author: Judge Paula A. Brown

text:
    STATE of Louisiana v. Marcus O. CRETIAN
    NO. 2017-KA-0777
    Court of Appeal of Louisiana, Fourth Circuit.
    JANUARY 24, 2018
    Leon A. Cannizzaro, Jr., District Attorney, Donna R. Andrieu, Mithun B. Kamath, DISTRICT ATTORNEY'S OFFICE, ORLEANS PARISH, 619 S. White Street, New Orleans, LA 70119, COUNSEL FOR STATE OF LOUISIANA/APPELLEE
    Elbert Lee Guillory, 633 E. Landry Street, Opelousas, LA 70570, COUNSEL FOR DEFENDANT/APPELLANT
    (Court composed of Judge Paula A. Brown, Judge Tiffany G. Chase, Judge Marion F. Edwards, Pro Tempore )

      Retired Judge Marion F. Edwards served as judge pro tempore on this matter, and thereafter, as judge ad hoc by order of the Louisiana Supreme Court dated December 19, 2017.

   Judge Paula A. Brown

This is a criminal appeal. Defendant, Marcus O. Cretian seeks review of his conviction of resisting a police officer with force, and his habitual offender sentence of seven years at hard labor. For the reasons set forth below, Defendant's conviction and sentence are conditionally affirmed, and the matter is remanded to the district court for an evidentiary hearing for a determination of whether reasonable grounds exist to doubt Defendant's mental capacity and to warrant the appointment of a sanity commission.

PROCEDURAL HISTORY

On April 14, 2016, Defendant was charged by bill of information with one count of resisting a police officer with force, a violation of La. R.S. 14:108.2, and one count of possession of drug paraphernalia, a violation of La. R.S. 40:1023.

The State offered Defendant a plea bargain agreement on June 22, 2016-a sentence of two years and the State would not seek enhancement of the sentence under the habitual offender statute. Defendant rejected the offer. Prior to trial, on July 11, 2016, the State filed a motion in limine seeking to prohibit Defendant from referring, during the trial, to his possible sentencing exposure for the crime and under the habitual offender statute. The district court granted the motion.

On July 27, 2016, a six-person jury found Defendant guilty of resisting a police officer with force, but acquitted him of the charge of possession of drug paraphernalia.

Subsequently, on July 28, 2016, the State filed a habitual offender bill charging Defendant as a third felony offender. A sentencing hearing was held on

August 23, 2016, and the district court sentenced Defendant to eighteen months at hard labor. At the same proceeding, Defendant entered a plea of guilty as a third felony offender in exchange for a sentence of seven years at hard labor, which was below the penalty provided for under the habitual offender statute. During the proceeding, Defendant's attorney raised the question of Defendant's mental capacity, but did not assert Defendant did not understand that he was to entering a guilty plea or motion the court for the appointment of a sanity commission. The district court accepted Defendant's plea as an habitual offender, vacated Defendant's previous sentence, and sentenced him to seven years at hard labor, with credit for time served to run concurrent with any other sentence.

Defendant filed a written motion entitled "Application for Appointment of Sanity Commission to Examine Defendant and to Report on Mental Condition at the Time of the Alleged Offense, and for a Hearing as to his Present Capacity to Proceed" ("motion seeking appointment of sanity commission") that was date-stamped October 4, 2016, by the clerk of court's office.

On January 19, 2017, Defendant orally sought an appeal, and on February 22, 2017, a written motion for appeal was filed and granted the same day.

More than four months after the filing of the motion seeking appointment of sanity commission and more than one month after the filing of the motion for appeal, on March 30, 2017, a hearing on Defendant's motion seeking appointment of sanity commission was held. The district court denied Defendant's motion.

This appeal followed.

FACTS

Louisiana State Trooper Alex Nezgoginsky ("Trooper Nezgoginsky"), a fifteen-year law enforcement veteran, was assigned to the French Quarter Task Force. On February 22, 2016, Trooper Nezgoginsky participated in the arrest of Defendant in the 800 block of Bourbon Street. Trooper Nezgoginsky was on foot patrol on Bourbon Street with his partner, Huey McCartney ("Trooper McCartney"). Trooper Nezgoginsky and Trooper McCartney received a tip regarding illegal activity occurring at 808 Bourbon Street while on the corner of Bourbon and St. Ann. The tip was from the owner of the property. The troopers were about fifteen feet away from Defendant who was sitting on the steps of the property. As they approached, Trooper Nezgoginsky noticed "no trespassing" signs were posted on the entrance outside the apartment where Defendant was sitting. The troopers, dressed in uniform, initiated a conversation with Defendant. Defendant quickly got up, pushed Trooper McCartney, and ran. Trooper Nezgoginsky grabbed Defendant by the shirt; however, Defendant broke free and continued running toward the 900 block of Bourbon. Trooper Nezgoginsky told Defendant to stop, but he continued running. Trooper Nezgoginsky deployed his taser, but the taser hooks had no contact so Defendant did not receive the full effect of the taser charge. Defendant continued to run. As Defendant approached a trash can on the sidewalk, he stopped; and as Trooper Nezgoginsky advanced, Defendant pushed the approximately sixty pound trash can toward the trooper. Trooper Nezgoginsky testified the trash can hit him on the left side of his leg.

On re-direct, Trooper Nezgoginsky read his report of the trash can incident stating, "Cretian ran down Bourbon Street towards the main street and pushed the metal trash can to hit my left leg." Trooper Nezgoginsky testified he deployed his taser a second time. Again, the taser did not work. Trooper Nezgoginsky continued explaining that after Defendant got into a fighting stance, he grabbed him by the front of his shirt and forced him to the ground. As Trooper Nezgoginsky continued to give Defendant verbal commands to put his hands behind his back, Defendant attempted to stand up and started kicking at Troopers Nezgoginsky and McCartney. Trooper McCartney detonated his taser to stun Defendant and the arrest was accomplished.

Trooper McCartney, who had been a Louisiana State Trooper since September 2008, testified that as he and Trooper Nezgoginsky approached Defendant, they advised him to drop what he was holding and show his hands. Trooper McCartney asked Defendant whether he lived in the apartment upon whose steps he was sitting. Defendant did not answer, but got up aggressively and pushed Trooper McCartney in his shoulder. Defendant ran down the street, and the troopers chased him. Trooper McCartney recalled that Trooper Nezgoginsky attempted to tase Defendant twice without success. Although Trooper McCartney testified he was behind Defendant and Trooper Nezgoginsky, he stated he saw Defendant push the trash can into the path of his partner. At the end of the chase, Trooper McCartney detonated his taser and it connected. Trooper McCartney explained he stunned Defendant because Defendant, while on the ground, would not allow the troopers to handcuff him.

Molly Thomas ("Ms. Thomas"), an investigator employed by defense counsel, testified she took photographs of 800 block of Bourbon Street. Ms. Thomas stated there were no signs relating to loitering on the building. Additionally, she noted there were thirteen surveillance cameras in the area of 808 Bourbon Street. On cross-examination by the State, it was determined that Ms.

Thomas was unaware if the surveillance cameras were in place or functioning on February 22, 2016, the date of Defendant's arrest.

ERRORS PATENT

In accordance with La. C.Cr.P. art. 920, all appeals are reviewed by this court for errors patent on the face of the record. A review of the record indicates two errors patent.

The first error patent is the district court erred in failing to consider Defendant's motion seeking appointment of sanity commission on the merits before granting Defendant's appeal. The statutes governing a defendant's mental capacity to proceed are set forth in La. C.Cr.P. art. 641, et seq. Louisiana Code Criminal Procedure Article 642 provides:

The defendant's mental incapacity to proceed may be raised at any time by the defense, the district attorney, or the court. When the question of the defendant's mental incapacity to proceed is raised, there shall be no further steps in the criminal prosecution, except the institution of prosecution, until the defendant is found to have the mental capacity to proceed.

Louisiana Courts recognize as an error patent a trial court's failure to comply with La. C.Cr.P. art. 642. State v. Camper , 08-0314 (La.App. 4 Cir. 10/1/08), 996 So.2d 571 and State v. Nicholas, 587 So.2d 16 (La.App. 3 Cir.1991).

At the August 23, 2016 habitual offender proceeding, Defendant's attorney mentioned to the district court his concern of the Defendant's mental capacity. During the inquiry, the following pertinent exchange occurred:

THE COURT:
I take it you can read, write and understand the English language?
THE DEFENDANT, CRETIAN:
Yes, sir.
THE COURT:
Do you understand what is going on here today?
THE DEFENDANT, CRETIAN:
Yes, sir.
THE COURT:
Do you understand the various rights that you have waived?
THE DEFENDANT, CRETIAN:
Yes, sir.
THE COURT:
Mr. Guillory, do you believe that Mr. Cretian understands the various rights that he has waived?
MR. GUILLORY:
I believe that he understands, your Honor. Although, as I have represented to the Court earlier I do have some serious concerns about his mental capacity.
THE COURT:
Do you believe that he doesn't understand what it is that I just shared with him?
MR. GUILLORY:
I believe that he understands.
THE COURT:
I ask you again, sir, is it your desire to admit that you are a triple offender in exchange for a sentence of 7 years in the Department of Corrections?
THE DEFENDANT, CRETIAN:
Yes, sir.

After the colloquy, the district court accepted the habitual offender plea, vacated the underlying sentence, and sentenced Defendant to seven years at hard labor, in conformity with the plea agreement.

On October 4, 2016, Defendant filed a written motion seeking appointment of sanity commission to examine his capacity at the time of the offense and his present capacity to proceed. Defendant, orally motioned for an appeal on January 19, 2017, and on February 22, 2017, a written motion for appeal was filed and granted the same day.

At the March 30, 2017 hearing on the motion seeking appointment of sanity commission, the district court denied the motion but did not consider the merits of the motion. The district court stated in pertinent part:

THE COURT: And I've got to be honest with you, we've done some independent research because I thought to myself, how does the Court undo what has already happened in this case? In other words, there was a trial. The question becomes whether or not he was incompetent to proceed at the time of the trial because now we're past the trial, and I can't find anything in the law book that allows me to. A, give you a competency examination at this point, and, B, more importantly, if I gave it to you, what would the remedy be? It's only about competency to proceed. We already proceeded. It would be competency to proceed to do what?

The Louisiana Supreme Court has recognized that the issue of mental capacity to proceed may be raised after conviction. State v. McCoy , 14-1449, p. 115 (La. 10/19/16), 218 So.3d 535, 611 (citing State v. Clark , 367 So.2d 311, 312 (La. 1979) ). In State ex rel. Seals v. State , 00-2738, p. 1 (La. 10/25/02), 831 So.2d 828, 830, the defendant's lack of mental competency claim was raised for the first time in the defendant's application for post-conviction relief filed in the trial court. In Seals , in addressing whether a retrospective determination of defendant's capacity to stand trial may be made from the evidence in the record, the Supreme Court set forth the applicable law when a defendant's mental capacity is raised and opined as follows:

At the outset, we note the longstanding precept that a defendant does not have an absolute right to the appointment of a sanity commission simply upon request. State v. Volson, 352 So.2d 1293 (La.1977). A trial judge is only required to order a mental examination of a defendant when there are reasonable grounds to doubt the defendant's mental capacity to proceed. Id. ; La.Code Crim. Proc. art. 643. It is well established that "reasonable grounds" exist where one should reasonably doubt the defendant's capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to
assist in preparing his defense. Drope v. Missouri, 420 U.S. 162, 171, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975) ; [ State v .] Snyder , [ 98-1078 (La. 4/14/99), 750 So.2d 832] at 851. To determine a defendant's capacity, we are first guided by La.Code Crim. Proc. arts. 642, 643, and 647. As a general matter, La.Code Crim. Proc. art. 642 allows "[t]he defendant's mental incapacity to proceed [to] be raised at any time by the defense, the district attorney, or the court." The Article additionally requires that "[w]hen the question of the defendant's mental incapacity to proceed is raised, there shall be no further steps in the criminal prosecution ... until the defendant is found to have the mental capacity to proceed." Id. Next, Article 643 provides in pertinent part, "The court shall order a mental examination of the defendant when it has reasonable ground to doubt the defendant's mental capacity to proceed...." Last, if a defendant's mental incapacity has been properly raised, the proceedings can only continue under La.Code Crim. Proc. art. 647 which provides:
The issue of the defendant's mental capacity to proceed shall be determined by the court in a contradictory hearing. The report of the sanity commission is admissible in evidence at the hearing, and members of the sanity commission may be called as witnesses by the court, the defense, or the district attorney....
This protection, however, is not to say that every time a defendant feigns incapacity the court must order a full-blown sanity commission. In State v. Berry, 391 So.2d 406, 411 (La.1980), we firmly held that the trial court is granted great discretion in determining if a defendant should be afforded a mental examination to determine capacity.
Indeed, where a trial judge finds enough evidence to doubt a defendant's capacity, the court may order the defendant be examined by a single psychiatrist to satisfy requirements of La.Code Crim. Proc. art. 643. There is no need for a sanity commission to be appointed each time capacity of a defendant is questioned. That being said, questions regarding a defendant's capacity must be deemed by the court to be bona fide and in good faith before a court will consider if there are "reasonable grounds" to doubt capacity. Where there is a bona fide question raised regarding a defendant's capacity, the failure to observe procedures to protect a defendant's right not to be tried or convicted while incompetent to stand trial deprives him of his due process right to a fair trial. Drope at 172, 95 S.Ct. 896 ; Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966) ; State v. Rogers, 419 So.2d 840 (La.1982). At this point, the failure to resolve the issue of a defendant's capacity to proceed may result in nullification of the conviction and sentence under State v. Nomey, 613 So.2d 157, 161-62 (La.1993), or a nunc pro tunc hearing to determine
competency retrospectively under State v. Snyder, 98-1078 (La. 4/14/99), 750 So.2d 832.

Id. , 00-2738 at pp. 5-6, 831 So.2d at 832-33.

In State v. Cyriak , 96-661 (La.App. 3 Cir. 11/6/96), 684 So.2d 42, 46, the appellate court, as an assigned error, found the trial court's failure to consider the merits of the defendant's post-conviction motion seeking appointment of sanity commission, raised at the habitual offender proceeding, required the issue be remanded for a hearing. The reviewing court found the trial court erred in denying the defendant's motion without determining if there were reasonable grounds to doubt the defendant's mental capacity to proceed. The appellate court noted the defendant was never given an opportunity to present evidence on his mental capacity to proceed nor did the trial court take any steps to satisfy itself as to the defendant's mental capacity to proceed. The appellate court affirmed the defendant's conviction, vacated the sentence, and remanded the case to the trial court for a determination of the defendant's mental capacity to proceed.

In the case sub judice , the district court failed to comply with La. C.Cr.P. art. 642. As a result, we remand the matter to the district court to determine whether there were reasonable grounds to doubt Defendant lacked mental capacity to proceed and to warrant the appointment of a sanity commission.

The second error patent is the district court was divested of jurisdiction at the time it heard Defendant's motion seeking appointment of sanity commission. Louisiana Code Criminal Procedure Article 916 provides:

The jurisdiction of the trial court is divested and that of the appellate court attaches upon the entering of the order of appeal. Thereafter, the trial court has no jurisdiction to take any action except as otherwise provided by law and to:
(1) Extend the return day of the appeal, the time for filing assignments of error, or the time for filing per curiam comments in accordance with Articles 844 and 919.
(2) Correct an error or deficiency in the record.
(3) Correct an illegal sentence or take other appropriate action pursuant to a properly made or filed motion to reconsider sentence.
(4) Take all action concerning bail permitted by Title VIII.
(5) Furnish per curiam comments.
(6) Render an interlocutory order or a definitive judgment concerning a ministerial matter not in controversy on appeal.
(7) Impose the penalty provided by Article 844.
(8) Sentence the defendant pursuant to a conviction under the Habitual Offender Law as set forth in R.S. 15:529.1.

In light of our decision to remand this matter for hearing to determine whether reasonable grounds existed to doubt Defendant lacked mental capacity pursuant to La. C.Cr.P. art. 642, we find this error harmless.

DISCUSSION

The Defendant assigns four errors which will be discussed separately.

Assignment of Error No. 1: Insufficiency of the Evidence

Defendant argues the evidence was insufficient to support his conviction of resisting arrest with force. Defendant does not contest he fled from police; rather, he challenges his conviction on the ground the State failed to prove he used "force." Defendant explains he accidentally knocked over the trash can, and had no criminal intent to harm the trooper. Defendant asserts this is corroborated by Trooper McCartney's testimony the trash can was pushed by Defendant and fell into Trooper Nezgoginsky's path.

When issues are raised on appeal as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court must first determine the sufficiency of the evidence. State v. George , 15-1189, p. 9 (La.App. 4 Cir. 11/9/16), 204 So.3d 704, 711 (quoting State v. Marcantel , 00-1629, p. 8 (La. 4/3/02), 815 So.2d 50, 55 ). This Court, in State v. Hickman , 15-0817, p. 9 (La. App. 4 Cir. 5/16/16), 194 So.3d 1160, 1165-1166 (quoting State v. Brown , 03-0897, p. 22 (La. 4/12/05), 907 So.2d 1, 18 ), set forth the standard for determining a claim of insufficiency of the evidence as follows:

When reviewing the sufficiency of the evidence to support a conviction, Louisiana appellate courts are controlled by the standard enunciated in Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Under this standard, the appellate court "must determine that the evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime had been proved beyond a reasonable doubt." State v. Neal , [20] 00-0674 (La. 6/29/01), 796 So.2d 649, 657 (citing State v. Captville , 448 So.2d 676, 678 (La.1984) ).
When circumstantial evidence is used to prove the commission of the offense, La. R.S. 15:438 requires that "assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence." Neal , 796 So.2d at 657. Ultimately, all evidence, both direct and circumstantial must be sufficient under Jackson to prove guilt beyond a reasonable doubt to a rational jury. Id. (citing State v. Rosiere , 488 So.2d 965, 968 (La. 1986) ).

"If rational triers of fact could disagree as to the interpretation of the evidence, the rational trier's view of all of the evidence most favorable to the prosecution must be adopted." State v. Green , 588 So.2d 757, 758 (La.App. 4 Cir. 1991). It is not the function of the appellate court to assess the credibility of witnesses or reweigh the evidence. State v. Scott , 12-1603, p. 11 (La.App. 4 Cir. 12/23/13), 131 So.3d 501, 508 (citing

State v. Johnson , 619 So.2d 1102, 1109 (La.App. 4 Cir. 1993) ). Credibility determinations, as well as the weight attributed to the evidence, are soundly within the province of the fact finder. Id. (citing State v. Brumfield , 93-2404 (La.App. 4 Cir. 6/15/94), 639 So.2d 312, 316 ). Moreover, conflicting testimony as to factual matters is a question of weight of the evidence, not sufficiency. State v. Jones , 537 So.2d 1244, 1249 (La.App. 4 Cir. 1989). Absent internal contradiction or irreconcilable conflict with physical evidence, a single eyewitness' testimony, if believed by the fact finder, is sufficient to support a factual conclusion. State v. Marshall , 04-3139, p. 9 (La. 11/29/06), 943 So.2d 362, 369.

Defendant was convicted of resisting an officer with force, a violation of La. R.S. 14:108.2 which provides in part:

A. Resisting a police officer with force or violence is any of the following when the offender has reasonable grounds to believe the victim is a police officer who is arresting, detaining, seizing property, serving process, or is otherwise acting in the performance of his official duty:
(1) Using threatening force or violence by one sought to be arrested or detained before the arresting officer can restrain him and after notice is given that he is under arrest or detention.
(2) Using threatening force or violence toward or any resistance or opposition using force or violence to the arresting officer after the arrested party is actually placed under arrest and before he is incarcerated in jail.
(3) Injuring or attempting to injure a police officer engaged in the performance of his duties as a police officer.
(4) Using or threatening force or violence toward a police officer performing any official duty.

Specific criminal intent in not an element of La. R.S. 14:108.2. See State v. Williams , 11-427, pp. 11-12 (La.App. 5 Cir. 2/28/12), 88 So.3d 1102, 1111.

As guidance, we reviewed several cases where Louisiana courts have found sufficient evidence to support a conviction of resisting arrest with force. In State v. Dorsey , 12-1553 (La.App. 4 Cir. 8/28/13), 123 So.3d 814, this Court affirmed the defendant's convictions for two counts of resisting a police officer with force. In Dorsey , police officers saw the defendant and another man exit an alleyway. When the men saw the police officers, they separated and the defendant walked quickly toward a gate. The officers identified themselves as police and ordered the defendant to stop. The defendant ignored the officers' instructions, quickened his pace, and entered the gate. One of the officers grabbed the defendant's shoulder to detain him. The defendant reached back and hit the officer in the head. As the defendant struggled with one officer, the other officer entered the gate. The defendant squared off against the officers and was tackled by the second officer. While trying to handcuff the defendant as they were on the ground, the defendant hit both officers. In State v. Turner , 51,228 (La.App. 2 Cir. 4/5/17), 217 So.3d 601, the court affirmed the defendant's conviction for the responsive verdict of attempted resisting a police officer with force or violence. In Turner , officers knocked on the defendant's dorm room and identified themselves as police officers. The defendant was suspected of domestic violence. When the defendant did not respond to the officers' knock, they had a residential advisor unlock the defendant's door. Once the officers entered the dorm suite, they again identified themselves as police officers and knocked on the defendant's bedroom door numerous times before he opened the door. The officers advised him he was under arrest and read him his rights. After placing the handcuff on one of the defendant's wrists, the defendant jerked his arm loose and refused to allow the police to handcuff him. Another officer intervened and the defendant was eventually handcuffed and arrested. Neither of the officers was injured; however the defendant was described as combative during the arrest and using force to prevent the officers from handcuffing him.

In the case sub judice , both of the state troopers were dressed in uniform and Defendant was aware the officers were attempting to detain him in the performance of their duties. Both troopers stated Defendant pushed Trooper McCartney. Trooper Nezgoginsky testified Defendant shoved a trash can into his path which hit him, and Trooper McCartney recalled seeing Defendant push a trash can in Trooper Nezgoginsky's path. Both troopers testified that Defendant was combative and refused to allow the troopers to handcuff him.

Applying the Jackson standard, we find the State presented evidence beyond a reasonable doubt that Defendant committed the offense of resisting a police officer with force.

This assignment of error lacks merit.

Assignment of Error No. 2: Excessive Sentence

Defendant contends his seven year sentence is excessive. He complains his sentence should not have been enhanced under the habitual offender law as the offense involved a petty offense.

Defendant entered a plea agreement with the State to plead guilty as a third felony offender in return for a sentence of seven years at hard labor. Louisiana Code Criminal Procedure Article 881.2(A)(2) provides that "[t]he 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." This provision applies to sentences imposed in conformity with pleas entered in habitual offender proceedings. See

State v. Miller , 00-0218, pp. 16-17 (La.App. 4 Cir. 7/25/01), 792 So.2d 104, 116 and State v. Fazande , 05-901, p. 9 (La.App. 5 Cir. 3/28/06), 927 So.2d 507, 513 (citing State v. Bolton, 02-1034 (La.App. 5 Cir. 3/11/03), 844 So.2d 135, 142, writ denied, 03-1159 (La. 11/14/03), 858 So.2d 417 ); Cf. State v. Jochum, 07-0815, pp. 2-4 (La.App. 4 Cir. 4/9/08), 982 So.2d 926, 927-28. Thus, Defendant is precluded from challenging his habitual offender sentence on appeal.

This assignment of error lacks merit.

Assignment of Error No. 3: Prosecutorial Misconduct

Defendant alleges the State committed prosecutorial misconduct. Defendant argues the State wrongfully applied the habitual offender law to him-"an incompetent young man." Defendant references the district court's discussion at sentencing where the court questioned whether Defendant detrimentally relied on his sentencing exposure being only two to six years. The district court stated:

This Court asked on the Record on enumerable occasions whether or not because of the maximum possible sentence was 3 years as to whether Mr. Cretian's exposure was 2 to 6 years. The State never corrected this Court on the Record. It was only after the trial had concluded that the state informed this Court that, oops, by the way, he is a triple lifer.

This Court has not addressed prosecutorial vindictiveness in the context of the filing of an habitual offender bill. We find it instructive to consider the jurisprudence from other Louisiana courts. In State v. Stewart , 27,049 (La.App. 2 Cir. 5/10/95), 656 So.2d 677, the defendant, on appeal, assigned as an error that the prosecutor acted vindictively in filing an habitual offender bill against him. The court held a defendant has the burden of proving, by a preponderance of the evidence, the affirmative defense of prosecutorial vindictiveness, and a reviewing court will examine the state's actions in the context of the entire proceedings. Stewart , 27,049 at p. 4, 656 So.2d at 680 (citing U.S. v. Krezdorn, 718 F.2d 1360 (5th Cir.1983) ). The Stewart court explained:

The events in the case will create a presumption of vindictiveness if, to a reasonable mind, the filing of the habitual offender bill can be explained only by a desire to deter or punish the exercise of legal rights. See Id. ; U.S. v. Esposito, 968 F.2d 300 (3d Cir.1992). But where the government's conduct is equally attributable to legitimate reasons, a defendant must prove actual vindictiveness for a presumption will not apply. U.S. v. Esposito, supra . A mere opportunity for vindictiveness does not suffice. U.S. v. Goodwin, 457 U.S. 368, 102 S.Ct. 2485, 73 L.Ed.2d 74 (1982) ; U.S. v. Esposito, supra .

Id. See also, State v. Wesley , 49,438, pp. 5-6 (La.App. 2 Cir. 2/26/15), 161 So.3d 1039, 1043-44, State v. Darensbourg , 06-572, p. 5 (La.App. 5 Cir. 12/27/06), 948 So.2d 1128, 1132, and State v. Orange , 02-071, p. 9 (La.App. 1 Cir. 4/11/03), 845 So.2d 570, 578 ; Cf. State v. Poche, 05-1042, p. 16 (La.App. 3 Cir. 3/1/06), 924 So.2d 1225, 1236. In Wesley , the court explained, "[t]he use of the habitual offender law alone will not create a presumption of prosecutorial vindictiveness." Id. , 49,438 at p. 6, 161 So.3d at 1044 (citing State v. Wilson, 44,586 (La.App. 2 Cir. 10/28/09), 26 So.3d 210, writ denied, 09-2655 (La. 1/28/11), 56 So.3d 973 ); See also , Darensbourg , 06-572 at p. 5, 948 So.2d at 1132. The discretion to charge a defendant under the habitual offender statute lies with the district attorney. La. C.Cr.P. art. 61 ; La. R.S. 15:529.1. A defendant may be charged as an habitual offender at any time, even after conviction and sentence. La. R.S. 15:529.1(D).

Because the State had discretion to file the habitual offender bill in this case, Defendant must prove by a preponderance of the evidence actual vindictiveness. We find he fails to do so. The record indicates the first time Defendant mentioned his lack of mental capacity was at the habitual offender proceeding. Further, the State informed Defendant, starting with the first plea offer, of the possibility of being charged as a habitual offender and Defendant rejected the offer. Following, in July 2016, the State filed a "Motion in Limine to Prohibit the Defense from Referring to Possible Sentences either for the Crime or Under the Habitual Offender Statute ( La. C.E. Article 403 )." In the motion, the State prayed Defendant be prohibited from mentioning the possible sentence for the crime and under the habitual offender statute. The minute entry of July 11, 2017, indicates a hearing was held on the State's motion in limine , and the district court granted the motion.

This assignment of error lacks merit.

Assignment of Error No. 4: Lack of Mental Capacity

Defendant argues he lacked the mental capacity to have been tried. In support, Defendant contends he has been recognized as being in the class of individuals with the most significant and severe disabilities by the State of Louisiana Office of Workforce Development. Defendant asserts his severe mental disabilities were apparent when he failed to accept the initial plea agreement offered by the State and his inexperienced trial attorney failed to recognize his lack of capacity.

Based upon this Court's finding that the error patent requires the case be remanded for an evidentiary hearing for the district court to determine whether reasonable grounds exist to doubt Defendant's mental capacity and to warrant the appointment of a sanity commission, we pretermit discussion of this assigned error.

CONCLUSION

For the reasons set forth below, Defendant's conviction and sentence are conditionally affirmed, and the matter is remanded to the district court for an evidentiary hearing for a determination of whether reasonable grounds exist to doubt Defendant's mental capacity and to warrant the appointment of a sanity commission.

CONVICTION AND SENTENCE CONDITIONALLY AFFIRMED; REMANDED WITH INSTRUCTIONS.

      The State charged Defendant with the prior convictions of attempted distribution of cocaine, violations of La. R.S. 14:27 and 40:967(B)(1) and distribution of cocaine, a violation of La. R.S. 40:967(B)(1).

      In August 2016, Defendant filed a motion for a new trial and for post-conviction judgment of acquittal. The motions were denied as moot.

      The United States Supreme Court granted certiorari in part on other grounds in McCoy v. Louisiana , --- U.S. ----, 138 S.Ct. 53, 198 L.Ed.2d 781 (2017).

      The district court did not refer to the specific proceeding in which it inquired about Defendant's maximum sentencing exposure and the record before this court does not contain a transcript of a proceeding, held before sentencing, where the exchange occurred.

      La. C.Cr.P. art. 61 provides:
      Subject to the supervision of the attorney general, as provided in Article 62, the district attorney has entire charge and control of every criminal prosecution instituted or pending in his district, and determines whom, when, and how he shall prosecute.
      La. R.S. 15:529.1(D)(1)(a) provides in part:
      If, at any time, either after conviction or sentence, it shall appear that a person convicted of a felony has previously been convicted of a felony under the laws of this state, or has been convicted under the laws of any other state, or of the United States, or of any foreign government or country, of a crime, which, if committed in this state would be a felony, the district attorney of the parish in which the subsequent conviction was had may file an information accusing the person of a previous conviction....


source: Caselaw Access Project

author: Judge Daniel L. Dysart

license: Public Domain

text:
    Leon Grant HIATT, Jr. v. Lauren Michelle DUHE
    NO. 2017-CA-0574
    Court of Appeal of Louisiana, Fourth Circuit.
    JANUARY 31, 2018
    L. Grant Hiatt, Jr., 3618 Clematis Street, New Orleans, LA 70122, PLAINTIFF/APPELLANT/IN PROPER PERSON
    Evelyn A. Bryant, Southeast Louisiana Legal Services, 1010 Common Street, Suite 1400 A, New Orleans, LA 70112, COUNSEL FOR DEFENDANT/APPELLEE
    (Court composed of Judge Edwin A. Lombard, Judge Daniel L. Dysart, Judge Tiffany G. Chase )
   Judge Daniel L. Dysart

Leon Grant Hiatt, Jr., and Lauren Michelle Duhe are the parents of two sons, S.R.H. (d/o/b 4/25/07), and J.E.H. (d/o/b 4/27/10). On August 15, 2016, Mr. Hiatt filed a Petition to Establish Custody, to which Ms. Duhe responded with an Answer and Reconventional Demand and Request for Interim Visitation Schedule. A final hearing was held on February 16, 17 and 21, 2017, after which the trial court rendered judgment, awarding joint custody, with Ms. Duhe as the domiciliary parent. It is from this judgment that Mr. Hiatt appeals.

BACKGROUND:

At the time Mr. Hiatt filed his Petition to Establish Custody, the parties had been together for eleven years, living in the same home, which is owned by Mr. Hiatt. After the birth of their first child, Ms. Duhe left her employment to care for their son, and she remained out of the workforce until the younger son started school. Mr. Hiatt is a special education teacher in the St. Charles Parish school district, and works in Laplace, Louisiana. Ms. Duhe is employed as a massage therapist at a local spa. In August of 2016, Ms. Duhe moved out of the house, leaving the children in the care of Mr. Hiatt.

In his petition, Mr. Hiatt stated that he was the primary caregiver to the boys, that he taught the boys to read, that his house was the only home the boys had ever known, and that it was uniquely suited to raising children. He further claimed that Ms. Duhe suffered from depression and anxiety, and therefore, it was not in the best interest of the children for her to have custody. He admitted that both he and

Ms. Duhe loved the children, but that he was better suited to care for them during the school year.

Ms. Duhe answered the petition and reconvened against Mr. Hiatt, seeking sole custody of the children, with visitation for Mr. Hiatt. Alternatively, she sought joint custody with her being designated as the primary custodial parent. In her reconventional demand, Mr. Duhe made allegations that Mr. Hiatt had physically, emotionally and mentally abused her for several years prior to the break-up. Additionally, she claimed that Mr. Hiatt abused alcohol and drugs, and was manipulating the children's affections by telling them about the court proceedings. Ms. Duhe alleged that Mr. Hiatt did not feed the children wholesome meals, sent the children to school dirty and in ill-fitting clothes, and did not supervise their homework or other school responsibilities.

On September 1, 2016, Ms. Duhe filed an Emergency Ex Parte Motion for Emergency Temporary Custody and Specified Visitation Schedule pursuant to La.C.C.P. Article 3945. The trial court signed an order on September 8, 2016, granting Ms. Duhe temporary custody, with specified visitation for Mr. Hiatt. The trial court set an October 6 hearing for Mr. Hiatt to show cause why the temporary order of custody should not remain in effect until a permanent order was made effective.

A hearing on the rule for temporary custody was held on October 12, 2016. The trial court ordered that the parties be granted joint custody with Ms. Duhe designated as the domiciliary parent. A trial date for a determination of permanent custody was set for December 20, 2016.

Prior to December 20, Mr. Hiatt filed a motion to appoint a custody evaluator, and to continue the trial on the issue of permanent custody until the evaluation was completed. He also filed an ex parte motion to allow the two children to testify pursuant to Watermeier. Ms. Duhe opposed the motion to allow the children to testify, arguing that the court had already spoken with the eldest child before the last hearing. She also argued that the appointment of a custody evaluator would unnecessarily delay the trial.

A trial did not commence on December 20, but was reset for February 17, 2017. Mr. Hiatt refiled his motion to have the children testify, which was denied. He sought review from this Court, which requested a per curiam from the trial court.

The trial court explained that it was concerned about interviewing children of such a young age. Because of these concerns, the judge explained that she decided to interview the children at their school. She gave the parties an opportunity to be present and to submit questions. Neither party attended the interview, but both submitted questions. The judge explained that the elder child became so emotionally distraught during the interview that she was forced to end it, and chose not to interview the younger child. Based on these events, the trial court, in its discretion, denied Mr. Hiatt's motion to have the children testify at trial. Finding no abuse of discretion, this Court denied Mr. Hiatt's writ application.

Following the hearing in February, but before the court rendered judgment, Ms. Duhe filed an Emergency Motion for Modification of Existing Judgment alleging that Mr. Hiatt was alienating the children against Ms. Duhe and the children's therapist, and was continuing to discuss the ongoing litigation with the children, despite the court's warnings not to do so. Ms. Duhe sought to have the court order immediate parenting classes, co-parenting classes and counseling/therapy for Mr. Hiatt. The trial court set the motion for hearing on March 23, 2017.

On March 30, 2017, the trial court rendered judgment awarding joint custody, and designating Ms. Duhe as the domiciliary parent. Mr. Hiatt was awarded physical custody every Monday and Tuesday from dismissal of school until 7 p.m., and on alternating weekends from dismissal of school on Friday until 6 p.m. on Sunday. A detailed summer and holiday schedule was set forth, with custody equaling as close to fifty percent of the year as possible to each parent. Instructions for mandatory evacuation were set forth. The parties were ordered to attend co-parenting classes, with proof of compliance reported to the court. Mr. Hiatt was ordered to participate in a parenting class at Children's Hospital. Last, the trial court set forth specific co-parenting guidelines for the parties to follow.

DISCUSSION:

Child custody decisions are reviewed under an abuse of discretion standard. Leard v. Schenker, 06-1116, p. 3 (La. 6/16/06), 931 So.2d 355, 357. Thus, rulings by a trial court in child custody matters are entitled to great weight and the rulings will not be disturbed absent a clear showing of abuse. AEB v. JBE, 99-2668, p. 7 (La. 11/30/99), 752 So.2d 756, 761. Every child custody case must be viewed based on its own particular facts and the relationships involved, with the goal of determining the best interests of the child. Mulkey v. Mulkey, 12-2709, p. 15 (La. 5/7/13), 118 So.3d 357, 367 ; Jaligam v. Pochampally , 16-0249, p. 6 (La. App. 4 Cir. 12/7/16), 206 So.3d 298, 303. Further, a reviewing court may not simply substitute its own findings for that of the trial court. Jaligam, 16-0249, p. 6, 206 So.3d at 303.

An award of custody is made pursuant to La. Civ. Code art. 131. La. Civ. Code art. 134 sets forth twelve non-exclusive factors for the court to consider in awarding custody, of which the trial court shall consider all relevant factors in determining the best interests of the child. The trial court is not bound to a mechanical evaluation of all of the statutory factors listed in the article, but should consider each case on its own facts in light of the factors. Robertson v. Robertson, 10-926, p. 16, 64 So.3d 354, 363.

In matters of credibility, a reviewing court must give great deference to the trial court's findings. Dvilansky v. Correu, 16-0279, p. 7 (La.App. 4 Cir. 10/26/16), 204 So.3d 686, 689. The trial court is in the best position to evaluate the demeanor and mannerisms of the witnesses. Id., 16-0279,p. 8, 204 So.3d at 690. When conflicting testimony exists, reasonable evaluations of credibility and reasonable inferences of fact made by the trial court are not to be disturbed. Id., citing Stobart v. State through Dept. of Transp. and Development , 617 So.2d 880, 882-83 (La. 1993).

Mr. Hiatt's brief does not clearly set forth his assignments of error as required by Uniform Rules-Courts of Appeal 2-12.4. However, it appears that his first assignment of error relates to the interim custody order issued by the trial court. He argues that the trial court erred in not attending a case management meeting, which led to the erroneous issuance of the temporary order.

As the order of temporary custody is no longer in effect, this issue is moot.

In his second assignment of error, Mr. Hiatt argues that the trial court erred in not allowing the minor children to testify at the hearing to determine custody. Mr. Hiatt chose not to attend the interview that the trial court conducted of the elder child at his school. His allegations of error are based on his reading of the transcript of the interview. As explained herein, the trial judge was very sensitive to the emotional state of the child, and made the decision to cut the interview short.

Based on the judge's observance of the child's emotional state in a one-on-one interview, we cannot say that she abused her discretion in not allowing the children to testify in open court. The trial judge was clearly in a superior position to make such a determination.

Mr. Hiatt next argues that the trial court erred in not appointing a custody evaluator. Ms. Duhe argues that the appointment of an evaluator is precluded when there have been allegations of domestic abuse, citing La. R.S. 9:364. The parties were allowed to present their arguments at a pre-trial hearing. The trial court heard evidence concerning Mr. Hiatt's manipulation of the children, encouraging them to disrespect their mother and to disregard her instructions. Further, despite warnings from the trial court to not discuss the case with the children, there was evidence presented that Mr. Hiatt had read to the children from the transcript of the Watermeier hearing.

Louisiana Revised Statute 9:331 provides that a trial court may order a custody evaluation. After hearing the evidence presented by the parties, the trial court decided that an evaluation would not benefit the parties or the court in making its ruling on custody. Based on our reading of the record, we cannot say that the trial court abused its discretion.

Mr. Hiatt argues that the trial court erred in finding Ms. Duhe to be truthful in making allegations against him of drug and alcohol use, and physical and verbal abuse.

As cited above, a trial court is in the best posture to evaluate credibility. Additionally, we note that the trial court did not state that it considered any allegations of abuse in making its decision, but rather specifically stated in its Reasons for Judgment and in open court that it found Mr. Hiatt to be manipulative and disingenuous. Thus, we cannot say that the trial court abused its discretion in its credibility determinations.

Mr. Hiatt takes exception with the trial court's Reasons for Judgment, arguing that "even a loose analysis will find them spurious." He argues that the significant time restraints with his children placed on him by the trial court, prevented him from helping the children with homework. Therefore, it was error for the trial court to hold that against him in reaching its decision. Mr. Hiatt fails to consider that he testified that he believed it more beneficial for the children to be able to "unwind" after school with at least an hour of play time before beginning any homework.

Again, the trial court heard testimony and received evidence in this case during several hearings prior to and including the hearing to make a final custody determination. We cannot say that its evaluation of that evidence and its determinations of credibility is an abuse of discretion.

Mr. Hiatt also argues that the trial court erred when it failed to order frequent and continuing contact with him. A review of the judgment belies this argument. The trial court determined that because of the parties' work schedules, Ms. Duhe was in the best position to transport the children to school each day. Based on this determination, it awarded Mr. Hiatt visitation every Monday and Tuesday from after school until 7 p.m. Additionally, he was awarded every other weekend and alternating holidays. Considering the children's ages, we cannot say that the current custody arrangement outlined by the court is an abuse of discretion.

Last, Mr. Hiatt argues that the trial court erred in ignoring several of the items required by La. Civ. Code art. 134. As stated above, trial courts are not bound to mechanical application of all of the factors listed. Rather, the trial court is bound to evaluate all of the evidence presented, using the factors as a guideline, and to arrive at a fair and equitable decision. After reading all of the testimony presented in this case, we find that the trial court went above and beyond to fairly assess the facts and to make a well-reasoned judgment.

Considering the record before us, we cannot say that the trial court abused its vast discretion in awarding joint custody to the parties, with Ms. Duhe designated as the domiciliary parent. Accordingly, we affirm the judgment of the trial court.

AFFIRMED

      Art. 3945 . Incidental order of temporary child custody; injunctive relief; exceptions
      A. The injunctive relief afforded either party to an action for divorce or other proceeding which includes a provision for the temporary custody of a minor child shall be governed by the additional provisions of this Article.
      B. An ex parte order of temporary custody of a minor child shall not be granted unless:
      (1) It clearly appears from specific facts shown by a verified petition or by supporting affidavit that immediate and irreparable injury will result to the child before the adverse party or his attorney can be heard in opposition.
      (2) The applicant's attorney certifies to the court, in writing, either:
      (a) The efforts which have been made to give the adverse party reasonable notice of the date and time such order is being presented to the court.
      (b) The reasons supporting his claim that notice should not be required.
      C. An ex parte order of temporary custody shall:
      (1) Expire by operation of law within thirty days of signing of the order; however, the order may be extended for good cause shown at any time before its expiration for one period not exceeding fifteen days.
      (2) Provide specific provisions for temporary visitation by the adverse party of not less than forty-eight hours during any fifteen-day period, unless the verified petition or supporting affidavit clearly demonstrates that immediate and irreparable injury will result to the child as a result of such visitation.
      (3) Be endorsed with the date on which the ex parte order is signed and the date and hour of the rule to show cause.
      D. The rule to show cause why the respondent should not be awarded the custody, joint custody, or visitation of the child shall be assigned for hearing not more than thirty days after signing of the ex parte order of temporary custody.
      E. Any ex parte order not in compliance with the provisions of this Article is not enforceable, and is null and void.
      F. In the event an ex parte order of temporary custody is denied, the court shall specifically allocate between the parents the time which the child shall spend with each parent at the hearing on the rule to show cause set pursuant to Paragraph D of this Article, unless immediate and irreparable injury will result to the child.
      G. The provisions of this Article do not apply to any order of custody of a child requested in a verified petition alleging the applicability of the Domestic Abuse Assistance Act, R.S. 46:2131 et seq., Children's Code Article 1564 et seq., or the Post-Separation Family Violence Relief Act, R.S. 9:361 et seq.

      Watermeier v. Watermeier, 462 So.2d 1272 (La.App. 5th Cir. 1985).

      For reasons unclear from the record, the trial court did not sign the orders denying the motions as moot until May 30, 2017.

      Art. 134. Factors in determining child's best interest
      The court shall consider all relevant factors in determining the best interest of the child. Such factors may include:
      (1) The love, affection, and other emotional ties between each party and the child.
      (2) The capacity and disposition of each party to give the child love, affection, and spiritual guidance and to continue the education and rearing of the child.
      (3) The capacity and disposition of each party to provide the child with food, clothing, medical care, and other material needs.
      (4) The length of time the child has lived in a stable, adequate environment, and the desirability of maintaining continuity of that environment.
      (5) The permanence, as a family unit, of the existing or proposed custodial home or homes.
      (6) The moral fitness of each party, insofar as it affects the welfare of the child.
      (7) The mental and physical health of each party.
      (8) The home, school, and community history of the child.
      (9) The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference.
      (10) The willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party.
      (11) The distance between the respective residences of the parties.
      (12) The responsibility for the care and rearing of the child previously exercised by each party.


author: KEATY, Judge.

text:
    STATE of Louisiana v. Jeffery DEBARGE aka Jeffery Scot Debarge
    17-670
    Court of Appeal of Louisiana, Third Circuit.
    February 7, 2018
    Sherry Watters, Louisiana Appellate Project, Post Office Box 58769, New Orleans, Louisiana 70158-8769, (504) 723-0284, Counsel for Defendant/Appellant: Jeffery Scot Debarge
    Asa A. Skinner, District Attorney, Terry W. Lambright, First Assistant District Attorney, Post Office Box 1188, Leesville, Louisiana 71446, (337) 239-2008, Counsel for Appellee: State of Louisiana
    Court composed of Sylvia R. Cooks, Elizabeth A. Pickett, and Phyllis M. Keaty, Judges.
   KEATY, Judge.

Defendant, Jeffery Scot Debarge, was charged by bill of information with three counts of video voyeurism, in violation of La.R.S. 14:283, and one count of possession of pornography involving juveniles, in violation of La.R.S. 14:81.1, to which he tendered a plea of not guilty to all counts. Prior to that time, Defendant's counsel had filed an Application for Appointment of Sanity Commission, which was granted by the trial court. After a December 2016 hearing, Defendant was found competent to stand trial.

On January 13, 2017, as part of a plea agreement, Defendant tendered a plea of guilty to three counts of video voyeurism. According to the factual basis for the charges presented by the State at his guilty plea hearing, Defendant placed a video camera inside the bathroom of the home where he lived with his girlfriend and her nine-year-old daughter, J.I., which captured videos of an adult female and J.I. in various stages of undress and nudity. Defendant also took still photographs of J.I.'s genital and pubic area from under the covers of her bed. In accordance with the plea agreement, the State dismissed the count of possession of pornography involving juveniles and recommended concurrent sentences. On March 14, 2017, Defendant was sentenced to four years at hard labor, without benefit of probation, parole, or suspension of sentence for Count 1, under the provisions of La.R.S. 14:283(B)(3) ; to five years at hard labor without benefit of probation, parole, or suspension of sentence for Count 2, in accordance with La.R.S. 14:283(B)(4) ; and to seven years at hard labor without benefit of probation, parole, or suspension of sentence for Count 3, in accordance with La.R.S. 14:283(B)(4). The sentences were ordered to run concurrent with each other, and Defendant was given credit for time served from the date of his arrest.

Defendant filed a Motion to Reconsider Sentence wherein he alleged his sentences are excessive under the totality of the circumstances. The trial court denied the motion ex parte. Defendant timely appealed his sentence.

DISCUSSION

Excessiveness

In his sole assignment of error, Defendant alleges the trial court "imposed excessive sentences on each count that are not warranted by the offenses or the circumstances of the first offender,[ ] and contain a restriction on parole that is not authorized by the statute."

Louisiana courts have laid out the following guidelines regarding constitutionally excessive sentence review:

Sentences within the statutory sentencing range can be reviewed for constitutional excessiveness. State v. Sepulvado , 367 So.2d 762 (La.1979). In State v. Barling , 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035, 1042-43, writ denied , 01-838 (La. 2/1/02), 808 So.2d 331, a panel of this court discussed the review of excessive sentence claims, stating:
La. Const. art. I, § 20 guarantees that, "[n]o law shall subject any person to cruel or unusual punishment." To constitute an 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 So.2d 1205 (La.1981). The trial court has wide discretion in the imposition of sentence within the statutory limits and such sentence shall not be set aside as excessive absent a manifest abuse of discretion. State v. Etienne , 99-192 (La.App. 3 Cir. 10/13/99), 746 So.2d 124, writ denied , 00-0165 (La.6/30/00) [765 So.2d 1067] ; 765 So.2d 1067. The relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. 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).
Further, in reviewing the defendant's sentences, the appellate court should consider the nature of the crime, the nature and background of the offender, and the sentences imposed for similar crimes. State v. Lisotta , 98-648 (La.App. 5 Cir. 12/16/98), 726 So.2d 57 (citing State v. Telsee , 425 So.2d 1251 (La.1983) ), writ denied , 99-433 (La. 6/25/99), 745 So.2d 1183. In State v. Smith , 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ denied , 03-562 (La. 5/30/03), 845 So.2d 1061, a panel of this court observed that:
While a 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.2d 1 (La.App. 1 Cir.1991). Additionally, it is 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 , 95-2784 (La. 5/31/96), 674 So.2d 957, 958 [, cert. denied , 96-6329, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996) ].

State v. Soileau , 13-770, 13-771, pp. 4-5 (La.App. 3 Cir. 2/12/14), 153 So.3d 1002, 1005-06, writ denied , 14-452 (La. 9/26/14), 149 So.3d 261.

Louisiana Code of Criminal Procedure Article 881.1(E) provides that:

Failure to make or file a motion to reconsider sentence or to include a specific ground upon which a motion to reconsider sentence may be based, including a claim of excessiveness, shall preclude the state or the defendant from raising an objection to the sentence or from urging any ground not raised in the motion on appeal or review.

In the motion to reconsider that he filed in the trial court, Defendant argued that his sentence "is excessive under the totality of the circumstances of this case in that:"

(1) The defendant herein suffers from Cavernoma ;[ ]
(2) The defendant herein suffers from headaches, dizziness, nausea, emesis, and blurry vision;
(3) The defendant herein had a stealth guided R crani for R cavernous angioma on February 4, 2016.[ ]
(4) The sentences, specifically the seven (7) year sentence is without benefit of parole, probation or suspension.

The trial court denied Defendant's motion. No written reasons were given.

Defendant now argues on appeal that because the bill of information did not specify the subparagraphs of the video voyeurism statute under which he was being charged, the trial court erred in imposing sentences that exceeded the two-years imprisonment maximum found in the generalized sentencing provision of the statute.

The State submits the issue of whether Defendant's sentence was improperly enhanced is not properly before this court because Defendant failed to object at sentencing or to raise these grounds in his motion to reconsider sentence and is presenting these grounds for the first time on appeal.

While the State's assertion is correct, this court has reviewed claims of excessiveness where no objection was made or no motion to reconsider sentence filed. See State v. Johnlouis , 09-235 (La.App. 3 Cir. 11/4/09), 22 So.3d 1150, writ denied , 10-97 (La. 6/25/10), 38 So.3d 336, cert. denied , 562 U.S. 1150, 131 S.Ct. 932, 178 L.Ed.2d 775 (2011). Accordingly, we will perform a bare excessiveness review of

Defendant's sentences. See State v. Clark , 06-508 (La.App. 3 Cir. 9/27/06), 940 So.2d 799, writ denied , 06-2857 (La. 9/21/07), 964 So.2d 324.

We will review Defendant's sentences with regard to the three factors enunciated in Lisotta , 726 So.2d 57. First, we look to the nature of the crimes committed by Defendant. Video voyeurism is designated as a sex offense under La.R.S. 15:541. Next, we examine Defendant's nature and background. Defendant has a prior misdemeanor conviction of carnal knowledge of a juvenile for which he was sentenced to six months in jail. Finally, we look to the sentences imposed for similar crimes by the same court and other courts. Defendant was charged with three counts of video voyeurism and received sentences consisting of four, five, and seven years at hard labor all without benefits to be served concurrently with each other and any other sentence. The Louisiana Second Circuit Court of Appeal affirmed two sentences of five years at hard labor without benefit of probation, parole, or suspension of sentence, to run consecutively, where the defendant pled guilty to two counts of video voyeurism involving juveniles. See State v. Holmes , 48,535 (La.App. 2 Cir. 1/15/14), 130 So.3d 999. The defendant in Holmes was a deacon who installed hidden video cameras in a bathroom used by young female members of his church during a function that he hosted. Similarly, Defendant herein violated the trust of his girlfriend and her nine-year-old daughter, both of whom he lived with at the time. The Louisiana Fifth Circuit Court of Appeal affirmed a sentence of ten years at hard labor without benefits where the defendant was found guilty of one count of video voyeurism involving a juvenile. See State v. Schaller , 08-522 (La.App. 5 Cir. 5/26/09), 15 So.3d 1046, writ denied , 09-1406 (La. 2/26/10), 28 So.3d 268. The Schaller court found that the trial court did not err in imposing the maximum sentence where the "defendant appeared to have an ongoing history of associations with underage girls" and had apparently lied about his activities with the underage females who frequented his home. Id. at 1067.

Additionally, we note that all of Defendant's sentences are mid to upper-range sentences, and none of them reach the maximum sentence available under the sentencing provision applicable to each count. Under the circumstances present in this case, we cannot say that the trial court abused its broad discretion in sentencing Defendant.

Alternatively, the State argues, and we agree, that Defendant's assertion that the bill of information must specify the subparagraphs for sentencing is more an argument that Defendant did not receive notice of the sentencing provisions than an excessive sentence claim. Citing State v. Crosby , 338 So.2d 584 (La.1976), the State asserts that Defendant's unqualified guilty plea waived any non-jurisdictional defects and precludes appellate review or review on post-conviction. In Crosby , the Louisiana Supreme Court set forth a rule allowing defendants to reserve the right to contest pre-plea non-jurisdictional defects at the time of the guilty plea.

Defendant herein did not reserve any rights at the time of his guilty plea. Further, he had sufficient notice of the crimes for which he was entering a plea. Defendant stated in his guilty plea hearing that he understood what he was pleading guilty to, and the court explained to him that he would be sentenced under La.R.S. 14:283(B)(3) for the first count involving an adult and that he would be sentenced under La.R.S. 14:283(B)(4) for the second and third counts involving a juvenile.

We also conclude that Defendant waived any non-jurisdictional defects when he failed to reserve them at the plea hearing and was properly given notice and sentenced under subparagraphs (B)(3) and (4) of La.R.S. 14:283. Therefore,

Defendant's argument that La.R.S. 14:283(B)(1) does not authorize the denial of parole is without merit as Defendant was not sentenced under this subparagraph.

Lastly, Defendant argues that his sentence is excessive because the trial court failed to consider his cognitive abilities and influences on his actions. The trial court, however, stated on the record that it considered the factors of La.Code Crim.P. art. 894.1, including Defendant's medical history, criminal record, and addiction treatment, along with statements from his family, and the contents of the PSI.

DECREE

Defendant's convictions and sentences are affirmed.

AFFIRMED.

      Pursuant to La.R.S. 46:1844(W), the initials of the minor victim will be used to protect and maintain her privacy.

      Section (B)(3) of the video voyeurism statute provides that anyone convicted of "observing, viewing, photographing, filming, or videotaping ... actual or simulated sexual intercourse, masturbation," or certain body parts shall be "imprisoned at hard labor for not less than one year or more than five years, without benefit of parole, probation, or suspension of sentence." Section (B)(4) of the video voyeurism statute provides that:
      Whoever commits the crime of video voyeurism when the observing, viewing, photographing, filming, or videotaping is of any child under the age of seventeen with the intention of arousing or gratifying the sexual desires of the offender shall ... be imprisoned at hard labor for not less than two years or more than ten years without benefit of parole, probation, or suspension of sentence.
      Both the two-years imprisonment maximum found in La.R.S. 14:283(B)(1), the generalized sentencing provision of the statute, and the enhanced sentences found in La.R.S. 14:283 provide for the imposition of a fine, but no fine was imposed in this case.

      According to the Pre-Sentence Investigation (PSI) which the trial court ordered at the time of his guilty plea, Defendant pled guilty to a misdemeanor count of carnal knowledge of a juvenile in May 2005, and he was sentenced to six months in jail.

      Cavernomas are abnormal clusters of vessels with small bubbles (or caverns) filled with blood that can cause seizures, stroke symptoms, hemorrhages, and headaches.

      Although he offered no explanation of this assertion in his motion to reconsider, Defendant noted in his brief to this court that he had brain surgery in February 2016.