State v. Bennett

241 So. 3d 405
CourtLouisiana Court of Appeal
DecidedMarch 7, 2018
Docket17–889
StatusPublished

This text of 241 So. 3d 405 (State v. Bennett) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Bennett, 241 So. 3d 405 (La. Ct. App. 2018).

Opinion

PICKETT, Judge.

FACTS

On January 3, 2017, the defendant, William Clay Bennett, was charged by bill of information, number 90484, with one count of operating a vehicle while intoxicated (OVI), fourth offense. On the same day, he was also charged by bill of information, number 90485, with one count of failure to operate a motor vehicle in a single lane zoned for traffic, one count of possession of an open container of an alcoholic beverage in the passenger compartment of a vehicle, and one count of operation of a motor vehicle without wearing a seatbelt.

The defendant filed a Motion for Preliminary Examination in the trial court on September 30, 2016. On October 25, 2016, the state filed a Response for Preliminary Examination which included copies of documents related to the state's prosecution of the defendant for the above offenses and court minutes from relevant prior convictions.

On May 3, 2017, as part of a plea agreement, the defendant tendered a plea of guilty to operating a vehicle while intoxicated, fourth offense. In accordance with the plea agreement, the state dismissed all charges in bill of information number *40790485. The state also recommended a cap on his sentencing of not more than twenty years, with sentencing left up to the court. Additional recommendations by the state included that the defendant receive intensive substance abuse treatment while incarcerated and that he be sentenced to a facility which provided the opportunity for the defendant to obtain his college degree. The state took no position on the defendant's request that his sentence in this case be served concurrently with any other sentences. During this proceeding, the defendant's signed Plea Agreement and Waiver of Constitutional Rights and Plea of Guilty forms were entered into the record.

On July 11, 2017, the defendant was sentenced to twenty years at hard labor, without benefit of probation, parole, or suspension of sentence, plus a fine of five thousand dollars plus costs. The court ordered that the defendant not be given credit for time served since the date of arrest and that his sentence run consecutive with any and all other sentences. The court noted that it considered the Presentence Investigation (PSI) report along with La.Code Crim.P. art. 894.1. The defendant objected to the court's sentence, particularly to the court's denial of credit for time served.

The defendant filed a Motion to Reconsider Sentence on July 18, 2017, asserting that he should have been given credit for time served, and that the court did not follow the recommended plea agreement by ordering his sentence to be served consecutively to any other sentence. Further, the defendant asserted that the sentence imposed is excessive, that the sentence is not within the statutory limits and is a manifest abuse of discretion, and that the trial court failed to adequately consider applicable mitigating circumstances.

The trial court issued a Judgment on Rule, on July 31, 2017, granting the defendant credit for time served but denying the other portions of the defendant's Motion to Reconsider Sentence. On the same day, the trial court issued Written Reasons and stated its reasons for denying the other claims in the defendant's Motion to Reconsider Sentence. On August 14, 2017, the defendant filed a Motion for Appeal and Designation of Record in the trial court, which was granted on August 15, 2017.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed by this court for errors patent on the face of the record. After reviewing the record, we find no errors patent.

ASSIGNMENT OF ERROR

In the defendant's sole assignment of error, he alleges that based on the record of this case, the trial court erred by sentencing him under La.R.S. 14:98.4(C) to a consecutive, twenty-year sentence without the benefit of probation, parole, or suspension of sentence because the record only supported a sentence under La.R.S. 14:98.4(A)(1), which does not require a consecutive sentence and only requires that two years of the sentence be served without benefits.

The defendant first argues that "there were no pretrial motions heard to develop facts in this case." There is no merit to this argument by the defendant. In the state's Response for Preliminary Examination, filed on October 25, 2016, the state attached multiple documents pertaining to its prosecution of the defendant for the instant offense. Subsequently, the defendant did not file any further motions for preliminary examination or request a hearing on any such motions. Further, aside *408from the Motion and Request for Discovery and Bill of Particulars Pursuant to Local Rule, filed on January 10, 2017, which the state answered on February 21, 2017, the defendant did not file any other discovery requests. In light of these facts, we do not agree there were no pretrial motions heard to develop facts in this case.

Next, the defendant argues that because the PSI report was not offered into the record of this case, it "cannot be considered in this appeal to determine if there are sufficient facts to support the trial court's ruling." In support of his argument, the defendant cited State v. Cottingin , 476 So.2d 1184 (La.App. 3 Cir. 1985) and State v. Malbroux , 507 So.2d 319 (La.App. 3 Cir. 1987). The defendant stated that, in Cottingin , this court could not review the PSI because "the Report was not filed into the original record." The issue being discussed in Cottingin was whether the trial court complied with La.Code Crim.P. art. 894.1. This court, in Cottingin , actually said, "the pre-sentence report was not filed in the record or made a part of the record for this court to review." Cottingin , 476 So.2d at 1186. In Cottingin , the state attached a copy of the report to it brief, but this court stated it has no authority to receive or review evidence not contained in the trial court record. This court noted "Act 384 of 1985, effective September 6, 1985, has now amended La.C.Cr.P. Art. 877 to provide that a pre-sentence report shall be made a part of the record if a defendant seeks post-conviction relief on the grounds of excessive sentence." Cottingin , 476 So.2d at 1186, n.1. The date of the sentencing hearing in Cottingin is not indicated; however, the defendant pled in September of 1984. Given that the date on which the defendant pled was approximately a year prior to the effective date of Act. 384 and given the wording of this court's footnote, it appears the sentencing date in Cottingin was prior to the effective date of the amendment to Article 877.

In support of the defendant's argument that this court's review of the evidence in the instant case is restricted to the transcripts from the sentencing hearing and the trial court's written reasons for judgment, the defendant cited a portion of this court's holding in Malbroux

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Related

State v. Carrier
453 So. 2d 1216 (Louisiana Court of Appeal, 1984)
State v. Cottingin
476 So. 2d 1184 (Louisiana Court of Appeal, 1985)
State v. Malbroux
507 So. 2d 319 (Louisiana Court of Appeal, 1987)

Cite This Page — Counsel Stack

Bluebook (online)
241 So. 3d 405, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-bennett-lactapp-2018.