State of Louisiana v. Randall J. Morain

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

08-1546

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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ELIZABETH A. PICKETT
JUDGE

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

AFFIRMED.

James C. Downs
District Attorney - 9th JDC
Michael W. Shannon
Assistant District Attorney
701 Murray Street
Alexandria, LA 71301
(318) 473-6650
Counsel for State-Appellee:
State of Louisiana

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

PICKETT, Judge.

FACTS

This court provided the following statement of the case in State v. Morain,

07-1207, pp. 1-2 (La.App. 3 Cir. 4/2/08), 981 So.2d 66, 67:

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

The defendant was again sentenced on September 29, 2008, to serve fifteen

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

suspension of sentence, and to pay a fine of two thousand dollars. The defendant’s

counsel made an oral motion for a rehearing, regarding the sentence, which was

denied.

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From this sentence, the defendant timely appeals. His only assignment of error

is that his sentence is excessive, urging that he was not the “worst type of offender”

and that his sentence is cruel, unusual, and excessive.

ERRORS PATENT

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

court for errors patent on the face of the record. After reviewing the record, we find

there no errors patent.

DISCUSSION

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.

In Morain, 981 So.2d at 69-73, this court discussed the law and legal analysis

to be utilized in excessive sentence claims:

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. 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

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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).

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,

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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.

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.

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

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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 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.

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. 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

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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 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 excessive. In Adair, the defendant operated a vehicle

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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, 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.

At the time of the accident, Louisiana Revised Statutes 14:32.1(B), provided:

Whoever commits the crime of vehicular homicide shall be fined
not less than two thousand dollars nor more than fifteen thousand dollars
and shall be imprisoned with or without hard labor for not less than two
years nor more than twenty years. At least one year of the sentence of
imprisonment shall be imposed without benefit of probation, parole, or
suspension of sentence. The court shall require the offender to
participate in a court-approved substance abuse program or a court-
approved driver improvement program, or both. All driver improvement
courses required under this Section shall include instruction on railroad
grade crossing safety.

On remand, the trial judge, in imposing sentence, stated:

Okay. And Mr. Morain had previously filed a Motion to Invoke
Supervisory Authority with the Third Circuit, that was returned, so I will

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file his copy that he sent me into the record as, ah, Defendant-1, so
that that’ll [sic] be in the record too. Okay. On, on, ah, May 17,
2004, seventeen year old Evan Am, Ammons 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. Mr. Himojosa, his wife,
and their two children arrived at the scene. Mr. Himojosa parked their
van in front of Evan's vehicle on the shoulder of the Interstate, and
began assisting Evan in changing the tire. Suddenly and without
warning the vehicle ri [sic], driven by Randall Morain veered into the
shoulder and struck them. Evan died at the scene; Mr. Himojosa
suffered serious injuries. Everything that occurred, occurred in the
presence of Evan’s family. Ah, Mr. Morain’s blood was tested after
the acci [sic], accident, and his blood alcohol content was over the
legal limit. Considering the factors set forth in Article 894.1, I have
considered the mitigating effect of the prior military service; ten and a
half years as a police officer with the Baton Rouge City Police, both as
a uniform officer and then as a detective in the homicide, in homicide
division. I’ve also considered you worked at various other security
positions in law enforcement capacities, in addition I’ve considered the
mitigating factors of the post traumatic stress disorver (phonetic),
disorder, severe depression, continuing substance abuse and other
various health problems you've suffered. Ah, as part of the analysis
I’ve also had to consider the aggravating factors. You continued to
drive in the face of a known alcohol problem. Almost the entire family
was present when you killed Evan, single-handedly destroyed a family
and friend, ah, circle of friends. You’ve destroyed your family. There
are terrible consequences. You choose to accept that risk. Certainly
based upon your life experience you had to know the consequences of
your decision to drink and drive. Ah, I’ve gone through all the other
factors; not all of ‘em apply. I, I never . . . I don’t know where the Third
Circuit got the remorseful behavior; I’ve never witnessed the victim, ah,
the Defendant showing any remorse. I did consider the fact that he has
no history of a prior delinquency or criminal activity. I did consider the,
whether or not the imprisonment of the Defendant would entail an
excessive hardship to him or his dependents. The Legislature has raised
the maximum sentence in this case to thirty years to reflect the
seriousness of the crime. Ah, considered that. Considered the victim
impact statements, testimony of the friends and family, and the
reviewing factors as set forth in the Third Circuit decision. Based upon
that analysis, I sentence you to fifteen years at hard labor, eight years to
be served without benefit of parole, probation or suspension of sentence.
I fine you Two thousand dollars and order you to participate in a Court
approved substance abuse program, and a Court approved driver
improvement program. You have two years to apply for post conviction
relief and thirty days to appeal this sentence. Thank you.

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The defendant, in brief, argues that his sentence is unconstitutionally excessive:

(1) under the facts of the case, the fifteen-year sentence is excessive; and (2) the

imposition of a sentence of eight years without benefit of probation, parole or

suspension of sentence is excessive. In support of his argument, he cites the cases

discussed by the court in Morain, 981 So.2d 66.

The defendant also cites State v Spencer, 00-1335 (La.App. 3 Cir. 2/28/01),

781 So.2d 780 and State v. Manuel, 98-79 (La.App. 3 Cir. 10/28/98), 722 So.2d 31,

writ denied, 01-3031 (La. 9/20/02), 825 So.2d 1165. These cases are cited for the

proposition that a sentence not individualized to the defendant is not in compliance

with La.Code Crim.P. art. 894.1.

The guiding principles are: (1) does the sentence shock the sense of justice or

make no measurable contribution to acceptable penal goals; (2) 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; and

(3) did the trial court abuse its broad sentencing discretion, not whether another

sentence might have been more appropriate. Barling, 779 So.2d 1035.

In his ruling, the trial judge noted consideration of the increase by ten years of

the maximum sentence, in La.R.S. 14:32.1, from that in place at the time of the

accident. This court in Morain, 981 So.2d 66, noted this same factor as evidence of

the legislature’s intent to convey the serious nature of the offense, noting the severity

of the punishment at the time of the offense and the substantial increase of the

punishment only months after the crime occurred in this case.

Additionally, the trial court specifically found that the defendant had not shown

any remorse for the crime. He stated that he had never observed the defendant show

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any remorse. He did consider the mitigating factors noted by this court in Morain,

981 So.2d 66.

As noted in prior consideration by this court, jurisprudence setting sentences

in similar cases offers widely disparate sentences being assessed for the same crime.

In the instant case, the question of whether the instant sentence is deemed to “shock

the sense of justice or make no measurable contribution to acceptable penal goals,”

must be answered in the negative.

The sentence was structured by the trial judge to fit the facts as determined by

the court. The sentence cannot be deemed to be so “grossly disproportionate to the

severity of the crime” as to be shocking.

The relevant question is whether the trial court abused its broad sentencing

discretion, not whether another sentence might have been more appropriate. As the

trial court “has wide discretion in the imposition of sentence within the statutory

limits,” it cannot be said that the court manifestly abused its discretion.

CONCLUSION

The trial court did not abuse its discretion in imposing the sentence assessed

herein. The sentence is be affirmed.

AFFIRMED.

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