STATE OF LOUISIANA v. ST JULIAN BARANCO (2025)

The defendant, St. Julian Baranco, was charged by grand jury indictment with first degree rape, a violation of La. R.S. 14:42(A), and pled not guilty. After a trial by jury, he was found guilty as charged. He was sentenced to life imprisonment without the benefit of probation, parole, or suspension of sentence.¹ The defendant now appeals, raising four assignments of error and alleging the trial court committed a patent error at sentencing. For the following reasons, we affirm the conviction, amend the sentence, and affirm the sentence as amended.

STATEMENT OF FACTS

On August 10, 2020, in response to a 911 call, Corporal Joshua Kirst of the Baton Rouge Police Department was dispatched to an apartment located at 2640 Alaska Street. As Corporal Kirst walked toward the apartment, the 911 caller, later identified as B.C., exited the apartment screaming for help.² As additional officers arrived on the scene, they used a loudspeaker to order the male occupant, who was later identified as the defendant, to exit the apartment, removed two young children from the apartment, and recovered a pocketknife, located between the cushions of a loveseat in the living room.

Earlier that month, B.C. began communicating with the defendant on a social media dating website. On the day in question, the defendant, a resident of Kenner, Louisiana, called B.C. and informed her that he was on his way to Baton Rouge on a bus, and he ultimately arrived at her apartment. According to B.C., at one point during the evening, the defendant came into her bedroom, took off his backpack, and demanded she give him a hug. The defendant then began punching and kicking B.C., all over her body, as she got on the bed in a fetal position to protect her head. B.C. was able to use her cell phone to dial 911 before letting go of her phone. The defendant retrieved a pocketknife from his backpack, flipped it open, held it at his side, demanded oral sex from B.C., stood in front of her, and forced his penis into her mouth until she vomited. The defendant further forced B.C. at knifepoint to have vaginal sex with him.

As the defendant allowed B.C. to go to the bathroom, she then tucked her cell phone to her side. While in the bathroom, B.C. called 911 again. Sometime thereafter, B.C. looked through her front window and saw Corporal Kirst outside approaching the apartment with a flashlight. B.C. then ran out of her apartment, through her front door, and reported the attack to Corporal Kirst. The defendant was then taken into custody.

ASSIGNMENT OF ERROR NUMBER ONE

In assignment of error number one, the defendant argues the trial court erred in admitting evidence of other crimes pursuant to La. Code Evid. art. 412.2. He argues the prejudicial impact of the evidence of other crimes outweighed any proof that it may have added to the case, that it was introduced by the State to show his character, and that it consisted of reversible error.

Evidence of other crimes, wrongs, or acts committed by the defendant is generally inadmissible because of the substantial risk of grave prejudice to the defendant. It is well settled that courts may not admit evidence of other crimes to show the defendant as a man of bad character who has acted in conformity with his bad character. However, evidence of other crimes, wrongs, or acts may be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding. See La. Code Evid. art. 404(B)(1).

Even when the other crimes evidence is offered for a purpose allowed under La. Code Evid. art. 404(B)(1), the evidence is not admissible unless it tends to prove a material fact at issue or to rebut a defendant's defense. The State bears the burden of proving that the defendant committed the other crimes, wrongs, or acts. State v. Germany, 2021-1614 (La. App. 1st Cir. 9/26/22), 353 So.3d 804, 820-21, writ denied, 2022-01568 (La. 1/11/23), 352 So.3d 983.

Relevant evidence is evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. La. Code Evid. art. 401. All relevant evidence is admissible, except as otherwise provided by positive law. Evidence which is not relevant is not admissible. See La. Code Evid. art. 402. Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, or by considerations of undue delay, or waste of time. La. Code Evid. art. 403.

Louisiana Code of Evidence article 412.2, in pertinent part provides:

A. When an accused is charged with a crime involving sexually assaultive behavior, ․ evidence of the accused's commission of another crime, wrong, or act involving sexually assaultive behavior ․ may be admissible and may be considered for its bearing on any matter to which it is relevant subject to the balancing test provided in Article 403.

B. In a case in which the state intends to offer evidence under the provisions of this Article, the prosecution shall, upon request of the accused, provide reasonable notice in advance of trial of the nature of any such evidence it intends to introduce at trial for such purposes.

C. This Article shall not be construed to limit the admission or consideration of evidence under any other rule.

The legislature enacted La. Code Evid. art. 412.2 in 2001 to loosen restrictions on “other crimes” evidence and to allow evidence of “lustful disposition” in cases involving sexual offenses. State v. Lafont, 2023-0086 (La. App. 1st Cir. 9/15/23), 375 So.3d 1002, 1007.

In 2004, the legislature amended La. Code Evid. art. 412.2’s language from allowing admission of “evidence of the accused's commission of another sexual offense,” to the above language, allowing “evidence of the accused's commission of another crime, wrong, or act involving sexually assaultive behavior[.]” See 2004 La. Acts, No. 465, § 1. The revised language significantly broadened the scope of evidence admissible under La. Code Evid. art. 412.2. However, the balancing test set forth in La. Code Evid. art. 403, which insures the fundamental fairness of the proceedings, applies to La. Code Evid. art. 412.2. Lafont, 375 So.3d at 1008. When the State intends to offer evidence under the provisions of La. Code Evid. art. 412.2, the prosecution shall, upon request of the accused, provide reasonable notice in advance of trial of the nature of any such evidence it intends to introduce at trial for such purposes. La. Code Evid. art. 412.2(B). Ultimately, questions of relevancy and admissibility of evidence are discretionary calls within the trial court's gatekeeping function. An appellate court should not overturn such determinations regarding relevancy and admissibility absent an abuse of discretion. Lafont, 375 So.3d at 1008.

Herein, the State filed notice of its intent to introduce other crimes evidence pursuant to Article 412.2 initially on May 26, 2021, seeking to introduce evidence of the forcible rape of an adult female, J.F.,³ and again on October 21, 2021, seeking to introduce evidence of the forcible rape of an adult female, L.H. and the hearing took place the next day, on October 22, 2021. The trial was scheduled to begin on October 25, 2021. At the pretrial hearing, the State explained that when it filed its initial notice, it was unaware the defendant had a bench warrant and attachment in St. Charles Parish due to an arrest on February 20, 2020, six months before the instant offense, for battery, simple assault, and false imprisonment of a dating partner, L.H. After obtaining a copy of the police report in that case, the State attempted to contact L.H. by phone, leaving voice messages for her. L.H. returned the call on October 19, leaving a voice message indicating she had been raped and beaten and wanted to discuss the matter. Thus, at that point, the State learned the defendant's February arrest involved an allegation of sexually assaultive behavior.

The State further discussed the similarities in L.H.’s case and the instant case. The State noted B.C., J.F., and L.H. suffered identical injuries and alleged similar actions and threats by the defendant. Defense counsel argued the evidence was “highly prejudicial” and requested that if the court ruled it admissible, a continuance be granted. The State joined in on the motion for a continuance. The trial court ruled the evidence would be admitted under Article 412.2. In doing so, the trial court noted it appreciated the State's explanation regarding the timing of its discovery of the nature of the incident involving L.H. and its “prompt actions thereafter.” The trial court further noted it considered the possibility of confusion of the jury, the nature of the evidence, and the similarities among the cases. The defendant objected to the trial court's ruling. The trial court granted the request for a continuance, resetting the trial for November 29, 2021.

During trial, L.H. testified she met the defendant in 2020, between late January and early February, shortly after she separated from her husband. As they were developing a friendship, they communicated by phone for about ten days before the defendant asked to come to her apartment. L.H. agreed but intended it to only be a friendly visit. However, she testified at one point the defendant gave her the distinct impression that he wanted to have sex and became increasingly angry when she refused. She was ultimately able to get the defendant to leave.

L.H. further testified that after the defendant “profusely” apologized, she forgave him and ultimately allowed him to visit her again. She testified that she clearly communicated to him that she was only interested in friendship. Nevertheless, at some point during the second visit, the defendant began demanding to have sex, telling L.H. it was going to happen. According to L.H., he further began referring to her as a “b****” and told her he had previously raped a “white girl” in Texas and could get away with rape again. She testified he demanded her to remove her clothing, and he did the same. L.H. testified she felt threatened, noted she was only four feet and ten inches tall, and described the defendant as “very tall” and “strong.” L.H. testified the defendant then repeatedly “raped” her, forcing her to engage in unwanted vaginal sexual intercourse, as he continued to curse and reprimand her, and at one point used physical force.

On appeal, the defendant now concedes the matter regarding L.H. “would qualify under [Article] 412.2.” However, he argues the evidence was insufficient to show a propensity to force sex, hampered his defense due to the timing of the notification, was incomplete, and was riddled with surprises, specifically testimony regarding a “fourth”⁴ victim in Texas. At the outset, we note the defendant did not object to the testimony by L.H. regarding another victim. Furthermore, on cross-examination, defense counsel elicited testimony from L.H. regarding the defendant's alleged statements about another victim. To preserve the right to seek appellate review, a party must state an objection contemporaneously with the occurrence of the alleged error, as well as the grounds for that objection. See La. Code Crim. P. art. 841(A); La. Code Evid. art. 103(A)(1). Due to his failure to enter a contemporaneous objection, the defendant has waived review of any alleged error regarding the admission of testimony about a victim in Texas. See State v. Sajna, 2023-0893 (La. App. 1st Cir. 9/20/24), 405 So.3d 667, 675, writ denied, 2024-01290 (La. 2/19/25), 400 So.3d 926.

However, the defendant objected to the trial court's pretrial ruling allowing evidence of the offense against L.H., and thus, adequately preserved his claims on review regarding the admissibility of that offense. Nonetheless, as stated, the defendant concedes on appeal that L.H.’s claim of sexually assaultive behavior is the type of evidence properly admitted under Article 412.2, though arguing it was unduly prejudicial. After review, we find no abuse of the trial court's discretion in allowing the State to introduce the testimony at issue.

Initially, we find that the trial court did not abuse its discretion in finding the notice reasonable. The State contended it provided immediate notice once it became aware of the nature of the allegations that led to the defendant's arrest in St. Charles Parish. Also, as noted, the trial court granted the defendant's requested continuance. Further, we find that the evidence was relevant to show the defendant's propensity to use verbal demands and physical force to engage in nonconsensual sex with recently met females. See State v. Howle, 2018-1043 (La. App. 1st Cir. 4/12/19), 2019 WL 1578189, *5 (unpublished) (no abuse of discretion in admission of evidence of sexually assaultive behavior under Article 412.2 to prove defendant's propensity to sexually assault young women who were strangers to him by overpowering them); State v. Buckenberger, 2007-1422 (La. App. 1st Cir. 2/8/08), 984 So.2d 751, 757, writ denied, 2008-0877 (La. 11/21/08), 996 So.2d 1104 (no abuse of discretion in admission of evidence of sexually assaultive behavior under Article 412.2 to prove defendant's propensity to use force to rape women in and near vehicles). Given the similarity of the offenses and pattern of behavior, we find the prior offense was relevant to rebut the exculpatory theory advocated by the defense.⁵ Further, when the probative value of the other crimes evidence is balanced against its prejudicial effect, we find it was not unduly or unfairly prejudicial. Thus, we find the trial court did not abuse its discretion in admitting the evidence of the sexually assaultive conduct at issue, pursuant to Article 412.2. Assignment of error number one is without merit.

ASSIGNMENT OF ERROR NUMBER TWO

In assignment of error number two, the defendant contends the State failed to produce his and the victim's phone records, in violation of its obligation under Brady v. Maryland, 3 73 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), seemingly arguing the purported content would have contained evidence favorable to him on the issue of consent. He contends the phones should have been produced in response to his motions for discovery, requesting that Brady evidence be produced.

The suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution. Brady, 373 U.S. at 87, 83 S.Ct. at 1196-97. Favorable evidence includes both exculpatory evidence and evidence impeaching the testimony of a witness when the reliability or credibility of that witness may be determinative of the defendant's guilt or innocence, or when it may have a direct bearing on the sentencing determination of the jury. United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 3380, 87 L.Ed.2d 481 (1985); Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 766, 31 L.Ed.2d 104 (1972). Regardless of request, favorable evidence is material, and constitutional error results from its suppression by the government, “if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” Kyles v. Whitley, 514 U.S. 419, 433-34, 115 S.Ct. 1555, 1565, 131 L.Ed.2d 490 (1995) (citing Bagley, 473 U.S. at 682, 105 S.Ct. at 3383).

The touchstone of materiality discussed in Bagley is a “reasonable probability” of a different result, and the adjective is important. The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence. A “reasonable probability” of a different result is accordingly shown when the government's evidentiary suppression “undermines confidence in the outcome of the trial.” Kyles, 514 U.S. at 434, 115 S.Ct. at 1566; Bagley, 473 U.S. at 678, 105 S.Ct. at 3381.

Prior to trial, the defendant filed several general motions for the production of Brady material and requested all evidence necessary to obtain a fair trial. The defendant notes his phones were in the State's possession, as they were in his backpack collected at the time of his arrest. The defendant claims an examination of the phones would have shown ongoing conversations between him and the victim, relevant to the issue of consent. However, the defendant failed to object or move for a mistrial on the basis of an alleged Brady violation. Thus, the defendant did not preserve this issue for appeal. See La. Code Crim. P. arts. 775, 841(A); State v. Boyd, 2013-023 8 (La. App. 1st Cir. 2/14/14), 2014 WL 5 893 81, *4 (unpublished), writ denied, 2014-0540 (La. 10/3/14), 149 So.3d 796.

We further note that as the defendant is claiming that his own phone records and those of B.C. contained evidence, particularly text messages, favorable to his defense, the existence of the communications would have been known to the defendant. Herein, the record contains nothing to indicate that the defendant himself could not have obtained the phone records by exercising reasonable diligence. A defendant shows no entitlement to relief if the information was available to him through other means by the exercise of reasonable diligence. State v. Green, 2016-0107 (La. 6/29/17), 225 So.3d 1033, 1037-39, cert. denied, 583 U.S. 978, 138 S.Ct. 459, 199 L.Ed.2d 338 (2017) (“Reasonable diligence would have entailed defense counsel specifying that the text messages were an intended target of discovery and ․ counsel making an appointment to review the messages.”).

Moreover, there is nothing for us to review because defense counsel did not proffer any evidence. Thus, his representations as to the content of the records cannot be verified. See State v. Hatfield, 2013-0813 (La. App. 4th Cir. 7/2/14), 155 So.3d 572, 607, writ denied, 2014-1648 (La. 3/27/15), 162 So.3d 383 (phone records allegedly contained exculpatory information; however, the representations as to the content of the record cannot be verified because they are not in the record). Likewise, as an appellate court, we have no authority to receive or review evidence not contained in the record. State v. Green, 2015-0308 (La. App. 1st Cir. 12/17/15), 2015 WL 9260586, *8 (unpublished). Based on the foregoing, we find no merit in assignment of error number two.

ASSIGNMENT OF ERROR NUMBER THREE

In assignment of error number three, the defendant argues he received ineffective assistance of counsel due to his counsel's failure to raise an exception to the hearsay rule when the State objected to defense counsel's attempt to elicit testimony from him regarding his claim that B.C. made statements that led him to believe that she consented to sexual intercourse. He contends defense counsel should have argued his testimony was admissible to impeach the victim's testimony with her purported prior inconsistent statements.

As a general rule, a claim of ineffective assistance of counsel is more properly raised in an application for post-conviction relief in the district court rather than on appeal. This is because post-conviction relief provides the opportunity for a foil evidentiary hearing under La. Code Crim. P. art. 930. However, when the record is sufficient, this court may resolve this issue on direct appeal in the interest of judicial economy. State v. Miller, 2015-1031 (La. App. 1st Cir. 12/23/15), 185 So.3d 811, 815, writ denied, 2016-0152 (La. 1/23/17), 215 So.3d 681.

A defendant is entitled to effective assistance of counsel under the Sixth Amendment to the United States Constitution and Article I, § 13 of the Louisiana Constitution. A claim of ineffectiveness of counsel is analyzed under the two-pronged test developed by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). In order to establish that his trial attorney was ineffective, the defendant must first show the attorney's performance was deficient, which requires a showing that counsel made errors so serious that he was not functioning as counsel guaranteed by the Sixth Amendment. Secondly, the defendant must prove that the deficient performance actually prejudiced him by showing that the errors were so serious that the defendant was deprived of a fair trial. The defendant must prove actual prejudice before relief will be granted. It is not sufficient for defendant to show that the error had some conceivable effect on the outcome of the proceeding. Rather, he must show that but for the counsel's unprofessional errors, there is a reasonable probability the outcome of the trial would have been different. Further, it is unnecessary to address the issues of both counsel's performance and prejudice to the defendant if the defendant makes an inadequate showing on one of the components. Miller, 185 So.3d at 815-16.

The defendant first notes the State's objection to the portion of his trial testimony in which he attempted to introduce statements by B.C. that caused him to believe she was consenting to sexual intercourse, in conflict with statements made during her trial testimony. The defendant notes his counsel instructed him not to “say what she said” rather than raising a hearsay exception to an anticipatory objection by the State. Further, the defendant notes the State successfully objected to his testimony regarding marijuana being present at B.C.’s apartment and her purported statement to him that a customer would be coming over to purchase some of the marijuana.

Allegations of ineffectiveness relating to the choice made by counsel to pursue one line of defense as opposed to another constitute an attack upon a strategy decision made by trial counsel. The investigation of strategy decisions requires an evidentiary hearing and, therefore, cannot possibly be reviewed on appeal. Further, under our adversary system, once a defendant has the assistance of counsel, the vast array of trial decisions, strategic and tactical, that must be made before and during trial rest with an accused and his attorney. The fact that a particular strategy is unsuccessfull does not establish ineffective assistance of counsel. State v. Anderson, 2022-0587 (La. App. 1st Cir. 12/22/22), 357 So.3d 845, 855, writ denied, 2023-00352 (La. 9/6/23), 369 So.3d 1267. Herein, the decisions challenged on appeal regarding counsel's instructions to the defendant to not present hearsay testimony and to not attempt to raise a hearsay exception to allow him to do so involves strategy. See State v. Davis, 2011-0990 (La. App. 1st Cir. 2/10/12), 2012 WL 63 8492, *4 (unpublished), writ denied, 2012-0597 (La. 6/15/12), 90 So.3d 1060; State v. Thurman, 2009-1627 (La. App. 1st Cir. 3/26/10), 2010 WL 1170226, *6 (unpublished), writ denied, 2010-1411 (La. 6/24/11), 64 So.3d 212. Thus, these claims cannot possibly be reviewed on appeal.

Moreover, as the State notes in its appeal brief, the defendant was allowed to develop these theories ⁶ despite the State's hearsay objections. Particularly, the defendant fully developed his theory of consent, claiming B.C. initially refused but later volunteered oral sex without the use of force, followed by her initiation of sexual intercourse. Though the defendant said he kicked B.C. in the head after he realized the police were outside, the defendant repeatedly denied otherwise hitting B.C. or physically forcing her to have sex. Further, while the defendant admitted to having a knife, he denied displaying it or having it in his hand as he engaged in sexual acts with B.C.⁷ Thus, the defendant has not pointed to any testimony or theory of defense he was not allowed to present to the jury. Unsupported assertions of deficiency do not support a Sixth Amendment claim for ineffective assistance of counsel. See State v. Dantin, 2019-0407 (La. App. 1st Cir. 12/17/19), 291 So.3d 1096, 1104. This assignment of error is without merit or is otherwise not subject to appellate review.

ASSIGNMENT OF ERROR NUMBER FOUR

In assignment of error number four, the defendant contends the sentence is excessive in this case. He contends he received the maximum sentence although the case involved a date rape wherein he had a “flirtatious relationship” with the victim, as opposed to “a rapist who wisks [sic] someone off the street.” He argues a motion, pursuant to State v. Dorthey, 623 So.2d 1276, 1280-81 (La. 1993), should have been filed to allow him to explore other options and asks this court to remand the case such that a motion could be filed.

Following sentencing, the defendant did not object to the sentence nor did the defendant file a motion to reconsider sentence. 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 shall preclude the defendant from raising an objection to the sentence. La. Code Crim. P. art. 881.1(E). Moreover, the sentence imposed upon the defendant, life imprisonment without the benefit of parole, probation or suspension of sentence, was mandatory pursuant to La. R.S. 14:42(D)(1). Regardless of aggravating or mitigating factors, the same sentence would have been imposed upon the defendant. See State v. Ramos, 2013-1807 (La. App. 1st Cir. 5/2/14), 2014 WL 1778368, *4 (unpublished), writ denied, 2014-1154 (La. 3/13/15), 161 So.3d 632.

As noted, in his brief, the defendant cites Dorthey, and its ruling by the Louisiana Supreme Court that if a trial judge were to find that the punishment made no measurable contribution to acceptable goals of punishment, or that the sentence amounted to nothing more than the purposeful imposition of pain and suffering and was grossly out of proportion to the severity of the crime, he had the option, indeed the duty, to reduce such sentence to one that would not be constitutionally excessive. Dorthey, 623 So.2d at 1280-81.⁸ To rebut the presumption of the constitutionality of the mandatory minimum sentence, the defendant would have to clearly and convincingly show that he is exceptional, which means that because of unusual circumstances, the defendant was a victim of the legislature's failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case. See State v. Johnson, 97-1906 (La. 3/4/98), 709 So.2d 672, 676-77.

To the extent the defendant is suggesting in his brief that his mandatory life sentence should have been reduced, he has not proven by clear and convincing evidence that he is exceptional such that the imposed sentence would not be meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case. See Johnson, 709 So.2d at 676. Further, as noted, the issue is not properly before this court because of the defendant's failure to file a motion to reconsider sentence. The fourth assignment of error lacks merit.

PATENT ERROR REVIEW

In an errors patent section of his brief, the defendant notes all appeals are reviewed for errors patent on the face of the record. He seems to indicate the trial court failed to advise him of the prescriptive period for filing an application for post-conviction relief pursuant to La. Code Crim. P. art. 930.8.

This court routinely reviews the record for patent error under La. Code Crim. P. art. 920(2), whether or not such a request is made by a defendant or defense counsel. Under La. Code Crim. P. art. 920(2), we are limited in our review to errors discoverable by a mere inspection of the pleadings and proceedings without inspection of the evidence. State v. Emerson, 2023-0120 (La. App. 1st Cir. 9/15/23), 375 So.3d 1027, 1030. La. Code Crim. P. art. 930.8 generally provides that no application for post-conviction relief shall be considered if it is filed more than two years after the judgment of conviction and sentence have become final under the provisions of La. Code Crim. P. arts. 914 or 922. Pursuant to La. Code Crim. P. art. 930.8(C), the trial court is required to advise the defendant of the prescriptive period for applying for post-conviction relief. A trial court's failure to advise the defendant under La. Code Crim. P. art. 930.8 constitutes patent error. See State v. Evans, 2023-1223 (La. App. 1st Cir. 7/2/24), 395 So.3d 886, 894.

In this case, the trial court adequately advised the defendant as follows: “You have two years from the finality of judgment of conviction and sentence to pursue any post-conviction relief.” The trial court then asked the defendant if he understood the notice, and he responded affirmatively. Thus, we find no error in this regard. Further, after a careful review of the record in these proceedings, we have found no other reversible patent errors.

However, as previously noted, the minutes state the sentence imposed by the trial court incorrectly as being 999 years at hard labor, while the trial court actually imposed life imprisonment without the benefit of probation, parole, or suspension of sentence. Further, as also stated, the sentencing transcript reveals the trial court did not impose the defendant's sentence at hard labor, despite being statutorily mandated to do so.⁹ See La. R.S. 14:42(D)(1). Inasmuch as an illegal sentence is an error discoverable by a mere inspection of the proceedings without inspection of the evidence, La. Code Crim. P. art. 920(2) authorizes consideration of such an error on appeal. Moreover, La. Code Crim. P. art. 882(A) authorizes the appellate court to correct an illegal sentence on review. Thus, correction of the sentence does not involve sentencing discretion and, as such, this court has the authority to simply amend the sentence. State v. Tate, 2024-0344 (La. App. 1st Cir. 11/13/24), 405 So.3d 993, 1002. Accordingly, we hereby amend the sentence by providing that it be served at hard labor. We remand to the trial court for correction of the minutes.

CONVICTION AFFIRMED; SENTENCE AMENDED AND AFFIRMED AS AMENDED; REMANDED FOR CORRECTION OF THE MINUTES.

FOOTNOTES

1.   The minutes state the trial court imposed “999 years” imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence. However, the transcript reveals the trial court instead imposed the above stated sentence, life imprisonment without the benefit of probation, parole, or suspension of sentence. Further, while the minutes and commitment order state the sentence was imposed at hard labor, the transcript reveals the trial court did not impose the sentence at hard labor. When there is a discrepancy between the transcript and the minutes and/or commitment order, the transcript prevails. State v. Callegan, 2024-0031 (La. App. 1st Cir. 11/13/24), 405 So.3d 924, 932 n.6, writ denied, 2024-01532 (La. 2/25/25), 401 So.3d 663.

2.   Under La. R.S. 46:1844(W), the victim and any prior victims will be referenced by initials.

3.   The record reflects there was a hearing on the initial notice by the State, and the trial court ruled the evidence admissible under Article 412.2. The minutes do not indicate an objection to the ruling by the defendant. However, J.F. did not testify at trial. The defendant notes in the summary of his appeal brief he was cross examined regarding J.F. at trial but has not raised any arguments in that regard on appeal.

4.   The defendant, in his appeal, repeatedly states L.H. introduced testimony regarding a “fourth alleged victim[.]” However, as the State notes in its appellee brief, on cross-examination, the defendant seemed to indicate L.H. was referring to the claim by his ex-girlfriend, J.F., for which the State provided pretrial notice, though J.F. did not, as previously noted, testify at trial.

5.   In this regard, we note that at trial the defendant denied any threats, intimidation, or physical force and claimed he and B.C. engaged in consensual sexual acts.

6.   Specifically, despite the State's objections, the jury heard the defendant testify that B.C. had marijuana and pills in the apartment, that she sold marijuana, and that she told him someone was on their way to her apartment to purchase marijuana. The defendant further testified B.C. took a pill, Klonopin, and offered him some, which he accepted and took.

7.   The defendant also notes in his brief that B.C. presented testimony denying she knew the defendant was coming to her apartment, that she denied any sexual behavior on prior phone calls, and denied inviting him into her bedroom while wearing pajamas without underwear. We note the defendant was allowed to, in turn, testify that B.C. invited him to her apartment, was specifically asked on direct examination to describe the “kind of things” they talked about during the brief period they communicated prior to the instant incident, and testified as to how B.C. was dressed that day.

8.   We note there is no language in Dorthey that dispenses with the requirement that the defendant file a timely motion to reconsider sentence to preserve a challenge of his sentence on appeal.

9.   While the trial court stated that the defendant's sentence is to be served “in the custody of the state of Louisiana[,]” the trial court did not state the sentence is to be served at hard labor or reference the Louisiana Department of Public Safety and Corrections in imposing the sentence. See State v. Jacquot, 2023-1254 (La. App. 1st Cir. 6/27/24), 392 So.3d 663, 666 n.1, writ denied, 2024-00979 (La. 11/20/24), 396 So.3d 69 (citations omitted) (“a sentence committing a prisoner to the Department of Corrections is necessarily at hard labor.”).

WOLFE, J.