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Date: 04-14-2016

Case Style: State of Louisiana v. Andrew DeBerry

Case Number: 50,501-KA

Judge: John Larry Lolley

Court: COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA

Plaintiff's Attorney: J. SCHUY LER MARVIN, JOHN MICHAEL LAWRENCE, MARCUS RAY PATILLO

Defendant's Attorney: Bob Noel

Description: Andrew DeBerry was charged by bill of information with attempted
first degree murder of a police officer, illegal possession of stolen things
valued at $1,500.00 or more, aggravated flight from officer where human
life is endangered, and resisting a police officer with force or violence.
Pursuant to the terms of the plea agreement with the state, DeBerry agreed
to plead guilty to attempted manslaughter (a violation of La. R.S. 14:27 and
La. R.S. 14:31), illegal possession of stolen things valued over $1,500.00 (a
violation of La. R.S. 14:69(B)(1)), and aggravated flight from a police
officer (a violation of La. R.S. 14:108.1). The state nol prossed DeBerry’s
charge of resisting an officer. The plea deal further provided that DeBerry
would receive concurrent sentences after a presentence investigation (“PSI”)
was conducted, and the state agreed not to charge him as a habitual
offender. DeBerry was advised of his rights under Boykin v. Alabama, 395
U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969). Thereafter, the state
recited the factual basis for the charges, explaining that on August 13, 2014,
DeBerry led police on a high speed pursuit from Bossier Parish into
Webster Parish, Louisiana. During the chase, he drove a stolen vehicle
squarely in the direction of Louisiana State Trooper Chuck Partin, putting
Trooper Partin in great fear and danger for his life and safety. DeBerry
agreed with the facts as presented by the state, and the trial court accepted
his guilty plea.
Subsequently, DeBerry’s sentencing hearing was conducted. The
trial court noted that in Texas he had a significant juvenile record, had been
convicted of felony sexual assault as an adult, and had several other charges
pending, including burglary of an inhabitation. The trial court discussed
DeBerry’s social, educational and work history. The defendant claimed to
suffer from a substance abuse problem. The trial court specifically noted its
consideration of DeBerry’s youthfulness and the applicable sentencing
factors set forth in La. C. Cr. P. art. 894.1. The trial court explained that the
defendant had stolen the vehicle used during the chase, a Ford F-350 truck,
from a man in Oklahoma, and during the pursuit he dangerously was
weaving in and out of traffic on I-20. Given DeBerry’s criminal history, the
significant benefit he received by pleading guilty, and the fact that his
actions needlessly endangered human life, the trial court sentenced him for
the following convictions: 19˝ years at hard labor for attempted
manslaughter; 5 years at hard labor for illegal possession of stolen things;
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and, 1˝ years at hard labor for aggravated flight from an officer. The
sentences were all to be served concurrently.
In response, DeBerry filed a motion to reconsider his sentences
arguing that his 19˝-year sentence for attempted manslaughter was
excessive because the victim was not injured. He also claimed that the trial
court placed insufficient weight on his youthful age. The motion was
denied. DeBerry now appeals.
DISCUSSION
DeBerry raises two assignments of error, both related to his sentence.
He contends that his 19˝-year hard labor sentence, imposed for his
attempted manslaughter conviction, is excessive. In support of his position,
DeBerry points out that he was only 17 years old at the time of the crimes
and that he was high on drugs during the entire episode. Furthermore, he
argues that the police officer who was the subject of the attempted
manslaughter was not actually injured. DeBerry claims that due to his age,
and the fact that these types of high speed chases are commonly shown on
television, he did not comprehend the deadly nature of his actions. We
disagree.
An appellate court utilizes a two-pronged test in reviewing a sentence
for excessiveness. First, the record must show that the trial court took
cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial judge
is not required to list every aggravating or mitigating circumstance so long
as the record reflects that he adequately considered the guidelines of the
article. State v. Smith, 433 So. 2d 688 (La. 1983); State v. Lathan, 41,855
4
(La. App. 2d Cir. 02/28/07), 953 So. 2d 890, writ denied, 2007-0805 (La.
03/28/08), 978 So. 2d 297. The articulation of the factual basis for a
sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical
compliance with its provisions. Where the record clearly shows an adequate
factual basis for the sentence imposed, remand is unnecessary even where
there has not been full compliance with La. C. Cr. P. art. 894.1. State v.
Lanclos, 419 So. 2d 475 (La. 1982); State v. Swayzer, 43,350 (La. App. 2d
Cir. 08/13/08), 989 So. 2d 267, writ denied, 2008-2697 (La. 09/18/09), 17
So. 3d 388. The important elements which should be considered are the
defendant’s personal history (age, family ties, marital status, health,
employment record), prior criminal record, seriousness of the offense, and
the likelihood of rehabilitation. State v. Jones, 398 So. 2d 1049 (La. 1981);
State v. Ates, 43,327 (La. App. 2d Cir. 08/13/08), 989 So. 2d 259, writ
denied, 2008-2341 (La. 05/15/09), 8 So. 3d 581. There is no requirement
that specific matters be given any particular weight at sentencing. State v.
Shumaker, 41,547 (La. App. 2d Cir. 12/13/06), 945 So. 2d 277, writ denied,
2007-0144 (La. 09/28/07), 964 So. 2d 351.
Second, the court must determine whether the sentence is
constitutionally excessive. A sentence violates La. Const. Art. I, § 20, if it
is grossly out of proportion to the seriousness of the offense or nothing
more than a purposeless and needless infliction of pain and suffering. State
v. Dorthey, 623 So. 2d 1276 (La. 1993); State v. Bonanno, 384 So. 2d 355
(La. 1980). A sentence is considered grossly disproportionate if, when the
crime and punishment are viewed in light of the harm done to society, it
5
shocks the sense of justice. State v. Weaver, 2001-0467 (La. 01/15/02), 805
So. 2d 166; State v. Robinson, 40,983 (La. App. 2d Cir. 01/24/07), 948 So.
2d 379.
As a general rule, maximum or near maximum sentences are reserved
for the worst offenders and the worst offenses. State v. Woods, 41,420 (La.
App. 2d Cir. 11/01/06), 942 So. 2d 658, writ denied, 2006-2768, 2006-2781
(La. 06/22/07), 959 So. 2d 494. However, in cases where the defendant has
pled guilty to an offense which does not adequately describe his conduct,
the general rule does not apply and the trial court has great discretion in
imposing the maximum sentence for the pled offense. This is particularly
true in cases where a significant reduction in potential exposure to
confinement has been obtained through a plea bargain and the offense
involves violence upon a victim. State v. McKinney, 43,061 (La. App. 2d
Cir. 02/13/08), 976 So. 2d 802, 805.
The offense of attempted manslaughter is punishable by
imprisonment for up to 20 years at hard labor. La. R.S. 14:27; La. R.S.
14:31.
Here, the trial court did not abuse its discretion in sentencing DeBerry
to 19˝ years at hard labor for his attempted manslaughter conviction,
regardless of his age. The record makes clear that the trial court specifically
considered the applicable sentencing factors set forth in La. C. Cr. P. art.
894.1 and DeBerry’s youthful age. The trial court noted that DeBerry had
an extensive criminal history, including a felony sexual assault conviction
and several other pending charges (including burglary of an inhabited
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building ) in Texas. The trial court also pointed out that the facts of the
case, including the risk of death or great bodily injury caused by the
defendant’s actions, justified the sentence imposed. DeBerry benefitted
greatly by accepting the state’s plea offer and pleading guilty to a reduced
charge of attempted manslaughter.
The sentence imposed is not constitutionally excessive. Although
DeBerry received an almost maximum sentence for his attempted
manslaughter conviction, he received a substantial benefit by accepting the
plea agreement, because otherwise he faced a sentence of up to 50 years’
imprisonment for his attempted first degree murder charge. Given his
criminal history and the risk of danger DeBerry caused by his actions, the
sentence imposed is not grossly disproportionate to the crime and does not
shock the sense of justice, regardless of DeBerry’s age.

Outcome: Considering the foregoing, the convictions and sentences of Andrew
DeBerry are affirmed.

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