Opinion
NO. 19-KA-336
01-29-2020
STATE of Louisiana v. Bennie STALLING
COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Honorable Paul D. Connick, Jr., Metairie, Thomas J. Butler, Andrea F. Long, Douglas E. Rushton, Emily E. Booth COUNSEL FOR DEFENDANT/APPELLANT, BENNIE STALLING, Cynthia K. Meyer
COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA, Honorable Paul D. Connick, Jr., Metairie, Thomas J. Butler, Andrea F. Long, Douglas E. Rushton, Emily E. Booth
COUNSEL FOR DEFENDANT/APPELLANT, BENNIE STALLING, Cynthia K. Meyer
Panel composed of Judges Susan M. Chehardy, Stephen J. Windhorst, and John J. Molaison, Jr.
MOLAISON, J.
Defendant/appellant, Bennie Stalling, appeals his conviction of attempted sexual battery and the resulting sentence. For the following reasons, we affirm the conviction and sentence.
PROCEDURAL HISTORY
On January 29, 2018, the State filed a bill of information charging defendant with sexual battery upon a known female in violation of La. R.S. 14:43.1. Defendant entered a plea of not guilty to the charge. On December 5, 2018, the trial court granted the State's notice of intent to introduce evidence of other crimes and granted the State's motion in limine to exclude evidence on the victim's past sexual behavior. On February 20, 2019, a jury trial on the charge resulted in a conviction of the responsive verdict of attempted sexual battery. On February 21, 2019, defendant was sentenced to five years imprisonment to be served without benefit of parole, probation or suspension.
The bill of information was amended on November 29, 2018 to correct the date of the alleged crime and to add several aliases.
On February 26, 2019, the State filed a multiple offender bill of information alleging that defendant was a fourth felony offender. The multiple bill of information was refiled on March 28, 2019 to allege that defendant was a fourth or subsequent felony offender. Defendant stipulated to the charges of the multiple offender bill of information. The trial court vacated the original sentence and sentenced defendant as a fourth felony offender to serve twenty years at hard labor without benefit of parole, probation, or suspension of sentence and mandated that defendant register as a sex offender for life. Defendant filed a timely appeal to this Court.
The bill of information was amended on April 2, 2019 to correct a minor error.
FACTS
The victim, B.C., is a twenty-two year old woman, who together with her infant son, periodically lives with her great-great aunt, E.W. in Marrero. B.C.'s younger sister, Br.C., age eighteen, also lives in the home. E.W. was dating defendant, and he was staying at her home over the Thanksgiving holidays in November of 2017. B.C., her infant son, and Br.C. were also staying in E.W.'s home over the holidays. B.C. testified that she had met defendant at her aunt's home three or four times and had no problems with him prior to the incident resulting in the criminal charge.
E.W. worked nights and had to report to work at 6 p.m. According to B.C.'s testimony, after E.W. left for work on the evening of November 21, 2017, B.C. went into the kitchen and asked defendant if she could have some of his Bacardi. He agreed and she poured herself a "two shot glass" which she took out onto the back porch. As she sat on the back porch smoking a cigarette and texting her boyfriend, defendant came out to join her. He asked her for a cigarette. B.C stated that she told him she didn't have another one because cigarettes are expensive. But, she offered him part of the one she was smoking. Contrary to defendant's testimony, B.C. denied the cigarette was marijuana. She stated that she and defendant discussed issues she was having with her baby's father. She also testified that both she and the defendant were drinking, but defendant did not make any inappropriate comments or do anything that made her feel uncomfortable while they were talking on the porch.
At about midnight B.C. went inside the house to check on her baby who was sleeping in Br.C.'s room and then went to her own room to go to bed. She woke up about one hour later because she felt someone kissing the back of her neck. She testified that she felt "like something (was) scratching (her) vagina." When she was fully awake, she realized it was defendant who was behind her in bed with his hand in her underwear trying to penetrate her with his finger. She jumped up and told defendant to get out of her room. She went to check on her baby again and when she returned defendant was still sitting in her bedroom. She told him to get out a second time and he left. Because she was unable to go back to sleep after the incident, she returned to the back porch and smoked another cigarette. Defendant came out to apologize. He told her he was a "little drunk," and that she was that "piece of cake in the frig" that he was told not to touch but that she was "something nice to look at" and "a man's weakness." B.C. did not accept the apology and told defendant she was going to tell her aunt about the incident.
Later that morning, defendant went to pick up E.W. from work. B.C. came into the kitchen and her aunt asked her what was wrong because it was unusual for B.C. to be awake that early. B.C. told E.W. about awaking to find defendant in her bed. E.W. told her to stay in the kitchen while she went out to talk to defendant. B.C. was crying and also told Br.C. what happened. E.W. came back into the kitchen with defendant and instructed B.C. to tell defendant what she had just told E.W. B.C. told defendant, "I woke up with you in my bed last night." According to B.C.'s testimony, defendant said he was "a little drunk" and that he was glad she told E.W. about the incident because "as a man I couldn't sit here and tell you that." E.W. told defendant to pack his belongings because she was going to bring him back to his home.
B.C. testified that E.W. sent B.C. to the store and told her to call the police. B.C. called 9-1-1 and reported the incident. A tape of the 9-1-1 call was played for the jury. B.C. told police she did not need to go to the hospital because she was not physically hurt. B.C. testified that she did not know defendant was a convicted sex offender and had no reason to want to get defendant out of her aunt's home before the incident. B.C. stated that she did not give defendant permission to enter her bedroom, get into her bed or to physically touch her.
B.C. explained that she was diagnosed with bipolar disorder at the age of eight. She stated that she does not take the prescribed medication for the disorder because she can control the condition without the medication. B.C. also testified that she pled guilty to criminal trespass and simple battery, both misdemeanors, and received one year probation.
In her testimony, E.W. stated that B.C. lived with her between the ages of thirteen and twenty, and that Br.C. has lived with her since she was nine years old. E.W. testified that defendant was her ex-boyfriend and that she had been dating him for a few months at the time of the incident. She explained that defendant lived in Houma and was visiting for the Thanksgiving holidays. Her relationship with defendant was good and he was helpful around the house. E.W. testified that defendant slept in her room when he was visiting. Br.C. and B.C. and her son had their own bedrooms. E.W. verified that she worked nights and was not at home when the incident happened. Defendant drove her to her place of employment, Seaside Behavior Health, at 6 p.m. that evening and picked her up the next morning. She testified that defendant was "extra quiet" and "kind of guarded" in the morning so she asked him if something was wrong. Defendant answered negatively. However, when E.W. went into her kitchen, B.C. and Br.C were up earlier than usual waiting for her. B.C. told her defendant came into her room during the night and put his hand in her underwear. E.W. went out to find defendant to ask him if anything happened between him and B.C. He denied that anything happened. However, when B.C. repeated the allegation, defendant put his head down and said, "yeah, that was it" and admitted he had been drinking and he did it. At that point, E.W. told defendant to pack up his things, she was driving him back to his home in Houma.
E.W. dialed 9-1-1 and gave the phone to B.C. E.W. denied that she sent B.C. to the store. Police came to the house and took statements but did not collect any evidence. B.C. testified that she did not know defendant was a convicted sex offender. If she had known, she would not have left B.C. and Br.C. alone with him.
Br.C. also testified at trial. She was in the house when police arrived and arrested her aunt's boyfriend. She stated that she lived in the house with her aunt and was sleeping in her bedroom with B.C.'s infant son. In the morning, she found B.C., E.W. and defendant in the kitchen talking. She heard the conversation in which E.W. asked defendant if he touched B.C. She heard defendant deny it and then admit it and apologize; however, she was not certain what exactly they were talking about because B.C. had not yet told her about the incident.
The jury also heard testimony from Detective Jerry Devorak of the Jefferson Parish Sheriff's Office who responded to the complaint of sexual battery at E.W.'s home. He testified that the victim positively identified defendant as the perpetrator. Detective Devorak arrested defendant for sexual battery and transported him to police headquarters. Defendant told the detective he drank a bottle of alcohol the night before.
Amanda Munguia testified that she worked for the District Attorney's Office in the Victim Witness Department. She was involved in the screening process in this case and she was present at a meeting with Jennifer Rosenbauch, the screening attorney, and B.C. Ms. Munguia testified that B.C. said defendant made a statement comparing her to "cake in a frig" that he was not supposed to touch. She recalled that statement because it was very specific and uncommon.
Kevin Folse testified to issues relating to other crimes evidence against defendant. He stated that he was employed by the Houma Police Department in 1995 when he responded to a call regarding a sexual assault. Mr. Folse met with the victim who called 9-1-1 to report the assault and got a description of the suspect. Defendant was later apprehended, arrested and charged with the crime. There is a stipulation in the record that defendant plead guilty to that crime.
Defendant testified that he had convictions for sexual battery, misdemeanor battery, unauthorized entry, DWI and a felony battery charge. He explained he served forty-four months of a ten-year sentence on the DWI conviction. Defendant stated that he worked offshore occasionally and when he was not working he lived with his sister in Houma and with E.W when they were dating. Defendant testified that Br.C. lived with E.W. B.C. also lived there with her infant son, but was often away from the home. He testified that B.C. did not like living with her aunt, and avoided her, but had nowhere else to go.
On the evening of the incident, defendant maintains that he fixed himself a drink and went out on the porch. B.C. came outside and joined him and they talked about how she wanted to move to Mississippi. She also told defendant she was having issues with her son's father and that she lost her job. B.C. began to cry and asked him for money to buy marijuana. She had been drinking alcohol and smoking marijuana during the conversation. Defendant refused to give B.C. money for marijuana.
After a while, he went inside and asked Br.C. to help him download music and then went to bed. He testified that he did not get up again until the next morning. Defendant described B.C. as "wild and loose," and testified that his impression was that she was interested in a sexual encounter with him. He stated that he believes he was just a pawn in a scheme B.C. made up to get back at her aunt.
Defendant testified that he picked E.W. up from work at the end of her shift in the morning and they went together to an interview he had for a job as a forklift driver at Sam's. Shortly after they returned to the house, E.W. asked what happened between him and B.C. He told her nothing happened. He went into the kitchen at E.W.'s request and was confronted with B.C.'s accusation. He denied that he confessed to the act and maintained that he only went into Br.C.'s room, not B.C.'s the night before. E.W. told him their relationship was terminated and that she would bring him home.
Defendant got his belongings together and got into the car. Two Jefferson Parish Sheriff Office units drove up and a deputy handcuffed him and brought him to the detective bureau. He testified that he told detectives he did nothing to B.C. and that she was making up the story. He specifically denied going into B.C.'s room and putting his hand in her underwear and touching her vagina.
LAW AND ANALYSIS
In brief to this Court, defendant assigns three errors:
1. The trial court erred in granting the State's motion to introduce other crimes evidence.
2. The trial court erred in granting the State's motion in limine, which infringed upon appellant's constitutional right to present a defense.
3. The sentence imposed is excessive.
Assignment number one
In his first assignment of error, defendant argues the trial court erred in granting the State's motion to introduce other crimes evidence. The State filed its notice of intent to introduce evidence of other crimes and the trial court conducted a hearing on the merits on December 5, 2018. At the hearing, the State submitted evidence of defendant's conviction of sexual battery in 1995 after his guilty plea. The facts elicited at that hearing show that, in March of 1995, defendant walked up to the victim and asked for a cigarette or a lighter. She said no. He asked again and once again she said no. At that point, defendant grabbed her, pushed her to the ground and touched her vaginal area. He pled guilty to the offense and received a three-year sentence.
Defendant argues the facts of his prior conviction are so vastly different from those in the instant case, it cannot be said that he used the same method to commit both offenses. Defendant also asserts the prior conviction was not necessary for the State to prove motive or intent. Defendant argues that it is clear that the improper purpose and effect of the prior conviction was merely to portray him in the worst possible light, to prove he is a man of bad character, and to convince the jury that because he pled guilty to committing sexual battery previously, he must have committed sexual battery in the instant case.
The State responds that the trial court was correct in allowing the evidence of the prior sexual battery conviction to be presented to the jury. The State reasons that the factual similarity between the prior conviction and the instant matter supports the trial court's ruling.
Both the victim in the 1995 sexual assault and the current victim were women in their early twenties. Defendant asked both for a cigarette to initiate conversation and both were sexually assaulted afterward by defendant touching their vaginal area. In both instances, defendant indicated that the victim wanted the incidents to occur. In the prior case, the victim stated that defendant kept telling her, "come on, you know you want it." In the instant case, defendant testified that he thought B.C. actually wanted a sexual encounter with him.
La. C.E. art. 412.2 (A) provides:
When an accused is charged with a crime involving sexually assaultive behavior, or with acts that constitute a sex offense involving a victim who was under the age of seventeen at the time of the
offense, evidence of the accused's commission of another crime, wrong, or act involving sexually assaultive behavior or acts which indicate a lustful disposition toward children may be admissible and may be considered for its bearing on any matter to which it is relevant subject to the balancing test provided in Article 403.
This article creates an exception to the rule set forth in article 404(B)(1), which generally prohibits the introduction of evidence of "other crimes, wrongs or acts" for the purpose of proving a person's character or propensity to criminal activity. State v. Layton , 14-1910 (La. 3/17/15), 168 So.3d 358, 359. As mandated by art. 412.2, consideration of the admissibility of evidence of prior sexual offenses must be balanced with the provisions of La. C.E. art. 403 which provides:
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or waste of time.
Defendant argues the evidence of his prior conviction should be inadmissible because the probative value would be outweighed by the unfair prejudice and confusion to the jury.
The State argues that the evidence in this instant case was not so prejudicial as to warrant its exclusion under La. C.E. art. 403. The State points out that the evidence of the prior crime was presented to the jury in a clear, organized, and concise manner and there was no indication in the record that the contested evidence confused or misled the jury.
Under La. C.E. article 412.2, evidence of a prior sexual offense is admissible if relevant and if its probative value outweighs its prejudicial value. Rulings on the admissibility of evidence will not be disturbed, absent an abuse of discretion. State v. Bridgewater, 98-658 (La. App. 5 Cir. 12/16/98), 726 So.2d 987, 993. Absent a clear abuse of discretion, the trial judge's determinations concerning relevancy and admissibility of evidence of other sexual offenses should not be overturned. State v. Montero , 18-397 (La. App. 5 Cir. 12/19/18), 263 So.3d 899, 907.
In the matter before us, the prior sexual assault is highly relevant to show defendant's propensity to sexually assault women by starting a casual conversation and forcibly touching their vaginal area. Additionally, the evidence of the prior crime was presented to the jury through the testimony of Mr. Folse, a former Houma police officer who responded to the call regarding the sexual offense charge, and by introduction of the guilty plea to the crime by defendant. Further, the defendant testified to the prior conviction. Under these circumstances, it is not likely that the jury was confused or misled by the introduction of the prior crime evidence.
Upon review of the entirety of the record in this matter, we find the probative value of the prior sexual assault conviction outweighs its prejudicial value, and that evidence of defendant's prior conviction for sexual assault was correctly deemed admissible by the trial court. Accordingly, we find no merit in this assignment of error.
Assignment Number Two
In his second assignment of error, defendant asserts the trial court erred in granting the State's motion in limine preventing defendant from presenting evidence that B.C. made numerous vague allegations of sexual assault in the past, some of which were never investigated and none of which were verified. Defendant further alleges that these allegations of sexual abuse were made at times when B.C. was being reprimanded for her behavior, making them highly doubtful. Defendant argues this restriction infringed on his constitutional right to present a defense.
A defendant has a constitutional right to present a defense. Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 1923, 18 L.Ed.2d 1019 (1967). The Sixth Amendment to the United States Constitution and Article I § 16 of the Louisiana Constitution guarantee an accused in a criminal prosecution the right to be confronted with the witnesses against him. State v. Zeringue , 03-697 (La. App. 5 Cir. 11/25/03), 862 So.2d 186, 195, writ denied, 03-3523 (La. 4/23/04), 870 So.2d 298. The primary purpose behind this right is to secure for the defendant the opportunity for cross-examination. Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). The right to present a defense and to confront witnesses includes the right of a defendant to attack the credibility of a witness by examining him or her concerning any matter having a reasonable tendency to disprove the truthfulness of his or her testimony. La. C.E. art. 607(C). The right of an accused sex offender to present a defense is, however, balanced against the victim's interests under La. C.E. art. 412 , (the rape shield statute) which is meant to protect the victim of sexual assault from having her sexual history made public. State v. Zeringue , supra.
La. C.E. article 412 provides in pertinent part:
A. (1) Opinion and reputation evidence; sexual assault cases. When an accused is charged with a crime involving sexually assaultive behavior, reputation or opinion evidence of the past sexual behavior of the victim is not admissible.
(2) Other evidence; exceptions. When an accused is charged with a crime involving sexually assaultive behavior, evidence of specific instances of the victim's past sexual behavior is also not admissible except for:
(a) Evidence of past sexual behavior with persons other than the accused, upon the issue of whether or not the accused was the source of semen or injury; provided that such evidence is limited to a period not to exceed seventy-two hours prior to the time of the offense, and further provided that the jury be instructed at the time and in its final charge regarding the limited purpose for which the evidence is admitted; or
(b) Evidence of past sexual behavior with the accused offered by the accused upon the issue of whether or not the victim consented to the sexually assaultive behavior.
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La. C.E. art. 412 does not apply when a defendant attempts to use evidence of a victim's false allegations of improper sexual behavior to impeach the victim's credibility. State v. Smith, 98-2045 (La. 9/8/99), 743 So.2d 199, 203 ; State v. Wallace, 00-1745 (La. App. 5 Cir. 5/16/01), 788 So.2d 578, 587, writ denied, 01-1849 (La. 5/24/02), 816 So.2d 297. The relevant inquiry for the trial court in such an instance is whether reasonable jurors could find, based on the evidence presented by the defendant, that the victim made prior false accusations. State v. Smith, 98-2045 (La. 9/8/99), 743 So.2d 199, 203. A trial judge's determination regarding the relevancy and admissibility of evidence will not be overturned on appeal absent a clear abuse of discretion. State v. Plaisance , 07-822 (La. App. 5 Cir. 3/11/08), 982 So.2d 179, 185.
The State filed a motion in limine to exclude evidence of B.C.'s past sexual behavior pursuant to La. C.E. article 412, and argues that defendant failed to establish the applicability of an exception set forth in La. C.E. article 412.2(A)(2). The State points out that the victim did not recant the prior allegations and the defendant presented no evidence, only supposition, that the earlier allegations were false. Accordingly, the State asserts the trial court was correct in granting the motion in limine. In the alternative, the State argues that if the trial court abused its discretion, the error was harmless.
Defendant acknowledges that, although there was no explicit testimony that the allegations were false, it stretches the bounds of reason to believe that B.C. made credible allegations of at least six prior instances of abuse by six different perpetrators, including allegations of two separate instances of rape that were never investigated to determine their validity. Defendant argues that this evidence, if presented to the jury, could have persuaded jurors that the allegations against him were false.
At the hearing on the motion in limine, the State offered evidence from several witnesses. Leslie St. Julian, who taught science at Higgins High School, testified that in October of 2011, during a discussion with B.C. about a behavior issue, B.C. reported that she had been raped. B.C. was a freshman at the time and was a student who Ms. St. Julian described as "behaviorally challenging." Ms. St. Julian felt that the perpetrator was someone B.C. knew and that she feared harm would come to her if the details were established. Ms. St. Julian took B.C. to the counselor and police were called.
Sergeant Curtis Pettigrew of the Jefferson Parish Sheriff's Office testified that he responded to the call from Higgins High School. He stated that B.C. did not want to talk about the incident reported by Ms. St. Julian. Sergeant Pettigrew contacted B.C.'s guardian, E.W., who told the officer that she was familiar with the allegation made by B.C. Because B.C. would give no details, nothing else was done about the allegation.
E.W. testified that she is B.C.'s great-great aunt and that she was her guardian from the ages of thirteen to twenty-one. She was also the guardian for all of B.C.'s four siblings. E.W. became B.C.'s guardian after finding out that the children would likely be going into state custody because of abuse allegations. Sexual abuse allegations were made against the grandfather, and an older sister, and an uncle. E.W. testified that B.C. told her that while she was living with another aunt, she was raped in an elevator in a hotel in New Orleans. B.C. did not want to go to the police because she was afraid. The rapist told her he would come back and hurt her if she told anyone. E.W. was not certain whether B.C. knew the man or not, but B.C. asked E.W. not to tell her aunt. E.W. spoke to B.C. about the incident on multiple occasions but could not persuade her to make a police report. E.W. also testified that B.C. talked to her about an incident with E.W.'s former boyfriend who said inappropriate things to her and touched her on her buttocks.
La. C.E. art. 412 prohibits evidence regarding the past sexual behavior of the victim in sexual assault cases, except when there is an issue of whether the accused was the source of semen or injury, and when the past sexual behavior is with the accused and there is an issue of whether the victim consented to the charged sexually assaultive behavior. Article 412 does not apply when a defendant attempts to use evidence of a victim's false allegations of improper sexual behavior to impeach the victim's credibility. Smith , 743 So.2d at 202-203. However, the admissibility of such evidence is still subject to all other standards for admissibility under La. C.E. arts. 403, 404, 607, 608 and 613. Smith , 743 So.2d at 203. When a defendant attempts to use evidence of a victim's false allegations of sexual assault to impeach the victim's credibility, the question of admissibility is whether reasonable jurors could find, based on the evidence presented by a defendant, that the victim had made prior false accusations, and whether all other requirements of the Code of Evidence have been satisfied. Id.
This Court has previously found that the trial court properly granted the State's motion in limine and prohibited the defendant from questioning the victim about her allegations of sexual abuse against individuals other than the defendant, where none of the exceptions to article 412 apply, there was no issue as to whether the defendant was the source of semen or injury, the evidence of past sexual behavior was with persons other than the defendant, and there was no evidence the victim's prior allegations of improper sexual behavior were false. See State v. Bryant , 12-591 (La. App. 5 Cir. 2/21/13), 110 So.3d 1191, writ denied, 13-648 (La. 10/11/13), 123 So.3d 1218.
The trial court's determination regarding the relevancy and admissibility of evidence will not be overturned on appeal absent a clear abuse of discretion. State v. Hernandez, 11-712 (La. App. 5 Cir. 4/10/12), 93 So.3d 615, 628, writ denied, 12-1142 (La. 9/28/12), 98 So.3d 834. We find the trial court did not error in granting the State's motion in limine and prohibiting the defendant from questioning the victim about her allegations of sexual abuse against individuals other than the defendant. La. C.E. art. 412 prohibits evidence of the victim's past sexual behavior and none of the exceptions to that rule apply here. There was no issue as to whether defendant was the source of semen or injury, and the evidence of past sexual behavior was with persons other than defendant. Further, there was no evidence the victims prior allegations of improper sexual behavior were false. We find no merit in this assignment of error.
Assignment Number Three
In his final assignment of error, defendant asserts his twenty-year enhanced sentence is constitutionally excessive. He points out that he rejected the State's offer to plead guilty to sexual battery in exchange for a ten year sentence and that he elected to go to trial. Defendant also notes he was not convicted of the crime charged, but rather of a lesser offense of attempted sexual battery. Defendant argues he was penalized for exercising his right to a trial since he received a sentence that is twice as long as the one offered in the plea bargain by the State. While he admits the prior convictions charged in the multiple offender bill of information, he asserts that those crimes were many years ago and that he has been out of prison for several years. In those years he has held down and job and continued to better himself. He concludes the severe sentence of twenty years is constitutionally excessive because it makes no measurable contribution to acceptable penal goals and therefore is nothing more that the needless imposition of pain and suffering.
The State responds that defendant stipulated to the allegations in the multiple bill in exchange for imposition of the mandatory minimum sentence, and did not object to the sentence or file a motion to reconsider the sentence.
The record reflects that the trial court advised defendant of his rights when considering the multiple offender bill of information. Defendant indicated he understood those rights. The trial court noted defendant was a fourth felony offender and informed defendant that the sentencing range was twenty years to life and that he would receive, the minimum sentence of twenty years as a result of stipulating to being a fourth felony offender. Defendant indicated that he was not forced or threatened into stipulating to the allegations in the multiple offender bill. The record contains a valid waiver of rights form in the guilty plea on the multiple offender bill, which shows that defendant was to receive a twenty year sentence in exchange for his guilty plea. After receiving the minimum statutory sentence, defendant did not object to the enhanced sentence, nor did he subsequently move for reconsideration of the sentence.
A 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. La. C.Cr.P. art. 881.2(A)(2). Article 881.2 precludes a defendant from seeking review of an enhanced sentence to which the defendant agreed prior to stipulation to the multiple bill. State v. Moore , 06-875 (La. App. 5 Cir. 4/11/07), 958 So.2d 36, 46. Because defendant received a sentence imposed in conformity with a plea agreement that was set forth in the record at the time of the plea, he is barred from challenging his multiple offender sentence as excessive. Id. This assignment is without merit.
Errors Patent
We have reviewed the record for errors patent in accordance with L. 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). Upon that review, find the record does not reflect that defendant was re-arraigned after the State amended the bill of information on November 29, 2018 to change the date of the charged offence and to add several aliases. Because the defendant did not object to the lack of arraignment on the amended bill which added aliases, the error is waived. State v. Jones, 07-271 (La. App. 5 Cir. 10/30/07), 970 So.2d 1143.
With respect to the date of the occurrence. La. C.Cr.P. art. 468 provides that the date or time of the commission of the offense need not be alleged in the indictment unless it is essential to the offense. The actual date the offense is alleged to have occurred is not an essential element of the offense of sexual battery. State v. Simon , 10-1111 (La. App. 3 Cir. 4/13/11), 62 So.3d 318, 323, writ denied, 11-1008 (La. 11/4/11), 75 So.3d 922. The function of an arraignment is to notify the defendant of the charge against him. State v. Bluain , 315 So.2d 749, 752 (La. 1975). Since this amendment to correct the date was designed to cure deficiencies and not to alter the nature of the crime, defendant's plea to the original indictment applied to the amended indictment. Id.
The transcript reflects that the trial court incorrectly advised defendant that he had "two years after the judgment of conviction of sentence becomes final in which to seek post-conviction relief." La. C.Cr.P. art. 930.8(A) provides that "(n)o application for post-conviction relief, including applications which seek an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final under the provisions of Article 914 or 922..." When a trial court failed to properly advise, or provides an incomplete advisal, the appellate court may correct this error by informing the defendant of the applicable prescriptive period for post-conviction relief by means of its opinion. State v. Perez , 17-119 (La. App. 5 Cir. 8/30/17), 227 So.3d 864, 870.
Accordingly, by way of this opinion, we advise defendant that no application for post-conviction relief, including applications that seek an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence has become final under the provisions of La. C.Cr.P. arts. 914 or 922.
DECREE
For the foregoing reasons, we affirm defendant's conviction, multiple offender adjudication and enhanced sentence.