STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
15-287
STATE OF LOUISIANA
VERSUS
TERRANCE MOUTON AKA TERRENCE MOUTON
**********
APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF VERMILION, NO. 55101 HONORABLE DURWOOD WAYNE CONQUE, DISTRICT JUDGE
********** ELIZABETH A. PICKETT JUDGE **********
Court composed of Elizabeth A. Pickett, Phyllis M. Keaty, and David Kent Savoie, Judges.
AFFIRMED WITH INSTRUCTIONS.
Annette Fuller Roach Louisiana Appellate Project P. O. Box 1747 Lake Charles, LA 70602-1747 (337) 436-2900 COUNSEL FOR DEFENDANT-APPELLANT: Terrance Mouton
Keith A. Stutes District Attorney, Fifteenth Judicial District Ted L. Ayo Assistant District Attorney P. O. Box 3306 Lafayette, LA 70502-3306 (337) 232-5170 COUNSEL FOR APPELLEE: State of Louisiana PICKETT, Judge.
FACTS
The following factual basis was recited by the state at sentencing:
According to the offense report submitted by the Abbeville Police Department, on February 4th of 2012, at approximately 11:48 AM, Officer Eugene Rougeaux responded to a domestic disturbance call at 807 Northeast Street in Abbeville. Likesa Mouton stated that her husband, Terrance Mouton, tried to cut her with a knife and was in the back bedroom. Terrance Mouton exited the bedroom while Officer Rouge [sic] was speaking to Likesa Mouton. Officer Rougeaux told Terrance Mouton to come to him and that he wanted to speak to him. Officer Rougeaux informed Terrance Mouton that he would pat him down for weapons and for Mouton to turn around.
As soon as Officer Rougeaux touched Mouton, Mouton ran around the coffee table. Officer Rougeaux grabbed Mouton by the shirt and pinned him to a wall while Mouton appeared to be reaching for a weapon of some kind in his pants pocket. Mouton refused to be patted down and continued to struggle against Officer Rougeaux. Mouton pushed Officer Rougeaux backwards, where both Terrance Mouton and Officer Rougeaux ended up outside the residence. Mouton then started to fight with Officer Rougeaux and broke his body microphone in the process.
Mouton then took off running towards the Valero convenience store at the corner of Veterans Memorial Drive and State Street. Officer Rougeaux broadcast over the radio, and Sergeant William Spearman, who was at McDonald’s, noticed the described subject running in the parking lot of the Valero.
Terrance Mouton entered a 2006 GMC Sierra truck driven by Jillian Cauthron that had stopped at the Valero for gasoline and snacks for children. The three children - - R.C., age ten, G.R., age 11; and P.R., age nine - - were in the vehicle while the adult, Jillian Cathorne [sic], was inside the store paying for the items.
Mouton stole the truck with the children inside headed west on Highway 14 and ran the red light on South State Street. It was raining very heavily because of a thunderstorm in the area. Officer Spearman followed the vehicle. The vehicle turned north on Highway 167, and the following officers lost sight due to the heavy rain.
About a half a mile ahead, Officer Jonathan Touchet observed traffic stopped due to a black smoking truck that had been wrecked into a tree. A black male subject matching the description of the suspect was located in a vehicle that was stopped in front of Officer Touchet’s unit.
Dominique Rice pointed to the back seat of the vehicle saying, he’s back there. Officer Touchet opened the door and pulled Mouton out of the vehicle to place him into handcuffs. Dominique Rice indicated she stopped her vehicle because of the accident when an unknown black male jumped into her vehicle and demanded to be brought to Maurice.[1]
The front passenger in Rice’s vehicle took the keys out of the ignition and refused. Seconds later Officer Touchet approached the vehicle and apprehended Terrance Mouton. Three juveniles were also in Ms. Rice’s vehicle.
The officers approached the wrecked vehicle and observed three young hysterical children with injuries. The truck that Terrance Mouton took from the Valero ran into a tree. One child had to be extracted from the vehicle.
The three children were transported by emergency services to a hospital in Lafayette for medical care due to the injuries sustained in the accident. Terrance Mouton was also transported to a hospital for medical care.
Subsequent medical information indicated that P.R., age nine, had internal injuries; R.C., age ten, had a fractured skull; and G.R., age 11, had both his legs broken, along with damage to his eyes.
Following the recovery and aid rendered relative to the carjacking, Likesa Mouton provided a statement that Mouton pushed her, choked her, and did not allow her to leave the residence while threatening her with a knife, and that he slashed the knife at her but missed.
On March 29, 2012, the defendant, Terrance Mouton, was charged by bill of
information with five different counts: 1) Count one – Carjacking, a violation of
La.R.S. 14:64.2; 2) Count two – Attempted carjacking, a violation of La.R.S. 14:27
and 14:64.2; and 3) Counts three, four and five – Second degree kidnapping,
violations of La.R.S. 14:44.1. The defendant entered pleas of not guilty to the
1 In his statement to the trial court at sentencing, the defendant claimed that he did not abandon the three victims after he wrecked the vehicle. The defendant claimed that he jumped into the backseat with the victims, held them, and prayed for them.
2 charges on April 26, 2012. Thereafter, on December 10, 2012, the trial court
ordered a sanity commission and stayed the proceedings. On February 27, 2014,
however, the defendant was found capable of standing trial.
On July 16, 2014, the defendant withdrew his previous pleas of not guilty
and entered no contest pleas to one count of carjacking and three counts of second
degree kidnapping. In exchange, the state agreed to dismiss count two, attempted
carjacking, and all counts in lower court docket numbers 55102 and 55103. 2 The
trial court ordered a Presentence Investigation (PSI) report, and on December 15,
2014, the trial court sentenced the defendant to the following sentences:
Carjacking – ten years at hard labor, without benefit of probation, parole, or
suspension of sentence; and Second Degree Kidnapping (3 counts) – ten years at
hard labor on each count, without benefit of probation, parole, or suspension of
sentence. The trial court ordered all sentences to run consecutively to each other,
for a total sentence of forty years at hard labor, without benefit of probation,
parole, or suspension of sentence.
The defendant filed a Motion for Appeal and Designation of Record that was
granted by the trial court on January 15, 2015. Pursuant to that motion, the
defendant’s appellate counsel filed a brief in this court, alleging two assignments
of error regarding the sentences imposed. 3
2 The charges at issue proceeded under lower court docket number 55101; the bills bearing docket numbers 55102 and 55103 included a total of five counts, including domestic battery by strangulation, false imprisonment, aggravated assault, resisting a police officer by force, and battery on a police officer. 3 Pursuant to a pro se “Motion for Leave of Court to Supplement the Appellate Attorneys Original Brief,” this court sent a copy of the record to the defendant and allowed him until June 11, 2015, to file a brief. No pro se brief was filed.
3 ASSIGNMENTS OF ERROR
1. The trial court’s imposition of consecutive sentences totaling forty years at hard labor without benefit of probation, parole, or suspension of sentence violates the Eighth Amendment of the Constitution of the United States and La.Const.Art. I, § 20.
2. Trial counsel rendered ineffective assistance of counsel by failing to file a motion to reconsider the sentences to preserve the issue of the excessiveness of the sentences.
ERRORS PATENT
In accordance with La.Code Crim.P. art. 920, all appeals are reviewed by
this court for errors patent on the face of the record. After reviewing the record,
we find there is one error patent.
We find the commitment order requires correction. Both the sentencing
transcript and the court minutes reflect that the defendant’s sentences for second
degree kidnapping were imposed without the benefit of parole, probation, or
suspension of sentence. However, the commitment order does not indicate this.
Accordingly, the trial court is ordered to correct the commitment order to
accurately reflect the sentences imposed for second degree kidnapping.
ASSIGNMENTS OF ERROR NUMBERS ONE AND TWO
In the first assignment of error, appellate counsel challenges the fact that the
sentences were ordered to run consecutively even though the offenses arose out of
the same act or transaction. In the second assignment of error, appellate counsel
asserts that trial counsel was ineffective for failing to file a motion to reconsider
the sentences. We will address these two assignments of error together since they
are intertwined.
Since defense counsel failed to object to the sentences imposed and failed to
file a motion to reconsider sentence, the defendant is precluded from seeking
4 review of the sentences imposed. La.Code Crim.P. art. 881.1(E) and State v.
Doucet, 09-1065 (La.App. 3 Cir. 5/5/10), 36 So.3d 1105, writ denied, 10-1195 (La.
12/17/10), 51 So.3d 19. In Assignment of Error No. 2, however, the defendant
asserts that his counsel was ineffective for failing to file a motion to reconsider
sentences. “[W]hen the record contains sufficient evidence to address the
ineffective assistance of counsel issue, this court examines ‘whether there was a
reasonable probability that the trial court would have reduced’ defendant’s
sentence if defendant’s trial counsel made or filed a motion to reconsider
sentence.” Id., 36 So.3d at 1110 (citing State v. Blake, 03-1465 (La.App. 3 Cir.
5/5/04), 872 So.2d 602.) This court has stated the following regarding the proof
necessary for a successful claim that counsel was ineffective for failing to file a
motion to reconsider sentence:
When the defense counsel fails to file a motion to reconsider sentence, Defendant may have a claim of ineffective assistance of counsel when Defendant “can show a reasonable probability, but for defense counsel’s error, his sentence would have been different.” [State v.] Prudhomme, [02-511 (La.App. 3 Cir. 10/30/02),] 829 So.2d [1166] at 1177 (citing State v. Texada, 98-1647 (La.App. 3 Cir. 5/5/99), 734 So.2d 854). Moreover,
[a] claim of ineffective assistance of counsel is properly raised in an application for post-conviction relief. This allows the trial judge an opportunity to order a full evidentiary hearing on the matter. State v. Burkhalter, 428 So.2d 449 (La. 1983). However, where the record contains evidence sufficient to decide the issue and the issue is raised by an assignment of error on appeal, it may be considered. State v. James, 95-962 (La.App. 3 Cir. 2/14/96); 670 So.2d 461.
State v. Francis, 99-208, pp. 10-11 (La.App. 3 Cir. 10/6/99), 748 So.2d 484, 491, writ denied, 00-544 (La. 11/13/00), 773 So.2d 156.
To prove an allegation of ineffectiveness, Defendant must specifically show prejudice. Blake, 872 So.2d 602 (citing State v. Reed, 00-1537 (La.App. 3 Cir. 3/6/02), 809 So.2d 1261, writ denied, 02-1313 (La. 4/25/03), 842 So.2d 391). “Whether or not a defendant
5 received ineffective assistance of counsel is a two-part inquiry. First, we must determine whether the trial court would have reduced the Defendant’s sentences upon the filing of a ‘Motion to Reconsider Sentence.’ Second, we must determine whether the sentences were excessive.” Id. at 609.
Id. at 1110-11.
Would the Trial Court Have Reduced the Defendant’s Sentences
In this portion of the ineffective assistance of counsel analysis, the question
is whether the trial court would have reduced the defendant’s sentences had a
motion to reconsider sentence been filed. While excessiveness is not the ultimate
issue in this part of the analysis, a review of the factors considered by the trial
judge is necessary to determine whether a motion to reconsider sentence would
have persuaded the trial judge to re-weigh those factors and change his mind as to
the appropriateness of the sentences imposed. As will be discussed in the
excessiveness review below, the trial court considered a PSI report prepared in the
defendant’s case, considered evidence presented by both the state and the defense,
and considered arguments of counsel. The trial court also gave extensive reasons
for the sentences imposed, including the need to protect innocent children.
Additionally, the trial court considered the fact that the initial call to police was for
an act of violence committed by the defendant, followed by an act of violence
toward the officers who responded to the call. The trial court also noted that at the
time of the offenses, the defendant was on parole for a previous offense. Because
he was afraid of being rearrested, the defendant ran when the police tried to
question him regarding the domestic violence call. The trial court also considered
as mitigating factors the defendant’s remorse, the defendant’s own family
responsibilities, and the defendant’s childhood history. Finally, when the trial
court imposed the sentences and ordered them to run consecutively to one another,
6 the trial court stated that the total sentence was forty years. Thus, the trial court
obviously intended the total sentence it imposed.
Although appellate counsel argues that the record does not support the
imposition of consecutive sentences, appellate counsel does not argue that the trial
court was unaware of a fact that may have convinced it to impose concurrent rather
than consecutive sentences. Considering the trial court’s extensive reasons for the
sentences imposed as well as the trial court’s express articulation as to the total
number of years the defendant is to serve, we find the defendant has not shown a
reasonable probability that a motion to reconsider sentence would have convinced
the trial court to impose concurrent sentences.
Excessiveness of Sentence
Appellate counsel argues that the imposition of the sentences to run
consecutively to one another renders the sentences excessive, “especially since
each sentence must be served without benefits[,]” and since the total sentence is
the maximum sentence the defendant could have received for the most serious
offense to which he pled (second degree kidnapping). Referencing La.Code
Crim.P. art. 883, appellate counsel notes that the offenses at issue arose out of a
single course of conduct that lasted only a few minutes. Appellate counsel also
notes that the defendant was twenty-nine years old at the time of his plea and that
the defendant’s prior offense was not a crime of violence. As for the specific facts
relating to the offenses at issue, appellate counsel notes that the defendant did not
take the truck by force, did not use a weapon to facilitate the crime, and did not
physically force the children to get into the truck. Additionally, appellate counsel
asserts that the defendant’s offenses involved a one-time incident that involved
several victims.
7 In further support of the excessiveness claim, appellate counsel asserts that
the defendant has shown remorse for his actions, has apologized to the victims, has
children of his own, and has completed several self-improvement classes while
incarcerated. Appellate counsel further contends that the trial court failed to
articulate sufficient reasons for the imposition of consecutive sentences. Finally,
appellate counsel contends that the defendant did not receive a great benefit in
return for his plea. Appellate counsel asserts that the defendant pled no contest to
the most serious offenses and asserts that the dismissed charges carried
significantly less sentencing possibilities.
In its reply brief, the state asserts that the sentences imposed are not
excessive for several reasons. First, the state asserts that the total sentence
imposed (forty years) is far less than the 140 year total sentence the defendant
could have received had the trial judge imposed the maximum sentence on each
count. Second, the state contends that the defendant is likely to commit another
crime considering his attempt to carjack a second vehicle immediately after he
wrecked the first vehicle. Finally, the state argues that the fact that all three
children suffered injuries in the defendant’s quest to escape arrest justifies a greater
sentence than that imposed by the trial judge.
The law is well settled concerning the standard to be used in reviewing
excessive sentence claims:
La. Const. art. I, § 20 guarantees that, “[n]o law shall subject any person to cruel or unusual punishment.” To constitute an excessive sentence, the reviewing court must find the penalty so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no measurable contribution to acceptable penal goals and is, therefore, nothing more than a needless imposition of pain and suffering. State v. Campbell, 404 So.2d 1205 (La.1981). The trial court has
8 wide discretion in the imposition of sentence within the statutory limits and such sentence shall not be set aside as excessive absent a manifest abuse of discretion. State v. Etienne, 99-192 (La.App. 3 Cir. 10/13/99); 746 So.2d 124, writ denied, 00-0165 (La.6/30/00); 765 So.2d 1067. The relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. State v. Cook, 95-2784 (La.5/31/96); 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).
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.
[E]ven when a sentence falls within the statutory sentencing range, it still may be unconstitutionally excessive, and in determining whether a sentence shocks the sense of justice or makes no meaningful contribution to acceptable penal goals, this court has suggested that several factors may be considered:
[An] appellate court may consider several factors including the nature of the offense, the circumstances of the offender, the legislative purpose behind the punishment and a comparison of the sentences imposed for similar crimes. State v. Smith, 99-0606 (La.7/6/00); 766 So.2d 501. 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). Additionally, it is within the purview of the trial court to particularize the sentence because the trial judge “remains in the best position to assess the aggravating and mitigating circumstances presented by each case.” State v. Cook, 95-2784 (La.5/31/96); 674 So.2d 957, 958.
State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ denied, 03-562 (La.5/30/03), 845 So.2d 1061.
State v. Decuir, 10-1112, pp. 11-13 (La.App. 3 Cir. 4/6/11), 61 So.3d 782, 790-91.
As for the imposition of consecutive sentences, La.Code Crim.P. art. 883
provides as follows:
If the defendant is convicted of two or more offenses based on the same act or transaction, or constituting parts of a common scheme
9 or plan, the terms of imprisonment shall be served concurrently unless the court expressly directs that some or all be served consecutively. Other sentences of imprisonment shall be served consecutively unless the court expressly directs that some or all of them be served concurrently. In the case of the concurrent sentence, the judge shall specify, and the court minutes shall reflect, the date from which the sentences are to run concurrently.
As asserted by appellate counsel, this court has noted that the supreme court
favors concurrent sentences. State v. Wallace, 11-1258 (La.App. 3 Cir. 5/30/12),
92 So.3d 592, writs denied, 12-1861, 12-1865 (La. 3/8/13), 109 So.3d 355. This
court has also stated that a trial court must articulate particular justification for the
imposition of consecutive sentences, justification beyond the standard guidelines
set forth in La.Code Crim.P. art. 894.1. State v. Hurst, 10-1204 (La.App. 3 Cir.
4/13/11), 62 So.3d 327, writ denied, 11-975 (La. 10/21/11), 73 So.3d 383 (citing
State v. Dempsey, 02-1867 (La.App. 4 Cir. 4/2/03), 844 So.2d 1037, writ denied,
03-1917 (La. 6/25/04), 876 So.2d 823). The following factors, this court stated,
may be considered:
[T]he 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 contributes an unusual risk of danger to the public, the defendant’s apparent disregard for the property of others, the potential for the defendant’s rehabilitation, and whether the defendant has received a benefit from a plea bargain.
State v. Thibodeaux, 05-1187, pp. 8-9 (La.App. 3 Cir. 3/1/06), 924 So.2d 1205,
1211, writ denied, 06-700 (La. 10/6/06), 938 So.2d 65 (citations omitted).
In the present case, the trial court noted that the PSI report included a
narrative of the defendant’s past offenses – conspiracy to distribute cocaine and
several misdemeanors. The trial court also noted that the defendant’s parole was
revoked because of the current offenses. The crimes committed by the defendant
are classified as crimes of violence, the defendant is classified as a second felony
10 offender, and the offenses were committed while the defendant was on “good time
parole.” The trial court further noted that throughout his criminal history the
defendant had also been placed, at various times, on both misdemeanor and felony
probation.
After hearing evidence and arguments presented by both the state and the
defense, the trial court stated the following:
THE COURT:
I’ll go ahead and note for the record that, also on the defense side, I have been given letters requesting leniency from Betty Francis, from Margaret Coleman, from Joyce Lewis, and from Pastor Guillory with the Miracle Temple Full Gospel Church in Rayne, and we’ll place these of record.
I don’t suppose that the state and the defense have anything to offer the Court in the way of some sort of stipulated sentence?
MR. AYO [Assistant District Attorney]:
No, Your Honor.
MS. MARTIN [Defense Counsel]:
Which is why I always say that sentencing is a very lonely job. When the Court is placed in the position of having to decide the penalty for folks I take this very seriously. That’s why I’ve permitted without restriction the evidence that I took in today, studying the presentence investigation report.
I did not have the benefit of hearing a trial, either in front of a jury or before the bench because it was a plea, so it’s difficult to piece everything together. It’s difficult to determine what is or is not absolutely correct and accurate, having not had the benefit of seeing evidence and witnesses at trial. I do, however, have a plea of no contest which means - - ....
No contest means that the defendant - - and he was well - - it was well explained to him that what it meant was that he did not want
11 to admit his guilt but did not want to go to trial. I can clearly understand why he would not want to go to trial in exchange for what the state offered him. And although there was no plea agreement as to how much jail time he would serve or what his punishment would be, I will note that what he was looking at going to trial for the week that he pled was intentionally taking a motor vehicle belonging to another person in the presence of passengers by the use of force or intimidation, which is carjacking, forcibly seized and carried three children from one place to another, or imprisoned them where the victims were physically injured. Those are the second degree kidnapping charges.
Those are the charges that he’s going to plead to today. When he did plead, there was an attempted carjacking charge, which I would imagine would be the second vehicle, was dismissed; charges of domestic abuse battery by strangulation were dismissed; false imprisonment with a dangerous weapon was dismissed; aggravated assault was dismissed, resisting an officer with force was dismissed; battery upon a police officer was dismissed, in exchange for the plea agreement.
So he was allowed to plead to a small number of the charges that he was actually facing trial for. Had he gone to trial and been convicted of all of these charges, we would be looking at a much greater possibility of punishment.
I’ve heard both sides here. You know, the main purpose of the law has been and always will be the protection, the safety of the public. That’s why we’re here, its to protect the public safety. The public includes a lot of people. In this case it includes children. And if the law - - if the purpose of the law is to protect the public, then I can double underline that is purpose is to protect those who cannot defend themselves, who are innocent, and who are young. I’m going to do that today.
....
First of all, this whole incident started with a violent act. There was a dispatch, a call to a domestic disturbance, and Mr. - -
It began with a call dispatching the police to a domestic violence, where the victim reported and continues to report being threatened and assaulted with a weapon, a knife. The police arrived knowing this situation and attempted to place the defendant either in custody or to question him. I’m not sure exactly what. But because he was already on parole for a previous crime, and as he himself says in the report, knew that when the police said, come here, it meant he
12 was going to be arrested again, he fought the policeman, a single police officer, he fought him, broke some equipment. Another act of violence.
Then he ran, and he ran to the Valero. And for whatever reason - - he postulates a lot of different things about meeting someone there or whatever - - in order to continue his escape from the police, jumped into a vehicle.
I don’t believe for a second, not for a second, that he didn’t know there were children in that car. He knew it. He took off, again, endangering those children, driving a vehicle with officers in pursuit while it was raining and dangerous situations. He wrecked it into a tree, injuring the children. He injured himself as well, but nobody caused his injuries except himself. Then he left that vehicle after claiming that he was so concerned about the children and tried to enter another vehicle with children in it. That’s when he was apprehended.
While I believe very little of what the defendant says to me, I believe everything that this young man who was one of the victims said to me. I believe that it was probably as bad as he has recited, and his words probably cannot express how bad it really was. The idea of someone, a stranger, jumping into a vehicle while the driver of that vehicle - - the adult that you were with is in the store, has got to be one [sic] the things that makes - - is the stuff of nightmares for children. This nightmare was a reality.
So there were numerous instances of violent behavior indicating to me a total disregard for the law. Someone who is already on parole for another crime does all of these things, in addition, and then tries to tell the Court that it was all because he was afraid and he didn’t know and now he’s remorseful.
The Court appreciates the fact that he’s remorseful, that he’s sorry. Some are not, so it’s to his benefit that he’s sorry. The Court will consider as a mitigating factor his apology to this young man and to the other children. I will take into consideration his social life, his - - the testimony that his mother gave about his having problems as a child. But, you know, the problems that were discussed or described by the mother are not uncommon. A lot of people have these problems, but they don’t commit violent offenses against the public and against children.
There is a range of punishment for each of these crimes, which means the Judge has to assess the particular circumstances of each case. There are no mandatory sentences here. There is some
13 mandatory time without probation - - I mean, benefit of probation, parole, or suspension of sentence.
But, basically, for carjacking, we’re looking at imprisonment for not less than two years, nor more than 20 years, without benefit of parole, probation, or suspension of sentence. And for second degree kidnapping, we’re looking at imprisonment at hard labor for not less than five, nor more than 40 years. At least two of the sentence imposed, two years, shall be without benefit of parole, probation, or suspension of sentence.
The - - this court views the maximum and minimum sentences as two extremes. The minimum sentence is designed for those instances of this crime that are seen to be the least egregious, the least offensive, the least serious - - I can’t think of another word - - of these crimes. These crimes are in and of themselves serious crimes, judging from the penalties.
The maximum sentence in this Court’s opinion is reserved for the absolute most egregious or most serious, most offensive, most uncalled-for behavior in committing these crimes. I’ve talked about the aggravating circumstances, which is the series of violent acts, and I’ve talked about the mitigating circumstances, for - - because of the evidence that Mr. Mouton has provided.
As stated previously, the trial court sentenced the defendant to ten years
without benefits on each count, to run consecutively. Thus, although the defendant
received a low to mid-range sentence on each count, the sentences were ordered to
run consecutively totaling a sentence of forty years without benefit of probation,
parole, or suspension of sentence. The defendant complains that the
consecutiveness of the sentences renders them excessive.
The above excerpt shows that the trial court considered all of the factors
necessary to justify the imposition of consecutive sentences. The trial court
considered the defendant’s previous history, the gravity of the offense, the harm
done to the victims, the unusual risk of danger the defendant poses to the public,
the defendant’s disregard for the property of others, and the benefit the defendant
14 received from a plea bargain. The trial court adequately expressed its reasons for
imposing consecutive sentences.
Finally, we note the supreme court’s repeated admonition “that sentence
review under the Louisiana constitution does not provide an appellate court with a
vehicle for substituting its judgment for that of a trial judge as to what punishment
is more appropriate in a given case.” State v. Savoy, 11-1174, p. 5 (La. 7/2/12), 93
So.3d 1279, 1283 (citing State v. Walker, 00-3200 (La. 10/12/01), 799 So.2d 461;
State v. Cook, 95-2784 (La. 5/31/96), 674 So.2d 957, cert. denied, 519 U.S. 1043,
117 S.Ct. 615 (1996); and State v. Humphrey, 445 So.2d 1155 (La.1984)).
Considering the reasons given by the trial court at sentencing and the supreme
court’s admonition, we find the sentences imposed in the present case are not
excessive.
Accordingly, we find the defendant has failed to prove his counsel was
ineffective for failing to file a motion to reconsider sentence and failed to prove
that his sentences are excessive. Both Assignments of Error Nos. 1 and 2 lack
merit.
The defendant’s convictions and sentences are affirmed. The trial court is
ordered to correct the commitment order to accurately reflect the sentences
imposed for second degree kidnapping.