State of Louisiana v. Torino Adarryl Cormier

Opinion

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

13-1141

STATE OF LOUISIANA VERSUS TORINO ADARRYL CORMIER

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APPEAL FROM THE

FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF CALCASIEU, NO. 10184-12 HONORABLE CLAYTON DAVIS, DISTRICT JUDGE

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JOHN D. SAUNDERS

JUDGE

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Court composed of John D. Saunders, Marc T. Amy, and J. David Painter, Judges.

AFFIRMED.

John Foster DeRosier 14th JDC District Attorney P. O. Box 3206 Lake Charles, LA 70602-3206 (337) 437-3400 COUNSEL FOR PLAINTIFF APPELLEE:

State of Louisiana

Edward Kelly Bauman La Appellate Project P. O. Box 1641 Lake Charles, LA 70602-1641 (337) 491-0570 COUNSEL FOR DEFENDANT APPELLANT:

Torino Adarryl Cormier

Karen C. McLellan 14th JDC, Assistant District Attorney P. O. Box 3206 Lake Charles, LA 70602 (337) 437-3400 COUNSEL FOR PLAINTIFF APPELLEE:

State of Louisiana

SAUNDERS, Judge.

Defendant, Torino Cormier, was indicted for one count of possession of a controlled dangerous substance, Schedule II, a violation of La.R.S. 40:967(C), under lower court docket number 10184-12. On December 17, 2012, Defendant pled guilty pursuant to a plea agreement. The trial court ordered a presentence investigation report to be completed. He was sentenced on March 13, 2013, to five years at hard labor.1 Defendant filed a Motion to Reconsider Sentence on March 19, 2013. A hearing was held on April 19, 2013, and following arguments, the motion was denied.

Defendant has perfected a timely appeal, wherein he alleges the sentences imposed were excessive under the circumstances. However, for the following reasons, we find there is no merit to this assignment of error.

FACTS

Whereas Defendant pled guilty, there were no facts given regarding the offense other than he was found to be in possession of cocaine on February 15, 2012.

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, we find there are no errors patent.

ASSIGNMENT OF ERROR

1 Defendant was also sentenced at the same time on a conviction for indecent behavior with a juvenile. Defendant was sentenced to seven years at hard labor on the conviction for indecent behavior, and the sentences were ordered to be served consecutively. An appeal has been filed concerning the seven year sentence under this court‟s docket number 13-1140.

Defendant argues that the sentences are excessive. Defendant was also sentenced to the maximum sentence of seven years on the conviction of indecent behavior with a juvenile on the same date, to be served consecutively with the maximum sentence of five years. It is not clear from Defendant‟s brief whether he is arguing that the maximum sentence imposed on the conviction for possession of cocaine is excessive is excessive by itself, the maximum sentence imposed on the conviction for indecent behavior with a juvenile is excessive, or that the two sentences together are excessive. In his Motion to Reconsider Sentence, while mentioning both sentences, he alleged only that “the sentence is unconstitutionally excessive.”

Pursuant to La.Code Crim.P. art. 881.1(E), we find that review of the defendant‟s excessiveness claim is precluded. Article 88.1(E) states:

Failure 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.

Additionally, in State v. Bamburg, 00-675 (La.App. 3 Cir. 11/2/00), 772 So.2d 356, the defendant failed to object to the sentence imposed at the sentencing hearing and did not timely file a motion to reconsider sentence. Thus, 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. Therefore, the sentences will be reviewed under a bare excessiveness claim. See State v. Clark, 06-508 (La.App. 3 Cir. 9/27/06), 940 So.2d 799, writ denied, 06-2857 (La. 9/21/07), 964 So.2d 324.

The statute pertaining to possession of controlled dangerous substances, in pertinent part, provides that “[a]ny person who violates this Subsection as to any

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other controlled dangerous substance shall be imprisoned with or without hard labor for not more than five years and, in addition, may be sentenced to pay a fine of not more than five thousand dollars.” La.R.S. 40:967(C)(2). The statute regarding indecent behavior with a juvenile, in pertinent part, provides that “[w]hoever commits the crime of indecent behavior with juveniles shall be fined not more than five thousand dollars, or imprisoned with or without hard labor for not more than seven years, or both[.]” La.R.S. 14:81(H)(1). Defendant received the maximum terms of imprisonment in both cases.

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 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. Salameh, 09-1422, p. 4 (La.App. 3 Cir. 5/5/10), 38 So.3d 568, 570 (quoting 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). Furthermore, the appellate court shall not set aside a sentence for excessiveness if the record supports the sentence imposed. “In reviewing a trial court‟s sentencing discretion, three factors are considered: 1) the nature of the crime; 2) the nature and background of the offender; and 3) the sentence imposed for similar crimes by the

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same court and other courts.” State v. Pearson, 07-332, p. 15-16 (La.App. 5 Cir. 12/27/07), 975 So.2d 646, 656. Finally, “where a defendant has pled guilty to an offense which does not adequately describe his conduct or has received a significant reduction in potential exposure to confinement through a plea bargain, the trial court has great discretion in imposing even the maximum sentence possible for the pled offense.” State v. Falcon, 44,829, p. 4 (La.App. 2 Cir. 10/28/09), 26 So.3d 172, 175.

In brief, Defendant argues he is entitled to lesser sentences because at the sentencing hearing, his wife “addressed the court and asked for leniency. She also read a letter from the victim in which the victim forgave Torino and wished that they could all be „one big happy family again.‟” Furthermore, Defendant took responsibility for his actions as “evidenced by his pleas of guilty.”

By way of comparison to similarly situated defendants, in State v. Williams, 07-490 (La.App. 3 Cir. 10/31/07), 969 So.2d 744, this court did not find the maximum sentence of five years imposed on the defendant excessive considering that he had prior drug convictions. See also State v. Allen, 09-1281 (La.App. 3 Cir. 5/5/10), 36 So.3d 1091, wherein the defendant was a fourth felony offender and received the maximum of five years for possession of cocaine. In the current case, Defendant‟s arrest record also includes several drug-related charges.

Furthermore, as noted above, Defendant was originally charged with three counts of aggravated incest, an offense which carries a range of imprisonment from five to twenty years with or without hard labor on each count. La.R.S. 14:78.1(D)(1). Because the victim alleged three separate occurrences, Defendant could have received consecutive sentences and was facing potentially fifteen to sixty years imprisonment. The trial court further noted at the sentencing hearing

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that it had reviewed the presentence investigation report and Defendant had a long history of offenses involving victims: resisting arrest, simple robbery, several domestic abuse battery charges, simple kidnapping, simple battery, and a conviction for cruelty to a juvenile. He also had charges for driving while intoxicated, no driver‟s license, and switching license plates.

As for the sentence imposed on conviction for indecent behavior with a juvenile, in State v. Albarado, 03-2504 (La.App. 1 Cir. 6/25/04), 878 So.2d 849, writ denied, 04-2231 (La. 1/28/05), 893 So.2d 70, the first circuit found that the trial court acted within its discretion when it imposed a maximum sentence of seven years for indecent behavior with a juvenile. The first circuit noted that the defendant was the victim‟s teacher and exploited his position over the victim. Furthermore, he received a significant benefit when he pled guilty to the reduced charge. In State v. Haltom, 45,460 (La.App. 2 Cir. 8/11/10), 46 So.3d 708, despite that the defendant had no criminal history, the second circuit did not find the maximum sentence of seven years for indecent behavior with a juvenile excessive when the defendant had arranged to meet a fourteen-year-old girl via the internet and had child pornography on the computer.

In the current case, besides having a history of violence offenses, Defendant was the victim‟s step-father and in an authoritative position. When he should have been protecting her, he was abusing her. In this case, the offense to which Defendant plead guilty did not adequately reflect the seriousness of the offense committed. We cannot say the trial court abused its vast discretion when it imposed the maximum sentence in this case.

Together the two sentences total twelve years imprisonment. We find that it was proper for the trial court to order the sentences to be served consecutively as

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the offenses were not “based on the same act or transaction, or constituting parts of a common scheme or plan[.]” La.Code Crim.P. art. 883. Therefore, the trial court was not obligated to order the sentences to be served concurrently, nor was the trial court obligated to state for the record reasons it ordered the sentences to be served consecutively.

We find Defendant has failed to show that the trial court abused its vast discretion when it imposed the maximum sentences for the conviction of possession of cocaine and for the conviction of indecent behavior with a juvenile, and ordered the sentences to be served consecutively for a term of twelve years imprisonment.

CONCLUSION

We find that the maximum sentence imposed on the conviction for possession of cocaine is not excessive, nor is the maximum sentence imposed on the conviction for indecent behavior with a juvenile excessive, and finally, the two consecutive sentences for a total of twelve years are not constitutionally excessive under the circumstances of the case.

AFFIRMED.

This opinion is NOT DESIGNATED FOR PUBLICATION.

Uniform Rules-Courts of Appeal, Rule 2-16.3.