State Of Louisiana v. Joey Paul Clement

STATE OF LOUISIANA
Taw
COURT OF APPEAL

FIRST CIRCUIT

2023 KA 1356

STATE OF LOUISIANA

VERSUS

JOEY PAUL CLEMENT

JUDGMENT RENDERED: DEC 10 2024

Appealed from the Seventeenth Judicial District Court
Parish of Lafourche • State of Louisiana
Docket Number 609148 • Division E

The Honorable F. Hugh Larose, Presiding Judge

Jane Hogan COUNSEL FOR APPELLANT
Louisiana Appellate Project DEFENDANT— Joey Paul Clement
Hammond, Louisiana

Kristine Russell COUNSEL FOR APPELLEE
District Attorney State of Louisiana
Joseph S. Soignet
Jason Chatagnier
Shaun George
Assistant District Attorneys
Thibodaux, Louisiana

BEFORE: MCCLENDON, WELCH, AND LANIER, JJ.

WELCH, I

The defendant, Joey Paul Clement, was charged by amended grand jury

indictment with three counts of vehicular homicide ( counts one, two, and three),

violations of La. R.S. 14: 32. 1( A), and one count of operating a motor vehicle while

intoxicated, fourth offense ( count four), a violation of La. R.S. 14: 98. 4( A)( 1). The

defendant pled not guilty to counts one, two, and three, and he pled guilty to count

four. Following a jury trial, the defendant was found guilty of the responsive verdict

of negligent homicide on count one, a violation of La. R.S. 14: 32( A)( 1), and guilty

of vehicular homicide on counts two and three) The trial court sentenced the

defendant to five years at hard labor on count one, thirty years at hard labor on each

of counts two and three, and twenty years at hard labor on count four, all to be served
2
consecutively. The defendant now appeals, designating three assignments of error.

For the following reasons, we affirm the convictions and the sentence on count one.

We vacate the sentences and remand for resentencing on counts two, three, and four.

FACTS

Shortly after midnight on November 20, 2021, Lily Dufrene was driving her

SUV southbound on Louisiana Highway 20 in the Chackbay area with Michaila
Bowling and Hali Coss as passengers. At the same time, the defendant was driving

his truck northbound on Highway 20. The two vehicles collided, veered off the road,

and caught fire, killing Dufrene, Bowling, and Coss. The defendant' s blood sample

revealed he was intoxicated at the time of the accident.

SUFFICIENCY OF THE EVIDENCE

In the defendant' s first assignment of error, he argues the evidence was

insufficient to support his convictions for vehicular homicide, as the State failed to

I On counts two and three, the jury also found the defendant' s blood alcohol concentration was
0. 15 or more, pursuant to La. R.S. 14: 32. 1( 13).

2 We note the sentences on counts two, three, and four are illegally lenient. These errors will be
discussed below in the patent error section.

2

prove his alcohol consumption was a contributing factor to the accident. In his

second assignment of error, he argues the evidence was insufficient to support his

conviction for negligent homicide, as the State failed to prove his alcohol

consumption and speeding were substantial factors in the accident.

A conviction based on insufficient evidence cannot stand, as it violates due
process. See U.S. Const. amend. XIV; La. Const. art. I, § 2. The standard of review

for sufficiency of the evidence to support a conviction is whether, viewing the
evidence in the light most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt. See

Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L.Ed.2d 560

1979); 1st
State v. Legaux, 2019- 0075 ( La. App. Cir. 9/ 27119) 288 So. 3d 791, 794;

see also La. C. Cr.P. art. 821( B).

When a conviction is based on both direct and circumstantial evidence, the

reviewing court must resolve any conflict in the direct evidence by viewing that
evidence in the light most favorable to the prosecution. When the direct evidence is

thus viewed, the facts established by the direct evidence and the facts reasonably
inferred from the circumstantial evidence must be sufficient for a rational juror to

conclude beyond a reasonable doubt the defendant was guilty of every essential
element of the crime. Legaux, 288 So. 3d at 794. When a case involves

circumstantial evidence and the jury reasonably rejects the hypothesis of innocence

presented by the defense, that hypothesis falls, and the defendant is guilty unless
there is another hypothesis which raises a reasonable doubt. Legaux, 288 So. 3d at

796.

3

For the deaths of Bowling and Coss, the defendant was convicted of vehicular

homicide, which at the applicable time period, was defined, in pertinent part, by La.
R.S. 14: 32. 13 as:

A.
Vehicular homicide is the killing of a human being caused
proximately or caused directly by an offender engaged in the operation
of, or in actual physical control of, any motor vehicle ... whether or
not the offender had the intent to cause death or great bodily harm,
whenever any ofthe following conditions exist and such condition was
a contributingfactor to the killing:

1) The operator is under the influence of alcoholic beverages as
determined by chemical tests administered under the provisions of R.S.
32: 662.

2) The operator' s blood alcohol concentration is 0. 08 percent or more
by weight based upon grams of alcohol per one hundred cubic
centimeters of blood.

3)
The operator is under the influence of any controlled dangerous
substance listed in Schedule I, 1I, III, IV, or V as set forth in R.S.
40: 964.

4) The operator is under the influence of alcoholic beverages.

5)( a) The operator is under the influence of a combination of alcohol

and one or more drugs which are not controlled dangerous substances
and which are legally obtainable with or without a prescription.

Emphasis added).

To sustain a conviction for vehicular homicide, the State must prove the

following elements: ( 1) the killing of a human being; ( 2) caused proximately or

caused directly by an offender engaged in the operation of any motor vehicle; ( 3) a

prohibited degree of intoxication; and ( 4) a link between the intoxication and the

killing. Most importantly, the link between the intoxication and the killing does not

have to be a " proximate cause," but simply a " contributing factor." State v. Leger,

2017- 2084 ( La. 6/ 26/ 19) 284 So. 3d 609, 615- 16. A " proximate cause" is one that

directly produces an event and without which the event would not have occurred.

By contrast, a " contributing cause" is a factor that —though not the primary cause —

3 We note that La. R.S. 14: 32. 1 was amended by 2024 La. Acts, No. 662, §
1, eff. Aug. 1, 2024.

11

plays a part in producing a result. A "factor" is an agent or cause that contributes to

a particular result.
Leger, 284 So.3d at 616 ( internal citations omitted).

In the instant case, the defendant challenges the sufficiency of the evidence
offered in support ofthe link between his intoxication and the deaths ofBowling and
Coss.
Thus, the question is whether the State offered sufficient evidence to establish
that the defendant' s intoxication was a " contributing factor" to the killings. See La.

R.S. 14: 32. 1( A);
Leger, 284 So.3d at 617; State v. Melancon, 2021- 1489 ( La. App.
1St Cir. 9/ 16/ 22) 2022 WL 4286614, * 4 ( unpublished), writ denied, 2022- 01544 (La.

1/ 25/ 23) 354 So. 3d 9.

For the death of Dufrene, the defendant was convicted of the responsive

verdict of negligent homicide, which is pertinently defined as the killing of a human
being by criminal negligence. See La. R.S. 14: 32( A)( 1). Criminal negligence exists

when, although neither specific nor general criminal intent is present, there is such

disregard of the interest of others that the offender' s conduct amounts to a gross

deviation below the standard of care expected to be maintained by a reasonably
careful person under like circumstances. La. R.S. 14: 12. A defendant' s conduct

need not be the sole proximate cause of the victim' s death. Rather, it is sufficient

for the defendant' s acts to be a " contributing cause" or a " substantial factor" in the

resulting death. See State v. Martin, 539 So.2d 1235, 1238- 1239 ( La. 1989).

At trial, Steven Kraemer, a firefighter with the Chackbay Fire Department,
testified that shortly after midnight on November 20, 2021, he and his team were

dispatched to a two -vehicle accident on Louisiana Highway 20, about a quarter mile
from the bar M2.
According to Kraemer, the highway did not have shoulders and
was dark because many streetlights were out after Hurricane Ida. As Kraemer

approached the scene, he observed two vehicles completely engulfed in flames. The

front of the truck, which was still partially on the road, was resting against the front
of the other vehicle, which was in the ditch. When Kraemer approached the back of

5

the truck, a man, later identified as the defendant, emerged and stated, " I f* *ed* up.

Go get them."
Kraemer testified that after the fire was extinguished, they removed
the victims' bodies from the vehicle.

Louisiana State Trooper Leeman Howard testified that when he responded to

the scene, he observed an overturned vehicle on fire off the northbound lane and

another vehicle on fire still partially in the northbound lane. Trooper Howard then

spoke to the defendant, who stated that he was driving about fifty miles per hour
prior to the crash.
Trooper Howard testified that he suspected the defendant was

intoxicated, as he had bloodshot, glossy eyes and slurred speech.
After speaking

with the defendant, Trooper Howard assessed the scene and noted there were gouge

marks in the northbound lane, as well as a tire mark left by the truck on the center
line. Regarding the condition of the highway, Trooper Howard testified the accident

occurred in a sweeping curve, streetlights in the area were unlit due to Hurricane Ida,
and the road did not have shoulders. Based on the damage to the vehicles and their

points of rest after impact, Trooper Howard suspected it was a high-speed crash.

Louisiana State Trooper Ashton McCrae corroborated Trooper Howard' s

observations of the accident and the defendant' s intoxication at the scene. Trooper

McCrae testified the defendant exhibited bloodshot eyes and slurred speech, smelled

of alcohol, appeared frantic and emotional, and repeatedly stated, "[ T] hey were in
my lane. [ They were] in my lane." At that time, Trooper McCrae advised the

defendant of his rights and transported him to the hospital, where his blood was
drawn by a nurse.' Later that same day, Trooper McCrae interviewed the defendant,

who stated that he left work and briefly went home before going to the bar M2. The

defendant noted that prior to the accident, he ingested his prescription medications

4 The defendant was advised of his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S. Ct.
1602, 16 L.Ed.2d 694 ( 1966).

31

Adderall and Zoloft. He also drank approximately four beers and a couple shots of

liquor.

Dr. John King performed the autopsies on Dufrene, Bowling, and Coss and

testified the victims suffered massive trauma and died on impact as a result of the

high- speed accident. According to Dr. King, the victims' injuries were caused by a

tremendous amount of energy and were comparable to injuries obtained in accidents

involving eighteen -wheelers. Dr. King also reviewed the toxicology analysis

performed on each victim and stated there was no evidence of alcohol in the victims'

blood.

A toxicology analysis of the defendant' s blood revealed evidence of

amphetamine ( Adderall) and Sertraline ( Zoloft). Additionally, his blood alcohol

concentration ( BAC) level was 0. 16 at the time his blood was drawn at 3: 28 a.m.,

approximately three hours after the accident.

Dr. William George, an expert in pharmacology and toxicology, testified
regarding the effects of the alcohol and drugs in the defendant' s blood at the time of

the crash. Dr. George explained amphetamine is a central nervous system stimulant,

while Sertraline is an antidepressant. Dr. George noted that when these two drugs

are combined,
a person may become agitated, anxious, nervous, and possibly

confused.

Dr. George testified that for a person with a BAC of 0. 16 ( the defendant' s

BAC three hours after the accident), reaction time increases by around fifty percent,

and the risk of getting into a fatal car accident is twenty-five to thirty-two times
greater than a sober person. Based on a retrograde calculation, Dr. George

determined the defendant' s BAC at the time of the accident was 0. 22. Dr. George

noted a person with a BAC of 0.22 has increased confidence, significantly impaired
reaction time and motor coordination, disinhibited thinking processes, reduced

visual acuity, and drowsiness. He further noted a person with a BAC of 0. 22 has a

7

forty to fifty times greater risk of getting into a fatal car accident. Based on the poor

lighting conditions of the highway, the high rate of speed, and the defendant' s 0.22

BAC, Dr. George opined the defendant experienced significant impairment in his

central nervous system and vision at the time of the crash. On cross- examination,

however, he conceded the defendant' s impairment had no effect on Dufrene' s

vehicle entering his lane.

Adam Hyde, an expert in accident crash reconstruction, prepared a traffic

crash reconstruction report based on his inspection of the vehicles and review of the

traffic crash reports, toxicology reports, autopsy reports, photographs, and body

camera and patrol car video footage. Hyde determined that at the time of impact,

Dufrene' s speed was between forty-nine and fifty-two miles per hour, while the

defendant' s speed was between eighty-five and ninety-three miles per hour. The

posted speed limit on Highway 20 was fifty-five miles per hour.

Hyde testified that the initial contact between the vehicles occurred when

Dufrene swerved to the left, leaving behind a yaw mark, and hit the defendant' s truck

in the northbound lane, which was the defendant' s lane of travel.' Hyde noted that

Dufrene' s SUV had a change in speed of over seventy miles per hour, which took a

tremendous amount of force and energy and greatly increased the risk of severe or

fatal injuries.6 Based upon his review of the toxicology reports, Hyde testified that
the defendant' s intoxication and excessive speed were factors in the crash.

Hyde further testified the accident occurred entirely in the northbound lane,

and he could not determine what caused Dufrene to swerve over the center line into

the defendant' s lane and enter into the yaw. Hyde testified there was no evidence

the defendant crossed the center line into the southbound lane at the time of impact,

5 Hyde explained a yaw mark is created when the tires spin and the vehicle rotates as it moves to
a new position.

6 Hyde explained a gouge mark requires a significant amount of force and is created when the
vehicles hit each other, dig into the ground, and rip away part of the road itself.

and he confirmed there would not have been an accident if Dufrene had continued

forward in the southbound lane.

The factfinder can accept or reject the testimony of any witness. To resolve

conflicting testimony relative to factual matters, the factfinder must make credibility

determinations and weigh the evidence. The Jackson standard of review does not

permit a reviewing court to substitute its own appreciation of the evidence for the

factfinder' s, assess the credibility of witnesses, or reweigh evidence. State v.

Pt

Dupre, 2022- 1228 ( La. App. Cir. 4/ 14/ 23) 367 So. 3d 81, 88.

Vehicular Homicide

After a thorough review of the record, we find the evidence presented in this

case, viewed in the light most favorable to the State, proved beyond a reasonable

doubt, and to the exclusion of every reasonable hypothesis of innocence, all of the

elements of vehicular homicide for the deaths of Bowling and Coss. The defendant

on appeal focuses on the fact that his intoxication did not contribute to or cause the

accident. However, the plain language of the vehicular homicide statute requires the

State to prove the defendant' s intoxication was a contributing factor to the killings.

See La. R. S. 14: 32. 1( A). The State clearly met this burden of proof.

At trial, the State presented evidence that at the time of the accident, the

defendant had a BAC of 0.22, almost three times the legal limit, and was driving

around ninety miles per hour in a fifty-five mile per hour area. According to Dr.

George and Dr. King, the defendant' s intoxication, combined with his excessive

speed, were factors in the victims' deaths. Dr. George and Dr. King both testified

the defendant' s speed directly contributed to more severe damage to the vehicles, as

well as more severe injuries and instant deaths of the victims.

The State also presented evidence that the portion of Highway 20 where the

accident occurred had a sweeping curve, had no shoulders, and was unlit due to

damaged streetlights. Notably, Dufrene had slowed down to around fifty miles per

9

hour at the time of impact, demonstrating the difficulty of negotiating the curve in

the dark. The defendant, on the other hand, maintained his high rate of speed. In

fact, Troopers Howard and McCrae testified the defendant seemed unaware of how

fast he was driving, stating he was only driving around fifty miles per hour at the

time of the crash.

Finally, Dr. George testified regarding the substantial impairment the

defendant experienced as a result of his 0. 22 BAC, including increased confidence,

significantly impaired reaction time and motor coordination, disinhibited thinking

processes, and reduced visual acuity, all of which increased the likelihood of a fatal

car accident. According to Dr. George, the defendant would have struggled to drive

safely, felt more comfortable taking risks such as speeding, and would have been

less likely to inhibit himself from doing something he should not do, e.g., driving
while intoxicated. Moreover, the defendant' s ingestion of Adderall and Zoloft may

have caused him to feel agitated, anxious, nervous, and/ or confused in addition to

his inebriated condition. Based on the numerous substances impacting the

defendant' s state of mind and physical functioning, the jury could have rationally
concluded the defendant' s intoxication impaired his judgment and caused him to

excessively speed on a dark, dangerous highway, contributing to the victims'

immediate deaths on impact. See Leger, 284 So. 3d at 617- 18; Melancon, 2022 WL

4286614 at * 5.

Nerlikent Homicide

We further find the jury was also reasonable in finding the defendant guilty
of the responsive verdict of negligent homicide for the death of Dufrene. The

defendant made similar arguments on appeal regarding the charge of negligent
homicide to those he made with respect to the charges of vehicular homicide, in

particular, that the State failed to prove his intoxication was a substantial factor in

10

causing the accident. However, the State was required to prove his intoxication was

a substantial factor in causing Dufrene' s death. See Martin, 539 So.2d at 1239.

Herein, the State' s evidence established the defendant engaged in a series of

criminally negligent acts that led directly to Dufrene' s death. While already under

the influence of Adderall and Zoloft, the defendant consumed a significant amount

of alcohol before driving between thirty and forty miles per hour over the speed limit

on a dark highway with no shoulders. Dr. King noted the accident was akin to an

eighteen-wheeler accident, based in large part on the speed at which the defendant

was traveling. Although the accident likely would have happened regardless, the

accident would not necessarily have been fatal but for the defendant' s high rate of

speed.
According to Hyde, the high rate of speed led to a significant change in

energy, which greatly increased the risk of fatalities. Thus, the jury rationally

concluded the defendant' s high rate of speed was connected to his high level of

intoxication, and that such intoxication was a substantial factor in Dufrene' s death.

See La. R.S. 14: 32; Martin, 539 So.2d at 1239; State v. Wheat, 471 So. 2d 1027,

1029 ( La. App. 1st Cir. 1985).

In reviewing the evidence in the light most favorable to the prosecution, we find

a rational factfinder could have found the State proved beyond a reasonable doubt all

of the elements of vehicular homicide and negligent homicide. An appellate court errs

by substituting its appreciation of the evidence and credibility of witnesses for that of

the factfinder and thereby overturning a verdict on the basis of an exculpatory
hypothesis of innocence presented to, and rationally rejected by, the jury. State v.
Calloway, 2007- 2306 ( La. 1/ 21/ 09) 1 So.3d 417, 418 (per curiam).

These assignments of error are without merit.

EXCESSIVE SENTENCE

In his third assignment of error, the defendant argues the trial court imposed

an unconstitutionally excessive sentence. He further argues he received ineffective

11

assistance of counsel at sentencing based on counsel' s failure to present any

mitigating evidence. Due to patent sentencing errors on counts two, three, and four,

we pretermit discussion of this assignment of error on those counts. However, we

discuss the merits as to count one.

The Eighth Amendment to the United States Constitution and Article I, § 20

of the Louisiana Constitution prohibit the imposition of cruel or excessive

punishment.
A sentence within statutory limits may still be considered excessive if

it is grossly disproportionate to the severity of the offense or is nothing more than a

needless infliction of pain and suffering. A sentence is grossly disproportionate if,

when the crime and punishment are considered in light of the harm done to society,

it shocks the sense ofjustice. A trial court has great discretion in imposing a sentence
within statutory limits, and an appellate court should not set aside a sentence in the

absence of an abuse of discretion.
State v. Kimble, 2023- 0176 ( La. App. 1St Cir.
9/ 21/ 23) 376 So. 3d 869, 874- 75.

Louisiana Code of Criminal Procedure art. 894. 1 sets forth factors the trial

court must consider before imposing a sentence. The trial court need not recite the

entire checklist of La. C. Cr.P. art. 894. 1, but the record must reflect it adequately
considered the criteria.
In light of the criteria expressed by La. C. Cr.P. art. 894. 1,

an appellate court' s review for individual excessiveness should consider the

circumstances of the crime and the trial court' s stated reasons and factual basis for

its sentencing decision. Remand for full compliance with La. C. Cr.P. art. 894. 1 is

unnecessary when a sufficient factual basis for the sentence is shown. Kimble, 376

So. 3d at 874.

In the present case, the jury found the defendant guilty of the responsive

verdict of negligent homicide for the death of Lily Dufrene. At the sentencing

hearing, the trial court heard victim impact statements from the victims' friends and

family members, detailing their grief, their sense of loss, and the toll the deaths had

12

on everyone who knew and loved them. Before imposing the sentence, the trial court

stated it considered the suffering imposed upon the victims' families, noting " it was

done for nothing."

The trial court also considered the defendant' s criminal history, including

numerous prior arrests and convictions for DWI. The trial court presided over the

defendant' s most recent DWI case in 2017 and specifically sentenced the defendant

to two years in prison, hoping that would hold the defendant accountable for his

actions and deter him from committing another DWI. The trial court found there

was nothing in the defendant' s history that suggested he was capable of change or

rehabilitation, stating that if the defendant was released, he would likely kill another

person by drunk driving.

Whoever commits the crime of negligent homicide shall be imprisoned with

or without hard labor for not more than five years, fined not more than five thousand

dollars, or both. La. R.S. 14: 32( C)( 1). The trial court sentenced the defendant to

five years at hard labor for Dufrene' s death. On appeal, the defendant contends the

trial court abused its discretion by failing to articulate reasons for imposing near -

maximum consecutive sentences and failing to consider the sentencing guidelines of

La. C. Cr.P. art. 894. 1. However, the defendant failed to urge these specific grounds

for excessiveness in his motion to reconsider sentence. Rather, he only argued the

sentence was unconstitutionally excessive. As the trial court denied the motion

without a hearing, the defendant made no argument to the trial court regarding these

specific grounds. Accordingly, the defendant is precluded from raising such grounds
s'
for the first time on appeal. State v. Troselair, 2022- 0798 (La. App. 1 Cir. 3/ 13/ 23)

2023 WL 2468528, * 3 ( unpublished), writ denied, 2023- 00534 ( La. 10/ 17/ 23) 371

So. 3d 1072; see La. C. Cr.P. art. 881. 1( B) and ( E). However, we will review the

defendant' s sentence under a bare excessiveness claim. Trosclair, 2023 WL

2468528 at * 3.

13

Considering the senseless nature of the victims' deaths in this case, we find

no abuse of discretion in the trial court' s imposition of a five-year sentence for the

defendant' s negligent homicide conviction. The trial court considered the

defendant' s criminal history and lack of accountability, as well as the severity and

impact of the crime when imposing the defendant' s sentence. The defendant had

multiple prior DWI convictions, with his most recent conviction resulting in a two-

year sentence of imprisonment. Despite receiving several chances at rehabilitation,

however, the defendant continued to engage in the reckless behavior of driving while

intoxicated, disregarding the rule of the law, and placing the safety of others at risk.

The defendant' s actions that night resulted in the deaths of three young women, who

had their whole lives ahead of them, leaving behind a hole in the hearts of many

friends and family members. Moreover, the record shows no expression of remorse

or accountability by the defendant, as evidenced by his blaming Dufrene for causing
the accident, before the trial court and on appeal. Any lesser sentence would

depreciate the seriousness ofthe defendant' s crime, which ended a life. The sentence

imposed is not grossly disproportionate to the severity of the offense or shocking to

the conscience and, thus, is not unconstitutionally excessive. See Melancon, 2022

WL 4286614 at * 8.

INEFFECTIVE ASSISTANCE OF COUNSEL

An ineffective assistance of counsel claim is more properly raised by an

application for post -conviction relief in the trial court where a full evidentiary
hearing may be conducted.' However, where the record discloses evidence needed

to decide the issue of ineffective assistance of counsel, and that issue was raised by
assignment of error on appeal, the issue may be addressed in the interest ofjudicial

7 The defendant would have to satisfy the requirements of La. C. Cr.P. art. 924, et seq., in order to
receive such a hearing. Anderson, 2023- 2071 ( La. App. 1st Cir. 11/ 3/ 23) 2023 WL 7270839, * 4
n.6 ( unpublished).

14

economy. State v. Anderson, 2023- 0271 ( La. App. I" Cir. 11/ 3/ 23) 2023 WL

7270839, * 4 ( unpublished), writ denied, 2023- 01591 ( La. 5/ 21/ 24) 385 So.3d 241.

Every criminal defendant is entitled to the effective assistance of counsel.

U.S. Const. amend. VI; La. Const. art. 1, § 13. Under the standard for ineffective

assistance of counsel set out in Strickland v. Washington, 466 U.S. 668, 104 S. Ct.

2052, 80 L.Ed.2d 674 ( 1984), the defendant must first show the attorney' s

performance was deficient, which requires a showing that counsel made errors so

serious he was not functioning as counsel guaranteed by the Sixth Amendment.

Secondly, the defendant must prove the deficient performance prejudiced the

defense. State v. Anderson, 2022- 0587 ( La. App. 1st Cir. 12/ 22/ 22) 357 So.3d 845,

854, writ denied, 2023- 00352 ( La. 9/ 6/ 23), 369 So. 3d 1267. If the defendant can

show a reasonable probability that, but for counsel' s error, his sentence would have

been different, a basis for an ineffective assistance claim may be found. Id.

As applied to ineffective assistance at sentencing claims, an objectively

reasonable standard of performance requires that counsel be aware of the sentencing

options in the case and ensure all reasonably available mitigating information and

legal arguments are presented to the court. State v. Harris, 2018- 1012 ( La. 7/ 9/ 20),

340 So. 3d 845, 858. Under Strickland, counsel is not required to investigate every

conceivable line of mitigating evidence no matter how unlikely the effort would be

to assist the defendant at sentencing, nor is counsel required to present mitigating

evidence at sentencing in every case. Wiggins v. Smith, 539 U.S. 510, 533, 123

S. Ct. 2527, 2541, 156 L.Ed.2d 471 ( 2003). Both conclusions would interfere with

the " constitutionally protected independence of counsel" at the heart of Strickland.

Wiggins, 539 U.S. at 533, 123 S. Ct. at 2541.

On appeal, the defendant asserts that because the trial court failed to order a

pre -sentence investigation report, his trial counsel should have advocated for an

appropriate sentence at the sentencing hearing. The defendant contends his counsel

15

was ineffective for failing to submit a sentencing memorandum, failing to argue or

present any mitigating evidence, and failing to call any witness to testify.

Specifically, he claims his counsel should have presented the following mitigating
evidence: ( 1) he worked as a first responder and firefighter for thirteen years; ( 2) he

was a lifelong resident of Lafourche Parish; ( 3) he was a father to two young

children; (
4) he was employed as a foreman in Geismar and held steady employment

for twenty years; ( 5) his longest period of incarceration prior to his arrest on these

charges was two years, of which he served five months; and ( 6) he did not cause the

accident herein. Citing Harris, the defendant asserts his counsel was clearly

deficient, and thus, his sentence should be vacated and the case remanded for

resentencing.

In Harris, 340 So. 3d at 858, the Louisiana Supreme Court held counsel at

sentencing could be ineffective for failing to investigate mitigating circumstances.

The defendant in Harris contended his attorney was ineffective at sentencing

because he failed to argue for a downward departure from a mandatory life sentence
under the habitual offender statute. In agreeing with the defendant, the Court noted

counsel does not adequately represent his client when he fails to conduct a

reasonable investigation into factors which may warrant a downward departure from

the mandatory minimum. Id.

The Third Circuit Court of Appeal relied on Harris in finding a defendant

received ineffective assistance of counsel at sentencing, where counsel failed to

investigate or present mitigating evidence. State v. Forrester, 2021- 140 ( La. App.

3r1 Cir. 10/ 6/ 21) 329 So. 3d 379, 382- 83. The defendant therein faced a sentence of

twenty- five to ninety-nine years, and the trial court imposed the maximum sentence.

Id. at 383. During the sentencing hearing, counsel admitted he had no knowledge of

the case and had not reviewed the defendant' s file prior to the hearing. Thus, the

16

appellate court found counsel' s complete failure to represent the defendant

constituted ineffective assistance. Id.

This Court reviewed a defendant' s claim that he received ineffective

assistance of counsel at sentencing because his counsel failed to present mitigating
evidence in Anderson, 2023 WL 7270839. Therein, the defendant was convicted

of DWI fourth offense stemming from a car accident in which he injured a

pedestrian. Anderson, 2023 WL 7270839 at * 1. The defendant faced a sentence of

ten to thirty years, and the trial court imposed a fifteen -year sentence. Immediately

after sentencing, defense counsel informed the trial court of the several mitigating
factors. The trial court maintained the sentence but recommended substance abuse

treatment during incarceration, noting successful completion could affect the

defendant' s period of incarceration. Anderson, 2023 WL 7270839 at * 5. On

appeal,
this Court found no deficiency in counsel' s performance based on the

mitigating factors presented to the court, as the trial court subsequently considered
the factors. This Court further concluded the defendant failed to show the sentence

would have been different, as the trial court did not alter the sentence after counsel

presented the mitigating evidence. Id.

We find the instant case distinguishable from Harris, Forrester, and

Anderson.
Herein, the defendant was not subject to a mandatory life sentence like
the defendant in Harris. Rather, he was subject to a term of one to five years

imprisonment for his negligent homicide conviction, and the trial court imposed the
maximum sentence.
Further, unlike Forrester, the defendant' s counsel represented

him from the time of his arraignment through sentencing. Thus, his counsel was not
unfamiliar with the defendant and the case. See State in Interest of H.B., 2022-

157, 2022- 221 ( La. App. 3' Cir. 10/ 19/ 22) 350 So. 3d 214, 232, writ denied, 2022-

01691 ( La. 2/ 7/ 23), 354 So. 3d 672.

17

However,
we are troubled by the fact that counsel did not present any

argument or mitigating evidence at the sentencing hearing. After the State presented

numerous victim impact statements from the victims' families and friends, defense

counsel simply stated the defendant would not make a statement and was ready to

waive sentencing delays and proceed with sentencing at that time. Unlike

Anderson, there is no indication in the record the trial court was aware of any
mitigating factors in this case. Moreover, the trial court did not have access to a pre-

sentence investigation report, which would have included information regarding the
defendant' s criminal history, his family situation and background, economic and

employment status, education, and personal habits. See La. C. Cr.P. art. 875( A)( 1).

While the trial court was aware of the defendant' s criminal history, it is unclear

whether it was aware of the defendant' s family situation and employment status,

which the defendant contends his counsel should have presented to the trial court.

Cf. State v. Zackery, 53, 058 ( La. App. 2nd Cir. 11/ 20119) 285 So. 3d 499, 506

appellate court reviewed defendant' s ineffective assistance claim on ground that

counsel failed to present mitigating evidence, where evidence was presented at

various pre- trial hearings and trial court had access to pre -sentence investigation

report including evidence).

Considering the above, we find appellate review of the defendant' s ineffective

assistance of counsel claim is limited by the record. C£ Anderson, 2023 WL

7270839 at * 5. Accordingly, this claim is more properly relegated to post -conviction

proceedings, where the trial court may conduct a full evidentiary hearing. See

Anderson, 357 So. 3d at 854.

Pursuant to La. C. Cr.P. art. 920( 2), this Court routinely conducts a review of

all appeals for error discoverable by mere inspection of the pleadings and
proceedings and without inspection of the evidence. State v. Anthony, 2023- 0117

18

La. App. I" Cir. 11/ 3/ 23) 378 So. 3d 766, 775, writ denied, 2024- 00027 ( La.

5/ 21/ 24) 385 So. 3d 242. Our review has revealed several patent errors.

On count one, the defendant was convicted of negligent homicide. Although

the sentencing transcript reflects the defendant was convicted of negligent homicide,

the sentencing minutes and the uniform commitment order reflect the defendant was

convicted ofvehicular homicide on this count. Where there is a discrepancy between
the transcript and a minute entry and/ or commitment order, the transcript prevails.

State v. Lynch, 441 So. 2d 732, 734 ( La. 1983); see also State v. Johnson, 2020-

0679 ( La. App. I" Cir. 4/ 28/ 21) 2021 WL 1662420, * 6 n.4 ( unpublished), writ

denied, 2021- 00802 ( La. 10/ 5/ 21) 325 So. 3d 381. Because this error has the

potential to cause prejudice to the defendant, we instruct the trial court to amend the

minute entry and commitment order to accurately reflect the defendant' s negligent

homicide conviction and to transmit a corrected commitment order to the
Department of Corrections Legal Department. See State v. McMooain, 2014- 1067

La. App. 1St Cir. 3/ 6/ 15) 2015 WL 997164, * 4 ( unpublished), writ denied, 2015-

0655 ( La. 2/ 26/ 16) 187 So. 3d 467.

On each count of vehicular homicide ( counts two and three), the trial court

failed to impose a mandatory fine of not less than two thousand dollars nor more
than fifteen thousand dollars. The trial court also failed to order the defendant to

participate in a court -approved substance abuse program. See La. R. S. 14: 32. 1( B).

Additionally, the trial court failed to impose the statutorily required restriction
of benefits on each count of vehicular homicide ( counts two and three), as well as

for operating a motor vehicle while intoxicated, fourth offense ( count four). For

each count of vehicular homicide, at least five years of the sentence must be served
without benefit of parole, probation, or suspension of sentence,
as the jury

specifically found the defendant' s blood alcohol concentration level was 0. 15
percent or more. See La. R.S. 14: 32. 1( B). For operating a motor vehicle while

19

intoxicated, fourth offense, at least two years of the sentence must be served without
benefit of parole, probation, or suspension of sentence. See La. R.S. 14: 98. 4( A)( 1).

Therefore, the trial court' s sentences on these counts are illegally lenient.
We note neither the State nor the defendant has raised these errors on appeal,

and the sentences are not inherently prejudicial to the defendant. However, because

the trial court has discretion in assessing the amounts of the fines imposed and the

period of time in which the defendant' s sentences are to be served without parole

eligibility, we remand for resentencing on counts two, three, and four. On remand,

the trial court is instructed to impose a fine and to order the defendant to participate

in a court -approved substance abuse program for each count of vehicular homicide
pursuant to La. R. S. 14: 32. 1( B). 1
The trial court is further instructed to specify the
amount of time to be served without benefits for each count of vehicular homicide,

as well as for operating a motor vehicle while intoxicated, fourth offense. See State
211
v. Robertson, 53, 970 ( La. App. Cir. 6/ 30/ 21) 322 So. 3d 937, 946- 47; State v.

Bennett, 2016- 432 ( La. App. 3rd Cir. 12/ 7/ 16) 208 So.3d 898, 900.

Finally, the trial court also failed to advise the defendant of the applicable time

period to file an application for post -conviction relief pursuant to La. C.Cr.P. art.
930. 8.
We instruct the trial court to notify the defendant of this time period at
resentencing.

CONCLUSION

For the above reasons, we affirm the convictions and the sentence on count

one with instructions to amend the minute entry and uniform commitment order. We
vacate the sentences and remand for resentencing on counts two, three, and four with
instructions.

8 We note the trial court waived the mandatory fine for the defendant' s conviction ofdriving while
intoxicated with no objection from the State. However, the trial court did not discuss or waive the
mandatory fines for the defendant' s convictions for vehicular homicide. On remand, the trial court
is not prohibited from also waiving these fines, but it must comply with La. C. Cr.P. art. 875. 1.
20

CONVICTIONS AFFIRMED; SENTENCE ON COUNT ONE AFFIRMED
WITH INSTRUCTIONS; SENTENCES VACATED AND REMANDED FOR
RESENTENCING ON COUNTS TWO, THREE, AND FOUR WITH
INSTRUCTIONS,

21