State of Louisiana v. Robert Earl Sanders

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

KA 17-679

STATE OF LOUISIANA

VERSUS

ROBERT EARL SANDERS

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APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 322,524
HONORABLE JOHN C. DAVIDSON, DISTRICT JUDGE

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JOHN E. CONERY
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Shannon J. Gremillion,
and John E. Conery, Judges.

SENTENCE AFFIRMED. MOTION TO WITHDRAW GRANTED.

Edward Kelly Bauman
Louisiana Appellate Project
Post Office Box 1641
Lake Charles, Louisiana 70602
(337) 491-0570
COUNSEL FOR DEFENDANT/APPELLANT:
Robert Earl Sanders

Robert Earl Sanders
Rapides Parish Detention Center DC-111
400 John Allison Drive
Alexandria, Louisiana 71303
PRO SE DEFENDANT/APPELLANT:
Robert Earl Sanders

Phillip Terrell, Jr.
District Attorney
Numa V. Metoyer, III
Assistant District Attorney
9th Judicial District Court
Post Office Box 1472
Alexandria, Louisiana 71309
(318) 473-6650
COUNSEL FOR PLAINTIFF/APPELLEE:
State of Louisiana

CONERY, Judge.

Defendant, Robert Earl Sanders, was convicted of second degree

kidnapping, a violation of La.R.S. 14:44.1; second degree battery, a violation of

La.R.S. 14:34.1; and three counts of domestic abuse aggravated assault, violations

of La.R.S. 14:37.7. He was sentenced to fifteen years at hard labor without benefit

of parole, probation, or suspension of sentence for second degree kidnapping; six

years at hard labor for second degree battery; and four years at hard labor without

benefit of parole, probation, or suspension of sentence for each count of domestic

abuse aggravated assault. Each sentence was to run concurrently.

On appeal, this court affirmed all three of Defendant’s convictions and his

sentence of fifteen years without benefit of parole or suspension of sentence for

second degree kidnapping. This court found an error patent because Defendant’s

sentence for second degree battery was beyond the statutory maximum, vacated his

sentence, and remanded the matter for resentencing. This court also amended

Defendant’s sentences for each of the three counts of domestic abuse aggravated

assault to allow for the benefits of parole, probation, or suspension of sentence, as

required by La.R.S. 14:37.7. This court instructed the trial court to make an entry

in the court minutes to reflect the amendment. See State v. Sanders, 16-470

(La.App. 3 Cir. 12/7/16), 209 So.3d 143.

On remand, the trial court resentenced Defendant to the maximum of five

years at hard labor for the second degree battery conviction. Rather than making a

an entry in the court minutes reflecting this court’s amendment of Defendant’s

sentences for domestic abuse aggravated assault, the trial court resentenced

Defendant to four years with benefit of parole, probation, or suspension of

sentence on each of the three counts of domestic abuse aggravated assault. The

sentences imposed were to run concurrently with each other and with any sentence

Defendant was currently serving for his conviction for second degree kidnapping.

Appellate counsel has filed a brief pursuant to Anders v. California, 386

U.S. 738, 87 S.Ct. 1396 (1967), alleging no non-frivolous issues exist on which to

base an appeal and seeking to withdraw as Defendant’s counsel. Defendant has

also filed a pro se brief and a supplemental pro se brief that argues his innocence

but fails to set out any assignments of error. We therefore grant counsel’s motion

to withdraw and affirm Defendant’s sentences for second degree battery and

domestic abuse aggravated assault.

FACTS:

Defendant was found guilty of second degree kidnapping, second degree

battery, and three counts of domestic abuse aggravated assault. The trial court

resentenced him according to this court’s order.

ERRORS PATENT:

We review all appeals for errors patent on the face of the record. After

reviewing the record, we find no errors patent.

ANALYSIS:

Counsel seeks to withdraw. Pursuant to Anders, 386 U.S. 738, Defendant’s

appellate counsel filed a brief stating he could find no errors on appeal that would

support reversal of Defendant’s sentence.

In State v. Benjamin, 573 So.2d 528, 531 (La.App. 4 Cir. 1990), the fourth

circuit explained the Anders analysis:

When appointed counsel has filed a brief indicating that no
non-frivolous issues and no ruling arguably supporting an appeal were
found after a conscientious review of the record, Anders requires that
counsel move to withdraw. This motion will not be acted on until this
court performs a thorough independent review of the record after

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providing the appellant an opportunity to file a brief in his or her own
behalf. This court’s review of the record will consist of (1) a review
of the bill of information or indictment to insure the defendant was
properly charged; (2) a review of all minute entries to insure the
defendant was present at all crucial stages of the proceedings, the jury
composition and verdict were correct and the sentence is legal; (3) a
review of all pleadings in the record; (4) a review of the jury sheets;
and (5) a review of all transcripts to determine if any ruling provides
an arguable basis for appeal. Under C.Cr.P. art. 914.1(D) this Court
will order that the appeal record be supplemented with pleadings,
minute entries, and transcripts when the record filed in this Court is
not sufficient to perform this review.

Pursuant to Anders and Benjamin, this court has performed a thorough

review of the record, including minute entries, the trial court’s written reasons, and

the resentencing transcript, and has confirmed the statements by counsel. The trial

court resentenced Defendant as ordered by this court, subject to the error patent

discussion above. He was present and represented by counsel at the resentencing.

His new sentence complies with the statutory sentencing range, and review of the

transcript in the record provides only frivolous issues for appeal.

Counsel’s Anders brief must “‘assure the court that the indigent defendant’s

constitutional rights have not been violated.’” State v. Jyles, 96-2669, p. 2 (La.

12/12/97), 704 So.2d 241, 241 (quoting McCoy v. Court of Appeals of Wisconsin,

486 U.S. 429, 442, 108 S.Ct. 1895, 1903 (1988)). Thus, counsel’s Anders brief

must fully discuss and analyze the record and also provide “a detailed and

reviewable assessment for both the defendant and the appellate court of whether

the appeal is worth pursuing in the first place.” State v. Mouton, 95-981, p. 2 (La.

4/28/95), 653 So.2d 1176, 1177.

Counsel’s brief to this court recites the facts found in the record. He notes

the trial court resentenced Defendant within the sentencing range of the statute for

second degree battery in effect at the time of the offense. The trial court also

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resentenced the Defendant to four years on each count of domestic abuse

aggravated assault, with the benefit of parole, probation or suspension of sentence,

which was the amended sentence ordered by this court.

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. A defendant who fails to make or file such a motion is precluded

from raising any objection to the sentence on appeal. State v. White, 03-1535

(La.App. 3 Cir. 4/28/04), 872 So.2d 588; State v. Prudhomme, 02-511 (La.App. 3

Cir. 10/30/02), 829 So.2d 1166, writ denied, 02-3230 (La. 10/10/03), 855 So.2d

324. While Defendant objected to the sentence when the trial court imposed it, he

did not file a motion to reconsider it.

This court has held a defendant waived his right to seek review of his

sentence where he lodged no objection to it and failed to file a motion to

reconsider. State v. Duplantis, 13-424 (La.App. 3 Cir. 11/27/13), 127 So.3d 143,

writ denied, 14-283 (La. 9/19/14), 148 So.3d 949. This court noted the defendant

received a legal sentence, as did Defendant here. Thus, his assignment of error on

appeal concerning sentencing lacks merit.

Even so, this court has reviewed claims of excessiveness where the

defendant made no objection and did not file a motion to reconsider his sentence.

See State v. Johnlouis, 09-235 (La.App. 3 Cir. 11/4/09), 22 So.3d 1150, writ

denied, 10-97 (La. 6/25/10), 38 So.3d 336, cert. denied, 562 U.S. 1150, 131 S.Ct.

932 (2011); State v. Bergeron, 12-71 (La.App. 3 Cir. 10/3/12), 99 So.3d 90, writ

denied, 12-2388 (La. 4/26/13), 112 So.3d 837; State v. Arceneaux, 12-1047

(La.App. 3 Cir. 4/3/13), 111 So.3d 1177. Accordingly, we will review Defendant’s

sentence from the standpoint of a bare claim of excessiveness to determine whether

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a claim of an excessive sentence would be a non-frivolous argument on appeal.

State v. Baker, 08-54 (La.App. 3 Cir. 5/7/08), 986 So.2d 682.

This court has previously discussed the standard for reviewing excessive

sentence claims:

[Louisiana Constitution Article] 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. 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. The relevant question is whether the
trial court abused its broad sentencing discretion, not whether another
sentence might have been more appropriate.

State v. Barling, 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d

1035, 1042, writ denied, 01-838 (La. 2/1/02), 808 So.2d 331 (citations omitted).

At the time of the offense, Defendant was exposed to a sentence of up to five

years and a fine of not more than $2,000 for his conviction for second degree

battery. La.R.S. 14:34.1. Thus, he received the maximum term sentence.

Even though a penalty falls within the statutory sentencing range, it may still

be unconstitutionally excessive:

In deciding whether a sentence is shocking or makes no
meaningful contribution to acceptable penal goals, an 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. While a comparison of sentences imposed for similar crimes
may provide some insight, “it is well settled that sentences must be
individualized to the particular offender and to the particular offense
committed.” Additionally, it is within the purview of the trial court to
particularize the sentence because the trial judge “remains in the best
position to assess the aggravating and mitigating circumstances
presented by each case.”

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State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ

denied, 03-562 (La. 5/30/03), 845 So.2d 1061 (citations omitted). “The appellate

court shall not set aside a sentence for excessiveness if the record supports the

sentence imposed.” La.Code Crim.P. art. 881.4(D).

In State v. Hopkins, 96-1063 (La.App. 3 Cir. 3/5/97), 692 So.2d 538, the

defendant struck the victim on the buttocks with a thick branch. He made her

remove her clothing, and he struck her some more. The blows left a four-inch

bruise. The victim went to the hospital and was prescribed pain medication. This

court affirmed the defendant’s maximum sentence of five years at hard labor and a

$2,000 fine. This court found the evidence supported the greater charge of

aggravated battery. Thus, “[b]ecause the conduct involved is not adequately

described by the conviction, the defendant need not be the ‘worst type of offender’

to receive the maximum sentence.” Id. at 541.

This court’s original opinion in this case (Sanders, 209 So.3d 143), shows

Defendant grabbed his victim, threw her down stairs, held her in his apartment

against her will, threatened to “juke” her with a metal meat skewer, sprayed her

with lighter fluid, made her think he would set her on fire and “make her look like

a mummy[,]” repeatedly struck her on the top of her head with a knife, kicked her

in the head, threw her to the ground, caused a serious head injury, poured lighter

fluid into her head wound, and slapped her face. Id. at 145-46.

At the original sentencing, the trial judge considered Defendant’s conduct

during the commission of the offenses to manifest deliberate cruelty to his victim.

He should have known the victim was particularly vulnerable. He used threats of

violence and actual violence in the commission of the offenses. He used a

dangerous weapon. The trial judge did not find testimony that the offenses

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resulted from “a lover’s quarrel,” which occurred before the offense, to be a

mitigating factor. Defendant’s acts support the greater charge of aggravated

battery, which is the intentional use of force or violence with a dangerous weapon,

just as in Hopkins, 692 So.2d 538.

Defendant’s sentence was within the statutory guidelines. The trial court

considered Defendant’s indigent status and did not impose the fine allowed by

statute. Defendant received a significant benefit from the trial court’s ruling that

the sentences are to run concurrently, and also received credit for time served.

Accordingly, the trial court did not err in sentencing Defendant to the maximum

term for second degree battery. Further, Defendant failed to make a non-frivolous

argument of an excessive sentence on appeal.

Our review of the record reveals no non-frivolous issues Defendant could

raise on appeal. Accordingly, we grant the motion to withdraw filed by counsel.

We also affirm Defendant’s sentences imposed by the trial court for second degree

battery and domestic aggravated assault.

SENTENCES AFFIRMED. MOTION TO WITHDRAW GRANTED.

This opinion is NOT DESIGNATED FOR PUBLICATION. Uniform
Rules—Courts of Appeal, Rule 2-16.3.

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