Opinion
No. 08-438.
December 10, 2008 NOT DESIGNATED FOR PUBLICATION
APPEAL FROM THE ELEVENTH JUDICIAL DISTRICT COURT, PARISH OF SABINE, NO. 63,193 HONORABLE CHARLES BLAYLOCK ADAMS, DISTRICT JUDGE.
Don M. Burkett District Attorney, LA, Counsel for Appellee: State of Louisiana.
Charles David Soileau Soileau Garcie, LA, Counsel for Plaintiff/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, and Chris J. Roy, Judges.
On or about May 24, 2007, Defendant, David Louis Moore, was charged by bill of information 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. Defendant was also charged in docket number 63,227 with first degree vehicular negligent injuring, a violation of La.R.S. 14:39.2, which is before this court in companion case 08-440. On September 13, 2007, Defendant entered a guilty plea to count three, vehicular negligent injuring, and to first degree vehicular negligent injuring in docket number 63,227. In exchange for his guilty plea, the State dismissed counts one and two.
Defendant was sentenced on February 14, 2008, to six months in the parish jail and was fined $1,000 for vehicular negligent injuring to run concurrently with his sentence for first degree vehicular negligent 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 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.
PROCEDURAL ISSUE
In the "Motion for Appeal," Defendant's attorney included district court docket numbers 63,193 and 63,227, and the trial court granted the appeal on both docket numbers. District court docket number 63,227 was filed as a separate appeal in State v. Moore, 08-440.
District court docket number 63,193 involves the charge of vehicular negligent injuring, a misdemeanor. Generally, the proper appellate review for a misdemeanor conviction is by supervisory writ, not by appeal. La. Code Crim.P. art. 912.1.
The State dismissed the remaining charges under this docket number.
In State v. Turner, 04-1250 (La.App. 3 Cir. 3/2/05), 896 So.2d 286, writ denied, 05-871 (La. 12/12/05), 917 So.2d 1084, this court severed a misdemeanor conviction for possession of marijuana from the defendant's appeal of two felony convictions. This court ordered the "defendant to file a writ of review regarding the possession of marijuana conviction in compliance with the Rules of Court." Id. at 289.
In Turner, the court noted that the defendant did not make any specific arguments regarding the misdemeanor conviction. In the present case, however, Defendant specifically argues the double jeopardy clause was violated when he pled guilty to the felony charge under district court docket number 63,227, and the misdemeanor charge under district court docket number 63,193, and that the sentence imposed on the misdemeanor conviction is excessive. Thus, this court chose, in the interest of judicial economy, to proceed with this appeal. See State v. Fuslier, 06-1438 (La.App. 3 Cir. 4/4/07), 954 So.2d 866.
ERRORS PATENT
In accordance with La. Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record, and this court has held that errors patent reviews on appeals involving misdemeanor convictions are discretionary. See State v. Barr, 01-0696 (La.App. 3 Cir. 12/28/01), 806 So.2d 137. After reviewing the record, there are no errors patent.
DOUBLE JEOPARDY
By this assignment of error, Defendant argues that his plea to vehicular negligent injuring violated double jeopardy since he also pled guilty to first degree 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 that 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 vehicular negligent injuring is a fine of not more than $1000 or imprisonment for not more than six months, or both. La.R.S. 14:39.1(C). Thus, Defendant received the maximum fine and sentence for this offense. 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. 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.
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, Sterling received a laceration to the forehead, the chin, and upper gum. He also injured his knee on the dashboard and suffers from back pain.
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.
One case involving vehicular negligent injuring was found in recent jurisprudence. In State v. Cedars, 02-861(La.App. 3 Cir. 12/11/02), 832 So.2d 1191, the defendant pled guilty to the charges of vehicular negligent injuring, as well as vehicular homicide. For vehicular negligent injuring, he was sentenced to six months in the parish detention center to run concurrently to a fifteen-year sentence for vehicular homicide. The facts of the case indicate that the defendant's vehicle collided with another vehicle, killing one person and injuring another. His blood alcohol level was .18. Although the defendant did not challenge his sentence for vehicular negligent injuring on appeal, the sentence was affirmed. The court observed that the defendant addressed the trial court and expressed his remorse. The mitigating factors considered by the trial court included the defendant's youth, the lack of premeditation for the offense, his admission of guilt, the lack of intent, his good work and family history, his status as a student, the lack of a history of violence, his good family support and his willingness to make restitution. The defendant was also willing to treat his alcohol problem.
The defendant's sentence for vehicular homicide was vacated as indeterminate, and the case was remanded for resentencing for this conviction.
Considering the trial court's reasons for sentencing, including the past criminal history of Defendant, the injury sustained by the victim, and the jurisprudence cited herein, we find that Defendant is one of the worst kind of offenders and that his sentence and fine do 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.
AFFIRMED.
This opinion is NOT DESIGNATED FOR PUBLICATION. Uniform Rules — Courts of Appeal, Rule 2-16.3.