State of Louisiana v. Stephon Enrique Fallon

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

15-1116

STATE OF LOUISIANA

VERSUS

STEPHON ENRIQUE FALLON

**********

APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 25908-12
HONORABLE G. MICHAEL CANADAY, DISTRICT JUDGE

**********

MARC T. AMY
JUDGE

**********

Court composed of Marc T. Amy, Elizabeth A. Pickett, and James T. Genovese,
Judges.

AFFIRMED WITH INSTRUCTIONS.

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

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

AMY, Judge.

Pursuant to a plea agreement, the defendant pled guilty to one count of

sexual battery, a violation of La.R.S. 14:43.1. For that conviction, the trial court

imposed a sentence of ten years at hard labor, with credit for time served. The

defendant appeals. For the following reasons, we affirm with instructions.

Factual and Procedural Background

In the instant matter, the defendant, Stephon Enrique Fallon, was charged

with one count of sexual battery, a violation of La.R.S. 14:43.1. Thereafter,

pursuant to a plea agreement, the defendant pled guilty to that charge, and the State

dismissed the charges in two other docket numbers. The record indicates that in

one of those matters, the charges were two counts of aggravated incest and one

count of aggravated rape.1 In the other matter, the charge was one count of cruelty

to a juvenile, a violation of La.R.S. 14:93. Further, the State agreed that the

defendant would be sentenced under the provisions of La.R.S. 14:43.1(C)(1).

Thereafter, for the defendant‟s sole conviction, the trial court sentenced the

defendant to ten years at hard labor, with credit for time served. The trial court

noted that the credit for time served would include any time spent in incarceration

in connection with the defendant‟s charges under the other two docket numbers.

The defendant appeals, asserting that his sentence is excessive.

1
Pursuant to 2014 La. Acts No. 177, aggravated incest—formerly codified as La.R.S.
14:78.1—was repealed by the legislature, and the elements and penalties of that crime are now
found in the aggravated crimes against nature statute, La.R.S. 14:89.1. Aggravated rape, La.R.S.
14:42, was amended by the legislature pursuant to 2015 La. Acts No. 256 and was renamed first
degree rape.

Discussion

Errors Patent

Pursuant to La.Code Crim.P. art. 920, this court reviews all criminal appeals

for errors patent on the face of the record. An error patent is one which “is

discoverable by a mere inspection of the pleadings and proceedings and without

inspection of the evidence.” La.Code Crim.P. art. 920(2). Having performed such

a review, we note two issues requiring discussion by this court.

First, the trial court failed to order that the defendant‟s sentence be served

without benefit of probation, parole, or suspension of sentence. The defendant was

sentenced pursuant to La.R.S. 14:43.1(C)(1), which provides that “[w]hoever

commits the crime of sexual battery shall be punished by imprisonment, with or

without hard labor, without benefit of parole, probation, or suspension of sentence,

for not more than ten years.” La.R.S. 14:43.1(C)(1). The record reflects that the

defendant was sentenced to “ten years at hard labor. He will get credit for time

served.” The trial court later opined that the defendant “will not receive any

diminution for good behavior and will do the full ten years[,]” an

acknowledgement that the defendant‟s sentence was to be served without benefit of

probation, parole, or suspension of sentence. However, the trial court made no

specific statement ordering that the defendant‟s sentence be served without the

benefit of probation, parole, or suspension of sentence.

Louisiana Revised Statutes 15:301.1(A) provides that:

When a criminal statute requires that all or a portion of a
sentence imposed for a violation of that statute be served without
benefit of probation, parole, or suspension of sentence, each sentence
which is imposed under the provisions of that statute shall be deemed
to contain the provisions relating to the service of that sentence
without benefit of probation, parole, or suspension of sentence. The
failure of a sentencing court to specifically state that all or a portion of

2

the sentence is to be served without benefit of probation, parole, or
suspension of sentence shall not in any way affect the statutory
requirement that all or a portion of the sentence be served without
benefit of probation, parole, or suspension of sentence.

Accordingly, the requirement that any sentence under the relevant

sentencing provision, La.R.S. 14:43.1(C)(1), is to be served without the benefit of

probation, parole, or suspension of sentence is self-activating. Thus, given the

self-activating nature of that provision, we find no need to correct the failure to

specify that the defendant‟s sentence for sexual battery is to be served without the

benefit of probation, parole, or suspension of sentence. See State v. Tillery, 14-429

(La.App. 5 Cir. 12/16/14), 167 So.3d 15, writ denied, 15-106 (La. 11/6/15), 180

So.3d 306.

Second, we find that the minutes of sentencing and the commitment order

require correction. The transcript from the sentencing hearing reflects that, with

regard to the defendant‟s eligibility for diminution for good behavior, the trial

court stated:

It is the Court‟s opinion that [the defendant] will not receive any
diminution for good behavior and will do the full ten years. There‟s
been no enhancement or 15:529.1 or 893.3. His release date will be
ten years from the date that he was initially incarcerated from the time
of his arrest. The Court will defer [sic] DOC to make any calculations
they feel are appropriate based on jurisprudential and legislative
guidelines.

However, the minutes of that hearing indicate that “[t]he Court further orders that

the defendant is to [sic] not allowed diminution for good behavior while

incarcerated. The Court orders that the defendant‟s release date is to be ten (10)

years from the date of arrest, with credit given for time served.” Further, the

Uniform Commitment Order states that “[t]he Court orders the defendant to serve

10 years at hard labor without diminution for good behavior with credit being

3

given for time served in this docket number and the dismissed docket numbers of

18439-12 and 4859-14.”

It is well-settled that “when the minutes and the transcript conflict, the

transcript prevails.” State v. Wommack, 00-137, p. 4 (La.App. 3 Cir. 6/7/00), 770

So.2d 365, 369, writ denied, 00-2051 (La. 9/21/01), 798 So.2d 62. Here, given the

context of the trial court‟s remarks, we conclude that the trial court was referring to

La.R.S. 14:43.1‟s limitation on the defendant‟s eligibility for the benefits of

probation, parole, or suspension of sentence. 2 Although the minutes and

commitment indicate that the trial court ordered that the defendant be denied

eligibility for diminution of sentence for good behavior, we do not find that the

trial court‟s comments indicate that it actually did so. Accordingly, we order the

trial court to amend the minute entries and the commitment order to reflect that the

Department of Corrections is to make any calculations as appropriate based on

jurisprudential and legislative guidelines. See State v. Balach, 14-538 (La.App. 3

Cir. 11/5/14), 150 So.3d 547.

Excessive Sentence

The defendant contends that his sentence is unconstitutionally excessive.

Specifically, he contends that, as a youthful first offender, the maximum sentence

imposed for his conviction is excessive.

The defendant was convicted of sexual battery, a violation of La.R.S.

14:43.1. The relevant sentencing provision of that statute states that “[w]hoever

commits the crime of sexual battery shall be punished by imprisonment, with or
2
Even if the trial court was referring to the defendant‟s eligibility for diminution of
sentence pursuant to La.R.S. 15:571.3 (“good time”) as opposed to the restriction on the benefits
of probation, parole, or suspension of sentence contained in La.R.S. 14:43.1(C)(1), we note that
“a trial judge lacks authority under La.R.S. 15:573.3(C) to deny a defendant eligibility for good
time credits against his sentence, because that statute is „directed to the Department of
Corrections exclusively.‟” State v. Narcisse, 97-3161, p. 1 (La. 6/26/98), 714 So.2d 698, 699.

4

without hard labor, without benefit of parole, probation, or suspension of sentence,

for not more than ten years.” La.R.S. 14:43.1(C)(1). The record reflects that the

defendant was sentenced to “ten years at hard labor. He will get credit for time

served.” As discussed in the error patent review, any sentence under that provision

is without the benefit of probation, parole, or suspension of sentence.

We initially note that the defendant filed a motion for reconsideration

wherein he contended that his sentence was excessive because “he received the

maximum sentence for the offense for which he was convicted, without any

portion of it suspended, and considering the nature of the offense is such that he

will receive no diminution of sentence, and that he was a first felony offender[.]”

On appeal, the defendant raises additional mitigating factors in support of his

argument that his sentence is unconstitutionally excessive. However, La.Code

Crim.P. art. 881.1(E) provides that:

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.

Accordingly, we do not address the additional mitigating factors raised by the

defendant in his appellate brief.

An appellate court‟s review of excessive sentence claims is well established.

This court, in 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,

reiterated the relevant jurisprudence, stating:

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

5

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).

We note that maximum sentences are generally reserved for the worst offenders

and the worst offenses. State v. Fontenot, 09-624 (La.App. 3 Cir. 12/9/09), 25

So.3d 225.

Further, in State v. Ray, 12-1217, p. 11 (La.App. 3 Cir. 5/1/13), 157 So.3d

13, 20, this court expounded on the factors an appellate court may consider in

making such a decision, stating:

In deciding whether a sentence shocks our sense of justice or makes
no measurable contribution to acceptable penal goals, the appellate
court may consider several factors, including the nature of the offense,
the circumstances of the offender, the legislative purpose behind the
punishment and a comparison of the sentences imposed for similar
crimes. State v. Smith, 99-606 (La.7/6/00), 766 So.2d 501. However,
sentences must be individualized to the offender and the offense
committed. State v. Smith, 02-719 (La.App. 3 Cir. 2/12/03), 846
So.2d 786 (quoting State v. Batiste, 594 So.2d 1 (La.App. 1 Cir.1991),
writ denied, 03-562 (La.5/30/03), 845 So.2d 1061).

Having reviewed the record, we conclude that the trial court did not abuse its

discretion and that the defendant‟s ten-year sentence for sexual battery is not

unconstitutionally excessive. Our review indicates that the defendant‟s maximum

sentence is comparable to those imposed in similar crimes. In State v. Morgan, 97-

997, 97-998 (La.App. 3 Cir. 2/4/98), 706 So.2d 1084, in connection with offenses

against two victims, the defendant was charged in two separate docket numbers. In

each docket number, the defendant was charged with two counts of sexual battery

6

and one count of indecent behavior with a juvenile, violations of La.R.S. 14:43.1

and 14:81. Thereafter, the defendant pled guilty to one count of sexual battery in

each docket number and the remaining charges were dismissed. The trial court

imposed the maximum sentence in each count—ten years at hard labor—and

ordered that the defendant‟s sentences run concurrently. The defendant appealed

his sentences as excessive. This court affirmed the defendant‟s sentences, noting

that the defendant had previously been convicted of a similar offense, that the

victims were both under the age of thirteen, and that one victim had “the mental

age of a five to six-year-old.” Morgan, 706 So.2d at 1085. The court also noted

that the defendant received a significant reduction in his sentencing exposure as a

result of his plea agreement.

In State v. Fontenot, 25 So.3d 225, the defendant was initially charged with

six counts of sexual battery and ultimately pled guilty to three counts of sexual

battery. The trial court imposed a sentence of ten years at hard labor on each

count, to run concurrently, without benefit of probation, parole, or suspension of

sentence. The defendant appealed his sentences as excessive. A panel of this court

affirmed the defendant‟s sentences. The court noted that although the defendant, a

first felony offender, was sentenced to the maximum term of imprisonment, he

received the benefit of a plea bargain and a benefit in that his sentences were

imposed concurrently as opposed to consecutively. The court also noted that the

charges all involved a single victim, who was between the ages of seven and eight

at the time the offenses occurred, and was a family member of the defendant. See

also State v. J.G., 06-541 (La.App. 3 Cir. 9/27/06), 939 So.2d 655.

With regard to the nature of the offense and the circumstances of the

offender, the State asserted at the defendant‟s guilty plea hearing that, if the matter

7

had gone to trial, it could prove that the defendant “intentionally touched the

vaginal area of [the victim] with his hands during that time period. And, this was

without the consent of the victim.” The bill of indictment indicates that the

victim‟s birthday was in 2001 and that the offense occurred 2012. The record

further indicates that the defendant was twenty-one years old at the time of the

offense and is a high school graduate who has held general labor jobs. The trial

court was privy to a pre-sentencing investigation and noted that the defendant had

himself been a victim of abuse as a child and had expressed remorse for his

actions.

Further, the trial court considered the La.Code Crim.P. art. 894.1 factors at

the hearing. The trial court specifically noted that the defendant was a first

offender but that he had “two other significant charges under other dockets that

were dismissed by the State.” The trial court also noted that it was of the opinion

that “pr[e]ying on the children of our society is probably the most significant

offense that can be done[;]” that the defendant knew that his victim was

particularly vulnerable and incapable of resistance because of her extreme youth;

that the trial court felt that the defendant was a child predator, even if he had not

been specifically diagnosed as one; and that the court was most significantly

concerned that the defendant‟s conduct would reoccur.

We additionally observe that, as part of his plea agreement, the State agreed

to nolle prosse the charges in two additional docket numbers, which significantly

reduced the defendant‟s sentencing exposure. The charges in those two docket

numbers were two counts of aggravated incest, violations of La.R.S. 14:78.1; one

count of aggravated rape, a violation of La.R.S. 14:42; and one count of cruelty to

a juvenile, a violation of La.R.S. 14:93. The record is unclear as to the dates of all

8

of the defendant‟s alleged offenses and which of the sentencing provisions of the

former crime of aggravated incest, a violation of former statute La.R.S. 14:78.1,

would have been applicable. However, the minutes from February 7, 2014,

indicate that the State amended the dates of the alleged offenses in that case to

November 1, 2008, through November 30, 2008. The sentencing provisions of

La.R.S. 14:78.1(D) provided at that time for a term of imprisonment ranging from

five years, with or without hard labor, to ninety-nine years at hard labor, with at

least twenty-five years being without the benefit of probation, parole, or

suspension of sentence. See La.R.S. 14:78.1(D)(1) and (2). Aggravated rape (now

first-degree rape), a violation of La.R.S. 14:42(D), provided for life imprisonment

at hard labor without the benefit of probation, parole, or suspension of sentence.

The sentencing provisions of cruelty to a juvenile, La.R.S. 14:93(D), provide for a

fine, a term of imprisonment for not more than ten years, with or without hard

labor, or both.

Although the defendant was a first felony offender, he had been charged

with four other counts—three of which were sexually-based offenses—that were

dismissed pursuant to his plea agreement with the State. As a result, the

defendant‟s sentencing exposure was significantly reduced. As stated in State v.

Nash, 12-1146, p. 10 (La.App. 3 Cir. 4/3/13), 112 So.3d 409, 415-16, it is well-

settled that:

If the offense to which the defendant has pled guilty does not
adequately describe the entire course of the defendant‟s conduct, the
trial court may consider the benefit obtained by the defendant
pursuant to [the] plea bargain, especially in those cases where the plea
bargain results in a significant reduction in the defendant‟s sentencing
exposure.

9

Further, the trial court felt that the defendant was a “child predator,” even if he had

not been diagnosed as one, and expressed significant concern that the defendant

would reoffend. Accordingly, we find that the trial court did not abuse its broad

discretion in imposing sentence.

This assignment of error is without merit.

DECREE

For the foregoing reasons, the sentence of the defendant, Stephon Enrique

Fallon, for sexual battery, a violation of La.R.S. 14:43.1, is affirmed. Further, the

trial court is ordered to amend the minute entries and the commitment order to

reflect that the Department of Corrections is to make any calculations as

appropriate based on jurisprudential and legislative guidelines.

AFFIRMED WITH INSTRUCTIONS.

10