STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
06-922
STATE OF LOUISIANA
VERSUS
DERICK DEWAYNE DAVIS
********** APPEAL FROM THE NINTH JUDICIAL DISTRICT COURT PARISH OF RAPIDES, NO. 277,943 HONORABLE DONALD JOHNSON, PRESIDING **********
SYLVIA R. COOKS JUDGE
**********
Court composed of Sylvia R. Cooks, Marc T. Amy and James T. Genovese, Judges.
AFFIRMED, AS AMENDED.
James C. Downs, District Attorney T. Gerald Henderson, Assistant District Attorney P.O. Drawer 1472 Alexandria, LA 71309 (318) 473-6650 COUNSEL FOR APPELLEE: State of Louisiana
James E. Beal Louisiana Appellate Project P.O. Box 307 Jonesboro, LA 71251 (318) 259-2391 COUNSEL FOR DEFENDANT-APPELLANT: Derick Dewayne Davis COOKS, Judge.
On June 8, 2005, the Defendant, Derick Dewayne Davis, was charged by bill
of information with two counts of sexual battery, in violation of La.R.S. 14:43.1. A
jury subsequently found Defendant guilty of both counts. Defendant was sentenced
to two terms of ten years at hard labor, with the sentences to run consecutively.
At his sentencing hearing, Defendant made an oral motion to appeal his
sentence. He is now before this court on appeal and alleges the following assignment
of error:
Two maximum sentences, each to be served consecutively with the other, constitutes [sic] an excessive sentence for this offender in this case, as the trial court failed to give sufficient consideration to mitigating factors in fashioning a sentence in this case.
For the following reasons, Defendant’s sentences are affirmed, as amended.
FACTS
The following facts were set forth at Defendant’s jury trial. Between March
2005 and May 2005, Defendant, who was the live-in boyfriend of the victims’ mother,
on multiple occasions, had physical contact with the victims, K.M. and A.K.M.,1 and
committed at least two counts of sexual battery, in violation of La.R.S. 14:43.1.
During this period, the victims, who were minors, resided with their mother on
weekends. While the victims were asleep in the living room of their mother’s house,
Defendant would go into the living room, reach beneath the victims’ clothing and
touch the victims on their pubic, breast, and buttocks areas with his hand.
ASSIGNMENT OF ERROR
In his assignment of error, Defendant contends that two maximum sentences,
each to be served consecutively with the other, constitute an excessive sentence in this
case, as the trial court failed to give sufficient consideration to mitigating factors in
1 Initials are used to protect the identity of the victims. La.R.S. 46:1844(W)(1).
-1- fashioning a sentence in this case.
Defendant did not make an oral motion for reconsideration of his sentence, or
file a written motion to reconsider his sentence. According to La.Code Crim.P. art.
881.1, failure to make or file a motion to reconsider sentence precludes a defendant
from raising, on appeal, any objection to the sentence. When the record does not
indicate that any objection was made regarding sentencing, the defendant is precluded
from appealing his sentence. State v. Williams, 01-998 (La.App. 3 Cir. 2/6/02), 815
So.2d 908, writ denied, 02-578 (La. 1/31/03), 836 So.2d 59.
Although Defendant’s sentencing claim is barred pursuant to La.Code Crim.P.
art. 881.1, we will review Defendant’s sentence for bare excessiveness in the interest
of justice. State v. Graves, 01-156 (La.App. 3 Cir. 10/3/01), 798 So.2d 1090, writ
denied, 02-29 (La. 10/14/02), 827 So.2d 420. This court has reviewed claims
regarding the consecutive nature of sentences using a bare claim of excessiveness
analysis. See State v. Vollm, 04-837 (La.App. 3 Cir 11/10/04), 887 So.2d 664; State
v. Day, 05-287 (La.App. 3 Cir 11/2/05), 915 So.2d 950.
This court has set forth the following standard to be used in reviewing excessive
sentence claims:
La.Const. art. I, § 20 guarantees that, “[n]o law shall subject any person to cruel or unusual punishment.” To constitute an excessive sentence, the reviewing court must find the penalty so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no measurable contribution to acceptable penal goals and is, therefore, nothing more than a needless imposition of pain and suffering. State v. Campbell, 404 So.2d 1205 (La.1981). The trial court has wide discretion in the imposition of sentence within the statutory limits and such sentence shall not be set aside as excessive absent a manifest abuse of discretion. State v. Etienne, 99-192 (La.App. 3 Cir. 10/13/99); 746 So.2d 124, writ denied, 00-0165 (La.6/30/00); 765 So.2d 1067. The relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. State v. Cook, 95-2784 (La.5/31/96); 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).
-2- State v. Barling, 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035,
1042-43, writ denied, 01-838 (La. 2/1/02), 808 So.2d 331.
In order to decide whether a sentence shocks the sense of justice or makes no
meaningful contribution to acceptable penal goals, we have held:
[A]n appellate court may consider several factors including the nature of the offense, the circumstances of the offender, the legislative purpose behind the punishment and a comparison of the sentences imposed for similar crimes. State v. Smith, 99-0606 (La.7/6/00), 766 So.2d 501. While a comparison of sentences imposed for similar crimes may provide some insight, “it is well settled that sentences must be individualized to the particular offender and to the particular offense committed.” State v. Batiste, 594 So.2d 1 (La.App. 1 Cir.1991). Additionally, it is within the purview of the trial court to particularize the sentence because the trial judge “remains in the best position to assess the aggravating and mitigating circumstances presented by each case.” State v. Cook, 95-2784 (La.5/31/96), 674 So.2d 957, 958.
State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ denied,
03-562 (La. 5/30/03), 845 So.2d 1061.
Defendant was convicted of two counts of sexual battery, in violation of La.R.S.
14:43.1. For a sexual battery conviction, a defendant may be incarcerated, “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(C)(1).
In the instant case, the trial court stated its basis for imposing two consecutive
maximum sentences, that it considered the Defendant’s pre-sentencing investigation
report, the class of offense, the nature of the offense, the seriousness of the offense,
the manner in which the crimes were conducted, and Defendant’s history.
With respect to the fact that the sentences are to run consecutively, La.Code
Crim.P. art. 883 states, in pertinent part, “[i]f the defendant is convicted of two or
more offenses based on the same act or transaction or which are part of a common
scheme or plan, the terms of imprisonment shall be served concurrently unless the
court expressly directs otherwise.” In State v. Boros, 94-453, 94-454 (La.App. 5 Cir.
-3- 11/29/94), 646 So.2d 1183, writ denied, 94-3148 (La. 5/12/95), 654 So.2d 347, after
reaching a plea agreement, the court sentenced the defendant to two seven-year
sentences for two counts of child molestation, to run consecutively.
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STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
06-922
STATE OF LOUISIANA
VERSUS
DERICK DEWAYNE DAVIS
********** APPEAL FROM THE NINTH JUDICIAL DISTRICT COURT PARISH OF RAPIDES, NO. 277,943 HONORABLE DONALD JOHNSON, PRESIDING **********
SYLVIA R. COOKS JUDGE
**********
Court composed of Sylvia R. Cooks, Marc T. Amy and James T. Genovese, Judges.
AFFIRMED, AS AMENDED.
James C. Downs, District Attorney T. Gerald Henderson, Assistant District Attorney P.O. Drawer 1472 Alexandria, LA 71309 (318) 473-6650 COUNSEL FOR APPELLEE: State of Louisiana
James E. Beal Louisiana Appellate Project P.O. Box 307 Jonesboro, LA 71251 (318) 259-2391 COUNSEL FOR DEFENDANT-APPELLANT: Derick Dewayne Davis COOKS, Judge.
On June 8, 2005, the Defendant, Derick Dewayne Davis, was charged by bill
of information with two counts of sexual battery, in violation of La.R.S. 14:43.1. A
jury subsequently found Defendant guilty of both counts. Defendant was sentenced
to two terms of ten years at hard labor, with the sentences to run consecutively.
At his sentencing hearing, Defendant made an oral motion to appeal his
sentence. He is now before this court on appeal and alleges the following assignment
of error:
Two maximum sentences, each to be served consecutively with the other, constitutes [sic] an excessive sentence for this offender in this case, as the trial court failed to give sufficient consideration to mitigating factors in fashioning a sentence in this case.
For the following reasons, Defendant’s sentences are affirmed, as amended.
FACTS
The following facts were set forth at Defendant’s jury trial. Between March
2005 and May 2005, Defendant, who was the live-in boyfriend of the victims’ mother,
on multiple occasions, had physical contact with the victims, K.M. and A.K.M.,1 and
committed at least two counts of sexual battery, in violation of La.R.S. 14:43.1.
During this period, the victims, who were minors, resided with their mother on
weekends. While the victims were asleep in the living room of their mother’s house,
Defendant would go into the living room, reach beneath the victims’ clothing and
touch the victims on their pubic, breast, and buttocks areas with his hand.
ASSIGNMENT OF ERROR
In his assignment of error, Defendant contends that two maximum sentences,
each to be served consecutively with the other, constitute an excessive sentence in this
case, as the trial court failed to give sufficient consideration to mitigating factors in
1 Initials are used to protect the identity of the victims. La.R.S. 46:1844(W)(1).
-1- fashioning a sentence in this case.
Defendant did not make an oral motion for reconsideration of his sentence, or
file a written motion to reconsider his sentence. According to La.Code Crim.P. art.
881.1, failure to make or file a motion to reconsider sentence precludes a defendant
from raising, on appeal, any objection to the sentence. When the record does not
indicate that any objection was made regarding sentencing, the defendant is precluded
from appealing his sentence. State v. Williams, 01-998 (La.App. 3 Cir. 2/6/02), 815
So.2d 908, writ denied, 02-578 (La. 1/31/03), 836 So.2d 59.
Although Defendant’s sentencing claim is barred pursuant to La.Code Crim.P.
art. 881.1, we will review Defendant’s sentence for bare excessiveness in the interest
of justice. State v. Graves, 01-156 (La.App. 3 Cir. 10/3/01), 798 So.2d 1090, writ
denied, 02-29 (La. 10/14/02), 827 So.2d 420. This court has reviewed claims
regarding the consecutive nature of sentences using a bare claim of excessiveness
analysis. See State v. Vollm, 04-837 (La.App. 3 Cir 11/10/04), 887 So.2d 664; State
v. Day, 05-287 (La.App. 3 Cir 11/2/05), 915 So.2d 950.
This court has set forth the following standard to be used in reviewing excessive
sentence claims:
La.Const. art. I, § 20 guarantees that, “[n]o law shall subject any person to cruel or unusual punishment.” To constitute an excessive sentence, the reviewing court must find the penalty so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no measurable contribution to acceptable penal goals and is, therefore, nothing more than a needless imposition of pain and suffering. State v. Campbell, 404 So.2d 1205 (La.1981). The trial court has wide discretion in the imposition of sentence within the statutory limits and such sentence shall not be set aside as excessive absent a manifest abuse of discretion. State v. Etienne, 99-192 (La.App. 3 Cir. 10/13/99); 746 So.2d 124, writ denied, 00-0165 (La.6/30/00); 765 So.2d 1067. The relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. State v. Cook, 95-2784 (La.5/31/96); 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).
-2- State v. Barling, 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035,
1042-43, writ denied, 01-838 (La. 2/1/02), 808 So.2d 331.
In order to decide whether a sentence shocks the sense of justice or makes no
meaningful contribution to acceptable penal goals, we have held:
[A]n appellate court may consider several factors including the nature of the offense, the circumstances of the offender, the legislative purpose behind the punishment and a comparison of the sentences imposed for similar crimes. State v. Smith, 99-0606 (La.7/6/00), 766 So.2d 501. While a comparison of sentences imposed for similar crimes may provide some insight, “it is well settled that sentences must be individualized to the particular offender and to the particular offense committed.” State v. Batiste, 594 So.2d 1 (La.App. 1 Cir.1991). Additionally, it is within the purview of the trial court to particularize the sentence because the trial judge “remains in the best position to assess the aggravating and mitigating circumstances presented by each case.” State v. Cook, 95-2784 (La.5/31/96), 674 So.2d 957, 958.
State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ denied,
03-562 (La. 5/30/03), 845 So.2d 1061.
Defendant was convicted of two counts of sexual battery, in violation of La.R.S.
14:43.1. For a sexual battery conviction, a defendant may be incarcerated, “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(C)(1).
In the instant case, the trial court stated its basis for imposing two consecutive
maximum sentences, that it considered the Defendant’s pre-sentencing investigation
report, the class of offense, the nature of the offense, the seriousness of the offense,
the manner in which the crimes were conducted, and Defendant’s history.
With respect to the fact that the sentences are to run consecutively, La.Code
Crim.P. art. 883 states, in pertinent part, “[i]f the defendant is convicted of two or
more offenses based on the same act or transaction or which are part of a common
scheme or plan, the terms of imprisonment shall be served concurrently unless the
court expressly directs otherwise.” In State v. Boros, 94-453, 94-454 (La.App. 5 Cir.
-3- 11/29/94), 646 So.2d 1183, writ denied, 94-3148 (La. 5/12/95), 654 So.2d 347, after
reaching a plea agreement, the court sentenced the defendant to two seven-year
sentences for two counts of child molestation, to run consecutively. In Boros, the
defendant’s conduct giving rise to the charges occurred on multiple occasions, with
two different victims, over a one-year period. In affirming the trial court’s imposition
of consecutive sentences, the appellate court stated: “. . . the bills of information
allege offenses that occurred on different dates, at different locations and to two
different juveniles. In cases such as defendant’s, consecutive sentences are indicated
under Article 883.” Id. at 1189.
In the instant case, Defendant’s conduct, while taking place at the same
location, took place at different points in time and with different victims over a three-
month period. Following the appellate court’s logic in Boras, Defendant’s sentences
in the instant case are appropriate under La.Code Crim.P. art. 883.
Accordingly, the trial court did not abuse its discretion by sentencing the
Defendant to two maximum sentences to be served consecutively.
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 note the trial court
failed to deny eligibility for diminution of sentence in accordance with La.R.S.
15:537(A). That statute requires diminution of sentence be denied to a person who is
convicted of or pleads guilty to a sex offense, including sexual battery, the instant
offense. Recently, this court addressed this issue in State v. S.D.G., 06-174 (La.App.
3 Cir. 5/31/06), 931 So.2d 1244:
Louisiana Revised Statutes 15:537(A) requires that diminution of sentence be denied to all offenders who are convicted of or plead guilty to sex offenses, including aggravated rape and aggravated incest. Here, the trial court failed to deny the defendant diminution eligibility under
-4- La.R.S. 15:537(A) for both sentences imposed. In State v. G.M.W., Jr., 05-392, p. 2 (La.App. 3 Cir. 11/2/05), 916 So.2d 460, 461, the court stated:
We note that the second paragraph of La.R.S. 15:537 is clearly directed to the sentencing court, and the trial court's failure to include a denial of diminution of sentence thereunder renders Defendant's sentences illegally lenient. Pursuant to State v. Williams, 00-1725 (La.11/28/01), 800 So.2d 790 and La.Code Crim.P. art. 882, this court is authorized to recognize and correct illegally lenient sentences.
Here, the trial court’s failure to deny diminution of sentence renders the defendant’s sentences illegally lenient. Therefore, we amend the defendant’s sentences to reflect that diminution eligibility is denied pursuant to La.R.S. 15:537(A). We also instruct the trial court to make a notation in the minutes reflecting the amendment.
Id. at 1247.
Therefore, we will amend Defendant’s sentences for sexual battery to reflect
that he is not eligible for diminution of sentence pursuant to La.R.S. 15:537. The trial
court is also instructed to note the amendment in the court minutes.
Lastly, the minutes of the jury’s verdict and the minutes of sentencing are in
need of correction. The minute entry reflecting the jury’s verdict indicates Defendant
was convicted of sexual battery. The minutes do not reflect that Defendant was found
guilty of two counts of sexual battery, as charged in the bill of information. The
verdict sheets signed by the jury, however, reflect Defendant was, in fact, convicted
of two counts of sexual battery. Thus, the trial court is instructed to amend the
minutes of the jury’s verdict to correctly reflect that Defendant was convicted of two
counts of sexual battery. The minutes of sentencing are also in need of correction.
According to the transcript of sentencing, the trial court imposed a ten-year sentence
on each count of sexual battery. The minutes of sentencing, however, fail to reflect
that the sentence was imposed on each count. The trial court is instructed to amend
the minutes of sentencing to correctly reflect that the trial court imposed the ten-year
-5- sentence on each count of sexual battery.
DECREE
For the foregoing reasons, Defendant’s sentences are amended to reflect that
eligibility for diminution of sentence is denied pursuant to La.R.S. 15:537. The trial
court is also instructed to make a notation in the court minutes reflecting this
amendment. Additionally, the trial court is instructed to amend the minutes of the
jury’s verdict to correctly reflect that the Defendant was convicted of two counts of
sexual battery. Lastly, the trial court is also instructed to amend the minutes of
sentencing to correctly reflect that the trial court imposed the ten-year sentence on
each count of sexual battery. In all other respects, Defendant’s sentences are affirmed.
-6-