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Date: 05-14-2021
Case Style:
STATE OF LOUISIANA VERSUS RICHARD WAYNE BARRAS
Case Number: 19-897
Judge: Sylvia R. Cooks
Court: STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
Plaintiff's Attorney: John F. DeRosier, District Attorney
Jacob Johnson, Assistant District Attorney
Defendant's Attorney:
Description:
Lake Charles, LA - Criminal defense attorney represented Richard Wayne Barras with appealing his conviction on two counts of attempted first degree rape, habitual offender adjudication, and sentence of two consecutive life terms.
The facts establish on May 25, 2018, seventy-year-old D.N.1 went outside at
approximately 7:00 a.m. to water her garden at her Lake Charles home. Defendant
approached her and said something to her, but D.N. only speaks Vietnamese.2 She
believed he was offering to cut the grass, so she said, “No, no.” He then approached
her, and she became frightened and ran. He caught her as she made it to the bottom
step of her home and began pulling her pants down and pulling her down by her
neck. He also grabbed her underneath her buttocks and her vaginal area. During the
struggle, she felt his genitalia against her and could tell he was not wearing
underwear. Her screams awoke her husband, who came outside. At this point
Defendant fled. D.N. initially did not specifically identify her attacker in open court.
Initially, her husband did not either but later at trial stated he remembered the
attacker and identified him.3
The State recalled the victim, who at this point
identified Defendant as her attacker. D.N.’s neighbor, Trudy Veillon, testified she
heard D.N. screaming and looked out of her bathroom window. She saw the victim
struggling with a black male. She stated the victim’s pants were down.
About two miles away on the same morning, seventy-three-year-old M.S.
went outside in her robe and nightgown to take out some trash. Defendant
approached her and asked, “Hey lady, can you help me?” She told him “No” and
1As the crimes at issue are sex offenses, we use the victims’ initials in accordance with
La.R.S. 46:1844(W).
2 D.N., as well as her husband, spoke through a court-appointed interpreter at trial.
3The circumstances of the identification form the subject of one of the assignments of error.2
backed up. Defendant grabbed her and whispered in her ear, “I want some p-
--y.” During their struggle, he knocked her to the ground and choked her. At some
point, she felt his penis touch her vagina. Her neighbors heard her screams and came
to her aid. Defendant jumped up and tried to zip his pants, then fled. M.S.
specifically identified Defendant at trial as her attacker. The victim’s neighbor,
James Mitchell, testified he heard a scream that morning, after which he ran to the
victim’s yard and saw a black male on top of her, between her legs. He noted that
both of Defendant’s hands were in the area of her neck and head. Mitchell yelled at
Defendant, who then got up, hitched up his pants, and then fled the area. Mitchell’s
girlfriend, Mathilda Perez, who was having coffee with him, also heard M.S.
screaming for help. She followed Mitchell, and both ran to the victim’s yard and
saw a man on top of the victim. She stated Defendant’s hands were on the victim’s
neck and face. When Mitchell yelled at him, Defendant jumped up and fled. Police
recovered doorbell camera footage that showed Defendant approaching the area and
later running away, with Mitchell in pursuit. Another area camera recorded
Defendant’s vehicle in the area and helped police locate him via use of the license
plate number.
On June 14, 2018, the State of Louisiana filed a bill of information charging
Defendant, Richard Wayne Barras, with two counts of attempted first degree rape,
in violation of La.R.S. 14:27 and 14:42. After various pretrial hearings, on April 29,
2019, the parties began selecting a jury. After a three-day trial beginning on May 1,
2019, the jury found Defendant guilty as charged on both counts.
On May 7, 2020, the State filed a bill of information charging Defendant as a
habitual offender. The district court conducted a hearing on May 24 and determined
Defendant was a fourth habitual offender. On the same date, the court sentenced him
to two consecutive life terms. 3
Defendant now seeks review by this court, assigning five errors. For the
following reasons, we affirm Defendant’s convictions, habitual offender
adjudication, and sentences.
ASSIGNMENT OF ERROR NO. 1
In his first assignment of error, Defendant argues the evidence adduced
against him at trial was insufficient to support his convictions. He argues the State
did not prove he had the specific intent to rape either woman and questions whether
he was sufficiently identified as the offender who attacked D.N.
The analysis for sufficiency of evidence claims is well-settled:
When the issue of sufficiency of evidence is raised on appeal, the
critical inquiry of the reviewing court is whether, after viewing the
evidence in the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime proven
beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct.
2781, 61 L.Ed.2d 560, rehearing denied, 444 U.S. 890, 100 S.Ct. 195,
62 L.Ed.2d 126 (1979); State ex rel. Graffagnino v. King, 436 So.2d
559 (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982); State v.
Moody, 393 So.2d 1212 (La.1981). It is the role of the fact finder to
weigh the respective credibility of the witnesses, and therefore, the
appellate court should not second guess the credibility determinations
of the triers of fact beyond the sufficiency evaluations under the
Jackson standard of review. See State ex rel. Graffagnino, 436 So.2d
559 (citing State v. Richardson, 425 So.2d 1228 (La.1983)). In order
for this Court to affirm a conviction, however, the record must reflect
that the state has satisfied its burden of proving the elements of the
crime beyond a reasonable doubt.
State v. Kennerson, 96-1518, p. 5 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367, 1371.
First degree rape is defined by La.R.S 14:42, which states, in pertinent part:
“First degree rape is a rape committed upon a person sixty-five years of age or
older[.]” “Rape is the act of anal, oral, or vaginal sexual intercourse with a male or
female person committed without the person’s lawful consent.” La.R.S. 14:41(A).
Further, attempt is defined by La.R.S. 14:27(A): “Any person who, having a specific
intent to commit a crime, does or omits an act for the purpose of and tending directly
toward the accomplishing of his object is guilty of an attempt to commit the offense
intended; and it shall be immaterial whether, under the circumstances, he would have 4
actually accomplished his purpose.” Thus, as Defendant asserts, attempted first
degree rape is a specific intent crime.
We find the facts establish Defendant had the specific intent to rape each of
the elderly victims. In the case of M.S., the State presented evidence that Defendant
told her that he wanted to commit a sex act, knocked her to the ground, got on top
of her, and opened or lowered his shorts. During the struggle, he choked her and/or
covered her mouth. The victim testified that she felt his penis near her vagina.
Defendant implicitly acknowledges in his brief that he was on top of the victim at
some point, as he argues the testimony was conflicting regarding whether he was
straddling her or between her legs. Defendant also notes evidence that an offender
who grabs a victim while declaring his intention to have sexual intercourse can
support a conviction for attempted rape, citing State v. Parish, 405 So.2d 1080
(La.1981). However, he tries to distinguish Parish, arguing the facts therein offer a
more clear-cut case, as the offender explicitly used the word “rape” while
threatening the victim, and also moved her to the bedroom.
In a statement to police, Defendant admitted being on the scene and knocking
the victim down, albeit accidentally. Taken in combination with the fact there was
testimony from the victim and witnesses that Defendant was on top of her, we find
there was sufficient evidence for the jury to determine that Defendant had the
specific intent to rape M.S. As for the identification issue, the victim identified him
at trial. Further, security camera footage placed him in the immediate vicinity of the
attack, and a second camera showed his vehicle in the area and lead to his
apprehension. In a statement to police, Defendant claimed he simply bumped into
an elderly white woman in a yard as he was leaving his girlfriend’s house.
According to him, they both fell down. However, Defendant’s alleged girlfriend
informed police they had stopped dating three months before the attack. Further,
M.S. indicated to police that she bit her attacker. When they arrested Defendant, 5
police noted a bite mark and scratches on him. In addition, police located
Defendant’s DNA under the victim’s fingernails.
Defendant makes credibility-based arguments alleging that the record is
unclear regarding whether he put one or both hands on the victim’s neck, whether
he was between her legs, and whether he exposed his penis. M.S. and her neighbor,
James Mitchell, affirmed that Defendant was between her legs. Although M.S.,
Mitchell, and Perez all acknowledged some uncertainty regarding exactly where
Defendant’s hands were, all three affirmed his hands were in the area of the victim’s
neck and face. The record also establishes M.S. incurred some facial injuries as a
result of the attempted rape. The victim’s neighbors did not see Defendant’s penis,
but Mitchell noticed Defendant hitching up his pants as he rose. Such matters of
credibility or weight are squarely within the province of the jury.
Regarding the other victim, D.N., the victim and her husband eventually
identified Defendant as her attacker. Further, D.N. and her neighbor testified that
the victim’s pants were pulled down. D.N. also testified Defendant touched her
under her buttocks and vaginal area, and she felt his genitals against her, albeit
through his clothes. This evidence formed a sufficient basis for a rational jury to
determine that Defendant had specific intent to rape D.N.
Defendant devotes a significant amount of argument to unusual circumstances
that arose during trial. As already noted, D.N. was initially unable to identify
Defendant and left the stand without doing so. Her husband began his testimony,
and he also did not initially identify Defendant as the attacker. However, D.N.
apparently recognized Defendant after sitting in the gallery, became agitated, and
began gesturing. She soon left the courtroom; soon after she did so, her husband
indicated that he recognized Defendant. He also raises this issue under other
assignments which gives rise to a potential legal issue. However, such an issue is not
part of a sufficiency review under Jackson and Kennerson. Generally, a Jackson6
review does not examine the quality of trial evidence. As noted in Kennerson,
matters of weight and credibility are reserved to the factfinder; questions of
admissibility are also outside the parameters of a Jackson review. State v. Hearold,
603 So.2d 731 (La.1992). Defendant cites State v. Spooner, 550 So.2d 1289
(La.App. 1 Cir. 1989), writ denied, 566 So.2d 394 (La.1990), but its analysis focuses
on a motion for mistrial, not sufficiency.
For the reasons discussed, we find Defendant’s sufficiency of the evidence
argument lacks merit. However, we will address the issue of D.N.’s identification
further in the assignments which follow.
ASSIGNMENT OF ERROR NO. 2
In his second assignment of error, Defendant argues the district court erred by
denying his motion for severance of the offenses at trial. Defendant acknowledges
that such rulings are reviewed for abuse of discretion. State v. Washington, 386
So.2d 1368 (La.1980).
The district court heard Defendant’s motion to sever on October 2, 2018.
Defendant argued that the cases involve two different victims and that the testimony
of each victim might prejudice Defendant regarding the other victim. The State
countered that the crimes were similar to one another, as both involved attempted
sexual assaults against elderly women in their yards and occurred within an hour of
one another.
In making its ruling, the district court cited La.Code Crim. P. art. 493, which
provides:
Two or more offenses may be charged in the same indictment or
information in a separate count for each offense if the offenses charged,
whether felonies or misdemeanors, are of the same or similar character
or are based on the same act or transaction or on two or more acts or
transactions connected together or constituting parts of a common
scheme or plan; provided that the offenses joined must be triable by the
same mode of trial.7
The district court also cited La.Code Crim.P. art. 495.1:
If it appears that a defendant or the state is prejudiced by a joinder
of offenses in an indictment or bill of information or by such joinder
for trial together, the court may order separate trials, grant a severance
of offenses, or provide whatever other relief justice requires.
The court also referenced State v. Brooks, 541 So.2d 801 (La.1989) and
Washington. Brooks explained:
The motion to sever is addressed to the sound discretion of the
trial court and the court’s ruling should not be disturbed on appeal
absent a showing of an abuse of discretion. State v. Williams, 418 So.2d
562, 564 (La.1982). In ruling on such a motion, the trial court must
weigh the possibility of prejudice to the defendant against the important
considerations of economical and expedient use of judicial resources.
In determining whether joinder will be prejudicial, the court should
consider the following:
whether the jury would be confused by the various counts;
whether the jury would be able to segregate the various
charges and evidence; whether the defendant would be
confounded in presenting his various defenses; whether
the crimes charged would be used by the jury to infer a
criminal disposition and finally, whether, especially
considering the nature of the charges, the charging of
several crimes would make the jury hostile.
State v. Washington, 386 So.2d 1368, 1371 (La.1980) (citations
omitted).
Defendant argues joinder is improper under State v. Carter, 352
So.2d 607 (La.1977). That decision has been superseded by amendment
of La.C.Cr.P. art. 495.1 and our more recent jurisprudence interpreting
the article. Under the new article, severance need not be granted if
prejudice can be effectively avoided by other safeguards.
[T]here is no prejudicial effect from the joinder of two or
more offenses when the evidence of each offense is
relatively simple and distinct, even though such evidence
might not have been admissible in separate trials of the
offenses because, with a proper charge, the jury can easily
keep the evidence of each offense separate in its
deliberations.
State v. Celestine, 452 So.2d 676, 680 (La.1984) (citations
omitted). 8
Brooks, 541 So.2d at 804-05.
The court found that the two offenses were similar, factually connected, were
part of a common scheme or plan, and not unduly prejudicial. The court reasoned
that any potential confusion for the trial jury could be eliminated by the jury
instructions and the facts the jury would hear throughout the course of the trial.
Defendant also argues that the modus operandi in each offense was distinct;
however, we find the assaults and offenses were similar in methodology. Moreover,
it was logical for the district court to conclude that the joinder of the offenses was
not unduly prejudicial, as the cases were both strong from a sufficiency standpoint,
being supported by testimony from eyewitnesses. We cannot say the district court
abused its discretion by denying the motion to sever.
ASSIGNMENT OF ERROR NOS. 3 & 4
Defendant combines his arguments regarding his third and fourth assignments
of error into a single contention. As he notes, both his motion for mistrial and his
motion for new trial were based upon the unusual sequence of events that led to the
in-court identification of Defendant by D.N.’s husband and later by D.N. Defendant
suggests the husband’s identification of him was prompted by D.N.’s actions in the
gallery of the courtroom when she apparently recognized Defendant and began
gesturing towards Defendant. After D.N. was escorted from the courtroom by a
victim’s service’s representative, her husband identified Defendant as the attacker
when asked by the State. D.N. was later recalled and positively identified Defendant
as her attacker.
The court examined witnesses outside the jury’s presence to determine
whether D.N. alerted the testifying witness, her husband, to Defendant’s presence in
the courtroom and his identity. Trial counsel asked either that the testimony of
D.N.’s husband be stricken or that the court grant a mistrial. The court then advised
counsel to state which form of relief he was requesting. Counsel repeated his request 9
that the testimony be stricken and asked for the jury to be admonished. Counsel
suggested that mistrial might be appropriate but provided no authority for that
assertion. After further argument, counsel reiterated his alternative requests. The
court denied relief, finding that there had been no coaching or collusion regarding
D.N.’s husband. Defendant objected to the ruling. Later, at the close of day, the
State and Defendant both rested.
The next day, Defendant made a specific motion for mistrial, reiterating his
previous arguments. The district court denied the motion and noted Defendant’s
objection. The court expressed doubt as to whether the formal motion was timely, as
Defendant had rested; however, it noted that the substance of the argument had been
considered the previous day.
Defendant cited La.Code Crim.P. art. 770, which states:
Upon motion of a defendant, a mistrial shall be ordered when a
remark or comment, made within the hearing of the jury by the judge,
district attorney, or a court official, during the trial or in argument,
refers directly or indirectly to:
(1) Race, religion, color or national origin, if the remark or
comment is not material and relevant and might create prejudice against
the defendant in the mind of the jury;
(2) Another crime committed or alleged to have been committed
by the defendant as to which evidence is not admissible;
(3) The failure of the defendant to testify in his own defense; or
(4) The refusal of the judge to direct a verdict.
An admonition to the jury to disregard the remark or comment
shall not be sufficient to prevent a mistrial. If the defendant, however,
requests that only an admonition be given, the court shall admonish the
jury to disregard the remark or comment but shall not declare a mistrial.
Defendant also cited La.Code Crim.P. art. 775:
A mistrial may be ordered, and in a jury case the jury dismissed,
when:
(1) The defendant consents thereto;
(2) The jury is unable to agree upon a verdict;10
(3) There is a legal defect in the proceedings which would make
any judgment entered upon a verdict reversible as a matter of law;
(4) The court finds that the defendant does not have the mental
capacity to proceed;
(5) It is physically impossible to proceed with the trial in
conformity with law; or
(6) False statements of a juror on voir dire prevent a fair trial.
Upon motion of a defendant, a mistrial shall be ordered, and in a
jury case the jury dismissed, when prejudicial conduct in or outside the
courtroom makes it impossible for the defendant to obtain a fair trial,
or when authorized by Article 770 or 771.
A mistrial shall be ordered, and in a jury case the jury dismissed,
when the state and the defendant jointly move for a mistrial.
We find that La.Code Crim.P. art. 770 does not apply, as remarks by the judge,
a prosecutor, or a court official are not at issue.4
As to La.Code Crim.P. art. 775, it
is well-settled law that mistrial is a drastic remedy to be used only when a defendant
has suffered substantial prejudice. State v. Smith, 418 So.2d 515 (La.1982). A district
court’s ruling on a mistrial is reviewed for abuse of discretion. See, e.g., State v.
Hutchinson, 18-445 (La.App. 3 Cir. 12/12/18), 261 So.3d 927, writ denied, 19-108
(La. 5/28/19), 273 So.3d 313, cert. denied, __ U.S. __ , 140 S.Ct. 648 (2019). We
cannot say the district court abused its discretion in denying the mistrial motion. As
discussed, the court conducted a hearing to determine whether D.N. alerted her
husband, during his testimony, to Defendant’s identity. The court determined that
she did not so alert her husband, and we find Defendant fails to demonstrate the court
abused its discretion in this finding.
Regarding Defendant’s motion for new trial, he filed it in writing on May 7,
2019, referring back to the incident already discussed, in which a question arose
4 Louisiana Code of Criminal Procedure Article 25.1 requires the court to appoint an
interpreter for a non-English speaking person who is a principal party in interest or a witness in a
proceeding before the court after consultation with the non-English speaking person or his
attorney. An interpreter should be a neutral and detached individual whose abilities are screened
by the court. State v. Davis, 07-544 (La.App. 5 Cir. 12/27/07), 975 So.2d 60, 68, writ denied, 08-
380 (La. 9/19/08), 992 So.2d 952. Defendant makes no argument that the interpreter was a “court
official” or that the interpreter was not neutral and detached. 11
regarding whether D.N. improperly prompted her husband’s in-court identification
of Defendant. He also complained that the district court should not have allowed
D.N. to re-take the stand and identify Defendant herself. He does not maintain that
argument on appeal.
As already noted, the issue of whether D.N. prompted her husband was the
basis of Defendant’s argument for mistrial. In his motion for mistrial, he claimed
that the court’s denial of the motion unfairly prejudiced him and said prejudice
entitled him to a new trial. Alternatively, he argued that he should receive a new trial
pursuant to the interests of justice, citing La.Code Crim.P. art. 851(B). The court
denied the motion. A ruling on a motion for new trial to serve the interests of justice
is reviewed for abuse of discretion. State v. Guillory, 10-1231 (La. 10/8/10), 45
So.3d 612.
On appeal, Defendant again suggests that the identification testimony by
D.N.’s husband was prompted by her actions in the gallery of the courtroom. This
underlying premise has already been discussed. The other issue he raises is the incourt identification made by the victim. He contends it was tainted, arguing that there
was “media exposure” and that at some point before trial, a neighbor had shown her
a photo of Defendant on a cell phone. Defendant in brief does not identify any
alleged media exposure nor exactly how the victim’s testimony was tainted.
Detective James Jones testified that police did not show the victim any photo
lineups because they were aware the offense had been covered by television news
and social media. Also, a neighbor had shown the victim a press release on the
neighbor’s cellphone. Thus, investigators elected not to risk affecting the victim’s
identification via a photo identification. Apparently, the neighbor showed her the
press release within days of the offense. Despite the neighbor’s action, this case is
not a typical “suggestive identification” case, as the victim did not readily recognize
Defendant, so it was not clear that the identification had been suggested to her in 12
some way. In the cases cited by Defendant, the witnesses viewed photo lineups of
the defendant shortly before the respective trials. Such a procedure logically raises
the specter of a suggestive identification. In the present case, the victim apparently
saw a photo of Defendant within a few days of the offense but many months before
the trial occurred.
Further, this is not the argument Defendant made in the district court. As noted
earlier, he argued in his written motion that it was procedurally improper to recall
the victim to the stand. A new and different argument may not be raised for the first
time on appeal. Uniform Rules—Courts of Appeal, Rule 1-3; State v. Perkins, 07-
423, p. 7 (La.App. 3 Cir. 10/31/07), 968 So.2d 1178, 1183, writ denied, 07-2408 (La.
5/9/08), 980 So.2d 688. Therefore, Defendant’s argument regarding his motion for
new trial fails.
Lastly, Defendant argues that an error patent occurred at his habitual offender
adjudication, in that the State failed to show the “cleansing period” had not elapsed.
The State cites La.R.S. 15:529.1(C)(1):
Except as provided in Paragraphs (2) and (3) of this Subsection,
the current offense shall not be counted as, respectively, a second, third,
fourth, or higher offense if more than five years have elapsed between
the date of the commission of the current offense or offenses and the
expiration of the correctional supervision, or term of imprisonment if
the offender is not placed on supervision following imprisonment, for
the previous conviction or convictions, or between the expiration of the
correctional supervision, or term of imprisonment if the offender is not
placed on supervision following imprisonment, for each preceding
conviction or convictions alleged in the multiple offender bill and the
date of the commission of the following offense or offenses. In
computing the intervals of time as provided in this Paragraph, any
period of parole, probation, or incarceration by a person in a penal
institution, within or without the state, shall not be included in the
computation of any of the five-year periods between the expiration of
the correctional supervision, or term of imprisonment if the offender is
not placed on supervision following imprisonment, and the next
succeeding offense or offenses.
Defendant is correct in observing that in a habitual offender proceeding, the 13
State must prove that the five-year “cleansing period’ has not elapsed between
offenses. In setting forth such proof, the State must show the actual discharge date
for the relevant predicate offense or offenses. See, e.g., State v. Casaday, 51,330
(La.App. 2 Cir. 5/17/17), 223 So.3d 108. Evidence on this issue may be supported
with such materials as records from predicate offenses, “rap sheets,” and parole
board documents. See, e.g., State v. Martin, 17-1100 (La.App. 1 Cir. 2/27/18), 243
So.3d 56, writ denied, 18-568 (La. 3/6/18), 266 So.3d 901.
In the present case, the State introduced the “pen packet” and the minutes
related to each relevant offense. As the State observes in its brief, the documents
demonstrate that Defendant was not discharged for a charge bearing district court
docket number 07-6564 until May 9, 2011. Another exhibit shows the State filed
another set of charges against him in 2011 under district court docket numbers
41487-11 and 40099 for an offense committed in September of that year. On
February 17, 2012, the court sentenced him to ten years with all but two years
suspended, to be followed by five years of probation. Defendant’s rap sheet
indicates authorities released him for “good time” in September 2012, but his
probation was revoked in September of 2014. At the time of Defendant’s revocation,
he also pled guilty to new felony charges under docket number 6521-14, and the
court sentenced him to serve concurrent five-year sentences with the first of each to
be served without benefit of parole, probation, or suspension of sentence. Regarding
the revocation, the court ordered that he serve the remainder of the original ten-year
sentences, to run concurrently. The offenses listed in the bill of information under
docket number 6521-14 were committed in November and December of 2013.
The Department of Public Safety and Corrections again released Defendant
for “good time” on January 19, 2018. As discussed earlier, the most recent offenses
at issue, the two attempted rapes, occurred in May of 2018. Based on the timeline
discussed, the State demonstrated that the cleansing period never elapsed and thus 14
the habitual offender adjudication was valid. As the State argued in the district court,
Defendant has been in a state of virtually chronic incarceration since 2007. Any
time-gap between the pertinent offenses was a matter of mere months.
ASSIGNMENT OF ERROR NO. 5
In his final assignment of error, Defendant argues his consecutive life
sentences are excessive. At trial, he objected to the sentences without elaboration.
Subsequently, he filed a written motion alleging that the sentences were excessive,
which was denied by the district court. As a fourth habitual offender, Defendant was
subject to sentencing as set forth in La.R.S. 15:529.1, which states in pertinent part:
A. Any person who, after having been convicted within this state
of a felony, or who, after having been convicted under the laws of any
other state or of the United States, or any foreign government of a crime
which, if committed in this state would be a felony, thereafter commits
any subsequent felony within this state, upon conviction of said felony,
shall be punished as follows:
. . . .
(4) If the fourth or subsequent felony is such that, upon a first
conviction the offender would be punishable by imprisonment for any
term less than his natural life then the following sentences apply:
(a) The person shall be sentenced to imprisonment for the fourth
or subsequent felony for a determinate term not less than the longest
prescribed for a first conviction but in no event less than twenty years
and not more than his natural life.
(b) If the fourth felony and no prior felony is defined as a crime
of violence under R.S. 14:2(B) or as a sex offense under R.S. 15:541,
the person shall be imprisoned for not less than twenty years nor more
than twice the longest possible sentence prescribed for a first
conviction. If twice the possible sentence prescribed for a first
conviction is less than twenty years, the person shall be imprisoned for
twenty years.
Both underlying crimes were attempted first degree rapes and thus carried
potential sentences of ten to fifty years, pursuant to La.R.S. 14:27(D)(1)(a) and
La.R.S 14:42(D). Pursuant to La.R.S. 15:529.1(4)(a), the potential term was “not
less that the longest prescribed for a first conviction but in no event less than twenty 15
years and not more than his natural life.”
This court in State v. Whatley, 03-1275, pp. 5-6 (La.App. 3 Cir. 3/3/04), 867
So.2d 955, 958-59, details the proper analysis for an excessive-sentence claim:
The Eighth Amendment to the United States Constitution and La.
Const. art. I, § 20 prohibit the imposition of cruel or excessive
punishment. “‘[T]he excessiveness of a sentence becomes a question
of law reviewable under the appellate jurisdiction of this court.’ ” State
v. Dorthey, 623 So.2d 1276, 1280 (La.1993) (quoting State v.
Sepulvado, 367 So.2d 762, 764 (La.1979)). Still, the trial court is given
wide discretion in imposing a sentence, and, absent a manifest abuse of
that discretion, we will not deem as excessive a sentence imposed
within statutory limits. State v. Pyke, 95-919 (La.App. 3 Cir. 3/6/96),
670 So.2d 713. However, “[m]aximum sentences are reserved for the
most serious violations and the worst offenders.” State v. Farhood, 02-
490, p. 11 (La.App. 5 Cir. 3/25/03), 844 So.2d 217, 225. The only
relevant question for us to consider on review is not whether another
sentence would be more appropriate, but whether the trial court abused
its broad discretion in sentencing a defendant. 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).
The fifth circuit, in [State v.] Lisotta, [98-648 (La.App. 5 Cir.
12/16/98),] 726 So.2d [57,] 58, stated that the reviewing court should
consider three factors in reviewing the trial court’s sentencing
discretion:
1. The nature of the crime,
2. The nature and background of the offender, and
3. The sentence imposed for similar crimes by the same court and
other courts.
The district court in its sentencing recognized the nature of the offenses
involved violence and physical and emotional trauma for the victims. As for the
nature of the offender, the district court noted Defendant has been a continual
criminal offender since 2007. The court also expressed concern regarding
Defendant’s apparent escalation from burglar to rapist. Defendant physically
assaulted two vulnerable victims, both of them elderly women, with the intent to
rape each of them. We do not find the district court abused its sentencing discretion
by ordering maximum sentences.16
Defendant also complains that his sentences should not be consecutive. He
cites La.Code Crim.P. art. 883, which states in pertinent part:
If 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 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.
Although the offenses were obviously similar and were attempted on the same
morning, they were committed against two separate victims in two different
locations. The district court made this point at sentencing. Thus, the district court
did not err by ordering the sentences to run consecutively.
Outcome: For the foregoing reasons, Defendant’s convictions, habitual offender adjudication, and sentences are affirmed.
Plaintiff's Experts:
Defendant's Experts:
Comments: