State v. Bergeron

150 So.3d 523

STATE of Louisiana

v.Stephan M. BERGERON.

No. KA 14–608.

Court of Appeal of Louisiana, Third Circuit.

Nov. 5, 2014.

Edward John Marquet, Louisiana Appellate Project, Lafayette, LA, for Defendant/Appellant, Stephan M. Bergeron.

Earl B. Taylor, District Attorney, Jennifer Ardoin, Assistant District Attorney, Twenty Seventh Judicial District Court, Opelousas, LA, for Appellee, State of Louisiana.

Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JOHN D. SAUNDERS, and BILLY HOWARD EZELL, Judges.

Opinion

EZELL, Judge.

On December 8, 2009, Defendant, Stephan M. Bergeron, was charged by grand jury indictment with one count of aggravated rape of S.B., a violation of La.R.S. 14:42, and three counts of forcible rape of S.B., violations of La.R.S. 14:42.1.¹ Defendant entered pleas of not guilty to the charges on January 14, 2010. After several pre-trial motions were filed and heard, jury trial began on May 14, 2013. On May 24, 2013, the jury returned the following verdicts: Count One—not guilty of aggravated rape; Count two—guilty of simple rape; Count three—guilty of forcible rape; and Count four—guilty of simple rape. On each count, the jury's vote was ten to two.²

Thereafter, on November 25, 2013, Defendant filed a Motion for Post Verdict Judgment of Acquittal; Alternatively, Motion for New Trial and a Motion in Arrest of Judgment. At a hearing held December 2, 2013, the trial court denied all motions. During the same hearing, the trial judge sentenced Defendant as follows: simple rape (two counts)—twenty-five years at hard labor without the benefit of probation, parole, or suspension of sentence on each count; and forcible rape (one count)—forty years at hard labor, the first two years without benefit of probation, parole, or suspension of sentence. The sentences were ordered to run concurrently. On December 6, 2013, Defendant filed a Motion for Reconsideration of Sentence, which was denied on May 1, 2014, after a hearing.

On May 6, 2014, Defendant filed a Motion for Appeal and Designation of Record. The trial court granted the motion on May 7, 2014. Defendant is now before this court, alleging two assignments of error—the first involving the admission of other crimes evidence and the second involving the sentences imposed.

FACTS

After dating about a month, Defendant and the victim (S.B.) got married. Defendant was seventeen, and S.B. was eighteen when they married. Within their four-year marriage, S.B. alleges that Defendant raped her several times. In addition to the rapes, S.B. testified that Defendant physically and verbally abused her.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record.

Defendant was sentenced immediately after the denial of his Motion for Post Verdict Judgment of Acquittal; Alternatively, Motion for New Trial and Motion in Arrest of Judgment. The court stated that it would proceed to sentencing because more than three days had elapsed since Defendant's conviction. Louisiana Code of Criminal Procedure Article 873 provides:

If a defendant is convicted of a felony, at least three days shall elapse between conviction and sentence. If a motion for a new trial, or in arrest of judgment, is filed, sentence shall not be imposed until at least twenty-four hours after the motion is overruled. If the defendant expressly waives a delay provided for in this article or pleads guilty, sentence may be imposed immediately.

Thus, Defendant should not have been sentenced until twenty-four hours after the denial of the motions, unless the delay was waived.

In State v. Westmoreland, 10–1408, p. 3 (La.App. 3 Cir. 5/4/11), 63 So.3d 373, 377, writ denied, 11–1660 (La.1/20/12), 78 So.3d 140 (footnote omitted) (alteration in original), this court held:

However, there is no violation of Article 873 where there is an express or implied waiver of the delay. State v. C.S.D., 08–877 (La.App. 3 Cir. 2/4/09), 4 So.3d 204. A defendant can expressly waive the delay when he announces his readiness for sentencing or responds affirmatively when the trial court asks if he wants to be sentenced on that date. State v. Schmidt, 99–1412 (La.App. 3 Cir. 7/26/00), 771 So.2d 131, writ denied, 00–2950 (La.9/28/01), 798 So.2d 105, cert. denied, 535 U.S. 905, 122 S.Ct. 1205, 152 L.Ed.2d 143 (2002). A panel of this court has previously found that a defendant may impliedly waive the delay where there is evidence in the record that the defendant was aware of the sentencing date, did not object to the delay, and participated in the sentencing hearing and where the trial court thoroughly set forth its reasons for sentencing. Id.

In the present case, on May 24, 2013, at the conclusion of the trial, sentencing was set for August 1, 2013. On July 22, 2013, the defense filed a motion for a complete transcript of the proceedings and a motion for continuance. Sentencing was continued to October 3, 2013. On September 25, 2013, the court continued the matter to November 7, 2013, due to the requested transcript being incomplete. Minutes dated October 4, 2013, indicate that defense counsel was present in court when sentencing was refixed for December 2, 2013. The post-trial motions filed by the defense on November 25, 2013, were set for hearing on December 2, 1013. Thus, the record indicates the defense was aware the sentencing would be taken up on December 2, 2013.

The defense voiced no objection when sentencing was taken up immediately after the denial of the post-trial motions. After the victim addressed the court, the defense presented witnesses and evidence in support of the imposition of a lenient sentence. The trial court's comments prior to imposing sentence clearly indicated that it had carefully considered what would be appropriate sentences to impose, and the sentences were supported with ample reasons. We note that in his brief to this court, defense counsel does not assign as error the trial court's failure to delay sentencing and he does not allege any prejudice as a result of the error. This court finds the facts in this case support an implied waiver of the delay required by La.Code Crim.P. art. 873, so we find no errors patent.

ASSIGNMENT OF ERROR NUMBER ONE

In this assignment, Defendant alleges that the trial court improperly admitted other crimes evidence by allowing the testimonies of H.R. and T.G., two women who claimed Defendant forced himself upon them sexually. Prior to trial, the State filed a notice of intent to introduce other crimes evidence through the testimonies of three women—Chelsea Pryor, H.R., and T.G. In this assignment of error, Defendant alleges error as to the admission of the testimonies of H.R. and T.G. but alleges no error as to the testimony of Chelsea. Thus, we will not address the admissibility of Chelsea's testimony.

At the pre-trial hearing, as to the admissibility of the other crimes evidence, the victim, S.B., first testified as to her allegations against Defendant. S.B. testified that she and Defendant were married for four years. S.B. was eighteen, and Defendant was seventeen when the two got married. The couple started dating in November 2006 and were married in December 2006. According to S.B., Defendant soon began separating her from her family. The first time Defendant raped her, S.B. testified, was in late December 2006, or early January 2007. Defendant became angry with S.B. after reading some old messages on her MySpace account. Defendant wanted to know details of S.B.'s past relationships and began hitting her and pushing her around. Defendant also whipped S.B.'s legs with his belt, causing whelps all over her legs. Defendant then tied S.B.'s hands and feet with a rope. Using a knife, Defendant cut S.B.'s clothes off of her and began vaginally raping her.

The next incident, S.B. testified, occurred about a month later. Again, Defendant was angry with S.B. about her prior relationships. Defendant took S.B.'s clothes off, put her into a cold shower and poured buckets of ice water on her. S.B. remembered the incident lasting about thirty minutes. Within the next couple of days, S.B. and Defendant began having the same argument, and this time the argument ended with Defendant raping S.B.:

A: Um, so a day or two later, we began arguing about it again, about the—me having boyfriends before marrying him and he, this time, did not tie me up because at this point I knew better than to try and run and so he—he raped me the same way vaginally, this in the same way, saying the same things. “Is this how so and so did it? Did you enjoy it? Do you like this? Does this make you feel good,” and I would always cry and say no and ask him to stop.”

S.B. testified about various other incidents of abuse as well as the birth of their son, Branson. Branson was sick from birth and had to stay in the hospital for several months.³ While Branson was in the hospital, S.B. became pregnant with their second child. Eventually, S.B. had to go with Branson to Washington, D.C. for a liver transplant. A couple of days before she left for D.C., the following “rape incident” occurred:

We got into an argument. Um, I was actually accusing him of cheating. I had already caught him quite a few times before cheating on me and, um, I just—I just knew that he was and this was, um—so we started arguing about it and how dare you accuse me of, you know, cheating on you and he hit me with a shoe across my face ... After the shoe incident, we were in the living room and he said, “Now you know—You know what you're about to get, right,” and I knew what he was talking about. I knew he was going to rape me and I was aware and he said—because I started crying, and he was like, “You're going to make it worse if you don't cooperate with me,” and he said, “So am I going to—are you going to take off your clothes for me or am I going to—” Well, actually it started with, “Are you going to walk to the bedroom or am I going to have to drag you to the bedroom,” and I said, like “I

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