State of Louisiana v. Sean J. Breaux

• Court: Louisiana Court of Appeal
• Decided: November 2, 2017
• Docket: KA-0017-0406
• Status: Unknown

Opinion

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

KA 17-406

STATE OF LOUISIANA

VERSUS

SEAN J. BREAUX

**********

APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF VERMILION, NO. 58337-J HONORABLE LAURIE A. HULIN, DISTRICT JUDGE

JOHN E. CONERY JUDGE

Court composed of Elizabeth A. Pickett, John E. Conery, and Candyce G. Perret, Judges.

AFFIRMED. Honorable Keith A. Stutes Lafayette Parish District Attorney Post Office Box 3306 Lafayette, Louisiana 70502-3306 (337) 232-5170 COUNSEL FOR PLAINTIFF/APPELLEE: State of Louisiana

John V. Ghio Assistant District Attorney 100 North State Street, Suite #215 Abbeville, Louisiana 70510 (337) 898-4320 COUNSEL FOR PLAINTIFF/APPELLEE: State of Louisiana

Edward Kelly Bauman Louisiana Appellate Project Post Office Box 1641 Lake Charles, Louisiana 70602-1641 (337) 491-0570 COUNSEL FOR DEFENDANT/APPELLANT: Sean J. Breaux CONERY, Judge.

On January 27, 2015, Defendant, Sean J. Breaux, was charged by bill of

indictment with one count of aggravated rape, in violation of La.R.S. 14:42. 1 On

May 12, 2016, the trial court ordered a sanity commission on Defendant’s motion.

One member of the commission was replaced on June 2, 2016. On September 1,

2016, after reviewing the sanity commission’s report, the trial court found that

Defendant was competent to stand trial. The trial court’s decision was based on

acknowledgment by counsel for the State and Defendant that the report of the two

remaining members of the sanity commission determined Defendant was

competent to stand trial.

On November 14, 2016, Defendant entered a plea of no contest to an

amended, and lesser, charge of second degree rape pursuant to La.Code Crim.P.

art. 14:42.12, with the agreement that a Pre-Sentence Investigation (PSI) Report

would be ordered. On January 20, 2017, after considering the PSI Report and all

evidence, the court sentenced Defendant to thirty-five years at hard labor, with the

first ten years to be served without benefit of probation, parole, or suspension of

sentence. The sentencing range for violations of La.Code Crim.P. art. 14:42.1 are

imprisonment at hard labor for at least five and no more than forty years, with the

1 The crimes of “aggravated” rape (14:42) and “forcible” rape (14:42.1) were respectively renamed “first degree” and “second degree” rape effective August 1, 2015. 2015 La. Acts No. 184, § 1; 2015 La. Acts No. 256, § 1. In this opinion, “aggravated rape” and “first degree rape” are synonymous and mean the offense defined by the provisions of La.Code Crim.P. art. 14:42; and “forcible rape” and “second degree rape” are synonymous and mean the offense defined by the provisions of La.Code Crim.P. art. 14:42.1. 2 Second Degree Rape, as defined in La.Code Crim.P. art. 14:42.1 is committed when the anal, oral, or vaginal sexual intercourse is deemed to be without the lawful consent of the victim because it is committed under any one of the following circumstances: (1) When the victim is prevented from resisting the act by force or threats of physical violence under circumstances where the victim reasonably believes that such resistance would not prevent the rape. .... added requirement that at least two of the years must be imposed without the

benefit of probation, parole, or suspension of sentence. La.Code Crim.P. art.

14:42.1.

On February 3, 2017, Defendant filed a pro se “Motion for Amending or

Modifying of Sentence” with the trial court. It failed to set forth grounds or

argument in support of modification of his sentence, which is required by La.Code

Crim.P. art. 881.1(B). Defendant then filed a second identical motion on February

21, 2017. Both motions were denied by the trial court without reasons, as allowed

by La.Code Crim. P. art. 881.1(D).

Defendant appealed and is now before this court asserting one assignment of

error: that his sentence is excessive and “considering the facts of [the] case, was an

abuse of the trial court’s discretion.” For the following reasons, we affirm the trial

court’s judgment sentencing Defendant to serve thirty-five years at hard labor, with

the first ten years being without benefit of probation, parole, or suspension of

sentence.

FACTS AND PROCEDURAL HISTORY

On or about October 24, 2014, Defendant raped the victim, a twelve year old

girl. This rape was characterized as “vaginal sexual intercourse without the lawful

consent of the victim.” At sentencing, and in support of the plea agreement, the

State set forth the factual basis that Defendant had violated La.Code Crim.P. art.

14:42.1 by having vaginal sexual intercourse with the twelve year old victim

without her lawful consent. The State further asserted the rape also fit the

constraints of La.Code Crim.P. art. 14:42.1 because the victim was prevented from

resisting the rape by force or threats of physical violence because the victim

reasonably believed that attempts at resisting would not prevent the rape.

2 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, this court finds

that there are no errors patent.

ASSIGNMENT OF ERROR

Defendant’s sole assignment of error is that the trial court erred in imposing

an excessive sentence. Defendant essentially argues that it was inappropriate for

his co-defendant, whom he claims “set this crime in motion,” to get a suspended

sentence while he received a sentence of thirty-five years imprisonment at hard

labor. The State contends Defendant’s appeal is improper and his sentence should

not be reviewed by this court because a proper motion to reconsider, as required by

La.Code Crim.P. art. 881.1(E), was not filed.

LAW AND DISCUSSION

Louisiana Code of Criminal Procedure Article 881.1(E) provides: “[f]ailure

to make or file a motion to reconsider sentence or to include a specific ground

upon which a motion to reconsider sentence may be based, including a claim of

excessiveness, shall preclude the state or the defendant from raising an objection to

the sentence or from urging any ground not raised in the motion on appeal or

review.”

To preserve the review of a sentence on appeal, a defendant must orally

move for same at sentencing or file a motion to reconsider sentence within thirty

days after sentencing unless the trial court specifically grants the defendant a

longer time period in which to file. La.Code Crim.P. art. 881.1(A)(1). In the

motion to reconsider, the defendant must “set forth the specific grounds on which

the motion is based.” La.Code Crim.P. art. 881.1(B). It does not matter whether

3 the motion is made orally at sentencing or in writing within the time periods set

forth in Article 881.1(A)(1) or granted by the trial court. Id. The trial court has the

discretion to deny a motion to reconsider without a hearing. La.Code Crim.P. art.

881.1(D). If a defendant fails to make or file a motion to reconsider, or if the

motion to reconsider does not include the specific ground(s) upon which it is

based, either party is precluded “from raising an objection to the sentence or from

urging any ground not raised in the motion on appeal or review.” La.Code Crim.P.

art. 881.1(E).

In the past, this court has declined to reconsider sentences when the motions

were not proper per La.Code Crim.P. art. 881.1. In State v. James, 95-962, pp. 2-3

(La.App. 3 Cir. 2/14/96), 670 So.2d 461, 464, the defendant filed a motion to

reconsider sentence one year and eight months after sentencing, well beyond the

thirty day requirement provided by La.Code Crim.P. art. 881.1. The record of

sentencing did not reflect that the trial court gave any additional time for the

defendant to file the motion and his motion was untimely. Id. This court found

that the defendant’s sentencing claims lacked merit because the motion to

reconsider sentence was not timely. Id., See also State v. King, 95-344, p. 3

(La.App. 3 Cir. 10/4/95), 663 So.2d 307, 308, writ denied, 95-2664 (La. 3/15/96),

669 So.2d 433.

Similarly, in State v. Bamburg, 00-675 (La.App. 3 Cir. 11/2/00), 772 So.2d

356, the defendant failed to object at the sentencing hearing to the sentence

imposed and did not timely file a written motion to reconsider sentence. This court

found his claim of excessiveness of sentence was barred. See also 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.

4 Although Defendant made a contemporaneous objection to his sentence at

the sentencing hearing, he never properly moved to have his sentence reconsidered

in accordance with La.Code Crim.P. art. 881.1. Further, his written motions for

reconsideration of sentence, while timely, failed to comply with subsection B of

Article 881.1 and were properly denied by the trial court pursuant to subsection D

of that same statute.

The State argues that by failing to file a proper motion to reconsider as

required by Article 881.1, Defendant waived his right to seek review of his

sentence. While we acknowledge that this court is precluded by legislation and

jurisprudence from reviewing the specifics of Defendant’s sentence because of his

failure to comply with La.Code Crim.P. art. 881.1, this court is not precluded from

reviewing Defendant’s sentence for constitutional excessiveness. State v.

Workman, 14-559 (La.App. 5 Cir. 4/15/15), 170 So.3d 279, writ denied, 15-0909

(La. 3/24/16), 190 So.3d 1189.

In some instances, this court has also chosen to review claims of

excessiveness despite the lack of a contemporaneous oral motion at sentencing and

the filing of a motion to reconsider sentence. See State v. Johnlouis, 09-235

(La.App. 3 Cir. 11/4/09), 22 So.3d 1150, writ denied, 10-97 (La. 6/25/10), 38

So.3d 336, cert. denied, 562 U.S. 1150, 131 S.Ct. 932 (2011). In these cases, this

court’s consideration was limited to only whether the defendants’ sentences were

unconstitutionally excessive. Given our discretion to review Defendant’s claim of

excessiveness or deny his appeal, and in the interest of justice, we choose to review

Defendant’s claim as a bare claim of unconstitutional excessiveness.

Louisiana courts have set out the following guidelines to be used when

reviewing the excessiveness of a sentence. “Sentences within the statutory

5 sentencing range can be reviewed for constitutional excessiveness.” State v.

Sepulvado, 367 So.2d 762 (La.1979).

In 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, a panel of

this court discussed the review of excessive sentence claims, stating: “La. Const.

art. I, § 20 guarantees that, ‘[n]o law shall subject any person to cruel or unusual

punishment.’” The Barling court stated that a penalty has to be “so grossly

disproportionate to the severity of the crime as to shock our sense of justice” or

that it is “nothing more than a needless imposition of pain and suffering” that

“makes no measurable contribution to acceptable penal goals” before it can be

deemed excessive by an appellate court. Id. The Barling court further explained

what when a sentence falls within statutory limits for a crime, it cannot be set aside

absent a manifest abuse of the trial court’s discretion. A trial courts’ discretion in

imposing sentences is broad. See Barling, 779 So. 2d 1035.

In reviewing a trial court’s sentencing discretion for a constitutionally

excessive sentence, “there are three factors the appellate court should consider,

“the nature of the crime, the nature and background of the offender, and the

sentence imposed for similar crimes by the same court and other courts.” State v.

Guilbeau, 2011-7 p. 7 (La.App. 3 Cir. 6/22/11), 71 So.3d 1010, 1016, quoting

State v. Lisotta, 98-648 (La.App. 5 Cir. 12/16/98), 726 So.2d 57, writ denied, 99-

0433 (La. 6/25/99).

1. Nature of the Crime

In this case, Defendant’s crime was the vaginal rape of a twelve year old girl

who was unable to resist or defend herself against Defendant, a man thirteen years

her senior. Defendant was indicted for aggravated rape because at the time he

6 raped her, the victim was under the age of thirteen. In addition to constituting

aggravated rape, Defendant’s act was also a “crime of violence.” A crime of

violence is defined as:

an offense that has, as an element, the use, attempted use, or threatened use of physical force against the person or property of another, and that, by its very nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense or an offense that involves the possession or use of a dangerous weapon.

La.R.S. 14:2(B).

The record is clear that the trial court found Defendant’s crime “despicable

and heinous and atrocious in every sense of the light.” Additionally, the facts

presented in the PSI “indicate to the Court that [Defendant] is a 25-year-old child

predator that had a child hand delivered to him by [a co-defendant].”

2. Nature and Background of Offender

At the time of the rape, Defendant was twenty-five. His conviction in the

instant case was his second felony conviction. His first conviction was in 2007 for

theft. The record indicates that the trial court considered the sanity commission’s

determination that Defendant’s IQ is 79, and that he has multiple children.

Although Defendant asserts on appeal that the trial court erred by not considering

his background, the record supports a conclusion, and defendant acknowledges,

that the trial court reviewed Defendant’s PSI carefully, and the PSI contained all

relevant background information on Defendant.

3. Sentences Imposed by Other Courts for the Same Crime

The final prong of the analysis to determine whether a sentence is

constitutionally excessive requires this court to look at sentences imposed on

defendants in other cases for similar crimes. In State v. Smith, 02-719, p. 4

7 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ denied, 03-562 (La. 5/30/03),

845 So.2d 1061, a panel of this court observed that:

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).

In State v. Vallery, 04-1589 (La.App. 3 Cir. 4/6/05), 899 So.2d 836, this

court upheld a thirty-five year sentence without benefits for a first time felony

offender convicted of forcible rape of his eleven year old stepdaughter. In support

of their opinion, a panel of this court determined that Vallery’s crime was terrible

enough to be a “crime of passion,” he had been sentenced within the guidelines,

and his sentence was less than the maximum he could have been given.

Comparatively, Defendant in the instant case has been convicted of two felonies,

the rape was a crime of passion, Defendant’s sentence was within the guidelines,

and it is less than the maximum the trial court could have ordered.

Importantly, the court in Vallery addressed the distinction set forth by the

supreme court in State v. Lanclos, 419 So.2d 475 (La.1982), addressing whether a

maximum sentence was appropriate following a plea agreement. In Lanclos, the

court distinguished between the crime that the defendant had committed from the

crime to which the defendant pled guilty. The Lanclos court held that because the

defendant committed a crime with greater penalties than the one to which he pled,

sentencing him to the maximum under the pled crime was not an abuse of

discretion. Vallery, 899 So.2d at 839-840.

CONCLUSION

Much like the defendant in Vallery, Defendant received a substantial benefit

in accepting a plea agreement that reduced his exposure from life imprisonment

8 without benefits, to a maximum of forty years imprisonment with no benefits for at

least two years. The Defendant is a second offender. His sentence was within the

guidelines, but not the maximum sentence, with only ten rather than the full thirty-

five year sentence of imprisonment imposed without benefits. After considering

the three factors set forth in Guilbeau and the entirety of the record, we find that

Defendant’s sentence is not constitutionally excessive. Guilbeau, 71 So.3d at

1016.

DECREE

For the foregoing reasons, Defendant’s conviction and sentence are

affirmed.