STATE OF LOUISIANA v. LIOVEL GRANADO GONZALEZ (2025)

Defendant Liovel Granado-Gonzalez appeals his sentence of eighteen years imprisonment at hard labor for third-degree rape. For the following reasons, we affirm Defendant's sentence in part, vacate in part, and remand the matter to the trial court for compliance with La. C.Cr.P. art. 875.1.

BACKGROUND

This is Defendant's second appeal. The procedural history and trial evidence relevant to the instant appeal are set forth below.

Procedural History

On July 7, 2021, the Jefferson Parish District Attorney's Office filed a bill of information charging Defendant with one count of second-degree rape in violation of La. R.S. 14:42.1. Defendant pled not guilty at his arraignment.

On February 14, 2023, a twelve-person jury found Defendant guilty of the responsive verdict of third-degree rape,¹ a lesser-included offense of count one, in violation of La. R.S. 14:43. On March 15, 2023, the trial court first denied Defendant's motions for post-verdict judgment of acquittal and for new trial, and then proceeded with sentencing. After allowing the victim's impact statement to be read into the record, the trial court sentenced Defendant to eighteen years imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. Defendant objected to the sentence.

On April 20, 2023, the trial court scheduled a hearing on Defendant's motion to reconsider his sentence and the State's multiple bill against Defendant. The trial court denied Defendant's motion and the State elected not to file a multiple bill. The remainder of the hearing concerned the trial court's notice to Defendant of the sex offender registration requirements. Defense counsel informed the trial court that Defendant had executed the registration acknowledgment forms, and the trial court had copies of the forms made to distribute to Defendant and, according to the hearing transcript, stated as follows on the record:

In conjunction with the Court's previous sentence which was entered on March 15, 2023, the Court hereby is providing to Mr. Granado-Gonzalez the notification of sex offender registration which requires that upon his release from [the] Department of Corrections that he register as a sex offender and I believe it's fifteen years ․ Mr. Granado-Gonzalez has executed the addendum to the waiver of constitutional rights a plea of guilty form indicating that he has received and will be receiving a copy. We're going to serve him in open court with this as required by Revised Statute 15:543 and that he understands that he is required to register as a sex offender pursuant to Revised Statute 15:541, et seq. So at this time Amanda would you please serve Mr. Granado-Gonzalez with the appropriate forms and with that the Court will remand him to serve his sentence in the Department of Corrections.

Defendant's certification acknowledging his receipt of the written explanation of the sex offender registration and notification statutes and his execution of the Notification to Sex Offender Form, was signed, dated, and submitted into the record on April 20, 2023. The trial court's minute entry reflects the same.

On July 3, 2024, this Court affirmed Defendant's conviction of third-degree rape, finding that the State presented sufficient evidence to support the conviction and that the trial court did not abuse its discretion in denying Defendant's motion for new trial. See State v. Granado-Gonzalez, 23-387 (La. App. 5 Cir. 7/3/24), 392 So.3d 909, writ denied, 24-905 (La. 11/20/24), 396 So.3d 66. However, finding errors patent related to sentencing, we vacated Defendant's sentence, remanded for resentencing, and pretermitted further discussion of Defendant's assignments of error about his sentence.²

At resentencing on September 19, 2024, the trial court imposed the same sentence—eighteen years imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. The trial court credited Defendant with time served in accordance with La. C.Cr.P. art. 880 and further stated it “will allow [Defendant] to participate in any self-help or rehab program during the term of his incarceration.” Additionally, the trial court imposed a $750 crime lab fee to be paid by Defendant. Defendant again objected to the trial court's sentence and thereafter filed a timely motion to reconsider with the trial court. He also filed a timely motion for appeal. On September 25, 2024, the trial court denied Defendant's motion to reconsider his sentence and granted his appeal to this Court.

Trial Evidence

On Defendant's first appeal, we summarized the facts and evidence adduced at trial, as follows:

The victim, M.C., testified she has been married to her husband for eighteen years and they previously lived at 632 Sessions Lane in Kenner. M.C. stated that her husband's half-brother, defendant Liovel Granado-Gonzalez, stayed in the shed in the backyard. M.C. testified she and defendant were not friends and did not have any “real conversations.” M.C. greeted defendant only when her husband was home and when defendant used the shower or bathroom in the house.

M.C. testified that her family came to her house for a cookout for Mother's Day on May 9, 2021, and she had four to six beers over the entire day. She stated defendant did not participate in the celebration and mainly stayed inside the shed. After everyone left, she went inside with her husband and went to bed.

Early the next morning on May 10, 2021, after her husband left for work, M.C. testified she woke up to defendant banging on her window and calling her name. M.C. stated she eventually “cracked open” the back door and told defendant she was sleeping. As she was closing the door, defendant pushed the door open and entered the house.

M.C. testified she was alarmed and nervous because defendant had not previously tried to enter the house. She walked to her bedroom to get her cell phone to call the police because she knew something was not right. As she reached for her cell phone, defendant came behind her, grabbed her arm, turned her around, and pushed her to the floor. M.C. testified she struggled and fought with defendant while she was on the floor while defendant was pulling her legs and trying to take off her pants. M.C. stated she kicked defendant and tried to hold onto her pants. M.C. testified she told defendant to “stop, stop, stop,” but defendant kept pulling off her pants and then he started to choke her. At that point, M.C. told defendant she needed water because she thought she could get away. Defendant allowed her to take a sip from a water bottle in the bedroom but then pulled her back down to the floor and pulled off her pants. M.C. testified she told defendant “no, no you supposed to be like a ․ brother-in-law, don't do this, no, don't, no, no.” M.C. also testified she believed she would die and observed defendant searching for an object to hit her. At that point, M.C. asserted she “kind of gave up” and “just let him do it.” Defendant told her to get on the bed and she eventually complied because she was scared. M.C. testified that defendant held her arms, took off his clothes, and raped her. She asserted defendant put “his penis in [her] vagina.” M.C. stated she ultimately ceased telling defendant to stop because she was scared. M.C. also testified defendant ran his hand over her chest area on top of her clothes and put his “mouth in [her] vagina” at one point. M.C. stated that once defendant finished ejaculating, defendant commented “it was so fast” and then he said “now you can sleep.” Afterwards, defendant left through the front door.

M.C. testified she attempted to call her husband, and sent him a text to “come home now.” She then called her mother to pick her up because she was scared to leave. Her mother picked her up and brought her to her mother's house located at 3239 Continental Drive. M.C. stated she told her husband to come to her mother's house. M.C. said she called 911 to report the rape while she was at her mother's house.

M.C. testified an ambulance took her to the hospital where a rape kit was administered after she gave a statement to the police about the rape. M.C. also testified she was neither having an affair with defendant nor did she tell him that she was interested in a relationship. She further stated the rape occurred without her consent.

Liovel Silva, M.C.’s husband and defendant's half-brother, testified he allowed defendant to stay in the shed behind his residence. Mr. Silva confirmed their family was at the house on May 9, 2021 to celebrate Mother's Day. He stated that during the celebration, he and M.C. did not take drugs, and defendant did not leave the shed except to smoke. After everyone left, he and M.C. went inside the house and defendant was still in the shed. Mr. Silva asserted he was “close but not as close” with defendant, and he only allowed defendant inside his house to use the bathroom or to shower. Mr. Silva testified he left for work early the next morning, around “4:45 or 5:00,” on May 10, 2021, while M.C. was sleeping. Mr. Silva testified that when he was driving to work, M.C. called but he did not answer. He stated he pulled over and saw a text from M.C. stating “please come home now, it's an emergency.” M.C. called again and told him to “just get here, come home now” and to go to his mother-in-law's house. Upon his arrival, Mr. Silva stated M.C. was “frantic ․ scared ․ shaking and nervous, and crying.” Mr. Silva testified M.C. told him defendant kicked in the door and raped her. He asserted the door was not hard to kick in. Mr. Silva averred M.C. called the police, and she subsequently went to the hospital. Mr. Silva testified that afterwards, defendant sent him a letter asking them for forgiveness and for M.C. to drop the charges. Mr. Silva denied that defendant or M.C. said they were having an affair or that he saw signs of one. According to Mr. Silva, the rape affected his and M.C.’s relationship, and she still has flashbacks of the incident.

Officer Brent Donovan with the Kenner Police Department testified that he was dispatched on May 10, 2021 to 3239 Continental Place for a “call for service” concerning a rape. He stated he briefly interviewed M.C. before she was taken to the hospital. Officer Donovan asserted that M.C. said her brother-in-law raped her at her residence located at 632 Sessions Lane, and that defendant was probably still in the shed in the backyard. While he spoke to M.C., other officers were sent to M.C.’s residence where they located defendant. Once he arrived at the scene, Officer Donovan testified defendant was advised of his Miranda rights, defendant indicated he understood his rights, and defendant was arrested. Officer Donovan testified he assessed the scene of the crime with a crime technician wherein evidence was collected and photographs were taken, which he identified in court.

After defendant was transported to the jail, Officer Donovan stated defendant was read his rights again from the Kenner Police Department's Advice of Rights form, and defendant signed the form. Officer Donovan asserted defendant admitted he had sex with M.C. multiple times. As a result of defendant's statement, Officer Donovan testified he obtained defendant's consent for a buccal swab.

Officer Donovan stated M.C. was taken to the hospital to receive a “rape examination,” and he conducted another interview with M.C., which was consistent with her earlier statement at the scene. Officer Donovan testified that neither M.C. nor defendant advised him that they were having an affair or that they were angry at each other. He did not observe bruising on M.C.’s neck or wrist or any injuries on defendant.

Detective Peter Foltz with the Kenner Police Department testified he was assigned to conduct a follow-up investigation on the alleged rape in this case. After reviewing Officer Donavan's initial report, Detective Foltz stated he met with M.C. and obtained a recorded statement. Detective Foltz testified that M.C.’s statement was consistent with her prior statement, but she provided more details. Detective Foltz asserted that at that time, M.C. also informed him that her husband received a letter from defendant, which he reviewed. Detective Foltz averred that photographs were taken of the call history and text messages on M.C.’s cell phone, which showed the time line of events as asserted by M.C. that occurred on May 10, 2021 after the rape (i.e., phone calls and text messages to M.C.’s husband, mother, and father and the 9-1-1 call).

Nanette Morales testified she was working as a sexual assault nurse examiner at Tulane-Lakeside Hospital in May 2021 and conducted a sexual assault exam of M.C. on May 10, 2021, utilizing a “PERK” kit. Ms. Morales stated M.C. described bruising on her legs and pain to her middle to lower back and neck. Ms. Morales testified that M.C. said her brother-in-law raped her and gave a narrative of what happened prior to her examination. Ms. Morales testified that the physical examination was normal but opined that this was not inconsistent with M.C.’s statement regarding what happened to her. Ms. Morales documented four bruises on M.C.’s body (i.e., on her chest, right and left thighs and right shin) and testified that these bruises were consistent with M.C.’s narrative.

Adriana Washington, an expert in the field of forensic DNA analysis, testified she analyzed several items from this case, including buccal swabs from M.C. and defendant. Ms. Washington asserted that the chemical presumptive test performed on the external genitalia perineal and “vaginal cervical” swabs tested positive for spermatozoa. A presumptive test for saliva on the external genitalia perineal swab was also positive. She asserted that the “epithelial fraction” of the external genitalia perineal swab taken from M.C. and the DNA obtained from “sperm fraction” showed it was at least a hundred billion times more likely that the DNA originated from M.C. and defendant than if it originated from her and an unknown contributor. Ms. Washington testified defendant was excluded as a contributor of the DNA as to the “epithelial fraction” of the vaginal cervical swab.

At trial, defendant testified on his own behalf and denied all allegations made by M.C. Specifically, defendant asserted he did not rape, choke, or injure M.C. He maintained he had consensual sexual relations with M.C. multiple times over a four to five month period, including on the morning of the alleged rape. He averred that on the previous night, they had agreed to have sex in the morning after his brother went to work. Defendant testified M.C. came to the shed to get him and brought him to her bedroom in the house. Defendant testified that after they had sex, he informed M.C. they could no longer have sex and he was planning to tell his brother about the affair when he returned home from work because he “felt bad.” He asserted that M.C. reacted coldly. Afterwards, he returned to the shed and fell asleep. Defendant said the police arrived later that morning and arrested him. Defendant testified he informed the police, while at the police station, M.C. was lying and that they had an affair.

Defendant further admitted he sent a letter to his brother apologizing for the affair and requesting that M.C. drop the charges because he did not want to go to jail for something he did not do. Defendant then acknowledged the letter did not state he was having an affair with M.C. He testified that the letter did not state anything about the affair because he did not “like to write things like that, personal things on paper,” and that his brother would not believe him.

Granado-Gonzalez, 392 So.3d at 911–15 (internal footnotes omitted).

ANALYSIS

Defendant appeals his sentence of eighteen years imprisonment for third-degree rape and raises five sentencing-related assignments of error, including that: (1) the trial court erred in imposing an excessive sentence; (2) the trial court erred by failing to comply with the sentencing mandates of La. C.Cr.P. art. 894.1; (3) the trial court erred by failing to order a presentence investigation report; (4) the trial court erred by denying the motion to reconsider sentence; and (5) the Defendant was denied the effective assistance of counsel as a result of his counsel's failure to articulate in the motion to reconsider sentence the trial court's omissions with respect to its failure to order a presentence investigation report.

Below, we will discuss Defendant's first and fourth assignments together; then, Defendant's second, third, and fifth assignments in turn; and finally, our errors patent review.

Assignments Nos. 1 & 4: Excessive Sentence/Motion to Reconsider

In his first and fourth assignments of error, Defendant claims that the eighteen-year sentence imposed by the trial court is excessive and, thus, the trial court erred in denying his motion to reconsider sentence. Defendant argues that the facts do not support his sentence because, although charged with second-degree rape, the jury found him guilty on the lesser-included offense of third-degree rape, which he contends is a “non-violent offense” and, as such, shows that the jury did not find the victim's testimony about violence credible. Defendant also argues his sentence is excessive as he has no prior convictions for sex offenses, the victim was an adult who knew the Defendant, and the victim did not suffer any physical injuries. Defendant further argues that the record does not support his sentence specifically due to the trial court's failure to articulate its reasons for sentencing under La. C.Cr.P. art. 894.1 and its failure to order a presentence investigation report. Defendant concludes that the trial court's sentence was grossly disproportionate to the offense and, as a result, unconstitutionally excessive.

The State asserts that the trial court's sentence is not excessive given the serious nature of the offense, the physical and emotional harm suffered by the victim, and the Defendant's prior criminal offenses. The State also emphasizes that the sentence imposed is below the statutory maximum. The State further asserts that the record contains an adequate factual basis for Defendant's sentence and concludes that the trial court did not abuse its broad discretion relative to the sentence imposed or in denying Defendant's motion to reconsider.

The Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution prohibit cruel and unusual punishment, including the imposition of excessive punishment. A sentence is considered excessive, even if it is within the statutory limits, if it is grossly disproportionate to the severity of the offense or imposes needless and purposeless pain and suffering. State v. Dixon, 17-422 (La. App. 5 Cir. 3/14/18), 241 So.3d 514, 523, writ denied, 18-542 (La. 2/11/19), 263 So.3d 415. A sentence is grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. Id.

A trial judge has broad discretion in imposing a sentence, and a reviewing court may not set a sentence aside absent a clear abuse of that discretion. State v. Gassenberger, 23-148 (La. App. 5 Cir. 12/20/23), 378 So.3d 820, 841. The trial court is accorded such great discretion because it remains in the best position to assess the aggravating and mitigating circumstances of a particular case. State v. Robertson, 23-525 (La. App. 5 Cir. 10/23/24), 398 So.3d 767, 775. The issue on appeal is whether the trial court abused its discretion when sentencing the defendant, not whether another sentence may have been more appropriate. Id. An appellate court shall not set aside a sentence for excessiveness if the record supports the sentence imposed. State v. Stewart, 24-50 (La. App. 5 Cir. 10/30/24), 398 So.3d 812, 824, writ denied, 24-1445 (La. 2/19/25), 400 So.3d 931.

In evaluating whether a sentence is excessive, although there is no requirement that specific matters be given any particular weight at sentencing, appellate courts generally consider three primary factors: 1) the nature of the crime; 2) the nature and background of the offender; and 3) the sentence imposed for similar crimes by the same court and other courts. Id. at 824–25. In determining what sentence to impose, the trial court is not limited to considering only the defendant's prior convictions; it may consider all prior criminal activity and rely upon sources of information usually excluded from evidence during the guilt or innocence phase such as hearsay testimony, arrest history, and records of uncharged or nolle prossed offenses. See State v. Arceneaux, 19-472 (La. App. 5 Cir. 1/29/20), 290 So.3d 313, 316, writ denied, 20-324 (La. 5/14/20), 296 So.3d 608; State v. Howard, 18-159 (La. App. 5 Cir. 11/7/18), 259 So.3d 583, 592, writ denied, 18-2034 (La. 4/29/19), 268 So.3d 1031. Generally, courts reserve maximum sentences for cases involving the most serious violations of the offense charged and the worst type of offender. Stewart, 398 So.3d at 824–25.

Here, Defendant was charged with second-degree rape in violation of La. R.S. 14:42.1 but was convicted of the lesser-included offense of third-degree rape in violation of La. R.S. 14:43, which provides for a sentence of imprisonment at hard labor, without benefit of parole, probation, or suspension of sentence, for not more than twenty-five years. La. R.S. 14:43(B). Third-degree rape is designated as a crime of violence under La. R.S. 14:2(B)(11). The trial court sentenced Defendant to eighteen years imprisonment at hard labor, which is less than the maximum sentence available under the applicable statute.

As to the nature of the crime, the trial evidence showed that Defendant raped his sister-in-law, M.C., in her home after her husband left for work. Although he had limited permission to enter, he used this access to isolate and assault her. M.C. resisted, but Defendant overpowered her. During her testimony she described the terror she felt believing she would die. Medical records confirmed her injuries, including bruises and pain. At sentencing, M.C.’s victim impact statement detailed the physical, mental, and emotional harm she suffered because of Defendant's assault. She also described the impact on her relationship with her husband and their marriage. She experiences near-constant anxiety, meets regularly with a psychiatrist and therapist, and takes antidepressants. Simply put, M.C. described the assault as life-altering.

As it relates to his nature and background, Defendant's own testimony at trial was crucial. Defendant testified in his own defense and admitted to the acts for which he was arrested, although he claimed the acts were consensual. He also admitted to sending his brother—the victim's husband—a letter apologizing and asking them not to pursue criminal charges against him. Defendant provided further testimony at trial about his criminal background, including testimony admitting that in 2015 he pled guilty to aggravated assault with serious bodily injury in Texas, for which he received a four-year sentence. Defendant also admitted his involvement in another physical altercation in Georgia prior to his Texas conviction. These admissions reflect that Defendant had a predisposition toward violence and a prior record of physical altercations.

Lastly, with respect to sentences imposed for similar crimes by the same court and other courts, we find support for the sentence imposed. This Court has affirmed the imposition of fifteen-year or higher sentences for similarly situated defendants convicted of third-degree rape. In State v. Williams, this Court affirmed the trial court's imposition of a fifteen-year sentence after a jury convicted the defendant of third-degree rape in violation of La. R.S. 14:43 (simple rape). 05-673 (La. App. 5 Cir. 3/14/06), 926 So.2d 665, writ denied, 06-0870 (La. 10/13/06), 939 So.2d 360. On appeal, the defendant challenged his sentence as excessive, in part, because he was twenty-four years-old at the time he committed the offense, and this was his first felony conviction. Id. at 667–68, 674. This Court held that the mid-range sentence was not constitutionally excessive given that the offense carried a maximum penalty of twenty-five years and that the trial court considered the guidelines under La. C.Cr.P. art. 894.1. Id. at 672–75. In support, this Court cited its prior decision in State v. Wilkinson, 00-339 (La. App. 5 Cir. 10/18/00), 772 So.2d 758, writ denied, 00-3161 (La. 10/12/01), 799 So.2d 494, where it held that the defendant's twenty-year sentence for simple rape was not excessive, despite the defendant's argument that the trial court failed to consider his lack of prior felonies.  ³ Id. at 674.

Other courts have also upheld fifteen-year or higher sentences for similarly situated defendants convicted of third-degree rape. In State v. Cleveland, the Louisiana Fourth Circuit considered whether the trial court's sentence of the defendant to fifteen-years imprisonment for a third-degree rape conviction was excessive. 12-163 (La. App. 4 Cir. 4/10/13), 115 So.3d 578, 580, writ denied, 13-926 (La. 11/8/13), 125 So.3d 444. The court held that it wasn't. Id. at 588–89. In that case, the adult-female victim was raped by the defendant who was a stranger to her. Id. at 581. The defendant admitted to having sex with the victim but claimed it was consensual. Id. at 582–83. The victim admitted that she had been intoxicated when the defendant attacked her, but that she has no memory of ever consenting to or having sex with the defendant. Id. at 581. On appeal, the Fourth Circuit found that, although the trial court did not consider the La. C.Cr.P. art. 894.1 criteria, there was nevertheless an adequate factual basis in the record for the sentence imposed. Id. at 588. For his conviction of third-degree rape, the defendant faced a maximum sentence of twenty-five years yet received fifteen-years instead. Id. at 589. The Fourth Circuit concluded that such a sentence is just “a little beyond a mid-range sentence” and therefore not excessive, which is a position that finds support across many other Louisiana jurisdictions that have held like sentences not to be excessive. Id. (listing cases).

In State v. L.A.C., the Louisiana Third Circuit considered whether the trial court's seventeen-year sentence of the defendant for third-degree rape was excessive. 07-1411 (La. App. 3 Cir. 4/30/08), 982 So.2d 277, 278. The defendant was initially charged with the aggravated rape of his granddaughter; however, he was later allowed to enter an Alford plea to the reduced charge of third-degree rape under La. R.S. 14:43. Id. The trial court sentenced him to seventeen-years imprisonment at hard labor, without benefit of parole, probation, or suspension of sentence. Id. On appeal, the Third Circuit found no abuse of discretion by the trial court in imposing defendant's sentence since it was within the statutory maximum limit of twenty-five years. Id. at 279–80. Although the record supported sentencing the defendant to the maximum allowed given the age of his victim and their familial ties, in that case, the trial court imposed a seventeen-year sentence as it was within its discretion to do so. Id. The appellate court found the trial court did not abuse its discretion in imposing the defendant's sentence. Id. at 280.

In the present case, the record reflects that the victim experienced lasting emotional and physical harm and that the offense involved an abuse of trust and bodily force. The court heard a detailed victim impact statement describing severe trauma, lasting anxiety, and a complete disruption of the victim's life. This Court and other courts have imposed sentences like the one imposed on Defendant for similarly situated defendants. Considering the nature of the crime, background and nature of Defendant, and similar cases, the trial court did not abuse its discretion by imposing an eighteen-year sentence for Defendant's conviction of third-degree rape. In light of the foregoing, we find that the sentence imposed is not constitutionally excessive. The sentence is lawful and is neither grossly disproportionate to the severity of the offense nor shocking to our sense of justice. As such, we also find that the trial court did not err in denying Defendant's motion to reconsider that sentence. Thus, these assignments lack merit.

Assignment No. 2: Compliance with La. C.Cr.P. art. 894.1

In his second assignment of error, Defendant argues that the trial court did not articulate any reasoning to justify his eighteen-year sentence and, as a result, failed to comply with the sentencing guidelines of La. C.Cr.P. art. 894.1.⁴ In doing so, Defendant asserts, the trial court did not give “due weight” to factors which would have compelled a lesser sentence. Defendant argues that the trial court record does not support his near-maximum sentence and that, as a result, the sentence is unconstitutionally excessive.

The State asserts that La. C.Cr.P. art. 894.1 sets forth general guidelines for sentencing but that, as recognized by Louisiana Supreme Court, a trial court's “failure to comply with the article does not automatically render a sentence invalid.” State v. Lanclos, 419 So.2d 475, 477–78 (La. 1982). The State points out that, at Defendant's original sentencing, the trial court stated it was imposing the sentence “in accordance with Code of Criminal Procedural Article 894.1.” However, even if the trial court did not strictly adhere to the requirements of La. C.Cr.P. art. 894.1, the State argues that the record nevertheless contains an adequate factual basis for Defendant's sentence.

Pursuant to La. C.Cr.P. art. 894.1(A), when a defendant has been convicted of a felony or misdemeanor, the court should impose a sentence of imprisonment if there is undue risk that the defendant will commit another crime, the defendant needs a specific treatment provided most effectively by commitment, or a lesser sentence would deprecate the seriousness of the defendant's crime. Part (B) of Article 894.1 lists suggested considerations for the court when determining if a sentence should be suspended or if probation should be imposed. And Part (C) 894.1 provides that the court “shall state for the record the considerations taken into account and the factual basis therefor in imposing sentence.”

Here, the record does not reflect that the trial court stated reasons for the sentences on the record. Recently, in a similar case, State v. Acevedo, this Court found that the trial court did not articulate any reasons for imposing a twenty-year sentence and did not reference the La. C.Cr.P. art. 894.1 sentencing guidelines. 22-124 (La. App. 5 Cir. 12/28/22), 356 So.3d 1137, 1146, writ denied, 23-112 (La. 11/15/23), 373 So.3d 76. The defendant in Acevedo alleged that the trial court's twenty-year sentence for possession of over 400 grams of cocaine was excessive because the trial court failed to consider La. C.Cr.P. art. 894.1 and failed to articulate reasons for the sentence imposed. Id. at 1145. This Court stated:

Where the record clearly shows an adequate factual basis for the sentence imposed, remand for resentencing is unnecessary even where there has not been full compliance with Article 894.1. State v. Garrison, 15-285 (La. App. 5 Cir. 12/23/15), 184 So.3d 164, 171, writ denied, 16-258 (La. 2/10/17), 215 So.3d 700. In addition, a remand for more complete compliance with La. C.Cr.P. art. 894.1 is not required when the sentence imposed is not “apparently severe.” State v. Chess, 00-163 (La. App. 5 Cir. 6/27/00), 762 So.2d 1279, 1283.

In the present case, we acknowledge that the trial court did not articulate any reasons for imposing the twenty-year sentence, nor did it reference the sentencing guidelines set forth in La. C.Cr.P. art. 894.1. However, under the particular facts of this case, we find that a remand to the trial court for resentencing is not warranted because the record supports the sentence imposed, and the sentence is not apparently severe.

Id. at 1146.

In Acevedo, this Court specifically found that the State produced evidence to show that the defendant was in possession of a large amount of cocaine and further witness testimony supported the conviction. Id. This Court cited to the Louisiana First Circuit's decision in State v. Honea, 18-18 (La. App. 1 Cir. 12/21/18), 268 So.3d 1117, 1120, where the appellate court stated that, even “when a trial court assigns no reasons, the sentence will be set aside on appeal and remanded for resentencing only if the record is either inadequate or clearly indicates that the sentence is excessive.” Acevedo, 356 So.3d at 1146 n.6.

In the present case, we acknowledge that the trial court did not articulate any reasons for imposing the sentence or reference the sentencing guidelines set forth in La. C.Cr.P. art. 894.1. However, under the particular facts of this case, the record contains a factual basis for the sentence imposed. The judge presided over the entire trial and heard all evidence. Notably, Defendant testified in his own defense and admitted to the acts for which he was arrested, although he claimed the acts were consensual. He also admitted to sending his brother—the victim's husband—a letter apologizing and asking them not to pursue criminal charges against him. Defendant provided further testimony at trial about his criminal background, including testimony admitting that in 2015 he pled guilty to aggravated assault with serious bodily injury in Texas, for which he received a four-year sentence. Defendant also admitted his involvement in another physical altercation in Georgia prior to his Texas conviction. The trial court also heard the victim's impact statement detailing the substantial trauma and harm caused by Defendant's actions. The victim's husband also testified about the impact of Defendant's actions on their finances, their feelings of intimacy as a couple, and their physical security and safety.

Although Defendant's potential maximum sentencing exposure was twenty-five years, the trial court imposed a lower sentence of eighteen-years. We find that there is an adequate factual basis for Defendant's sentence contained in the record and that the trial court did not abuse its discretion by imposing such a sentence. Accordingly, we conclude that remand is not required for the trial court to articulate factors upon which it relied in sentencing Defendant. Thus, this assignment lacks merit.

Assignment No. 3: PSI Report

In his third assignment of error, Defendant argues that the trial court erred by failing to order a presentence investigation (PSI) report, which he believes was necessary for the trial court to “acquaint itself with the person who it was damning for such a lengthy duration.” Under La. C.Cr.P. art. 875(A)(1), a trial court may order a PSI when the defendant is convicted of a felony to provide the court with information to consider for sentencing. The use of the word “may” in the article indicates that the trial court's choice to do so is discretionary rather than mandatory. Robertson, 398 So.3d at 778. As recognized by the Louisiana Supreme Court, a PSI is an aid to the court, not a right of the defendant, and the court is not required to order that the report be prepared. Id. (citing State v. Bell, 377 So.2d 275 (La. 1979)).

Here, it was within the trial court's discretion to order a PSI, and Defendant fails to show the trial court abused that discretion in deciding not to do so. While Defendant asserts that a PSI would have provided the trial court with mitigating information justifying a lower sentence, he fails to identify what mitigating information be believes the report would have contained if ordered or how the absence of that mitigating information has prejudiced him. Additionally, no objection to the lack of a PSI was made at either the sentencing or resentencing hearings. Accordingly, we find that the trial court did not abuse its discretion in not ordering a presentence investigation report. See State v. Woods, 20-73 (La. App. 5 Cir. 9/9/20), 303 So.3d 403, 410, writ denied, 21-27 (La. 2/17/21), 310 So.3d 1150 (finding that the ordering of a PSI was discretionary, that no objection was made to the lack of a PSI, and therefore, the trial court did not abuse its discretion in not ordering one). Thus, this assignment lacks merit.

Assignment No. 5: Ineffective Assistance of Counsel

In his fifth and final assignment of error, Defendant argues that he was denied the effective assistance of counsel because his attorney did not raise the issue of the trial court's failure to order a PSI report in the motion to reconsider sentence. Under the Sixth Amendment to the United States Constitution and Article I, § 13 of the Louisiana Constitution, a defendant is entitled to effective assistance of counsel. State v. McMillan, 23-317 (La. App. 5 Cir. 12/27/23), 379 So.3d 788, 798–99, writ denied, 24-131 (La. 9/4/24), 391 So.3d 1057. To prove ineffective assistance of counsel, a defendant must show: (1) that counsel's performance was deficient, that is, that the performance fell below an objective standard of reasonableness under prevailing professional norms; and (2) that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

An error is considered prejudicial if it was so serious as to deprive the defendant of a fair trial, or “a trial whose result is reliable.” Id. To prove prejudice, the defendant must demonstrate that, but for counsel's unprofessional conduct, the outcome of the trial would have been different. State v. Robinson, 23-277 (La. App. 5 Cir. 6/28/23), 368 So.3d 737, 742, writ denied, 23-1042 (La. 12/5/23), 373 So.3d 979 (relying on Strickland). To prevail, the accused must overcome a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. State v. Gatson, 21-156 (La. App. 5 Cir. 12/29/21), 334 So.3d 1021, 1040. Any inquiry into the effectiveness of counsel must be specific to the facts of the case and must take into consideration the counsel's perspective at the time. Id. The Sixth Amendment does not guarantee errorless counsel or counsel judged ineffective by hindsight. State v. Robinson, 22-310 (La. App. 5 Cir. 4/12/23), 361 So.3d 1107, 1121.

Generally, a claim of ineffective assistance of counsel is most appropriately addressed through an application for post-conviction relief, rather than on direct appeal, to afford the parties an adequate record for review. Robertson, 398 So.3d at 779. However, when the record contains sufficient evidence to rule on the merits of the claim and the issue is properly raised by an assignment of error on appeal, it may be addressed in the interest of judicial economy. Id. Given the nature of this particular claim regarding Defendant's sentence, we find the appellate record contains sufficient evidence for this Court to address, on direct review, the merits of Defendant's ineffective assistance of counsel claim.

Here, although defense counsel filed a motion to reconsider sentence, Defendant challenges the effectiveness of counsel in doing so because counsel failed to raise the issue of the trial court's failure to order a PSI in the motion. This Court has rejected this argument in cases like this one. For example, in State v. Robertson, the defendant raised an ineffective assistance of counsel claim based in part on his attorney's failure to file a motion to reconsider sentence that addressed the trial court's failure to order a PSI. 398 So.3d at 779–80. This Court denied that claim and reiterated that a PSI is an aid to the trial court, not a right of the defendant, and that the decision to order one is discretionary under La. C.Cr.P. art. 875. Id. In the instant matter, given that Defendant is not entitled to a PSI, he fails to show how his counsel's failure to preserve the issue for appeal was deficient. Additionally, Defendant does not specify what information might have been obtained from a PSI or argue how that information would have resulted in the imposition of a less severe sentence. As a result, Defendant fails to show how he was prejudiced by counsel's performance. Because Defendant has not satisfied his burden under Strickland, we accordingly conclude that his claim of ineffective assistance of counsel does not warrant relief. Thus, this assignment lacks merit.

Errors Patent

We have reviewed the record for errors patent in accordance with La. C.Cr.P. art. 920, State v. Oliveaux, 312 So.2d 337 (La. 1975), and State v. Weiland, 556 So.2d 175 (La. App. 5 Cir. 1990). Our review revealed the following errors.

1. Crime Lab Fee/Financial Hardship Hearing

As part of Defendant's sentence, the trial court ordered Defendant to pay a crime lab fee of $750. Pursuant to La. C.Cr.P. art. 875.1, the trial court is required to conduct a hearing to determine whether payment of any fine, fee, cost, restitution, or monetary obligation would cause substantial financial hardship to the defendant or his dependents. Here, there is no indication in the record that the trial court conducted a hearing or that Defendant waived this judicial determination. Accordingly, we vacate the financial obligation imposed on Defendant as part of his sentence and remand this case for compliance with La. C.Cr.P. art. 875.1. See State v. Chest, 24-199 (La. App. 5 Cir. 2/26/25), 406 So.3d 684, 701, writ denied, 25-387 (La. 5/20/25), 409 So.3d 222 (vacating part of sentence imposing $250 crime lab fee and remanding matter to trial court for compliance with La. C.Cr.P. art. 875.1).

2. Sex Offender Registration

Pursuant to La. R.S. 15:543(A), the trial court is required to notify a defendant charged with a sex offense in writing of the registration requirements under La. R.S. 15:542. Here, the record from Defendant's first appeal does not reflect that he was provided with written notice of sex offender registration requirements at the original sentencing on March 15, 2023. However, the record shows that he was provided written notice shortly thereafter during a scheduled multiple bill and motion to reconsider sentence hearing on April 20, 2023. Written proof that Defendant was advised of the sex offender requirements was filed into the record well-before Defendant's resentencing on September 19, 2024.

This Court has previously found that when the record contains written proof that Defendant was advised of the sex offender requirements during original sentencing, no further advisal was necessary upon resentencing. See State v. Alfaro, 14-759 (La. App. 5 Cir. 2/11/15), 168 So.3d 761, 765, writ denied, 15-593 (La. 2/19/16), 186 So.3d 1174, and writ denied, 15-638 (La. 2/19/16), 186 So.3d 1175; State v. Bolden, 04-1000 (La. App. 5 Cir. 3/1/05), 901 So.2d 445, 447, writ denied, 05-2030 (La. 4/28/06), 927 So.2d 279. We find that the trial court's written advisal of the sex offender requirements provided to Defendant shortly after his original sentencing, but well-before his resentencing, was sufficient.

3. Self-Help Program Recommendation

At Defendant's resentencing, the trial court stated that it “will allow him to participate in any self-help or rehab program during the term of his incarceration.” (emphasis added). The trial court's September 24, 2024 Nunc Pro Tunc minute entry and uniform commitment order (UCO) regarding resentencing provided, specific to self-help programs, that “On September 19, 2024, the Court recommended any self-help and drug rehabilitation programs offered by the Department of Corrections the Defendant is eligible for and has availability for the Defendant's participation.” (emphasis added). This Court has long held that, although the trial court may recommend self-help programs to a defendant, “the trial court has no authority to dictate how defendant's sentence is to be served once he is in the custody of the Department of Corrections.” State v. Goff, 13-866 (La. App. 5 Cir. 4/9/14), 140 So.3d 146, 152, writ denied, 14-1018 (La. 12/8/14), 153 So.3d 440. The pertinent question is what constitutes a recommendation versus an order.

For example, at the defendant's sentencing hearing in State v. Goff, the trial court “ordered that defendant be afforded treatment,” id. at 152; and, although it did not specifically order drug treatment, the transcript indicated that defense counsel requested the trial court order drug treatment for defendant. Id. at 152 n.6. The sentencing minute entries reflected the same. Id. at 152. On appeal, this Court found that the trial court's statement was an order and not merely a recommendation. Id. The transcript prevails where there is an inconsistency between the minute entry and the transcript. See State v. Lynch, 441 So.2d 732, 734 (La. 1983). As a result, this Court amended the sentence to delete the requirement of, rather than recommendation of, participation in treatment pursuant to La. C.Cr.P. art. 882(A),⁵ but remanded the matter to the trial court for correction of the sentencing minute entries. Id.

Recently considering the same issue, this Court found in State v. Sheppard that the trial court imposed an illegal sentence by stating that it “will order any and all programs available in the Department of Corrections for you to participate in while you're there.” 24-209 (La. App. 5 Cir. 4/30/25), 414 So.3d 22, 38 (emphasis in original). The sentencing minute entry and UCO, however, reflected that the trial court “recommended any and all programs available in the Department of Corrections.” Id. (emphasis in original). As a result, this Court—like in Goff—amended the trial court's sentence to reflect a recommendation. Id. However, unlike in Goff, this Court did not remand the matter to the trial court to correct the sentencing minute entry and UCO because both already reflected the trial court's recommendation instead of an order. Id.

In the instant case, the issue is whether “will allow” constitutes a recommendation by the trial court or an order. We find that the trial court's sentencing minute entry and UCO, which both use the word “recommend,” reflect its original intent to be a recommendation, not an order. As such, even if the trial court's statement was determined to be an order, no corrective action would be necessary. Therefore, like in Sheppard, since the sentencing minute entry and UCO already reflect the trial court's intent as a recommendation instead of an order, in remanding the case to the trial court to address the efficacy of the financial part of the sentence, we decline to order correction of either the sentencing minute entry or UCO as each pertains to Department of Corrections self-help programs.

DECREE

For the foregoing reasons, we affirm Defendant's sentence in all respects except the imposition of the financial obligation. We vacate that portion of Defendant's sentence which imposed the payment of a $750.00 crime lab fee and remand this matter to the trial court for compliance with La. C.Cr.P. art. 875.1.

AFFIRMED IN PART AND VACATED IN PART; REMANDED WITH INSTRUCTIONS

FIFTH CIRCUIT

101 DERBIGNY STREET (70053)

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SUSAN M. CHEHARDY CHIEF JUDGE

FREDERICKA H. WICKER

JUDE G. GRAVOIS

MARC E. JOHNSON

STEPHEN J. WINDHORST

JOHN J. MOLAISON, JR.

SCOTT U. SCHLEGEL

TIMOTHY S. MARCEL

JUDGES

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FOOTNOTES

1.   Prior to August 1, 2015, what is now termed third-degree rape under La. R.S. 14:43 was entitled simple rape. Now, La. R.S. 14:43, as amended by La. Acts 2015, No. 184, § 1 (effective Aug. 1, 2015), provides that “for all purposes, “simple rape” and “third degree rape” mean the offense defined by the provisions of this Section and any reference to the crime of simple rape is the same reference to the crime of third degree rape. Any act in violation of the provisions of this Section committed on or after August 1, 2015, shall be referred to as “third degree rape.” La. R.S. 14:43(C).For clarity and consistency, all references to the offense referred to under La. R.S. 14:43 will hereinafter be referred to as only “third-degree rape.”

2.   Id. at 918 (finding trial court failed to observe twenty-four-hour delay between the denial of Defendant's motions for post-verdict judgment of acquittal and new trial, and the sentencing as mandated by La. C.Cr.P. art. 873).

3.   See e.g., State v. Starr, 08-341 (La. App. 5 Cir. 11/25/08), 2 So.3d 451, writ denied, 08-2991 (La. 9/18/09), 17 So.3d 384 (affirming sentence of sixteen years and eight months for defendant convicted of third-degree rape); State v. Rogers, 99-1378 (La. App. 5 Cir. 11/28/00), 772 So.2d 960, writ denied, 01-204 (La. 12/7/01), 802 So.2d 641 (affirming fifteen-year sentence for defendant convicted of third-degree rape).

4.   Following resentencing, Defendant filed a motion to reconsider sentence, in part, on the basis that the trial court failed to consider the sentencing guidelines in La. C.Cr.P. art. 894.1, which the trial court denied on September 25, 2025. Defendant therefore preserved the issue for review on appeal. See La. C.Cr.P. art 881.1; Robertson, 398 So.3d at 775.

5.   Under La. C.Cr.P. art. 882(A), an illegal sentence may be corrected at any time by the court that imposed the sentence or by an appellate court on review when such correction does not involve the exercise of sentencing discretion. See State v. Webre, 09-351 (La. App. 3 Cir. 11/4/09), 21 So.3d 1154, 1159.

FREDERICKA HOMBERG WICKER JUDGE