f APPEALED FROM THE NINETEENTH JUDICIAL DISTRICT COURT IN AND FOR THE PARISH OF EAST BATON ROUGE

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1 NOT DESIGNATED FOR PUBLICATION COURT OF APPEAL FIRST CIRCUIT 2009 KA 0069 VERSUS FREDRICK R WILSON mi LJ Judgment Rendered f APPEALED FROM THE NINETEENTH JUDICIAL DISTRICT COURT IN AND FOR THE PARISH OF EAST BATON ROUGE JUN DOCKET NUMBER SECTION 2 THE HONORABLE RICHARD ANDERSON JUDGE Hillar C Moore III District Attorney And Attorneys for Appellee State of Louisiana Jaclyn C Chapman Tracey Barbera Assistant District Attorneys Baton Rouge Louisiana Dele A Adebamiji Baton Rouge Louisiana Attorney for DefendantAppellant Fredrick R Wilson BEFORE PETTIGREW McDONALD HUGHES JJ

2 McDONALD J The defendant Fredrick R Wilson originally was charged by bill of information with one count of aggravated obstruction of a highway of commerce count one a violation of La R S and driving while intoxicated DWI fourth offense count two a violation of La R S E He initially pled not guilty Thereafter pursuant to a plea agreement the state dismissed count one and the defendant withdrew his former not guilty plea and pled guilty as charged to count two The state also agreed to forego any habitual offender proceedings Following a thorough Boykin examination the court accepted the defendant s guilty plea The court ordered a presentence investigation report and set the matter for sentencing at a later date At the conclusion of a sentencing hearing the trial court sentenced the defendant to imprisonment at hard labor for twenty years and a fine of five thousand dollars The court also ordered that the vehicle the defendant was driving at the time of the commission of the offense be forfeited and sold The defendant now appeals urging in a single assignment of error that the trial court erred in imposing an excessive sentence Finding no merit in the assigned error we affirm the defendant s conviction and sentence FACTS Because the defendant pled guilty the facts of the offense were never fully developed for the record The factual basis provided at the Boykin hearing was as follows Your honor on May 26t 2007 there was a 911 call that there was a black male that looked unconscious behind the wheel of a vehicle Baton Rouge City Police officers responded to the location 1420 hours at the 1600 block of Foss Drive Upon approximately arriving they observed the defendant sitting in the driver s seat with his foot on the brake the car still in gear and his vehicle was facing the wrong way on the wrong side of the street Upon making contact with the defendant he appeared to be asleep or passed out EMS was then notified When EMS responded his blood sugar and vitals were fine The defendant complained of being tired In addition he complained he informed EMS something about drinking beer The 2

3 defendant then spoke with officers Upon coming into contact with the defendant when he appeared to be awake and conscious he had very poor balance He used the truck to steady himself He had red glassy eyes a strong odor of alcoholic beverage on his breath and his speech was slurred and he tended to repeat himself several times as he was talking to police officers He was also unable to provide Im sorry During the investigation the police have a valid license plate or inspection defendant did very poorly on his field sobriety blow on his breathalyzer test officer saw that he didn t sticker on his vehicle The test and refused to The defendant has previously been convicted of DWI or operating a vehicle while intoxicated on the previous occasions listed in the bill of information on those dates with those docket numbers ASSIGNMENT OF ERROR In his sole assignment of error the defendant contends the trial court erred in imposing an excessive sentence Specifically he argues that the trial court failed to consider La Code Crim P art and or other relevant mitigating factors when imposing sentence The defendant claims the court unduly preoccupied by his previous record failed to favor rehabilitation over incarceration He asserts that he is not a violent person he suffers with alcoholism and is in need of treatment He further notes that he accepted responsibility for his actions by pleading guilty and the trial court should have considered this in mitigation In light of these mitigating factors the defendant contends the sentence of twenty years at hard labor is disproportionate to the severity of the crime Article I Section 20 of the Louisiana Constitution prohibits the imposition of excessive punishment Although a sentence may be within statutory limits it may violate a defendant s constitutional right against excessive punishment and is subject to appellate review See State v Sepulvado 367 So 2d La 1979 State v Lanieu p 12 La App 1st Cir So 2d writ denied La So 2d 962 A sentence is constitutionally excessive if it is grossly disproportionate to the severity of the offense or is nothing more than a purposeless and needless infliction of pain and suffering See State v Dorthey 623 So 2d La 1993 A sentence is 3

4 grossly disproportionate if when the crime and punishment are considered in light of the harm done to society it shocks the sense ofjustice See State v Hogan 480 So 2d La 1985 A trial court is given wide discretion in the imposition of sentences within statutory limits and the sentence imposed by it should not be set aside as excessive in the absence of manifest abuse of discretion State v Herrin 562 So 2d 1 11 La App 1st Cir writ denied 565 So 2d 942 La 1990 The Louisiana Code of Criminal Procedure sets forth items that must be considered by the trial court before imposing sentence La Code Crim P art The trial court need not cite the entire checklist of Article but the record must reflect that it adequately considered the criteria Herrin 562 So 2d at 11 In light of the criteria expressed by Article a review for individual excessiveness should consider the circumstances of the crime and the trial court s stated reasons and factual basis for its sentencing decision State v Watkins 532 So 2d La App 1 st Cir 1988 Remand for full compliance with Article is unnecessary when a sufficient factual basis for the sentence is shown State v Lanclos 419 So 2d La 1982 Prior to imposing sentence in this case the trial court reviewed the facts of the offense and the presentence investigation report PSI which contained the defendant s personal and criminal history The court also reviewed letters from the defendant and his mother requesting leniency The PSI indicated that the defendant has been arrested on thirty three occasions and has thirteen convictions several of which are alcohol related felony convictions The PSI also contained information indicating that defendant has been placed on probation or parole eleven times and was on parole for his last DWI conviction at the time of the commission of the instant offense The defendant has on numerous occasions had his probation or parole revoked for failure to comply with the conditions of 4

5 supervision Based upon the defendant s lengthy criminal history and his failure to respond to past rehabilitative efforts the PSI recommended that defendant be given the maximum prison term allowed by law The court noted that the defendant had numerous opportunities to seek treatment for alcoholism following his five prior DWI convictions He failed to do so even when substance abuse treatment was included as a condition of his supervision The trial court concluded that the defendant needed correctional treatment in a custodial environment as he is clearly a threat to public safety noting h e is lucky that he hasn t killed anyone yet Our review of the record indicates that the trial judge s reasons for sentence demonstrate compliance with Art Although the trial judge may not have articulated every aggravating and mitigating factor he gave extensive reasons for the sentence imposed demonstrating awareness and consideration of the applicable factors The crime of driving while intoxicated fourth offense is punishable by imprisonment with or without hard labor for not less than ten nor more than thirty years La R S E Despite the PSI recommendation of the maximum sentence allowed by law the defendant was sentenced to twenty years at hard labor a mid range sentence Based on the entire record before us we find no abuse of discretion by the trial court in sentencing the defendant to twenty years at hard labor Contrary to the defendant s claim the sentence is neither grossly disproportionate to the severity of the crime and the defendant s criminal history nor so disproportionate as to shock our sense ofjustice Accordingly this assignment of error lacks merit For the foregoing reasons the defendant s conviction and sentence are affirmed CONVICTION AND SENTENCE AFFIRMED 5