State v. Kelly

KLINE

NOT DESIGNATED FOR PUBLICATION
On Appeal from the
21st Judicial District Court In and for the Parish of Tangipahoa State of Louisiana Trial Court No. 903,397
The Honorable Wayne Ray Chutz, Judge Presiding

Scott M. Perrilloux
District Attorney
Amite, Louisiana
Attorney for Appellee,
State of Louisiana
Patricia Parker Amos
Assistant District Attorney
Amite, Louisiana
Attorney for Appellee,
State of Louisiana
Frederick Kroenke
Louisiana Appellate Project
Baton Rouge, Louisiana
Attorney for Appellant,
Toriano Z. Kelly
Toriano Z. Kelly
Angie, Louisiana
Attorney for Appellant,
In Proper Person

BEFORE: PARRO, WELCH, AND KLINE, JJ.

Judge William F. Kline, Jr., retired, serving Pro Tempore by special appointment of the Louisiana Supreme Court.

KLINE , J.

The defendant, Toriano Z. Kelly, was charged by grand jury indictment with forcible rape, a violation of La. R.S. 14:42.1, and pled not guilty. Following a jury trial, he was found guilty as charged. He moved to arrest the judgment, for a new trial, and for a post-verdict judgment of acquittal, but the motions were denied. He was sentenced to forty years imprisonment at hard labor, with two years of the sentence to be served without benefit of probation, parole, or suspension of sentence. He moved for reconsideration of sentence, but the motion was denied. The defendant appealed and in an unpublished opinion this court affirmed the conviction, vacated the sentence, and remanded for resentencing. See State v. Kelly, 11-0298 (La. App. 1 Cir. 11/9/11), 90 So. 3d 547 (table), writ denied, 11-2723 (La. 4/27/12), 86 So. 3d 626.

The defendant was also charged with aggravated burglary; however, the State dismissed that charge prior to jury deliberations.

In affirming the conviction, this court found no merit in several assignments of error, including sufficiency of the evidence. The sentence was vacated due to the trial court's failure to observe the twenty-four hour delay between the denial of the motions for new trial and in arrest of judgment and the imposition of sentence, as mandated by La. Code Crim. P. art. 873. This court pretermitted consideration of the defendant's excessive sentence assignment of error.

On remand, the trial court resentenced the defendant, consistent with the previous sentence, to forty years imprisonment at hard labor, with two years of the sentence to be served without benefit of probation, parole, or suspension of sentence. The trial court denied the defendant's subsequent motion to reconsider sentence. The defendant has now filed another appeal, reassigning error to the constitutionality of the sentence in a counseled and pro se brief. For the following reasons, we affirm the sentence.

In his pro se brief, the defendant also asserts five other assignments of error that relate to the validity of his conviction. As noted, this Court has previously addressed and affirmed the defendant's conviction on appeal. Thus, the defendant's conviction for forcible rape became final on April 27, 2012, when the Louisiana Supreme Court denied the defendant's writ application. See La. Code Crim. P. art. 922(D). Therefore, only the defendant's resentencing for forcible rape is subject to review in this appeal. See State v. Lewis, 350 So. 2d 1197, 1198 (La. 1977) (per curiam). Allegations related to the validity of the conviction should have been raised in the first appeal, when the conviction was still at issue. Because the issues raised in pro se assignments of error numbers one through five relate to the defendant's conviction, which is final, those pro se assignments of error are not subject to review in the instant appeal taken from his resentencing.

STATEMENT OF FACTS

The victim, A.S., testified at trial. She was nineteen years old at the time of her testimony. She was a college student, studying chemical engineering. The incident occurred on August 27, 2009, at her home in Independence, Louisiana. On that day, she woke up at approximately 6:30 a.m. to get her younger brother ready for school and to take him to the bus stop by 7:30 a.m., because her parents had already gone to work. As she put her brother on his school bus, she saw a man running up and down the street. According to the victim, she did not know the man's name, but had seen him approximately three other times while putting her brother on his bus. She denied ever having had a conversation with the man. After putting her brother on his bus, the victim returned home, where she was alone, and rested for two or three hours. She then watched television, but was disturbed by her dog barking. She took the dog outside, tied his leash to a tree, and went back into her home. Approximately thirty minutes later, she heard her dog barking and went outside to get him.

The victim is referenced herein only by her initials. See La. R.S. 46:1844(W).

October 27, 2010. was the date of her testimony.
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According to the victim, as she was taking her dog back inside her home, the man she had seen earlier came up behind her and grabbed her. She saw his reflection in the mirrors by the entrance to her home. The victim told the man to stop, and tried to get away from him, but he dragged her to the couch. He threw her onto the couch, and she kicked her legs and continued to yell "stop." He held her arms down on the couch. He then moved one of his hands to her neck and used his other hand to unzip his pants. The victim was afraid the man was going to kill her. He pulled his "private part" out and tried to put it in the victim's mouth, but she kept her mouth closed and moved her head. The man pulled the victim's shorts and underwear off, as she kicked him. He got on top of her and put his "private part" inside of her vagina. The victim screamed louder from the pain, and the man covered her face with a pillow from the couch. The victim thought the man was going to suffocate her. The man told the victim, "You wanted this[.] I could see how you have been looking at me[.]" The man then left "like nothing happened." The victim testified she never gave the man permission to enter her home. She also stated she never gave him any indication she wanted to have sex with him. She denied telling him she was stripper, denied talking to him about a "lap dance," and denied performing a "lap dance" for him.

After the incident, the victim locked her door, put her clothes back on, and took a bath because she felt "nasty and disgusting." Initially, she was not going to report the offense because she felt ashamed. However, approximately five minutes after the victim's bath, one of her friends called her and "could tell that something was wrong with [the victim]." Thereafter, the victim reported the incident to her mother, and then to the police. The police arrived at the scene approximately five to ten minutes later. While the victim was describing the man to the police, the defendant exited the house across the street and approached her. She identified him as her assailant at the scene and in court.

The defendant also testified at trial. He indicated he was living across the street from the victim's home at the time of the incident, but did not know anyone in the victim's family and had met her only a few days before the incident. He claimed he was in town planning a bachelor party for his cousin. He claimed he jogged in the mornings and in the evenings. He claimed he saw the victim outside on Tuesday, Wednesday, and Thursday mornings, and on Wednesday afternoon. He claimed he spoke to the victim every day he saw her, and the conversations became longer. He claimed he spoke to the victim on the day of the incident because he was having difficulty arranging for dancers for the bachelor party and he wanted to see if the victim would come to the party with some of her friends. He claimed the victim invited him into her home. He claimed he told the victim he was looking for dancers and asked her if she would be interested. He claimed he and the victim began talking, which led to touching, which led to kissing, and then the victim gave him a "lap dance." He claimed he and the victim's clothes came "down or off' during the lap dance, and thereafter, he went home. He denied the victim ever told him to stop. He claimed he and the victim had consensual sex. He conceded that, in a prior written statement, he had indicated he rang the door bell on the victim's home and then she invited him into the home.

EXCESSIVE SENTENCE

In the sole counseled assignment of error and pro se assignment of error number six, the defendant argues that the forty-year sentence imposed herein is too severe considering his background and the circumstances of the case. The defendant argues that he is not the worst offender and that this case does not include the worst set of facts. The defendant contends that there was no evidence of any physical injuries or other support for the imposition of the maximum sentence. In his pro se brief, the defendant compares the facts and punishments meted out for forcible rape by Louisiana courts in other cases to bolster his excessive sentence claim. The defendant notes, for example, that other cases involve the use of a weapon, serious or permanent injury to the victim, a victim of a particularly tender age, the use of brutal threats or violence beyond that needed to commit the rape, home invasions, and/or the carrying out of a series of rapes. The defendant also argues in his pro se brief that the sentence consists of a vindictive punishment for not admitting his guilt and for exercising his right to a trial by jury. Finally, the defendant contends that several factors of mitigation should have been considered, such as his lack of a serious or violent criminal background, and his employment, family, and community positions. The defendant concludes that the sentence is grossly disproportionate and shocks the sense of justice.

The Eighth Amendment to the United States Constitution and Article I, Section 20, of the Louisiana Constitution prohibit the imposition of excessive or cruel punishment. Although a sentence falls within statutory limits, it may be excessive. State v. Sepulvado, 367 So. 2d 762, 767 (La. 1979). A sentence is considered constitutionally excessive if it is grossly disproportionate to the seriousness of the offense or is nothing more than a purposeless and needless infliction of pain and suffering. A sentence is considered grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks one's sense of justice. The sentence imposed will not be set aside absent a showing of manifest abuse of the trial court's wide discretion to sentence within the statutory limits. State v. Andrews, 94-0842 (La. App. 1 Cir. 5/5/95), 655 So. 2d 448, 454.

Louisiana Code of Criminal Procedure article 894.1 sets forth the factors for the trial court to consider when imposing sentence. While the entire checklist of La. Code Crim. P. art. 894.1 need not be recited, the record must reflect the trial court adequately considered the criteria. In light of the criteria expressed by Article 894.1, a review for individual excessiveness should consider the circumstances of the crime and the trial court's stated reasons and factual basis for its sentencing decision. State v. Brown, 02-2231 (La. App. 1 Cir. 5/9/03), 849 So. 2d 566, 569. The articulation of the factual basis for a sentence is the goal of La. Code Crim. P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary, even where there has not been full compliance with La. Code Crim. P. art. 894.1. State v. Lanclos, 419 So. 2d 475, 478 (La. 1982). In the instant matter, the defendant was sentenced to the maximum sentence of forty years imprisonment at hard labor. See La. R.S. 14:42.1(B). As a general rule, maximum or near maximum sentences are to be reserved for the worst offenders and cases involving the most serious violations of that statute. State v. James, 02-2079 (La. App. 1 Cir. 5/9/03), 849 So. 2d 574, 586. We note that the sentencing comparisons made by the defendant in his pro se appeal brief are of little value. It is well-settled that sentences must be individualized to the particular offender and to the particular offense committed. State v. Albarado, 03-2504 (La. App. 1 Cir. 6/25/04), 878 So. 2d 849, 852, writ denied, 04-2231 (La. 1/28/05), 893 So. 2d 70; State v. Banks, 612 So. 2d 822, 828 (La. App. 1 Cir. 1992), writ denied, 614 So. 2d 1254 (La. 1993).

At the original sentencing hearing, the victim's impact statement was presented wherein she stated that since the offense she had been unable to sleep at night and had lived in constant fear. She further noted that the incident brought devastation to her first-year experience as a college student, a time in her life that she had previously anticipated with excitement. She added that she had ceased participation in extracurricular activities and sports since the rape. The victim also noted that the medical examination that she had endured after the offense was demeaning and embarrassing. She noted that the incident had caused her emotional and physical pain and that she had to undergo counseling. She further noted that her personality has changed, as she is no longer friendly or able to trust people. The defendant was allowed to speak prior to sentencing and again denied committing the offense in the face of a jury verdict of guilty. In imposing the sentence the trial court noted that the jury's finding of guilt was unanimous. The trial court further noted that the defendant not only did not apologize, but further failed to acknowledge any wrongdoing.

We note that in addition to entering the victim's home and violently forcing her to engage in vaginal intercourse, the defendant attempted to force the victim to engage in oral sex and further placed a pillow over the victim's face during the offense to the point where she thought she was going to suffocate. Furthermore, the defendant failed to show any remorse for the heinous offense. We find that the trial judge in the instant case did not abuse his great discretion in imposing the maximum possible sentence for forcible rape. The record contains ample justification for the imposition of the maximum sentence allowed by law. This court will not set aside a sentence on the ground of excessiveness if the record supports the sentence imposed. La. Code Crim. P. art. 881.4(D). The sentence imposed is not grossly disproportionate to the severity of the offense or shocking to the sense of justice and, therefore, is not unconstitutionally excessive. Thus, we find no merit in the counseled assignment of error and pro se assignment of error number six.

SENTENCE AFFIRMED.