State Of Louisiana VS Rudolph Joseph
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NOT DESIGNATED FOR Pl1BLTCATION STATE DF LOUISdAi A DU T F APF"F l IFIRST I 7d1' NO. 2013 I A 1030 STATE OF LOUISTANA VERSUS RUDOLPH JOSEPH udgment rendered IAR 21 20i4 Appealed from the 19th Judicial District Court in and for the Parish of East Baton Rouge, Louisiana Trial Court Na. 06- 10- 0329 Honorable Louis Dan el, Judge HILLAR C. MOORE, III ATTORNEYS FOR DISTRICT ATTORNEY STATE OF LOUISIANA MONISA L. THOMPSON ASSISTANT DISTRICTATTORNEY BATON ROUGE, LA FREDERICK KROENKE ATTORNEY FOR BATON ROUGE, LA DEFENDANT-APPELLANT RUDOLPHJOSEPH BEFORE: PETTIGREW, McDONALD, AND McCLENDON, ] J. PETTIGREW, J. The defendant, Rudolph Joseph, was charged by bill of information with forcible rape, a violation of La. R.S. 14: 42. 1 ( count 1), and second degree kidnapping, a violation of La. R. S. 14: 44. 1 ( count 2): was found guilty as charged He pled not guilty to khe charges and, following a jury trial, on both coun s. For the forcibie rape conviction, the defendant was sentenced to forty years omprisonment at hard labor without benefit of parole, probation, or suspension of sentence; for the second degree kidnapping conviction, he was sentenced to forty years imprisonment at hard labor without benefit of parole, probation, or suspension of sentence. The sentences were ordered to run concurrently. The defendant now appeals, designating two assignments of error ( and several abandoned pro se assignments of error). For the following reasons, we affirm the convictions and sentences. FACTS On the Saturday evening of March 6, 2010, G. Ce met some friends at The Maison, a nightclub on Frenchmen Street in New Orleans. During this time, G. C. was attending LSU, but almost every weekend she drove back to New Orleans to stay with her parents, who lived uptown near Audubon Park. At about 3. 30 a. m. ( March 7), G. C. got tired and left the club to go home. She had not driven to the club, so she hailed a cab to get home. The defendant picked up G. C. He was driving a white minivan- type taxi cab with a phone number and the word " taxi" on the side of the vehicie. G. C. got in the backseat and asked the defendant to take her to uptown New Orleans by Audubon Park. A woman was sitting in the front passenger seat. The defendant dropped off the woman in the Lakefront area. When the defendant got out of the cab to let the woman out, G. C. slid between the front two seats to the front passenger seat. G. C. repeated the address to the defendant, and he said he was going to take her home. The defendant got on the interstate, but instead of taking any of the exits that would have Veterans -- gotten him to G. C.°s address -- namely, Metairie Road, Clearview, and he passed them up and remained on the interstate. As the defendant drove past Metairie, and then Kenner, ignoring G. C.' s requests to take any of the exits, G. C. 2 became panicked. defendant that As they approac ed #he B nr°et Carre Spillway, G. C. told the was not the way to her the defendant got on the defendant and 136 snatched Spillway, G.. te G,:. innplor p her cell phone to make a call. The and tila p i ta r acros the face, G. C. was 5' S" the phor: from ,., e pounds and, accordin him to take her home. When use and pfe ed h rwt ; as 6' S" and weighed 275 pounds. fe th F G. C. tried to open her door, but realized fihere we e ne d or handles on the inside. The defendant eventually exited the Spillway and dr ve toward Baton Rouge. When G. C. realized she was in familiar surroundings, she pleaded for the defendant to take any exit and just let her out. The defendant ignored her pleas. The defendant then took the I- 110 exit north and began heading toward the tafayette exit. Overcome with fear at the prospect of driving through Lafayette and possibly beyond, G. C. leaned back against her door and began kicking the defendant. One of her kicks hit the windshield, cracking it. The defendant veered toward the right and took the Government Street exit. The defendant drove around a bit, then stopped his . vehicle in front of an abandoned building on the corner of S. i7th Street and America Street. The defendant opened his door slightly and told G. C. to lift up her pulled ofF her bra, then began masturbating. realized she could make her escape. shir: G. C. complied. The defendant With the defendant's door still ajar, G. C. As G. C, crossed over the defendant to get to the door, the defendant grabbed the back of her head and forced her mouth on his penis. He ejaculated in her mouth. G. C. bit his penis. The defendant pushed G. C. out of the vehicle onto the ground. He threw her phone at her and drove away. G. C. called one of her friends in Baton Rouge, who picked her up. G.C. also called her parents and told them what happened. They drove to the police station where G. C. gave a statement. G. C. then went to 1Noman' s Hospital defendant' s semen was identified on and under venti the jeans G. C. a rape was icit examination. wearing that night. The G. C. identified the defendant in a photographic lineup, .An arrest warrant was issued, and the defendant was subsequently arrested. The " taxi" the defendant drove G. C. in was not recovered. 3 COUNSELED ASSIGNMENTS OF ERRORNOS. 1 and 2 In these related assignments of rror the defendanc argues, respectively, that the sentences imposed ar excessive anu thak defense counsel' s failur to file a motion to reconsider sentence onstitutes ineffectwve assistance of counsel. The record does not contain an orai or written motion to reconsider sentence. Louisiana Code of Criminal Procedure article 881. 1( E) provides that the failure to file or make a motion to reconsider sentence precludes the defendant from raising an excessive sentence argument on appeal. Ordinarily, pursuant to the provisions of this article and the holding of State v. Duncan, 94- 1563, p: 2 ( La. App. 1 Cir. 12/ 15/ 95), 667 So. 2d 1141, 1143 ( argument. en banc per curiam), we would not consider an excessive sentence However, in the interest of judic al economy, we will consider the defendanYs argument that his sentence is excessive, even in the absence of a motion to reconsider sentence, in order to address the defendant's daim of.inefFective counsel. See State v. Wilkinson, 99- 0803, p. 3 ( La. App. 1 Cir. 2/ 18/ 00), 754 So. 2d 301, 303, writ denied, 2000-2336 ( La. 4/ 20/ Ol), 790 So.2d 631. In Strickland v. Washington, 466 U. S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 ( 1984), the United States Supreme Court enunciated the test for evaluating the competence of trial counsel: First, the defendant must show that counsel' s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the " counsel" uaranteed the defendant by the Si h Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel' s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable. In evaluating the perFormance of counsel, the nquiry must be whether counsel°s assistance was reasonable So. 2d 934, 937 ( La. considering App. 1 Cir. 1985). all the circumstances. State v. Morgan, 472 Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim. State v. Robinson, 471 So. 2d 1035, 1038- 1039 ( La. App. 1 Cir., writ denied, 476 So. 2d 350 ( La. 1985). 4 Failure to file a motion to reconsider sentence in itself does not constitute ineffective assistance of counseL However, if the defendant can show a reasonable probability that, but for counsel"s error his sentence would have been difFerent, a basis for an ineffective assrstance claim may be found. See State v. Felder, 2000- 2887, p. il La. App. 1 Cir. 9/ 28/ O1), 809 So. 2d 360, 370, wri denied, 2001- 3027 ( La. 10/ 25/ 02), 827 So.2d 1173. The Eighth Amendment to the United States Constitution and Article I, § 20, of the Louisiana Constitution prohibit the imposition of cruel or excessive punishment. Although a sentence falis within statutory limits, it may be excessive. State v. Sepulvado, 367 A sentence is considered constitutionally excessive if it is So. 2d 762, 767 ( La. 1979). grossly disproportionate to the seriousness of the offense or is nothing more than a purposeless and needless infliction of pain and suffering. A sentence is considered grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. State v. Andrews, 94- 0842, pp. 89 ( La. App. 1 Cir. 5/ 5/ 95), 655 So. 2d 448, 454. The trial court has great discretion in imposing a sentence within the statutory limits, and such a sentence will not be set aside as excessive in the absence of a manifest abuse of discretion. So. 2d 1241, 1245 ( La. App. 1 Cir. 1988). See State v. Holts, 525 Louisiana Code of Criminal Procedure article 894. 1 sets forth the factors for the trial court to consider when imposing sentence. While the entire checklist of Article 894. 1 need not be recited, the record must reflect the trial court adequately considered the criteria. State v. Brown, 2002- 2231, p. 4 ( La. App. 1 Cir. 5/ 9/ 03), 849 So.2d 566, 569. The articulation of the factual basis for a sentence is the goal of Article 894. 1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with Article 894. i. State v. Lanclos, 419 So. 2d 475, 478 ( a. 1982). The trial judge shoufd review the defendanYs personal history, his prior criminal record, the seriousness of the ofFense; the likelihood that he will commit another crime, and his potential for rehabilitation through correctional services other than 5 confinement. See State v. Jon s, review of a sentence, the r levant questfor is uvh,ether th sentencing discretion, State v. not wheth° On appellate 398 So. 2d 1Q44F 1051- 1 52 ( La. 1981). ar khes sente ce ma Thomas, 95- 1144r pP. 1- 2 ( La 1, trial court abused its broad it h ve been more ppropriate. 9/ 98?; ? t4 Sce: 2 4y, 50 ( per curiamj. For each of his convictions, the defenaant received the maximum sentence of forty years at hard labor. 44. 1( C). See La. R.S. 14: 42. 1( B) & The defendant argues that the facts of this case reveal " that it was not the worst crime of its type and [ he] is not the w rst to commit them." He further asserts that the circumstances surrounding this incident " demonstrate the many questions surrounding this case, all of which should have been taken into consideration by the tria4 court in determining the appropriate sentence." In arriving at appropriate sentences, the trial court considered many factors, including Article 894. 1, the facts of the case, the defendant's refusal to accepf responsibility, and his extensive criminal history: now I have ordered a presentence investigation done in this case. It has completed, the presentence -- Probation and Parole had asked been for an extension because they were trying Eo get your prior convictions straight for me included in the presentence report. I have considered the statement made by you in the presentence report, and I've also considered the statement made by you today. You still deny responsibility in this case. I have considered the statement, a brief statement made by the victim to the presentence investigative officer from Probation and Parole that' s contained in the presentence report. I have considered your prior criminal history that is outlined for me in the presentence report, and it is voluminous. I show in -- it shows in 1990 you were arrested for sexual battery, but you pled guilty to what they call an accompanying charge of illegal possession of stolen property, which is obviously a felony, which you were sentenced to four years in the Departmenk of Probation [ sic]. That was suspended and you were placed on two years active supervised probation. You apparently did not show to that court that you were amenable to probation because that probation was revoked in 199L I a so show that you were arrested i 1990 for armed robbery. On June 24' of 1991 you pled guilry to armed robbery and were sentenced to five years in the Department of Corrections. I do note that being a crime of violence. You were again arrested for a serio es offense. It says the Tangipahoa Sheriffs Office arrested you for, it appears to be second- degree battery which the victim was a police offcer ira 1996. You Rled guilty to lesser charge of battery of a palice officer ar d received probation in that case. You were arrested in 1997 for aCtempted first-degree murder. You pled guilty to what they, again; call an accompanying charge of unauthorized use of a movable, feiony, and were sentenced to five years in the Department of Corrections. 6 In 2003 you were arrESted for simple battery and simpie assault. Those charges were, itappears not prosecuted. A jury in this court found you guiity of bc tn nrcible rape and second- degree kidnapping, You were on the instant offense in 2010. arrested both crimes of violence, You were arrested in 20AQ on a c aarge 9 irdecent benavior with a juvenile. That i was r? riie , arge cc ssed s; eM r Iai ¢ og t th resenter e report. Also cases great in Orleans with rape of twa or cer Parish, b separa te c a viGtir th for , vur twc s a charges to be similar to the erimes for is tihat y u have twa pending t d kidnapping and aggravated gyr e f erises that appear -- other f ich ycta were convicted, sir, in this courk. That record -- and I haven' t gone ove everything in your rap sheet, sir. I've gone over what_has been outlined in the presentence report, but I have looked at your rap sheet and i is atrocious." You advantage have of had the benefit of prabation before; did not take I considered the Socia( history contained in the that. presentence report. You were raised initially in New Orleans until the age of 11, then you resided in Florida for a while then returned to New Orleans. Your father is deceased. Your mother, it says still resides in New Orleans. You have no siblings. You do state that you have -- you are single. and have two children. You have worked as a cook in New Orleans. You say that you were in [ sic] enrolled in Dillard University for about a year and a half, transferred to Southern University studying business. You say you' ve opened a retail store on Rampart Street in New Orleans, worked for that, until Hurricane Katrina then you moved to Florida: After you moved to Florida for a while, several years, you decided to move back to, New Orieans to, you said, be with yourfamily, Your -- to be closer to your children and their mother. Yo skate that you did work while you were in New Orleans -- after yo s had eturraec from New Qrleans, that is, I've considered whak you have said about yy ur problEms v i h drugs eport ancluding alcohol. I have that is contained in the presentence eonsidered the recommendation of the EFice of Probation and Parole. have considered the sente cing guidef` es sf God I of Criminal iProcedure Article 894. 1. I do find that yau are in need of a custodia! or cdrrectionai environment best served commitmenX y ko am institutioro, I have, again, considered the facts Qf t QS case.' And I'm nat going to review all of the facts of this case, sir. It vuas clear' what the jury found 'in this case. It was clear what the fracts were that were testified to, but you obviously, by your act ons, sF owed an absolute and total pisregard for the safety and well- being of the victim, that you were concerned with satisfying your own sexual- prurient interest, that you reated a situation that lasted for an incredibly long period of time from a drive from New Or[eans to Baton Rouge where the victim was imprisoned. I can't imagine the terror that you caused in the mind and heart of the victim, sir. And that went on for some time before the sexual assault whieh o curred here in this parish in East Baton Rouge. After that terrorizing ride ended then it ended with your sexual assault on the vi tim. You played a major role in the commission of these offe ses. I've taken into account your age, educational level, social history, work history that I've gone over. You do appear to bE a v olenk person. You are a danger to the public. I don' t believe the harm thak you did to tne victim can be measured, but it is great. You are a career criminal, and you need to serve a fengthy period of jail time for the prot ctior of the pubiic. 7 This court has stated tha maxi murrs : er t s pae mlited imposed only for the ms st seriQUS ofEaa Je a+ d th poses an unusual State v. irssic t vc r t o fenders, or rhen tihe offender e x : ue c : s ia, r cr r ei s ot" cpeated cr minality. the ; u Ei;. Hilton, 99- I 39, p, i6 rE_a. A p. k " 7& 6 a., denied, 2000° 0458 ( La. 3/ 9/ Ol; n er statute may be 26; .: ar. 3!: a,` 3, ! 3 a s t), 4 So. 2d 2U27, 1 37', writ asans tor ser tencing, the trial court made it clear the defendart p s d an .u n sua rosVc to the public safety because of his criminal history -- " You are a danger to the pupfic: ... You are a career criminal, and you need to serve a Jengthy period of jail time for the protection of the public." Accordingly, the trial court provided ample justification in. imposing maximum sentences. See State v. Mickey, 604 So. 2d 675, 679 La. App. 1` Cir. ,1992), writ denied, 610 Soa2d 795 ( La. 1993). Considering the tria( court's careful review of the circumstances, the horrific nature of the crimes, and the defendant's habitual crimiraf behaviorj we find no abuse of discretion in the trial court' s irnposi iQn ofi maxir um septences. Accordingiy, tlhe sentences imposed by the triai court are not grossdy ispro?ortionate to he severiiy of tne offenses and, therefore, are not uncorjstitutior ally xc:essive. Because we find the serrtences are nrat exee s ve, defense ourrsel' s fail re to file or make a motion to reconsider ser tence, even 'sf constituting deficient performance, did not prejudice the defendant. See VHilkinson, 99- 08D3 at 3, 754 So. 2d at 303 Robinson, 471 So. 2d at 1038- 1039. Hi claim 2f ineffective assi5tance of counsel, therefore, must fall. 7hese assignments of error are wi tho t merit, PRO SE ASSIGNMENTS OF ERROR In his pro se assignments of errorF tfie fe ant lists eignt assignmenzs of error; fncluding insufficient evidence, failure of the tria . ourt ko recuse the District Atkorney's Office, ineffective assistanc of counsel, and excessiv se t nee. The defendant anly lists these assignments of errUr and provides nc ti nely argument for any of them. Accordingly, they are considered aba dasred. See Ur!of 2- 12. 4. CONVICTIONS AND SENTENCE5 AFFIRMED. 8 r Rules -- CUUr s of Appeal, Rule
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