Opinion
No. 08-440.
December 10, 2008 NOT DESIGNATED FOR PUBLICATION
APPEAL FROM THE ELEVENTH JUDICIAL DISTRICT COURT, PARISH OF SABINE, NO. 63,227 HONORABLE CHARLES BLAYLOCK ADAMS, DISTRICT JUDGE.
Don M. Burkett District Attorney, LA, Counsel for Appellee: State of Louisiana.
Mary E. Roper, Louisiana Appellate Project, LA, Counsel for Defendant Appellant: David Louis Moore.
Court composed of John D. Saunders, James T. Genovese, andChris J. Roy, Judges.
On or about May 24, 2007, Defendant, David Louis Moore, was charged by bill of information in docket number 63,227, with first degree vehicular negligent injuring, a violation of La.R.S. 14:39.2. Defendant was also charged in docket number 63,193 as follows: count one — driving while intoxicated, first offense, a violation of La.R.S. 14:98; count two — driving left of center, a violation of La.R.S. 32:71; and, count three — vehicular negligent injuring, a violation of La.R.S. 14:39.1. On September 13, 2007, Defendant entered a guilty plea to first degree vehicular negligent injuring in docket number 63,227 and to the count three in docket number 63,193, vehicular negligent injuring. In exchange for his guilty plea, the State dismissed counts one and two in docket number 63,193.
The charge of vehicular negligent injuring, a misdemeanor, is before this court in companion case 08-438.
Defendant was sentenced on February 14, 2008, to four years at hard labor and fined $2,000 for first degree vehicular injuring. A Motion to Reconsider Sentence was filed on February 25, 2008, and was dismissed without a hearing on March 10, 2008.
Defendant is now before this court on appeal, asserting that his plea to first degree vehicular negligent injuring violated double jeopardy and that his sentence for same is excessive. For the following reasons, Defendant's conviction and sentence are affirmed.
FACTUAL BACKGROUND
The following facts were taken from the factual basis set forth at Defendant's guilty plea and the facts stated at sentencing. On April 22, 2007, Defendant was driving on Zachary Taylor Road in Sabine Parish when his vehicle crossed the center line and hit an oncoming vehicle head-on. The driver and passenger of the oncoming vehicle suffered serious injuries as a result of the accident. Defendant's blood alcohol concentration following the accident was .168.
ERRORS PATENT
In accordance with La. Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After a review of the record, we find there are no errors patent, but the minutes of sentencing are in need of correction. The minute entry from the sentencing proceeding provides, in pertinent part:
Although the Motion for Appeal included two district court docket numbers, 63,193 and 63,227, this court is reviewing only the errors patent regarding the conviction under district court docket 63,227. District court docket number 63,193 was filed as a separate appeal in State v. Moore, 08-438.
Mr. Soileau informed the court that there was restitution owed in these cases and orally motioned the Court that the State be allowed to reserve their right to have a Restitution Hearing with the Defendant being ordered to pay whatever restitution is produced as evidence at the hearing. The Court GRANTED the State's motion reserving their right to a Restitution Hearing on the amount of restitution that is owed in these cases.
The transcript of the sentencing provides, in pertinent part:
MR. SOILEAU: Your Honor, it's my understanding now that the insurance has failed to cover some eighteen hundred dollars of the restitution that was due. And in the event that Mr. Moore should be admitted to parole . . . the State's right to have a hearing on that that [sic] he be ordered to pay any restitution due.
THE COURT: All right, the right of the State to hold a restitution hearing, should that become available, is reserved to the State.
Consequently, we find the minute entry of sentencing is in need of correction to accurately reflect the transcript of sentencing. It should indicate that the State was discussing restitution payment by Defendant in the event Defendant was placed on parole. As such, this court orders the trial court to amend the minutes of sentencing.
DOUBLE JEOPARDY
By this assignment of error, Defendant argues that his plea to first degree vehicular negligent injuring violated double jeopardy since he also pled guilty to vehicular injuring for the same conduct. Defendant maintains that there was only one accident and one course of criminal conduct. As such, Defendant contends that he was punished twice for the same conduct.
In State v. Barton, 02-163, pp. 17-18 (La.App. 5 Cir. 9/30/03), 857 So.2d 1189, 1201-02, writ denied, 03-3012 (La. 2/20/04), 866 So.2d 817, the court summarized the two tests used by Louisiana courts in examining violations of double jeopardy as follows:
The "distinct fact" test, commonly referred to as the Blockburger test, is taken from Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932) as follows:
The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not.
Accord, State v. Knowles, 392 So.2d 651, 654 (La. 1980).
The second test is the "same evidence" test. In State v. Steele, 387 So.2d 1175, 1177 (La. 1980), the Louisiana Supreme Court explained that test as follows:
If the evidence required to support a finding of guilt of one crime would also have supported conviction of the other, the two are the same offense under a plea of double jeopardy, and a defendant can be placed in jeopardy for only one. The test depends on the evidence necessary for conviction, not all the evidence introduced at trial. . . .
The "same evidence" test is broader than Blockburger, "the central idea being that one should not be punished (or put in jeopardy) twice for the same course of conduct." State v. Steele, 387 So.2d at 1177. Although the Louisiana Supreme Court has accepted both the Blockburger test and the same evidence test, it has principally relied on the "same evidence" test to evaluate double jeopardy claims. State v. Miller, 571 So.2d 603, 606 (La. 1990).
Vehicular negligent injuring is defined in La.R.S. 14:39.1, which reads in pertinent part (emphasis added):
A. Vehicular negligent injuring is the inflicting of any injury upon the person of a human being when caused proximately or caused directly by an offender engaged in the operation of, or in actual physical control of, any motor vehicle, aircraft, watercraft, or other means of conveyance whenever any of the following conditions exists:
(1) The offender is under the influence of alcoholic beverages.
(2) The offender's blood alcohol concentration is 0.08 percent or more by weight based upon grams of alcohol per one hundred cubic centimeters of blood.
First degree vehicular negligent injuring is defined in La.R.S 14:39.2, which reads in pertinent part (emphasis added):
A. First degree vehicular negligent injuring is the inflicting of serious bodily injury upon the person of a human being when caused proximately or caused directly by an offender engaged in the operation of, or in actual physical control of, any motor vehicle, aircraft, watercraft, or other means of conveyance whenever any of the following conditions exists:
(1) The offender is under the influence of alcoholic beverages.
(2) The offender's blood alcohol concentration is 0.08 percent or more by weight based upon grams of alcohol per one hundred cubic centimeters of blood .
In the instant case, Defendant was charged with the vehicular negligent injuring of Sterling Brown, the passenger in the vehicle, and was charged with first degree vehicular negligent injuring of Katrina Lynn Brown, the driver of the vehicle.
Although there was only one accident and one course of criminal conduct, Defendant's actions resulted in two people being injured.
This issue was addressed by the supreme court in State v. McCarroll, 337 So.2d 475 (La. 1976), involving multiple offenses from a single act of aggravated assault. The court stated: "A reading of these statutes indicates that the legislature's aim was to protect each citizen from the defined criminal conduct. . . . Consequently, we conclude that the legislature intended to create multiple offenses from a single act of aggravated assault affecting more than one person." Id. at 479. Therefore, considering either Blockburger or the same evidence test, and the legislature's goal to protect each citizen as noted in McCarroll, we find that the two charges do not amount to double jeopardy. Accordingly, Defendant's conviction is affirmed.
EXCESSIVE SENTENCE
In assignments of error two and three, Defendant argues that his sentence was excessive and the trial court abused its discretion in denying his motion to reconsider the sentence. In State v. Brandenburg, 06-1158, p. 28 (La.App. 3 Cir. 2/7/07), 949 So.2d 625, 644, writ denied, 07-538 (La. 10/26/07), 966 So.2d 571, and writ denied, 07-614 (La. 10/26/07), 966 So.2d 573, this court stated:
The trial court has wide discretion in imposing a sentence, and a sentence imposed within the statutory limits will not be deemed constitutionally excessive absent a manifest abuse of discretion. State v. Evans, 97-504 (La.App. 3 Cir. 10/29/97); 702 So.2d 1148, writ denied, 97-2979 (La. 4/3/98); 717 So.2d 231. This court, in State v. Dubroc, 99-730, p. 22 (La.App. 3 Cir. 12/15/99); 755 So.2d 297, 311, noted:
The relevant question on review of a sentence is whether the trial court abused its broad sentencing discretion and not whether the sentence imposed may appear harsh or whether another sentence might be more appropriate. 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). To constitute an excessive sentence, this court must find the penalty imposed is so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no measurable contribution to acceptable penal goals; and, therefore, it is nothing more than needless imposition of pain and suffering. State v. Campbell, 404 So.2d 1205 (La. 1981). The trial court is given wide discretion in imposing a sentence, and a sentence imposed within statutory limits will not be deemed excessive in the absence of manifest abuse of discretion. State v. Pyke, 95-919 (La.App. 3 Cir. 3/6/96); 670 So.2d 713.
State v. Boudreaux, 00-1467, p. 12 (La.App. 3 Cir. 4/4/01), 782 So.2d 1194, 1201, writ denied, 01-1369 (La. 3/28/02), 812 So.2d 645 (quoting State v. Dubroc, 99-730, p. 22 (La.App. 3 Cir. 12/15/99), 755 So.2d 297, 311). "As a general rule, maximum sentences are appropriate in cases involving the most serious violation of the offense and the worst type of offender." State v. Hall, 35,151, p. 4 (La.App. 2 Cir. 9/26/01), 796 So.2d 164, 169.
To decide whether a sentence shocks the sense of justice or makes no meaningful contribution to acceptable penal goals, this court has held:
[A]n appellate court may consider several factors including the nature of the offense, the circumstances of the offender, the legislative purpose behind the punishment and a comparison of the sentences imposed for similar crimes. State v. Smith, 99-0606 (La. 7/6/00), 766 So.2d 501. While a comparison of sentences imposed for similar crimes may provide some insight, "it is well settled that sentences must be individualized to the particular offender and to the particular offense committed." State v. Batiste, 594 So.2d 1 (La.App. 1 Cir. 1991). Additionally, it is within the purview of the trial court to particularize the sentence because the trial judge "remains in the best position to assess the aggravating and mitigating circumstances presented by each case." State v. Cook, 95-2784 (La. 5/31/96), 674 So.2d 957, 958.
State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ denied, 03-562 (La. 5/30/03), 845 So.2d 1061.
The penalty for first degree vehicular negligent injuring is a fine of not more than two thousand dollars or imprisonment, with or without hard labor, for not more than five years, or both. La.R.S. 14:39.2. Thus, Defendant received the maximum fine and a near maximum sentence.
Defendant, however, benefitted from his plea bargain. Prior to his plea, Defendant faced a fine of $300 to $1,000 and imprisonment of ten days to six months for driving while intoxicated, first offense. La.R.S. 14:98(B)(1). For driving left of center, Defendant was subject to a fine of not more than $100 or imprisonment for not more than thirty days, or both. La.R.S. 32:71(B)(2).
At sentencing, the trial court first noted the victim impact statements of Katrina Brown and her son, Sterling Brown. Sterling stated that his mother can no longer work and that the family lost its basic means for support. They now live off his grandmother's social security and SSI. Due to the loss of income, they no longer can do the things they used to do and are unable to afford the basic everyday items that they need. With regard to physical injuries, Katrina Brown received a laceration on the head, from the middle of the top down to the top to the right eye, a large laceration on the knee and a broken wrist. She also suffers from back and left hip pain. The vehicle was a total loss and personal items were lost in the accident.
In determining the sentences, the trial court stated the following:
THE COURT: Okay. The Court has reviewed the pre-sentence investigation report that's been provided to it on behalf of David Louis Moore. Mr. Moore has been before this Court on prior occasions. The Court is a little bit familiar with Mr. Moore. In 1985 there is a two-year probationary period for operating a motor vehicle while with a suspended license and other offenses. Entering and remaining after being forbidden. Probationary period for approximately a year. 1994 DWI second offense. 1996 disturbing the peace intoxicated here in Many. Simple battery. Possession of Schedule I. 1997 aggravated battery under the domestic violence act. And that offense on or about June 13, 1998, that this Court sentenced Mr. Moore to nine years at the Louisiana Department of Corrections at hard labor, sentenced to that offense.
. . . .
And the facts of this case are that on Zachary Taylor Road an accident occurred wherein Mr. Moore collided head on with the vehicle that the Browns were in. Subsequent breathalyzer test revealed a .168 percent blood alcohol content. Injuries to occupants, the Moores [sic], has been stated already. There was [sic] injuries to Mr. Moore. He was subsequently arrested and had been out on bond for some time when he failed to appear for sentencing I guess that would be two court dates ago. He was then arrested upon his appearance. A subsequent sentencing hearing was upset because Mr. Toups was not present due to lack of communication. The facts that the Court has before it is that Mr. Moore was in the wrong lane of travel at the time this accident occurred. Those facts were placed in the record and Mr. Moore plead guilty to those offenses, to these offenses under those facts. The Court's reviewed the sentencing guidelines in this matter. Mr. Moore has had a long, long history of substance abuse, primarily alcohol. The accident had a strong, bad impact upon the victims in this case. And as the victims' statement says, all of the affects [sic] upon their lives all because a drunk driver got behind the wheel. It has caused significant permanent and significant economic loss to the victims.
In his motion to reconsider sentence, Defendant complained that none of the trial court's reasons bore directly on the severity of the sentence. Next, Defendant argued that the trial court failed to consider his motion for a new trial because it was made orally at the time of sentencing. Had the trial court considered this motion, Defendant asserts that he would have set forth the basis for a new trial, the discovery of an eyewitness to the accident.
On appeal, Defendant does not mention the trial court's ruling on his oral motion for a new trial. Thus, this argument is abandoned. In support of his sentencing argument, Defendant refers to the trial court's observation that he has a long history of substance abuse, primarily alcohol, but complains that the trial court did not discuss whether he ever had a realistic opportunity to receive treatment, what treatment facilities were available in the community for the indigent, or the average waiting time to find a bed in an inpatient detoxification center. Defendant also maintains that alcoholism is an illness and should be treated as a factor in mitigation, especially when treatment is not readily available. Considering same, Defendant contends that he is in need of treatment, not incarceration, and that inpatient detoxification, long term inpatient follow-up treatment, and aftercare programs would be more likely to prevent a repeat offense.
We note that Defendant did not allege in his motion to reconsider that the trial court did not discuss the possibility of substance abuse treatment in lieu of incarceration. Pursuant to La. Code Crim.P. art. 881.1, Defendant's failure to include this specific ground in his motion to reconsider precludes him from urging same for the first time on appeal. See State v. Grogan, 00-1800 (La.App. 3 Cir. 5/2/01), 786 So.2d 862.
In recent jurisprudence, two cases involving maximum sentences for first degree vehicular negligent injuring were found. In State v. Cozzetto, 07-2031 (La. 2/15/08), 974 So.2d 665, the defendant pled guilty plea to first degree vehicular negligent injuring and was sentenced to five years at hard labor. The facts indicate that the defendant was involved in a hit and run accident wherein his vehicle collided with the victim's vehicle, causing her significant injuries. After witnesses on the scene helped the defendant out of his vehicle, he pushed them away and fled the scene on foot. During his plea, the defendant admitted to the finding that he had a blood alcohol level of .23. The defendant's prior criminal history included misdemeanor convictions stemming from an initial arrest for second offense D.W.I. On appeal, the court found that the sentence was constitutionally excessive, reversed the sentence, and remanded the case to the trial court for resentencing. State v. Cozzetto, 42,259 (La.App. 2 Cir. 8/15/07), 962 So.2d 1225. On writs to the supreme court, the appellate court's ruling was reversed and the five-year sentence was reinstated. The supreme court concluded:
In combination, the circumstances recited by the court in its reasons provided an adequate factual basis for the court's conclusion that by fleeing the scene of the accident resulting from his extreme intoxication after causing the victim serious injury the defendant had placed himself among the most blameworthy offenders committing the charged crime. State v. Quebedeaux, 424 So.2d 1009, 1014 (La. 1982) (maximum sentences "are reserved for . . . the most serious violations of the charged offense and for the worst kind of offender.").
Id. at 666.
In State v. Blanchard, 03-0612 (La.App. 5 Cir. 11/12/03), 861 So.2d 657, the defendant was found guilty by a jury and received the maximum five year sentence. The facts adduced at trial indicated that the defendant's vehicle crossed the center line and collided head-on with the victim's vehicle. The defendant's blood alcohol level was .24. As a result of the accident, the victim, eight months pregnant, had to undergo two emergency surgeries, one, for the early delivery of her baby, and the second, for a laceration to her right ankle. In affirming the defendant's sentence on appeal, the court found that the maximum five-year sentence for first degree vehicular negligent injuring was not unconstitutionally excessive, considering the defendant's extensive criminal record, which included six prior convictions for driving while intoxicated. Although the defendant admitted to drinking alcohol on the night of the accident, he refused to take responsibility for his actions. Further, the defendant was arrested approximately four months after the charged offense for failure to yield or stop and driving without a driver's license. The defendant admitted to being an alcoholic, to using marijuana since high school, and to using crack cocaine for the ten years prior to sentencing. The court opined that the defendant's attendance in two inpatient treatment facilities was not beneficial and that he had several opportunities to change his behavior, but chose not to do so.
Considering the trial court's reasons for sentencing, including the past criminal history of Defendant, the injuries sustained by the victim, and the jurisprudence cited herein, we find Defendant is one of the worst kind of offenders and that his sentence does not shock the sense of justice. Further, Defendant's sentencing exposure was reduced as a result of his plea bargain. Accordingly, Defendant's sentence is affirmed.
CONCLUSION
Defendant's conviction and sentence is affirmed. Additionally, the trial court is instructed to correct the minutes of sentencing to accurately reflect the transcript of sentencing as discussed in this opinion.
AFFIRMED.
This opinion is NOT DESIGNATED FOR PUBLICATION. Uniform Rules — Courts of Appeal, Rule 2-16.3.