State of Louisiana v. Bernie Gene Young

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

11-498

STATE OF LOUISIANA

VERSUS

BERNIE GENE YOUNG

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APPEAL FROM THE
THIRTY-FIRST JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON DAVIS, NO. CR273-10
HONORABLE CRAIG STEVE GUNNELL, DISTRICT JUDGE

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SHANNON J. GREMILLION
JUDGE

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Court composed of Oswald A. Decuir, Elizabeth A. Pickett, and Shannon J.
Gremillion, Judges.

SENTENCE AFFIRMED.

Paula C. Marx
Louisiana Appellate Project
P. O. Box 80006
Lafayette, LA 70598-0006
(337) 991-9757
Counsel for Defendant/Appellant:
Bernie Gene Young

Michael C. Cassidy
District Attorney-31st Judicial District Court
P. O. Box 1388
Jennings, LA 70546
(337) 824-1893
Counsel for Appellee:
State of Louisiana

Stacey C. Naquin
Assistant District Attorney-31st Judicial District Court
P. O. Box 1388
Jennings, LA 70546
(337) 824-1893
Counsel for Appellee:
State of Louisiana

GREMILLION Judge.

Bernie Gene Young was convicted by a jury of operating a vehicle while

intoxicated, fourth offense, a violation of La.R.S. 14:98. He was sentenced to

fifteen years imprisonment, with seventy-five days without the benefit of parole,

probation, and suspension of sentence, and was ordered to pay a fine of five

thousand dollars. His motion to reconsider the sentence was denied.

Defendant appeals his sentence. He asserts that the trial court failed to

fashion a sentence particular to his admitted alcoholism and that the sentence of

fifteen years was constitutionally excessive considering the offenses were caused

by the disease of alcoholism.

In 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, this court

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

Furthermore, in State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846

So.2d 786, 789, writ denied, 03-562 (La. 5/30/03), 845 So.2d 1061, this court held

that to decide whether a sentence shocks the sense of justice or makes no

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meaningful contribution to acceptable penal goals the following may be

considered:

[A]n appellate court may consider several factors including the nature
of the offense, the circumstances of the offender, the legislative
purpose behind the punishment and a comparison of the sentences
imposed for similar crimes. State v. Smith, 99-0606 (La.7/6/00), 766
So.2d 501. While a comparison of sentences imposed for similar
crimes may provide some insight, ―it is well settled that sentences
must be individualized to the particular offender and to the particular
offense committed.‖ State v. Batiste, 594 So.2d 1 (La.App. 1
Cir.1991). Additionally, it is within the purview of the trial court to
particularize the sentence because the trial judge ―remains in the best
position to assess the aggravating and mitigating circumstances
presented by each case.‖ State v. Cook, 95-2784 (La.5/31/96), 674
So.2d 957, 958.

Defendant was sentenced pursuant to La.R.S. 14:98(E)(1)(a), which, at the

time of the commission of the offense, provided in pertinent part:

Except as otherwise provided in Subparagraph (4)(b) of this
Subsection, on a conviction of a fourth or subsequent offense,
notwithstanding any other provision of law to the contrary and
regardless of whether the fourth offense occurred before or after an
earlier conviction, the offender shall be imprisoned with or without
hard labor for not less than ten years nor more than thirty years and
shall be fined five thousand dollars. Seventy-five days of the sentence
of imprisonment shall be imposed without benefit of probation,
parole, or suspension of sentence.

At the sentencing hearing, the trial court noted for the record, as follows:

THE COURT: All right. Mr. Young, you stand before the Court
today for sentencing after having been previously found guilty by a
Jefferson Davis Parish jury of the crime of driving while intoxicated,
fourth offense. The Court ordered a Pre-Sentence Investigation, which
has now been received and carefully studied. The Court has
considered the following factors, as well as the nature of the present
offense, in determining an appropriate sentence. The Court makes the
following findings concerning sentencing.

....

The Pre-Sentence indicates that you are fifty-one (51) years of
age, born on February the 20th, 1959. You are currently single,
having—having never been married. You have no children. You
graduated from Hathaway High School in 1978. After graduation, you
worked primarily as a truck driver and laborer. Your most recent
employment was with SR---SAR Protectors and Supply, an oil field
supply firm in–in the area of Scott, Louisiana.

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The Pre-Sentence Investigation states that you do not have a
juvenile criminal history, although you do have an adult criminal
history. On July 27th, 1998, you were found guilty of driving while
intoxicated, first offense, and given one (1) year of probation in
Jefferson Davis Parish. On March 12, 2001, you were found guilty of
driving while intoxicated, a second offense, and received a sentence of
six (6) months in the parish jail in Jefferson Davis Parish. On January
the 20th of 2004, you were found guilty of driving while intoxicated,
third offense, and received a sentence of one (1) year with the
Department of Corrections with all but thirty (30) days suspended in
Cameron Parish. On May 23rd, 2006, you were found guilty of driving
while intoxicated, fourth offense, and received a sentence of ten (10)
years with the Department of Corrections with all but four (4) years
suspended. You were then placed on supervised probation for a period
of three (3) years after your release. Your most current conviction
occurred while you were still on probation.

....

In reviewing the Pre-Sentencing Investigation, the Court takes
note of the fact that you are fifty-one (51) years of age. This has been
taken into consideration in mitigating against imposition of a
maximum sentence in this matter. However, the Court can find no
other mitigating factors.

Your involvement in criminal activity demonstrates to the
Court that you cannot live in society and that this community must be
protected from you. You are certainly in need of correctional
treatment in a custodial environment for a sign—for a significant
period of time. Anything less would deprecate from the seriousness of
your offense, would not promote respect of the law, and would not
provide a just punishment for the crime of which you stand convicted.
This Court has an obligation to protect the public from you and will
do so by removing you from society.

Defendant points to other cases wherein the defendants had more DWI

offenses than he and received lesser sentences. In State v. Presson, 43,215

(La.App. 2 Cir. 6/4/08), 986 So.2d 843, the defendant had ten prior arrests or

convictions for DWI. The current conviction was his second fourth conviction. He

was originally sentenced to fifteen years imprisonment pursuant to La.R.S.

14:98(E)(4)(b), which provides, in pertinent part:

If the offender has previously received the benefit of suspension of
sentence, probation, or parole as a fourth offender, no part of the
sentence may be imposed with benefit of suspension of sentence,
probation, or parole, and no portion of the sentence shall be imposed

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concurrently with the remaining balance of any sentence to be served
for a prior conviction for any offense.

The defendant in Presson argued the fifteen-year sentence was excessive

considering that his emotional state resulted in his alcoholism. The second circuit

noted:

Prior to imposing sentence, the trial court reviewed the facts of
the instant offense and defendant’s extensive criminal history,
including more than ten prior arrests and/or convictions for DWI. See
also, State v. Presson, 39,688 (La.App. 2d Cir.4/6/05), 900 So.2d 240
(in affirming this defendant’s prior DWI fourth offense conviction,
this court noted that ―defendant had a predisposition to commit the
offense of driving while intoxicated‖ based on his prior criminal
record). Indeed, he was on probation for DWI, fourth offense, when
the instant offense was committed. The record shows that defendant
previously underwent evaluation and treatment for substance abuse in
Suit No. 225,931 (see, State v. Presson, supra), contrary to his
contention here, but that did nothing to preclude his commission of
this offense. The trial judge noted that defendant had received a
―series of breaks‖ over the past twenty years, but he has continued to
drink and drive. Considering these factors, and notwithstanding
defendant's request to consider his emotional state as a mitigating
factor, the trial court concluded he was in need of incarceration, that a
lesser sentence would deprecate the seriousness of the offense, and
that these circumstances were likely to recur based upon his habitual
intemperate conduct.

The trial court originally sentenced defendant to fifteen years at
hard labor concurrent with any other sentence he was then serving.
After reconsideration at the behest of both parties, defendant’s
sentence was reduced to twelve years at hard labor but made to run
consecutively to any other sentence he was serving, as required by
La.R.S. 14:98(E)(4)(b) (the record confirms that defendant previously
received the benefits of suspension of sentence and probation as a
DWI fourth offender.)

Considering this defendant’s prior DWI fourth offense
conviction (to say nothing of his other DWI multiple offense
convictions) and the fact that the defendant was on probation when he
committed this offense, the sentence imposed in this case is not
constitutionally excessive. See, State v. Masters, 37,967 (La.App. 2
Cir. 12/17/03), 862 So.2d 1121. In terms of prison time, the
defendant’s sentence barely exceeds the statutory minimum mandated
in this case. On this record, nothing about this sentence shocks the
sense of justice. This assignment is therefore without merit.

Id. at 851.

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Defendant also offered State v. McDonald, 33,013 (La.App. 2 Cir. 3/1/00),

754 So.2d 382, to support his position. The defendant received ten years

imprisonment for his second fourth DWI, had been arrested thirteen times for

DWI, and had a felony drug offense involving Quaaludes. The second circuit also

noted that he had ―a conviction for unauthorized entry of an inhabited dwelling and

issuance of worthless checks in a middle grade felony amount, possession of

mari[ju]ana, and while on probation for two separate DWI fourth convictions, there

were additional allegations of misuse of the telephone and making harassing phone

calls, as well as simple battery.‖

However, a further review of the cases of similarly situated offenders shows

that fifteen years or more for a fourth DWI offense is common in Louisiana. In

State v. Minnifield, 31,527 (La.App. 2 Cir. 1/20/99), 727 So.2d 1207, writ denied,

99-516 (La. 6/18/99), 745 So.2d 19, the second circuit did not find a fifteen-year

sentence excessive. The defendant had five previous DWI convictions from two

states. The trial court noted that the defendant did not show any remorse and had

driven drunk while under suspended license, indicating that he was likely to repeat

this course of conduct.

In State v. Holloway, 10-74 (La.App. 3 Cir. 10/6/10), 47 So.3d 56, this court

affirmed a twenty-two-year sentence for a fourth-offense conviction. The

defendant had seven prior DWI convictions and was on probation from the

previous conviction when he was arrested for the current offense. In another case,

the first circuit affirmed a fifteen-year sentence for the fourth conviction for DWI,

noting that the young offender had four prior convictions over a six-year period.

State v. Turner, 00-630 (La.App. 1 Cir. 12/22/00), 779 So.2d 906.

Finally, in State v. Swayzer, 43,350 (La.App. 2 Cir. 8/13/08), 989 So.2d 267,

writ denied, 08-2697 (La. 9/18/09), 17 So.3d 388, the second circuit affirmed a

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twenty-year sentence. The defendant had a lengthy history of DWI arrests and

convictions. The trial court noted his lack of recognition that he had a problem and

the danger he posed to other drivers.

Clearly, the trial court adequately considered the mitigating and aggravating

factors in this case as required by La.Code Crim.P. art. 894.1. Defendant was on

probation for his first fourth offense when the current offense occurred and had

been given several chances to address and treat his alcoholism. The sentence is not

grossly disproportionate to the crime. It does not equate to needless imposition of

pain and suffering. There is no indication the trial court abused its vast discretion

when it sentenced Defendant to fifteen years at hard labor for the offense of

operating a vehicle while intoxicated, fourth offense.

SENTENCE AFFIRMED.

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