State of Louisiana v. James D. Flemones

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

23-742
STATE OF LOUISIANA
VERSUS
JAMES D. FLEMONES
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APPEAL FROM THE

THIRTY-SIXTH JUDICIAL DISTRICT COURT
PARISH OF BEAUREGARD, NO. CR-2022-743
HONORABLE MARTHA A. O’NEAL, DISTRICT JUDGE

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VAN H. KYZAR
JUDGE

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Court composed of Van H. Kyzar, Guy E. Bradberry, and Wilbur L. Stiles, Judges.

AFFIRMED;
REMANDED WITH INSTRUCTIONS.

Annette Roach

Louisiana Appellate Project

P.O. Box 6547

Lake Charles, LA 70606-6547

(337) 436-2900

COUNSEL FOR DEFENDANT/APPELLANT:
James D. Flemones

James D. Flemones
Beauregard Parish Jail
412 Bolivar Bishop Drive
DeRidder, LA 70634-5080
(318) 445-6476

Pro Se

James R. Lestage

District Attorney

Thirty-Sixth Judicial District

124 South Steward Street

DeRidder, LA 70634

(337) 463-5578

COUNSEL FOR APPELLEE:
State of Louisiana

KYZAR, Judge.

Defendant appeals his conviction and sentence for operating a motor vehicle
while intoxicated, fifth offense. For the reasons that follow, we affirm and remand
with instructions.

FACTS AND PROCEDURAL HISTORY

Defendant, James D. Flemones, was charged by bill of information, filed on
July 5, 2020, with the offense of Operating a Motor Vehicle While Intoxicated, Fifth
Offense, in violation of La.R.S. 14:98 and La.R.S. 14:98.4. The bill of information
charged the four predicate offenses supporting the charge, as follows:

The District Attorney charges that on August 21, 2003, in the 14"

Judicial District Court, Lake Charles, Louisiana, in the case entitled,

“State of Louisiana versus James Flemones”, Docket No. 6894-03, the

defendant pled guilty to DWI, first offense.

The District Attorney further charges that on December 17, 2003, in the

36" Judicial District Court, DeRidder, Louisiana, in the case entitled,

“State of Louisiana versus James D. Flemones”, Docket No. CR-652-

2003, the defendant pled guilty to DWI, second offense.

The District Attorney further charges that on September 6, 2006, in the

36" Judicial District Court, DeRidder, Louisiana, in the case entitled,

“State of Louisiana versus James D. Flemones”, Docket No. CR-944-

2004, the defendant pled guilty to DWI, third offense.

The District Attorney further charges that on January 13, 2012, in the

36" Judicial District Court, DeRidder, Louisiana, in the case entitled

“State of Louisiana versus James D. Flemones”, Docket No. CR-2011-

580, the defendant pled guilty to DWI, fourth offense.

Defendant was arraigned and pled not guilty on July 7, 2022. His trial began
March 15, 2023. Evidence presented during the trial showed that on October 10,
2021, Lauren Outlaw, who lived at 10042 Highway 190, Merryville, Louisiana,
called 911 to report an accident that had occurred on the highway in front of her

home. On hearing the crash, she and her husband observed the crash scene from their

house. After her husband went to the scene of the crash, he told her to cail 911. Mrs.

Outlaw testified that when she went to the crash site, she observed only one male.
There was quite a bit of damage to the vehicle, and she observed beer cans scattered
everywhere.

Mr. Outlaw testified that he and his wife heard the crash and that when he
went to the accident scene, he observed Defendant walking around his wrecked
truck, getting in and out of the vehicle. When asked if he observed any alcohol, he
stated that he saw “cans on the road and all that[.]”

Amanda Morrison,' a former officer of the Merryville Police Department,
responded to a report of a vehicle accident on Highway 190 west in Beauregard
Parish. Officer Morrison described the accident as follows:

It appears the vehicle - - the person was travelling towards

DeRidder and it appears the vehicle had veered off into the opposite

lane hitting the guardrail on the opposite side of the bridge. And that

caused the vehicle to come back over and hit the opposite side - - the

side he should have been on. And caused it to end up in a [sic] cross

ways in the middle of the bridge.

Officer Morrison identified Defendant as the driver but stated that he did not
admit to driving the truck or that he had been drinking. There were several beer cans
scattered at the scene, some empty and others unopened, a cooler with ice, and a
half-empty bottle of Crown Royal bourbon on the truck’s passenger floorboard.
When asked if Defendant smelled of alcohol, Officer Morrison replied, “He did
smell of alcohol on his person.” She stated that when asked initially if he was injured,
Defendant responded “no.” According to Officer Morrison, Defendant “mumbled

inaudibly” when he was later asked if he was injured. She testified that she “never

got a direct response after that until the ambulance arrived.” She had called for an

By the time of trial, Officer Morrison was employed by the DeRidder Police Department.
Between the time of the offense and trial, she had married. At the time of the arrest, her maiden
name was Pointer.

ambulance as a matter of practice for safety purposes. Eventually, Defendant,
accompanied by the ambulance personnel, walked to the ambulance, and got into it
on his own.

Chester Austin, III, a Louisiana State Trooper, testified that he responded to
the scene of the crash after Officer Morrison. He testified that as he exited his
vehicle, he noticed opened and unopened Budweiser cans on the ground, and he
smelled alcohol. Defendant was not on the scene at the time, as he had been
transported to the hospital. Trooper Austin then went to the hospital to question
Defendant. He described his encounter with Defendant, as follows:

As soon as I got into the room I noticed a very strong aroma of a
known alcohol beverage, I could smell it all over as soon as you cracked

the door. As soon as I go to talk to him all I hear is moaning, I can hear

him very lightly under his breath. Once I asked where he was headed,

he was headed to his sisters [sic]. Other than that he wasn’t really giving

me anything. He wasn’t saying anything else, he just kind of was saying

that over and over. It was just kind of a mumble.

Trooper Austin testified that prior to his arrival, the hospital had drawn blood
from Defendant. When he learned this, he provided the hospital with a preservation
letter, requesting that it not destroy Defendant’s blood samples. A few days later,
Trooper Austin obtained a search warrant for the blood samples and the hospital
records pertaining to the blood alcohol test results. He testified that according to the
records, Defendant’s blood alcohol level was .212.

During the defense’s case-in-chief, Trooper Austin explained that the State
sent a vial of the blood received from the hospital to an outside lab for testing. He

acknowledged that the results of that testing showed Defendant’s blood alcohol

content (BAC) as “.166 esc.”

The witness was not asked nor did he offer any explanation as to the meaning of the
initials “esc” in the results.

Jami Perkins, Beauregard Health System’s Emergency Department Director,
testified that Defendant was in fact treated by the hospital for possible injuries after
he was transported there following the accident. He was not administered any
narcotics but was given a CT scan. Defendant’s blood was collected by Samantha
Rubio, a phlebotomist and qualified medical technician at the hospital. Ms. Perkins
testified that blood can be drawn to assess injuries but did not know if that was why
Defendant’s blood was drawn in this case. The State asked during direct examination
if blood can also be drawn in order to determine what a person has ingested. Ms.
Perkins replied, “Yes.” She testified that according to the hospital’s records,
Defendant’s blood alcohol level was 212.0 milligrams, the equivalent to a BAC of
212.

Lori Haymon, Beauregard Health System’s Director of Medical Records,
testified concerning Defendant’s certified medical records. She verified that the
records were provided to the State pursuant to a search warrant.

On March 16, 2023, at the close of the two-day trial, the twelve-person jury
returned a unanimous verdict of guilty as charged. On May 24, 2023, Defendant was
sentenced to serve twenty-three years at hard labor, without the benefit of parole,
probation, or suspension of sentence, consecutive to any other sentence that he may
have to serve. Additionally, Defendant was ordered to pay the mandatory $5,000.00
fine and $40.00 to the Thirty-Sixth Judicial District Court Public Defender’s Office.

Defendant thereafter filed for an out-of-time appeal, which was granted. On
appeal, his appellate counsel asserts two assignments of error:

1. Counsel for James Flemones failed to perform to the standard

required by the Sixth Amendment to the United States
Constitution when he failed to: 1) seek the suppression of the

medical records of James Flemones, and in particular, blood test
results within the records; 2) when he failed to object at trial to

the admission of James Flemones’ medical records as well as the
testimony of the trooper and a hospital employee as to the results
of a blood test contained in the record; and 3) when he failed to
specifically plead and argue that La. Evid. Code art. 510(C)(2)(d)
is unconstitutional as it violates a patient’s right to privacy of
their medical records, the patient’s right against self-
incrimination, and amounts to an unlawful seizure in violation of
the Fourth Amendment, without a compelling state interest
justifying both the denial of the physician/patient privilege and
the state’s actions relative to the records.

2. The sentence imposed by the trial court was constitutionally
excessive, and a violation of the Eighth Amendment of the
United States Constitution, and La. Const. Art. I, § 20, as it is
nothing more than cruel and unusual punishment and, thus,
excessive considering the facts of this case and this offender and
especially considering that the entire sentence must be served
without benefit of probation, parole, or suspension of sentence.

Defendant has also filed a pro se brief, wherein he sets out two additional
assignments of error:

l. Counsel for James D. Flemones failed to perform to the standard
required by the Sixth Amendment to the United States
Constitution when he failed to 1) object to Trooper Chester
Austin’s testimony of the seatbelt being fastened; 2) object to
Trooper Chester Austin’s testimony saying that James Flemones
stated that he was heading to his sister’s house at the time of the
accident, which was not proven by body cam video; 3) failed to
object to... when the warrant was actually issued in this matter
for the blood samples and when the police department actually
took custody of the blood samples; 4) failed to object to .
testimony and Exhibit 6, which was not provided in Discovery to
appellant or his counsel; 5) object to Trooper Chester Austin’s
testimony that James D. Flemones was faking that he was
sleeping allowing [sic] and then playing portions of the body
camera video, skipping through the video, not play [sic] the video
in its entirety; [and]

2. The Court erred and failed to perform to the standard required by
the Sixth Amendment to the United States Constitution when 1)
they [sic] provided instructions to all counsel of record as to what
questions can be asked of witnesses and what answers a witness
can provide; 2) the State was advised by the Court that they could
not mention any previous DWI charges of James D. Flemones,
but the Court still allowed the State to mention the charges in
front of the jury; 3) allowed the State to discuss the previous DWI
charges of James D. Flemones which severely prejudiced the jury

against him; 4) the Court utilized previous DWI charges of James
D. Flemones that occurred 18 and 15 years ago to heighten his
sentence; 5) the Court did not apply the 10 year cleansing period
to 3 of James D. Flemones [sic] DWI charges that occurred
longer than 10 years ago and clearly meets the cleansing criteria.

DISCUSSION

Ineffective Assistance of Counsel

In his first counsel-assigned error and his pro se-assigned errors, Defendant
asserts that he was denied effective assistance of counsel as guaranteed by the Sixth
Amendment to the United States Constitution.? We consider all of these claims
together.

In State v. Green, 16-938, pp. 36-37 (La.App. 3 Cir. 7/19/17), 248 So.3d 360,
383-84 (alterations in original), writ denied, 17-1348 (La. 4/27/18), 239 So.3d 836,
this court restated the standard for proving ineffective assistance of counsel:

“The standard of review on a claim of ineffective
assistance of counsel is deficiency in counsel’s
performance giving rise to a reasonable probability that,
but for counsel’s unprofessional errors, the result of the
proceeding would have been different.”

A criminal defendant is guaranteed the
effective assistance of counsel. United States
Sixth Amendment; La.Const. art. I, § 13. To
establish a claim for ineffective assistance, a
defendant must show that counsel’s
performance fell below an objective standard
of reasonableness under prevailing
professional norms; and, that counsel’s
professional errors resulted in prejudice to
the extent that it undermined the functioning
of the adversarial process and rendered the
verdict suspect.

A claim of ineffectiveness is generally
relegated to post-conviction, unless the
record permits definitive resolution on
appeal. However, when the record is

3 See also La.Const. art. 1, § 13.

sufficient for review, this Court will reach the
merits of complaints about counsel’s
performance and grant relief when
appropriate.

State v. Nargo, 15-779, pp. 7-8 (La.App. 3 Cir. 6/1/16), 193 So.3d 1263,
1268 (citations omitted).

More specifically, under Strickland v. Washington, 466 U.S. 668,
104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), for a defendant to establish that
he received ineffective assistance of counsel, he must show that (1)
“counsel’s representation fell below an objective standard of
reasonableness” and that (2) “there is a reasonable probability that, but
for counsel’s unprofessional error, the result of the proceeding would
have been different.” /d. at 687-88, 104 S.Ct. 2052. If the defendant
fails to meet one of the criteria of the two-pronged test, the reviewing
court is not required to address the other one. State v. James, 95-962
(La.App. 3 Cir. 2/14/96), 670 So.2d 461 (citing State v. James, 555
So.2d 519 (La.App. 4 Cir.1989), writ denied, 559 So.2d 1374
(La.1990)). “The object of an ineffectiveness claim is not to grade
counsel’s performance. If it is easier to dispose of an ineffectiveness
claim on the [second] ground of lack of sufficient prejudice, which [ ]
will often be so, that course should be followed.” Strickland, 466 U.S.
at 697, 104 S.Ct. 2052.

First, we conclude that the record on appeal is more than adequate for us to
decide the merits of Defendant’s ineffective assistance of counsel claims. The
pertinent claims relate to specific legal and evidentiary issues that are suitable for
redress on appeal rather than the questions of trial strategy or tactical decisions of
counsel that are better suited for an evidentiary hearing before a trial court in a post-
conviction relief hearing.

Here, Defendant’s appellate counsel specifically argues that his trial counsel
failed to provide effective assistance of counsel as guaranteed by the Sixth
Amendment by failing to seek the suppression of his medical records, including the
results of his blood alcohol tests, and for failing to object to the admission of that

evidence. He also urges that his trial counsel failed to object to the testimony of the

two witnesses who testified regarding the results of his blood alcohol tests as the
physician/patient privilege should have prohibited the disclosure of his medical
records in the absence of his consent. He further argues that “to the extent an
exception to the privilege exists, it is unconstitutional and not founded on a
compelling state interest.”

Defendant asserts that “had counsel properly objected to the disclosure and
admission of the records, or properly contested the constitutionality of the exception
to the privilege for blood alcohol concentration results, the information concerning
his blood alcohol concentration would not have been admissible at trial[.]” He
concludes that he was prejudiced by these errors as “the other evidence admitted at
trial was insufficient to prove beyond a reasonable doubt that he was intoxicated at
the time of the accident.”

The State counters that no grounds existed by which a motion to suppress the
blood evidence and test results would have succeeded. It further argues that the
privilege against communication of a medical record afforded to a patient by
La.Code Evid. art. 510 pertains to warrantless searches and that the records in this
case, were, in fact, secured from the hospital via a warrant.4 While couched
somewhat differently from Defendant’s argument, the State argues that the issue of
the blood draw is separate and apart from that of the blood alcohol test results
obtained from that blood draw, and both the blood samples and the test results were
secured pursuant to a warrant. As to the blood draw, the State points out that

“Defendant claims that ‘[t]he court made two assumptions in its ruling — first, that

‘ “[A]bsent the narrowly drawn exceptions permitting warrantless searches, we hold a
warrant is required to conduct an investigatory search of medical and/or prescription records.”
State v, Skinner, 08-2522, p. 10 (La. 5/5/09), 10 So.3d 1212, 1218.

the blood test was ordered for diagnosis of a medical condition, and second, that
Flemones had given consent for the blood draw.”” The State further points out that
La.Code Evid. art. 510(C)(2)(d), which provides an exception to a privileged
communication when a record concerns a test result for a blood alcohol level, is
presumptively constitutional, and, in fact, is constitutional as the State has a
compelling interest in apprehending and prosecuting alcohol-impaired drivers in
order to protect the health, safety, and welfare of its citizens. As such, there was no
basis for a challenge to the constitutionality of that provision.

We agree that based on the facts presented here, there were no grounds
warranting the filing or granting of a motion to suppress the results of the blood
alcohol tests. We first note that the State requested neither the blood draw nor the
blood alcohol testing performed by the hospital. This was not a blood draw that
resulted from a request by the State pursuant to the implied consent law, La.R.S
32:661. Trooper Austin first learned of the blood draw and the blood alcohol testing
after he arrived at the hospital, which led him to procure a search warrant in order to
obtain the blood samples and test results as provided by law.

The facts here are similar though clearer than those faced by the court in State
v. Fisher, 628 So.2d 1136, 1140 (La.App. 1 Cir. 1993), writ denied, 94-226, 94-321
(La. 5/20/94), 637 So.2d 474, 476, where officers who arrested the defendant on
drug charges first took him to the emergency room after he had swallowed a large
amount of cocaine. While the officers had intended to take him to the police station
following his arrest, they decided to take him to the emergency room out of concern
for his safety because his breathing was labored and they were unfamiliar with the
medical risks associated with the oral ingestion of a large amount of suspected

cocaine. The officers were fully aware that they would be responsible if the

defendant became ill once he was in jail. They told the hospital what had occurred
but did not order or direct the actions to be taken by the hospital. The hospital
pumped the defendant’s stomach, suctioning out the contents of his stomach. The
State later obtained his stomach contents, and on testing, determined that it contained
cocaine.°

The court in Fisher found no merit in the defendant’s claims as to the denial
of his motion to suppress the evidence of his stomach contents and the results of the
testing thereon:

Medical testing procedures have been held to constitute a search
of the person. State v. Carthan, 377 So.2d 308, 311 (La.1979). The
fourth amendment of the United States Constitution protects against
unreasonable searches and seizures. However, the amendment is not
intended to protect against private trespasses. State v. Gentry, 462 So.2d
624, 628 (La.1985). See also State v. Revere, 572 So.2d 117, 131
(La.App. Ist Cir.1990), writ denied, 581 So.2d 703 (La.1991).
Louisiana courts have reached a similar conclusion under the Louisiana
Constitution and have upheld the admission of items seized by private
persons. See State v. McCabe, 383 So.2d 380 (La.1980); State v.
Hutchinson, 349 So.2d 1252 (La.1977); State v. Coleman, 466 So.2d
68, 72 (La.App. 2nd Cir.), writ denied, 467 So.2d 542 (La.1985). Thus,
the prohibitions of the United States and Louisiana Constitutions
against illegal searches and seizures, and the corresponding
exclusionary rule, are aimed at governmental conduct rather than the
actions of private citizens operating independently of the government
or its agents. See Allen v. Louisiana State Board of Dentistry, 543 So.2d
908, 911-912 (La.1989).

Id. at 1139-40.

In State v. Marullo, 05-1921, pp. 2-3 (La. 3/10/06), 923 So.2d 638, 640
(alterations in original), the supreme court held that blood draws by health care
providers and testing thereon unrelated to police investigative actions do not

implicate Fourth Amendment protections, stating the following:

5 .
It was not reported whether a warrant was secured for the contents, and no issue as to
such was addressed by the trial court.

10

In addition, the decision to subject defendant to a battery of medical
tests, one in which defendant ultimately acquiesced, was not made by
the police in an attempt to secure evidence of a crime, but by the treating
physician who determined that defendant appeared too intoxicated to
make a valid waiver of an examination conducted in his best medical
interests. To the extent that the decision was made primarily for medical
as opposed to investigative or punitive purposes, the tests did not
constitute an unreasonable search under the Fourth Amendment or La.
Const. art. I, § 5, although they encompassed extensive biood work
which included tests for blood volatiles, e.g., ethanol. See United States
v. Attson, 900 F.2d 1427, 1430-33 (9th Cir.1990); Turner v. State, 258
Ark. 425, 527 8.W.2d 580, 587-88 (1975); State v. Fisher, 628 So.2d
1136, 1140-41 (La.App. Ist Cir.1993); see also 3 Wayne R. LaFave,
Search and Seizure, § 5.4(c), p. 165 (3rd ed. 1996) (“[E]vidence of
crime is sometimes inadvertently come by when a person is searched
for some purpose not directly tied to the objective of detecting criminal
activity. ... Ifa reasonable and good faith search is made of a person
for such a purpose [which may include aiding individuals who are in
danger of physical harm], then the better view is that evidence of crime
discovered thereby is admissible in court.”)(footnotes omitted). Given
their medical purposes, the tests did not implicate the defendant’s
statutory right to withhold consent as a matter of La.R.S. 32:666(A)(2);
nor, in the present context, did they implicate the physician-patient
privilege. See State v. Berry, 324 So.2d 822, 828 (La.1975)(in-custody
physical examination of accused by state physician for limited purpose
of making objective findings as to his physical condition is not
protected by the doctor-patient privilege); La.C.E. art.
510(C)(2)\(d)(excepting from health care provider-patient privilege “a
record of the results of a test for blood alcohol level or drugs taken from
a patient who is under arrest, or who was subsequently arrested for an
offense related to the test.”). The trial court therefore erred in granting
the defendant’s motion to suppress his statements made during the
examination and the results from the testing done in the course of the
in-custody physical examination.

Here, Defendant was not transported to the hospital at the request or demand
of the State. He entered the ambulance of his own accord and was transported to the
hospital, where blood was drawn from him by the hospital absent any request or
order from the State. When Trooper Austin learned this, he secured a warrant for the
blood samples and the test results. There was no warrantless search subject to Fourth
Amendment protection and no basis for a motion to suppress this evidence.

Accordingly, Defendant’s claim that his counsel was ineffective for failing to file a

1]

motion to suppress or to challenge the constitutionality of La.Code Evid. art. 510
(C)(2)(d) is without merit.

In his first pro se assigned error, Defendant asserts that his counsel failed to
perform to the standard required by the Sixth Amendment when he failed to object
to Trooper Austin’s testimony stating that: (1) Defendant’s seatbelt was unfastened;
(2) Defendant said he was headed to his sister’s house at the time of the accident;
and (3) Defendant pretended he was sleeping while at the hospital, which testimony
was not proven by the body cam video. We find no merit in this argument. Evidence
of where Defendant was going at the time of the crash, whether he was wearing a
seatbelt, and whether he was sleeping or feigning sleep at the hospital was not
relevant to the issue of guilt or innocence. Louisiana Code of Evidence Article 401
defines relevant evidence as “evidence having any tendency to make the existence
of any fact that is of consequence to the determination of the action more probable
or less probable than it would be without the evidence.” Counsel was not ineffective
for failing to challenge the testimony concerning such irrelevant issues. Thus,
Defendant cannot meet the first prong required by Strickland of proving that his trial
counsel’s inaction fell below any objective standard of reasonableness, nor has he
demonstrated any reasonable probability that this would have changed the outcome
of his trial. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984).

In his next pro se argument, Defendant contends that his trial counsel was
ineffective for failing to object to the introduction of the blood samples into evidence
as they were obtained by Trooper Austen prior to the issuance of the search warrant.

We also find no merit to this argument.

Defendant asserts that Trooper Austin took possession of Defendant’s blood
samples on October 10, 2021, at 10:25 p.m., before the search warrant was signed
on October 14, 2021. He refers to paragraph six of Trooper Austin’s report:

Upon arrival to LSP-D I had spoken with the evidence custodian, who

advised the LSP Lab would not be able to test the blood that was

coliected. The blood was placed into a BAC kit and dropped into the

Troop D evidence locker until an order could be issued to destroy the

samples. I then reviewed the medical records from Mr. Flemones, and

discovered that his Ethy] Alcohol level was 212.0 H or BAC 0.212g%.

Defendant contends that this paragraph from the report supports his claim that
Trooper Austin took possession of the blood samples before the warrant was signed.
Thus, he contends that any and all information obtained from the blood samples was
improper and should have been objected to and declared inadmissible.

Trooper Austin’s report is dated October 11, 2021, a few days before the
search warrant was signed on October 14, 2021. At first glance, it appears that
everything in the report was written on October 11, 2021, making it seem as though
Trooper Austin arrived at his office with the blood samples and reviewed
Defendant’s medical records before the search warrant was secured on October 14,
2021. It is clear from reading the report, however, that the report was not written in
its entirety on October 11th. In the paragraph immediately preceding the paragraph
set forth, Trooper Austin stated that he submitted his request for a search warrant on
October 14, 2021, and received the signed warrant from the trial judge within
minutes of his submission. Thus, it is clear that some of the report was written after
Trooper Austin received the warrant. Furthermore, Trooper Austin specifically
testified that he did not receive the “biological and medical reports” until after he

submitted the search warrant to the hospital. During Trooper Austin’s testimony, the

following colloquy took place:

13

Q. I guess the question I’m trying to lead up to, Trooper is; [sic] did
you take physical possession of the biological and medical
reports before the search warrant was granted?

Are you asking did I grab this information before the warrant?
Yes.

No.

You did not take possession of the blood —

They wouldn’t give it to me.

Okay, until they got the warrant.

> Oo F&F DOD F&F DO SY

Correct. I have to submit it before they will actually give me that
information.

There was nothing objectionable concerning this testimony and the issue of
when the warrant was secured. Defendant cannot meet either prong of the required
standard as to a claim of ineffective assistance of counsel on this basis.

While Defendant also makes the pro se argument that his trial counsel was
ineffective for failing to object to Trooper Austin’s body cam video, which was not
provided to him during discovery, as well as the related testimony, he fails to present
any argument or discussion on this issue in brief. Thus, this issue is considered
abandoned. Uniform Rules—Courts of Appeal, Rule 2--12.4.(B)(4).

In his next pro se assigned error, Defendant asserts that the trial court erred
when giving instructions to counsel for both sides that the trial was only going to be
about the current DWI charge and not any past DWI offenses, but failed, thereafter,
to uphold or enforce this instruction. He argues that the trial court allowed the State
to advise the jurors and potential jurors that Defendant was charged with his fifth
DWI and that this information prejudiced the jury against him as it painted a picture

of him being a habitual offender. Further, he asserts that the dates and elapsed time

14

between his prior DWIs were not mentioned to the jurors, and had this information
been shared with the jurors, they would have been able to conclude that there was a
great amount of time between his DWIs. He asserts that his counsel also erred and
was ineffective when he failed to object each time the State brought up his past
DWIs. He contends that his counsel should have filed motions to suppress any
mention of his past DWIs.

“The prior D.W.I. convictions used by the state in a repeat offender
prosecution under La.R.S. 14:98 are essential matters of proof at trial.” State v.
Rolen, 95-347, p. 2 (La. 9/15/95), 662 So.2d 446, 447 (per curiam). Thus, it was
necessary for the State to list Defendant’s prior DWIs in the bill of information.
La.Code Crim.P. art. 483. “Further, where there is a jury trial, the indictment
charging the multiple offenses should be read to the jury. The prior offense or
offenses must be proved as part of the state’s case; otherwise the conviction will be
set aside.” State v. Harrell, 51,966, p. 9 (La.App. 2 Cir. 4/11/18), 247 So.3d 1030,
1038. Thus, it was not error for the jury to be informed about Defendant’s prior DWI
convictions.

Finally, Defendant contends the jury should have been informed of the dates
of his prior DWIs and the time that had elapsed between each offense. We note,
however, that the jury was informed of the dates of his prior DWIs and the time
between those convictions when the bill of information was read to the jury.

For these reasons, Defendant’s pro se assignments and his counsel’s assigned
error as to the ineffective assistance of his trial counsel lack merit.

Excessive Sentence
Defendant next asserts that the sentence imposed by the trial court was

constitutionally excessive and a violation of the Eighth Amendment to the United

15

States Constitution and La.Const. art. 1, § 20 as it is nothing more than cruel and
unusual punishment and, thus, is excessive. We note that Defendant did not orally
move or file a motion to reconsider sentence in the trial court, and as such, he is
precluded from objecting to the sentence on appeal. La.Code Crim.P. art. 881.1(E).
However, in the interest of justice, we have chosen to review such an assignment as
a bare claim of excessiveness. State v. Patterson, 09-199 (La.App. 3 Cir. 11/4/09),
21 So.3d 1119.

Pursuant to La.R.S. 14:98(A)(1)(b),° the crime of operating a vehicle while
intoxicated occurs when “[t]he operator’s blood alcohol concentration is 0.08
percent or more by weight based on grams of alcohol per one hundred cubic
centimeters of blood.” The penalty for a fifth offense of operating a vehicle while
intoxicated is found in La.R.S. 14:98.4(C), which provides:

If the offender has previously received the benefit of parole,
probation, or suspension of sentence on a conviction of a fourth or
subsequent offense violation of R.S. 14:98, then on a subsequent
conviction of a fourth or subsequent offense, notwithstanding any other
provision of law to the contrary and regardless of whether the offense
occurred before or after an earlier conviction, the offender shall be fined
five thousand dollars and imprisoned at hard labor for not less than ten
nor more than thirty years. No part of the sentence shall be imposed
with benefit of parole, probation, or suspension of sentence, and no
portion of the sentence shall be imposed concurrently with the
remaining balance of any sentence to be served for a prior conviction
for any offense.

In the present case, Defendant was sentenced to twenty-three years in the

custody of the Louisiana Department of Corrections, without benefits. He was also

ordered to pay the mandatory fine of $5,000.00.

6 . . . . . .
Defendant concedes in brief that this is the applicable sentencing provision as the
predicate for no parole or suspension of sentence was established.

16

This court, in State v. Barling, 00-1241, 00-1591, p. 12 (La.App. 3 Cir.
1/31/01), 779 So.2d 1035, 1042-43 (alteration in original), writ denied, 01-838 (La.
2/1/02), 808 So.2d 331, 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, 519 U.S.

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

In State v. Soileau, 13-770, 13-771 (La.App. 3 Cir. 2/12/14), 153 So.3d 1002,
writ denied, 14-452 (La. 9/26/14), 149 So.3d 261, we applied the three-factor test
from State v. Lisotta, 98-648 (La.App. 5 Cir. 12/16/98), 726 So.2d 57, writ denied,
99-433 (La. 6/25/99), 745 So.2d 1183, in reviewing an excessive sentencing claim.
Therein, we stated, “in reviewing the defendant’s sentences, the appellate court
should consider the nature of the crime, the nature and background of the offender,
and the sentences imposed for similar crimes.” /d@. at 1005. We note that the trial
court “remains in the best position to assess the aggravating and mitigating
circumstances presented by each case.” State v. Cook, 95-2784, p. 2 (La. 5/31/96),
674 So.2d 957, 958 (per curiam), cert. denied, 519 U.S. 1043, 117 S.Ct. 615 (1996).

“While a comparison of sentences imposed for similar crimes” is helpful in

determining whether a particular sentence is excessive, we recognize, first and

17

foremost, that sentences must be individualized to the particular offender and to the
particular offense committed. Soileau, 153 So.3d at 1006.

Sentencing guidelines are provided to trial courts by La.Code Crim.P. art.
894.1(C), which further states that “[t]he court shall state for the record the
considerations taken into account and the factual basis therefor in imposing
sentence.” However, “[t]he trial court need not refer to every aggravating and
mitigating circumstance in order to comply with the article.” State v. Hopkins, 96-
1063, p. 6 (La.App. 3 Cir. 3/5/97), 692 So.2d 538, 541.

At the sentencing hearing on March 24, 2023, the trial court noted that
Defendant had been convicted of operating a motor vehicle, fifth offense. It also
recognized that Defendant was fifty-seven years of age and had been given a
probated sentence on each of his four prior convictions, thus, disallowing probation,
parole, or suspension of his sentence for this conviction. The trial court then imposed
the twenty-three-year hard labor sentence and mandatory fine. As the penalty for the
offense is imprisonment at hard labor for not less than ten nor more than thirty years,
without the benefit of parole, probation, or suspension of sentence, Defendant was
given only slightly more than a midrange sentence. The trial court directly
considered the age of the offender and his prior criminal history as it related to this
conviction.

We next consider other sentences imposed for similar crimes and similarly
situated defendants. First in State v. Robertson, 53,970 (La.App. 2 Cir. 6/30/21), 322
So.3d 937, the defendant was sentenced to serve twenty years at hard labor for a
fourth offense DWI. The defendant in that case was sixty-two years old and claimed
that because of his age, the sentence imposed by the trial court amounted to a life

sentence, which he claimed was disproportionate to his offense. The second circuit

18

found that the sentence was not excessive and that there was no abuse of the trial
court’s discretion considering the midrange sentence, the defendant’s continued
alcoho! abuse, and his criminal record.

In State v. Davis, 52,517 (La.App. 2 Cir. 5/22/19), 273 So.3d 670, writ denied,
19-928 (La. 11/25/19), 283 So.3d 496, the defendant was also sentenced to twenty-
three years at hard labor for a fourth offense DWI. The second circuit held that the
sentence was not excessive.’

Considering Defendant’s circumstances, the crime for which he was
convicted, and the limitations imposed thereby, the sentence of twenty-three years
is not excessive and was not an abuse of the trial court’s discretion.

Defendant in his pro se brief also argues that the trial court improperly utilized
his previous DWIs that had occurred fifteen and eighteen years prior, to heighten his
sentence. He further argues that the trial court failed to apply the ten-year cleansing
period to three of his prior DWIs that had occurred more than ten years before his
current offense and clearly met the cleansing criteria. Although these issues fall
outside of our bare excessiveness review, we will address them here for
completeness.

We find no merit in Defendant’s claim. The four predicate offenses were part
of the elements necessary to support the conviction, as set out above. While
defendant’s lack of a recent criminal history and the non-violent nature of the crime
charged may “weigh in favor of probation or a lesser sentence, the choice of

sentences within the statutory range lies within the sound discretion of the trial judge,

’ See also 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, where a sentence of twenty years at hard labor for DWI,
fourth offense, was found not to be excessive.

19

subject only to the constitutional prohibition against excessive sentences.” State v.
Williams, 412 So.2d 1327, 1328 (La.1982). Further, the “information upon which
trial judges may draw in determining an appropriate sentence must be wide and
varied, and not subject to the normal restrictions imposed in the guilt determination
phase of the proceedings.” /d. at nt.1 (citing Williams v. New York, 337 U.S. 241, 69
S.Ct. 1079 (1949)).

We find no merit in Defendant’s argument that the trial court erred in failing
to apply the ten-year cleansing period to three of his DWIs that occurred more than
ten years prior to his current offense. Specifically, Defendant asserts that two of his
prior DWIs were committed eighteen years and a third DWI was committed fifteen
years before his current DWI.

Louisiana Revised Statutes 14:98(C)(3) states the following regarding the
cleansing period:

For purposes of this Section, a prior conviction shall not include
a conviction for an offense under this Section, a conviction for an
offense under R.S. 14:39.1, or a conviction under the laws of any state
or an ordinance of a municipality, town, or similar political subdivision
of another state which prohibits the operation of any motor vehicle,
aircraft, watercraft, vessel, or other means of conveyance while
intoxicated, while impaired, or while under the influence of alcohol,
drugs, or any controlled dangerous substance, or as otherwise provided
by R.S. 13:1894.1, if committed more than ten years prior to the
commission of the crime for which the defendant is being tried, and
such conviction shall not be considered in the assessment of penalties
in this Section. However, periods of time during which the offender was
awaiting trial, under an order of attachment for failure to appear, or on
probation or parole for an offense described in this Paragraph, or
periods of time during which an offender was incarcerated in a penal
institution in this or any other state for any offense, including an offense
described in Paragraph (1) of this Subsection, shall be excluded in
computing the ten-year period.

At the beginning of trial, and outside the jury’s presence, the trial court held

a hearing regarding the cleansing period and its application to Defendant’s prior

convictions. Before going through each of Defendant’s prior DWIs, the State
explained that it could “barely find only one period where his cleansing would have
started.” Defendant committed his first DWI on September 24, 2002, and was
convicted on August 21, 2003. He committed his second DWI on August 31, 2003,
and was convicted on December 17, 2003. Defendant committed his third DWI on
October 3, 2005, and was convicted on September 6, 2006. He committed a fourth
DWI on June 12, 2011, and was convicted on January 13, 2012. Finally, Defendant
committed his fifth DWI (the current offense) on October 10, 2021.

The only possible lapse of a ten-year period occurred between Defendant’s
fourth and fifth DWIs. As provided in La.R.S. 14:98(3), the time Defendant was
awaiting trial, incarcerated, or on probation or parole is excluded in computing the
ten-year period. Considering that Defendant committed the fourth DWI on June 12,
2011, was convicted seven months later on January 13, 2012, was sentenced to ten
years at hard labor, three years without benefit of probation, parole, or suspension
of sentence, on March 24, 2014, and committed his fifth DWI on October 10, 2021,
the ten-year cleansing period did not lapse between his fourth and fifth DWIs. The
trial court came to the same conclusion:

The Court has made the following decisions based on the
documents presented. First of all, the Court has made a determination

that there is less than a year between the first and second DWI. There

is approximately three years between the second and third DWI. Given

the most leniency under any scenario that anyone chooses to argue

between the third and the fourth, even between the conviction of the

second DWI. Even if we were excluding probation, parole, anything

like that or include that - - even if we included that, there is between the

second and - - I’m sorry, the third and fourth DWI approximately - -

let’s see, I haven’t figure [sic] that up, eight years. Then between forth

[sic] DWI and now. The resentencing was March 24, 2014, and under

the law, State versus Waydell, the time awaiting trial and the twelve

months of probation in that case were not included in the cleansing

period, and likewise they would not be included in this cleansing
period, and I do not know when Mr. Flemones would have completed

21

his sentence in 2014. But regardless I can find no argument nor was
there any affirmative defense offered that the fourth DWI and todays’
[sic] DWI is [sic] not within the period. In other words, the Court finds
it is within the ten-year period - - it is within the ten-year period, and
therefore it’s appropriate to be applied as a fifth DWI.

In State v. Waddell, 12-111 (La.App. 4 Cir. 10/24/12), 102 So.3d 1025, and
State v. Easter, 14-1630 (La.App. | Cir. 4/24/15), 170 So.3d 1051, writ denied, 15-
979 (La. 5/20/16), 191 So.3d 1063, cert. denied, 580 U.S. 853, 137 S.Ct. 119 (2016),
the courts held that the amended cleansing period in the statute applies even if the
predicate DWIs occurred prior to the amendment. The court in Easter, 170 So.3d at
1056 (footnote omitted), stated:

As the defendant notes, the amendment of the statutory cleansing period
then provided in La. R.S. 14:98(F)(2), by Act 640 of 2008, effectively
enlarged the cleansing period. However, the Louisiana Supreme Court
has held that enlarging a statutory cleansing period does not require an
individual to defend past acts for which he has already been convicted
and punished, but to measure his future conduct in light of the
legislature’s changing perception of significant social problems. State
v. Rolen, 1995-0347 (La.9/15/95), 662 So.2d 446, 449. For purposes of
analyzing the ex post facto implications of statutes increasing penalties
for future crimes based on past crimes, “the relevant ‘offense’ is the
current crime, not the predicate crime.” Rolen, 662 So.2d at 448.
Accordingly, the trial court’s application of [sic] statutory cleansing
period as amended in 2008 was appropriate although the defendant’s
predicates were committed before the amendment. In this case the mere
subtraction of the defendant’s probationary period of three years
imposed when he pled guilty to third offense DWI on July 7, 2008
places the three predicate convictions well within the cleansing period
without considering any other excludable time periods.

Thus, regardless of whether any of Defendant’s prior convictions occurred
prior to the current version of La.R.S. 14:98, they were properly considered.
Consequently, Defendant’s claim that the ten-year cleansing period was not

complied with, is without merit.

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ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for
errors patent on the face of the record. After reviewing the record, we find one error
patent. While the transcript reflects that in addition to the fine imposed, Defendant
was ordered to pay $40.00 to the Thirty-Sixth Judicial District Public Defender’s
Office, the minutes of court do not reflect such. Where there is a discrepancy in the
transcript and the minutes, the transcript prevails. State v. Lynch, 441 So.2d 732
(La.1983). Therefore, the case is remanded and the trial court is instructed to have
the clerk amend the minutes of court for the sentencing to provide for the payment
of $40.00 to the Thirty-Sixth Judicial District Public Defender’s Office.

DECREE

Defendant’s conviction and sentence are affirmed, and the case is remanded
to the trial court with instructions to amend the court minutes to reflect that
Defendant is to pay $40.00 to the Thirty-Sixth Judicial District Public Defender’s
Office.

AFFIRMED; REMANDED WITH INSTRUCTIONS.

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