ROSEMARY LEDET, Judge.
The sole issue on this criminal appeal is whether the sentences the trial court imposed on the defendant, Ray Boudreaux, are excessive. Procedurally, this appeal is before us from the trial court's judgment
On February 21, 2008, Mr. Boudreaux was charged by bill of information with five counts of attempted second degree murder, violations of La. R.S. 14:30.1 and La. R.S. 14:27. He pled not guilty to all five counts. On June 22, 2008, at the conclusion of a four-day jury trial, the jury made the following findings: (i) as to count one: guilty of the lesser included offense of aggravated battery, a violation of La. R.S. 14:34; (ii) as to counts two, three, and four: guilty of the lesser included offense of attempted manslaughter, a violation of La. R.S. 14:31 and La. R.S. 14:27; and (iii) as to count five: not guilty. The trial court denied Mr. Boudreaux's motions for new trial and post-verdict judgment of acquittal on July 23, 2008. On July 25, 2008, the trial court sentenced Mr. Boudreaux to two years at hard labor on count one, five years at hard labor on count two, three years at hard labor on count three, and ten years at hard labor on count four, with all sentences to run concurrently. Mr. Boudreaux filed a motion for appeal on the day of sentencing, which was granted.
In January 2009, this court remanded this case to the trial court for determination of counsel. On March 30, 2009, Mr. Boudreaux filed a second motion for new trial based on ineffective assistance of counsel. He also filed a motion for amendment of sentence. The State procedurally objected both in the trial court and in this court to Mr. Boudreaux's second motion for new trial. In the trial court, the State conceded that, since Mr. Boudreaux was released on an appeal bond, the sentence in this case had not commenced (been made executory) and thus the motion to amend was properly filed. See La.C.Cr.P. art. 913(B)(providing that "[a]n appeal by the defendant shall not suspend the execution of the sentence, unless the defendant is admitted to postconviction bond"); La. C.Cr.P. art. 881 (providing that "[a]lthough the sentence is legal in every respect, the court may amend or change the sentence, within the legal limits of its discretion, prior to the beginning of execution of the sentence.") The State, however, pointed out that Mr. Boudreaux had filed an appeal with this court in which the constitutionality of his sentence could be raised.
On January 6, 2010, this court granted the State's writ application stating:
On February 1, 2010, Mr. Boudreaux filed a motion to remand the case for a hearing on the motion for new trial. On March 2, 2010, this court denied that motion as moot in light of its previous determination that the trial court did not have jurisdiction to hear the defendant's motion for new trial. In addition, this court noted that "the motion for new trial was not timely filed and ineffective assistance of counsel, the subject matter of the motion, is appropriately raised in an application for post-conviction relief."
On September 29, 2010, this court affirmed Mr. Boudreaux's convictions and sentences. State v. Boudreaux, 08-1504 (La.App. 4 Cir. 9/29/10), 48 So.3d 1144, writ denied, 10-2434 (La.4/8/11), 61 So.3d 682. Thereafter, the trial court held two hearings on the motion for amendment of sentence. At the first hearing, which was
As noted at the outset, the denial of a motion to amend sentence is not an appealable judgment; however, this court's custom is to convert an improperly filed criminal appeal to a writ. See State v. Hill, 11-0683, pp. 3-4 (La.App. 4 Cir. 4/4/12), 89 So.3d 396, 399 (citing State v. Hutchinson, 99-0034 (La.App. 4 Cir. 5/17/2000), 764 So.2d 1139). We note the confusion in this case regarding the right to an appeal was the result of the pending motion to amend that had not yet been ruled on by the trial court when this court rendered its decision in Boudreaux I affirming both Mr. Boudreaux's convictions and sentences. Nonetheless, the denial of a motion to amend is not a final judgment. Accordingly, Mr. Boudreaux's appeal is converted to a writ.
The facts of this case are summarized in detail in our prior opinion. Boudreaux, 08-1504 at pp. 1-28, 48 So.3d at 1146-60. Simply stated, Mr. Boudreaux was convicted of one count of aggravated battery and three counts of attempted manslaughter for stabbing four individuals in the early morning hours of September 16, 2007, outside Utopia, a New Orleans French Quarter bar.
Mr. Boudreaux enumerates the following four assignments of error:
The gist of Mr. Boudreaux's assignments of error is that the sentences the trial court imposed on him were excessive. The following well-settled principles govern this court's review of a defendant's excessive sentence claim:
In the first assignment of error, Mr. Boudreaux argues that the sentences are disproportionate to the facts and circumstances and fail to take into account his lack of a prior criminal history. Because the lack of prior convictions is a mitigating factor pursuant to La.C.Cr.P.
The penalty for manslaughter is "imprison[ment] at hard labor for not more than forty years." La. R.S. 14:31(B). "Whoever attempts to commit any crime shall be punished ... in the same manner as for the offense attempted; such fine or imprisonment shall not exceed one-half of the largest fine, or one-half of the longest term of imprisonment prescribed for the offense so attempted, or both." La. R.S. 14:27(D)(3). The sentencing range for attempted manslaughter is thus zero to twenty years.
The penalty for aggravated battery is a fine of "not more than five thousand dollars [or imprisonment] with or without hard labor for not more than ten years, or both." La. R.S. 14:34.
The trial court sentenced Mr. Boudreaux to two years at hard labor on count one, five years at hard labor on count two, three years at hard labor on count three, and ten years at hard labor on count four, with all sentences to run concurrently. Mr. Boudreaux contends that the sentences are excessive. In support, he argues that the trial court failed to consider several of the mitigating factors listed in La.C.Cr.P. art. 894.1, including:
Mr. Boudreaux contends that factors (24) to (26) address the events of the day of the crime. He stresses that it is undisputed the victims were the instigators and the aggressors of the fight and that he acted under strong provocation. He contends that his behavior on that day is not indicative of his character. He further contends that the evidence supports that there are substantial grounds to justify his conduct even though it did not rise to the level to establish an affirmative defense (self-defense). Mr. Boudreaux contends that factors (28) to (32) suggest a sentencing court should consider the defendant's character. He contends that the evidence he presented at the three separate hearings regarding his character supports his argument that the sentences the trial court imposed on him are excessive.
The record reflects that Mr. Boudreaux was allowed to present character witnesses on three separate occasions: the July 25, 2008 sentencing hearing; the October 28, 2010 motion hearing; and the May 16, 2011 continued motion hearing.
At the July 25, 2008 sentencing hearing, Mr. Boudreaux presented three witnesses:
At the October 28, 2010 motion hearing, Mr. Boudreaux presented three witnesses: Juliette Clark, a fellow Tulane student of Mr. Boudreaux; Curtis Tsuruda, a strength coach of Mr. Boudreaux at Tulane; and Gabriel Ratcliff, a fellow football player of Mr. Boudreaux. Ms. Clark testified that she took several classes with Mr. Boudreaux, that they were friends, that he performed well academically, and that he was well thought of in school. Mr. Tsuruda testified that Mr. Boudreaux was on a scholarship to play football at Tulane, that Mr. Boudreaux was well liked, and that Mr. Boudreaux was dedicated and accountable. Mr. Ratcliff testified that he and Mr. Boudreaux were friends for several years; that Mr. Boudreaux was a loyal teammate; that Mr. Boudreaux was trustworthy; that Mr. Ratcliff remained in contact with Mr. Boudreaux; and that Mr. Ratcliff was in the wedding party when Mr. Boudreaux married his wife.
At the May 16, 2011 continued motion hearing, Mr. Boudreaux presented three witnesses: Ebony Treece, Mr. Boudreaux's sister; Clarence Robert, Mr. Boudreaux's jail mate;
Mr. Boudreaux testified on his own behalf at the May 16, 2011 hearing. At the time of that hearing, Mr. Boudreaux was employed by Rubicon Fabricators in Abbeville, Louisiana as a rigger foreman. Mr. Boudreaux testified that he had been out on bond for three and a half years, that he had not been in any legal trouble, and that all his drug tests were negative. He stated that he attended church frequently while he was growing up and that he participated in numerous church-related activities; that he was in the band and played the trumpet; that he played football and ran track; that he was involved in the Beta Club, which required community involvement and a 3.0 grade point average; that he was in the Bible Club; and that he was involved in the D.A.R.E. program, which included speaking to several fifth-grade classes. Mr. Boudreaux was recruited to play football by Tulane, where he graduated with a 3.1 cumulative grade point average.
At the hearing, the trial court allowed defense counsel to make closing remarks.
Defense counsel further argued that the mitigating factors in this case outweighed any aggravating circumstances. Defense counsel reiterated that La.C.Cr.P. art. 894.1 includes thirty-three factors to consider and argued that twenty-five of those factors were applicable to Mr. Boudreaux. Defense counsel further argued that the victims in this case were the aggressors; that "there were other weapons and instrumentality used," such as a bottle and a knife by other individuals; that the bouncer had a gun; that the victims did not retreat; and that Mr. Boudreaux was provoked and outnumbered. Finally, defense counsel reiterated the testimony establishing that Mr. Boudreaux graduated from Tulane and had a loving relationship with his family.
Following defense counsel's argument, the trial court stated that he liked "the fact that Clarence Robert came here too because Clarence Robert was in my court." Defense counsel stated that Mr. Boudreaux and Mr. Robert still maintained a relationship and that Mr. Boudreaux's actions of reading to Mr. Robert and praying with him attested to Mr. Boudreaux's character. Defense counsel then referenced La.C.Cr.P. art. 894.1 a third time. Defense counsel insisted that although neither the jury, the Fourth Circuit Court of Appeal, nor the Supreme Court found that Mr. Boudreaux acted in self-defense, the trial court "could still consider that fact when considering all other factors in looking at [Mr. Boudreaux]." Defense counsel repeatedly encouraged the trial court to impose an individualized sentence.
At the conclusion of the hearing, the trial court stated that sentencing a defendant who has a "good record" is always difficult and that he considered the fact that Mr. Boudreaux had no prior criminal history when he sentenced him. The trial court further stated that "I knew about Ray Boudreaux's background and I listened to the facts during the case as well." The trial court noted that the jury, who also listened to the facts during the trial, came back with lesser included convictions. The trial court stated:
At the time the trial court ruled on the motion to amend, Mr. Boudreaux's sentence had not yet been made executory; he was released on appeal bond. The trial court thus had the authority to amend. La.C.Cr.P. art. 881(A)(providing that the court may amend "prior to the beginning of execution of the sentence.")
Addressing the appropriateness of the relief Mr. Boudreaux was seeking (an amended sentence), the trial court noted:
Reaffirming its sentencing decision, the trial court gave the following reasons:
Articulating the factual basis behind the sentence is the goal of La.C.Cr.P. art. 894.1, not mechanical compliance with its provisions; hence, the trial court is not required to enumerate all the mitigating factors provided the record reflects that the court adequately considered the statutory guidelines. See State v. Bell, 09-0588, pp. 2-3 (La.App. 4 Cir. 10/14/09), 23 So.3d 981, 983-84. In this case, the trial court adequately considered the statutory guidelines. Indeed, the trial court expressly stated on the record that Mr. Boudreaux's background and his lack of a prior criminal history were taken into consideration. The record reflects that the trial court also considered the fact that Mr. Boudreaux had been out on an appeal bond for three and a half years at the time of the hearing. The trial court acknowledged this fact by noting that Mr. Boudreaux had not "served any time other than the initial
In the third assignment of error, Mr. Boudreaux argues that the sentences imposed on him are unconstitutionally excessive because the sentences are nothing more than a purposeless and needless infliction of pain and suffering and do not further, but in fact hinder, the goals of incarceration. In support of this argument, Mr. Boudreaux cites no appellate court case; rather, he cites unpublished Orleans Parish Criminal District Court cases.
In response, the State points out that the sentencing range for Mr. Boudreaux was between zero to twenty years for each count of attempted manslaughter. La. R.S. 14:31(B); La. R.S. 14:27(D)(3). The State further points out that in sentencing Mr. Boudreaux to a total of ten years, the trial court ordered the sentences to be served concurrently, but it could have ordered that the sentences be served consecutively. The State still further points out that in several published appellate cases, sentences of ten years or more for attempted manslaughter have been upheld.
In State v. Dubroc, 99-730 (La.App. 3 Cir. 12/15/99), 755 So.2d 297, a case cited by the State, the defendant was sentenced to twelve years at hard labor for attempted manslaughter and three years at hard labor for aggravated battery, to be served consecutively, for a total term of imprisonment of fifteen years. Finding the sentences were not constitutionally excessive, the appellate court noted that the trial court had considered the following three mitigating factors: the defendant's age, lack of a prior criminal record, and his background. The appellate court reasoned as follows:
Id. at 311. After acknowledging the violent nature of the crime, as well as the disfigurement of the victim, the appellate court concluded that, in spite of the mitigating factors, "[w]hile the sentence imposed may appear harsh, it is not so disproportionate to the severity of the crime that it shocks our sense of justice and, therefore, is not unconstitutionally excessive."
Although a comparison of sentences imposed for similar crimes may provide guidance, "[i]t is well settled that sentences must be individualized to the particular offender and to the particular offense committed." State v. Batiste, 594 So.2d 1, 3 (La.App. 1st Cir.1991). Given the particular circumstances of this case, the record does not reflect either that the sentences the trial court imposed on Mr. Boudreaux were excessive or that the trial court abused its wide discretion in sentencing him to ten years to be served concurrently. The third assignment of error thus lacks merit.
In the fourth assignment of error, Mr. Boudreaux argues that the trial court failed to consider the legislative intent when it declined to impose the minimum sentences. As discussed above, the trial court fully complied with La. C.Cr.P. art. 894.1. Mr. Boudreaux cites no authority for the proposition that a court must specifically consider legislative intent when imposing a sentence. In any event, the trial court considered punishment, retribution, or both when declining to impose either the minimum or the maximum allowable sentences. Consideration of these factors is reflected in the following statement by the trial judge at the conclusion of the May 16, 2011 hearing: "I just can't ignore — I cannot ignore one of those people received brain damage. I just can't do that." The fourth assignment of error thus lacks merit.
For the foregoing reasons, the defendant's appeal is converted to a writ. The defendant's writ is granted, but the relief the defendant seeks is denied.
