Opinion
NO. 19-KA-593
03-17-2021
STATE of Louisiana v. Joseph A. PICARD
COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA Honorable Paul D. Connick, Jr., Thomas J. Butler, Anne M. Wallis, Lindsay L. Truhe, Zachary P. Popovich COUNSEL FOR DEFENDANT/APPELLANT, JOSEPH A. PICARD, Lieu T. Vo Clark
COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA Honorable Paul D. Connick, Jr., Thomas J. Butler, Anne M. Wallis, Lindsay L. Truhe, Zachary P. Popovich
COUNSEL FOR DEFENDANT/APPELLANT, JOSEPH A. PICARD, Lieu T. Vo Clark
Panel composed of Judges Fredericka Homberg Wicker, Marc E. Johnson, and Robert A. Chaisson
WICKER, J.
On June 26, 2019, Defendant, Joseph Picard, was convicted for two counts of attempted second-degree kidnapping, in violation of La. R.S. 14:27 and La. R.S. 14:44.1. On July 22, 2019, the trial court sentenced Defendant to twenty (20) years at hard labor on each count, to be served consecutively. Defendant now appeals his sentences, alleging that the district court erred in denying his motion to reconsider sentence and that his sentences are unconstitutionally excessive.
For the following reasons, we find no error in the district court's denial of the motion and affirm Defendant's convictions and sentences; however, based on our review of this case for errors patent, we remand this matter to the district court to correct the State of Louisiana Uniform Sentencing Commitment Order (UCO).
PROCEDURAL HISTORY
On August 16, 2017, the Jefferson Parish District Attorney filed a bill of information charging Defendant with the attempted second-degree kidnapping of Christine Kimble, in violation of La. R.S. 14:27 and La. R.S. 14:44.1 (count one), and the attempted second-degree kidnapping of a known juvenile, C.T., in violation of La. R.S. 14:27 and La. R.S. 14:44.1 (count two). Defendant was arraigned on August 17, 2017, and pled not guilty.
In the interest of protecting minor victims and victims of sexual offenses as set forth in La. R.S. 46:1844(W)(3), the judges of this Court have adopted a policy that this Court's published work will use only initials to identify the victim and any defendant or witness whose name can lead to the victim's identity (i.e., parent, sibling, or relative with the same last name as the victim). State v. E.J.M., III, 12-774, 12-732 (La. App. 5 Cir. 5/23/13), 119 So.3d 648, 652 n.1. Compare State v. R.W.B ., 12-453 (La. 12/4/12), 105 So.3d 54.
On July 26, 2017, Defendant filed an omnibus motion for a preliminary hearing. On August 15, 2017, Defendant filed a pro se motion for release without bail pending trial. At his arraignment, the trial court denied Defendant's motion, and the preliminary hearing was continued without date; the motion for a preliminary examination was not ruled on. Nevertheless, when a defendant does not object to the trial court's failure to rule on a motion prior to trial, the motion is considered waived. State v. Rivera , 13-673 (La. App. 5 Cir. 1/31/14), 134 So.3d 61, 66. Further, no preliminary examination shall be held invalid because of an error that does not substantially prejudice the defendant. La. C.Cr.P. art. 298.
Thereafter, on August 31, 2017, Defendant filed various omnibus motions, including a motion to suppress the statements, a motion to suppress the evidence, and a motion to suppress the identification.
On May 31, 2018, the State filed a motion for protective order along with various "Notice[s] of Additional Information," one of which was filed under seal. The trial court granted the protective order motion.
On February 14, 2019, the trial court considered and denied Defendant's motions to suppress evidence, identification, and statements. Thereafter, on February 25, 2019, the State filed a Notice of Intent to Introduce Evidence of Similar Crimes, Wrongs, and/or Acts Pursuant to Louisiana Code of Evidence Article 404(B) /Res Gestae Evidence, which the trial court granted on February 28, 2019, following a hearing. On June 21, 2019, the State also filed a Notice of Intention to Use Confession or Statement Pursuant to Code of Criminal Procedure Articles 767 and 768.
Trial began before a twelve-person jury on June 25, 2019, concluding on June 26, 2019. The jury unanimously found Defendant guilty as charged as to both counts. On July 22, 2019, after a victim impact statement was presented, the trial court sentenced Defendant to twenty (20) years imprisonment at hard labor on each count to be served consecutively, with the first ten (10) years of each sentence to be served without the benefit of parole, probation, or suspension of sentence. Also on July 22, 2019, Defendant filed a pro se motion to reconsider sentence, which the trial court denied. That same date, Defendant made an oral motion for appeal followed by a written appeal motion, which the trial court granted on July 23, 2019.
The victim impact statement consisted of a letter from C.T. reiterating her trial testimony regarding the fear and anxiety that the attempted kidnapping instilled in her.
Additionally, the Uniform Commitment Order reflects that Defendant was required to pay a $45 "IDB" fee.
Defendant now appeals, challenging the trial court's denial of his motion to reconsider sentence and the excessiveness of his maximum consecutive sentences.
FACTS
On June 15, 2017, Jefferson Parish Sheriff's Deputy John Walsdorf responded to a 9-1-1 call at Mike Miley Playground around 2:30 p.m. Deputy Walsdorf testified at trial that the caller was concerned about a suspicious person in the nearby parking lot who had offered a young girl, L.C., one hundred dollars ($100.00) to meet him outside.
Because this witness was a minor, her initials will be used to protect her identity. See State v. Barnett , 18-254 (La. App. 5 Cir. 4/3/19), 267 So.3d 209, 214, n.2.
The dispatcher's entry, offered into evidence, likewise reports a call was received at 2:30 p.m. regarding a suspicious man in a gray shirt that said "Jonathan" on the back, with black short hair, and neck tattoos who offered a child one hundred dollars ($100.00) to come outside. The entry further stated that the individual was sitting in the parking lot, facing the building, in a silver BMW.
L.C. testified at trial that, on June 15, 2017, she was eleven (11) years old and was attending a cooking camp at the building by Mike Miley Park. She testified that on the day in question, her group had just returned to her classroom from the playground when there was a knock on the side door leading outside. Another child opened the door and then approached her, telling her that there was someone at the door looking for her. She walked up to the door, but did not know the man standing there. L.C. described him as a slim, white man with tattoos and wearing a "mechanic's outfit." She testified that the man offered her one hundred dollars ($100.00) to meet him in the parking lot by his truck after camp. L.C. stated that she found the interaction "kind of suspicious;" so, she notified a camp counselor, who then contacted the police.
Deputy Walsdorf testified that, upon arriving at the scene, he spoke to L.C. and camp staff and obtained a description of the man and his vehicle. Going outside, he quickly found a person matching that description sitting alone in the parking lot in a silver BMW SUV, directly facing the side exit of the building. He approached the vehicle and the individual inside readily identified himself as Joseph Picard, Defendant. Deputy Walsdorf testified that Defendant denied any interaction with the children and stated he was just there to use the park, at which point Deputy Walsdorf spoke to the director of the park, who asked Defendant to leave, and Deputy Walsdorf escorted him away from the park.
Deputy Walsdorf testified that Defendant maintained a calm demeanor and willingly provided his name and identification.
On cross-examination, Deputy Walsdorf testified that camp staff thought Defendant was at the park to inquire about enrolling his child in the camp; however, Deputy Walsdorf never saw Defendant speak to a counselor nor did Defendant mentioned the prospect of enrolling a child in the camp to Deputy Walsdorf, he merely explained he was there to use the park.
Later that same evening, at 8:19 p.m., Detective Nick Vega responded to a call regarding an attempted kidnapping near the 2200 block of Judith Street in Metairie, Louisiana. Upon arriving at Sunrise Country Club about thirty (30) minutes after the 9-1-1 call, Detective Vega spoke to the victim, C.T. Detective Vega testified that C.T. was "visibly shaken, nervous, scared, clearly upset, [and] tearful."
Throughout the record, the location is referred to as the Sunrise Country Club, the Sunrise Community Club, and the Sunrise Community Center. For clarity purposes, this Opinion will refer to it only as "Sunrise Country Club" and/or the "country club."
C.T. testified she was fourteen (14) years old on June 15, 2017. That day her mother dropped her off at the country club around 3:00 p.m. to meet some friends. She testified that at about 7:30 p.m. that evening, she and a large group of friends decided to walk to nearby Lafreniere Park. After approximately fifteen (15) minutes at the park, she decided to return to Sunrise Country Club. She stated that as she walked back alone to the country club, she noticed a silver or light gray "truck." Upon safely making it back to Sunrise Country Club, she went in the pool for a bit and then stepped back outside to call her friends and see when they would be returning.
C.T. testified that while she was outside trying to contact her friends, a man approached, questioning her about a little girl named "Angie." She told the man that she did not know "Angie," and began to walk away when he grabbed her by the arm, started asking more questions, and then used his other hand to try and grab her by the neck. C.T. testified that the man had something orange, which she thought was a knife, in the hand he was holding up against her neck. She testified that she managed to pull away and run down a side alleyway. The man chased her down the alley, telling her approximately three (3) or four (4) times to "get in the f***ing truck."
Detective Vega testified that on the scene C.T. did not provide a color of the object to officers, but that she later identified the weapon as orange during her recorded statement at the Child Advocacy Center where she spoke with forensic interviewers who are specifically trained to question juvenile victims.
She testified that she had approximately one (1) minute to examine her attempted kidnapper's face.
C.T. testified the man chased her all the way down the alley and around the corner, but she got away. She testified that she did not stop running even when she got back into the country club; she ran past the front desk receptionist to a nearby table where she froze in shock. After a minute, she began having a panic attack, at which point a lifeguard approached her, to whom she could only say, "He tried to take me." She testified that, once she calmed down, she spoke to an employee at the country club, Ms. Landry, and that the police were called.
Darlene Landry testified that she works at the front desk of Sunrise Country Club, and has been doing so for approximately five (5) years. She testified that at a little after 8:00 p.m. on June 15, 2017, she saw C.T. run past her, from the front entrance, towards the pool area. She testified that from where the desk is located she was unable to see where or who C.T. was running from, or where exactly C.T. stopped, but that shortly thereafter another child approached her worried about C.T. Ms. Landry testified that she found C.T. "on a lounge chair, and she was visibly shaking. She was crying. She was terrified." Ms. Landry then testified that once C.T. calmed down enough to speak, the police were called.
C.T. concluded her trial testimony by informing the court how the attempted kidnapping had impacted her life. She testified that since the attack, she suffers from severe anxiety attacks and cannot be alone for more than a few hours. She cannot walk anywhere alone "without freaking out," and that she "always [has] to have a pepper spray or something to protect [her]self."
Detective Vega testified that C.T. gave him an on-scene description of the man who attempted to kidnap her. He testified that she described her attacker as "a white male, approximately five-eight, five-nine, about 140 pounds, tattoos on his neck," and armed with what she thought was a knife, but that C.T. could not provide a complete description of the weapon "because it was placed up to her neck, below her chin." He further testified that, during the on-scene investigation, he was able to obtain surveillance footage from a home three hundred (300) feet away from Sunrise Country Club, which showed a silver and/or gray SUV driving around at the time of the incident.
At trial, C.T. likewise testified that she gave the police a physical description of the man's height, weight, and tattoos on his neck. Additionally, the 9-1-1 dispatcher's report was entered into evidence, which further corroborated both C.T. and Detective Vega's testimony, stating that an unknown male, covered in tattoos, who was wearing a gray or blue shirt approached a 14-year-old girl, grabbed her arm, and told her to get in his vehicle, but that the girl ran off.
The surveillance video was entered into evidence; Detective Vega testified that the timestamp of the video is off by approximately one (1) hour because the homeowner informed officers he had not adjusted his recording system for daylight savings.
Detective Vega testified that while he was responding to the incident at Sunrise Country Club, the police received another call regarding another nearby attempted kidnapping with escalated violence, "where the victim was physically cut with an object, potentially a knife." He testified that he stayed at the country club with C.T., but kept in contact with the officers responding to the other scene, which was how he discovered that the description of the perpetrator provided by the other victim, Christine Kimble, matched C.T.’s description of her attacker.
Ms. Kimble testified that on June 15, 2017, she was twenty-eight (28) years old living on Buras Avenue in Metairie, Louisiana. Around 8:00 p.m. that evening, she was outside walking near the intersection of Jade Avenue and Buras Avenue when she saw a man in "a silver BMW-like truck-ish" vehicle. The man first drove past her on the street and did not say anything, but once she turned the corner, the man got out of his car and asked her for "a light." She walked up to where he was standing, near his car, lit his cigarette, and turned around to leave, at which point he grabbed her ponytail, pressed something cold to the back of her neck, and repeatedly told her "to get in the f***ing car or he would kill [her]." She testified that when he grabbed her, she pushed forward, struggling against him and screaming "Help" and ended up falling down right in front of the house that she was walking to—her mother's boyfriend's house.
On cross-examination, Ms. Kimble testified that she did not see the "cold object" put to the back of her neck. She testified that police later informed her the object was in fact a box cutter.
Ms. Kimble further testified that once she fell, she began kicking, punching, and doing "everything that [she] could to try and get him off [of her]." She testified that while she was fighting her attacker on the ground, he moved the cold weapon from her neck to against her arm. Ms. Kimble testified that the area where they were fighting on the ground was dark due to a broken street light, but that she saw him, face-to-face, in close proximity, when she lit his cigarette. After they struggled "for a little while," the man got in his car and drove away. She testified that she had neither seen, nor met her attacker prior to that evening.
Although Ms. Kimble testified that she did not notice she had been physically injured during the attempted kidnapping, police photos indicate that Ms. Kimble had been cut on the back of her neck, the top of her shoulder, and along her arm.
Ms. Kimble testified that she was hysterical upon entering the house. She called her sister, and then had her friend drive her home because she was too afraid to walk; her sister called the police who met Ms. Kimble back at her house on Buras. Ms. Kimble then testified that while waiting outside of her home for the police with her sister, she saw her attempted kidnapper drive past her again in the same vehicle. Shortly thereafter, officers, including Sergeant Kevin D. Tillman, the supervisor for the Personal Violence Unit (PVU) of the Jefferson Parish Sheriff's Office, met Ms. Kimble and her sister outside of her house, where Ms. Kimble provided the police with all the aforementioned information.
The 9-1-1 dispatcher's report indicates that Ms. Kimble's sister called the police at 8:32 p.m.
Sergeant Tillman's trial testimony further corroborated Ms. Kimble's version of events. He testified that, at the scene, Ms. Kimball told him a white male attempted to kidnap her from behind and that she got a good look at her attacker. He testified that she gave him a physical description of the perpetrator and that she said she saw him again after the attack as he drove past her house in a "silver or white BMW SUV" while waiting for the police.
Ms. Kimble concluded her trial testimony by stating that her life since the attack had not been the same; for months she could not go anywhere alone, she refuses to wear her hair in a ponytail anymore, and rarely wears her hair down so that no one can grab it.
Sergeant Tillman testified that he spoke to Ms. Kimble at the scene on June 15, 2017. He described her as very upset, physically shaking, and so nervous that she kept checking over her shoulder and around the area, despite the fact she was surrounded by police officers. He further described Ms. Kimble as physically small, about five-two (5’2") or five-three (5’3") in height and somewhere between one hundred (100) to one hundred fifteen (115) pounds; her hair was disheveled and she had scratches and cuts on her. He testified that Ms. Kimble informed him that she physically fought her attacker and that he took DNA swabs from under her fingernails, which were later sent to the crime lab.
The buccal swabs were entered into evidence, but did not recover any extrinsic DNA.
At trial, Detective Vega explained that upon receiving a description of the attempted kidnapper at Ms. Kimble's scene, he began to notice striking similarities in perpetrator and vehicle descriptions, at which point he compared the facts to those from the incident earlier that afternoon at Mike Miley Park where Deputy Walsdorf received the suspicious person's identification. He was able to develop a suspect upon realizing that all three (3) incidents involved a white male, approximately five-eight (5’8") or five-nine (5’9"), between one hundred forty (140) to one hundred fifty (150) pounds, with tattoos on his arms and neck, in a blue shirt, with a silver SUV, trying to lure and/or kidnap individuals. He further noticed that the incidents all occurred within a two-mile radius, and that the latter two incidents occurred within minutes of each other. Detective Vega testified that he obtained a driver's license photo of Defendant to show C.T., who positively identified Defendant as her attempted kidnapper.
The image used for the photo identification was entered into evidence.
C.T. testified that the police first brought her before an individual, asking if he was her attacker, but that it was the wrong man. She testified that the police later showed her a photograph on a tablet of a man whom she was nearly one hundred percent (100%) certain was her attacker. Immediately thereafter, the prosecution asked C.T. if she saw the individual who "tried to take [her] that day," at which point C.T. provided an in-court identification of Defendant as her attacker on June 15, 2017.
Both C.T. and Detective Vega testified at trial that, on the night of the attempted kidnapping, C.T. was shown the photograph and asked, "Is this the man that did this?" to which she responded, "yes, I'm almost 100% sure." However, nearly two months later, on August 10, 2017, during an interview with the Assistant District Attorney, C.T. viewed two images of Defendant, the image shown to her on June 15, 2017, and an additional photo in which Defendant was wearing a hat. In the recorded interview, C.T. stated that she could not remember exactly what her attacker looked like, but that she knew he had a tattoo on his neck, and that the photo where Defendant was not wearing a hat looked like the image she had previously seen.
Sergeant Tillman testified that during the course of the investigation, while he was at Ms. Kimble's house on the night of the attempted kidnapping, he received some information from Detective Vega that, through vehicle information, officers may have developed a potential suspect. Upon receiving the name of the suspect, "Joseph Picard," Sergeant Tillman found a photo of Defendant and showed it to Ms. Kimble, who was immediately "very confident" that the photographed individual was her attacker. Sergeant Tillman further identified Defendant in court as the individual in the photo that he showed to Ms. Kimble.
At trial, Ms. Kimble likewise stated that, shortly after the incident occurred, she identified her attacker through a photograph. Immediately thereafter, the prosecution asked Ms. Kimble if she saw the individual who tried to kidnap her at the intersection of Jade and Buras Avenues, at which point Ms. Kimble provided an in-court identification of Defendant as her attacker on June 15, 2017.
The image used for the photo identification was entered into evidence.
Upon receiving word that Ms. Kimble had also positively identified Defendant as her attempted kidnapper, Detective Vega testified that he returned to the Detective Bureau to author affidavits for arrest warrants for both incidents; around 12:00 am—midnight—on June 16, 2017, a judge signed the warrants. He testified that the entire PVU, along with other support personnel, was working to locate Defendant to no avail. However, officers discovered traffic camera images placing Defendant's vehicle and license plate, as recorded by Deputy Walsdorf at Mike Miley playground, in the area of Sunrise Country Club shortly before the attempted kidnapping of C.T. He testified that eventually officers obtained information regarding Defendant's wife's location and that Sergeant Tillman went to contact her.
Sergeant Tillman testified that at approximately 4:00 a.m. on June 16, 2017, he drove to the house where Defendant's wife was staying and obtained Defendant's cell phone number. The phone number was provided to the U.S. Marshal's Fugitive Task Force, the Criminal Intelligence Center, the local SWAT team, and the local Special Engagement Team. At some point after 9:00 a.m., the U.S. Marshals were successfully able to ping the phone and locate it at an apartment complex in Kenner, Louisiana. Sergeant Tillman testified that he, along with the rest of the PVU detectives, including Detective Vega, the SWAT team, and other Kenner police officers, responded to the location, where they found, apprehended, and, around 12:00 p.m., physically removed Defendant from the apartment. Both officers further testified that they found an orange box cutter in the apartment with Defendant.
Detective Vega testified that numerous prior attempts to ping the cellphone had failed because, according to Defendant's service provider, the phone had been powered off.
Before forcibly removing Defendant from the apartment, officers set a perimeter and made numerous attempts to coax Defendant outside but Defendant did not answer phone calls, knocks at the door, or any other attempted contact via the megaphone. Detective Vega testified that he arrived at the apartment around 10:30 am, but, officers did not enter the apartment until much later, after checking Defendant's car, which was located in the nearby parking lot, calling the cellphone, knocking on the door of the individual apartment Defendant was believed to be in, clearing the building, obtaining a search warrant, and sending in a robot.
Detective Vega testified that while no DNA was recovered from the box cutter, it was the same color as the weapon described by C.T. and had a knife-like edge as described by both C.T. and Ms. Kimble.
Detective Vega further testified that officers obtained a search warrant for the vehicle located at the apartment, and that the vehicle's license plate was the same license plate that was documented by Deputy Walsdorf at Mike Miley Playground. Defendant's clothing, cell phone, phone records, as well as other vehicle contents, were all seized pursuant to valid search warrants and entered into evidence.
Police photos taken at the time of Defendant's apprehension indicate that Defendant was found with various scrapes, cuts, and scratches, as well as with some blood on his shorts and elbow. Sergeant Tillman testified that, while the buccal swabs taken from Ms. Kimble's fingernails did not return any DNA evidence, he found Defendant's injuries to be significant because they were consistent with Ms. Kimble's description of the scratching and fighting with her attacker.
At trial, Defendant testified on his own behalf. He testified that he has a 1994 conviction for simple burglary, a 1996 conviction for "attempt felon with a firearm," a 1996 conviction for ten (10) counts of simple burglary, and a 2004 conviction for possession of hydrocodone. He stated that he was at Mike Miley playground on June 15, 2017, to obtain camp information for his two children. He testified that he walked into a building, used the restroom and then entered a classroom where he spoke to two (2) teachers. He denied speaking to any children or offering anyone money. Defendant testified that he was sitting in his car at the park because he had nowhere else to go. He testified that L.C.’s description of the vehicle did not match his vehicle and that after the police questioned him about an incident involving a young girl, he left to get a snowball at another playground.
Defendant acknowledged that his children were two (2) and four (4) years old at the time and that his children were not living with him. He stated that he did not know that the class was for eleven (11) and twelve (12) year olds.
In reference to the incident at Sunrise Country Club, Defendant testified that neither he nor his car were at the country club that evening; he denied any contact with C.T. or chasing any other girl in the area. Rather, he testified that between the time he was at Mike Miley and his interaction with Ms. Kimble, he was at the park. As to his interaction with Ms. Kimble, he testified that at 8:00 p.m. on June 15, 2017, he had a meeting with Ms. Kimble at a church, per her request. He testified that he first met Ms. Kimble "and a guy named Frank" about two weeks prior to the alleged attempted kidnapping when he sold Frank pain pills. He explained that Ms. Kimble had stopped him earlier in the day, on June 15, 2017, to inquire about purchasing more pills. Defendant testified that at the time of rendezvous, instead of meeting at the church as planned, Ms. Kimble flagged him down on the street and told him to park by her mother's house on the corner. He testified that he sold her pills, and that when he turned around to get a cigarette, she started to run off without paying. He stated that he then grabbed her shoulder, and potentially some hair, got his pills back, and left to go buy heroin from his drug dealer. Defendant further testified that after meeting Ms. Kimble, he did the heroin, went to his friend's apartment, and went to sleep upstairs. He also testified that he was entirely unaware of the police presence at the apartment the following morning because he was also on a very heavy sedative, "Trazodone," for sleep problems. He testified he was surprised to see officers when he woke up, but cooperated with them once in custody.
Defendant testified that, prior to trial, he denied knowing Ms. Kimble because he thought the police were investigating an attempted robbery related to the pills.
On cross-examination, Defendant testified that he believed both L.C. and C.T. had misidentified him. He testified that another person matching his description must have been at Mike Miley who offered L.C. money, but that he was not paying enough attention to notice any other individuals in the park, classroom, or parking lot.
The prosecution then questioned him about the inconsistency of his statements. The prosecution first pointed out that Defendant testified both that he saw Ms. Kimble while hanging out at the church on the morning of June 15, 2017, which was when she allegedly requested to meet there that evening, but had also told police in his recorded statement that he had been working as a plumber from 5:15 am through his arrival at Mike Miley. Defendant responded, "I went to the church," seemingly indicating that he first visited the church prior to Mike Miley.
The prosecution then asked Defendant for information regarding Frank's identity and why Frank was not called to testify on Defendant's behalf as Defendant presumably had Frank's phone number to contact him for drug sales. Defendant testified he did not know Frank's last name and that he could not call Frank as he did not have access to the outside world. Finally, the prosecution pointed out that while all the other testifying witnesses had been sequestered, Defendant had the benefit of hearing all witness testimony thereby allowing him to adjust his testimony accordingly. Defendant denied having adjusted any of his testimony, at which point the prosecution questioned Defendant about whether he told police that he was at home the evening of June 15, 2017, and that he had two witnesses to corroborate his story. When Defendant, at trial, denied having previously told police otherwise, the prosecution entered the recording of Defendant's police interview into evidence, played the recording, and impeached Defendant's testimony.
As previously mentioned, trial concluded on June 26, 2019, and the jury unanimously found defendant guilty of both the attempted second-degree kidnapping of Christine Kimble in violation of La. R.S. 14:27 and La. R.S. 14:44.1 (count one) and the attempted second-degree kidnapping of a known juvenile in violation of La. R.S. 14:27 and La. R.S. 14:44.1 (count two).
ASSIGNMENTS OF ERROR
1. The trial court erred in denying Defendant's motion to reconsider sentence.
2. The sentence of maximum consecutive sentences is unconstitutionally excessive.
DISCUSSION
On appeal, Defendant both challenges his individual sentences, and contends that the consecutive nature of his maximum sentences renders his sentences unconstitutionally excessive. Because Defendant's assignments of error are related, this Court will address both complaints in a single analysis.
Defendant first assigns error to the trial court's denial of his pro se motion to reconsider sentence. However, Defendant's appeal brief does not make any specific arguments in support of his assertion that the trial court erred. Uniform Rules Courts of Appeal, Rule 2-12.4 requires that all assignments of error and issues for review must be briefed. Rule 2-12.4 also gives the court discretion to disregard any argument in an appeal brief in the event suitable reference to the record is not made. Nevertheless, this assignment is sufficiently intertwined with Defendant's argument regarding excessive sentences such that we will address both contentions.
On July 22, 2019, during Defendant's sentencing hearing, defense counsel orally objected, "to the excessive nature of the sentence." On the same date, Defendant timely filed his pro se motion to reconsider sentence, generally requesting that, because (1) he was denied effective assistance of counsel; (2) there was "a lack of consideration of facts by the jury[, which] resulted in a bias;" and (3) his Fifth and Fourteenth Amendment due process rights were denied, his sentence should be reduced to "one count of Aggravated Assault that [he] never denied on Ms. Kimble." Upon Defense counsel's submission of the pro se motion on its face, the trial court denied the motion.
This Court has consistently held that the failure to state a specific ground upon which a motion to reconsider is based limits a defendant to a bare review of the sentence for constitutional excessiveness. La. C.Cr.P. art. 881.1(E) ; State v. Woods , 20-73 (La. App. 5 Cir. 9/9/20), 303 So.3d 403, 406, writ denied , 21-27 (La. 2/17/21), 310 So.3d 1150 ; State v. Pike , 18-538 (La. App. 5 Cir. 5/8/19), 273 So.3d 488, 497, writ denied , 19-927 (La. 2/10/20), 292 So.3d 60. This Court has also held that 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. Both Defendant, in his written motion to reconsider sentence, and defense counsel, orally following sentence, failed to explicitly state an objection to the consecutive nature of the sentences. Consequently, Defendant is not entitled to a review of the consecutive nature of his sentences; rather, this appeal is limited to a bare review of his sentences for constitutional excessiveness. See id.
The Eighth Amendment to the U.S. Constitution and Article I § 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. Woods , 303 So.3d at 406 ; State v. Melgar , 19-540 (La. App. 5 Cir. 4/30/20), 296 So.3d 1107, 1114. A sentence is considered excessive if it is grossly disproportionate to the severity of the offense or if it imposes needless and purposeless pain and suffering, even if it is within the statutory limits. Id.
Pursuant to La. C.Cr.P. art. 881.4(D), the trial judge is afforded broad discretion in sentencing, and an appellate court shall not set aside a sentence for excessiveness if the record supports the sentence imposed. Generally, maximum sentences are reserved for cases involving the most serious violations of the offense charged and the worst type of offender. Melgar , 296 So.3d at 1115. In reviewing a sentence for excessiveness, the reviewing court shall consider the crime and the punishment in light of the harm to society and gauge whether the penalty is so disproportionate as to shock the court's sense of justice, while recognizing the trial court's wide discretion. Pike , 273 So.3d at 497 ; Woods , 303 So.3d at 406.
The penalty for a second-degree kidnapping conviction is imprisonment at hard labor for not less than five (5) nor more than forty (40) years, and at least two (2) years of the sentence shall be imposed without benefit of parole, probation, or suspension of sentence. La. R.S. 14:44.1(C) ; see also State v. Barber , 19-235 (La. App. 5 Cir. 10/23/19), 282 So.3d 404, 414. The sentence for an attempted offense shall be fine or imprisonment or both, in the same manner as for the offense attempted; such fine or imprisonment shall not exceed one-half of the largest fine, or one-half of the longest term of imprisonment prescribed for the offense so attempted, or both. In other words, attempted second-degree kidnapping carries a penalty of up to twenty (20) years imprisonment at hard labor. See La. R.S. 14:44.1(C) ; La. R.S. 14:27(D)(3).
Considering the facts and circumstances of the crimes—and in the face of the involvement of minors, the escalation of violence, and the undue risk for recidivism where Defendant attempted more than one kidnapping on the day in question—as well as Defendant's criminal history and the Sentencing Guidelines provided by La. C.Cr.P. art. 894, the trial court was of the belief that Defendant was in need of extensive correctional treatment in a custodial environment. The trial court sentenced Defendant to twenty (20) years imprisonment at hard labor on each count to be served consecutively. The trial court further ordered the first ten (10) years of each sentence to be served without the benefit of parole, probation, or suspension of sentence.
At sentencing, the trial court emphasized the egregiousness of offering an individual, presumably L.C., something of value in an attempt to take that person, particularly pointing out that individual was a minor and therefore a conspicuously vulnerable victim. The trial court is not limited to considering only prior convictions and may review all evidence of prior criminal activity, including evidence of prior arrest records and of uncharged offenses or offenses that were nolle prossed . Melgar , 296 So.3d at 1116.
While Defendant asserts that he received maximum sentences as well as the maximum terms of imprisonment, in fact, the entirety of his term of imprisonment could have been imposed without the benefit of parole, probation, or suspension of sentence.
The issue on appeal is whether the trial court abused its discretion, not whether another sentence might have been more appropriate. Melgar , 296 So.3d at 1115 ; State v. Butler , 07-1034 (La. App. 5 Cir. 10/28/08), 997 So.2d 631, 641, writ denied sub nom. State ex rel. Butler v. State , 09-0212 (La. 10/30/09), 21 So.3d 276. In considering whether the trial court abused its discretion in sentencing a defendant, a reviewing court should consider the nature of the crime, the nature and background of the offender, and the sentences imposed for similar crimes by other courts. Id. However, there is no requirement that specific matters be given any particular weight at sentencing. Id.
As pointed out by the trial court, the nature of these crimes is particularly significant. Defendant grabbed a juvenile victim, held a weapon to her neck, and told her to get in his truck. Even after C.T. managed to escape, Defendant chased after her screaming, "Get in the f***ing truck." Then, when the attempt to kidnap C.T. failed, Defendant merely found a new victim nearby. Further, we must consider the escalating violence of the crimes. Defendant allegedly first tried to bribe a child in an uncharged incident where Defendant was readily identified as a suspicious person. Defendant then used a weapon in the two charged offenses, with the victim in the latter offense sustaining physical injuries and being threatened to "get in the f***ing car or [he] would kill [her]." Importantly, the escalation in the incidents occurred within hours and not over an extended period of time. Additionally, two of the victims testified to the life-altering nature of the crimes, with C.T. also providing a supplementary victim impact statement, in which she stated that Defendant "took away [her] carefree spirit and replaced it with anxiety and fear" where, despite attending counseling for a year, she no longer wants to be alone, and suffers from severe anxiety every day.
We also remain cognizant of the fact that Defendant is not a first-time offender. Not only was Defendant involved in an uncharged incident involving a suspicious person attempting to lure a young girl into his vehicle by offering her money merely hours prior to the two attempted kidnappings, he is also a four-time offender. He has a 1994 conviction for simple burglary, a 1996 conviction for attempted felon in possession of a firearm, a 1996 conviction for ten counts of simple burglary, and a 2004 conviction for possession of hydrocodone. Although Defendant's previous convictions are for not crimes of violence, his history could nonetheless support the sentences imposed by the trial court.
Moreover, upon reviewing other similar cases, we find the sentence is supported by comparison.
In State v. Samuel K. Smith , 40-452 (La. App. 2 Cir. 3/8/06), 923 So.2d 972, the defendant appealed his twenty (20) year maximum sentence for attempted second-degree kidnapping as excessive; the appellate court affirmed the sentence. Prior to sentencing, in that case, the trial court pointed out that the defendant had at least four (4) prior felony convictions such that—even though none of them was for a violent offense—the defendant was in need of correctional treatment, and any lesser sentence would deprecate the seriousness of the offense.
In State v. Trent D. Smith , 48-196 (La. App. 2 Cir. 6/26/13), 117 So.3d 1273, 1279, the defendant pled guilty to attempted second-degree kidnapping and appealed his sentence as excessive. The defendant approached the victim and ordered her into his car while applying a "stun gun" to the victim. The victim escaped with scratches on her face and marks on her stomach area and arm. The trial court heard statements from the defendant's family and friends describing him as a devoted husband and father, but, nevertheless, held that, considering the extremely violent nature of the offense and that the defendant's criminal history showed a pattern of escalating violence, the maximum twenty (20) year sentence was not disproportionate to the severity of the violent crime and did not shock the sense of justice.
In State v. Lagrange , 97-361 (La. App. 3 Cir. 10/29/97), 702 So.2d 1005, the defendant was found guilty of attempted second-degree kidnapping and of aggravated kidnapping. He was sentenced to serve twenty (20) years at hard labor without the benefit of parole, probation, or suspension of sentence as to the conviction for attempted second-degree kidnapping. The defendant grabbed a juvenile victim, attempted to get him in his vehicle, and the two struggled until the victim escaped. The defendant successfully grabbed a second juvenile victim days later, whom he touched sexually and threatened to kill. In upholding the defendant's sentences, the Third Circuit stated that the record and presentence investigation were replete with offenses, many of which were nolle prossed , and that the evidence and testimony of the victims, particularly regarding the death threat, made the defendant one of the worst offenders despite his first-offender status.
While we cannot say what atrocities may or may not have occurred had Defendant eventually been successful, like the defendant in Lagrange , Defendant was involved in an uncharged event with a juvenile victim, attempted to kidnap another juvenile later that evening, and made death threats against his third victim. Additionally, as the trial court stated at sentencing, Defendant, in this case, was a habitual offender thus indicating a serious need for correctional treatment, and any lesser sentence would result in an undue risk that Defendant may attempt another crime. See Smith , 923 So.2d 972.
Defendant cites to two cases wherein the sentences were upheld that he asserts demonstrate that he should not have received a maximum sentence because a firearm was not used and no victims were shot.
Defendant first cites to State v. Stipe , 08-762 (La. App. 3 Cir. 2/4/09), 4 So.3d 189, writ denied , 09-980 (La. 1/8/10), 24 So.3d 860. In Stipe , the defendant was likewise convicted of attempted second-degree kidnapping, but sentenced to ten (10) years imprisonment at hard labor with one (1) year to be served without the benefit of parole, probation, or suspension of sentence. However, the facts in Stipe are clearly distinguishable from those in the matter before us.
Defendant chose more vulnerable victims in this case, and he acted more aggressively than the defendant in Stipe . In Stipe , the victim was a lieutenant with the West Feliciana Parish Sheriff's Office who produced a firearm of his own. Here, both victims were unarmed individuals, one of whom was a child. Additionally, in Stipe , the defendant fled after the victim told him he was a police officer. Dissimilarly, in this case, Defendant actively chased the young girl down an alleyway while screaming, "Get in the f***ing truck." Then, after failing to abduct that young girl, C.T., Defendant found a new victim, with whom he engaged in a physical altercation and caused physical injury, while repeatedly shouting threats to "get in the f***ing car or [he] would kill [her]." Rather, the facts of State v. Maes , 10-1452 (La. App. 4 Cir. 5/18/11), 2011 WL 9165408 at *8, are more closely aligned to those of the instant matter. In Maes , the Fourth Circuit found that the three (3) concurrent maximum twenty (20) year sentences for three (3) attempted second-degree kidnappings in one evening were not excessive, stating that the lives of the victims were endangered, and the defendant told two (2) of the victims that they were to be taken to a location and killed.
Defendant next cites to State v. Colbert , 07-947 (La. App. 4 Cir. 7/23/08), 990 So.2d 76, writ denied , 08-2098 (La. 5/15/09), 8 So.3d 579. In Colbert , the court found a maximum twenty (20) year sentence for attempted second-degree kidnapping was not excessive where the defendant attempted to force the kidnap victim into her car at gunpoint.
In this case, the defendant was also convicted of manslaughter and sentenced to forty (40) additional years for shooting and killing a male acquaintance of the victim (the defendant's estranged girlfriend).
While Defendant did not use a gun in the instant case, he attempted to kidnap each of his victims into his vehicle while armed with a weapon, which he used to threaten one, a minor, and injure the other. This case is similar to Colbert , 990 So.2d 76 ; Lagrange , 702 So.2d 1005 ; and Smith , 117 So.3d 1273. Moreover, in affirming the trial court's imposition of the maximum sentence for the attempted second-degree kidnapping, the Fourth Circuit specifically pointed out that the attempted kidnapping was an escalation of the defendant's prior offenses. See Colbert, 990 So.2d at 94. Likewise, Defendant, here, escalated in violence, but, significantly, in just a span of hours as opposed to months or years. See id ; see also Smith , 117 So.3d 1273. There appears to be a desperation in Defendant's rapidly escalating attempts as if he intended to accomplish some purpose. Id.
Considering these factors, we do not find that the trial court abused its discretion in sentencing Defendant to the maximum twenty (20) years on each count. We also do not find Defendant's maximum twenty (20) year sentences shock our sense of justice; therefore, we do not find his sentences unconstitutionally excessive.
ERROR PATENT DISCUSSION
This Court routinely reviews the record on appeal for errors patent regardless of whether the defendant makes such a request. La. C.Cr.P. art. 920 ; State v. Williams , 20-46 (La. App. 5 Cir. 12/30/20), 308 So.3d 791, 839 ; State v. Oliveaux, 312 So.2d 337 (La. 1975) ; State v. Weiland , 556 So.2d 175 (La. App. 5 Cir. 1990).
La. C.Cr.P. art. 920(2) states that an errors patent is "[a]n error that is discoverable by an inspection of the pleadings and proceedings and without inspection of the evidence."
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Upon review, we find that there is a discrepancy between the sentencing transcript, the minute entry dated July 22, 2019, and the Louisiana Uniform Commitment Order ("UCO"). While the sentencing transcript and the minute entry reflect that the trial court imposed Defendant's sentences to be served consecutively, the UCO fails to include any such indication. Accordingly, we find that the UCO is inconsistent with the sentencing minute entry and sentencing transcript. The transcript prevails. See State v. Lynch , 441 So.2d 732, 734 (La. 1983) ; State v. Montero , 18-397 (La. App. 5 Cir. 12/19/18), 263 So.3d 899, 909. Therefore, this matter is remanded to the trial court for correction of the UCO to conform to the sentencing transcript and minute entry.
We also instruct the Clerk of Court for the 24th Judicial District Court to transmit the corrected UCO to the appropriate authorities in accordance with La. C.Cr.P. art. 892(B)(2), and to the Department of Corrections’ legal department. See State v. Garrison , 19-62 (La. App. 5 Cir. 4/23/20), 297 So.3d 190, 216, writ denied , 20-547 (La. 9/23/20), 301 So.3d 1190 ; State v. Doucet , 17-200 (La. App. 5 Cir. 12/27/17), 237 So.3d 598, writs denied , 18-77 (La. 10/8/18), 253 So.3d 789 and 18-196 (La. 11/5/18), 255 So.3d 1052, cert. denied , ––– U.S. ––––, 139 S.Ct. 2676, 204 L.Ed.2d 1079 (2019).
CONCLUSION
For the aforementioned reasons, we affirm Defendant's convictions and sentences.
CONVICTIONS AND SENTENCES AFFIRMED; REMANDED WITH INSTRUCTIONS.