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Judgment rendered June 22, 2011. Application for rehearing may be filed within the delay allowed by Art. 922, La. C. Cr. P.

No. 46,386-KA COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA *****

STATE OF LOUISIANA versus STEVEN L. ENTERKIN

Appellee

Appellant

***** Appealed from the Fifth Judicial District Court for the Parish of Franklin, Louisiana Trial Court No. 2009-161F Honorable E. Rudolph McIntyre, Jr., Judge ***** LOUISIANA APPELLATE PROJECT By: Peggy J. Sullivan JOHN M. LANCASTER District Attorney JOHNNY R. BOOTHE PENNY DOUCIERE Assistant District Attorneys Counsel for Appellant Counsel for Appellee

*****

Before CARAWAY, DREW and MOORE, JJ. CARAWAY, J., concurs with written reasons.

MOORE, J. Steven L. Enterkin appeals as excessive his sentence of 30 years at hard labor, the first 25 without benefits, arising from his conviction of one count of molestation of a juvenile, La. R.S. 14:81.2. For the reasons expressed, we affirm. The incident occurred on August 19, 2006, when 21-year-old Enterkin was spending the evening with the 11-year-old victim's mother at their house in Wisner, Louisiana. After drinking and having sex with the mother, Enterkin came out of the bedroom and into the living room, where the victim was sleeping on the couch. He lay down beside her, asked if she had a condom (she did not), performed oral and then anal sex on her, asked her not to tell anyone about it, and then returned to the mother's bedroom. The victim did not report this until she told her grandmother in September 2008. Enterkin was arrested in January 2009. The indictment, filed March 12, 2009, charged him with aggravated rape that occurred "on or about July 14, 2006." However, at a pretrial hearing in January 2010, the state amended the indictment, without objection, to recite that the offense occurred on August 19, 2006. Enterkin went to trial on the aggravated rape charge over three days in January 2010. The 12-member jury found Enterkin guilty of the lesser included offense of molestation of a juvenile. Enterkin filed a motion that included a request for modification of verdict. The district court stated that the state had proved aggravated rape, but agreed that the evidence did not support a finding of force, violence, duress or the other essential elements of molestation of a juvenile. At the

state's suggestion, the court entered an amended verdict of guilty of sexual battery. It then sentenced Enterkin to 30 years at hard labor, the first 25 to be without benefit of parole, probation or suspension of sentence, and ordered him to register as a sex offender. On initial appeal, this court found sufficient evidence to convict but reversed the modified verdict. State v. Enterkin, 45,655 (La. App. 2 Cir. 11/17/10), 56 So. 3d 257. We reinstated the verdict of molestation of a juvenile and remanded for resentencing. After a hearing in November 2010, the district court again sentenced Enterkin to 30 years at hard labor, the first 25 to be without benefits, and sex offender registration. Enterkin made an oral motion to reconsider, which the court denied. Enterkin now appeals, urging by one assignment of error that his sentence is excessive in light of the circumstances (he was barely 21 years old at the time of the offense, with no felony record) and the fact that the offense occurred just days after the legislature drastically increased the penalty for molestation of a juvenile. He shows that prior to August 15, 2006, La. R.S. 14:81.2 B provided a penalty of only 1 to 10 years at hard labor. However, 2006 La. Acts No. 103 added a new penalty provision, R.S. 14:81.2 E(1), whereby if the victim is under the age of 13, the sentence range is 25 to 99 years at hard labor, of which the first 25 must be without benefits. The amendment took effect August 15, 2006, a mere four days before his offense. He argues that the close proximity of the amendment, and the ambiguous evidence about the precise date of the offense, make the sentence excessive.

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The state responds that the sentence is not excessive, in that the evidence was (as the district court noted) sufficient to prove aggravated rape, which carries a mandatory life sentence; the victim had suffered emotional harm from this, her first sexual experience; and the district court meticulously justified the 30-year sentence in accordance with La. C. Cr. P. art. 894.1. The state also asserts that the applicable penalty is the one in effect at the time of the offense; Act 103 contained no "grace period" for offenders to adjust to the new, harsher penalty. The state urges affirmance. Appellate review of sentences for alleged excessiveness is a twopronged inquiry. First the record must show that the sentencing court complied with La. C. Cr. P. art. 894.1. However, when the defendant files a motion to reconsider sentence that raises no "specific grounds" for reconsideration under La. C. Cr. P. art. 881.1, he is relegated to the bare claim of constitutional excessiveness. State v. Mims, 93-0808 (La. 6/18/93), 619 So. 2d 1059; State v. Jenkins, 45,873 (La. App. 2 Cir. 1/26/11), 57 So. 3d 405. Enterkin's motion raised no specific grounds, only a general claim for reconsideration, so he is not entitled to review for compliance with Art. 894.1. We would note, however, that the district court was in full command of the factual basis, having sat through a three-day trial and, at the second sentence hearing, reading the PSI into the record almost in extenso. The second prong is constitutional excessiveness. A sentence violates La. Const. Art. I,

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