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State v. Blanchard11/12/2003
cing discretion: 1) the nature of the crime; 2) the nature and background of the offender; and, 3) the sentence imposed for similar crimes by the same court and other courts. State v. Watts, 99-311 (La. App. 5 Cir. 8/31/99), 746 So.2d 58, 64, writ denied, 99-2733 (La. 3/24/00), 758 So.2d 145. The issue on appeal is whether the trial court abused its discretion, not whether another sentence might have been more appropriate. Id. at 64.
Prior criminal activity is one of the factors to be considered by the trial judge in sentencing a defendant. Prior criminal activity is not limited to convictions. State v. Washington, 414 So.2d 313, 315 (La.1982); State v. McCorkle, 97-966 (La. App. 5 Cir. 2/25/98), 708 So.2d 1212, 1219.
Defendant was convicted of first degree vehicular negligent injuring in violation of La. R.S. 14:39.2 which provides in pertinent part: "Whoever commits the crime of first degree vehicular negligent injuring shall be fined not more than two thousand dollars or imprisoned with or without hard labor for not more than five years, or both."
In the instant case, the record clearly shows that defendant's five-year sentence for first degree vehicular negligent injuring was not excessive. The record indicates that defendant has an extensive criminal record, including numerous alcohol and driving related incidents: 26 arrests, including 6 DWI charges; simple battery; illegal use of a weapon; simple criminal damage; battery on a police officer; resisting arrest; disturbing the peace; theft; and many traffic violations. He was arrested approximately four months after the instant offense for failing to yield or stop and driving without a driver's license.
Defendant admitted to being an alcoholic and to using marijuana since high school and crack cocaine for the past ten years. He admitted he was drinking alcohol on the night of the accident; however, he refused to take responsibility for his actions, saying that he blacked out and could not have been that drunk because he made it to his friend's house without incident. Although he attended two in-patient treatment facilities, it is clear that they were not beneficial. It appears that defendant has had many opportunities to change his behavior; however, he has chosen not to do so.
Defendant has caused enormous pain and suffering to the victim, Ms. Poussard, a single mother of three, who will be permanently disabled for the rest of her life and walk with a limp. Additionally, Ms. Poussard was forced to have her baby delivered by C-section one month early. As the trial judge correctly stated, defendant is a danger to himself and to the community, he has not yet learned his lesson, and he has a propensity not to obey the law. We find no abuse of discretion by the trial court in the length of defendant's sentence, and no abuse in denying defendant's motion for new trial.
In his second allegation of error, defendant argues that the trial court erred in ordering consecutive sentences. He contends that successful methods of treatment for his addiction to alcohol are not available to him in a timely manner because of the consecutive sentence imposed. Defendant claims this is contrary to the legislature's intent to embrace treatment measures in preference to incarceration.
The consecutive or concurrent nature of a sentence is governed by La. C.Cr.P. art. 883 which provides in pertinent part:
If the defendant is convicted of two or more offenses based on the same act or transaction, or constituting parts of a common scheme or plan, the terms of imprisonment shall be served concurrently unless the court expressly directs that some or all be served consecutively. Other sent
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