State v. Gibson

338 So.3d 1260

STATE of Louisiana, Plaintiff-Appellee

v.Robert O'Neal GIBSON, Defendant-Appellant

No. 54,400-KA

Court of Appeal of Louisiana, Second Circuit.

Judgment Rendered May 25, 2022.

LOUISIANA APPELLATE PROJECT, By: Holli Ann Herrle-Castillo, Counsel for Appellant

ROBERT S. TEW, District Attorney, JOHN G. SPIRES, Assistant District Attorney, Counsel for Appellee

Before COX, STEPHENS, and MARCOTTE, JJ.

MARCOTTE, J.

The defendant, Robert O'Neal Gibson, was convicted of one count of aggravated battery, in violation of La. R.S. 14:34, and one count of aggravated flight from an officer, in violation of La. R.S. 14:108.1(C). He was subsequently sentenced to 10 years at hard labor on each count, with credit for time served. His sentences were ordered to run concurrently to each other and consecutively to any other sentence. He appeals as excessive his concurrent sentences for each offense. For the following reasons, we affirm his convictions and sentences.

Facts and Procedural Background

In May 2019, an arrest warrant was issued for Gibson for simple burglary and conspiracy to commit simple burglary; both crimes were committed on May 27, 2019. He was accused of helping another man break into a motel room at the Preferred Inn in Bastrop, Louisiana, and steal two televisions. Video surveillance captured Gibson's co-assailant strike the window to the motel room in order to enter the room, while Gibson stood by the door acting as lookout. The video surveillance then shows the pair enter the motel room, and a short time later, Gibson exited the room with two flat-screen TVs.

On May 31, 2019, the Bastrop police received a Crime Stoppers tip that Gibson was at Kraftman Federal Credit Union in a stolen vehicle in a long line of cars at the ATM. Several police officers, including Officer Jeffery Dowdy, went to the scene. Officers pulled up on each side of Gibson's vehicle and an officer attempted to block an exit from the parking lot. Gibson was ordered to turn the vehicle off and raise his hands. Gibson placed his vehicle in reverse, accelerated, and struck the vehicle in line behind him.

Officer Dowdy reached into the driver's side of Gibson's vehicle in an attempt to turn the engine off. Gibson then turned the wheel sharply, causing the vehicle to spin. Officer Dowdy was dragged for a short distance and then the vehicle ran over his foot. The officer was treated at a hospital and released. The foot was not broken.

Gibson struck another vehicle in his escape from the credit union, and then fled the scene in the vehicle, leading officers on a high-speed chase in which he ran several stop signs and traveled at a speed in excess of 50 miles over the posted speed limit. Gibson abandoned the vehicle on a dead-end street and fled on foot. Gibson was found hiding in an apartment near the area where he abandoned the vehicle, and he was arrested.

On July 9, 2019, Gibson was charged by bill of information with one count of aggravated battery, one count of aggravated flight from an officer, and one count of hit and run. He was charged that same date in a separate bill of information with one count of simple burglary and one count of conspiracy to commit simple burglary in connection with the motel burglary.

On January 7, 2021, Gibson entered a plea of guilty to aggravated battery and aggravated flight from an officer. The state read a factual basis for Gibson's plea into the record, which Gibson affirmed, and the trial court found that there was an adequate factual basis for accepting Gibson's guilty plea to aggravated battery and aggravated flight from an officer. No sentence was agreed upon.

In exchange for the plea, the hit and run charge was dismissed, as well as the charges arising from the motel burglary. The state agreed not to charge Gibson as a habitual offender. Gibson stated that he was 37 years old and had been in jail for two years on the charges to which he pled guilty. He also provided some work history.

Gibson acknowledged that he read, understood, and signed a waiver of rights form provided by the state. The trial court properly informed Gibson of the rights waived by the guilty plea including the right to trial, the right of confrontation, and the right against compulsory self-incrimination. Gibson was informed of the maximum sentence for each count. The trial court ordered a presentence investigation ("PSI") report. The trial court informed Gibson that it did not know what his sentences would be until it viewed the PSI report, and that his sentence could be the maximum sentence. Gibson affirmed that he still intended to plead guilty. The trial court found Gibson's plea to be knowingly and intelligently entered.

Gibson appeared before the court for sentencing on April 20, 2021. Defense counsel stated that Gibson was not a violent person and that he felt "a bit fearful" at the time he was apprehended. Gibson addressed the court and stated that "I wasn't trying to hurt nobody. I was scared." The court stated that the defendant was born on July 10, 1983, and he and his younger siblings were raised primarily by their mother, but did have contact with their father, who passed away in 2008. His father worked at Conagra and his mother worked doing odd jobs at a nursing home.

Gibson dropped out of school in the tenth grade and started to "run the streets." He was suspended for fighting. He had average grades and played basketball and football in school, and started working at the age of 17 for a farmer. He started drinking at 15, using marijuana at 16, using ecstasy at 17, using cocaine at 19, and at the age of 30 he began using methamphetamines.

Gibson moved to Dallas, Texas, in 2007, after being released from incarceration. While there, he worked in a restaurant. He moved back to Louisiana in 2009 and worked at DG Foods in Bastrop. He was single with two children, ages 10 and 20, with whom he is in contact and helped raise. Gibson attended abuse treatment at Blue Walters in 2017. Gibson attended church with his grandmother, but did not regularly do so as he got older.

The trial court observed that the present offense was Gibson's sixth felony. In 2001, he was convicted of simple burglary and sentenced to six years, suspended. In 2002, he was convicted of simple burglary and theft and sentenced to serve three years at hard labor for each offense. In 2008, Gibson was convicted of unauthorized entry of a place of business and was sentenced to four years, suspended. In 2009, he was convicted of illegal possession of stolen things and possession of a firearm by a convicted felon. A charge of distribution of marijuana was dismissed. Gibson was sentenced to serve ten years at hard labor. In 2014, he was convicted of simple burglary and simple burglary of an inhabited dwelling. He was sentenced to serve 12 years at hard labor for each of those offenses. The court observed that, at that time, Gibson was facing five burglary charges, and he was allowed to plead guilty to two of the charges.

The court noted that the present offenses occurred as police officers were attempting to arrest Gibson on active warrants. The trial court noted the sentencing range for aggravated battery is up to 10 years at hard labor and a fine of up to $5,000.00, as found in La. R.S. 14:34. The trial court then stated that the sentencing range for aggravated flight from an officer turns on which provision of La. R.S. 14:108.1 applied. The trial court stated that aggravated flight from an officer carries a sentencing range of not more than five years with a fine of not more than $2,000.00. The trial court then noted that the sentencing range for whoever commits aggravated flight from an officer that results in serious bodily injury is not more than 10 years at hard labor and up to a $2,000.00 fine.

According to the trial court, Gibson's behavior created a substantial risk of death in running over someone with a car, as defined in La. R.S. 14:108.1(E)(2)(b). The trial court stated that there is a substantial risk of death, "when you run somebody over with your car, but I think clearly the section of extreme physical pain applies as someone who gets run over by a car with his foot and then being drug is going to endure extreme physical pain." The court observed that Officer Dowdy's foot was not broken. The court stated that Gibson knowingly created the risk of death or great bodily harm to more than one person with his actions.

The court found a likelihood that, during a period of a suspended sentence, Gibson would commit another crime, and that he is in need of correctional treatment or a custodial environment best provided by commitment to an institution. The court determined that a lesser sentence would deprecate the seriousness of his offenses and that Gibson committed the offenses in order to facilitate or conceal the commission of other offenses. The court did not find any mitigating factors in this case, and stated that Gibson has not had a break from incarceration, because he continues to commit crimes. The trial court noted that Gibson received a "tremendous benefit" from being allowed to plead guilty without being billed as a habitual offender and by having his other charges dismissed.

For the offense of aggravated battery, the court sentenced Gibson to ten years at hard labor. For the offense of aggravated flight from an officer, the court also sentenced Gibson to serve ten years at hard labor. The trial court ordered that his sentences be served concurrently with each other, but consecutively to any other sentence Gibson might be serving. Gibson was given credit for time served. Gibson was properly informed of the time delays to apply for post-conviction relief.

Gibson filed a motion to reconsider sentence on April 26, 2021, arguing his sentences are excessive and the trial court failed to consider any mitigating factors.

The motion was denied by the trial court the same day.

Discussion

Gibson now appeals, claiming that his sentences are excessive and that the...