State of Louisiana v. William Clay Bennett

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

17-889

STATE OF LOUISIANA

VERSUS

WILLIAM CLAY BENNETT

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APPEAL FROM THE
THIRTIETH JUDICIAL DISTRICT COURT
PARISH OF VERNON, NO. 90484
HONORABLE C. ANTHONY EAVES, DISTRICT JUDGE

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ELIZABETH A. PICKETT
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders and
Elizabeth A. Pickett, Judges.

AFFIRMED.

Chad M. Ikerd
Louisiana Appellate Project
P. O. Box 2125
Lafayette, LA 70502
(225) 806-2930
COUNSEL FOR DEFENDANT-APPELLANT:
William Clay Bennett

Asa Allen Skinner
District Attorney, 30th JDC
Terry W. Lambright
Assistant District Attorney, 30th JDC
P. O. Box 1188
Leesville, LA 71446
(337) 239-2008
COUNSEL FOR STATE-APPELLEE:
State of Louisiana

PICKETT, Judge.

FACTS

On January 3, 2017, the defendant, William Clay Bennett, was charged by

bill of information, number 90484, with one count of operating a vehicle while

intoxicated (OVI), fourth offense. On the same day, he was also charged by bill of

information, number 90485, with one count of failure to operate a motor vehicle in

a single lane zoned for traffic, one count of possession of an open container of an

alcoholic beverage in the passenger compartment of a vehicle, and one count of

operation of a motor vehicle without wearing a seatbelt.

The defendant filed a Motion for Preliminary Examination in the trial court

on September 30, 2016. On October 25, 2016, the state filed a Response for

Preliminary Examination which included copies of documents related to the state’s

prosecution of the defendant for the above offenses and court minutes from

relevant prior convictions.

On May 3, 2017, as part of a plea agreement, the defendant tendered a plea

of guilty to operating a vehicle while intoxicated, fourth offense. In accordance

with the plea agreement, the state dismissed all charges in bill of information

number 90485. The state also recommended a cap on his sentencing of not more

than twenty years, with sentencing left up to the court. Additional

recommendations by the state included that the defendant receive intensive

substance abuse treatment while incarcerated and that he be sentenced to a facility

which provided the opportunity for the defendant to obtain his college degree. The

state took no position on the defendant’s request that his sentence in this case be

served concurrently with any other sentences. During this proceeding, the

defendant’s signed Plea Agreement and Waiver of Constitutional Rights and Plea

of Guilty forms were entered into the record.

On July 11, 2017, the defendant was sentenced to twenty years at hard labor,

without benefit of probation, parole, or suspension of sentence, plus a fine of five

thousand dollars plus costs. The court ordered that the defendant not be given

credit for time served since the date of arrest and that his sentence run consecutive

with any and all other sentences. The court noted that it considered the

Presentence Investigation (PSI) report along with La.Code Crim.P. art. 894.1. The

defendant objected to the court’s sentence, particularly to the court’s denial of

credit for time served.

The defendant filed a Motion to Reconsider Sentence on July 18, 2017,

asserting that he should have been given credit for time served, and that the court

did not follow the recommended plea agreement by ordering his sentence to be

served consecutively to any other sentence. Further, the defendant asserted that the

sentence imposed is excessive, that the sentence is not within the statutory limits

and is a manifest abuse of discretion, and that the trial court failed to adequately

consider applicable mitigating circumstances.

The trial court issued a Judgment on Rule, on July 31, 2017, granting the

defendant credit for time served but denying the other portions of the defendant’s

Motion to Reconsider Sentence. On the same day, the trial court issued Written

Reasons and stated its reasons for denying the other claims in the defendant’s

Motion to Reconsider Sentence. On August 14, 2017, the defendant filed a Motion

for Appeal and Designation of Record in the trial court, which was granted on

August 15, 2017.

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 no errors patent.
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ASSIGNMENT OF ERROR

In the defendant’s sole assignment of error, he alleges that based on the

record of this case, the trial court erred by sentencing him under La.R.S.

14:98.4(C) to a consecutive, twenty-year sentence without the benefit of probation,

parole, or suspension of sentence because the record only supported a sentence

under La.R.S. 14:98.4(A)(1), which does not require a consecutive sentence and

only requires that two years of the sentence be served without benefits.

The defendant first argues that “there were no pretrial motions heard to

develop facts in this case.” There is no merit to this argument by the defendant. In

the state’s Response for Preliminary Examination, filed on October 25, 2016, the

state attached multiple documents pertaining to its prosecution of the defendant for

the instant offense. Subsequently, the defendant did not file any further motions

for preliminary examination or request a hearing on any such motions. Further,

aside from the Motion and Request for Discovery and Bill of Particulars Pursuant

to Local Rule, filed on January 10, 2017, which the state answered on February 21,

2017, the defendant did not file any other discovery requests. In light of these

facts, we do not agree there were no pretrial motions heard to develop facts in this

case.

Next, the defendant argues that because the PSI report was not offered into

the record of this case, it “cannot be considered in this appeal to determine if there

are sufficient facts to support the trial court’s ruling.” In support of his argument,

the defendant cited State v. Cottingin, 476 So.2d 1184 (La.App. 3 Cir. 1985) and

State v. Malbroux, 507 So.2d 319 (La.App. 3 Cir. 1987). The defendant stated

that, in Cottingin, this court could not review the PSI because “the Report was not

filed into the original record.” The issue being discussed in Cottingin was whether

the trial court complied with La.Code Crim.P. art. 894.1. This court, in Cottingin,
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actually said, “the pre-sentence report was not filed in the record or made a part of

the record for this court to review.” Cottingin, 476 So.2d at 1186. In Cottingin,

the state attached a copy of the report to it brief, but this court stated it has no

authority to receive or review evidence not contained in the trial court record. This

court noted “Act 384 of 1985, effective September 6, 1985, has now amended

La.C.Cr.P. Art. 877 to provide that a pre-sentence report shall be made a part of the

record if a defendant seeks post-conviction relief on the grounds of excessive

sentence.” Cottingin, 476 So.2d at 1186, n.1. The date of the sentencing hearing

in Cottingin is not indicated; however, the defendant pled in September of 1984.

Given that the date on which the defendant pled was approximately a year prior to

the effective date of Act. 384 and given the wording of this court’s footnote, it

appears the sentencing date in Cottingin was prior to the effective date of the

amendment to Article 877.

In support of the defendant’s argument that this court’s review of the

evidence in the instant case is restricted to the transcripts from the sentencing

hearing and the trial court’s written reasons for judgment, the defendant cited a

portion of this court’s holding in Malbroux which stated that because “the report

was not made a part of the record before us, we are unable to review these alleged

deficiencies.” The quote the defendant relies on was made by this court in

reviewing defendant’s assertion in Malbroux that the PSI report did not comply

with La.R.S. 15:1132, which requires the report to undertake such things as

educational and medical studies of the defendant. The defendant in Malbroux also

asserted the trial court erred in refusing to allow him to challenge and correct

allegedly false and inaccurate material in the PSI report. In addressing that issue,

this court held that because the trial court was not bound by the sentence

recommendation and used the PSI in deciding whether to accept or reject the
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sentence recommendation, it erred in not allowing the defendant to rebut

information in the report that was prejudicial to the defendant. This case, however,

is distinguishable from Malbroux because here the defendant does not claim to

have requested to view the PSI, nor does he assert that it contains erroneous and

prejudicial information. The trial court quoted the defendant’s OVI arrest and

conviction record directly from the PSI:

Okay. Then I’m going to turn to the PSI because, Mr. Bennett,
you have a very extensive criminal record, sir. Approximately
5/23/83 – I’m just going to cover the alcohol, driving under the
influence, offenses that you have. You have received an OWI
misdemeanor in the City Court of Leesville. You pled guilty to that.
On 2/18/84 you had a DWI, first. You pled guilty to that. That was in
the 30th Judicial District Court. Then in 3/22/85 you have an OWI,
second, in City Court. You pled guilty to that. 4/28 of ’85 you have
an OWI, third, in the 30th Judicial District Court. You pled guilty to
DWI, second, in that case. And 1/91 – in ’91, that’s the offense date,
in the 30th Judicial District Court you pled guilty to DWI, first.
12/21/92 in City Court, Leesville City Court, you pled to OWI,
second. In ’95 – in 5/4/95 you have an OWI, second, in City Court
that you pled guilty to OWI, first, and the same one in ’92 you pled to
a first offense. In ’97, 3/21/97 is the offense date, you have a DWI,
fourth. You pled guilty to a DWI, second, in the 30th Judicial District
Court. In ’98, 4/29 of ’98 in Morgan City, this is not a DWI, but this
is a felony of – you pled guilty to the entry of an inhabited dwelling
and sentenced to five years DOC. ’99, that was – in 2000 you were
revoked on that sentence and then 10/27 of ’99 you have, once again,
DWI, fourth, here in Vernon Parish. You pled guilty to a third,
sentenced to five years, suspended three years, parole, parole and
parole [sic]. But you were revoked and probation was revoked in
2002 on that one. In ’06, 9/30/2006, you pled guilty in 2007, DWI,
fourth. You got ten years DOC. Then ’13 you got a DWI, second,
and you pled guilty to that, and then we have the current offense of
DWI, fourth. You pled guilty 5/3 of 2017. If my math is correct you
have one, two, three, four, five, six, seven, eight, nine, ten, eleven,
twelve – this is your thirteenth DWI and you have at least another
felony and you have been revoked on probation before. Mr. Bennett,
it’s not likely that you’re going to respond favorably to probationary
treatment. You’ve had treatment in the past, you’ve been
incarcerated, your probation has been revoked, your parole has been
revoked. There is an undue risk that during the period of a suspended
sentence or probation that you will commit another crime and you are
in need of correctional treatment in a custodial environment. A lesser
sentence will deprecate the seriousness of your offense.

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When the trial court quoted the relevant portions of the PSI at sentencing, the

defendant did not object and did not indicate any error in that information.

Further, based on his assertion that appellate review is limited to the

sentencing transcript and the trial court’s written reasons, the defendant asserts that

the record does not support a finding that the defendant previously benefited from

parole, probation, or suspension of sentence, as required by La.R.S. 14:98.4(C).

We find no merit in this argument as will be discussed more fully below.

The state first argues that the defendant waived his right to appeal when he

signed the Plea Agreement on May 3, 2017, which stated:

By accepting this plea agreement, defendant waives, releases
and relinquishes any claim or right to appeal this matter, whether on
direct appeal or by application for post-conviction relief, motion to
modify sentence, motion to correct sentence, application for habeas
corpus relief, or otherwise on a claim if [sic] ineffective assistance of
counsel.

On the same day, the defendant also signed a Waiver of Constitutional Rights and

Plea of Guilty which waived his right to appeal from a guilty verdict, among other

rights, but also informed him that he had “thirty days after the rendition of the

judgment to file a motion to appeal [his] sentence or any other orders or judgments

of the court.” Given that the record is conflicting in regard to whether or not the

defendant waived his right to appeal his sentence in this matter, we find the

defendant did not validly waive his constitutional right to have the sentence

reviewed.

The state further argues that under the provisions of La.Code Crim.P. art.

877, it did not err in not making the PSI report a part of the record. Louisiana Code

of Criminal Procedure Article 877 states:

A. The presentence and postsentence investigation reports shall
be privileged and shall not be disclosed directly or indirectly to
anyone other than the sentencing court, the victim or the victim’s
designated family member, as defined in R.S. 46:1842, the prosecutor,
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members of the division of probation and parole within the office of
adult services, the officer in charge of the institution to which the
defendant is committed, the committee on parole, the probation or the
parole officer if the defendant is placed on probation or released on
parole, medical authorities directly involved in the defendant’s
rehabilitation or treatment if the defendant is committed to a hospital
or a substance abuse program, the Board of Pardons, and the governor
or his representative. However, this Article shall not require the
disclosure of sources of confidential information.

B. Before imposing sentence the court may advise the defendant
or his counsel of the factual contents and conclusions of any
presentence investigation report. The sources of confidential
information shall not, however, be disclosed. If the defendant contests
any information contained in the presentence report, the court shall
provide the district attorney the same access to the report as was given
to the defendant or his counsel. The district attorney may respond to
the defendant’s contentions concerning the information in the
presentence report.

C. The presentence investigation report, edited to protect sources
of confidential information, shall be made part of the record if the
defendant seeks post-conviction relief only on the grounds of an
excessive sentence imposed by the court.

The state notes that in State v. Carrier, 453 So.2d 1216 (La.App. 3 Cir.

1984), this court, in reviewing claims of excessiveness and compliance with

La.Code Crim.P. art. 894.1, stated that there was no requirement for the PSI to be

made part of the record for appellate review. This court also stated:

[T]there is no allegation that defendant requested that the report be
made part of the record or that he be allowed access to it. Absent such
a request, there is no error in not making the report a part of the
record. The defendant also makes no claim that the report contained
false information prejudicial to him which would entitle him to
access.

Id. at 1218 (citation omitted). Carrier, however, was decided prior to the effective

date of the amendment to article 877, which now provides that the PSI report shall

be made a part of the record if the defendant seeks post-conviction relief only on

the grounds of an excessive sentence.

The defendant did not request that the report be made part of the record.

The state, however, requested that, in compliance with the provisions of La.Code

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Crim.P. art. 877(C), the PSI be made a part of the record since the defendant

appealed his sentence. The PSI is, in fact, part of the record before this court.

The defendant asserts the record, without the PSI report, does not establish

the requisites for the application of La.R.S. 14:98.4(C). However, the PSI report

states that on September 19, 2016, the defendant’s parole, which he was sentenced

to as a result of the defendant pleading guilty to DWI Fourth, was revoked due to

the arrest that resulted in the instant DWI Fourth conviction. Because the

defendant did previously receive the benefit of parole on a DWI Fourth conviction,

which was revoked as a result of a subsequent DWI Fourth conviction, as required

by La.R.S. 14:98.4(C), the trial court did not err in sentencing the defendant under

section (C) of La.R.S. 14:98.4.

The defendant alternatively argues that the record also does not support a

sentence under La.R.S. 14:98.4(B). Because we find the record supports the

sentence imposed under La.R.S. 14:98(C), it is not necessary to address the merits

of the defendant’s argument that the record does not support a sentence under

La.R.S. 14:98(B).

CONCLUSION

The defendant’s sentence is affirmed.

AFFIRMED.

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