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State v. Gonzalez

Court of Appeals of Louisiana, Fifth Circuit

November 15, 2017

STATE OF LOUISIANA
v.
ROGELIO LUCATER GONZALEZ

          ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 11-2706, DIVISION "P" HONORABLE LEE V. FAULKNER, JR., JUDGE PRESIDING

          Paul D. Connick, Jr., Terry M. Boudreaux COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA

          Holli A. Herrle-Castillo COUNSEL FOR DEFENDANT/APPELLANT, ROGELIO LUCATER GONZALEZ

          In Proper Person DEFENDANT/APPELLANT, ROGELIO LUCATER GONZALEZ

          Judges Marc E. Johnson, Robert M. Murphy, and Hans J. Liljeberg

          ROBERT M. MURPHY JUDGE

         Defendant, Rogelio Gonzalez, appeals his sentence following conviction for sexual battery of a juvenile. For the reasons that follow, we affirm.

         PROCEDURAL HISTORY

         This case comes before us for the second time on appeal. In defendant's prior appeal, State v. Gonzalez, 15-26 (La.App. 5 Cir. 8/25/15), 173 So.3d 1227, writ denied, 15-1771, 2016 La. LEXIS 1955 (La. 9/23/16), this Court affirmed defendant's convictions for aggravated rape and sexual battery, affirmed defendant's life sentence for aggravated rape, vacated his illegal 25-year sentence for sexual battery, [1] and remanded the matter for resentencing. After remand, on January 7, 2016, the trial court sentenced defendant to ten years without benefit of parole, probation, or suspension of sentence on the sexual battery conviction (count two) to run concurrently with defendant's life sentence on count one. Defendant filed a motion for an out of time appeal on February 23, 2017, which was granted. The instant appeal follows.

         LAW AND ANALYSIS

         In his sole counseled assignment of error, and in his first pro se assignment of error, defendant asserts that the ten-year sentence for his sexual battery conviction is excessive. Conversely, the State argues that the sentence imposed is not grossly disproportionate and is supported by the record.

         At the outset, we note that defendant did not object at the time of sentencing, nor did he file a written motion to reconsider sentence. Accordingly, defendant is limited to a bare review for constitutional excessiveness by this Court. State v. Dupre, 03-256 (La.App. 5 Cir. 5/28/03), 848 So.2d 149, 153, writ denied, 03-1978 (La. 5/14/04), 872 So.2d 509.

         The Eighth Amendment to the U.S. Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. State v. Nguyen, 06-969 (La.App. 5 Cir. 4/24/07), 958 So.2d 61, 64, writ denied, 07-1161 (La. 12/7/07), 969 So.2d 628. A sentence is considered excessive, even if it is within the statutory limits, if it is grossly disproportionate to the severity of the offense or imposes needless and purposeless pain and suffering. Nguyen, 958 So.2d at 64. In reviewing a sentence for excessiveness, the appellate court must consider the punishment and the crime in light of the harm to society and gauge whether the penalty is so disproportionate as to shock the sense of justice. State v. Taylor, 06-839 (La.App. 5 Cir. 3/13/07), 956 So.2d 25, 27, writ denied, 06-0859 (La. 6/15/07), 958 So.2d 1179 (citing State v. Lobato, 603 So.2d 739, 751 (La. 1992); State v. Pearson, 07-332, 07-333, 07-539 (La.App. 5 Cir. 12/27/07), 975 So.2d 646, 655-56).

         According to La. C.Cr.P. art. 881.4(D), the appellate court shall not set aside a sentence for excessiveness if the record supports the sentence imposed. 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. Nguyen, 958 So.2d at 64. In reviewing a trial court's sentencing discretion, three factors are considered: 1) the nature of the crime, 2) the nature and background of the offender, and 3) the sentence imposed for similar crimes by the same court and other courts. State v. Allen, 03-1205 (La.App. 5 Cir. 2/23/04), 868 So.2d 877, 880 (citation omitted). However, there is no ...


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