State of Louisiana v. O'Shay Devan Hicks

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

23-22

STATE OF LOUISIANA

VERSUS

O’SHAY DEVAN HICKS

**********
ON APPEAL FROM THE
TENTH JUDICIAL DISTRICT COURT
PARISH OF NATCHITOCHES, NO. C-23019
HONORABLE LAYLA B. SYLVESTER, DISTRICT JUDGE

**********
JONATHAN W. PERRY
JUDGE

**********

Court composed of Shannon J. Gremillion, Jonathan W. Perry, and Gary J. Ortego,
Judges.

AFFIRMED.

Paula C. Marx
Louisiana Appellate Project
P. O. Box 82389
Lafayette, LA 70598-2389
(337) 991-9757
COUNSEL FOR DEFENDANT APPELLANT:
O’Shay Devan Hicks

Hon. Billy J. Harrington
District Attorney
Tenth Judicial District
J. Chris Gullet
Assistant District Attorney
P. O. Box 838
Natchitoches, LA 71457
(318) 457-2214
COUNSEL FOR APPELLEE:
State of Louisiana

PERRY, Judge.

The issue in this case is whether the imposition of a thirty year sentence for

forcible rape and fifteen years at hard labor for each of two counts of second degree

kidnapping, all served consecutively and without benefits, constitutes an excessive

sentence. We affirm.

FACTS AND PROCEDURAL HISTORY

As outlined later in this opinion, this case has been before this court twice

before after O’Shay Devan Hicks (“Defendant”) entered a guilty plea. At the initial

sentencing hearing of Defendant on October 9, 2017, the State summarized the facts

as follows:

[O]n or about July 8th, 2015 [P.C.]1 and [L.P.] came in contact with
[Defendant]. [P.C.] had the use of her mother’s car for the day. She
picked up her friend [L.P.]. They were scheduled to drop [P.C.’s]
younger sister off at [Defendant’s] home. Actually it’s his
grandmother’s house where he was living. The girls arrived at
[Defendant’s] home to drop off [P.C.’s] younger sister. While they
were there or as they were leaving someone asked them if [Defendant]
could ride with them to the store. They agreed. They both knew
[Defendant] [and] they both had distant family relationship with [him].
He rode in the back seat, [P.C.] was driving, [L.P.] was in the front
passenger seat. Initially they went to a convenience store, actually two
convenience stores where [Defendant] made a couple of purchases.
Ultimately [Defendant] directed the girls to drive past the shooting
range to a secluded area. While there [Defendant] pulled out a knife
and scared the girls. He then persuaded or enticed them to drive to
several other different locations. Ultimately, they were directed back
to Rex Waterwell Road. [Defendant] demanded that [L.P.] get out of
the car, she did, he got out of the car with her still armed with the knife.
He walked [L.P.] into a secluded area or into a shack in the middle of
the woods between Dawn Street and Mary Drive. While inside this
shack [Defendant] raped [L.P.] vaginally without her lawful consent.

When Defendant left with L.P., P.C. fled the scene and reported what Defendant had

done. Shortly thereafter, the police arrested Defendant.

1
Pursuant to the provisions of La.R.S. 46:1844, we will refer to the victims by their initials.

On August 27, 2015, the State charged Defendant by bill of information with

forcible rape, in violation of La.R.S. 14:42.1,2 two counts of second degree

kidnapping, in violation of La.R.S. 14:44.1, two counts of armed robbery, in

violation of La.R.S. 14:64, and misdemeanor illegal carrying of a weapon, in

violation of La.R.S. 14:95.

Initially, on September 3, 2015, Defendant pled not guilty to all counts.

However, just before trial on October 9, 2017, Defendant entered into a plea

agreement. At that time, Defendant pled guilty to one count of forcible rape and two

counts of second degree kidnapping while all other counts were dismissed, and no

habitual offender proceeding would be filed. After conducting a thorough Boykin

examination, the trial court accepted Defendant’s plea as being voluntarily and

intelligently made and ordered a presentence investigation.

On December 14, 2017, the trial court sentenced Defendant to thirty years at

hard labor for forcible rape, with at least two years to be served without benefits, and

fifteen years at hard labor on each count of second degree kidnapping. The court

ordered that all sentences were to be served consecutively. Following imposition of

the sentences, Defendant’s oral motion to reconsider sentence was denied by the trial

court, and a written motion to reconsider sentence was also denied after a hearing on

February 26, 2018.

2
Louisiana Revised Statutes 14:42.1 is now entitled, Second degree rape. Subsection C
provides, “For all purposes, ‘forcible rape’ and ‘second degree rape’ mean the offense defined by
the provisions of this Section and any reference to the crime of forcible rape is the same as a
reference to the crime of second degree rape.” Subsection C further provides that “[a]ny act in
violation of the provisions of this Section committed on or after August 1, 2015, shall be referred
to as ‘second degree rape.’”

The penalty provision of La.R.S. 14:42.1 also changed. Until July 31, 2015, it stated that
“[a]t least two years of the sentence imposed shall be without benefit of probation, parole, or
suspension of sentence.” Effective August 1, 2015, to July 31, 2020, that proviso was maintained.
However, effective August 1, 2020, it stated that the term of imprisonment shall be “without
benefit of probation, parole, or suspension of sentence, for not less than five nor more than forty
years.”
2

Defendant appealed his sentence, and on March 4, 2020, this court vacated

the sentences and remanded the case to the trial court for resentencing upon finding

the trial court imposed an indeterminate sentence for forcible rape and failed to

impose a restriction of benefits on the sentences for second degree kidnapping. State

v. Hicks, 19-649, (La.App 3 Cir. 3/4/20) (unpublished opinion).

On remand, the trial court sentenced Defendant to serve thirty years at hard

labor for forcible rape, with thirty years to be served without benefits, and fifteen

years on each count of second degree kidnapping, with fifteen years to be served

without benefits. The sentences were ordered served consecutively but were to run

concurrently with any revocation time Defendant was currently serving.3 After

Defense Counsel objected to the sentence, Defendant filed a motion for appeal on

October 12, 2021. The trial court denied Defendant’s motion for appeal on the

ground that it was untimely.

On January 4, 2022, Defendant sought an out of time appeal by filing an

application for post conviction relief. On January 12, 2022, the trial court denied

the application as untimely. Defendant then filed a writ application with this court.

On June 16, 2022, this court granted Defendant’s writ application and held that

Defendant’s pleadings were timely filed with the trial court. We then remanded this

matter to the trial court for a hearing pursuant to State v. Counterman, 475 So.2d 336

(La.1985).4 State v. Hicks, 22-166 (La.App. 3 Cir. 6/16/22) (unpublished opinion).

3
On May 11, 2015, approximately two months prior to his commission of the present
offenses, Defendant pled guilty to attempted armed robbery. At that time, he was sentenced to ten
years in the Louisiana Department of Corrections, suspended, and placed on five years supervised
probation. On October 19, 2015, after the commission of these present offenses, his probation was
revoked.

4
In Counterman, 475 So.2d at 341 (footnote omitted), the court stated:

[T]he appropriate procedural vehicle for a defendant to seek the exercise of his right
to appeal, after the delay provided in Article 914 has expired, is an application for
post conviction relief pursuant to Articles 924-930.[10]. There are several
3

After conducting a hearing on June 27, 2022, the trial court granted the present

appeal.

APPELLANT’S ASSIGNMENTS OF ERROR5

I. The trial court imposed constitutionally excessive sentences for
this young offender who accepted responsibility and pled guilty
to one count of forcible rape and two counts of second degree
kidnapping.

A) A thirty (30) year sentence without benefits for forcible
rape is excessive.

B) The consecutive nature of the sentences totaling sixty
(60) years’ incarceration for one course of criminal
conduct is excessive.

II. The trial court erred in imposing consecutive sentences in this
case as the crimes occurred on a single day and constituted part
of a common scheme or plan.

APPELLANT’S ARGUMENT

Defendant argues the trial court imposed constitutionally excessive sentences

for a young offender who accepted responsibility for his actions and pled guilty.

Defendant asserts he was only twenty-two years of age at the time of the

offense, so his youthfulness should have been a mitigating factor in the case.

Defendant notes that in Johnson v. Texas, 509 U.S. 350, 368, 113 S.Ct. 2658, 2669

(1993), the court stated, “The relevance of youth as a mitigating factor derives from

the fact that the signature qualities of youth are transient; as individuals mature, the

impetuousness and recklessness that may dominate in younger years can subside.”

Defendant asserts his youth reduces his criminal culpability.

advantages to this procedure. The district attorney is allowed an opportunity to
oppose the request (or to concur, if appropriate), and the defendant is afforded an
evidentiary hearing to prove his allegations (if the application and supporting
documents allege a claim which would entitle the applicant to relief.)
5
This court granted Defendant’s motion to file an additional pro se brief and set a filing
deadline of March 24, 2023. Defendant has failed to file an additional brief.
4

Defendant observes that he was classified as a third-felony offender, and he

submits his prior offenses were felony theft, for which he received a three-year

suspended sentence, and attempted armed robbery, for which he received a ten-year

sentence, five of which were suspended. Defendant notes the trial court enumerated

the following: Defendant’s probation was previously revoked; Defendant received

additional charges since his incarceration; Defendant posed an unusual risk to the

safety of the public; and Defendant’s crimes were exceptionally violent and heinous.

Against that backdrop, Defendant points out that the trial court then imposed a thirty-

year sentence for forcible rape to be served consecutively to the fifteen years on each

count of second degree kidnapping.

In response to the trial court’s articulated reasons for sentencing, Defendant

further contends that although the trial court focused on the crime and on his criminal

history, it failed to give due consideration to his potential for rehabilitation when

considering his youth. Defendant also comments that at the hearing on the motion

to reconsider, the trial court found an “extreme likelihood” of recidivism in this case.

In face of that assertion, Defendant argues there was not a sufficient factual basis in

the record for the trial court to make such a finding, and the result of this was a

virtual life sentence for a twenty-two year old offender.

Defendant argues his actions on the day of the offenses were not typical

because his personality changed after ingesting drugs. Defendant further argues the

trial court failed to consider the following mitigating factors: he earned his GED

while incarcerated; he has been a mentor and tutor to others in prison; he has a young

child who needs his guidance and support; he was remorseful and has potential for

rehabilitation given his youth; and he accepted responsibility for his actions and

spared the victims the necessity of testifying at trial. Accordingly, Defendant asserts

5

his sentences are excessive because he would remain incarcerated until he is over

eighty years of age.

Defendant suggests that his thirty-year sentence for forcible rape should be

reduced to a mid-range sentence for an offender who accepted responsibility for his

actions and pled guilty. And he further argues all his sentences should be served

concurrently because the consecutive nature of the second degree kidnapping

sentences subject him to an aggregate, constitutionally excessive sentence.6 Thus,

Defendant argues the trial court abused its discretion by imposing sixty years for a

remorseful, young offender with the potential for rehabilitation.

Defendant further argues the trial court erred when it imposed consecutive

sentences in this case because the crimes constituted part of a scheme or plan.

Defendant claims the offenses occurred on a single day, within a short period of

time, and were one series of events. Defendant argues there is a presumption in

favor of concurrent sentences and asserts the record does not justify consecutive

sentences.

After acknowledging that the trial court has discretion to impose consecutive

penalties, Defendant argues the trial court did not articulate circumstances which

justify the imposition of consecutive sentences. Rather, Defendant asserts his

conduct was based on the same act or transaction or constituted a common scheme.

Thus, Defendant urges us to find that the trial court should have imposed concurrent

sentences.

APPELLEE’S POSITION

The State argues Defendant’s thirty-year sentence is appropriate when

considering several applicable aggravating factors in the case. First, the State asserts

6
At no point does Defendant argue that the trial court’s imposition of fifteen-year sentences
for each crime of second degree kidnapping by itself was excessive.
6

Defendant’s conduct was deliberately cruel to the victims because they were distant

family members who pleaded with him to stop. Despite the victims’ pleas,

Defendant continued to commit the crimes. Second, Defendant violently threatened

the victims with a knife and further threatened to kill them and their families if they

reported the crimes. Third, the offense resulted in significant emotional injuries to

both victims. Fourth, Defendant used a knife, a dangerous weapon, in the

commission of the crimes. Fifth, the State asserts the offense involved two victims

and two separate crimes, kidnapping and forcible rape. Additionally, the State

asserts none of the mitigating factors enumerated in La.Code Crim.P. art. 894.1

apply to Defendant.7 The State further points out that Defendant has a prior felony

history and was on probation when these new offenses occurred.

The State also directs this court’s attention to a comparable sentence in

another similar case. In State v. Steele, 10-1336 (La.App. 3 Cir. 5/4/11), 63 So.3d

412, the victim was walking home from a drugstore when the defendant offered her

a ride home in his vehicle. Instead of taking her to her residence, the defendant took

her to a gravel road, stopped the car, and exited the vehicle; he then hit the victim in

the face, covered her mouth, took off her clothes, and raped her repeatedly. The

defendant threw the victim’s purchases out and left her there. The defendant agreed

to plead guilty to one count of forcible rape when the State agreed not to pursue other

charges. This court affirmed the thirty-year sentence at hard labor without benefits.

As to the consecutive nature of the sentences, the State asserts this case

involves two independent crimes and meets other factors for consecutive sentencing.

7
Louisiana Code of Criminal Procedure Article 894.1 provides a list of factors the trial
court could consider when imposing a sentence. This article also allows the trial court to consider
any other relevant mitigating circumstance.
7

Therefore, the State argues, the trial court did not err in imposing a thirty-year

sentence for forcible rape and for ordering the sentences to run consecutively.

APPLICABLE LAW

Under La.R.S. 14:42.1(B), “Whoever commits the crime of [forcible rape]

shall be imprisoned at hard labor . . . for not less than five years nor more than forty

years.” Under La.R.S. 14:44.1(C), “Whoever commits the crime of second degree

kidnapping shall be imprisoned at hard labor for not less than five nor more than

forty years. At least two years of the sentence imposed shall be without benefit of

parole, probation, or suspension of sentence.”

Excessive sentence review was fully explored in State v. Soileau, 13-770, 13-

771, pp. 4-5 (La.App. 3 Cir. 2/12/14), 153 So.3d 1002, 1005-06 (footnote added),

writ denied, 14-452 (La. 9/26/14), 149 So.3d 261, and provided the following

guidelines:

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.
8

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.[8] 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)].

ANALYSIS

Excessiveness of sentence

As this court has adopted the Baker three-factor test in the review of a

defendant’s sentence for excessiveness, we will consider those factors in the present

case.

The nature of the crime

At Defendant’s December 14, 2017 hearing, the trial court found Defendant’s

crimes of forcible rape and two counts of second degree kidnapping were

exceptionally violent and heinous. It observed that Defendant threatened the two

victims with a knife and forced them to drive him to several successive and secluded

locations, and during one stop, he forcibly raped one of the victims.

8
In State v. Baker, 06-1218 (La.App. 3 Cir. 4/18/07), 956 So.2d 83, writ denied, 07-320
(La. 11/9/07), 967 So.2d 496, and writ denied, 07-1116 (La. 12/7/07), 969 So.2d 626, this court
adopted the fifth circuit’s three-factor test enunciated in Lisotta, 726 So.2d 57.
9

The nature and background of the offender

The record shows that the trial court stated it had reviewed the presentence

investigation report and noted that this was Defendant’s third felony conviction—

the first being felony theft and the second being attempted armed robbery. It also

noted that Defendant was on probation when he committed these most recent crimes

and that probation had been revoked. Additionally, the trial court observed that

Defendant had received further charges since his incarceration, namely for taking

contraband to or from a penal facility and battery of a correctional officer. After

considering Defendant’s prior convictions and the revocation of his probation, the

trial court concluded there was an undue risk that during any period of suspended

sentence or probation, Defendant would commit another crime and place the public

in danger.

Comparison of the sentences to other similar crimes

In State v. Breaux, 17-406 (La.App. 3 Cir. 11/2/17), 232 So.3d 675, writ

denied, 17-1967 (La. 10/15/18), 253 So.3d 1309, the defendant was originally

charged with aggravated rape, but the defendant entered a plea of no contest to the

lesser charge of second degree rape. The defendant was sentenced to thirty-five

years at hard labor, with the first ten years to be served without benefits. This court

noted the defendant’s crime was the vaginal rape of a twelve-year-old girl who was

unable to resist or defend herself against the twenty-five year old defendant. This

court noted the trial court found the defendant’s crime to be “despicable and

heinous” and that the defendant’s conviction was his second felony conviction. In

affirming the sentence, this court held the defendant received a substantial benefit in

accepting a plea agreement that reduced his exposure from life imprisonment to a

maximum of forty years imprisonment.

10

In State v. Vallery, 04-1589 (La.App. 3 Cir. 4/6/05), 899 So.2d 836, the

defendant pled guilty to forcible rape and was sentenced to thirty-five years without

benefits. In affirming the sentence, this court noted the defendant received a

significant benefit by reducing his sentence exposure, and this court found the

defendant’s conduct toward an eleven-year-old victim was more accurately

described as conduct constituting aggravated rape. Considering the significant

benefit gained by the defendant, this court found the trial court did not abuse its

discretion in imposing a sentence of thirty-five years.

In State v. Parfait, 52,857 (La.App. 2 Cir. 8/14/19), 278 So.3d 455, writ

denied, 19-1659 (La. 12/10/19), 285 So.3d 489, the defendant pled guilty to second

degree rape and was sentenced to forty years without benefits. The second circuit

found the trial court did not abuse its discretion in sentencing the defendant to the

maximum sentence and noted the trial court considered the following: the graphic

details of the acts committed by the defendant, the testimony of one of the victims,

letters from the family of the other victims, and a letter written by the defendant’s

ex-wife, which was not complimentary. The trial court also considered certain

mitigating factors such as: the defendant’s lack of criminal history, his military and

work history, letters from his family, and testimony of a friend. The second circuit

affirmed the sentence and found it was not constitutionally excessive.

After reviewing this jurisprudence, we find Defendant’s forcible rape

sentence is comparable to those imposed in those cases. In the present case, the trial

court indicated that it had considered the victim impact statements along with other

aggravating and mitigating factors. As to factors in mitigation, the defense counsel

called Defendant’s mother to testify at the sentencing hearing. At that time, she read

from her letter which was addressed to the trial court. In this letter, Defendant’s

11

mother requested mercy and an opportunity for Defendant to raise his child.

Defendant’s mother also indicated that since his incarceration, Defendant was a

tutor, mentor, and received his GED. In addition, the court allowed Defendant to

make a statement on his behalf. At that time, Defendant stated he was sorry for all

the pain he had caused and wanted to apologize to the family for the wrongs he

caused.

While the record shows the trial court did not necessarily review every

possible mitigating factor, such a review is not necessary under the law. In State v.

Wortham, 47,431, pp. 4-6 (La.App. 2 Cir. 11/14/12), 107 So.3d 132, 135–36

(emphasis added), the second circuit provided a useful recitation of 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
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.

....

Despite the lack of a specific recitation of the 894.1 factors by
the court, we find an adequate factual basis for the imposed sentence
on the record before us. Before his guilty plea, the court obtained
information from Wortham regarding both his age and education. Thus,
the record adequately demonstrates the court’s awareness of
12

Wortham’s youth and educational history. Furthermore, the facts as set
forth in the record by the State clearly indicate that Wortham sold only
$20 worth of crack cocaine to a confidential informant. Thus, the court
also understood the amount of drugs and money involved in the
transaction. The court had knowledge of Wortham’s criminal history as
it conducted his probation revocation hearing immediately after
sentencing. Accordingly, consideration by the trial court of the
important elements including Wortham’s personal history, prior
criminal record and seriousness of offense are evident from the record
before us and provide a sufficient factual basis for the imposed
sentences.

As reflected in the jurisprudence, a trial court has great discretion when imposing a

sentence for a pled offense. Our review of the record shows an adequate factual

basis for the sentence imposed and reveals that Defendant received a significant

reduction in confinement by pleading guilty to forcible rape. For these reasons, we

find the trial court did not abuse its discretion when it sentenced Defendant to thirty

years without benefits for forcible rape.

Consecutive nature of the sentences

We now turn our attention to the trial court’s imposition of consecutive

sentences for forcible rape and kidnapping. Louisiana Code of Criminal Procedure

Article 883 provides, in pertinent part:

If the defendant is convicted of two or more offenses based on
the same act or transaction, or constituting parts of a common scheme
or plan, the terms of imprisonment shall be served concurrently unless
the court expressly directs that some or all be served consecutively.
Other sentences of imprisonment shall be served consecutively unless
the court expressly directs that some or all of them be served
concurrently.

In State v. Simpson, 50,334, pp. 7-8 (La.App. 2 Cir. 1/13/16), 186 So.3d 195,

200-01, the second circuit summarized the law with regard to concurrent and

consecutive sentences:

Concurrent sentences arising out of a single course of
conduct are not mandatory. State v. Parker, 42,311 (La.App.2d
Cir.8/15/07), 963 So.2d 497, writ denied, 2007–2053
(La.3/7/08), 977 So.2d 896[.] [A]nd consecutive sentences
13

under those circumstances are not necessarily excessive. State v.
Williams, 445 So.2d 1171 (La.1984). Among the factors to be
considered are the defendant’s criminal history, State v. Ortego,
382 So.2d 921 (La.1980), cert. denied, 449 U.S. 848, 101 S.Ct.
135, 66 L.Ed.2d 58 (1980); State v. Jacobs, 493 So.2d 766
(La.App. 2d Cir.1986); the gravity or dangerousness of the
offense, State v. Adams, 493 So.2d 835 (La.App. 2d Cir.1986),
writ denied, 496 So.2d 355 (La.1986); the viciousness of the
crimes, State v. Clark, 499 So.2d 332 (La.App. 4th Cir.1986); the
harm done to the victims, State v. Lewis, 430 So.2d 1286
(La.App. 1st Cir.1983), writ denied, 435 So.2d 433 (La.1983);
whether the defendant constitutes an unusual risk of danger to
the public, State v. Jett, 419 So.2d 844 (La.1982); the potential
for the defendant’s rehabilitation, State v. Sherer, 437 So.2d 276
(La.1983); State v. Lighten, 516 So.2d 1266 (La.App. 2d
Cir.1987); and whether the defendant has received a benefit from
a plea bargain. State v. Jett, supra; State v. Adams, supra.

When consecutive sentences are imposed, the court shall
state the factors considered and its reasons for the consecutive
terms. State v. Johnson, supra; State v. Boudreaux, 41,660
(La.App.2d Cir.12/13/06), 945 So.2d 898. The failure to
articulate specific reasons for consecutive sentences does not
require remand if the record provides an adequate factual basis
to support consecutive sentences. See State v. Boudreaux, supra.

Unless there are specific reasons for a longer sentence,
concurrent sentences rather than consecutive sentences are
appropriate for convictions arising out of a single course of
conduct, at least for a defendant with no prior criminal record
and in the absence of a showing that public safety requires a
longer sentence. State v. Armstead, 432 So.2d 837 (La.1983);
State v. Cathey, 569 So.2d 627 (La.App. 2d Cir.1990).

In State v. Henson, 19-881, pp. 14-16 (La.App. 3 Cir. 6/3/20), 298 So.3d 844,

852-53, writ denied, 20-785 (La. 11/18/20), 304 So.3d 422, this court addressed

whether the trial court erred by imposing consecutive sentences for offenses that

arose from a single act or transaction:

Prior to imposing sentence, the trial court discussed how
Defendant’s drug addiction had dissolved into something beyond
addiction, noting:

You’ve digressed into something that is horrible.
You’re obviously not the person that your mother worries
about. On the good side, if there is such a thing, is that he
didn’t die as a consequence of what you did.
14

You’re lucky. You’re lucky those people were
there the next morning to find him. At that age, under
those conditions, he could have died. And then the
sentencing would have been a lot easier here this morning,
been very simple; you’d be going away for the rest of your
life.

Your criminal record is quite extensive; burglary,
robbery, unauthorized use of a movable, theft.

Based on what the Court has seen, based on the
record, based on the facts that were presented at the trial I
have no choice but to sentence you as follows[.]

As this court noted in State v. Bethley, 12-853, p. 11 (La.App. 3
Cir. 2/6/13), 107 So.3d 841, 850, “[t]he imposition of consecutive
sentences, however, requires particular justification beyond the
standard sentencing guidelines, justification which must be articulated
by the trial court at sentencing.” Any such articulated justification is
lacking in the instant case. The last sentence of the trial court’s lead-in
to the actual imposition of sentence cannot be described as particular
justification; the language speaks only in generalities. The trial court
did not elaborate during the hearing on Defendant’s motion to
reconsider, simply stating “I’ve thought about it some more, but I don’t
think I need to change my mind on it.” We hold the trial court’s failure
to articulate why it felt Defendant’s sentences for aggravated burglary
and home invasion should be run consecutively, despite being based
upon the same entry into the victim’s home, renders Defendant’s
sentences improper as imposed . . . . Defendant’s sentences for
aggravated burglary and home invasion are reversed and the case is
remanded to the trial court to either impose concurrent sentences or to
articulate justification for the consecutive sentences.

Also, in State v. Walker, 00-3200, p. 1 (La. 10/12/01), 799 So.2d 461, 461–

62, the supreme court noted:

Although La.C.Cr.P. art. 883 favors imposition of concurrent sentences
for crimes committed as part of the same transaction or series of
transactions, a trial court retains the discretion to impose consecutive
penalties in cases in which the offender’s past criminality or other
circumstances in his background or in the commission of the crimes
justify treating him as a grave risk to the safety of the community.

In the present case, the facts indicate the offenses stem from the same act or

transaction. Therefore, the trial court was required to provide particularized

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justification beyond the standard sentencing guidelines to support the imposition of

consecutive sentencing.

After carefully reviewing the record, we find the trial court properly complied

with La.Code Crim.P. art. 883. At the December 14, 2017 sentencing hearing, the

trial court provided further reasons for the consecutive nature of the sentences and

found the following: Defendant knew both victims; he threatened to kill the victims

with a knife; he threatened to kill them and their mother if they told anyone about

what he did; he raped one of the victims; he is a third-time felony offender; he is a

danger to the community; and he committed horrible acts which justify a consecutive

sentence. Unlike our conclusion in Henson, we find the trial court properly complied

with La.Code Crim.P. art. 883, and provided articulated, particularized justification,

beyond the standard sentencing guidelines, for imposition of consecutive sentences.

ERRORS PATENT REVIEW

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 found there

are no errors patent.

DECREE

For the foregoing reasons, we affirm Defendant’s convictions and sentences.

AFFIRMED.

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