STATE v. LOMAS (2026)

The State charged defendant, Ernest Lee Lomas, Jr., by amended bill of information with molestation of a juvenile, a violation of La. R.S. 14:81.2. Defendant pled not guilty. Following a jury trial, the jury found him guilty as charged.¹ The trial court sentenced defendant to twenty years imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence. The State then filed a habitual offender bill of information alleging defendant to be a third-felony habitual offender. Following a hearing, the trial court adjudicated him as such,² vacated the original sentence, and sentenced him to forty years imprisonment without the benefit of parole, probation, or suspension of sentence.³ Defendant appeals, alleging various sentencing errors. For the following reasons, we affirm defendant's conviction and habitual offender adjudication, vacate his habitual offender sentence, and remand for resentencing.

FACTS

On July 11, 2022, A.K. disclosed to her mother that defendant, a longtime family friend, digitally penetrated her vagina earlier that day.⁴ A.K.’s mother then brought A.K. to Our Lady of the Lake Hospital in Walker, Louisiana, where A.K. underwent a sexual assault examination. DNA testing revealed that defendant's DNA profile was consistent with male DNA obtained from a swab of A.K.’s cervix. Pursuant to the investigation, law enforcement with the Livingston Parish Sheriff's Office arrested defendant for the instant offense. During the investigation and at trial, defendant denied the allegations.

ILLEGAL SENTENCE / DEFICIENT BILL OF INFORMATION

In his first assignment of error, defendant argues the trial court erred in sentencing him under the enhanced penalty provision for molestation of a juvenile when the offender has control or supervision over the victim. Defendant urges the State failed to charge him with the enhanced provision in the bill of information, the jury was not charged regarding the elements of the enhanced provision, and the jury did not return a verdict finding the State proved the enhanced provision beyond a reasonable doubt. Defendant concedes he failed to object to the bill of information, the jury charges, the verdict, and the sentence. However, he argues his sentence is illegal and in violation of Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 2362-2363, 147 L.Ed.2d 435 (2000). Therefore, defendant asserts he is entitled to raise these issues on appeal under La. Code Crim. P. art. 881.2.

The State urges this court not to review defendant's claims based on his failure to preserve the issues for appellate review. Alternatively, the State concedes the bill of information was deficient but argues that such error was harmless because defendant had notice of the charge against him, as well as the heightened sentencing exposure.

Lack of Objection

Generally, a defendant's failure to file a motion to reconsider the sentence precludes him from objecting to the sentence on appeal. La. Code Crim. P. art. 881.1(E). However, an appellate court may correct an illegal sentence on review. La. Code Crim. P. art. 882(A). An illegal sentence is one that exceeds the maximum sentence authorized by the statute under which the defendant was convicted and any applicable statutory enhancement provisions. See La. Code Crim. P. art. 881.2(A)(1). If this court were to find the trial court erroneously sentenced defendant under the enhanced sentencing provision, defendant's sentence would be illegal. Therefore, because defendant claims his sentence exceeds the maximum sentence authorized by the statute, we find the issue raised by defendant on appeal is properly before this court. See State v. O'Brien, 2022-212 (La. App. 3 Cir. 10/5/22), 2022 WL 5069501, *4 (unpublished) (reviewing defendant's claim that the trial court erroneously sentenced him under enhanced sentencing provision despite failure to object to sentence or move to reconsider sentence, where indictment and jury instructions did not allege additional element and State did not prove additional element); see also State v. Sandifer, 2016-0842 (La. App. 4 Cir. 6/27/18), 249 So.3d 142, 166, writs denied, 2018-1261, 2018-1310, 2018-1316 (La. 3/25/19), 267 So.3d 593, 599-600, cert. denied, 589 U.S. 1036, 140 S.Ct. 444, 205 L.Ed.2d 258 (2019).

To properly analyze defendant's claim, we must review the sufficiency of the bill of information. However, defendant failed to challenge such at the trial court. Defendant must challenge the sufficiency of a bill of information before trial through a motion to quash or an application for a bill of particulars. State v. Draughn, 2005-1825 (La. 1/17/07), 950 So.2d 583, 623, cert. denied, 552 U.S. 1012, 128 S.Ct. 537, 169 L.Ed.2d 377 (2007). A court should reject a post-verdict attack on the sufficiency of an indictment unless it failed to give a defendant fair notice of the offense charged or failed to set forth any identifiable offense. Id.

In a criminal prosecution, a defendant has a constitutional right to be advised of the nature and cause of the accusations against him. La. Const. art. I, § 13; Draughn, 950 So.2d at 623. This requirement is implemented, although not exclusively, by indictment or information. State v. Susan, 54,887 (La. App. 2 Cir. 3/8/23), 357 So.3d 1000, 1006, writ denied, 2023-00412 (La. 10/3/23), 370 So.3d 1071 (citing State v. Gainey, 376 So.2d 1240, 1242-1243 (La. 1979)). Louisiana Code of Criminal Procedure article 464 further provides:

The indictment shall be a plain, concise, and definite written statement of the essential facts constituting the offense charged. It shall state for each count the official or customary citation of the statute which the defendant is alleged to have violated. Error in the citation or its omission shall not be ground for dismissal of the indictment or for reversal of a conviction if the error or omission did not mislead the defendant to his prejudice.

Prior to trial, defendant filed a motion for bill of particulars but did not file a motion to quash any of the bills of information. Defendant did not attack the charging instrument on any specific grounds at any time and arguably waived any claim based on a defective bill of information. However, defendant's post-verdict attack may still be viable if the bill of information failed to give him fair notice of the offense charged. See Draughn, 950 So.2d at 623; State v. Callegan, 2024-0031 (La. App. 1 Cir. 11/13/24), 405 So.3d 924, 929, writ denied, 2024-01532 (La. 2/25/25), 401 So.3d 663. Accordingly, we must determine whether defendant had fair notice of the charge against him.

Fair Notice

The State initially charged defendant by bill of information with sexual battery in violation of La. R.S. 14:43.1. The full text of the bill read as follows:

At the conclusion of a pre-trial conference on June 11, 2024, the State indicated its intent to amend the bill of information to La. R.S. 14:81.2, molestation of a juvenile. However, the minutes from June 11, 2024, are silent as to any amendment of the bill of information and still reflect the charge as “sexual battery.”

On June 17, 2024, the State noted that the charge had previously been amended to molestation of a juvenile, La. R.S. 14:81.2, and asked that defendant be re-arraigned. Reading of the amended bill of information was waived, and defendant entered a not guilty plea. It is of note that although the June 17, 2024 minutes still indicated the charge as “sexual battery,” the State amended the bill of information by striking out “SEXUAL BATTERY” and writing above it “14:81.3 Molestation of a juvenile[.]” However, La. R.S. 14:81.3 governs the crime of computer-aided solicitation of a minor, not molestation of a juvenile. The full text of this amended bill, which was filed into the record on June 17, 2024, read as follows:

On June 18, 2024, the trial of this matter began. The minute clerk read the charges as follows:

THE MINUTE CLERK:

Docket Number 45431, Revised Statute 14:81.3, Molestation of a Juvenile. Ernest Lee Lomas, Junior, on or about July 11, 2022, committed molestation of a juvenile upon A.K., date of birth, 12/30/2006.

THE COURT:

And that was 81.2, correct, for the State?

[COUNSEL FOR THE STATE]:

That's correct, Judge. It's Revised Statute 14:81.2, molestation of a juvenile.

THE COURT:

And the defendant has entered a plea of not guilty.

Madame Clerk, if you would read the plea.

THE MINUTE CLERK:

This matter appeared on the docket this day for the purpose of arraignment. After being advised of his legal and constitutional rights and waiving the formal reading of the bill, the defendant entered a plea of not guilty to the charges.[5]

THE COURT:

The Indictment is based upon Louisiana Revised Statute 14:81.2

Subsequently, at some point after trial but prior to sentencing on July 8, 2024, the State again amended the bill of information to reflect the proper charging statute for molestation of a juvenile. The full text of this second amended bill of information read as follows:

We note that although the bills of information in this case were in the short form of indictment, sexual battery and molestation of a juvenile are not offenses that may be charged by short form indictment. See La. Code Crim. P. art. 465. Thus, the State should have charged defendant in the long form pursuant to Louisiana Code of Criminal Procedure article 464. See State v. Edwards, 283 So.2d 231, 232-233 (La. 1973); State v. Dugas, 94-769 (La. App. 3. Cir. 2/1/95), 649 So.2d 1193, 1194.

At the time of the offense,⁶ La. R.S. 14:81.2 provided, in pertinent part:

A. (1) Molestation of a juvenile is the commission by anyone over the age of seventeen of any lewd or lascivious act upon the person or in the presence of any child under the age of seventeen, where there is an age difference of greater than two years between the two persons, with the intention of arousing or gratifying the sexual desires of either person, by the use of force, violence, duress, menace, psychological intimidation, threat of great bodily harm, or by the use of influence by virtue of a position of control or supervision over the juvenile. ․

․

B. (1) Whoever commits the crime of molestation of a juvenile, when the victim is thirteen years of age or older but has not yet attained the age of seventeen, shall be fined not more than five thousand dollars, or imprisoned, with or without hard labor, for not less than five nor more than ten years, or both.

(2) Whoever commits the crime of molestation of a juvenile, when the victim is thirteen years of age or older but has not yet attained the age of seventeen, and when the offender has control or supervision over the juvenile, shall be fined not more than ten thousand dollars, or imprisoned, with or without hard labor, for not less than five nor more than twenty years, or both. ․

An offender may commit the crime of molestation of a juvenile in two ways, by performing a “lewd or lascivious act” either: (1) upon a child under the age of seventeen, or (2) in the presence of a child under the age of seventeen. See La. R.S. 14:81.2(A)(1); Dugas, 649 So.2d at 1195. The offender may accomplish a lewd or lascivious act through various methods such as “by the use of force” or “by the use of influence by virtue of a position of control or supervision over the juvenile.” See La. R.S. 14:81.2(A)(1).

Notably, such enumerated methods are separated by the word “or,” which is normally disjunctive.⁷ Thus, an offender may commit the crime of molestation of a juvenile without using influence through a position of control or supervision. See State v. Graham, 2014-1801 (La. 10/14/15), 180 So.3d 271, 274 (per curiam). The sentencing provision for the basic crime of molestation of a juvenile is found in La. R.S. 14:81.2(B)(1). State v. Johnson, 42,323 (La. App. 2 Cir. 8/15/07), 962 So.2d 1126, 1132. If the State further proves the offender has control or supervision over the juvenile, defendant is subjected to the enhanced penalty provision in La. R.S. 14:81.2(B)(2). See Johnson, 962 So.2d at 1132.

Based upon our review of the record and the relevant jurisprudence, we find the State's original and amended bills of information were woefully inadequate in this case. At the time of trial, the bill of information reflected the incorrect statutory citation, and the text of the bill referred to the wrong crime (sexual battery). Moreover, the State failed to do any of the following: (1) charge the offense in long form; (2) list any essential facts of the crime; (3) specify in which way defendant committed the offense; or (4) explicitly charge defendant under the enhanced penalty provision. Cf. State v. Dossman, 2020-514 (La. App. 3 Cir. 10/13/21), 2021 WL 4772299, *2 (unpublished); State v. Morgan, 2014-1197 (La. App. 3 Cir. 5/6/15), 164 So.3d 392, 393 (bills of information specifically charged defendants under enhanced penalty provision for molestation of a juvenile when offender has control or supervision over victim). Even if defendant relied on La. R.S. 14:81.2 in its entirety, the definition of the offense provides two different ways to commit the crime. Thus, the plain language of the statute, written in the alternative, did not adequately inform defendant of the nature and cause of the accusations against him. See Edwards, 283 So.2d at 233; State v. Jarrell, 2007-0412 (La. App. 1 Cir. 9/19/07), 2007 WL 2726718, *20 (unpublished), writ denied, 2007-2065 (La. 3/7/08), 977 So.2d 897.

Nevertheless, defendant had fair notice of the charge against him by virtue of open file discovery. Throughout the case, the State provided discovery to defendant, including police reports, medical records, statements, and forensic reports. Thus, defendant was aware of all of the evidence the State intended to use to establish its case against him. Likewise, he was aware of the nature and cause of the accusations against him so that he could prepare his defense. Accordingly, we find defendant was not prejudiced in preparing his defense by surprise or lack of notice. See State v. Warren, 2025-251 (La. App. 3 Cir. 10/29/25), 423 So.3d 650, 670-671, writ denied, 2025-01499 (La. 5/19/26), 431 So.3d 1196; Susan, 357 So.3d at 1007; Jarrell, 2007 WL 2726718 at *20.

Although we find the bill provided defendant with sufficient notice to prepare for trial, we nevertheless find the bill of information failed to comply with Apprendi. See State v. Chester, 2024-00207 (La. 6/27/25), 413 So.3d 384, 385-386 (per curiam). Any fact (other than a prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt. Apprendi, 530 U.S. at 490, 120 S.Ct. at 2362-2363. The statutory maximum for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. Blakely v. Washington, 542 U.S. 296, 303, 124 S.Ct. 2531, 2537, 159 L.Ed.2d 403 (2004). The State must explicitly note in the bill of information that the enhanced sentence provision is applicable to a defendant. State v. Robinson, 49,821 (La. App. 2 Cir. 5/20/15), 166 So.3d 395, 402, writ denied, 2015-1400 (La. 9/16/16), 206 So.3d 201; State v. Gibson, 2009-486 (La. App. 5 Cir. 3/9/10), 38 So.3d 373, 380, writ denied, 2010-0802 (La. 11/5/10), 50 So.3d 814. Failure to submit a sentencing factor to the jury is not a structural error and is subject to harmless error analysis. See Washington v. Recuenco, 548 U.S. 212, 221-22, 126 S.Ct. 2546, 2553, 165 L.Ed.2d 466 (2006).

The relevant “statutory maximum” for molestation of a juvenile is ten years imprisonment with or without hard labor. See La. R.S. 14:81.2(B)(1); State v. Anderson, 2012-869 (La. App. 5 Cir. 6/27/13), 121 So.3d 119, 126, writ denied, 2013-1861 (La. 2/21/14), 13 3 So.3d 679. This is the maximum sentence the trial court could have “impose[d] without any additional findings.” See Blakely, 542 U.S. at 303-04, 124 S.Ct. at 2537 (emphasis in original). The statute provides an increased penalty of imprisonment of five to twenty years when the offender had control or supervision over the juvenile. See La. R.S. 14:81.2(B)(2); Anderson, 121 So.3d at 126. Whether defendant had control or supervision over the juvenile is a fact that increases the maximum penalty for molestation of a juvenile. As such, it “must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt.” Apprendi, 530 U.S. at 466, 120 S.Ct. at 2355.

Herein, the jury found defendant guilty of “molestation of a juvenile.” The jury verdict form gave the jury options for molestation of a juvenile, attempted molestation of a juvenile, indecent behavior with a juvenile, attempted indecent behavior with a juvenile, or not guilty. The jury did not find defendant had control or supervision over the victim, as required for the enhanced sentencing provision of La. R.S. 14:81.2(B)(2). See Susan, 357 So.3d at 1008; Gibson, 38 So.3d at 378-3 80; State v. LeCompte, 98-1159 (La. App. 1 Cir. 4/1/99), 734 So.2d 83, 87-88; cf. State v. Lewis, 52,367 (La. App. 2 Cir. 11/14/18), 260 So.3d 1220, 1223-1224 (noting jury verdict form distinguished between “molestation of a juvenile with control or supervision” and “molestation of a juvenile without control or supervision”); Johnson, 962 So.2d at 1133-1134 (finding jury convicted defendant of molestation when offender had control or supervision, despite verdict form not reflecting such, where bill of information clearly charged defendant with more serious grade of offense). The maximum sentence the trial court could have imposed without the jury finding the control or supervision element was ten years imprisonment. Therefore, the trial court committed an Apprendi violation in sentencing defendant under the enhanced penalty provision. See Chester, 413 So.3d at 385-386; State v. Hollis, 56,710 (La. App. 2 Cir. 1/14/26), ––– So.3d ––––, 2026 WL 110265, *7; State v. Wagar, 54,941 (La. App. 2 Cir. 3/1/23), 357 So.3d 984, 993; Gibson, 3 8 So.3d at 3 80; cf. State v. Rieckmann, 2014-1441 (La. App. 1 Cir. 9/18/15), 2015 WL 5515017, *15 n.3 (unpublished) (noting trial court correctly sentenced defendant under 14:81.2(B)(1) because jury did not find defendant had control or supervision as required for (B)(2), although defendant was charged under enhanced provision).

Harmless Error Analysis

We must now determine whether the trial court's error was harmless. In Neder v. United States, 527 U.S. 1, 9, 119 S. Ct. 1827, 1833, 144 L.Ed.2d 35 (1999), the United States Supreme Court held that a “[jury] instruction that omits an element of the offense does not necessarily render a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence.” The Supreme Court explained such an error is harmless if the “reviewing court concludes beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence, such that the jury verdict would have been the same absent the error[.]” Id., 527 U.S. at 17, 119 S. Ct. at 1837.

Based on the unique facts of this case, we conclude the trial court's Apprendi error was not harmless because the trial court sentenced defendant under a harsher penalty provision for which he was not properly charged. See Chester, 413 So.3d at 387. As in Chester, the bill of information herein failed to reference the applicable sentencing provision or charge the facts necessary for the increased maximum penalty under La. R.S. 14:81.2(B)(2). Moreover, the trial court did not instruct the jury that defendant was charged with a higher grade of the offense, nor did the jury find defendant guilty of such. See LeCompte, 734 So.2d at 87-88. Thus, as charged, defendant was only subjected to the sentencing provision of Subsection (B)(1).

Herein, the State presented multiple theories of the case to the jury, arguing defendant committed the crime by use of force, threats of great bodily harm, and/or a position of control or supervision.⁸ Thus, while the record supports a conviction for molestation of a juvenile when the offender has control or supervision under (B)(2), the record also supports a conviction for the base offense of molestation under (B)(1) under a different theory.⁹ Without a definitive finding by the jury, we cannot conclude the jury in fact found defendant committed molestation of a juvenile “by the use of control or supervision” pursuant to Subsection (B)(2). See LeCompte, 734 So.2d at 88.

We reject the State's argument that the defective bill of information is harmless error because defendant had sufficient notice of the enhanced sentencing exposure.¹⁰ The crux of the issue remains that the State failed to properly charge defendant under the “control or supervision” provision, which enhances the maximum penalty for the base offense of molestation of a juvenile. “Such a defect runs afoul of the clear language of Apprendi requiring such facts be charged[.]” Chester, 413 So.3d at 386. Therefore, the trial court's error was not harmless.

The bill as read to the jury at the beginning of trial did not instruct the jury that it had to find defendant had a position of control or supervision over the victim. Had the jury been properly instructed, it is not clear whether the jury verdict would have been the same because, as discussed, the State presented multiple theories of the case. See Neder, 527 U.S. at 17, 119 S.Ct. at 1837. Therefore, defendant did not receive fair notice that he was being charged with the more serious offense under La. R.S. 14:81.2(B)(2), and the trial court's error in sentencing him pursuant to such was not harmless. See Chester, 413 So.3d at 387; Susan, 357 So.3d at 1008; cf. Warren, 423 So.3d at 650; Johnson, 962 So.2d at 1132-33.

Based on the foregoing, defendant's twenty-year sentence is illegal. See La. Code Crim. P. art. 881.2; LeCompte, 734 So.2d at 87-88. As previously stated, the maximum sentence for the defendant's conviction of molestation of a juvenile without control or supervision is ten years imprisonment. See La. Code Crim. P. art. 881.2; La. R.S. 14:81.2(B)(1). Accordingly, we affirm defendant's conviction for molestation of a juvenile.

ILLEGAL HABITUAL OFFENDER SENTENCE

In his second assignment of error, defendant argues the trial court erred in sentencing him to forty years as a habitual offender because the original sentence, as discussed supra, is illegal. We agree. For a molestation of a juvenile conviction, the sentencing range for imprisonment is five to ten years. La. R.S. 14:81.2(B)(1). As a third-felony habitual offender, defendant faced a term “not less than one-half of the longest possible sentence for the conviction and not more than twice the longest possible sentence prescribed for a first conviction.” La. R.S. 15:529.1(A)(3)(a). Thus, if the trial court had applied the proper sentencing range to defendant's conviction, defendant would have faced five to twenty years as a third-felony habitual offender. Accordingly, we vacate defendant's habitual offender sentence.

PAROLE ELIGIBILITY

In his third assignment of error, defendant argues the trial court erred in denying him parole eligibility. Although we vacate both the original and habitual offender sentences, we address this error to prevent it from reoccurring upon remand.

The trial court imposed the original sentence without the benefit of parole, probation, or suspension of sentence. However, the statute contains no such provision for either the base offense of molestation or the enhanced version when the offender has control or supervision. See La. R.S. 14:81.2(B); State v. Kelly, 2015-0484 (La. 6/29/16), 195 So.3d 449, 458. The trial court also imposed the habitual offender sentence without the benefit of parole, probation, or suspension of sentence. A sentence imposed under the habitual offender statute “shall be at hard labor without benefit of probation or suspension of sentence.” La. R.S. 15:529.1(G). Therefore, the trial court erred in restricting parole eligibility on each of defendant's sentences.

EXCESSIVE SENTENCE

In his fourth assignment of error, defendant argues the trial court imposed a constitutionally excessive sentence. Because we vacate the sentences in this case, we pretermit discussion of such.¹¹

CONCLUSION

Considering the foregoing, we affirm defendant's conviction and habitual offender adjudication, vacate defendant's habitual offender sentence, and remand for resentencing pursuant to the habitual offender statute.¹²

CONVICTION AND HABITUAL OFFENDER ADJUDICATION AFFIRMED; HABITUAL OFFENDER SENTENCE VACATED; REMANDED FOR RESENTENCING.

FOOTNOTES

1.   On the morning of trial, defendant informed the trial court he was dissatisfied with his attorney and wished to represent himself at trial. Pursuant to Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), the trial court questioned defendant, allowed him to represent himself, and appointed his counsel as standby counsel. Defendant represented himself at trial, the original sentencing, and the habitual offender hearing and sentencing.

2.   We note the transcript of the habitual offender hearing reveals the trial court did not use any specific words to indicate it adjudicated defendant a habitual offender. However, the trial court's written judgment reflects it sentenced defendant as a third-felony habitual offender. See La. R.S. 15:529.1 (A)(3)(a). A trial court's failure to state that a defendant is a habitual offender is not cause for reversal where the trial court clearly intends to sentence the defendant as such. State v. O'Conner, 2011-1696 (La. App. 1 Cir. 9/21/12), 2012 WL 4335425, *6 n.13 (unpublished), writ denied, 2012-2163 (La. 4/1/13), 110 So.3d 138. Further, defendant did not raise this issue On appeal, and a habitual offender hearing is not considered part of the record for patent error review. See La. Code Crim. P. art. 920(2); State v. Moore, 2012-0102 (La. 5/25/12), 90 So.3d 384, 385 (per curiam), writ denied, 2011-2476 (La. 6/22/12), 90 So.3d 455.

3.   The trial court failed to specify whether the sentence was to be served with or without hard labor. However, any sentence imposed under the habitual offender statute shall be at hard labor. La. R.S. 15:529.1(G); State v. Chaney, 2020-0981 (La. App. 1 Cir. 6/4/21), 327 So.3d 1038, 1047-1048, writ denied, 2021-01204 (La. 11/10/21), 326 So.3d 1251.

4.   We use the victim's initials to protect her identity. See La. R.S. 46:1844(W).

5.   We note that this is the minute entry from October 26, 2022, defendant's arraignment on the original bill of information wherein he was charged with sexual battery.

6.   In 2024, the legislature amended the minimum penalty for La. R.S. 14:81.2(B)(2) from five to ten years. See 2024 La. Acts No. 597, § 1. However, the law in effect at the time of the commission of the offense applies. State v. Sugasti, 2001-3407 (La. 6/21/02), 820 So.2d 518, 520.

7.   Unless clearly indicated otherwise by the context, the term “or” in a statute is disjunctive. That is, “or” does not mean “and/or,” but instead sets apart independent and exclusive alternatives. See La. R.S. 1:9; State v. Davis, 2015-1949 (La. 3/15/17), 221 So.3d 28, 32 n.5; Turner v. East Baton Rouge Parish School Board, 2017-1769 (La. App. 1 Cir. 6/4/18), 252 So.3d 990, 993, writ denied, 2018-1127 (La. 10/15/18), 253 So.3d 1299.

8.   For example, A.K. explained in her forensic interview that she could not get away from the defendant during the incident because he was a big and tall man, whereas she was “tiny.”

9.   Specifically, the State went through each element of the offense and stated the following in reference to the methods for accomplishing a lewd or lascivious act:By the use of force; [A.K.] indicated to the ․ nurse it was forceful. [The defendant] is a large man. She is a child. Threats of great bodily harm; [the defendant] said, [“]This is going to be our secret; don't tell anybody.[”] Or supervision; it can be any one of these things.

10.   One week prior to trial, the State amended the charge to molestation of a juvenile and presented defendant with a five-year plea deal. The State noted that if defendant went to trial, he would face at least twenty years and a habitual offender bill. Defendant rejected the offer. Subsequently, one day prior to trial, the trial court re-arraigned defendant on the molestation of a juvenile charge, to which defendant pled not guilty. The State again noted that if it “prove[d] every element under” the molestation statute, defendant would face a “mandatory minimum” of five to twenty years, as well as a habitual offender bill. Then, on the day of trial, the State offered defendant a fifteen-year plea deal. The State noted the sentencing range for molestation was five to twenty years and further opined that if defendant was convicted at trial, he would face ten to forty years as a third-felony habitual offender.

11.   Pursuant to our patent error review, we found the trial court failed to advise defendant of the prescriptive period for filing an application for post-conviction relief at sentencing. See La. Code Crim. P. arts. 920(2) and 930.8. The trial court should advise defendant of such at resentencing.

12.   Because we affirm defendant's habitual offender adjudication, the trial court need not reimpose the “original” sentence. The trial court may impose the enhanced multiple offender sentence so long as it complies with this court's opinion. See La. R.S. 15:529.1(D)(3) (“[T]he court ․ shall vacate the previous sentence if already imposed[.]” (emphasis added); State v. Pratt, 50,152 (La. App. 2 Cir. 12/30/15), 184 So.3d 816, 820, writ denied, 2016-0123 (La. 1/25/17), 215 So.3d 262.

LANIER, J.