State v. Pete

• Decision Date: 13 December 2017
• Docket Number: NO. 2017-KA-0442,2017-KA-0442
• Citation: 234 So.3d 1006
• Parties: STATE of Louisiana v. Monotor M. PETE
• Court: Court of Appeal of Louisiana — District of US

234 So.3d 1006

STATE of Louisiana
v.
Monotor M. PETE

NO. 2017-KA-0442

Court of Appeal of Louisiana, Fourth Circuit.

DECEMBER 13, 2017

Leon A. Cannizzaro, Jr., District Attorney, Donna Andrieu, Scott G. Vincent, Assistant District Attorney, ORLEANS PARISH DISTRICT ATTORNEY'S OFFICE, 619 South White Street, New Orleans, LA 70119, COUNSEL FOR APPELLEE/THE STATE OF LOUISIANA

Holli Herrle-Castillo, LOUISIANA APPELLATE PROJECT, P. O. Box 2333, Marrero, LA 70073, COUNSEL FOR DEFENDANT/APPELLANT

(Court composed of Judge Terri F. Love, Judge Daniel L. Dysart, Judge Rosemary Ledet )

Judge Rosemary Ledet

In this criminal appeal, the defendant, Monotor Pete, seeks review of his conviction and sentence for failure to register as a convicted sex offender. For the reasons that follow, we affirm.

STATEMENT OF THE CASE AND THE FACTS

Louisiana law requires convicted sex offenders to register with local law enforcement authorities and to notify the communities in which they reside of their presence. See La. R.S. 15:540, et seq. (the "Sex Offender Statutes"). Mr. Pete's obligation to register and to notify arises out of his November 7, 2002 conviction for felony carnal knowledge of a juvenile.¹ State v. Pete , 03-0694, p. 1 (La. App. 4 Cir. 9/24/03), 857 So.2d 1107, 1108.

After serving five years of a six-year sentence, Mr. Pete was released on December 25, 2007, and returned to Orleans Parish. As of March 5, 2008, Mr. Pete was substantially compliant with the registration and notification requirements² of the Sex Offender Statutes.

Five years from the date of his previous notification, Mr. Pete was required

234 So.3d 1008

under the Sex Offender Statutes to re-notify.³ On March 4, 2013, Mr. Pete appeared at the sex-offender-registration office. He was advised in writing of the five-year re-notification requirement (for which he signed, not with his name, but with the phrase "under duress") and given until March 27, 2013, to comply. Mr. Pete failed to comply; an arrest warrant issued, and he was arrested on June 20, 2014. The following day, Mr. Pete posted bond and was released from custody.

Subsequently, Mr. Pete was charged under La. R.S. 15:542.1.4(A)(1) with one count of failure to register and to notify. At arraignment, Mr. Pete pled not guilty. On April 22, 2015, Mr. Pete's bail was increased; and he was remanded to custody.⁴ After a two-day trial, the jury found him guilty as charged. On January 10, 2017, the district court sentenced Mr. Pete to ten years at hard labor without benefit of parole, probation, or suspension of sentence. This appeal followed.

DISCUSSION

Errors Patent

Having reviewed the record for errors patent, we find none.

Assignment of Error

In his sole assignment of error, Mr. Pete claims that the sentence the district court imposed is excessive in violation of Art. I, § 20 of the Louisiana Constitutionof 1974.⁵ The State points out, citing La. C.Cr.P. art. 881.1(E), that Mr. Pete failed to preserve for appellate review his excessiveness claim because he neither objected to the sentence at imposition nor filed a motion to reconsider. Mr. Pete replies that this failure was the result of ineffective assistance of counsel and thus should be excused.

"Failure to make or file a motion to reconsider sentence or to include a specific ground upon which a motion to reconsider sentence may be based, including a claim of excessiveness, shall preclude the state or the defendant from raising an objection to the sentence or from urging any ground not raised in the motion on appeal or review." La. C.Cr.P. art. 881.1(E). Strictly construing La. C.Cr.P. art. 881.1(E), this court consistently has held that the failure to object to a sentence at imposition or to file a motion to reconsider sentence will preclude a defendant from raising on appeal even a claim of constitutional excessiveness.⁶ See

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State v. Robinson , 98-1606, p. 9 (La. App. 4 Cir. 8/11/99), 744 So.2d 119, 125 (noting that "this court has held ... that the failure to object to the sentence as excessive at the time of sentencing or to file a written motion to reconsider sentence precludes appellate review of the claim of excessiveness").

Nevertheless, when, as in this case, a defendant claims that the failure to preserve an excessiveness claim for appellate review was the result of ineffective assistance of counsel, this court has reached the merits of the excessiveness claim, albeit indirectly, in addressing the ineffective assistance claim.⁷ See State v. Batiste , 06-0875, p. 18 (La. App. 4 Cir. 12/20/06), 947 So.2d 810, 819 (reasoning that "in order to determine if the ineffective assistance of counsel claim has merit, we must look to see if the appellant's [unpreserved] excessive sentence claim has merit").⁸ Accordingly, we do so here.

A criminal defendant has the right to the effective assistance of counsel at every "critical stage" of the proceedings. See Montejo v. Louisiana , 556 U.S. 778, 786, 129 S.Ct. 2079, 2085, 173 L.Ed.2d 955 (2009). Sentencing is a critical stage. See Lafler v. Cooper , 566 U.S. 156, 165, 132 S.Ct. 1376, 1385-86, 182 L.Ed.2d 398 (2012) (observing that "[t]he precedents also establish that there exists a right to counsel during sentencing in both noncapital ... and capital cases.") (internal citations omitted). The filing and litigating of a post-trial motion necessary to preserve an issue for appellate review is also a critical stage. See Johnston v. Mizell , 912 F.2d 172, 176 (7th Cir. 1990) (observing that filing and litigating of "a post-trial motion ... is a critical stage in criminal proceedings" when such motion "is necessary to preserve an issue for appellate review").

"In order to prevail [on an ineffective assistance claim], the defendant must show both that: (1) counsel's performance was deficient; and (2) he was prejudiced by the deficiency."

234 So.3d 1010

State v. Brown , 16-0965, p. 18 (La. App. 4 Cir. 5/3/17), 219 So.3d 518, 531 (citing Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ). Mr. Pete argues that he received ineffective assistance of counsel because, but for counsel's failure to object to his sentence at imposition or to file a motion to reconsider sentence, this court would have jurisdiction to review his excessiveness claim. For this argument to have merit, Mr. Pete must first establish that his sentence is constitutionally excessive.

A trial court has broad discretion in imposing an appropriate sentence. State v. Trahan , 425 So.2d 1222, 1227 (La. 1983). In reviewing a given sentence, the question for an appellate court is not "whether another sentence might have been more appropriate but whether the trial court abused [that] broad sentencing discretion." State v. Walker , 00-3200, p. 2 (La. 10/12/01), 799 So.2d 461, 462 (citing State v. Cook , 95-2784, p. 3 (La. 5/31/96), 674 So.2d 957, 959 ). Thus, the Louisiana Supreme Court "has repeatedly emphasized that sentence review under the Louisiana constitution does not provide an appellate court with a vehicle for substituting its judgment for that of a trial judge as to what punishment is more appropriate in a given case." State v. Savoy , 11-1174, p. 5 (La. 7/2/12), 93 So.3d 1279, 1283 (citing State v. Walker , 00-3200, p. 2 (La.10/12/01), 799 So.2d 461, 462 ; State v. Cook , 95-2784, p. 3 (La. 5/31/96), 674 So.2d 957, 959 ; State v. Humphrey , 445 So.2d 1155, 1165 (La. 1984) ). When, as in this case, the sentence imposed is within the statutory limits and the district court has considered the factors set forth in La. C.Cr.P. art. 894.1, the sentence "should not be set aside absent a manifest abuse of that discretion." State v. Trahan , 425 So.2d 1222, 1227 (La. 1983).

"[I]ntertwined with [a] review of a sentence for excessiveness is [a] review of the record to ensure that the trial court complied adequately with La. C.Cr.P. art. 894.1 and accorded proper weight to all relevant sentencing factors." State v. Smith , 433 So.2d 688, 698 (La. 1983). Indeed, this court has described the factors set forth in La. C.Cr.P. art. 894.1 as an "integral part of the constitutionally excessive sentence analysis." State v. Robinson , 98-1606, p. 12 (La. App. 4 Cir. 8/11/99), 744 So.2d 119, 126.

Here, the district court complied with La. C.Cr.P. art. 894.1. In sentencing Mr. Pete, the district court expressly considered the following statutory factors:

• that Mr. Pete is in need of a custodial environment that can be provided most effectively by his commitment to the Department of Corrections, La. C.Cr.P. art. 894.1(A)(2) ;

• that a lesser sentence would deprecate the seriousness of Mr. Pete's crime, La. C.Cr.P. art. 894.1(A)(3) ; and

• that Mr. Pete has a considerable criminal history, La. C.Cr.P. art. 894.1(B)(28).

In addition to these statutory factors, the district court considered several other factors that the jurisprudence has recognized as appropriate sentencing considerations.⁹

The district court stated that "overriding the Court's...