State of Louisiana v. David Paul Guidry

• Court: Louisiana Court of Appeal
• Decided: June 3, 2009
• Docket: KA-0008-1574
• Status: Unknown

Opinion

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

08-1574

STATE OF LOUISIANA

VERSUS

DAVID PAUL GUIDRY

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APPEAL FROM THE THIRTY-FIRST JUDICIAL DISTRICT COURT PARISH OF JEFFERSON DAVIS, NO. CR-1146-07 HONORABLE CRAIG STEVE GUNNELL, DISTRICT JUDGE

JAMES T. GENOVESE JUDGE

Court composed of Sylvia R. Cooks, James T. Genovese, and Shannon J. Gremillion, Judges.

SENTENCE VACATED; REMANDED FOR RESENTENCING.

Peggy J. Sullivan Louisiana Appellate Project Post Office Box 2775 Monroe, Louisiana 71207-2775 (318) 387-6124 COUNSEL FOR DEFENDANT/APPELLANT: David Paul Guidry

Michael C. Cassidy District Attorney – Thirty-First Judicial District Stacey C. Naquin, Assistant District Attorney Post Office Box 1388 Jennings, Louisiana 70546-1388 (337) 824-1893 COUNSEL FOR APPELLEE: State of Louisiana GENOVESE, Judge.

On June 27, 2007, the Defendant, David Paul Guidry, was charged with simple

rape, a violation of La.R.S. 14:43, sexual battery, a violation of La.R.S. 14:43.1, and

molestation of a juvenile, a violation of La.R.S. 14:81.2. On June 25, 2008, the

Defendant entered a plea of no contest to the charge of sexual battery in exchange for

the dismissal of the remaining charges. The Defendant was sentenced on October 23,

2008, to serve ten years at hard labor, with all but seven years suspended, and to serve

the remainder of his sentence without benefit of parole, probation or suspension of

sentence. The Defendant did not make or file a motion to reconsider sentence.

The Defendant is now before this court on appeal, asserting that his sentence

is excessive. For the following reasons, we vacate the Defendant’s sentence and

remand the case to the trial court for resentencing.

FACTS

The following facts were elucidated at the Defendant’s “no contest” plea

hearing and at his sentencing. On February 27, 2007, the sixteen-year-old victim, the

daughter of the Defendant’s girlfriend, was staying in the Defendant’s home. The

Defendant was forty years old at the time. The victim was ill and was taking the

medication, Phenergan, which made her drowsy. Some time between 3:00 and 4:00

a.m., the victim was vomiting in the bathroom, and the Defendant began rubbing her

stomach while they were in the bathroom. The Defendant then moved the victim to

the sofa where he removed her pants and inserted his finger into her vagina. After the

incident occurred, the Defendant instructed the victim not to tell anyone and that it

was their “little secret.”

1 ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for

errors patent on the face of the record. After reviewing the record, we find one error

patent.

The trial court suspended a portion of the Defendant’s sentence pursuant to his

guilty plea on the charge of sexual battery which is prohibited by the sexual battery

statute. The trial judge sentenced the Defendant to imprisonment at hard labor for ten

years and “suspend[ed] all but seven (7) years of that sentence and order[ed] that [the

Defendant] serve the remainder without benefit of parole, probation, or suspension

of sentence.” The penalty provision for sexual battery provides for imprisonment

with or without hard labor, without benefit of parole, probation, or suspension of

sentence, for not more than ten years. La.R.S. 14:43.1.

In State v. Normand, 04-840 (La.App. 3 Cir. 12/15/04), 896 So.2d 98, writ

denied, 05-231 (La. 5/6/05), 901 So.2d 1094, the trial court imposed a seven-year

sentence, suspended three years of that sentence, and placed the defendant on

supervised probation for an offense which required a sentence of no more than ten

years without benefit of probation, parole, or suspension of sentence. This court

recognized the error, vacated the defendant’s sentence, and remanded for

resentencing.

In the present case, since the trial court suspended a portion of the Defendant’s

sentence in contravention of the sentencing provisions of the sexual battery statute,

we find that the trial court imposed an illegally lenient sentence. Consequently, we

vacate the Defendant’s sentence and remand the case to the trial court for

resentencing. Because we vacate the Defendant’s sentence and remand the case for

2 resentencing, we pretermit addressing the Defendant’s claim of excessive sentence.

DISPOSITION

The Defendant’s sentence is vacated, and we remand the case to the trial court

for resentencing.