State of Louisiana v. Raymundo Franco

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

08-1071

STATE OF LOUISIANA

VERSUS

RAYMUNDO FRANCO

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. 114,909
HONORABLE MARILYN CARR CASTLE, DISTRICT JUDGE

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MICHAEL G. SULLIVAN
JUDGE

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Court composed of John D. Saunders, Michael G. Sullivan, and James T. Genovese,
Judges.

AFFIRMED AS AMENDED; REMANDED WITH INSTRUCTIONS.

James E. Beal
Louisiana Appellate Project
Post Office Box 307
Jonesboro, Louisiana 71251-0307
(318) 259-2391
Counsel for Defendant/Appellant:
Raymundo Franco

Michael Harson
District Attorney
Ronald E. Dauterive
Assistant District Attorney
Post Office Box 3306
Lafayette, Louisiana 70502
(337) 232-5170
Counsel for:
State of Louisiana

Raymundo Franco
A.V.C. Hope 1 - B2
1630 Prison Road
Cottonport,, Louisiana 71327
Defendant/Appellant

SULLIVAN, Judge.

Defendant, Raymundo Franco, appeals his sentence for vehicular homicide,

claiming it is excessive. He also makes a pro se claim that the trial court breached

his plea agreement and that his consent was vitiated when he received an excessive

sentence. For the following reasons, we affirm Defendant’s sentence, as amended,

and remand with instructions.

Facts

On February 18, 2007, the weekend before Mardi Gras, Defendant ran a red

light, and his vehicle collided with a vehicle driven by B.D.,1 a seventeen-year-old

female. Defendant’s blood alcohol concentration was 0.26. B.D. had two passengers,

K.V. and M.L, who were also seventeen years old. B.D. was killed, and K.V. and

M.L. were seriously injured. M.L.’s left leg was amputated below the knee, and she

had to undergo numerous surgeries, which required her to be hospitalized for an

extended period of time. K.V. was also hospitalized and lost her spleen.

Defendant was charged with vehicular homicide, a violation of La.R.S.

14:32.1, two counts of first degree vehicular negligent injuring, a violation of La.R.S.

14:39.2, and operating a motor vehicle without required insurance, a violation of

La.R.S. 32:861. He pled guilty to vehicular homicide and two counts of first degree

vehicular negligent injuring; the charge of operating a motor vehicle without required

insurance was dismissed. For his conviction of vehicular homicide, Defendant was

sentenced to twenty-four years at hard labor and ordered to serve the first five years

without the benefit of probation, parole, or suspension of sentence; he was also

1
Initials are used pursuant to La.R.S. 46:1844(W). Although the use of the deceased victim’s
initials is not required under the statute, her initials are used herein to protect the identity of the other
two victims.

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ordered to pay a fine of $2,000.00 and court costs of $183.50. For each conviction

of first degree vehicular negligent injuring, Defendant was sentenced to five years at

hard labor. The three sentences were ordered to run concurrently, and Defendant was

given credit for time served. The trial court requested that Defendant be confined to

a facility in which he could receive alcohol and substance abuse treatment and

imposed conditions of parole.

Defendant filed a pro se Motion to Reconsider Sentence, which was summarily

denied with reasons. He then filed a pro se “Motion to Vacate Illegal Sentence

ordering Resentence,” which was also summarily denied with reasons. Thereafter,

he filed this appeal.

Errors Patent

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for

errors patent on the face of the record. There are two error patents.

The trial court imposed conditions of parole; however, it does not have the

authority to impose such conditions. State v. Bradley, 99-364 (La.App. 3 Cir.

11/3/99), 746 So.2d 263. Accordingly, Defendant’s sentence is amended by deleting

the conditions of parole, and the trial court is instructed to make an entry in the court

minutes reflecting this amendment.

The trial court gave Defendant incorrect advice as to the time period for

seeking post-conviction relief. It informed Defendant that his sentences and

convictions would be final in five days if he did not file an appeal or a motion to

reconsider his sentence. Pursuant to La.Code Crim.P. arts. 914 and 922, the earliest

a conviction and sentence can become final is thirty days after the imposition of

sentence, provided the defendant does not file an appeal or a motion to reconsider

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sentence. In light of this error, the trial court is directed to inform Defendant of the

correct prescriptive period by sending appropriate written notice to him within ten

days of the rendition of this opinion and to file written proof of the notice in the

record of this proceeding. State v. Roe, 05-116 (La.App. 3 Cir. 6/1/05), 903 So.2d

1265, writ denied, 05-1762 (La. 2/10/06), 924 So.2d 163.

Excessive Sentence

Defendant urges that the trial court failed to give sufficient consideration to

mitigating factors in fashioning his sentence for vehicular homicide, and as a result,

he received an excessive sentence. In his pro se Motion to Reconsider Sentence,

Defendant did not set forth a specific ground upon which his motion was based,

stating only that his sentence was excessive. A motion to reconsider sentence must

be based upon a specific ground. La.Code Crim. art. 881.1(E). This requirement

includes claims of excessiveness. Id. In State v. Mims, 619 So.2d 1059, 1059-60

(La.1993), the supreme court addressed this requirement, explaining:

If the defendant does not allege any specific ground for excessiveness
or present any argument or evidence not previously considered by the
court at original sentencing, then the defendant does not lose the right
to appeal the sentence; the defendant is simply relegated to having the
appellate court consider the bare claim of excessiveness.

Defendant did not argue that the trial court did not sufficiently consider the mitigating

factors as provided in La.Code Crim.P. art. 894.1 or that the trial court failed to

comply with Article 894.1; therefore, he is relegated to a bare claim of excessiveness.

Id.

In State v. Semien, 06-841, pp. 11-12 (La.App. 3 Cir. 1/31/07), 948 So.2d 1189,

1197, writ denied, 07-448 (La. 10/12/07), 965 So.2d 397, this court stated:

The Eighth Amendment to the United States
Constitution and La. Const. art. I, § 20 prohibit the

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imposition of cruel or excessive punishment. “‘[T]he
excessiveness of a sentence becomes a question of law
reviewable under the appellate jurisdiction of this court.’”
State v. Dorthey, 623 So.2d 1276, 1280 (La.1993) (quoting
State v. Sepulvado, 367 So.2d 762, 764 (La.1979)). Still,
the trial court is given wide discretion in imposing a
sentence, and, absent a manifest abuse of that discretion,
we will not deem as excessive a sentence imposed within
statutory limits. State v. Pyke, 95-919 (La.App. 3 Cir.
3/6/96), 670 So.2d 713. However, “[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 only relevant question
for us to consider on review is not whether another
sentence would be more appropriate, but whether the trial
court abused its broad discretion in sentencing a defendant.
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).

The fifth circuit, in [State v.] Lisotta, [98-646
La.App. 5 Cir. 12/16/98),] 726 So.2d [57] at 58, stated that
the reviewing court should consider three factors in
reviewing the trial court’s sentencing discretion:

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. Whatley, 03-1275, pp. 5-6 (La.App. 3 Cir. 3/3/04), 867 So.2d
955, 958-59 first two alterations in original.

Nature of the Crime

The crime at issue here is vehicular homicide, which carries a maximum

sentence of thirty years at hard labor. La.R.S. 14:32.1. In 2004, the legislature

increased the maximum penalty for vehicular homicide from twenty years to thirty

years, demonstrating its intent to convey the serious nature of this crime. State v.

Morain, 07-1207 (La.App. 3 Cir. 4/2/08), 981 So.2d 66. Then, in 2006, the minimum

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penalty for vehicular homicide was increased from two years to five years at hard

labor, and the minimum number of years required to be imposed without benefit of

probation, parole, or suspension of sentence was increased from one year to three

years, further evidencing the legislature’s intent to convey the seriousness of this

offense.

In this case, the offense caused the untimely death of a seventeen-year-old girl,

for which “[t]here is no measure of punishment to this defendant that can erase this

crime, ease [this family’s] pain, or comfort this family,” as the trial court observed.

Nature and Background of Defendant

Defendant was twenty-three years old at the time of the accident herein. He

had no prior felony convictions but had several misdemeanor convictions, including

DWI, improper lane usage, careless operation, and no driver’s license in possession.

In fact, Defendant was on probation for a prior DWI conviction at the time of the

instant offense. Additionally, his blood alcohol concentration was more than three

times the legal limit of “0.08 percent or more by weight based on grams of alcohol per

one hundred cubic centimeters of blood.” La.R.S. 14:98(A)(1)(b).

Defendant obtained his Graduate Equivalency Diploma, then attended a branch

of Texas A&M in Houston, Texas, which led him to be a diver. He moved to New

Iberia, Louisiana, to work as a diver, where he was gainfully employed for about two

years before the accident. He accepted responsibility for his conduct and showed

remorse for the consequences of his misconduct. He admitted that he has a substance

abuse problem for which he needed help and completed Project Kite, a substance

abuse program offered to incarcerated inmates. He was also attending Alcoholic

Anonymous meetings.

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Sentences Imposed for Similar Crimes

Two reported cases involve the amended maximum penalty for vehicular

homicide that was upheld on appeal and that is similar to the instant case. In State

v. Kotrla, 08-364 (La.App. 3 Cir. 11/5/08), 996 So.2d 1224, this court affirmed a

sixteen-year sentence for vehicular homicide. Like the Defendant in this case, the

defendant in Kotrla was driving his vehicle while under the influence of alcohol,

struck another vehicle, and caused the death of one passenger and seriously injured

the driver and a second passenger. The defendant’s blood alcohol concentration

exceeded 0.15. After one full day of trial, the defendant withdrew his plea of not

guilty to vehicular homicide and two counts of first degree vehicular negligent

injuring and entered a plea of guilty as charged.

At sentencing, in Kotrla, the trial court noted that the defendant had no prior

felony convictions and had a stable work history. However, considering the facts that

the defendant’s blood alcohol concentration was twice the legal limit at the time of

the offense and that his actions resulted in the death of a human being and serious

bodily injury to two others, the trial court determined that any lesser sentence would

deprecate the seriousness of the offense.

In State v. Johnson, 43,719 (La.App. 2 Cir. 12/3/08), 999 So.2d 126, the

defendant pled guilty to one count of vehicular homicide and one count of first degree

vehicular negligent injuring. At the time of the accident at issue, the defendant had

a blood alcohol concentration of 0.285. She did not have a driver’s license, and the

car she was driving was not insured. Additionally, she had a history of alcohol abuse.

The defendant was sentenced to serve fifteen years at hard labor, the first five years

to be served without benefit of probation, parole, or suspension of sentence on the

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vehicular homicide conviction and five years at hard labor with credit for time served

on the first degree negligent injuring conviction to run consecutively with the

vehicular homicide conviction.

We have considered Defendant’s sentence in light of the seriousness of the

crimes committed, Defendant’s situation, and sentences imposed in these similar

cases and do not find his sentence to be cruel or excessive punishment. Defendant’s

blood alcohol concentration was much higher than the defendant’s in Kotrla, and

there is no indication that that the defendant in Kotrla had a substance abuse problem

or a prior DWI. While Defendant’s blood alcohol concentration was lower than the

defendant’s in Johnson, there were only two victims in Johnson, and the defendant

was sentenced to consecutive sentences which total twenty years. The defendant in

Johnson had an alcohol abuse problem, as Defendant does, but unlike Defendant,

there is no indication she had a prior DWI conviction or that she was on probation for

DWI when she committed the offense of vehicular homicide.

Breach of Plea Agreement

In his second and third pro se assignments of error, Defendant argues that his

plea agreement was breached by the trial court when it imposed a twenty-four-year

sentence for vehicular homicide and that his consent to the plea agreement was

vitiated by the alleged breach. We do not agree.

First, Defendant’s plea agreement did not include a sentencing agreement or

recommendation by the State. Second, before accepting Defendant’s guilty plea, the

trial court specifically informed him twice that no promise was being made as to the

sentence he would receive. Third, the trial court also explained that a pre-sentence

investigation would be ordered and that the trial court would use it to determine the

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appropriate sentence. Lastly, Defendant indicated that he understood the trial court’s

explanation regarding sentencing. Defendant was sentenced in conformity with his

plea agreement, and his conviction is affirmed.

Disposition

Defendant’s conviction and sentence for vehicular homicide are affirmed.

However, his sentence is amended by deleting the conditions of parole, and the trial

court is instructed to make an entry in the court minutes, which identifies this

amendment. The trial court is directed to inform Defendant of the correct prescriptive

period for post-conviction relief by sending appropriate written notice to him within

ten days of the rendition of this opinion and to file written proof of the notice in the

record of this proceeding.

AFFIRMED AS AMENDED; REMANDED WITH INSTRUCTIONS.

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