State Of Louisiana VS Michael J. Boudreaux

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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUTT 2013 KA 0834 STATE OF LOUISIANA VERSUS MICHAEL J. BOUDREAUX Judgment Rendered: FF 1 8 Qjq Appealed from the Twenty-First Judicial District Court In and for the Parish of Livingston, State of Louisiana Trial Court Number 26435 Honorable Ernest G. Drake, Judge Presiding xx * , Scott Perrilloux Counsel for Appellee, Mattnew Belser State of Louisiana Charlotte Suir Hebert Livingston, LA Patricia Amos Amite, LA Mary E. Roper Baton Rouge, LA Counsel for Defendant/ Appellant, Michael J. Boudreaux k A' ' k ' F df X af ' R a°. ` IC BEFORE: WHIPPLE, C.J., WELCH, AND CRAIN, JJ. WffiPPLE, C.J. Defendant, Michael J. Bc udreanx, was charged by grand jury indictment with two counts of aggravated rape, violations of LSA- R.S. 14: 42 ( counts one and and three counts of aggravated incest, violations of LSA-R.S. 14: 78. 1 three), counts two, four, and five). He pled not guilty. Following a jury trial, defendant was found guilty as charged on all counts. The trial court subsequently denied defendant' s motions in arrest of judgment, for new trial, and for postverdict judgment of acquittal. On counts one and three, the trial court imposed concurrent sentences of life imprisonment at hard labor, without bezaefit of parole, probation, or suspension of sentence. On count two, the trial court iir posed a sentence of twenty years at hard labor, consecutive to the sentences on counts one and three.' On count four, the trial court imposed a sentence of twenty-five years at hard labor, without benefit of parole, probation, ar suspension of sentence, consecutive to the sentence on count two. On count five, the trial court imposed a sentence of twenty years at hard labor, without benefit of parole, probation, or suspension of sentence, consecutive to the sentences on counts two and four. The trial court subsequently denied defendant' s motion to reconsider his sentences. On appeal, defendant raases two assignments of error related to his sentencing. For the following reasons, we affiz-m all of defendant' s convictions and sentences on counts one through four. We amend defendant' s sentence on count five and affirm that sentence as amended. without We note that the minute entry of sentencing indicates that this sentence was imposed benefit of pazole, probation, or suspension of sentence. Howevei, the sentencing transcript reveals that the trial court did not impose any such restriction of benefits on this sentence. Where there is a discrepancy between the minutes and the transcript, the transcript prevails. See State v. L ch, 441 So. 2d 732, 734 ( La. 1983). 2 FACTS Defendant is the stepfather of the vietim, C.H.,Z who was born on July 18, 1995. At trial, the victim iestified that she lived in Walker with her mother and defendant for a substantial partion of her childhood, un il shortly after she turned thirteen.3 The only time periods in wl i.ch the victim did not reside with her mother and defendant were occasional summers when she would visit her paternal grandparents in Texas. C.H. testi ied that from the tizne she was very young until she moved in with her biological father at age thirteen, defendant repeatedly engaged in oral, vaginal, and anal sexual intercourse with her. Accarding to C.H., defendant would engage in this behavior only when her mother was away from the household, or when all of her other family tr embers vere asleep. The state played a videotaped children' s advocacy center interview of the victim which corroborated her trial testimon}. Dr. Jamie Jackson, a child abuse pediatrician from Children' s Hospital in New Orleans, testi_ fied that she conducted an interview aald an examination of the victim in May of 20I 1. Dr. Jacksr n stated that the victim disclosed to her a very clear and detailed history c f her childk ood sexual abuse. Specifically, Dr. Jackson testified that C. H. had dzscribed how defendant began to fondle her genitals when she was approximately three years old. He escalated his behavior to engaging in anal sex with C.H. around the time she was in kindergarten or first grade. Defendant began to force C. H. to have vaginal sex with him when she was in approximately sixth grade. Dr. Jackson noted that C. H. told her that the defendant would engage in this behavior when her mother was at wark or sleeping. zIn aacordance with LSA- R. S. 46: 1844( W), the victim herein is referred to only by her initials, or as " the victim," 3The vietim testified that she had lived in several different cities, and even another state, with her mother and defendant, but the facts that she described at trial all occurred in Walker. 3 REVIER' FOR ERROR Initially, we point out that our iew for error is pursuant to LSA-C. Cr.P. art. 920, which provides that the only matters to be considered on appeal are errors designated in the assignments of ei-rar and error that is dTscoverable by a mere inspection of the pieadings and proceedings, without inspection of the evidence. After a careful review of the record, we have found one such errar with regard to defendant' s sentence on count five. By the state' s own ad nission at defendant' s senkencing hearing, defendant' s conviction for aggra ated incest on count five implicated the sentencing provision of LSA-R.S. 14: 78. 1( D)( 1) because C.H was thirteen years old at the time of that offense. Under that provision, a person conv?cted of aggravat d incest shall be fined amount an not to exceed fifty tFiousand dollar, or imprisoned, with or without hard labor, for a term of not less than five years nor more than twenty years, or both. See LSA- R. S. i4: 78. 1( D)( 1). In the instant case, the trial court imposed a sentence of twenty years at hard labor, without benefit of parole, probation, or suspension of sentence. However, the restriction of parole is only appropriate for an aggravated incest offense committed on a victim under thirteen years of age by a person seventeen years of age or older, as with defendant' s conviction on count four. 4 See LSA-R.S. 14 7$. 1( D)( 2). Thersfore, defendant' s sentence on caunt five is illegal. An appellate court is authorized to correct an illegal sentence pursuant to LSA- C. Cr.P. art. 882( A). Ordinarily, when correetion of such an error involves sentencing discretion, an appellate court should remand to the trial court for correction of the error. See State v. Hapnes, 2004- 1893 ( La. 12; 10/ 04), 889 So. 2d 224 ( per curiam). However, in the instant case it is clear that the trial court aWe note that the penalty provision in effect at the time defendant committed the acts relevant to count two did not restrict the benefits of pazole, probation, or suspension of sentence. See LSA-R.S. 14: 78. 1( D) ( prior to 2006 amendment). Thus, the trial court propexly declined to restrict benefits on that sentence. 4 attempted to impose the maximur_ sentence Z os ible ior deTendsnt' s conviction on count five. In doing so, tl. trial co xrt accide tall resir cted the k enefit of parole. e Because the trial court' s intentions are clear from the record, conection of this error does not involve sentencing d ret on. s Therefore> we amezid defendant' s sentence on cc unt five to a e9et Lhe r striction cm r aroie. SSIG' P_ IEN TS OF ERROR . V In related assignments of e or, de er. dani argues that the trial couz t failed to follow proper procedF,u es prior to sentencing deYenU nt. FirsY, defendant contends that the trial court erred i2 fazling io artic late reason foa- ? is sentences under LSA- C. Cr. P. 894. 1 art. Secoridly, he argues that ihe trial court abused its discretion in failing to order a presentence in, estigation report before sentencing. Failure to make or file a z oiion to reconsider sentence oz tc. include a j specific ground upon which a motion to reconsider seritence may be based, including a claim of excessiveness, shall preclude the tate or defense from raising an objection to the senter ce o firom arging any ground not raised ; n th motion on appeal or review. - L. SA- C, C' r.P. reconsider his sentences_ Ho fs1. 1( E). Iei, d fend ni filed a rnotion to e er, hia motion simpl lisYed the sen4ences imposed az±. $ by the trial court f.r his con° ictiuns and rec uested reec nsid ati.on on th basis that defendant " is testimony of a the frst felony ictim and fftenc her r, [and] tlae e was no evid nce besides the sxster[,] ' and he is tort}- one ( 41) years old." In add'ation to failing to rarse either of the arguments now asserted by defendant on appeal, the motiorn to reconsider failed eeen to raise explicztiv a bare claim of excessiveness. See State v. l ims, 619 So. 2d lOs9, 1059- 60 ( La. 1993). Therefore, defendant is pxecluded from raising these issues on appeal. hTone heiess, even if we vere Yo c; c nsider the propriety of defer dant' s sentences9 we would find that the record snpports the sentences impos d b} the trial court and the sentence modified by this court. At the tim 5 of defendant' s sentencing, the trial courC itly explii; onsid rerl tw of the factors cited by defendant in lus motion for reconsideration - his lack af a cr rriinal history and his age. Further, the sentences for defendant' s aggra ated rape convictions on counts one and three were m ndatory, and his sentence n cawnt four was the minimum possible und r.the effective sente cing provispori. Sea I,SA-K.S.. 4.42{ D)( 2)( b) & 14: 78. 1( D)( 2) ( after 2006 a endment). ' I'h e ls rri Yhzng in t ie xecord to show clearly and convincingly that defendant or h;s circumstances are exceptional as would warrant downward departures fz om these minimum mandatory sentences. See State v. Johnson, 97- 1906 ( La. 3/ 4/ 98), 7 J9 So. 2d 672, 676- 677 Moreover, although defendani' s sentence on count two and his modified sentence on count five are the maximum possible for those offenses, these sentences 2006 are likewise justified amendment) & by 14; 78( D)( 1 the record. I; after 2Q06 See L,SA- R.S. 14:? 8( D) ( prior to amend entj. While ma mum sentences may only be imposed for th.e mosi serious offenses and the worst offenders, see State v. Miller, 96- 204Q La. App. ls Cir. 71i7/ 97), 703 So. 2d 59$, 701, writ 719 So. 2d 459, we find that under the denied, 48- 0039 ( La. 5; 15 9), circumstances of the instant case. tkie trial coart acted witP i its discretian in its determination that defendant or his offenses fe17 intes ith r category. The evidence indicated that defendant engaged in a systernatic pattern of sexual abuse against C, H. that went on for nearly criminal acts and conduct wer a decade, The duration and nature of defendant' s sufficient to allow the trial court to conclude that defendant or his offenses were of the worst elass. Finally, as to defendant' s cornplaints regarding the failure to obtain a PSI, we note that Yhe ordering of a PSI is dzscretionarv with the trial court. See State v. Wimberly, 618 S. La. 1993 j; see also 2d 908, 914 ( La. App. LSA- C. Cr.P. 87( A)( 1). art. lst Cir.), writ dez ied, 624 So. 2d ? 229 VVe find no abuse f discretion in the trial court' s decision to cancel its earlier request £or a PSI in this case. 5 DECRE Accordingly, far the reasons set forth above, the defendant' s convictions on counts one through five, and sentences on counts one through four are hereby affirmed. The defendant' s sentence on count fve is hereby amended and affirmed as amended. CONVICTIONS ON COtiNTS ONE THROUGH FIVE AFFIRMED; SENTENCES ON COUNTS ONE THROUGH FOUR AFFIRMED; SENTENCE ON COiP iT FIVE AMENDED AMENDED. 7 AND AFFIRMED, AS

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