State of Louisiana v. Ashton Dean Biggs

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

23-258 consolidated with 23-108

STATE OF LOUISIANA

VERSUS

ASHTON BIGGS

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 7711-2020
HONORABLE CLAYTON DAVIS, DISTRICT JUDGE

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GARY J. ORTEGO
JUDGE

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Court composed of Gary J. Ortego, Ledricka J. Thierry, and Guy E. Bradberry,
Judges.

CONVICTION AFFIRMED, SENTENCE
AMENDED, WITH INSTRUCTIONS.

Hon. Stephen C. Dwight
14th JDC District Attorney
P. O. Box 3206
Lake Charles, LA 70601
(337) 437-3400
COUNSEL FOR PLAINTIFF/APPLLEE:
State of Louisiana

David S. Pipes
14th JDC Assistant District Attorney
901 Lakeshore Drive
Lake Charles, LA 70601
(337) 437-3400
COUNSEL FOR PLAINTIFF/APPELLEE:
State of Louisiana

Louisiana Appellate Project:
Edward K. Bauman
P. O. Box 1641
Lake Charles, LA 70602
(337) 491-0570
COUNSEL FOR DEFENDANT/APPELLANT:

Ashton Biggs
Riverbend Detention Center
9450 Hwy. 65 South
Lake Providence, La 71254
COUNSEL FOR DEFENDANT/APPELLANT:
Ashton Biggs

ORTEGO, Judge.

This is a criminal matter wherein Defendant, Ashton Dean Biggs, has filed

two pleadings with this court. One is a writ application, number 23-108. The other

is an appeal, number 23-258. These matters were consolidated.

I. Procedural History

On June 10, 2020, Defendant was charged with third degree rape, in violation

of La.R.S. 14:43. The victim was identified as M.G.,1 whose date of birth was May

17, 2002, and the charge arose from an incident that occurred either the night of

February 14, 2019 or the morning of February 15, 2019.

On June 2, 2022, Defendant entered a guilty plea, without a recommended

sentence, to an amended charge of felony carnal knowledge of a juvenile, in violation

of La.R.S. 14:80. At that time, Defendant received a sentence of ten years at hard

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

14:80, the maximum penalty is ten years with or without hard labor. On June 13,

2022, Defendant filed a pro se “Motion to Reconsider Sentence,” in which he

claimed he pled guilty because his trial counsel promised him that he would receive

either a sentence of time served or probation. That motion was denied on July 5,

2022. Defendant sought review of that denial, and this court converted the writ

application into the current appeal. See State v. Biggs, 22-673 (La.App. 3 Cir.

12/20/22) (unpublished opinion).

Defendant now appeals his conviction and sentence, contending through

counsel that his sentence is both excessive and illegal. Pro se, Defendant

additionally contends the trial court lacked subject matter jurisdiction and that he is

1
We refer to the victim by her initials in accordance with La.R.S. 46:1844(W).

factually innocent of the charged offense. The State concedes Defendant’s sentence

is illegal in that La.R.S. 14:80 does not authorize the trial court to deny probation,

parole, or suspension of sentence in Defendant’s case. Regarding Defendant’s

remaining assignments of error, we find they lack merit.

II. Facts

The State gave the following factual basis at the time of Defendant’s guilty

plea:

Your Honor, if brought to trial, State would prove that on or
between February 14, 2019 and February 15, 2019, Your Honor, it was
found through the investigation that the defendant had picked up the
victim with the initials MG, date of birth, May 17 th, 2002 [,] from the
end of her road after she had snuck out of her house.

Once they were together, they went to a party in Sulphur. At this
party, the victim, a juvenile, age 16, was supplied alcohol and was also
given a vape pen, a dab pen that had a high concentration of THC inside.
Once the victim took the vape pen, that is when everything became
fuzzy. The next thing that the victim does remember is being at the
defendant’s house, at which time she was on her stomach with her face
in a pillow and the defendant having sexual intercourse with her from
behind.

The victim states that she was in and out of consciousness
through the night, at which time the defendant was moving her body in
different positions and having sexual intercourse.

Your Honor, this happened in Calcasieu Parish. The toxicology
report of the victim’s urine and blood showed high concentration of
THC that was taken 12 hours after the victim consumed that amount.

III. Errors Patent

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

court for errors patent on the face of the record. After reviewing the record, we find

that there is one error patent involving the trial court’s denial of parole eligibility.

Since the error has been raised by Defendant in one of his assignments of error, we

will address the error as an assigned error.

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IV. Assignment of Error Number One

Defendant raises two issues with this sentence: One is that it was illegal, and

the other is that it was excessive.

Illegal Sentence

As previously noted, the State acknowledges the trial court lacked the

authority to deny Defendant parole eligibility. The applicable penalty provision

La.R.S. 14:80(D)(1), states:

Whoever commits the crime of felony carnal knowledge of a juvenile
shall be fined not more than five thousand dollars, or imprisoned, with
or without hard labor, for not more than ten years, or both, provided
that the defendant shall not be eligible to have his conviction set aside
or his prosecution dismissed in accordance with the provisions of Code
of Criminal Procedure Article 893.

State v. Batiste, 09-521 (La.App. 3 Cir. 12/9/09), 25 So.3d 981 and State v. Dupree,

07-98 (La.App. 3 Cir. 5/30/07), 957 So.2d 966. Since this provision does not

authorize the denial of parole, we amend Defendant’s sentence to delete the denial

of parole eligibility, instruct the district court to make an entry in the minutes

reflecting this change, and instruct the district court to amend the Uniform

Sentencing Commitment Order reflecting this change as to Defendant’s sentence.

Excessive Sentence

In Defendant’s only counseled assignment of error and his first pro se

assignment of error, Defendant contends his sentence is excessive, the trial court

failed to properly consider the factors listed in La.Code Crim.P. art. 894.1, and his

sentence is illegal. With respect to Defendant’s claim that his sentence is

constitutionally excessive, Louisiana courts have laid out the following guidelines

regarding excessive sentence review:

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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)].

4

State v. Soileau, 13-770, pp. 4-5 (La.App. 3 Cir. 2/12/14), 153 So.3d 1002, 1005-06,

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

Furthermore, in State v. Baker, 06-1218 (La.App. 3 Cir. 4/18/07), 956 So.2d

83, writ denied, 07-320 (La. 11/9/07), 967 So.2d 496, and 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, p. 4 (La.App. 5 Cir. 12/16/98), 726 So.2d 57, 58, writ

denied, 99-433 (La. 6/25/99), 745 So.2d 1183, which established that an appellate

court should consider the nature of the crime, the nature and background of the

offender, and the sentences imposed for similar crimes.

Regarding the nature of the crime, Defendant stands convicted of La.R.S.

14:80, felony carnal knowledge of a juvenile. While not a crime of violence under

La.R.S. 14:2(B), Defendant was originally charged with third degree rape, which is

a crime of violence under La.R.S. 14:2(B)(11). Additionally, the factual basis given

at Defendant’s guilty plea indicate Defendant, who knew his victim was intoxicated,

had sex with her while she was in and out of consciousness. As such, the factual

basis established that Defendant’s actions and behavior in this incident was

consistent with the offense of third-degree rape, a violation of La.R.S. 14:43(A).

Finally, the offense of felony carnal knowledge requires Defendant to register as a

sex offender for fifteen years after his release.

Regarding the nature and background of the offender, there is little

information provided in the record as trial counsel did not put forth any mitigating

circumstances other than the fact Defendant had pled guilty rather than no contest

and that he was accepting responsibility for what happened to spare the victim from

a trial. Defendant contends he is a first offender who has a valid work history and

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educational history. However, we cannot confirm these contentions, as the court did

not order a presentence investigation (PSI) in this matter.

Finally, we look to other sentences imposed for the same offense. Defendant

cites State v. Lapoole, 51,199 (La.App. 2 Cir. 2/15/17), 215 So.3d 430, writ denied,

17-618 (La. 11/28/17), 230 So.3d 220; State v. Logwood, 37,178 (La.App. 2 Cir.

5/14/03), 847 So.2d 115; and State v. Quezada, 13-1318 (La.App. 4 Cir. 5/21/14),

141 So.3d 906, writ denied, 14-1328 (La. 1/23/15), 159 So.3d 1057, for the

contention that he does not deserve the maximum sentence because he is not as bad

as the defendants in the above-cited cases. We note that the defendant in Lapoole

was the victim’s foster parent, the defendant in Logwood was the victim’s uncle who

had taken her in at the age of eight after prior abuse, and the defendant in Quezada

was a family friend who took in the fifteen-year-old victim after she claimed she was

raped by her father. The supreme court has previously stated that a “maximum

penalty ‘is ordinarily reserved only for the worst kind of offense and the worst kind

of offender….’” State v. Lathers, 444 So.2d 96, 100 (La.1983).

Despite Defendant’s contention that he is not the worst of offenders, this court

has previously found that when an individual pleads guilty to a lesser offense that

does not adequately describe his behavior the trial court may consider the benefit

Defendant received by pleading to a lesser offense. See State v. Vallery, 04-1589

(La.App. 3 Cir. 4/6/05), 899 So.2d 836. In Vallery, the defendant was charged with

aggravated rape and subsequently pled guilty to forcible rape, lowering his

sentencing exposure from a mandatory life sentence to a maximum of forty years.

The trial court sentenced the defendant to thirty-five years at hard labor, and this

court affirmed the sentence despite the defendant being a first offender.

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Likewise, here, Defendant was charged with third degree rape and pled guilty

to carnal knowledge of a juvenile, thereby lowering his sentencing exposure from a

maximum of twenty-five years at hard labor to a maximum of ten years with or

without hard labor. In light of Vallery and the benefit obtained by Defendant in

pleading to carnal knowledge of a juvenile rather than third degree rape, we cannot

say the trial court abused its discretion in sentencing Defendant to a maximum

sentence of ten years at hard labor.

To the extent Defendant contends the trial court failed to consider La.Code

Crim.P. art. 894.1 in crafting his sentence, Defendant waived that claim when he

failed to address La.Code Crim.P. art. 894.1 in his motion to reconsider sentence.

As specifically stated in La.Code Crim.P. art. 881.1(E):

Failure to make or file a motion to reconsider sentence or to include a
specific ground upon which a motion to reconsider sentence may be
based, including a claim of excessiveness, shall preclude the state or the
defendant from raising an objection to the sentence or from urging any
ground not raised in the motion on appeal or review.

Although Defendant filed a lengthy “Motion to Reconsider Sentence,”

Defendant never cites La.Code Crim.P. art. 894.1 or argues that the trial court failed

to address all appropriate factors. The closest Defendant comes to allege this is

pointing out that he “has no prior convictions what so ever [sic], is not a repeat

offender, not a violent offender, nor under the Habitual Offender Law.” We find

that Defendant’s complaint regarding the trial court’s failure to articulate which

factors it considered under La.Code Crim.P. art. 894.1 was therefore waived.

Finally, Defendant contends pro se that his trial counsel promised him he

would receive either credit for time served or else probation and therefore he would

be going home the day he pled guilty. To the extent Defendant is contending trial

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counsel was ineffective or outright lied to him, that claim is relegated to post-

conviction relief, where a fuller record may be established.

V. Pro Se Assignment of Error Number Two and Case Docket Number 23-108

Defendant’s second pro se assignment of error is that the trial court lacked

subject matter jurisdiction because La.R.S. 14:80 requires the victim and defendant

to have an age difference of four or more years and Defendant is not four years older

than M.G. This assignment of error does not actually address an issue of subject

matter jurisdiction, as Defendant does not make an argument that Defendant’s

actions did not take place in Calcasieu Parish. Indeed, Defendant explicitly states

“[t]he question of jurisdiction is not about location of the offenses, it’s to the merits

of the charge.”

Additionally, this is the same issue raised in docket number 23-108,2 the writ

application consolidated with Defendant’s appeal. Therein, Defendant again argues

that because the age difference between himself and the victim is less than four years,

the trial court lacks subject matter jurisdiction. As noted by the State, Defendant’s

argument is not actually a jurisdictional challenge, but is a claim that he is innocent

of the offense. La.Code Crim.P. arts. 16 and 611(A) provide that a district court has

subject matter jurisdiction over all criminal cases arising within the boundaries of

the district: In this case, Calcasieu Parish. Because there is no dispute that the crime

occurred in Calcasieu Parish, the 14th Judicial District Court has jurisdiction over

the crime. Thus, Defendant’s contention is his appeal and writ application that the

trial court lacked jurisdiction is without merit.

2
See State v. Biggs, 23-108 (La.App. 3 Cir. __/__/__), ___ So.3d ____.

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VI. Pro Se Assignment of Error Number Three

In his third and final pro se assignment of error, Defendant contends he is

factually innocent because the medical exam conducted on M.G. did not find

evidence of sexual intercourse. This assignment of error is merely an extension of

Defendant’s second claim, namely that he is not guilty of felony carnal knowledge

of a juvenile.

In this assigned error, Defendant is contesting the evidence against him and

the State’s ability to prove the elements of the offense of felony carnal knowledge.

This court has previously held that a defendant’s “guilty plea, automatically, waived

any objection to the sufficiency of the evidence.” State v. Poirrier, 04-825 (La.App.

3 Cir. 12/1/04), 888 So.2d 1123, 1125. Defendant pled guilty to felony carnal

knowledge of a juvenile in exchange for not going to trial on a third-degree rape

charge. Defendant cannot now contend that he is innocent, and the State could not

prove him guilty of the felony carnal knowledge charge. Although Defendant may

argue actual innocence as a ground for post-conviction relief, his plea of guilt

specifically prevents him from challenging the sufficiency of his conviction.

DECREE

Defendant’s conviction is affirmed. Defendant’s sentence is affirmed, as

amended, to remove the trial court’s denial of parole eligibility. Further, we instruct

the district court to make an entry in the minutes reflecting this change and instruct

the district court to notify Defendant by sending written notice to him within thirty

days of rendition of this opinion.

CONVICTION AFFIRMED, SENTENCE AMENDED, WITH
INSTRUCTIONS.

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This opinion is NOT DESIGNATED FOR PUBLICATION.
Uniform Rules—Courts of Appeal, Rule 2-16.3.

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