State of Louisiana v. Tashonty C Toney

STATE OF LOUISIANA * NO. 2023-KA-0591

VERSUS * COURT OF APPEAL

TASHONTY C TONEY * FOURTH CIRCUIT

* STATE OF LOUISIANA

*

*
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TFL
LOVE, C.J., DISSENTS IN PART AND CONCURS IN PART WITH
REASONS

I agree with the majority to affirm the sentences imposed arising out of Mr.

Toney’s first degree negligent injuring offenses. However, I find the maximum

thirty-year sentences imposed on each count of the two vehicular homicide

sentences, including fifteen years each without benefit of parole, probation, or

suspension of benefits (“benefits”), are excessive and would remand for

resentencing. Accordingly, I respectfully dissent in part for the reasons that

follow.

The majority sets forth the standard to evaluate excessive sentence claims

and notes that appellate courts apply a two-pronged approach for such an

evaluation: (1) whether the trial court considered the La. C.Cr.P. art. 894.1

sentencing guidelines; and (2) whether the sentence is constitutionally excessive.

See State v. Edison, 37,012, pp. 2-3 (La. App. 2 Cir. 5/14/03), 847 So.2d 140, 142-

43. I agree with the majority that the trial court complied with the first prong of an

excessive sentence review—consideration of the La. C.C.P. art. 894.1 statutory

sentencing guidelines prior to the imposition of the sentences. However, as to the

second prong, I reach a different result in considering whether the vehicular

homicide sentences were excessive. Upon application of the three factors

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enunciated in State v. Whatley, 2006-316, p. 5 (La. App. 3 Cir. 11/2/06), 943 So.2d

601, 605: the nature of the crime, the defendant’s background and comparison of

the sentence imposed to similar crimes, I find the vehicular homicide sentences are

constitutionally excessive for the following reasons.

Nature of the Crime

The nature of the crime involved herein is vehicular homicide. The Supreme

Court, in State v. LeBlanc, 2009-1355, pp. 9-10 (La. 7/6/10), 41 So.3d 1168, 1173,

discussed the legislative history of the sentencing ranges for vehicular homicides

as follows:

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. Cf. Michigan Dept. of State Police v. Sitz, 496 U.S. 444,
451, 110 S.Ct. 2481, 2485, 110 L.Ed.2d 412 (1990)(“No one can
seriously dispute the magnitude of the drunken driving problem or the
States’ interest in eradicating it. Media reports of alcohol-related death
and mutilation on the Nation’s roads are legion.”).

Another indicator of the legislature’s steadily increased punishment for vehicular

homicide offenders is the offender’s receipt of consecutive sentences as outlined in

La. R.S. 1432.1(D) for causing the deaths of two or more human beings in the

same incident. Other penal provisions reflecting enhanced punishment include that

offenders with a blood alcohol concentration (“BAC”) of 0.15 percent are required

to serve at least five years of the sentence without benefits as opposed to three

years without benefits for a lesser BAC, and an offender with a BAC of 0.20

percent shall be convicted of a crime of violence. See La. R.S. 14:32.1(B) and La.

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R.S. 14:32.1(C).1 Relatedly, La. R.S. 15:574.4(A)(1)(b)ii states, in part, that an

offender convicted of a crime of violence who is otherwise eligible for parole,

“shall be eligible for parole consideration upon serving sixty-five percent of the

sentence imposed.” Here, Mr. Toney was impaired with a high BAC of at least

0.20 percent when he caused the fatal accident.

In determining that the nature of the offense supports the maximum

sentences imposed, the majority focuses on the trial court’s finding that Mr.

Toney’s conduct in the commission of the offenses manifested “deliberate” cruelty

to the victims and was, therefore, properly considered as an aggravating factor in

sentencing. The majority notes that the trial court emphasized that Mr. Toney

drove at an excessive rate of speed, attempted to flee, and did not render first-aid.

Clearly, Mr. Toney’s offenses were horrific, caused immeasurable devastation to

the victims’ families and loved ones, and unfairly cut short the lives of two

outstanding, promising individuals. However, while there is no dispute that the

results were cruel, the trial court pointed to no evidence that Mr. Toney

deliberately intended the results. Although Mr. Toney’s conduct can rightfully be

condemned as abhorrent to any sober-minded person, regrettably, Mr. Toney was

“blind drunk” at the time of the offense. Accordingly, unlike the majority, I do

find an inherent contradiction in the trial court’s finding of deliberate cruelty

juxtaposed against the court’s finding that “[it] considered as mitigating [that] the

defendant did not contemplate that his criminal conduct could cause this serious

harm.”

1La. R.S. 14:32.1(B) provides, in part, that “[i]f 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.”

La. R.S. 14:32.1(C) states that “[w]hoevever 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 of blood.

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As referenced, although our statutory provisions have steadily increased the

penalties for vehicular homicide, notwithstanding, the sentencing range is five to

thirty years for each offense. This writer recognizes that no sentence can offer

adequate relief or comfort for the surviving families and loved ones of the victims.

Nevertheless, a vehicular homicide excessive sentence claim is still entitled to

review within the statutory sentencing range for that offense. That review

necessarily requires appellate courts to apply the seminal precepts that maximum

sentences are reserved for the most serious offender and that there should be some

consistency when imposing maximum sentences. See State v. Morain, 2008-1546,

p. 6 (La. App. 3 Cir. 6/30/09), 11 So.3d 733, 738.

Defendant’s Nature and Background

The review of the second factor—the offender’s nature and background—

substantiates that Mr. Toney had no prior criminal convictions; however, as noted

by the trial court and the majority, Mr. Toney did have a criminal history which

included a previous 2016 DWI citation. In connection with that citation, Mr.

Toney’s uncontradicted testimony asserted that he fulfilled all the requirements

associated with the citation—which did not include attendance at AA meetings.

The majority indicates that Mr. Toney “knew” he had a drinking problem.

However, while Mr. Toney acknowledged a drinking problem at sentencing, he

testified that he lacked the self-awareness to realize he had a drinking problem at

the time of the accident. Mr. Toney testified that “I wish back then I would have

realized what it was, and learned my lesson, you know got everything under

control. My mental health and everything under control, but I didn’t realize that

then. I didn’t realize where I stand now.” He averred that he rarely “partied” at

the time of the accident because he worked all the time, and the accident date—his

birthday—“was the one day that I got in my head, just relax and this is what

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happened.” Mr. Toney relayed that he has attended AA since his incarceration and

had not drank in three years.

Defendant’s background also showed that Defendant was gainfully

employed. He was described as an honest, reliable, and trustworthy by his

supervisor, aunt, and co-workers. Defendant also served as his mother’s caretaker

and acted as a father figure to a nephew and nieces. Defendant accepted

responsibility for his actions by entering a “blind” guilty plea and expressed great

remorse at the sentencing hearing for his actions on the accident date.

The majority rejects Mr. Toney’s contention that his overall law-abiding

background was not considered by the trial court in his sentencing on the vehicular

homicide counts, citing the horrific nature of the offenses. Nevertheless, as noted

by the majority, the three-part test in reviewing a claim for the imposition of the

maximum sentence requires consideration of all the factors in determining an

excessive sentence. See State v. Smith, 1999, pp. 17-18 (La. 7/6/00), 766 So. 2d

501, 514. This review necessarily includes evaluation of the offender’s nature and

background. Thus, the “horrific nature” of the offense cannot preclude

consideration of the offender’s background in imposition of the maximum

sentence; otherwise such a review would never take place as inevitably all

vehicular homicides offenses involving impaired drivers are of a “horrific nature”

and devastate the surviving family members and loved ones.

In totality, as discussed further herein below, I find Mr. Toney’s background

does not qualify as the worst offender for whom the maximum sentence is reserved

when compared to other convicted multiple homicide offenders.

Comparative Sentences

This Court emphasized in Toney I, 2021-0131, p. 9. 331 So.3d at 403, that

comparison of sentences is an important factor in reviewing a claim for excessiveness

as “[s]uch a comparison helps to assure that a defendant’s sentence will be

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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.” Id., 2021-0131, p. 9,

331 So.3d at 403-4. Moreover, a reviewing court’s consideration of sentences imposed

by other courts provides consistency in the punishment of similar crimes for similarly

situated offenders. State v. Morain, 2008-1546, p. 4 (La. App. 3 Cir. 6/30/09), 11

So.3d 733, 737.

At the outset of any review of comparative sentences, it must be noted that well-

settled jurisprudence establishes that an excessive sentence review contemplates not

only the length of the sentence, but also the availability and restrictions of benefits

regarding parole eligibility and early release. See LeBlanc, 2009-1355, p. 11, 41

So.3d at 1174. Therefore, the actual sentence an offender is likely to serve is an

important element in determining if a sentence is excessive.

In LeBlanc, the Supreme Court reversed the decision of the appellate court to

vacate the trial court’s imposition of the maximum thirty-year sentence for vehicular

homicide for a first-time offender without a prior record, where the defendant had been

cited for DWI, possessed cocaine and marijuana, and had a “cocktail” of cocaine and

other legal drugs in her system. Id., 2009-1355, pp. 11-13, 41 So.3d at 1174-75. The

Court noted that the defendant had an acknowledged long-standing history of abusing

legal and illegal drugs, “punctuated by a few, half-hearted attempts to receive

treatment,” and had gone on a self-confessed cocaine binge in the days leading up to

the fatality accident. Id., 2009-1355, p. 12, 41 So.3d at 1174. The Court also found

that the defendant did not necessarily accept her culpability for the accident, pointing

out that the defendant reaped the benefits of a plea bargain, which reduced her

sentence by nearly 20 years. Id. Moreover, the Court highlighted that the trial court

imposed the mandatory minimum of three years for parole eligibility and crafted a

sentence that made it possible for the defendant to obtain early release and earn good-

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time credit after serving one-third of her term; as such, the Supreme Court observed

that the defendant’s “maximum thirty (30) year sentence [was] actually a fifteen (15)

year sentence at best.” Id., 2009-1355, p. 11, 41 So.3d at 1174. The Court then opined

that “the availability of early release options is generally a relevant consideration in

review of sentences for excessiveness.” Id. Accordingly, in consideration of those

factors, the LeBlanc Court found the defendant’s original sentence was not excessive,

reversed the appellate court, and remanded the case to the district court for execution

of the original sentence. Id., 2009-1355, p. 13, 41 So.3d at 1175.

Therefore, in the context of the above-referenced criteria, Mr. Toney is

entitled to have his sentences and parole eligibility/early release options compared

with that of other multiple vehicular homicide offenders to determine

excessiveness.

Maximum Sentences

In State v. Crenshaw, 39,586 (La. App. 2 Cir. 4/6/05), 899 S.2d 751, the

defendant went to trial on two counts of vehicular homicide, wherein he challenged the

sufficiency of the evidence to prove that he was the driver. Upon conviction, the

defendant received the then maximum sentences of twenty years each at hard labor for

two counts of vehicular homicide, to be served consecutively, with one year each to be

served without benefits. Id., 39,586, p. 2, 899 So.2d at 753-54. Notably, at the time of

sentencing, there was no statutory mandate for consecutive sentences for multiple

counts of vehicular homicide. Nevertheless, the appellate court found that the

consecutive sentences were not constitutionally excessive where the defendant had

gone to trial and had three prior DWI convictions. Id., 39,586, pp. 14-16, 899 So.2d at

759-61.

The appellate court found that maximum sentences of fifteen years for three

counts of vehicular homicide in State v. Guillory, 1993-1031 (La. App. 3 Cir. 4/27/94),

640 So.2d 427, were not excessive. The Third Circuit noted that the sentences were to

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be served concurrently; the defendant had one prior felony conviction and three

misdemeanor convictions; the defendant had a blood alcohol level of .29; and after

drinking excessively on the night of the accident, the defendant had twice been urged

by others not to drive. Id., 1993-1031, 647 So.2d at 430.

In State v. Yates, 574 So.2d 566 (La. App. 3 Cir. 1991), the defendant argued

that his two consecutive five-year sentences—the maximum at the time—for two

counts of vehicular homicide were excessive. Although the defendant received the

maximum sentence, the sentence on count two was suspended and the defendant was

placed on supervised probation for five years after release from confinement. Id., 574

So.2d at 567. In affirming the over-all sentence, the Third Circuit found that the

sentence was not excessive, emphasizing that the defendant had two prior DWI

convictions, showed no remorse for his conduct, and continued to drink on a daily

basis after the accident. Id., 574 So.3d at 569-70.

Non-Maximum Sentences

The defendant in State v. Benavides, 54,265 (La. App. 2 Cir. 3/9/22), 336 So.3d

114, went to trial and was convicted on two counts of vehicular homicide. The trial

court imposed sentences of twenty and nineteen years; however, did not address the

length of time to be served without benefits. Defendant maintained on appeal that the

sentences were excessive given that he had a family to support and had no prior

offenses. Id., 54,265, p.17, 336 So.3d at 123. The appellate court found the mid-range

sentences were not excessive, noting that although the defendant had no prior record,

he admitted that he had an active drinking problem. Id., 54,265, p. 23, 336 So.3d at

125. As in LeBlanc, supra, the trial court stated that the “sentence should give the

defendant the incentive for rehabilitation and to take advantage of early release on

parole.” Id.2

2 The sentencing transcript showed the trial court failed to specify the statutory time that the

sentences were to be served without benefits. Accordingly, the matter was remanded for
resentencing solely that purpose. Benavides, 54,265, p. 27, 336 So.3d at 126.
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In State v. Gordon, 2017-846 (La. App. 3 Cir. 3/28/18), 240 So.3d 301, the

defendant pled guilty to three counts of vehicular homicide as a result of driving

under the influence of methamphetamines, in exchange for the State’s dismissal of

a negligent injuring charge. The trial court sentenced the defendant to eighteen

years at hard labor on each count for killing three members of the same family,

with three years served without benefits. The defendant had no criminal record.

The principal aggravating factors in defendant’s case were that the defendant

admitted to a long-standing, on-going problem with methamphetamine abuse—

which included taking the drug almost every other day—and a finding that

methamphetamines and amphetamines were, in fact, found in his urine sample

after the accident. Id., 2017-846, p. 6, 240 So.3d at 306. Hence, the Gordon Court

found that the eighteen-year consecutive sentences imposed, three years without

benefits, were not constitutionally excessive.

The defendant in State v. Ellis, 2010-1019, pp. 2-3 (La. App. 5 Cir. 5/24/11),

67 So.3d 623, 626-27, a first time felony offender, entered an Alford guilty plea to

two counts of vehicular homicide while driving under the influence of marijuana.

The trial court sentenced the defendant to concurrent sentences of twenty-five

years at hard labor and imposed the first five years without benefits. Id., 2010-

1019, p. 2, 67 So.3d at 624.3 At sentencing, the trial court found that the defendant

was arrested for drug possession on the date of the accident, had marijuana in his

system, was driving recklessly with a suspended license, and showed no remorse.

Id., 2010-1019, pp. 4-5, 67 So.3d at 626. In rejecting the defendant’s excessive

sentence claim, the appellate court observed that the trial court made it possible for

the defendant to be released on parole after serving one-third of his twenty-five

year sentence, or approximately 8.33 years, and considered the defendant’s

3 At the time of the defendant’s offense in Ellis, 2010-1019, 67 So.3d 623, the imposition of

consecutive sentences for multiple vehicular homicides, although available, was not statutorily
mandated.
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eligibility for early release on good time credits. Id., 2010-1019, p. 6, 67 So.3d at

627. The appellate court, quoting LeBlanc, 2009-1355, p. 11, 41 So.3d at 1173,

found that “[t]he availability of early release options is generally a relevant

consideration in review of sentences for excessiveness.” Id. Consequently, given

the parole eligibility considerations, the benefit the defendant reaped from his plea

agreement, and the circumstances of the offense, the Ellis Court affirmed the

defendant’s sentences, finding no abuse of the trial court’s discretion. Id., pp. 6-7,

2, 67 So.3d at 627.

The defendant in State v. Edison, 37,012 (La. App. 2 Cir. 5/14/03), 847

So.2d 140, entered guilty pleas to two counts of vehicular homicide in exchange

for the State’s agreement to dismiss two counts of first degree negligent injuring.

The trial court imposed two concurrent terms of fourteen years, with the first year

to be without benefits. The maximum sentence at the time was twenty years.

Considering the gravity of the offenses and the benefit Defendant received from

the plea bargain, the appellate court affirmed the defendant’s sentences. Id.,

37,012, 847 So.2d 14.

In State v. Trahan, 1993-1116 (La. App. 1 Cir. 5/20/94), 637 So.2d 695, a

first-time felony offender, went to trial and was convicted on three counts of

vehicular homicide. He was sentenced to three ten-year prison terms, to be served

concurrently. The statute in effect at the time provided for a sentence of two to

fifteen years. The appellate court determined that the sentence was not excessive

where the defendant showed little remorse for his conduct after the accident, and

while awaiting trial, was observed having several drinks at a bar. Id., 1993-1116,

637 So.2d at 708-09.

In State v. Stein, 611 So.2d 800 (La. App. 3 Cir. 1992), the defendant pled

no contest to two counts of vehicular homicide and received concurrent sentences

of four and one-half years. The statutory sentencing range at the time was two to

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fifteen years. The defendant had two prior misdemeanor convictions. Based on the

defendant’s possible exposure to a fifteen-year sentence and the imposition of

concurrent sentences, the appellate court denied the defendant’s excessive sentence

claim. Id., 611 So.2d at 802.

Notwithstanding the inexplicable grief and carnage inflicted by Mr. Toney

as a result of this tragic accident, based on our review of the foregoing sentences

imposed for multiple vehicular homicide offenders and their respective

backgrounds, Mr. Toney’s maximum sentences and the thirty years imposed

without benefits are inconsistent with the sentences imposed on the other

offenders. For example, the background of the Crenshaw defendant, arguably the

most egregious offender, included three DWI convictions, and moreover, he did

not accept responsibility for his actions by requiring the State to go to trial. In

comparison, Mr. Toney had one DWI citation—no convictions—and accepted

responsibility by entering a guilty plea. Although the Crenshaw defendant

received the maximum twenty-year sentences, he only had to serve one year each

without benefits.

Here, Mr. Toney not only received the total maximum sentences of sixty

years, but also was required to serve a total of thirty years without benefits without

the availability of early release options. The thirty-year consecutive sentences

imposed, with fifteen years without benefits on each sentence, means that a

minimum, Mr. Toney will have to serve thirty years before any consideration for

parole eligibility. Additionally, Mr. Toney faces other parole eligibility release

restrictions because he was found to have committed a crime of violence premised

on his 0.20 percent BAC level. Pursuant to La. R.S. 15:574.4(B), the existence of

a 0.20 percent BAC would require Mr. Toney to serve at least sixty-five percent of

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the sentence to become parole eligible.4 Based on that computation, Mr. Toney

would have to serve 39 years for the DOC to consider him for parole eligibility

and/or early release.

Additionally, although the existing maximum sentences were imposed in the

Guillory and Yates cases, unlike Mr. Toney, those offenders received the benefit of

concurrent or suspended sentences, and had considerably worse backgrounds. In

particular, the Guillory defendant received concurrent fifteen-year sentences,

although he had a prior felony and misdemeanor convictions and had been

repeatedly urged not to drink on the night of the accident. Similarly, the Yates

defendant received a suspended five-year sentence on the second count of his

vehicular conviction and his background included two prior DWI convictions, a

lack of remorse, and continued drinking after the accident.

As to benefits and early release options, the other comparable offenders in

Benavides, Gordon, Ellis, Edison, Trahan, and Stein discussed hereinabove not

only received less than the maximum sentences and/or concurrent sentences, they

also received lesser restrictions on benefits, ranging from one to five years. The

record in the present matter supports a statutory minimum five-year restriction on

benefits based on Defendant’s BAC. However, in placing the thirty-year

restrictions on benefits, the trial court failed to provide specific reasons. This

failure contravened this Court’s directive upon remand in Toney I, 2021-1031, 331

So.3d at 407-08, to state the considerations “for restricting benefits on sentences.”

Here, Mr. Toney’s restrictions on benefits were triple that of other multiple

homicide offenders, and as underscored in LeBlanc, supra, those restrictions are a

relevant consideration in a review of sentences for excessiveness.

4 La. R.S. 15:574.4(B) states in part that ‘[n]otwithstanding any other provisions of law to the

contrary, a person convicted of a crime of violence and not otherwise ineligible for parole shall
serve at least sixty-five percent of the sentence imposed, before being eligible for parole.”

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The majority relies on State v. McKinney, 2023-162 (La. App. 3 Cir.

10/4/23), 372 So.3d 957 and State v. Cook, 674 So.2d 957, 958 (La. 1996) to reject

Mr. Toney’s argument that a review of similar sentences supported that more

egregious circumstances and offenders received more lenient sentences. However,

closer scrutiny reveals that the results reached in McKinney and Cook are

distinguishable from the present matter.

In McKinney, 2023-162, p. 1, 372 So.3d at 959, the trial court sentenced the

defendant to the maximum sentence of 30 years for vehicular homicide, with the

first three years to be served without benefits, and in conjunction therewith,

suspended seven years of the defendant’s sentence and placed him on supervised

probation for three years upon his release. In crafting the sentence, the trial court

stated “I believe that I am allowed to look at the sentence itself and look at the

amount of time under the law that he is likely to serve.” Id., 2023-162, p. 10, 372

So.3d at 964. The trial court further noted the defendant’s eligibility for parole and

opined that there’s no reason to think the defendant would not get his “good

time”—which is not discretionary; and opined that under the circumstances the

defendant’s overall sentence was not “not close to being cruel and unusual under

the Constitution. Id. On appellate review, the McKinney court determined that the

defendant’s excessive sentence claim lacked merit because notwithstanding the

defendant’s characterization, the trial court did not impose the maximum sentence.

The court pointed out that the trial court suspended seven years of the defendant’s

sentence and ordered that the first three years only be served without benefits,

although statutorily, the defendant’s blood alcohol level required that at least five

years be served without benefits. 2023-162, pp. 17-18, 372 So.3d at 967.

Moreover, the Mckinney court noted that the trial court considered good time and

parole in fixing the Defendant’s sentence. Id., 2023-162, p. 18, 372 So.3d at 967.

The appellate court quoting LeBlanc, 2009-1355, p.11, 41 So.3d at 1174, in finding

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“[t]he availability of early release options[,]” the supreme court has explained, “is

generally a relevant consideration in review of sentences for excessiveness.” Id.

Unlike McKinney, in the matter sub judice, Mr. Toney unequivocally

received the maximum sentence. The trial court did not suspend any part of Mr.

Toney’s sentence. Further, the trial court’s imposition of thirty years without

benefits reflects that the trial court gave no consideration to the availability of early

release, a relevant consideration in considering an excessive sentence claim.

The majority compares Mr. Toney to the defendant in Cook, whose 9-year

sentence at hard labor for one count of vehicular homicide was reinstated by the

Supreme Court, in part, because of the defendant’s flight from the scene. The

majority notes that the Court observed that the defendant’s flight “manifested

deliberate cruelty to the victim” because it “could have meant the difference

between an individual living and dying.” 674 So.2d at 958. However, the Cook

defendant’s “flight” differs from Mr. Toney’s flight. In State v. Cook, 1995-212, p.

1 (La. App. 3 Cir. 10/18/95), 664 So.2d 489, 490, the facts show that the defendant

purposefully left the scene of the accident to drive to a friend’s residence. The

victim was unconscious, face down in a ditch, and died from the trauma. Id.

Although Mr. Toney attempted to flee in the present matter, no evidence was

introduced that his flight was purposeful and that the victims’ outcome would have

been different but for his attempted flight. Moreover, in contrast to Mr. Toney, the

Cook defendant did not receive the maximum sentence.

Accordingly, upon review of the offense, Defendant’s background, and

comparison with similar multiple homicide defendants, the trial record does not

support that Mr. Toney is the worst of the multiple vehicular homicide offenders

for whom the maximum sentence is reserved. I find the overarching factors of this

case are more analogous to the defendant in Morain, 2007-1207, 981 So.2d 66. In

Morain, the defendant had no prior DWI convictions, showed remorse for his

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actions, and had not been involved in other criminal activity; consequently, upon

comparison of the defendant’s conduct and offense with other offenders who

received the maximum sentence, the Third Circuit concluded that the maximum

twenty-year sentence imposed on the defendant was excessive and remanded for

resentencing. Id., 2007-1207, pp. 11-12, 981 So.2d at 72-73.

As per Leblanc, our jurisprudence has generally upheld the imposition of

maximum sentences where the defendant has the availability of early release

options and the actual sentence served will be less than the maximum; that is not

the case here. Thus, Mr. Toney’s contention that the vehicular homicide sentences

are excessive has merit.

Based on the foregoing reasons, I respectfully dissent in part and would

remand for resentencing Mr. Toney’s vehicular homicide convictions.

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