State of Louisiana v. Tashonty C Toney

STATE OF LOUISIANA * NO. 2021-KA-0131

VERSUS *
COURT OF APPEAL
TASHONTY C TONEY *
FOURTH CIRCUIT
*
STATE OF LOUISIANA
*******

APPEAL FROM
CRIMINAL DISTRICT COURT ORLEANS PARISH
NO. 545-469, SECTION “A”
Honorable Laurie A. White, Judge
******
Judge Sandra Cabrina Jenkins
******
(Court composed of Judge Joy Cossich Lobrano, Judge Sandra Cabrina Jenkins,
Judge Paula A. Brown)

LOBRANO, J., CONCURS IN THE RESULT.
BROWN, J., CONCURS IN THE RESULT

Jason Rogers Williams, District Attorney
G. Benjamin Cohen, Chief of Appeals
David B. LeBlanc, Assistant District Attorney
Orleans Parish District Attorney’s Office
619 S. White Street
New Orleans, LA 70119

COUNSEL FOR STATE OF LOUISIANA/APPELLEE

Ralph Shipley Whalen, Jr.
ATTORNEY AT LAW
1100 Poydras Street
Suite 2950
New Orleans, LA 70163--1133

COUNSEL FOR DEFENDANT/APPELLANT

SENTENCE VACATED; REMANDED

NOVEMBER 3, 2021

SCJ

Defendant, Tashonty Toney, appeals the 91-year cumulative sentence

imposed by the trial court after he pled guilty to a sixteen-count indictment.

Defendant pled guilty as charged to two counts of vehicular homicide with a Blood

Alcohol Concentration (BAC) over .20 percent, six counts of first degree vehicular

negligent injuring, one count of vehicular negligent injuring, and seven counts of

hit-and-run driving with no death or serious bodily injury. Defendant’s guilty plea

agreement did not include an agreement on sentencing, which was to be

determined by the trial court following a sentencing hearing. The trial court

imposed the maximum sentences for each count of defendant’s conviction and

ordered the sentences to run consecutively.

Based upon our review of defendant’s sentencing, and in light of sentencing

guidelines and jurisprudence, we find that the trial court failed to sufficiently

articulate reasons and considerations for its imposition of maximum, consecutive

sentences. Consequently, we cannot adequately review defendant’s arguments

regarding the excessiveness of his sentence and the denial of his motion to

1

reconsider. For the reasons provided herein, we vacate defendant’s sentence and

remand to the trial court to hold a meaningful sentencing hearing.

FACTS AND PROCEDURAL BACKGROUND

Because defendant entered pleas of guilty as charged, the facts underlying

defendant’s convictions were not developed at any hearing or at a trial. The facts

of this case are derived from the New Orleans Police Department arrest report gist

and from video recordings introduced at the sentencing hearing.1

On March 2, 2019, at approximately 8:05 p.m., defendant was driving a

Chevy Camaro southbound on Esplanade Avenue, a divided two-lane street with a

designated bike lane. Driving at a high rate of speed in excess of the 35 mph speed

limit, surveillance video captured defendant veer his car right out of the traffic

lane, drive into the designated bike lane, and surpass two cars travelling in the

traffic lane. Moments later, out of view of surveillance video, defendant’s car

struck three bicyclists travelling southbound in the designated bike lane. All three

bicyclists were thrown from their bicycles. Defendant did not stop but continued

driving at a high rate of speed in the designated bike lane, striking four more

bicyclists and side-swiping several parked cars in the parking lane. As defendant

continued southbound on Esplanade Ave., approximately four blocks from where

he struck the first group of bicyclists, defendant swerved toward the neutral ground

attempting to avoid another vehicle travelling in the traffic lane, but defendant

collided with that vehicle and came to rest on the neutral ground. After the crash,

defendant exited his vehicle and fled the scene on foot. Witnesses to the collision

1
The State introduced four video recordings: three surveillance recordings capturing scenes
during the incident along Esplanade Avenue on March 2, 2019; and one NOPD body camera
recording from Officer Walker who processed defendant at the NOPD Traffic/DUI Office
following his arrest.

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and the preceding incidents followed defendant, caught up with him, and detained

him two blocks from the scene of the collision until NOPD officers arrived.

After the collision, emergency medical services responded first to the scene

to render aid to the victims struck by defendant’s vehicle. Two of the bicyclist

victims, Sharee Walls and David Hynes, were pronounced deceased on the scene.

Seven other bicyclist victims struck by defendant’s vehicle suffered numerous,

serious and critical injuries.

When NOPD officers arrived to investigate, an on-scene show-up

identification was conducted with a witness who identified defendant as the driver

of the Chevy Camaro who exited the vehicle and fled the scene. Officers noted

that defendant appeared to be impaired. Defendant was taken into custody on

suspicion of driving under the influence (DUI) and transported to the NOPD

Traffic/DUI Office on Tchoupitoulas Street.

While at the DUI office, NOPD Officer John Walker activated his body

worn camera. Ofc. Walker noted that defendant appeared impaired, had watery,

bloodshot eyes, slurred his speech when he spoke, and emitted an odor of alcohol.

Ofc. Walker read defendant his Miranda rights and his rights relative to chemical

testing. Defendant acknowledged that he understood his rights; he elected not to

speak with Ofc. Walker and stated his refusal to take a breathalyzer test three

times. Ofc. Walker then explained the procedure for obtaining a warrant for a

blood test and transporting defendant to the hospital for his blood to be drawn.

While Ofc. Walker informed defendant of his rights and the procedures, defendant

became visibly upset and made several statements about letting his family down

and having a drinking problem.

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Approximately five hours after the incident, samples of defendant’s blood

and urine were collected at the University Medical Center, pursuant to a signed

warrant to retrieve biological specimens. The results of the chemical tests

indicated a blood alcohol concentration (BAC) of .14. Accounting for the rate of

absorption and elimination of alcohol from the body at .015 per hour, the State

submits defendant’s BAC was .215 at the time of the incident.

On May 2, 2019, the State filed a sixteen-count indictment, charging

defendant with one count of hit-and-run driving—no death or serious injury, a

violation of La. R.S. 14:100(C)(1); two counts of vehicular homicide with a BAC

greater than .20, a violation of La. R.S. 14:32.1(C); six counts of first degree

vehicular negligent injuring, a violation of La. R.S. 14:39.2; one count of vehicular

negligent injuring, a violation of La. R.S. 14:39.1; and six more counts of hit and

run driving—no death or serious injury. At his arraignment on May 6, 2019,

defendant pled not guilty to all charges in the indictment.

On October 21, 2019, defendant withdrew his not guilty plea and pled guilty

as charged to fourteen counts of the indictment, excluding the two counts of

vehicular homicide. Defendant acknowledged that the plea agreement he signed

on those fourteen counts did not include a sentencing agreement or

recommendation. The trial court questioned defendant regarding his waiver of

rights, informed him of the possible sentencing range for each conviction, found

defendant was knowingly and voluntarily entering the guilty plea, accepted his

guilty plea, and held the sentencing date open until after the trial on the two

remaining counts of vehicular homicide, set for October 28, 2019.

On October 28, 2019, defendant withdrew his not guilty plea and pled guilty

as charged to the two remaining counts of vehicular homicide. The trial court

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again questioned defendant regarding his waiver of rights and his understanding

that, because he entered a “blind” plea agreement, there was no agreement or

recommendation on defendant’s sentencing. The trial court found defendant was

entering his plea knowingly and voluntarily, and accepted his guilty plea.

On that same day, the trial court proceeded with the sentencing hearing and

heard victim impact testimony. The trial court heard testimony from several

family members of the two deceased victims, relaying the impact of the loss of

their loved ones. The surviving seven victims testified as to the extent of their

injuries and the impact of the incident on their lives. The State also offered into

evidence, with defendant’s objection, the three surveillance videos capturing parts

of the incident, photographs of the scene of the incident, and the body camera

video from the DUI office.

The following day, October 29, 2019, defendant presented testimony from

his family members. In cross-examination of defendant’s sister, Taryn, the State

played a recording in open court of a jail call between defendant and his sister.

Defendant then testified on his own behalf and expressed his remorse to the

victims and their families.

After a brief recess, the trial court imposed sentences against defendant for

all sixteen counts of the indictment. The sentences imposed are as follows:

Count 1: hit and run driving—no death or serious bodily injury: six months

in Orleans Parish Prison (OPP), to run concurrent with any and all other

sentences;

Counts 2 and 3: vehicular homicide with a BAC greater than .20: thirty

years at hard labor on each count, without benefit of probation, parole, or

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suspension of sentence, to run consecutive to each other and to all other

sentences; and a fine of $2000 on each count;

Counts 4 - 9: first degree vehicular negligent injuring: five years at hard

labor on each count, with the sentences for each count to run consecutive to

each other and to the previous sentences; and a fine of $2000 on each count;

Counts 11 - 16: hit and run driving—no death or serious bodily injury: six

months in OPP on each count, to run concurrent with each other and with

any and all other sentences;

Count 10: vehicular negligent injuring: six months in OPP, to run

consecutive to Counts 11-16; and a fine of $1000.

Cumulatively, the trial court imposed a sentence of 91 years, including sixty years

imposed without benefit of parole, probation, or suspension of sentence.

On November 27, 2019, defendant filed a motion to reconsider sentence and

to supplement the record with the jail recording played in open court before

sentencing. In support of defendant’s motion, four of the victims submitted a letter

to the trial court in support of reconsideration and a reduced sentence for

defendant. On February 28, 2020, the trial court held a hearing and denied

defendant’s motion to reconsider sentence. The court minutes from that date also

reflect that the State filed into the trial court record an audio CD of the jail call.

Thereafter, defendant filed this timely appeal of his sentence.

DISCUSSION

Defendant raises three assignments of error in this appeal of his sentence.

1. The trial court abused its discretion in imposing a 91-year cumulative

sentence on a first time offender. The sentence makes no measurable

contribution to the acceptable goals of punishment, it constitutes nothing

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more than the purposeless imposition of pain and suffering, and it is

grossly out of proportion to the severity of crimes that involve no

criminal intent.

2. The trial court erred in denying defendant’s motion to reconsider

sentence.

3. The trial court erred in imposing consecutive sentences for offenses that

occurred in a single course of conduct without providing sufficient

justification from evidence in the record.

In essence, defendant contends that the trial court abused its broad

sentencing discretion and imposed an excessive sentence given the facts in the

record, the lack of criminal intent, and the history of the defendant.

We begin by acknowledging that the trial court imposed a legal, maximum

sentence within the range provided by the applicable criminal statutes.2 For

2
La. R.S. 14:100(C)(1)(b) provides in pertinent part, “[w]hoever commits the crime of hit-and-
run driving where there is no death or serious bodily injury shall be fined not more than five
hundred dollars, imprisoned for not less than ten days nor more than six months, or both…”.
La. R.S. 14:39.1(C) provides, “[w]hoever commits the crime of vehicular negligent injuring shall
be fined not more than one thousand dollars or imprisoned for not more than six months, or
both.”
La. R.S. 14:39.2(D) provides, “[w]hoever commits the crime of first degree vehicular negligent
injuring shall be fined not more than two thousand dollars or imprisoned with or without hard
labor for not more than five years, or both.”
La. R.S. 14:32.1 provides in relevant parts as follows:
(B) Whoever commits the crime of vehicular homicide shall be fined not less than
two thousand dollars nor more than fifteen thousand dollars and shall be imprisoned
with or without hard labor for not less than five years nor more than thirty years. …
If the operator’s blood alcohol concentration is 0.15 percent or more by weight based
upon grams of alcohol per one hundred cubic centimeters of blood, then at least five
years of the sentence of imprisonment shall be imposed without benefit of probation,
parole, or suspension of sentence. …
(C) Whoever commits the crime of vehicular homicide shall be sentenced as an
offender convicted of a crime of violence if the offender’s blood alcohol
concentration, at the time of the offense, exceeds 0.20 percent by weight based on
grams of alcohol per one hundred cubic centimeters.
(D) Notwithstanding the provisions of Code of Criminal Procedure Article 883, if
the offense for which the offender was convicted pursuant to the provisions of this
Section proximately or directly causes the death of two or more human beings, the

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sentences imposed within the statutory range, a trial court abuses its discretion only

when it contravenes the prohibition of cruel and excessive punishment in La.

Const. art. 1, §20. State v. Soraparu, 97-1027, p. 1 (La. 10/13/97), 703 So.2d 608,

608 (quoting State v. Sepulvado, 367 So.2d 762, 767 (La. 1979)). A sentence is

unconstitutionally excessive when it imposes punishment grossly out of proportion

to the severity of the offense or if it constitutes nothing more than the needless

imposition of pain and suffering. State v. Bonanno, 384 So.2d 355, 357 (La.

1980).

On appellate review of the trial court’s imposition of sentence, the relevant

question for the reviewing court is not whether another sentence might have been

more appropriate but whether the trial court abused its broad sentencing discretion.

State v. Smith, 01-2574, pp. 6-7 (La. 1/14/03), 839 So.2d 1, 4. The statutory

sentencing guidelines provided by La. C.Cr.P. art. 894.1 furnish criteria by which

the reviewing court can measure whether a sentence within the statutory limits is

nevertheless excessive. Bonanno, 384 So.2d at 357. The Louisiana Supreme

Court has further explained the significance of the sentencing guidelines as

follows:

The goal of the legislative scheme embodied in [art. 894.1] is to tailor
the individual sentence imposed on the particular defendant to the
particular circumstances of the case. The result which obtains is that
the maximum sentences are to be reserved for the most egregious and
blameworthy of offenders within a class. Accordingly, insight into
the nature of the offender and his offense may be gained by asking,
for example, whether (1) there is undue risk the defendant will
commit another crime, (2) the defendant needs to be institutionalized,
(3) a lesser sentence will deprecate the seriousness of defendant’s
crime, (4) defendant’s conduct caused or threatened harm, (5)
defendant has a criminal record, (6) defendant will respond to
rehabilitation.

offender shall be sentenced separately for each victim, and such sentences shall run
consecutively. …

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Another factor is comparison of the defendant’s punishment
with the sentences imposed for similar crimes by the same court and
other courts. Such a comparison helps to assure that a defendant’s
sentence will be proportional in comparison with other offenders—
that the maximum sentences will be reserved for the most egregious
or blameworthy of offenders, and that others of similar conduct will
not receive sentences lighter than the defendant’s.

State v. Telsee, 425 So.2d 1251, 1253-54 (La. 1983) (internal citations omitted).

Additionally, in this case, we find the history of the sentencing range for the

offense of vehicular homicide, as discussed by the Louisiana Supreme Court in

State v. Leblanc, 09-1355 (La. 7/6/10), 41 So.3d 1168, to be pertinent to our

review:

When the legislature first enacted the crime of vehicular homicide,
1983 La. Acts 635, the penalty it provided, a maximum of five years
imprisonment, with or without hard labor, made the offense the
equivalent of negligent homicide, a crime long punished by the same
maximum sentence. La. R.S. 14:32. Within that range, maximum
sentences of five years imprisonment were not uncommon for
vehicular homicide, whether charged under La. R.S. 14:32 or La. R.S.
14:32.1. (citations omitted).
Over the years, the legislature has steadily increased
punishment for the crime, raising the maximum sentence to 15 years
imprisonment in 1989 La. Acts 584, then to 20 years imprisonment
with or without hard labor, in 1999 La. Acts 1103, and thereafter, to
its present maximum of 30 years imprisonment with or without hard
labor. 2004 La. Acts 750. The legislature has since increased the
mandatory minimum term of imprisonment from two to five years and
increased the minimum term of parole disability from one to three
years. 2006 La. Acts 294. The changes reflect the growing awareness
in this state and elsewhere of the carnage caused by intoxicated
drivers on the open road. (citation omitted).
The broader sentencing ranges provided for the offense over the
years have provided trial courts with increased opportunities to
exercise their discretion in individualizing punishment to the
particular defendant and the particular circumstances of the case,
within the general parameter, as recognized in the present case by
both the trial court and court of appeal, that sentences at or near the
maximum should ordinarily apply only to the most blameworthy
offenders committing the most serious violations of the described
offense. While comparisons with other similar cases “is useful in
itself and sets the stage,” the focus of sentence review remains on the
character and propensities of the offender and the circumstances of the
offense. Telsee, 425 So.2d at 1254.

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Leblanc, 09-1355, pp. 9-10, 41 So.3d at 1173.

In Leblanc, defendant was charged in a 12-count bill with vehicular

homicide, vehicular negligent injuring, driving while intoxicated, possession of

marijuana and cocaine, and several traffic offenses. As in the instant case,

defendant entered into a plea agreement that did not include sentence, pleading

guilty to one count of vehicular homicide, and to three counts of vehicular

negligent injuring. The trial court ordered a presentence investigation and

conducted a sentencing hearing at which members of the victim’s family and

defendant’s family addressed the court. The trial court then imposed a sentence on

defendant’s conviction of vehicular homicide of 30 years imprisonment at hard

labor, three years without benefit of parole, probation, or suspension of sentence.

The trial court also imposed the maximum sentences of six months on each of the

vehicular negligent injuring convictions, to run concurrently with each other and

with the 30-year sentence for vehicular homicide. On appeal, the Third Circuit

vacated the 30-year sentence for vehicular homicide as excessive and remanded for

resentencing. The Louisiana Supreme Court then granted the State’s writ to review

the Third Circuit’s finding of excessiveness. Leblanc, 09-1355, pp. 1-2, 41 So.3d

at 1169.

In reviewing the trial court’s imposition of sentence, the Louisiana Supreme

Court reviewed the facts in the record from defendant’s guilty plea colloquy, the

testimony presented at the sentencing hearing, the findings of the presentence

investigation, and the trial court’s stated reasons for sentence. The Court found

that the trial court had given thorough consideration to the defendant’s history both

as a first offender and as a drug addict, who showed reckless disregard for life and

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whose actions resulted in a death after she took a cocktail of prescription drugs,

cocaine, and marijuana and got behind the wheel. In concluding its review of the

trial court’s sentence, the Court significantly noted that the trial court clearly took

into account the possibilities of early release on parole in determining the length of

defendant’s sentence.3 The Court then concluded that “[g]iven the existence of

ameliorative alternatives and the extreme circumstances surrounding commission

of the crime”, the trial court’s “decision of where to place defendant’s conduct on

that broad sentencing continuum fell within the discretion of the trial court” and

the punishment imposed was not excessive. Leblanc, 09-1355, pp. 10, 12, 41

So.3d at 1173, 1175.

In the case sub judice, our review of the trial court’s sentencing finds that the

trial court did not provide a thorough review of facts or record evidence on which

it relied, nor did the trial court individualize the sentence in consideration of

defendant’s first offender history, his character, or propensity for criminal

behavior. We find the trial court failed to allow defendant to present mitigation;4

that the trial court referred to evidence submitted to the trial court but not

introduced into the record;5 and that the trial court relied disproportionately on its

impressions of defendant’s demeanor rather than his testimony and statements of

3
“The presentence report underscored these opportunities when, after recommending a
maximum sentence, it reminded the court that ‘with the possibility of parole release, and
guaranteed Good Time Release, the maximum thirty (30) year sentence is actually a fifteen (15)
year sentence at best.’” Leblanc, 09-1355, p. 11, 41 So.3d at 1174.
4
On October 28, 2019, prior to the guilty plea colloquy, defense counsel noted that it wanted to
present the testimony of defendant’s treating physician in mitigation but the physician was not
present in court and had not been subpoenaed at that time. Although the trial court issued an
instanter subpoena for the physician to appear the following day, it had not been delivered and
the trial court proceeded with the sentencing hearing without that requested mitigation testimony.
5
At the beginning of sentencing, the trial court stated, “[t]he photographs were returned to the
State which I reviewed; there was video which was returned to you. I’m not placing that in the
record.” Any evidence reviewed by the trial court and taken into consideration in its findings
must be entered into the record to allow for proper appellate review. La. Const. art. 1, §19.

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remorse.6 In addition, the trial court did not provide any reasons for denying

defendant all parole eligibility on his consecutive sentences for vehicular homicide.

Based on a survey of comparable cases, the trial court in this case has

imposed the harshest sentence for vehicular homicide in Louisiana jurisprudence;

and defendant’s 91-year cumulative sentence effectively constitutes a life sentence

for offenses that lack criminal intent. See State v. Gordon, 17-846 (La. App. 3 Cir.

3/28/18), 240 So.3d 301 (finding consecutive sentences of 18 years each, 3 years to

be served without benefit, for three counts of vehicular homicide was not excessive

given defendant’s history and drug abuse); State v. Lewis, 13-1588 (La. App. 4 Cir.

8/27/14), 147 So.3d 1251 (finding a sentence of 20 years for vehicular homicide,

with 5 years to be served without benefits, and a concurrent sentence of 5 years for

first degree vehicular negligent injuring was not excessive) State v. Morain, 07-

1207 (La. App. 3 Cir. 4/2/08), 981 So.2d 66 (finding that the trial court’s

imposition of the maximum 20-year sentence for vehicular homicide was excessive

given that the record does not show defendant to be one of the worst offenders);

State v. Landry, 09-260 (La. App. 3 Cir. 11/4/09), 21 So.3d 1148 (finding a

sentence of 30 years for vehicular homicide with all but 18 years suspended and 5

years to be served without benefits was not excessive where defendant’s BAC was

0.231 at the time of the accident).

There is no question that the defendant’s acts on March 2, 2019, demonstrate

reckless disregard for the safety and lives of others. Certainly, the pain and

suffering caused by defendant’s actions are deserving of a harsh penalty of

6
The trial court recounted images of defendant’s demeanor on the night of the incident, which
can be a relevant consideration, but does not preclude rehabilitation which is a significant
consideration. The trial court also referenced a jail call which was not entered into this record,
and weighed statements made by defendant’s sister against defendant. The trial court also
dismissed defendant’s testimonial remorse.

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imprisonment. This Court also acknowledges that retribution and deterrence are

worthy considerations when imposing sentence in a case such as this. Cf. Ewing v.

California, 538 U.S. 11, 25, 123 S.Ct. 1179, 1187, 155 L.Ed.2d 108 (2003) (“A

sentence can have a variety of justifications, such as incapacitation, deterrence,

retribution, or rehabilitation.”)(citation omitted). However, the trial court shall rely

on the facts and evidence properly introduced into the record and state its

considered reasons for imposing sentence, including the restriction or denial of

parole eligibility.

Additionally, the trial court failed to articulate its reasoning for imposing

consecutive sentences. The general rule for concurrent versus consecutive

sentences is set forth in La. C.Cr.P. art. 883, which provides in pertinent part,

If the defendant is convicted of two or more offenses based on the
same act or transaction, or constituting parts of a common scheme or
plan, the terms of imprisonment shall be served concurrently unless
the court expressly directs that some or all be served consecutively.
Other sentences of imprisonment shall be served consecutively unless
the court expressly directs that some or all of them be served
concurrently.

Louisiana courts view consecutive sentences to be similar in nature to a

habitual offender enhancement, as first explained by the Louisiana Supreme Court

in State v. Sherer, stating:

Because the function of the consecutive sentence should be similar to
the sentence imposed on habitual or dangerous offenders, sentences
for crimes arising from a single course of conduct should be
concurrent rather than consecutive, absent a showing that the offender
poses an unusual risk to the safety of the public. We cannot presume
that the sentencing judge viewed the defendant as an unusual risk to
the safety of the public because he did not so state. Instead, the judge
expressed his belief that the defendant had become virtually
rehabilitated and should be released on parole at the earliest possible
time. For these reasons, the imposition of consecutive rather than
concurrent sentences totaling 12 years at hard labor upon a defendant
deemed parole-eligible by the sentencing judge for crimes of criminal
negligence, rather than intentional offenses, arising from a single

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course of conduct, are unexplained by the judge’s statements and
unillumined by this problematic record.

437 So.2d 276, 277 (La. 1983) (internal citation omitted).

Relying on the reasoning in Sherer, the Third Circuit recently found the

imposition of multiple consecutive, habitual offender enhanced sentences to be

“suspect without some evidence the defendant is an undue risk to the public” and

remanded the matter to the trial court for resentencing with concurrent sentences.

State v. Brown, 19-682, p. 13 (La. App 3 Cir. 6/17/20), 299 So.3d 661, 670. In

doing so, the Third Circuit additionally noted,

[T]he recently enacted Louisiana’s Justice Reinvestment Reforms of
2017 implore [the courts] to seriously consider Louisiana’s history of
long-term incarceration. See 2017 Acts Nos. 258, 260, 261, 262, 264,
265, 277, 280, 281, and 282. In keeping therewith, we find the
imposition of concurrent rather than consecutive sentences for crimes
arising out of the same conduct would better serve the policy behind
the Justice Reinvestment Initiative of reducing sentences for certain
drug offenses as well as habitual offender penalties.

Id.

In the instant case, the trial court failed to articulate reasons for ordering the

sentences for each count of first degree vehicular negligent injuring to run

consecutively to each other and to the sentences for vehicular negligent injuring

and hit-and-run driving, and to the sentences for vehicular homicide. While the

sentences for vehicular homicide are statutorily required to run consecutively,

pursuant to La. R.S. 14:32.1(D), the imposition of consecutive sentences for the

offenses that arose from the same course of defendant’s conduct is unexplained by

the trial court and unilluminated by this record. See State v. Lee, 94-2584, p. 9 (La.

App. 4 Cir. 1/19/96), 668 So.2d 420, 427 (“[A]lthough concurrent sentences are

the usual rule for convictions arising out of a single course of illegal conduct,

consecutive sentences will not necessarily be found excessive, but, rather other

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factors must be considered. … prior criminal history of the defendant; whether the

defendant poses an unusual risk to public safety; the harm done to the victims; and

the viciousness of the crime.”)(citations omitted).

In consideration of the foregoing, specifically the lack of sufficiently

articulated reasons based on record evidence for the trial court’s imposition of

maximum, consecutive sentences against this defendant, we find this record is

insufficient to allow for a meaningful review of defendant’s excessiveness claim.

See State v. Brazell, 17-0032 (La. App. 4 Cir. 4/18/18), 245 So.3d 15 (vacating

defendant’s sentence based on the absence of any reasons or considerations for the

sentence imposed and denial of motion for downward departure). Moreover, given

that the 91-year cumulative sentence imposed is the harshest penalty imposed for

these offenses, “there appear[s] to be a substantial possibility that the defendant’s

complaints of an excessive sentence ha[ve] merit”, and we find a remand for

resentencing is appropriate. Soraparu, 97-1027, p. 1, 703 So.2d at 608 (quoting

State v. Wimberly, 414 So.2d 666, 672 (La. 1982)).

CONCLUSION

For the foregoing reasons, we vacate defendant’s sentences and we remand

to the trial court for a meaningful sentencing hearing. At that sentencing hearing,

defendant shall be afforded the opportunity to present mitigating evidence and

testimony, and, at the conclusion of the hearing, the trial court shall state the

considerations taken into account and the factual basis found in the record for (1)

imposing a maximum sentence for any count of the conviction, (2) imposing

consecutive sentences, and (3) restricting benefits on sentences.

SENTENCE VACATED; REMANDED

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