State of Louisiana v. Charles Lee Fontenot

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

23-487

STATE OF LOUISIANA
VERSUS

CHARLES LEE FONTENOT

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 11377-17
HONORABLE DAVID A. RITCHIE, DISTRICT JUDGE

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VAN H. KYZAR
JUDGE

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Court composed of Van H. Kyzar, Charles G. Fitzgerald, and Gary J. Ortego, Judges.

AFFIRMED.

Annette Roach

Louisiana Appellate Project

P. O. Box 6547

Lake Charles, LA 70606-6547

(337) 436-2900

COUNSEL FOR DEFENDANT/APPELLANT:
Charles Lee Fontenot

Charles Lee Fontenot

MPEY/Mag-2

Louisiana State Penitentiary

Angola, LA 70712-9818

DEFENDANT/APPELLANT:
In Proper Person

Stephen C. Dwight

District Attorney

David S. Pipes

Denisse Parrales

Jason Trevor Brown

Assistant District Attorneys

Fourteenth Judicial District

901 Lakeshore Drive, Suite 800

Lake Charles, LA 70601

(337) 437-3400

COUNSEL FOR APPELLEE:
State of Louisiana

KYZAR, Judge.

Defendant appeals his convictions resulting from his guilty pleas to two
counts of indecent behavior with a juvenile and two counts of aggravated crime
against nature. Defendant further appeals his sentences of twenty years at hard labor
on each count of the former and fifty years at hard labor on each count of the latter,
all to run consecutively, without benefit of probation, parole, or suspension of
sentence. For the reasons set forth, we affirm the convictions and sentences.

FACTS AND PROCEDURAL HISTORY

On June 6, 2017, the State filed a bill of information charging Defendant,
Charles Lee Fontenot, with two counts of indecent behavior with a juvenile under
the age of thirteen, in violation of La.R.S. 14:81, and two counts of aggravated crime
against nature with a juvenile under the age of thirteen and an offender over the age
of seventeen years, in violation of La.R.S. 14:89.1. On June 19, 2017, Defendant
entered a plea of not guilty to each offense. Throughout the course of the case,
Defendant filed numerous pre-trial motions, including a motion to recuse the trial
judge, which was denied on July 29, 2019.

On November 20, 2019, the presentation of evidence commenced at trial. The
following day, Defendant withdrew his not guilty pleas and pled guilty to each
offense. No sentencing recommendation was made in connection with the plea. As
the case was resolved by guilty pleas, the facts were not fully developed at a trial,
although the mothers of the victims testified at the beginning of the trial before
Defendant pled guilty. However, the State asserted the following facts at the plea
hearing:

MS. PARRALES:

With regards to the indecent behavior with a juvenile, Your

Honor, Count I, Charles Lee Fontenot on or about July 15, 2015,
through April 4, 2017, did commit indecent behavior with a juvenile

with the intention of arousing or gratifying the sexual desires of either
person by committing a lewd or lascivious act upon the person or in the
presence of the minor, whose initials are K.S., whose date of birth is
September 26, 2006, a child under the age of 13 wherein there’s an age
difference of greater than two years between the two persons.

The minor would have testified, Your Honor, that the defendant
would come into her room almost every night, take her out of her room,
bring her into the living room, lay her on the couch, and touch her with
his hands. He would touch her around her bikini area, under her clothes.
It happened more than one time.

He threatened her not to tell anybody. One time he was getting
out of the shower and he asked her to get something. She brought it to
the bathroom and he made her touch his penis. She said he would say,
touch it, touch it, grab it. She said he would take her hand and make her
grab it. She said that she would let go and then he’d make her grab it
again.

That’s Count I and Count I, Judge.

With regards to Count IJI, Your Honor, the defendant, Charles
Lee Fontenot, on or between July 15, 2015, through April 7, 2017, the
defendant, Charles Lee Fontenot, did commit aggravated crime against
nature by having sexual intercourse wherein he penetrated the vagina
of the victim whose initials are T.F., whose date of birth is February 16,
2005, a person under the age of 13, and the offender is at least three
years older than the victim.

This victim, Your Honor, is his biological daughter. She
would’ ve testified that the defendant would look at her with her clothes
off. He told her that he needed to look at her to see if she had a hole, to
see if she could get pregnant when she grew up. He told her to lay down
in the bed and he was looking at her and then he was touching her. She
started crying and she asked him to stop and when she got up she saw
his exposed penis. She felt pressure up against her.

She would testify that he was playing around with her private.
He licked her private and she felt something hard pushing in.

This happened on more than one occasion. This happened within
the confines of Calcasieu Parish.

tJ

THE COURT:

All right, Count IV.
MS. PARRALES:

Charles Lee Fontenot, on or between, July 15, 2015, and April 7,
2017, the defendant did commit aggravated crime against nature by
committing oral sexual battery on the victim whose initials are N.F.,
whose date of birth is September 13, 2006, a person under the age of
13, and the offender is at least three years older. This victim, Your
Honor, is the defendant’s minor biological daughter.

She would’ve testified, Your Honor, that she remembers that
when her father was putting her younger brother to sleep he told her to
take a shower. She did. And then he told her to sit on the couch. She
would’ve stated that he told her that he was going to show her what
boys and girls do.

She would’ve testified that he showed her naked people on his
phone and they were doing what boys and girls do. He showed her
pictures on YouTube on his phone. She would’ve told you that what
they were doing is engaging in sex. At that point in time her father
licked her privates. She said it was -- or she would have said that it was
very disgusting.

This happened one time in the living room at their house in
DeQuincy. This occurred within the confines of Calcasieu Parish.

On December 16, 2019, Defendant filed a pro se motion to withdraw his guilty
pleas, which the trial court subsequently denied following a January 10, 2020
hearing.

On June 5, 2020, Defendant filed a motion to reconsider the motion to recuse
the trial judge, a motion to continue sentencing, and a motion to reconsider the
motion to withdraw his guilty pleas, all of which were denied. On that same day,
Defendant was sentenced to twenty years at hard labor on each count of indecent
behavior with a juvenile and fifty years at hard labor on each count of crime against

nature. The trial court also ordered the sentences to be served without the benefit of

Neal

probation, parole, or suspension of sentence and to run consecutively, equating to a
140-year sentence.

On June 30, 2020, Defendant filed a motion to reconsider his sentence.
Following a hearing on December 18, 2020, the trial court denied Defendant’s
motion and maintained his original sentence. Subsequently, on January 26, 2021,
Defendant filed an application for post-conviction relief, which was denied on
January 22, 2022. He filed an additional application for post-conviction relief on
July 6, 2021. Ultimately, the trial court granted Defendant an out-of-time appeal on
January 24, 2023.

Defendant now appeals, asserting two counsel-filed assignments of error and
two pro se-filed assignments of error.

DISCUSSION
Motion to Withdraw Guilty Plea

In his first pro se assignment of error, Defendant argues that the trial court
erred in denying his motion to withdraw his guilty pleas as he was not represented
by counsel during the hearing on the motion to withdraw. He also contends that the
trial court failed to inform him of his entitlement to counsel during the hearing since
he did not request to represent himself. Defendant argues that the State had the
burden of proving that he knowingly and intelligently waived his constitutional right
to assistance of counsel. He further claims that he entered his guilty pleas under
duress and coercion by his counsel as well as the erroneous denials of his pretrial
motions. Defendant asserts that he would not have pled guilty in the absence of those
circumstances.

A guilty plea operates as a waiver of all non-jurisdictional defects in the trial
court proceedings occurring prior thereto. State v. Crosby, 338 So.2d 584 (La.1976).

We must, however, review the question of the constitutionality of the guilty plea for

if it was not validly entered, it must be set aside. “[I]n order for a plea of guilty to be
valid (therefore precluding on appeal a review of prior non-jurisdictional defects), it
must be an intelligent, understanding and voluntary waiver of the defendant’s
constitutional right to a jury trial with all of the consequences and rights attending
such a trial[.]” State v. Torres, 281 So.2d 451, 453 (La.1973).
We review the decision of the trial court to deny the motion to withdraw for

an abuse of discretion:

The discretion to allow the withdrawal of a guilty plea

under La. C. Cr. P. art. 559(A) lies with the trial court and

such discretion cannot be disturbed unless an abuse or
arbitrary exercise of that discretion is shown. State v.

Martin, 48,045 (La. App. 2 Cir. 5/15/13), 115 So.3d 750.

A defendant has no absolute right to withdraw a guilty

plea. /d.
State v. Clause, 22-545, p. 4 (La.App. 3 Cir. 1/25/23), 354 So.3d 1269, 1274 (quoting
State v. McGarr, 52641, 52,642, p. 10 (La.App. 2 Cir. 4/10/19), 268 So.3d 1189,
1196).

Defendant first claims that the denial of his motion was an error, in part,
because he was not represented by counsel during the hearing on the motion. We
disagree. This is not a case where Defendant did not have counsel since his appointed
counsel, Mr. Casanave, had neither withdrawn from the case nor been withdrawn by
order of the trial court. Mr. Casanave was present at the hearing and participated in
it to some extent. The trial court simply gave Defendant the right to speak and argue
on his own behalf regarding those points he wished to make. The question is whether
Defendant had the right to be represented by new counsel during the hearing under
the circumstances presented, where he asserted his counsel’s ineffectiveness and the
pressure placed on him to plead. We think not, but the resolution of that issue is not
necessary to resolve Defendant’s complaint.

Defendant, while represented by Mr. Casanave, was given a full hearing on

his motion to withdraw. He was then given another opportunity to present and argue

his request to withdraw, while represented by his new counsel, Mr. Cormier, during
the hearing on his motion to reconsider his motion to withdraw, which was heard
just prior to his June 5, 2020 sentencing. The same grounds, as well as new grounds,
were presented during the hearing, after which the trial court denied the motion to
reconsider, thus, again denying Defendant’s motion. Essentially, Defendant was
given two opportunities to present his motion to withdraw, and he was fully
represented by counsel during the second hearing. Thus, considering the unique
circumstances of this case, we find that Defendant was not denied his right to counsel
in considering the motion to withdraw. Any error that may have occurred by
proceeding with the original hearing under the circumstances presented, was cured

when the trial court heard the same arguments on the motion to reconsider while

Defendant was represented by his newly appointed counsel.’

Having determined that Defendant was not denied the right to counsel in his
motion to withdraw, we turn to the remaining allegations of error in the denial of the
motion: that the pleas were entered under duress and were not free and voluntary.
We find no merit in these arguments.

In McGarr, 268 So.3d at 1196—97, the second circuit expounded on the burden
of proof to set aside a guilty plea:

Under La. C. Cr. P. art. 556.1, a valid guilty plea must be a
voluntary choice by the defendant and not the result of force or threats.
La. C. Cr. P. art. 556.1 also provides that prior to accepting a guilty
plea, the court must personally inform the defendant of the nature of the
charge to which the plea is offered, any mandatory minimum penalty,
and the maximum possible penalty. When the record establishes that an
accused was informed of and waived his right to a trial by jury, to
confront his accusers, and against self-incrimination, the burden shifts
to the accused to prove that despite this record, his guilty plea was
involuntary. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23
L.Ed.2d 274 (1969); State v. Cooper, 52,408 (La.App. 2 Cir. 11/08/18),

During a previous hearing the same day, the State pointed out to the trial court that
Defendant had multiple attorneys appointed to represent him, to which representation he
repeatedly objected.

261 So0.3d 975; State v. Martin, [48,045 (La.App. 2 Cir. 5/15/13), 115
So.3d 750].

An express and knowing waiver of those rights must appear on
the record, and an unequivocal showing of a free and voluntary waiver
cannot be presumed. Boykin, supra; State v. Johnson, 51,430 (La.App.
2 Cir. 07/05/17), 224 So.3d 505; State v. Kennedy, 42,850 (La.App. 2
Cir. 01/09/08), 974 So.2d 203. A plea of guilty normally waives all
nonjurisdictional defects in the proceedings prior to the plea, including
insufficiency of the evidence. State v. Crosby, 338 So.2d 584 (La.
1976); State v. Johnson, supra; State v. Stephan, 38,612 (La.App. 2 Cir.
08/18/04), 880 So.2d 201. A validly entered guilty plea, or plea of nolo
contendere, waives any right a defendant might have had to question
the merits of the state’s case and the factual basis underlying the
conviction. State v. Bourgeois, 406 So.2d 550 (La. 1981); State v.
Cooper, supra; State v. Hardy, 39,233 (La.App. 2 Cir. 01/26/05), 892
So.2d 710.

When ruling on a motion to withdraw a guilty plea, the trial court
should look beyond the Boykinization and consider all relevant factors.
State v. Griffin, 535 So.2d 1143 (La.App. 2 Cir. 1988); State v. Green,
468 So.2d 1344 (La.App. | Cir. 1984); State v. Banks, 457 So.2d 1264
(La.App. 1 Cir. 1985). A court, when called upon to ascertain an
accused’s state of mind, has the power, notwithstanding a record waiver
of constitutional rights, to determine whether other factors present at
the time of a guilty plea, whether inside or outside the plea colloquy
record, were sufficient to render the plea involuntary or unintelligent.
State v. Lewis, 421 So0.2d 224 (La. 1982); State v. Galliano, 396 So.2d
1288 (La. 1981); State v. Griffin, [53,276 (La.App. 2 Cir. 1/15/20), 289
So.3d 212].

In order to properly exercise its discretion and in order for the
appellate court to review the exercise of that discretion, the trial court
should conduct a hearing or inquiry on defendant’s motion to withdraw
a guilty plea. State v. Lewis, supra; State v. Griffin, supra. Reasons
supporting withdrawal of the plea would ordinarily include factors
bearing on whether the guilty plea was voluntarily and intelligently
made, such as breach of a plea bargain, inducement, misleading advice
of counsel, strength of the evidence of actual guilt, or the like. A mere
change of heart or mind by the defendant as to whether he made a good
bargain would not ordinarily support allowing the withdrawal of a
bargained guilty plea. /d.

We first review the record to determine whether Defendant was informed of
and waived his rights to a trial by jury, to confront his accusers, and his privilege
against self-incrimination, as an express and knowing waiver of those rights must

appear on the record rather than be presumed. /d.

On November 21, 2019, Defendant’s counsel advised the trial court that
Defendant wished to change his plea of not guilty to guilty to all four counts.
Thereafter, Defendant stated his full name, age, and education level. He further
acknowledged that he had an opportunity to discuss his case with his counsel and
that he read, understood, and signed the “Felony Plea of Guilty and Waiver of
Constitutional Rights” form, which form he had also discussed with his counsel.
Thereafter, the trial court noted the crimes which were being pled to as well as the

minimum and maximum penalties for each crime.

The trial court then proceeded to inform Defendant of his Boykin rights.” It
informed Defendant that by entering a plea of guilty for each offense, he was giving
up certain legal rights, including the right to a speedy and public jury trial; the right
to continue his jury trial; the right to the attorney of his choice; the right to see, hear,
and question witnesses; the right to subpoena witnesses to testify on his behalf; the
right against self-incrimination; the right to presumed innocence; and the right to
appeal from a guilty verdict. Thereafter, Defendant asserted that he wanted to
proceed to enter a guilty plea to each offense. When the trial court questioned
Defendant as to his state of mind and whether he was “under the influence of drugs,
alcohol, or other mind-altering substance[]” or had “been forced, threatened, or
pressured” into entering the guilty pleas, Defendant denied such. Defendant also
acknowledged that the trial court had the discretion to sentence him “to any sentence
allowed by the law.”

The State then presented the factual basis for each charge, after which the
following colloquy occurred:

THE COURT:

Did you hear those facts, Mr. Fontenot?

” Boykin v. Alabama, 395 U.S. 238, 89 $.Ct. 1709 (1969).

MR. FONTENOT:

Yes, Your Honor.
THE COURT:

As those facts relate to the charge in Calcasieu Parish--
MR. FONTENOT:

Yes, Your Honor.
THE COURT:

--do you admit to those facts?
MR. FONTENOT:

Yes, Your Honor.
THE COURT:

All right.

All right. So, based on your admission to those facts formally to
the charges of indecent behavior, Count I and Count II, both counts of
indecent behavior with a juvenile, how do you plead?

MR. FONTENOT:

Guilty.
THE COURT:

All right. I find your guilty plea to each of those counts has been
freely and voluntarily given and order it to be entered of record. I do

find there is a sufficient factual basis to support the charge.

Now, on the aggravated crime against nature.

All right, Mr. Fontenot, did you hear those facts?
MR. FONTENOT:

Yes, Your Honor.

THE COURT:

Do you admit to those facts?
MR. FONTENOT:

Yes, Your Honor.
THE COURT:

Based on your admission to those facts formally to the charge of
ageravated crime against nature under Count III, how do you plead?

MR. FONTENOT:
Guilty.
THE COURT:

All right. I find your guilty plea to that count has been freely and
voluntarily given and order it to be entered of record.

All right, Count IV.

All right, Mr. Fontenot, you heard those facts?
MR. FONTENOT:

Yes, Your Honor.
THE COURT:

Do you admit to those facts?
MR. FONTENOT:

Yes, Your Honor.
THE COURT:

All right. Based on your admission to those facts formally to the
charge of aggravated crime against nature under Count IV, how do you
plead?

MR. FONTENOT:

Guilty.

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THE COURT:

All right. I find your guilty plea to that charge has also been
freely and voluntarily given and order it to be entered of record.

All right, and you do understand that even though we don’t have

the sex offender registration notifications forms filled out here that that

will be -- that you -- because of your guilty pleas here today you will

be a registered sex offender?

MR. FONTENOT:

Yes, Your Honor.

We find that the record fully establishes that Defendant was informed of and
waived his rights to a trial by jury, to confront and question his accusers, his privilege
against self-incrimination, and other rights attendant to trial. His express and
knowing waiver of those rights clearly appears on the record, unequivocally showing
a free and voluntary waiver of those rights prior to his pleas. As such, the burden
shifts to Defendant to prove that despite this record, his guilty pleas were not
voluntarily entered. McGarr, 268 So.3d 1189.

At the November 21, 2019 hearing on his motion to withdraw, Defendant
asserted, in part, that he should be allowed to retract his guilty pleas due to
ineffective assistance of counsel, who pressured him to plead guilty; actual
innocence; inability to present evidence to prove said innocence; duress; and lack of
understanding.” Defendant stated that on the first day of trial, his counsel, Mr.
Casanave, advised him to plead guilty to prevent the victims from having to testify
and so that he would not “look bad” in front of the jury. Defendant claimed that he
declined to plead guilty at first, but that after Mr. Casanave informed him that he

would “get credit for time served,” he decided to plead guilty, thinking he would “be

able to go home” that day. Defendant testified that he was “stressed out” regarding

This claim was repeated at the hearing on the motion to reconsider the motion to
withdraw.

1]

the situation and that he ultimately signed the plea agreement without understanding
the consequences of the plea. He concluded his argument by claiming his innocence
and requesting that the trial court retract his guilty pleas so he could present evidence
demonstrating his innocence.

In opposition, the State argued that Defendant had no grounds to withdraw his
pleas. It argued that although Defendant attempted to claim his innocence, two
witnesses testified at trial to his own admission of guilt. Moreover, the State asserted
that Defendant, himself, stated that he was guilty as charged on numerous occasions
prior to being Boykinized. The State also argued that Defendant waived his right to
prove his innocence by entering the guilty pleas, which he did voluntarily. In
addition, it contended that Defendant was not misrepresented by either the State or
the trial court and that Defendant entered guilty pleas without the State presenting
an offer.

Thereafter, the trial court gave Defendant an opportunity to respond to the
State’s argument. According to Defendant, he admitted to being guilty so he could
visit with his children. He claimed that his ex-girlfriend, who was the mother of his
two sons, told him that she would allow him to see his sons if he pled guilty.

After Defendant finished his rebuttal, the trial court stated the following:

THE COURT:

Ill give you one more chance to say something in just a minute.

You know, as I looked at -- you know, I looked at your motion. You

gave five reasons. It says, “The defendant is truly innocent of this

crime.” It says, number two, “Defendant didn’t have a chance to present

evidence to prove said innocence. Defendant was under duress when
instructed by counsel to sign said plea. Defendant did not understand

all of said plea when he was instructed to sign the plea and did not have

effective counsel.”

Well, let me just kind of wrap all those things up. You know, we
spent a long time picking that jury in this case, and then the State -- and

then opening statements were given and then the State started putting
on its case. You know, the mothers of the three victims in this case took

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the stand, your ex-wife and the -- your ex-girlfriend, the mother of the
youngest victim in this case, who you had a telephone conversation
with for I think Ms. Parrales said was 38-minutes long. That was an
extremely powerful, powerful, piece of evidence. For you to say, and
I’m just going to tell you, you know, after that, as that audio was
playing, I thought wow, what is Mr. Fontenot even going to argue? How
is he even possibly going to overcome his confession in this audio tape?
She asked you these questions and you said, well, I’m sick. I mean you
were making all these statements and acknowledging your guilt. She
said how could somebody do something like this to children? And you
said, look, I’m sick, I’m sick, and then you started blaming it on the
drugs and she said, no, that’s not -- no, no, no, don’t you go there, don’t
you go there, and then she says, we’ ll, how do I know you’re not going
to do this to your boys? You know, you want me to bring your sons to
see you. How do I know that you just not going to do this to any child
that you see? You said, oh, wait, time out. I’m not a homosexual. I
wouldn’t do this to boys. It doesn’t work that way. I mean, you know,
you had this conversation to where, you know -- I mean it couldn’t have
been more clear that you understood --

MR. FONTENOT:
I had to convince her.
THE COURT:

I gave you your chance. Now I’m explaining to you. It was so
clear that you were having this conversation. You were explaining to
her and you kept saying to her that because of your love and concern
for those children you were going to plead guilty because you didn’t
want them to have to go through any more difficulty and have to
continue to ask -- to answer questions or to be asked questions about
what happened to them and you wanted to get this over for them. You
were going to plead guilty to end -- you know, just so they didn’t have
to continue to have to, you know, go through the difficulty that they
were having to go through. You told her that. You said, look, don’t
worry. I’m going to plead guilty. She said why? Why are you going to
do it? You said because I’m guilty. She said, well, why would you do
that? And you said because I’m guilty. And she said, I’m trying to wrap
my head around how somebody could do this, and you said because I’m
sick, because I’m sick.

She was angry. She was trying to figure out how something like
this could happen. You were trying to hold on and explain and justify.

Anyway, the long story short is that was powerful. That was very,
very, very powerful evidence. She was a very, very powerful witness.
That evidence is in the record. That evidence is there for appeal. That
evidence is there. It’s in the record, okay. Your ex-wife, she was a much
more powerful witness than you give her credit for and then the thing
is when it looked like, you know, your children -- you’re saying your

13

children would’ve said all these things, your children -- if you think
your children would’ve said, oh, mom made me say this stuff, well,
even if that were the case you still had another child there that was the
child of your girlfriend that said you did these things. So, I don’t know
how you were going to explain that, you know, but the bottom line is
they were up next to testify. You know, we were at the end of the trial.
The trial was almost over and yet, you know, if it was so clear that they
were going to say that, that’s where we were. That’s the point of the
trial where we were and you had the opportunity to say, okay, this is
the time I’ve been waiting for. I’ve been in jail for almost three years.
This is where my children are going to vindicate me and they’re going
to come up here and say their mother told them to say it and they’re
going to say there’s my dad sitting there. He never did this to me, you
know. Let’s get them on the stand. I mean, you know, this is the time
I’ve been waiting for. Let’s get my children up there so they can say
my dad never did this to me. This is the time I’ve been waiting for, but,
you know, you didn’t do that, okay. That audio was powerful. It was a
clear confession. In fact, 1 will tell you when I was giving those jurors
those certificates after your plea, I was giving them, you know, their
juror certificates and their work excuses and their checks for their jury
service, they actually said to me what are we even doing here? After we
heard that confession, why were we even here? Why were we even
going through all of this? I mean he confessed. I mean that evidence
had the same effect on them as it did on me when they heard it, you
know.

Now, the bottom line is, you know -- and then you say to me, you
come in here, you didn’t have a chance to present evidence. You hada
chance. I told you that there was a jury out there. We can finish this trial
right now. Let’s come on in. If you’re saying nothing happened, let’s
bring these jurors in. I don’t want to play any games. Let’s bring these
jurors in. Let’s bring them in. You said, no, no, no, I’m guilty, I’m
guilty, because this isn’t about -- you know, we went through all that
stuff. We went through all that. These children had to go through a lot
to prepare themselves. This is hard on children, very, very, very hard
on children. They have to prepare themselves to get up there and take
that stand to talk about -- you know, most people who are married or
who have a consensual sexual relationship wouldn’t want to take this
witness stand and talk about even just, you know, the details of just a
normal, natural, consensual sexual event that they had last night in front
of all these strangers in this courtroom. So, imagine how difficult it
must be for a child to have to come in and talk about something so
degrading and horrible that they’re saying happened to them in the
courtroom. So, they have to prepare themselves and build up for that
and so for them to have had to prepare themselves for that, to come in
there, and then they were ready to do that, and that wasn’t the first time
they’ve had to get ready for trial because it had been continued
previously.

So, you pled and then that relieved them of having to get up there
and face the person that they said did this to them in front of a

14

courtroom full of strangers and in front of the person that they said did
this to them and then -- and so to me, I thought, well, maybe you’re
finally, finally, doing something -- doing what you told your ex-
girlfriend two years earlier on that phone call that you were going to
do; that you were you going to plead so that they didn’t have to go
through all this trauma of having to go through, you know, the court
process and that’s what I thought maybe you were finally going to do
even though it was -- you know, they had already had to endure
everything they had to endure up to that point, but, anyway, then to say
that you didn’t know. First of all, I don’t find it’s credible, item number
one or item number two, to say you were truly innocent and then say
you didn’t have a chance to present evidence because you did, and to
say you were under duress when you made your plea. I mean -- and say
you didn’t understand and then to say your lawyer said you were going
to get credit for time served. Your lawyer went over this plea of guilty
and waiver of constitutional rights form with you. I asked you that and
I know they did, your lawyer did, and he wrote on here the crimes you
were pleading guilty to and the sentencing ranges, two to 25 years and
the two years was without benefit of probation, parole, or suspension
of sentence on each count of indecent behavior with a juvenile;
aggravated crime against nature, two counts, each of which was a 25-
year minimum and a 99-year maximum. The 25-years was without
benefit of probation, parole, or suspension of sentence. Your lawyer
went over that with you, with that mandatory minimum sentencing
range, before I went over that with you and then I discussed it with you
and then I discussed it with you. So, to tell me your lawyer told you you
were going to get credit for time served when I know that your lawyer
also went over this form with you and told you that it was a 25-year
minimum without benefit of probation, parole, or suspension of
sentence, mandatory minimum? I mean that’s not credible to me. I
mean, you know, yeah, you get credit for the time that you’ve served.
I’m sure he told you that. Yeah, you get credit for the time that you’ve
served in jail toward the 25 years, you know, but obviously you had --
it’s not credible for you to pretend that, oh, you thought that meant if
he told you you’d get credit for the time you’ve been in toward the 25
or whatever your sentence is ultimately that that’s supposed to mean
that, oh, some how [sic] you don’t have to do the 25-year mandatory
minimum? I mean that’s not credible, Mr. Fontenot, and so, you know,
look, when you’ve got a confession -- I’m just going to tell you this.
I’ve been a judge for over 16 years and I’ve tried a lot of cases. This --
and these kind of cases are very difficult, these sex offenses of all the
children are very difficult cases to try and I’m telling you, this is the
most powerful and one of the strongest cases by the State that I’ve ever
seen. It’s very rare that you have such a confession and a conversation
like that where the defendant, the accused, is so candidly having a
conversation and confessing in such a way to where you know it’s true.
In other words, there’s a question sometimes where people can -- I
mean there’s an issue sometimes where people can argue, well, maybe
there was a faise confession and they can try to argue it that maybe
there’s some reason there would’ve been a false confession, there’s no
scenario under which | can see where this could be argue[ed] to where

15

you could -- because even the stuff that you’re saying, you know, it’s
just not credible to say -- even if she said, well, you’re not going to see
your kids unless you plead, well, in light of the fact that -- I mean your
sons unless you were to plead to this. You know, if she’s saying unless
you take responsibility for what you did to your daughters, your other
kids, before she would -- I mean does that mean that -- 1 mean | don’t
even know because other stuff that you said is not credible and
consistent, so I don’t have any reason to believe that what you’re saying
now is credible, you know, or happened exactly the way you said it
happened, you know.

So, I mean I’m -- J just think that you’re -- it would be so grossly
unfair and unjust in light of the way the evidence happened, the way
that trial happened, in light of the overwhelming weight of the evidence
against you at that trial to allow you to withdraw your guilty plea. It
would be so unfair and unjust to the victims. I mean just the
overwhelming strength of the State’s case and just the way everything
happened. Like I said, I made sure your lawyer went over this with you.
I went over this with you. So, I just don’t find that any of your
allegations are credible and your reasons for withdrawing your guilty
plea and you’re right. If you would’ve hired my brother-in-law I
wouldn’t have let him enroll in this case, even if you’d have had the
money to do it. At this stage of the game, you know, you would not
have been allowed to manipulate the process to try to get around me
because you would’ ve already pled guilty. You wouldn’t be allowed to
come in and try to get me off this case.

MR. FONTENOT:

We tried before and you denied the recusal anyway. So.

THE COURT:

Anyway, look, that’s -- I don’t find that -- my ruling and all the
reasons for it stand and I’m going to deny the motion to withdraw the
guilty plea for all the reasons I gave and I’m going to set sentencing[.]
Following the June 5, 2020 hearing on Defendant’s motion to reconsider, the

trial court again denied the motion to withdraw after hearing argument from
Defendant’s newly-appointed counsel and after hearing more testimony directly

from Defendant. The trial court concluded his ruling as follows:

THE COURT:

Mr. Fontenot, I’m going to get to that in a minute, but the bottom
line is, you know -- well, I’ go ahead and address it now. Look, candid

16

advice from your lawyer about the weight of the evidence and how the
evidence looks, you know, I mean you can call that duress and stress,
but I mean your lawyer was telling you, saying something to you, that
you should’ve been seeing yourself as far as --

MR. FONTENOT:
Well, but that’s --
THE COURT:

--listening to that tape, listening to that audio. I mean he was
telling you how it looked. He was telling you how it looked I mean to
the jurors. I mean he was reading their faces, he was telling you that. If
that’s what he was telling you I mean, you know -- anyway, the bottom
line is I’m going to finish my ruling on this, but, look, there is a -- there
was no indication that -- anyway, we never got to instructing the jury
phase of this and so we don’t know, you know, whether there would’ve
been a unanimous verdict or not in this case to where that would’ve
been an issue because we didn’t get to the trial because we didn’t get to
finish the trial because there was a guilty plea.

So, anyway. So, I don’t see that there’s any valid grounds. You
know, to say there was pressure from his lawyer, you know, based on
advice, candid advice, he was getting, you know -- anyway, I just don’t
see any valid grounds in this motion. So, I’m going to deny the Motion
to Reconsider the Motion to Withdraw the Guilty Plea.

Applying the law to the facts of this case, we find that the trial court did not
abuse its discretion by denying Defendant’s motion to withdraw his guilty pleas.
First, the transcript of the January 10, 2020 hearing indicates that Defendant chose
not to be represented by counsel due to his complaint of ineffective assistance of
trial counsel, which was one of his reasons for his motion to withdraw. His trial
counsel was actually present at that hearing. Regardless, Defendant was given a
second hearing on his motion to withdraw during the hearing on his motion to
reconsider, where he was represented by his newly-appointed counsel. Second, a
review of the plea transcript indicates that Defendant freely and voluntarily pled
guilty after being fully advised of his rights. He stated before the trial court that he
was not coerced or under duress when he pled, and he admitted that he read and

signed the plea agreement form which also included a complete statement of rights.

17

All in all, Defendant has failed to show that there was an infringement on his
constitutional rights. Rather, he sought to withdraw his guilty pleas after he realized
the penalties he would be facing. The trial court fully considered the totality of the
circumstances surrounding Defendant’s pleas and found that they were entered
voluntarily and intelligently and were not the product of duress or coercion. Given
all of the evidence and argument presented, the trial court simply found Defendant’s
claims of duress and coercion not credible. As such, the trial court did not abuse its
discretion. Accordingly, this assignment of error is dismissed as being without merit.
Motion to Recuse

In his first counsel-filed assignment of error and second pro se assignment of
error, Defendant argues that the trial court erred in denying his motion to recuse and
his motion to reconsider the motion to recuse. Specifically, he asserts that the trial
court’s ruling on the motion to recuse was procedurally flawed and an abuse of
discretion, as the trial judge neither self-recused nor referred the motion for a hearing
and ruling before another judge, even though the motion set forth a ground for
recusal. As both assignments of errors relate to the motion to recuse, we will consider
them simultaneously.

We must first determine whether Defendant can seek appellate review of the
motion recuse and the failure to grant the motion to reconsider the motion.

The general rule is that a plea of guilty or nolo contendere,
voluntarily and understandingly made, constitutes a waiver of
nonjurisdictional defects and defenses, including claims of violation of
constitutional rights prior to the plea. A defendant normally waives any
nonjurisdictional error by his plea of guilty or nolo contendere. “Under
both state and federal jurisprudence, an unqualified plea of guilty
waives all nonjurisdictional defects occurring prior thereto, and
precludes review thereof either by appeal or by post-conviction
remedy.” State v. Crosby, 338 So.2d 584, 588 (La.1976).

State v. Maffett, 47,430, pp. 1-2 (La.App. 2 Cir. 9/26/12), 105 So.3d 138, 144

(Brown, Chief Judge, concurring), writ denied, 12-2464 (La. 4/12/13), 111 Se.3d
1017.

18

We have already determined that Defendant’s guilty pleas were
constitutionally valid. Since his convictions resulted from the guilty pleas and since
he did not reserve any issues for appeal pursuant to State v. Crosby, 338 So.2d 584
(La.1976), we find that he waived his right to complain of all non-jurisdictional
defects, including the denial of the motion to recuse the trial judge and the denial of
the motion to reconsider the motion to recuse. The alleged error, the failure to recuse
or to grant a hearing before another judge under the facts set forth, is not a
jurisdictional defect. State v. Sede, 08-547 (La.App. 5 Cir. 2/10/09), 8 So.3d 702,
writ denied, 09-1023 (La. 3/5/10), 28 So.3d 1006. Accordingly, this assignment of
error lacks merit.

Excessive Sentence

In his second counsel-filed assignment of error, Defendant asserts that the
consecutive upper-range sentences imposed for the crime of indecent behavior with
a juvenile and the consecutive mid-range sentences imposed for the aggravated
crime against nature are unconstitutionally excessive as they are nothing more than
cruel and unusual punishment.

Asa preliminary matter, we note that Defendant is not precluded from seeking
a review of the sentences imposed because of his tendered guilty pleas. Louisiana
Code of Criminal Procedure Article 881.2(A)(2) states: “[a] defendant cannot appeal
or seek review of a sentence imposed in conformity with a plea agreement which
was set forth in the record at the time of the plea.” However, this court has
consistently held that it is “not automatically precluded from reviewing a sentence
unless the plea agreement provides a specific sentence or sentencing cap.” State v.
Curtis, 04-111, p. 2 (La.App. 3 Cir. 8/4/04), 880 So.2d 112, 114, writ denied, 04-
2277 (La. 1/28/05), 893 So.2d 71. The plea agreement in this case did not state

specific sentences or sentencing caps, and Defendant did not explicitly waive the

19

right to appeal his sentences in the plea agreement. As such, Defendant is not
precluded from seeking review of his sentences, and we consider his arguments here.

Louisiana courts have laid out the following guidelines regarding excessive
sentence review:

Sentences within the statutory sentencing range can be reviewed
for constitutional excessiveness. State v. Sepulvado, 367 So.2d 762
(La.1979). In State v. Barling, 00-1241, 00-1591, p. 12 (La.App. 3 Cir.
1/31/01), 779 So.2d 1035, 1042-43, writ denied, 01-838 (La. 2/1/02),
808 So.2d 331, a panel of this court discussed the review of excessive
sentence claims, stating:

La. Const. art. I, § 20 guarantees that, “[n]o law
shall subject any person to cruel or unusual punishment.”
To constitute an excessive sentence, the reviewing court
must find the penalty so grossly disproportionate to the
severity of the crime as to shock our sense of justice or that
the sentence makes no measurable contribution to
acceptable penal goals and is, therefore, nothing more than
a needless imposition of pain and suffering. State v.
Campbell, 404 So.2d 1205 (La.1981). The tria! 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. | Cir. 1991). Additionally,
it is within the purview of the trial court to particularize
the sentence because the trial judge “remains in the best

20

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.

State v. Soileau, 13-770, pp. 4-5 (La.App. 3 Cir. 2/12/14), 153 So.3d 1002, 1005—
06 (alteration in original), writ denied, 14-452 (La. 9/26/14), 149 So.3d 261.

Louisiana Revised Statutes 14:81(H)(2) provides an enhanced penalty for the
offense of indecent behavior of a juvenile where the victim is under the age of
thirteen years and the offender is seventeen years of age or older. It provides that the
offender shall be imprisoned at hard labor for not less than two nor more than twenty-
five years, with at least two years to be served without the benefit of probation,
parole, or suspension of sentence.

Additionally, pursuant to La.R.S. 14:89.1(C)(2), the enhanced penalty for the
offense of aggravated crime against nature, with a victim under the age of thirteen
years and the offender seventeen years of age or older, is imprisonment at hard labor
for not less than twenty-five years nor more than ninety-nine years, with at least
twenty-five years to be served without the benefit of probation, parole, or suspension
of sentence.

Prior to the trial court imposing Defendant’s sentences, the State and the
defense presented impact statements. The victims testified to the pain, disgust, and
trauma caused by Defendant’s actions and the lifelong suffering they would have to
endure as a result. Defendant’s mother and aunt testified to his character, stating that
Defendant was “a big teddy bear” and that he loved his children. Then, Defendant
apologized to his victims and the mothers of his victims.

Afterwards, the trial court stated the following:

But in any event, you know, as I look at this whole situation and

I’m seeing just how -- you know, how -- you know, when I look at the

aggravating and mitigating factors in 894, Article 894.1 of the Code of

Criminal Procedure, I mean I would say that, you know, I guess you

could say that -- I’m sorry, let me get to that. I’m looking for some
mitigating -- I mean the only thing that I could possibly see that could

21

be considered a mitigating factor would be what you had mentioned,
which it says the defendant has no history of prior delinquency or
criminal activity or has led a law abiding life for a substantial period of
time before the commission of the incident crime, but I really don’t
even see that really as a mitigating factor because even though he
doesn’t have convictions, I mean apparently he’s been molesting
children for a long time. He just hadn’t been caught. So, I mean other
than that I don’t -- so, I don’t even really consider that a mitigating
factor and he’s been using drugs for a long time. I mean he’s admitted
that he’s been using meth and other things for a long time. So, I mean
he hasn’t been living a law abiding life. So, I mean he doesn’t have
convictions, but he hasn’t been living a law abiding life. So, I don’t
even consider that a mitigating factor and that’s the only possible
mitigating factor that’s here. This other list is not applicable, but there
are many other aggravating factors here.

] mean number four, the offender used his or her position or
status to facilitate the commission of the offense.

Number 11, the offense involved multiple victims or [incidents]
for which separate sentences have not been imposed. Well, I don’t
know. That may or may not -- anyway, I’ve examined Just all these and
without listing all of them I just think that just the crime itself caused,
and you heard from the victims themselves, how this is going to cause
them I mean, you know, [N.F.] said I’m afraid of every man I see.
That’s what you did to your child. I’m afraid of every man I see.

And she’s praying for you to you to be able to forgive yourself
one day and, you know, so you want to say that these -- you want to --
I mean these children are sitting here listening to you and you basically
-- you’re trying to walk this tightrope between saying that -- you’re not
wanting to call them liars and you’re trying to blame it all on their
mother, but the only -- but you are saying these children -- I mean these
children aren’t toddlers. These children are old enough to speak for
themselves. 1 mean, you know -- and so they came up here and just
poured their hearts out a few minutes ago.

Anyway, but look, at this time on the charges of -- anyway, just
because of the severe nature of these charges, the devastating impact
that its [sic] had on the victims of this crime, the way that you have
continued -- you manipulated these children, you manipulated
everybody in this process in order to continue to perpetrate these crimes
against your own children and against the -- it would have been [K.S.],
right, and all the lives that have been affected by what you’ ve done, and
you heard just the raw emotion and the way it has impacted everybody
just because of the harm that you’ve done to everyone and the danger
that you have just because of the way [you] just have refused to accept
any responsibility or acknowledge any wrongdoing in this whole
process. If you were to ever get out of prison you -- there’s no doubt in

22

my mind that with the way you think, the way you manipulate people,

the way you refuse to see reality that you would do this again. There’s

no doubt in my mind. I’m going to impose the following sentences.

The trial court went on to sentence Defendant to serve twenty years at hard
labor, without the benefit of probation, parole, or suspension of sentence, on each
count of indecent behavior with a juvenile. It further sentenced Defendant to serve
fifty years at hard labor, without the benefit of probation, parole, or suspension of
sentence, for each count of aggravated crime against nature. The trial court ordered
the sentences to be served consecutively, which equated to a 140-year total sentence
for all of the crimes.

To support his excessiveness claim, Defendant notes that he was a first felony
offender. He argues that the trial court focused more on the aggravating factors rather
than the mitigating factors, such as the psycho-sexual evaluation that stated he was
not attracted to children, his history of drug abuse, and the fact that he was molested
as a child. Defendant also contends that it was improper for the trial court to consider
the other alleged offenses, as he did not have any pending charges or convictions.
Moreover, he argues that it was improper for the trial court to require him to serve
consecutive rather than concurrent sentences since the convictions arose out of the
same course of conduct.

In opposition, the State asserts that Defendant’s sentences are not
unconstitutionally excessive as the trial court considered both mitigating and
aggravating factors before imposing the sentences. It also asserts that it was not
improper for the trial court to consider the other offenses committed by Defendant
against the victims in different jurisdictions as his conduct was at issue. Moreover,
the State contends that Defendant’s argument against the trial court’s imposition of

consecutive sentences is without merit. According to the State, Defendant’s actions

did not stem from a single incident or course of conduct but from separate,

23

independent incidents that occurred over the course of months. Likewise, the State
argues that concurrent sentences are not mandatory. Lastly, it contends that the trial
court considered Defendant’s lack of criminal history; however, the trial court
weighed heavily on how Defendant used his position of power to facilitate the
commission of these offenses on his two daughters and the daughter of his ex-
girlfriend.

In State v. Baker, 06-1218 (La.App. 3 Cir. 4/18/07), 956 So.2d 83, writs
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 (La.App. 5 Cir. 12/16/98), 726 So.2d 57, writ denied, 99-
433 (La. 6/25/99), 745 So.2d 1183, for determining whether a sentence is excessive.

73 Ge.

That test requires this court to examine “the nature of the crime,” “the nature and

background of the offender,” and “the sentences imposed for similar crimes[.]” Jd.
at 89.

As to the nature of the crimes, indecent behavior with a juvenile and
aggravated crime against nature are particularly heinous offenses, involving
potentially serious and long-term emotional and psychological issues for the victims.
Here, two of the victims were Defendant’s own biological daughters, and one was
the child of his then girlfriend, all of whom testified regarding the trauma inflicted
on them and the consequences they have suffered as a result of these crimes. The
trial court adequately considered this in imposing the sentences, as do we.

Next, consideration is given to the nature and background of the offender. As
the trial court noted, Defendant, although he has no prior record, has experienced
drug addiction in the past. While he expressed remorse at sentencing, and his mother
and aunt testified that he loved his children, he, nevertheless, repeatedly sexually

abused his two daughters. The trial court noted other victims as well, and the very

24

extent of the multiple charges here, involving three different children, speaks
volumes as to Defendant’s propensity for sexually harming children. While
Defendant points to a profile report in the pre-sentence investigation package that
states that he is not a pedophile, the very extent of the convictions here shows
otherwise. We agree with the trial court that the extensive aggravating factors
present here outweigh any mitigating factors.

We next consider sentences imposed in other cases for convictions involving
consecutive sentences for sex crimes against minors. We first note that the general
rule regarding concurrent and consecutive sentences is set forth in La.Code Crim.P.
art. 883, which provides:

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 the case of the concurrent sentence, the judge shall

specify, and the court minutes shall reflect, the date from which the
sentences are to run concurrently.

Additionally, the Louisiana Supreme Court has repeatedly admonished “that
sentence review under the Louisiana [C]onstitution does not provide an appellate
court with a vehicle for substituting its judgment for that of a trial judge as to what
punishment is more appropriate in a given case.” State v. Savoy, 11-1174, p. 5 (La.
7/2/12), 93 So.3d 1279, 1283. All of the sentences imposed herein are within the
statutory limits.

In State v. Gaines, 54,383 (La.App. 2 Cir. 2/22/23), 358 So.3d 194, writ
denied, 23-363 (La. 6/21/23), 362 So.3d 428, the second circuit considered an

excessiveness claim concerning a total sentence of 170 years for multiple charges,

including at least two counts of molestation of a juvenile involving three juvenile
victims, as is the case here.’ In affirming the sentences, the court stated:

Concurrent sentences arising out of a single course of conduct
are not mandatory, and consecutive sentences under those
circumstances are not necessarily excessive. It is within a trial court’s
discretion to order sentences to run consecutively rather than
concurrently even if the conduct involved a single victim. When
consecutive sentences are imposed, the court shall state the factors
considered and its reasons for the consecutive terms. A judgment
directing that sentences arising from a single course of conduct be
served consecutively requires particular justification from the evidence
of record. State v. Davis, 52,453 (La. App. 2 Cir. 2/27/19), 265 So. 3d
1194; State v. Williams, 52,052 (La. App. 2 Cir. 6/27/18), 250 So. 3d
1200.

When consecutive sentences are imposed, the court shall state
the factors considered and its reasons for the consecutive terms. Among
the factors to be considered are: (1) the defendant’s criminal history;
(2) the gravity or dangerousness of the offense; (3) the viciousness of
the crimes; (4) the harm done to the victims; (5) whether the defendant
constitutes an unusual risk of danger to the public; and (6) the potential
for the defendant’s rehabilitation. 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.
State v. Sandifer, supra. See also State v. Williams, supra.

As to the second prong of the excessive-sentence test, the
sentence of 50 years at hard without benefits for both counts of
molestation of a juvenile is not constitutionally excessive. The State
points out that the sentencing range for each count of molestation of a
juvenile is 25 to 99 years at hard labor without benefits. The defendant
received a midrange sentence of 50 years for each count of molestation
of a juvenile rather than the maximum sentence of 99 years for each
count, and the total sentence of 170 years at hard labor for victims M.H.,
C.E., and A.B. [is] not constitutionally excessive. The sentences are not
out of proportion to the seriousness of the offenses and do not purposely
and needlessly inflict pain and suffering.

Id. at 202.

4 . . . . toes

We note that the sentence imposed for molestation of a juvenile, when the victim is under
the age of thirteen, is imprisonment “at hard labor for not less than twenty-five years nor more
than ninety-nine years.” La.R.S. 14:81.2(D)(1). This is the same penalty for aggravated crime
against nature when the victim is under the age of thirteen and the offender is over the age of
seventeen. La.R.S. 14:89.1(C)(2).

26

We find that the consecutive sentences imposed here are not constitutionally
excessive. Three separate victims, two of which were Defendant’s own daughters,
were sexually abused for his own perverted pleasure, without regard to the long-term
emotional effects these acts would have on them. Defendant could only attempt an
explanation of his behavior to his ex-girlfriend by saying that he was sick or that it
was because of his drug abuse. He then incredulously told her that his sons were not
in jeopardy from his deviant behavior because that was different, that he was not
homosexual. Under these circumstances, we find that the sentences running
consecutively do not shock the conscience.

Considering the foregoing, we find that the two 50-year consecutive sentences
imposed for aggravated crime against nature and the two 20-year consecutive
sentences imposed for indecent behavior with a juvenile under the age of thirteen
are not unconstitutionally excessive. Accordingly, this assignment of error is
dismissed as being without merit.

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 note that the
sentences imposed for both counts of aggravated crime against nature are illegally
lenient. Louisiana Revised Statutes 14:89.1(D)(1) requires that the trial court, “after
determining the financial resources and future ability of the offender to pay, require
the offender, if able, to pay the victim’s reasonable costs of counseling that result
from the offense.” The trial court failed to make this determination at the sentencing
proceeding; thus, the sentences are illegally lenient. See State v. P.T., Sr., 07-665,
(La.App. 3 Cir. 12/5/07), 970 So.2d 1255, writ denied, 08-26 (La. 5/30/08), 983
So.2d 895. Although the authority to correct an illegally lenient sentence is granted

and discretionary under La.Code Crim.P. art. 882, no action is taken here as the issue

27

has not been raised as an error.’ In State v. Brown, 19-771 (La. 10/14/20), 302 So.3d
1109, the supreme court held that the court of appeal erred in vacating an illegally
lenient sentence absent any complaint by the State. Accordingly, we will not address
the illegally lenient sentence imposed on both counts of aggravated crime against
nature.
DECREE
Defendant’s convictions and sentences are affirmed.

AFFIRMED.

* This court has noted in several opinions that the trial court imposed an illegally lenient
sentence, but it stated it would not recognize/correct the error because the issue was not raised.
State v. Monceaux, 22-28 (La.App. 3 Cir. 6/1/22), 340 So.3d 201; State v. Mayfield, 18-420
(La.App. 3 Cir. 12/6/18), 261 So.3d 101, writ denied, 19-46 (La. 5/28/19), 273 So.3d 316; State v.
Aguillard, 17-798 (La.App. 3 Cir. 4/11/18), 242 So.3d 765, writ denied, 18-1207 (La. 3/6/19), 266
So.3d 897; State v. Goodeaux, 17-441 (La.App. 3 Cir. 11/2/17), 231 So.3d 124, writ denied, 17-
2143 (La. 9/14/18), 252 So.3d 488; and State v. Celestine, 11-1403 (La.App. 3 Cir. 5/30/12), 91
So.3d 573.

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