Opinion
NO. 2012 KA 1035
02-15-2013
Ricky L. Babin District Attorney Donald D. Candell Assistant District Attorney Gonzales, Louisiana Counsel for Plaintiff/Appellee State of Louisiana Mary E. Roper Baton Rouge, Louisiana Counsel for Defendant/Appellant John T. Hollingsworth
NOT DESIGNATED FOR PUBLICATION
Appealed from the
23rd Judicial District Court
In and for the Parish of Ascension
State of Louisiana
Case No. 17910
The Honorable Thomas Kliebert, Jr., Judge Presiding
Ricky L. Babin
District Attorney
Donald D. Candell
Assistant District Attorney
Gonzales, Louisiana
Counsel for Plaintiff/Appellee
State of Louisiana
Mary E. Roper
Baton Rouge, Louisiana
Counsel for Defendant/Appellant
John T. Hollingsworth
BEFORE: GUIDRY, CRAIN, AND THERIOT, JJ.
THERIOT , J.
The defendant, John T. Hollingsworth, was charged by bill of information with driving while intoxicated (DWI), fourth offense, in violation of La. R.S. 14:98. On July 12, 2005, the defendant withdrew his initial plea of not guilty and entered a plea of guilty as charged. On January 25, 2012, the trial court sentenced the defendant to twenty-five years imprisonment at hard labor. The defendant now appeals, challenging the constitutionality of the sentence. For the following reasons, we affirm the conviction and sentence.
According to the record, the defendant failed to appear for his scheduled sentencing date in 2006. At the time of the imposition of sentence the trial court did not state that the sentence would be served without the benefit of probation, parole, or suspension of sentence. However, the minute entry, commitment order, and the trial court's written reasons for sentencing note that the sentence is to be served without said benefits. Nonetheless, the sentencing restrictions are automatic pursuant to La. R.S. 15:301.1. See also La. R.S. 14:98(E)(4)(b).
STATEMENT OF FACTS
The defendant pled guilty as charged herein; thus, the facts were not fully developed. In accordance with the bill of information and the factual basis presented at the Boykin hearing, on September 11, 2004, the defendant operated a motor vehicle while under the influence of alcohol. The defendant previously pled guilty to two counts of DWI on July 31, 1995, in East Baton Rouge Parish (under docket numbers 11-94-1911 and 4-951078), and further pled guilty to DWI on February 19, 2002, in Ascension Parish (under docket number 13430).
Pursuant to Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).
ASSIGNMENT OF ERROR
In the sole assignment of error, the defendant argues that the sentence imposed by the trial court is excessive. The defendant contends that he has a severe problem with alcohol and notes that the trial court informed him that he would be afforded treatment if he never received it before. The defendant further contends that the record is unclear as to whether he was previously ordered to undergo substance abuse treatment. Moreover, the defendant notes that the imposed sentence more than doubles the mandatory minimum. The defendant contends that the trial court failed to take into consideration his alcoholism and the impact it has on his ability to make rational decisions. He points out that under La. R.S. 14:98(G), conviction of a third or subsequent DWI conviction is presumptive evidence of the existence of a substance abuse disorder in the offender. The defendant argues that the trial court abused its discretion in imposing a severe punishment upon a person who appears to be suffering from an addictive disorder without giving him an opportunity to address his disorder. Finally, the defendant argues that the trial court did not elucidate aggravating factors that would warrant the imposition of such a severe sentence in this case.
The Eighth Amendment to the United States Constitution and Article I, Section 20, of the Louisiana Constitution prohibit the imposition of excessive or cruel punishment. Although a sentence falls within statutory limits, it may be excessive. State v. Sepulvado, 367 So.2d 762, 767 (La. 1979). A sentence is considered constitutionally excessive if it is grossly disproportionate to the seriousness of the offense or is nothing more than a purposeless and needless infliction of pain and suffering. A sentence is considered grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks one's sense of justice. State v. Andrews, 94-0842 (La. App. 1st Cir. 5/5/95), 655 So.2d 448, 454.
The trial court has great discretion in imposing a sentence within the statutory limits, and such a sentence will not be set aside as excessive in the absence of a manifest abuse of discretion. State v. Holts, 525 So.2d 1241, 1245 (La. App. 1st Cir. 1988). Louisiana Code of Criminal Procedure article 894.1 sets forth the factors for the trial court to consider when imposing sentence. While the entire checklist of La. Code Crim. P. art. 894.1 need not be recited, the record must reflect the trial court adequately considered the criteria. State v. Brown, 2002-2231 (La. App. 1st Cir. 5/9/03), 849 So.2d 566, 569.
Except as provided in La. R.S. 14:98(E)(4)(b), on a fourth-offense DWI committed at the time of this offense, the trial court would be required to suspend the remainder of the sentence beyond the sixty-day period that shall be imposed without benefit of probation, parole, or suspension of sentence. See La. R.S. 14:98(E)(l)(a). Under La. R.S. 14:98(E)(4)(b), in pertinent part, if the offender has previously received the benefit of suspension of sentence, probation, or parole as a fourth offender, no part of the sentence may be imposed with benefit of suspension of sentence, probation, or parole. Although his parole was later revoked, the record herein, including a presentence investigation report (PSI), establishes the defendant received the benefit of parole for his prior fourth-offense DWI conviction. Therefore, the defendant was ineligible for probation, parole, or a suspended sentence for the instant offense and the applicable sentencing range mandated by La. R.S. 14:98(E)(l)(a) is a minimum of ten years and a maximum of thirty years.
This assessment is in accordance with the version of the applicable provisions of La. R.S. 14:98 in effect at the time of the offense, September 11, 2004.
Prior to imposing the sentence of twenty-five years imprisonment at hard labor herein, the trial court noted that the defendant was set for sentencing in 2005, but absconded and ultimately served time on another offense. The trial court noted that the defendant was a sixty-two year old male and further noted its consideration of the social history included in the PSI. The trial court specifically considered the defendant's prior felony conviction for simple burglary of an inhabited dwelling in addition to his DWI offenses. In its written reasons for sentence, the trial court further noted that the defendant's extensive criminal record in the PSI began in 1968 and includes numerous misdemeanor arrests and convictions for substance abuse, crimes against persons, and crimes against property. The trial court concluded that there is an undue risk that the defendant would commit another crime, that the defendant is in need of correctional treatment or a custodial environment, which can be provided most effectively by his commitment to an institution, and that any lesser sentence than the one imposed would deprecate the seriousness of the offense. The trial court also noted that the defendant was on parole on his previous fourth-offense DWI conviction at the time of his arrest for the instant offense.
We find that the trial court adequately considered the factors set forth in Article 894.1. Considering the defendant's criminal record, it is apparent that he has failed to become a productive, law-abiding citizen. While we observe the defendant's contention that alcoholism is a disease that has an impact on his ability to think and act rationally, driving while intoxicated is a criminal offense. We find that the legislature has already taken these factors into account when it set the sentencing range for a fourth-offense DWI offender who has received the benefit of probation, parole, or suspension of sentence for a previous fourth-offense DWI conviction. Under the various sentencing provisions in La. R.S. 14:98, the legislature, in its wisdom, struck a balance between the benefits society receives when a DWI offender participates in court-ordered substance abuse treatment and the serious threat a serial DWI offender, who continues to drive while intoxicated, poses to the health and safety of the public. Under the facts in the instant case, that balance is provided in La. R.S. 14:98(E)(4)(b). The defendant was on parole for fourth-offense DWT when the current offense occurred and had been given several chances to address and treat his alcoholism. There is no indication the trial court abused its vast discretion when it sentenced the defendant to twenty-five years imprisonment at hard labor for operating a vehicle while intoxicated, fourth offense. Accordingly, the imposed sentence is not grossly disproportionate to the severity of the offense and, therefore, is not unconstitutionally excessive. We find no merit in the assignment of error.
SENTENCING ERROR
In conducting our review of the record as required by La. Code Crim. P. art. 920(2), we note the existence of a sentencing error. The penalty provision for driving while intoxicated fourth or subsequent offense includes a mandatory fine of five thousand dollars. La. R.S. 14:98(E)(l)(a). The record reflects the trial court failed to impose a fine. Under the general provisions of La. Code Crim. P. art. 882(A), an illegal sentence "may" be corrected at any time by an appellate court on review. Because the trial court's failure to impose the fine was not raised by the State in either the trial court or on appeal, and the defendant is not prejudiced by the trial court's failure to impose the mandatory fine, we decline to amend the sentence imposed by the trial court. See State v. Price, 2005-2514 (La. App. 1st Cir. 12/28/06), 952 So.2d 112, 123-25 (en banc), writ denied, 2007-0130 (La. 2/22/08), 976 So.2d 1277.
CONVICTION AND SENTENCE AFFIRMED. STATE OF LOUISIANA
VERSUS
JOHN T. HOLLINGSWORTH
2012 KA 1035
CRAIN, J., dissenting in part.
I agree with that portion of the majority decision that affirms the defendant's conviction. However, for the following reasons, in addition to those expressed by Judge Welch in State v. Price, 05-2514 (La. App. 1 Cir. 12/28/06), 952 So. 2d 112, writ denied, 07-0130 (La. 2/22/08), 976 So. 2d 1277, and State v. Thoman, 07-0019 (La. App. 1 Cir. 9/14/07)(unpublished), writ denied, 07-2384 (La. 9/19/08), 992 So. 2d 957, I respectfully dissent from that portion of the majority opinion that declines to correct the noted sentencing error.
In State v. Williams, 00-1725 (La. 11/28/01), 800 So. 2d 790, 794, the Lousiana Supreme Court considered the issue of "the authority of a reviewing court to amend or order amended an 'illegally lenient' sentence when the State did not object below or complain on appeal of the leniency." Under review was this court's decision to affirm the defendant's conviction for third-offense DWI, but vacate the sentence imposed by the trial court due to patent sentencing errors found by this court. Williams, 800 So. 2d at 793-94. The supreme court analyzed recently enacted Louisiana Revised Statutes 15:301.1 A, which provides, in part, that when a criminal statute requires that a sentence be imposed without benefit of parole, probation or suspension of sentence, that requirement is made a part of the sentence automatically, regardless of whether the trial court imposes it or the appellate court ignores its absence. The supreme court interpreted Section 301.1 A to be self-activating relative to the mandatory "without benefits" portion of the sentence. Williams, 800 So. 2d at 799. Regarding the other sentencing errors, the supreme court affirmed this court's decision to remand the case for resentencing in compliance with Louisiana Revised Statutes 14:98D(1), including imposition of the mandated fine of $2000.00. Williams, 800 So. 2d at 802.
Williams represents a turning point in the jurisprudential history of appellate review of illegally lenient sentences noticed by appellate courts. Prior to Williams, the supreme court had reversed this court's en banc decision to correct an illegally lenient sentence in State v. Fraser, 484 So. 2d 122 (La. 1986). The trial court had failed to impose the defendant's sentence "without benefit of parole, probation or suspension of sentence" as required by statute. After recognizing both the authority of the appellate court to consider an illegal sentence under Louisiana Code of Criminal Procedure article 920 and its authority to correct an illegal sentence under Louisiana Code of Criminal Procedure article 882, the supreme court held that:
Fraser was decided before the enactment of Section 301.1.
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It is the prosecutors duty to protect the state's interest in obtaining adequate sentences, and the criminal justice system suffers no detriment from the application of time-honored procedural rules which require the parties, and not the appellate court, to complain of some dissatisfaction with the judgment of the lower court in order to obtain any favorable change in the judgment or appeal.Fraser, 484 So. 2d at 125 (emphasis in original). The supreme court reinstated the sentence and allowed the defendant to receive benefits in connection with his armed robbery conviction. Id.
In Williams, the supreme court, moving away from prior decisions, found it appropriate under Article 882 that this court noticed on its own the numerous sentencing errors and affirmed this court's remand for resentencing. Williams, 800 So. 2d at 802. The supreme court pointed out that, in enacting Section 301.1, the Legislature stated that it was legislatively overruling State v. Jackson, 452 So. 2d 682 (La. 1984) (cited by the supreme court in Fraser)and any other contrary case. Williams, 800 So. 2d at 797. The court also stated:
[I]t is nevertheless well established that a defendant in a criminal case does not have a constitutional or statutory right to an illegal sentence.Williams, 800 So. 2d at 797-98.
. . . .
It is well settled that "the chilling [effect on] appeals does not in and of itself offend due process." ... [D]ue process is not offended by all possibilities of increased punishment after appeal, only those which involve "actual retaliatory motivation" or "pose a realistic likelihood of 'vindictiveness'." . . . When an illegal sentence is corrected, even though the corrected sentence is more onerous, there is no violation of the defendant's constitutional rights. . . . [W]hen a court complies with a nondiscretionary sentencing requirement, i.e., a mandatory minimum term or special parole provision(s), no due process violation is implicated because neither actual retaliation nor vindictiveness exists.
Within months of the supreme court's decision in Williams, this court, sitting en banc, decided State v. Paoli, 01-1733 (La. App. 1 Cir. 4/11/02), 818 So. 2d 795, writ denied, 02-2137 (La. 2/21/03), 837 So. 2d 628. In Paoli, the defendant pled guilty to fourth-offense DWI and reserved his appellate rights relative to the trial court's denial of his motion to quash. The defendant was sentenced to serve ten years imprisonment at hard labor with two years to be served without benefit of parole, probation or suspension of sentence. However, the trial court failed to impose a fine and order the defendant to participate in a court-approved substance abuse program and a court-approved driver improvement program, as mandated by the sentencing statute. Paoli, 818 So. 2d at 796. This court, citing extensively from Williams, identified "patent sentencing errors," and following its action in Williams, vacated the trial court's sentence and remanded for resentencing. Paoli, 818 So. 2d at 799-800. This court also noted that "Williams represents a clear departure by the Louisiana Supreme Court from the prohibition against an appellate court taking steps to correct an illegally lenient sentence noted as patent sentencing error." Paoli, 818 So. 2d at 800.
In State v. Campbell, 03-3035 (La. 7/6/04), 877 So.2d 112, 116, the supreme court reaffirmed that "[W]e do not ignore patent errors favorable to the defendant when the state does not complain about them." In Campbell, the supreme court recognized a sentencing error in that the district court allowed the defendant, convicted of DWI, to keep the car he was driving at the time of the offense, in contravention of Louisiana Revised Statutes 14:98D(2)(a). Campbell, 877 So. 2d at 115-116. The supreme court remanded the matter to the trial court for a factual determination as to whether the co-owner of the vehicle the defendant was driving at the time of his DWI offense had knowledge of the defendant's intoxication, thereby exempting the vehicle from sale. Campbell, 877 So. 2d at 116.
In 2006, this court, again sitting en banc, rendered its decision in Price. The defendant therein was convicted of vehicular homicide and sentenced to imprisonment for seven years at hard labor, with one year being without benefit of parole, probation or suspension of sentence. Price, 952 So. 2d at 114. The conviction under Louisiana Revised Statutes 14:32.1B required a mandatory minimum fine of $2000.00, which was not imposed by the trial court. Price, 952 So. 2d at 124. This court performed a review for error pursuant to Louisiana Code of Criminal Procedure article 920(2) and recognized that the mandatory fine had not been imposed. However, deviating from its prior practice, it chose not to correct the error. Price, 952 So. 2d at 125.
After recognizing and quoting from Campbell, this court stated that the supreme court had not recognized "patent error" since Campbell, and found that its subsequent decisions in State v. Jackson, 04-2863 (La. 11/29/05), 916 So. 2d 1015, and State v. Jones, 05-0226 (La. 2/22/06), 922 So. 2d 508, signaled "a clear change of direction for the appellate courts" in that "[d]efects in the proceedings, even violations of the constitution, that are not inherently prejudicial to the defendant are no longer considered reversible 'patent error'." Price, 952 So. 2d at 124. Thus, this court in Price limited its review under Article 920(2) "to errors that inherently prejudice the defendant." Id. After finding the trial court's failure to impose the mandatory fine to be error under Article 920, this court determined it was not required to take any corrective action based on the general provisions of Article 882A, which states that "[a]n illegal sentence may be corrected at any time by ... an appellate court on review." La. Code Crim. Pro. Art. 882A (emphasis added); Price, 952 So. 2d at 124.
I respectfully suggest that any illegal sentence, whether below the statutory range or above it, must be corrected. The Legislature's function is to fix a sentencing range for a particular crime. The judiciary's role in sentencing is set forth in State v. Rome, 96-0991 (La. 7/1/97), 696 So. 2d 976, 978, wherein the supreme court explained:
One of the traditional, inherent and exclusive powers of the judiciary is the power to sentence. State v. LeCompte, 406 So. 2d 1300, 1311 (La. 1981) (on rehearing). After a defendant is convicted of a crime, the determination of his sentence is within the sound discretion of the trial judge. State v. Jackson, 298 So. 2d 777, 780 (La. 1974). However, the trial judge's sentencing discretion is not unbridled, as the legislative branch of government is free to decide what constitutes a crime as well as "what punishments shall be meted out by a court after the judicial ascertainment of guilt." State v. Normand, 285 So. 2d 210, 211 (La. 1973). Therefore, the fixing of penalties is purely a legislative function, but the trial judge has the discretion to determine the appropriate sentence within the sentencing range fixed by the legislature. (Emphasis added, footnotes omitted.)Thus, the judiciary's role is to select an appropriate sentence within the range fixed by the Legislature, so long as the sentence is not constitutionally excessive. If a sentence within the range created by the Legislature is proven by clear and convincing evidence to be constitutionally excessive, it is then the court's duty to impose a lesser, constitutional sentence after making a record to support the deviation from the legislatively mandated sentence range. State v. Dorthey, 623 So. 2d 1276, 1280-81 (La. 1993).
While Article 882A provides that an illegal sentence "may" be corrected by the appellate court, I interpret that to be a reference to our court's jurisdiction in such cases, not a legislative permit to allow illegally lenient sentences. Official Comment (a) to Article 882 supports this interpretation:
The first sentence, taken from Fed. Rule 35, states the almost self-evident authority of the court to correct an illegal sentence at any time, for an illegal sentence is, in the contemplation of the law, no sentence at all. (Emphasis added.)
Allowing an illegal sentence to stand uncorrected simply because neither the State nor the defendant has complained harkens back to the days of Fraser, prior to its rejection in Williams. It empowers the participants in the criminal justice system to create their own punishment for crimes and fosters illegal sentences. By recognizing that a defendant's sentence is below the minimum sentence mandated by the Legislature, then failing to either correct the sentence or remand for resentencing, the reviewing court makes the sentence legal. Thus, the court effectively usurps the authority of the Legislature by rewriting the sentence range, violating both the court's duty upon review and the constitutional principle of separation of powers. This is not sanctioned by the Legislature through Article 882, or the Louisiana Supreme Court's "patent error" decisions cited in Price.
In the instant case, the applicable statute mandates a $5000.00 fine. The record does not support a finding that the fine is constitutionally excessive. Imposition of the mandated fine involves neither retaliation, nor vindictiveness, therefore due process is not violated. There is no sentencing discretion involved that necessitates a remand. Therefore, having recognized the sentencing error, we have a duty to correct the error by imposing the legislatively mandated fine.