Opinion
NO. 23-KA-208
12-27-2023
STATE of Louisiana v. Joseph BARNES
COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Honorable Paul D. Connick, Jr., Metairie, Thomas J. Butler, Shreveport, Matthew R. Clauss COUNSEL FOR DEFENDANT/APPELLANT, JOSEPH BARNES, Jane L. Beebe
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA, NO. 07-401, DIVISION "N", HONORABLE STEPHEN D. ENRIGHT, JR., JUDGE PRESIDING
COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Honorable Paul D. Connick, Jr., Metairie, Thom- as J. Butler, Shreveport, Matthew R. Clauss
COUNSEL FOR DEFENDANT/APPELLANT, JOSEPH BARNES, Jane L. Beebe
Panel composed of Judges Susan M. Chehardy, Jude G. Gravois, and John J. Molaison, Jr.
CHEHARDY, C.J.
1In this appeal the defendant, Joseph Barnes, argues that the sentences the trial court imposed were excessive. For the reasons that follow, we affirm defendant’s sentences.
STATEMENT OF THE CASE
This is defendant’s second appeal. In defendant’s first appeal, we outlined this matter’s procedural history:
On January 22, 2007, the Jefferson Parish District Attorney filed a bill of information charging defendant, Joseph Barnes, with one count of sexual battery in violation of La. R.S. 14:43.1. The State subsequently amended the bill of information, adding a second count of sexual battery, in violation of La. R.S. 14:43.1. Defendant pled not guilty to both counts.
On October 14, 2010, after trial, a six-person jury found defendant guilty as charged on both counts. On October 22, 2010, defendant filed a motion for new trial and a motion for appeal.
On October 28, 2010, the trial judge sentenced defendant to ten years at hard labor without benefit of parole, probation, or suspension of sentence, on each count, concurrent. At sentencing, the trial court also informed defendant of the sex offender registration and notification requirements. At that hearing, the State filed a multiple bill of information alleging that relator was a fourth felony offender.
On November 4, 2010, the trial court found defendant to be a fourth felony offender, vacated his underlying sentences, and imposed a concurrent sentence of life imprisonment without benefit of probation or suspension of sentence on each count. Defendant’s motion for appeal was granted on December 1, 2010.
State v. Barnes, 11-80 (La. App. 5 Cir. 12/13/11), 92 So.3d 9, 13 (internal footnotes omitted). After considering the merits of defendant’s assignments of 2error on rehearing, this Court affirmed defendant’s convictions, multiple offender adjudication, and sentences. Id. at 21. The Louisiana Supreme Court denied defendant’s writ application. State v. Barnes, 12-951 (La. 11/9/12), 100 So.3d 828.
This Court initially had determined that the trial court did not rule on defendant’s motion for new trial and therefore vacated defendant’s multiple offender adjudication and sentences and remanded for a ruling on defendant’s motion for new trial. Barnes, 92 So.3d at 12. The State sought rehearing, which this Court granted, and addressed the merits of defendant’s appeal, after the record was supplemented to show that the trial court had in fact ruled on defendant's motion for new trial.
In December 2021, defendant filed a Motion to Correct Illegal Sentence, alleging that his multiple offender sentences were now illegal because two of the three predicate convictions used to enhance his sentences were vacated due to constitutional infirmities. On June 1, 2022, the trial court denied defendant’s Motion to Correct Illegal Sentence as untimely pursuant to La. R.S. 15:529.1(D)(1)(b), stating that defendant was obliged to raise any constitutional challenges to the predicate offenses before the sentences were imposed.
Defendant sought review in this Court, which granted defendant’s writ application. This Court found that the trial court erred in denying defendant’s Motion to Correct Illegal Sentence, given the evidence that defendant had successfully made two separate post-conviction applications in Orleans Parish Criminal District Court, which resulted in two of the three predicate offenses being vacated. This Court therefore granted defendant’s writ application, vacated his habitual offender adjudication and enhanced sentences on both counts, reinstated the original sentences imposed, and remanded to the trial court for further proceedings to determine defendant’s habitual offender status, and for resentencing, if appropriate. See Barnes v. Hooper, 22-280 (La. App. 5 Cir. 7/22/22), 2022 WL 2900554 (unpublished writ disposition). The Louisiana Supreme Court denied the State’s writ application seeking review of this Court’s ruling. State ex rel. Barnes v. Hooper, 22-1293 (La. 11/16/22), 349 So.3d 1001.
On December 7, 2022, the State filed State’s Legal Memorandum of Authorities in Support of Multiple-Offender Resentencing. On January 18, 2023, defendant filed a pro se Motion to Quash Habitual Offender’s Bill of Information and Petitioner’s Memorandum in Opposition to Multiple Offender’s Resentencing 3and Support of Motion to Quash. Also on January 18, 2023, the trial court held a habitual offender hearing after first considering, and denying, defendant’s Motion to Quash Habitual Offender Bill of Information. The trial court adjudicated defendant a second felony offender as to both counts, vacated the original sentences of ten years imprisonment at hard labor on each of the counts, and sentenced defendant as a second felony offender to twenty years imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence on count one. On count two, the trial court sentenced defendant to ten years imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence, to run consecutively with count one. The trial court also ordered defendant to register as a sex offender. Defense counsel orally moved for reconsideration of the sentences. The trial court stated that it would address a written motion for reconsideration.
At the January 18, 2023 resentencing hearing, the trial court stated that if defendant "want[ed] to plead as a double felony offender," he would be sentenced to twenty years imprisonment on each count, with sentences to run concurrently. When counsel asked what the sentence would otherwise be, the trial court indicated that it would not make any promises, but that defendant could receive consecutive sentences resulting in a forty-year sentence. After conferring with counsel, defendant elected to proceed with the multiple bill hearing.
La. R.S. 15:529.1 does not prohibit enhancing multiple sentences for multiple convictions obtained on the same date, whether the convictions result from separate felonies committed at separate times or arise out of a single criminal act or episode. State v. Shaw, 06-2467 (La. 11/27/07), 969 So.2d 1233, 1245. See also State v. Carter, 13-94 (La. App. 5 Cir. 10/30/13), 128 So.3d 1108, 1111, writ denied, 13-2701 (La. 4/25/14), 138 So.3d 644. Here, the State sought enhanced sentences for defendant as a multiple offender on both counts. See State v. Morgan, 06-529 (La. App. 5 Cir. 12/12/06), 948 So.2d 199, 202 n.4; State v. Page, 02-689 (La. App. 5 Cir. 1/28/03), 837 So.2d 165, 177, writ denied, 03-951 (La. 11/7/03), 857 So.2d 517.
On January 24, 2023, the trial court issued written reasons for adjudicating defendant a second felony offender. The trial court explained that it found that defendant was the same individual who was convicted of a violation of La. R.S. 40:967 on June 3, 2003, under case number 363-670 in Orleans Parish Criminal District Court. The Waiver of Constitutional Rights Plea of Guilty form associated with that conviction, which the State introduced at the January 18, 2023 habitual offender hearing, reflected that defendant pled guilty to possession with intent to 4distribute cocaine. The trial court did not rule on defense counsel’s oral motion to reconsider sentencing because counsel did not specify grounds for the motion, as La. C.Cr.P. art. 881.1 requires. See State v. King, 22-371 (La. App. 5 Cir. 5/24/23), 365 So.3d 897, 918.
On February 1, 2023, defense counsel filed a notice of intent to appeal, which the trial court granted. On February 2, 2023, defendant filed a pro se Motion for Appeal and Designation of Record pertaining to the January 18, 2023 sentencing, which the trial court granted on February 3, 2023. Defendant also filed a pro se notice of intent to seek a writ application with respect to the denial of his motion to quash the habitual offender bill, and defendant timely filed a writ application with this Court on March 14, 2023.
On March 23, 2023, defendant filed a pro se Motion for Reconsideration of Sentence. Defendant asserted that the trial court did not consider the factors in La. C.Cr.P. art. 894.1(A). Defendant further argued that the trial court erred in increasing the original sentence after execution had commenced, and erred in allowing the State to use a predicate offense from 1993 because the cleansing period of five years had lapsed. Defendant contended that the trial court should have considered the factors of the prior offense and that it was his only prior offense. He averred that the State caused multiple delays in the proceedings and that the trial court erred in denying his motion to quash. Further, he asserted that his background was not considered and that the sentences were excessive. He suggested that a downward departure from the statutory minimum sentence should be considered.
On March 30, 2023, the trial court denied the motion for reconsideration, explaining that it was untimely under La. C.Cr.P. art. 8811, and that defendant was procedurally barred from relief pursuant to La. C.Cr.P. art. 881.
5On May 3, 2023, this Court declined to exercise its supervisory jurisdiction to review the trial court’s ruling on the motion to quash the habitual offender bill, because defendant’s timely motion for appeal, which preserved the issue, was already granted. Barnes v. Hooper, 23-130 (La. App. 5 Cir. 5/3/23) (unpublished writ disposition).
Defendant does not raise any argument on appeal pertaining to the motion to quash.
Defendant now challenges his sentences as excessive.
FACTS
The underlying facts were set forth in this Court’s first opinion:
In January of 2006, Joseph Barnes stayed with his aunt’s family in Harvey. His aunt was stepmother to two girls, K.B., who was 16 years old, and D.B., who was 13 years old, at that time. Around the end of that month, when neither of the girls’ parents were home, Barnes hugged K.B. and tried to kiss her on the lips. When K.B. rejected Barnes’ advances, he asked if she was uncomfortable and if his actions were Inappropriate and K.B. told him they were.
A day or so later, K.B. told her boyfriend that Barnes had tried to kiss her, and her boyfriend encouraged her to tell her father. When K.B. told her father, he was upset and concerned, especially since Barnes was at their house with D.B. at the time. K.B. and her father immediately returned home and Mr. B confronted Barnes.
K.B. went upstairs with her stepmother and her little sister. Because they could hear Mr. B yelling at defendant downstairs, D.B. asked her sister about the argument and K.B. told her that Barnes had tried to kiss her. D.B. then said, "[a]t least that’s all he tried to do to you is kiss you." D.B. then disclosed that Barnes had hugged her on two occasions, picked her up and instructed her to wrap her legs around his waist, put his hands on her buttocks, and put D.B.’s hand on his clothed and unclothed penis. At K.B.’s encouragement, D.B. went downstairs and told her father that Barnes had been "messing" with her, too. The girls’ father immediately called the police.
At trial, D.B. testified that, on a Sunday night in January 2006, her stepmother left her at home alone with Barnes for about 20 minutes. That night, Barnes approached D.B. and told her that he understood that she could not talk to her parents because they did not understand each other. He 6assured her that he understood her and was there for her if she needed to talk.
After a few minutes of small talk, Barnes asked D.B. if she ever touched herself and if she liked the way it felt, which made her uncomfortable. When Barnes reached towards her pubic region, she told him to stop and pushed his hand away. Then, Barnes "creeped" her out and made her very uncomfortable when he chuckled and said something like, "Oh, so, I can look, but I can’t touch, huh?" Barnes then told D.B. to give him a hug, which she did. While they hugged, Barnes picked D.B. up and instructed her to wrap her legs around him. When she refused, Barnes put her down. Barnes "assured" D.B. that he was not trying to have sex with her because she was still too young.
Barnes then asked if D.B. had ever touched a bare penis, which she stated she had not. In response, Barnes pulled his penis out of his pants, grabbed D.B.’s hand, and stroked his penis with her hand. As he used her hand to stroke his penis, he told her that she shouldn’t be scared because "God made what I have and what you have for a reason." Pre-seminal fluid leaked from Barnes’ penis onto D.B.’s hand. While Barnes was wiping the liquid from D.B.’s hand, her stepmother and sister returned. Barnes instructed D.B. to hurry back to her room and to keep their talk secret. The next day, D.B., who was suspended from school, was home with her stepmother. At some point that day, Barnes knocked on her bedroom door and asked if she had told anybody about their secret. When she stated that she had not, he gave her $10.00 and asked her to come into the hallway to speak with him. Once she was in the hallway, Barnes grabbed D.B.’s hand and rubbed it over his penis on top of his clothing. Barnes also hugged D.B., put his hands on her buttocks, and rubbed her buttocks during that incident.
Barnes, 92 So.3d at 14-15 (internal footnotes omitted).
DISCUSSION
In a single assignment of error, defendant asserts that his sentences are excessive for a number of reasons. First, he contends that in light of the plea deal that the State offered in 2010, the sentences imposed give the appearance that he was punished for going to trial and for continuing to contest his convictions and sentences. Next, defendant points out that unlike his current sentences, his initial 7sentences were not ordered to run consecutively. Defendant also explains that before the multiple bill hearing, the trial court told defense counsel that if he pled to being a second felony offender, defendant would be sentenced to twenty years imprisonment on each count, to run concurrently. Defendant also argues that when the trial court imposed "a 30 year sentence, the maximum sentence possible on a double bill," this "higher" sentence was vindictive because defendant had chosen to proceed with the multiple bill hearing.
In opposition, the State argues that defendant is limited to a review for bare constitutional excessiveness because he did not raise specific claims, such as the consecutive nature of his sentence or his contention that the trial court acted vindictively, below; he also did not timely file a written motion to reconsider sentence. The State further contends that even if those specific issues had been preserved for appeal, defendant’s arguments do not warrant relief. Finally, the State asserts that the sentences are hot excessive.
[1] At the outset, we note that pursuant to La. C.Cr.P. art. 881.1(B), a motion for reconsideration of sentence "shall be oral at the time of sentence or shall be in writing thereafter and shall set forth the specific grounds on which the motion is based." La. C.Cr.P. art. 881.1(E) indicates 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." When the consecutive nature of sentences is not specifically raised in the trial court, the issue is not included in the review for constitutional excessiveness, and the defendant is precluded from raising the issue on appeal. State v. Rodgers, 16-14 (La. App. 5 Cir. 10/26/16), 202 So.3d 1189, 1200, writs denied, 16-2189 (La. 9/15/17), 225 So.3d 479, and 16-2093 (La. 1/29/18), 235 So.3d 1104. See also 8 state v. Barber, 19-235 (La. APP. 5 Cir. 10/23/19), 282 So.3d 404, 413 (holding that defendant’s failure to challenge the consecutive nature of his sentences in the trial court limited the appellate court to a bare review for constitutional excessiveness).
[2] Defendant argues for the first time on appeal that his sentences demonstrate that he was punished for not accepting the State’s pre-trial plea offer, that his sentences were not. previously imposed consecutively, and that the trial court acted vindictively when defendant chose to proceed with the multiple bill hearing. Yet because defendant’s pro se motion to reconsider sentences was untimely, and because no specific arguments in favor of reconsideration were timely raised below, defendant is limited to a bare review for constitutional excessiveness. Barber, 282 So.3d at 413. See also State v. Ervin, 23-11 (La. App. 5 Cir. 8/30/23), 370 So.3d 1236, 1244.
[3, 4] The Eighth Amendment to the United States Constitution prohibits cruel and unusual punishment. Article I, § 20 of the Louisiana Constitution also prohibits cruel and unusual punishment but further explicitly prohibits excessive punishment. State v. Diaz, 20-381 (La. App. 5 Cir. 11/17/21), 331 So.3d 500, 519, writ denied, 21-1967 (La. 4/5/22), 335 So.3d 836. A sentence is unconstitutionally excessive, even when it is within the applicable statutory range, "if it makes no measurable contribution to acceptable goals of punishment and is nothing more than the purposeful imposition of pain and suffering and is grossly out of proportion to the seventy of the crime." State v. Bourgeois, 22-418 (La. App. 5 Cir. 4/26/23), 361 So.3d 1138, 1147. A sentence is grossly disproportionate if, when the crime and punishment are considered in light of the harm done to soci- ety, it shocks the sense of justice. Barber, 282 So.3d at.413.
[5–7] A trial court is in the best position to consider the aggravating and mitigating circumstances of a particular case and, therefore, is given broad discretion when imposing a sentence. Diaz, 331 So.3d at 519-20. The issue on appeal is whether the 9trial court abused its discretion, not whether another sentence might have been more appropriate. Id. at 520. The review of sentences under La. Const. art. 1, § 20 does not provide an appellate court with a vehicle for substituting its judgment for that of a trial court as to what punishment is most appropriate in a given case. State v. Corea-Calero, 22-117 (La. App. 5 Cir. 12/28/22), 355 So.3d 697, 701.
[8] The appellate court shall not set aside a sentence for excessiveness if the record supports the sentence imposed. La. C.Cr.P. art. 881.4(D); Corea-Calero, 355 So.3d at 701. Generally, maximum sentences are reserved for cases involving the most serious violations of the offense charged and the worst type of offender. State v. Melgar, 19-540 (La. App. 5 Cir. 4/30/20), 296 So.3d 1107, 1115. This Court has recognized, however, that a maximum or near-maximum sentence for sexual battery of a minor may not be excessive if a defendant exploited a. position of trust to commit the crime. Id.
[9–11] In the present case, defendant was convicted of two counts of sexual battery in violation of La, R.S. 14:43.1. At the time of the underlying offense in January 2006, La. R.S. 14:48.1(C) stated: "Whoever commits the crime of sexual battery shall be punished by imprisonment, with or without hard labor, without benefit of parole, probation, or suspension of sentence, for not more than ten years." The trial court also adjudicated defendant a second felony offender. At the time of the underlying offense, La. R.S. 15:529.1(A)(1)(a) provided that if the second felony is such that upon a first conviction the offender would be punishable by imprisonment for any term less than his natural life, then the sentence shall be for a determinate term not less than one-half the longest term and not more than twice the longest term prescribed for a first conviction. As such, defendant faced an 10enhanced sentencing range of five to twenty years imprisonment on each enhanced count.
The law in effect at the time of the commission of the offense is determinative of the penalty imposed. State v Sugasti, 01-3407 (La. 6/21/02), 820 So.2d 518, 520.
A "defendant should be sentenced in accord with the version of La. R.S. 15:529.1 [the multiple offender statute] in effect at the time of the commission of the charged offense." Bourgeois, 361 So.3d at 1149 (quoting State v. Parker, 03-924 (La. 4/14/04), 871 So.2d 317, 326).
[12] In reviewing a trial court’s sentencing discretion, the reviewing court should consider the nature of the crime, the nature and background of the offender, and the sentence imposed for similar crimes by the same court and other courts, but there is no requirement that specific matters be given any particular weight at sentencing. Diaz, 831 So.3d at 520.
As to the nature of the crime, the victim of the charged offenses was defendant’s step-cousin and was only thirteen when defendant sexually abused her in her own home. The evidence at trial established two separate incidents. During the first incident (count one), defendant made several sexual statements, picked up the victim after instructing her to hug him, and made her stroke his unclothed penis. Defendant took advantage of the victim’s youth and inexperience and attempted to invoke religion to justify his actions by telling the victim that "God made what I have and what you have for a reason," Defendant also told the victim to keep it a secret. During the second incident (count two), defendant gave the victim money for not disclosing the previous incident, then proceeded to grab the victim’s hand and rub it over his penis on top of his clothing. Defendant also hugged the victim, put his Hands on her buttocks, and rubbed her buttocks. The victim stated that she was ashamed that it happened; Evidence at trial also indicated that defendant acted inappropriately with his other step-cousin (the victim’s sister), who was then sixteen years old, when he attempted to kiss her on the lips.
Further, defendant exploited a position of trust within his family. The victim stated that she looked up to defendant as an uncle rather than a cousin; the victim’s sister and her father also indicated that they considered defendant to be part of their family. Defendant stated at trial that he lived with the victim’s family prior to 11Hurricane Katrina; that he and his girlfriend went on vacation with the victim, her sister, and her parents; and that the victim’s family trusted him and that he trusted them.
As to the nature and background of the offender, defendant was approximately thirty years old at the time of the charged offenses. Defendant’s nature, i.e., his "lustful disposition" toward teenage girls, including the victim and her older sister, came to light during trial. This Court previously stated that this fact, in conjunction with defendant’s criminal past, indicated that defendant represented the very type of multiple offender that the statute was created to address. Barnes, 92 So.3d at 18.
As seen above, two of defendant’s three prior convictions used to enhance his sentences were subsequently vacated due to constitutional infirmities. Defendant’s Uniform Motion To Correct An Illegal Sentence explained why two of the earlier convictions were vacated:
Under No. 367-287 §B, there was a Brady violation and under No. 373-389 (§ D), the defendant’s 5th Amendment [right] against self-incrimination was violated, thus rendering these convictions illegal for the purpose of enhancing defendant’s sentence pursuant to R.S. 15:529.1.
The third factor requires consideration of sentences imposed for similar crimes by this Court and other courts. As to count two, the sentence imposed was the maximum potential sentence for an un-enhanced sentence, and half of the maximum sentence for an enhanced sentence. The sentence on count two is consistent with the sentence imposed in State v. Monroe, 10-194 (La. App. 4 Cir. 12/8/10), 53 So.3d 626, writ denied, 11-61 (La. 5/6/11), 62 So.3d 123. In Monroe, the defendant was convicted of one count of sexual battery and was sentenced as a second felony offender to ten years imprisonment at hard labor. As in this case, the defendant in Monroe faced a sentencing range of five to twenty years imprisonment. The court of appeal explained that when sentencing the defendant, the trial court noted, that he was an adult taking advantage of an impressionable thirteen-year-old child and thus held that the sentence was not excessive.
12Courts also have upheld a ten-year sentence for first-offense sexual battery as not excessive. See, e.g., State v. Burt, 02-258 (La. App. 4 Cir. 10/9/02), 828 So.2d 717, writ denied, 02-2915 (La. 4/4/03), 840 So.2d 1214; State v. Badeaux, 01-406 (La. App. 5 Cir. 9/25/01), 798 So.2d 234, writ denied, 01-2965 (La. 10/14/02), 827 So.2d 414. Thus, with regard to the ten-year enhanced sentence imposed on count two, this Court and other courts have upheld similar sentences.
[13, 14] As to count one, we have found no cases in which the defendant was convicted of sexual battery, received a twenty-year sentence as a second-felony offender, and challenged the sentence on appeal. "Although a comparison of sentences imposed for similar crimes may provide guidance, ‘[i]t is well settled that sentences must be individualized to the particular offender and to the particular offense committed.’ " State v. Boudreaux, 11-1345 (La. App. 4 Cir. 7/25/12), 98 So.3d 881, 891, writ denied, 12-1907 (La. 11/9/12), 100 So.3d 841. While comparisons with other similar cases are useful, the focus of sentence review remains on the character and propensities of the offender and the circumstances of the offense. State v. LeBlanc, 09-1355 (La. 7/6/10), 41 So.3d 1168, 1173.
In State v. Jackson, 18-319 (La. App. 5 Cir. 11/7/18), 259 So.3d 533, writ denied, 18-2035 (La. 6/3/19), 272 So.3d 542, the defendant pled guilty to an amended charge of sexual battery. He received an original sentence of ten years imprisonment. After being adjudicated a second felony offender, he received a twenty-year sentence. However, defendant did not challenge his sentence on appeal, and this Court did not review the sentence for excessiveness.
The facts underlying count one are more severe than those of count two in that defendant was alone in the house with the thirteen-year-old victim, asked her inappropriate questions, reached for her pubic region, picked her up and told her to wrap her legs around him, then unclothed his penis and forced her to stroke it until pre-seminal fluid leaked onto her hand. Defendant exploited the position of trust he held vis-à-vis the victim and her family. Having reviewed the character and propensities of the offender, the circumstances of the offense, and the penalties 13imposed in similar cases, we find no constitutional infirmity in imposing the maximum enhanced sentence permitted for count one.
In sum, the sentences imposed for counts one and two were not constitutionally excessive. Defendant’s assignment of error lacks merit.
ERRORS PATENT
This is a second appeal. Defendant received an error patent review in his first appeal. Barnes, 92 So.3d at 20-21. As such, defendant is entitled to an error patent review only of his multiple bill proceedings. The record was reviewed for errors patent according to La. C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La. 1975); and State v. Weiland, 556 So.2d 175 (La. App. 5 Cir. 1990). We found no errors patent.
DECREE
For the foregoing reasons, defendant’s sentences are affirmed.
AFFIRMED