State of Louisiana v. Joe McCarthy, III

Judgment rendered June 28, 2023.
Application for rehearing may be filed
within the delay allowed by Art. 922,
La. C. Cr. P.

No. 55,038-KA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

STATE OF LOUISIANA Appellee

versus

JOE MCCARTHY, III Appellant

*****

Appealed from the
Fifth Judicial District Court for the
Parish of Franklin, Louisiana
Trial Court No. 2019437F

Honorable Stephen G. Dean, Judge

*****

LOUISIANA APPELLATE PROJECT
By: Lavalle Bernard Salomon Counsel for Appellant

PENNY WISE DOUCIERE Counsel for Appellee
District Attorney

CAROLINE HEMPHILL
AMANDA MICHELE WILKINS
Assistant District Attorneys

*****

Before PITMAN, STONE, and HUNTER, JJ.

HUNTER, J.

The defendant, Joe McCarthy, III, pled guilty to three counts of first

degree vehicular negligent injuring, in violation of La. R.S. 14:39.2. The

trial court sentenced defendant to serve 5 years on each count, with the

sentences to run consecutively. On appeal, defendant contends the

consecutive 5-year sentences imposed are excessive. For the following

reasons, we affirm.

FACTS

On March 5, 2019, defendant was involved in a motor vehicle

accident in Winnsboro, while driving an automobile with three juvenile

passengers. The juveniles were injured in the accident, requiring them to be

airlifted to hospitals for treatment. Winnsboro Police Officer Jeffrey

McDonald investigated the accident, and a witness said defendant’s car had

entered the intersection at a very fast speed and collided with an 18-wheeler

making a turn. Officer McDonald spoke with defendant at the hospital and

obtained his consent to collect blood and urine samples for chemical testing.

The blood test results were negative for alcohol, but the urine test was

positive for cocaine.

In July 2019, defendant was charged with three counts of first degree

vehicular negligent injuring. The record shows defendant failed to appear in

court on January 28, 2020, June 2, 2020, and April 13, 2021. Defendant was

not present when called on April 19, 2021, and the trial court issued a bench

warrant, which was recalled when defendant appeared in court later that day.

In June 2021, defendant was present and the trial court held a preliminary

exam. In October 2021, the bill of information was amended to add three

counts of second degree cruelty to juveniles in addition to the counts of

vehicular negligent injuring. On October 19, 2021, defendant again failed to

appear in court.

On October 25, 2021, defendant appeared in court and pursuant to a

plea agreement, defendant pled guilty to three counts of first degree

vehicular negligent injuring and the other counts were dismissed. The state

and defendant agreed to 5-year sentences, with 3 years suspended and 3

years of supervised probation on each count, with the sentences to be served

concurrently. Sentencing was deferred until January 5, 2022. After

accepting defendant’s guilty pleas, the trial court advised defendant if he

failed to return for the sentencing date, the guilty plea would stand, but the

agreed sentence would not be mandated and the court could impose another

sentence consistent with the statute.

Defendant failed to appear for sentencing on January 5, 2022. Written

notice for defendant to appear in court for sentencing on March 2, 2022, was

mailed to defendant’s attorney. Notices mailed to defendant at two different

addresses were returned as undelivered. Defendant failed to appear on

March 2, 2022, and the next day a bench warrant was issued with no bond.

When defendant appeared on April 27, 2022, the trial court sentenced him to

serve 5 years at hard labor on each of the three counts with the sentences to

run consecutively to each other and with no portion of the sentence to be

suspended, contrary to the agreed-upon sentence, which was part of the plea

agreement. Defendant’s motion to reconsider sentence was denied. This

appeal followed.

DISCUSSION

The defendant contends the trial court erred in imposing excessive

sentences. Defendant argues the trial court abused its discretion by failing to
2

provide an adequate factual basis for imposing consecutive sentences after

declining to comply with the original sentencing agreement.

An appellate court uses a two-pronged test to determine whether a

sentence is excessive. First, the record must show the trial court took

cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial court

is not required to list every aggravating or mitigating circumstance so long

as the record reflects adequate consideration of the guidelines of the article.

State v. Smith, 433 So. 2d 688 (La. 1983); State v. DeBerry, 50,501 (La.

App. 2 Cir. 4/13/16), 194 So. 3d 657, writ denied, 16-0959 (La. 5/1/17), 219

So. 3d 332.

The trial court is given wide discretion in the imposition of sentences

within the statutory limits, and the sentence imposed should not be set aside

as excessive in the absence of a manifest abuse of this discretion. State v.

Williams, 03-3514 (La. 12/13/04), 893 So. 2d 7; State v. Diaz, 46,750 (La.

App. 2 Cir. 12/14/11), 81 So. 3d 228. On review, an appellate court does not

determine whether another sentence may have been more appropriate, but

whether the trial court abused its discretion. State v. Williams, supra; State

v. Free, 46,894 (La. App. 2 Cir. 1/25/12), 86 So. 3d 29.

Second, this court must determine whether the sentence is

constitutionally excessive. A sentence can be constitutionally excessive,

even when it falls within statutory guidelines, if: (1) the punishment is so

grossly disproportionate to the severity of the crime that, when viewed in

light of the harm done to society, it shocks the sense of justice; or (2) it

serves no purpose other than to needlessly inflict pain and suffering. State v.

Dorthey, 623 So. 2d 1276 (La. 1993); State v. Weaver, 01-0467 (La.

1/15/02), 805 So. 2d 166.
3

The penalty for first degree vehicular negligent injuring is

imprisonment with or without hard labor for not more than 5 years or a fine

of not more than $2,000, or both. La. R.S. 14:39.2(D).

In this case, at sentencing the trial court stated defendant had “shown

a total disdain for any kind of responsibility to appear when asked to do so

by this court repeatedly.” To explain the sentencing decision, the trial court

then recited defendant’s missed court dates before and after his guilty plea.

The trial court informed defendant by failing to appear for his sentencing

dates, his guilty plea was preserved, but he had “forfeited the right” to have

the benefit of the agreed sentence. The trial court imposed sentences of 5

years for each count with the sentences to run consecutively to each other.

Defendant alleges the trial court erred in failing to adequately state the

factors considered for imposing consecutive sentences. When two or more

convictions arise from the same incident, the terms of imprisonment shall be

served concurrently unless the court expressly directs some or all of the

terms be served consecutively. La. C. Cr. P. art. 883. Concurrent sentences

arising out of a single course of conduct are not mandatory and consecutive

sentences under those circumstances are not necessarily excessive. State v.

Harris, 52,663 (La. App. 2 Cir. 8/14/19), 277 So. 3d 912. When

consecutive sentences are imposed, the trial court shall state the factors

considered and its reasons for the consecutive terms. State v. Harris, supra.

Here, the trial court stated the factors considered for the imposition of

consecutive sentences, including the number of defendant’s missed court

dates and his benefit in having other counts dismissed. The trial court found

defendant had shown a complete disregard for the court’s orders and

procedures by failing to appear in court numerous times, including his
4

failure to appear for sentencing as required in the plea agreement. The trial

court pointed out defendant was previously advised if he did not appear on

the date for sentencing the court would not be bound by the agreed sentence.

The record shows the trial court expressly directed the sentences

would be served consecutively after stating its reasons for imposing the

consecutive terms. Consequently, we cannot say the trial court abused its

discretion in imposing the consecutive sentences. The argument lacks merit.

The defendant also contends the trial court’s imposition of maximum

sentences is excessive in this case. He argues the trial court abused its

discretion by failing to provide an adequate reason for the sentences imposed

and in failing to consider the statutory sentencing factors.

Articulation of the factual basis for a sentence is the goal of

Article 894.1, not rigid or mechanical compliance with its provisions.

Where the record clearly shows an adequate factual basis for the sentence

imposed, remand is unnecessary even where there has not been full

compliance with the article. State v. Lanclos, 419 So. 2d 475 (La. 1982).

The elements which should be considered include the defendant’s personal

history (age, family ties, marital status, health, employment record), prior

criminal record, the seriousness of the offense, and the likelihood of

rehabilitation. State v. Jones, 398 So. 2d 1049 (La. 1981).

In this case, prior to the guilty plea, the trial court advised defendant

of the sentencing range for first degree vehicular negligent injuring,

including the maximum sentence of 5 years, and he said he understood. The

prosecutor informed the court of the agreement by defendant and the state to

defer sentencing to January 5, 2022, but if he did not appear, the guilty plea

would stand and the court would be able to impose a sentence which it
5

deemed appropriate. In addition, the trial court expressly instructed

defendant he must return for sentencing on January 5, 2022, or he potentially

would not receive the agreed-upon sentence, but would be given another

sentence consistent with the statutory sentencing range. Despite these

warnings, defendant failed to appear for sentencing on January 5, 2022, and

the case was continued to March 2, 2022.

When a defendant fails to appear and the matter is continued to a new

date, both defendant and the bondsman who posted the bail undertaking

shall be given notice of the new appearance date and this notice may be

provided by first class mail. La. C. Cr. P. art. 330. The address provided by

defendant on the bail undertaking is conclusively presumed to continue for

all proceedings unless it is changed by a written declaration of residence

filed in the record. La. C. Cr. P. art. 329.

In this case, notice of the March 2, 2022, sentencing date was mailed

to defendant and the bondsman at the addresses on the bond and to the

defense counsel of record. Defendant did not file a subsequent declaration

of residence in the record. Thus, the record demonstrates defendant was

given notice in court of the initial January sentencing date and was properly

provided notice of the continued March 2, 2022, sentencing date under

Articles 329 and 330.

In several assignments of error, defendant argues the trial court failed

to provide a factual basis for the sentences and failed to consider the

sentencing guidelines. Although the trial court did not specifically mention

the Article 894.1 factors, we note as a result of prior court hearings, the trial

court was made aware of defendant’s personal history, including his

educational background and employment as a truck driver. In addition, the
6

trial court was informed of the circumstances of the offenses of conviction

during the preliminary examination, in which the court determined probable

cause existed for the charges.

The record shows the trial court advised defendant that pursuant to the

plea bargain, if he failed to perform his obligation to appear for the

sentencing date of January 5, 2022, he agreed he would be subject to a

sentence consistent with the statute, which provided a maximum sentence of

5 years, and would not get the benefit of the agreed sentence.

Considering the information available to the trial court from previous

court proceedings, the provisions of the plea agreement, and the wide

discretion afforded the sentencing court, we cannot say the trial court abused

its discretion in imposing the consecutive 5-year sentences in this case.

Thus, the assignments of error lack merit.

CONCLUSION

For the foregoing reasons, the defendant’s convictions and sentences

are affirmed.

AFFIRMED.

7