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State v. Abshire

Court of Appeals of Louisiana, Third Circuit

March 13, 2019

STATE OF LOUISIANA
v.
ALBERT ABSHIRE

          APPEAL FROM THE TWELFTH JUDICIAL DISTRICT COURT PARISH OF AVOYELLES, NO. 2017-201721 HONORABLE WILLIAM J. BENNETT, DISTRICT JUDGE

          Charles A. Riddle, III District Attorney Counsel for Appellee: State of Louisiana

          Anthony F. Salario Assistant District Attorney Counsel for Appellee: State of Louisiana

          Annette Fuller Roach Louisiana Appellate Project Counsel for Defendant/Appellant: Albert Abshire

          Court composed of John D. Saunders, Phyllis M. Keaty, and John E. Conery, Judges.

          PHYLLIS M. KEATY JUDGE

         On July 25, 2017, Defendant, Albert Abshire, was charged by bill of information with hit-and-run driving, a violation of La.R.S. 14:100. On November 13, 2017, Defendant withdrew his initial plea of not guilty and entered a plea of guilty to the charged offense. The trial court ordered a pre-sentence investigation report (PSI), which was filed into the record at the December 14, 2017 sentencing hearing. The trial court sentenced Defendant in open court to ten years of imprisonment at hard labor under the provisions of La.R.S. 14:100(C)(2). Defendant timely filed a motion to reconsider sentence. The trial court denied the motion and set a hearing for Defendant to proffer the evidence he would have offered in support of the motion to reconsider.

         Defendant now appeals his sentence, alleging that: (1) the sentence imposed "is nothing more than cruel and unusual punishment and, thus, excessive" under U.S. Const. amend. VIII and La.Const. art. 1, § 20; and (2) the trial court "erred in making improper and unsubstantiated assumptions in arriving at the proper sentence" and in giving "undue weight and consideration to Appellant's prior record of arrests," in violation of the Due Process Clause of U.S. Const. amend. V.

         FACTS

         Defendant's appellant brief contains the following facts which the trial court recited at the sentencing hearing:

The evidence is undisputed that on April 29, 2017 Steven Lee was struck by a vehicle operated by Albert Abshire. Steven Lee died as a result of the impact from the vehicle. The evidence is further clear that Albert Abshire knew that he had hit something, whether an individual or something else, stopped his vehicle and noticed the damage; but did not return to the scene. Instead of returning to the scene and giving his identity and attempting to render aid, Abshire drove to his home in Rapides Parish, more than thirty (30) miles away, and attempted to hide his vehicle. The evidence is clear that Abshire was leaving the Paragon Casino at the time that the accident occurred. When contacted by the police Abshire admitted that he "hit something leaving the casino," but claimed that he did not know what he hit. Evidence has been submitted confirming that Abshire stopped at the Chevron Station and looked at the damage to his vehicle, which damage was serious, however, Abshire did not return to the scene and instead drove home.

         The PSI contained additional information which is pertinent to this appeal. A woman who witnessed an accident near the Paragon Casino in Avoyelles Parish called 911 to request an ambulance. That woman told a detective from the Marksville Police Department (the MPD) that she saw the victim step into the road from a sidewalk where he was struck by an older model white Chevrolet pickup truck being driven by a white male. According to the woman, the victim was thrown into the air and parts of the truck fell onto the roadway, but the driver of the truck did not stop.

         After receiving a phone call indicating that Abshire may have been involved in the accident, Major Eric Jacobs with the MPD reviewed video surveillance from the casino that showed a white truck leaving the casino in the direction of the accident around the time of the accident. The license plate belonged to Abshire. Officers went to Abshire's home where they found a white truck in a locked shed that appeared to be in the process of being repaired. After being fully advised of his Miranda[1] rights, Abshire admitted to knowing that he "hit something," but he did not go back to see what had been struck with his vehicle. Based on that information, Abshire was arrested.

         Approximately four days after the accident, a second woman advised the MPD that when she was at a Chevron station on the night of April 28, 2017, she saw a white male inspecting damage to the passenger side of a white Chevrolet or GMC truck. She recognized Abshire's picture as the man she saw at the gas station.

         DISCUSSION

         Assignment of Error Number Two

         In his second assignment of error, Defendant argues that he should be resentenced because the "trial court erred in making improper and unsubstantiated assumptions in arriving at the proper sentence to impose" and in giving "undue weight and consideration to [his] prior record of arrests," in violation of his right to due process. We will discuss this assigned error first, because, if it has merit, Defendant's sentence will be vacated, and this case will be remanded to the trial court for resentencing, thus making Defendant's remaining assigned error moot.

         In his motion to reconsider sentence, Defendant asserted that his sentence was "excessive, especially for the following reasons:"

1. The lack of a felony conviction;
2. The victim of the defendant's criminal conduct induced or facilitated its commission;
3. The defendant has at least partially compensated the victim of his criminal conduct for the damage or injury he sustained;
4. The defendant had no knowledge that he struck a person when he was driving in his lane of travel at night.

         The evidence proffered at the hearing on Defendant's motion to reconsider sentence consisted of brief argument by defense counsel and a brief statement by Defendant. Our examination of that evidence reveals that the arguments presented were limited to the grounds asserted in Defendant's motion to reconsider.

         In contrast, Defendant now argues on appeal that the trial court made assumptions based on Defendant's "incomplete arrest record." More specifically, Defendant claims that the trial court improperly assumed that Defendant "had received help from someone in making the charges go away." Defendant further posits that the trial court considered Defendant's "unadjudicated criminal conduct at face value without being provided a full factual basis for the conduct from which the judge could closely evaluate and carefully examine the weight of the evidence."

         Under La.Code Crim.P. art. 881.1(E), the failure to make or timely file a motion to reconsider sentence or to include a specific ground for reconsideration precludes a defendant from raising an objection to the sentence or urging any ground not raised in the motion on appeal. See State v. Barling, 00-1241, 00-1591 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035, writ denied, 01-838 (La. 2/1/02), 808 So.2d 331. In State v. Mims, 619 So.2d 1059, 1059-60 (La.1993), the supreme court explained:

If the defendant does not allege any specific ground for excessiveness or present any argument or evidence not previously considered by the court at original sentencing, then the defendant does not lose the right to appeal the sentence; the defendant is simply relegated to having the appellate court consider the bare claim of excessiveness. Article 881.1 only precludes the defendant from presenting arguments to the court of appeal which were not presented to the trial court at a point in the proceedings when the trial court was in a position to correct the deficiency.

         Given Defendant's failure to raise, in either his motion to reconsider or in the proffer he offered at the hearing on that motion, the issue of whether the trial court made improper and unsubstantiated assumptions in fashioning Defendant's sentence, we conclude that Defendant is barred from making those arguments on appeal. Nevertheless, we will consider Defendant's claim that his ten-year sentence is excessive in our discussion of his first assigned error.

         Assignment of ...


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