State of Louisiana v. Alfred Leonce Arceneaux AKA - Alfred L. Arceneaux AKA - Alfred Arceneaux

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

15-514

STATE OF LOUISIANA

VERSUS

ALFRED LEONCE ARCENEAUX

AKA - ALFRED L. ARCENEAUX

AKA - ALFRED ARCENEAUX

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. CR-147514
HONORABLE DAVID MICHAEL SMITH, DISTRICT JUDGE

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JOHN D. SAUNDERS
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders, and
David Kent Savoie, Judges.

AFFIRMED, WITH INSTRUCTIONS.

Keith A. Stutes, District Attorney
Daniel M. Landry, III
First Assistant District Attorney
15th Judicial District Court
P. O. Box 3306
Lafayette, LA 70506
(337) 232-5170
COUNSEL FOR PLAINTIFF/APPELLEE:
State of Louisiana

Chad M. Ikerd
Louisiana Appellate Project
P.O.Box 2125
Lafayette, LA 70502
(225) 806-2930
COUNSEL FOR DEFENDANT/APPELLANT:
Alfred Leonce Arceneaux

SAUNDERS, Judge.

Defendant Alfred Leonce Arceneaux was charged on September 10, 2014,

with aggravated flight from a police officer, a violation of La.R.S. 14:108.1(C). On

January 21, 2015, Defendant was tried by the trial court and found guilty as

charged. He was sentenced on April 23, 2015, to the maximum sentence of two

years at hard labor. At the sentencing hearing, Defendant requested home

incarceration for his two year sentence, which the trial court denied. Defendant did

not file a motion to reconsider the sentence.

Defendant has perfected a timely appeal, wherein he alleges that the

maximum sentence is constitutionally excessive in his case. For the following

reasons, we affirm Defendant’s sentence.

FACTS:

On May 16, 2014, Defendant was issued citations for aggravated flight from

an officer, obstruction of justice, and resisting an officer. He was also issued

citations for an expired inspection sticker, careless operation of a vehicle, and

driving with a suspended license. Defendant had a bench trial and was found

guilty as charged.

ERRORS PATENT:

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed by

this court for errors patent on the face of the record. After reviewing the record,

we find that there are two errors patent.

Defendant was entitled to a jury trial in this case. See La.R.S. 14:108.1 and

La.Code Crim.P. art. 782. Louisiana Code of Criminal Procedure Article 780 was

amended in 2013 to provide as follows:

A. A defendant charged with an offense other than one
punishable by death may knowingly and intelligently waive a trial by
jury and elect to be tried by the judge.

B. The defendant shall exercise his right to waive trial by jury
in accordance with Article I, Section 17 of the Constitution of
Louisiana. The waiver shall be by written motion filed in the district
court not later than forty-five days prior to the date the case is set for
trial. The motion shall be signed by the defendant and shall also be
signed by defendant’s counsel unless the defendant has waived his
right to counsel.

C. With the consent of the district attorney the defendant may
waive trial by jury within forty-five days prior to the commencement
of trial.

D. A waiver of trial by jury is irrevocable and cannot be
withdrawn by the defendant.

(Emphasis added).

The effective date of the amendment to Art. 780 was June 17, 2013. Thus,

the requirement that the jury trial waiver be in writing was in effect at the time of

the January 21, 2015 waiver in this case. The record reveals no written waiver of

jury trial as required by La.Code Crim.P. art. 780. However, Defendant and his

attorney were in open court when the judge addressed his right to a jury trial and

Defendant’s waiver thereof.

In State v. Bell, 13-1443 (La.App. 3 Cir. 6/4/14), 140 So.3d 830, this court

held that the absence of a written waiver of jury trial as required by La.Code

Crim.P. art. 780 was harmless error where the defendant and his counsel were in

open court when the judge addressed the defendant’s right to a jury trial and his

waiver thereof. Accordingly, the error in failing to obtain a written waiver in

violation of La.Code Crim.P. art. 780 is harmless under the facts of this case.

Next, the record does not indicate that the trial court advised Defendant of

the prescriptive period for filing post-conviction relief as required by La.Code

Crim.P. art. 930.8. Thus, the trial court is directed to inform Defendant of the

provisions of article 930.8 by sending appropriate written notice to him within ten

days of the rendition of the opinion and to file written proof in the record that
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Defendant received the notice. State v. Roe, 05-116 (La.App. 3 Cir. 6/1/05), 903

So.2d 1265, writ denied, 05-1762 (La. 2/10/06), 924 So.2d 163.

ASSIGNMENT OF ERROR:

Defendant’s sole assignment of error is that the maximum sentence of two

years at hard labor for an offense of aggravated flight from a police officer is

constitutionally excessive under the circumstances of his case.1 We disagree.

In brief, Defendant states that at the hearing, he “made a contemporaneous,

oral motion to reconsider the sentence and stated specific grounds for the court to

reconsider, thus complying with the requirements of La.[Code Crim.P. ]art.

881[.1](B) in order to preserve this issue for review.” Louisiana Code of Criminal

Procedure Article 881(B) provides that “[t]he motion shall be oral at the time of

sentence or shall be in writing thereafter and shall set forth the specific grounds on

which the motion is based.” Following the pronouncement of the sentence of two

years imprisonment at hard labor, counsel for Defendant stated:

Your Honor, the defendant has asked me to convey to the Court
that because he has four children and he is supporting his family and
he has a job, for him to be sentenced to serve his two years through
home incarceration. He has the financial ability to pay $300 a month
to a home incarceration company or to the DOC to be able to do it that
way so that he can maintain his employment and continue to support
his four children.

However, Defendant did not object after the trial court denied this request, nor did

he object to the sentence as being excessive. Pursuant to La.Code Crim.P. art.

881.1(E):

Failure to make or file a motion to reconsider sentence or to
include a specific ground upon which a motion to reconsider sentence
may be based, including a claim of excessiveness, shall preclude the
state or the defendant from raising an objection to the sentence or
from urging any ground not raised in the motion on appeal or review.

1
Subsequent to Defendant’s conviction for aggravated flight from a police officer, La.R.S.
14:108(E) was amended to increase the maximum sentence to five years imprisonment. 2014 La.
Acts No. 50, § 1.
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In State v. Bamburg, 00-675 (La.App. 3 Cir. 11/2/00), 772 So.2d 356, the

defendant failed to object to the sentence imposed at the sentencing hearing and

did not timely file a motion to reconsider sentence. Thus, this court found his

claim of excessiveness of sentence was barred. See also 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; State v. Algere, 09-85 (La.App. 3 Cir. 6/3/09) (unpublished opinion);

State v. Robinson, 09-735 (La.App. 3 Cir. 12/9/09) (unpublished opinion); State v.

Stapleton, 09-891 (La.App. 3 Cir. 2/3/10) (unpublished opinion); State v. Gresham,

10-474 (La.App. 3 Cir. 11/3/10) (unpublished opinion), writ denied, 10-2699 (La.

4/25/11), 62 So.3d 90.

However, this court has reviewed claims of excessiveness where no

objection was made and no motion to reconsider sentence filed. See State v.

Johnlouis, 09-235 (La.App. 3 Cir. 11/4/09), 22 So.3d 1150, writ denied, 10-97 (La.

6/25/10), 38 So.3d 336, cert. denied, __ U.S. __, 131 S.Ct. 932 (2011); State v.

Thomas, 08-1358 (La.App. 3 Cir. 5/6/09), 18 So.3d 127; State v. Perry, 08-1304

(La.App. 3 Cir. 5/6/09), 9 So.3d 342, writ denied, 09-1955 (La. 6/25/10), 38 So.3d

352; State v. H.J.L., 08-823 (La.App. 3 Cir. 12/10/08), 999 So.2d 338, writ denied,

09-606 (La. 12/18/09), 23 So.3d 936; State v. Quinn, 09-1382 (La.App. 3 Cir.

5/12/10), 38 So.3d 1102, writ denied, 10-1355 (La. 1/7/11), 52 So.3d 885.

We choose to do the latter. Thus, the sentence will be analyzed under a bare

excessiveness claim. See State v. Clark, 06-508 (La.App. 3 Cir. 9/27/06), 940

So.2d 799, writ denied, 06-2857 (La. 9/21/07), 964 So.2d 324.

In State v. Walker, 96-112, pp. 3-4 (La.App. 3 Cir. 6/5/96), 677 So.2d 532,

534-35, writ denied, 96-1767 (La. 12/6/96), 684 So.2d 924, this court held:

Article 1, § 20 of the Louisiana Constitution of 1974, prohibits
“cruel, excessive, or unusual punishment.” A sentence which falls
within the statutory limits may nevertheless be excessive under the
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circumstances. State v. Sepulvado, 367 So.2d 762 (La.1979); State v.
Naquin, 527 So.2d 601 (La.App. 3 Cir.1988). To constitute an
excessive sentence this court must find that the penalty is 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, therefore, is nothing more than needless
imposition of pain and suffering. State v. Campbell, 404 So.2d 1205
(La.1981); State v. Everett, 530 So.2d 615 (La.App. 3 Cir.1988), writ
denied, 536 So.2d 1233 (La.1989). The trial judge is given wide
discretion in imposing a sentence, and a sentence imposed within the
statutory limits will not be deemed excessive in the absence of
manifest abuse of discretion. State v. Howard, 414 So.2d 1210
(La.1982).

Furthermore, “[a] trial court must look at the particular circumstances of the

case and the defendant’s background in order to impose a sentence that is suited

for him. On review, the issue is not whether another sentence would have been

more appropriate; rather, it is whether the trial court abused its discretion.” State v.

Beverly, 03-1348, p. 2 (La.App. 3 Cir. 3/3/04), 867 So.2d 107, 110 (footnotes

omitted); See also State v. Cook, 95-2784 (La. 5/31/96), 674 So.2d 957, cert.

denied, 519 U.S. 1043, 117 S.Ct. 615 (1996).

In the current case, at the sentencing hearing, after the trial court noted that it

had reviewed the presentence investigation report and ascertained that Defendant

had had an opportunity to also review the report with no objection, the trial court

stated:

Okay. I have considered the mitigating factors and aggravating
factors in reference to Mr. Arceneaux. I looked at his home life. I
think he’s got children and a wife that he’s taking care of and supports
and taking care of these children.

I also looked at the aggravating factors. Mr. Arceneaux has an
extremely messy sheet of arrests and convictions, both traffic and
drug offenses. Is that correct Mr. Arceneaux?

MR. ARCENEAUX: Yes, sir.

THE COURT: With that in mind, considering the facts of both
mitigating and aggravating, I sentence you under the statutes, these
two statutes. The statute requires hard labor not more than two years
and may be fined not more than $2,000. The previous statute which
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you will be sentenced under I find that I have no choice but to impose
the maximum of two years at hard labor.

In pertinent part, La.R.S. 14: 108.1 provided at the time of the offense:

(C) Aggravated flight from an officer is the intentional refusal
of a driver to bring a vehicle to a stop or of an operator to bring a
watercraft to a stop, under circumstances wherein human life is
endangered, knowing that he has been given a visual and audible
signal to stop by a police officer when the officer has reasonable
grounds to believe that the driver or operator has committed an
offense. The signal shall be given by an emergency light and a siren
on a vehicle marked as a police vehicle or marked police watercraft.

(D) Circumstances wherein human life is endangered shall be
any situation where the operator of the fleeing vehicle or watercraft
commits at least two of the following acts:

(1) Leaves the roadway or forces another vehicle to leave
the roadway.

(2) Collides with another vehicle or watercraft.

(3) Exceeds the posted speed limit by at least twenty-five
miles per hour.

(4) Travels against the flow of traffic or in the case of
watercraft, operates the watercraft in a carless manner in
violation of R.S. 34:851.4 or in a reckless manner in
violation of R.S. 14:99.

(5) Fails to obey a stop sign or a yield sign.

Defendant was convicted of aggravated flight from a police officer.

Louisiana Revised Statutes 14:108.1(E) provides for a range of incarceration of not

more than two years for the offense of aggravated flight from an officer. Defendant

was sentenced to the maximum sentence allowed by law. Generally, maximum

sentences are reserved for the most serious violations and the worst of offenders.

State v. Morain, 08-1546 (La.App. 3 Cir. 6/3/09), 11 So.3d 733, writ denied, 09-

1670 (La. 4/30/10), 34 So.3d 282. For this reason, Defendant argues that the

maximum sentence in this case is constitutionally excessive.

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Defendant acknowledges that “[e]vidence was introduced to establish every

element necessary for the crime and, arguably, that evidence was credible.”

However, he contends that because the arresting deputy’s testimony did not

indicate that any person was endangered during the flight, the trial court should

have taken that as a sufficient mitigating factor to reduce the sentence. The officer

testified that the chase took place on rural roads, that Defendant was traveling at a

speed of sixty miles per hour in a thirty-five mile zone, that he coasted through two

stop signs, that his vehicle crossed the center line in a curve, and that he had

noticed only one other car on the roadway during the whole time of the pursuit,

which Defendant did not run off the roadway. Defendant points to various cases

where drivers who had been convicted of aggravated flight from an officer actually

put human lives in danger by crashing into cars or speeding through stop lights at

speeds of over one hundred miles per hour, and they received either the maximum

sentences or even lesser sentences. See State v. Bates, 37,282 (La. App. 2 Cir.

10/16/03), 859 So.2d 841, writ denied, 04-141 (La. 5/21/04), 874 So.2d 173; and

State v. McGinnis, 07-1419 (La.App. 3 Cir. 4/30/08), 981 So.2d 881.

While Defendant argued at the sentencing hearing that he had a job and has

four children whom he supports, this information was not included in the

presentence investigation report because Defendant failed to report for the

interview. The presentence investigation report showed that Defendant, who was

thirty-six at the time of sentencing, had over sixty arrest incidences since 1998.

There were over fifty traffic violations, including but not limited to, driving on

suspended licenses, speeding, driving through stop signs, hit and run, expired

inspection stickers, and no child restraints. There were convictions for flight from

a police officer in 2001, 2006, and 2008. There were convictions for drug

possession, resisting arrests, theft, and several arrests for simple battery, domestic
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battery, and aggravated battery. The presentence report also indicated that there

were arrests for traffic violations and distribution of drugs after the current offense

was committed.

Under the circumstances of this case, we find that the maximum sentence

was not so disproportionate to the crime as to shock this court’s sense of justice

considering Defendant’s extensive criminal history. Moreover, just because a

dangerous encounter with another vehicle did not happen in this case, a dangerous

situation was nonetheless presented to the public, not to mention the endangerment

to the persons who were passengers in Defendant’s vehicle and the deputy who

was attempting to pull him over. Accordingly, we find that Defendant has failed to

show that the trial court abused its vast discretion in this case when it imposed the

maximum sentence of two years for the offense of aggravated flight from a police

officer. There is no merit to this assignment of error.

DECREE:

This court affirms Defendant’s sentence. Furthermore, the trial court is

directed to inform Defendant of the provisions of La.Code Crim.P. art. 930.8 by

sending appropriate written notice to him within ten days of the rendition of the

opinion and to file written proof in the record that Defendant received the notice.

AFFIRMED, WITH INSTRUCTIONS.

This opinion is NOT DESIGNATED FOR PUBLICATION.
Uniform Rules– Courts of Appeal, Rule 2–16.3.

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