State of Louisiana v. Bruce D. Dial

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

09-446

STATE OF LOUISIANA

VERSUS

BRUCE D. DIAL

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APPEAL FROM THE
THIRTIETH JUDICIAL DISTRICT COURT
PARISH OF VERNON, NO. 73883
HONORABLE JAMES RICHARD MITCHELL, DISTRICT JUDGE

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ULYSSES GENE THIBODEAUX
CHIEF JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Oswald A. Decuir, and
Billy Howard Ezell, Judges.

AFFIRMED.

Asa A. Skinner
District Attorney - Thirtieth Judicial District Court
Terry Wayne Lambright
Assistant District Attorney - Thirtieth Judicial District Court
P. O. Box 1188
Leesville, LA 71446
Telephone: (337) 239-2008
COUNSEL FOR:
Plaintiff/Appellee - State of Louisiana

James Edward Beal
Louisiana Appellate Project
P. O. Box 307
Jonesboro, LA 71251-0307
Telephone: (318) 259-2391
COUNSEL FOR:
Defendant/Appellant - Bruce D. Dial

Bruce D. Dial
St. Martin Correctional Center - 2 Sub Station
437 W. Mills Avenue
Breaux Bridge, LA 70517-5501

THIBODEAUX, Chief Judge.

Defendant, Bruce D. Dial, pleaded guilty to five counts of simple

burglary. The trial judge sentenced him to serve concurrent twelve year terms at hard

labor on each count, but consecutive to any other sentence he may be serving.

We affirm.

ISSUES

We shall consider whether:

1. the trial court erroneously advised Defendant that
his sentence was not subject to diminution for good
behavior pursuant to La.R.S. 15:571.3; and,

2. the trial court improperly imposed an excessive
sentence on the basis of an incomplete pre-sentence
investigation report.

LAW AND DISCUSSION

Diminution of Sentence

Defendant complains the trial court had no basis for denying him

diminution of sentence. He asserts that if accompanied by a denial of “good time,”

his sentences are excessive and not supported by the record. Defendant prays for

imposition of concurrent sentences with the benefit of diminution of sentence for

“good behavior.”

At sentencing, the trial court stated, “[p]ursuant to Code of Criminal

Procedure Article 894.1, you are advised that your sentence is not subject to

diminution for good behavior pursuant to Revised Statute 15:571.3.”

In State v. Narcisse, 97-3161, p. 1 (La. 6/26/98), 714 So.2d 698, 699, the

Louisiana Supreme Court explained:

[A] trial judge lacks authority under La.R.S. 15:5[71.3] (C)
to deny a defendant eligibility for good time credits against
his sentence, because that statute is “directed to the

Department of Corrections exclusively.” State ex rel.
Simmons v. Stalder, 93-1852 (La. 1/26/96), 666 So.2d 661.
. . . When the sentencing court is of the opinion that a
denial of diminution of sentence is warranted under the
specific circumstances of the case, the trial judge’s
discretion should be exercised under La.C.Cr.P. 890.1(B).

In this case, the trial court merely advised Defendant pursuant to

La.Code Crim.P. art. 894.1 he was ineligible for diminution of sentence. Whether or

not the advisement was correct has no effect since the authority lies with the

Department of Corrections. Id.

Accordingly, this assignment of error has no merit.

Excessiveness of the Sentence

Defendant asserts his sentences are excessive and not supported by the

record. Defendant prays for imposition of concurrent sentences.

Defendant explains that the trial court did not have a complete or proper

PSI as there were numerous problems and/or omissions with the PSI which resulted

in the imposition of a harsher sentence. At the sentencing hearing, Defendant’s

attorney stated he reviewed the PSI. There was no objection or attempt to add to the

report. Defendant states he did not object out of fear and shock. Nevertheless, in his

motion to reconsider sentence filed in the trial court, the only basis on which

Defendant complained was that “under the new Pre-Sentence Investigation process

the Court may have been unaware that Defendant was already serving a ten (10) year

sentence from Beauregard Parish consecutive to a two (2) year probation revocation.”

However, this assertion is incorrect. The PSI included a sentence imposed in

Beauregard Parish on December 4, 2008, of ten years at hard labor for simple

burglary and two years at hard labor for simple criminal damage to property with the

sentences to run concurrently to each other, but consecutively to any other sentence.

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In State v. Davis, 06-922 (La.App. 3 Cir. 12/29/06), 947 So.2d 201, this

court held, in pertinent part:

According to La.Code Crim.P. art. 881.1, failure to make
or file a motion to reconsider sentence precludes a
defendant from raising, on appeal, any objection to the
sentence. When the record does not indicate that any
objection was made regarding sentencing, the defendant is
precluded from appealing his sentence. State v. Williams,
01-998 (La.App. 3 Cir. 2/6/02), 815 So.2d 908, writ
denied, 02-578 (La. 1/31/03), 836 So.2d 59.

Although Defendant’s sentencing claim is barred
pursuant to La.Code Crim.P. art. 881.1, we will review
Defendant’s sentence for bare excessiveness in the interest
of justice. State v. Graves, 01-156 (La.App. 3 Cir.
10/3/01), 798 So.2d 1090, writ denied, 02-29 (La.
10/14/02), 827 So.2d 420. This court has reviewed claims
regarding the consecutive nature of sentences using a bare
claim of excessiveness analysis. See State v. Vollm, 04-837
(La.App. 3 Cir 11/10/04), 887 So.2d 664; State v. Day,
05-287 (La.App. 3 Cir 11/2/05), 915 So.2d 950.

This court has set forth the following standard to be
used in reviewing excessive sentence claims:

La. Const. art. I, § 20 guarantees that,
“[n]o law shall subject any person to cruel or
unusual punishment.” To constitute an
excessive sentence, the reviewing court must
find the penalty so grossly disproportionate to
the severity of the crime as to shock our sense
of justice or that the sentence makes no
measurable contribution to acceptable penal
goals and is, therefore, nothing more than a
needless imposition of pain and suffering.
State v. Campbell, 404 So.2d 1205 (La.1981).
The trial court has wide discretion in the
imposition of sentence within the statutory
limits and such sentence shall not be set aside
as excessive absent a manifest abuse of
discretion. State v. Etienne, 99-192 (La.App.
3 Cir. 10/13/99); 746 So.2d 124, writ denied,
00-0165 (La. 6/30/00); 765 So.2d 1067. The
relevant question is whether the trial court
abused its broad sentencing discretion, not
whether another sentence might have been
more appropriate. State v. Cook, 95-2784
(La. 5/31/96); 674 So.2d 957, cert. denied,

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519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d
539 (1996).

State v. Barling, 00-1241, 00-1591, p. 12
(La.App. 3 Cir. 1/31/01), 779 So.2d 1035,
1042-43, writ denied, 01-838 (La. 2/1/02),
808 So.2d 331.

Id. at 202-03. See, e.g., State v. Baker, 08-54 (La.App. 3 Cir. 5/7/08), 986 So.2d 682.

Since the only argument in Defendant’s motion to reconsider sentence

involved whether or not the trial court was aware of the Beauregard Parish sentence,

this court is relegated to review the present claim of consecutive sentences under a

bare claim of excessiveness analysis.

Louisiana Code of Criminal Procedure Article 883 provides:

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
sentences of imprisonment shall be served consecutively
unless the court expressly directs that some or all of them
be served concurrently. In the case of the concurrent
sentence, the judge shall specify, and the court minutes
shall reflect, the date from which the sentences are to run
concurrently.

In State v. Rivers, 446 So.2d 913 (La.App. 1 Cir. 1984), the defendant

was convicted of armed robbery and aggravated kidnapping. He was sentenced to

ninety-nine years on the armed robbery charge and life imprisonment on the

aggravated kidnapping charge to be served consecutively to each other and

consecutively to a sentence of life imprisonment which the defendant was serving for

a conviction of first degree murder. On appeal, the defendant argued the imposition

of consecutive sentences violated his constitutional right against excessive

punishment. The court found the trial court did not abuse its discretion in imposing

consecutive sentences.

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In State v. Russell, 607 So.2d 689 (La.App. 4 Cir. 1992), writ denied, 94-

318 (La. 6/21/96), 675 So.2d 1069, the defendant complained the trial court erred in

ordering his sentence to run consecutively to his parole time for a prior offense. The

court found the claim lacked merit. In setting forth one of the grounds for denying

the claim, the court explained:

The trial court was well within its discretion in
making the sentences under the present offense consecutive
to the defendant’s parole obligation under the prior offense.
Code of Criminal Procedure article 883 allows for the
imposition of consecutive sentences when the convictions
are for offenses which arise from separate occurrences. In
State v. Pruitt, 474 So.2d 491 (La.App. 4th Cir.1985), this
Court affirmed the imposition of consecutive sentences for
two armed robberies which occurred six weeks apart.

The defendant in State v. Johnson, 489 So.2d 301
(La.App. 4th Cir. 1986) was convicted of armed robbery
and found to be a multiple offender. He was sentenced to
one hundred ninety-eight years at hard labor without
benefit of probation, parole, or suspension of sentence.
The sentence was made consecutive with a sentence
imposed in an earlier conviction. This Court affirmed the
imposition of consecutive sentences.

Id. at 694.

The trial court did not abuse its discretion in ordering the present

sentence to run consecutively to any other sentence he was serving. The sentence

which Defendant was serving was imposed in a different parish, for a separate

conviction, by a different judge. Additionally, the trial judge in Beauregard Parish

specifically ordered the sentence to run consecutively to any other sentence

Defendant was serving.

In State v. Semien, 06-841 (La.App. 3 Cir. 1/31/07), 948 So.2d 1189,

writ denied, 07-448 (La. 10/12/07), 965 So.2d 397, the court explained:

However, “[m]aximum sentences are reserved for the most
serious violations and the worst offenders.” State v.
Farhood, 02-490, p. 11 (La.App. 5 Cir. 3/25/03), 844

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So.2d 217, 225. The only relevant question for us to
consider on review is not whether another sentence would
be more appropriate, but whether the trial court abused its
broad discretion in sentencing a defendant. State v. Cook,
95-2784 (La. 5/31/96), 674 So.2d 957, cert. denied, 519
U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).

The fifth circuit, in [State v.] Lisotta, [98-648
(La.App. 5 Cir. 12/16/98),] 726 So.2d [57] at 58, stated that
the reviewing court should consider three factors in
reviewing the trial court’s sentencing 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.

Id. at 1197 (citation omitted).

Defendant was sentenced to the maximum term of twelve years at hard

labor on each count and a $2,000.00 fine.

At the sentencing hearing, the trial court set forth the following reasons

for imposing the sentences:

I’ve considered all the factors of Code of Criminal
Procedure Article 894.1. In this case there was economic
harm to the victims and it was considerable. There were no
substantial grounds to justify or excuse the Defendant’s
conduct. The Defendant was not provoked by the victims
or any other. The Defendant is about forty years of age.
He is not married, he has five children. He appears to be in
good health. I have nothing as far as any information about
any past employment record. He has an eighth grade
education. I have no information about any history of any
drug or alcohol abuse other than he did receive some
treatment in 1999. He does have a somewhat lengthy past
criminal record. He has had five prior burglaries and is
considered to be a third offender class. It does not appear
that probationary treatment would be something that the
Defendant would likely respond to. There is an undue risk
that during a period of suspension the Defendant might
commit another crime and the Defendant does appear to be
in need of correctional treatment. Any lesser sentence
given would deprecate the seriousness of the Defendant’s
offenses.

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In this case, Defendant had numerous prior convictions: burglary in

Texas in 2001; illegal possession of stolen things and simple burglary in Beauregard

Parish in 2004; five counts of simple burglary in Vernon Parish in 2008; and, simple

burglary and simple criminal damage to property in Beauregard Parish in 2008.

Additionally, the State dismissed twenty-one charges in exchange for Defendant

pleading guilty to the five counts of simple burglary. Further, the trial court ordered

the sentences on the five counts to run concurrently to each other. Given this lengthy

criminal history, the trial court did not abuse his discretion in imposing the twelve

year sentences.

Accordingly, this assignment of error is meritless.

CONCLUSION

Based upon the foregoing, Defendant’s conviction and sentence are

affirmed.

AFFIRMED.

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION. Rule
2-16.3, Uniform Rules—Courts of Appeal.

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