THERIOT, J.
The defendant, Kinay R. Mingo, was charged by bill of information with four counts of sexual battery, violations of La. R.S. 14:43.1, and pled not guilty on each count. After a trial by jury, the defendant was found guilty of the responsive offense of attempted sexual battery, in violation of La. R.S. 14:43.1 and La. R.S. 14:27, on count three, and not guilty on remaining counts one, two, and four. The trial court denied the defendant's motion for new trial and motion for post-verdict judgment of acquittal. The trial court sentenced the defendant to four years imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence. The trial court advised the defendant that he is required to register as a sex offender, complete a sex offender prevention course, and pay restitution "if there are any expenses on behalf of the victims that is related to therapy as a result of these acts." The trial court denied the defendant's motion to reconsider sentence. The defendant now appeals, arguing that the sentence is unconstitutionally excessive and illegally indeterminate. For the following reasons, we affirm the conviction, vacate the sentence, and remand for resentencing with instructions.
Between February of 2004 and July of 2008, S.N.B. and her five daughters, including S.B., the victim on count three, lived with the defendant.
The defendant presents two assignments of error:
In the defendant's first assignment of error, he contends that the trial court erred by imposing a sentence which is unconstitutionally excessive. He avers the imposed sentence of four years imprisonment is too severe based on the circumstances and his personal background.
Article I, Section 20 of the Louisiana Constitution prohibits the imposition of excessive punishment. Although a sentence may be within statutory limits, it may violate a defendant's constitutional right against excessive punishment and is subject to appellate review.
Louisiana Code of Criminal Procedure article 894.1 sets forth the factors for the district court to consider when imposing sentence. While the entire checklist of Article 894.1 need not be recited, the record must reflect that the district court adequately considered the criteria.
In 2004, the year in which the incident involving the minor victim occurred, whoever committed the crime of sexual battery, as defined by La. R.S. 14:43.1, was subject to punishment by imprisonment, with or without hard labor, without the benefit of parole, probation, or suspension of sentence, for no more than ten years. La. R.S. 14:43.1(C) (prior to amendment by La. Acts 2006, No. 103 § 1).
In this case, the trial court sentenced defendant to four years imprisonment with hard labor and without the benefit of probation, parole, or suspension of sentence. Prior to rendering the defendant's sentence, the trial court heard and accepted into the record a victim impact statement from the minor victim, S.B., and, in speaking to the defendant prior to sentencing, noted the defendant refused to accept responsibility for his actions despite being found guilty of an attempted aggravated sexual offense against a minor. The trial court thereafter explicated that it had "considered all of the factors under [La. Code Crim. P. art.] 894.1[,]" specifically concluding a lesser sentence would deprecate the seriousness of the offense and the defendant was in need of correctional treatment in a custodial environment.
In light of the trial court's well-reasoned basis for imposing the challenged four-year imprisonment sentence, and considering the record as a whole, the sentence is not grossly disproportionate to the severity of the offense. The trial court did not abuse its discretion and the sentence is not unconstitutionally excessive. Therefore, the defendant's first assignment of error lacks merit.
In the defendant's second assignment of error, he argues that the imposed sentence is indeterminate and illegal. As it is presented to this court, we interpret the defendant's second assignment of error as raising two, interrelated issues: 1) whether the trial court erred by ordering the defendant pay an indeterminate amount of restitution, and 2) whether the trial court erred by ordering the defendant pay restitution to persons other than the minor victim of the attempted sexual battery. Because we find merit in the appellant's contention that the trial court violated La. Code Crim. P. art. 883.2 by failing to specify the amount, mode, and manner of payment of restitution, we pretermit any discussion of whether the trial court also erred by ordering the defendant pay restitution to the minor victim and her family for expenses related to therapy as a result of the defendant's proven criminal conduct.
In the instant case, the trial court imposed the four-year sentence without probation, parole, or suspension of sentence, advised the defendant regarding sex offender registration, ordered completion of a sex offender prevention course, and then stated as follows: "I am also going to order if there are any expenses on behalf of the victims that is related to therapy as a result of these acts by you or to the victim, [S.B], that you will reimburse her or her family for those expenses." As noted by the State in its reply brief, the defendant did not raise this issue below. Nonetheless, when a trial court fails to state the amount of restitution ordered, the sentence is indeterminate and illegal, and is patent error on the face of the record.
If a defendant who has been convicted of an offense is sentenced to imprisonment, the court shall impose a determinate sentence. La. Code Crim. P. art. 879. Restitution as part of a principal sentence is imposed pursuant to La. Code of Crim. P. art. 883.2, which provides: "In all cases in which the court finds an actual pecuniary loss to a victim, or in any case where the court finds that costs have been incurred by the victim in connection with a criminal prosecution, the trial court shall order the defendant to provide restitution to the victim as a part of any sentence that the court shall impose." La. Code of Crim. P. art. 883.2(A).
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In this case, we find merit in the defendant's second assignment of error. Specifically, the trial court erred in failing to set the specific amount of restitution to be paid. As stated above, failure to state the amount of restitution renders a sentence indeterminate and thus illegal, necessitating that the sentence be vacated and the case remanded for resentencing.
Considering the foregoing, we hereby vacate the sentence and remand the case for resentencing.