State of Louisiana v. Randall J. Morain

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

07-1207

STATE OF LOUISIANA

VERSUS

RANDALL J. MORAIN

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APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 274,397
HONORABLE JOHN C. DAVIDSON, DISTRICT JUDGE
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GLENN B. GREMILLION
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Oswald A. Decuir, and
Glenn B. Gremillion, Judges.

SENTENCE VACATED
AND REMANDED.

James C. Downs
District Attorney - 9th JDC
Michael W. Shannon, Asst. District Attorney
P. O. Drawer 1472
Alexandria, LA 71309
(318) 473-6650
Counsel for Plaintiff/Appellee:
State of Louisiana

Mark O. Foster
P. O. Box 2057
Natchitoches, LA 71457
(318) 572-5693
Counsel for Defendant/Appellant:
Randall J. Morain

GREMILLION, Judge.

In this case, the defendant, Randall J. Morain, entered a plea of guilty to

the offenses of vehicular homicide, in violation of La.R.S. 14:32.1(A)(1) and (2), and

first degree vehicular negligent injuring, in violation of La.R.S. 14:39.2(A)(1) and

(2). Thereafter, he was sentenced to twenty-five years for the vehicular homicide

offense, the first eight years to be served without the benefit of probation, parole, or

suspension of sentence, and five years for the vehicular negligent injury offense, the

sentences to run concurrently. Defendant filed a motion to reconsider the vehicular

homicide sentence and was subsequently resentenced to twenty years, with the first

eight years to be served without benefit of probation, parole, or suspension of

sentence. Defendant then appealed the sentence to this court. We held that his

sentence was indeterminate and illegally lenient and remanded the matter to the trial

court. State v. Morain, 06-710 (La.App. 3 Cir. 11/2/06), 941 So.2d 720. On remand,

the trial court sentenced Defendant on the vehicular homicide charge to twenty years

at hard labor, the first eight years to be served without benefit of probation, parole,

or suspension of sentence, imposed a fine of $2,000, and ordered him to participate

in a court-approved substance abuse program and a court-approved driver

improvement program.

Defendant is now before this court on appeal and alleges that the trial

court failed to comply with La.Code Crim.P. art. 894.1(C) in sentencing him and that

the maximum sentence imposed by the trial court was cruel, unusual, and excessive,

in violation of Article I, § 20 of the Louisiana Constitution of 1974. For the

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following reasons, we vacate the sentence and remand the matter to the trial court for

resentencing.

FACTS

The following recitation of facts were taken from Morain, 941 So.2d at

721:

On May 17, 2004, seventeen-year-old Evan Ammons had a flat
tire on Interstate 49 while on his way to work. He called his stepfather,
Alberto Hinojosa, and his mother for assistance with changing the tire.
Mr. Hinojosa, his wife, and their two children arrived, and Mr. Hinojosa
parked their van in front of Evan’s vehicle on the shoulder of the
interstate. As Mr. Hinojosa was assisting Evan with changing the tire,
the Defendant’s vehicle veered onto the shoulder and struck them. Evan
died at the scene of the accident, and Mr. Hinojosa sustained serious
injuries. The Defendant’s blood was tested after the accident, and the
blood alcohol content was measured at 0.10g percent.1

LOUISIANA CODE OF CRIMINAL PROCEDURE ARTICLE 894.1

Defendant alleges that the trial court erred by not considering the

sentencing requirements of Article 894.1(C), which states: “The court shall state for

the record the considerations taken into account and the factual basis therefor in

imposing sentence.” The court, in State v. Thomas, 434 So.2d 530, 536 (La.App 2

Cir. 1983), discussed the requirements of stating a factual basis in accordance with

Article 894.1(C):

Under La.C.Cr.P. Art. 894.1, the trial court must state considerations
taken into account and the factual basis therefor in imposing sentence.
While the judge need not articulate every aggravating and mitigating
circumstance, the record must adequately reflect that he considered these
guidelines in particularizing the sentence of the defendant. State v.
Keeney, 422 So.2d 1144 (La.1982). In defendant James Thomas’

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The Defendant pled guilty and there was no recitation of facts at the guilty plea proceeding.
Thus, the facts have been taken from the briefs and the crime lab report. The “Results and
Conclusions” section of the report indicates the blood alcohol concentration was .10g%, while the
results indicate it was .109%.

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sentencing proceeding, the trial court recited examples of actions by the
defendant that indicated to him that the defendant had a habit of this
type of criminal activity, and that defendant’s conduct was the result of
circumstances very likely to recur. The court also discussed factors
unfavorable to defendant being suitable for probation. Although the
trial court did not go through all of the aggravating and mitigating
circumstances, it did take into consideration this was defendant’s first
offense and that defendant did have dependents who depended on him
for aide in their support. The record therefore adequately reflects
consideration of the guidelines of Art. 894.1 in particularizing the
sentence to defendant James Thomas.

See also State v. Henney, 94-615, p. 2 (La.App. 3 Cir. 12/7/94), 647 So.2d 568, 569

(alteration in original), wherein this court stated, “[a] sentencing judge must always

consider the Guidelines and state for the record the considerations he has taken into

account and the factual basis for the sentence he has imposed.”

In the instant case, during Defendant’s resentencing, the trial court stated

the following:

On 17 May 2004, seventeen-year-old Evan Aymonds had a flat tire on
Interstate 49 while on his way to work. He called his Stepfather and his
Mother for assistance in changing the tire. His Stepfather, his Mother,
and their two children arrived on the scene. [T]he Stepfather parked the
van in front of Evan’s vehicle on the shoulder of the Interstate and
began assisting Evan in changing the tire. Suddenly the vehicle driven
by Randall Morain veered onto the shoulder, struck them, and Evan died
at the scene. The stepfather suffered serious injury. Everything that
occurred happened in the presence of Evan’s family. Mr. Morain’s
blood was tested after the accident and the blood alcohol content was
over the legal limit. Considering the factors set forth in Article 894.1
I’ve considered the mitigating effect of prior military service; ten and a
half years as a police officer with the Baton Rouge City Police, both,
both as a uniform police officer, then as a detective in homicide; I’ve
also considered that, ah, he worked at various other security positions
and other law enforcement capacities. In addition, I’ve considered the
additional mitigating factors of posttraumatic stress disorder, severe
depression, continuing substance abuse problems and various health
problems that have been suffered. As part of this analysis I’ve also had
to consider the aggravating factors. Mr. Morain continued to drive in
the fact of a known alcohol problem. Almost an entire family was
present when Evan was killed. Single handedly Mr. Morain destroyed

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a family and a circle of friends, and his own family. There are terrible
consequences when you choose to drink and drive. Based upon his life
experiences he had to know the consequences of his decision to drink
and drive.

While it is clear that the trial court did not consider all of the circumstances during

the resentencing proceedings, it did provide a factual basis for the sentence and

considered both mitigating and aggravating circumstances. Accordingly, we find that

this assignment of error is without merit.

EXCESSIVE SENTENCE

In this second assignment of error, Defendant alleges that his sentence

is cruel and unusual. Initially, we note that the twenty-year sentence was the

maximum at the time of the offense.2 As Defendant’s only allegation is that his

sentence is excessive, we can only evaluate his claim as a bare claim of

excessiveness. Additionally, we note that in this assignment of error, Defendant

attacks only his sentence for vehicular homicide.

We have set forth the following standard to be used in reviewing

excessive sentence claims:

La. Const. art. I, § 20 guarantees that, “[n]o law shall subject any
person to cruel or unusual punishment.” To constitute an excessive
sentence, the reviewing court must find the penalty so grossly
disproportionate to the severity of the crime as to shock our sense of
justice or that the sentence makes no measurable contribution to
acceptable penal goals and is, therefore, nothing more than a needless
imposition of pain and suffering. State v. Campbell, 404 So.2d 1205
(La.1981). The trial court has wide discretion in the imposition of
sentence within the statutory limits and such sentence shall not be set
aside as excessive absent a manifest abuse of discretion. State v.
Etienne, 99-192 (La.App. 3 Cir. 10/13/99); 746 So.2d 124, writ denied,
00-0165 (La.6/30/00); 765 So.2d 1067. The relevant question is

2
La.R.S 14.32.1(B) was amended by 2004 La. Acts, No. 381, § 1, No. 750, § 1, which
changed the maximum term of imprisonment from twenty to thirty years.

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whether the trial court abused its broad sentencing discretion, not
whether another sentence might have been more appropriate. State v.
Cook, 95-2784 (La.5/31/96); 674 So.2d 957, cert. denied, 519 U.S.
1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).

State v. Barling, 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035,

1042-43, writ denied, 01-0838 (La. 2/1/02), 808 So.2d 331 (alteration in original).

In order to decide whether a sentence shocks the sense of justice or

makes no meaningful contribution to acceptable penal goals, we have held that:

[A]n appellate court may consider several factors including the nature
of the offense, the circumstances of the offender, the legislative purpose
behind the punishment and a comparison of the sentences imposed for
similar crimes. State v. Smith, 99-0606 (La.7/6/00), 766 So.2d 501.
While a comparison of sentences imposed for similar crimes may
provide some insight, “it is well settled that sentences must be
individualized to the particular offender and to the particular offense
committed.” State v. Batiste, 594 So.2d 1 (La.App. 1 Cir.1991).
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. Cook, 95-2784 (La.5/31/96), 674 So.2d 957, 958.

State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ denied,

03-0562 (La. 5/30/03), 845 So.2d 1061.

In State v. Whatley, 06-316 (La.App. 3 Cir. 11/2/06), 943 So.2d 601, writ

denied, 06-2826 (La. 8/31/07), 962 So.2d 424, we discussed the factors that a

reviewing court should consider in determining if a trial court abused its discretion

in imposing a sentence. In Whatley, citing State v. Lisotta, 98-648 (La.App. 5 Cir.

12/16/98), 726 So.2d 57, writ denied, 99-0433 (La. 6/25/99), 745 So.2d 1183, we

annunciated three factors that a reviewing court should take into consideration in

abuse of discretion cases: (1) the nature of the crime; (2) the nature and background

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

other courts.

In following the guidelines of Lisotta, the nature of the offense in the

instant matter is vehicular homicide, a violation of La.R.S. 14:32.1, which now

carries a maximum sentence of thirty years at hard labor, but as we have stated, the

maximum sentence was only twenty years at the time of the offense. Unquestionably,

the legislature intended to convey the serious nature of the offense by the severity of

the punishment at the time of the offense and by substantially increasing the

punishment only months after the crime occurred in this case. Certainly, this is a

serious crime as was so articulately explained by the trial court in its sentencing of

Defendant. Death and serious injury was visited upon a family in their full view.

There is no measure of punishment to this defendant that can erase this crime, ease

their pain, or comfort this family.

Our review of the second prong of the Lisotta guidelines reflects that

Defendant had no criminal history, raised two daughters as a single parent, and served

a tour of duty in Vietnam as a member of the armed forces. He had no prior DWI

charges or offenses, was employed as a police officer in Baton Rouge for ten-and-a-

half years, suffers from post-traumatic stress disorder, severe depression, various

health problems, and has a drinking problem. His blood alcoholic content was

marginally over the legal limit. Furthermore, Defendant accepted accountability for

his conduct and showed great remorse for the consequences of his misconduct.

Clearly, Defendant is not the worst type of offender for whom the maximum sentences

are reserved.

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Finally, we will address the third Lisotta factor by reviewing the

sentences imposed for similar crimes by our trial courts. It is apparent that a reviewing

court should consider sentences imposed by other courts to provide consistency in the

punishment for similar crimes for similarly situated offenders. Before addressing

other opinions, we are reminded of a seminal sentencing precept: “[m]aximum

sentences are reserved for the most serious violations and the worst offenders.” State

v. Farhood, 02-490, p. 11 (La.App. 5 Cir. 3/25/03), 844 So.2d 217, 225.

The State takes the position that the trial court did not abuse its discretion

when imposing the maximum sentence and cites two cases in support of their position:

State v. Crenshaw, 39,586 (La.App. 2 Cir. 4/6/05), 899 So.2d 751, writ denied, 05-

1531 (La. 1/27/06), 922 So.2d 544, and State v. Cullipher, 02-390 (La.App. 3 Cir.

10/2/02), 827 So.2d 589. In Crenshaw, our colleagues in the second circuit held that

two maximum sentences of twenty years and five years for vehicular negligent

injuring, to be served consecutively, were not excessive where the defendant was

convicted of two counts of vehicular homicide. The defendant in Crenshaw, while

driving intoxicated, killed two persons and injured another, caused a large amount of

economic loss, had a blood alcohol content almost three times the legal limit, showed

a lack of remorse after the accident, was driving at speeds of eighty miles per hour on

city streets, and had three prior DWI convictions.

In Cullipher, we held that a fifteen-year-sentence with five years

suspended (twenty years was the maximum sentence at the time of the offense) for

vehicular homicide was not excessive. Cullipher had a blood alcohol content almost

twice the legal limit and had a previous DWI conviction. Furthermore, on the day in

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question, Cullipher began drinking at 3:30 in the afternoon and continued to do so into

the evening when he went to a local bar and drank to the point of becoming ill. His

wife attempted to bring him home, but he refused her offer.

Clearly, Crenshaw and Cullipher are distinguishable from the case at bar.

Both of the defendants in those cases were much more serious offenders than

Defendant herein. In the instant matter, Defendant’s blood alcohol content was just

slightly over the legal limit, he showed remorse for the consequences of his conduct,

had no prior DWI convictions, and had not been involved in any other criminal

activity. Furthermore, in Cullipher, even in light of his past conduct and the gravity

of the vehicular homicide offense, he did not receive the maximum sentence of twenty

years.

One of the cases cited by Defendant in support of his proposition that his

sentence is excessive is State v. Blackmon, 99-391 (La.App. 3 Cir. 11/3/99), 748 So.2d

50, writ denied, 99-3328 (La. 4/28/00), 760 So.2d 1174, where this court held that a

fifteen-year-sentence (the maximum sentence at the time of the offense in that case)

for vehicular homicide was not excessive based on the facts of the case. In Blackmon,

the defendant had a blood alcohol content twice the legal limit at the time of the

offense and was involved in two separate accidents while intoxicated, one accident

was a hit-and-run and the other resulted in a fatality. He was also driving with his

girlfriend and two small unrestrained children, had a previous DWI conviction, and

received the benefits of a plea agreement where other charges related to driving while

intoxicated were not pursued by the District Attorney.

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Another case cited by Defendant is State v. Yates, 574 So.2d 566 (La.App

3 Cir.), writ denied, 578 So.2d 131 (La.1991), again where this court held that two

consecutive five-year sentences (the maximum sentence at that time) for two counts

of vehicular homicide were not excessive based on the facts of the case.3 In Yates, the

defendant operated a vehicle while intoxicated, had a head-on collision with another

vehicle carrying four persons, of which two died as a result of the accident, had two

prior DWI convictions, showed no remorse for his conduct, and continued to drink on

a daily basis after the accident.

Once again we are reminded of two key aspects of sentencing: (1)

maximum sentences are reserved for the most serious offenses and offenders, and (2)

that there should be some relative sense of consistency when imposing maximum

sentences. With that in mind, we will review several other cases involving vehicular

homicide. In State v. Guillory, 93-1031 (La.App. 3 Cir. 4/27/94), 640 So.2d 427, writ

denied, 94-1380 (La. 9/30/94), 642 So.2d 869, this court held that a fifteen-year-

sentence (the maximum sentence for vehicular homicide at the time of the offense)

was not excessive where the defendant pled guilty to three counts of vehicular

homicide and the sentences were ordered to be served concurrently. With a blood

alcohol content almost three times the legal limit at the time of the offense, the

defendant operated a vehicle that ultimately collided with a second vehicle causing the

death of three persons and seriously injuring a fourth. Id. Additionally, the defendant

in Guillory had one prior felony conviction and three misdemeanor convictions and

3
At the time of the Yates offense, the maximum sentence for vehicular homicide was five
years.

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on the night of the accident, after drinking in excess, was urged twice by others not to

drive.

On the other end of the spectrum, in State v. Gibson, 97-108 (La.App. 3

Cir. 4/30/97), 693 So.2d 286, we held that a nine-year sentence for vehicular homicide

was not excessive based on the circumstances of that case. Testimony was adduced

at trial in Gibson that the defendant had a blood alcohol level almost twice the legal

limit at the time; she had been drinking a great part of the day; was warned by her

father, a law enforcement officer, that she should not drink and drive; she showed little

remorse for her conduct after the accident; and pled guilty to public drunkenness while

awaiting trial. At the time Gibson was sentenced, the maximum offense for vehicular

homicide was fifteen years. She received a sentence of nine years, which is just over

half of the maximum sentence. A case worth noting is State v. Trahan, 93-1116

(La.App. 1 Cir. 5/20/94), 637 So.2d 694, which was cited within Gibson. That case

discussed the sentence of a first-time felony offender, without a criminal record, who

was convicted of three counts of vehicular homicide and received three, ten-year

sentences to be served concurrently. It was determined at trial that Trahan had a blood

alcohol content of .10% or greater at the time of the accident, he showed little remorse

for his conduct after the accident, and, while awaiting trial, he was observed driving

after having several drinks at a bar. The court in Trahan concluded that based on the

circumstances of his case and his conduct subsequent to the accident, Trahan’s

sentence was not excessive.

Finally, in State v. Adair, 04-120 (La.App. 5 Cir. 5/26/04), 875 So.2d

972, the appellate court held that a ten-year sentence for vehicular homicide was not

10

excessive. In Adair, the defendant operated a vehicle while his blood alcohol content

was more than twice the legal limit; had a previous criminal record, including a DWI

conviction and an aggravated assault conviction; had been warned previously by

family members that he should not drink and drive; and failed to accept responsibility

for the accident until after he was taken to the hospital after the accident. The ten-year

sentence that Adair received was half of the maximum that could have been imposed

at that time.

While this is a tragic and unforgivable accident, based on the foregoing

analysis where offenders received maximum sentences, Defendant’s conduct and

offense contrast notably from the others. Accordingly, we find that Defendant was not

the worst type of offender for whom maximum sentences are typically reserved.

See State v. Runyon, 05-36 (La.App 3 Cir. 11/2/05), 916 So.2d 407, writs denied, 06-

1348 (La. 9/1/06), 936 So.2d 207, 06-0667 (La. 11/17/06), 942 So.2d 526, where this

court vacated and remanded for resentencing a case in which the defendant had

received a maximum sentence, where the court deemed his culpability in the crime was

not on the same level as his co-defendant, who also received a maximum sentence.

See also State v. Whatley, 03-1275, p. 7 (La.App. 3 Cir. 3/3/04), 867 So.2d 955, 959,

where this court vacated and remanded for resentencing, stating:

The state has not cited any indecent behavior cases comparable to the
defendant’s where the maximum sentence was imposed. Considering
only a bare claim of excessiveness, and without considering the merits of
the specific assignments of error, we still conclude that, based on the
record before us, the evidence does not establish that the defendant is one
of those worst offenders upon whom the maximum penalty should be
imposed.

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Likewise, based on the record in this case, we cannot find that Defendant

is one of the worst offenders for whom the maximum sentence is reserved.

CONCLUSION

For the foregoing reasons, we find that the trial court abused its discretion

in imposing a maximum sentence for Defendant’s vehicular homicide conviction and,

accordingly, said sentence is vacated and the case is remanded to the trial court for

resentencing in a manner not inconsistent with this opinion.

SENTENCE VACATED AND REMANDED.

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