State of Louisiana v. Nicholas James Faciane -Aka- Nicholas Faciane

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

KA 17-1109

STATE OF LOUISIANA

VERSUS

NICHOLAS JAMES FACIANE

-AKA- NICHOLAS FACIANE

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF VERMILION, NO. 54567-L
HONORABLE EDWARD D. RUBIN, DISTRICT JUDGE

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CANDYCE G. PERRET
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Phyllis M. Keaty, and
Candyce G. Perret, Judges.

JUDGMENT AFFIRMED. REMANDED WITH INSTRUCTIONS.

Martin Edward Regan, Jr.
Graham Da Ponte
Regan Law, P.L.C.
2125 St. Charles Avenue
New Orleans, LA 70130
(504) 522-7260
COUNSEL FOR DEFENDANT-APPELLANT:
Nicholas James Faciane

Hon. Keith A. Stutes
Lafayette Parish District Attorney
P. O. Box 3306
Lafayette, LA 70502-3306
(337) 232-5170
COUNSEL FOR PLAINTIFF-APPELLEE:
State of Louisiana

John V. Ghio
Assistant District Attorney, 15th Judicial District Court
100 N. State Street, Suite 215
Abbeville, LA 70510
(337) 898-4320
COUNSEL FOR PLAINTIFF-APPELLEE:
State of Louisiana

PERRET, Judge.

Defendant, Nicholas James Faciane, entered a plea of no contest to six counts

of felony carnal knowledge of a juvenile, violations of La.R.S. 14:80, and six counts

of contributing to the delinquency of a juvenile, violations of La.R.S. 14:92, in lower

court docket number 54567, appellate docket number 17-1109. Defendant also pled

no contest to separate charges in three additional dockets. Defendant appeals his

sentences in all dockets as excessive and argues that the case should be remanded

for resentencing due to the trial court’s failure to articulate sentencing considerations.

For the following reasons, we affirm and remand with instructions.

Factual and Procedural Background:

On October 25, 2011, Defendant was charged by four separate grand jury

indictments with thirty-seven counts of sexual offenses against two different

victims—M.L. and T.R.B. The indictments were filed under four separate lower

court docket numbers. In lower court docket number 54567 (appellate docket

number 17-1109), the subject of the instant appeal, Defendant was charged with

thirteen counts of felony carnal knowledge of a juvenile (M.L.), violations of La.R.S.

14:80(A)(1), and one count of contributing to the delinquency of a juvenile (M.L.),

a violation of La.R.S. 14:92(A)(7). By handwritten amendment, “Count 14” was

amended to “Count 1-13,” effectively charging Defendant with thirteen counts of

contributing to the delinquency of a juvenile (M.L.). In lower court docket number

54568 (appellate docket number 17-1110), Defendant was charged with six counts

of indecent behavior with a juvenile (M.L.), violations of La.R.S. 14:81. In lower

court docket number 54569 (appellate docket number 17-1111), Defendant was

charged with one count of aggravated crime against nature (M.L.), in violation of

La.R.S. 14:89.1(A)(6), 1 and one count of contributing to the delinquency of a

juvenile (M.L.), in violation of La.R.S. 14:92. Lastly, in lower court docket number

55016 (appellate docket number 17-1112), Defendant was charged with one count

of sexual battery (T.R.B.), in violation of La.R.S. 14:43.1(A)(1); one count of

indecent behavior with a juvenile (T.R.B.), in violation of La.R.S. 14:81(A)(1); and

one count of contributing to the delinquency of a juvenile (T.R.B.), in violation of

La.R.S. 14:92(A)(9).

On January 23, 2017, Defendant entered pleas of no contest to eighteen

offenses:

Docket 54567—Felony carnal knowledge of a juvenile, six counts;

Docket 54567—Contributing to the delinquency of a juvenile, six
counts;

Docket 54568—Indecent behavior with a juvenile, three counts;

Docket 54569—Aggravated crime against nature, one count;

Docket 55016—Sexual battery, one count; and

Docket 55016—Indecent behavior with a juvenile, one count.

The nineteen remaining counts were dismissed as a result of the no contest plea.

The State submitted the following as a factual bases for Defendant’s pleas of

no contest:

On the docket 54567, should this matter had gone to trial the
State would have shown that the Defendant, Nicholas James Faciane,
did between the dates of May 2008 and September 2010 did knowingly,
intentionally and willfully commit carnal knowledge of a juvenile,
having the initials of M.L. whose date of birth is 9/20/93, by having
sexual intercourse with a consent [sic] with a person who is 13 years of
age or older, but less than 17 years of age, where the difference between
age of the offender and the victim is four years or greater, in violation
of Revised Statute 14:80A(1). And that’s six counts of felony carnal

1
This provision of La.R.S. 14:89.1 was in effect at the time Defendant committed the
offense (August 2010—September 2010). However, the statute was amended in 2014.

2

knowledge. In addition thereto, the State would’ve shown also that on
the same time period, he did intentionally entice, aid, solicit or permit
a child, having the initials of M.L., same date of birth 9/20/93, under
the age of 17 to perform any sexually immoral acts in violation of
Revision 14:92A(7). And again, it’s six counts on that. On the docket
number 054568, should this matter had gone to trial, the State would’ve
shown that on or about May 2008 to September 2008 the defendant
being a person of age over 17 years did willfully, unlawfully and
intentionally commit lewd or lascivious acts upon or in the presence of
a juvenile having the initials of M.L., whose date of birth is 9/20/93
who had not yet obtained the age of 17 and where there’s an age
difference of greater than two years between the two persons, with the
intention of arousing or gratifying sexual desires of himself in violation
of Revision 14:81, and that’s three counts of that. On the docket
number 054569, should this matter had gone to trial, the State would’ve
shown that between August 2008 and September 2010, that the
defendant did commit the crime of unnatural carnal copulation of the
offender with another of the opposite sex, being particularly M.L.
whose date of birth is 9/20/93, and said victim is under the age of 17
years and the defendant is at least three years older than the victim in
violation of 14:89.1. And we dismissed count two under that. Under
docket number 055016, should this matter had gone to trial, the State
would’ve shown that between the years of 2005 and 2008, the
defendant did intentionally commit the touching of the anus and
genitals of the victim, having the initials of T.R.B. date of birth 3/15/94,
by the offender using any instrument or any part of the body under 15
years of age and at least three years younger than the offender in
violation of 14:43.1, and under count two of said indictment the
defendant being a person over the age of 17 did willfully, unlawfully
and intentionally commit lewd and lascivious acts upon or in the
presence of a juvenile, T.R.B. date of birth again is 3/15/94, who had
not yet obtained the age of 17 and where there’s an age difference of
greater than two years between the two persons with the intention of
arousing or gratifying sexual desires of the offender in violation of code
14:81. And the State is dismissing count three under that. And that’s
the basis of the plea.

The parties also stipulated to a statement of facts set forth in the pre-sentence

investigation report (PSI).

On May 2, 2017, the trial court imposed the following sentences:

Docket 54567—Felony carnal knowledge of a juvenile, six counts—a
$5,000 fine and ten years at hard labor (for each count); concurrent.

Docket 54567—Contributing to the delinquency of a juvenile, six
counts—a $1,000 fine and two years at hard labor (for each count);
concurrent.

3

Docket 54568—Indecent behavior with a juvenile, three counts—a
$5,000 fine and seven years at hard labor (for each count); concurrent.

Docket 54569—Aggravated crime against nature, one count—fifteen
years at hard labor, without benefit of probation, parole, or suspension
of sentence.

Docket 55016—Sexual battery, one count—ten years at hard labor,
without benefit of probation, parole, or suspension of sentence.2

Docket 55016—Indecent behavior with a juvenile, under the age of 13,
one count—twenty-five years at hard labor, without benefit of
probation, parole, or suspension of sentence, and personal property
used in the commission of the offense to be seized and impounded in
accordance with La.R.S. 15:539.1.

The trial court ordered all sentences in the four dockets to run concurrently, with a

“maximum sentence of 25 years at hard labor.” Defense counsel objected to the

sentences as excessive. Subsequently, Defendant filed a pro se Motion to

Reconsider Sentence that was later denied on June 12, 2017. On June 1, 2017,

Defendant filed a pro se motion for appeal, which was granted.

On January 10, 2018, Defendant’s appellate counsel filed a motion in the trial

court to disclose the PSI report. The trial court denied the motion on January 23,

2018. On February 5, 2018, appellate counsel filed in this court a motion titled,

“Motion to Include Pre-Sentence Investigation Report in Record.” In that motion,

Defendant requested that the PSI be included in the appellate record and that he be

given access to the PSI. On February 23, 2018, this court rendered an Order on

Defendant’s motion in which we: (1) denied appellate counsel’s request to include

the PSI in the record; (2) denied appellate counsel’s request for access to the PSI;

2
We note that the trial court referred to the wrong statute when sentencing Defendant for
sexual battery. Sexual battery is set forth in La.R.S. 14:43.1, but the trial court referred to La.R.S.
14:46.1 (false imprisonment while armed with a dangerous weapon). This error appears to be a
misstatement of the statute’s number only since the sentence imposed was legal for sexual battery,
and the trial court referred to the offense itself as sexual battery.

4

and (3) ordered that appellate counsel be given until March 5, 2018, to file a writ

application with this court seeking review of the trial court’s denial of appellate

counsel’s motion to disclose the PSI, which only challenged appellate counsel’s

access to the PSI. Appellate counsel did file such a writ application, and it was

denied on April 10, 2018. State v. Faciane, 18-199 (La.App. 3 Cir. 4/10/18)

(unpublished opinion).

This court granted Defendant’s Motion to Consolidate for Docketing

Purposes. Now before the court is the same brief filed in the separate appeals of all

four lower court docket numbers. Defendant appeals his sentences as excessive and

argues that the case should be remanded for resentencing due to the trial court’s

failure to articulate sentencing considerations. As discussed below, we find no merit

in Defendant’s assignments of error.

Pre-Sentence Investigation Report:

In accordance with La.Code Crim.P. art. 877(C), the PSI report “shall” be

made a part of the appellate record when a defendant seeks review of an excessive

sentence. It is necessary for this court to review the PSI in this case considering the

trial court’s lack of reasons for sentencing. 3 This court’s prior Order denying

counsel’s request to make the PSI part of the appeal record was inadvertent and is

now reversed. Thus, we will consider the PSI on appeal. However, we maintain the

portion of the Order denying counsel’s access to the PSI, as well as the subsequent

writ ruling by this court. Defendant’s trial counsel had the opportunity to review the

report at sentencing and had no objections.

3
Although the PSI is part of the appellate record and is thus proper for this court to consider
and refer to, the details of the PSI will not be set forth in this court’s opinion. See La.Code Crim.P.
art. 877 and State v. Trahan, 367 So.2d 752 (La.1978) (in which the supreme court referred to
information in the PSI even though the PSI had been furnished under seal).

5

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 this record, we find there are

two errors patent. Additionally, the sentencing minutes for this docket need

correction.

As for the first error patent, the original indictment appears to have charged

Defendant with more than one offense in each count. The original indictment

charged Defendant with felony carnal knowledge of a juvenile in “Count 1-13” and

contributing to the delinquency of a juvenile in “Count 14.” By handwritten

amendment, “Count 14” was amended to “Count 1-13.” As a result of the

amendment, Defendant was charged with thirteen counts of felony carnal knowledge

of a juvenile and thirteen counts of contributing to the delinquency of a juvenile.

This court has previously found that a similar error was waived by the

defendant’s failure to file a motion to quash and by the defendant’s guilty plea:

First, the face of the bill of information indicates that the
defendant was originally charged with one count of aggravated second
degree battery occurring on or about September 7, 2000, a violation of
La.R.S. 14:34.7. The State amended the bill to charge the defendant
with aggravated battery occurring on or about “10-22-98 and
September 7, 2000” and listed the victim as Michael Berry. It appears
that the bill charged two distinct crimes in a single count. Louisiana
Code of Criminal Procedure Article 493 allows for the joinder of two
or more offenses in the same bill in a separate count for each offense if
certain requirements are met. Here, the bill indicates that these
incidents occurred two years apart. Therefore, we find that the
inclusion of the two distinct crimes in one count of the bill was error;
however, for the reasons discussed below, we find that any error was
waived.

This court in State v. Simpson, 464 So.2d 1104, 1109 (La.App. 3
Cir.1985), defined duplicity as “the charging of more than one distinct
crime in one count of an indictment.” The fourth circuit, in a case in
which the indictment improperly charged the defendant disjunctively
rather than conjunctively, held that a claim that an indictment is
duplicitous is not a jurisdictional defect and is waived if not timely

6

asserted in a motion to quash. State v. Defraites, 449 So.2d 540
(La.App. 4 Cir.), writ denied, 452 So.2d 179 (La.1984). Here, no
motion to quash was filed. Additionally, when the defendant entered
his guilty plea, he waived any pre-plea non-jurisdictional defects. Thus,
we find any error was waived.

State v. Wilson, 07-365, pp. 1-2 (La.App. 3 Cir. 10/3/07), 968 So.2d 776, 778.

Similarly, we conclude the error in the present case was waived by Defendant’s

failure to file a motion to quash and by Defendant’s entry of no contest pleas.

As for the second error patent, the trial court imposed illegally lenient

sentences for the six counts of felony carnal knowledge of a juvenile. Effective

August 15, 2010, the legislature enacted section (D)(2)(a) of La.R.S. 14:80, which

requires the trial court to order the seizure and impoundment of any personal

property used in the commission of felony carnal knowledge of a juvenile. 2010 La.

Acts No. 763 § 1. The trial court did not order the seizure and impoundment of

personal property used in the commission of the offenses in the present docket

number. Thus, the sentences imposed for felony carnal knowledge of a juvenile are

illegally lenient. However, while authority is granted and discretionary under

La.Code Crim.P. art. 882, this court will not consider an illegally lenient sentence

unless it is an error raised on appeal. See State v. Celestine, 11-1403 (La.App. 3 Cir.

5/30/12), 91 So.3d 573; State v. Jacobs, 08-1068 (La.App. 3 Cir. 3/4/09), 6 So.3d

315, writ denied, 09-755 (La. 12/18/09), 23 So.3d 931.

Additionally, the sentencing minutes require amendment because they fail to

impose the terms of imprisonment and the fines on each count. According to the

sentencing transcript, the trial court imposed the terms of imprisonment and the fines

on each count. Thus, the sentencing minutes must be amended to correctly reflect

the imposition of the terms of imprisonment and fines on each count.

7

Assignments of Error:

In two assignments of error, Defendant contends that the trial court imposed

unconstitutionally excessive sentences and failed to comply with La.Code Crim.P.

art. 894.1. The trial court imposed the maximum terms of imprisonment and fines

for each of the offenses to which Defendant pled no contest but ordered the sentences

in all four dockets to run concurrently. If the trial court had ordered Defendant’s

sentences to run consecutively, Defendant’s term of imprisonment would have

totaled 143 years, and his fines would have totaled $51,000.00. By ordering the

sentences to run concurrently, Defendant’s total term of imprisonment is twenty-five

years without the benefit of probation, parole, or suspension of sentence, and his

total fine is $5,000.00. Additionally, nineteen counts were dismissed as a result of

Defendant’s no contest pleas. For the reasons discussed below, we find Defendant’s

sentences are not excessive.

Arguments in Brief

In assignment of error number one, Defendant argues that he is not the worst

type of offender; thus, he should not have received the maximum sentence on each

offense. Defendant additionally asserts he received no benefit from his no contest

pleas since the charges that were dismissed “were counts of the same offenses to

which he pled.” According to Defendant, there is no indication that the trial court

considered Defendant’s decision to plead no contest as a mitigating factor when

determining his sentences. In assignment of error number two, Defendant asserts

the trial court failed to comply with the requirements of La.Code Crim.P. art. 894.1

because it did not state a factual basis for the sentences and failed to state the factors

it considered in imposing the sentences.

8

In response, the State contends Defendant is limited to a review for

constitutional excessiveness. Defendant’s sentences are not excessive, the State

asserts, considering the nature of the crimes, the length of time the crimes occurred,

the age of the victims, and the dismissal of nineteen counts pursuant to his plea

agreement.

As for Defendant’s claim in assignment of error number two that the trial

court failed to comply with La.Code Crim.P. art. 894.1, the State counters that the

record clearly indicates the trial court considered the factors outlined in La.Code

Crim.P. art. 894.1 because the court had the PSI and character witness testimony on

behalf of Defendant. Additionally, the State quotes State v. Cottingin, 476 So.2d.

1184, 1186 (La.App. 3 Cir. 1985): “When there is an adequate factual basis for the

sentence contained in the record, a trial court’s failure to articulate every

circumstance listed in La.C.Cr.P. Art. 894.1 will not necessitate a remand for

resentencing.”

Analysis

Louisiana Code of Criminal Procedure Article 881.1 provides the mechanism

for preserving the review of a sentence on appeal:

A. (1) In felony cases, within thirty days following the imposition
of sentence or within such longer period as the trial court may set at
sentence, the state or the defendant may make or file a motion to
reconsider sentence.

....

E. 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.

9

At sentencing, Defendant’s counsel raised a general objection as to the

excessiveness of the sentences imposed. Defendant then filed a pro se written

motion to reconsider sentence, asserting that his sentences were excessive for the

following reasons: (1) he has no history of prior criminal activity; (2) imprisonment

has caused an excessive hardship on his family; (3) he is not the worst type of

offender and the offenses are not the worst type of offenses; and (4) he pled no

contest, obviating the need for a trial. In neither the oral motion nor the written

motion did Defendant raise the issue of the trial court’s failure to comply with

La.Code Crim.P. art. 894.1. Thus, this argument has not been preserved as a separate

issue.4 In State v. Seawright, 16-956, p. 8 (La.App. 3 Cir. 5/24/17) (unpublished

opinion), this court stated the following:

To the extent counsel argues that the district court failed to
properly support the sentence with reasons, that argument has not been
preserved as a separate issue. This court has explained: “Because the
defendant did not raise in his oral motion to reconsider sentence that
the trial court failed to comply with La.Code Crim.P. art. 894.1, he
cannot raise that for the first time on appeal. See La.Code Crim.P art.
881.1(E) and Uniform Rules—Courts of Appeal, Rule 1–3.” State v.
Matthew, 07–1326, p. 4 (La.App. 3 Cir. 5/28/08), 983 So.2d 994, 997,
writ denied, 08–1664 (La. 4/24/09), 7 So.3d 1193. Therefore, this
portion of the assignment lacks merit.

Accordingly, we will not address the trial court’s failure to comply with La.Code

Crim.P. art. 894.1 as a separate issue but will address Defendant’s excessive

sentence claim based on his counsel’s general objection to the excessiveness of the

sentences and those claims raised in Defendant’s motion to reconsider sentence.

Louisiana courts have laid out the following guidelines regarding excessive

sentence review:

4
The trial court’s lack of reasons will be discussed as it relates to this court’s excessive
sentence review.

10

Sentences within the statutory sentencing range can be reviewed
for constitutional excessiveness. State v. Sepulvado, 367 So.2d 762
(La.1979). 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, a panel of this court discussed the review of excessive
sentence claims, 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 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 [a] 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).

Further, in reviewing the defendant’s sentences, the appellate
court should consider the nature of the crime, the nature and
background of the offender, and the sentences imposed for similar
crimes. State v. Lisotta, 98-648 (La.App. 5 Cir. 12/16/98), 726 So.2d
57 (citing State v. Telsee, 425 So.2d 1251 (La.1983)), writ denied, 99-
433 (La. 6/25/99), 745 So.2d 1183. In 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, a panel of this court observed that:

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.” State
v. Batiste, 594 So.2d 1[, 3] (La.App. 1 Cir.1991).
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.” State
v. Cook, 95-2784[, p. 2] (La.5/31/96); 674 So.2d 957,
958[, cert. denied, 96-6329, 519 U.S. 1043, 117 S.Ct. 615
(1996)].

11

State v. Soileau, 13-770, 13-771, pp. 4-5 (La.App. 3 Cir. 2/12/14), 153 So.3d 1002,

1005-06, writ denied, 14-452 (La. 9/26/14), 149 So.3d 261.

In the present case, the trial court failed to articulate any reasons for the

sentences imposed and did not discuss any of the factors set forth in La.Code Crim.P.

art. 894.1. This court has stated the following regarding the trial court’s failure to

comply with La.Code Crim.P. art. 894.1:

As noted in State v. Smith, 433 So.2d 688, 698 (La.1983) (citations
omitted), “[w]hile the trial judge need not articulate every aggravating
and mitigating circumstance outlined in art. 894.1, the record must
reflect that he adequately considered these guidelines in particularizing
the sentence to the defendant.” This does not mean, however, that the
trial judge’s failure to comply with Article 894.1 renders a sentence
invalid, as the goal of this article is articulation of the factual basis for
a sentence, “not rigid or mechanical compliance with its provisions.”
State v. Lanclos, 419 So.2d 475, 478 (La.1982). Accordingly, if “the
record clearly shows an adequate factual basis for the sentence
imposed[,] . . . remand is unnecessary, even where there has not been
full compliance with Article 894.1.” Id.

State v. H.A., Sr., 10-95, pp. 25-26 (La.App. 3 Cir. 10/6/10), 47 So.3d 34, 50.

Despite the trial court’s failure to articulate reasons, the record in the present case

clearly shows an adequate factual basis for the sentences imposed. The sentences

are supported by the testimony introduced at the sentencing hearing, the PSI, and

other evidence in the record.

At the sentencing hearing, the trial court heard testimony from Defendant’s

mother, Roxanne Broussard, regarding Defendant’s diagnosis as a child with

Dyslexia, Attention Deficit Disorder, visual perception deficit, audio perception

deficit, and short-term memory span. A 1988 evaluation by the school board

classified Defendant as learning-disabled and speech-impaired. Subsequently, after

an evaluation by a neurologist, Defendant qualified for Social Security Disability.

Additionally, Ms. Broussard testified that Defendant had problems with drooling,

12

which could have been caused by complications during her pregnancy. Ms.

Broussard agreed that Defendant’s school records also showed that Defendant had

inappropriate, unselected, and often excessive displays of affection.

On cross-examination, Ms. Broussard testified that Defendant was evaluated

in the first and fifth grades. Ms. Broussard agreed that Defendant knew right from

wrong and agreed that Defendant left the country when he was released on bond.

Although Ms. Broussard insisted Defendant had the right to leave the country, she

acknowledged that the U.S. Marshal had to bring Defendant back. Ms. Broussard

further testified that Defendant ran a business involving boats and barges as well as

an oilfield company. When asked by the trial court if Defendant was mentally ill,

Ms. Broussard replied that Defendant was not mentally ill but had a lot of learning

disabilities.

At the sentencing hearing, the trial court also noted that a PSI had been

prepared and that both sides had the opportunity to review the report. The State had

no objection to the report and wanted the PSI to be part of the record. Defense

counsel also had no objection to the original PSI, stated he had reviewed the PSI,

and that both sides had supplemented the PSI. Defense counsel additionally asked

that the information be placed under seal since it contained Defendant’s medical and

psychological records from his childhood. The trial court sealed Defendant’s

medical records as well as the PSI. Subsequently, the State submitted the victims’

impact statements (included in the PSI), which the trial court stated would be

reflected in the record.

Although the trial court clearly knew a PSI had been prepared and included it

as part of the record, the trial court did not specifically state that it was considered

when the court imposed the sentences. Since the court ordered the preparation of

13

the PSI and noted one was prepared and reviewed by both sides, it is reasonable to

conclude the PSI contributed to the trial court’s determination of the sentences

imposed. See State v. Simmons, 466 So.2d 777 (La.App. 4 Cir. 1985). Thus, this

court has reviewed the PSI and will discuss its contents.

The PSI contains information regarding Defendant’s criminal history, details

of the sexual abuse Defendant inflicted upon both victims, details regarding

Defendant’s relationship with both victims, and it includes a statement by

Defendant. Finally, the PSI’s author provides the court with a recommendation as

to Defendant’s sentence.

According to the birthdates listed in the grand jury indictment, Defendant was

thirteen years older than M.L. According to the charging instruments, the abuse of

M.L. began when she was fifteen and continued until she was seventeen, and the

abuse of T.R.B. began when she was eleven and continued until she was fourteen.

At sentencing, Defendant introduced his school records under seal, a

psychological evaluation, and documents relating to his Social Security Disability.

Prior to sentencing, the trial court presided over Defendant’s no contest pleas,

pursuant to which the State dismissed nineteen charges against Defendant.

Additionally, according to a Motion to Revoke Bond filed by the State on November

12, 2015, Defendant failed to appear in court on May 9, 2013; July 25, 2013; and

November 4, 2013. Approximately two years later, on November 6, 2015,

Defendant was apprehended in Mexico. According to the minutes of a hearing held

on February 1, 2016, Defendant admitted to the allegations set forth in the Motion

to Revoke Bond. Considering the above evidence, we conclude the record contains

a factual basis that supports the sentences imposed.

14

Defendant also had nineteen charges dismissed as a result of his no contest

pleas. Thus, Defendant received the benefit of a reduced sentencing exposure.

Defendant also received a substantial benefit from the trial court’s imposition of

concurrent sentences since there is jurisprudence that supports the imposition of

consecutive sentences in this case. For instance, this court in State v. H.B., 06–1436,

p. 7 (La.App. 3 Cir. 4/4/07), 955 So.2d 255, 260, stated, “Review of the

jurisprudence shows that different victims, places, or dates mean different

transactions and different schemes or plans.” Additionally, this court has stated the

following:

In State v. Thibodeaux, 05–1187 (La.App. 3 Cir. 3/1/06), 924
So.2d 1205, writ denied, 06–700 (La.10/6/06), 938 So.2d 65, this court
upheld three ten-year-consecutive sentences after Thibodeaux pled
guilty to three counts of molestation of a juvenile. The offenses in
Thibodeaux were not based on the same act or transaction and occurred
over a five-year period for one victim and over a six-month period for
the other two victims. Id. at 1214. This court further noted that
Thibodeaux’s acts reflected a propensity to prey on those unable to
protect themselves, particularly the mentally handicapped victim. Id.
The record contained evidence of threats of violence and actual acts of
violence by Thibodeaux as well as evidence that Thibodeaux sought to
purchase a firearm while out on bond. Id.

In State v. Mickens, 31,737 (La.App. 2 Cir. 3/31/99), 731 So.2d
463, writ denied, 99–1078 (La.9/24/99), 747 So.2d 1118, the second
circuit upheld consecutive sentences for one count of molestation of a
juvenile and one count of indecent behavior with a juvenile (both
offenses committed against the same victim). Mickens was sentenced
to ten years for molestation of a juvenile and seven years for indecent
behavior with a juvenile. In particular, the second circuit noted that
Mickens was in a common-law relationship with the victim’s mother
and violated his paternal role in the commission of the crimes. Id. at
472. Additionally, the second circuit noted that consecutive sentences
are not uncommon in cases involving acts of molestation over an
extended period of time by persons in the same household as the victim.
Id. at 473.

State v. Roy, 15-516, pp. 11-12 (La.App. 3 Cir. 11/4/15), 177 So.3d 1112, 1119.

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Defendant cites several inapposite cases in support of his argument that a

lesser sentence should have been imposed, including State v. Fontenot, 09-624

(La.App. 3 Cir. 12/9/09), 25 So.3d 225 and State v. Morgan, 97-997 (La.App. 3 Cir.

2/4/98), 706 So.2d 1084. Defendant also cites State v. Robinson, 49,821 (La.App. 2

Cir. 5/20/15), 166 So.3d 395, writ denied, 15-1400 (La. 9/16/16), 206 So.3d 201, to

distinguish its facts from the present case. Defendant notes that in Robinson, 166

So.3d at 401, the second circuit affirmed a twenty-five year sentence for indecent

behavior with a juvenile under thirteen after the trial court opined that the

defendant’s abuse of his stepchildren constituted a “continuing, uninterrupted,

incessant and malicious, sinister period of criminal conduct” and that the defendant

used his parental authority to facilitate the crimes. However, those facts cited from

Robinson are similar to the present case since Defendant used his position as M.L.’s

older brother-in-law, with whom M.L. lived during some of the abuse, to entice the

victims at very young ages with alcohol and eventually sexual encounters.

This court also recently approved a total sentence of fifty years at hard labor

without benefit of parole, probation, or suspension of sentence for seven counts of

sex offenses committed by an almost sixty-year-old man against a boy between the

ages of thirteen and fifteen. State v. Cormier, 17-854 (La.App. 3 Cir. 3/21/18)

(unpublished opinion). Addressing the excessiveness of the sentences imposed, this

court stated the following:

For a comparison of sentences imposed in similar cases, the State
notes State v. Marshall, 16–777 (La.App. 1 Cir. 10/31/16) (unpublished
opinion). Marshall was convicted of sexual battery of a victim under
the age of thirteen and aggravated incest. For sexual battery, Marshall
was sentenced to forty-five years at hard labor without benefit of parole,
probation, or suspension of sentence, and for aggravated incest to ten
years at hard labor. Id. The sentences were ordered to run
consecutively, for a total sentence of fifty-five years. Like Defendant
in the present case, Marshall argued that the sentence was essentially a

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life sentence considering his age of sixty. Id. Additionally, Marshall
argued the trial court did not know anything about him and that the
record lacked information as to his criminal history. Id. The first circuit
upheld the sentences, finding the record contained an adequate factual
basis for the sentence imposed:

The record clearly established an adequate factual
basis for the sentences imposed. The defendant lived
together for several years with J.M. and her mother, and
ostensibly took on the roles of guardian and caretaker. The
defendant used this parental relationship to exploit J.M.’s
trust and sexually abuse her. See State v. Kirsch, 2002-
0993 (La. App. 1st Cir. 12/20/02), 836 So.2d 390, 395–96,
writ denied, 2003-0238 (La. 9/5/03), 852 So.2d 1024.

Considering the trial court’s review of the
circumstances and the nature of the crimes, we find no
abuse of discretion by the trial judge. Accordingly, the
sentences imposed by the trial judge are not grossly
disproportionate to the severity of the offenses and,
therefore, are not unconstitutionally excessive. The trial
judge did not err in denying the motion to reconsider
sentence(s).

Id. at p. 3.

Noting that a trial court may consider factors not listed in
La.Code Crim. P. art. 894.1, the State asserts the present trial court
considered Defendant’s likelihood of reoffending, Defendant’s refusal
to accept responsibility, the two victim impact statements, and the
likely permanent damage caused to the victim. Considering these
factors, the State argues the sentences imposed were not excessive.

....

. . . Considering the nature of the crime, the possible sentence
that could have been imposed, and the restriction of this review to a
bare excessiveness review, we conclude that the trial court did not
abuse its discretion in imposing the sentences in the present case.

Cormier, 17-854 at pp. 11-13. Likewise, the total sentence in the present case is not

excessive.

Additionally, as stated earlier, the trial court imposed the maximum terms of

imprisonment and fines for each of the offenses to which Defendant pled no contest,

however, it ordered the sentences in all four dockets to be served concurrently. Thus,

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instead of serving a term of imprisonment totaling 143 years and a $51,000.00 fine,

Defendant’s total term of imprisonment is twenty-five years, and his total fine is

$5,000.00. Defendant will, in effect, serve only one maximum sentence. See

Fontenot, 25 So.3d 225.

In summary, Defendant pled no contest to eighteen sexual offenses.

Defendant used his position as M.L.’s older brother-in-law to perpetrate his crimes

against M.L. and her friend, T.R.B., enticing the young girls with drugs and alcohol.

Defendant received a substantial benefit by the dismissal of charges pursuant to his

no contest pleas and by the trial court’s imposition of concurrent sentences. Despite

Defendant’s status as a first-felony offender and the trial court’s failure to articulate

its specific reasons under La.R.S. 14:894.1 for the sentences imposed, the record

supports the sentences. Defendant’s assertion in his motion to reconsider sentence

that his sentences will cause an excessive hardship on his family does not support

the imposition of lesser sentences. Likewise, Defendant’s assertion that the trial

court failed to consider his no contest plea as a mitigating factor does not support

the imposition of lesser sentences. Additionally, Defendant’s assertions that he is

not the worst offender and that the offenses he committed are not the worst offenses

are irrelevant since he is not serving the maximum sentence on each offense

consecutively. Finally, we note the supreme court’s repeated admonition “that

sentence review under the Louisiana constitution does not provide an appellate court

with a vehicle for substituting its judgment for that of a trial judge as to what

punishment is more appropriate in a given case.” State v. Savoy, 11-1174, p. 5 (La.

7/2/12), 93 So.3d 1279, 1283 (citing State v. Walker, 00-3200 (La. 10/12/01), 799

So.2d 461). Accordingly, we find that Defendant’s assignments of error lack merit.

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Conclusion:

Defendant’s convictions and sentences are affirmed, subject to the

amendment to Defendant’s sentence in 55016, as discussed in State v. Faciane, 17-

1112 (La.App. 3 Cir. __/__/18), __ So.3d __. The sentencing minutes for this

docket, 54567, are ordered to be amended to correctly reflect the trial court’s

imposition of the terms of imprisonment and fines on each count.

JUDGMENT AFFIRMED. REMANDED WITH INSTRUCTIONS.

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

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