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State v. Frith

Court of Appeals of Louisiana, Third Circuit

April 11, 2018

STATE OF LOUISIANA
v.
ROBBIE RAY FRITH

          APPEAL FROM THE SIXTEENTH JUDICIAL DISTRICT COURT PARISH OF ST. MARTIN, NO. 11-241841, DIVISION "H" HONORABLE LORI A. LANDRY, DISTRICT JUDGE

          James E. Boren COUNSEL FOR: Defendant/Appellant - Robbie Ray Frith

          M. Bofill Duhé, W. Claire Howington COUNSEL FOR: Plaintiff/Appellee - State of Louisiana

          Jane Hogan COUNSEL FOR: Defendant/Appellant - Robbie Ray Frith

          Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders, and Van H. Kyzar, Judges.

          ULYSSES GENE THIBODEAUX, CHIEF JUDGE.

         A jury convicted Robbie Ray Frith of five counts of aggravated incest, in violation of La.R.S. 14:78.1.[1] Defendant was subsequently sentenced to serve thirty-five years at hard labor with the first twenty-five years served without benefit of probation, parole, or suspension of sentence on counts one and five; twenty-five years at hard labor without probation, parole, or suspension of sentence with regard to counts two and three; and ten years at hard labor plus a $50,000 fine with regard to count four. All of these sentences were ordered to run concurrently and Defendant was given credit for time served.

         In a previous appeal, Defendant alleged three assignments of error: (1) that the trial court committed reversible error in denying Defendant's challenge for cause of Gilbert Blanchard; (2) that Defendant was incompetent to stand trial; and (3) that the trial court improperly interjected its religious beliefs into Defendant's sentencing hearing. This court found the first two assignments of error lacked merit, but remanded for resentencing due to the trial court's failure to observe the mandatory twenty-four-hour delay between ruling on a motion for new trial and sentencing or obtaining a waiver of the delay. See State v. Frith, 15-630 (La.App. 3 Cir. 4/27/16) (unpublished opinion), writ denied, 16-1011 (La. 5/26/17), 221 So.3d 79. This court did not address the merits of Defendant's claim regarding the trial court's interjection of its religious beliefs into Defendant's sentencing hearing.

         After remand and prior to resentencing, Defendant filed a "Motion to Recuse Trial Court Judge" seeking mandatory recusal of the trial judge under La.Code Crim.P. arts. 671(A)(1) and 671(A)(6). Both sections require recusal of a trial judge when the judge is unable to conduct a fair and impartial trial, with La.Code Crim.P. art. 671(A)(1) specifically being based on the judge being "biased, prejudiced, or personally interested in the cause."

         The trial court held a hearing at which time it denied Defendant's motion to recuse without referring it to another judge and sentenced Defendant to the exact same sentences he had previously received. Defendant objected to the excessiveness of the sentences.

         Defendant filed a "Motion for Reconsideration of Sentence," arguing his sentences were constitutionally excessive for a man of his advanced age suffering from physical and mental health issues. His motion was denied.

         Defendant now appeals his sentences, raising two assignments of error: (1) the trial court erred in denying his motion to recuse without referring the motion to another judge; and (2) the sentences are constitutionally excessive. For the following reasons, we again vacate Defendant's sentences and remand to the trial court so that Defendant's motion to recuse may be heard by a randomly allotted judge pursuant to La.Code Crim.P. art. 675(B).

         FACTS

On February 24, 2012, Defendant, Robbie Ray Frith, was charged with five counts of aggravated incest involving his five step-grandchildren, in violation of La.R.S. 14:78.1.1 Aside from count four, all other counts involved children under the age of thirteen. Counts two and three involved his two younger step-granddaughters, and Defendant was alleged to have kissed each of them inappropriately. With respect to count four, involving his oldest step-granddaughter who was over the age of thirteen, Defendant was alleged to have made an inappropriate comment while she was wearing a bathing suit, licked icing off her finger inappropriately and touched her leg inappropriately. ...

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