State of Louisiana v. Clerfy James Touchet

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

KA 14-373

STATE OF LOUISIANA

VERSUS

CLERFY JAMES TOUCHET

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. 140555, DIV. L
HONORABLE MARILYN CARR CASTLE, DISTRICT JUDGE

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BILLY HOWARD EZELL
JUDGE

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Court composed of John D. Saunders, Billy Howard Ezell, and J. David Painter,
Judges.

AFFIRMED.

Michael Harson
District Attorney
William Thomas Babin
Assistant District Attorney
Fifteenth Judicial District Court
P.O. Box 3306
Lafayette, LA 70502-3306
(337) 232-5170
COUNSEL FOR APPELLEE:
State of Louisiana

Annette Fuller Roach
Louisiana Appellate Project
P. O. Box 1747
Lake Charles, LA 70602-1747
(337) 436-2900
COUNSEL FOR DEFENDANT/APPELLANT:
Clerfy James Touchet

Clerfy James Touchet
River Bend Det. Center
9450 Highway 65 South
Lake Providence, LA 71254
In Proper Person

EZELL, Judge.

Defendant, Clerfy James Touchet, was indicted on February 6, 2013, for the

September 17, 2011 second degree murder of his father, Russell Touchet. On

August 22, 2013, Defendant pled guilty to manslaughter, a violation of La.R.S.

14:31. The trial court ordered a presentence investigation report. Defendant was

sentenced on November 4, 2013, to thirty years imprisonment at hard labor.

Although defense counsel filed a timely notice of appeal asserting that the sentence

was excessive, she did not file a motion to reconsider the sentence.

On November 7, 2013, Defendant filed a “Notice of Appeal.” Defendant

now alleges two assignments of error: 1) Defense counsel rendered ineffective

assistance of counsel for failure to file a motion to reconsider the sentence pursuant

to La.Code Crim.P. art. 881.1; and 2) The sentence of thirty years at hard labor is

constitutionally excessive considering the circumstances of Defendant’s case.

For the following reasons, the court finds that Defendant’s sentence of thirty

years imprisonment is not excessive. Further, it does not seem probable from the

facts of the case and in comparison to other similarly situated defendants that the

trial court would have reduced the sentence had defense counsel filed a motion to

reconsider the sentence. Accordingly, Defendant was not prejudiced by defense

counsel’s failure to file a motion to reconsider the sentence.

FACTS

Whereas Defendant pled guilty, the facts of the case are as given at the

guilty plea hearing, as follows:

[O]n or about September 17th of the year 2011, he committed the
manslaughter of one Russel Touchet, actions which would be first or
second degree murder, but which were committed in sudden passion
or heat of blood sufficient to deprive an average person of their self
control, and that this happened in the parish of Lafayette.

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 no

errors patent.

ASSIGNMENTS OF ERROR

Defendant argues that defense counsel rendered ineffective assistance of

counsel for failure to file a motion to reconsider the sentence. He also alleges that

the sentence of thirty years imprisonment is excessive under the circumstances of

his case. We will address Defendant’s two assignments of error together since it

must first be determined whether there was a reasonable probability the trial court

would have reduced the sentence if defense counsel had filed a motion to

reconsider the sentence. Then it must be determined whether the sentence is

excessive. State v. Doucet, 09-1065 (La.App. 3 Cir. 5/5/10), 36 So.3d 1105, writ

denied, 10-1195 (La. 12/17/10), 51 So.3d 19.

In Doucet, the excessive sentence claim was barred under La.Code Crim.P.

art. 881.1. However, it was alleged that defense counsel was ineffective for failure

to file a motion to reconsider the sentence; thus, this court addressed the

excessiveness of the sentence.

Furthermore:

Failure to file a motion to reconsider does not necessarily constitute
ineffective assistance of counsel. Nevertheless, Defendant may have
a basis to claim ineffective assistance if he can show a reasonable
probability that but for defense counsel’s error, his sentence would
have been different. State v. Blake, 03-1465 (La.App. 3 Cir. 5/5/04),
872 So.2d 602. Furthermore, in State v. Francis, 99-208 (La.App. 3
Cir. 10/6/99), 748 So.2d 484, writ denied, 00-544 (La.11/13/00), 773
So.2d 156, this court noted that where the record was sufficient to
resolve the claim, and the claim was raised by assignment of error on
appeal, it may be considered.

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State v. Anderson, 13-42, pp. 11-12 (La.App. 3 Cir. 7/3/13), 116 So.3d 1045, 1053-

54, writ denied, 13-1806 (La. 5/16/14), 139 So.3d 1019.

The record before this court is sufficient to resolve Defendant’s claim of

ineffective assistance of counsel for failure to file a motion to reconsider the

sentence and to determine whether the sentence is constitutionally excessive.

Defendant pled guilty to manslaughter. Louisiana Revised Statutes 14:31(B)

provides “[w]hoever commits manslaughter shall be imprisoned at hard labor for

not more than forty years.” Defendant received thirty years, three-fourths of the

potential sentence.

In State v. Angelle, 13-508, p. 6 (La.App. 3 Cir. 11/6/13), 124 So.3d 1247,

1252, writ denied, 13-2845 (La. 5/23/14), 140 So.3d 724, writ denied, 13-2892

(La. 8/25/14) ___ So.3d ___, this court discussed the excessiveness of a forty-year

sentence imposed on a first felony offender who was charged with second degree

murder but pled guilty to manslaughter, as follows:

The trial court has wide discretion in imposing a sentence.
Absent a manifest abuse of that discretion, we will not deem a
sentence excessive. State v. Pyke, 95-919 (La.App. 3 Cir. 3/6/96), 670
So.2d 713. The appellate court should consider the nature of the
crime, the background of the offender, and the sentences imposed for
similar crimes in making its determination. State v. Telsee, 425 So.2d
1251 (La.1983). A sentence will only be deemed constitutionally
excessive if it is grossly out of proportion to the seriousness of the
offense. State v. Dorthey, 623 So.2d 1276 (La.1993).

At the sentencing hearing, Defendant presented witnesses on his behalf. The

first witness to testify was Gladys Touchet, Defendant’s sister. She testified that

Defendant and his father had a rancorous and violent relationship. She said that her

father physically abused her mother, and Defendant would attempt to intervene.

She described the trailer where they all lived as a hoarder’s house and said there

were holes in the floor. Gladys described a time when she and her brother were

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younger, her father made her brother break the necks of some baby rabbits because

she had handled the babies. She also testified that Defendant often rambled without

making sense. However, Gladys also testified that she and Defendant would fight,

and he had sexually abused her when they were younger.

Jamie Campbell Touchet, Defendant’s ex-wife, testified. She stated that she

and Defendant were married in 2002 and had a twelve-year-old daughter. She

stated that Defendant and his father often fought, “telling each other things that

were just ugly, throwing things.” She testified that Defendant’s family problems

helped to cause her and Defendant’s divorce. Jamie testified that Defendant had

been physical with her before, and on one occasion, he and his father came to her

house and attempted to take their daughter. She stated that when they were living

together, Defendant was often paranoid. She said that he had episodes of rambling

and telling inconsistent stories. After the divorce, Jamie had asked “him to seek

help.”

The State also called witnesses. Shirley Louvierre, Defendant’s sister,

testified but only stated she wanted to know the truth of what happened. She stated

that Defendant needed to be punished because he destroyed their family. Shirley

further stated she never witnessed “disturbances” between her father and

Defendant, but she said that she had left the household in 1999 and did not have a

lot of contact with the family after that.

Mary Touchet, the victim’s sister-in-law, testified. Her husband was the

victim’s baby brother. She stated her husband and the victim were close. Mary said

that she and her husband often helped the family when they did not have much.

She described a time at Christmas before the victim died when she and her

husband paid the family’s utility bill because they did not have lights or water for

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Christmas. Mary said that her husband was too distraught to testify. She said that

they had talked the Friday before the shooting, and the victim was elated because

he had just gotten a job and could actually pay some bills and put gas in his truck.

Mary explained that while she knew the family had problems, she never saw any

acts of violence from the victim. She testified that at first “Clerfy was saying that

his daddy committed suicide. And, now, he’s saying it was an accident.”

Laura Marcantel, the victim’s sister, stated that she and the victim were

close as children, but after he got married, they were not as close. Another sister of

the victim, Lois Ann Touchet Lavergne, testified that she never saw the victim

exhibit any violence towards his children, at least not in her presence. She

described the pain his death caused her family, including the victim’s mother who

died within eight months after his death without knowing what happened.

Randy Rushing, who was a co-worker with the victim several years prior to

the victim’s death, testified that the victim was a hard worker and a “best guy.”

Although he had talked with him a few months prior to his death, the witness

testified it had been years since he had spent any time with the victim.

Finally, the victim’s wife, Eula Touchet, testified that the victim was

mentally and physically abusive. She stated that “he made us live like animals,

because he was too lazy to fix the floor.” Eula said that Defendant would try to

protect her. She said that a neighbor said that “they witnessed him beating my son

with a rope, when he was an adult.” When asked about the night her husband died,

she said she left the house but stated that they “didn’t argue. . . . He just told me he

didn’t want me to go, but I went anyway.” She said that he would sometimes go

into Defendant’s room in the middle of the night, but Defendant never told her

what would happen then. She said there was an argument between Defendant and

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his father before she left the house. She further stated she never called the police

when the victim was abusive towards her.

After brief arguments by defense counsel and the State, the trial court noted

that it had received and considered the presentence investigation report and further

stated for the record:

I’m also considering all the testimony that I’ve heard today. I consider
these things in light of Article 894.1 of the Code of Criminal
Procedure, and I do make the following findings regarding sentence:

I note that Mr. Touchet does not have any prior felony
convictions. But he did use actual violence during the commission of
this offense. He used a dangerous weapon - - a firearm - - in the
commission of the offense. The victim in this case was his own father.

He is in need of correctional treatment in a custodial
environment that can be most effectively provided by commitment to
an institution. Manslaughter is a crime of violence. He’s not entitled
to any type of suspension of sentence. And the Court does believe that
mental health treatments would be of benefit to him.

The trial court then sentenced Defendant to thirty years imprisonment at

hard labor with the recommendation that he serve his sentence at a facility where

he can receive mental health and substance abuse treatments.

Defendant argues that his actions were understandable considering the

“years of both verbal and physical abuse.” He points out that on the night of the

shooting, his mother had left the house to get away from her husband’s abuse. He

argues that a lesser term of imprisonment with mental health treatments would

better serve his needs and that of society.

Like in Angelle,124 So.3d 1247, Defendant was a first time felony offender

who was charged with second degree murder but pled guilty to manslaughter.

However, the presentence investigation report showed that Defendant has

misdemeanor simple battery, domestic abuse battery, and cruelty to animal

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convictions. The presentence investigation report indicated the cruelty to animal

conviction was the result of Defendant shooting his father’s dog. The report also

indicated that Defendant’s father was the victim of the domestic abuse battery

conviction.

While there was very little information given regarding the circumstance in

which the shooting occurred at the guilty plea and sentencing hearings, the

presentence investigation report indicated that the victim was shot three times with

a shotgun. One gunshot wound was on the victim’s hand, one in his side under his

arm, and one in the middle of his chest. Defendant initially reported that his father

had committed suicide. Later, he admitted that he had arranged the victim’s body

on his bed and placed a shotgun beside the body to make it look as if his father had

shot himself three times. However, it was immediately apparent to the police that

the victim did not kill himself. Defendant then told them some men came into the

trailer through the holes in the floor, and while he and his father were defending

themselves, the victim was shot twice by the invading men and once by him

accidently. We find that regardless of Defendant’s mental health issues, his

behavior in trying to evade culpability for the killing indicates that he was well

aware of the wrongness of his actions.

As noted in Angelle:

Louisiana has long held that maximum sentences for
manslaughter are not excessive when there is sufficient evidence to
convict the defendant of second degree murder. State v. Carrier, 95-
1003 (La.App. 3 Cir. 3/6/96), 670 So.2d 794, writ denied, 96-881
(La.9/20/96), 679 So.2d 431; State v. Darby, 502 So.2d 274 (La.App.
3 Cir.1987). While Defendant is a first time offender and expressed
some remorse, the evidence indicates that he walked into a bar and
killed the victim in cold blood. These facts are sufficient to support a
conviction of second degree murder. See La.R.S. 30.1. Additionally,
Defendant received the benefit of pleading to the reduced crime of
manslaughter, thereby avoiding the more severe penalty of life

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imprisonment without the benefit of probation, parole, or suspension
of sentence that comes with a second degree murder conviction. In
light of our past jurisprudence, we conclude that the trial court did not
abuse its discretion in sentencing Defendant to forty years at hard
labor as such a sentence, under the circumstances of this case, is not
disproportionate to the seriousness of the crime.

Id. at 1252.

In the current case, it was noted in the presentence investigation report that

there was evidence the victim did not die with the first shot as there was blood

splatter around the house and on the bottom of his shoes. While Defendant pled

guilty to manslaughter, the facts of the case evidenced second degree murder.

Accordingly, by pleading guilty to manslaughter, Defendant avoided the possibility

of a life sentence. Furthermore, while there was testimony that the victim was

abusive towards his son, there was also evidence that Defendant was himself a

violent person.

Accordingly, considering all of the above, this court has reviewed

Defendant’s sentence under a bare excessiveness claim and has not found the

sentence excessive under the circumstances of the case. 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.

For all of the above reasons, it does not seem reasonably probable from the

facts of the case and in comparison to other similarly situated defendants that the

trial court would have reduced the sentence had defense counsel filed a motion to

reconsider the sentence. Accordingly, Defendant was not prejudiced by defense

counsel’s failure to file a motion to reconsider the sentence. There is no merit to

these assignments of error.

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DISPOSITION

The court affirms the thirty-year sentence as imposed by the trial court.

AFFIRMED.

This opinion is NOT DESIGNATION FOR PUBLICATION. Uniform
Rules—Courts of Appeal. Rule 2–16.3.

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