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Date: 04-30-2020
Case Style:
STATE OF LOUISIANA VERSUS BENNIE STALLING
Case Number: 19-KA-336
Judge: John Molaison Jr.
Court: FIFTH CIRCUIT
COURT OF APPEAL
STATE OF LOUISIANA
Plaintiff's Attorney: Honorable Paul D. Connick, Jr.
Thomas J. Butler
Andrea F. Long
Douglas E. Rushton
Emily E. Booth
Defendant's Attorney:
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On January 29, 2018, the State filed a bill of information charging defendant
with sexual battery upon a known female in violation of La. R.S. 14:43.1.1
Defendant entered a plea of not guilty to the charge. On December 5, 2018, the
trial court granted the State’s notice of intent to introduce evidence of other crimes
and granted the State’s motion in limine to exclude evidence on the victim’s past
sexual behavior. On February 20, 2019, a jury trial on the charge resulted in a
conviction of the responsive verdict of attempted sexual battery. On February 21,
2019, defendant was sentenced to five years imprisonment to be served without
benefit of parole, probation or suspension.
On February 26, 2019, the State filed a multiple offender bill of information
alleging that defendant was a fourth felony offender. The multiple bill of
information was refiled on March 28, 2019 to allege that defendant was a fourth or
subsequent felony offender.2
Defendant stipulated to the charges of the multiple
offender bill of information. The trial court vacated the original sentence and
sentenced defendant as a fourth felony offender to serve twenty years at hard labor
without benefit of parole, probation, or suspension of sentence and mandated that
defendant register as a sex offender for life. Defendant filed a timely appeal to this
Court.
1 The bill of information was amended on November 29, 2018 to correct the date of the alleged
crime and to add several aliases.
2 The bill of information was amended on April 2, 2019 to correct a minor error.
19-KA-336 2
FACTS
The victim, B.C., is a twenty-two year old woman, who together with her
infant son, periodically lives with her great-great aunt, E.W. in Marrero. B.C.’s
younger sister, Br.C., age eighteen, also lives in the home. E.W. was dating
defendant, and he was staying at her home over the Thanksgiving holidays in
November of 2017. B.C., her infant son, and Br.C. were also staying in E.W.’s
home over the holidays. B.C. testified that she had met defendant at her aunt’s
home three or four times and had no problems with him prior to the incident
resulting in the criminal charge.
E.W. worked nights and had to report to work at 6 p.m. According to B.C.’s
testimony, after E.W. left for work on the evening of November 21, 2017, B.C.
went into the kitchen and asked defendant if she could have some of his Bacardi.
He agreed and she poured herself a “two shot glass” which she took out onto the
back porch. As she sat on the back porch smoking a cigarette and texting her
boyfriend, defendant came out to join her. He asked her for a cigarette. B.C stated
that she told him she didn’t have another one because cigarettes are expensive.
But, she offered him part of the one she was smoking. Contrary to defendant’s
testimony, B.C. denied the cigarette was marijuana. She stated that she and
defendant discussed issues she was having with her baby’s father. She also
testified that both she and the defendant were drinking, but defendant did not make
any inappropriate comments or do anything that made her feel uncomfortable
while they were talking on the porch.
At about midnight B.C. went inside the house to check on her baby who was
sleeping in Br.C.’s room and then went to her own room to go to bed. She woke
up about one hour later because she felt someone kissing the back of her neck. She
testified that she felt “like something (was) scratching (her) vagina.” When she
19-KA-336 3
was fully awake, she realized it was defendant who was behind her in bed with his
hand in her underwear trying to penetrate her with his finger. She jumped up and
told defendant to get out of her room. She went to check on her baby again and
when she returned defendant was still sitting in her bedroom. She told him to get
out a second time and he left. Because she was unable to go back to sleep after the
incident, she returned to the back porch and smoked another cigarette. Defendant
came out to apologize. He told her he was a “little drunk,” and that she was that
“piece of cake in the frig” that he was told not to touch but that she was
“something nice to look at” and “a man’s weakness.” B.C. did not accept the
apology and told defendant she was going to tell her aunt about the incident.
Later that morning, defendant went to pick up E.W. from work. B.C. came
into the kitchen and her aunt asked her what was wrong because it was unusual for
B.C. to be awake that early. B.C. told E.W. about awaking to find defendant in her
bed. E.W. told her to stay in the kitchen while she went out to talk to defendant.
B.C. was crying and also told Br.C. what happened. E.W. came back into the
kitchen with defendant and instructed B.C. to tell defendant what she had just told
E.W. B.C. told defendant, “I woke up with you in my bed last night.” According
to B.C.’s testimony, defendant said he was “a little drunk” and that he was glad she
told E.W. about the incident because “as a man I couldn’t sit here and tell you
that.” E.W. told defendant to pack his belongings because she was going to bring
him back to his home.
B.C. testified that E.W. sent B.C. to the store and told her to call the police.
B.C. called 9-1-1 and reported the incident. A tape of the 9-1-1 call was played for
the jury. B.C. told police she did not need to go to the hospital because she was
not physically hurt. B.C. testified that she did not know defendant was a convicted
sex offender and had no reason to want to get defendant out of her aunt’s home
19-KA-336 4
before the incident. B.C. stated that she did not give defendant permission to enter
her bedroom, get into her bed or to physically touch her.
B.C. explained that she was diagnosed with bipolar disorder at the age of
eight. She stated that she does not take the prescribed medication for the disorder
because she can control the condition without the medication. B.C. also testified
that she pled guilty to criminal trespass and simple battery, both misdemeanors,
and received one year probation.
In her testimony, E.W. stated that B.C. lived with her between the ages of
thirteen and twenty, and that Br.C. has lived with her since she was nine years old.
E.W. testified that defendant was her ex-boyfriend and that she had been dating
him for a few months at the time of the incident. She explained that defendant
lived in Houma and was visiting for the Thanksgiving holidays. Her relationship
with defendant was good and he was helpful around the house. E.W. testified that
defendant slept in her room when he was visiting. Br.C. and B.C. and her son had
their own bedrooms. E.W. verified that she worked nights and was not at home
when the incident happened. Defendant drove her to her place of employment,
Seaside Behavior Health, at 6 p.m. that evening and picked her up the next
morning. She testified that defendant was “extra quiet” and “kind of guarded” in
the morning so she asked him if something was wrong. Defendant answered
negatively. However, when E.W. went into her kitchen, B.C. and Br.C were up
earlier than usual waiting for her. B.C. told her defendant came into her room
during the night and put his hand in her underwear. E.W. went out to find
defendant to ask him if anything happened between him and B.C. He denied that
anything happened. However, when B.C. repeated the allegation, defendant put
his head down and said, “yeah, that was it” and admitted he had been drinking and
he did it. At that point, E.W. told defendant to pack up his things, she was driving
him back to his home in Houma.
19-KA-336 5
E.W. dialed 9-1-1 and gave the phone to B.C. E.W. denied that she sent
B.C. to the store. Police came to the house and took statements but did not collect
any evidence. B.C. testified that she did not know defendant was a convicted sex
offender. If she had known, she would not have left B.C. and Br.C. alone with
him.
Br.C. also testified at trial. She was in the house when police arrived and
arrested her aunt’s boyfriend. She stated that she lived in the house with her aunt
and was sleeping in her bedroom with B.C.’s infant son. In the morning, she found
B.C., E.W. and defendant in the kitchen talking. She heard the conversation in
which E.W. asked defendant if he touched B.C. She heard defendant deny it and
then admit it and apologize; however, she was not certain what exactly they were
talking about because B.C. had not yet told her about the incident.
The jury also heard testimony from Detective Jerry Devorak of the Jefferson
Parish Sheriff’s Office who responded to the complaint of sexual battery at E.W.’s
home. He testified that the victim positively identified defendant as the
perpetrator. Detective Devorak arrested defendant for sexual battery and
transported him to police headquarters. Defendant told the detective he drank a
bottle of alcohol the night before.
Amanda Munguia testified that she worked for the District Attorney’s Office
in the Victim Witness Department. She was involved in the screening process in
this case and she was present at a meeting with Jennifer Rosenbauch, the screening
attorney, and B.C. Ms. Munguia testified that B.C. said defendant made a
statement comparing her to “cake in a frig” that he was not supposed to touch. She
recalled that statement because it was very specific and uncommon.
Kevin Folse testified to issues relating to other crimes evidence against
defendant. He stated that he was employed by the Houma Police Department in
1995 when he responded to a call regarding a sexual assault. Mr. Folse met with
19-KA-336 6
the victim who called 9-1-1 to report the assault and got a description of the
suspect. Defendant was later apprehended, arrested and charged with the crime.
There is a stipulation in the record that defendant plead guilty to that crime.
Defendant testified that he had convictions for sexual battery, misdemeanor
battery, unauthorized entry, DWI and a felony battery charge. He explained he
served forty-four months of a ten-year sentence on the DWI conviction. Defendant
stated that he worked offshore occasionally and when he was not working he lived
with his sister in Houma and with E.W when they were dating. Defendant testified
that Br.C. lived with E.W. B.C. also lived there with her infant son, but was often
away from the home. He testified that B.C. did not like living with her aunt, and
avoided her, but had nowhere else to go.
On the evening of the incident, defendant maintains that he fixed himself a
drink and went out on the porch. B.C. came outside and joined him and they
talked about how she wanted to move to Mississippi. She also told defendant she
was having issues with her son’s father and that she lost her job. B.C. began to cry
and asked him for money to buy marijuana. She had been drinking alcohol and
smoking marijuana during the conversation. Defendant refused to give B.C.
money for marijuana.
After a while, he went inside and asked Br.C. to help him download music
and then went to bed. He testified that he did not get up again until the next
morning. Defendant described B.C. as “wild and loose,” and testified that his
impression was that she was interested in a sexual encounter with him. He stated
that he believes he was just a pawn in a scheme B.C. made up to get back at her
aunt.
Defendant testified that he picked E.W. up from work at the end of her shift
in the morning and they went together to an interview he had for a job as a forklift
driver at Sam’s. Shortly after they returned to the house, E.W. asked what
19-KA-336 7
happened between him and B.C. He told her nothing happened. He went into the
kitchen at E.W.’s request and was confronted with B.C.’s accusation. He denied
that he confessed to the act and maintained that he only went into Br.C.’s room,
not B.C.’s the night before. E.W. told him their relationship was terminated and
that she would bring him home.
Defendant got his belongings together and got into the car. Two Jefferson
Parish Sheriff Office units drove up and a deputy handcuffed him and brought him
to the detective bureau. He testified that he told detectives he did nothing to B.C.
and that she was making up the story. He specifically denied going into B.C.’s
room and putting his hand in her underwear and touching her vagina.
LAW AND ANALYSIS
In brief to this Court, defendant assigns three errors:
1. The trial court erred in granting the State’s motion to introduce other
crimes evidence.
2. The trial court erred in granting the State’s motion in limine, which
infringed upon appellant’s constitutional right to present a defense.
3. The sentence imposed is excessive.
Assignment number one
In his first assignment of error, defendant argues the trial court erred in
granting the State’s motion to introduce other crimes evidence. The State filed its
notice of intent to introduce evidence of other crimes and the trial court conducted
a hearing on the merits on December 5, 2018. At the hearing, the State submitted
evidence of defendant’s conviction of sexual battery in 1995 after his guilty plea.
The facts elicited at that hearing show that, in March of 1995, defendant walked up
to the victim and asked for a cigarette or a lighter. She said no. He asked again
and once again she said no. At that point, defendant grabbed her, pushed her to the
ground and touched her vaginal area. He pled guilty to the offense and received a
three-year sentence.
19-KA-336 8
Defendant argues the facts of his prior conviction are so vastly different
from those in the instant case, it cannot be said that he used the same method to
commit both offenses. Defendant also asserts the prior conviction was not
necessary for the State to prove motive or intent. Defendant argues that it is clear
that the improper purpose and effect of the prior conviction was merely to portray
him in the worst possible light, to prove he is a man of bad character, and to
convince the jury that because he pled guilty to committing sexual battery
previously, he must have committed sexual battery in the instant case.
The State responds that the trial court was correct in allowing the evidence
of the prior sexual battery conviction to be presented to the jury. The State reasons
that the factual similarity between the prior conviction and the instant matter
supports the trial court’s ruling.
Both the victim in the 1995 sexual assault and the current victim were
women in their early twenties. Defendant asked both for a cigarette to initiate
conversation and both were sexually assaulted afterward by defendant touching
their vaginal area. In both instances, defendant indicated that the victim wanted
the incidents to occur. In the prior case, the victim stated that defendant kept
telling her, “come on, you know you want it.” In the instant case, defendant
testified that he thought B.C. actually wanted a sexual encounter with him.
La. C.E. art. 412.2 (A) provides:
When an accused is charged with a crime involving sexually
assaultive behavior, or with acts that constitute a sex offense
involving a victim who was under the age of seventeen at the time of
the offense, evidence of the accused's commission of another crime,
wrong, or act involving sexually assaultive behavior or acts which
indicate a lustful disposition toward children may be admissible and
may be considered for its bearing on any matter to which it is relevant
subject to the balancing test provided in Article 403.
This article creates an exception to the rule set forth in article 404(B)(1), which
generally prohibits the introduction of evidence of “other crimes, wrongs or acts”
for the purpose of proving a person's character or propensity to criminal
19-KA-336 9
activity. State v. Layton, 14-1910 (La. 3/17/15), 168 So.3d 358, 359. As mandated
by art. 412.2, consideration of the admissibility of evidence of prior sexual
offenses must be balanced with the provisions of La. C.E. art. 403 which provides:
Although relevant, evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion
of the issues, or misleading the jury, or by considerations of undue
delay, or waste of time.
Defendant argues the evidence of his prior conviction should be
inadmissible because the probative value would be outweighed by the unfair
prejudice and confusion to the jury.
The State argues that the evidence in this instant case was not so
prejudicial as to warrant its exclusion under La. C.E. art. 403. The State
points out that the evidence of the prior crime was presented to the jury in a
clear, organized, and concise manner and there was no indication in the
record that the contested evidence confused or misled the jury.
Under La. C.E. article 412.2, evidence of a prior sexual offense is
admissible if relevant and if its probative value outweighs its prejudicial
value. Rulings on the admissibility of evidence will not be disturbed, absent
an abuse of discretion. State v. Bridgewater, 98-658 (La. App. 5 Cir.
12/16/98), 726 So.2d 987, 993. Absent a clear abuse of discretion, the trial
judge's determinations concerning relevancy and admissibility of evidence
of other sexual offenses should not be overturned. State v. Montero, 18-397
(La. App. 5 Cir. 12/19/18), 263 So.3d 899, 907.
In the matter before us, the prior sexual assault is highly relevant to
show defendant’s propensity to sexually assault women by starting a casual
conversation and forcibly touching their vaginal area. Additionally, the
evidence of the prior crime was presented to the jury through the testimony of
Mr. Folse, a former Houma police officer who responded to the call regarding
19-KA-336 10
the sexual offense charge, and by introduction of the guilty plea to the crime
by defendant. Further, the defendant testified to the prior conviction. Under
these circumstances, it is not likely that the jury was confused or misled by
the introduction of the prior crime evidence.
Upon review of the entirety of the record in this matter, we find the
probative value of the prior sexual assault conviction outweighs its
prejudicial value, and that evidence of defendant's prior conviction for
sexual assault was correctly deemed admissible by the trial court.
Accordingly, we find no merit in this assignment of error.
Assignment Number Two
In his second assignment of error, defendant asserts the trial court erred in
granting the State’s motion in limine preventing defendant from presenting
evidence that B.C. made numerous vague allegations of sexual assault in the past,
some of which were never investigated and none of which were verified.
Defendant further alleges that these allegations of sexual abuse were made at times
when B.C. was being reprimanded for her behavior, making them highly doubtful.
Defendant argues this restriction infringed on his constitutional right to present a
defense.
A defendant has a constitutional right to present a defense. Washington v.
Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 1923, 18 L.Ed.2d 1019 (1967). The Sixth
Amendment to the United States Constitution and Article I § 16 of the Louisiana
Constitution guarantee an accused in a criminal prosecution the right to be
confronted with the witnesses against him. State v. Zeringue, 03-697 (La. App. 5
Cir. 11/25/03), 862 So.2d 186, 195, writ denied, 03-3523 (La. 4/23/04), 870 So.2d
298. The primary purpose behind this right is to secure for the defendant the
opportunity for cross-examination. Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105,
39 L.Ed.2d 347 (1974). The right to present a defense and to confront witnesses
19-KA-336 11
includes the right of a defendant to attack the credibility of a witness by examining
him or her concerning any matter having a reasonable tendency to disprove the
truthfulness of his or her testimony. La. C.E. art. 607(C). The right of an accused
sex offender to present a defense is, however, balanced against the victim's
interests under La. C.E. art. 4123
, (the rape shield statute) which is meant to protect
the victim of sexual assault from having her sexual history made public. State v.
Zeringue, supra.
La. C.E. art. 412 does not apply when a defendant attempts to use evidence
of a victim's false allegations of improper sexual behavior to impeach the victim's
credibility. State v. Smith, 98-2045 (La.9/8/99), 743 So.2d 199, 203; State v.
Wallace, 00-1745 (La. App. 5 Cir. 5/16/01), 788 So.2d 578, 587, writ denied, 01-
1849 (La.5/24/02), 816 So.2d 297. The relevant inquiry for the trial court in such
an instance is whether reasonable jurors could find, based on the evidence
presented by the defendant, that the victim made prior false accusations. State v.
Smith, 98-2045 (La.9/8/99), 743 So.2d 199, 203. A trial judge's determination
regarding the relevancy and admissibility of evidence will not be overturned on
3 La. C.E. article 412 provides in pertinent part:
A. (1) Opinion and reputation evidence; sexual assault cases. When an accused is charged with
a crime involving sexually assaultive behavior, reputation or opinion evidence of the past
sexual behavior of the victim is not admissible.
(2) Other evidence; exceptions. When an accused is charged with a crime involving sexually
assaultive behavior, evidence of specific instances of the victim's past sexual behavior is also
not admissible except for:
(a) Evidence of past sexual behavior with persons other than the accused, upon the
issue of whether or not the accused was the source of semen or injury; provided
that such evidence is limited to a period not to exceed seventy-two hours prior to
the time of the offense, and further provided that the jury be instructed at the
time and in its final charge regarding the limited purpose for which the evidence
is admitted; or
(b) Evidence of past sexual behavior with the accused offered by the accused upon
the issue of whether or not the victim consented to the sexually assaultive behavior.
19-KA-336 12
appeal absent a clear abuse of discretion. State v. Plaisance, 07-822 (La. App. 5
Cir. 3/11/08), 982 So.2d 179, 185.
The State filed a motion in limine to exclude evidence of B.C.’s past sexual
behavior pursuant to La. C.E. article 412, and argues that defendant failed to
establish the applicability of an exception set forth in La. C.E. article 412.2(A)(2).
The State points out that the victim did not recant the prior allegations and the
defendant presented no evidence, only supposition, that the earlier allegations were
false. Accordingly, the State asserts the trial court was correct in granting the
motion in limine. In the alternative, the State argues that if the trial court abused
its discretion, the error was harmless.
Defendant acknowledges that, although there was no explicit testimony that
the allegations were false, it stretches the bounds of reason to believe that B.C.
made credible allegations of at least six prior instances of abuse by six different
perpetrators, including allegations of two separate instances of rape that were never
investigated to determine their validity. Defendant argues that this evidence, if
presented to the jury, could have persuaded jurors that the allegations against him
were false.
At the hearing on the motion in limine, the State offered evidence from
several witnesses. Leslie St. Julian, who taught science at Higgins High School,
testified that in October of 2011, during a discussion with B.C. about a behavior
issue, B.C. reported that she had been raped. B.C. was a freshman at the time and
was a student who Ms. St. Julian described as “behaviorally challenging.” Ms. St.
Julian felt that the perpetrator was someone B.C. knew and that she feared harm
would come to her if the details were established. Ms. St. Julian took B.C. to the
counselor and police were called.
Sergeant Curtis Pettigrew of the Jefferson Parish Sheriff’s Office testified
that he responded to the call from Higgins High School. He stated that B.C. did
19-KA-336 13
not want to talk about the incident reported by Ms. St. Julian. Sergeant Pettigrew
contacted B.C.’s guardian, E.W., who told the officer that she was familiar with the
allegation made by B.C. Because B.C. would give no details, nothing else was
done about the allegation.
E.W. testified that she is B.C.’s great-great aunt and that she was her
guardian from the ages of thirteen to twenty-one. She was also the guardian for all
of B.C.’s four siblings. E.W. became B.C.’s guardian after finding out that the
children would likely be going into state custody because of abuse allegations.
Sexual abuse allegations were made against the grandfather, and an older sister,
and an uncle. E.W. testified that B.C. told her that while she was living with
another aunt, she was raped in an elevator in a hotel in New Orleans. B.C. did not
want to go to the police because she was afraid. The rapist told her he would come
back and hurt her if she told anyone. E.W. was not certain whether B.C. knew the
man or not, but B.C. asked E.W. not to tell her aunt. E.W. spoke to B.C. about the
incident on multiple occasions but could not persuade her to make a police report.
E.W. also testified that B.C. talked to her about an incident with E.W.’s former
boyfriend who said inappropriate things to her and touched her on her buttocks.
La. C.E. art. 412 prohibits evidence regarding the past sexual behavior of the
victim in sexual assault cases, except when there is an issue of whether the accused
was the source of semen or injury, and when the past sexual behavior is with the
accused and there is an issue of whether the victim consented to the charged
sexually assaultive behavior. Article 412 does not apply when a defendant
attempts to use evidence of a victim’s false allegations of improper sexual behavior
to impeach the victim’s credibility. Smith, 743 So.2d at 202-203. However, the
admissibility of such evidence is still subject to all other standards for admissibility
under La. C.E. arts. 403, 404, 607, 608 and 613. Smith, 743 So.2d at 203. When a
defendant attempts to use evidence of a victim’s false allegations of sexual assault
19-KA-336 14
to impeach the victim’s credibility, the question of admissibility is whether
reasonable jurors could find, based on the evidence presented by a defendant, that
the victim had made prior false accusations, and whether all other requirements of
the Code of Evidence have been satisfied. Id.
This Court has previously found that the trial court properly granted the
State’s motion in limine and prohibited the defendant from questioning the victim
about her allegations of sexual abuse against individuals other than the defendant,
where none of the exceptions to article 412 apply, there was no issue as to whether
the defendant was the source of semen or injury, the evidence of past sexual
behavior was with persons other than the defendant, and there was no evidence the
victim’s prior allegations of improper sexual behavior were false. See State v.
Bryant, 12-591 (La. App. 5 Cir. 2/12/13), 110 So.3d 1191, writ denied, 13-648 (La.
10/11/13), 123 So.3d 1218.
The trial court's determination regarding the relevancy and admissibility of
evidence will not be overturned on appeal absent a clear abuse of discretion. State
v. Hernandez, 11-712 (La. App. 5 Cir. 4/10/12), 93 So.3d 615, 628, writ
denied, 12-1142 (La.9/28/12), 98 So.3d 834. We find the trial court did not error
in granting the State’s motion in limine and prohibiting the defendant from
questioning the victim about her allegations of sexual abuse against individuals
other than the defendant. La. C.E. art. 412 prohibits evidence of the victim’s past
sexual behavior and none of the exceptions to that rule apply here. There was no
issue as to whether defendant was the source of semen or injury, and the evidence
of past sexual behavior was with persons other than defendant. Further, there was
no evidence the victims prior allegations of improper sexual behavior were false.
We find no merit in this assignment of error.
19-KA-336 15
Assignment Number Three
In his final assignment of error, defendant asserts his twenty-year enhanced
sentence is constitutionally excessive. He points out that he rejected the State’s
offer to plead guilty to sexual battery in exchange for a ten year sentence and that
he elected to go to trial. Defendant also notes he was not convicted of the crime
charged, but rather of a lesser offense of attempted sexual battery. Defendant
argues he was penalized for exercising his right to a trial since he received a
sentence that is twice as long as the one offered in the plea bargain by the State.
While he admits the prior convictions charged in the multiple offender bill of
information, he asserts that those crimes were many years ago and that he has been
out of prison for several years. In those years he has held down and job and
continued to better himself. He concludes the severe sentence of twenty years is
constitutionally excessive because it makes no measurable contribution to
acceptable penal goals and therefore is nothing more that the needless imposition
of pain and suffering.
The State responds that defendant stipulated to the allegations in the multiple
bill in exchange for imposition of the mandatory minimum sentence, and did not
object to the sentence or file a motion to reconsider the sentence.
The record reflects that the trial court advised defendant of his rights when
considering the multiple offender bill of information. Defendant indicated he
understood those rights. The trial court noted defendant was a fourth felony
offender and informed defendant that the sentencing range was twenty years to life
and that he would receive, the minimum sentence of twenty years as a result of
stipulating to being a fourth felony offender. Defendant indicated that he was not
forced or threatened into stipulating to the allegations in the multiple offender bill.
The record contains a valid waiver of rights form in the guilty plea on the multiple
offender bill, which shows that defendant was to receive a twenty year sentence in
19-KA-336 16
exchange for his guilty plea. After receiving the minimum statutory sentence,
defendant did not object to the enhanced sentence, nor did he subsequently move
for reconsideration of the sentence.
A defendant cannot appeal or seek review of a sentence imposed in
conformity with a plea agreement which was set forth in the record at the time of
the plea. La. C.Cr.P. art. 881.2(A)(2). Article 881.2 precludes a defendant from
seeking review of an enhanced sentence to which the defendant agreed prior to
stipulation to the multiple bill. State v. Moore, 06-875 (La. App. 5 Cir. 4/11/07),
958 So.2d 36, 46. Because defendant received a sentence imposed in conformity
with a plea agreement that was set forth in the record at the time of the plea, he is
barred from challenging his multiple offender sentence as excessive. Id. This
assignment is without merit.
Errors Patent
We have reviewed the record for errors patent in accordance with L. C.Cr.P.
art. 920; State v. Oliveaux, 312 So.2d 337 (La. 1975); and State v. Weiland, 556
So.2d 175 (La. App. 5 Cir. 1990). Upon that review, find the record does not
reflect that defendant was re-arraigned after the State amended the bill of
information on November 29, 2018 to change the date of the charged offence and
to add several aliases. Because the defendant did not object to the lack of
arraignment on the amended bill which added aliases, the error is waived. State v.
Jones, 07-271 (La. App. 5 Cir. 10/30/07), 970 So.2d 1143.
With respect to the date of the occurrence. La. C.Cr.P. art. 468 provides that
the date or time of the commission of the offense need not be alleged in the
indictment unless it is essential to the offense. The actual date the offense is
alleged to have occurred is not an essential element of the offense of sexual
battery. State v. Simon, 10-1111 (La. App. 3 Cir. 4/13/11), 62 So.3d 318, 323, writ
denied, 11-1008 (La. 11/4/11), 75 So.3d 922. The function of an arraignment is to
19-KA-336 17
notify the defendant of the charge against him. State v. Bluain, 315 So.2d 749, 752
(La. 1975). Since this amendment to correct the date was designed to cure
deficiencies and not to alter the nature of the crime, defendant’s plea to the original
indictment applied to the amended indictment. Id.
The transcript reflects that the trial court incorrectly advised defendant that
he had “two years after the judgment of conviction of sentence becomes final in
which to seek post-conviction relief.” La. C.Cr.P. art. 930.8(A) provides that “(n)o
application for post-conviction relief, including applications which seek an out-oftime appeal, shall be considered if it is filed more than two years after the
judgment of conviction and sentence has become final under the provisions of
Article 914 or 922…” When a trial court failed to properly advise, or provides an
incomplete advisal, the appellate court may correct this error by informing the
defendant of the applicable prescriptive period for post-conviction relief by means
of its opinion. State v. Perez, 17-119 (La. App. 5 Cir. 8/30/17), 227 So.3d 864,
870.
Accordingly, by way of this opinion, we advise defendant that no application
for post-conviction relief, including applications that seek an out-of-time appeal,
shall be considered if it is filed more than two years after the judgment of
conviction and sentence has become final under the provisions of La. C.Cr.P. arts.
914 or 922.
Outcome: For the foregoing reasons, we affirm defendant’s conviction, multiple
offender adjudication and enhanced sentence.
Plaintiff's Experts:
Defendant's Experts:
Comments: