STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
09-904
STATE OF LOUISIANA
VERSUS
J.P.F.
**********
APPEAL FROM THE THIRTIETH JUDICIAL DISTRICT COURT PARISH OF VERNON, NO. 72643 HONORABLE JAMES RICHARD MITCHELL, DISTRICT JUDGE
ULYSSES GENE THIBODEAUX CHIEF JUDGE
Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders, and James T. Genovese, Judges.
SAUNDERS, J., dissents and assigns reasons.
SENTENCE VACATED. REMANDED FOR RESENTENCING.
Asa Allen Skinner District Attorney, Thirtieth Judicial District Court P. O. Box 1188 Leesville, LA 71496-1188 Telephone: (337) 239-2008 COUNSEL FOR: Plaintiff/Appellee - State of Louisiana
Ted R. Broyles, II Appeal Counsel 4514 Beaver Creek Greenwell Springs, LA 70739 Telephone: (225) 765-0237 COUNSEL FOR: Plaintiff/Appellee - State of Louisiana S. Christie Smith, IV Elizabeth B. Carr The Smith Law Firm, LLP P. O. Drawer 1528 Leesville, LA 71496-1528 Telephone: (337) 239-2244 COUNSEL FOR: Defendant/Appellant - J.P.F.
Terry Wayne Lambright 100 S. Third Street - Suite A Leesville, LA 71446 Telephone: (337) 239-6557 COUNSEL FOR: Plaintiff/Appellee - State of Louisiana THIBODEAUX, Chief Judge.
The defendant, J.P.F.,1 entered an “Alford plea”2 to two counts of
attempted aggravated oral sexual battery pursuant to La.R.S. 14:27 and La.R.S.
14:43.3. The trial court sentenced J.P.F. to two concurrent sentences of twenty years
at hard labor. The trial court denied J.P.F.’s motion to reconsider sentence, and J.P.F.
appealed. Because we find J.P.F.’s due process rights were violated, we vacate his
sentence and remand for resentencing.
I.
ISSUE
We shall consider whether the trial court violated the defendant’s due
process rights when, in sentencing the defendant, it relied on prejudicial information
of which the defendant had no notice, nor did he have an opportunity to deny,
explain, or rebut this information.
II.
FACTS
At the plea hearing in this case, the State maintained that in 2007, while
J.P.F. was watching movies with C.B., his nine-year-old step-daughter, J.P.F. had
C.B. rub her face on his “private area.” The State also asserted that J.P.F. engaged
in the same conduct with his eleven-year-old daughter, J.F.
In the record, the investigative progress report contains more detailed
1 Defendant’s initials will be used throughout this opinion to protect the victims’ identities. La.R.S. 46:1844(W); Uniform Rules—Courts of Appeal, Rule 5–2. 2 An Alford plea, also known as a “best interest plea,” is a guilty plea that includes a claim of factual innocence, made pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160 (1970). allegations of J.P.F.’s conduct.3 For example, J.F. reported that J.P.F. had her play
“horsey” with him whereby she would have to get on top of him and ride him like a
horsey, usually without clothes or underwear. J.F. also stated that J.P.F. “would try
to put his personal place inside of her.” The same report contains C.B.’s statement
that J.P.F. “did touch her on her forehead with his penis.” Nonetheless, the record
does not contain any information as to whether J.P.F. engaged in similar criminal
activities with any other persons.
At sentencing, the trial court relied on the information contained in the
record described above. The trial court also noted J.P.F.’s excellent academic
achievements and that the court received letters from his family describing a family
history of alcohol abuse. The letters also described J.P.F.’s baptism and his
commitment to lead a Christian life. The trial court mentioned a letter it received
from one of the victims expressing the debilitating effect of J.P.F.’s actions on her
life. Finally, the trial court stated that some of the letters indicated that J.P.F. “may
have engaged in this conduct with other persons as well in the past.” The trial court
sentenced J.P.F. to twenty years on each count to run concurrently.
The trial court’s statement that J.P.F. may have conducted himself in the
same manner with other persons is the subject of J.P.F.’s due process violation
claims. He argues that he had no notice that the trial court had this information and
would rely upon it at sentencing. He further maintains that the statement was devoid
of any details and that he was not given an opportunity to deny, explain, or rebut this
allegation.
While J.P.F. did not object at sentencing, in his motion to reconsider
3 During oral argument, counsel for the defendant argued that the investigative report did not contain these details. Counsel also maintained that these allegations were not in the record on the pages the State assigned to them in its brief. While these details are not on the pages of the record the State alleged in its brief, they are in the record nonetheless. Therefore, the defendant was aware of these allegations.
2 sentence, he complained that the trial court relied upon evidence not properly before
the court, including allegations of other crimes. He, thus, preserved the issue for
appeal. La.Code Crim.P. art. 881.1(E). Moreover, when the interest of justice clearly
requires it, this court has authority to review issues not submitted to the trial court.
Uniform Rules—Courts of Appeal, Rule 1–3.
III.
LAW AND DISCUSSION
Notice
“Due process and fairness require the sentencing court to disclose data
unknown to the defendant upon which the court relies in imposing a sentence on the
defendant.” State v. Cottingin, 476 So.2d 1184, 1187 (La.App. 3 Cir. 1985) (citing
State v. Bosworth, 360 So.2d 173 (La.1978); State v. Underwood, 353 So.2d 1013
(La.1977)). The court must make these disclosures regardless of whether the
information comes from a pre-sentence investigation report or from another source.
State v. Telsee, 388 So.2d 747 (La.1980). The “defendant must be given access to
derogatory information unless the judge determines[,] after an in camera
examination[,] that the material should be withheld because it is not relevant or was
obviously intended to be confidential.” Id. at 750 (citing State v. Segers, 357 So.2d
1 (La.1978); Bosworth, 360 So.2d 173; State v. Owens, 377 So.2d 316 (La.1979)).
Even when the information is confidential, the court “should convey the substance
of the information to [the] defendant.” Id. (citing State v. Richardson, 377 So.2d
1029 (La.1979)).
Here, although J.P.F. reviewed non-confidential portions of the pre-
sentence investigation report, the report contained no information regarding
allegations of other crimes. The record submitted to this court is also devoid of any
3 information with respect to J.P.F.’s similar behavior towards other persons. It is,
therefore, clear that J.P.F. had no notice of the existence of such information nor that
the trial court would rely upon it in sentencing. Thus, the trial court violated J.P.F.’s
due process rights.
Opportunity to Deny, Explain, or Rebut
The due process rights of a defendant do not stop at mere awareness of
the information that will be used against the defendant in sentencing. Although a pre-
sentence hearing is not required, the due process guarantee “requires that a defendant
be given an opportunity to rebut false or invalid data of a substantial nature, to which
the sentencing judge is exposed, where there is a reasonable probability that it may
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STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
09-904
STATE OF LOUISIANA
VERSUS
J.P.F.
**********
APPEAL FROM THE THIRTIETH JUDICIAL DISTRICT COURT PARISH OF VERNON, NO. 72643 HONORABLE JAMES RICHARD MITCHELL, DISTRICT JUDGE
ULYSSES GENE THIBODEAUX CHIEF JUDGE
Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders, and James T. Genovese, Judges.
SAUNDERS, J., dissents and assigns reasons.
SENTENCE VACATED. REMANDED FOR RESENTENCING.
Asa Allen Skinner District Attorney, Thirtieth Judicial District Court P. O. Box 1188 Leesville, LA 71496-1188 Telephone: (337) 239-2008 COUNSEL FOR: Plaintiff/Appellee - State of Louisiana
Ted R. Broyles, II Appeal Counsel 4514 Beaver Creek Greenwell Springs, LA 70739 Telephone: (225) 765-0237 COUNSEL FOR: Plaintiff/Appellee - State of Louisiana S. Christie Smith, IV Elizabeth B. Carr The Smith Law Firm, LLP P. O. Drawer 1528 Leesville, LA 71496-1528 Telephone: (337) 239-2244 COUNSEL FOR: Defendant/Appellant - J.P.F.
Terry Wayne Lambright 100 S. Third Street - Suite A Leesville, LA 71446 Telephone: (337) 239-6557 COUNSEL FOR: Plaintiff/Appellee - State of Louisiana THIBODEAUX, Chief Judge.
The defendant, J.P.F.,1 entered an “Alford plea”2 to two counts of
attempted aggravated oral sexual battery pursuant to La.R.S. 14:27 and La.R.S.
14:43.3. The trial court sentenced J.P.F. to two concurrent sentences of twenty years
at hard labor. The trial court denied J.P.F.’s motion to reconsider sentence, and J.P.F.
appealed. Because we find J.P.F.’s due process rights were violated, we vacate his
sentence and remand for resentencing.
I.
ISSUE
We shall consider whether the trial court violated the defendant’s due
process rights when, in sentencing the defendant, it relied on prejudicial information
of which the defendant had no notice, nor did he have an opportunity to deny,
explain, or rebut this information.
II.
FACTS
At the plea hearing in this case, the State maintained that in 2007, while
J.P.F. was watching movies with C.B., his nine-year-old step-daughter, J.P.F. had
C.B. rub her face on his “private area.” The State also asserted that J.P.F. engaged
in the same conduct with his eleven-year-old daughter, J.F.
In the record, the investigative progress report contains more detailed
1 Defendant’s initials will be used throughout this opinion to protect the victims’ identities. La.R.S. 46:1844(W); Uniform Rules—Courts of Appeal, Rule 5–2. 2 An Alford plea, also known as a “best interest plea,” is a guilty plea that includes a claim of factual innocence, made pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160 (1970). allegations of J.P.F.’s conduct.3 For example, J.F. reported that J.P.F. had her play
“horsey” with him whereby she would have to get on top of him and ride him like a
horsey, usually without clothes or underwear. J.F. also stated that J.P.F. “would try
to put his personal place inside of her.” The same report contains C.B.’s statement
that J.P.F. “did touch her on her forehead with his penis.” Nonetheless, the record
does not contain any information as to whether J.P.F. engaged in similar criminal
activities with any other persons.
At sentencing, the trial court relied on the information contained in the
record described above. The trial court also noted J.P.F.’s excellent academic
achievements and that the court received letters from his family describing a family
history of alcohol abuse. The letters also described J.P.F.’s baptism and his
commitment to lead a Christian life. The trial court mentioned a letter it received
from one of the victims expressing the debilitating effect of J.P.F.’s actions on her
life. Finally, the trial court stated that some of the letters indicated that J.P.F. “may
have engaged in this conduct with other persons as well in the past.” The trial court
sentenced J.P.F. to twenty years on each count to run concurrently.
The trial court’s statement that J.P.F. may have conducted himself in the
same manner with other persons is the subject of J.P.F.’s due process violation
claims. He argues that he had no notice that the trial court had this information and
would rely upon it at sentencing. He further maintains that the statement was devoid
of any details and that he was not given an opportunity to deny, explain, or rebut this
allegation.
While J.P.F. did not object at sentencing, in his motion to reconsider
3 During oral argument, counsel for the defendant argued that the investigative report did not contain these details. Counsel also maintained that these allegations were not in the record on the pages the State assigned to them in its brief. While these details are not on the pages of the record the State alleged in its brief, they are in the record nonetheless. Therefore, the defendant was aware of these allegations.
2 sentence, he complained that the trial court relied upon evidence not properly before
the court, including allegations of other crimes. He, thus, preserved the issue for
appeal. La.Code Crim.P. art. 881.1(E). Moreover, when the interest of justice clearly
requires it, this court has authority to review issues not submitted to the trial court.
Uniform Rules—Courts of Appeal, Rule 1–3.
III.
LAW AND DISCUSSION
Notice
“Due process and fairness require the sentencing court to disclose data
unknown to the defendant upon which the court relies in imposing a sentence on the
defendant.” State v. Cottingin, 476 So.2d 1184, 1187 (La.App. 3 Cir. 1985) (citing
State v. Bosworth, 360 So.2d 173 (La.1978); State v. Underwood, 353 So.2d 1013
(La.1977)). The court must make these disclosures regardless of whether the
information comes from a pre-sentence investigation report or from another source.
State v. Telsee, 388 So.2d 747 (La.1980). The “defendant must be given access to
derogatory information unless the judge determines[,] after an in camera
examination[,] that the material should be withheld because it is not relevant or was
obviously intended to be confidential.” Id. at 750 (citing State v. Segers, 357 So.2d
1 (La.1978); Bosworth, 360 So.2d 173; State v. Owens, 377 So.2d 316 (La.1979)).
Even when the information is confidential, the court “should convey the substance
of the information to [the] defendant.” Id. (citing State v. Richardson, 377 So.2d
1029 (La.1979)).
Here, although J.P.F. reviewed non-confidential portions of the pre-
sentence investigation report, the report contained no information regarding
allegations of other crimes. The record submitted to this court is also devoid of any
3 information with respect to J.P.F.’s similar behavior towards other persons. It is,
therefore, clear that J.P.F. had no notice of the existence of such information nor that
the trial court would rely upon it in sentencing. Thus, the trial court violated J.P.F.’s
due process rights.
Opportunity to Deny, Explain, or Rebut
The due process rights of a defendant do not stop at mere awareness of
the information that will be used against the defendant in sentencing. Although a pre-
sentence hearing is not required, the due process guarantee “requires that a defendant
be given an opportunity to rebut false or invalid data of a substantial nature, to which
the sentencing judge is exposed, where there is a reasonable probability that it may
have contributed to the harshness of the sentence.” Telsee, 388 So.2d at 750 (citing
Richardson, 377 So.2d 1029; Bosworth, 360 So.2d 173; Underwood, 353 So.2d
1013)).
Here, the trial court’s pronouncements indicate a reasonable probability
that the allegations of J.P.F.’s engagement in the same conduct with other persons
may have contributed to the harshness of the sentence. While it is unknown whether
these allegations are true or not, J.P.F. should certainly have been given an
opportunity to deny, explain, or rebut them.
It is true that “[i]n the absence of allegations of mistake or falsehood,
evidence of uncharged offenses is admissible and is a valid factor for consideration
in sentencing.” State v. Rankin, 563 So.2d 420, 424 (La.App. 1 Cir. 1990). Yet, the
issue in this case is not whether the letter containing allegations of similar conduct
is admissible or could be relied upon by the sentencing judge. It is whether J.P.F. had
an opportunity to deny the allegations. Thus, J.P.F., because he had no notice of
these allegations, was not given a chance to even assert mistake or falsehood.
4 J.P.F. did not offer any specific refutation of the allegations. Yet, it may
have been not because they were true but because J.P.F. had no notice of those
allegations, no knowledge of the details of those allegations, and, thus, no opportunity
to deny, explain, rebut, or show that they were false. Based on this, not only did
J.P.F. not have an opportunity to deny, explain, or rebut these allegations, he also did
not have an opportunity to object to their admissibility based on mistake or falsehood.
Therefore, the trial court’s failure to allow J.P.F. an opportunity to deny, explain, or
rebut the allegations of prior similar conduct also constitutes a violation of J.P.F.’s
IV.
CONCLUSION
This court concludes that J.P.F.’s due process rights were violated when
the trial court failed to give notice and opportunity to deny, explain, or rebut
allegations of J.P.F.’s similar conduct with other persons. Therefore, this court
vacates J.P.F.’s sentence and remands the case for resentencing.
5 SAUNDERS, Judge
I would affirm. Our jurisprudence is replete with cases in which sentencing
courts reviewed letters from private individuals. See State v. Harris, 07-124
(La.App. 5 Cir. 9/25/07), 968 So.2d 187, State v. Dondis, 488 So.2d 454 (La.App. 3
Cir. 1986), and State v. Rankin, 563 So.2d 420 (La.App. 1 Cir. 1990). In this case,
the trial courts reason suggest its sentence is based on the disgusting nature of the
offense and harm to the victim, not the correspondence in question. Accordingly, I
respectfully dissent.