State v. Stewart

109 So. 3d 915, 2013 WL 163604, 2013 La. App. LEXIS 43
CourtLouisiana Court of Appeal
DecidedJanuary 16, 2013
DocketNo. 47,679-KA
StatusPublished
Cited by2 cases

This text of 109 So. 3d 915 (State v. Stewart) 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. Stewart, 109 So. 3d 915, 2013 WL 163604, 2013 La. App. LEXIS 43 (La. Ct. App. 2013).

Opinion

LOLLEY, J.

| ,This criminal appeal arises from the 26th Judicial District Court, Parish of Bossier, State of Louisiana. The defendant, Victor Everatt Stewart, pled guilty to two counts of attempted forcible rape, violations of La. R.S. 14:27 and 14:42.1. He was subsequently sentenced to 20 years at hard labor on each count, with the sentences to be served consecutively. Stewart now appeals, and for the following reasons, we affirm his convictions and sentences.

Facts

Stewart was charged by bill of information with two counts of aggravated rape. Specifically, the bill charged that between June 1 and July 31, 2010, Stewart committed aggravated rape upon S.L., a nine-year old, and C.H., a ten-year old, in violation of La. R.S. 14:42. Stewart initially pled not guilty as charged.

In October 2011, Stewart appeared before the trial court with his attorney from the Public Defender Office for Bossier Parish, at which time Stewart withdrew his original plea of not guilty on both counts and pled guilty to two counts of the amended charge of attempted forcible rape. During a thorough Boykin examination, Stewart was specifically asked whether anyone had made any promises to persuade him to plead guilty or whether anyone had coerced him into pleading guilty. Stewart answered both questions with an unqualified “no.” In reciting the facts, the State noted that at trial it would present evidence that during July 2010, Stewart attempted to forcibly rape S.L. and C.H. by using the threat of force to coerce the victims to have oral and/or anal sex with him. Asked whether [2that recitation of the facts was correct, Stewart answered in the affirmative. With that, Stewart’s guilty plea to both counts was accepted by the trial court.

[917]*917Shortly thereafter and before his sentencing, Stewart sent a letter to the trial court expressing his desire to withdraw his guilty plea. In the letter, Stewart stated that he had been manipulated into accepting the plea through the actions of his trial attorney, Michael Miller. The trial court treated the letter as a motion to withdraw a guilty plea, set the matter for contradictory hearing, and appointed new counsel to represent Stewart during that hearing. After the conclusion of the evidence, the trial court denied the motion to withdraw. It reviewed the procedure in taking Stewart’s plea and deemed Stewart’s response to the trial court during that process to be more credible than his testimony at the motion to withdraw. The trial court noted that nothing was observed of Stewart’s demeanor on the day of the plea which indicated that his plea was not knowing and voluntary. Finally, the trial court opined that Stewart had simply changed his mind.

Subsequently, Stewart came for sentencing. Prior to imposing sentence, the trial court reviewed the presentence investigation report (“PSI”) indicating that Stewart was 17 years old at the time of his offenses and 18 years old at the time of sentencing. After making other references to the PSI, the trial court sentenced Stewart to 20 years at hard labor on each count, to be served consecutively. No motion to reconsider sentence was filed by the defendant, and this appeal ensued.

| ¡¡Discussion

Sentencing

In his first assignment of error, Stewart maintains that the trial court erred by imposing excessive sentences for each of the counts and failed to give sufficient weight to the mitigating factors. The State argues that in light of the benefit received by Stewart as a result of his plea bargain, the sentence imposed is not excessive. We agree.

Louisiana C. Cr. P. art. 881.1 applies to Stewart’s sentence, and precludes a defendant from presenting sentencing arguments to the court of appeal that were not presented to the trial court. In such a circumstance, a defendant is simply relegated to having the appellate court consider the bare claim of constitutional exces-siveness. State v. Mims, 619 So.2d 1059 (La.1993); State v. Masters, 37,967 (La.App.2d Cir.12/17/03), 862 So.2d 1121. Constitutional review turns upon whether the sentence is illegal, grossly disproportionate to the severity of the offense or shocking to the sense of justice. State v. Lobato, 603 So.2d 739 (La.1992); State v. Livingston, 39,390 (La.App.2d Cir.04/06/05), 899 So.2d 733.

A trial court has broad discretion to sentence within the statutory limits. 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. Germany, 43,239 (La.App.2d Cir.04/30/08), 981 So.2d 792. Absent a showing of manifest abuse of that discretion we may not set aside a sentence as excessive. State v. Guzman, 1999-1528, 1999-1753 |4(La.05/16/00), 769 So.2d 1158; State v. June, 38,440 (La.App.2d Cir.05/12/04), 873 So.2d 939.

The sentencing range for forcible rape is “imprisonment at hard labor for not less than five nor more than forty years,” with at least two years to be served without benefits. La. R.S. 14:42.1(B). Since Stewart was convicted of attempted forcible rape, he was subject to receive one-half of the maximum sentence for forcible rape, or 20 years. See La. R.S. 14:27.

[918]*918In the instant case, the sentences imposed are neither grossly disproportionate to the severity of the offense, nor do they shock the sense of justice considering the crimes committed by Stewart. In fact, despite his plea to a lesser offense, Stewart’s actual conduct more accurately falls under the definition for the offense of aggravated rape which is punishable by mandatory life imprisonment. See La. R.S. 14:42(D). Additionally, by all accounts, Stewart inflicted permanent damage on his two young victims. In preparing the PSI, the investigator spoke to both of the victims’ mothers. In the PSI, S.L.’s mother indicated that her son had changed from a playful carefree child to an introverted, fearful child who isolates himself, and C.H.’s mother stated that her son attends monthly counseling sessions, but that he is adjusting well. The trial court also heard from S.L.’s mother and uncle during the sentencing hearing. They both testified how S.L. had been changed by these events.

The trial court considered Stewart’s PSI and any mitigating factors. It noted that: Stewart was one of four half-siblings born to the same mother by four different fathers; Stewart’s own father was absent; he reported being molested by an uncle at five years of age; Stewart had a 10th grade ^education; he was diagnosed as bipolar and ADHD. The PSI also showed that Stewart claimed to attend the Missionary Baptist Church every week until he was arrested. Additionally, the PSI reflected that Stewart had no adult criminal history, and although he had a juvenile record, no details were available.

Of notable consideration, the PSI described interviews by the Gingerbread House (a children’s advocacy center serving abused children) wherein the victims (9 and 10 years old at the time of the offense) had stated that Stewart “used his penis to sexually assault them orally and anally” and that his victims were forced to perform oral sex on him as well. The victims also stated Stewart had threatened them with physical harm if they did not do as told.

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Bluebook (online)
109 So. 3d 915, 2013 WL 163604, 2013 La. App. LEXIS 43, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-stewart-lactapp-2013.