State of Louisiana v. David Paul Monceaux

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

22-28

STATE OF LOUISIANA

VERSUS

DAVID PAUL MONCEAUX

**********

APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 2581-20
HONORABLE G. MICHAEL CANADAY, DISTRICT JUDGE

**********

JOHN E. CONERY
JUDGE

**********

Court composed of Shannon J. Gremillion, John E. Conery, and Gary J. Ortego,
Judges.

CONVICTIONS AND SENTENCES AFFIRMED.
REMANDED WITH INSTRUCTIONS.
MOTION TO WITHDRAW GRANTED.

Stephen C. Dwight
District Attorney
Karen C. McLellan
Assistant District Attorney
Fourteenth Judicial District
Post Office Box 3206
Lake Charles, Louisiana 70601
(337) 437-3400
COUNSEL FOR APPELLEE:
State of Louisiana

Chad Ikerd
Louisiana Appellate Project
Post Office Box 2125
Lafayette, Louisiana 70502
(225) 806-2930
COUNSEL FOR DEFENDANT/APPELLANT:
David Paul Monceaux

CONERY, Judge.

A unanimous jury convicted Defendant David Paul Monceaux of two counts

of first degree rape and three counts of sexual battery of a victim under the age of

fifteen. As discussed below, the trial court imposed the mandatory life sentences

associated with the first degree rape convictions and fifty year sentences for each of

the three counts of sexual battery of a victim under the age of fifteen. Defendant’s

appellate counsel has filed a Motion to Withdraw, citing no non-frivolous issues for

consideration on appeal. Following review, we affirm Defendant’s convictions and

sentences and remand with instructions to the trial court to correct the minutes of

sentencing and the resulting Louisiana Uniform Commitment Order. We further

instruct the trial court to inform Defendant of his registration and notification

requirements for sex offenders. We grant the Motion to Withdraw.

FACTS AND PROCEDURAL HISTORY

On February 5, 2020, Defendant’s oldest daughter, S.M. 1 disclosed to her

elementary school counselor that Defendant had molested her when she was ages

four to six. S.M., who was in fifth grade at the time of the reporting, further informed

the school counselor that Defendant had also molested her younger sister, E.M. The

school counselor contacted the Calcasieu Parish’s Sheriff’s Office (CPSO).

After speaking with the school counselor, Sergeant Jacob Doré of the CPSO

travelled to the elementary school where S.M. repeated the allegation of molestation

by Defendant and informed Sergeant Doré that “her dad touched her where his

private touched her private[.]” Later that day, S.M. and E.M. were interviewed at

the Child Advocacy Center (CAC). Each victim gave detailed statements regarding

1
Pursuant to La.R.S. 46:1844(W), the victims’ initials are used to protect their identities.

Defendant’s inappropriate touching. During her CAC interview, S.M. also disclosed

that Defendant inappropriately touched her four-year-old cousin, N.T.

Later that same evening, Detective Doré questioned Defendant at the CPSO

regarding the allegations made by S.M. and E.M. Defendant waived his right against

self-incrimination, completing a “Miranda Rights Form.” Although Defendant

initially denied the allegations, he ultimately confessed to engaging in sexual

misconduct with all three victims.

A grand jury issued a bill of indictment on February 13, 2020, charging

Defendant with: Count 1, first degree rape upon S.M. (dob 2/25/09), in violation of

La.R.S. 14:42(A)(4); Count 2, first degree rape upon E.M. (dob 3/26/10), La.R.S.

14:42(A)(4); Count 3, sexual battery of victim under thirteen of victim N.T. (dob

3/17/15), in violation of La.R.S. 14:43.1(A)(2) and (C)(2); Count 4, sexual battery

of victim of under thirteen of S.M., in violation of La.R.S. 14:43.1(A)(2) and (C)(2);

and Count 5, sexual battery of victim under thirteen upon E.M., in violation of

La.R.S. 14:43.1(A)(2) and (C)(2).

Defendant entered pleas of not guilty to the charges on March 9, 2020 and

requested a jury trial. Following an April 2021 trial, a unanimous jury found

Defendant guilty as charged on all counts.

Afterwards, Defendant’s trial counsel filed a motion for new trial, and

Defendant, in proper person, filed a motion to recuse the trial judge. At the recusal

hearing, Defendant declined to support his motion to recuse with oral argument but

instead rested on his brief, which alleged anti-defense bias. The trial court denied

Defendant’s request for referral to another judge for consideration and further denied

the recusal demand. The trial court subsequently turned to the motion for new trial,

which cited the trial court’s denial of his objection to jury instructions on the basis

2

that the objection was not timely lodged. Although Defense counsel did not file a

separate motion to recuse, Defense counsel explained that the trial court had a

practice of citing objections as premature only to later find them untimely if made at

a later point. The trial court denied the motion for new trial in open court.

After Defendant waived sentencing delays, the trial court imposed sentence

as follows:

It is the Court’s position as to Count One, First-Degree Rape,
victim S.M., that the defendant will be ordered to serve life in prison,
without benefit of probation, parole or suspension of sentence.

The Court will move down to Count Three[2] [sic] with regard to
sexual battery of S.M., and will order that the defendant serve 50 years
with the Department of Corrections. That will be served without benefit
of probation, parole or suspension of sentence, the entirety of the
sentence. I do find it to be connected, so they will be concurrent with
one another.

With regard to Count Two, First-Degree Rape of E.M., the
defendant will be ordered to serve hard labor for life, without benefit of
probation, parole or suspension of sentence, as provided by statute.

As to Count Four [sic], Sexual Battery of E.M., the defendant
will be ordered to serve 50 years with the Department of Corrections.
It will be served without benefit of probation, parole or suspension of
sentence, the entire 50 years. That will run consecutive with S.M.
Separate victims, separate lives destroyed.

Count Five [sic], Sexual Battery of a Child Under 13, initials
N.T., the defendant will be ordered to serve 50 years with the
Department of Corrections. That will run without benefit of probation,
parole or suspension of sentence for the entirety of the 50 years. That
2
The transcript reveals that the trial court referred to transposed count numbers in imposing
the sentences as to each particular victim for the sexual battery offenses. Despite the trial court’s
reference at sentencing, the indictment, the trial court’s instructions, the jury verdict sheet, and the
jury’s verdicts clearly demonstrate that Count 3 pertained to the offense of sexual battery as it
related to N.T. (not S.M.); Count 4 pertained to the offense of sexual battery as it related to S.M.
(not E.M.), and Count 5 pertained to the offense of sexual battery as it related to E.M (not N.T.).

We below conclude that reference to the incorrect count number was inadvertent and
harmless, given the clarity of the trial court’s imposition of sentence as it relates to each offense
and victim. We do, however, find it necessary to remand for correction of the minutes and the
Louisiana Uniform Sentencing Commitment Order to accurately reflect the counts to be served
concurrently and consecutively as expressed by the trial court at sentencing.

3

sentence will be consecutive to both the two charges as to S.M. and the
two charges as to E.M.

Defense counsel objected to the sentences, later filing an untimely Motion for

Reconsideration of Sentences. The trial court denied the motion.

The trial court, however, granted Defendant’s simultaneously filed Motion for

Out-of-Time Appeal. After the record was lodged in this court, Defendant’s

appellate counsel filed a brief seeking to withdraw pursuant to Anders v. California,

386 U.S. 738, 87 S.Ct. 1396 (1967) and State v. Jyles, 96-2669 (La. 12/12/97), 704

So.2d 241. Although appellate counsel asserts that no non-frivolous issues remain

on appeal, counsel points out that “[t]he trial court did not notify David Monceaux

of the sex offender registration requirements.” The State filed a brief concurring in

appellate counsel’s evaluation of the record. This court advised Defendant, via

certified mail, that counsel filed an Anders brief and provided a briefing deadline in

the event Defendant chose to support his request for appeal. Defendant did not file

a separate brief.

LAW AND DISCUSSION

Errors Patent

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for

errors patent on the face of the record. Following that review, we find one possible

error patent regarding the trial court’s statement that Defendant’s sentences are not

subject to diminution of sentence, and one error involving the sentence imposed for

Count One. Defendant’s appellate counsel points to this latter error as well.

Diminution of Sentence

We first address whether the trial court “denied” diminution of sentence. Such

a denial by the trial court would constitute error as the supreme court has held that

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the provisions of La.R.S. 15:537(A), which prohibits diminution of sentence for

certain sex offenders, and the provisions of La.R.S. 15:571.3, which sets forth the

guidelines for diminution of sentence for all prisoners, do not form part of the

sentence. State v. Prejean, 08-1192 (La. 2/6/09), 999 So.2d 1135 (per curiam). The

guidelines are instead directives to the Department of Corrections in computing an

inmate’s sentence. Id. See also State v. Fallon, 15-1116, p. 4 (La.App. 3 Cir.

4/6/16), 189 So.3d 605. Both the supreme court and this court have repeatedly stated

that trial judges lack authority to deny diminution of sentence. See State v. Narcisse,

97-3161 (La. 6/26/98), 714 So.2d 698; Fallon, 189 So.3d 605. In cases in which the

trial court has been found to deny diminution sentence, this court has corrected the

sentencing error. See, e.g., State v. Davis, 19-562 (La.App. 3 Cir 2/5/20), 291 So.3d

246, writ granted on other grounds, 20-392 (La. 6/3/20), 296 So.3d 1041; Fallon,

189 So.3d 605.

In this case, the trial court stated the following at sentencing:

Under 15:571.3, is the defendant subject to diminution for good
behavior[?]

It’s the Court’s position he is not.

There is no enhancement here under 15:529.1 or 893.3.

In State v. Samuel, 19-408, p. 9 (La.App. 3 Cir. 2/5/20), 291 So.3d 256, 262,

writ denied, 20-398 (La. 7/24/20), 299 So.3d 77, this court explained that the trial

court in the matter before it explained as follows with regard to diminution of

sentence:

[T]he law tells me I have to sentence you under [La.R.S.]
14:42[ (B) 2] and through C(b) (sic) to life imprisonment
at hard labor without benefit of parole, probation or
suspension of sentence; this is a crime of violence and a

5

sex offense and is not subject to diminution for good
behavior; it is not an enhanced sentence[.]

In considering whether that advisement constituted an error patent, the Samuel panel

explained:

The trial court’s statement that the sentence is not subject to
diminution could be interpreted as a denial of diminution of sentence
by the trial court. In State v. Burton, 18-935, p. 2 (La.App. 3 Cir.
6/5/19), 274 So.3d 122, 126-27, this court held:

Although La.Code Crim.P. art. 894.1(D) previously
required the trial court to advise a defendant of whether
his sentence was subject to diminution for good behavior,
the article was amended in 2010 to delete that requirement.
2010 La. Acts. No. 350, § 1; See also State v. D.G.H., 07-
524 (La.App. 3 Cir. 10/31/07), 969 So.2d 1254. Thus, at
the time the trial court imposed the present sentences,
La.Code Crim.P. art. 894.1(D) no longer required such an
advisement. Prior to the amendment this court
distinguished between an advisement and an actual denial
of diminution of sentence, finding no corrective action was
needed if the trial court merely advised a defendant that
his sentence was not subject to diminution. State v. James,
09-606, p. 3 (La.App. 3 Cir. 12/9/09), 26 So.3d 915, 917.

We interpret the trial court’s statement simply as an advisement
that Defendant’s sentence was not subject to diminution and not as a
denial by the trial court of diminution of sentence. We further note that
the trial court is no longer required to “advise” a defendant as to
whether his sentence is subject to diminution. La.Code Crim.P. art.
894.1(D).

Id. at 262-63.

We conclude the trial court’s reference to diminution of sentence in the

present matter was likewise merely an advisement and, therefore, not an error

requiring correction. Namely, the trial court’s passing reference, including its

offering of its “position,” differentiates this matter from one in which a trial court’s

reference to diminution of sentence was found to be a denial of that benefit. See,

e.g., Davis, 291 So.3d at 251 (wherein the trial court definitively stated: “You are

not entitled to diminution for good behavior.”). Moreover, in Davis, the minutes of

6

sentencing indicated that Defendant was not entitled to diminution for good

behavior. Id. In contrast, the minutes of the sentencing in the present case are silent

as to diminution.

Finding the trial court’s statement in the present case to be merely an

advisement regarding diminution of sentence, we find that no correction or

amendment of sentence is required.

Failure to Impose Sentence at Hard Labor

The trial court did err, however, in failing to order that the sentence for Count

One, first degree rape upon victim S.M., be served at hard labor even though a

sentence for first degree rape must be imposed “at hard labor.” La.R.S. 14:42. The

sentence imposed on Count One is therefore illegally lenient. State v. Perkins, 13-

245 (La.App. 3 Cir. 11/6/13), 124 So.3d 605. We find that no further action is

required, however. Rather, in State v. Brown, 19-771 (La. 10/14/20), 302 So.3d

1109 (per curiam), the supreme court found the court of appeal erred in vacating an

illegally lenient sentence absent any complaint by the State. The State has lodged

no complaint in the present case. We accordingly do not disturb the trial court’s

imposition of this sentence.

ANDERS ANALYSIS:

As stated previously, Defendant’s appellate counsel has filed a brief pursuant

to Anders, 386 U.S. 738, alleging the record contains no non-frivolous issues for

appeal and requesting this court grant his accompanying Motion to Withdraw.

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

circuit explained the Anders analysis, stating:

When appointed counsel has filed a brief indicating that no
non-frivolous issues and no ruling arguably supporting an appeal were
found after a conscientious review of the record, Anders requires that

7

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

In conducting such a review, it is not necessary for defense counsel to “catalog

tediously every meritless objection made at trial or by way of pre-trial motions with

a labored explanation of why the objections all lack merit.” Jyles, 704 So.2d at 241

(citing Jones v. Barnes, 463 U.S. 745, 103 S.Ct. 3308 (1983)). Counsel’s Anders

brief must, however, “‘assure the court that the indigent defendant’s constitutional

rights have not been violated.’” Jyles, 704 So.2d at 241 (quoting McCoy v. Court of

Appeals of Wisc., Dist. 1, 486 U.S. 429, 108 S.Ct. 1895 (1988)). Counsel must fully

discuss and analyze the trial record and consider “whether any ruling made by the

trial court, subject to the contemporaneous objection rule, had a significant, adverse

impact on shaping the evidence presented to the jury for its consideration.” Jyles,

704 So.2d at 241 (citing United States v. Pippen, 115 F.3d 422 (7th Cir. 1997)).

Thus, counsel’s Anders brief must review the procedural history and the evidence

presented at trial and provide “a detailed and reviewable assessment for both the

defendant and the appellate court of whether the appeal is worth pursuing in the first

place.” State v. Mouton, 95-981, p. 2 (La. 4/28/95), 653 So.2d 1176, 1177 (per

curiam).

8

Pursuant to Anders, 386 U.S. 738, and Jyles, 704 So.2d 241, Defendant’s

appellate counsel filed a brief outlining his assessment of the appellate record. We

consider each of the issues discussed therein.

Sufficiency of the Evidence

Appellate counsel first asserts the evidence introduced at trial was sufficient

to find Defendant guilty of all counts. Specifically, appellate counsel notes that

multiple witnesses’ testimonies and Defendant’s own statements to police provided

evidence sufficient to establish each element of the charges against Defendant.

The analysis for sufficiency of the evidence is well settled, with the supreme

court explaining:

In evaluating the sufficiency of the evidence to support a
conviction, a reviewing court must determine whether, viewing the
evidence in the light most favorable to the prosecution, any rational trier
of fact could have found proof beyond a reasonable doubt of each of
the essential elements of the crime charged. Jackson v. Virginia, 443
U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Weary, 2003-
3067 p. 17 (La.4/24/06), 931 So.2d 297, 310, pet. for cert. filed
September 20, 2006 (No. 06-6799); State v. Captville, 448 So.2d 676,
678 (La.1984). The fact-finder weighs the respective credibilities of the
witnesses, and this court will generally not second-guess those
determinations. State v. Dabney, 2002-934 p. 1 (La.4/9/03), 842 So.2d
326, 327; State ex rel. Graffagnino v. King, 436 So.2d 559, 563
(La.1983) (“It is the role of the fact-finder to weigh the respective
credibilities of the witnesses, and this court will not second-guess the
credibility determinations of the trier of fact beyond our sufficiency
evaluations under the Jackson standard of review.”).

State v. Ordodi, 06-207, p. 10 (La. 11/29/06), 946 So.2d 654, 660. See also State v.

Bryant, 21-240 (La.App. 3 Cir. 12/22/21), 333 So.3d 495.

Defendant was convicted of two counts of first degree rape and three counts

of sexual battery. First degree rape is defined by La.R.S. 14:42, which states, in

pertinent part:

A. First degree rape is a rape committed upon a person sixty-five
years of age or older or where the anal, oral, or vaginal sexual

9

intercourse is deemed to be without lawful consent of the victim
because it is committed under any one or more of the following
circumstances:

....

(4) When the victim is under the age of thirteen years. Lack of
knowledge of the victim’s age shall not be a defense.

Further, sexual battery is defined in La.R.S. 14:43.1, which states, in pertinent

part:

A. Sexual battery is the intentional touching of the anus or
genitals of the victim by the offender using any instrumentality or any
part of the body of the offender, directly or through clothing, or the
touching of the anus or genitals of the offender by the victim using any
instrumentality or any part of the victim, directly or through clothing,
when any of the following occur:

....

(2) The victim has not yet attained fifteen years of age[3] and is at
least three years younger than the offender.

In addressing whether the State satisfied its burden of proving the elements

beyond a reasonable doubt, we review both the testimony and documentary evidence

admitted at trial. This court has explained:

[T]he testimony of a single witness is sufficient to support a conviction
“[i]n the absence of internal contradiction or irreconcilable conflicts
with physical evidence.” State v. Dixon, 04-1019, p. 12 (La.App. 5 Cir.
3/15/05), 900 So.2d 929, 936. The trier of fact may accept or reject the
testimony of any witness, and the determination of the credibility of
that witness, in whole or in part, is left to its sound discretion and “will
not be re-weighed on appeal.” Id. at 936.

State v. F.B.A., 07-1526, p. 2 (La.App. 3 Cir. 5/28/08), 983 So.2d 1006, 1009, writ

denied, 08-1464 (La. 3/27/09), 5 So.3d 138.

3
For purposes of a sufficiency analysis, the victim must be under the age of fifteen, but the
statute contains an enhanced penalty if the victim is under the age of thirteen. See La.R.S. 14:43.1.
The bill of indictment indicates the victims were under the age of thirteen in the headings of the
sexual battery offenses. From the date ranges of the offenses and the victims’ dates of birth, it is
clear the victims were under the age of thirteen.

10

The record indicates that although Defendant did not take the stand to testify

on his behalf, the jury heard the recording of his interview with the CPSO. In the

interview, Defendant confessed to engaging in sexual misconduct with the victims

and gave detailed accounts of the incidents.

With regard to the offenses involving S.M., Defendant told police that he

began inappropriately touching her when she was about seven years old and began

vaginally penetrating her when she was nine years old, doing so roughly seven times.

With regard to the offenses involving E.M., Defendant admitted to rubbing her on

top of her clothing and rubbing his crotch on her when she was six years old. He

also admitted that he “put [his penis] just in the lips [of her vagina]” one time but

stopped when she said that it hurt.4 Finally, with regard to N.T., Defendant admitted

that he pulled his pants down, laid on top of her, and attempted to blow on her neck

while his penis was erect.

The State also relied upon direct evidence in the form of the testimony from

each of the three victims. The record shows that S.M.’s date of birth is February 25,

2009, and that she testified that Defendant began molesting her when she was four

years old. E.M. could not remember her birthday but testified that she was eleven

years old at the time of trial. N.T. testified that her “Uncle Dave” pulled his pants

down, “squishing [her] like a pancake.” Although N.T. did not state her age while

testifying, the jury was able to assess her young age on the witness stand, easily

4
In closing statements, defense counsel argued Defendant did not penetrate E.M., because
she testified at trial that Defendant only touched the outside of her vagina with his penis. Louisiana
Revised Statutes 14:41(B), however, provides that “any sexual penetration, when the rape involves
vaginal or anal intercourse, however slight, is sufficient to complete the crime.” Thus, the jury
was free to determine that Defendant’s description of the insertion of the tip of his penis “until it
hurt” is sufficient evidence of penetration. See State v. Self, 98-39 (La.App. 3 Cir. 8/19/98), 719
So.2d 100, writ denied, 98-2454 (La. 1/8/99), 734 So.2d 1229.

11

finding that she was well under the age of fifteen at the time of the offense.

Accordingly, the State proved the ages of the victims were less than fifteen and

thirteen, which are required elements of sexual battery and first degree rape,

respectively. See La.R.S. 14:43.1(A)(2); La.R.S. 14:42(A)(4). Additionally, in

conjunction with the victims’ testimony, the State introduced the victims’ CAC

interviews from February 5, 2020, and February 6, 2020, each victim stated their age

at that time. At the time of the interview, S.M. explained that she was ten years old,

E.M. stated that she was nine years old, and N.T. stated that she was four years old.

Thus, the State presented testimony from the three victims, the forensic

interviews in which the victims discussed the sexual misconduct in detail, and

Defendant’s confession to police in which he admitted to the allegations.

Accordingly, Defense counsel accurately reports that the State presented sufficient

evidence to prove Defendant’s guilt on all charges.

Motion for New Trial

Appellate counsel next addresses Defendant’s motion for new trial, filed

pursuant to La.Code Crim.P. art. 851(B)(2). The motion was based on the trial

court’s ruling on an objection to the jury charges. Appellate counsel explained that

after closing arguments, defense counsel attempted to object to the jury charges, but

the trial court interrupted and found the objection to be premature. The trial court

then read the charges and excused the jury to begin deliberations. Afterwards,

defense counsel objected to the inclusion of the victims’ dates of birth in the jury

charges as “[n]one of those three complaining witnesses gave testimony of a birth

year.”5 The trial court ruled that the objection was not an objection to the jury

5
As discussed, S.M. testified that her date of birth was February 25, 2009. The remaining
testimony reflected the ages of the other two victims rather than their specific birth date.

12

charges but was instead a challenge to the sufficiency of the evidence. The trial

court noted defense counsel’s objection for the record. Defendant filed his motion

for new trial based on the trial court’s ruling.

Louisiana Code of Criminal Procedure Article 851(B)(2) mandates a new trial

be granted whenever “[t]he court’s ruling on a written motion, or an objection made

during the proceedings, shows prejudicial error.” Appellate counsel asserts that

Defendant was not prejudiced by the trial court’s ruling, because the ages of the

victims were established by the testimony presented and by Defendant’s confession

to police which was admitted into evidence. Namely, however, first degree rape and

sexual battery do not require the victims’ birthdates to be proven; rather, the

respective statutes require that State only to prove that the victims were under the

age of fifteen for sexual battery and under the age of thirteen for first degree rape.

Accordingly, we find that the trial court properly denied the motion for new

trial.

Sentencing

Appellate counsel next addresses whether Defendant’s sentences were

excessive. Counsel points out that the life sentences for both counts of first degree

rape are mandatory and that the fifty year sentences for each count of sexual battery

are in the low range of La.R.S. 14:43.1(C)(2). Counsel further notes that the trial

court did not order every count to be served consecutively, but rather, the trial court

ordered the counts for each victim to be served consecutively to the counts for the

other victims. Therefore, counsel concludes that he cannot argue the trial court

abused its wide discretion in sentencing Defendant after the trial court considered

the mitigating and aggravating factors set forth in La.Code Crim.P. art. 894.1.

13

As pertinent to the sentences imposed, first degree rape is defined as a crime

of violence under La.R.S. 14:2. Conviction of the offense requires a mandatory

sentence of life imprisonment without the benefit of parole, probation, or suspension

of sentence. La.R.S. 14:42(D)(2). Sexual battery of a victim under the age of

thirteen, also a crime of violence, carries a sentencing range of twenty-five to ninety-

nine years imprisonment at hard labor with at least twenty-five years to be served

without the benefit of parole, probation, or suspension of sentence. La.R.S.

14:43.1(C)(2). Defendant therefore received the mandatory sentence for each of his

first degree rape convictions and less than half the maximum sentence for each of

his sexual battery convictions.

As the relevant question is whether the trial court abused its broad sentencing

discretion, not whether another sentence might have been more appropriate,

Defendant’s appellate counsel accurately asserts that Defendant’s sentences are legal

and not constitutionally excessive. See State v. Soraparu, 97-1027 (La. 10/13/97),

703 So.2d 608.

Independent Review of the Record

Pursuant to Anders, 386 U.S. 738, and Jyles, 704 So.2d 241, we also have

performed a thorough, independent review of the record, including pleadings,

minute entries, the charging instrument, and the transcripts. Defendant was properly

charged in the bill of indictment; he was present and represented by counsel at all

crucial stages of the proceedings; the verdicts were correct; and he received a legal

sentence for each conviction.

As entailed in an Anders review, we have reviewed the transcripts to

determine whether any other ruling provides an arguable basis for appeal.

Addressed briefly above, the sentencing transcript reveals that the trial court referred

14

to the incorrect count numbers in imposing the sentences for the sexual battery

offenses as it related to each victim. We conclude that the reference to the wrong

count number was unintentional and harmless, however. The trial court identified

the correct offense pertaining to each victim and imposed a corresponding sentence

for each of the offenses for which Defendant was charged and convicted. The trial

court named the victims, rather than the count numbers, when ordering the sentences

to be served concurrently or consecutively. The trial court’s verbal miscue,

however, found its way to the minutes of the sentencing as well as the Louisiana

Uniform Sentencing Commitment Order. Both are in need of correction to

accurately reflect the trial court’s imposition of concurrent sentences as it relates to

victims S.M. and E.M., as well as its order that the sentences related to S.M. and

E.M. be served consecutively to one another and that the sentence related to N.T. be

served consecutively to those related to both S.M. and E.M. We below instruct the

trial court to do so on remand.

Our review of the transcripts also reflects that defense counsel made several

objections, most of which were discussed by appellate counsel in the brief

accompanying the Motion to Withdraw. None of the trial court’s corresponding

rulings support a non-frivolous issue to raise on appeal. Finding no further issues

that would support an assignment of error on appeal, save the one raised by appellate

counsel, we below grant appellant counsel’s Motion to Withdraw.

ASSIGNMENT OF ERROR NO. 1:

In seeking an error patent review for Defendant, appellate counsel notes that

the trial court failed to advise Defendant of the sex offender registration

requirements. See State v. Scott, 42,997 (La.App. 2 Cir. 2/13/08), 975 So.2d 782.

The State concedes there is no indication that Defendant was provided with the

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registration requirements and does not object to the matter being remanded to the

trial court for the sole purpose of providing Defendant with adequate written notice

of the sex offender registration requirements.

Louisiana Revised Statutes 15:543(A) requires the trial court to “provide

written notification to any person convicted of a sex offense and a criminal offense

against a victim who is a minor of the registration requirements and the notification

requirements[.]” Notification must be given on the statutorily required form and

“shall be included on any guilty plea forms and judgment and sentence forms

provided to the defendant, and an entry shall be made in the court minutes stating

that the written notification was provided to such offenders.” La.R.S. 15:543(A).

First degree rape and sexual battery are both sex offenses as defined by La.R.S.

15:541(24)(a).

We accordingly remand this matter and instruct the trial court to notify

Defendant of his registration and notification requirements by sending written notice

to him within thirty days of this opinion and to file written proof of the Defendant’s

receipt of the notice in the record. See State v. Wagnon, 18-446 (La.App. 3 Cir.

12/6/18), 261 So.3d 60.

DECREE

The convictions and sentences of Defendant, David Paul Monceaux are

affirmed. Defendant’s appellant counsel’s Motion to Withdraw is granted.

This matter is remanded with instructions to the trial court to correct the

minutes of sentencing, dated April 21, 2021, to correctly reflect its imposition of

concurrent sentences as they relate to victims S.M. (Counts 1 & 4) and E.M. (Counts

2 & 5); its order that the sentences related to E.M.(Counts 2 & 5) are to be served

consecutively to those related to S.M. (Counts 1 & 4); and its order that the sentence

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related to victim N.T. (Count 3) is to run consecutively to Counts 1, 2, 4 and 5. The

trial court is further ordered to amend the Louisiana Uniform Sentencing

Commitment Order in that regard as well.

The trial court is further instructed to notify Defendant of his registration and

notification requirements for sex offenders by sending written notice to him within

thirty days of rendition of this opinion and to file written proof of Defendant’s receipt

of the notice in the record.

CONVICTIONS AND SENTENCES AFFIRMED.
REMANDED WITH INSTRUCTIONS.
MOTION TO WITHDRAW GRANTED.

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