen.

At Defendant’s sentencing, the State clarified, “[F]or the record, the

defendant did enter his plea to Louisiana Revised Statute[s] 14:81.H(1), which is

the victim over the age of 13. That was part of the plea.” Defense counsel agreed,

and the trial court advised Defendant that the sentencing range was zero to seven

years and/or a fine of zero to $5,000.00. Defendant was sentenced to seven years

at hard labor, four years suspended, and he was placed on four years of supervised

probation.

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Louisiana Code of Criminal Procedure Article 881.1(E) requires a defendant

to make or file a motion to reconsider his sentence within thirty days of imposition

of the sentence. In Defendant’s motion to reconsider sentence filed in the trial

court, Defendant argued that he presented at sentencing “mitigating circumstances

which justify a reduction of sentence.” Defendant failed to specify the

circumstances to which he was referring. In his brief to this court, Defendant

states he is a first time offender and notes that many letters from “neighbors,

friends, employers and acquaintances of forty years were submitted in support of a

lesser sentence.” Defendant argues, “The maximum sentence allowed pursuant to

the plea to Section (1) of LSA 14:81 is not warranted for this offender.”

In State v. Barnes, 12-667, p. 2 (La.App. 3 Cir. 12/5/12), 103 So.3d 1254,

1256, this court explained:

This court discussed the standard of review applicable to claims
of excessiveness in State v. Whatley, 03-1275, pp. 5-6 (La.App. 3 Cir.
3/3/04), 867 So.2d 955, 958-59, as follows:

The Eighth Amendment to the United States
Constitution and La. Const. art. I, § 20 prohibit the
imposition of cruel or excessive punishment. “‘[T]he
excessiveness of a sentence becomes a question of law
reviewable under the appellate jurisdiction of this
court.’” State v. Dorthey, 623 So.2d 1276, 1280
(La.1993) (quoting State v. Sepulvado, 367 So.2d 762,
764 (La.1979)). Still, the trial court is given wide
discretion in imposing a sentence, and, absent a manifest
abuse of that discretion, we will not deem as excessive a
sentence imposed within statutory limits. State v. Pyke,
95-919 (La.App. 3 Cir. 3/6/96), 670 So.2d 713.
However, “[m]aximum sentences are reserved for the
most serious violations and the worst offenders.” State v.
Farhood, 02-490, p. 11 (La.App. 5 Cir. 3/25/03), 844
So.2d 217, 225. The only relevant question for us to
consider on review is not whether another sentence
would be more appropriate, but whether the trial court
abused its broad discretion in sentencing a defendant.
State v. Cook, 95-2784 (La.5/31/96), 674 So.2d 957, cert.

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denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539
(1996).

The fifth circuit, in [State v.] Lisotta, [98-648
(La.App. 5 Cir. 12/16/98),] 726 So.2d [57] at 58, stated
that the reviewing court should consider three factors in
reviewing the trial court’s sentencing discretion:

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.

Nature of the crime

Between August 29, 2006, and August 28, 2007, Defendant touched the

vaginal area of S.G. with his mouth and penis on more than one occasion. S.G.

was his step-grandchild. S.G., who was roughly six years old at the time the

offensive acts were committed, was living with Defendant and her maternal

grandmother, Defendant’s wife, because S.G.’s mother was incarcerated.

Defendant was originally charged with two counts of aggravated rape and

two counts of sexual battery. Defendant denied committing the crime.

Nature and background of the offender

Defendant was fifty years old at the time he entered his guilty plea.

Defendant acknowledged he could read and write the English language. The

parties alleged that Defendant is a first-time offender. The record before this court

does not indicate that a Presentence Investigation Report was conducted.

Sentence imposed for similar crimes by the same court and other courts

Defendant failed to cite any cases in support of his argument that his

sentence is excessive. Because of the benefit Defendant received in the reduction

of the initial charges and his sentencing exposure, similar cases would not be

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beneficial in this case. As noted above, the victim was under thirteen at the time

the alleged offensive conduct occurred. Thus, according to La.R.S. 14:81(H)(2),

the applicable penalty was two to twenty-five years at hard labor with at least the

first two years to be served without benefit of probation, parole, or suspension of

sentence. Defendant benefited greatly by being sentenced under La.R.S.

14:81(H)(1) instead of La.R.S. 14:81(H)(2). Additionally, Defendant was initially

indicted for aggravated rape, two counts, which carries a sentence of life

imprisonment. La.R.S. 14:42. Moreover, the State dismissed three other counts,

one count of aggravated rape amended to aggravated incest, and two counts of

sexual battery. Furthermore, although Defendant was sentenced to seven years at

hard labor, the maximum allowed under La.R.S. 14:81(H)(1), the trial court

suspended four years of the sentence. By being sentenced under La.R.S.

14:81(H)(1), Defendant was not subjected to additional parole restrictions as he

would have been under La.R.S. 14:81(H)(2).

Accordingly, this court finds that Defendant’s claim lacks merit.

DISPOSITION

Defendant’s sentence is affirmed.

AFFIRMED.

This opinion is NOT DESIGNATED FOR PUBLICATION. Uniform

Rules—Courts of Appeal, Rule 2-16.3.

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