Judgment rendered August 14, 2019. Application for rehearing may be filed within the delay allowed by Art. 992, La. C. Cr. P.
No. 52,663-KA
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
STATE OF LOUISIANA Appellee
versus
RODRIQUS HARRIS Appellant
Appealed from the First Judicial District Court for the Parish of Caddo, Louisiana Trial Court No. 342918
Honorable Katherine Clark Dorroh, Judge
ELLIS & ELLIS LAW FIRM Counsel for Appellant By: Carey J. Ellis, III
JAMES E. STEWART, SR. Counsel for Appellee District Attorney
RICHARD SOL FEINBERG TRENEISHA JACKSON HILL JASON WAYNE WALTMAN Assistant District Attorneys
Before STONE, STEPHENS, and McCALLUM, JJ. STONE, J.
In this criminal case, the defendant, Rodriqus Harris (“Harris”), was
found guilty by a jury of second degree rape and molestation of a juvenile.
He was sentenced to 45 years at hard labor for second degree rape as a
second-felony habitual offender, and to 15 years at hard labor for
molestation of a juvenile, to be served consecutively. The sentencing judge
ordered that all 45 years of the rape sentence be served without eligibility of
parole. Harris now appeals. For the following reasons, we affirm the
defendant’s convictions, and we hold that his sentences are not excessive.
However, we vacate Harris’ habitual offender sentence and remand with
instructions provided hereinafter.
FACTS
Harris was charged by amended bill of information with second
degree rape, La. R.S. 14:42.1, and molestation of a juvenile, La. R.S.
14:81.2. The crimes occurred between July 4, 2016, and July 16, 2016. At
that time, the victim, T.B., was 13 years old and was Harris’ stepdaughter.
The jury trial commenced on November 7, 2017. At trial, T.B.
testified that Harris made her perform oral sex on him three times when they
were in a car together. He grabbed her neck and pushed her head down.
T.B. stated that Harris would tell her to “just f’ing drink it” and say “suck it,
lick it, and stuff like that.” Harris also told T.B. that if she told anyone, they
would both get in trouble.
The final incident occurred on July 16, 2016. On that date, T.B. was
in the doorway of her bedroom when Harris told her to pull down her pants
and face away from him. Harris stood in the bathroom across the hallway
from T.B.’s bedroom wearing only boxers. T.B. complied, and Harris had begun masturbating with a bar of soap in his hand when T.B.’s mother, L.B.,
entered the area and saw what Harris was doing.
L.B. testified that when she saw Harris in the bathroom masturbating
while looking into T.B.’s room, she said “what the fuck you doing?” Harris
told her “you’re tripping.” Harris then told T.B. to “tell her [L.B.] nothing.”
L.B. asked T.B. what Harris made her do, and T.B. said “showing my body.”
L.B. grabbed both of her daughters, ran out of the house, and called the
police.1
T.B. was subsequently taken to the Gingerbread House for a recorded
interview. The recording of the interview was played for the jury and, in
addition to the above incidents, T.B. stated that Harris had come into her
room every night since July 4, 2016, pulled her pants down, and rubbed her
private parts. At trial, Harris testified and adamantly denied any
wrongdoing.
Following trial, the jury unanimously found Harris guilty of second
degree rape and molestation of a juvenile. The trial court denied Harris’
post-trial motions.
On November 27, 2017, the trial court sentenced Harris to 30 years at
hard labor, with the first 2 years to be served without benefits for the second
degree rape conviction, and to 15 years at hard labor for the molestation of a
juvenile conviction. The sentences were ordered to be served consecutively.
That same date, the state filed a second-felony habitual offender bill of
information seeking to enhance Harris’ sentence for second degree rape,
1 L.B. was seven months pregnant at the time of the incident and has since filed for divorce. 2 based on Harris’ prior conviction for armed robbery with a firearm from
May 10, 2005, for which he received a 15-year sentence.
On January 5, 2018, Harris filed a pro se motion for production of
documents (a “Simmons motion”). Therein, he requested free copies of
all documentation pertaining to the state and prosecuting him including, but not limited to: arrest warrants; complete court minutes; indictment/bill of information; preliminary hearings; PSI and commitment reports; audio tapes; complete open file discovery; sentencing minutes extract; any physical evidence; any DNA testing; and all statements made against the defendant.
Harris did not specifically request any guilty plea transcript, nor did he
identify the 2005 predicate offense (armed robbery) by docket number or
otherwise. He claimed the documents requested would be “crucial in the
filing of post-conviction relief.”
The trial court ruled on the Simmons motion on January 11, 2018,
granting it in part, and denying it in part. The trial court granted the motion
as to the documents to which indigent inmates are generally entitled to as a
matter of right under State ex rel. Simmons v. State, 93-0175 (La. 12/16/94),
647 So. 2d 1094. Namely, those are: (1) the bill of information or grand jury
indictment; (2) the court minutes; (3) the guilty plea transcript; (4) the
commitment order or documents committing the defendant to custody; and
(5) the transcript of any evidentiary hearing held on a post-conviction relief
application. As to all other requested documents, the trial court denied the
motion, noting that Harris failed to show a particularized need. Harris did
not receive a guilty plea transcript for the current offenses because none
exists – he did not plead guilty to the current offenses. Harris likewise did
not receive a copy of his 2005 guilty plea to armed robbery.
3 On March 6, 2018, Harris filed a pro se motion to quash the habitual
offender bill of information, on the basis that his guilty plea for the 2005
predicate offense was obtained in violation of the constitution. Specifically,
he argued that he was not properly Boykinized at the time he pled guilty to
the predicate offense.
The habitual offender hearing was held on April 5, 2018. Therein, the
trial court heard evidence concerning Harris’ convictions. However, at
Harris’ request, the trial court deferred ruling on his motion to quash until
the trial court could obtain and review a copy of the Boykin transcript for the
predicate offense.
The following evidence was presented at the habitual offender
hearing. Shreveport Police Officer Danny Duddy was accepted as an expert
in the field of latent fingerprint examination. He testified that he took
Harris’ fingerprints, S-1, and compared them with the fingerprints contained
on S-2 (bill of information, fingerprints, and court minutes for the 2005
armed robbery conviction, Caddo Parish Docket No. 233,911), and the
fingerprints on S-3 (fingerprint attachment sheet for the instant convictions).
Officer Duddy concluded that Harris was the same individual whose prints
appeared on all three documents
At a hearing on June 11, 2018, the trial court noted that it had received
the transcript of the Boykin colloquy from Harris’ prior conviction, and
stated that it was going to file a copy in the instant case, Docket No.
342,918. The trial court extensively quoted and discussed, on the record, the
colloquy between Harris and then-Judge Crichton, and found that Harris was
represented by counsel, Anita McKeithen, and was properly advised of his
rights. Thus, the trial court denied Harris’ motion to quash the habitual 4 offender bill. Neither Harris nor his counsel objected to the trial court’s
ruling on the motion to quash. Likewise, Harris made no objection regarding
his nonreceipt of a copy of the guilty plea colloquy transcript for the
On August 6, 2018, the trial court adjudicated Harris a second-felony
habitual offender and resentenced him accordingly. Specifically, the trial
court vacated the prior sentence imposed for second degree rape, and
sentenced Harris to 45 years at hard labor without benefits. The trial court
also stated that Harris’ sentence for molestation of a juvenile would remain
at 15 years, and that his sentences would be served consecutively.
Harris filed two motions to reconsider sentence, one pro se and one
counseled, arguing that his total 60-year sentence was excessive. The trial
court denied both motions. This appeal followed.
DISCUSSION
Validity of habitual offender adjudication; motion for production of documents
Motion for production of documents. In his first assignment of
error, Harris asserts that his adjudication as a second felony offender is
invalid. Specifically, he asserts that: (1) pursuant to his Simmons motion, the
trial court ordered that Harris be given a copy of the transcript of his 2005
guilty plea; and (2) because such was not done, the habitual offender
adjudication predicated on that 2005 conviction is invalid. Harris appears to
further argue that because he denied the allegations of the habitual offender
bill, the State’s burden of proof required the 2005 guilty plea transcript –
demonstrating constitutional validity of the plea – to be entered into
5 evidence, and because such was not done, the evidence was insufficient to
prove he is a second felony offender.
Under State ex rel. Simmons v. State, supra, indigent inmates are
generally entitled to the following documents free of charge: (1) transcripts
of their guilty plea colloquies; (2) copies of the bill of information or grand
jury indictment charging them with a crime; (3) copies of the district court
minutes for various portions of their trials; (4) copies of transcripts of
evidentiary hearings held on their applications for post-conviction relief; and
(5) copies of the documents committing them into custody. However, an
inmate is not automatically entitled to those documents free of charge if the
only claims that the documents could support are not cognizable on
collateral review or are time-barred pursuant to La. C.Cr.P. art. 930.8. State
ex rel. Brown v. State, 2003-2568 (La. 3/26/04), 870 So.2d 976 citing State
ex rel. Degreat v. State, 98-0690 (La. 7/2/98), 724 So.2d 205 and State ex
rel. Fleury v. State, 93-2898 (La. 10/13/95), 661 So.2d 488.
If, under the foregoing jurisprudence, an indigent inmate is not
automatically entitled to a free copy of a certain document, then he or she
must establish particularized need for the document to obtain a free copy
thereof. To establish particularized need, the inmate must: (1) articulate a
valid attack on an existing conviction of the inmate through a procedurally
valid pleading or motion; and (2) that attack must require the requested
document as supporting evidence. Otherwise, the inmate must pay for the
requested document. State ex rel. Bernard v. Criminal District Court Section
J., 94-2247 (La. 4/28/95), 653 So. 2d 1174.
Habitual offender law. The state bears the burden of proof beyond a
reasonable doubt in habitual offender proceedings. La. R.S. 6 15:529.1(D)(1)(b); State v. Collins, 48,782 (La. App. 2 Cir. 2/26/14), 136
So. 3d 912, writ denied, 14-0645 (La. 10/31/14), 152 So. 3d 150. At a
minimum, that burden requires the state to prove that there is a prior felony
conviction and that the defendant is the person who was convicted of that
prior felony.
In State v. Shelton, 621 So. 2d 769 (La. 1993), the Louisiana Supreme
Court outlined how the burden of proof potentially shifts back and forth in
habitual offender proceedings where the predicate conviction was
established via guilty plea:
If the defendant denies the allegations of the bill of information, the burden is on the State to prove the existence of the prior guilty pleas and that defendant was represented by counsel when they were taken. If the State meets this burden, the defendant has the burden to produce some affirmative evidence showing an infringement of his rights or a procedural irregularity in the taking of the plea. If the defendant is able to do this, then the burden of proving the constitutionality of the plea shifts to the State. The State will meet its burden of proof if it introduces a “perfect” transcript of the taking of the guilty plea, one which reflects a colloquy between judge and defendant wherein the defendant was informed of and specifically waived his right to trial by jury, his privilege against self incrimination, and his right to confront his accusers. If the State introduces anything less than a “perfect” transcript, for example, a guilty plea form, a minute entry, an “imperfect” transcript, or any combination thereof, the judge then must weigh the evidence submitted by the defendant and by the State to determine whether the State has met its burden of proving that defendant’s prior guilty plea was informed and voluntary, and made with an articulated waiver of the three Boykin rights.
Id. at 779-780. Shifting the burden to the defendant to produce evidence of
invalidity of the guilty plea is justified by the “presumption of regularity that
attaches to final judgments.” State v. Shelton, supra; State v. Fields, 42,761
(La. App. 2 Cir. 1/9/08), 973 So. 2d 973, writ denied, 08-0469 (La. 9/26/08),
992 So. 2d 983.
7 The Habitual Offender Act does not require the state to use a specific
type of evidence to carry its burden at a habitual offender hearing. Prior
convictions may be proved by any competent evidence. State v. White, 13-
1525 (La. 11/8/13), 130 So. 3d 298. See also State v. Roland, 49,660 (La.
App. 2 Cir. 2/27/15), 162 So. 3d 558, writ denied, 15-0596 (La. 2/19/16),
186 So. 3d 1174 (stating that minutes reflecting that the Boykin requirements
were satisfied are sufficient).
The defendant’s burden under Shelton, supra, may be satisfied using a
transcript, testimony regarding the taking of the plea, or other affirmative
evidence. State v. Clesi, 07-0564 (La. 11/2/07), 967 So. 2d 488 (finding that
the defendant’s pre-hearing and mid-hearing objections that he was not
properly Boykinized for the predicate guilty pleas did not constitute
affirmative evidence of a defect in in his prior guilty pleas). See also State v.
Henry, 42,416 (La. App. 2 Cir. 9/19/07), 966 So. 2d 692, writ denied, 07-
2227 (La. 8/29/08), 989 So. 2d 95 (stating that the absence of a Boykin
transcript does not constitute affirmative evidence of an infringement of the
defendant’s rights or a procedural irregularity).
La. C.Cr.P. art. 841(A), known as the “contemporaneous objection
rule,” provides:
An irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence… It is sufficient that a party, at the time the ruling or order of the court is made or sought, makes known to the court the action which he desires the court to take, or of his objections to the action of the court, and the grounds therefor.
Analysis. We construe the trial court’s written ruling on Harris’
motion for production as not granting Harris a free copy of his 2005 guilty
8 plea transcript. Nowhere in Harris’ Simmons motion did he specifically
request his guilty plea transcript, nor did he state the docket number or any
other identifying information for the 2005 predicate offense. The only
language in Harris’ motion perhaps even arguably requesting the 2005 guilty
plea transcript is his request for free copies of “all documentation pertaining
to the state and prosecuting him.” Furthermore, Harris did not file his pro se
motion to quash the habitual offender bill predicated on the 2005 conviction
until approximately two months after he filed his Simmons motion.
Accordingly, we find that Harris failed to adequately apprise the trial court
of his (alleged) desire to obtain the 2005 guilty plea transcript.2
In response to Harris’ Simmons motion, the trial court granted Harris’
motion as to the documents listed in Simmons, supra. That list includes
guilty plea transcripts. However, like Harris’ motion, the trial court’s ruling
did not contain the docket number – or any other identifying information –
for Harris’ predicate offense. The absence from the trial court’s ruling of a
docket number (or any other identify) for the predicate offense, we do not
believe that the trial court intended to grant Harris a free copy of his 2005
guilty plea transcript. Instead, we construe the trial court’s ruling as a pro
forma directive to the clerk of court to provide Harris with the Simmons
documents regarding the current offenses; because Harris did not plead
2 We doubt that Harris actually had a specific desire to obtain the 2005 guilty plea transcript at the time he filed the motion. Indeed, after the request for "all documentation pertaining to the state and prosecuting him,” he made an extensive list of nonexclusive particulars which did not include the 2005 guilty plea transcript. Likewise, his motion did not contain any reference to the 2005 predicate offense by Docket number or otherwise. In light of those omissions and Harris’ failure to raise the issue of his nonreceipt of the transcript at the final hearing on the habitual offender adjudication, it is likely that this argument is a mere afterthought. 9 guilty to the current offenses, that portion of Simmons was inapplicable
(even though it was quoted in the trial court’s ruling).
Regardless, Harris waived any argument he may have had as a result
his nonreceipt of the 2005 guilty plea transcript. The trial court indicated on
the record at the June 11, 2018, hearing that it had obtained and reviewed a
copy of the 2005 guilty plea transcript, and based thereon, ruled that Harris
was properly advised of his rights in connection with that guilty plea.
Neither Harris nor defense counsel indicated that they had not been given an
adequate opportunity to review that guilty plea transcript. Nor did Harris or
his attorney object to the trial court’s ruling that Harris was properly advised
of his rights. This inaction by Harris and his attorney bars him from raising
his nonreceipt of a copy of the 2005 guilty plea transcript on appeal. La.
C.Cr.P. art. 841(A).
Harris’ argument that the evidence was insufficient to prove his status
as a habitual offender is, likewise, without merit. As previously stated,
because Harris denied the allegations of the habitual offender bill, the state
had the burden of proving the existence of the prior guilty plea and that
Harris was represented by counsel when it was taken. State v. Shelton,
supra.
The state satisfied that burden. Specifically, at the habitual offender
hearing, the state introduced certified copies of the bill of information, court
minutes, and the fingerprint attachment sheet for Harris’ prior conviction, as
well as the testimony of an expert witness who identified the fingerprints on
those documents as belonging to Harris. The exhibits show that Harris pled
guilty to armed robbery with a firearm on May 10, 2005, in Caddo Parish.
The minute entry states: 10 The accused, present with counsel, Anita McKeithen, withdrew his former plea of not guilty and pled guilty to the charge. The court informed the defendant of his constitutional rights as per Boykin v. Alabama (see court reporter’s transcript). Case was continued until May 31, 2005 at 1:30 o’clock p.m. for sentencing hearing.
This evidence, which established the existence of Harris’ prior guilty plea
and his representation by counsel, satisfied the state’s initial burden of proof.
Pursuant to State v. Shelton, supra, the burden of proof then shifted to
Harris to produce affirmative evidence showing an infringement of his rights
or a procedural irregularity in the taking of the plea. He failed to do so.
While his pro se motion to quash alleged that he was not fully advised of his
rights at the time he pled guilty, Harris failed to provide any evidence
supporting that allegation. Therefore, the burden of proving the
constitutionality of the plea did not shift back to the state, and it was not
obligated to introduce into evidence a perfect Boykin transcript for the
For purposes of appeal, Harris waived any argument he may have had
regarding the trial court’s ruling on his motion to quash or his nonreceipt of
the 2005 guilty plea transcript. This assignment of error is without merit.
Excessive sentence
In his second assignment of error, Harris asserts that his 60-year total
sentence is constitutionally excessive. Harris complains that the trial court
did not consider any mitigating factors; however, Harris does not assert any
specific facts as constituting mitigating factors that the court should have
considered. Harris also complains that the trial court did not order a
presentence investigation report.
11 An appellate court utilizes a two-pronged test in reviewing a sentence
for excessiveness: (1) whether the trial court properly took cognizance of the
factors set forth in La. C.Cr.P. art. 894.1; and (2) whether the sentence is
constitutionally excessive under La. Const. art. I § 20.
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. Instead, it is sufficient if 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,
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.
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.
12 Second, this court must determine whether the sentence is
constitutionally excessive. A sentence violates La. Const. art. I, § 20 if it is
grossly out of proportion to the seriousness of the offense or nothing more
than a purposeless and needless infliction of pain and suffering. State v.
Dorthey, 623 So. 2d 1276 (La. 1993); State v. Bonanno, 384 So. 2d 355 (La.
1980). A sentence is considered grossly disproportionate if, when the crime
and punishment are viewed in light of the harm done to society, it shocks the
sense of justice. State v. Weaver, 01-0467 (La. 1/15/02), 805 So. 2d 166;
State v. DeBerry, supra.
A presentence investigation report is an aid to help the court, not a
right of defendant, and the court is not required to order one. La. C. Cr. P.
art. 875; State v. Scott, 50,920 (La. App. 2 Cir. 11/16/16), 209 So. 3d 248,
253, writ denied, 17-0353 (La. 11/13/17), 229 So. 3d 478.
When two or more convictions arise from the same act or transaction,
or constitute parts of a common scheme or plan, the terms of imprisonment
shall be served concurrently unless the court expressly directs that some or
all be served consecutively. La. C. Cr. P. art. 883. Concurrent sentences
arising out of a single course of conduct are not mandatory, and consecutive
sentences under those circumstances are not necessarily excessive. State v.
Allen, 52,318 (La. App. 2 Cir. 11/14/18), 260 So. 3d 703. It is within the
court’s discretion to make sentences consecutive rather than concurrent.
State v. Nixon, 51,319 (La. App. 2 Cir. 5/19/17), 222 So. 3d 123, writ
denied, 17-0966 (La. 4/27/18), 239 So. 3d 836.
When consecutive sentences are imposed, the court shall state the
factors considered and its reasons for the consecutive terms. State v.
Williams, 52,052 (La. App. 2 Cir. 6/27/18), 250 So. 3d 1200. Among the 13 factors to be considered are the defendant’s criminal history, the gravity or
dangerousness of the offense, the viciousness of the crimes, the harm done
to the victims, whether the defendant constitutes an unusual risk of danger to
the public, the potential for the defendant’s rehabilitation, and whether the
defendant has received a benefit from a plea bargain. The failure to
articulate specific reasons for consecutive sentences does not require remand
if the record provides an adequate factual basis to support consecutive
sentences. State v. Weston, 52,312 (La. App. 2 Cir. 11/14/18), 260 So. 3d
722, writ denied, 18-2066 (La. 4/22/19), 268 So. 3d 299.
La. R.S. 14:42.1(B) provides that a person convicted of second degree
rape shall be imprisoned at hard labor for not less than 5 years nor more than
40 years, and required that at least two years of the sentence be served
without benefit of probation, parole, or suspension of sentence.
In 2016, when Harris committed the second degree rape, La. R.S.
15:529.1(A)(1), the applicable Habitual Offender Law provision, stated: “If
the second felony is such that upon a first conviction the offender would be
punishable by imprisonment for any term less than his natural life, then the
sentence to imprisonment shall be for a determinate term not less than one-
half the longest term and not more than twice the longest term prescribed for
a first conviction.”3 Therefore, the applicable sentencing range for Harris, a
second-felony offender convicted of second degree rape, is 20 to 80 years at
hard labor with at least the first 2 years to be served without the benefit of
parole.
3 This provision was subsequently amended. 14 La. R.S. 14:81.2(B)(2) provides that whoever commits the crime of
molestation of a juvenile, when the victim is 13 years of age or older but has
not yet attained the age of 17, and when the offender has control or
supervision over the juvenile, shall be fined not more than $10,000, or
imprisoned, with or without hard labor, for not less than 5 nor more than 20
years, or both.
The record adequately supports Harris’ sentences. At the original
sentencing hearing and the habitual offender sentencing hearing, the trial
court reviewed the facts of this case and found the following aggravating
factors applicable: (1) Harris’ conduct during the commission of the offenses
manifested cruelty to the young victim and took her innocence from her; (2)
Harris knew or should have known that the victim was particularly
vulnerable due to her young age; (3) Harris used his position or status to
facilitate the commission of the crimes as he was the victim’s stepfather and
had supervision and control over her; (4) the offenses resulted in significant
permanent emotional injury to the child victim and her mother, noting that
the child had a difficult time testifying and obviously is very affected by the
circumstances; and (5) Harris’ history of criminal conduct. The trial court
also provided written reasons, stating that in determining Harris’ habitual
offender sentence, it considered Harris’ prior conviction for armed robbery,
the age of the victim, Harris’ former conviction of two sex crimes involving
a juvenile, and that Harris has failed to show any remorse for his actions.
The trial court found that no mitigating factors are applicable in this
case. Despite arguing that this somehow supports his assignment of error,
Harris failed to ever allege any additional facts that he says the trial court
should have considered in mitigation. Further, although the trial court did 15 not provide a thorough explanation of the factors it considered in ordering
the sentences to run consecutively, the trial court did specifically note that it
considered the nature of the crimes and the young age of the victim. The
record adequately supports the sentences imposed.
Harris’ total 60-year sentence is not constitutionally excessive. Harris
abused his position of trust and authority to sexually abuse his 13-year-old
stepdaughter, including forcing her to perform oral sex on him multiple
times. Considering Harris’ deplorable conduct, the sentences imposed by
the trial court do not shock the sense of justice, nor are they grossly
disproportionate to the severity of the offenses. This assignment of error is
without merit.
Error patent
The record shows that the trial court incorrectly believed that the
entire 45-year sentence was legally required to be imposed without parole
eligibility. At the habitual offender sentencing hearing, the trial court first
stated that it would order that only 15 years be served without parole
eligibility, but after conferring with the assistant district attorney, the trial
court stated that the entire sentence had to be imposed without parole
eligibility, and therefore, imposed Harris’ entire 45-year sentence without
benefits.
La. R.S. 14:42.1(B), as written at the time of Harris’ crimes, only
requires that “at least two years” be imposed without the benefit of parole,
and that the entire sentenced be imposed without benefit of probation or
suspension of sentence. The Habitual Offender Law in effect at that time
did not alter that restriction of parole (or other sentencing benefits).
Although the trial court incorrectly believed that it did not have discretion in 16 determining the exact length of time that parole eligibility was to be
withheld, the denial of parole eligibility for the entirety of Harris’ sentence is
not illegal or excessive. Nonetheless, this error of law caused the trial court
to increase the parole eligibility restriction on Harris’ second offender
sentence for second degree rape from 15 years to 45 years.
CONCLUSION
Harris’ convictions are sentences affirmed. His adjudication as a
second felony offender, and his 15 year sentence for molestation of a
juvenile, are also affirmed. Harris’ sentence to 45 years of imprisonment at
hard labor is not excessive, but is vacated due to the legal error regarding the
parole restriction. We remand with instructions to the trial court to
reconsider the parole restriction on the second felony offender sentence for
second degree rape in light of this opinion, and to resentence Harris
accordingly.
AFFIRMED IN PART; VACATED IN PART; REMANDED.