STATE OF LOUISIANA v. ROGELIO LUCATER GONZALEZ (2017)

MURPHY, J.

Defendant, Rogelio Gonzalez, appeals his sentence following conviction for sexual battery of a juvenile. For the reasons that follow, we affirm.

PROCEDURAL HISTORY

This case comes before us for the second time on appeal. In defendant's prior appeal, State v. Gonzalez, 15-26 (La. App. 5 Cir. 8/25/15), 173 So.3d 1227, writ denied, 15-1771, 2016 La. LEXIS 1955 (La. 9/23/16), this Court affirmed defendant's convictions for aggravated rape and sexual battery, affirmed defendant's life sentence for aggravated rape, vacated his illegal 25-year sentence for sexual battery,¹ and remanded the matter for resentencing. After remand, on January 7, 2016, the trial court sentenced defendant to ten years without benefit of parole, probation, or suspension of sentence on the sexual battery conviction (count two) to run concurrently with defendant's life sentence on count one. Defendant filed a motion for an out of time appeal on February 23, 2017, which was granted. The instant appeal follows.

LAW AND ANALYSIS

In his sole counseled assignment of error, and in his first pro se assignment of error, defendant asserts that the ten-year sentence for his sexual battery conviction is excessive. Conversely, the State argues that the sentence imposed is not grossly disproportionate and is supported by the record.

At the outset, we note that defendant did not object at the time of sentencing, nor did he file a written motion to reconsider sentence. Accordingly, defendant is limited to a bare review for constitutional excessiveness by this Court. State v. Dupre, 03-256 (La. App. 5 Cir. 5/28/03), 848 So.2d 149, 153, writ denied, 03-1978 (La. 5/14/04), 872 So.2d 509.

The Eighth Amendment to the U.S. Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. State v. Nguyen, 06-969 (La. App. 5 Cir. 4/24/07), 958 So.2d 61, 64, writ denied, 07-1161 (La. 12/7/07), 969 So.2d 628. 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. Nguyen, 958 So.2d at 64. In reviewing a sentence for excessiveness, the appellate court must consider the punishment and the crime in light of the harm to society and gauge whether the penalty is so disproportionate as to shock the sense of justice. State v. Taylor, 06-839 (La. App. 5 Cir. 3/13/07), 956 So.2d 25, 27, writ denied, 06-0859 (La. 6/15/07), 958 So.2d 1179 (citing State v. Lobato, 603 So.2d 739, 751 (La. 1992); State v. Pearson, 07-332, 07-333, 07-539 (La. App. 5 Cir. 12/27/07), 975 So.2d 646, 655-56).

According to La. C.Cr.P. art. 881.4(D), the appellate court shall not set aside a sentence for excessiveness if the record supports the sentence imposed. In reviewing a sentence for excessiveness, the reviewing court shall consider the crime and the punishment in light of the harm to society and gauge whether the penalty is so disproportionate as to shock the court's sense of justice, while recognizing the trial court's wide discretion. Nguyen, 958 So.2d at 64. In reviewing a trial court's sentencing discretion, three factors are considered: 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. State v. Allen, 03-1205 (La. App. 5 Cir. 2/23/04), 868 So.2d 877, 880 (citation omitted). However, there is no requirement that specific matters be given any particular weight at sentencing. State v. Tracy, 02-0227 (La. App. 5 Cir. 10/29/02), 831 So.2d 503, 516, writ denied, 02-2900 (La. 4/4/03), 840 So.2d 1213 (citation omitted).

In the instant case, defendant received the maximum sentence under the version of La. R.S. 14:43.1(C) in effect at the time the offense was committed. In State v. Anderson, 12-869 (La. App. 5 Cir. 06/27/13), 121 So.3d 119, writ denied, 13-1861 (La. 02/21/14), 133 So.3d 679, this Court considered a similar issue of whether the maximum sentences imposed for two counts of sexual battery of a juvenile, which occurred in connection with other forms of sexual abuse, was excessive. We upheld the defendant's sentences in that case, taking into account the jurisprudence ² which indicates that maximum terms of imprisonment are not excessive when the defendant has exploited a position of trust to commit the sexual battery of a juvenile. Id at 126-27. Here, the evidence presented at trial showed that defendant, a relative left in a position of authority, as a babysitter or caregiver, raped and sexually abused the victim when she was between the ages of nine and ten. We find that defendant's ten-year sentence, which runs concurrently with his life sentence for aggravated rape, is supported by the record, and is not constitutionally excessive.³ These assignments of error by counsel and defendant are without merit.

In his second pro se assignment of error, defendant contends that his sentence for sexual battery is illegal because the trial court did not first vacate his sentence for the aggravated rape conviction prior to re-sentencing him. As noted above, defendant's conviction and sentence for aggravated rape were previously affirmed in his first appeal. We remanded the matter to the trial court for the limited purpose of re-sentencing defendant for his sexual battery of a juvenile conviction, and the trial court fully complied with this Court's order. Defendant's assignment is without merit.

ERROR PATENT DISCUSSION

The record was reviewed for errors patent, according to 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 no errors.

DECREE

Accordingly, for the reasons provided herein, defendant's sentence for sexual battery of a juvenile is affirmed.

AFFIRMED

SUSAN M. CHEHARDY CHIEF JUDGE

FREDERICKA H. WICKER JUDE G. GRAVOIS MARC E. JOHNSON ROBERT A. CHAISSON ROBERT M. MURPHY STEPHEN J. WINDHORST HANS J. LILJEBERG JUDGES

FIFTH CIRCUIT

101 DERBIGNY STREET (70053)

POST OFFICE BOX 489

GRETNA, LOUISIANA 70054

www.fifthcircuit.org

CHERYL Q. LANDRIEU CLERK OF COURT

MARY E. LEGNON CHIEF DEPUTY CLERK

SUSAN BUCHHOLZ FIRST DEPUTY CLERK

MELISSA C. LEDET DIRECTOR OF CENTRAL STAFF

(504) 376-1400

(504) 376-1498 FAX

NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY

I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY NOVEMBER 15, 2017 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

CHERYL Q. LANDRIEU CLERK OF COURT

17-KA-249

E-NOTIFIED

24TH JUDICIAL DISTRICT COURT (CLERK)

HON. LEE V. FAULKNER, JR. (DISTRICT JUDGE)

TERRY M. BOUDREAUX (APPELLEE)

HOLLI HERRLE-CASTILLO (APPELLANT)

MAILED

ROGELIO LUCATER GONZALEZ #618468 (APPELLANT)

LOUISIANA STATE PENITENTIARY

ATTENTION: TRISH FOSTER

ANGOLA, LA 70712

HON. PAUL D. CONNICK, JR. (APPELLEE)

DISTRICT ATTORNEY

TWENTY-FOURTH JUDICIAL DISTRICT

200 DERBIGNY STREET

GRETNA, LA 70053

FOOTNOTES

1.   In vacating the sentence as illegal, we noted that the sexual battery offense occurred on or between October 27, 2005, and April 21, 2006. At that time, La. R.S. 14:43.1(C) provided that: “[w]hoever commits the crime of sexual battery shall be punished by imprisonment, with or without hard labor, without benefit of parole, probation, or suspension of sentence, for not more than ten years.” State v. Gonzalez 173 So.3d at 1239.

2.   Specifically, this Court relied on State v. Morgan, 97-997 (La. App. 3 Cir. 2/4/98), 706 So.2d 1084; State v. Curtis, 08-99 (La. App. 3 Cir. 6/5/08), 987 So.2d 294; and State v. Dykes, 38,092 (La. App. 2 Cir. 3/3/04), 867 So.2d 908, writ denied, 04-847 (La. 9/24/04), 882 So.2d 1169.

3.   See, State v. Pearson, 07-332 (La. App. 5 Cir. 12/27/07), 975 So.2d 646, 656.

ROBERT M. MURPHY JUDGE