State Of Louisiana v. Gary Scully

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

NO. 2020 KA 0586

STATE OF LOUISIANA

VERSUS

GARY SCULLY

Judgment Rendered: APR 16 2021

On Appeal from the
16th Judicial District Court
Parish of St. Mary, State of Louisiana
No. 2013- 190378

The Honorable Lewis H. Pitman Jr., Judge Presiding

Martin Bofill Duhe Attorneys for the State of Louisiana

District Attorney
Walter J. Senette, Jr.
Assistant District Attorney
Franklin, Louisiana

Cynthia Kliebert Meyer Attorney for Defendant/Appellant,
New Orleans, Louisiana Gary Scully

BEFORE: THERIOT, WOLFE, AND HESTER, JJ.

WOLFE, J.

The defendant, Gary Scully, was charged by bill of information with fourth -

offense driving while intoxicated ( DWI), a violation of La. R.S. 14: 98( E) ( prior to

the 2014 amendments). He pled not guilty. Prior to trial, the defendant waived the

right to counsel and represented himself at trial. Following a jury trial, the defendant

was found guilty as charged. The trial court sentenced the defendant to eighteen

years imprisonment at hard labor and ordered him to pay a $ 5, 000. 00 fine. The

defendant appealed. This court affirmed the defendant' s conviction but vacated his

sentence and remanded for resentencing because the trial court failed to restrict the

defendant' s sentence to exclude parole for two years, as required by La. R.S.

14: 98( E)( 1)( a). See State v. Scully, 2015- 0385 ( La. App. 1st Cir. 11/ 6/ 15)

unpublished), 2015 WL 6835435, writ denied, 2015- 2214 ( La. 3/ 4/ 16), 188 So. 3d

IE101

With representation by appointed counsel, the defendant was resentenced to

eighteen years imprisonment at hard labor with two years of the sentence to be

served without benefit of parole, probation, or suspension of sentence; he was also

ordered to pay a $ 5, 000. 00 fine. The defendant now appeals, designating one

assignment of error. We affirm the sentence.

FACTS

On March 17, 2013, the defendant was arrested for driving while intoxicated

in Berwick, St. Mary Parish. The facts are fully set forth in the prior appeal in this

matter, Scully, 2015 WL 6835435.

ASSIGNMENT OF ERROR

In his sole assignment of error, the defendant argues that his sentence is

constitutionally excessive.

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DISCUSSION

A thorough review of the record indicates that neither the defendant nor his

appointed counsel objected to his sentence. Further, there was no oral or written

motion to reconsider the sentence. Under La. Code Crim. P. arts. 881. 1( E) and

881. 2( A)( 1), the failure to make or file a motion to reconsider sentence shall preclude

the defendant from raising an objection to the sentence on appeal, including a claim

of excessiveness. See State v. Mims, 619 So. 2d 1059 ( La. 1993) ( per curiam). The

defendant, therefore, is procedurally barred from having the assignments of error

reviewed because of his failure to file a motion to reconsider sentence after being

sentenced. State v. Campbell, 2016- 1349 ( La. App. 1st Cir. 4/ 12/ 17), 217 So. 3d

1197, 1198; see also State v. Duncan, 94- 1563 ( La. App. 1st Cir. 12/ 15/ 95), 667

So. 2d 1141, 1143 ( en Banc per curiam).

The assignment of error is without merit.

SENTENCE AFFIRMED.

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