The opinion
Judgment rendered November 20, 2024.
Application for rehearing may be filed
within the delay allowed by Art. 922,
La. C. Cr. P.
No. 55,859-KA
COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA
*****
STATE OF LOUISIANA Appellee
versus
LANDON R. FULLER Appellant
*****
Appealed from the
Fifth Judicial District Court for the
Parish of Franklin, Louisiana
Trial Court No. 2013-607F
Honorable Stephen G. Dean, Judge
*****
LOUISIANA APPELLATE PROJECT Counsel for Appellant
By: Edward K. Bauman
PENNY WISE DOUCIERE Counsel for Appellee
District Attorney
MICHAEL R. ELLINGTON
CAROLINE HEMPHILL
SHIRLEY GUILLORY GEE
Assistant District Attorneys
*****
Before PITMAN, STONE, and ELLENDER, JJ.
ELLENDER, J., concurs with written reasons.
STONE, J., concurs with written reasons.
PITMAN, C.J.
Defendant Landon R. Fuller pled guilty to two counts of forcible rape.
In State v. Fuller, 54,997 (La. App. 2 Cir. 5/10/23), 361 So. 3d 1221
(“Fuller I”), this court affirmed his convictions, vacated his sentences and
remanded for resentencing. On remand, the trial court sentenced Defendant
to serve 25 years at hard labor without the benefit of probation, parole or
suspension of sentence for both counts, to run consecutively to each other.
Defendant appeals his sentences. For the following reasons, we affirm.
FACTS
In Fuller I, this court provided the following factual and procedural
background:
On October 6, 2014, the defendant pled guilty to the forcible
rape of two children; one child was five years old, and the other
child was seven years old. The offenses were committed
between October 1, 2012, and April 30, 2013, when the
defendant was 16 years old.
***
On December 10, 2014, the defendant appeared for sentencing.
The trial court noted the defendant substantially benefited from
the plea deal. The trial court also noted the defendant’s age of
18 years (at the time of sentencing), and his status as a first-
felony offender with no juvenile or adult record, were
mitigating factors for sentencing. Nevertheless, the court
sentenced the defendant to serve the maximum sentences,
40 years at hard labor, on each count to run concurrently, given
the serious nature of the offenses and the harm to the victims.
The defendant was given credit for time served.
The defendant filed a motion to reconsider sentence. On
February 24, 2015, the trial court heard argument on the motion
and subsequently reduced the defendant’s sentences, based on
the fact the defendant was 16 years old when he committed the
offenses. The trial court stated:
Here’s why we’re here today[.] I normally do not
reconsider sentences. *** [T]here are two reasons
I’m reconsidering this sentence. At the time I
imposed that sentence, in my mind, Mr. Fuller, you
were 18. That’s my error. I thought you were an
adult at the time. There is a big difference in a 16-
year old and [an] 18-year old, that’s why the law is
set up the way that it is. It does not excuse what
you did in any shape, form or fashion, it does not
lessen the severity of the offense that you were 16
as opposed to 18.
For that reason, I’m going to adjust your sentence
and impose a sentence of twenty-five (25) years.
You will be serving a hundred percent of that, you
will still get credit for the time you served since
the date of your arrest, but that is going to be the
order of the Court and hopefully when you get out
you will have learned something.
On December 23, 2019, the defendant filed a pro se “Motion to
Correct an Illegal Sentence,” pursuant to La. C. Cr. P. art. 882,
arguing the trial court’s order, that he must serve 100% of the
sentence imposed, was illegal under La. R.S. 14:42.1 and La.
R.S. 15:574.4(B). He argued the relevant statutes required him
to serve 85% of the sentence imposed before becoming eligible
for parole.
After delays, on December 21, 2020, a new trial court, Judge
Stephen Dean presiding, concluded the sentence was not illegal
and denied the defendant’s motion. The trial court reasoned,
regardless of the sentencing judge’s comment, the calculation
of time a defendant must serve before he is eligible for parole is
governed by La. R.S. 14:574.4.
The defendant sought supervisory review of that ruling. By
order dated May 27, 2021, this Court granted the defendant’s
writ and reversed the trial court’s ruling. This Court concluded
a single sentence was imposed for two counts of forcible rape
when the trial court reduced the defendant’s sentence from two
concurrent 40-year terms to “25 years,” and thus, the sentence
was illegally indeterminate because the defendant must be
sentenced as to each count. This Court vacated the defendant’s
25-year sentence and remanded the matter for resentencing.
On December 14, 2021, the defendant appeared before the trial
court, Judge Dean presiding. In open court, the prosecutor
advised the court the matter was before the court for a
“clarification of sentence.” The trial court sentenced the
defendant to serve 25 years at hard labor on each count, to be
served consecutively, with credit for time served. The court did
not articulate any reasons for the length or consecutive nature of
the sentences. Further, the trial court did not indicate what
portion of the sentences would be served without benefit of
probation, parole, or suspension of sentence. The defendant
2
inquired, “Where is my lawyer, please?” The trial court
informed him he did not need an attorney for a resentencing
hearing.
The defendant filed a pro se writ application with this Court.
On May 9, 2022, this Court granted the defendant’s writ
application, remanded this matter to the trial court for
perfection of an appeal, and ordered the Louisiana Appellate
Project to represent the defendant on appeal.
In Fuller I, this court vacated Defendant’s 25-year consecutive
sentences and remanded for resentencing. It explained:
Because the trial court herein sentenced defendant without the
presence of counsel and without the defendant knowingly and
intelligently waiving his right to counsel, we conclude the
defendant’s resentencing from “25 years” to two consecutive
25-year sentences mandated legal representation for the
defendant to protect his interests. Accordingly, the defendant’s
sentences are invalid and are hereby vacated. We remand this
matter to the trial court for resentencing in compliance with the
constitutional mandates of the right to counsel.
Moreover, the resentencing court did not consider the
defendant’s age at the time the offenses were committed, nor
did it did articulate a consideration of any factors set for in La.
C. Cr. P. art 894.1. Additionally, we note this record is sparse,
and the details with regard to the underlying offenses, i.e.,
whether the offenses were based on the same act or transaction
or constituted parts of a common scheme or plan, are unclear.
The trial court did not articulate specific reasons for imposing
consecutive sentences. Thus, this record does not provide an
adequate basis to determine whether the trial court erred in
imposing consecutive sentences. Absent such compliance, this
Court lacks appropriate criteria by which to measure the
excessiveness of the sentences in relation to this particular
defendant. Consequently, on remand, the trial court is instructed
to state for the record the considerations taken into account and
the factual basis therefor in imposing the sentences. The trial
court is further instructed to articulate factual reasons, in
accordance with La. C. Cr. P. art. 894.1, for the imposition of
these particular sentences on this particular defendant.
On remand, a resentencing hearing was held on October 31, 2023.
The trial court (Judge Dean) reviewed the procedural history of the case. It
noted that when it previously sentenced Defendant, it did not articulate any
reasons for the length or consecutive nature of the sentences or what portion
3
of the sentences would be served without benefits. It ordered a new
presentence investigation report (“PSI”) and reviewed the report prior to the
hearing. The trial court stated that Defendant did not have a juvenile
criminal record and that his adult criminal record consists only of forcible
rape convictions. Defense counsel expressed Defendant’s remorsefulness
and asked that the court consider as a mitigating factor Defendant’s age of
16 years at the time of the offenses, including that he was a child who had
not developed intellectually and socially. The trial court detailed the
aggravating factors present in this case and found that each factor of La. C.
Cr. P. art. 894.1(A) applied. It found no mitigating factors but did consider
Defendant’s age when he committed the crimes. It stated that Defendant
substantially benefited from the plea agreement and his status as a first-
felony offender with no criminal record. It further considered the La. C. Cr.
P. art. 894.1(B) factors and stated the following:
The Court has also carefully considered the following: the
serious nature of these offenses, the aggravating circumstances
including the following facts: your victims were very young
children. A mere seven-years-old and five-years-old at the time
you committed these crimes. Your victims were particularly
vulnerable because of their young ages. You were age sixteen
when you committed these crimes. An age where you clearly
knew that what you were doing to these young victims was
absolutely and terribly wrong. These crimes were not based on
the same . . . transaction and did not constitute parts of the
common scheme of plan. You admitted that you committed
these acts against both victims repeatedly, at least weekly over
a period of at least six months. Young victims of such sexual
assaults suffer extreme, long-lasting, psychological damage and
scaring (sic). And your conduct against these children was
absolutely vile and reprehensible. You have to the Court’s
knowledge expressed no remorse whatsoever for what you did
to the victims other than your self-serving statement to counsel
today and your self-serving statement you made when you were
contacted for a statement to include as part of the pre-sentence
investigation. That statement was as follows: I am sorry for
what I did. It won’t happen again. Your only explanation for
any of your acts against the victims is that quote: I was a kid
4
and I made a mistake. Unquote. This Court strongly disagrees
with both of those statements. You were sixteen, almost an
adult legally. Not a kid, as you say. And these acts were not
mistakes, as if you merely exercised poor judgement. These
were serious, unconscionable crimes, clearly premeditated and
intentional as shown by your own admission that you
repeatedly abused these young victims over a long period of
time.
The Court is of the opinion that these disgusting crimes that you
committed call for the most severe punishment allowed by law
for such a case. The only reason that the maximum sentence
will not be imposed on each count in this case is that you were
sixteen years of age when you committed the crimes. The Court
is obligated to recognize this fact and give it weight in my
sentencing.
The trial court then sentenced Defendant to serve 25 years at hard labor
without the benefit of probation, parole or suspension of sentence for both
counts of forcible rape. It ordered the sentences to run consecutively to each
other and notified Defendant that he would receive credit for time served.
Defendant appeals his sentences.
DISCUSSION
Resentencing
In his first assignment of error, Defendant argues that the trial court
upon resentencing erred in failing to consider and deviating from the intent
of the original sentencing judge. He states that he previously faced
concurrent sentences of 25 years at hard labor with benefits, but the
resentencing judge imposed harsher sentences with him facing 50 years in
prison without benefits.
The state argues that the resentencing judge did not err when
sentencing Defendant. It contends that the new sentences were not due to
vindictiveness or retaliation against Defendant for successfully attacking his
original sentence.
5
In State v. Gilcrease, 54,905 (La. App. 2 Cir. 11/30/22), 352 So. 3d
153, writ denied, 22-01845 (La. 5/31/23), 361 So. 3d 467, cert. denied,
144 S. Ct. 306 (2023), this court discussed the jurisprudence beginning with
North Carolina v. Pearce, 395 U.S. 711, 89 S. Ct. 2072, 23 L. Ed. 2d 656
(1969), overruled by Alabama v. Smith, 490 U.S. 794, 109 S. Ct. 2201,
104 L. Ed. 2d 865 (1989), that applies to cases where the defendant is
resentenced by a different judge to a harsher sentence. It stated:
In North Carolina v. Pearce, supra, the Supreme Court held
that neither the double jeopardy provision nor the Equal
Protection Clause imposed an absolute bar to a more severe
sentence upon a reconviction. However, the court found that the
due process clause of the 14th Amendment prohibited increased
sentences when the increase was motivated by vindictiveness
on the part of the sentencing judge. “And since the fear of such
vindictiveness may unconstitutionally deter a defendant’s
exercise of the right to appeal or collaterally attack his first
conviction, due process also requires that a defendant be freed
of apprehension of such a retaliatory motivation on the part of
the sentencing judge.” Id.
The Supreme Court has clarified its holding in Pearce in
several subsequent cases. According to these cases, Pearce
established a prophylactic rule by which a presumption of
vindictiveness is deemed to exist when a judge imposes a more
severe sentence upon a defendant who successfully exercised
his right to appeal or to attack his conviction collaterally. This
presumption of vindictiveness may be overcome only by
objective information in the record justifying the increased
sentence.
That decision, as we have said, was premised on the apparent
need to guard against vindictiveness in the resentencing
process. Pearce was not written with a view to protecting
against the mere possibility that, once the slate is wiped clean
and the prosecution begins anew, a fresh sentence may be
higher for some valid reason associated with a need for
flexibility and discretion in the sentencing process. The
possibility of a higher sentence was recognized and accepted as
a legitimate concomitant of the retrial process.
However, “the presumption of vindictiveness is inapplicable
where, as here, different sentencers have imposed the different
sentences against the defendant, because a sentence ‘increase
cannot truly be said to have taken place.” Texas v. McCullough,
6
475 U.S. 134, 106 S. Ct. 976, 979, 89 L. Ed. 2d 104 (1986);
State v. Rodriguez, 550 So. 2d 837 (La. App. 2 Cir. 9/27/89).
Where the presumption does not apply, the defendant may still
be entitled to relief, but he must affirmatively prove actual
vindictiveness. Wasman v. United States, 468 U.S. 559, 104 S.
Ct. 3217, 82 L. Ed. 2d 424 (1984); State v. Rodriguez, supra.
The presumption of vindictiveness, as contemplated by the U.S.
Supreme Court in North Carolina v. Pearce, supra, is inapplicable in the
present case because different sentencers imposed the different sentences.
See Texas v. McCullough, supra; State v. Gilcrease, supra. Defendant has
been sentenced four times by two judges. Judge Stephens first sentenced
Defendant to 40 years at hard labor on each count, to run concurrently; he
then resentenced Defendant to 25 years. This court vacated the 25-year
sentence because the judge imposed an illegally indeterminate single
sentence rather than a sentence for each count of forcible rape. Judge Dean
then sentenced Defendant to serve 25 years at hard labor on each count, to
be served consecutively, with credit for time served. This court vacated
these sentences because Defendant was not represented by counsel at the
resentencing hearing and because the judge did not adequately articulate
consideration of the La. C. Cr. P. art. 894.1 factors or its reasons for
imposing consecutive sentences. On remand, Judge Dean sentenced
Defendant to serve 25 years at hard labor without the benefit of probation,
parole or suspension of sentence for both counts of forcible rape, with credit
for time served. It ordered the sentences to run consecutively to each other.
Defendant has not affirmatively proved actual vindictiveness.
Although he contends that he originally faced concurrent sentences of
25 years at hard labor with benefits, an examination of the record shows that
he never received this sentence. His argument suggests that he is relying on
7
the indeterminate 25-year sentence imposed by Judge Stephens. He
contends that the resentencing judge and this court should consider the intent
of Judge Stephens; however, this intent cannot be gleaned from the
indeterminate sentence. Nevertheless, it appears that Judge Dean did
consider the 25-year sentence imposed by Judge Stephens when he
sentenced Defendant to serve 25 years at hard labor on each count. At the
hearing when Judge Dean first sentenced Defendant, he stated that the
purpose of the hearing was to clarify the 25-year sentence imposed by
Judge Stephens. Judge Dean assumed Judge Stephens intended to sentence
Defendant to 25 years as to each count. Therefore, Judge Dean sentenced
Defendant to serve consecutive 25-year sentences at hard labor. When this
court vacated these sentences, Judge Dean imposed the same sentences upon
resentencing and provided a detailed record of his reasoning, including the
young ages of the victims and the frequency of the rapes they endured.
Even if the presumption of vindictiveness applied in this case, we find
that the second sentencing judge’s reasons for imposing the sentences are
sufficient to overcome the presumption. Judge Dean ordered a new PSI,
which included statements on the lasting impacts on the victims nine years
after the original PSI report and ten years since the rapes ended. He
emphasized that “[y]oung victims of such sexual assaults suffer extreme,
long-lasting, psychological damage.”
Accordingly, this assignment of error lacks merit.
Excessive Sentence
In his second assignment of error, Defendant argues that the trial
court’s imposition of 25-year consecutive sentences is constitutionally
excessive. He states that it is nothing more than a needless imposition of
8
pain and suffering for a first-felony offender who was 16 years old at the
time of the offenses. He notes that these sentences mean he will be over the
age of 60 before he is allowed to reenter society. He argues that concurrent
sentences should be imposed because he has no prior criminal record, and
the convictions arose out of the same course of conduct within a relatively
short period of time.
The state argues that the trial court did not impose excessive
sentences. It states that the court adequately considered the criteria set forth
in La. C. Cr. P. art. 894.1 and tailored appropriate and individualized
sentences to the particular circumstances of this case. It also argues that
given Defendant’s deliberate cruelty against his child victims and that the
rapes occurred over a six-month period, the sentences do not shock the sense
of justice and should be affirmed.
An appellate court utilizes a two-pronged test in reviewing a sentence
for excessiveness. First, the record must show that the trial court complied
with La. C. Cr. P. art. 894.1. State v. Smith, 433 So. 2d 688 (La. 1983). The
trial judge need not articulate every aggravating and mitigating circumstance
outlined in La. C. Cr. P. art. 894.1, but the record must reflect that it
adequately considered these guidelines in particularizing the sentence to the
defendant. Id. The important elements the trial court should consider are
the defendant’s personal history, prior criminal record, seriousness of
offense and the likelihood of rehabilitation. State v. Jones, 398 So. 2d 1049
(La. 1981). There is no requirement that specific matters be given any
particular weight at sentencing. 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.
9
Second, the court must determine whether the sentence is
constitutionally excessive. A sentence violates La. Const. art. I, § 20, if it is
grossly out of proportion to the seriousness of the offense or nothing more
than a purposeless and needless infliction of pain and suffering. State v.
Smith, 01-2574 (La. 1/14/03), 839 So. 2d 1, citing State v. Bonanno,
384 So. 2d 355 (La. 1980).
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. La. C. Cr. P.
art. 883. Concurrent sentences arising out of a single course of conduct are
not mandatory. State v. Heath, 53,559 (La. App. 2 Cir. 11/10/20),
304 So. 3d 1105, writ denied, 20-01422 (La. 4/7/21), 313 So. 3d 981.
Consecutive sentences under those circumstances are not necessarily
excessive. Id. It is within the court’s discretion to make sentences
consecutive rather than concurrent. Id. Factors to be considered in
imposing consecutive sentences include the gravity and viciousness of the
offense, the harm done to the victims, the risk of danger to the public, the
offender’s criminal history and his potential for rehabilitation. Id. The
failure to articulate specific reasons for consecutive sentences does not
require remand if the record provides an adequate factual basis to support
consecutive sentences. State v. Sandifer, 54,103 (La. App. 2 Cir. 12/15/21),
330 So. 3d 1270.
The trial court has wide discretion in the imposition of sentences
within statutory limits, and the sentence imposed should not be set aside as
excessive in the absence of a manifest abuse of discretion. State v.
10
Abercrumbia, 412 So. 2d 1027 (La. 1982). 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.
Williams, 03-3514 (La. 12/13/04), 893 So. 2d 7, citing State v. Cook,
95-2784 (La. 5/31/96), 674 So. 2d 957.
At the time of the commission of the crimes, La. R.S. 14:42.1 stated
that whoever commits the crime of forcible rape shall be imprisoned at hard
labor for not less than 5 nor more than 40 years. At least 2 years of the
sentence imposed shall be without benefit of probation, parole or suspension
of sentence.
A review of the record demonstrates that the trial court did not abuse
its discretion when sentencing defendant to consecutive 25-year sentences.
The trial court complied with La. C. Cr. P. art. 894.1 and particularized the
sentences to Defendant. It found that each factor of La. C. Cr. P.
art. 894.1(A) applied. It determined that no mitigating factors applied but
noted that Defendant did not have a criminal history and that he was 16
years of age when he committed the crimes. It also detailed the La. C. Cr. P.
art. 894.1(B) factors, emphasizing the serious nature of the offenses, the
youth of the victims and that Defendant repeatedly raped the children over
several months. The court noted that these crimes call for the most severe
punishment allowed by law, but it did not impose the maximum 40-year
sentence because of Defendant’s age at the time of the crimes.
Further, these midrange sentences are not constitutionally excessive.
They do not shock the sense of justice when considering the vile nature of
the crimes and the youth of the victims. The PSI reports describe truly
heinous acts of rape by Defendant upon children aged five and seven. The
11
2023 PSI report notes that ten years after the rapes ended, the victims
continue to suffer, and one victim reports having extreme anxiety.
Defendant greatly benefited from pleading guilty to forcible rape rather than
face sentences of life imprisonment if convicted of the charged offenses of
aggravated rape. Regarding the consecutive nature of the sentences, the trial
court stated that the crimes were not based on the same act or transaction
because Defendant committed the sexual assaults at least weekly over a
period of six months. It also emphasized the harm done to the victims.
Accordingly, this assignment of error lacks merit.
ERRORS PATENT
A review of the record reveals that the trial court incorrectly advised
Defendant that “you have two years to apply for post-conviction relief after
your judgment of conviction and sentences ha[ve] become final, which is
today.” Although the trial court correctly advised Defendant that he has two
years from the date his judgment of conviction and sentence become final to
apply for post-conviction relief, it erred in stating that the judgment became
final on the date of the sentencing hearing. If a trial court fails to advise, or
gives an incomplete advisal, as required by La. C. Cr. P. art. 930.8, the
appellate court may correct this error by informing the defendant of the
applicable prescriptive period for post-conviction relief by means of its
opinion. State v. Green, 54,955 (La. App. 2 Cir. 4/5/23), 361 So. 3d 546.
Accordingly, by way of this opinion, this court advises Defendant that no
application for post-conviction relief, including applications that seek an
out-of-time appeal, shall be considered if it is filed more than two years after
the judgment of conviction and sentence has become final under the
provisions of La. C. Cr. P. arts. 914 or 922. See La. C. Cr. P. art. 930.8.
12
Defendant contends that the trial court also erred in imposing an
indeterminate sentence because it did not state how many years of the
sentences were to be served without benefits. A review of the record reveals
that the trial court ordered that each 25-year sentence be served without
benefit of probation, parole or suspension of sentence. This is not an
indeterminate sentence—the entirety of the 25-year sentences are to be
served without the benefit of probation, parole of suspension of sentence.
See State v. Dupree, 41,658 (La. App. 2 Cir. 1/31/07), 950 So. 2d 140, writ
denied, 07-0439 (La. 10/12/07), 965 So. 2d 396.
CONCLUSION
For the foregoing reasons, we affirm Defendant Landon R. Fuller’s
sentences.
AFFIRMED.
13
ELLENDER, J., concurring.
I find no merit in Fuller’s argument that consecutive 25-year
sentences, without benefits, are unconstitutionally excessive. Despite being
a 16-year-old offender with no criminal record, Fuller committed
unconscionable sex acts with these very young children weekly over the
course of months, with the record supporting repeated penetration of two
little girls, ages five and seven. As detailed by Judge Dean at resentencing,
the most recent PSI reflects there has been a lasting impact on these victims
ten years after the crimes were committed, and such young victims will
likely suffer extreme, long-lasting psychological damage. These were not
one-time impulsive acts, but calculated despicable offenses inflicted upon
innocent vulnerable children repeatedly over a six-month period. Fuller
received a significant benefit by pleading guilty to something less than what
he was facing, two mandatory life sentences.
While a total sentence of 50 years without benefits is significant, it
does not run afoul of the United States Supreme Court’s holdings in Graham
v. Florida, 560 U.S. 48, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010), and
Miller v Alabama, 567 U.S. 460, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012),
that the Eighth Amendment prohibits a sentencing scheme mandating life
sentences without parole for juvenile offenders. Considering Fuller was
sentenced as a juvenile offender to a term of imprisonment for less than life
and more than a total of 25 years, he may be eligible for parole after serving
25 years of his sentence, R.S. 15:574.4(J).
In my view, the critical inquiry in this case is whether Judge Dean had
the authority to impose a sentence that is twice as long as what Judge
Stephens apparently intended. I respectfully do not agree with the
1
majority’s conclusion that Judge Stephens’s intent cannot be gleaned from
the indeterminate 25-year sentence he imposed. He initially gave Fuller the
maximum sentence of 40 years for each count, concurrent. On
reconsideration, Judge Stephens said he was adjusting the sentence because
he mistakenly thought Fuller was 18 years old at the time of the offenses, not
16, and then imposed a 25-year sentence, stating Fuller “would be serving a
hundred percent of that.” While Judge Stephens failed to state he was
imposing two concurrent 25-year sentences (and failed to use the term
“without benefits”), his true intent is readily apparent to me. Since he
granted reconsideration of two concurrent 40-year sentences because he
mistakenly thought Fuller was an adult and not a juvenile, he could not have
intended to increase Fuller’s total sentence by ten years and impose two
consecutive 25-year sentences.
Considering I believe Judge Stephens’s intent can be reasonably
gleaned from the record, the inquiry then is whether the harsher sentences
imposed by Judge Dean are prohibited. Harsher sentences are not absolutely
barred on resentencing, but they cannot be motivated by vindictiveness
simply because a defendant exercises the constitutional right to appeal.
North Carolina v. Pearce, 395 U.S. 711, 89 S. Ct. 2072, 23 L. Ed. 2d 656
(1969). The purpose behind this rule is to prevent defendants from being
penalized for having exercised their constitutional rights, State v. Morgan,
08-1299 (La. App. 5 Cir. 5/26/09), 15 So. 3d 1026, as this would have a
chilling effect on their ability to do so.
The majority opinion definitively sets forth there can be no
presumption of vindictiveness in this case since Fuller was resentenced by a
different judge. This holding is well supported by the multiple cases
2
referenced in the opinion. To prevail, Fuller must affirmatively prove actual
vindictiveness on the part of Judge Dean, and I agree with the majority
opinion that he has not carried this burden. An increased sentence alone is
not sufficient to establish vindictiveness. State v. Morgan, supra, citing
State v. Dauzart, 07-15 (La. App. 5 Cir. 5/15/07), 960 So. 2d 1079. Judge
Dean provided detailed, non-vindictive reasons and factors he considered for
the sentences imposed, emphasizing the disturbing facts of this case. Fuller
presented no evidence of personal animus or vindictiveness. Judge Dean’s
new point of view and approach to the exercise of his considerable
sentencing discretion reflect he apparently believed that concurrent
sentences were far too lenient in this case where Fuller repeatedly raped two
very young children over a period of months.
I would add, considering the potential application of R.S. 15:574.4 (J),
Fuller may end up serving the sentence Judge Stephens intended, 25 years,
with Fuller “serving one hundred percent of that.” Subsection J, allowing
parole consideration for a juvenile nonhomicide offender after serving 25
years of his sentence, was not enacted until 2020, and thus was not available
to Judge Stephens at the time of resentencing, in 2015. The consecutive 25-
year sentences imposed by Judge Dean will allow for incarceration for a full
25 years and then create the possibility of release, under parole supervision,
should Fuller qualify under Subsection J.
For these reasons, I concur.
3
STONE, J., concurring.
I write to append to Judge Ellender’s concurrence. While Fuller was
unable to affirmatively prove actual vindictiveness on the part of Judge
Dean, I find his statements during Fuller’s resentencing hearing concerning:
You have, to the Court’s knowledge expressed no remorse
whatsoever for what you did to the victims other than your self-
serving statement to counsel today and your self-serving
statement you made when you were contacted for a statement to
include as part of the pre-sentence investigation. That statement
was given as follows: “I am sorry for what I did. It won’t happen
again.” Your only explanation for any of your acts against the
victims is that quote: I was a kid and I made a mistake. Unquote.
This Court strongly disagrees with both of those statements. You
were sixteen, almost an adult legally. Not a kid, as you say. And
these acts were not mistakes, as if you merely exercised poor
judgment. These were serious, unconscionable crimes, clearly
premeditated and intentional as shown by your own admission
that you repeatedly abused these young victims over a long
period of time.
The Court is of the opinion that these disgusting crimes that you
committed call for the most severe punishment allowed by law
for such a case. The only reason that the maximum sentence will
not be imposed on each count in this case is that you were sixteen
years of age when you committed these crimes. The Court is
obligated to recognize this fact and give it weight in my
sentencing.
Fuller pled guilty to lesser offenses, was adjudicated, and
subsequently resentenced as a juvenile for his crimes. Judge Dean’s
statement referring to Fuller as “almost an adult… Not a kid as you say,”
was redundant and unnecessary. Further, Judge Dean’s comment that he was
obligated to consider Fuller’s age in his sentencing alludes to a more
punitive stance and attitude regarding sentencing in general, and this could
be reasonably perceived as vindictive.
Undoubtedly, this is a horrible case with deplorable acts committed by
Fuller. We expect there to be long-lasting effects and psychological damage
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suffered by the victims, and Judge Dean properly and thoroughly considered
La. C. Cr. P. art. 894.1 and clearly articulated reasons for the imposed
sentence. However, to reiterate, the fear of vindictiveness on the part of a
sentencing judge may cause a chilling effect in similar cases. Accordingly,
trial courts should be mindful of its language so as to not violate the
constitutional rights of those who choose to exercise their right to appeal.
For these reasons, I concur.
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