State of Louisiana v. Gerrell Washington

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

19-39

STATE OF LOUISIANA

VERSUS

GERRELL WASHINGTON

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APPEAL FROM THE
TWELFTH JUDICIAL DISTRICT COURT
PARISH OF AVOYELLES, NO. 2017-CR-200827-A
HONORABLE KERRY L. SPRUILL, DISTRICT JUDGE

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D. KENT SAVOIE
JUDGE

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Court composed of Elizabeth A. Pickett, Billy Howard Ezell, and D. Kent Savoie,
Judges.

AFFIRMED WITH INSTRUCTIONS.

Paula C. Marx
Louisiana Appellate Project
Post Office Box 82389
Lafayette, Louisiana 70598-2389
(337) 991-9757
COUNSEL FOR DEFENDANT/APPELLANT:
Gerrell Washington

Hon. Charles A. Riddle, III
District Attorney
Twelfth Judicial District Court
Emily Edwards Bertholl
Assistant District Attorney
Post Office Box 503
Marksville, Louisiana 71351
(318) 240-7123
COUNSEL FOR APPELLEE:
State of Louisiana

SAVOIE, Judge.

On June 14, 2017, Defendant, Gerrell Washington, was charged by bill of

information with second degree battery, a violation of La.R.S. 14:34.1. By written

motion filed on January 11, 2018, Defendant waived his right to a jury trial. 1 On

July 19, 2018, Defendant was tried by bench trial on both the present charge,

second degree battery, and a charge filed in a separate docket number, cruelty to

persons with infirmities.2 The trial court found Defendant guilty of both charges.

The trial court ordered a Pre-Sentence Investigation (PSI) report and set

sentencing.

On September 17, 2018, the trial court sentenced Defendant on the second

degree battery conviction to eight years in the Department of Corrections, to run

concurrently with the sentence imposed for cruelty to persons with infirmities. On

the cruelty to persons with infirmities conviction, the trial court imposed a sentence

of ten years in the Department of Corrections, with all ten years to be served

without benefit of parole, probation, or suspension of sentence. Defense counsel

asserted an objection and subsequently filed a written Motion for Reconsideration,

alleging the sentences imposed were excessive. The trial court set the Motion for

Reconsideration for hearing on October 16, 2018. After hearing argument, the trial

court denied the Motion for Reconsideration.

1
We note that the written Motion to Waive Jury filed by Defendant’s counsel and signed
by Defendant refers to Defendant’s charge as “aggravated battery,” instead of “second degree
battery,” the charge at issue in the present case. However, it is clear that Defendant intended to
waive his right to a jury in the present case since the motion contains the docket number in the
present case, and the trial court discussed the waiver with Defendant in open court.
2
In a separate docket number, Defendant was charged with cruelty to persons with
infirmities arising out of the same incident. Although the record does not contain a motion to
consolidate, Defendant was tried in the same bench trial on both charges. Defendant’s appeals of
both convictions are presently before the court in separate docket numbers specifically, cruelty to
persons with infirmities under appellate docket number 19-38 and second degree battery under
appellate docket number 19-39.

Defendant’s Motion and Order for Appeal was granted on September 24,

2018. For the following reasons that will be discussed, we affirm with

instructions.

FACTS

On May 1, 2017, Defendant, a forty-three-year-old inmate, was working at

the Bunkie Senior Center as part of a work release program. The victim, Ruddio

Rico, age sixty-eight at the time of the incident, worked with his wife as a

volunteer at the center. At trial, the victim explained that earlier that day his wife

told him Defendant “cussed” at her and threatened her when she told him not to

pressure wash near the cracks of the windows. According to the manager of the

Bunkie Senior Center, she saw the victim walk up to Defendant and tell Defendant

to never call his wife names again. The victim testified that he also told Defendant

that if he ever had a conflict with his wife again, he would send Defendant back to

jail. When the victim turned around and walked back to his truck, Defendant

followed and asked what the victim was going to do about it. The victim turned

around to face Defendant, and Defendant hit the victim in the face. The victim fell

backward, and Defendant began “stumping” the victim’s hands and kicking the

victim in the back. Defendant stopped beating the victim when the manager yelled

at Defendant to go inside. The manager estimated the attack lasted about five

minutes.

According to the manager, the victim was bleeding from his face, nose, eyes,

and hand, leaving a pool of blood where he lay. The manager did not see any

weapons on the victim and did not hear the victim make any threats to Defendant.

When asked if the victim yelled during the attack, the manager replied, “No, I

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mean it just happened so fast, he just turned around and Gerrell hit him with his

fist.”

The victim described the beating as follows:

A. He hit me right here in the eye.

Q. And you’ve indicated just for the record, your right eye?

A. Right eye, it’s a prosthetic eye right now. And then hit me on
the nose and then I have a cut on here right here. And then I fell to
the ground unconscious he put his hand . . . or his foot over my left
hand . . . . And he was smashing down on my hand with foot [sic] and
he was kicking me in the back several times and he kicked me in the
head several times.

The victim also testified that he was 99% unconscious after he was hit. The victim

described the pain he felt as being worse than his wound in Vietnam. The victim

was transported by ambulance to Bunkie General Hospital, where he was then

transported by helicopter to Shreveport. When asked to describe the victim when

she saw him at the hospital, the victim’s wife stated, “He was real bad off, he was

bleeding from the eye and his hand and then he was . . . his eye was all bruised and

it was horrible.” The victim stayed at LSU Medical Center in Shreveport for about

seven days.

As a result of Defendant’s attack, the victim lost his right eye and some

teeth. The victim continues to suffer from blurred vision in his left eye, memory

loss, and headaches. As a result of injuries to his left hand, the victim underwent

two surgeries and still suffers from pain in his hand. The doctor in Shreveport

initially tried to save the victim’s right eye but a few days later decided it was best

to remove it. The victim did not have facial reconstruction surgery since it would

have interfered with other problems. After counsel noted the victim was currently

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walking with a cane, counsel asked if the victim walked with a cane on the day of

the incident. The victim responded:

A. No.

Q. Is your reason for walking with a cane a direct result of the
beating?

A. No [sic] a direct result with the beating because I had
tremendous back surgery which you cannot return for sure sure [sic] if
that indicated some of the cause.

In his defense, Defendant presented the testimony of one officer regarding a

voluntary statement he received from an eye-witness. The witness stated that he

saw “a white male elderly man push Gerrell, Gerrell then punched him in the face,

the police were then called.” Additionally, the victim’s wife testified that when

she told her husband (the victim) about her run-in with Defendant, her husband

said that it did not sound like Defendant. Defendant testified that on the day in

question, he was having an issue with the victim’s wife trying to supervise him.

When Defendant discussed the issue with his real supervisor, the victim’s wife got

upset and left. Shortly thereafter, Defendant testified, the victim drove up,

slammed his car door, walked up to Defendant, and pushed Defendant in the chest.

The victim threatened to “plant” Defendant “in the ground” if he ever called his

wife a “b-i-t-c-h” again. Defendant testified that the victim followed him and tried

to grab his shirt. Defendant further testified that he automatically “went on

defense” and hit the victim. Defendant denied jumping or “stumping” the victim.

Defendant testified that he was approved for the work release program

because of his “outstanding disciplinary jacket.” According to Defendant, he had

“no violence in [his] jacket” in almost twenty years of incarceration. On cross-

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examination, Defendant testified that he participated in the sport of boxing while in

prison.

After hearing the evidence presented, the trial court found Defendant guilty

of both offenses, ruling as follows:

BY THE COURT:

I thank you for your presentations of evidence here today. And
really in two separate charges and I will address them separately.

Second Degree Battery is defined by Louisiana Revised Statute
14:34.1, second degree battery is a battery when the offender
intentionally inflicts serious bodily injury. The evidence presented
here today it is abundantly clear that the State met it’s [sic] burden of
proof the defendant is guilty as charged of second degree battery. The
victim Mr. Ruddi Rico sustained very severe injuries to his left eye
and lost the left eye, has a prosthetic eye today, severe damage to his
right vision. He has damage to his face, damage to his nose and lots
of bleeding, lots of pain, loss of teeth and has memory problems all as
a result of the and as a consequence of the beating that was inflicted
upon him by Gerrell Washington on May 1st, 2017.

This court has not considered if a defense to the charge that
anybody exercised any authority over anybody, the series of events
are most regrettable that occurred that day. Regrettable as they may
be the consequence and the results that occurred are clear violations of
the criminal statute for which there has been no defense shown in this
courtroom here today.

Accordingly I find the defendant guilty as charged of Second
Degree Battery based upon the events and testimony of the victim,
Ms. Sherry Guillory and Officer Lee who all testified about the events
that occurred that day.

As far as the next charge Cruelty to Persons with Infirmities,
that statute and I’m just going to read the words that apply to today’s
case and it says ‘[c]ruelty to persons with infirmities under 93.3 of the
criminal code is the intentional mistreatment by any person whereby
unjustifiable pain is caused to a person who is aged.

Aged is defined in Section C as a person or individual 60 years
of age or older. It is without doubt that the victim of this crime was
68 years old on May 1st, 2017.

The State has proven each and every element of this offense
beyond a reasonable doubt as to each element charged in this crime, in

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both crimes, accordingly I find the defendant guilty as charged to both
crimes by evidence beyond a reasonable doubt.

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, there is one

error patent involving the sentence imposed and one error patent as to the minutes

of sentencing. The error patent involving the minutes of sentencing is assigned as

error and will be addressed in Assignment of Error Number Two.

At sentencing, the trial court stated the following regarding diminution of

sentence:

The sentences imposed herein are not enhanced sentences as defined
in our law. As required by Article 890.1 of the Code of Criminal
Procedure, I hereby inform you that the crime of second degree
battery to which you have been convicted is a crime of violence as
defined by our law and the sentence is not subject to diminution for
good behavior. Additionally, the crime of cruelty to persons with
infirmities is not listed as a crime of violence in our law and the
sentence on this charge is subject to diminution for good behavior.

The trial court’s statement appears to be a denial of diminution of sentence for the

conviction of second degree battery. “[A] trial court lacks the authority to grant or

deny good time. Except where otherwise provided by law, the provisions of LSA-

R.S. 15:571.3(C) are directed to the Department of Corrections exclusively, and

‘the sentencing judge has no . . . role in the matter of good time credit.’” State v.

Braziel, 42,668, p. 12 (La.App. 2 Cir. 10/24/07), 968 So.2d 853, 861 (citing State

ex rel. Simmons v. Stalder, 93-1852 (La.1/26/96), 666 So.2d 661). Accordingly,

Defendant’s sentence for second degree battery shall be amended to delete the trial

court’s statement regarding diminution eligibility, and the trial court is instructed

to make an entry in the minutes reflecting this amendment. See State v. Drummer,

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17-790, p. 7 (La.App. 3 Cir. 6/6/18), 245 So.3d 93, 98, writ denied, 18-1139 (La.

2/11/19), 263 So.3d 413.

ASSIGNMENT OF ERROR NUMBER ONE

Defendant asserts that the maximum eight-year sentence is excessive for the

second degree battery offense because Defendant was afraid of the victim and felt

threatened by the victim’s verbal confrontation. The penalty provision for second

degree battery provides, in pertinent part: “Whoever commits the crime of second

degree battery shall be fined not more than two thousand dollars or imprisoned,

with or without hard labor, for not more than eight years, or both.” La.R.S.

14:34.1(C). Although the trial court did not impose a fine, it imposed the

maximum term of imprisonment.

At the same sentencing proceeding, the trial court sentenced Defendant for

cruelty to persons with infirmities to ten years in the Department of Corrections,

with all ten years to be served without benefit of probation, parole, or suspension

of sentence. As with the second degree battery sentence, the trial court did not

impose a fine. However, the trial court imposed the maximum term of

imprisonment for cruelty to a person with an infirmity, as well as the maximum

amount of time to be served without benefits. As previously stated, the trial court

ordered the sentences to run concurrently.

The analysis for an excessive-sentence claim is well-settled:

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.”

7

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 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];
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 (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 (La. 5/31/96), 674
So.2d 957, 958[, cert. denied, 519 U.S. 1043, 117 S.Ct.
615 (1996)].

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. “[M]aximum

sentences ‘are reserved for . . . the most serious violations of the charged offense

and for the worst kind of offender.’” State v. Cozzetto, 07-2031, p. 2 (La. 2/15/08),

8

974 So.2d 665, 666 (quoting State v. Quebedeaux, 424 So.2d 1009, 1014

(La.1982)).

Sentencing Hearing

The victim’s wife gave the following statement at sentencing:

What made that day any different than any other day because he
took orders from (INAUDIBLE) along with all the others in the
center, he mentioned he never had a problem. I prayed to God to give
me strength to forgive him but I can’t. My husband is a hundred per
cent [sic] disabled vet and was trying to help the center get a new face
lift. He destroyed my husband’s life and our entire family. My
husband loves to hunt and fish he took his sight, the use of his left
hand, his memory loss, hearing and he broke a lot of his teeth. He has
to have someone with just about all the things because it’s hard for
him to get around. He has to have someone with him all the time. I
now pray that this court has . . . take his life and sentence him to life
without the possibility of parole and credit him for time served. If he
doesn’t get life please give him the maximum sentence without
possibility of parole. This person is a repeat offender and if released
he will end up killing someone due to his violence.

The trial court stated the following when imposing the sentence in the

present case:

The Court considers the following sentencing guidelines under Article
894.1 of the Code of Criminal Procedure pertinent to these
proceedings; to wit:

1. there is an undue risk that during the period of a
suspended sentence or probation that the defendant may
commit another crime;

2. the defendant is in need of correctional treatment or a
custodial environment that can be provided most
effectively by his commitment to an institution; and,

3. a lesser sentence will deprecate the seriousness of the
defendant’s crime.

Additionally, the Court considers the following grounds
provided in Code of Criminal Procedure Article No.: 894.1, relevant
to the sentencing of this defendant, to-wit:

1. the offender’s conduct during the commission of the
offense manifested deliberate cruelty to the victim;

9

2. the offender knew or should have known that the victim
of the offense was particularly vulnerable or incapable of
resistance due to advanced age, disability or ill health;

3. the offense resulted in a significant permanent injury to
the victim; and,

4. the offender used actual violence in the commission of
the offense.

A pre-sentence investigation report was prepared by Probation
and Parole Officer, Kristin Brouillette, and same has been filed of
record in these proceedings. Gerrell Washington is classified as a
fourth felony offender with a previous conviction for aggravated
battery on 5/1/1995 in Terrebonne Parish, Louisiana (original charge
was second degree battery). The defendant’s record further bears a
conviction for armed robbery on 4/1/1999 which also occurred in
Terrebonne Parish, Louisiana. Gerrell Washington has a pre-trial date
scheduled for 10/30/2018 and a trial date scheduled for 11/13/2018 for
the pending charge of battery of a correctional facility employee in
Allen Parish, Louisiana (date of alleged offense 6/06/2018). The
defendant’s criminal history reflects a propensity for violent crime
and a felony record with offenses that have not been considered for
multiple offender adjudication (see pre-sentence investigation report).

The Court has taken into consideration the severity of the
beating inflicted upon the victim, Ruddie Rico, and the permanent
physical injury that has resulted to him. The Court has further
considered the great pain and suffering that Mr. Rico has endured by
virtue of the defendant’s criminal conduct, the significant cost of
medical expenses attendant thereto, the need for continuing and future
medical treatment for Mr. Rico and the permanent loss of eyesight
suffered by him. The Court recognizes that under the factual situation
presented at bar that the defendant may have felt personal anger from
the circumstances arising in his work release environment. However,
those personal feelings do not justify by any means whatsoever the
cruel and severe beating inflicted upon the physical-ill [sic], sixty-
eight-year-old victim. As required by the cruelty to the infirmed
statute (La.R.S. 14:93.3), the evidence presented at trial supports a
finding beyond reasonable doubt that the victim, Ruddie Rico, was a
person with infirmities and of advanced age, who was subject [sic] to
intentional mistreatment by Gerrell Washington that resulted in
unjustifiable pain and suffering to Mr. Rico.

. . . Without any question and beyond any reasonable doubt, the
trial evidence supports a finding that the acts of cruelty inflicted upon
the victim, Ruddie Rico, were both intentionally and maliciously
committed by Gerrell Washington. Accordingly, the defendant is

10

ordered to serve ten (10) years in the custody of the Department of
Corrections with the State of Louisiana with all ten (10) years of the
sentence imposed being without benefit of probation, parole or
suspension of sentence; the defendant is further awarded credit for
time served since arrest for this offense.

Second degree battery is defined as follows, to-wit:

“La.R.S. 14:34.1: Second degree battery

A. Second degree battery is a battery when the offender
intentionally inflicts serious bodily injury; however, this
provision shall not apply to a medical provider who has
obtained the consent of the patient.”

Serious bodily injury is defined as a bodily injury which involves
unconsciousness, extreme physical pain or protracted and obvious
disfigurement, or protracted loss or impairment of the function of a
bodily member, organ, or mental faculty, or a substantial risk of death.
The evidence presented at trial supports a verdict of guilty to the
charge of second degree battery as the battery committed by the
defendant, Gerrell Washington, upon the victim was intentional and
the victim suffered serious bodily injury. Serious bodily injury in this
case involved extreme physical pain, protracted and obvious
disfigurement and impairment/permanent loss of eyesight for Mr.
Ruddie Rico with a need for a prosthetic eye.

. . . Accordingly, and because of the intentional infliction of
such extremely serious bodily injury upon the victim in this case, the
Court imposes a sentence of eight (8) years in the custody of the
Department of Corrections for the State of Louisiana, with credit for
time served since arrest for this offense, said sentence to run
concurrent with the sentence imposed this date in Criminal Docket
No.: 200,824 on the charge of cruelty to the infirmed.

At the hearing on the motion to reconsider sentence, the trial court denied

the motion, reasoning as follows:

BY THE COURT:

All right. And I thank you both. I do appreciate the
opportunity to revisit and reconsider the situation. If memory serves
me correctly and I think it does I think this particular case involved
some very, very serious injuries, in fact permanent injuries which the
victim lost eye sight and has underwent surgeries in fact multiple
surgeries and large hospital bills and his life is forever . . . it will never
be the same; 68 years or whatever age he was. I mean his life is

11

impacted so negatively and the injury to him was so great his life will
never be the same.

I just under the circumstances I thought the court was very
lenient, very gracious and very kind when I did not impose
consecutive sentences for what happened. And although I had the
discretion under the law and could have those sentences run
consecutively, chose not to run them based on the circumstances, it all
alleged[ly arose] out of the same occurrence and the same situation.

I have given consideration to that fact in the initial sentencing
and I did not overlook the fact that it involved a single event and a
single hitting as has been argued here today. I find that the motion is
without merit and there are no legal grounds for the court to grant the
reconsideration, in fact I do think full benefit was granted and my
latitude begs the positions that the event was a singular event and a
single hitting. When I imposed sentence and made sentence run
concurrent in this case instead of consecutive, even in light of the
serious nature of the injuries and the permanent injuries that were
inflicted as a result of the beating that was inflicted in this case.

The Motion is denied.

Defendant’s Argument in Brief

Defendant argues the trial court’s imposition of the maximum sentence was

excessive in this case. Defendant claims he was afraid of the victim and hit the

victim only once after the victim pushed him and threatened to “plant him in the

ground.” Defendant further argues the trial court failed to give sufficient weight to

the victim’s threat “to plant Defendant in the ground,” especially since the victim

was a hunter. Additionally, Defendant claims he had a non-violent prison record

for almost twenty years prior to the offense at issue. Finally, Defendant asserts no

dangerous weapon was used; the injuries, although serious, occurred in a single

event; the abuse was not on-going, Defendant is remorseful; and the action is not

likely to reoccur.

Defendant cites several cases wherein lesser sentences were imposed for

similar or worse conduct. In State v. McBride, 00-422 (La.App. 3 Cir. 11/15/00),

12

773 So.2d 849, writ denied, 01-294 (La. 2/8/02), 807 So.2d 858, the defendant was

sentenced to four years and ten months imprisonment and to pay a $1,000 fine.

The trial court suspended all but six months of the prison term and placed McBride

on supervised probation. This court upheld the sentence, noting the victim

sustained a significant injury (a cut throat which damaged his jugular vein and

thyroid blood vessels), McBride committed other crimes against the victim for

which he had been found guilty, McBride used a dangerous weapon, and McBride

had a previous conviction for arson in 1974. McBride, 773 So.2d at 852, 864-65.

In State v. Francisco, 10-881 (La.App. 3 Cir. 2/2/11), 55 So.3d 995, the

defendant was sentenced to five years at hard labor for second degree battery

committed against his girlfriend. Five years was the maximum sentence a

defendant could receive for second degree battery at that time. 3 Francisco beat the

victim on the side of her head and face, dragged the victim by her hair, and

slammed the victim into the door frame, knocking her unconscious. Id. Francisco

continued kicking and punching the victim. Id. The victim suffered bruising and

swelling on the left side of her face, bruising on her left arm and leg, and a broken

rib. Id. In upholding the sentence, this court noted Francisco’s extensive criminal

history of six felonies and Francisco’s numerous arrests for domestic abuse battery,

trespassing, aggravated battery, stalking, and violations of protective orders. Id.

This court discussed sentences imposed in other second degree battery cases:

In support of his excessive sentence claim, Defendant refers to
State v. Tisby, 33,591 (La.App. 2 Cir. 6/21/00), 764 So.2d 209, writ
denied, 00–2236 (La.6/1/01), 793 So.2d 181, wherein the defendant
was convicted of second degree battery and sentenced to two and one-
half years at hard labor. The defendant and his girlfriend were guests
at a barbeque when the defendant forcibly removed his girlfriend from

3
The maximum sentence for second degree battery increased from five years to eight
years in 2014. 2014 La. Acts. No. 722 § 1.

13

the gathering and took her home. Afterwards, the victim went to the
defendant’s house to check on the defendant’s girlfriend. When the
victim tried to enter the house, the defendant swung a sling blade at
him, cutting him across the face. At sentencing, the trial court noted
the defendant’s criminal history, which included a conviction for
simple robbery, reduced by plea agreement from a first degree
robbery charge, and convictions for driving while intoxicated. Also,
the forty-year-old defendant was the father of three children and a
high school graduate who had served three years in the military. The
sentence was affirmed on appeal.

However, this court has affirmed the maximum five-year
sentence for second degree battery in similar cases. Most recently, in
State v. Thomas, 08–1280 (La.App. 3 Cir. 4/1/09), 7 So.3d 802, the
defendant was involved in a physical altercation with the victim and
stabbed him in the neck and twice in the back with a knife. On appeal,
the court found that the sentence was not excessive, considering the
defendant’s criminal history as a second felony offender. He also had
four misdemeanor convictions and approximately twenty-eight
separate encounters with law enforcement agencies, fifteen of which
were classified as crimes against a person. The court also found that
the evidence supported the greater charged offense of aggravated
battery and that a subsequent jailhouse fight wherein the defendant
beat the victim demonstrated a patent lack of remorse.

In State v. Hopkins, 96–1063 (La.App. 3 Cir. 3/5/97), 692 So.2d
538, the defendant received the maximum sentence and was fined
$2,000 after his conviction of second-degree battery. The defendant
was involved in an argument with the victim and beat her on her bare
buttocks with a thick branch, leaving a four-inch bruise. In affirming
the sentence on appeal, this court found that the evidence supported
the greater charged offense of aggravated battery. No other
aggravating or mitigating factors were addressed on appeal.

Considering the brutal beating of the victim in the instant case
and Defendant’s significant criminal history, we find that the trial
court did not abuse its discretion when it imposed the maximum
sentence. We likewise find that Defendant is clearly one of the worst
offenders, for whom a maximum sentence is intended. Also, the
sentence is commensurate with sentences affirmed by this court in
comparable cases. Accordingly, Defendant’s sentence is affirmed.

Id. at 1006-07.

State’s Argument in Brief

The State asserts that the sentence imposed is not excessive:

14

The State asserts that this was a serious crime which resulted in
permanent disfigurement to Mr. Rico. Not only did Gerrell
Washington cruelly maim Ruddie Rico, he justified his actions behind
the ridiculous notion that a 68-year-old man, nowhere near Mr.
Washington’s physical condition, would cause him, Mr. Washington,
sustained fear of life. Not only did Washington deliver such a severe
punch to Mr. Rico that it caused him to lose his eyeball and several
teeth, he also continued to kick and stomp on Mr. Rico until he caused
other permanent damage. Washington did not stop even at the point
where he rendered Mr. Rico unconscious. Before the sentence the
defendant showed no remorse for the permanent disfigurement he
caused to a veteran, he only disrespected the court even further by
yelling obscenities as he was removed from the courtroom. 4 The State
asserts that the proper analysis under La.Code of Criminal Procedure
Article 894.1 was utilized by the Trial Court. These factors were all
considered in the sentence imposed.

Analysis

The maximum sentence for second degree battery was increased from five

years to eight years in 2014. See 2014 La. Acts. No. 722 § 1. Considering

Defendant’s criminal history and considering the severity and permanent nature of

the injuries inflicted, we find the present case comparable to Francisco and the

cases cited therein where maximum sentences were imposed, albeit five years.

In State v. Jackson, 51,575 (La.App. 2 Cir. 9/27/17), 244 So.3d 764, a four-

and-one-half year sentence was imposed for a second degree battery committed

when the defendant struck the female victim in the face, causing an orbital blowout

fracture and a broken nose. Id. As a result of the injuries, the victim’s left eye

ruptured and eventually had to be surgically removed and replaced with a

prosthetic eye. Id. In reviewing the excessiveness of the sentence, the court noted

the defendant’s criminal history, which included a racketeering conviction, a

possession of cocaine conviction, and a possession of drug paraphernalia

4
The record does not reflect the State’s assertion that Defendant yelled obscenities at the
court.

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conviction. The court concluded, “In light of the permanent and devastating harm

suffered by the victim, we find that the sentence imposed by the trial court does not

shock the sense of justice, nor is it grossly disproportionate to the severity of the

offense.” Id. at 771. Jackson committed the second degree battery two months

before the maximum penalty was increased from five years to eight years. Thus,

Jackson received a sentence near the maximum.

Although the trial court imposed the maximum term of imprisonment in the

present case, it is clear the trial court did not impose it lightly. Furthermore, as

noted by the trial court, Defendant received concurrent sentences when consecutive

sentences could have been imposed. This court has stated the following regarding

a sentencing court’s ability to impose consecutive sentences even when the

offenses arose out of the same transaction:

Considering the serious nature and violence used in the
commission of the offenses, the trial court in its discretion could have
reasonably imposed consecutive sentences for one or more of these
offenses even though they constituted parts of a common scheme or
plan. “Although Louisiana law favors concurrent sentences for crimes
committed as part of a single transaction, La.C.Cr.P. art. 883; State v.
Underwood, 353 So.2d 1013, 1019 (La.1977), a trial judge retains
discretion to impose consecutive penalties on the basis of other
factors, including the offender’s past criminality, violence in the
charged crimes, or the risk he or she poses to the general safety of the
community. State v. Williams, 445 So.2d 1171, 1182 (La.1984); State
v. Jacobs, 371 So.2d 727, 732–33 (La.1979) (on reh’g).” State v.
Thomas, 98–1144, p. 1 (La.10/9/98), 719 So.2d 49, 49.

State v. Bartie, 12-673, p. 25 (La.App. 3 Cir. 12/5/12), 104 So.3d 735, 750, writ

denied, 13-39 (La. 8/30/13), 120 So.3d 256. As discussed below, the imposition of

consecutive sentences was within the trial court’s discretion in the present case.

As stated by the trial court, the offense committed in the present case

involved significant, permanent injuries to the victim. While Defendant argues

that he hit the victim only once, the police investigation shows that the victim

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suffered a violent and sustained beating. The exhibits introduced at trial, including

original photos of the injuries sustained by the victim, are not part of the appeal

record. However, copies of those photos are attached to the probable cause

affidavit. The photos show significant injuries sustained by the victim to his eye

and hand. The record of the 911 emergency call from the incident, referencing

injuries to the victim’s eye and finger, is also attached to the probable cause

affidavit. In the PSI, the victim stated Defendant caused him to lose his eye and

caused his hand to be paralyzed. The victim also stated that his hand is wired

together, he has had back surgery, he has had memory and hearing loss, and he is

responsible for reimbursing Medicare for his medical bills, which are estimated to

be around two million dollars.

Additionally, according to the PSI, Defendant is classified as a fourth-felony

offender, with a lengthy criminal history:

• 4/19/1993 – Pled guilty to damage to property over $500.

• 7/14/1994 – Pled guilty to shoplifting.

• 1/27/1994 – Arrested and later pled guilty to possession of stolen property
over $1000.

• 1/27/1994 – Arrested and later pled guilty to reckless operation of a vehicle.

• 2/3/1994 – Arrested and later pled guilty to simple criminal damage to
property.

• 5/1/1995 – Pled guilty to aggravated battery.

• 5/1/1995 – Pled guilty to possession with the intent to distribute cocaine.

• 9/26/1995 – Arrested and later pled guilty to simple criminal damage to
property.

• 6/12/1997 – Arrested and later pled guilty to enter/remain in places/on land
after being forbidden.

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• 6/15/1997 – Arrested and later pled guilty to misrepresentation during
booking.

• 4/1/1999 – Pled guilty to armed robbery.

• 4/1/1999 – Pled guilty to manufacture/distribution of CDS II

• 7/19/2018 – Convicted of second degree battery (instant offense).

• 7/19/2018 – Convicted of cruelty to persons with infirmities (instant

offense).

• 3/7/2018 – Pled guilty to public intimidation.

• 6/6/2018 – Arrested for battery of a correctional facility employee.

Of particular note is Defendant’s history of violent offenses, including a previous

conviction for aggravated battery in 1995 and a conviction for armed robbery in

1999. In June 2018, Defendant committed a battery on a correctional facility

employee, which was still pending at the time of sentencing. Thus, Defendant’s

propensity for violence continued even after the current offense.

When the offense at issue occurred, Defendant was on a work release

program, a time during which he should have been on his best behavior. Even

considering Defendant’s claim that he was provoked and in fear of a sixty-eight-

year-old man, the extreme beating that Defendant inflicted upon the victim while

on a work release assignment shows Defendant is a danger to society. Considering

this fact along with Defendant’s past criminal history, the trial court could have

ordered the second degree battery sentence to run consecutively to the sentence

imposed for cruelty to a person with an infirmity. Nonetheless, the trial court

ordered Defendant’s sentence for second degree battery to run concurrently with

the sentence for cruelty to a person with an infirmity. Consequently, even though

Defendant’s sentences are the maximum for each crime, Defendant will actually be

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serving only one maximum sentence when he could be serving two. Additionally,

the trial court did not impose any fine even though it was permitted to do so by the

penalty provision. See La.R.S. 14:34.1.

Considering the extreme injuries suffered by the victim in the present case,

Defendant’s criminal history, Defendant’s continued propensity for violence, and

the trial court’s order that the present sentence be served concurrently with the

offense of cruelty to a person with an infirmity, we find that the sentence imposed

for second degree battery is not excessive. Additionally, the supreme court has

repeatedly stated “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; State v. Cook, 95-2784 (La. 5/31/96), 674

So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615 (1996); and State v.

Humphrey, 445 So.2d 1155 (La.1984)).

For the foregoing reasons, we find that this assignment lacks merit.

ASSIGNMENT OF ERROR NUMBER TWO

Defendant contends and the State agrees that the minutes of sentencing

incorrectly reflect that the trial court ordered the sentence imposed for second

degree battery to be served without benefit of probation, parole, or suspension of

sentence. The transcript of sentencing shows the trial court ordered the denial of

such benefits for the conviction of cruelty to a person with an infirmity but did not

deny such benefits for second degree battery. If there is a conflict between the

minutes and the transcript, 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),

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797 So.2d 62. Accordingly, we find that the minutes of sentencing should be

amended to accurately reflect the sentence imposed by the trial court.

DECREE

Defendant’s sentence is affirmed. However, Defendant’s sentence for

second degree battery is amended to delete the trial court’s statement regarding the

denial of diminution eligibility, and the trial court is instructed to make an entry in

the minutes reflecting this amendment. The trial court is also instructed to amend

the minutes of sentencing to accurately reflect the sentence imposed by the trial

court by deleting the statement that the trial court imposed the sentence for second

degree battery without benefit of probation, parole, or suspension of sentence.

AFFIRMED WITH INSTRUCTIONS.

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