State of Louisiana v. Joseph Matthew Pardue A/K/A Joseph Matthews Pardue

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

22-565

STATE OF LOUISIANA

VERSUS

JOSEPH MATTHEW PARDUE A/K/A JOSEPH MATTHEWS PARDUE

**********
ON APPEAL FROM THE
TWENTY-EIGHTH JUDICIAL DISTRICT COURT
PARISH OF LASALLE, NO. 19-1107
HONORABLE J. CHRISTOPHER PETERS, DISTRICT JUDGE

**********
JONATHAN W. PERRY
JUDGE

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Court composed of D. Kent Savoie, Jonathan W. Perry, and Wilbur L. Stiles, Judges.

AFFIRMED IN PART AND SEVERED IN PART WITH INSTRUCTIONS.

Meghan Harwell Bitoun
Louisiana Appellate Project
P. O. Box 4252
New Orleans, Louisiana 70119
(504) 470-4779
COUNSEL FOR DEFENDANT/APELLANT:
Joseph Matthew Pardue
a/k/a Joseph Matthews Pardue

J. Reed Walters
District Attorney
28th Judicial District
W. Evans Dorroh, III
Assistant District Attorney
1683 N. Second Street
P. O. Box 1940
Jena, Louisiana 71342
(318) 992-8282
COUNSEL FOR APPELLEE:
State of Louisiana

PERRY, Judge.

This negligent homicide case involves an automobile accident leading to the

tragic death of three individuals and the negligent injuring of another. For the

following reasons, we affirm Defendant’s sentences on his three felony convictions

for negligent homicide, and we sever Defendant’s appeal as it relates to his

misdemeanor conviction and sentence for negligent injuring.

FACTS AND PROCEDURAL HISTORY

Because this case was resolved with guilty pleas, the facts in the record are

not fully developed. However, the State set forth the following factual basis at the

guilty plea hearing:

[O]n Monday, July 29, 2019 Joseph Matthew or Matthews Pardue
[“Defendant”] was operating a 2006 Kenworth Tractor, AKA a log
truck. He was operating an unloaded log truck on Louisiana Highway
127, just outside of Olla, Louisiana, here in LaSalle Parish, at
approximately 11:30 hours. Mr. Pardue struck a 2014 Ford Fiesta
automobile being driven by one Jodee Alexis Sears [“Ms. Sears”]. Ms.
Sears’ date of birth is September 26, 2001. The vehicle was occupied
by three other individuals. A Ms. Vicki Lynn Sears, whose date of
birth was September 2, 1973. Brittany Lynn Martin, whose date of
birth was August l, 1995. And Brileigh Lynn Martin, whose date of
birth was April 5, 2016.[1] Ms. Brileigh Martin was about three years
old at that time, just turned three. As a result of the collision, Vicki
Sears, Brittany Martin and Brileigh Martin were killed. The driver,
[Ms. Sears] suffered severe injuries but survived the collision. In fact,
[Ms. Sears] had to be taken, airlifted I believe it was, to Rapides
General Hospital for treatment. The collision was caused by the
negligence of [Defendant] in that [he] was operating his vehicle in a
grossly reckless manner. [Defendant] stated that during the course of
the investigation, which was investigated by the Louisiana State Police,
Trooper Adrian Landreneau was the chief investigating officer, that he
had checked his mirrors just prior to the crash and when he looked
forward, he saw the Ford Fiesta but it was too late to avoid hitting the

1
Although La.R.S. 46: 1844(W) requires the use of the victim's initials, the statute further
states “[t]he public disclosure of the name of the juvenile victim is not prohibited by this
Subsection when the crime resulted in the death of the victim.”

vehicle. [Defendant] admitted to traveling sixty-two (62) miles per
hour at the time but a witness, or actually two witnesses to the collision
stated that they had followed [Defendant] since turning off from Olla
onto Louisiana 127 and they were traveling at a consistent seventy (70)
to seventy-two (72) miles per hour. Another witness, who was
immediately behind the vehicle, indicated that the speed was a
consistent seventy (70) to seventy-five (75) miles per hour. The
witness also stated that at no time prior to the collision did he see any
brake lights come on, on [Defendant’s] log truck nor did it show any
sign of braking. According to those witnesses who stopped at the
scene, [Defendant] stated that he did not see the vehicle. Trooper
Adrian Landreneau, who I submit to the Court is an accident
reconstruction expert, went back to the scene where the accident
occurred, drove it himself and didn’t find trees or overhanging or
anything like that on the roadway that would have obstructed a
reasonably prudent driver to see what was ahead of him. Therefore,
the collision was caused by the gross negligence, reckless disregard, I
should say, for the safety of other people by checking your mirrors,
driving too fast and not trying to avoid the collision.

On September 24, 2019, the State charged Defendant by bill of information

bearing trial court docket number 19-1107 with three counts of vehicular homicide,

a violation of La.R.S. 14:32.l. Defendant was also charged with one count of

vehicular negligent injuring, a violation of La.R.S. 14:39.l, in a separate bill of

information bearing trial court docket number 19-1108. After waiving arraignment

on September 30, 2019, Defendant entered a plea of not guilty to the charges.

On January 4, 2022, the State amended the bill of information in trial court

docket number 19-1107 to charge Defendant with three counts of negligent

homicide, a violation of La.R.S. 14:32. At a Boykin hearing held on January 7,

2022, the State orally amended the bill of information in trial court docket number

19-1108 to charge Defendant with negligent injuring, a violation of La.R.S. 14:39.

At that time, Defendant and his attorney reviewed and executed a Plea of Guilty and

Waiver of Rights form in which Defendant withdrew his not guilty pleas and pled

guilty to the amended charges. In that plea form, it was specifically stated, “Blind

2

Plea- No promise of any sentence has been made. Pre-Sentence Report will be

ordered and sentence will be imposed after its return at a sentencing hearing.”

Before accepting the pleas, the trial court first questioned Defendant to determine

whether Defendant’s plea was knowingly, intelligently, and voluntarily made. After

questioning Defendant, the trial court accepted Defendant’s guilty pleas and

informed him it was ordering a presentence investigation (PSI) because Defendant

was entering the pleas “in the blind.”

On March 2, 2022, the trial court held a sentencing hearing. In trial court

docket number 19-1107, Defendant was sentenced as follows: five years at hard

labor with a one thousand dollar fine on count one; five years at hard labor with a

one thousand dollar fine on count two; and five years at hard labor without the

benefit of parole, probation, or suspension of sentence on count three. In trial court

docket number 19-1108, Defendant was sentenced to six months in the parish jail

for negligent injuring. The trial court ordered the negligent homicide sentences be

served consecutively to one another but concurrently with the negligent injuring

sentence.

Although Defendant did not object to the sentences at the conclusion of the

sentencing hearing, he timely filed a written motion to reconsider sentence. In his

motion, Defendant claimed the trial court failed to consider the mitigating

circumstances and further that his maximum sentences were excessive. Following

a hearing, the trial court denied Defendant’s motion to reconsider sentence.

On June 24, 2022, Defendant filed a motion for appeal which was granted by

the trial court.

3

APPELLANT’S ASSIGNMENTS OF ERROR

Defendant is now before this court alleging three assignments of error

regarding his negligent homicide sentences: (1) The imposition of consecutive

maximum sentences for this defendant is unconstitutionally excessive; (2) The trial

court erred in imposing consecutive sentences in the absence of particular

justification therefor; and (3) The trial court erred in imposing sentences based in

part on the crime charged, rather than the crime for which Defendant was convicted.

PRELIMINARY PROCEDURAL ISSUES

Before addressing Defendant’s arguments, we must examine two procedural

issues, namely: (1) whether Defendant can seek review of the sentences imposed;

and (2) whether it was proper to include Defendant’s guilty plea to negligent

injuring, a misdemeanor, in this appeal.

Appellate Review

Louisiana Code of Criminal Procedure Article 881.2(A)(2) provides: "The

defendant cannot appeal or seek review of a sentence imposed in conformity with a

plea agreement which was set forth in the record at the time of the plea." This court

has consistently held that it is "not automatically precluded from reviewing a

sentence unless the plea agreement provides a specific sentence or sentencing cap."

State v. Curtis, 04-111, p. 2 (La.App. 3 Cir. 8/4/04), 880 So.2d 112, 114 (citing State

v. Pickens, 98-1443 (La.App. 3 Cir. 4/28/99), 741 So.2d 696, writ denied, 99-1577

(La. 11/5/99), 751 So.2d 232, and writ denied, 01-2178 (La. 4/19/02), 813 So.2d

1081)), writ denied, 04-2277 (La. 1/28/05), 893 So.2d 71. The plea agreement in

4

the present case did not result in specific sentences or sentencing caps; therefore,

this court is not automatically precluded from reviewing the sentences imposed.

However, there is an additional issue which must be discussed, namely

whether the plea form, which defendant and his defense counsel signed at the time

of the guilty pleas, explicitly waived his right to appeal. The "Plea of Guilty and

Waiver of Rights" form contains the following clause:

8. /s/JP In exchange to the above charge and sentence bargained for, I
understand this matter will be finalized and waive all rights to file any
post-trial motions including but not limited to an appeal of my
conviction and sentence, Motions to Reconsider Sentence, New Trial,
Amend Sentence, Request for Public Records on this case, and Post-
Conviction Relief within 2 years after the judgment of conviction and
sentence has become final; also because I was advised of the rights
listed above, I waive my right to request a free transcript of my guilty
plea unless I state a particularized need[.]

Thus, we must determine whether the written waiver in the plea form precludes

Defendant from appealing his sentences. In State v. McAdory, 17-571, pp. 4-6

(La.App. 3 Cir. 1/4/18), 237 So.3d 539, 542-43, this court addressed the issue as

follows:

At the outset, we address the State's objection to Defendant’s
appeal, arguing that it lacks merit because Defendant waived his right
to appeal his conviction and sentence. In support, the State references
the Plea Agreement, which was signed by Defendant and his attorney
at the time of his plea, which contains the following clause:

3) By accepting this plea agreement, the defendant
waives, releases and relinquishes any and all rights to
appeal the conviction and sentence resulting from this
plea agreement, 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.

....

[T]he question is whether the clause stating that Defendant waives his
right to appeal his conviction and sentence should be upheld as valid.

5

The State argues that because the supreme court found in State v.
Bordelon, 07-525 (La. 10/16/09), 33 So.3d 842, that even a capital
defendant sentenced to death may waive his right to appeal, the waiver
should be considered valid so long as it was given knowingly and
intelligently. We caution, however, that the Bordelon court also noted
it was still required to review the defendant’s capital sentence for
excessiveness under La.Code Crim.P. art. 905.9. Although the
excessiveness issue in Bordelon is not relevant in the instant matter, we
note that the trial court instructed Defendant at sentencing that, “[y]ou
have two years from the date this sentence becomes final to assert any
claim for post-conviction relief and you have 30 days in which to file
an appeal.” We will, therefore, address Defendant’s appeal.

This court reviewed McAdory's excessive sentencing claim despite the

written waiver in his plea form because the trial court explicitly advised him at

sentencing that he had the right to file an appeal. See also State v. Granado, 18-485

(La.App. 3 Cir. 12/6/18), 261 So.3d 51, writ denied, 19-48 (La. 9/6/19), 278 So.3d

968. Similarly, in the case now before us the trial court informed Defendant at

sentencing, “You are also notified that you have 30 days from today in which to file

a Motion to Reconsider Sentence, and 30 days from today in which to file a Motion

for Appeal or seek a writ of review.” Therefore, we conclude that Defendant's

sentences may be reviewed irrespective of the written waiver in the plea form.

Defendant’s Misdemeanor Conviction

As noted earlier, Defendant was charged in separate bills of information

bearing separate docket numbers. On January 7, 2022, Defendant pled guilty to

three counts of negligent homicide in trial court docket number 19-1107 and one

count of negligent injuring in trial court docket number 19-1108. Negligent

homicide is a felony whereas negligent injuring is a misdemeanor. Defendant’s

motion for appeal included both trial court docket numbers, and the trial court

granted an appeal in both docket numbers. However, the LaSalle Parish Clerk of

6

Court's Office submitted one appellate record to this court bearing trial court docket

number 19-1107. Therefore, a procedural issue arises from the inclusion of the

misdemeanor with the felonies in the motion for appeal.

The proper appellate review for a misdemeanor conviction and/or sentence is

by supervisory writ of review. See La.Code Crim.P. art. 912.1(C)(1).

This court dealt with a similar situation in State v. Gilmore, 10-709 (La.App.

3 Cir. 12/8/10), 54 So.3d 146. In Gilmore, the defendant pled guilty to three charges

which were filed in three separate charging instruments bearing different trial court

docket numbers. The defendant’s motion and order for appeal included all three

trial court docket numbers but only two appellate records were received by this

court. One of the appellate records contained both a felony and a misdemeanor,

each bearing a separate trial court docket number. In Gilmore, this court relied on

its previous holding in State v. Turner, 04-1250 (La.App. 3 Cir. 3/2/05), 896 So.2d

286, writ denied, 05-871 (La. 12/12/05), 917 So.2d 1084, and severed the

misdemeanor from the appeal and ordered the defendant to file a supervisory writ

of review if he wished to seek review of his misdemeanor conviction and/or

sentence.

Therefore, following the holdings in Turner and Gilmore, we sever

Defendant’s misdemeanor conviction and sentence for negligent injuring from the

appeal. Should Defendant wish to seek review of his misdemeanor conviction

and/or sentence, he should do so by filing a supervisory writ of review with this

court within thirty days of the date of this opinion.

7

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, we review all appeals for errors

patent on the face of the record. After reviewing the record, we find there are no

errors patent.

APPELLANT’S ASSIGNMENT OF ERROR NO. 1

In his first assignment of error, Defendant alleges the trial court’s compliance

with the sentencing guidelines set forth in La.Code Crim.P. art. 894.1 was

inadequate because it failed to properly consider the mitigating circumstances

before imposing the sentences. Defendant argues his maximum sentences are

unconstitutionally excessive as the sentences inflict needless and purposeless pain

and suffering and do not make a measurable contribution to the acceptable goals of

punishment. Defendant asserts lesser sentences tailored to him would not deprecate

the seriousness of his crimes.

To review a sentence for excessiveness, the record must show the trial court

considered the guidelines set forth in La.Code Crim.P. art. 894.1. State v. Ray, 423

So.2d 1116 (La.1982). The goal of La.Code Crim.P. art. 894.1 is the articulation of

a factual basis for a sentence, not a rigid or mechanical compliance with its

provisions. State v. Bell, 53,712 (La.App. 2 Cir. 1/13/21), 310 So.3d 307. “While

the trial judge need not articulate every aggravating and mitigating circumstance

outlined in art. 894.1, the record must reflect that he adequately considered these

guidelines in particularizing the sentence to the defendant.” State v. Smith, 433

So.2d 688, 698 (La. 1983) (citing. Ray, 423 So.2d 1116; State v. Keeney, 422 So.2d

1144 (La.1982); and State v. Duncan, 420 So.2d 1105 (La. 1982)). Importantly, the

trial court should consider the defendant’s personal history, including his age,

8

marital status, health, and employment record; his criminal record; the seriousness

of the offense; and the “potential for rehabilitation through correctional services

other than confinement.” State v. Jones, 398 So.2d 1049, 1051-52 (La.1981).

“There is no requirement that specific matters be given any particular weight at

sentencing.” State v. Brown, 51,352, p. 22 (La.App. 2 Cir. 5/2/17), 223 So.3d 88,

103 (citations omitted), writ denied, 17-1154 (La. 5/11/18), 241 So.3d 1013.

Additionally, appellate courts must determine whether the sentence imposed

is constitutionally excessive:

Sentences within the statutory sentencing range can be reviewed
for constitutional excessiveness. State v. Sepulvado, 367 So.2d 762
(La.1979). 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.
Barling, 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d
1035, 1042-43 (citing State v. Etienne, 99-192 (La.App. 3 Cir.
10/13/99), 746 So.2d 124, writ denied, 00-165 (La. 6/30/00), 765 So.2d
1067).

....

“[Louisiana] Const. art 1, § 20, guarantees that, ‘[n]o law shall
subject any person to cruel or unusual punishment.’” Barling, 779
So.2d at 1042-43. “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.” Id. at
1042 (citing State v. Campbell, 404 So.2d 1205 (La.1981)).

The relevant question is whether the trial court abused its broad
sentencing discretion, not whether another sentence might have been
more appropriate. Barling, 779 So.2d at 1042-43 (citing State v. Cook,
95-2784 (La. 5/3 1/96), 674 So.2d 957, cert denied, 519 U.S. 1043, 117
S.Ct. 615, 136 L.Ed.2d 539 (1996)). In reviewing the defendant’s
sentence, the appellate court should consider the nature of the crime,
the nature and background of the offender, and the sentences imposed
for similar crimes. State v. Lisotta, 98-648 (La.App. 5 Cir. 12/16/98),
726 So.2d 57 (citing State v. Telsee, 425 So.2d 1251 (La.1983)), writ

9

denied, 99-433 (La. 6/25/99), 745 So.2d 1183. “[T]he appellate court
must be mindful that the trial court is in the best position to consider
the aggravating and mitigating circumstances of each case . . .” State
v. Williams, 02-707 (La.App. 3 Cir. 3/5/03), 839 So.2d 1095, 1100
(citing Cook, 674 So.2d 957).

State v. Rexrode, 17-457, pp. 3-4 (La.App. 3 Cir. 11/15/17), 232 So.3d 1251, 1253-

54 (alterations in original). “Generally, maximum sentences are reserved for the

most serious violation of the offense and the worst type of offender.” State v.

Herbert, 12-228, p. 5 (La.App. 3 Cir. 6/13/12), 94 So.3d 916, 920, writ denied, 12-

1641 (La. 2/8/13), 108 So.3d 78.

At the sentencing hearing in the present case, defense counsel indicated that

Defendant wished to make a statement. Defendant started to read his statement

offering his sympathy and apologies to the victims and their families but was unable

to continue. Defense counsel moved to file the statement in the record without

objection.2 Several of the victims’ family members testified regarding their grief,

their sense of loss, and the toll the deaths had on their family. Ms. Sears, the sole

survivor of the car crash, stated her mother was her best friend and because of the

crash, she was facing the rest of her life without her mother. Ms. Sears testified that

her memories were affected by the crash and that she lost precious memories of her

family members in addition to suffering from lifelong foot pain. Neither the State

nor defense counsel presented any other evidence or arguments to the trial court.

The trial court indicated it had reviewed the PSI, heard Defendant's partial statement

and the victim impact statements, and assessed the factors set forth in La.Code

2
Defendant's written statement does not appear in the record.
10

Crim.P. art. 894.1. Before imposing the sentences, the trial court stated the

following:

[B]ecause of your serious nature of your crime, I do not believe the
ends of justice would be served if I gave you simply a suspended or
probated sentence. Because of the nature of this offense, although it is
not likely that you would engage in this conduct . . . in the future, I
must find that there is an undue risk to others of the community if you
were given a suspended [sentence] or placed solely on probation.
Further, I believe that you are in need of correctional treatment that can
be provided most effectively by the commitment to an institution.
Negligent homicide is clearly a serious offense, and it will not be taken
lightly by this court. . . . .I believe that a lesser sentence would deprecate
the seriousness of the offense charged.

As the trial court noted, there are multiple penalty provisions for negligent

homicide. Louisiana Revised Statutes 14:32(C) provides, in pertinent part:

(l) Except as provided for in Paragraph (2) of this Subsection, whoever
commits the crime of negligent homicide shall be imprisoned with or without
hard labor for not more than five years, fined not more than five thousand
dollars, or both.

(2)(a) If the victim killed was under the age of ten years, the
offender shall be imprisoned at hard labor, without benefit of probation,
parole, or suspension of sentence, for not less than two nor more than
five years.

On counts one and two, Defendant was sentenced to five years at hard labor

with a one thousand dollar fine. On count three, Defendant was sentenced to five

years at hard labor without the benefit of parole, probation, or suspension of

sentence, because the victim was under the age of ten. Thus, the trial court imposed

the maximum sentences of imprisonment.

As to the nature and background of the offender, Defendant was described as

a thirty-six-year-old first felony offender with one prior arrest for obscenity in 2004.

Defendant had an eleventh grade education, drove log trucks for a living at the time

of the incident, and was married with two children who relied on him for support.
11

The trial court noted Defendant had lost six children to tragic circumstances and

surmised his children's deaths could have contributed to his substance abuse

problems. However, the trial court found that fact did not excuse Defendant’s

actions and reckless behavior. According to Defendant’s own admission, he was a

habitual user of methamphetamine and had smoked methamphetamine a few days

prior to the incident.

At the hearing on Defendant’s motion to reconsider sentence, the trial court

reiterated that the only possible mitigating factor was Defendant’s remorse. In

aggravation, the trial court noted Defendant's drug use and that three people were

killed due to his reckless conduct.

Regarding the imposition of the maximum sentences of incarceration for

negligent homicide, appellate courts have upheld a range of sentences from three to

five years, although sometimes with suspended sentences. The imposition of

maximum sentences was generally discussed in State v. Webre, 09-351, pp. 3-4

(La.App. 3 Cir. 11/4/09), 21 So.3d 1154, 1156-57 (alterations in original), as

follows:

In State v. Burnaman, 03-1647, p. 5 (La.App. 3 Cir.
5/12/04), 872 So.2d 637, 641, this court considered the
appropriateness of the imposition of maximum sentences,
explaining:

[M]aximum sentences are usually reserved
for the most egregious and blameworthy of
offenders. State v. LeBlanc, 578 So.2d 1036
(La.App. 3 Cir. 1991), writ denied, 620 So.2d
833 (La.1993). In reviewing the imposition
of a maximum sentence, the First Circuit has
held:

This Court has stated that maximum
sentences permitted under statute may be

12

imposed only for the most serious offenses
and the worst offenders, State v. Easley, 432
So.2d 910, 914 (La.App. 1 Cir.1983), or
when the offender poses an unusual risk to
the public safety due to his past conduct of
repeated criminality. See State v. Chaney,
537 So.2d 313, 318 (La.App. 1 Cir.1988),
writ denied, 541 So.2d 870 (La.1989). A trial
court’s reasons for imposing sentence, as
required by La.Code Crim. P. art. 894.1, are
an important aid to this court when reviewing
a sentence alleged to be excessive. State v.
McKnight, 98-1790 at p. 25, 739 So.2d [343]
at 359 [ (La.App. 1 Cir. 1999)].

State v. Runyon, [05-36, 05-104, pp. 22-23 (La.App. 3 Cir.
11/2/05),] 916 So.2d [407,] 423-241, writ denied, 06-
1348 (La.9/1/06), 936 So.2d 207].

State v. Runyon, 06-823, p. 12 (La.App. 3 Cir. 12/6/06), 944 So.2d 820,
830, writ denied, 07-49 (La. 9/21/07), 964 So.2d 330.

The defendant in Webre received the maximum sentence for negligent

homicide which this court affirmed on appeal. This court noted the defendant had

a criminal history, including numerous arrests and prior driving while intoxicated

(DWI) and hit-and-run convictions, and showed a lack of remorse.

In State v. Hughes, 03-420 (La.App. 3 Cir. 12/31/03), 865 So.2d 853, writ

denied, 04-663 (La. 9/24/04), 882 So.2d 1165, this court found a five-year sentence

for negligent homicide was not excessive for a first-time felony offender with four

children. The defendant attempted to commit suicide by driving into a head-on

accident at high speed but instead killed the driver of the other car. This court stated:

The trial court cited the applicable factors set forth in La.Code Crim.P.
art. 894.1, noted Defendant’s lack of a criminal record and letters of
support in her favor; but, concluded Defendant’s “wanton and reckless
disregard for the lives and safety of others . . . dictates a sentence that
fits the nature of this offense.” The trial court did not abuse its
discretion in sentencing this Defendant to the five-year maximum term
of imprisonment.

13

Id. at 860.

Recently, this court found the maximum five-year sentence and maximum

$5,000 fine was not excessive for a defendant who pled guilty as charged to

negligent homicide. State v. Vascocu, 22-511 (La.App. 3 Cir. 12/14/22), --- So.3d

---.

In Vascocu, the defendant hit the victim in the back of the head with a loaded

firearm which caused the firearm to discharge a bullet into the victim’s head.

Following the shooting, the defendant instructed a family member to call 911

remained at the scene, disarmed himself, and voluntarily confessed to the crime.

The defendant was a sixty-eight-year-old first offender with no prior arrests who

suffered from health problems. This court determined the trial court complied with

the sentencing guidelines in La.Code Crim.P. art. 894.1, and the maximum sentence

was not disproportionate to the severity of the offense.

Although Defendant contends in the present case that the trial court failed to

consider the mitigating circumstances, our close reading of the record shows the

trial court complied with La.Code Crim.P. art. 894.1 and further that a factual basis

for the sentences imposed is apparent from the record. “Where the record clearly

shows an adequate factual basis for the sentence imposed[, the supreme] court has

held that remand is unnecessary, even where there has not been full compliance with

Article 894. 1.” State v. Lanclos, 419 So.2d 475, 478 (La.1982) (citations omitted).

In the present case, the trial court considered Defendant’s age, marital status,

employment at the time of the incident, his lack of a criminal record, and the

seriousness of the offenses but concluded his reckless disregard for the lives and

safety of others required the maximum sentences imposed. Therefore, the trial

14

court’s considerations during sentencing were in accordance with La.Code Crim.P.

art. 894.1.

Defendant has failed to show the trial court abused its discretion in sentencing

him to the maximum sentences of incarceration. Defendant’s sentences are

comparable to other sentences imposed for negligent homicides, and the sentences

imposed neither shock the sense of justice nor are they disproportionate to the

severity of the offenses. Further, when evaluating sentences given to defendants for

similar crimes, it must be acknowledged that “[t]he trial judge is given great

discretion in the imposition of sentences within statutory limits, and the sentence

should not be set aside in the absence of abuse of his discretion.” State v. Bradley,

414 So.2d 724, 725 (La.1982) (citations omitted). 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, p. 3 (La.

5/31/96), 674 So.2d 957, 959 (quoting State v. Humphrey, 445 So.2d 1155, 1165,

(La.1984)), cert. denied, 519 U.S. 1043, 117 S.Ct. 615 (1996)).

Accordingly, this assignment of error is without merit.

APPELLANT’S ASSIGNMENTS OF ERROR 2 AND 3

In his second assignment of error, Defendant asserts the trial court erred in

ordering his sentences be served consecutively in the absence of particular

justification. And in his third assignment of error, Defendant argues the trial court

erred in basing his sentences, in part, on the crimes he was charged with committing

rather than the crimes for which he was being sentenced. Because these assignments

of error share a common thread which precludes appellate review, they will be

addressed together.
15

Louisiana Code of Criminal Procedure Article 881.1(E) provides the

mechanism for preserving the review of a sentence on appeal:

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.

When a motion to reconsider sentence is made, La.Code Crim.P. art. 881.1

requires the defendant to include the specific ground upon which the motion is

based. If the defendant does not include a specific ground for reconsideration, the

appeal is limited to a claim of constitutional excessiveness. See State v. Vice, 21-

143 (La.App. 3 Cir. 10/6/21), 329 So.3d 388.

In State v. Mims, 619 So.2d 1059, 1059 (La.1993) the supreme court

discussed La.Code Crim.P. art. 881.1 as follows:

[O]ne purpose of the motion to reconsider, mandated by La.Code
Crim.Proc. Art. 881.1, is to allow the defendant to raise any errors that
may have occurred in sentencing while the trial judge still has the
jurisdiction to change or correct the sentence. The defendant may point
out such errors or deficiencies or may present argument or evidence not
considered in the original sentencing, thereby preventing the necessity
of a remand for resentencing.

In the present case, Defendant claimed the trial court failed to consider the

mitigating circumstances before imposing his sentences and further that his

maximum sentences of incarceration were constitutionally excessive. At no time

did Defendant specifically allege in his motion that the trial court erred in imposing

consecutive sentences and he did not allege the trial court improperly considered the

original charges of vehicular homicide before sentencing Defendant on the amended

charges of negligent homicide. Furthermore, Defendant did not present any

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argument on these issues at the hearing on the motion to reconsider sentence.

Therefore, pursuant to La.Code Crim.P. art. 881. 1(E), we find this court is

precluded from addressing Defendant’s arguments.

DECREE

We affirm Defendant’s sentences for negligent homicide. Due to the

procedural error discussed above, we sever Defendant’s appeal as it relates to his

misdemeanor conviction and sentence for negligent injuring. Should Defendant

choose to seek review of this misdemeanor conviction and/or sentence, he shall file

an application seeking supervisory review with this court within thirty days of the

date of this opinion.

AFFIRMED IN PART AND SEVERED IN PART WITH INSTRUCTIONS.

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