STATE v. WELCH (2025)

In this appeal, Defendant argues his fifteen-year sentence for second degree rape was excessive. For the following reasons, we affirm Defendant's sentence.

FACTS AND PROCEDURAL HISTORY

Defendant, Brandon Welch, and the alleged victim's mother were dating. At one point, when the juvenile, M.H. (who was fourteen years old at the time of incident), was alone with Defendant, she stated Defendant asked if he could scratch her back. M.H. agreed and Defendant then put his hand under her shirt to scratch. She pulled away when he did so. M.H. then stated Defendant turned her over on the bed, pulled off his pants, and penetrated her vagina with his penis. M.H. kicked him in the shoulder, but Defendant then pinned her hands above her head. After several minutes, he pulled out and ejaculated on her shirt that she was wearing. The juvenile was distraught and told her mother what occurred. Defendant denied the rape allegations. A DNA rape kit was done on M.H., which found Defendant's semen inside of M.H.’s vagina. The shirt was not tested after they made the determination that his semen was inside of M.H.

The State originally charged Defendant with sexual battery, a violation of La.R.S. 14:43.1. However, as the case developed, the State subsequently amended the bill of information to charge him with second degree rape, a violation of La.R.S. 14:42.1. After initially entering a plea of not guilty to the charge, Defendant later entered a plea to second degree rape pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). Prior to sentencing, Defendant filed a motion to withdraw his plea on the basis that the prosecutor was biased, having previously represented Defendant's ex-wife and that Defendant did not fully understand he would receive as lengthy a prison sentence as he did. The trial court denied his motion. After a presentence investigation report was completed, on November 19, 2024, the court imposed a fifteen-year hard labor sentence without the benefit of parole, probation, or suspension of sentence. Defense counsel filed a motion to reconsider which the trial court denied. Defendant is now before this court alleging in his lone assignment of error that his sentence is excessive.¹

ANALYSIS

Defendant contends the trial court erred in imposing an excessive sentence of fifteen years. The sentencing range for second degree rape is five to forty years, but as part of Defendant's plea agreement, his sentencing exposure was capped at twenty years and that no habitual offender bill would be filed.

This court in State v. Barling, 00-1241, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035, 1042-43 (alteration in original), writ denied, 01-838 (La. 2/1/02), 808 So.2d 331, discussed the well-settled standard of review for a claim of excessiveness:

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).

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, this court further explained:

In deciding whether a sentence is shocking or makes no meaningful contribution to acceptable penal goals, an appellate court may consider several factors including the nature of the offense, the circumstances of the offender, the legislative purpose behind the punishment and a comparison of the sentences imposed for similar crimes. State v. Smith, 99-0606 (La. 7/6/00), 766 So.2d 501.

In brief, Defendant cites State v. Clark, 05-647 (La.App. 3 Cir. 12/30/05), 918 So.2d 552, a case in which this court reversed a conviction for forcible rape, entered a responsive verdict of simple rape, and remanded the case for resentencing. On review, this court found the fifteen-year sentence for simple rape excessive, noting anything over a five-year sentence would be excessive. Defendant also relies upon cases in which greater sentences were upheld, noting that in those cases, the victims were beaten to gain compliance. He contends there was no evidence of force, threat, or injury in this case, additionally noting that it was a single incident rather than recurring. Further, Defendant points out that he is a father of four children who has no prior criminal convictions.

As set forth above, the sentencing range for second degree rape is five to forty years at hard labor without the benefit of probation, parole, or suspension of sentence. Defendant's plea capped his exposure at twenty years, but the court sentenced him to five years less than the cap. Prior to imposing Defendant's sentence, the court stated it had considered “everything here” as well as the “[c]hamber's conference.” The record indicates that the judge had received a supportive letter from Defendant's uncle, and the judge also listened as defense counsel read a letter submitted by Defendant. The State noted to the court that the victim indicated there was “some forceful nature to this crime.”

We find no merit to the assertion that Defendant's sentence is excessive. His sentence of fifteen years is lower mid-range considering he faced up to forty years. The record shows the victim, a fourteen-year-old girl, was raped against her will by Defendant's use of force. As for Defendant's background, the record shows he is a thirty-five-year-old first-time felony offender with four children. A review of the jurisprudence shows that lengthier sentences have been upheld by this court and the supreme court for similar crimes. State v. Myers, 07-854 (La.App. 5 Cir. 4/29/08), 981 So.2d 214, writ denied, 08-1325 (La. 2/13/09), 999 So.2d 1145 (wherein the appellate court affirmed a mid-range twenty-year sentence for a first-time felony offender who neither beat nor assaulted his victim but threatened to kill her in front of her children if she screamed); State v. Greer, 553 So.2d 892 (La.App. 4 Cir. 1989) (wherein the appellate court affirmed a maximum forty-year sentence where a first offender broke into the victim's home, demanded sex, and after a struggle, raped her); State v. Telsee, 425 So.2d 1251 (La.1983) (although a maximum forty-year sentence was found excessive, the supreme court found a twenty-five year sentence appropriate where the twenty-six year-old victim resisted but was overcome by force exhibited by the seventeen-year-old defendant). Thus, we find the trial court did not abuse its broad sentencing discretion in imposing a fifteen-year sentence on Defendant.

Defendant further argues that the trial court failed to comply with La.Code Crim.P. art. 894.1. Defendant's motion to reconsider sentence alleged his sentence was excessive “in that the court did not fully consider the mitigating facts presented.”

Louisiana Code of Criminal Procedure Article 894.1(C) requires the trial court to “state for the record the considerations [of La.Code Crim.P. art. 894.1(B)] taken into account and the factual basis therefor in imposing sentence.” Nevertheless, “[w]here the record clearly shows an adequate factual basis for the sentence imposed[, the supreme] court has held that remand is unnecessary, even where there has not been full compliance with Article 894.1.” State v. Lanclos, 419 So.2d 475, 478 (La.1982) (citing State v. Boatright, 406 So.2d 163 (La.1981); State v. McDonald, 404 So.2d 889 (La.1981); State v. Martin, 400 So.2d 1063 (La.1981); and State v. Douglas[, 389 So.2d 1263 (La.1980)]). See also State v. Parker, 49,009, p. 21 (La.App. 2 Cir. 5/15/14), 141 So.3d 839, 852 (“the failure to state the factual basis for a sentence is not grounds for reversal where the basis is apparent from the record.”)

Furthermore, due to the trial judge's unique position of reviewing subjective factors not available on appeal, he is given a wide discretion in the imposition of sentences within the statutory limits, and a sentence imposed by him should not be set aside as excessive in the absence of a manifest abuse of his discretion.

State v. Maxie, 438 So.2d 1199, 1201 (La.App. 3 Cir. 1983), writ denied, 443 So.2d 1118 (La.1984).

State v. Meaux, 21-522, pp. 8-9 (La.App. 3 Cir. 2/23/22), 335 So.3d 309, 316 (alterations in original).

As noted above, the record clearly shows an adequate factual basis supporting the sentence imposed. Accordingly, remanding on this basis is not warranted.

DECREE

For the foregoing reasons, Defendant's sentence is affirmed.

AFFIRMED.

FOOTNOTES

1.   In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. Following a review of the record, we have found no errors patent.

THIERRY, Judge.