State of Louisiana v. Victor D. Guillory A/K/A Victory Guillory

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

22-549

STATE OF LOUISIANA

VERSUS

VICTOR D. GUILLORY
A/K/A VICTORY GUILLORY

**********

APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. CR-182838
HONORABLE MARILYN C. CASTLE, DISTRICT JUDGE

**********

WILBUR L. STILES
JUDGE

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Court composed of Van H. Kyzar, Guy E. Bradberry, and Wilbur L. Stiles, Judges.

CONDITIONALLY AFFIRMED AND REMANDED.

Chad M. Ikerd
Ikerd Law Firm, LLC
Post Office Box 2125
Lafayette, Louisiana 70502
(337) 366-8994
COUNSEL FOR DEFENDANT/APPELLANT:
Victor Guillory

Donald Dale Landry
District Attorney
Kenneth P. Hebert
Assistant District Attorney
15th Judicial District
Post Office Box 3306
Lafayette, Louisiana 70501
(337) 232-5170
COUNSEL FOR APPELLEE:
State of Louisiana

STILES, Judge.

Defendant, Victor D. Guillory, appeals his sentence of two years at hard labor

for stalking – domestic violence (protective order). For the reasons set forth herein,

we conditionally affirm the conviction and sentence, and remand to the trial court to

conduct an evidentiary hearing and make a competency ruling.

FACTS AND PROCEDURAL HISTORY

Defendant was involved in a helicopter crash in late August 2021, during

which he landed his disabled helicopter in the Mississippi River. He was found

floating on a propane tank approximately 12 hours later in the river. Following his

helicopter crash, Defendant reached out to his ex-wife, Andree Courville, the mother

of his children, to discuss estate planning and to be sure his daughters were taken

care of. After not hearing back from his ex-wife, Defendant drove to her house and

left a note asking her to call him. After this attempt, Defendant and his ex-wife’s

husband, Coy J. Courville, began exchanging text messages. Defendant’s messages

were threatening and harassing in nature. Both Andree Courville and Coy Courville

were granted protective orders against Defendant, ordering him to stay away from

the Courvilles. After receiving notice of the protective orders, Defendant continued

to send threatening messages and videos.

Defendant was arrested for violating the protective orders and cyberstalking.

As a condition of his bond, Defendant was required to stay away from the Courvilles

and remain at home on twenty-four hour home incarceration with ankle monitoring.

The trial court subsequently revoked Defendant’s bond for violations of the home

incarceration condition.

On November 12, 2021, the State filed a bill of information against Defendant,

Victor Guillory, charging him with cyberstalking, in violation of La.R.S. 14:40.3,

two counts of violation of a protective order, in violation of La.R.S. 14:79(B)(1),

and stalking while a protective order is in place, in violation of La.R.S. 14:40.2(B)(3).

On March 24, 2022, Defendant pled guilty to stalking while a protective order

is in place, and in exchange, the State dismissed the remaining charges. On March

31, 2022, the court sentenced Defendant to serve two years at hard labor along with

a $500.00 fine and court costs of $435.50. The court advised that any time spent on

house arrest would not count towards time served and that Defendant is prohibited

from receiving good time. The court further recommended that Defendant receive a

mental health evaluation.

Defendant filed a motion to reconsider sentence, and a hearing was held on

May 24, 2022. At this hearing, the trial court reconsidered the original sentence and

omitted the portion of the sentence which stated Defendant was not allowed to earn

good-time credit. The trial court then ordered that Defendant was eligible to earn

good-time credit. The court further noted that the sentence was not enhanced

pursuant to a habitual offender bill of information. However, the court maintained

the two-year sentence. Defense counsel orally objected to the court’s ruling.

A timely motion for appeal was filed, and Defendant is now before this court

raising one assignment of error on appeal.

ASSIGNMENT OF ERROR

Defendant claims the trial court’s maximum sentence for stalking, under the

facts of this case, is both constitutionally and statutorily excessive.

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

is one error patent.

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Louisiana Code of Criminal Procedure Article 647 requires the issue of

capacity to be determined by the court in a contradictory hearing:

The issue of the defendant’s mental capacity to proceed shall be
determined by the court in a contradictory hearing. The report of the
sanity commission is admissible in evidence at the hearing, and
members of the sanity commission may be called as witnesses by the
court, the defense, or the district attorney. Regardless of who calls them
as witnesses, the members of the commission are subject to cross-
examination by the defense, by the district attorney, and by the court.
Other evidence pertaining to the defendant’s mental capacity to proceed
may be introduced at the hearing by the defense and by the district
attorney.

In this case, the State filed a motion for the appointment of sanity commission

which was granted by the trial court on November 28, 2021. The court ordered,

among other things, that the members of the sanity commission submit their findings

regarding Defendant’s capacity to understand the proceedings against him. The

physicians appointed to the sanity commission filed their reports on February 3,

2022, and February 17, 2022, both concluding that Defendant had the mental

capacity to proceed. Information received from the trial court indicates that there

was no finding of mental capacity to proceed by the trial court.1

In State v. Thomas, 47,020 (La.App. 2 Cir. 4/11/12), 91 So.3d 1207, a sanity

commission was appointed and ordered to determine the defendant’s capacity to

proceed; however, the defendant pled guilty before the commission reported and the

trial court made a finding of competency. Relying on La.Code Crim.P. arts. 642 and

647, the second circuit vacated the defendant’s guilty plea and sentence and

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We note that at the beginning of the plea proceeding, the court asked Defendant whether
he read and understood his plea form and whether he understood that he could be sentenced
anywhere within the sentencing range. He confirmed to the court that he was entering the plea
voluntarily and that no one had forced him to sign the plea form. Following this line of questioning,
the court stated that it found Defendant competent and that he understood the charges and the
possible penalties. We find this was not a finding of mental competency to proceed as required by
La.Code Crim.P. art. 647. Rather, it was an assessment of whether Defendant was entering his
guilty plea knowingly and voluntarily.

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remanded the case for the trial court to conduct a sanity hearing to determine the

defendant’s competency to proceed. Compare State v. Gowan, 96-488 (La. 3/29/96),

670 So.2d 1222, where, because the trial court had not yet ruled on the defendant’s

motion for appointment of a sanity commission and thus had not determined that a

sanity commission should be appointed, the defendant’s failure to request a

competency hearing prior to entering his guilty plea waived his right to have the

motion ruled upon.

In State v. Nomey, 613 So.2d 157 (La.1993), the trial court appointed a sanity

commission but failed to conduct a competency hearing prior to accepting the

defendant’s guilty plea the day following examination. The reports, both concluding

the defendant was competent to proceed, were filed with the trial court

approximately two weeks after the defendant pled guilty. The supreme court vacated

the defendant’s guilty pleas and remanded the case to the trial court for further

proceedings.

Here, the sanity commission was appointed, and although a determination of

competency was not made by the trial court, the physicians’ reports, both finding

Defendant competent to proceed, had been filed prior to the guilty plea proceeding.

Thus, we find this case falls in line closely with State v. Juniors, 05-649 (La. App. 3

Cir. 12/30/05), 918 So.2d 1137, writ denied, 06-267 (La. 9/15/06), 936 So. 2d 1257,

cert. denied, 549 U.S. 1226, 127 S.Ct. 1293 (2007). As a raised issue, the defendant

in Juniors contended the trial court erred in permitting his case to be tried without

finding him competent to proceed. At the defendant’s request, the court appointed a

sanity commission to examine him. The physicians each reported via letter dated

June 21, 2000, that they felt the defendant was competent to proceed to trial.

However, no hearing was held, and the trial court did not make a finding regarding

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the defendant’s capacity to proceed before the case proceeded to trial and the

defendant was convicted. This court concluded that a nunc pro tunc hearing was

appropriate and conditionally affirmed the defendant’s conviction and sentence

pending the outcome on remand:

The federal courts of appeals, although noting that
retrospective competency hearings are not favored, have
allowed nunc pro tunc hearings on the issue of competency
if a meaningful inquiry into the defendant’s competency
can still be had. The trial court is in the best position to
determine whether it can make a retrospective
determination of defendant’s competency during his trial
and sentencing. The determination of whether a trial court
can hold a meaningful retrospective competency hearing
is necessarily decided on a case-by-case basis. The State
bears the burden to show the court that the tools of rational
decision are available.

A “meaningful” determination is possible “where
the state of the record, together with such additional
evidence as may be relevant and available, permits an
accurate assessment of the defendant’s condition at the
time of the original state proceedings.” Additionally,
“[w]hen determining whether a meaningful hearing may
be held, we look to the existence of contemporaneous
medical evidence, the recollections of non-experts who
had the opportunity to interact with the defendant during
the relevant period, statements by the defendant in the trial
transcript, and the existence of medical records. The
passage of time is not an insurmountable obstacle if
sufficient contemporaneous information is available.” The
court in Miller v. Dugger, 838 F.2d 1530 (11th Cir.1988)
noted that it had never given the district courts a list of
factors that must be met in order to determine that a nunc
pro tunc determination of competency is possible, but
stated that relevant factors include time, availability of
witnesses and the existence of evidence on the state record
about the defendant’s mental state at the time.

State v. Snyder, 98-1078, pp. 30-31 (La.4/14/99), 750 So.2d 832, 855
(citations omitted) (footnote omitted).

In the present case, Defendant was examined by the two
members of the sanity commission. Additionally, the record indicates
that Defendant may have been evaluated by other mental health experts,
given defense counsel’s statements at a hearing on July 31, 1998, that

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an “ex-parte motion for funds for psychiatric experts” had already been
granted, that a forensic social worker that had been ordered to conduct
the investigation was no longer employed by the clinic being used, and
that an order substituting a replacement would be presented to the court.
Thus, there may be information regarding Defendant’s competency that
is available to the trial court that is not contained in this appellate
record. Accordingly, the trial court may be able to make a retrospective
determination regarding Defendant’s competency at the time of trial.

For these reasons, we remand this case to the trial court for the
sole purpose of determining whether such a hearing is now possible
and, if so, to conduct such an evidentiary hearing. If the trial court
concludes that Defendant was competent, no new trial is required. If the
trial court finds a meaningful inquiry cannot be had, or if it determines
after the hearing that Defendant was not competent at the time of his
trial, Defendant is entitled to a new trial. See Snyder, 750 So.2d 832;
Mathews, 809 So.2d 1002.

This assignment of error requires further action by the trial court.

Id. at 1145 (alteration in original).

Likewise, in State v. Pullen, 19-4 (La.App. 5 Cir. 8/7/19), 279 So.3d 443, on

error patent review, the fifth circuit remanded for a nunc pro tunc hearing on the

issue of competency to proceed. A sanity commission was appointed in response to

the defendant’s motion. The doctors were to report at a competency hearing which

was set but taken up and continued five times with no ruling or judgment in the

record as to the trial court’s finding of competency.

The consequence of the failure to resolve the issue of a
defendant’s capacity is either nullification of the conviction and
sentence or a nunc pro tunc hearing to determine competency
retrospectively. State ex rel. Seals v. State, 831 So.2d at 833. Such
decision is made on a case by case basis. See State v. Willie, 235 So.3d
1339, 1349 (La. App. 5th Cir. 2017) (citing Drope v. Missouri, 420 U.S.
162, 180, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975); State v. Anderson, 996
So.2d 973, 992 (2008)). A nunc pro tunc hearing evaluates whether
there was a bona fide doubt of the offender’s competency to stand trial
when he was originally tried. Id.; see also State v. Snyder, 98-1078 (La.
4/14/99), 750 So.2d 832, 855.

In order to determine if the defendant’s due process rights are
adequately protected, a “meaningful” nunc pro tunc hearing must be
ensured. See Reynolds v. Norris, 86 F.3d 796, 802 (8th Cir. 1996). The

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trial court is vested with the discretion to make the decision of whether
a meaningful inquiry into competency may still be had. Seals v. State,
831 So.2d at 833, citing State v. Snyder, 98-1078 (La. 4/14/99), 750
So.2d 832, 855. A meaningful determination is possible “where the
state of the record, together with such additional evidence as may be
relevant and available, permits an accurate assessment of the
defendant’s condition at the time of the original state proceedings.” Id.
The State bears the burden of providing sufficient evidence for the court
to make a rational decision in a nunc pro tunc hearing. Seals, 831 So.2d
at 834.

Unless the record in this case is incomplete and the trial judge
actually conducted a hearing which addressed defendant’s competency
to proceed and rendered a judgment, this Court is left with two options:
either vacate defendant’s guilty plea and sentence or remand this matter
to the district court to address the completeness of the record, and if
complete, then to conduct a nunc pro tunc hearing if a meaningful
determination on defendant’s competency at the time he entered his
plea can be proven. See State ex rel. Seals, 831 So.2d at 834.

In State v. Nomey, the Louisiana Supreme Court nullified a
defendant’s guilty plea where the court accepted his guilty plea without
holding a hearing to address the findings of the sanity commission.
Nomey, 613 So.2d at 157, 159-160 (La. 1993). Despite the reports of
the sanity commission providing evidence to show that the defendant
would have likely been found competent, the Supreme Court held the
court of appeal erred in remanding the case for a retroactive sanity
hearing. Id. at 162. The Court in Nomey found that the defendant was
deprived of the protective procedures of the sanity commission hearing
prior to the entry of his guilty pleas, and the question of whether there
was sufficient evidence to show that the defendant was competent to
proceed at the time of his plea “misse[d] that point” that he was
deprived of his due process rights. Id. at 161. The Court opined that
under certain limited circumstances a retroactive determination of
sanity may be permissible if a meaningful inquiry into the defendant’s
competence can still be had. Nomey, 613 So.2d at 161, FN8.

In contrast, in State v. Snyder, the Louisiana Supreme Court
found that the proper remedy for failing to investigate a defendant’s
claims of incompetency would be a nunc pro tunc hearing if the trial
court determines that meaningful inquiry into a defendant’s
competency is still possible. State v. Snyder, 98-1078 (La. 4/14/99), 750
So.2d 832, 854. In Snyder, the Louisiana Supreme Court was persuaded
by the reasoning of the federal courts of appeals in allowing nunc pro
tunc hearings if the trial court determines that retrospective
determination is possible, based on factors, determined to be relevant
by the Eleventh Circuit, such as the passage of time, the availability of
witnesses, and the existence of evidence on the record about the
defendant’s mental state at the time. Id. at 855. (citing Miller v. Dugger,

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838 F.2d 1530, 1544 (11th Cir. 1988)). While there is no list of
determinative factors, the passage of time will not be decisive if there
is available “contemporaneous medical evidence, the recollections of
non-experts who had the opportunity to interact with the defendant
during the relevant period, statements by the defendant in the trial
transcript, and the existence of medical records.” Snyder, 750 So.2d at
855, citing Reynolds v. Norris, 86 F.3d 796, 803 (8th Cir. 1996). In
Snyder, the court remanded the case back to the district court to
determine whether a retroactive sanity commission was possible, and if
so, to hold an evidentiary nunc pro tunc hearing to determine the
defendant’s competency prior to his trial. Id. The Louisiana Supreme
Court encouraged the court to take additional evidence, including the
records and testimony of the examining physicians. Id.

In a case similar to the instant case, this Court vacated a
defendant’s conviction when it was unclear from the minute entry
whether the trial court had made a determination regarding the
defendant’s competency to stand trial. State v. Robinson, 09-371 (La.
App. 5 Cir. 3/23/10), 39 So.3d 692, 698. In the Robinson case, the
defense requested, and the trial court ordered, a mental examination and
a sanity commission. The minute entry and transcripts contain
discussions of the doctors finding the defendant competent, but the trial
judge stated that he was waiting on the report to make his
determination. The defense counsel later withdrew his motion for a
sanity hearing. This Court held that the facts of that case did not allow
for a retroactive competency hearing, relying on the due process
arguments of Nomey. Id. at 704. Upon the state’s writ application, the
Louisiana Supreme Court reversed this Court’s judgment and remanded
for a determination of whether a nunc pro tunc finding of competency
remained possible in light of the Snyder case. State v. Robinson, 10-924
(La. 12/17/10), 50 So.3d 156.

In a more recent case, this Court addressed the issues of what
inquiries and actions a trial court should address on remand when a
sanity hearing was not held prior to a guilty plea. State v. Willie, 17-252
(La. App. 5 Cir. 12/20/17), 235 So.3d 1339. In that case, a defendant’s
prior counsel filed a motion for mental examination. After the first
counsel withdrew from representation, the newly appointed counsel did
not request a hearing on the outstanding motion before allowing his
client to plead guilty. Id. at 1343-44. This Court opined inherent
difficulties exist in nunc pro tunc determinations, but the trial court is
in the best position to determine whether it can make a retrospective
determination. Id. at 1349-50. In that instance, on remand, the trial court
must inquire into whether a sanity commission would be able to
retroactively determine whether a defendant was actually competent to
stand trial at the time he pled guilty. Willie, 235 So.3d at 1352. If the
trial court finds that a sanity commission would not be able to
retroactively determine whether defendant was competent at the time
he pled guilty, then the trial court must vacate the original conviction

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and sentence and take further action depending upon defendant’s
current capacity to proceed. Id. If a determination is possible, however,
then the trial court must appoint a sanity commission to “retroactively
opine” on defendant’s competency to proceed on the date he was
originally convicted and sentenced. If the court finds defendant
competent at the time of his original plea, then the conviction and
sentence may be affirmed. On the other hand, if the trial court finds that
the defendant lacked the capacity to proceed at the time he originally
pled guilty and was sentenced, then the trial court must vacate the
conviction and sentence. Willie, 235 So.3d at 1352.

In the present case, while the record reflects no actual judgment
on the merits as to defendant’s competency to proceed during the six
hearings, a nunc pro tunc hearing may go beyond the record to receive
additional available and relevant evidence. Snyder, 750 So.2d at 855.
In this case, sufficient evidence may exist for the court to conduct a
meaningful retrospective competency hearing, including testimony
from defendant’s six different attorneys, who presumably interacted
with him, and two different prosecutors present at the hearings during
which these matters were originally to be taken up. The evaluations
from the two doctors originally appointed to evaluate defendant and
other medical records from the relevant time period may still be
available. As this error was not raised on appeal, neither party has had
the opportunity to argue the issue of availability of evidence or
witnesses to assist in a retrospective determination. Since it may be
possible for the trial court to retroactively address and rule upon
defendant’s capacity to proceed at the time he pled guilty and was
sentenced, we remand this matter to determine if a meaningful inquiry
could be held regarding defendant’s competency at the time he pled
guilty and was sentenced. If the trial court finds that a meaningful
retrospective competency hearing is possible, we order the hearing to
be conducted and the issue to be determined.

....

Conclusion

Accordingly, for the reasons fully discussed herein, we remand
the matter to the trial court to determine whether a meaningful
retroactive inquiry can be made regarding defendant’s competency to
proceed at the time he pled guilty and was sentenced. If the trial court
finds that a meaningful retrospective competency hearing is possible,
we order the trial court to conduct the hearing and determine the issue
of defendant’s competency at the time of his plea and sentence before
any further action on this case or appeal. Furthermore, if defendant is
found to have been competent, while his plea and conviction may be
affirmed, his illegal sentence shall be vacated and the district court must
resentence defendant to a determinate sentence pursuant to the penalty
provisions for La. R.S. 14:89 in effect at the time he committed the

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offense in 2011 and 2012. If, however, the trial court is unable to
conduct a meaningful retrospective inquiry into defendant’s
competency to proceed at the time he originally pled guilty, or the trial
court finds defendant was not competent to proceed at the time he
originally pled guilty, the trial court shall vacate defendant’s original
guilty plea and sentence, determine defendant’s current competency to
proceed, and take further action consistent with its finding.

Id. at 449-53 (footnotes omitted) (alteration in original).

A similar remedy was utilized by the first circuit in State v. Jackson, 16-1565,

p. 10 (La.App. 1 Cir. 10/12/17), 232 So.3d 628, 636, writ denied, 17-1944 (La.

5/25/18), 243 So.3d 566:

In certain instances, a nunc pro tunc hearing on the issue of
competency is appropriate “if a meaningful inquiry into the defendant’s
competency” may still be had. In such cases, the trial court is again
vested with the discretion of making this decision as it “is in the best
position” to do so. This determination must be decided on a case-by-
case basis, under the guidance of Nomey, Snyder, and their progeny.
The state bears the burden in the nunc pro tunc hearing to provide
sufficient evidence for the court to make a rational decision. Seals, 831
So.2d at 833.

Because there is no indication in the record that the trial court
held a contradictory hearing following its receipt of the physicians’
reports in the record, we conditionally affirm defendant’s convictions
on counts one, two, and three and remand to the trial court for the
purpose of determining whether a nunc pro tunc competency hearing
may be possible. If the trial court believes that it is still possible to
determine defendant’s competency at the time of the trial on the
charges, the trial court is directed to hold an evidentiary hearing and
make a competency ruling. If defendant was competent, no new trial is
required. If defendant is found to have been incompetent at the time of
trial, or if the inquiry into competency is found to be impossible, he is
entitled to a new trial. Defendant’s right to appeal an adverse ruling is
reserved. See Snyder, 750 So.2d at 855-56 & 863; State v. Mathews,
2000-2115 (La. App. 1st Cir. 9/28/01), 809 So.2d 1002, 1016, writs
denied, 2001-2873 (La. 9/13/02), 824 So.2d 1191, 2001-2907 (La.
10/14/02), 827 So.2d 412.

Based on the foregoing and considering the specific facts of this case, we find

that the appropriate remedy is to remand this case to the trial court to conduct an

evidentiary hearing within thirty days to determine whether a nunc pro tunc

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competency hearing may be possible. See State v. R.W.W., 06-1253 (La.App. 3 Cir.

3/7/07), 953 So.2d 131, writ denied, 07-820 (La. 3/27/09), 5 So.3d 130; State v.

Singleton, 05-622 (La. App. 5 Cir. 1/31/06), 922 So.2d 647. If the trial court finds

that it is possible to determine Defendant’s competency at the time of his guilty plea,

the trial court is directed to hold an evidentiary hearing and make a competency

ruling in accordance with La.Code Crim. P. art. 647. If Defendant is found to have

been competent, no new plea proceeding is required. If Defendant is found to have

been incompetent at the time he entered his plea, or if the inquiry into competency

is found to be impossible, the trial court should vacate Defendant’s guilty plea and

sentence. Defendant’s right to appeal any adverse ruling on this issue is reserved.

DISCUSSION

In Defendant’s sole assignment of error, he argues his two-year maximum

sentence is constitutionally excessive. Defendant first argues the trial court

improperly considered Defendant’s violations of several of his bond conditions

when imposing the maximum sentence. He next argues that his actions leading to

his arrest and conviction were not “the worst of the worst” when compared to other

offenders, rendering the imposition of the maximum sentence an excessive

punishment. Additionally, he argues his sentence is not proportional when compared

to more serious crimes. Third, Defendant argues that the trial court failed to properly

weigh the mitigating evidence that he was in a serious helicopter crash which caused

physical and mental problems, leading him to act irrationally. And finally, Defendant

argues that the trial court improperly considered the victim impact statement of his

daughter, which did not comply with the requirement of focusing on the impact to

the victim, but was simply personal complaints against her father, Defendant.

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Defendant notes that during sentencing, the trial court made it clear that part

of the reason for imposing the maximum sentence was because Defendant violated

his bond conditions. The trial court stated during sentencing:

And I was particularly shocked by the fact that, after we had a
hearing about his violations of house arrest – and knowing that this is
all pending – he did it again.

And, you know, even after he knew that I said, I will have you
arrested if you do it again, he didn’t care. And that is of great deal of
concern to this Court.

Because the idea of sentencing is to impose sanctions that will
keep someone from reoffending and protect the victims. And I don’t
know of any sanctions I can impose on him – other than sending him to
jail – that will keep him from doing it again. Because he does whatever
he wants to do.

Defendant willingly concedes that he violated the court’s bond conditions while he

was out of jail on home incarceration. However, he argues that there was no evidence

presented that he contacted the victims during the period he was out on bond and on

home incarceration. Defendant asserts that all allegations of stalking or intimidation

took place before he was arrested. Thus, Defendant argues the violations on bond

for leaving his house did not imply jail was required to keep him from reoffending

and protecting the victims, as suggested by the trial court. Defendant further argues

that the trial court imposed the proper sanction for his bond violations, which was

revocation of his bond. Defendant claims that he did not threaten public safety while

he was out violating his bond. He admits he was seen driving a vehicle by one of the

victims, but Defendant claims he was driving near his own home, not the victims’

home. Defendant asserts his sentence for stalking should be based on the facts that

led to him being charged and arrested, and the trial court’s over-reliance on violation

of bond to impose a more severe sentence was an abuse of discretion.

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Next, Defendant argues that he is not the worst kind of offender. He admits

the text messages and videos he sent the victims meet the standard of intentional and

repeated harassing, but he claims the messages were just words. Defendant claims

the only allegation of him being near the victims was before the restraining orders

were ever filed. After leaving the sticky note at the victims’ house, Defendant claims

his only actions were through the phone and text. Defendant asserts he never acted

on any of his threats, never returned to their home, and never sat outside their place

of business. Defendant further asserts that he never sent anyone to talk to or threaten

the victims, and there is no evidence that he continued communication after the

charges were filed. Additionally, Defendant notes he pled guilty to the crime and

was prepared to take responsibility for his actions, but the court failed to consider

this fact in the record. Defendant argues his actions in sending the text messages do

not qualify him as the “most egregious” of offenders and his case should be

remanded to the trial court for resentencing.

Defendant also asserts his sentence is not proportional when compared to

more serious crimes. Defendant notes that his ex-wife, a victim in this case, would

qualify as a “family member” as defined by La.R.S. 14:35.3(B)(4). He claims that

had he physically battered his ex-wife, he could have been charged with domestic

abuse battery, under La.R.S.14:35.3. Under that statute, he could have been

sentenced from thirty days to six months for a first offense and up to one year at hard

labor for a second offense. La.R.S. 14:35.3(C)-(D). Defendant notes that his current

sentence for sending threatening messages is twice the length he could have received

if he had used force or violence against her. Defendant argues, therefore, that his

sentence should be reconsidered because, under the facts of this case, it is clearly

excessive.

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Defendant further claims the trial court failed to comply with the sentencing

guidelines in La.Code Crim.P. art. 894.1.2 During sentencing, the trial court cited

La.Code Crim.P. art. 894.1, stating:

And let me just say something else, so that I’m complying with 894.1,
as far as other reasons for imposition of this sentence. I do want to note
that he used threats of actual violence against these victims and that
there were multiple victims in this case, as well as the other factors that
I’ve already mentioned.

Defendant does not dispute that he threatened actual violence against multiple

victims, but he claims the trial court ignored and failed to consider the numerous

mitigating factors. First, Defendant was likely suffering from post-traumatic stress

after the helicopter crash, which may have contributed to his actions. Defendant

notes Dr. Warren Lowe, Ph.D., M.P. indicated in his Sanity Evaluation report that

although Defendant “was aware of the rightness and wrongness of his actions at the

time of the alleged offenses, there is the likelihood that he was suffering from

diminished capacity due to acute stress reaction (helicopter crash and prolonged

exposure which resulted in some acute stress symptoms) and post-concussion

syndrome due to mugging.” Defendant argues this information should have been

considered rather than disregarded. Defendant submits there is a lack of knowledge

about brain injuries and the fact is he only sent the threats and text messages after

the traumatic helicopter crash.

Additionally, Defendant notes that he suffers from diabetes and pancreatitis,

both of which cause problems with regulating his blood sugar. He claims that these

2
Louisiana Code of Criminal Procedure Article 894.1 provides a list of factors the trial
court can consider when imposing a sentence. This article also allows the trial court to consider
any other relevant mitigating circumstance.

14

problems regulating his blood sugar can make him appear intoxicated and lessen his

impulse control.

Defendant further claims that while he was out on bond, he was mugged and

hit on the head, possibly resulting in a concussion and brain injury. While this

incident occurred after the allegations giving rise to the stalking charge, Defendant

argues that it is relevant to the weight the trial court gave to Defendant’s impulse

control and his repeated efforts to do “whatever what he wants to do.”

Defendant notes that while the trial court claimed he was uncontrollable and

unable to follow directions, based on the fact that he left his house several times

while on house arrest, he did successfully complete probation for a 2012 conviction

for the offense of unauthorized entry of an inhabited dwelling. Defendant argues that

this is evidence he can follow directions and limitations placed on him by a probation

officer. Defendant further argues that although he violated the bond condition to

remain at his house while on house arrest, he complied with the most important

condition of his bond – to have no contact with his victims.

Defendant asserts that the trial court also failed to consider the physical

hardship jail will have on him. He has medical conditions, such as diabetes and

necrotizing pancreatitis, that must be treated by specialized doctors or he could die.

Defendant notes that one of the conditions of his bond was that he participate

in pretrial drug testing. There are no allegations that he failed a drug test while out

on bond.

Defendant’s last argument is that the court gave improper consideration to the

victim impact statement written by his daughter, Victoria Guillory. Victoria is also

the daughter of Defendant’s ex-wife, Andree Courville, one of the victims in this

proceeding. Defendant’s attorney objected to the admissibility and relevancy of

15

Victoria’s letter in the Motion to Reconsider Sentence and at the May 24, 2022

hearing. The trial court overruled the objection and stated it could consider the letter.

Defendant acknowledges that Victoria is defined as a “victim’s family”

member and had certain rights under La.R.S. 46:1842(18). Victims’ family members

have the right to make impact statements. See La.R.S. 46:1844(K)(1)(b). Louisiana

Revised Statutes 46:1844(K)(2) lists what may be included in such a statement:

The statement of the victim or the victim’s family may:

(a) Identify the victim of the offense.

(b) Itemize any economic loss that has been or may be reasonably
suffered by the victim as a result of the offense.

(c) Identify any physical injury suffered by the victim as a result of the
offense, along with its seriousness and permanence.

(d) Describe any change in the victim’s personal welfare or familial
relationships as a result of the offense.

(e) Identify any request for medical or counseling services needed by
the victim or the victim’s family as a result of the offense.

(f) Contain any other information related to the impact of the offense
upon the victim or the victim’s family that the trial court requires.

(g) Contain any other information that the victim or victim's family
wishes to share with the court regarding the overall effect of the crime
upon the victim and the victim’s family.

Defendant argues that, based on the statute, a statement from a victim’s family

member is limited to the “impact” the crime has had on the victim or the victim’s

family. Victoria’s statement is largely about the problems she had with her father,

Defendant, in the past, and she failed to mention the direct impact the stalking had

on her mother and stepfather. Defendant argues the purpose of the statement is to

speak to the impact on the victim and not about how bad the defendant is as a person

16

in general. Thus, Defendant asserts that the admission of Victoria Guillory’s

statement for sentencing purposes was improper.

For all of the above reasons, Defendant argues that he is not the worst kind of

offender and the trial court failed to give credit to the relevant mitigating factors;

thus, his maximum sentence for stalking is excessive and this court should reverse

his sentence and impose a lesser sentence, or remand to the trial court for a new

sentencing hearing.

The State argues that Defendant’s sentence is not excessive. The State notes

Defendant sent violent and threatening messages to multiple victims in this case and

admitted to disobeying the trial court’s bond conditions. The State argues the

imposition of two years for stalking where Defendant threatened multiple victims

while also violating a protective order is not grossly disproportionate to Defendant’s

actions.

The State further argues the trial court complied with the sentencing

guidelines and could have sentenced Defendant to a “day-for-day total of 2 years

under La.R.S. 15:571.3 (which states the trial court, in its discretion, can prohibit the

earning of any ‘good time’ diminution of sentence for any person convicted of a

violation of R.S. 14:40.2, or Stalking), but the Court choose not to do so, benefiting

the defendant….” Defendant was therefore not sentenced to the absolute maximum

sentence. Additionally, the State notes Defendant presented witnesses on his behalf

during the sentencing hearing. The trial court heard all witnesses and explained why

it chose to sentence Defendant to this particular sentence. For these reasons, the State

argues Defendant cannot show any abuse of discretion on the part of the trial court.

Louisiana courts have laid out the following guidelines regarding excessive

sentence review:

17

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. 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)].

18

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

1005-06 (first alteration in original), writ denied, 14-452 (La. 9/26/14), 149 So.3d

261.

In State v. Baker, 06-1218, pp. 7-8 (La.App. 3 Cir. 4/18/07), 956 So.2d 83,

89, 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 “(1) the nature of the crime, (2) the nature and background of the offender,

and (3) the sentences imposed for similar crimes.”

In this case, looking first to the nature of the crime, Defendant pled guilty to

stalking while a protective order was in place. Under La.R.S. 14:40.2(B)(3), the

penalty for stalking when a protective order or restraining order is in effect is

imprisonment with or without hard labor for not less than ninety days and not more

than two years or a fine of not more than five thousand dollars, or both. This crime

involved Defendant sending threatening messages to the victims, even after

protective orders had been filed.

Second, in looking at the nature and background of the offender, we look to

the remarks made during the sentencing hearing. At the hearing, Defendant noted he

was sixty-three years old. The trial court noted Defendant had two prior felony

convictions: one in 1987 for possession with intent to distribute cocaine, and another

in 2012 for unauthorized entry of an inhabited dwelling.3 The trial court asked for

evidence in mitigation and the defense noted they had statements from Defendant’s

3
We note that in the unauthorized entry of an inhabited dwelling, the victims were the
same as those in those in this matter, Andree and Coy Courville.

19

brother and sister. The State then submitted victim impact statements from Andree

Courville and Defendant’s daughter, Victoria Guillory.

Additionally, the State called Coy Courville to the stand for his victim impact

statement. Mr. Courville indicated he is married to Andree Courville and that he was

a victim in this matter. He stated he received hundreds of messages from Defendant,

which included: threats of death; threatening having a sniper ready in a ghillie suit

when he least expected it; videos of Defendant threatening to cut his throat; threats

of committing other acts of violence against Mrs. Courville; and threatening to

destroy the Courvilles’ houses and property. Mr. Courville stated Defendant came

by the Courvilles’ house and put a message in the mailbox. In this message,

Defendant demanded Mrs. Courville contact him, or he was going to find a way to

talk to her. Mr. Courville said both he and his wife had protective orders against

Defendant, but Defendant continued to text Mrs. Courville. Mr. Courville stated

Defendant had been sending threatening messages for years and making comments

about him. Mr. Courville indicated Defendant went to a rehabilitation center after

his 2012 conviction for the home invasion, but his time in the center did not change

Defendant as he continued to send messages. Mr. Courville testified that he was a

State trooper, had retired, and then gone back to work for the State police as an

investigator; yet, Defendant continued to call and make threats about killing him and

destroying his property. Mr. Courville stated that he knew Defendant violated the

conditions of his bond, which he believed showed Defendant’s refusal to listen.

In closing arguments, defense counsel was able to present several mitigating

factors to the trial court. Defendant spent thirty-nine days in jail in connection with

this case and spent one hundred twenty days on house arrest. Permanent protective

orders have been issued to protect both victims in this case. Defendant admitted fault

20

by pleading guilty to the charge of stalking. Defendant was involved in a near-death

experience with the helicopter crash. Defendant has created jobs and helped

stimulate the community. Defendant has raised children, including a stepdaughter.

Following closing arguments, the trial court found the following:

I find this case extremely sad, for several reasons. But the main
reason I find it extremely sad is because Mr. Guillory willfully does
things that he knows he shouldn’t be doing. And he’s – he’s not stupid.
And he’s not crazy. He is just very willful.

And that’s of great concern to the Court, in terms of public safety.
He has shown a great deal of disdain for any type of authority.

And look, you know, everybody likes to do what they think they
want to do. But we all realize, within the rules of society, that’s not how
it works. And particularly when what you want to do threatens,
intimidates, and puts other people in harm’s way.

And I was particularly shocked by the fact that, after we had a
hearing about his violations of house arrest – and knowing that this was
all pending – he did it again.

And, you know, even after he knew that I had said, I will have
you arrested if you do it again, he didn’t care. And that is of great deal
of concern to this Court.

Because the idea of sentencing is to impose sanctions that will
keep someone from re-offending and protect the victims. And I don’t
know of any sanctions I can impose on him – other than sending him to
jail – that will keep him from doing it again. Because he does whatever
he wants to do.

And it’s – I just find that very sad. He’s, apparently, been
successful, he has talents. But he’s got some demons that he just won’t
control.

And, you know, I mean, it was very sad to read his daughter’s
letter. Because I know, like any daughter, you can’t help but love your
father, whether they’re abusive or not.

And I’m sure that was hard for her to write that letter. But I think
she wrote it heartfelt, from experience of what her life has been like
because of what Mr. Guillory chooses to do.

You know, I thought a lot about whether to suspend part of the
sentence in order to give him a chance to go for counseling. But it does

21

– it’s not going to matter, because, you know, he – he does what he
wants to do. He’s been through counseling. He’s been seen by people.

And this whole idea that he was suffering some post-traumatic
stress disorder that caused this – You know, I’m sorry. But he had done
the same thing in 2010 or 2012, when there was a home invasion charge
reduced to unauthorized entry. So that wasn’t prompted by the
helicopter accident.

You know, like I said, it’s very sad to me to be in this situation,
where I feel like I don’t have any options. But that’s what Mr. Guillory
has presented to me, is that I have no option but to give him jail time.

Because he’s not going to comply. And he’s made it clear to me
he’s not going to comply. Because he doesn’t believe anybody can tell
him what to do.

The trial court was very thorough in outlining everything it considered concerning

Defendant’s nature and background when deciding on his sentence. Additionally,

the trial court stated that it wanted to be sure to comply with the sentencing factors

contained in La.Code Crim.P. art. 894.1:

And let me just say something else, so that I’m complying with
894.1, as far as other reasons for imposition of this sentence.

I do want to note that he used threats of actual violence against
these victims and that there were multiple victims in this case, as well
as the other factors that I’ve already mentioned.

The third and final factor in the Baker analysis is a comparison of the

sentences imposed for similar crimes. In State v. Miller, 18-639 (La.App. 3 Cir.

3/27/19), 269 So.3d 806, writ denied, 19-659 (La. 11/5/19), 281 So.3d 670, the

defendant was charged with one count of stalking, second offense, a violation of

La.R.S. 14:40.2(4), and sentenced to twenty years at hard labor. 4 The defendant

4
Louisiana Revised Statutes 14:40.2(4) provides, in pertinent part: “Upon a second
conviction occurring within seven years of a prior conviction for stalking, the offender shall be
imprisoned with or without hard labor for not less than five years nor more than twenty years.”
This statute further provides that the sentence shall be served without benefit of probation, parole,
or suspension of sentence, and there may be a fine of not more than five thousand dollars, or both
a fine and a term of imprisonment. La.R.S. 14:40.2(4).

22

argued his sentence, the maximum possible term, was excessive because the trial

court failed to give adequate consideration to the sentencing guidelines and his

sentence should be consistent with other cases. Id. In affirming the sentence, this

court agreed that the defendant was a most egregious offender as he was convicted

twice for stalking the same victim over a period spanning eighteen years, with

evidence demonstrating no change in behavior following the first conviction. Id.

This court noted that the trial court properly considered the defendant’s repeat

behavior over a period of time.

In State v. Saucier, 11-246 (La.App. 3 Cir. 11/9/11), 81 So.3d 691, writ

denied, 12-227 (La. 6/22/12), 91 So.3d 966, this court affirmed the defendant’s

sentence of ten years for stalking, second offense. While the trial court did not find

aggravating or mitigating factors under La.Code Crim.P. art. 894.1, the trial court

did note the defendant’s lengthy criminal history, how the defendant had violated

four protective orders, and subjected the victim to years of abuse and threats. Id. The

victim in this case was the defendant’s former wife with whom he had a child, and

the defendant had previously been convicted of stalking another victim.

The sentencing ranges for stalking, second offense are not comparable to the

instant offense; however, the trial courts’ reasons for these sentences are relevant to

the instant case. In Saucier, 81 So.3d 691, the trial court noted Defendant’s criminal

history, the victim was his former wife, and his pattern of directly violating

protective orders. In Miller, 269 So.3d 806, the defendant was given the maximum

sentence for stalking the same victim more than once, and the trial court noted

Defendant’s repeat behavior and how he was not changing.

In the instant case, Defendant not only sent threatening messages to two

victims but also continued to send these messages despite the protective order.

23

Additionally, Defendant refused to comply with the conditions of his bond

requirement as set by the trial court. Even if Defendant did not make direct contact

while he was outside his house, he still failed to comply with the trial court’s order

to remain in his home. As Defendant pointed out, “[g]enerally, maximum sentences

are reserved for the most serious violation of the offense and the worst type of

offender.” State v. Herbert, 12-228, p. 5 (La.App. 3 Cir. 6/13/12), 94 So.3d 916, 920,

writ denied, 12-1641 (La. 2/8/13), 108 So.3d 78. Defendant can be placed within

that category based on his repeated behavior; the content of the messages, which

included threats of violence and causing harm to the victims and their property; and

Defendant’s refusal to comply with court orders.

A trial court has wide discretion in imposing a sentence within the statutory

limits, and a sentence should not be set aside as excessive absent a manifest abuse

of discretion. State v. Williams, 03-3514 (La. 12/13/04), 893 So.2d 7. Additionally,

in State v. Wortham, 47,431, pp. 4-5 (La.App. 2 Cir. 11/14/12), 107 So.3d 132, 135–

36 (emphasis added), the second circuit provided a useful recitation of the law:

Where the record shows an adequate factual basis for the sentence
imposed, remand is unnecessary even where the trial court has not
fully complied with the sentencing guidelines of La.C.Cr.P. art.
894.1. State v. Lanclos, 419 So.2d 475 (La.1982); State v.
McGraw,[616 So.2 262 (La.App 2 Cir. 1993).] The important elements
which should be considered are the defendant’s personal history, prior
criminal record, seriousness of offense, and the likelihood of
rehabilitation. State v. McGraw, supra. The trial court is not required to
weigh any specific matters over other matters. State v. Moton, 46,607
(La.App.2d Cir. 9/21/11), 73 So.3d 503, writ denied, 11–2288 (La.
3/30/12), 85 So.3d 113; State v. Caldwell, 46,645 (La.App.2d Cir.
9/21/11), 74 So.3d 248, writ denied, 11–2348 (La. 4/27/12), 86 So.3d
625.

....

When a defendant has received a significant reduction in
potential exposure to confinement through a plea bargain, the trial
court has great discretion in imposing even the maximum sentence

24

possible for the pled offense. State v. Fatheree, [46,686, p. 6 (La.App.
2 Cir. 11/2/11), 77 So.3d 1047, 1051]; State v. Germany, 42,239
(La.App.2d Cir.4/30/08), 981 So.2d 792.

Additionally, we note that the trial court considered the letters in mitigation

and directly spoke to Defendant’s helicopter crash. As to the crash, the trial court

did not attach much weight to the possibility that Defendant had post-traumatic stress

because the trial court noted Defendant had exhibited this behavior back in 2012

before the crash. Furthermore, as indicated in Wortham, 107 So.3d 132, Defendant

was originally charged with cyberstalking, two counts of violating a protective order,

and stalking. However, the State agreed to drop the remaining charges since

Defendant pled guilty to stalking. Defendant received a significant reduction in

possible punishment based on his plea, so the trial court has great discretion in

imposing even the maximum sentence possible for the pled offense. For these

reasons, we find that the trial court did not abuse its discretion in sentencing

Defendant to the maximum sentence.

Finally, prior to the hearing on the motion to reconsider sentence, Defendant

filed a supplemental memorandum in support of his motion to reconsider sentence

in which he argued that the trial court improperly considered Defendant’s daughter’s

victim impact statement when sentencing Defendant. Defendant argues his

daughter’s statement was irrelevant to the impact Defendant’s actions had on the

victims. In this letter, Victoria recounted the abuse she suffered from her father, and

she asked the court to sentence Defendant to the highest sentence. Victoria further

wrote she was told by Defendant that he would hurt her mother and stepfather.

Victoria indicated she believed Defendant was fully capable of doing this, and she

was afraid they would continually be tormented by him. Under La.R.S. 46:1844(K),

the victim or designated family members have a right to be present and heard at all

25

critical stages of the proceedings. This article provides that the victim’s family

members shall have the right to make written and oral victim impact statement.

La.R.S. 46:1844(K)(1)(b). The statute provides, in pertinent part, that the statement

may contain any other information related to the impact of the offense upon the

victim or the victim’s family that the trial court requires or any other information

regarding the overall effect of the crime upon the victim and victim’s family. La.R.S.

46:1844(K)(2). Under La.R.S. 46:1842(18), “victim’s family” includes a spouse,

parent, child, stepchild, siblings, or legal representative of the victim.

This court looks to State v. Reese, 13-1905, p. 4 (La.App. 1 Cir. 6/25/14)

(unpublished opinion) (alterations in original), writ denied, 14-1592 (La. 3/6/15),

161 So.3d 13, for guidance:

The defendant also argues the trial court erred in allowing
improper victim impact statements at the sentencing hearing. At the
hearing, J.A.’s mother’s therapist testified about how she has been
affected by her son’s murder; and J.A.’s father and grandfather testified.
J.A.’s grandfather described his hatred toward the defendant and added
that, if the defendant ever left prison, he (grandfather) hoped it would
“be feet first in a pine box.” J.A.’s father asked for the maximum
sentence. According to the defendant, all of this testimony was
improper and had no bearing on whether his juvenile characteristics
warranted a life sentence without the possibility of parole.

In Payne v. Tennessee, 501 U.S. 808, 825, 111 S.Ct. 2597, 2608,
115 L.Ed.2d 720 (1991), the United States Supreme Court recognized
that “[v]ictim impact evidence is simply another form or method of
informing the sentencing authority about the specific harm caused by
the crime in question,” and “[i]n the majority of cases . . . [it] serves
entirely legitimate purposes.” Furthermore, “for the jury to assess
meaningfully the defendant’s moral culpability and blameworthiness,
it should have before it at the sentencing phase evidence of the specific
harm caused by the defendant.” Id. at 825, 111 S.Ct. at 2608. The Court
concluded “that if the State chooses to permit the admission of victim
impact evidence and prosecutorial argument on that subject, the Eighth
Amendment erects no per se bar.” Id. at 827, 111 S.Ct. at 2609. While
evidence depicting the impact of the loss on the victim’s survivors is
permitted, the evidence may not descend into detailed descriptions of
the good qualities of the victim, particularized narrations of the
sufferings of the survivors, or what opinions the survivors hold with

26

respect to the crime or the murderer. State v. Bernard, 608 So.2d 966,
972 (La.1992). See State v. Williams, 96–1023 (La.1/21/98), 708 So.2d
703, 721–22, cert. denied, 525 U.S. 838, 119 S.Ct. 99, 142 L.Ed.2d 79
(1998).

We find nothing improper about the testimony of the therapist of
J.A.’s mother. Assuming, but not deciding, that the testimony of J.A.’s
father or grandfather exceeded the boundaries set forth in Bernard, any
possible error was harmless. See La.Code Crim. P. art. 921. A good deal
of mitigation evidence, including the defendant’s own testimony, was
introduced at the sentencing hearing. In a hearing that comprised 135
pages of testimony, seven of those pages totaled J.A.’s father’s and
grandfather’s testimony. Thus, any possible prejudice was diluted by
the entirety of the testimony, comprised largely of the opinions of
doctors and other mental health experts. Finally, it must be noted that
surely the trial court regarded the testimony of these victim impact
witnesses as normal human reactions to the death of a loved one. That
the victim’s survivors might have little or no sympathy for the
defendant certainly would come as no surprise to the trial court. See
State v. Taylor, 93–2201 (La.2/28/96), 669 So.2d 364, 371, cert.
denied, 519 U.S. 860, 117 S.Ct. 162, 136 L.Ed.2d 106 (1996). See also
Williams, 708 So.2d at 720–22; State v. Schwarz, 13–255 (La.App. 3
Cir. 10/9/13), 123 So.3d 1256, 1259.

Under La.Code Crim.P. art. 921, a judgment or ruling shall not be reversed by

an appellate court because of any error, defect, irregularity, or variance which does

not affect the substantial rights of the accused. Louisiana Code of Criminal

Procedure Article 905.2(A) provides:

The sentencing hearing shall focus on the circumstances of the
offense, the character and propensities of the offender, and the victim,
and the impact that the crime has had on the victim, family members,
friends, and associates. The victim or his family members, friends, and
associates may decline the right to testify but, after testifying for the
state, shall be subject to cross-examination. The hearing shall be
conducted according to the rules of evidence. Evidence relative to
aggravating or mitigating circumstances shall be relevant irrespective
of whether the defendant places his character at issue. Insofar as
applicable, the procedure shall be the same as that provided for trial in
the Code of Criminal Procedure. The jury may consider any evidence
offered at the trial on the issue of guilt. The defendant may testify in his
own behalf. In the event of retrial, the defendant’s testimony shall not
be admissible except for the purposes of impeachment.

27

We find that when viewing Victoria’s statement in light of La.Code Crim.P.

arts. 905.2 and 921 as well as Reese, 13-1905, Defendant was not prejudiced by the

admission of the full statement. In the statement, Victoria wrote about Defendant’s

character, and in her concluding paragraph, she directly referenced how Defendant

threatened harm upon her family and how she was afraid of him. While the trial court

noted it read and considered his daughter’s statement, the trial court also provided

multiple other reasons for imposing the maximum sentence as well as discounting

some of the mitigating factors. Additionally, the trial court further indicated it

reviewed and considered letters in mitigation. The trial court directly referenced how

Defendant follows his own rules despite there being a protective order or conditional

bond requirement and imposed a sentence to protect the victims. For these reasons,

we find there was no error in admitting the full statement. If there was such an error,

the error was harmless because the trial court articulated reasons for the sentence.

CONCLUSION

We conditionally affirm Defendant’s conviction and sentence. The case is

remanded to the trial court to conduct an evidentiary hearing within thirty days to

determine whether a nunc pro tunc competency hearing may be possible. If the trial

court finds that it is possible to determine Defendant’s competency at the time of his

guilty plea, the trial court is directed to hold an evidentiary hearing and make a

competency ruling in accordance with La.Code Crim.P. art. 647. If Defendant is

found to have been competent, no new plea proceeding is required. If Defendant is

found to have been incompetent at the time he entered his guilty plea, or if the inquiry

into competency is found to be impossible, the trial court shall vacate Defendant’s

guilty plea and sentence. Defendant’s right to appeal any adverse ruling on this issue

28

is reserved, and in the absence of such appeal, we affirm Defendant’s conviction and

sentence.

CONDITIONALLY AFFIRMED AND REMANDED.

29