Opinion
No. 10-390.
November 3, 2010. NOT DESIGNATED FOR PUBLICATION
APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF CALCASIEU, NO. 6660-07 HONORABLE DAVID ALEXANDER RITCHIE, DISTRICT JUDGE.
John Foster DeRosier, 14th JDC District Attorney, Carla S. Sigler, Assistant District Attorney, Lake Charles, LA, Counsel for Appellee: State of Louisiana.
G. Paul Marx, Louisiana Appellate Project, Lafayette, LA, Counsel for Defendant/Appellant: Robert W. Pegues.
Court composed of JOHN D. SAUNDERS, JIMMIE C. PETERS, and JAMES T. GENOVESE, Judges.
On March 16, 2007, Defendant, Robert W. Pegues, was originally charged by bill of information with possession of a weapon by a convicted felon. The charge was amended on September 14, 2009, to accessory after the fact to manslaughter, a violation of La.R.S. 14:25, and Defendant then entered a plea of guilty to the charge under North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160 (1970). Defendant was sentenced on January 13, 2010, to serve five years at hard labor with credit for time served. A motion to reconsider sentence was not filed.
Defendant is now before this court on appeal, asserting that his sentence is excessive. We affirm Defendant's sentence.
FACTS :
At the time of Defendant's guilty plea, the State established that Defendant had reasonable grounds to believe that his nephew, Daniel Pegues, had committed a felony and that Defendant transported Daniel to a bus station in Lafayette, Louisiana, rather than Lake Charles, Louisiana, where Daniel and Defendant resided, with the intent of helping Daniel avoid arrest.
ASSIGNMENT OF ERROR :
In his sole assignment of error, Defendant argues that the trial court imposed an excessive sentence in light of the State's reliance on a theory of criminal negligence. Defendant also complains that the trial court based its sentence upon facts not present in the record, but which were presented at the trial of Daniel Pegues, Defendant's nephew. As such, Defendant asserts that the record does not contain any of the sentencing considerations required under La. Code Crim.P. art. 894.1.
Defendant did not file a motion to reconsider sentence, and therefore his excessive sentence claim is barred by La. Code Crim.P. art. 881.1. However, in the interest of justice, this court will review such an assignment as a bare claim of excessiveness. State v. Hargrave, 05-1027 (La.App. 3 Cir. 3/1/06), 926 So.2d 41, writ denied, 06-1233 (La. 11/22/06), 942 So.2d 552.
In State v. Whatley, 03-1275, pp. 5-6 (La.App. 3 Cir. 3/3/04), 687 So.2d 955, 958, this court stated:
The Eighth Amendment to the United States Constitution and La.Const. art. I, § 20 prohibit the imposition of cruel or excessive punishment. "'[T]he excessiveness of a sentence becomes a question of law reviewable under the appellate jurisdiction of this court.'" State v. Dorthey, 623 So.2d 1276, 1280 (La. 1993) (quoting State v. Sepulvado, 367 So.2d 762, 764 (La. 1979)). Still, the trial court is given wide discretion in imposing a sentence, and, absent a manifest abuse of that discretion, we will not deem as excessive a sentence imposed within statutory limits. State v. Pyke, 95-919 (La.App. 3 Cir. 3/6/96), 670 So.2d 713. However, "[m]aximum sentences are reserved for the most serious violations and the worst offenders." State v. Farhood, 02-490, p. 11 (La.App. 5 Cir. 3/25/03), 844 So.2d 217, 225. The only relevant question for us to consider on review is not whether another sentence would be more appropriate, but whether the trial court abused its broad discretion in sentencing a defendant. 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 decide whether a sentence shocks the sense of justice or makes no meaningful contribution to acceptable penal goals, this court has held:
[An] 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 accessory after the fact is a fine of not more than $500, or a sentence of not more than five years, with or without hard labor, or both. La.R.S. 14:25. Although Defendant received the maximum possible sentence for his conviction, he received a significant benefit from his plea agreement. Prior to his plea agreement, Defendant was charged with being a felon in possession of a firearm and faced a sentence of ten to fifteen years, without the benefit of probation, parole, or suspension of sentence, and a fine of $1,000.00 to $5,000.00. La.R.S. 14:95.1.
At sentencing, counsel for Defendant maintained that Defendant did not know that Daniel Pegues had killed someone until he returned home after giving Daniel a ride from Lake Charles to a bus station in Lafayette, Louisiana. Defense counsel maintained that Defendant had already purchased a ticket to Kentucky for the purpose of meeting up with his pregnant girlfriend. According to Defendant, he took Daniel, in good faith, to Lafayette because he was told that a bus was leaving for Kentucky at an earlier time. Additionally, defense counsel asserted that although Defendant had a prior criminal record and was not eligible for probation, a one-year sentence in the parish jail was appropriate as Defendant was possibly the person who informed authorities where to find Daniel.
The State asserted Defendant had a reasonable basis to believe that a felony had occurred. The State also stressed that he benefitted from his plea agreement, which significantly reduced his sentencing exposure.
Next, the trial court noted that Defendant acknowledged that Daniel had a firearm (AK47) in Defendant's home. The trial court opined that if Defendant was not strong enough to tell his relative to get out of his house with the weapon, then he would have to pay the consequences for same. The trial court added:
If I had a relative come [sic] to me in the middle of the night and say hey, I need you to take me to the bus station, I'd say well, you're going to have to wait until the morning when I wake up and then I'll take you there. This wasn't planned. Mr. Robert Pegues knew there was no plan for him to be there. That bus ticket was not for the morning that he — you know, the bus was not scheduled — the bus ticket was not purchased for the time and the date that Daniel Pegues actually went to Kentucky. As I recall it was like a couple of days off or whatever the case may be, whatever the record shows on that, but it was a different time[,] and it had to be traded in for a different ticket and rather than going out of Lake Charles where it was originally purchased for to go [sic] out of he went to Lafayette.
So Mr. Robert Pegues knew Daniel Pegues did not want to be in Lake Charles any longer than he absolutely had to and knew there was some — something was going on and in fact even I believe at 2:00 that morning somebody came knocking on the door wanting — that was — I think maybe before Daniel even got there[,] I believe[,] according to Mr. Robert Pegues statement and indicated that there was something going on.
But in any event the bottom line is Robert Pegues willingly and voluntarily after seeing that AK47 in his home, knowing Daniel left it there, got up and took him — bypassed the Lake Charles bus station, took him to a Lafayette bus station, so he could hurry up and get him out of town, so Daniel could hurry up and get out of town, you know, knowing there was something had gone wrong somewhere, Mr. Pegues, Mr. Robert Pegues, voluntarily put himself in that situation of assisting Daniel Pegues in his attempt to avoid capture in a crime.
And so, you know, just the whole scenario. I mean, you know, Mr. Robert Pegues I guess wants to sound like a victim here[,] and it may be that his — I guess that Daniel Pegues did put him in a bad position, but he went along with it, you know, and when you go along with something that doesn't seem right, that doesn't sound right, and you assist somebody in that way to possibly to have [sic] helped him escape from being captured on a murder charge, even if he didn't know he had committed a murder at that time, he can't come in here with clean hands and say oh, well, I'm just an innocent guy. My nephew asked me for a ride[,] and I just gave him a ride. I mean it didn't happen like that. It's clear it didn't happen like that[,] and Robert Pegues made those decisions[,] and that's what got him where he is today.
And I do say, I just want to emphasize that this was a reduction from — I mean you could a gotten [sic] a minimum of ten years in prison without parole, probation, or suspension of sentence. You wouldn't have even gotten good time on a — you know, on that charge. So you would have gotten ten years in prison as a minimum if they would have prosecuted you on that charge, but they decided because you did testify presumably they decided to just show some mercy on you[,] and they reduced that charge so you would only have half of that time to be exposed to, plus you would get regular good time.
So I mean I think you're only going to do probably half your time on this charge. In the grand scheme of things, you know, that's not a bad deal for you[,] all things considered, Mr. Pegues.
The trial court then stated that it considered all the aggravating and mitigating factors set forth in La. Code Crim.P. art. 894.1 and reviewed Defendant's presentence investigation report. The trial court observed that the instant offense was Defendant's third felony conviction, as he had been convicted for indecent behavior and for failure to register as a sex offender. Considering Defendant's criminal history, the facts of the case, and the consideration given to Defendant by the reduction of the original charge, the trial court sentenced Defendant to five years at hard labor, with credit for time served.
After sentencing, defense counsel stated that the trial court made mention of several things that were not in evidence in the instant case. He then asked the trial court if those matters were part of Defendant's testimony in Daniel Pegues' trial, and the trial court confirmed same. Counsel for Defendant then objected to the sentence and moved for an appeal. In addition to requesting a transcript of the guilty plea hearing and sentencing hearing, defense counsel indicated that he would request a copy of Defendant's testimony taken in Daniel Pegues' trail. The trial court subsequently confirmed that the factual scenario of which Defendant was aware and what happened came out in Daniel Pegues' trial.
In comparing the sentences imposed for similar crimes, we first examine State v. Wallace, 44,880 (La.App. 2 Cir. 1/27/10), 31 So.3d 557, in which the defendant drove two individuals to a bank where they subsequently entered the bank brandishing pellet pistols, ordered employees to the floor at gun point, and robbed the bank. The defendant then drove the robbers away from the scene and was later stopped by police and charged with two counts of accessory after the fact to armed robbery. Following his jury conviction, the defendant was sentenced to five years at hard labor on each count, to run consecutively. Although the defendant was a first felony offender and was twenty-three years old at the time of sentencing, the trial court found the fact that the offense resulted in significant emotional injury to the victims to be an aggravating circumstance. The sentences were affirmed on appeal.
In State v. Brewer, 490 So.2d 695 (La.App. 2 Cir. 1986), the defendant, initially charged as a principal in the armed robbery and with conspiracy to commit armed robbery, pled guilty to accessory to felony theft and to two counts of accessory to armed robbery and was sentenced to concurrent sentences of five years at hard labor. Shortly before the armed robberies occurred, the defendant and her husband stole a car from a dealership. Later, the defendant's husband and two others, armed with guns, robbed a bank and fled the scene in the stolen car. The men then met up with the defendant waiting nearby in another vehicle, and the husband's two accomplices hid in the trunk of the defendant's vehicle while defendant and her husband drove home, where they divided the stolen money. The husband's accomplices implicated the defendant in the planning of the robbery, in the initial flight from the scene, and in division of the money. The sentences were affirmed on appeal.
Unlike these cases, there is no evidence in the record of the instant case to indicate that Defendant participated in the underlying offense of manslaughter. The trial court, however, obviously was not impressed with Defendant's denial of any knowledge that Daniel Pegues had committed a crime and/or that he was helping Daniel to flee the area and avoid apprehension. Additionally, the trial court noted that Defendant's sentencing exposure was considerably reduced as a result of his plea bargain. As noted in State v. Pugh, 40,287, p. 2 (La.App. 2 Cir. 11/2/05), 914 So.2d 1183, 1185, and followed by this court in State v. Edwards, 07-1058 (La.App. 3 Cir. 3/12/08), 979 So.2d 623, writ denied, 08-2693 (La. 9/18/09), 17 So.3d 391, "[w]here a defendant has pled guilty to an offense which does not adequately describe his conduct or has received a significant reduction in potential exposure to confinement through a plea bargain, the trial court has great discretion in imposing even the maximum sentence possible for the pled offense."
Considering these facts, in addition to Defendant's status as a third felony offender, we find that the trial court did not err when it imposed the maximum sentence on Defendant pursuant to his guilty plea on the lesser offense of accessory after the fact to manslaughter. Accordingly, this assignment of error is without merit.
DISPOSITION :
Defendant's sentence is affirmed.
AFFIRMED.
This opinion is NOT DESIGNATED FOR PUBLICATION. Uniform Rules-Courts of Appeal, Rule 2-16.3.