State v. Berthelot

449 So. 2d 692, 1984 La. App. LEXIS 8659
CourtLouisiana Court of Appeal
DecidedApril 9, 1984
DocketNo. 83-KA-733
StatusPublished
Cited by3 cases

This text of 449 So. 2d 692 (State v. Berthelot) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Berthelot, 449 So. 2d 692, 1984 La. App. LEXIS 8659 (La. Ct. App. 1984).

Opinion

BOWES, Judge.

Defendant, Leroy J. Berthelot, was charged by a Bill of Indictment with one count of violation of LSA-R.S. 14:42, aggravated rape and one count of violation of LSA-R.S. 14:27, 14:30.1, attempted second degree murder. After trial by jury, he was convicted as charged and was subsequently sentenced to consecutive sentences of life imprisonment without benefit of probation, parole or suspension of sentence on the first count and to fifty years at hard labor on the second count. From those convictions and sentences, defendant appealed, alleging twelve assignments of error.

Defendant failed to brief eleven of the assignments of error and we, therefore, deem those alleged errors as abandoned. See Rule 2-12.4, Uniform Rules of the Courts of Appeal, State v. Triplett, 434 So.2d 1270 (La.App. 1st Cir.1983) and State v. Dirden, 430 So.2d 798 (La.App. 5th Cir. 1983).

ASSIGNMENT OF ERROR NO. 10

The Trial Court committed reversible error in sentencing the defendant to a term of life-imprisonment without benefit of probation, jparole, or suspension of sentence and a term of 50 years at hard labor to run consecutively, which sentence is excessive.

Relating to Assignment of Error No. 10, the defendant designates the objection of counsel and the ruling of the trial court, T.T. pp. 1-9 of the hearing held on June 24, 1983.

ARGUMENT

The defense submits that the imposition of consecutive sentences for offenses based on the same act or transaction was contrary to law and jurisprudence. The defense cites La.C.Cr.P. art. 883 which states in pertinent part tht “[i]f the defendant is convicted of two or more offenses based on the same act or transaction, or constituting parts of a common scheme or plan, the terms of imprisonment shall be served concurrently unless the court expressly directs that same or all be served consecutively.” Because of the imposition of consecutive sentences violates the constitutional prohibition against excessive sentences, (La. Const. Art. 1, Sec. 20), the defense respectfully requests that the sentence should be vacated and remanded for a hearing to determine if the consecutive sentence is appropriate.

[694]*694Two issues are presented by the defense. The first is whether the fact that the defendant has no prior adult criminal record should have a bearing on the imposition of consecutive sentences and the second is whether this single violent act actually constitutes a danger to society.

In arguing the first issue presented, the defense cited State v. Underwood, 353 So.2d 1013 (La. 1977), as authority for the principle that concurrent, rather than consecutive, sentences are the usual rule, particularly if the defendant has no prior criminal record and if there was no showing that the public safety demands a longer sentence. That case dealt with a defendant whose personal background and offense is clearly distinguishable from the case before us. Underwood, a first offender, was a businessman with a settled family and a lifelong resident of that parish. He had been convicted of selling marijuana on three separate occasions over a two-month period. His sentences totalled twenty-five years when served consecutively. The Supreme Court reasoned that such a cumulative sentence was excessive, absent some explanation which was not found in the record.

In the instant case, the defendant engaged in a particularly violent and heinous crime. In addition to being raped, the victim suffered a fractured skull, three lacerations to the scalp and forehead, a broken right arm, a crushed finger and another broken bone on her left hand, and the left side of her jaw was very swollen and sore.

Although this was the defendant’s only conviction as a major, similar aberrant behavior was the basis of a previous juvenile conviction, which involved sex with and the subsequent killing of horses. It is obvious to us that the trial court was unwilling to allow any further progression of the defendant’s sexual perversion.

In addressing the second issue presented, defense cited State v. Cox, 369 So.2d 118 (La.1979), as authority for the premise that a single violent act does not, in itself, justify characterizing the defendant as a danger to society, especially when no evidence that such behavior would reoccur has been presented.

Cox is analogous to Underwood in that it, too, can easily be distinguished from the case before this court. The single violent act perpetrated by the defendant Cox was an unplanned escalation of a fight over money owed in a pool-hall controversy. As the defendant was a first offender, with no record of ever having lost his self-control, the court found that a remand for a hearing on the imposition of consecutive sentences was appropriate.

In the instant case, the defendant’s behavior exhibited a certain degree of planning, as almost seven hours elapsed between the time he had seen the victim enter her apartment (7:00 p.m.) and the time he climbed into her window (1:30 a.m.). The fact that Berthelot came armed with a sawed-off pool cue and started beating the victim as she lay sleeping elevates the enormity of the violence to a level which cannot be compared to an altercation which intensified in a matter of minutes.

In State v. Carter, 412 So.2d 540 (La. 1982), the Louisiana Supreme Court affirmed the imposition of a life sentence for a conviction of aggravated rape and a second sentence of fifty years for attempted first degree murder which was to be served consecutively with the first. Because of the particularly heinous nature of the crimes and the fact that the defendant had been previously convicted of felony offenses, the court found no abuse of the wide discretion vested in the trial court.

Recently, in State v. Lewis, 416 So.2d 921 (La.1982), consecutive sentences were vacated and the case remanded for failure to adequately comply with Article 894.1. The Supreme Court stated that “[wjhile not controlling the discretion of the court, these [mitigating] circumstances must be accorded weight in its determination of the sentence. Moreover, the imposition of consecutive sentences for crimes arising from a single course of conduct requires particular justification. State v. Jacobs, 371 So.2d 727 (La.1979); State v. Cox, supra.”

[695]*695On the other hand, consecutive sentences were affirmed in State v. Murdock, 416 So.2d 103, 105 (La.1982) because the trial court’s lengthy dissertation on the facts of the case and his application of the guidelines in La.C.Cr.P. art. 894.1 in his sentencing choice. The Supreme Court noted that the purpose of the article “is to assist the court in the exercise of its broad discretion regarding the imposition of a fair and proper sentence in a particular ease [citation omitted].” Later in the opinion, it was noted that “it is our function, as a reviewing court, to not merely substitute our judgment for that of the trial judge, but'to determine whether that court abused its broad discretion in sentence imposition.” Supra at 106.

In the instant case, the trial judge made a direct and conscious effort to apply the guidelines of Article 894.1 to the circumstances of the offense and the background of the defendant. Judge Burns, in sentencing the defendant, stated:

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Bluebook (online)
449 So. 2d 692, 1984 La. App. LEXIS 8659, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-berthelot-lactapp-1984.