State of Louisiana v. Maryln A. Leblanc

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

08-1533

STATE OF LOUISIANA

VERSUS

MARYLN A. LEBLANC

**********

APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT,
PARISH OF LAFAYETTE, NO. CR 116138, DIV. G
HONORABLE DURWOOD CONQUE, DISTRICT JUDGE

**********

J. DAVID PAINTER
JUDGE

**********

Court composed of Marc T. Amy, Elizabeth A. Pickett, and J. David Painter, Judges.

VACATED AND REMANDED.

Amy, J., dissents and assigns written reasons.

Alfred F. Boustany, II, Attorney at Law
421 West Vermilion Street
P.O. Box 4626
Lafayette, LA 70502
Counsel for Defendant-Appellant:
Maryln A. Leblanc

Michael Harson, District Attorney
Keith A. Stutes, Assistant District Attorney
Office of the District Attorney
P.O. Box 3306
Lafayette, LA 70502
Counsel for Appellee:
State of Louisiana

PAINTER, Judge.

Defendant, Maryln A. LeBlanc, appeals the sentence she received in

connection with her guilty plea to one count of vehicular homicide and three counts

of vehicular negligent injuring. For the following reasons, we vacate the thirty-year

sentence imposed on the conviction for vehicular homicide and remand the matter to

the trial court for resentencing in accordance with this opinion. Furthermore, we

sever Defendant’s misdemeanor sentences from this appeal and instruct Defendant

that she must file an application seeking supervisory review with this court within

thirty days of this ruling should she choose to seek review thereof.

FACTUAL AND PROCEDURAL BACKGROUND

Whereas Defendant pled guilty, the facts are as recited by the State at the guilty

plea hearing, as follows:

[O]n or about April 21, 2007, in the evening between 7:00 and 8:00, the
Hardy family from Port Barre’ was traveling by car to a family reunion
here in Lafayette Parish.

Michael Hardy was driving. Kyle Hardy was a front seat
passenger. Kristy Hardy and Mrs. Genevieve Hardy were the rear seat
passengers in the Hardys’ 2002 Toyota Camry. These are the four
individuals that represent the victims in these first four counts.

They were proceeding southbound on Louisiana Highway 724,
otherwise known as South Fieldspan. Mr. Michael Hardy would come
to be later examined after the collision as to his blood alcohol content,
and he was found to be absolutely free of any alcohol.

The defendant, on the other hand, Maryln LeBlanc, was
proceeding northbound on Louisiana Highway 724, again South
Fieldspan, in a Jeep Grand Cherokee. Approaching the Hardy vehicle,
she was driving rapidly, speeding, and recklessly.

There were actually three vehicles in the Hardy family caravan
going to the family function. Michael was driving the lead vehicle.
Michael had turned off of Highway 90 onto Highway 724 proceeding
south when the defendant’s vehicle, driving erratically, veered onto and
into the edge of the side ditch and came out of the ditch and straightened

1

up and then abruptly crossed into the southbound lane in which the
Hardy vehicle was proceeding.

Mr. Hardy, Michael Hardy, tried to swerve to the right in an
attempt to miss the defendant’s vehicle, but due to the speed and the
erratic driving of the defendant, the defendant’s Jeep struck violently the
driver’s side of the Hardy Camry, spinning the Camry out of control into
the side ditch and onto the south--off of the southbound lane, coming to
rest there. The violent collision resulted in the death of Mrs. Genvieve
Hardy and serious bodily injury to Kyle Hardy, Kristy Hardy, and
Michael Hardy.

....

She turned onto 343 and proceeded south, where she was eventually
stopped by the Lafayette Parish Sheriff’s Office patrol units.

She exhibited slurred speech and glossy red eyes. She performed
extremely poorly on the field sobriety test. Samples were taken from the
defendant and were analyzed by the Louisiana State Police Crime Lab.
Her samples were found to contain--her body samples were found to
contain methadone, meprobamate, hydrocodone, cocaine, diazepam, and
marijuana. . . .

Defendant was charged by bill of information with one count of vehicular

homicide, a violation of La.R.S. 14:32.1, three counts of vehicular negligent injuring,

violations of La.R.S. 14:39.1, one count of operating a vehicle while intoxicated, a

violation of La.R.S. 14:98, one count of possession of a controlled dangerous

substance, Schedule II, a violation of La.R.S. 40:967, one count of possession of a

controlled dangerous substance, Schedule I, a violation of La.R.S. 40:966, one count

of reckless operation of a vehicle, a violation of La.R.S. 14:99, two counts of hit-and-

run driving, violations of La.R.S. 14:100, one count of failure to conform to required

position and method of turning at intersections, a violation of La.R.S. 32:101(C), and

one count of failure to have driver’s license in immediate possession when driving,

a violation of La.R.S. 32:411(D).

2

On March 13, 2008, Defendant pled guilty to one count of vehicular homicide

and three counts of vehicular negligent injuring. The remaining charges were

dismissed. The trial court ordered a presentence investigation report. Defendant was

sentenced on September 8, 2008, to the maximum sentence of thirty years at hard

labor with three years to be served without the benefit of parole, probation or

suspension of sentence on the conviction for vehicular homicide, and the maximum

sentence of six months on each of the three counts of vehicular negligent injuring, to

be served concurrently with each other and with the thirty-year sentence. Defendant

filed a “Motion to Reconsider Sentence,” alleging an excessive sentence. The motion

was denied without a hearing or written reasons.

Defendant now appeals asserting that the maximum sentence of thirty years is

constitutionally excessive under the circumstances of the case. For the following

reasons, we agree.

DISCUSSION

Errors Patent

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

errors patent on the face of the record. Although we recognize that there are two

errors patent, these errors are precluded from review for the following reasons.

First, there is a misjoinder of offenses in the bill of indictment. Counts 1 and

6 of the bill of information are punishable by imprisonment with or without hard

labor, and are thus triable by a jury of six, all of whom must concur to render a

verdict. La.Code Crim.P. art. 782, La.R.S. 14:32.1 and La.R.S. 40:967. The

remaining counts of the twelve count bill are to be tried by the court without a jury.

La.Code Crim.P. art. 779. Louisiana Code of Criminal Procedure Article 493

3

provides for the joinder of offenses in a single bill under limited circumstances if the

offenses joined are triable by the same mode of trial. Consequently, Counts 1 and 6

were improperly joined with the remaining counts. However, the Defendant did not

file a motion to quash the bill of information on the basis of misjoinder of offenses,

as required by statute. La.Code Crim.P. art. 495. Additionally, by entering an

unqualified guilty plea, the Defendant waived review of this non-jurisdictional pre-

plea defect. See State v. Crosby, 338 So.2d 584 (La.1976). Thus, this error is

precluded from review.

Second, the trial court failed to impose a mandatory fine. Louisiana Revised

Statutes 14:32.1(B) requires the imposition of a fine of not less than two thousand

dollars nor more than fifteen thousand dollars. The trial court’s failure to impose a

mandatory fine in this case renders the Defendant’s sentence illegally lenient.

However, the error is not raised by Defendant, and we will not address it herein.

We next address a procedural issue. The Defendant entered a plea of guilty to

Counts 1 through 4. Because Counts 2-4, vehicular negligent injuring, were not

triable by jury, the proper mode of appellate review for these offenses is an

application for writ of review, rather than an appeal. La.Code Crim.P. art. 912.1.

Defendant has not challenged her misdemeanor convictions. Her only

assignment of error concerns the alleged excessiveness of her sentence, and her

argument refers specifically to her sentence for vehicular homicide. Therefore, we

hereby sever the misdemeanors from this appeal and instruct the Defendant that if she

chooses to seek review of the misdemeanors, she must file an application seeking

supervisory review with this court within thirty days of the court’s ruling on appeal.

4

See State v. Turner, 04-1250 (La.App. 3 Cir. 3/2/05), 896 So.2d 286, writ denied, 05-

871 (La. 12/12/05), 917 So.2d 1084.

Excessive Sentence Claim

Defendant argues that the sentence of thirty years is unconstitutionally

excessive. She argues that maximum sentences are reserved for the worst of

offenders, and compared to sentences imposed for similar crimes by this court and

other courts wherein similarly situated offenders received lesser sentences, she should

not have been sentenced to the maximum of thirty years at hard labor.

Vehicular homicide is punishable by imprisonment “with or without hard labor

for not less than five years nor more than thirty years.” La.R.S. 14:32.1(B).

Defendant received the maximum term of imprisonment.

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

So.2d 1035, 1042-43, writ denied, 01-838 (La. 2/1/02), 808 So.2d 331, this court

discussed what constituted an excessive sentence as follows:

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 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).

5

While discussing a maximum sentence imposed for a conviction of vehicular

homicide, this court in State v. Morain, 07-1207, p. 7 (La.App. 3 Cir. 4/2/08), 981

So.2d 66, 70 (alteration in original), stated:

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, 255.

In the current case, at the sentencing hearing, the trial court summarized the

presentence investigation report, noting that it did not appear from the report that

Defendant acknowledged that the drugs she had taken was the cause of the accident.

According to the report, she said that she had an altercation with a person and if that

had not happened, she would not have been so reckless. The trial court noted that

Defendant had reported that her problem with drugs began following a car accident

in which she was injured and that she began taking Lortab and Xanax for the pain.

Defendant had received treatment at the methadone clinic in Breaux Bridge, but the

treatment was not successful. The report also indicated that she had attempted to get

treatment from other local facilities, but her addiction was not considered severe

enough in one clinic, and she could not afford the services in another clinic. The trial

court also noted that she was a first-time felony offender.

The trial court placed into the record several letters written by the deceased

victim’s family and friends extolling the victim’s admirable attributes. Also

introduced into the record were several letters written by Defendant’s family and

friends extolling her virtues and their thoughts on why she had such a problem with

drugs. Included in the record was a letter from Defendant acknowledging her

6

problem with drugs and expressing her remorse that her actions caused the death of

Mrs. Hardy.

At the sentencing hearing, the deceased victim’s husband, Michael, and three

adult sons, Christopher, Kyle, and Justin, testified regarding the deceased victim and

how devastating her death was to them and the rest of her family. Kyle, who was in

the vehicle and suffered serious injuries, testified that a witness “said that, after she

[Defendant] hit us and took off, that she was smiling, just smiling like it was a game,

just took somebody’s life and it was like a game.”

Defendant’s family also testified at the hearing. Glenward and Chris Allemond

testified that their sister had a normal, happy childhood and that she was always the

bright light of the family until her second bad marriage and a car accident. Her current

husband, who also had drug problems, was seldom home, and he did not give her any

support.

Stephanie Allemond LaFleur, Defendant’s sister, corroborated her brothers’

testimonies. She further stated that she knew Defendant had been in a fight that day.

She testified as follows:

And I know that she had went to some friends’ house. . . . And I know
she left there running for her life, and she probably was on pain pills,
and she probably was on methadone, because she had been going to the
methadone clinic to try to get off the pain pills; but her pain that was
causing her back pain so much and her depression from her husband
never being there when she needed him, so what was she to do? She had
a child that she didn’t know what to do. [Sic.]

So I know that day, you know, she was probably on something,
and I’m not here to say she wasn’t, but I know she was also scared. She
was running for her life. And she would have never just hit the person
and took off running and threw her hands up laughing. That would have
never been Maryln. Maryln is the person that wouldn’t kill a flea. I
mean, out of all five of us, she was the person that you could--I mean,
she would cry for anything. I mean, that’s how much she loved
everybody.

7

Doctor John Khorsandi, whose field of practice was family medicine, testified

that he had been treating Defendant since 2002. He stated that he saw her only a few

times the first year and that her visits increased as time went on. He stated that she

complained mostly of anxiety as well as some lower back pain. He diagnosed her as

suffering from depression. He prescribed multiple medications for anxiety, including

Effexor, Cymbalta, and Xanax, as well as Lortabs for pain. Of the drugs that were

determined to be in her system the day of the accident, he stated that several were

derivatives of the drugs he had prescribed for her.

Finally, Defendant’s two sons, Nicholas, eighteen, and Dillon, fourteen,

testified regarding their mother and the pain they felt at her loss from being

incarcerated since the accident.

Following testimony, the trial court stated, in pertinent part:

In determining whether someone gets the minimum or the
maximum or somewhere in between, the general principle that courts
follow is that the minimum sentence is reserved for those instances of
this particular crime that occur in the least egregious way or the least
serious or offensive way, and the maximum sentence is reserved for
those crimes that appear to be the worst way that this particular crime
can be committed, the most egregious, the most serious. Everything else
is in between.

What I have here today is a situation where there have been the
most serious consequences that there can be, a death. It doesn’t get any
more serious than that. The families have discussed the issue of – and
I have read in the report that 30 years, even 30 years as a maximum
seems light in exchange for a life. That is not the purpose of the law, is
to even out the tragedies. [Sic.]

The reason, if you want to know, why this particular law is not
life imprisonment, as murder would be, or some other crimes would be,
is because, by its very definition, it is a crime of negligence, gross
negligence, not intentional acts. And that’s the difference. Of course, the
reason that it’s not lighter, vehicular homicide, one of the --by
definition, vehicular homicide is gross negligence which can be caused
by the influence of alcohol or drugs.

8

And the reason it’s not lighter than it is when people say, well, it
wasn’t my fault, it was the drug’s fault, it was the alcohol’s fault, or I
didn’t do it intentionally, I didn’t mean to do it, is the seriousness of it.
By the word homicide, someone lost their life. So that’s why the
legislature has seen fit to give that range of sentencing.

The trial court then discussed the sentencing guidelines and what factors to

consider to determine whether the person being sentenced should be incarcerated. He

stated that there was an “extreme” risk that Defendant “would fall right back into the

lifestyle that she was in before.” He determined that Defendant was in need of

correctional treatment “that can be provided most effectively by commitment to an

institution.” Finally, the trial court stated that “a lesser sentence would deprecate the

seriousness of the crime.” Other factors the trial court considered were that

Defendant “knowingly created a risk of death or great bodily harm to more than one

person . . . including yourself,” and that there was permanent injury and significant

economic loss to the family of the deceased victim. The trial court noted that

Defendant had no prior history of delinquency or criminal activity and had led a law-

abiding life prior to the accident.

The trial court then summarized the factual details of the incident and the

subsequent discovery of marijuana and cocaine in her vehicle, which, he stated,

“shows a reckless disregard for her own life and for the lives of others, and that’s

what I am trying to emphasize in this case.” He then decreed that the only

punishment that “can fit the crime in this particular case” was the maximum sentence.

In her brief, Defendant argues that there was no evidence other than what the

deceased victim’s son and husband had said about witnesses alleging that Defendant

was smiling as she drove away from the accident. Defendant further argues:

The other point that stands out is that this crime caused a death
and the sentencing judge found that point significant. But, should that

9

fact have any bearing on whether to impose the maximum sentence.
Every vehicular homicide necessarily involves a death. After noting that
this “is a situation where there have been the most serious consequences
that there can be, a death,” the lower court concluded that “the
punishment must fit the crime” and that “the only punishment that can
fit the crime in this particular case, everything considered, is going to be
the maximum sentence.”

The fact of a death is not an aggravating circumstance. It is simply
a sad fact and an essential element of every crime of vehicular homicide.

Defendant points to Morain, wherein this court held that “the trial court abused

its discretion in imposing a maximum sentence for Defendant’s vehicular homicide

conviction.” Morain, 981 So.2d at 73. In Morain, a seventeen-year-old had pulled

over on the highway to fix a flat tire. His stepfather, mother, and two siblings showed

up to help. Morain veered onto the shoulder and struck the group, killing the

seventeen-year-old and seriously injuring his stepfather. Morain’s blood alcohol

content was measured at 0.10g, a little over the legal limit. The trial court sentenced

Morain to twenty years imprisonment, with the first eight years to be served without

the benefit of parole, probation or suspension of sentence. At the time, twenty years

was the maximum sentence for the offense of vehicular homicide.

In Morain, the trial court noted:

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 a family
and a circle of friends, and his own family. There are
terrible consequences when you choose to drink and drive.

Id. at 69.

10

While discussing Morain’s maximum sentence, this court stated:

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 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.

11

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.

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.

Id. at 70.

This court in Morain, while discussing the third Lisotta factor, reviewed two

cases of vehicular homicide wherein the maximum and near maximum sentences were

not excessive under the circumstances. In 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, the

second circuit found Crenshaw to be the worst type of offender for whom the twenty-

year maximum sentence was reserved. While driving intoxicated, he caused the death

of two persons and injured another, had a blood alcohol content almost three times

the legal limit, showed no remorse after the accident, was driving at speeds of eighty

miles per hour on city streets, and had two prior DWI convictions and a conviction

for reckless driving. In State v. Cullipher, 02-390 (La.App. 3 Cir. 10/2/02), 827

So.2d 589, this court did not find a fifteen-year sentence with five years suspended

excessive when the maximum sentence was twenty years. The offender had a prior

DWI, had been drinking all day and into the night, and despite drinking so much he

12

became ill, he ignored pleas from his wife to let her drive him home and insisted on

driving himself. Distinguishing these two cases from the situation in Morain, this

court noted:

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.

Morain, 981 So.2d at 71.

In Morain, following the analysis of the nature of the offense, the nature and

background of the offender, and sentences imposed for similar crimes by the same

court and other courts, this court stated that “[w]hile 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.” Morain, 981 So.2d at 72-73.

We find that, as in Morain, Defendant is not the worst type of offender for

whom maximum sentences are reserved. Testimony established that Defendant did

not have a problem with drugs until five to eight years prior to the accident which

killed Mrs. Hardy. Prior to her own injury in a car accident, she had no problems

with the law and was not involved in illegal activity. She became addicted to pain

killers and suffered depression due to her bad second marriage and her inability to

overcome her addiction. Defendant was also raising two sons, virtually on her own,

during this time.

13

Notably, in Morain, the trial court considered Morain’s depression, health

problems, and alcohol abuse as mitigating factors. In the current case, the trial court

did not appear to consider Defendant’s health problems and continuing substance

abuse as mitigating factors but rather ignored the cause of her substance abuse and

her attempts to get help for the problem. The only mitigating factor the trial court

mentioned was that Defendant had no prior criminal record.

More recently, this court did not find a sixteen-year sentence imposed on a

first-time felony offender excessive. This court agreed with the trial court that “in

light of Defendant’s blood alcohol concentration of twice the legal limit at the time

of the offense, and the fact 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.” State v. Kotrla, 08-364, p. 6

(La.App. 3 Cir. 11/5/08), 996 So.2d 1224, 1228.

A sentence of twenty years out of a possible thirty years was not found to be

excessive in State v. Barber, 42,548 (La.App. 2 Cir. 10/24/07), 968 So.2d 829,

wherein Barber, after he struck and killed a truck driver standing beside the roadway,

fled the scene on foot. He attempted to get his wife to lie for him regarding the

accident. Although he admitted he was intoxicated at the time, because he was not

arrested until several days later, there was no indication of how drunk he was.

However, there was testimony that prior to the accident he was seen drinking

excessively, and he had two prior DWIs, one of which he was still on probation for

when the accident occurred.

The trial court is in the best position to determine the aggravating and

mitigating circumstances in order to particularize the sentence. State v. Cook, 95-

14

2784 (La. 5/31/96), 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615 (1996).

Furthermore, a sentence shall not be set aside as excessive absent a showing of

manifest abuse of discretion by the imposing judge. However, considering the nature

of the crime, the nature and background of Defendant, and the sentences imposed for

similar crimes by the same court and other courts, Defendant is not the worst of

offenders for whom maximum sentences are reserved. Where maximum sentences

were affirmed, the offenders had prior DWI violations and continued to drink and

drive, or had records of other criminal offenses, or both, and they exhibited no

remorse for their victims. In cases where the offenders were guilty of driving

intoxicated and causing accidents in which deaths resulted, and who were either first-

time felony offenders or whose criminal history was minor, the sentences tended to

be only one-half to three-quarters of the maximum sentences. Finally, in the two

recent cases, Kotrla and Barber, wherein the offenses occurred after the maximum

punishment was increased to thirty years imprisonment, under circumstances similar

to the current case, the sentences imposed were one year more than one-half the

maximum in the case of Kotrla, a first-time felony offender, and two-thirds of the

maximum in the case of Barber, who hid for several days after the accident,

attempted to get his wife to lie for him, and had two prior DWIs.

Therefore, we find that the trial court abused its discretion when it sentenced

Defendant to the maximum without adequate consideration of the circumstances in

the case. Defendant was a first-time felony offender. She admitted that she had taken

various drugs on the day of the accident. She pled guilty, thereby taking some

responsibility for her actions. Testimony established that she had taken steps to try

and fight the addiction. While the trial court correctly determined that Defendant was

15

in need of treatment and that the seriousness of the offense required incarceration, we

find that the circumstances of her case indicate that a lesser sentence would have

served the same purpose. Thus, we find that the maximum sentence of thirty years

in this case is grossly disproportionate to the severity of the crime and is nothing

more than a needless imposition of pain and suffering.

DECREE

We hereby sever Defendant’s misdemeanor sentences on the conviction for the

three counts of vehicular negligent injuring and instruct Defendant that she must file

an application seeking supervisory review thereof with this court within thirty days

of this opinion if she chooses to seek review of the misdemeanor sentences. Finding

that the maximum sentence of thirty years on the conviction for vehicular homicide

is grossly disproportionate to the severity of the crime in this case, we vacate said

sentence and remand the matter to the trial court for resentencing in accordance with

this opinion.

VACATED AND REMANDED.

16

NUMBER 08-1533

COURT OF APPEAL, THIRD CIRCUIT

STATE OF LOUISIANA

STATE OF LOUISIANA

VERSUS

MARYLN A. LEBLANC

AMY, J., dissenting.

I respectfully dissent from the majority’s view that the thirty-year sentence

imposed for vehicular homicide is excessive. As explained by the State in its

presentation of the underlying facts at the plea hearing, toxicology results indicated

that the defendant’s system contained “methadone, meprobamate, hydrocodone,

cocaine, diazepam, and marijuana” at the time of the accident. Thus, not only was the

defendant under the influence of a number of prescription medications that were

arguably available to her, but she was also under the influence of cocaine and

marijuana. The trial court remarked on this combination of substances, noting that

the defendant had a “cocktail of drugs in her system.” Further, quantities of cocaine

and marijuana were found in the defendant’s vehicle at the time she was stopped.

These factors, in my opinion, differentiate the criminal aspect of the defendant’s

behavior from other cases wherein the maximum sentence was found inappropriate

for vehicular homicide defendants with elevated blood alcohol levels. See, e.g., State

v. Morain, 07-1207 (La.App. 3 Cir. 4/2/08), 981 So.2d 66. Also, the trial court found

significance in the defendant’s flight from the scene and the fact that she only stopped

after a police chase onto a highway. The trial court concluded that these

circumstances demonstrated the defendant’s reckless disregard for her life and those

of others. In light of these factors, I find no abuse of the trial court’s discretion in

imposing the maximum period of incarceration.