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State v. Adair5/26/2004
AFFIRMED AND REMANDED
Defendant, Michael Adair, filed this criminal appeal seeking review of his sentence. For reasons that follow, we affirm.
Adair was charged with negligent homicide in violation of La. R.S. 14:32.1(2) as a result of the death of a passenger, Pershing Dempster, III, in a vehicle Adair was driving. At the time of the accident, Adair's blood alcohol level was.19%. Adair pled guilty as charged and was sentenced to ten years at hard labor, with the first year to be served without benefit of probation, parole or suspension of sentence.
In brief to this court, Adair assigns two errors. In the first, he contends he had ineffective assistance of counsel because his trial counsel failed to file a motion to reconsider sentence. In the second he argues his sentence is excessive.
La. C.Cr.P. art. 881.1(B) provides that a motion for reconsideration of sentence "shall be oral at the time of sentence or shall be in writing thereafter and shall set forth the specific grounds on which the motion is based." La. C.Cr.P. art.
881.1(E) provides that "failure to make or file a motion to reconsider sentence or to include a specific ground upon which a motion to reconsider sentence may be based including a claim of excessiveness, shall preclude the state or the defendant from raising an objection to the sentence or from urging any ground not raised in the motion on appeal or review." At the time of sentencing, the defense attorney stated that he "would like to object to the sentencing." However, he did not urge that the sentence was excessive or specify any grounds for the objection to the sentence. Nevertheless, this court has reviewed a defendant's constitutional challenge of a sentence even in the absence of a motion to reconsider sentence. State v. Pendelton, 00-1211 (La.App. 5 Cir. 3/14/01), 783 So.2d 459, 465, writ denied, 01-1242 (La. 1/25/02), 807 So.2d 243. The failure to file a motion to reconsider sentence, or to state specific grounds upon which the motion is based, merely limits a defendant to a bare review of the sentence for constitutional excessiveness. Id. In accordance with our prior jurisprudence, the defendant's claim of constitutional excessiveness is addressed.
Because we are considering the merits of defendant's claim that his sentence is unconstitutionally excessive, we find no merit in the claim of ineffective assistance of counsel. The defendant was not prejudiced by counsel's failure to file a motion to reconsider sentence when the sentence is reviewed for constitutional excessiveness on appeal. State v. Lewis, 98-672 (La.App. 5 Cir. 3/10/99), 732 So.2d 556, 561, writ denied, 99-2818 (La. 4/20/00), 760 So.2d 334.
The Eighth Amendment of the United States Constitution and Article I, Section 20 of the Louisiana Constitution prohibit the imposition of excessive or cruel punishment. A sentence is generally considered to be excessive if it is grossly disproportionate to the offense or imposes needless pain and suffering. A sentence is grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. State v. Lobato, 603 So.2d 739, 751 (La. 1992); State v. Pendelton, 783 So.2d at 465. The trial judge is afforded wide discretion in determining a sentence, and the court of appeal will not set aside a sentence for excessiveness if the record supports the sentence imposed. State v. Pendelton, supra; La. C.Cr.P. art. 881.4(D).
The penalty for vehicular homicide is provided in La. R.S. 14:32.1(B) as follows:
Whoever commits the crime of vehicular homicide shall be fined not less than two thousand dollars nor
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