State v. Cochran

734 So. 2d 1247, 98 La.App. 3 Cir. 786, 1999 La. App. LEXIS 1216, 1999 WL 253173
CourtLouisiana Court of Appeal
DecidedApril 28, 1999
DocketNo. CR98-786
StatusPublished
Cited by1 cases

This text of 734 So. 2d 1247 (State v. Cochran) 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. Cochran, 734 So. 2d 1247, 98 La.App. 3 Cir. 786, 1999 La. App. LEXIS 1216, 1999 WL 253173 (La. Ct. App. 1999).

Opinion

1SAUNDERS, Judge.

On October 29, 1997, Defendant tendered a plea of guilty to aggravated oral sexual battery, a violation of La.R.S. 14:43.4. On March 31, 1998, Defendant was sentenced to serve ten years imprisonment in the custody of the Louisiana Department of Corrections, without the benefit of parole, probation or suspension of sentence. Defendant now appeals asserting one assignment of error.

FACTS

Between January 25, 1997, and March 12, 1997, Defendant had his seven-year-old stepdaughter perform oral sex on him, without the lawful consent of the victim, a juvenile under the age of twelve. On September 11, 1997, Defendant was charged by bill of indictment with one count of attempted aggravated rape and one count of aggravated oral sexual battery, in violation of La.R.S. 14:42 and 14:43.4, respectively. On October 27, 1997, Defendant waived the reading of the bill of | ^indictment, tendered a plea of not guilty and requested a jury trial. However, at the request of newly enrolled counsel, the court vacated the prior arraignment and the public defender’s office was relieved of their appointment. On October 29, 1997, Defendant waived the reading of the bill of indictment and tendered a plea of guilty to the charge of aggravated oral sexual battery. The court explained the form entitled “Waiver of Constitutional Rights & Plea of Guilty,” which had been previously discussed between Defendant and counsel and signed by both. Defendant stated he understood his rights and waived them. The State presented the facts of the case to the court and Defendant concurred. The court accepted Defendant’s guilty plea and then discussed and questioned Defendant regarding the forms entitled “Notification of Sex Offender” & “Registration of Sex Offender.” The court ordered a pre-sentence investigation report and denied Defendant’s request for bond.

On March 31, 1998, Defendant was sentenced to serve ten years imprisonment in the custody of the Louisiana Department of Corrections, without the benefit of parole, probation or suspension of sentence. The court also ordered Defendant to submit blood and saliva samples, to be taken by either the Pathology Lab or some other qualified physician, with the results to be submitted to the Louisiana Bureau of Criminal Identification and Information for Genetic Markers and Secretor status. The trial judge further ordered Defendant be HIV tested, and if positive, that the results be reported to the Department of Public Safety and the results of any testing, whether, positive or negative be reported to the victim’s parents. The court also ordered that Dr. Aretta Rathmell and Dr. James Anderson be appointed to a Sexual Predator Commission to be set up under the provisions of La.R.S. 15:541(12), for the determination of whether Defendant is a sexually violent predator under the provisions of La.R.S. 15:541(10), with the results reported to the court. The court further ordered Defendant not to visit, bother, contact, or harass the victim or her | afamily in any manner. Defendant filed a motion to reconsider sentence on April 7, 1998, as well as a motion for appeal and [1249]*1249designation of record. Additionally, on June 19, 1998, Defendant filed a motion to quash the Sexual Predator Commission, but he later filed a motion to dismiss this motion on August 21,1998. On September 25, 1998, the court held a hearing on the Sexual Predator Commission findings, and the court found that Defendant was not a sexual predator.

On November 6, 1998, the court held a hearing on Defendant’s motion to reconsider sentence, which was denied and Defendant was additionally ordered to attend any group therapy available to him while incarcerated.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. There is one error patent.

The trial court did not personally inform Defendant of the nature or penalty range of the charge to which he was pleading. La.Code Crim.P. art. 556.1(A)(1), which became effective August 15, 1997, provides as follows:

A. In any criminal case, the court shall not accept a plea of guilty or nolo contendere, without first addressing Defendant personally in open court and informing him of, and determining that he understands, all of the following:
(1) The nature of the charge to which the plea was offered, the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law.

Although the trial court asked Defendant if he understood the maximum and minimum sentences provided by law and Defendant responded that he did, the trial court did not personally inform Defendant of the penalty range. Thus, the trial court did not satisfy the requirements of article 556.1(A)(1). However, since this requirement is a statutory requirement rather than a constitutional requirement (as is the requirement that the trial court inform Defendant of the three Boykin rights), and pDefendant does not allege any misunderstanding as to the nature or penalty range of the charges to which he pled, this court finds the error harmless. See State v. Longnon, 98-551 (La.App. 3 Cir. 10/28/98); 720 So.2d 825. But see State v. Chisley, 98-169 (La.App. 5 Cir. 7/28/98); 718 So.2d 537; State v. Reynolds, 98-170 (La.App. 5 Cir. 7/28/98); 716 So.2d 485; State v. Thomas, 30,681 (La.App. 2 Cir. 5/13/98); 714 So.2d 159; and State v. Hill, 30,552 (La.App. 2 Cir. 5/13/98); 714 So.2d 814.

ASSIGNMENT OF ERROR

By-this assignment of error Defendant . contends that his sentence of ten years without probation, parole, or suspension of sentence out of a maximum sentencing range of twenty years is excessive and violates Article 1, Section 20 of the Louisiana Constitution.

Defendant was sentenced on March 31, 1998 to serve ten years imprisonment in the custody of the Louisiana Department of Corrections, without benefit of parole, probation or suspension of sentence. Defendant’s motion to reconsider sentence was denied on November 6, 1998. The penalty range for the crime of aggravated oral sexual battery is provided by La.R.S. 14:43.4(C), which states as follows:

Whoever commits the crime of aggravated' oral sexual battery shall be punished by imprisonment, with or without hard labor, without benefit of parole, probation, or suspension of sentence, for not more than twenty years.

Defendant contends that although his sentence is within the statutory maximum of twenty years, it is excessive as he has no prior convictions, an excellent work history, he cooperated fully with the police, apologized, asked for forgiveness from the victim and her family, and has shown a motivation to seek treatment. Additionally, Defendant contends, based upon the findings of two doctors who were appointed to a Sexual Predator Commission, he would benefit from a treatment program. [1250]*1250| ¡^However, Defendantargues that he would be unlikely to receive this therapy while incarcerated. One of the doctors, Dr. Rathmell, opined that a psychiatrist would be appropriate to treat him with one on one therapy and she stated that if he is in prison there is a possibility that he would be eligible for group psychotherapy that is done through one of the medical schools, but it is not consistent and therefore, in her opinion, Defendant has no assurance of getting treatment while incarcerated.

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Bluebook (online)
734 So. 2d 1247, 98 La.App. 3 Cir. 786, 1999 La. App. LEXIS 1216, 1999 WL 253173, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-cochran-lactapp-1999.