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State v. Adair5/26/2004
circumstances, State v. Cook, 95-2784 (La. 5/31/96), 674 So.2d 957, 958-959 (per curiam), cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996), held that a nine-year sentence was not constitutionally excessive for a defendant who pled no contest to vehicular homicide after striking an eighteen-year-old bicyclist and then left him to die by drowning in a muddy ditch. In that case, the defendant was a single mother who maintained gainful employment. However, the trial court found the defendant's flight from the scene "'manifested deliberate cruelty to the victim' adding to 'this already serious act... a greater degree of culpability' because it 'could have meant the difference between an individual living and dying.'" Id. at 958. See also, State v. Trahan, 93-1116 (La. App. 1 Cir. 5/20/94), 637 So.2d 694, 708-709. In the present case, the trial court concluded that defendant's actions following the accident showed a complete disregard for human life because he denied driving and delayed giving information to rescue personnel about the victim's location. The record seems to support the trial judge's conclusions, considering that the autopsy report indicates Dempster only had superficial injuries to his head and that there was no severe head or cerebral damage. After considering the record, including the letters attached to the PSI from the victim's mother and sister, and defendant's friends and former employer, the trial judge obviously concluded that a sentence of one-half the maximum term of imprisonment was appropriate. "The trial judge has broad discretion, and a reviewing court may not set sentences aside absent a manifest abuse of discretion." State v. Guzman, 99-1528, 99-1753 (La. 5/16/00), 769 So.2d 1158, 1167. Under all of the circumstances in this case, we see no abuse of the trial court's sentencing discretion.
In our review of the record for errors patent pursuant to La. C.Cr.P. art. 920, we find that the sentence is illegally lenient as it does not impose the mandatory fine. Neither the state, nor the defendant has presented the issue for our review. While we recognize our authority to correct the sentence on our own motion, we decline to take such action. See; State v. Turner, 03-325 (La.App. 5 Cir. 6/19/03), 850 So.2d 811, 819, writ denied, 03-2170 (La. 1/30/04), 865 So.2d 74. We also note that the trial court failed to require defendant to participate in appropriate treatment programs. Because we find this may be of benefit to defendant, we remand the matter to the trial court for compliance with this portion of La. C.Cr.P. art. 14:32.1(B).
Accordingly, the defendant's guilty plea and sentence are affirmed. The matter is remanded to the trial court for consideration of the appropriate treatment program in accordance with La. C.Cr.P. art. 14:32.1(B).
AFFIRMED AND REMANDED
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