State of Louisiana v. L. B.

• Court: Louisiana Court of Appeal
• Decided: April 7, 2010
• Docket: KA-0009-1136
• Status: Unknown

Opinion

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

KA 09-1136

STATE OF LOUISIANA

VERSUS

L. B.

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APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF CALCASIEU, NO. 8751-07 HONORABLE ROBERT LANE WYATT, DISTRICT JUDGE

SHANNON J. GREMILLION JUDGE

Court composed of Marc T. Amy, Elizabeth A. Pickett, and Shannon J. Gremillion, Judges.

AFFIRMED.

John Foster DeRosier 14th Judicial District Court District Attorney P. O. Box 3206 Lake Charles, LA 70602-3206 (337) 437-3400 Counsel for Plaintiff/Appellee: State of Louisiana

Shane Hinch Attorney at Law 1111 Ryan Street Lake Charles, LA 70605 (337) 494-5682 Counsel for Defendant/Appellant: L. B. GREMILLION, Judge.

The Defendant, L.B., was found guilty of three counts of aggravated rape and

one count of attempted aggravated rape. He was sentenced to life imprisonment on

each count of aggravated rape and fifty years at hard labor for the attempted

aggravated rape conviction. The trial court ordered all of the sentences to be served

without benefit of probation, parole, or suspension of sentence and to run

concurrently with each other.

On appeal, Defendant’s conviction for the aggravated rape of A.C. was

reversed because the jury verdict was not unanimous. See State v. [L.B.], 08-1061

(La.App. 3 Cir. 4/1/09), 6 So.3d 982. Defendant’s sentence was vacated, and the

matter was remanded to the trial court for further proceedings. Id. The sentence for

attempted aggravated rape was vacated because it was illegally excessive and the

matter was remanded to the trial court for resentencing. Id. This court further found

the trial court erred when imposing the sentences for the remaining two counts of

aggravated rape without benefit of probation, parole, or suspension of sentence. This

court amended those sentences to delete the portion of the sentences to be served

without benefits and instructed the trial court to note the amendments in the court

minutes. Id.

On June 17, 2009, the trial court resentenced Defendant to serve twenty years

at hard labor for attempted aggravated rape. The trial court then “adjusted” the two

sentences for aggravated rape to life at hard labor.

A motion for appeal was filed on July 17, 2009, and was subsequently granted.

Defendant is now before this court asserting two assignments of error. First,

Defendant contends the trial court erred at the resentencing by refusing to consider

2 suspending, probating, or commuting his life sentences once the previous sentences

were amended to reflect simply life at hard labor and not life at hard labor without

benefit of parole, probation, or suspension of sentence. Second, the trial court erred

at the resentencing by not articulating reasons for imposing the sentences, as required

by Louisiana Code of Criminal Procedure Article 894.1.

There are no errors patent, and we, thus, proceed to the first assignment.

ASSIGNMENT OF ERROR NO. 1

At the resentencing hearing, the trial court “adjusted” Defendant’s sentences

for aggravated rape. Defense counsel subsequently asked that the two sentences for

aggravated rape “be imposed but it be suspended to the 20 years.” The trial court

denied the request.

Louisiana Code of Criminal Procedure Article 881(A) provides for the

amendment or modification of sentence as follows: “Although the sentence imposed

is legal in every respect, the court may amend or change the sentence, within the legal

limits of its discretion, prior to the beginning of execution of the sentence.”

Louisiana Revised Statute 15:566.2 states that a sentence “shall be considered as

commencing on the day following the day on which such prisoner is sentenced

without regard to the actual date of incarceration in the state penitentiary.”

In State v. Branch, 96-1626 (La.App. 3 Cir. 5/21/97), 696 So.2d 81, this court

read La.R.S. 15:566.2 and La.Code Crim.P. art. 881 together and found that a

defendant had less than one day to seek amendment or modification of his sentence.

However, the court noted that a defendant may timely file a motion to reconsider his

sentence and appeal his sentence as excessive.

3 In Defendant’s previous appeal, this court amended Defendant’s sentences for

aggravated rape and ordered the trial court to note the amendment in the court

minutes. Instead of amending the court minutes, the trial court “adjusted”

Defendant’s sentences for aggravated rape in open court. Defendant was not

resentenced, as his sentences had already been amended by this court and the trial

court was merely setting forth the amendment for the record. As Defendant sought

modification of his sentences more than one day after execution of the sentences, the

trial court properly denied his request.

ASSIGNMENT OF ERROR NO. 2

Defendant did not object to the sentences based on the trial court’s failure to

articulate reasons at the time they were imposed or file a motion to reconsider

sentence. Further, in brief to this court, Defendant has not alleged that his sentences

are excessive.

In State v. Baylor, 08-141 (La.App. 3 Cir. 11/26/08), 998 So.2d 800, writ

denied, 09-0275 (La. 11/20/09), 25 So.3d 795, the defendant asserted that the trial

court failed to give reasons for imposing sentence and did not allege his sentences

were excessive. This court found that because the defendant had not filed a motion

to reconsider sentence, his claims were barred by La.Code Crim.P. art. 881.1.

Based on this court’s ruling in Baylor and the fact that the Defendant was not

resentenced on the two counts of aggravated rape, we find the Defendant is precluded

from seeking review of his claim. Accordingly, we decline to consider this

assignment of error.

DECREE

The trial court sentences are affirmed.

4 AFFIRMED.