State of Louisiana Versus Wendell L Lachney

STATE OF LOUISIANA NO. 24-KA-170

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

December 30, 2024

STEPHEN J. WINDHORST
JUDGE

Panel composed of Judges Fredericka Homberg Wicker,
Stephen J. Windhorst, and Timothy S. Marcel

SENTENCE ON COUNT ONE AFFIRMED;
SENTENCE ON COUNT TWO VACATED;
REMANDED FOR RESENTENCING ON COUNT TWO
SJW
FHW
TSM

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

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

WINDHORST, J.

Defendant, Wendell Lachney, filed this second appeal regarding his

resentencing on remand from this court. For the reasons that follow, we affirm

defendant’s sentence on count one, vehicular homicide. However, upon error patent

review, we vacate defendant’s sentence on count two, first degree vehicular

negligent injuring, and remand this case for resentencing on count two.

PROCEDURAL HISTORY

Defendant was charged 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 Sara 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. The State filed a superseding bill of information,

indicating that defendant’s BAC was “0.20% or more” on counts one and two, and

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

re-arraigned and pled not guilty. Subsequently, the superseding bill of information

was amended to reflect that defendant was born on “01/01/1963” instead of

“10/01/1963.”

Defendant withdrew his pleas of not guilty and pled guilty to the charged

offenses. The trial court heard multiple victim impact statements, including one

from Mrs. Douglas, A.D.’s mother and the victim of first degree vehicular negligent

injuring (count two). Defendant also addressed the trial court, expressing remorse

for the accident.

The trial court then sentenced defendant to thirty years imprisonment at hard

labor on count one and to five years imprisonment at hard labor on count two. After

acknowledging the victim impact statements and, citing La. C.Cr.P. art. 894.1, the

trial court found that defendant posed a risk of reoffending, needed institutional

treatment, and that a lesser sentence would undermine the crime’s seriousness. In

24-KA-170 1

imposing defendant’s sentence, the trial court stated it considered the aggravating

factors, which included defendant’s prior DWIs, excessive speed, high blood alcohol

level (0.22%), and the severe harm caused, and the mitigating factors like

defendant’s military service, family support, health, and remorse, but ultimately

concluded that the mitigating factors did not justify a reduced sentence. Defense

counsel objected, stating that defendant’s sentence on count one was excessive. The

trial judge responded in part, “And as we discussed in the pre-trial, Mr. DeSalvo, I

understand that you were going to make that objection.” The trial court subsequently

denied defendant’s motion to reconsider sentence and his Motion to Reconsider

Denial of Motion to Reconsider Sentence. Defendant appealed, asserting in his sole

assignment of error that his sentence on count one was excessive.

In defendant’s first appeal, his sole assignment of error was that his sentence

as to count one was constitutionally excessive. Upon review, this court found errors

patent in the record that required vacating defendant’s sentences on counts one and

two and remanding for resentencing. State v. Lachney, 23-78 (La. App. 5 Cir.

10/31/23), 374 So.3d 1027, 1030. As to count one, vehicular homicide, this court

found defendant received an illegally-lenient sentence. This court stated that despite

the charges of a BAC over 0.20% and two prior DWI convictions, the trial court did

not impose the mandatory restrictions on probation, parole, or suspension of

sentence as required by La. R.S. 14:32.1 B. As a result, this court vacated

defendant’s sentence on count one, remanded the case for resentencing in

compliance with the statutory requirements, and pretermitted discussion of

defendant’s sole assignment of error. Id. at 1031-1032. This court also vacated

defendant’s sentence on count two, first degree vehicular negligent injuring, and

remanded for resentencing in compliance with legal requirements, finding that the

sentence was unclear. Id. at 1032-35.

24-KA-170 2

On December 13, 2023,1 on remand, the trial court resentenced defendant as

follows.2 On count one, the trial court sentenced defendant to thirty years

imprisonment at hard labor without the benefit of parole, probation, or sentence

suspension, designated it as a crime of violence, and ordered defendant to pay a

$2,000 fine plus court costs as required by law. The trial court then suspended the

fine and court costs due to defendant’s indigent status during incarceration. On

count two, the trial court sentenced defendant to five years at hard labor, suspended

that sentence, and placed defendant on five years active probation, with four years

on home incarceration. The court imposed general and special probation conditions,

barred defendant from driving upon release, and ordered him to complete a driver

education and substance abuse program. The trial court also ordered defendant to

pay a $500 fine plus court costs and then suspended that fine and court costs due to

defendant’s indigent status during his incarceration. The trial court further ordered

the sentence for count two to run consecutively to defendant’s sentence on count

one.3 Defense counsel objected to the “excessiveness of the sentence,” stating she

would file a written motion to reconsider sentence.

In defendant’s Motion to Reconsider Sentence, defense counsel argued that

the offenses for which defendant was sentenced on December 13, 2023, were from

a single accident. Defense counsel claimed the maximum sentence for count one,

without the benefit of parole, probation, or sentence suspension, is constitutionally

excessive, considering defendant’s minimal criminal history, military service, and

health issues. Additionally, defense counsel referenced a civil lawsuit filed by the

family of the deceased victim, A.D., asserting A.D.’s death was partly due to the

1 On December 12, 2023, the State submitted a sentencing memorandum on Parole Eligibility to clarify how
to calculate parole eligibility for a defendant convicted of vehicular homicide with a BAC over 0.20%.
2 Prior to resentencing defendant, the trial court admitted into evidence (1) the transcript of the guilty plea,
victim impact statements, and original sentencing; (2) the transcript of the motion to reconsider sentence
hearing; and the victim impact statements previously presented during the original sentencing.
3 Because there were two victims in this incident, the trial court stated it was not necessary to provide
additional reasons for imposing consecutive sentences.

24-KA-170 3

dangerous design of the Sienna vehicle. Defense counsel argued the sentence for

count one is disproportionate to the offenses and imposes purposeless suffering.

At the motion to reconsider sentence hearing on January 22, 2024, defense

counsel submitted the matter on the motion filed. The trial court stated that when

defendant’s original sentence was imposed, it had considered all relevant factors

under Article 894.1 and thoroughly explained the reasons for the sentence imposed

on the record. The trial court stated it found nothing in the motion to reconsider

sentence, warranting a reassessment of his prior decisions on defendant’s sentences.

Accordingly, the trial court denied the motion, noting defendant’s objection.

This appeal followed.

FACTS

The facts were summarized in this court’s prior opinion as follows:

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 open

24-KA-170 4

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.].
Lachney, 374 So.3d at 1030.

LAW and ANALYSIS

In his second appeal, defendant contends his sentence of 30 years for vehicular

homicide, imposed without the benefit of parole, probation, or suspension of

sentence, is constitutionally excessive and constitutes cruel and unusual

punishment.4 He acknowledges the severity of the offense, which resulted in the

death of a child, and expresses deep remorse, but argues no punishment can undo

the harm caused. Defendant, however, highlights his minimal criminal history,

exemplary military service, and role as a father. He further cites his age (sixty) and

health issues, including depression, anxiety, heart disease, and paralysis, as factors

warranting leniency. Defendant contends he is not the “worst type of offender”

deserving of a maximum sentence, and that this sentence is disproportionate to the

crime. Defendant also argues the trial court abused its discretion by failing to

provide sufficient reasons for imposing the harshest penalty.

A defendant is precluded from raising a claim of excessiveness on appeal

when the imposed sentence is the product of a plea agreement. State v. Cross, 06-

866 (La. App. 5 Cir. 04/11/07), 958 So.2d 28, 30. Under La. C.Cr.P. art. 881.2 A(2),

“A defendant cannot appeal or seek review of a sentence imposed in conformity with

a plea agreement which was set forth in the record at the time of the plea.” This

4 On appeal, defendant does not challenge his sentence on count two.

24-KA-170 5

prohibition encompasses sentences imposed pursuant to plea agreements setting

forth specific sentences and plea agreements with sentencing caps. State v. Bolton,

02-1034 (La. App. 5 Cir. 03/11/03), 844 So.2d 135, 142, writ denied, 03-1159 (La.

11/14/03), 858 So.2d 417.

Defendant and defense counsel signed and dated the “Waiver of

Constitutional Rights Plea of Guilty” form on September 13, 2022, and the trial

judge signed it on September 20, 2022 sentencing hearing. Based on this form,

defendant was aware of the sentence outlined in the plea agreement and signed the

form, indicating he agreed to it. However, the record also reflects that at the

sentencing hearing on September 20, 2022, prior to sentencing, defense counsel

informed the trial court that defendant agreed to plead guilty but did not agree to the

proposed sentence and intended to appeal it. Following an off-the-record bench

conference, defense counsel reaffirmed defendant’s intent to plead guilty as charged

and objected to the proposed sentencing. After sentencing, defense counsel again

objected to the sentence as excessive, which the judge acknowledged, referencing

prior discussions and indicating awareness of defendant’s disagreement with the

sentence.

There is very little information regarding any discussions that may have taken

place before the September 20, 2022 sentencing hearing, leaving it unclear if, or

when, the sentence was discussed. Additionally, it is uncertain why the waiver form

signed by defendant on September 13, 2022 was used during the sentencing hearing

on September 20, 2023, despite defendant’s expressed disagreement with the

sentence prior to the colloquy and sentencing. Further, based on the context of the

record, it appears the trial court understood that defendant did not agree to the

sentence. Given these circumstances, we find defendant did not agree to the sentence

set forth in the plea agreement and expressed his disagreement during the guilty plea

and sentencing hearing. The record also indicates defendant pled guilty with the

24-KA-170 6

understanding that he could appeal his sentence as excessive, and that he was not

told otherwise at the time of the guilty plea and sentencing. Furthermore, we find

that defendant properly filed a motion for reconsideration of sentence pursuant to

La. C.Cr.P. art. 881.1 B and E.5 Therefore, under these facts, we find that defendant

is entitled to review of his claim of an excessive sentence on appeal.6

The Eighth Amendment to the United States Constitution and Article 1, §20

of the Louisiana Constitution prohibit the imposition of excessive punishment. State

v. Calloway, 19-335 (La. App. 5 Cir. 12/30/19), 286 So.3d 1275, 1279, writ denied,

20-266 (La. 07/24/20), 299 So.3d 69. A sentence is considered excessive, even if it

is within the statutory limits, if it is grossly disproportionate to the severity of the

offense or imposes needless and purposeless pain and suffering. State v. Ervin, 23-

11 (La. App. 5 Cir. 08/30/23), 370 So.3d 1236, 1245, writ denied, 23-1336 (La.

04/9/24), 382 So.3d 816; State v. Woods, 18-413 (La. App. 5 Cir. 12/19/18), 262

So.3d 455, 460. 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

of justice. State v. Barnes, 23-208 (La. App. 5 Cir. 12/27/23), 379 So.3d 196, 204,

writ denied, 24-136 (La. 09/24/24), 392 So.3d 1141.

In reviewing a sentence for excessiveness, the reviewing court shall consider

the crime and punishment in light of the harm to society and gauge whether the

penalty is so disproportionate as to shock the court’s sense of justice, while

recognizing the trial court’s wide discretion. Calloway, 286 So.3d at 1279; State v.

5 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.”
6 See State v. Morales, 12-21 (La. App. 5 Cir. 10/30/12), 102 So.3d 1038, 1041 (in which this court stated
that although the defendant pled guilty, he did not agree to a specific term or a cap regarding his sentence,
but instead, the defendant was made aware of the sentencing range for the offense when he pled guilty,
and he was sentenced after the pre-sentence investigation was completed and reviewed by the trial judge);
State v. Allen, 03-1205 (La. App. 5 Cir. 02/23/04), 868 So.2d 877, 878 (where this court held that the
defendant was not precluded from seeking review of his sentence under La. C.Cr.P. art. 881.2 A(2), since
no specific sentence was agreed upon in the plea agreement, and no sentencing cap was set).

24-KA-170 7

Gassenberger, 23-148 (La. App. 5 Cir. 12/20/23), 378 So.3d 820, 840. The trial

court is afforded broad discretion in sentencing, and a reviewing court may not set

aside a sentence for excessiveness if the record supports the sentence imposed. La.

C.Cr.P. art. 881.4 D; State v. Corea-Calero, 22-117 (La. App. 5 Cir. 12/28/22), 355

So.3d 697, 701; State v. Hankton, 20-388 (La. App. 5 Cir. 07/03/21), 325 So.3d 616,

623, writ denied, 21-1128 (La. 12/07/21), 328 So.3d 425. On appeal, the relevant

question is whether the trial court abused its broad sentencing discretion, not whether

another sentence might have been more appropriate. State v. McMillan, 23-317 (La.

App. 5 Cir. 12/27/23), 379 So.3d 788, 802, writ denied, 24-131 (La. 09/4/24), 391

So.3d 1057; State v. Dixon, 19-7 (La. App. 5 Cir. 12/30/19), 289 So.3d 170, 174,

writ denied, 20-143 (La. 07/17/20), 298 so.3d 176.

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.

Gassenberger, 378 So.3d at 841; Woods, 262 So.3d at 460-461; State v. Allen, 03-

1205 (La. App. 5 Cir. 02/23/04), 868 So.2d 877, 880. However, there is no

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

Gassenberger, supra; State v. Tracy, 02-227 (La. App. 5 Cir. 10/29/02), 831 So.2d

503, 516, writ denied, 02-2900 (La. 04/04/03), 840 So.2d 1213.

Generally, maximum sentences are reserved for cases involving the most

serious violations of the offense charged and the worst type of offender. State v.

Barnes, 23-208 (La. App. 5 Cir. 12/27/23), 379 So.3d 196, 204, writ denied, 24-136

(La. 09/24/24), 392 So.3d 1141. However, the trial court is granted great discretion

in imposing a sentence, and sentences will not be set aside as excessive absent clear

abuse of that broad discretion. Gassenberger, 378 So.3d at 841.

24-KA-170 8

At the time the offenses were committed, La. R.S. 14:32.1 B, vehicular

homicide, provided 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 not be imprisoned with or without hard labor for not
less than five years nor more than thirty years . . . If the operator’s
blood alcohol concentration is 0.15 percent or more by weight based
upon grams of alcohol per one hundred cubic centimeters of blood,
then at least five years of the sentence shall be imposed without benefit
of probation, parole, or suspension of sentence[.]

The trial court resentenced defendant to 30 years imprisonment at hard labor

without benefit of probation, parole, or suspension of sentence. The trial court also

imposed a $2,000 fine and court costs but suspended both the fine and court costs

due to defendant’s indigent status during incarceration.

“The nature of the crime [of vehicular homicide] is obviously serious—it is a

form of homicide. However, it is a homicide that it not based on an intentional

killing.” State v. Toney, 23-591 (La. App. 4 Cir. 04/17/24), 390 So.3d 812, 823,

writ denied, 24-549 (La. 11/06/24), 2024 WL 4688623. The Louisiana Legislature’s

continual reassessment of vehicular homicide as a serious felony offense is reflected

in its continual increase of the penalty range. Id. The legislature has continually

increased the sentencing range—raising the maximum sentence to fifteen years in

1989; to twenty years, without or without hard labor, in 1999; and to the current

maximum of thirty years, without or without hard labor, in 2014. Id. “The changes

reflect the growing awareness in this state and elsewhere of the carnage caused by

intoxicated drivers on the open road.” Id. (citing to State v. LeBlanc, 09-1355 (La.

07/06/10), 41 So.3d 1168, 1173).

This court first considers the nature of the crime and the background of

offender. The amended superseding bill of information indicated that defendant

violated La. R.S. 14:32.1 by killing a nine-year-old victim, A.D., while operating a

motor vehicle under the influence of alcohol with a BAC of 0.20% or more, as well

24-KA-170 9

as other drugs. The State provided additional details, stating that, on October 22,

2023, defendant was driving a white Infiniti southbound on Highway 23 at speeds

around 60 miles per hour without braking when he collided into a minivan lawfully

stopped at a stoplight. The impact resulted in the death of nine-year old A.D., who

was a passenger in the minivan. A.D.’s mother, who was driving the minivan, was

also injured in the collision. The investigation revealed a bottle of Jack Daniels, a

bottle of wine, an open container of suspected beer, and marijuana inside defendant’s

vehicle. Additionally, defendant admitted that he had consumed alcohol and smoked

marijuana before the collision. Approximately two hours and twenty-eight minutes

after the impact, a blood draw indicated that defendant’s BAC was 0.22 percent, and

toxicology results showed the presence of THC. Considering these facts, we find

the extent of defendant’s impaired condition was established and indicated a reckless

disregard for the safety of others, which ultimately lead to the tragic loss of a young

life.

Additionally, the trial court heard multiple victim impact statements,

including one from Mrs. Douglas, A.D.’s mother and the victim of first-degree

vehicular negligent injuring. Mrs. Douglas shared memories of A.D. and described

how the crash has impacted her family and community. She recounted the events of

that night, explaining that she and A.D. were on a mother-daughter outing when the

defendant’s vehicle struck them at a red light. Losing consciousness in the collision,

Mrs. Douglas fears A.D. may have been calling for her, alone and scared. Upon

waking, Mrs. Douglas focused on A.D., watching as bystanders attempted CPR. She

described the mental and emotional toll of her loss, haunted by the memory of her

own screams that night. She closed her statement with a reading from a book,

underscoring her enduring grief and concern that A.D. may not have fully known

her love. The court also heard statements from other family members describing the

deep impact of A.D.’s death on their lives.

24-KA-170 10

Addressing the court at the original sentencing, defendant expressed deep

remorse, acknowledging that no words could suffice and that he could not fathom

the pain he caused A.D.’s family. He conveyed that no personal guilt or self-hatred

could match the suffering he inflicted, wishing it had been him, not A.D., who had

died. At resentencing, the court specifically took judicial notice of State’s Exhibit

1, the original sentencing transcript, explaining that it included the court’s specific

considerations under Article 894.1. At the original sentencing, the court recognized

that defendant had supported his wife, daughters, and grandchildren, and that he had

a twenty-year military career. The court also acknowledged his age, medical

conditions, and that he had accepted responsibility for his actions.

However, the court indicated it was also aware of defendant’s prior criminal

record, including two previous DWI convictions.7 The court also considered that

defendant’s BAC was 0.22%, and that his actions caused significant injuries to

another victim. The court further pointed out the circumstances of the incident,

specifically that defendant was driving in excess of sixty miles per hour in a forty-

five-mile-per-hour zone, resulting in A.D.’s death. The court explained that it had

considered both the aggravating circumstances under Article 894.1 and the

mitigating factors but ultimately concluded that no mitigating considerations

justified reducing defendant’s sentence.

This court also considers the final factor which requires consideration of

sentences imposed for similar crimes by this court and other courts. We find the

record supports the sentence and trial court did not abuse its discretion in sentencing

defendant to 30 years imprisonment without benefit of parole, probation, or

suspension of sentence. See LeBlanc, supra, State v. Ellis, 10-1019 (La .App. 5 Cir.

05/24/11), 67 So.3d 623, writ denied, 12-1055 (La. 09/28/12), 98 So.3d 830; State

7 Defense counsel informed the trial court and the court acknowledged that the prior DWI convictions were
over 20 years ago.

24-KA-170 11

v. Presentine, 51,241 (La. App. 2 Cir. 4/5/17), 217 So.3d 590; State v. Matthews,

No. 18-KA-1107, 2019 WL 927849 (La. App. 1 Cir. Feb. 25, 2019), writ denied, 19-

501 (La. 9/17/19), 279 So.3d 379, cert. denied, --U.S. --, 140 S.Ct. 1286, 206

L.Ed.2d 266 (2020); State v. Melancon, No. 2021-KA-1489, 2022 WL 4286614 (La.

App. 1 Cir. Sept. 16, 2022), writ denied, 22-1544 (La. 1/25/23), 354 So.3d 9.

Nonetheless, while a comparison of sentences imposed for similar crimes may

provide insight, sentences must be individualized to the particular offender and to

the particular offense committed. State v. Ducksworth, 17-35 (La. App. 5 Cir.

12/13/17), 234 So.3d 225, 237. Additionally, it is within the purview of the trial court

to particularize the sentence because the trial judge “remains in the best position to

assess the aggravating and mitigating circumstances presented by each case.” State

v. Amaya-Rodriguez, 19-91 (La. App. 5 Cir. 11/13/19), 284 So.3d 654, 664.

In the present case, defendant’s dangerous decision to drive under the

influence of alcohol and other drugs caused the death of the nine-year-old victim,

A.D. (count one), and caused injuries to her mother (count two). His actions on that

date demonstrated a reckless disregard for the safety and lives of others.

Additionally, he has caused enormous pain and suffering to the victims’ family.

Although defendant received the maximum sentence of imprisonment, the statute

permits a sentence of both imprisonment and imposition of a fine not more than

fifteen thousand dollars. See La. R.S. 14:32.1. Although the court imposed a $2,000

fine, significantly below the maximum, the court suspended the fine and court costs

due to defendant’s indigent status during incarceration. Thus, we find defendant did

not technically receive the maximum sentence for vehicular homicide. We further

find that the “circumstances of the present case so clearly demonstrate why the

legislature has steadily increased punishment for the crime of vehicular homicide,

and the decision where to place defendant’s conduct on that broad sentencing

continuum fell with the discretion of the [trial court].” LeBlanc, 41 So.3d at 1173.

24-KA-170 12

Accordingly, after considering the three factors as applied to the instant case,

we conclude that defendant failed to demonstrate his sentence is constitutionally

excessive. We therefore cannot conclude the trial court abused its wide discretion

in sentencing defendant on count one, vehicular homicide.

ERRORS PATENT

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). The following error patent requires

correction.

As to count two, first degree vehicular negligent injuring, we find defendant’s

sentence is illegal because he was sentenced to an excessive probationary period.

By placing defendant on active probation for five years, the court exceeded the time

allowed by La. C.Cr.P. art. 893. At the time of offense, the probationary period was

a maximum of three years. See La. C.Cr.P. art. 893 A(1)(a). Since the offense in

the present case does not fall within any of the exceptions outlined in the statute, we

find the probationary period in this case should not exceed three years.8 See State

v. McKinney, 21-721 (La. App. 3 Cir. 04/6/22), 337 So.3d 931, 937.

An appellate court is authorized to correct an illegal sentence pursuant to La.

C.Cr.P. art. 882 A, when the sentence does not involve the exercise of sentencing

discretion by the trial court. See State v. Haynes, 04-1893 (La. 12/10/04), 889 So.2d

224 (per curiam). Unfortunately, we find correction of this error involves the

sentencing discretion of the trial court, and therefore, this court is unable to amend

defendant’s sentence. Further, the several requirements of La. C.Cr.P. arts. 895 J

8 The record further does not reflect that the trial court:

(1) 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;
(2) specified all of the conditions of home incarceration at the time of sentencing; and
(3) gave defendant a certificate setting forth the conditions of his home incarceration as required
by La. C.Cr.P. art. 894.2 C & D.
Because we are vacating defendant’s sentence on count two and remanding for resentencing in compliance
with La. C.Cr.P. art. 893, the requirements of La. C.Cr.P. art. 894.2 C & D can be satisfied at resentencing.

24-KA-170 13

and 894.2 C & D can also be satisfied. Accordingly, defendant’s sentence on count

two is vacated, and this case is remanded for resentencing in compliance with this

court’s instructions as stated herein.

DECREE

For the reasons stated herein, we affirm defendant’s sentence on count one.

Further, upon error patent review, we vacate the sentence on count two and remand

for resentencing in compliance with this court’s instructions as stated herein.

SENTENCE ON COUNT ONE AFFIRMED;
SENTENCE ON COUNT TWO VACATED;
REMANDED FOR RESENTENCING ON
COUNT TWO

24-KA-170 14

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
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
DECEMBER 30, 2024 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

24-KA-170
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE STEPHEN C. GREFER (DISTRICT JUDGE)
FRANK G. DESALVO (APPELLANT) JULIET L. CLARK (APPELLEE) THOMAS J. BUTLER (APPELLEE)

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