State v. Foster12/20/2000
Defendant was charged with driving while intoxicated ("DWI"), fourth offense, a violation of La. R.S. 14:98, and pled guilty to a reduced charge of DWI third offense. The trial court imposed a sentence of five years at hard labor, ordered defendant to pay a fine of $2000, and ordered defendant to forfeit the automobile he was driving when the offense occurred. Defendant now appeals his sentence as excessive. We affirm.
Facts
Defendant, Steven Ray Foster ("Foster"), drove while under the influence of alcohol and marijuana on June 2, 1999 in Bossier Parish, Louisiana. While traveling in an eastbound lane, Foster was observed driving entirely into the westbound lane on two occasions. Foster has three prior convictions for DWI which were entered on June 25, 1998, January 28, 1999, and April 6, 1999.
Foster pled guilty to a reduced charge of DWI, third offense, on August 30, 1999. The trial court sentenced Foster to five years at hard labor, a $2,000 fine, and forfeiture of the automobile he drove during his crime.
Foster appeals and argues that his sentence is unconstitutionally harsh and excessive, because he is not the most egregious and blameworthy of offenders to warrant a maximum sentence.
Discussion
The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in La. C.Cr.P. art. 894.1. Foster concedes, and we agree, that the trial court sufficiently articulated its reasons for sentence.
The second prong of the excessiveness test requires the appellate court to determine whether the sentence imposed is too severe. This depends on the circumstances of the case and the background of the defendant. A sentence violates La. Const. art. 1, §20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La. 1993); State v. Bonanno, 384 So.2d 355 (La. 1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Hogan, 480 So.2d 288 (La. 1985); State v. Bradford, 29,519 (La. App. 2d Cir. 4/2/97), 691 So.2d 864.
A trial court has wide discretion to sentence within the statutory limits. Where 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. State v. Black, 28,100 (La. App. 2d Cir. 2/28/96), 669 So.2d 667, writ denied, 96-0836 (La. 9/20/96), 679 So.2d 430. Absent a showing of manifest abuse of that discretion, we will not set aside a sentence as excessive. State v. Square, 433 So.2d 104 (La. 1983); State v. Washington, 29,478 (La. App. 2d Cir. 4/2/97), 691 So.2d 345.
Prior to imposing sentence, the trial court reviewed Foster's pre-sentence investigation report ("PSI") and considered the facts of the case. The trial court noted that Foster's criminal history includes convictions for illegal possession of stolen things, unauthorized use of a vehicle, and numerous traffic offenses, including driving under suspension and two instances of careless operating, and four prior arrests for DWI. The PSI revealed that Foster's probation was twice revoked, including a revocation after his April, 1999 DWI conviction. The trial court determined that Foster was likely to repeat his criminal conduct if gran
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