State of Louisiana Versus Wendell L. Lachney

STATE OF LOUISIANA NO. 23-KA-78

VERSUS FIFTH CIRCUIT

WENDELL L. LACHNEY COURT OF APPEAL

STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 21-5943, DIVISION "J"
HONORABLE STEPHEN C. GREFER, JUDGE PRESIDING

October 31, 2023

STEPHEN J. WINDHORST
JUDGE

Panel composed of Judges Susan M. Chehardy,
Marc E. Johnson, and Stephen J. Windhorst

SENTENCES ON COUNTS ONE AND TWO VACATED;
REMANDED FOR RESENTENCING
SJW
SMC
MEJ

COUNSEL FOR PLAINTIFF/APPELLEE,
STATE OF LOUISIANA
Honorable Paul D. Connick, Jr.
Juliet L. Clark
Thomas J. Butler

COUNSEL FOR DEFENDANT/APPELLANT,
WENDELL L. LACHNEY
Frank G. DeSalvo
Shannon R. Bourgeois

WINDHORST, J.

Appellant/defendant, Wendell L. Lachney, appeals his sentence of thirty years

imprisonment at hard labor for vehicular homicide of A.D.,1 while under the

influence of alcohol with a blood alcohol content (“BAC”) of 0.20% or more and

other drugs (count one), a violation of La. R.S. 14:32.1. For the reasons that follow,

we find errors patent in the record which require this court to vacate defendant’s

sentences on counts one and two and remand this matter for resentencing.

PROCEDURAL HISTORY

On December 28, 2021, the Jefferson Parish District Attorney’s Office filed a

bill of information charging defendant with vehicular homicide of A.D., while under

the influence of alcohol and other drugs, in violation of La. R.S. 14:32.1 (count one),

and with first degree vehicular negligent injuring upon Sarah Douglas, while under

the influence of alcohol, in violation of La. R.S. 14:39.2 (count two). Defendant was

arraigned and pled not guilty. On January 13, 2022, the State filed a superseding

bill of information, specifying that defendant’s BAC was “0.20 % or more” on both

counts, and that he was also under the influence of “other drugs” on count two.

Defendant was re-arraigned and pled not guilty. On September 6, 2022, the

superseding bill of information was amended to reflect that defendant was born on

“01/01/1963” instead of “10/01/1963.”

On September 20, 2022, defendant withdrew his pleas of not guilty and pled

guilty to the charged offenses.2 Defendant waived the sentencing delays. After

victim impact statements were presented and defense counsel made arguments

concerning sentencing, the trial court sentenced defendant to thirty years

1 La. R.S. 46:1844(W)(1)(a) provides in pertinent part, “The public disclosure of the name of the juvenile
crime victim by any public official or officer or public agency is not prohibited by this Subsection when the
crime resulted in the death of the victim.” The victim, A.D., in count one was a minor at the time of her
death. Because the bill of information and the State’s brief to this court use the minor’s initials, this court’s
opinion will also use the minor’s initials.
2 At the same time, defendant also pled guilty to five misdemeanor charges in district court case number
21-6880. The appeal relating to defendant’s misdemeanor convictions and sentences is before this court
in companion case number 23-KA-79.

23-KA-78 1

imprisonment at hard labor on count one and to five years imprisonment at hard

labor on count two. As to count two, the trial court stated it was going to “suspend

that sentence and place [defendant] on five years of active probation upon [his]

release from prison. Special conditions of probation—I shouldn’t say I’m going to

suspend that sentence. I’m going to run that sentence concurrent and place

[defendant] on five years of active probation at the release from prison.” The trial

court ordered defendant to follow any special conditions of probation indicated on

the “Felony Conditions of Probation form.” Also, as conditions of probation on

count two, the trial court (1) placed defendant on home incarceration “during that

period of five years;” (2) prohibited defendant from driving a vehicle “during that

period of five years;” (3) ordered defendant to obtain an evaluation from the

Louisiana Department of Health and Hospitals; and (4) ordered defendant to

complete any treatment recommended by that department or another agency in

connection with that evaluation. The trial court imposed and suspended any

mandatory fines and court costs finding defendant would be “obviously indigent and

unable to pay those fines and fees” during his incarceration. The trial court

recommended drug treatment and any self-help programs suitable to the Department

of Corrections during his incarceration.

Defense counsel objected to the imposition of the sentence on count one as

excessive, contending that defendant’s two prior DWI convictions occurred twenty

years before. After a discussion with the trial court, defense counsel indicated that

he would follow up with a written motion. On September 21, 2022, defendant filed

an Objection to Sentence, Motion to Reconsider Sentence and Request for Hearing,

arguing that his maximum consecutive sentences were excessive given his remote

criminal history, medical condition, and history of military service.

On October 26, 2022, prior to hearing defendant’s motion to reconsider

sentence, the trial court stated that it “misspoke” in imposing defendant’s sentence

23-KA-78 2

on count two as concurrent. The trial court stated that it always meant for the

sentence on count two to run consecutive with defendant’s sentence on count one,

not concurrent. However, the trial court did not resentence defendant. Afterwards,

the trial court denied defendant’s motion to reconsider sentence.

On November 10, 2022, defendant filed a Motion to Reconsider Denial of

Motion to Reconsider Sentence, which was denied by the trial court. On November

15, 2022, defendant filed a Notice of Appeal, challenging “the judgment and

sentence,” which was granted on November 29, 2022. On appeal, defendant’s sole

assignment of error is that his sentence as to count one is constitutionally excessive.

FACTS

Because defendant pled guilty, the underlying facts were not fully developed

at a trial. However, the amended superseding bill of information alleges that on

count one defendant “violated La. R.S. 14:32.1 in that he did kill one, A.D., while

engaged in the operation of a motor vehicle and under the influence of alcohol with

a BAC of 0.20% or more and other drugs;” and that on count two, defendant

“violated La. R.S. 14:39.2 in that he did while engaged in the operation of a motor

vehicle and under the influence of alcohol with a BAC of 0.20% or more and other

drugs, did [sic] inflict serious bodily injury upon Sarah Douglas.”

The State also provided the following factual basis for the guilty pleas:

[O]n or about October 22, 2021, the defendant, Wendall L.
Lachney, violated Louisiana Revised Statute 14:32.1, vehicular
homicide, in that he did kill one [A.D.] while engaged in the operation
of a motor vehicle and under the influence of alcohol with a BAC
greater than 0.20 percent.
He also violated Louisiana Revised [Statute] 14:39.2, first degree
vehicular negligent injuring, in that he did inflict serious bodily injury
upon Sarah Douglas while engaged in the operation of a motor vehicle
and under the influence of alcohol with a BAC greater than 0.20
percent.
He did so by recklessly operating a white Infiniti at speeds around
60 miles per hour going southbound on Highway 23. Mr. Lachney
was the driver and the sole occupant of that vehicle. He did not apply
his brakes, and collided into a minivan lawfully stopped at a stoplight
on Highway 23. A bottle of Jack Daniels, a bottle of wine, and an

23-KA-78 3

open container of suspected beer was located inside the defendant’s
vehicle, as well as marijuana.
The defendant gave statements to police admitting that he had been
drinking and had smoked marijuana prior to the collision.
Approximately 2 hours and 28 minutes after impact, the defendant
consented to a blood draw. Those results showed the defendant’s
BAC was .22 percent, and that narcotics were present in his system,
including THC.
The negligent operation of that vehicle by the defendant caused
serious bodily injury to Sarah Douglas, including a concussion, and
resulted in the death of a nine-year-old victim, [A.D.]

ERRORS PATENT REVIEW

Before considering the merits of defendant’s sole assignment of error raised

on appeal, we find that errors patent in the record require this court to vacate

defendant’s sentences on counts one and two and remand this matter for

resentencing. The record was reviewed for errors patent, according to the mandates

of 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).

First, upon review, we find defendant received an illegally lenient sentence on

count one (vehicular homicide of A.D.). The trial court sentenced defendant to thirty

years imprisonment at hard labor. However, the bill of information, to which

defendant pled guilty, charges that defendant’s BAC was more than 0.20 percent,

and the trial court stated that defendant had two prior convictions for DWI.

The penalty provision of La. R.S. 14:32.1 B provides in pertinent part:

B. Whoever commits the crime of vehicular homicide shall be fined
not less than two thousand dollars nor more than fifteen thousand
dollars and shall be imprisoned with or without hard labor for not less
than five years nor more than thirty years. At least three years of the
sentence of imprisonment shall be imposed without benefit of
probation, parole, or suspension of sentence. If the operator’s blood
alcohol concentration is 0.15 percent or more by weight based upon
grams of alcohol per one hundred cubic centimeters of blood, then at
least five years of the sentence of imprisonment shall be imposed
without benefit of probation, parole, or suspension of sentence. If
the offender was previously convicted of a violation of R.S. 14:98, then
at least five years of the sentence of imprisonment shall be imposed
without benefit of probation, parole, or suspension of sentence. The
court shall require the offender to participate in a court-approved
substance abuse program and may require the offender to participate

23-KA-78 4

in a court-approved driver improvement program. All driver
improvement courses required under this Section shall include
instruction on railroad grade crossing safety. [Emphasis added.]

Despite the bill of information charging that defendant’s BAC was 0.20 percent or

more, and that the trial court stated defendant had two prior DWI convictions,

defendant’s sentence on count one was not imposed with a restriction of benefits for

any period of time as required pursuant to La. R.S. 14:32.1 B.3

Generally, when a trial court does not mention the restriction of benefits, such

conditions are deemed to exist by operation of law under La. R.S. 15:301.1.4 State

v. Thomas, 20-97 (La. App. 5 Cir. 11/04/20), 306 So.3d 568, 578; State v. Shelby,

18-186 (La. App. 5 Cir. 12/27/18), 263 So.3d 1223, 1228. However, in the instant

case, the trial court having not imposed the statutory restrictions is not cured by La.

R.S. 15:301.1 because La. R.S. 14:32.1 B provides that “at least five years of the

sentence of imprisonment shall be imposed without benefit of probation, parole, or

suspension of sentence,” if the operator’s BAC was 0.15 or more, or if the offender

was previously convicted of a violation of La. R.S. 14:98. The portion of the

sentence to be served without benefits is therefore uncertain and is left to the

discretion of the trial court. Whether five years must be served without benefits, or

some greater length of time, cannot be determined and imposed by the Department

of Corrections. Accordingly, we vacate defendant’s sentence on count one and

remand the matter for resentencing with instructions to the trial court to impose

defendant’s sentence on count one in accordance with the provisions of La. R.S.

14:32.1 B as it relates to the restriction of benefits. Shelby, 263 So.3d at 1228-29.

Because we are vacating defendant’s sentence on count one and remanding

the matter for resentencing, this court pretermits discussion of defendant’s sole

3 The bill of information does not allege that defendant had any prior conviction(s).
4 La. R.S. 15:301.1 A provides in pertinent part: “The failure of a sentencing court to specifically state that
all or a portion of the sentence is to be served without benefit of probation, parole, or suspension of sentence
shall not in any way affect the statutory requirement that all or a portion of the sentence be served without
benefit of probation, parole, or suspension of sentence.”

23-KA-78 5

assignment of error wherein he contends that his sentence on count one is excessive.5

See State v. Smith, 09-100 (La. App. 5 Cir. 08/25/09), 20 So.3d 501, 502, writ

denied, 09-2102 (La. 04/05/10), 31 So.3d 357; State v. Clifton, 17-538 (La. App. 5

Cir. 05/23/18), 248 So.3d 691, 699.

Secondly, our review of the record further shows that there are sentencing

issues as to count two (first degree vehicular negligent injuring). At the time of this

offense, the penalty provision for La. R.S. 14:39.2 provided that whoever commits

the crime of first degree vehicular negligent injuring shall be fined not more than

two thousand dollars or imprisoned with or without hard labor for not more than five

years, or both.

The trial court sentenced defendant on count two as follows:

As to Count 2, the first degree vehicular negligent injuring, the
Court is going to sentence you to five years in the Department of
Corrections at hard labor. I am going to suspend that sentence and
place you on five years of active probation upon your release from
prison. Special conditions of probation—I shouldn’t say I’m going to
suspend that sentence. I’m going to run that sentence concurrent and
place you on five years of active probation at the release from prison.
Special conditions of probation would include that you follow
any special conditions of probation as indicated on the Felony
Conditions of Probation form. You are also to be placed on home
incarceration during that period of five years, and you are prohibited
from driving a vehicle during that period of five years. You are also
to obtain an evaluation from the Louisiana Department of Health and
Hospitals and complete any treatment recommended by that
department and any other agency in connection with that evaluation.

Thereafter, the trial court stated:

It is the Court’s intention, Mr. Lachney, in imposing that sentence and
the five years of probation that if “you are released at some point on a
parole, you will be released to probation where there is further
supervision as opposed to just being released on parole so that the
Court can impose those additional requirements, and that is the
intention behind that five-year probationary period.

5 Although there are additional errors with the sentence (i.e., the trial court did not require defendant to
participate in a court-approved substance abuse program in compliance with La. C.Cr.P. art. 14:32.1 B or
impose the mandatory fine), these errors are moot because we are vacating defendant’s sentence on count
one and remanding the matter for resentencing.

23-KA-78 6

During the October 26, 2022 hearing on defendant’s motion to reconsider

sentence, in discussing6 defendant’s sentence imposed on count two, the trial court

stated:

Well, you filed a motion to reconsider. The Court was going to
take the opportunity at that point to correct the sentence where I
misspoke. And I’m not exactly sure what I was thinking when I said
it. Apparently, at one point, I said that the sentence in the negligent
injuring charge would run consecutive, which was always my intent,
to the vehicular homicide charge. And if you look at the structure of
the sentence, that’s the only thing that makes sense in that I intended
to put [defendant] on probation following any parole that he may
receive on the vehicular homicide charge. So I would have to have a
sentence out there to put him on probation on. If I ran it concurrent,
it doesn’t make sense to have those two sentences together. That
wouldn’t make sense logically.
That being said, apparently, at some point later on in the
sentencing of [defendant], I said the word “concurrent” instead of
“consecutive.” So I just wanted to clarify the record that it was the
Court’s intention, and always had been the Court’s intention, to
sentence [defendant] consecutively, as previously indicated on the
record, that the negligent injuring charge would run consecutive to the
vehicular homicide charge, thus, giving the five years of active
probation, meaning should [defendant] be released on parole that the
other sentence would be out there, he’d actually have that probation
out there as well, so those conditions of probation that the Court had
imposed could have meaning, as I said.
So, with that, unless you need more than that, Mr. DeSalvo
[defense counsel], I think that corrects the issue. It was simply a
situation where I misspoke, and one time I said “concurrent,” one time
I said “consecutive.”
Everybody knew what the Court’s intention was, so I think it
went in and out until we looked at it later and said, oops.7

Based on these transcripts, we find it difficult to determine defendant’s exact

sentence on count two. The sentencing transcript shows that the trial court initially

sentenced defendant to five years imprisonment at hard labor, suspended the

sentence, and placed defendant on active probation for five years. The trial court

then indicated that the five-year sentence on count two was not suspended, and the

6 After finding a discrepancy in defendant’s sentence as to count two, the trial court discussed what its
intention was in sentencing defendant as to that count. Despite the attempt “to correct” or “clarify”
defendant’s sentence on count two, the trial court did not vacate and resentence defendant on count two.
7 The trial court then only asked the State if it had “[a]ny objection to handling it that way,” to which the
State responded “No objection, Judge.”

23-KA-78 7

court ran the sentence concurrently with count one and placed defendant on active

probation for five years “at the release of prison.” The trial court then stated as a

special condition of probation, defendant is to be placed on home incarceration

“during that period of five years.” Thereafter, the transcript of the motion to

reconsider sentence hearing shows the trial court clarifying defendant’s sentence on

count two wherein the trial court avers that it mistakenly stated count two was to run

concurrently instead of consecutively to count one. The trial court asserted that it

was always its intention to run defendant’s sentence on count two consecutively with

his sentence on count one. At that point, however, the trial court did not vacate

defendant’s sentence on count two and resentence him in accordance with its stated

intention to make defendant’s sentence on count two consecutive with his sentence

on count one. The defendant’s motion to reconsider sentence was then denied.

Additionally, the September 20, 2022 sentencing minute entry and the Nunc

Pro Tunc minute entry on September 22, 2022 provide: “On Count 2, the Court

sentenced the Defendant to imprisonment at hard labor for a term of 5 years.” The

minute entries further state: “Defendant is placed on active probation for a term of 5

years upon release from D.O.C.” The Uniform Commitment Order (“UCO”)

provides that defendant’s sentence on count two is five years as shown in “Total

Sentence Length” and “Amount of Time in DPS&C Custody” sections of the UCO.

Additionally, the UCO includes as a “Sentence Condition,” pre-printed on the form,

that defendant is ordered “to report to start serving a probation sentence upon

conclusion of his hard labor sentence (split sentence).” The UCO further provides

that defendant’s sentences are “concurrent” with “ALL COUNTS and with case #21-

6880.” However, the “Waiver of Constitutional Rights Plea of Guilty” form shows

defendant understood his sentence as to count two to be “5 years to run consecutive

with sentence for La. R.S. 14:32.1, credit for all time served, suspended imposition

23-KA-78 8

of sentence active probation for a period of 5 years,” as shown by his initials and

signature on the form.8

Consequently, as to defendant’s sentence on count two, it is unclear whether

the entirety of defendant’s five-year sentence was suspended and defendant was

placed on five years active probation or whether defendant’s sentence was five years

imprisonment at hard labor and active probation for five years upon his release from

imprisonment. Because defendant’s sentence on count two is unclear, we find it is

indeterminate. La. C.Cr.P. art. 879 provides, “If a defendant who has been convicted

of an offense is sentenced to imprisonment, the court shall impose a determinate

sentence.” If a sentence is indeterminate, the sentence should be vacated and the

matter remanded for resentencing. See State v. King, 22-371 (La. App. 5 Cir.

05/24/23), 365 So.3d 897, 918; State v. Holmes, 12-351 (La. App. 5 Cir. 12/11/12),

106 So.3d 1076, 1084, writ denied, 13-86 (La. 06/14/13), 118 So.3d 1080; State v.

Lai, 04-1053 (La. App. 5 Cir. 04/26/05), 902 So.2d 550, 562, writ denied, 05-1681

(La. 2/3/06), 922 So.2d 1175.

Further, in sentencing defendant on count two, the trial court stated that as a

special condition of probation defendant was to be placed on home incarceration

“during that period of five years.” The record is unclear as to how long defendant

is sentenced to home incarceration and therefore, defendant’s sentence is also

indeterminate as to the imposition of home incarceration. La. C.Cr.P. art. 879.

Moreover, La. C.Cr.P. art. 894.2 H provides: “The period of home incarceration

shall be for a period of not more than four years in felony cases and for a period not

to exceed six months in misdemeanor cases.” [Emphasis added.] To the extent that

the trial court placed defendant on home incarceration for the entire term of the five

8 In his appellate brief, defendant states that the trial court sentenced him to serve a “five (5) year sentence
in connection with his guilty plea to count two.” He also states that the sentence for “count two was
suspended and the trial court judge placed the defendant on five (5) years of probation.” In the State’s
appellee brief, it does not provide a specific sentence imposed on defendant as to count two. Instead, the
State quotes the trial court during sentencing and the hearing on defendant’s motion to reconsider
sentence.

23-KA-78 9

years of probation, this condition would exceed the period of time permitted by

statute and it would be an illegal sentence. See State v. Boutte, 10-1257 (La. App.

3 Cir. 05/11/11), 65 So.3d 793, 797-98.9

Therefore, for the reasons stated herein, we vacate defendant’s sentence on

count two and remand the matter for resentencing with instructions to the trial court

to impose defendant’s sentence in compliance with the provisions of La. R.S.

14:39.2 and La. C.Cr.P. art. 894.2.10

DECREE

Considering the errors patent as stated herein, defendant’s sentences on counts

one and two are vacated and the matter is remanded to the trial court for

resentencing.

SENTENCES ON COUNTS ONE AND
TWO VACATED; REMANDED FOR
RESENTENCING

9 In Boutte, the court of appeal vacated defendant’s sentence of four years of home incarceration for
aggravated assault with a firearm and remanded the matter for resentencing. The court found that the trial
court imposed an illegal sentence because the statute in effect at the time of sentencing only allowed the
trial court to impose a sentence of home incarceration for a felony for a period of not more than two years.
10 We find there are additional errors with defendant’s sentence on count two. Specifically: (1) the record
does not indicate that the court gave defendant a certificate setting forth the conditions of probation and
that defendant agreed in writing to those conditions, as required by La. C.Cr.P. art. 895 J, and (2) the trial
court did not specify all of the conditions of home incarceration at the time of sentencing or give defendant
a certificate setting forth the conditions of his home incarceration as required by La. C.Cr.P. art. 894.2.
However, these issues are deemed moot because we are vacating defendant’s sentence on count two and
remanding the matter for resentencing.

23-KA-78 10

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
ROBERT A. CHAISSON LINDA M. WISEMAN
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
JOHN J. MOLAISON, JR.
SCOTT U. SCHLEGEL FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400

(504) 376-1498 FAX
www.fifthcircuit.org

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
OCTOBER 31, 2023 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

23-KA-78
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE STEPHEN C. GREFER (DISTRICT JUDGE)
JULIET L. CLARK (APPELLEE) THOMAS J. BUTLER (APPELLEE) FRANK G. DESALVO (APPELLANT)

MAILED
SHANNON R. BOURGEOIS (APPELLANT) HONORABLE PAUL D. CONNICK, JR.
ATTORNEY AT LAW (APPELLEE)
739 BARONNE STREET DISTRICT ATTORNEY
NEW ORLEANS, LA 70113 TWENTY-FOURTH JUDICIAL DISTRICT
200 DERBIGNY STREET
GRETNA, LA 70053