STATE OF LOUISIANA versus EPHRAIM WILSON
No. 53,913-KA
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
May 26, 2021
Judgment rendered May 26, 2021. Application for rehearing may be filed within the delay allowed by Art. 922, La. C. Cr. P. Appealed from the First Judicial District Court for the Parish of Caddo, Louisiana Trial Court No. 344577 Honorable Ramona Emanuel, Judge
Honorable Ramona Emanuel, Judge
LOUISIANA APPELLATE PROJECT Counsel for Appellant By: Chad M. Ikerd JAMES E. STEWART, SR. Counsel for Appellee District Attorney EDWIN L. BLEWER, III SAMUEL SCOTT CRICHTON Assistant District Attorneys Before GARRETT, STEPHENS, and THOMPSON, JJ.
The defendant, Ephraim Wilson, was convicted by unanimous jury verdicts of one count of molestation of a juvenile under the age of 13 and one count of pornography involving juveniles under the age of 13. He was sentenced to serve 38 years at hard labor for the molestation conviction and 15 years at hard labor for the pornography conviction. Both sentences were ordered to be served without benefit of parole, probation, or suspension of sentence and the sentences were to be served consecutively. The defendant appealed his sentences as excessive and argued that they should have been imposed concurrently rather than consecutively. He claimed that the trial court violated his due process rights by not allowing him to speak at the sentencing hearing and the trial court failed to rule on his motion to reconsider sentence. For the following reasons, we affirm the convictions and sentences.
Wilson was 42 years old at the time of these offenses and had lived in California for 23 years. He worked at an airport and did volunteer work with a church youth group. His mother and other family members lived in Shreveport. SW, the victim of these offenses, was adopted as an infant by Wilson’s biological mother. SW was 12 years old at the time these offenses occurred.1
In October 2016, Wilson flew to Shreveport to see his mother. He had not visited her in many years. Wilson stayed at a motel near the airport. On October 25, 2016, Wilson took SW to a movie at approximately 4 p.m. The family planned to meet at a restaurant for dinner at 6:30 p.m. According to SW, they sat in the back of the theater on the top row, away from peoplе. SW said that Wilson put his hand up her skirt and touched her private parts. When she tried to leave, Wilson pushed her back into her seat. SW said they only stayed in the movie for 30 minutes. They left the theater and SW thought Wilson was taking her home. Instead, he took her to his motel room. SW said that when they arrived at the motel, Wilson removed his clothes and made her take off her clothes. He inserted his penis in her vagina, performed oral sex on her, and forced her to perform oral sex on him. She said at one point, Wilson hit her in the face and he pushed her head down to force her to have oral sex with him. SW reported that, during the course of the offenses, Wilson ejaculated twiсe. He used his cellphone to take nude photos of SW, including her genitals. Wilson told her he was doing her a favor and not to tell anyone. At the time of the offenses, SW was five feet tall and weighed 98 pounds. She described Wilson as much bigger than her and “heavy set.” She denied ever telling Wilson that she was interested in sex.
Wilson received a phone call from family members wondering why they were late for dinner. Wilson and SW left the motel and met the family at a restaurant. When SW got home that night, she told her mother what Wilson had done to her. According to SW, her mother was upset, but did not call the police immediately. Her mother secured her panties in a plastic bag. When SW got to schoоl the next day, she told a counselor about Wilson molesting her the day before. Police were called to the school. That morning, SW’s mother also called the police and reported the offenses. A police officer was sent to her residence. The mother gave the police the clothing that SW was wearing the day before.
SW was taken to a hospital where a sexual assault nurse examiner (“SANE“) examined her and collected evidence in a personal evidence recovery kit (“PERK“). The nurse observed a thick white substance on the child’s genitalia and a tear near the vagina, which was still bleeding. Some portions of the examinаtion could not be completed because SW was in pain. Subsequent DNA laboratory analysis showed that the Y profile obtained from the underwear and shorts that SW wore to the movies was consistent with the Y profile obtained from Wilson. Several days later, SW was taken to Gingerbread House, a children’s advocacy center, where a video-recorded forensic interview was conducted and she detailed the offenses that Wilson committed against her.
Wilson was scheduled to fly back to California the afternoon of October 26, 2016, the day the offenses were reported and the day after they were committed. Officers from the Shreveport Police Dеpartment
Wilson told police that SW was his adopted sister, but he was unsure of her name. He only knew her family nicknames. He acknowledged taking her to the movies the day before. At first, he denied any sexual contact with SW. He later admitted having sex with her, but said it was consensual. He claimed that SW “came onto” him. He admitted taking the child to his motel room and having oral sex with her “for a couple of seconds.” Wilson provided the police with the password for his cellphone and nude photographs of SW, including her genitals, were found on the phone. Wilson said, “My purpose was to show her how to get herself off.”
Wilson was arrested and was initially charged by grand jury indictment with one count each of first degree rape of a victim under the age of 13, sexual battery of a victim under the age of 13, indecent behavior with juveniles under the age of 13, and pornography involving juveniles under the age of 13.
On January 22, 2020, an amended indictment was filed changing the charges to one count of molestation of a juvenile under the age of 13, a viоlation of
Wilson was convicted as charged on both counts by a unanimous jury. Wilson and the state filed sentencing statements and Wilson filed a supplemental statement with the trial court before sentencing. The sentences set forth above were imposed on March 10, 2020. A motion to reconsider his sentences was timely filed on March 17, 2020. The motion was denied by the trial court on June 26, 2020. Wilson appealed.
MOTION TO RECONSIDER SENTENCE
Wilson claims as “error patent” that the trial court failed to rule on his timely filed motion to reconsider sentence. He argues that the case should be remanded to the trial court for a hearing on the motion and that he should be allowed to refile an appeal. This argument is without merit.
Legal Principles
The trial court may deny a motion to reconsider sentence without a hearing.
A. (1) In felony cases, within thirty days following the imposition of sentence or within such longer period as the trial court may set at sentence, the state or the defendant may make or file a motion to reconsider sentence.
. . . .
B. The motion shall be oral at the time of sentence or shall be in writing thereafter and shall set forth the specific grounds on which the motion is based.
C. If a motion is made or filed under Paragraph A of this Article, the trial court may resentence the defendant despite the рendency of an appeal or the commencement of execution of the sentence. D. The trial court may deny a motion to reconsider sentence without a hearing, but may not grant a motion to reconsider without a contradictory hearing. If the court denies the motion without a hearing, the party who made or filed the motion may proffer the evidence it would have offered in support of the motion[.] [Emphasis supplied.]
See also State v. Williams, 46,468 (La. App. 2 Cir. 9/21/11), 72 So. 3d 966. The appeal of a criminal case does not divest the trial court of jurisdiction to rule on a motion to reconsider sentence.
The jurisdiction of the trial court is divested and that of the appellate court attaches upon the entering of the order of appeal. Thereafter, the trial court has no jurisdiction to take any action except as otherwise provided by law and to:
(3) Correct an illegal sentence or take other appropriate action pursuant to a properly made or filed motion to reconsider sentence. [Emphasis supplied.]
The absence of a ruling on the motion to reconsider sentence does not affect the appellate court’s ability to consider the constitutional excessiveness of the sentence on appeal, nor does it require a remand, since the trial court retains jurisdiction to rule on the motion to reconsider sentence and the defendant is within his rights to provoke same. Should the trial court later rule upon the defendant’s motion to reconsider sentence, the defendant may seek appellate review of that decision pursuant to
Discussion
At Wilson’s sentencing on March 10, 2020, he objected to his sentences in open court and a written motion to reconsider the sentences was filed on March 17, 2020. The trial court signed an order on the motion to reconsider on April 15, 2020, but did not indicate whether the motion was granted or denied. The order of appeal was also signed by the trial court on that date. The record contains another order, signed by the trial court on June 26, 2020, denying the motion to reconsider the sentences. The minutes reflect that this order was filed into the record on June 29, 2020.
Wilson argued in brief that the motion to reconsider sentences had not been ruled on and consideration of his excessive sentence claim would be premature because the present sentence might be vacated by the trial court. He stated in his appellate brief that the record does not include the transcripts of a motion to reconsider hearing and the minutes indicate only that such a motion was filed, but not that a ruling was ever made by the trial court.
The record, the statutes, and the jurisprudence simply fail to support this argument. Wilson timely filed a motion to reconsider the sentences and the trial court was not required to hold a hearing before denying the motion.
FAILURE TO ALLOW THE DEFENDANT TO SPEAK AT THE SENTENCING HEARING
Wilson argues that the trial court violаted his due process rights by failing to allow him to speak at the sentencing hearing. He urges that the sentences should be vacated and the matter remanded for a new hearing. This argument is without merit.
Legal Principles
The defendant must be given an opportunity to rebut or explain misinformation upon which the trial court relies or to which it is exposed in its sentencing decision. State v. Ray, 423 So. 2d 1116 (La. 1982); State v. Cox, 369 So. 2d 118 (La. 1979). The jurisprudence also holds that the accused must likewise be given an opportunity to make a showing, by argument of counsel or otherwise, of mitigating factors under
The court does not have the affirmative duty to ask whether the defendant has anything to say at a sentencing hearing. State v. Hughes, supra. Comment (c) to
The common law requirement of an allocutus, or an opportunity to respond to a question posed by the court as to why sentence should not be imposed, emanated from the fact that the defendant was without counsel and therefore deserved an opportunity to object to irregularities in the proceedings which resulted in his conviction. The basis for the rule has largely disappeared with the advent of counsel and fully stated procedures for motions for a new trial and in arrest of judgment. Louisiana jurisprudence, prior to the 1928 Code of Criminal Procedure, had held that an opportunity for a pre-sentence statement by the defendant was required only in capital cases and was limited to the purpose of allowing the defendant to make motions for a new trial and in arrest of judgment. State v. Ikenor, 107 La. 480, 32 So. 74 (1902); State v. Cheney, Man. Unrep. Cas. 394 (La. 1880). The 1928 Code of Criminal Procedure provided for the defendant’s right to counsel, and set out the procedures for making motions to set aside the conviction. The opportunity for the defendant to speak before imposition of sentence was no longer important, and Art. 524 of the 1928 Code specificаlly provided that it was not necessary to ask the defendant, “Have you anything to say why sentence of the court should not be pronounced against
you?” The article did not prohibit the trial judge from allowing the defendant to make a pre-sentence statement. It denied the defendant a right to make a statement. The omission from this Code of the provisions of Art. 524 of the 1928 Code does not mean a return to the common law allocutus, for Art. 3 provides that where no procedure is specifically prescribed by this Code or by statute, the court may proceed in a manner consistent with the spirit of the statutory law. The allowance of a pre-sentence statement remains in the discretion of the trial judge.
See also State v. Brown, 440 So. 2d 994 (La. App. 3 Cir. 1983), writ denied, 444 So. 2d 120 (La. 1984); State v. Curtis, 2008-99 (La. App. 3 Cir. 6/5/08), 987 So. 2d 294.
An irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence. A bill of exceptions to rulings or orders is unnecessary. It is sufficient that a party, at the time the ruling or order of the court is made or sought, makes known to the court the action which he desires the court to take, or of his objections to the action of the court, and the grounds therefor.
Discussion
The trial court did not order a presentence investigation (“PSI“) in this case.
On appeal, Wilson argues that he was denied an opportunity to speak at sentencing and it was unclear whether he was denied an opportunity to rebut or offer mitigation to information considered by the trial court in sentencing. He argues that the record was insufficient to determine whether the trial court erred in considering the state’s sentencing statement without giving Wilson the opportunity to review and offer explanations or counterclaims about the content of the statements. He contends that the trial court imposed the sentences immediately after the sentencing hearing commenced and the court’s haste in pronouncing sentence precluded a full and fair sentencing hearing. These arguments are not supported by the record or the law.
The record shows that Wilson was given an opportunity to rebut or offer mitigation to information used by the trial cоurt in sentencing. His sentencing statement set forth the factors that Wilson wanted the court to consider in pronouncing sentence. The state filed a sentencing statement setting forth the factors it considered pertinent to sentencing. The state certified that a copy of the statement was forwarded to defense counsel on February 28, 2020. At that point, Wilson had an opportunity to review and rebut the information submitted by the state. Wilson filed a supplemental sentencing statement on March 6, 2020, submitting a letter concerning
Wilson was not denied the right to speak at the sentencing hearing. A defendant does not have a right to speak at sentencing. Allowing a defendant to address the court is within the trial court’s discretion. In this case, Wilson did not ask to speak regarding his sentence, and the defense did not offer a contemporaneous objection urging that the trial court failed to allow Wilson to address the court. After the sentence was imposed, Wilson indicated that he did not understand the sex offender registration requirements. A discussion was held off the record. The trial сourt did not deny Wilson the opportunity to address the court at sentencing and any perceived error in this regard was not preserved for appellate review.
Contrary to Wilson’s argument, the trial court did not conduct the hearing in haste. Wilson was given an opportunity to rebut or correct information considered in sentencing and to offer mitigating factors. He was not denied an opportunity to address the court at sentencing. Wilson was given a full and fair sentencing hearing and his due process rights were not denied.
EXCESSIVE SENTENCES
Wilson was ordered to serve 38 years at hard labor for the molestation conviction and 15 years at hard labor for the pornography conviction. Both sentences were ordered to be served without benefit of parole, probation, or suspension of sentence and the sentences were to be served consecutively. Wilson argues that his sentences, totaling 53 years, are constitutionally and statutorily excessive. He also contends that the trial court erred in ordering the sentences to be served consecutively. These arguments are without merit.
Legal Principles
The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in
The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of the offense, and the likelihood of rehabilitation. State v. Jones, 398 So. 2d 1049 (La. 1981); State v. DeBerry, 50,501 (La. App. 2 Cir. 4/13/16), 194 So. 3d 657, writ denied, 16-0959 (La. 5/1/17), 219 So. 3d 332. There is no requirement that specific matters be given any particular weight at sentencing. State v. Davis, 52,453 (La. App. 2 Cir. 2/27/19), 265 So. 3d 1194.
Second, the court must determine whether the sentence is constitutionally excessive. A sentence violates
A trial judge is in the best position to consider the aggravating and mitigating circumstances of a particular case, and, therefore, is given broad discretion in sentencing. State v. Cook, 95-2784 (La. 5/31/96), 674 So. 2d 957, cert. denied, 519 U.S. 1043, 117 S. Ct. 615, 136 L. Ed. 2d 539 (1996); State v. Valadez, supra. On review, an appellate court does not determine whether another sentence may have been more appropriate, but whether the trial court abused its discretion. State v. Bell, supra; State v. Tubbs, 52,417 (La. App. 2 Cir. 11/20/19), 285 So. 3d 536, writ denied, 20-00307 (La. 7/31/20), 300 So. 3d 404.
The sentence for molestation of juveniles under the age of 13 is set forth in
Whoever commits the crime of molestation of a juvenile when the victim is under the age of thirteen years shall be imprisoned at hard labor for not less than twenty-five years nor more than ninety-nine years. At least twenty-five years of the sentence imposed shall be served withоut benefit of probation, parole, or suspension of sentence.
The sentence for pornography involving juveniles under the age of 13 is contained in
E. (1)(a) Whoever intentionally possesses pornography involving juveniles shall be fined not more than fifty thousand dollars and shall be imprisoned at hard labor for not less than five years or more than twenty years, without benefit of parole, probation, or suspension of sentence.
(5)(a) Whoever commits the crime of pornography involving juveniles punishable by the provisions of Paragraph (1), (2), or (3) of this Subsection when the victim is under the age of thirteen years and the offender is seventeen years of age оr older shall be punished by imprisonment at hard labor for not less than one-half the longest term nor more than twice the longest term of imprisonment provided in Paragraph (1), (2), and (3) of this Subsection. The sentence imposed shall be served without benefit of parole, probation, or suspension of sentence.
Regarding concurrent and consecutive sentences,
If the defendant is convicted of two or more offenses based on the same act or transaction, or constituting parts of a common scheme or plan, the terms of imprisonment shall be served concurrently unless the court expressly directs that some or all be served consecutively. Other sentences of imprisonment shall be served consеcutively unless the court expressly directs that some or all of them be served concurrently.
When consecutive sentences are imposed, the court shall state the factors considered and its reasons for the consecutive terms. Among the factors to be considered are: (1) the defendant’s criminal history; (2) the gravity or dangerousness of the offense; (3) the viciousness of the crimes; (4) the harm done to the victims; (5) whether the defendant constitutes an unusual risk of danger to the public; and (6) the potential for the defendant’s rehabilitation. The failure to articulate specific reasons for consecutive sentences does not require remand, however, if the record provides an adequаte factual basis to support consecutive sentences. State v. Sandifer, 53,276 (La. App. 2 Cir. 1/15/20), 289 So. 3d 212. See also State v. Williams, supra.
Discussion
Even though no PSI report was ordered, Wilson and the state each filed sentencing statements with the trial court before the sentencing hearing, which the trial court used in formulating the sentences. In Wilson’s sentencing statement, he informed the court that he was 45 years old at the time of sentencing and had no prior convictions. He had led a law-abiding life for a substantial period of time before these offenses. He acknowledged that, before and during the trial, mutual family members pressured SW to recant her testimony against him, but he claimed that he neither contributed to nor participated in the harassmеnt of SW. Defense counsel contended that these offenses were committed as part of the same act or transaction and argued that the sentences should be imposed concurrently “unless the court deems otherwise.” Counsel requested “as much mercy as possible for the defendant, given the facts and circumstances of this case.”
In the state’s sentencing statement, it noted that the sentencing range for molestation of a juvenile under the age of 13 is 25-99 years at hard labor, with at least 25 years served without benefits. The sentencing range for pornography involving juveniles under the age of 13 is 10-40 years at hard labor without benefits. The state urged that the sentеnces be imposed consecutively, noting that SW, who was 12 when the offenses occurred, will face continuing trauma and emotional effects from each of these crimes. The state argued that concurrent sentences would diminish the seriousness of the offenses. According to the state, Wilson should not be treated with leniency because he committed multiple sex offenses involving the same victim and he should not get a pass on their mutual family members pressuring SW not to testify. The state argued that Wilson’s acts isolated SW by turning the natural mother and siblings of the defendant against SW; the victim has no other place to live other than the home of Wilson’s mother. The state said that the unanimous jury had deep concerns for the welfare of the victim. The state urged that severe consecutive sentences were warranted due to Wilson’s lack of remorse. The state noted that Wilson tried to blame the offenses
Wilson filed a supplemental sentencing statement attaching a copy of a letter from “Paige E.” of Crossroads Prison Ministries, a correspondence course Bible study, along with a copy of Wilson’s transcript showing his progress in the program.
Wilson appeared before the trial court for sentencing on March 10, 2020. The court noted that Wilson had been convicted of molestation of a juvenile under the age of 13 and pornography involving juveniles under the age of 13. The court said it had reviewed the sentencing guidelines of
Wilson argues that the trial court did not specify which factors under
The record shows that the trial court considered the factors set forth in
In accordance with the sentencing guidelines of
The record shows an adequate factual basis for the sentences imрosed. Also, the sentences are not constitutionally excessive. They are not out of proportion to the seriousness of the offenses and do not purposely and needlessly inflict pain and suffering. The sentences do not shock the sense of justice.
The factors enumerated by the state and relied upon by the trial court provide the particular justification for the court’s decision to order that the sentences be served consecutively. The young victim was assaulted in a movie theater and later at a motel. The ordeal culminated in Wilson taking degrading photographs of the victim’s genitalia. The state noted Wilson’s lack of remorse for the offenses and his attempts to blame SW for them. The offenses resulted in physical and emotional trauma to the victim. Wilson’s actions created a situation whereby SW was alienated from her family. The state urged that Wilson should not be treated with leniency because he committed multiple sex offenses with the same victim and that concurrent sentences would diminish the seriousness of the offenses. Wilson originally faced a charge of first degree rape under
CONCLUSION
For the reasons stated above, the convictions and sentences of the defendant, Ephraim Wilson, are affirmed.
AFFIRMED.