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State v. Morgan

Court of Appeals of Louisiana, Third Circuit

May 6, 2015

STATE OF LOUISIANA
v.
DONNY R. MORGAN

APPEAL FROM THE THIRTY-SIXTH JUDICIAL DISTRICT COURT, PARISH OF BEAUREGARD, NO. CR-2011-559. HONORABLE MARTHA ANN O'NEAL, DISTRICT JUDGE.

Hon. David W. Burton, District Attorney - 36th Judicial District Court, DeRidder, LA; COUNSEL FOR PLAINTIFF/APPELLEE: State of Louisiana.

Annette Fuller Roach, Louisiana Appellate Project, Lake Charles, LA, COUNSEL FOR DEFENDANT/APPELLANT: Donny R. Morgan.

Donny R. Morgan, ALC Mercury D-2, Kinder, LA, COUNSEL FOR DEFENDANT/APPELLANT: Donny R. Morgan.

Court composed of John D. Saunders, Shannon J. Gremillion, and David Kent Savoie, Judges.

OPINION

Page 393

[14-1197 La.App. 3 Cir. 1] JOHN D. SAUNDERS, Judge.

Defendant, Donny R. Morgan, was originally charged by bill of information with five offenses. He pled guilty on November 7, 2011, to the fifth count, molestation of a juvenile between January 8, 2010 and January 15, 2011, in violation of La.R.S. 14:81.2(D)(1). His attorney, however, indicated on the record that his plea would be to La.R.S. 14:81.2(C). Defendant's case was conferenced again on January 12, 2012, during which all parties agreed to amend the plea to reflect an admission of guilt with respect to count three, which charged molestation of a juvenile between January 8, 2005 and August 14, 2006 under La.R.S. 14:81.2(C). Sentencing occurred on January 25, 2012, with the court sentencing Defendant to twenty years. Defense counsel orally objected to the sentence as being excessive.

Defendant filed an application for post-conviction relief on January 21, 2014, alleging ineffective assistance of counsel for his attorney's failure to give notice of intent to appeal, to perfect an appeal, or to advise Defendant of his right to appeal. The trial court found Defendant's argument to have merit and granted an out-of-time appeal.

Defendant now appeals alleging two assignments of error. First, Defendant asserts he received ineffective assistance of counsel in violation of U.S. Const. Amend VI. Second, Defendant asserts his sentence is illegally excessive in violation of U.S. Const. amend. VIII, U.S. Const. art. I, § 9, La.Const. art. I, § 20, and La.Const. art. I, § 23. Our analysis indicates that this court need not address the first claim. The sentence is indeed excessive and must be vacated, and the matter remanded to the trial court for resentencing pursuant to La.Code Crim.P. art. 881.5.

[14-1197 La.App. 3 Cir. 2] FACTS:

Count three of the bill of information reads as follows:

On or about January 8, 2005 through August 14, 2006, DONNY R. MORGAN, did willfully and unlawfully violate R.S. 14:81.2 A, C, Molestation of a Juvenile, in that Donny R. Morgan is over the age of seventeen, having been born on January 23, 1978, did commit lewd and lascivious acts upon and in the presence of S.R.[1] a child under the age of seventeen, having been born on January 8, 1997, by touching the genitals and breast of S.R. and having S.R. touch the genitals of Donny R. Morgan, with the intention of arousing or gratifying the sexual desires of Donny R. Morgan, by the use of influence by ...

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