Opinion
NO. 2016 KA 1222
02-17-2017
STATE OF LOUISIANA v. TERRY LYN SMITH
Prentice L. White Baton Rouge, Louisiana Counsel for Defendant/Appellant Terry Lyn Smith Joseph L. Waitz, Jr. District Attorney Herbert W. Barnes, Jr. Ellen Daigle Doskey Assistant District Attorneys Houma, Louisiana Counsel for Appellee State of Louisiana
NOT DESIGNATED FOR PUBLICATION Appealed from the 32nd Judicial District Court In and for the Parish of Terrebonne State of Louisiana
Case No. 677,355 The Honorable Randall L. Bethancourt, Judge Presiding Prentice L. White
Baton Rouge, Louisiana Counsel for Defendant/Appellant
Terry Lyn Smith Joseph L. Waitz, Jr.
District Attorney
Herbert W. Barnes, Jr.
Ellen Daigle Doskey
Assistant District Attorneys
Houma, Louisiana Counsel for Appellee
State of Louisiana BEFORE: HIGGINBOTHAM, THERIOT, AND CHUTZ, JJ. THERIOT, J.
The defendant, Terry Lyn Smith, was charged by grand jury indictment with aggravated rape (counts one and two), sexual battery (count three), and aggravated incest (counts four, five, and six), violations of La. R.S. 14:42, La. R.S. 14:43.1(C)(2), and former La. R.S. 14:78.1(D)(1), respectively. The defendant pled not guilty on all six counts. After a trial by jury, the defendant was found guilty as charged on all six counts. The trial court denied the defendant's motion for postverdict judgment of acquittal and motion for new trial. The defendant was sentenced on counts one and two to life imprisonment, on count three to fifty years imprisonment, and on counts four, five, and six to fifteen years imprisonment. The trial court ordered that all sentences be served at hard labor, without the benefit of probation, parole, or suspension of sentence, and consecutive to one another. The trial court denied the defendant's motion to reconsider sentence. The defendant now appeals.
Noting that La. R.S. 14:42 was amended to "first degree rape" in 2015 without any material alteration of the substance of the provision, on counts one and two, we reference the previous title based on the dates of the offenses. La. R.S. 14:42(E); 2015 La. Acts No. 184, § 1; 2015 La. Acts No. 256, § 1. In reference to counts four, five, and six, subsequent to the instant offenses the Legislature repealed former La. R.S. 14:78.1 and amended La. R.S. 14:89.1 to include the crime of aggravated incest under the broader crime of aggravated crime against nature. See La. R.S. 14:89.1(A)(2)(a); 2014 La. Acts, No. 177, §§ 1 & 2; 2014 La. Acts No. 599, § 1.
Contending that there are no non-frivolous issues upon which to support the instant appeal, the defense counsel filed a brief on behalf of the defendant raising no assignments of error and requesting a routine patent error review pursuant to La. Code Crim. P. art. 920(2). The defense counsel also filed a motion to withdraw as counsel of record. For the following reasons, we affirm the convictions, affirm the sentences imposed on counts one, two, and three, amend the sentences imposed on counts four, five, and six, affirm the sentences imposed on counts four, five, and six as amended, remand with instructions, and grant the defense counsel's motion to withdraw.
STATEMENT OF FACTS
At the age of seven years old, the victim, T.R., met the defendant (her stepfather for the bulk of her childhood), who began living with and ultimately married the victim's mother, C.S. During her childhood, the victim rotated back and forth between three households, including her grandmother's home in Houma, Louisiana, her mother's home in Walker, Louisiana, and her biological father's home in Florida. When the victim was ten years old, in November of 2004, the defendant had sexual intercourse with her for the first time while the other occupants at her grandmother's house were asleep. The victim specifically testified that the defendant pulled down her underwear and shorts, put his genitals between her legs and then into her vagina, that it "really hurt," and that she was bleeding. The victim was scared and confused, and did not tell anyone about the incident.
Herein, in order to protect the identity of the victim, whose date of birth is February 16, 1994, only initials will be used to identify the victim and her mother. See La. R.S. 46:1844(W) (amended by 2016 La. Acts, No. 387).
As the victim's mother and the defendant often visited the victim's grandmother, took the victim on out-of-state trips, and took trips to Florida while the victim was at her father's residence, incidents took place in and out of Terrebonne Parish. The statement of facts herein only include incidents that occurred in Terrebonne Parish, the bases of the charges in this case.
The victim also recalled the defendant having sexual intercourse with her when she was twelve years old, in 2006, when he came to her grandmother's residence to repair the floorboards in the house. The victim stated that the incident occurred when her mother, grandmother, and sister left the home to go shopping, though the victim's nanny was present in the home asleep. The defendant called the victim into the room with him with the pretense of needing help with the floorboards, but then had vaginal intercourse with the victim once she entered the room. That year, during the regular Thanksgiving gathering at the victim's grandmother's residence, the defendant also inserted an empty beer bottle into the victim's vagina.
The defendant also rented hotel rooms in Terrebonne Parish for the purpose of engaging in sexual intercourse with the victim. The victim specifically testified that in 2007 the defendant rented a room under the pretense that he was taking the victim to get donuts and to Wal-Mart. Similarly, in 2009 or 2010, when the victim was fifteen or sixteen years old, the defendant rented a room and had sexual intercourse with the victim before taking her to Wal-Mart. The final incident took place in 2011, when the victim was seventeen years old and the defendant had sexual intercourse with her in a vehicle parked in a Wal-Mart parking lot in Houma.
The defendant testified at the trial and denied all of the victim's allegations, providing work-related alibis. However, the defendant recalled going to the victim's grandmother's house to repair the floorboards though he denied sexually abusing the victim. The defendant admitted to having a previous conviction of sexual battery of T.R., the victim in this case, in Livingston Parish.
ANDERS BRIEF
The defense counsel has filed a brief containing no assignments of error and a motion to withdraw. In the brief and motion to withdraw, referring to the procedures outlined in State v. Jyles, 96-2669 (La. 12/12/97), 704 So.2d 241 (per curiam), counsel indicated that after a conscientious and thorough review of the record, he could find no non-frivolous issues to raise on appeal.
The procedure in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), used in Louisiana, was discussed in State v. Benjamin, 573 So.2d 528, 529-31 (La. App. 4th Cir. 1990), sanctioned by the Louisiana Supreme Court in State v. Mouton, 95-0981 (La. 4/28/95), 653 So.2d 1176, 1177 (per curiam), and expanded by the Louisiana Supreme Court in Jyles, 704 So.2d at 242. According to Anders, 386 U.S. at 744, 87 S.Ct. at 1400, "if counsel finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw." To comply with Jyles, appellate counsel must review not only the procedural history of the case and the evidence presented at trial, but must also provide "a detailed and reviewable assessment for both the defendant and the appellate court of whether the appeal is worth pursuing in the first place." Jyles, 704 So.2d at 242 (quoting Mouton, 653 So.2d at 1177). When conducting a review for compliance with Anders, an appellate court must conduct an independent review of the record to determine whether the appeal is wholly frivolous.
Herein, the defense counsel has complied with all the requirements necessary to file an Anders brief. The defense counsel has reviewed the procedural history and facts of the case. The defense counsel concludes in his brief that there are no non-frivolous issues for appeal. Further, the defense counsel certifies that the defendant was served with a copy of the Anders brief and the motion to withdraw as counsel of record. The defense counsel's motion to withdraw notes the defendant has been notified of his right to file a pro se brief on his own behalf, and the defendant has not filed a pro se brief.
As requested by defense counsel and routinely performed on appeal, this Court has conducted an independent review of the entire record in this matter, including a review for patent error under La. Code of Crim. P. art. 920(2), and we note the following. As previously stated herein, the defendant was convicted on counts four, five, and six of aggravated incest under former La. R.S. 14:78.1. In accordance with the applicable penalty provision, a person convicted of aggravated incest shall be fined an amount not to exceed fifty thousand dollars, or imprisoned, with or without hard labor, for a term not less than five years nor more than twenty years, or both. See former La. R.S. 14:78.1(D)(1). While the trial court imposed sentences of fifteen years imprisonment at hard labor on counts four, five, and six without the benefit of parole, probation, or suspension of sentence, the restriction of parole is only appropriate for an aggravated incest offense committed on a victim under thirteen years of age by a person seventeen years of age or older. See former La. R.S. 14:78.1(D)(2). According to the record, count four occurred in November of 2007, count five occurred in 2009 or 2010, count six occurred in 2011, and the victim's thirteenth birthday was on February 16, 2007. Thus, the record does not reflect that the victim was under thirteen years old at the time of the aggravated incest offenses on counts four, five, and six. Therefore, the restriction of parole is illegal as to counts four, five, and six.
As noted, the aggravated incest offense on count four was committed in 2007. The parole restriction is inapplicable without a showing by the State that the offense was committed prior to the victim's thirteenth birthday on February 16, 2007. We note that the State did not allege or show that the offense was committed before the victim's thirteenth birthday. Specifically, the indictment alleges that the 2007 aggravated incest offense on count four occurred in November of 2007. Likewise, during the victim's trial testimony she stated that most of the incidents occurred around Thanksgiving. When subsequently asked to confirm that the 2007 offense occurred during the annual Thanksgiving gathering, she was uncertain. After reviewing an unintroduced document referred to as her statement to refresh her memory, she confirmed that the offense occurred in 2007 without a follow-up inquiry to pinpoint the month for the record. As there is no indication or showing that the offense occurred before February 16, 2007, the record does not support the trial court's restriction of parole on count four, as well as the subsequent aggravated incest offenses on counts five and six. --------
An appellate court is authorized to correct an illegal sentence pursuant to La. Code Crim. P. art. 882(A). Ordinarily, when correction of such an error involves sentencing discretion, an appellate court should remand to the trial court for correction of the error. See State v. Haynes, 2004-1893 (La. 12/10/04), 889 So.2d 224 (per curiam). In the instant case, the trial court inadvertently exceeded its authority in restricting parole on each count though only statutorily authorized to do so on counts one, two, and three. Because the defendant lawfully received life sentences on counts one and two, and fifty years imprisonment on count three, each to be served consecutively and with the restriction of benefits as permitted and/or mandated by statute, we find that remand would be futile in this case. Therefore, in the interest of judicial economy, we exercise our authority under La. Code Crim. P. art. 882(A) to delete the trial court's restriction of parole on counts, four, five, and six. See State v. P.T., 2007-665 (La. App. 3d Cir. 12/5/07), 970 So.2d 1255, 1257-58, writ denied, 2008-26 (La. 5/30/08), 983 So.2d 895; see also State v. Miller, 96-2040 (La. App. 1st Cir. 11/7/97), 703 So.2d 698, 701, writ denied, 98-0039 (La. 5/15/98), 719 So.2d 459.
We have found no other errors under La. Code Crim. P. art. 920(2). Furthermore, our independent review reveals no non-frivolous issues or trial court rulings that arguably support this appeal. Accordingly, we affirm the defendant's convictions, affirm the sentences on counts one, two, and three, amend the sentences imposed on counts four, five, and six to delete parole restrictions, and affirm the sentences on counts, four, five, and six as amended. We remand for correction of the minute entry and commitment order, if any, in compliance with this opinion. Defense counsel's motion to withdraw, which has been held in abeyance pending the disposition in this matter, is hereby granted.
SENTENCES ON COUNTS ONE, TWO, AND THREE AFFIRMED; SENTENCES ON COUNTS FOUR, FIVE, AND SIX AMENDED, AND AFFIRMED AS AMENDED; REMANDED WITH INSTRUCTIONS; DEFENSE COUNSEL'S MOTION TO WITHDRAW GRANTED.