State of Louisiana v. Cody James Toucheck -Aka- Cody Toucheck

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

KA 19-557

STATE OF LOUISIANA
VERSUS
CODY JAMES TOUCHECK

-AKA- CODY TOUCHECK

af 2 9 2 oe ok ok ok oe ok

APPEAL FROM THE
SIXTEENTH JUDICIAL DISTRICT COURT
PARISH OF IBERIA, NO. 17-294
HONORABLE SUZANNE M. DEMAHY, DISTRICT JUDGE

ae oes oe oc oc 2 ok ok a

VAN H. KYZAR
JUDGE

ais ae oe fe oe oe ee fe ae

Court composed of Billy Howard Ezell, D. Kent Savoie, and Van H. Kyzar, Judges.

AFFIRMED.

Richard Allen Spears

101 Taylor Street

New Iberia, LA 70560

(337) 367-1960

COUNSEL FOR DEFENDANT/APPELLANT:
Cody James Toucheck

M. Bofill Duhe

District Attorney

300 Iberia Street, #200

New Iberia, LA 70560

(337) 369-4420

COUNSEL FOR PLAINTIFF/APPELLEE:
State of Louisiana

KYZAR, Judge.

Defendant, Cody James Toucheck, appeals his sentences of thirty years at hard
labor for attempted second degree murder and five years at hard labor for aggravated
battery. For the reasons set forth herein, we affirm each of the convictions and
sentences.

FACTS AND PROCEDURAL HISTORY

On March 23, 2017, Defendant was charged by bill of information with the
attempted second degree murder of Nicole Bourque, in violation of La.R.S. 14:27 and
La.R.S. 14:30.1 and with the aggravated battery of Terry A. Ware, in violation of
La.R.S. 14:34. On June 8, 2018, Defendant pled no contest to each of the charged
offenses.

At the time of Defendant’s no contest plea, the State gave the following factual
basis for the charged offenses:

Under Docket Number 17-294, on or about the date alleged in the Bill of

Information, if called to trial the State intends to prove that officers with

the Iberia Parish Sheriff's Office were dispatched to Cedar Hill Circle,

Apartment Number 8, in reference to a stabbing. Upon arrival they located

victim Nicole Bourque who had been stabbed multiple times found laying

in the middle of the roadway by her residence. She was stabbed by the

defendant, Cody Toucheck, who was her boyfriend at the time. Officers

also spoke with witness and victim Terry Ware who was a friend of Nicole

Bourque and was standing beside her. He was also cut in the face during

the course of the altercation by Mr. Cody Toucheck. Ms. Bourque had to

undergo emergency surgery after suffering stab wounds to the neck,

forearm, kidney and lung area.

The trial court ordered a presentence investigation (PSI) following Defendant’s
entry of the plea. On November 19, 2018, Defendant was sentenced to thirty-years at

hard labor for the attempted second degree murder and five years at hard labor for the

aggravated battery. Those sentences were ordered to run concurrently to each other but

consecutively to a six-year sentence Defendant received for second degree battery in
another unrelated case charged under a separate docket number.'

On December 18, 2018, Defendant filed a “Motion to Reconsider Sentence, or
Alternatively, Notice of Appeal.” Although Defendant sought reconsideration of his
sentences, he gave no specific basis for the motion, merely stating, “[Defendant] seeks
reconsideration of the sentences handed down.” Defendant’s request was denied, and
a return date set for his appeal.

Defendant now appeals his sentences for both attempted second degree murder
and aggravated battery, contending that the sentences are excessive because the trial
court “did not sufficiently take into account mitigating factors nor did it appropriately
tailor the sentence to the defendant for the crime committed.”

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors
patent on the face of the record. After reviewing the record, we find that there are no
errors patent related to Defendant’s conviction or his sentences.

DISCUSSION

In his sole assignment of error, Defendant contends his sentences are excessive.
Specifically, he contends the trial court failed to properly consider that he was a first
felony offender at the time of his plea. Defendant also contends that the fact he was on
medication following a motorcycle accident should have been considered as a
mitigating factor.

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.

' Defendant pled no contest and was sentenced on two separate trial court docket numbers, 17-
294 (the charges before this court) and 17-295 (second degree battery against a third victim in May of
2016).

No

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.

As previously noted, Defendant’s motion to reconsider fails to state any grounds
upon which his sentence should be reconsidered, including his current argument that
the trial court failed to properly consider the mitigating factors listed in La.Code
Crim.P. art. 894.1. Accordingly, this argument is precluded from review under La.Code
Crim.P. art. 881.1. Furthermore, although the trial court did not explicitly mention
Defendant’s status as a first felony offender, it did give a detailed explanation of the
factors considered in handing down Defendant’s sentences. We find no merit to
Defendant’s claim regarding the trial court’s compliance with La.Code Crim.P. art.
894.1.

Louisiana courts have laid out the following guidelines with regard to excessive
sentence review:

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 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.

a
3

Cook, 95-2784 (La.5/3 1/96); 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 (first alteration in original).

Furthermore, in State v. Baker, 06-1218 (La.App. 3 Cir. 4/18/07), 956 So.2d 83,
writ denied, 07-320 (La. 11/9/07), 967 So.2d 496, writ denied, 07-1116 (La. 12/7/07),
969 So.2d 626, this court adopted the fifth circuit’s three factor test from State v. Lisotta,
98-648 (La.App. 5 Cir. 12/16/98), 726 So.2d 57, writ denied, 99-433 (La. 6/25/99), 745
So.2d 1183, which established that an appellate court should consider the nature of the
crime, the nature and background of the offender, and the sentences imposed for similar
crimes. Because Defendant’s motion to reconsider lacked specificity and merely sought
reconsideration of his sentences, we review Defendant’s claim as a bare excessiveness
claim under Baker.

With regard to the nature of the offenses, Defendant is contesting his thirty-year
sentence for attempted second degree murder and his five-year sentence for aggravated

battery. Both crimes are, by definition, crimes of violence under La.R.S. 14:2(B)(3)

and (5). Attempted second degree murder carries a sentencing range of “not less than

ten nor more than fifty years without benefit of parole, probation, or suspension of
sentence.” Accordingly, Defendant’s sentence is only slightly above the middle of the
sentencing range. Despite Defendant’s mother’s claims that Defendant had suffered a
motorcycle accident shortly before the incident in question and her claim that he was
hurting so badly he could not get out of his truck on the night of the incident, Defendant
beat and stabbed his girlfriend multiple times before cutting another individual who
attempted to help Defendant’s girlfriend. The crime is clearly a serious violent offense,
and the victim submitted an impact statement asserting that she was disabled and unable
to work as a result of Defendant’s attack, noting she suffered broken ribs and lung
lacerations, that she and her children have been homeless due to her inability to work,
and that she wanted a maximum sentence imposed for Defendant’s crimes.’

Defendant’s conviction for aggravated battery carries a sentencing range of zero
to ten years at hard labor, as well as a maximum fine of $5000. Accordingly,
Defendant’s five-year sentence is the middle of the sentencing range. Again, the crime
is a crime of violence and was inflicted on the victim, a bystander who was trying to
help the woman Defendant was attempting to murder and who had been stabbed
repeatedly.

Defendant’s precluded claims regarding aggravating and mitigating factors
would be appropriately considered as part of the “nature of the offender” Baker factor.
Defendant was twenty-seven at the time of his sentencing, with three daughters ranging
from two-and-a-half-years old to seven-years old. As noted by Defendant, he is
technically a first felony offender. However, Defendant simultaneously pled guilty to
three violent crimes, one of which occurred six months before the crimes at issue in the
instant appeal, and all of which were against separate victims. Two of those victims

were Defendant’s girlfriends at the time of the attacks, and both required surgery to fix

2 Ms. Bourque technically stated she “would like to see [Defendant] on death row!”
5

the damage Defendant inflicted upon them. In the case involving Defendant’s previous
girlfriend, six months before the instant offenses, Defendant stomped the defenseless
victim and ruptured her spleen requiring an emergency surgery. In the present case, in
addition to stabbing Nicole Bourque several times, Defendant also kicked and stomped
her during the attack, after she was on the ground, according to statements contained in
the PSI. The following summary was also included in Defendant’s PSI:

This is the case of a twenty-seven (27) years old white male who is
classified as a First Felony offender. He has been convicted of Attempted
Second Degree Murder, Aggravated Battery, and Second Degree Battery.

He has a long history of criminal activity. 8 of those arrests have been

violent in nature. The only victim still alive that could be reached for

comment, Nicole Bourque, stated that she wants to see the offender

sentenced to the maximum penalty required by law, as the offender is a

risk to himself and to society.

This court has long upheld mid-range sentences for first offenders convicted of
attempted murder. Similar sentences were upheld in State v. Williams, 16-579 (La.App.
3 Cir. 4/5/17), 216 So.3d 107; State v. Sampy, 07-1059 (La.App. 3 Cir. 3/5/08), 978
So.2d 553, writ denied, 08-845 (La. 11/10/08), 996 So.2d 1066; State v. Wommack, 00-
137 (La.App. 3 Cir. 6/7/00), 770 So.2d 365, writ denied, 00-2051 (La. 9/21/01), 797
So.2d 62; and State v. Clark, 06-508 (La.App. 3 Cir. 9/27/06), 940 So.2d 799, writ
denied, 06-2857 (La. 9/21/07), 964 So.2d 324. The defendant in Williams was a first
offender who received a twenty-five-year sentence; Sampy involved a thirty-year
sentence for attempted second degree murder for a first offender who was
simultaneously convicted of attempted manslaughter. The defendant in Wommack, also
a first offender, received a twenty-one-year sentence. The defendant in Clark was the
only one who was not a first offender, and the court there imposed a twenty-five-year
sentence. These cases support the imposition of the thirty-year sentence for attempted
second degree murder here.

With regard to Defendant’s five-year sentence for aggravated battery, Louisiana

courts have previously upheld mid-range and maximum sentences for first offenders.

In State v. Sullivan, 02-35 (La.App. 5 Cir. 4/30/02), 817 So.2d 335, the fifth circuit
upheld a maximum sentence for a first offender who had a history of mental illness after
he attacked his neighbor with a knife, causing a serious cut just above the neighbor’s
eye. In State v. Rainey, 98-436 (La.App. 5 Cir. 11/25/98), 722 So.2d 1097, writ denied,
98-3219 (La. 5/7/99), 741 So.2d 28, the fifth circuit upheld an eight-year sentence for
a first offender who contended he was acting in defense of another but had continued
stomping the unconscious victim after the woman being defended had left the room.
Finally, we take note that the sentence for the aggravated battery conviction is being
served concurrently with his thirty-year sentence for attempted second degree murder,
potentially making only a negligible difference, if any, to the amount of time Defendant
ultimately spends in prison for the two violent crimes for which he was convicted in
this case.

We conclude that trial court did not abuse its great discretion in fashioning
Defendant’s sentences for attempted second degree murder and aggravated battery.
Accordingly, Defendant’s convictions and sentences are affirmed.

DECREE

Defendant’s convictions and sentences of thirty years at hard labor for attempted
second degree murder and five years at hard labor for aggravated battery, to run
concurrently to each other but consecutively to the six-year sentence Defendant

received for second degree battery under trial court docket number 17-295 are affirmed.

AFFIRMED.