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State v. Leboeuf

Court of Appeals of Louisiana, First Circuit

August 2, 2019

STATE OF LOUISIANA
v.
RUSTY J. LEBOEUF

          On Appeal from the Seventeenth Judicial District Court In and for the Parish of Lafourche State of Louisiana Docket No. 567443 Honorable F. Hugh Larose, Judge Presiding

          Kristine Russell District Attorney Joseph S. Soignet Assistant District Attorney Thibodaux, Louisiana Counsel for Appellee State of Louisiana

          Lieu T. Vo Clark Mandeville, Louisiana Counsel for Defendant/Appellant Rusty J. Lebouef

          BEFORE: WHIPPLE, C J., McCLENDON, AND HIGGINBOTHAM, JJ.

          McCLENDON, J.

         Defendant, Rusty J. Leboeuf, was charged by bill of information with indecent behavior with a juvenile (victim under the age of thirteen), a violation of LSA-R.S. 14:81. Defendant entered a plea of not guilty and, following a jury trial, was found guilty as charged. Defendant was sentenced to fifteen years imprisonment at hard labor. Defendant now appeals, designating two assignments of error. For the following reasons, we affirm the conviction, vacate the sentence, and remand to the trial court for resentencing, correction of the minutes and, if necessary, correction of the commitment order.

         FACTS

         In June of 2017, twelve-year-old K.C.[1] lived in Cut Off, Louisiana, in Lafourche Parish, with her mother, brothers, and her mother's boyfriend, the defendant. In the early morning hours of June 16, 2017, K.C. had fallen asleep on the couch in the living room. According to K.C, at about 6:00 a.m., she was awakened by defendant, who had placed his penis in her hand. K.C. hurriedly turned over on the couch and feigned still being asleep, until defendant walked away. Later that same day, K.C. told her brother, who told his mother and uncle. The police were called. Defendant testified at trial. He had prior convictions for forgery, simple burglary, and unauthorized entry of an inhabited dwelling. Defendant admitted that he was in the living room on the couch with K.C. the night she fell asleep. He insisted, however, that he never removed his penis from his clothes.

         ASSIGNMENTS OF ERROR NOS. 1 and 2

         In these related assignments of error, defendant argues, respectively, that the trial court erred in denying the motion to reconsider sentence and that his sentence is unconstitutionally excessive.

         A thorough review of the record indicates that defendant did not make or file a written motion to reconsider sentence based on any specific ground following the trial court's imposition of the sentence. Under LSA-C.Cr.P. arts. 881.1E and 881.2A(1), the failure to make or file a motion to reconsider sentence shall preclude a defendant from raising an objection to the sentence on appeal, including a claim of excessiveness.[2] See State v. Mims, 619 So.2d 1059 (La. 1993) (per curiam). Defendant, therefore, is procedurally barred from having his assignments of error reviewed because of his failure to file a motion to reconsider sentence after being sentenced. See State v. Duncan, 94-1563 (La.App. 1 Cir. 12/15/95), 667 So.2d 1141, 1143 (en banc per curiam).

         These assignments of error are without merit.

         SENTENCING ERROR

         For errors not assigned, we are limited in our review under LSA-C.Cr.P. art. 920(2) to errors discoverable by a mere inspection of the pleadings and proceedings without inspection of the evidence. After ...


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