STATE OF LOUISIANA VERSUS ALFRED MAYO
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C t STATE OF LOUISIANA COURT OF APPEAL THIRD CIRCUIT 1296 14 STATE OF LOUISIANA Judgment rendered and mailed to all parties or 2015 June 3 Applications for rehearing may be filed with the delays allowed a L Code Civ P art 2166 or La Code Crim P counsel VERSUS on by art s22 ALFRED MAYO APPEAL FROM THE THIRD THIRTY JUDICIAL DISTRICT COURT 0633 2013 PARISH OF ALLEN NO CR HONORABLE PATRICIA C COLE DISTRICT JUDGE ELIZABETH A PICKETT JUDGE z Court com p osed of John D Saunders Elizabeth A Pickett and PhY llis M KeatY Judges AFFIRMED Edward J Louisiana Marquet Appellate Project P O Box 53733 3733 Lafayette LA 70505 6841 337 237 COUNSEL FOR DEFENDANT APPELLANT Alfred Mayo Herbert Todd Nesom District Attorney Thirty Third Joe Green Assistant District Attorney P O Box 839 Oberlin LA 70655 2641 337 639 COUNSEL FOR APPELLEE State of Louisiana Judicial Court PICKETT Judge FACTS The defendant Alfred counts of aggravated S R rape violations of La juvenile a violation of La 14 A S R 81 2014 and the defendant sentenced aggravated counts on rape jury guilty September 30 2014 one as February 8 2013 on 42 14 three battery trial commenced charged on concurrently without juvenile a imprisonment All sentences the benefit of probation The defendant filed a parole on and Motion for Reconsideration of Sentence perfected for the the single count of ordered to be served of sentences Judgment of October 6 2014 which reasons The defendant has 2014 He each of the three suspension on a September 23 Motion for New Trial Verdict Post denied without written of sexual imprisonment on were or on September 24 of life to ten terms and two years counts ten on of indecent behavior with count convictions twenty years imprisonment five of sexual Acquittal found was indecent behavior with was indicted was violations of La and 1 43 14 S R battery was Mayo sentences imposed on circumstances of his a timely appeal the convictions for aggravated wherein he asserts the life rape were excessive under the case Between the dates of May 2012 and August 2012 the defendant who was B one twenty years old had repeated sexual intercourse with the victim M who was twelve years old at the time iThe victim s initials are used to protect her identify S R La W 1844 46 ERRORS PATENT In accordance with La Crim art Code P errors patent are no errors on the face of the record After 920 all appeals reviewing the are record reviewed for we find there patent ASSIGNMENT OF ERROR For his imprisonment single assignment of sentences are excessive years old at the time of the the sexual contact was Rapeis defined intercourse with a offenses the defendant error that he was considering that he has no alleges prior that the life only twenty one criminal history and that consensual in male pertinent part the act of anal oral or female person committed without the or consent La 14 In S R 41 as pertinent part S R 42 La 14 vaginal sexual s person lawful provides A Aggravated rape is a rape committed upon a person sixty five years of age or older or where the anal oral or vaginal sexual intercourse is deemed to be without lawful consent of the victim because it is committed under any circumstances one or more of the 4 When the victim is under the age of thirteen s knowledge of the victim age shall not be a defense This court has set out claims as a standard to be used in following years Lack of reviewing excessive sentence follows La Const art I 20 guarantees that n law shall subject o to cruel or unusual punishment To constitute an any person excessive sentence the reviewing court must find the penalty so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no measurable contribution to acceptable penal goals and is therefore nothing more than a needless imposition of pain and suffering State v Campbell 404 2d So 1205 La The trial court has wide discretion in the 1981 imposition of sentence within the statutory limits and such sentence shall not be set aside as excessive 2 absent a manifest abuse of discretion State 192 App Etienne 99 La 3 Cir 10 746 99 13 2d 0165 6 denied 00 La 765 So 1067 The 00 30 v 2d So 124 writ relevant question is whether the trial court abused its broad discretion not appropriate denied State v 519 In State writ might have been more 2d 96 31 S La 674 So 957 cert whether another sentence State 2784 Cook 95 S U 1043 117 S 615 136 L 2d Ed Ct v 1241 1591 Barling 00 00 1035 1042 43 writ v structure to the 838 01 denied Smith 02 719 562 03 denied sentencing p 12 App La La 2 02 1 p 4 App La 845 La 5 03 30 539 3 Cir 1996 01 31 1 779 So 2d 808 So 331 2d 3 Cir 03 12 2 846 So 2d 786 789 2d So 1061 this court added further analysis deciding whether a sentence is shocking or makes no meaningful contribution to acceptable penal goals an appellate court may consider several factors including the nature of the offense the circumstances of the offender the legislative purpose behind the punishment and a comparison of the sentences imposed for similar crimes State v Smith 99 La 766 So 501 While a 2d 0606 7 00 6 comparison of sentences imposed for similar crimes may provide some insight it is well settled that sentences must be individualized to the particular offender and to the particular offense committed State v Batiste 594 So 1 La 1 Cir Additionally it is 2d App 1991 within the purview of the trial court to particularize the sentence because the trial judge remains in the best position to assess the aggravating and mitigating circumstances presented by each case State v Cook 95 La 674 So 957 958 2784 S 2d 96 31 In In the current case at the Mr sentencing hearing the trial court stated the Court takes into consideration the evidence Mayo presented just had in this matter And I have also taken into consideration the sentencing guidelines found in Code of Criminal at trial that we Procedure Article 894 This is 1 very tragic situation Mr Mayo you only 24 years old You have got a wife are a a very young man you are and three children And I know from the that you had a mother who was gravely injured in a fire and that you took care of her for some time And I know you have at least a brother with whom close As testimony result of your actions your children will not father in their lives And most tragic though is what you have done to the life of M According to her own testimony at trial she you have were a a loves you and probably blames herself for you going to jail Since you have gone to jail she has been to Crossroads twice she has been in patient in Shreveport once because of the 3 damage your actions have caused to her mental and emotional well being she can heal and have a normal happy life The trial court further noted that the life sentence is aggravated In to S R rape See La brief the defendant B M He asserts punishment imposed argues that there that a was no has stalker who case loved him and wanted to have sex no prior prison for his actions to criminal or the severe history deserves the same repeat violent offender For these considering his young age and that the victim rapes with him the life sentences are constitutionally excessive may reduce a presumptively constitutional sentence if it determines the sentence makes no measurable contribution to court acceptable goals of punishment or that the sentence amounts to nothing more than the purposeful imposition of pain and suffering and is grossly out of proportion to the severity of the crime as 2d applied to a particular defendant State v Dorthey 623 So 1276 81 1993 1280 La A court may only depart from the mandatory sentence if it finds clear and convincing evidence that would rebut the 1906 presumption of constitutionality State v Johnson 97 p 7 Downward departures from 2d 98 4 3 La 709 So 672 676 sentences should only occur in rare cases State v mandatory 2d Berniard 03 p 12 La 5 Cir 10 860 So 66 75 484 03 15 App writ denied 03 La 871 So 345 3210 3 2d 26104 When a defendant seeks a downward deviation from the mandatory sentence he has the burden to rebut the presumption of constitutionality by showing by clear and convincing evidence that he is exceptional namely that he is a victim of the legislature failure to s sentences that are meaningfully tailored to the gravity of the assign offense the culpability of the offender and the circumstances of the case Berniard 03 at 13 860 So at 75 A trial judge has broad 484 2d discretion when imposing a sentence and a reviewing court may not set a sentence on appeal aside absent He or a brutally reasons the defendant asserts that A trial of grave and irreparable injury suffered is due him He argues that he has asks whether he deserves to die in sentence in the mandatory D 42 14 any harm that she on with time Hopefully a manifest abuse of discretion is whether the trial court abused its discretion not another sentence State 67 07 p 5 1130 might have been more appropriate Zd App La 5 Cir 5 960 So 1127 07 29 4 The issue v whether Dorsey State v 07 pp 85 86 7acobs 887 writ 1753 11 denied Ct S 139 5 Cir App La 80 So 3d La 2 12 10 67 So 3d 11 24 5 468 cert 535 593 94 133 S U denied 2012 footnote omitted In State defendant v Kiger eighteen was thirteen The defendant 69 13 App La years old when he had argued that 13 30 10 5 Cir considering sex with his youth a 12 So 552 the 3d under the age of girl the life sentence was excessive The fifth circuit noted Supreme Court has previously held that a mandatory life sentence for aggravated rape is a valid exercise of the state s legislature prerogative to determine the length of sentence for The Louisiana crimes classified as felonies State v 412 Farria 2d So 577 2d 1982 La State v Prestridge 399 So 564 La The 1981 life sentence for aggravated rape is a not a violation of the mandatory prohibition against excessive punishment See State v Talbert 416 2d So 97 102 La and State v Lewis 98 La 5 Cir 672 App 1982 2818 4 2d 99 10 3 732 So 556 560 writ denied 99 La 760 00 20 2d So 334 Defendant did not urge Defendant has sentencing of a downward deviation at the time not shown any exceptional circumstances to justify a downward departure from the mandatory life sentence Additionally he has failed to carry his burden of proof that his life for sentence aggravated rape is unconstitutionally excessive Id at 560 61 In State 928 08 denied sentence for and no v 806 App Arabie 07 La La 11 08 21 aggravated penetration ed fail raped in to rape numerous was He further distinguish rapists ways that 996 So 2d 5 Cir 982 So 2d considering that the there was statutorily mandated life from murderers and contends that were far 142 The fifth circuit did not find this more a a life oral sex sentence child could be heinous than the present case Id at argument persuasive 5 only writ 136 1104 the defendant argued that excessive argued 08 11 3 a In the current case the defendant was was only victim who stated she was twelve years old at the time of the offenses The defendant one twenty and married with three children He manipulated by virtue in love with the of her age could not legally consent to engaging a young in sexual intercourse In fact he told the police that he had told the girl she should break because he could go to behavior but chose to put the correctly noted by the The defendant jail responsibility was on of the wrongness of his aware required in patient result of the emotional and mental issues she has suffered by clear the and convincing a up with him the child He continues to do trial court the victim has victimization of her at such girl who directly so treatment As as a related to his The defendant has failed to demonstrate young age evidence that he was entitled to a downward deviation of life sentence mandatory There is no merit to this assignment of error CONCLUSION The sentences of ten terms of life convictions twenty five battery a and two years juvenile are years imprisonment imprisonment imprisonment on the affirmed AFFIRMED 6 on for the aggravated rape each of the three counts of sexual single count of indecent behavior with
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