Opinion
NO. 2015 KA 0435
09-18-2015
STATE OF LOUISIANA v. KINAY R. MINGO
Frederick Kroenke Baton Rouge, Louisiana Counsel for Defendant/Appellant Kinay R. Mingo Warren Montgomery District Attorney Franklinton, Louisiana Kathryn W. Landry Baton Rouge, Louisiana Counsel for Appellee State of Louisiana
NOT DESIGNATED FOR PUBLICATION Appealed from the 22nd Judicial District Court In and for the Parish of Washington State of Louisiana
Case No. 13 CR9 124032
The Honorable Reginald Badeaux, Judge Presiding Frederick Kroenke
Baton Rouge, Louisiana
Counsel for Defendant/Appellant
Kinay R. Mingo
Warren Montgomery
District Attorney
Franklinton, Louisiana
Kathryn W. Landry
Baton Rouge, Louisiana
Counsel for Appellee
State of Louisiana
BEFORE: McDONALD, McCLENDON, AND THERIOT, JJ. THERIOT, J.
The defendant, Kinay R. Mingo, was charged by bill of information with four counts of sexual battery, violations of La. R.S. 14:43.1, and pled not guilty on each count. After a trial by jury, the defendant was found guilty of the responsive offense of attempted sexual battery, in violation of La. R.S. 14:43.1 and La. R.S. 14:27, on count three, and not guilty on remaining counts one, two, and four. The trial court denied the defendant's motion for new trial and motion for post-verdict judgment of acquittal. The trial court sentenced the defendant to four years imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence. The trial court advised the defendant that he is required to register as a sex offender, complete a sex offender prevention course, and pay restitution "if there are any expenses on behalf of the victims that is related to therapy as a result of these acts." The trial court denied the defendant's motion to reconsider sentence. The defendant now appeals, arguing that the sentence is unconstitutionally excessive and illegally indeterminate. For the following reasons, we affirm the conviction, vacate the sentence, and remand for resentencing with instructions.
STATEMENT OF FACTS
Between February of 2004 and July of 2008, S.N.B. and her five daughters, including S.B., the victim on count three, lived with the defendant. In the fall of 2013, allegations of sexual abuse were disclosed to S.N.B., who reported the allegations to the Bogalusa Police Department. The incident involving the victim in this case occurred in 2004, when the victim was ten years old. The victim specifically indicated that after they moved in with the defendant, one night while she was sitting on the living room sofa the defendant began rubbing her shoulder and ultimately placed his hand inside of her shorts and "rubbed" her "private area," which she also referred to as her "vagina."
The victim testified that her date of birth is September 19, 1993. Herein, only initials will be used to identify the victim and her family. See La. R.S. 46:1844(W).
S.N.B. testified that she and the defendant broke up in July of 2008, and he forced them to move out. After a subsequent reconciliation, they lived together again for several months in 2010. At that time, S.N.B. was unaware of any claims of sexual abuse. The allegations of sexual abuse that ultimately surfaced involved S.B. and S.N.B.'s other daughters, and charges were filed in this case as to four of the five girls. As indicated herein, the defendant was only convicted on count three involving S.B., and found not guilty as to the other three counts involving three of her siblings.
ASSIGNMENTS OF ERROR
The defendant presents two assignments of error:
1. The trial court erred in imposing a sentence which is unconstitutionally excessive.
2. The sentence imposed is indeterminate and illegal in that it does not specify the amount, manner, and mode of payment as required by La. Code Crim. P. art. 883.2 and provides for payment to others than the victim, S.B.
DISCUSSION
In the defendant's first assignment of error, he contends that the trial court erred by imposing a sentence which is unconstitutionally excessive. He avers the imposed sentence of four years imprisonment is too severe based on the circumstances and his personal background.
Article I, Section 20 of the Louisiana Constitution prohibits the imposition of excessive punishment. Although a sentence may be within statutory limits, it may violate a defendant's constitutional right against excessive punishment and is subject to appellate review. State v. Sepulvado, 367 So.2d 762, 767 (La. 1979). A sentence is constitutionally excessive if it is grossly disproportionate to the severity of the offense or is nothing more than a purposeless and needless infliction of pain and suffering. See State v. Hurst, 99-2868 (La. App. 1st Cir. 10/3/00), 797 So.2d 75, 83, writ denied, 2000-3053 (La. 10/5/01), 798 So.2d 962. A sentence is grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. State v. Hogan, 480 So.2d 288, 291 (La. 1985). A trial court is given wide discretion in the imposition of sentences within statutory limits, and the sentence imposed by it should not be set aside as excessive in the absence of manifest abuse of discretion. State v. Lobato, 603 So.2d 739, 751 (La. 1992).
Louisiana Code of Criminal Procedure article 894.1 sets forth the factors for the district court to consider when imposing sentence. While the entire checklist of Article 894.1 need not be recited, the record must reflect that the district court adequately considered the criteria. State v. Brown, 2002-2231 (La. App. 1st Cir. 5/9/03), 849 So.2d 566, 569.
In 2004, the year in which the incident involving the minor victim occurred, whoever committed the crime of sexual battery, as defined by La. R.S. 14:43.1, was subject to punishment by imprisonment, with or without hard labor, without the benefit of parole, probation, or suspension of sentence, for no more than ten years. La. R.S. 14:43.1(C) (prior to amendment by La. Acts 2006, No. 103 § 1). Because the defendant was found guilty of attempted sexual battery, he was subject to a maximum sentence of one-half of the longest term of imprisonment prescribed for the substantive offense. See La. R.S. 14:27(D)(3). Therefore, the maximum potential term of imprisonment was five years without the benefit of probation, parole, or suspension of sentence.
La. R.S. 14:43.1(C)(2) now provides for enhanced penalties if the offender is seventeen years of age or older and the victim of the sexual battery is under the age of thirteen. However, these provisions were not in effect at the time at which the incident involving the victim occurred, and it is the statute in effect at the time of the offense which governs the applicable punishment for a particular crime. See State v. Hyde, 2007-1314 (La. 11/21/07), 968 So.2d 726 (per curiam).
In this case, the trial court sentenced defendant to four years imprisonment with hard labor and without the benefit of probation, parole, or suspension of sentence. Prior to rendering the defendant's sentence, the trial court heard and accepted into the record a victim impact statement from the minor victim, S.B., and, in speaking to the defendant prior to sentencing, noted the defendant refused to accept responsibility for his actions despite being found guilty of an attempted aggravated sexual offense against a minor. The trial court thereafter explicated that it had "considered all of the factors under [La. Code Crim. P. art.] 894.1[,]" specifically concluding a lesser sentence would deprecate the seriousness of the offense and the defendant was in need of correctional treatment in a custodial environment. See La. Code Crim. P. art. 894.1(A). In mitigation, the trial court found only that the defendant did not have any prior convictions.
In light of the trial court's well-reasoned basis for imposing the challenged four-year imprisonment sentence, and considering the record as a whole, the sentence is not grossly disproportionate to the severity of the offense. The trial court did not abuse its discretion and the sentence is not unconstitutionally excessive. Therefore, the defendant's first assignment of error lacks merit.
In the defendant's second assignment of error, he argues that the imposed sentence is indeterminate and illegal. As it is presented to this court, we interpret the defendant's second assignment of error as raising two, interrelated issues: 1) whether the trial court erred by ordering the defendant pay an indeterminate amount of restitution, and 2) whether the trial court erred by ordering the defendant pay restitution to persons other than the minor victim of the attempted sexual battery. Because we find merit in the appellant's contention that the trial court violated La. Code Crim. P. art. 883.2 by failing to specify the amount, mode, and manner of payment of restitution, we pretermit any discussion of whether the trial court also erred by ordering the defendant pay restitution to the minor victim and her family for expenses related to therapy as a result of the defendant's proven criminal conduct.
In the instant case, the trial court imposed the four-year sentence without probation, parole, or suspension of sentence, advised the defendant regarding sex offender registration, ordered completion of a sex offender prevention course, and then stated as follows: "I am also going to order if there are any expenses on behalf of the victims that is related to therapy as a result of these acts by you or to the victim, [S.B], that you will reimburse her or her family for those expenses." As noted by the State in its reply brief, the defendant did not raise this issue below. Nonetheless, when a trial court fails to state the amount of restitution ordered, the sentence is indeterminate and illegal, and is patent error on the face of the record. State v. Baxley, 2014-48 (La. App. 3d Cir. 5/7/14), 139 So.3d 556, 557-58. Thus, we will address the issue raised in assignment of error number two in accordance with La. Code Crim. P. art. 920(2).
If a defendant who has been convicted of an offense is sentenced to imprisonment, the court shall impose a determinate sentence. La. Code Crim. P. art. 879. Restitution as part of a principal sentence is imposed pursuant to La. Code of Crim. P. art. 883.2, which provides: "In all cases in which the court finds an actual pecuniary loss to a victim, or in any case where the court finds that costs have been incurred by the victim in connection with a criminal prosecution, the trial court shall order the defendant to provide restitution to the victim as a part of any sentence that the court shall impose." La. Code of Crim. P. art. 883.2(A).
The Code of Criminal Procedure provides for the imposition of restitution either as a condition of probation (La. Code Crim. P. arts. 895 and 895.1) or as part of the principal sentence (La. Code Crim. P. art. 883.2), Since the trial court did not place the defendant on probation in the present case, La. Code Crim. P. art. 883.2 is applicable to the instant case.
In State v. Fussell, 2006-2595 (La. 1/16/08), 974 So.2d 1223, the trial court, in pertinent part, ordered the defendant to pay restitution for any medical counseling and health expenses that the rape victim and her family might incur. Neither the amount of courts costs nor the amount of restitution for medical and health costs to the victim or her family were specified at sentencing. In reviewing this order, the Louisiana Supreme Court stated, "due to a nonspecific restitution order, the sentences imposed upon Defendant by the trial court were indeterminate and, thus, invalid." The case was remanded for resentencing on all convicted counts. Id. at 1238; Cf State v. Cloward, 42,123 (La. App. 2d Cir. 6/20/07), 960 So.2d 356, 359-60 (where the Second Circuit Court of Appeal held that the victim's reasonable costs of counseling and any other actual pecuniary loss caused by the offense can be imposed by the Department of Corrections as a condition to the defendant's supervised release as a sex offender upon expiration of his sentence); see La. R.S. 15:561.5(A)(16) (prior to amendment by 2008 La. Acts No. 672, § 2).
We note that in arguing the restitution order in this case is proper, the State cites Cloward in its reply brief. In light of the Louisiana Supreme Court's holding in Fussell and the fact that in this case the trial court imposed restitution as opposed to urging the Department of Corrections to impose restitution, we do not find the holding in Cloward persuasive and/or applicable to this case. See also, State v. Danos, 2008-2085 (La. App. 1st Cir. 7/22/09), 21 So.3d 414, 416 (this court vacated the order of restitution and remanded the matter to the trial court for an evidentiary hearing where no evidence was introduced at the sentencing hearing on which to base the trial court's award of restitution). --------
In State v. Nguyen, 2010-483 (La. App. 3d Cir. 2/2/11), 55 So.3d 976, 979, writ denied, 2011-0285 (La. 6/17/11), 63 So.3d 1038, the Third Circuit Court of Appeal found an order that the defendant "pay any outstanding restitution, out of pocket expenses that this victim has[,]" was indeterminate and, thus, illegal, because the trial court did not specify the amount of restitution owed. There too, the sentence was vacated and the case was remanded for resentencing. Id.
In this case, we find merit in the defendant's second assignment of error. Specifically, the trial court erred in failing to set the specific amount of restitution to be paid. As stated above, failure to state the amount of restitution renders a sentence indeterminate and thus illegal, necessitating that the sentence be vacated and the case remanded for resentencing. Baxley, 139 So.3d at 557-59; State v. Joseph, 2005-186 (La. App. 3d Cir. 11/2/05), 916 So.2d 378, 379-80.
CONCLUSION
Considering the foregoing, we hereby vacate the sentence and remand the case for resentencing. Fussell, 974 So.2d at 1238, Following an evidentiary hearing, the trial court is instructed that if restitution is ordered it must specify the amount of restitution owed. Joseph, 916 So.2d at 380. We therefore affirm the defendant's conviction, vacate the sentence, and remand for resentencing.
CONVICTION AFFIRMED, SENTENCE VACATED, REMANDED FOR RESENTENCING WITH INSTRUCTIONS.