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STATE OF LOUISIANA VERSUS KEVIN S. PERKINS, SR.

NO. 11-KA-255

COURT 0.' APPEAL
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FIFTH CIRCUIT COURT OF APPEAL STATE OF LOUISIANA

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ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 10-1409, DIVISION "G"
HONORABLE ROBERT A. PITRE, JR., JUDGE PRESIDING


November 29,2011

SUSAN M. CHEHARDY
JUDGE
Panel composed of Judges Marion F. Edwards, Susan M. Chehardy, and Fredericka Homberg Wicker

PAUL D. CONNICK, JR. DISTRICT ATTORNEY Twenty-Fourth Judicial District Parish of Jefferson TERRY M. BOUDREAUX ANNE WALLIS - APPELLATE COUNSEL ERNEST CHEN - TRIAL COUNSEL ASSISTANT DISTRICT ATTORNEYS 200 Derbigny Street Gretna, Louisiana 70053 COUNSEL FOR APPELLEE, THE STATE OF LOUISIANA

HOLLI A. HERRLE-CASTILLO Attorney at Law Louisiana Appellate Project P. O. Box 2333
Marrero, Louisiana 70073
COUNSEL FOR APPELLANT,
KEVIN S. PERKINS, SR.


AFFIRMED; REMANDED

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On appeal, defendant seeks review of his convictions and sentences for

; ; ' molestation of a juvenile and aggravated incest. For the following reasons, we affirm.

Facts and Procedural History
Because the instant convictions were obtained pursuant to guilty pleas without a trial and minimal pre-trial hearings, the record contains minimal facts about the offenses. However, the record reflects that, between September 27, 1994 and September 26,2000, defendant, who was born on October 22, 1959, committed acts, which included inappropriate touching of the breasts and vagina, vaginal intercourse, and execution of oral sex, against a minor female, who was born on September 27, 1982. 1 On March 17, 2010, the Jefferson Parish District Attorney filed a bill of information charging defendant, Kevin S. Perkins, Sr., with molestation of a juvenile, in violation of La. R.S. 14:81.2 for acts committed between September 27, 1994 and September 26, 1999, against the minor victim, who had not reached
I It is undisputed that defendant is more than two years older than the victim. In fact, defendant is 22 years, 25 days older than the victim. During the time period reflected in the bill of information, the victim's age ranged from 12 to

18.

the age of seventeen years. The next day, March 18,2010, the State amended the bill of information, adding one count of aggravated incest, in violation of La. R.S. 14:78.1 for acts committed between September 27, 1999 and September 26,2000, against the minor victim, who had not reached her eighteenth birthday. That day, defendant entered a plea of not guilty to both charges. On October 26, 2010, defendant filed a motion to quash the bill of information contending that the bill should be quashed because the State failed to institute prosecution with the prescriptive period allowed by law. That same day, the court heard and denied the motion to quash. Thereafter, defendant withdrew his pleas of not guilty and tendered pleas of guilty, pursuant to State v. Crosby,2 reserving his right to seek appellate review of the denial of his motion to quash.' After the defendant waived the statutory sentencing delays, the trial judge sentenced defendant to ten years at hard labor for molestation of a juvenile and to sixteen years at hard labor for aggravated incest, concurrent. On October 27,2010, defendant filed a motion for appeal, seeking review of the trial court's denial of his motion to quash, which was granted on November 23, 2010. This appeal follows. In his sole assignment of error, defendant argues that the trial court erred in denying his motion to quash because, pursuant to La. C.Cr.P. art. 532(7), the charges should have been quashed due to the fact that the prescriptive period for institution of the prosecution had prescribed. Specifically, defendant contends that the amendments to the relevant code articles, which extended the prescriptive period for institution of prosecution, cannot be retroactively applied to his case because they violate the prohibition against ex postfacto laws.

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338 So.2d 584 (La. 1976).
In addition, on the same day, in case number 01-3876, defendant pled guilty to issuing worthless checks in
violation of La. R.S. 14:71 and received a concurrent one-year sentence. That case is not part of this appeal.


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In response, the State argues that the amendments extending the prescriptive period do not violate the prohibition against ex postfacto laws because the extensions in question were enacted prior to the accrual of the original prescriptive period. In State v. Ferrie, 144 So.2d 380,384 (1962), which was abrogated on other grounds by State ex reI. Olivieri v. State, 00-0172 (La. 2/21/01) 779 So.2d 735, the Louisiana Supreme Court stated as follows: [I]n the absence of a statute of limitations, the State retains the right to prosecute for crimes indefinitely. But when a right of grace has been extended, the State relinquishes the right to prosecute once the statute of limitations has run; until it does run, the State's right to prosecute is retained and may be extended at the will of the State. With regard to the timeliness of the institution of prosecution for molestation of a juvenile, La. C.Cr.P. art 571.1, which was enacted by Acts 1993, No. 592,

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