Judgment rendered November 20, 2019. Application for rehearing may be filed within the delay allowed by Art. 992, La. C. Cr. P.
No. 53,005-KA
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
STATE OF LOUISIANA Appellee
versus
LOUIS WAYNE RUTAN Appellant
Appealed from the Forty-Second Judicial District Court for the Parish of DeSoto, Louisiana Trial Court No. 17CR28942
Honorable Charles Blaylock Adams, Judge
LOUISIANA APPELLATE PROJECT Counsel for Appellant By: Chad M. Ikerd
LOUIS WAYNE RUTAN Pro Se
GARY V. EVANS Counsel for Appellee District Attorney
KENNETH P. HAINES HUGO A. HOLLAND, JR. Assistant District Attorneys
Before GARRETT, STONE, and McCALLUM, JJ. STONE, J.
The defendant, Louis Rutan (“Rutan”), pled guilty to molestation of a
juvenile, in violation of La. R.S. 14:81.2(A)(1) and (D)(1). Rutan was
sentenced to 75 years at hard labor without benefit of parole, probation, or
suspension of sentence, to run consecutively with any other sentence. No
motion to reconsider sentence was filed. Rutan now appeals. For the
reasons stated herein, Rutan’s conviction and sentence of 75 years are
affirmed. However, the parole restriction thereon is vacated, even though it
does not render the sentence excessive. We remand with instructions for the
trial court to reconsider the parole restriction and to comply with the sex
offender notification law.
FACTS
On November 8, 2017, Rutan was charged by bill of information with
one count of molestation of a juvenile under the age of thirteen. On January
14, 2019, Rutan entered a plea of guilty as charged of molestation of a
juvenile under the age of thirteen.
The factual basis for the guilty plea was that between May and August
of 2017, Rutan committed lewd and lascivious acts upon the person of his
biological daughter, A.B. Rutan had genital contact with A.B., oral to
genital contact with A.B., and oral to anal contact with A.B. Specifically,
Rutan would rub his genitals upon the genitals of A.B, in addition to making
A.B. touch his genitals with her hands. At the time of the offense, A.B. was
approximately 6 years of age, and Rutan was approximately 38 years old.
During the investigation, the Desoto Parish Sheriff’s Office cut off the
mattress top of A.B.’s bed. It was found to contain Rutan’s skin cells and
sperm. There was no agreement regarding sentence. The trial court ordered a
presentence investigation, and scheduled a sentencing hearing for March 13,
2019. During the sentencing hearing, Dianna Green made a statement on
behalf of the victim and her family. Ms. Green is the victim’s maternal aunt,
and she acted as the spokesperson for the family. Ms. Green read into the
record a letter that she wrote, and a letter written by the victim’s mother. The
trial court also reviewed the presentence investigation report and took
particular notice of the fact that Rutan was a fourth felony offender with a
history of violence. The trial court sentenced Rutan to 75 years of
incarceration at hard labor, without parole, to run consecutively with any
other sentence he may be serving.
DISCUSSION
On appeal, Rutan urges two assignments of error: (1) his sentence is
constitutionally excessive; and (2) the trial court improperly interpreted the
law as it relates to his parole eligibility. He also raises an ineffective
assistance of counsel claim based on the fact that his trial counsel did not file
a motion to reconsider sentence.
Excessive sentence
In support of this assignment, Rutan contends that he received no
benefit of a reduced charge because he pled guilty as charged by the
prosecution. Rutan further argues that a 75-year sentence is the equivalent
of a life sentence for him. Additionally, Rutan points out that by his
admission of guilt, he spared the victim and her family the ordeal of a trial.
The state argues that the sentence is constitutionally valid based on
the following facts. The sentence is well below the statutory maximum for
molestation of a juvenile. Rutan was an authority figure over A.B., as he was 2 her father. Rutan had been arrested numerous times, many of which involved
family violence. The state argues that Rutan is a fourth-felony offender and
that his adjudication as such would require an actual life sentence. Rutan
was on probation for felony domestic abuse battery at the time he committed
this offense.
Appellate courts apply a two-pronged test when reviewing a sentence
for excessiveness: (1) whether the trial court adequately considered the
guidelines established in La. C. Cr. P. art. 894.1; and (2) whether the
sentence is constitutionally excessive. State v. Gardner, 46,688 (La. App. 2
Cir. 11/2/11), 77 So. 3d 1052.
As previously stated, we must first determine whether the record
shows that the trial court took cognizance of the criteria set forth in La.
C.Cr.P. art. 894.1. The trial judge is not required to list every aggravating or
mitigating circumstance so long as the record reflects that he adequately
considered the guidelines of the article. State v. Smith, 433 So. 2d 688 (La.
1983); State v. DeBerry, 50,501 (La. App. 2 Cir. 4/13/16), 194 So. 3d 657,
writ denied, 16-0959 (La. 5/1/17), 219 So. 3d 332. Articulation of the
factual basis for a sentence is the goal of La. C.Cr.P. art. 894.1, not rigid or
mechanical compliance with its provisions. Where the record clearly shows
an adequate factual basis for the sentence imposed, remand is unnecessary
even where there has not been full compliance with La. C.Cr.P. art. 894.1.
State v. Lanclos, 419 So. 2d 475 (La. 1982); State v. DeBerry, supra.
The La. C.Cr.P. art. 894.1 factors to be considered include the
defendant’s personal history (age, family ties, marital status, health,
employment record), prior criminal record, the seriousness of the offense,
and the likelihood of rehabilitation. State v. Jones, 398 So. 2d 1049 (La. 3 1981); State v. DeBerry, supra. There is no requirement that any specific
factor be given any particular weight at sentencing. State v. DeBerry, supra;
State v. Shumaker, 41,547 (La. App. 2 Cir. 12/13/06), 945 So. 2d 277, writ
denied, 07-0144 (La. 9/28/07), 964 So. 2d 351.
The trial judge is given wide discretion in the imposition of sentences
within the statutory limits, and the sentence imposed should not be set aside
as excessive in the absence of a manifest abuse of his discretion. State v.
Williams, 03-3514 (La. 12/13/04), 893 So. 2d 7; State v. Diaz, 46,750 (La.
App. 2 Cir. 12/14/11), 81 So. 3d 228. On review, an appellate court does not
determine whether another sentence may have been more appropriate, but
whether the trial court abused its discretion. State v. Williams, supra; State
v. Free, 46,894 (La. App. 2 Cir.
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Judgment rendered November 20, 2019. Application for rehearing may be filed within the delay allowed by Art. 992, La. C. Cr. P.
No. 53,005-KA
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
STATE OF LOUISIANA Appellee
versus
LOUIS WAYNE RUTAN Appellant
Appealed from the Forty-Second Judicial District Court for the Parish of DeSoto, Louisiana Trial Court No. 17CR28942
Honorable Charles Blaylock Adams, Judge
LOUISIANA APPELLATE PROJECT Counsel for Appellant By: Chad M. Ikerd
LOUIS WAYNE RUTAN Pro Se
GARY V. EVANS Counsel for Appellee District Attorney
KENNETH P. HAINES HUGO A. HOLLAND, JR. Assistant District Attorneys
Before GARRETT, STONE, and McCALLUM, JJ. STONE, J.
The defendant, Louis Rutan (“Rutan”), pled guilty to molestation of a
juvenile, in violation of La. R.S. 14:81.2(A)(1) and (D)(1). Rutan was
sentenced to 75 years at hard labor without benefit of parole, probation, or
suspension of sentence, to run consecutively with any other sentence. No
motion to reconsider sentence was filed. Rutan now appeals. For the
reasons stated herein, Rutan’s conviction and sentence of 75 years are
affirmed. However, the parole restriction thereon is vacated, even though it
does not render the sentence excessive. We remand with instructions for the
trial court to reconsider the parole restriction and to comply with the sex
offender notification law.
FACTS
On November 8, 2017, Rutan was charged by bill of information with
one count of molestation of a juvenile under the age of thirteen. On January
14, 2019, Rutan entered a plea of guilty as charged of molestation of a
juvenile under the age of thirteen.
The factual basis for the guilty plea was that between May and August
of 2017, Rutan committed lewd and lascivious acts upon the person of his
biological daughter, A.B. Rutan had genital contact with A.B., oral to
genital contact with A.B., and oral to anal contact with A.B. Specifically,
Rutan would rub his genitals upon the genitals of A.B, in addition to making
A.B. touch his genitals with her hands. At the time of the offense, A.B. was
approximately 6 years of age, and Rutan was approximately 38 years old.
During the investigation, the Desoto Parish Sheriff’s Office cut off the
mattress top of A.B.’s bed. It was found to contain Rutan’s skin cells and
sperm. There was no agreement regarding sentence. The trial court ordered a
presentence investigation, and scheduled a sentencing hearing for March 13,
2019. During the sentencing hearing, Dianna Green made a statement on
behalf of the victim and her family. Ms. Green is the victim’s maternal aunt,
and she acted as the spokesperson for the family. Ms. Green read into the
record a letter that she wrote, and a letter written by the victim’s mother. The
trial court also reviewed the presentence investigation report and took
particular notice of the fact that Rutan was a fourth felony offender with a
history of violence. The trial court sentenced Rutan to 75 years of
incarceration at hard labor, without parole, to run consecutively with any
other sentence he may be serving.
DISCUSSION
On appeal, Rutan urges two assignments of error: (1) his sentence is
constitutionally excessive; and (2) the trial court improperly interpreted the
law as it relates to his parole eligibility. He also raises an ineffective
assistance of counsel claim based on the fact that his trial counsel did not file
a motion to reconsider sentence.
Excessive sentence
In support of this assignment, Rutan contends that he received no
benefit of a reduced charge because he pled guilty as charged by the
prosecution. Rutan further argues that a 75-year sentence is the equivalent
of a life sentence for him. Additionally, Rutan points out that by his
admission of guilt, he spared the victim and her family the ordeal of a trial.
The state argues that the sentence is constitutionally valid based on
the following facts. The sentence is well below the statutory maximum for
molestation of a juvenile. Rutan was an authority figure over A.B., as he was 2 her father. Rutan had been arrested numerous times, many of which involved
family violence. The state argues that Rutan is a fourth-felony offender and
that his adjudication as such would require an actual life sentence. Rutan
was on probation for felony domestic abuse battery at the time he committed
this offense.
Appellate courts apply a two-pronged test when reviewing a sentence
for excessiveness: (1) whether the trial court adequately considered the
guidelines established in La. C. Cr. P. art. 894.1; and (2) whether the
sentence is constitutionally excessive. State v. Gardner, 46,688 (La. App. 2
Cir. 11/2/11), 77 So. 3d 1052.
As previously stated, we must first determine whether the record
shows that the trial court took cognizance of the criteria set forth in La.
C.Cr.P. art. 894.1. The trial judge is not required to list every aggravating or
mitigating circumstance so long as the record reflects that he adequately
considered the guidelines of the article. State v. Smith, 433 So. 2d 688 (La.
1983); State v. DeBerry, 50,501 (La. App. 2 Cir. 4/13/16), 194 So. 3d 657,
writ denied, 16-0959 (La. 5/1/17), 219 So. 3d 332. Articulation of the
factual basis for a sentence is the goal of La. C.Cr.P. art. 894.1, not rigid or
mechanical compliance with its provisions. Where the record clearly shows
an adequate factual basis for the sentence imposed, remand is unnecessary
even where there has not been full compliance with La. C.Cr.P. art. 894.1.
State v. Lanclos, 419 So. 2d 475 (La. 1982); State v. DeBerry, supra.
The La. C.Cr.P. art. 894.1 factors to be considered include the
defendant’s personal history (age, family ties, marital status, health,
employment record), prior criminal record, the seriousness of the offense,
and the likelihood of rehabilitation. State v. Jones, 398 So. 2d 1049 (La. 3 1981); State v. DeBerry, supra. There is no requirement that any specific
factor be given any particular weight at sentencing. State v. DeBerry, supra;
State v. Shumaker, 41,547 (La. App. 2 Cir. 12/13/06), 945 So. 2d 277, writ
denied, 07-0144 (La. 9/28/07), 964 So. 2d 351.
The trial judge is given wide discretion in the imposition of sentences
within the statutory limits, and the sentence imposed should not be set aside
as excessive in the absence of a manifest abuse of his discretion. State v.
Williams, 03-3514 (La. 12/13/04), 893 So. 2d 7; State v. Diaz, 46,750 (La.
App. 2 Cir. 12/14/11), 81 So. 3d 228. On review, an appellate court does not
determine whether another sentence may have been more appropriate, but
whether the trial court abused its discretion. State v. Williams, supra; State
v. Free, 46,894 (La. App. 2 Cir. 1/25/12), 86 So. 3d 29.
Second, this court must determine whether the sentence is
constitutionally excessive. A sentence can be constitutionally excessive,
even when it falls within statutory guidelines if: (1) the punishment is so
grossly disproportionate to the severity of the crime that, when viewed in
light of the harm done to society, it shocks the sense of justice; or (2) it
serves no purpose other than to needlessly inflict pain and suffering. State v.
Dorthey, 623 So. 2d 1276 (La. 1993); State v. Bonanno, 384 So. 2d 355 (La.
1980); State v. Weaver, 01-0467 (La. 1/15/02), 805 So. 2d 166; State v.
DeBerry, supra.
In this case, the applicable sentencing range is set forth in the 2017
version of La. R.S. 14:81.2(D)(1). It provides that the punishment for
molestation of a juvenile victim under the age of 13 is imprisonment “at hard
labor for not less than 25 years nor more than 99 years. At least 25 years of
4 the sentence imposed shall be served without benefit of probation, parole, or
suspension of sentence.”
The trial court did not abuse its discretion in sentencing Rutan to 75
years at hard labor. During Rutan’s sentencing hearing, the trial court noted
its review of the presentence investigation report and Rutan’s extensive,
violent criminal history, and his status as a fourth-felony offender.
Additionally, the record reflects applicability of several aggravating factors
not mentioned explicitly by the trial judge. Rutan manifested deliberate
cruelty to his 6-year old daughter by sexually molesting her. He used his
position as her father, and an authority figure in her household, to facilitate
his molestation of A.B. Rutan knew that his daughter, a 6-year old, was
particularly vulnerable and incapable of resistance due to her age. Rutan’s
crime will scar his daughter for life; already, she has been experiencing
emotional, mental and behavioral problems, in addition to undergoing
counseling, as a result of the crime. An adequate factual basis for the
sentence exists on the record.
Considering the fact that Rutan molested his own 6-year old daughter,
his 75-year sentence is not constitutionally excessive. Though Rutan’s
sentence likely amounts to a life sentence, due to his age, the sentence does
not shock the sense of justice, nor is it grossly disproportionate to the
severity of the offense. This assignment of error is without merit.
Parole eligibility restriction
Rutan correctly points out that the trial court erroneously believed it
was statutorily required to impose a parole restriction for the entirety of the
sentence. The following exchange during his sentencing hearing supports
Rutan’s argument. 5 THE COURT: Thirty-nine years of age. You stand before the Court having pled guilty to the charge of molestation of a juvenile. The range on that charge, given the category of molestation of a juvenile, is twenty-five years at hard labor to ninety-nine years. And that is without the benefit of probation, parole or suspension of sentence. Is that your understanding of the sentencing range, Mr. Rutan?
THE DEFENDANT: Yes, sir.
THE COURT: Is that the State’s understanding of the sentencing range?
MR. HOLLAND: Yes, sir.
THE COURT: And it is the Court’s understanding that the sentence, whatever the numerical amount of that sentence is, is to be served without benefit of probation, parole or suspension of sentence, correct?
The applicable provision of child molestation statute, La. R.S.
14:81.2(D)(1), only requires “at least” the first 25 years be served without
benefit of parole, probation or suspension of sentence. As shown by the
above excerpt from the transcript, the trial court incorrectly believed that it
was required to prohibit Rutan’s parole eligibility for the length of the entire
sentence. Because the trial court might not have prohibited parole eligibility
for the full 75-year sentence, had it properly read the statute, this case must
be remanded for reconsideration of the parole eligibility restriction.
Ineffective assistance of counsel
Rutan argues that his trial counsel was ineffective because he did not
file a motion to reconsider sentence, and in effect, that this omission
prejudiced him by waiving his right to review regarding: (1) whether the
trial court adequately articulated a factual basis for the sentence on the
record; and (2) whether the trial court was incorrect in its interpretation of
parole eligibility restriction.
6 This opinion disposes of both issues. As stated previously, the parole
eligibility restriction on Rutan’s sentence is vacated, and this case is
remanded for redetermination of the length of Rutan’s parole ineligibility in
accordance with this opinion. Second, the record adequately supports
Rutan’s sentence, even though the trial judge did not give an explanation of
his view of the applicability or inapplicability of each sentencing factor
under La. C.Cr.P. art. 894.1. In light of this opinion, Rutan’s trial counsel’s
failure to file a motion to reconsider sentence on the aforementioned grounds
caused Rutan no prejudice. Rutan is denied a hearing on the alleged
ineffectiveness of counsel, and is denied resentencing except as provided
herein regarding the parole eligibility restriction.
Notice of the sex offender notification and registration requirements as required by La. R.S. 15:543.
The record reveals that the trial court did not comply with the
statutory sex offender notification requirements. Molestation of a juvenile is
a sex offense as defined by La. R.S. 15:541, and La. R.S. 15:542 provides
registration requirements for convicted sex offenders. Pursuant to La. R.S.
15:543(A), the trial court must, on the record, give a convicted sex offender
the prescribed notice of the sex offender registration requirements:
The court shall provide written notification to any person convicted of a sex offense and a criminal offense against a victim who is a minor of the registration requirements and the notification requirements of this Chapter. For purposes of this Subsection, the court shall use the form contained in R.S. 15:543.1 and shall provide a copy of the registration and notification statutes to the offender. Such notice shall be included on any guilty plea forms and judgment and sentence forms provided to the defendant, and an entry shall be made in the court minutes stating that the written notification was provided to such offenders. If the offender is not sentenced to incarceration, then the court shall notify the bureau of the conviction of the offender. 7 The record does not reflect the trial court providing Rutan with the
prescribed written notice of his obligation to register as a sex offender.
Therefore, this matter must be remanded for the trial court to provide the
appropriate written notice to the defendant of the sex offender registration
requirements, and to confirm the written notification on the record. State v.
Barrett, 51,921 (La. App. 2 Cir. 4/11/18), 247 So. 3d 164, writ denied, 18-
0744 (La. 2/18/19), 265 So. 3d 770; State v. Williams, 49,249 (La. App. 2
Cir. 10/1/14), 149 So. 3d 462, writ denied, 14-2130 (La. 5/22/15), 173 So.
3d 1167; State v. Hough, 47,308 (La. App. 2 Cir. 8/1/12), 103 So. 3d 477,
writ denied, 12-1936 (La. 3/8/13), 109 So. 3d 357.
CONCLUSION
Rutan’s conviction and his sentence of 75 years at hard labor is
AFFIRMED. His sentence, though not excessive in any regard, is
VACATED as to the parole eligibility restriction, only, and is
REMANDED for the trial court to reconsider the restriction of parole
eligibility in light of this opinion. The trial court is also INSTRUCTED
to provide Rutan with written notice of the sex offender registration
requirements, and to document on the record that the notice was given.