|2In this criminal proceeding, defendant appeals his sentence to life imprisonment and further assigns as error the trial court’s denial of his motion to quash the bill of information. We affirm defendant’s conviction but vacate his life sentence, finding it constitutionally excessive, and remand this matter to the trial court for resentencing.
STATEMENT OF THE CASE
On October 14, 2010, the Jefferson Parish District Attorney filed a bill of information charging defendant, Benjamin Bruce, with aggravated arson in violation of La. R.S. 14:51. Defendant pleaded not guilty at arraignment. On March 22, 2011, the matter proceeded to trial and a 12-person jury returned a verdict of guilty as charged of aggravated arson.
l-jOn April 4, 2011, the trial court sentenced defendant to fifteen years imprisonment at hard labor, the first two years to be served without benefit of parole, probation, or suspension of sentence. On that same date, the state filed a multiple offender bill of information alleging defendant to be a fourth felony offender. On June 2, 2011, the trial court found defendant to be a fourth felony offender, vacated his original sentence, and imposed an enhanced sentence of life imprisonment at hard labor. This timely appeal follows. FACTUAL BACKGROUND
Ms. Pinkey Miles resided in a trailer located at 623 Richard Avenue in River Ridge, Louisiana, with her sixty-five year-old mother, Barbara Brown, and her seventeen year-old son, Kendrick Miles. On the afternoon of August 26, 2010, Ms. Miles played a game of cards and had a few drinks with neighbors. Ms. Miles testified that her ex-boyfriend, defendant, later arrived to play and that she asked him to return ten dollars she had previously loaned him. When defendant refused to pay the ten dollars, Ms. Miles punched defendant in the face and left.
A few hours later, two unknown individuals broke down the gate outside of Ms. Miles’ trailer, pushed a window air conditioning unit through the window, and yelled into the trailer, “Ya’ll house is on fire. Ya’ll house is on fire.” Ms. Miles ran out of the trailer and extinguished the fire while her son, Kendrick, helped his grandmother, Ms. Brown, exit the trailer safely.
At trial, Ms. Danielle Lathers, a neighbor-witness, testified that she observed defendant and Ms. Miles in a heated dispute on the evening of August 26, 2010, ^regarding an unpaid debt and witnessed Ms. Miles strike defendant in the face. Ms. Lathers further testified that she and her boyfriend, while sitting on her porch at approximately 8:30 a.m., noticed defendant’s pick-up truck traveling down the road to Ms. Miles’ trailer. Ms. Lathers and her boyfriend walked to the corner and noticed defendant exit the truck with something in his hand. Ms. Lathers testified that defendant walked to Ms. Miles’ trailer and then walked back to his truck. A few minutes later, she noticed smoke coming from the trailer. Ms. Lathers did not contact police regarding the incident; she testified that defendant’s actions involving Ms. Miles’ trailer is not her “business.” Ms. Lathers further stated that she did not walk to Ms. Miles’ trailer that evening to inform her of the smoke but instead retired to her home for the evening.
Investigator Thomas Lowe of the Jefferson Parish Fire Department, an expert in the field of fire origin and cause, testified that he arrived at the scene and determined that the fire began in the garden area and was ignited with an accelerant, gasoline.
Deputy Latasha Thomas of the Jefferson Parish Sheriffs Office also reported to the scene. Ms. Miles told Deputy Thomas that she suspected her ex-boyfriend (defendant) could be responsible for the fire. Detective Steven Abadie of the Jefferson Parish Sheriffs Office later arrived and learned from Ms. Miles of a potential neighbor-witness, Ms. Lathers. Detective Abadie met with Ms. Lathers, who identified defendant by photograph as the perpetrator. Detective Abadie took Ms. Lathers’ recorded statement. Having obtained defendant’s address from Ms. | sLathers, Detective Abadie proceeded to defendant’s residence and arrested him for the aggravated arson of Ms. Miles’ trailer.
Detective Abadie testified that he advised defendant of his rights and transported him to the police station, where defendant gave a recorded statement. In his statement, defendant told Detective Abadie that on the afternoon of August 26, 2010, Ms. Miles struck him in the face with a pair of brass knuckles over an unpaid debt of ten dollars. Defendant then admitted that in the early morning hours of August 27, 2010, he became intoxicated,
DISCUSSION
In his first assignment of error, defendant asserts that the trial court erred in denying his motion to quash the bill of information. On the second and final day of trial
The purpose of a bill of information is to inform a defendant of the nature and cause of the accusation against him as required by the Louisiana Constitution, art. I, § 13. State v. Stevenson,
|fiThe indictment shall be a plain, concise, and definite written statement of the essential facts constituting the offense charged. It shall state for each count the official or customary citation of the statute which the defendant is alleged to have violated. Error in the citation or its omission shall not be ground for dismissal of the indictment or for reversal of a conviction if the error or omission did not mislead the defendant to his prejudice.
State v. Michels,
In the present case, defendant’s charge is aggravated arson in violation of La. R.S. 14:51, which provides, “[ajggravated arson is the intentional damaging by any explosive substance or the setting of fire to any structure, watercraft, or moveable whereby it is foreseeable that human life might be endangered.” La. C. Cr. P. art. 465 authorizes the use of short-form indictments in charging certain offenses. State v. Page, 08-531, p. 16 (La.App. 5 Cir. 11/10/09),
A.B. committed aggravated arson of a dwelling (or structure, watercraft, or movable, as the case may be). If the words “belonging to another and with the damage amounting to_dollars” are added, simple arson will be included in the charge.
The Louisiana Supreme Court has specifically approved the use of this short-form indictment to a charge of aggravated arson. State v. Mason,
In the present case, defendant does not claim that the alleged defective bill of information prejudiced his defense in any way.
| ./‘Benjamin H. Bruce ... on the 27th day of August [2010] ... in the Parish [of Jefferson] ... violated R.S. 14:51 in that he did commit aggravated arson of 623 Richard Avenue, River Ridge, LA 70128 belonging to another Barbara Brown, and with the amount of damage being over $500.”
We find the bill of information in this case complies with the short form authorized by La. C. Cr. P. art. 465(A)(2). Accordingly, this assignment of error is without merit.
In his second assignment of error, defendant claims that his life sentence— the statutory maximum — as a fourth felony offender is constitutionally excessive. Defendant did not file a motion to reconsider sentence, nor did he state specific grounds upon which the motion would have been based. Defendant is, therefore, limited to a bare review of his sentence for constitutional excessiveness. State v. Hills, 03-716, p. 12 (La.App. 5 Cir. 12/9/03),
The trial court adjudicated defendant a fourth felony offender. As a fourth felony offender, defendant faced the following penalty as provided by La. R.S. 15:529.1(A)
(4) If the fourth or subsequent felony is such that, upon a first conviction the offender would be punishable by imprisonment for any term less than his natural life then:
|R(a) The person shall be sentenced to imprisonment for the fourth or subsequent felony for a determinate term not less than the longest prescribed for a first conviction but in no event less than twenty years and not more than his natural life.
State v. Pettus,
Because the underlying conviction of aggravated arson is punishable by a term of imprisonment less than defendant’s natural life
The Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. A sentence is considered excessive if it is grossly disproportionate to the offense or imposes needless and purposeless pain and suffering. State v. Horne,
In reviewing a sentence for ex-cessiveness, an appellate court must consider the crime and the punishment in light of the harm to society and gauge whether the penalty is so disproportionate as to shock its sense of justice. State v. Lobato,
Defendant’s sentence is within the statutory limits provided by La. R.S. 15:529.1(A). However, the imposition of a sentence, although within the statutory limits, may still violate a defendant’s constitutional right against excessive punishment. State v. Smith, 2001-2574 (La.1/14/03),
Concerning the first factor, the nature of the crime, this Court has found that if the trial judge who imposes the enhanced sentence in defendant’s multiple offender adjudication is the same judge who imposed defendant’s original sentence, that judge is deemed to be aware of the nature of the crime for the underlying offense. State v. Woods, 09-399, pp.
Next, regarding the nature and background of the offender, defendant has prior convictions of theft in violation of La.
Finally, considering sentences imposed for similar crimes in this and other courts, the jurisprudence reveals that discretionary maximum life sentences imposed for a fourth felony offender are typically reserved for those defendants with a lengthy criminal history or a tendency to commit violent crimes. See State v. Pettus, 10-777, p. 5 (La.App. 5 Cir. 5/24/11),
Defendant’s prior crimes are all non-violent, theft-related crimes and are spread out over time (1989, 1995, and 2006). The evidence introduced at trial in connection with the underlying offense, aggravated arson, demonstrates that defendant set fire to a flower bed abutting Ms. Miles’ trailer in the middle of the night while three people slept inside. The evidence further shows that defendant was intoxicated at the time of the offense and acting in a state of revenge over a, previous argument with the victim, Ms. Miles. Although Ms. Miles testified that the trailer sustained property damage in the amount of $600.00, the evidence also | iashows that the fire was extinguished quickly without loss of life or injury to the occupants of the trailer.
Although the underlying offense, aggravated arson, is a violent crime described by the trial judge as a “very serious
Furthermore, this particular life sentence imposes an undue burden on the taxpayers of the state, who must feed, house, and clothe this defendant for life. As this fifty year-old defendant ages, these costs will only increase due to the need for geriatric health treatments. See State v. Hayes,
Under the specific facts of the record before us and considering the background of this defendant, we find defendant’s life sentence to be constitutionally excessive.
ERRORS PATENT
Defendant requests an errors patent review. This Court routinely reviews the record before us for errors patent in accordance with La. C. Cr. P. art. 920 and State v. Oliveaux,
The record indicates that defendant’s original sentence on his underlying aggravated arson conviction was illegally lenient because the trial court did not impose the mandatory fine as provided in La. R.S. 14:51. However, corrective action is not required because any defect in the original sentence became moot after the original sentence was vacated prior to defendant’s sentencing as a fourth felony offender. See State v. Jones, 10-281, p. 7 (La.App. 5 Cir. 10/26/10),
The record also reflects that defendant’s enhanced sentence was illegally lenient as the trial court did not order his sentence to be served without benefit of probation or suspension of sentence in accordance with La. R.S. 15:529.1(G). However, this error does not require corrective action because under La. R.S. 15:301.1, the “without benefits” provision is self-activating. State v. McKenzie, 09-893, p. 13 (La.App. 5 Cir. 2/15/11),
Last, a review of the record reveals that defendant was not advised of his multiple offender rights. La. R.S. 15:529.1(D)(l)(a) provides that the trial court shall inform a defendant of the allegations contained in the bill of information and 114of his right to be tried as to the truth thereof, and shall require the offender to say whether the allegations are true. State v. Reichard, 04-110, p. 10 (La.App. 5 Cir. 7/27/04),
Generally, the failure of the trial court to advise a defendant of his right to a hearing and his right to remain silent does not constitute reversible error where the defendant’s multiple offender status is established by competent evidence offered by the State at hearing rather than by admission of the defendant. State v. Reichard, 04-110, p. 10 (La.App. 5 Cir. 7/27/04),
Accordingly, we affirm defendant’s conviction, vacate his life sentence — finding it constitutionally excessive — and remand this matter to the trial court for resentenc-ing.
CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED FOR RESENTENCING
Notes
. Defendant, in his statement to investigating authorities, stated that Ms. Miles used "brass
. Detective Lowe obtained a soil sample from the garden area, which lab tests revealed contained gasoline. The parties further stipulated to the testimony of Thomas Angelico, an expert in the field of fire debris, who examined the soil sample and confirmed the presence of gasoline.
. The state argues that because defendant filed his motion to quash after the commencement of trial, his motion is untimely under La. C. Cr. P. art. 535(A)(2). However, the Louisiana Supreme Court has held that a motion to quash the bill of information may be urged at trial prior to verdict. Further, a defendant’s objection at trial to an indictment preserves the issue for appellate review. See State v. James,
. Although defendant does not claim prejudice in this case from the alleged defective
. The Louisiana Supreme Court has held a defendant should be sentenced pursuant to the version of La. R.S. 15:529.1 in effect at the time of the commission of the charged offense. State v. Parker, 2003-0924 (La.4/14/04),
. At the time of the offense, La. R.S. 14:51 provided, "[w]hoever commits the crime of aggravated arson shall be imprisoned at hard labor for not less than six nor more than twenty years, and shall be fined not more than twenty-five thousand dollars. Two years of such imprisonment at hard labor shall be without benefit of parole, probation, or suspension of sentence."