State of Louisiana Versus Rene Fuentes

STATE OF LOUISIANA NO. 23-KA-502

VERSUS FIFTH CIRCUIT

RENE FUENTES COURT OF APPEAL

STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-NINTH JUDICIAL DISTRICT COURT
PARISH OF ST. CHARLES, STATE OF LOUISIANA
NO. 20,330, DIVISION "D"
HONORABLE M. LAUREN LEMMON, JUDGE PRESIDING

July 31, 2024

AMANDA L. CALOGERO
JUDGE

Panel composed of Judges Stephen J. Windhorst,
John J. Molaison, Jr., and Amanda L. Calogero, Pro Tempore

SENTENCE AFFIRMED; REMANDED WITH INSTRUCTIONS
ALC
SJW
JJM

COUNSEL FOR PLAINTIFF/APPELLEE,
STATE OF LOUISIANA
Joel T. Chaisson, II
Louis G. Authement

COUNSEL FOR DEFENDANT/APPELLANT,
RENE FUENTES
Lieu T. Vo Clark

CALOGERO, PRO TEMPORE, J.

Defendant, Rene Fuentes, seeks review of his sentence for his conviction for

fourth offense driving while intoxicated (DWI). For the following reasons, we

affirm defendant’s sentence. However, we remand the matter for correction of

errors patent.

PROCEDURAL HISTORY

This is defendant’s second appeal. Defendant was charged by bill of

information with driving a vehicle while intoxicated (DWI) subsequent to a fourth

offense, in violation of La. R.S. 14:98. He initially pled not guilty but later

withdrew his not guilty plea and entered a plea of guilty while reserving his right to

appeal the trial court’s denial of his motion to suppress as permitted by State v.

Crosby, 338 So.2d 584, 588 (La. 1976). Additionally, he reserved his right to

appeal his sentence as being excessive. State v. Fuentes, 22-89 (La. App. 5 Cir.

11/2/22), 353 So.3d 911, 913.

At the sentencing hearing, the trial court ordered defendant to serve 30
years with the Department of Corrections, suspending 10 years “to run
consecutive to the revocations in 2 other matters, which I understand
that you’re backing up 9 years, and you’ll do substantially less than
that, based on the Department of Corrections guidelines.” The trial
court further imposed five years of home incarceration with a
SCRAM bracelet after defendant was released. As conditions of his
home incarceration and probation, the court required defendant to
undergo a substance abuse evaluation, granted him permission to
attend substance abuse treatment, and imposed a ban on all alcohol or
drugs without a prescription. The court also suspended the mandatory
fine of $5,000 and suspended any requirement to perform community
service. Finally, the court ordered defendant to be assessed for drug
court upon his release or inpatient treatment. The sentencing Minute
Entry also indicated that defendant would be allowed to go to work
and doctors’ appointments, in addition to attending substance abuse
treatment.

Fuentes, 353 So.3d at 914-15.

Counsel for defendant filed a motion to reconsider sentence, which the trial

court denied. Defendant then appealed regarding the denial of the motion to

suppress, asserted that the trial court erred in denying his motion to reconsider

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sentence, and contended that the sentence was unconstitutionally excessive. Id. at

915. On appeal, this Court found that based on the totality of the evidence, the trial

court did not abuse its discretion in denying defendant’s motion to suppress. This

Court further found errors patent that pretermitted a discussion of defendant’s

sentencing assignments of error. Id. at 918. This Court explained that the trial

court sentenced defendant pursuant to the wrong provision of La. R.S. 14:98.4.

This Court stated that although it was not specifically enunciated, the judge

appeared to have sentenced defendant pursuant to La. R.S. 14:98.4(A) rather than

La. R.S. 14:98.4(C). Due to this error in sentencing, this Court vacated

defendant’s sentence and remanded the matter for resentencing. Id. at 918-19.

On March 23, 2023, defendant was resentenced to twenty-seven years

imprisonment with the Department of Corrections, and defense counsel objected.

A Motion to Reconsider Sentence was filed and denied. Thereafter, a motion for

appeal was filed and granted.

FACTS

The underlying facts were set forth in this Court’s first opinion:

On June 20, 2020, law enforcement received a call from a Popeye’s
Restaurant in Destrehan reporting that someone driving a light-
colored Buick SUV allegedly fell asleep in the drive-thru line. After
arriving at the Popeye’s and determining that the vehicle had departed
up River Road, deputies eventually located a vehicle meeting the
description, followed it, and, after allegedly seeing the vehicle swerve
toward the center line at least twice, pulled over the driver, who
denied being intoxicated.

The deputies did not issue a citation for any moving violation. They
asked defendant to perform field sobriety tests, however, for which he
performed poorly.

Fuentes, 353 So.3d at 913.

DISCUSSION

Defendant avers that his sentence is excessive. He explains that the State

offered and he agreed to a plea agreement but that the judge would not accept it.

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Defendant asserts that the sentence imposed on remand increased his period of

incarceration by seven years. He contends that the judge did not order a pre-

sentence investigation (PSI) and did not consider in mitigation that he completed

several programs while incarcerated. Also, defendant argues that the

circumstances do not merit a near maximum sentence. He says that a long

sentence of imprisonment imposes an excessive hardship on him because he is

sixty-three years old.

The State argues that defendant’s record of DWI offenses justifies the

sentence imposed. The State explains that the judge found that defendant was not

eligible for the plea offer. The State asserts further that the judge considered

defendant’s history of as least twelve DWI arrests over his lifetime, as well as

other sentencing considerations. The State concludes that the sentence is not

excessive.

On March 29, 2021, prior to the guilty plea colloquy and original sentence,

the parties and the judge discussed a plea offer. The judge explained that drug

court would not accept defendant because there were “two revocation or probation

holds on his priors, where he’s going to be doing nine years in prison.” After

further discussion with defense counsel about the offer, the judge stated she

thought it was defendant’s twelfth conviction or arrest.

That same day, after defendant pled guilty and was sentenced, defense

counsel objected to the sentence. The judge explained that she spent a long time

thoughtfully considering the sentence, and she held concern that defendant was a

danger to himself and others based on his lengthy DWI and criminal history. A

motion to reconsider that sentence was denied.

As previously explained, this Court ultimately vacated that original sentence

and remanded the matter for resentencing. At a hearing on February 9, 2023,

resentencing was continued to a later date, but defense counsel introduced into

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evidence for consideration “various certificates of merit or certificates of

completion or graduation certificates regarding numerous programs that Mr.

Fuentes has completed and achieved success[.]”

On March 23, 2023, defense counsel recalled that she introduced

approximately a dozen certificates of achievement at the last hearing and stated

that defendant was ready to proceed. The judge said, “Based on the work you have

done while in custody, I’m going to sentence you to 27 years with the Department

of Corrections.” Defense counsel objected to the sentence and contended that the

sentence was “unconstitutionally excessive.” The judge explained, “It’s based on

his history and how many DWIs he’s had on his rap sheet.” The judge said that

she found defendant to be a danger to the community. Defense counsel provided

that she would file a motion to reconsider. Counsel then pointed out that the

twenty-seven-year sentence was seven years in custody longer than the original

sentence.

At the outset, La. C.Cr.P. art. 881.1(B) provides that a motion for

reconsideration of sentence “shall be oral at the time of sentence or shall be in

writing thereafter and shall set forth the specific grounds on which the motion is

based.” La. C.Cr.P. art. 881.1(E) provides that “failure to make or file a motion to

reconsider sentence or to include a specific ground upon which a motion to

reconsider sentence may be based, including a claim of excessiveness, shall

preclude the state or the defendant from raising an objection to the sentence or

from urging any ground not raised in the motion on appeal or review.”

A Motion to Reconsider Sentence was filed after defendant was resentenced.

In that motion, defense counsel requested that the sentence be reconsidered

because it was imposed without considering mitigating circumstances and because

the sentence was excessive. Counsel stated that when defendant was resentenced,

the judge imposed a longer sentence without any explanation. She provided that

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the judge only considered aggravating factors. Counsel contended that the

sentence would have been significantly less harsh had the mitigating circumstances

been accorded some weight. She provided the following mitigating circumstances:

defendant did not harm anyone; defendant suffers from alcoholism, substance

abuse disorder, and bipolar disorder; defendant went four years without being

charged with a DWI; this incident occurred during a pandemic; defendant never

benefited from intensive long term treatment; the sentence is an excessive hardship

considering defendant’s age and that he is in poor mental and physical health; and

defendant made great strides at self-improvement. Counsel averred that the

sentence was grossly disproportionate to the offense.

At a hearing on the motion to reconsider sentence, the judge stated, “The

sentencing is set a number of times and the mitigating factors were introduced into

the record. I reviewed all of them. I believe I even commended Mr. Fuentes for

some of the certificates he received while incarcerated.” The judge stated she

considered all of the factors in his sentence and denied the motion. Defense

counsel objected.

The Eighth Amendment to the United States Constitution prohibits cruel and

unusual punishment. Article I, § 20 of the Louisiana Constitution also prohibits

cruel and unusual punishment but further explicitly prohibits excessive

punishment. State v. Diaz, 20-381 (La. App. 5 Cir. 11/17/21), 331 So.3d 500, 519,

writ denied, 21-1967 (La. 4/5/22), 335 So.3d 836. A sentence is unconstitutionally

excessive, even when it is within the applicable statutory range, if it makes no

measurable contribution to acceptable goals of punishment and is nothing more

than the purposeful imposition of pain and suffering and is grossly out of

proportion to the severity of the crime. State v. Bourgeois, 22-418 (La. App. 5 Cir.

4/26/23), 361 So.3d 1138, 1147. A sentence is grossly disproportionate if, when

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

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shocks the sense of justice. State v. Johnson, 22-300 (La. App. 5 Cir. 8/9/23), 370

So.3d 140, 146.

A trial judge is in the best position to consider the aggravating and

mitigating circumstances of a particular case and, therefore, is given broad

discretion when imposing a sentence. Diaz, 331 So.3d at 519-20. The issue on

appeal is whether the trial court abused its discretion, not whether another sentence

might have been more appropriate. Id. at 520. The review of sentences under La.

Const. Art. 1, § 20 does not provide an appellate court with a vehicle for

substituting its judgment for that of a trial judge as to what punishment is most

appropriate in a given case. State v. Corea-Calero, 22-117 (La. App. 5 Cir.

12/28/22), 355 So.3d 697, 701. The appellate court shall not set aside a sentence

for excessiveness if the record supports the sentence imposed. La. C.Cr.P. art.

881.4(D); Corea-Calero, supra. A reviewing court may not set a sentence aside

absent a manifest abuse of discretion. State v. Jones, 22-527 (La. App. 5 Cir.

5/24/23), 366 So.3d 821, 829.

In reviewing a trial court’s sentencing discretion, three factors are

considered: 1) the nature of the crime; 2) the nature and background of the

offender; and 3) the sentence imposed for similar crimes by the same court and

other courts. State v. Lasalle, 22-577 (La. App. 5 Cir. 8/18/23), 370 So.3d 521,

532. However, there is no requirement that specific matters be given any particular

weight at sentencing. Id.

Here, defendant pled guilty to a fourth offense DWI in violation of La. R.S.

14:98(A)(1).1 In Fuentes, 353 So.3d 911, this Court found that defendant was to

be sentenced pursuant to La. R.S. 14:98.4(C), which provides in part:

1
La. C.Cr.P. art. 881.2(A)(2) precludes a defendant from seeking review of a sentence imposed in
conformity with a plea agreement, which was set forth in the record at the time of the plea. Because no specific
sentence was agreed upon in the plea agreement and no sentencing cap was set, defendant is not precluded from
seeking review of his sentence. See State v. Morales, 12-21 (La. App. 5 Cir. 10/30/12), 102 So.3d 1038, 1041.
Further, in State v. Singleton, 614 So.2d 1242 (La. 1993) (per curiam), the Louisiana Supreme Court held
that a defendant who objected to the excessiveness of his sentence at the time of his guilty plea and specifically
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If the offender has previously received the benefit of parole,
probation, or suspension of sentence on a conviction of a fourth or
subsequent offense violation of R.S. 14:98, then on a subsequent
conviction of a fourth or subsequent offense, notwithstanding any
other provision of law to the contrary and regardless of whether the
offense occurred before or after an earlier conviction, the offender
shall be fined five thousand dollars and imprisoned at hard labor for
not less than ten nor more than thirty years.

Because defendant previously received the benefit of parole, probation, or

suspension of sentence on a conviction of a fourth or subsequent DWI, he was

resentenced to twenty-seven years imprisonment with the Department of

Corrections.

We first consider the nature of the crime as well as the nature and

background of the offender. The bill of information references DWI convictions in

January and August of 2003, February and March of 2005, and August of 2010.

The record suggests that defendant had additional DWI convictions and that he had

fifteen previous DWI arrests since 1985. Prior to the guilty plea colloquy, the

judge stated she thought it was defendant’s twelfth conviction or arrest. Also,

defendant was on parole at the time of the instant offense. As such, defendant has

a record of recidivism indicative of a strong disregard for the sentences previously

imposed and a lack of concern of the dangerous impact his behavior has on others.

While defendant argues that the judge did not consider the certificates of

achievements in imposing the sentence, we find that the judge’s statement at

sentencing proves otherwise. Further, when addressing the motion to reconsider,

the judge explained that she reviewed all of the certificates. At sentencing, the

judge considered defendant’s criminal history. The judge repeatedly found

defendant to be a danger to the community.

reserved appellate review of his sentence as part of his plea under Crosby, was entitled to a review of the merits of
his sentencing claims. The supreme court explained that denial of appellate review of the defendant’s sentence
would jeopardize the voluntariness of his plea. As such, defendant’s argument is properly before this Court.
7

Next, we consider similar sentences imposed by this Court and other courts.

Sentences of twenty-five years imprisonment have been upheld for fourth offense

DWIs such as the instant offense when the defendants had extensive histories of

driving while intoxicated. See State v. Dufrene, 12-716 (La. App. 5 Cir. 4/10/13),

115 So.3d 22 (where the defendant had five prior DWI convictions); State v.

Traylor, 51,901 (La. App. 2 Cir. 2/28/18), 246 So.3d 665, writ denied, 18-493 (La.

2/11/19), 263 So.3d 893 (where the defendant had seven prior arrests and at least

six prior convictions for DWIs); State v. Rockett, 46,404 (La. App. 2 Cir. 6/22/11),

71 So.3d 1030 (where the defendant had at least seven prior DWI convictions);

State v. Davis, 588 So.2d 1234 (La. App. 1 Cir. 1991) (where the defendant had

eight prior DWI convictions). See also State v. Johnson, 46,405 (La. App. 2 Cir.

8/10/11), 70 So.3d 1097; State v. Wiltcher, 41,981 (La. App. 2 Cir. 5/9/07), 956

So.2d 769.

Additionally, in Davis, 588 So.2d 1234, the defendant pled guilty to a

fourth-offense DWI and was sentenced to imprisonment at hard labor for twenty-

five years. At a hearing before resentencing, a correctional center employee

testified that in the preceding months, the defendant had not given him any

problems and that the defendant was an “extremely model prisoner.” The

defendant testified that he had been convicted of DWI eight times over an

approximate eight-year period. In its reasons for sentencing, the trial court

mentioned that the defendant was arrested for this offense approximately two

weeks after he began serving a probationary sentence for a third offense DWI

conviction. The first circuit concluded that the sentence was not excessive. Id. at

1238.

In Wiltcher, 956 So.2d at 779, the court affirmed a twenty-five-year sentence

imposed without benefit of probation or suspension of sentence for a DWI fourth

offender. The trial court explained that the defendant’s criminal history dated back

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more than twenty years and that he was on probation for three DWI convictions at

the time of his arrest. The court found that the judge did not abuse his sentencing

discretion. Id.

In Johnson, 70 So.3d 1097, the trial court sentenced the defendant to twenty-

five years imprisonment at hard labor following a plea of guilty to fourth offense

DWI. On appeal, the defendant argued in part that considering he was fifty-one

years old and in poor health, the sentence was essentially for life. The appellate

court provided that the defendant was on parole from a prior DWI conviction when

he was arrested for the present offense. The defendant was a sixth-felony offender,

and this was his fifth DWI conviction. The second circuit upheld the sentence. Id.

In the instant matter, in light of defendant’s extensive history of driving

while intoxicated and considering that this Court and other courts have upheld

similar sentences, we find that defendant’s sentence is not unconstitutionally

excessive. Further, while defendant received a near-maximum term of

imprisonment, he also received an illegally-lenient sentence as the judge did not

impose the mandatory fine. Additionally, defendant was on probation at the time

of this offense. While defendant alludes that the judge did not give sufficient

weight to his certificates of completion, as previously stated, there is no

requirement that specific matters be given any particular weight at sentencing. The

record supports the sentence imposed.

Further, defendant posits that the judge imposed a longer term of

imprisonment upon resentencing. Defendant was originally sentenced to thirty

years imprisonment with ten of those years suspended. The fine was also

suspended, and defendant was given five years of home incarceration after his

release. Upon resentencing, the judge sentenced defendant to twenty-seven years

imprisonment. Practically speaking, the sentence imposed after his first appeal

increased the period of incarceration by seven years.

9

However, the first sentence was illegal, and defendant was not entitled to

have any portion of the sentence suspended. Additionally, while the statutory

sentencing range for both subsections is the same, the subsection defendant was

properly sentenced under was intended to impose a harsher sentence. La. R.S.

14:98.4(C) applies if the offender has already received the benefit of parole,

probation, or suspension of sentence. The current sentence is still beneficial to

defendant in that the mandatory fine and maximum term of imprisonment were not

imposed. Also, once defendant is released, unlike his original sentence, he will not

be on home incarceration. Given the original sentence was not legal and that the

two sentences are not comparable, we find that defendant’s argument that the new

sentence is longer and, therefore, excessive lacks merit.

Additionally, while defendant mentions that the judge did not order a PSI,

the law does not provide a defendant with an absolute right to a PSI report. Rather,

a PSI report is an aid to the trial court and is ordered at its discretion. See La.

C.Cr.P. art. 875; State v. Ervin, 23-11 (La. App. 5 Cir. 8/30/23), 370 So.3d 1236,

1247, writ denied, 23-1336 (La. 4/9/24), 382 So.3d 816. For the above reasons, we

conclude that the assignment of error lacks merit.

ERRORS PATENT REVIEW

The record was reviewed for errors patent according to La. C.Cr.P. art. 920;

State v. Oliveaux, 312 So.2d 337 (La. 1975); and State v. Weiland, 556 So.2d 175

(La. App. 5 Cir. 1990).

La. R.S. 14:98.4(C) provides:

If the offender has previously received the benefit of parole,
probation, or suspension of sentence on a conviction of a fourth or
subsequent offense violation of R.S. 14:98, then on a subsequent
conviction of a fourth or subsequent offense, notwithstanding any
other provision of law to the contrary and regardless of whether the
offense occurred before or after an earlier conviction, the offender
shall be fined five thousand dollars and imprisoned at hard labor for
not less than ten nor more than thirty years. No part of the sentence
shall be imposed with benefit of parole, probation, or suspension of

10

sentence, and no portion of the sentence shall be imposed
concurrently with the remaining balance of any sentence to be served
for a prior conviction for any offense.

There are two errors with the sentence. First, the mandatory fine of five

thousand dollars was not imposed. Here, defendant is represented by the Louisiana

Appellate Project, which represents indigent defendants in non-capital felony

cases. Therefore, due to defendant’s indigent status, we decline to remand this

matter for imposition of the mandatory fine. See State v. Woods, 23-41 (La. App. 5

Cir. 11/15/23), 376 So.3d 1144; State v. Fisher, 19-488 (La. App. 5 Cir. 6/24/20),

299 So.3d 1238, 1249.

Additionally, the judge failed to restrict benefits for the entirety of the

sentence. When a district court does not mention the restriction of benefits, such

conditions are deemed to exist by operation of law under La. R.S. 15:301.1.

Bourgeois, 361 So.3d at 1151 (citing State v. Williams, 00-1725 (La. 11/28/01),

800 So.2d 790, 799).

The uniform commitment order (UCO) also contains an error. The UCO

reflects that the box stating, “Recommended for Substance Use Disorder Treatment

Screening” was checked. However, the sentencing transcript does not reflect such

a recommendation.

In light of the discrepancy, we remand for correction of the UCO to reflect

the sentence as reflected in the transcript regarding the lack of recommendation for

substance use disorder treatment screening and to reflect the restriction of benefits

as previously addressed. Also, we direct the Clerk of Court for the 29th Judicial

District Court to transmit the original of the corrected UCO to the institution to

which defendant has been sentenced and to the Department of Corrections’ legal

department. See State v. Breaux, 22-535 (La. App. 5 Cir. 4/26/23), 362 So.3d

1020, 1026-27.

11

Finally, the sentencing transcript reflects that the judge advised, “There’s a

two-year time limitation to file any postconviction relief. That time period begins

to run once all appellate delays run and this conviction becomes final.” This is an

incomplete advisal. See State v. Hicks, 16-462 (La. App. 5 Cir. 2/8/17), 213 So.3d

458, 469, writ denied, 17-445 (La. 11/13/17), 230 So.3d 205. If a trial court fails

to advise, or gives an incomplete advisal, as required by La. C.Cr.P. art. 930.8, the

appellate court may correct this error by informing the defendant of the applicable

prescriptive period for post-conviction relief by means of its opinion. State v.

Gilbert, 23-121 (La. App. 5 Cir. 11/8/23), 377 So.3d 378. Accordingly, by way of

this opinion, we advise defendant that no application for post-conviction relief,

including applications that seek an out-of-time appeal, shall be considered if filed

more than two years after the judgment of conviction and sentence has become

final under the provisions of La. C.Cr.P. arts. 914 or 922.

DECREE
For the foregoing reasons, we affirm defendant’s sentence. The matter is

remanded to the trial court with instructions to correct the UCO, as stated above.

SENTENCE AFFIRMED; REMANDED
WITH INSTRUCTIONS

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SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
STEPHEN J. WINDHORST LINDA M. WISEMAN
JOHN J. MOLAISON, JR.
FIRST DEPUTY CLERK
SCOTT U. SCHLEGEL
TIMOTHY S. MARCEL FIFTH CIRCUIT
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JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
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GRETNA, LOUISIANA 70054 (504) 376-1400

(504) 376-1498 FAX
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NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
JULY 31, 2024 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT
REPRESENTED BY COUNSEL, AS LISTED BELOW:

23-KA-502
E-NOTIFIED
29TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE M. LAUREN LEMMON (DISTRICT JUDGE)
LIEU T. VO CLARK (APPELLANT)

MAILED
LOUIS G. AUTHEMENT (APPELLEE) HON. JOEL T. CHAISSON, II (APPELLEE)
ATTORNEY AT LAW DISTRICT ATTORNEY
13919 RIVER ROAD TWENTY-NINTH JUDICIAL DISTRICT
SUITE 300 COURT
LULING, LA 70070 POST OFFICE BOX 680
HAHNVILLE, LA 70057