State of Louisiana v. Andre Bell

• Court: Louisiana Court of Appeal
• Decided: January 13, 2021
• Docket: 53,712-KA
• Status: Published

Opinion

Judgment rendered January 13, 2021. Application for rehearing may be filed within the delay allowed by Art. 922, La. C. Cr. P.

No. 53,712-KA

COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA

*****

STATE OF LOUISIANA Appellee

versus

ANDRE BELL Appellant

Appealed from the First Judicial District Court for the Parish of Caddo, Louisiana Trial Court No. 354005

Honorable Katherine Dorroh, Judge

LOUISIANA APPELLATE PROJECT Counsel for Appellant By: Mary Constance Hanes

JAMES E. STEWART, SR. Counsel for Appellee District Attorney

NANCY BERGER-SCHNEIDER JASON WALTMAN ALEXANDRA L. PORUBSKY Assistant District Attorneys

Before GARRETT, STONE, and STEPHENS, JJ. GARRETT, J.

The defendant, Andre Bell, was originally charged with simple

robbery and attempted first degree murder. The latter charge was

subsequently amended to aggravated assault with a motor vehicle upon a

peace officer. Following a jury trial, Bell was convicted as charged of that

offense and sentenced to 10 years at hard labor. However, a mistrial was

declared on the simple robbery charge due to the jury’s inability to reach a

unanimous verdict. Bell’s untimely motion to reconsider sentence was

denied. On appeal, his conviction was affirmed, but his claim of excessive

sentence was deemed moot as the sentence had already been vacated by the

trial court in connection with his adjudication as a third felony offender.

State v. Bell, 53,163 (La. App. 2 Cir. 1/15/20), 289 So. 3d 658. Bell now

appeals as excessive the sentence of 15 years at hard labor imposed upon

him as a third felony offender. We affirm.

FACTS

The underlying facts were fully discussed in this court’s previous

opinion. To briefly recap, on the evening of November 24, 2017, Bell was

at Sam’s Town Casino in Shreveport where he began talking to Cindy

Gandy, who was playing a video poker game. She had won a $1,200 jackpot

and was holding her winnings in her hand. Bell snatched some of the money

from her hand and ran away. Ms. Gandy alerted a security guard.

Bell ran from the casino, through a skywalk, to a parking garage. He

got in a car with another man and attempted to flee. Two police officers,

who were working as contract employees for the casino, tried to stop the car

driven by Bell. As the vehicle came down the exit ramp, one officer

repeatedly yelled, “Stop, police!” Because the vehicle sped up and swerved toward the officer, he and the other officer discharged their firearms at the

car. Fortunately, neither officer was injured. Bell drove the car from the

garage and was involved in a three-vehicle accident about two blocks from

the casino. When he was removed from the car, it was determined that he

had been hit by one of the bullets fired by the officers.

Bell was originally charged with simple robbery, a violation of La.

R.S. 14:65, and attempted first degree murder, a violation of La. R.S. 14:27

and 14:30. A subsequent bill of information amended the attempted first

degree murder charge to aggravated assault with a motor vehicle upon a

peace officer, a violation of La. R.S. 14:37.6. Following a jury trial in

December 2018, Bell was convicted of that charge by a unanimous jury.

Because the jury was deadlocked on the simple robbery charge, a mistrial

was declared on that charge. The defendant’s motion for post-verdict

judgment of acquittal was denied. The trial court sentenced Bell to 10 years

at hard labor, the maximum sentence for aggravated assault with a motor

vehicle upon a peace officer. Although the defendant’s motion to reconsider

sentence was untimely, the trial court denied it on the merits, finding that the

facts of the case warranted the imposition of the maximum sentence.

In January 2019, the state filed a habitual offender bill in which it

alleged that Bell was a third felony offender. The listed predicate offenses

were: (1) a 2015 guilty plea to simple burglary, for which he was sentenced

to three years at hard labor; (2) a 2016 guilty plea to monetary instrument

abuse, for which he was sentenced to three years at hard labor, suspended,

2 and three years of supervised probation; and (3) the instant offense,

aggravated assault with a motor vehicle upon a peace officer. 1

A habitual offender hearing was held on September 18, 2019. The

state presented the testimony of an expert in fingerprint identification, who

matched Bell’s fingerprints to those on the bills of information for the

predicate offenses. The trial court found that the state had carried its burden

of proof and proved that Bell was a third felony offender. At a sentencing

hearing on September 20, 2019, the trial court vacated Bell’s original

sentence of 10 years at hard labor and resentenced him to 15 years at hard

labor as a third felony offender. The trial court filed written reasons

pursuant to La. R.S. 15:529.1(D)(3).

Subsequently, Bell filed a timely motion to reconsider in which he

asserted numerous objections to his sentence. First, he contended that the

aggravating factors cited by the trial court were improper and inadequate to

support the severity of the sentence. Additionally, he asserted that the trial

court failed to consider all mitigating circumstances, including the

following: (1) his criminal conduct neither caused nor threatened serious

harm; (2) he did not contemplate that his criminal conduct would cause or

threaten serious harm; (3) he acted under strong provocation; (4) there were

substantial grounds tending to excuse or justify his criminal conduct though

failing to establish a defense; (5) the victim induced or facilitated

commission of the crime; (6) the defendant has compensated or will

1 In the habitual offender bill, the state applied a 10-year cleansing period to the defendant’s predicate offenses, as did the trial court at the habitual offender hearing. However, our review of the record indicates that a five-year cleansing period was applicable in the instant case. See La. R.S. 15:529.1(C); State v. Lyles, 2019-00203 (La. 10/22/19), 286 So. 3d 407. Nonetheless, since the defendant’s predicate offenses occurred within five years of the instant offense, any error in this respect was harmless.

3 compensate the victim; (7) the defendant led a law-abiding life for a

substantial period of time before commission of instant crime; (8) his

criminal conduct was the result of circumstances unlikely to recur; (9) he

was particularly likely to respond affirmatively to probationary treatment;

and (10) imprisonment would entail excessive hardship to himself or his

dependents.2

The trial court denied the motion to reconsider in a written ruling. It

stated that the sentence was neither excessive nor unconstitutional. It

referred to its original sentencing hearing, at which it stated on the record the

aggravating and mitigating circumstances. It further observed that the

sentence imposed was not the maximum allowed by statute.

Bell appeals, arguing that his 15-year sentence as a third-felony

offender is excessive.

LAW

The penalty for the crime of aggravated assault with a motor vehicle

upon a peace officer is a fine of not more than $5,000, imprisonment with or

without hard labor for not less than one year nor more than 10 years, or both.

La. R.S.14:37.6(C). The enhanced sentencing exposure for this crime for a

person adjudicated a third-felony offender would be “imprisonment for a

determinate term not less than one-half of the longest possible sentence for

the conviction and not more than twice the longest possible sentence

2 Essentially, the defendant listed all of the mitigating factors set forth in La. C. Cr. P. art. 894.1(B)(22) to (31); however, he omitted the portion of (B)(28) that states “[t]he defendant has no history of prior delinquency or criminal activity.” We find the defendant’s reference to several of these factors (his criminal conduct did not cause or threaten serious harm, he did not contemplate his criminal conduct would cause or threaten serious harm, he acted under provocation, and the victim induced or facilitated the commission of the offense) extremely curious, given the fact that he attempted to run down a police officer while fleeing casino security.

4 prescribed for a first conviction.” La. R.S. 15:529.1(A)(3)(a).

Consequently, the defendant in the instant case faced a maximum sentence

of 20 years at hard labor.

In reviewing a sentence for excessiveness, an appellate court uses a

two-step process. First, the record must show that the trial court took

cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The

articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art.

894.1, not rigid or mechanical compliance with its provisions. State v. Kelly,

52,731 (La. App. 2 Cir. 6/26/19), 277 So. 3d 855, writ denied, 2019-01845

(La. 6/3/20), 296 So. 3d 1071. The trial court is not required to list every

aggravating or mitigating circumstance so long as the record reflects that it

adequately considered the guidelines of the article. State v. Smith, 433 So.

2d 688 (La. 1983); State v. Kelly, supra. The important elements which

should be considered are the defendant’s personal history (age, family ties,

marital status, health, employment record), prior criminal record, seriousness

of the offense, and the likelihood of rehabilitation. State v. Jones, 398 So.

2d 1049 (La. 1981); State v. Thompson, 50,392 (La. App. 2 Cir. 2/24/16),

189 So. 3d 1139, writ denied, 2016-0535 (La. 3/31/17), 217 So. 3d 358.

There is no requirement that specific matters be given any particular weight

at sentencing. State v. Thompson, supra.

Second, the court must determine whether the sentence is

constitutionally excessive. A sentence violates La. Const. art. I, § 20, if it is

grossly out of proportion to the severity of the crime or nothing more than a

purposeless and needless infliction of pain and suffering. State v. Dorthey,

623 So. 2d 1276 (La. 1993); State v. Kelly, supra. A sentence is considered

grossly disproportionate if, when the crime and punishment are viewed in

5 light of the harm done to society, it shocks the sense of justice. State v.

Weaver, 2001-0467 (La. 1/15/02), 805 So. 2d 166; State v. Kelly, supra.

The trial court has wide discretion in the imposition of sentences

within the statutory limits and such sentences should not be set aside as

excessive in the absence of a manifest abuse of that discretion. State v.

Williams, 2003-3514 (La. 12/13/04), 893 So. 2d 7; State v. Kelly, supra. A

trial judge is in the best position to consider the aggravating and mitigating

circumstances of a particular case, and, therefore, is given broad discretion

in sentencing. State v. Allen, 49,642 (La. App. 2 Cir. 2/26/15), 162 So. 3d

519, writ denied, 2015-0608 (La. 1/25/16), 184 So. 3d 1289. On review, an

appellate court does not determine whether another sentence may have been

more appropriate, but whether the trial court abused its discretion. State v.

Kelly, supra.

DISCUSSION

Bell argues that the 15-year sentence imposed upon him by the trial

court is excessive because it fails to take into consideration his claim that he

was “intoxicated to a certain extent at the time of the offense.” He further

contends that the trial court inappropriately treated as aggravating

circumstances certain matters which were elements of the crime and thus

had already been taken into consideration in determining whether the crime

occurred.

While the trial court failed to articulate any additional reasons for

sentencing when the defendant was sentenced as a habitual offender, it gave

extensive reasons at Bell’s original sentencing hearing. A trial court may

take judicial notice during habitual offender proceedings of any prior

proceeding which was a part of the same case it had previously tried. See

6 State v. McGill, 52,169 (La. App. 2 Cir. 8/15/18), 253 So. 3d 872, writ

denied, 2018-1552 (La. 3/25/19), 267 So. 3d 594; State v. Roland, 49,660

(La. App. 2 Cir. 2/27/15), 162 So. 3d 558, writ denied, 2015-0596 (La.

2/19/16), 186 So. 3d 1174.

During Bell’s original sentencing hearing, the trial court found that all

three provisions of La. C. Cr. P. art. 894.1(A) applied to the defendant.

They provide: (1) there is an undue risk that during the period of a

suspended sentence or probation the defendant will commit another crime;

(2) the defendant is in need of correctional treatment or a custodial

environment that can be provided most effectively by his commitment to an

institution; and (3) a lesser sentence will deprecate the seriousness of the

defendant’s crime. As to aggravating factors, the trial court found the

following were applicable: La. C. Cr. P. art. 894.1(B)(1), the offender’s

conduct during the commission of the offense manifested deliberate cruelty

to the victim – trying to run over or hit someone with a car is deliberate

cruelty; (B)(5), the offender knowingly created a risk of death or great

bodily harm to more than one person – two officers in the casino parking

garage and other motorists on the roadway were placed in jeopardy when

Bell exited the garage driving very recklessly at a high rate of speed and

subsequently crashed into two vehicles; (B)(6) the offender used threats of

or actual violence in the commission of the offense – trying to hit someone

with a vehicle at a high rate of speed constituted violence and traveling at a

high rate of speed after leaving the garage was “very concerning”; and

(B)(21) any other relevant aggravating circumstances – Bell’s prior criminal

history, in addition to the facts of the case. The trial court then stated that it

had reviewed the mitigating circumstances set forth in (B)(22) to (B)(33)

7 and found none of them to be applicable to this defendant. The trial court

noted the totality of the circumstances and the “total disregard for human

life” demonstrated by Bell on the night of the offense as grounds for

imposing the maximum sentence. It described his actions as “outrageously

dangerous” and observed that he threatened “many people” with the risk of

great bodily harm or death. The trial court again referenced Bell’s extensive

criminal history and the fact that, when he was placed on probation or

parole, it was revoked.

Bell asserted that the trial court improperly considered elements of the

offense as aggravating circumstances in imposing sentence. Specifically, he

points to the trial court finding that trying to hit an officer with a motor

vehicle manifested “deliberate cruelty to the victim” and constituted a threat

of actual violence. However, we find no merit to this argument. See State v.

Tyler, 50,224 (La. App. 2 Cir. 11/18/15), 182 So. 3d 1029; State v. Jones,

34,863 (La. App. 2 Cir. 8/22/01), 794 So. 2d 107, writ denied, 2001-2648

(La. 8/30/02), 823 So. 2d 938; State v. Whitney, 33,800 (La. App. 2 Cir.

11/15/00), 772 So. 2d 945.

Bell claims that the trial court erred in not considering his assertion of

intoxication as a mitigating factor under La. C. Cr. P. art. 894.1(B)(25),

which allows consideration of “substantial grounds tending to excuse or

justify the defendant’s criminal conduct, though failing to establish a

defense” or (B)(33), “[a]ny other relevant mitigating circumstance.”

However, the only evidence of the defendant’s alleged intoxication was his

self-serving claim while being interviewed by the police several days after

the offense. In contradiction, Ms. Gandy testified at trial that she never

smelled alcohol on Bell when he was standing close to her in the casino or

8 observed him to slur his words. Consequently, we find no error in the trial

court’s failure to consider Bell’s alleged intoxication as a mitigating

circumstance which affected his judgment.

Bell, who was facing a maximum sentence of 20 years at hard labor,

received a midrange sentence of 15 years. While fleeing from casino

security, Bell was confronted by two police officers in the casino parking

garage. Instead of surrendering, he elected to continue his attempt to evade

capture. During his flight, he “revved” the engine of his getaway car and

“gunned” the vehicle toward one of the officers. Despite the officers

opening fire in an attempt to stop the car, Bell recklessly drove out of the

casino parking garage and went careening down the street, endangering the

lives of anyone in his path. Ultimately, he collided with two other vehicles,

damaging them and endangering their occupants. Only then was he

apprehended. Given the totality of the facts surrounding the instant offense,

we are unable to say that the 15-year sentence imposed upon Bell as a third

felony offender was excessive or that it shocks our sense of justice. We find

that the trial court tailored the sentence imposed to the particular defendant

based upon his actions.

We find no merit to the defendant’s assignment of error.

CONCLUSION

Based on the foregoing, we affirm the defendant’s adjudication as a

third felony offender and the resulting sentence.

AFFIRMED.