State of Louisiana v. Toby Wayne Matt

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

11-1539

STATE OF LOUISIANA

VERSUS

TOBY WAYNE MATT

************

APPEAL FROM THE
THIRTY-EIGHTH JUDICIAL DISTRICT COURT
PARISH OF CAMERON, NO. 138702
HONORABLE PENELOPE RICHARD, DISTRICT JUDGE

************

J. DAVID PAINTER
JUDGE

************

Court composed of Sylvia R. Cooks, J. David Painter, and James T.
Genovese, Judges.

CONVICTION AFFIRMED;
SENTENCE AFFIRMED AS AMENDED

Beth Fontenot
Louisiana Appellate Project
P.O. Box 3183
Lake Charles, LA 70602
Counsel for Defendant-Appellant:
Toby Wayne Matt

Toby Wayne Matt
Doc. #326482
158 Treatment Plant Rd.
Tallulah, LA 71282
Pro Se

Jennifer A. Jones
Assistant District Attorney
P.O. Box 1550
Cameron, LA 70631
Counsel for Appellee:
State of Louisiana

PAINTER, Judge

Defendant, Toby Wayne Matt, appeals his conviction for vehicular

homicide and the sentence imposed in connection therewith. For the

following reasons, this court affirms the conviction, amends the sentence,

and remands the matter with instructions.

FACTS

On January 13, 2009, while driving from his residence in the

Klondike community of Cameron Parish toward Lake Arthur, Louisiana,

Defendant struck and killed the victim, Kasie Hicks, who had previously

been a guest at his house. On June 13, 2011 and again on July 20, 2011,

Defendant pled guilty to one count of vehicular homicide, a violation of

La.R.S. 14:32.1. He was sentenced on July 28, 2011, to twenty years at hard

labor, the first ten years to be served without benefit of probation, parole, or

suspension of sentence. The court further levied a fine of $7,500.00 and

ordered that, in lieu of payment, Defendant could serve an additional two

years at hard labor. Defendant moved for reconsideration of his sentence

orally and in writing. The motion was denied. Defendant appeals.

DISCUSSION

Defense counsel asks the court to vacate the sentence imposed and

remand for resentencing. Defendant, in pro se assignments of error, prays

that this court modify his conviction from vehicular homicide to negligent

homicide and reduce his sentence to five years with credit for time served.

Default Time

Appellate counsel contends that the trial court erred in imposing

default time on an indigent defendant, in imposing default time beyond the

1

one-year maximum term allowed by La.Code Crim.P. art. 884, and in

imposing the default time at hard labor.

The trial court imposed “a fine of $7,500, plus the court costs, or in

lieu thereof, you shall serve an additional two years with the Department of

Corrections.” Although the trial court does not refer to the jail time as

default time, this court interprets the jail time as such. The subject of

imposing default time upon an indigent defendant was discussed in State v.

Seal, 581 So.2d 735, 736-37 (La.App. 1 Cir. 1991):

Because defendant was represented by the Public
Defender‟s Office, his status as an indigent has been
established. State v. Williams, 288 So.2d 319, 321 (La.1974).
La.C.Cr.P. art. 884 requires a trial court to include a default
term of imprisonment for a specified period not to exceed one
year if the sentence imposed includes a fine or costs.
Nevertheless, in the case of an indigent defendant, it is
impermissible to impose a prison term in lieu of payment of a
fine or costs if that would result in the defendant serving a
longer term than the statutory maximum for the offense. State v.
Counterman, 515 So.2d 533, 537 (La.App. 1st Cir.1987) (citing
Williams v. Illinois, 399 U.S. 235, 243, 90 S.Ct. 2018, 2023, 26
L.Ed.2d 586 (1970)). In State v. Bohanna, 491 So.2d 756, 759
(La.App. 1st Cir.1986), we recognized that the Louisiana
Supreme Court has taken this rule one step further, so that an
indigent defendant may never be subjected to confinement in
lieu of payment of a fine or costs, even if the additional default
sentence does not approach the maximum sentence which the
court could have imposed. We based this on our review of the
supreme court‟s granting of writs in two cases: State v. Garrett,
480 So.2d 412 (La.App. 4th Cir.1985), writ granted, 484 So.2d
662 (La.1986) (sentence amended), and State v. Williams, 480
So.2d 432 (La.App. 4th Cir.1985), writ granted, 484 So.2d 662
(La.1986) (sentence amended).

Thus, we find merit in defendant‟s claim that the trial
court‟s imposition of the default term of imprisonment in the
instant case was error. We amend the sentence to delete that
portion which imposes one year in the parish jail in default of
payment of the fine and court costs. See La.C.Cr.P. art. 882(A);
Garrett, 484 So.2d 662.

Since Seal, the supreme court has ordered the deletion of default time

from sentences imposed upon indigent defendants. State v. Zabaleta, 96-
2

2449 (La. 3/7/97), 689 So.2d 1369; State v. Roebuck, 94-1127 (La. 6/30/95),

657 So.2d 1009; and State ex rel. Armstead v. State, Fourth Circuit Court of

Appeals, Criminal District Court, Section F, 589 So.2d 1050 (La.1991).

Defense counsel contends that Defendant‟s status as an indigent

defendant is supported by his representation by the Louisiana Appellate

Project on appeal. The State points out that Defendant was represented at

trial by retained counsel, and it notes that he posted a substantial bond to

secure his release pending trial. Further, it notes that in the P.S.I., Defendant

reported a monthly salary in an amount which would indicate that he was not

indigent at the time of sentencing. Thus, the State contends that the

imposition of default time was correct at the time of sentencing, but it

concedes that Defendant later acquired the status of being indigent. The

State acknowledges that the default time should be vacated in light of this

court‟s holding in State v. Newberry, 560 So.2d 121 (La.App. 3 Cir. 1990)

that the imposition of default time on a defendant who becomes indigent

after sentencing is improper.1 In the present case, the only indication of

Defendant‟s current financial status is in his affidavit requesting court

appointed counsel for appeal. In that application, he claims his only asset is a

checking account with a balance of $100. While the State questions the

veracity of this statement, it acknowledges that there is nothing in the record

1
In State v. Williams, 562 So.2d 965, 969 (La.App. 3 Cir. 1990), decided after
Newberry, this court held:

Recently, in State v. Newberry, 560 So.2d 121 (La.App. 3rd
Cir.1990), we reluctantly deleted such a default provision, where
the defendant was represented by retained counsel at trial and at
sentencing, but on appeal he was represented by appointed
counsel. We believed that result was mandated by the Supreme
Court‟s actions in Pinkney and Garrett, supra. In the instant case,
although the defendant is now represented by appointed counsel on
appeal, there is evidence in the record that the defendant owns
immovable property in Breaux Bridge, La. We find the record does
not support defendant‟s claim of indigency.
3

to disprove it. Accordingly, the State concedes that the default time should

be vacated by this court.

Therefore, we find the “in lieu of” (default) jail time imposed in the

present case must be deleted. The trial court is instructed to make an entry in

the minutes reflecting this amendment.

Excessive Sentence

Defense counsel argues that the trial court imposed an

unconstitutionally excessive sentence because it was under the mistaken

belief that no part of the sentence could be probated or suspended even

though Defendant would have responded positively to probationary

treatment, because it believed that Defendant had not shown remorse, and

without considering certain mitigating factors.

This court uses the following standard in reviewing excessive

sentence claims:

[Louisiana Constitution Article 1], § 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).

4

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.

To decide whether a sentence shocks the sense of justice or
makes no meaningful contribution to acceptable penal goals,
this court has held:

[An] 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, 03-562 (La. 5/30/03), 845 So.2d 1061.

The penalty for vehicular homicide is provided by La.R.S. 14:32.1(B):

Whoever commits the crime of vehicular homicide shall
be fined not less than two thousand dollars nor more than
fifteen thousand dollars and shall be imprisoned with or without
hard labor for not less than five years nor more than thirty
years. At least three years of the sentence of imprisonment shall
be imposed without benefit of probation, parole, or suspension
of sentence. If the operator‟s blood alcohol concentration is
0.15 percent or more by weight based upon grams of alcohol
per one hundred cubic centimeters of blood, then at least five
years of the sentence of imprisonment shall be imposed without
benefit of probation, parole, or suspension of sentence. If the
offender was previously convicted of a violation of R.S. 14:98,
then at least five years 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 and may require the
offender to participate in a court-approved driver improvement
program. All driver improvement courses required under this
5

Section shall include instruction on railroad grade crossing
safety.

The sentencing transcript shows that the trial court was aware of the

sentencing range available for this offense and adequately reviewed

aggravating and mitigating factors. Further, the record shows that the trial

court did not conclude that Defendant expressed no remorse, but rather that

the trial court saw none. We find that the sentence imposed was not an abuse

of the trial court‟s discretion.

Brady Violation

To summarize Defendant‟s arguments on this assignment of error, he

is asserting that the prosecutor violated Brady v. Maryland, 373 U.S. 83, 83

S.Ct. 1194 (1963) because she failed to call certain witnesses to testify and

introduce certain evidence at Defendant‟s guilty plea and sentencing

hearings. Defendant does not allege that this evidence or these witnesses

were concealed from the defense after Defendant requested the production

thereof.

The supreme court has recently discussed the application of Brady:

In Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10
L.Ed.2d 215 (1963), the United States Supreme Court held that
the suppression by the prosecution of evidence favorable to the
accused, after receiving a request for it, violates a defendant‟s
due process rights, where the evidence is material either to guilt
or punishment, without regard to the good or bad faith of the
prosecution. Id., 373 U.S. at 87, 83 S.Ct. at 1196-97. For
purposes of Brady’s due process rule, a reviewing court
determining materiality must ascertain “not whether the
defendant would more likely than not have received a different
verdict with the evidence, but whether in its absence he
received a fair trial, understood as a trial resulting in a verdict
worthy of confidence.” Kyles v. Whitley, 514 U.S. 419, 434,
115 S.Ct. 1555, 1566, 131 L.Ed.2d 490 (1995).

On the other hand, the State does not violate the Due
Process clause by failing to disclose evidence that is equally
6

available or more so to the defendant. See United States v.
Dula, 989 F.2d 772, 775 n. 9 (5th Cir.1993).

State v. Oldenbaugh, 10-268 (La. 12/6/11), 82 So.3d 215.

Because Defendant does not allege that the prosecution concealed the

existence of this evidence from the defense after the defense moved to be

provided with any exculpatory evidence in the case, Defendant fails to state

a claim upon which relief can be granted.

Ineffective Assistance of Counsel

Defendant alleges that he was denied effective assistance of counsel:

Petitioner/Defendant Toby Matt‟s retained counsel did
not bear such skill and knowledge as well [as] render the trial a
reliable adversarial testing process in accordance with U.S.C.A.
Constitution Amendment 6: further, was completely inept,
acting more like a novice in criminal proceedings, functioning
without his client[„]s duty to loyalty to avoid conflicts of
interest. Defense counsel[„s] performance was reasonably
ineffective.

Defendant complains that his attorney allowed the prosecutor to

proceed at will and interfere with the case. Defendant argues that his

attorney‟s errors caused him to receive an excessive sentence Defendant

asserts that, had his attorney investigated or hired an investigator, Defendant

would have been allowed to plead to negligent homicide and receive a less-

onerous penalty as there would have been more mitigating factors for the

sentencing court to consider. Defendant alleges that it was his trial attorney

who had Defendant‟s guilty plea to negligent homicide vacated. Defendant

contends that he had no knowledge of his attorney‟s actions. In a letter to

this court, Defendant additionally complained that his trial attorney urged

him to enter a guilty plea when his attorney knew that his plea to the

responsive verdict of negligent homicide should never have been vacated.

7

Defendant lists several additional ways in which he considers that he

was denied effective assistance of counsel by his trial attorney‟s inaction:

1. Failing to secure the proper affidavit on John Laseter‟s
testimony that would have contradicted the prosecution‟s case;

A) John Laseter is willing to testify or present
affidavit. He was dismissed by A.D.A. Jones.

2. Failing to secure an affidavit from EMT/Fire Chief Scott
Weekly who would have shown the court Toby Matt Defendant
did not hit and run. He was also dismissed by A.D.A. Jones. A
phone call was mad[e] to him by defendant. A.D.A. Jones
failed to notify the Judge and Jury.

3. Failed to report or cross examine Rachelle Sonnier
testimony with knowledge it was she supplying Kasie Hicks
[the victim] with the drugs.

4. Failed to present Forensic Expert Terry Welks report that
there was no steroids in Kasie Hicks system, when in fact
A.D.A. Jones insisted the defendant gave the victim the
controlled substance.

5. Failed to produce the re-construction findings of the State
Police, Cameron and Calcasieu Police Departments. Which
showed Kasie Hicks was walking in the middle of the road with
dark clothing and not on the side as A.D.A. Jones stated.

6. Failing to show that no chemical testing was procured by the
Cameron or Calcasieu Police Departments Officers and/or no
sobriety test or did they seize the defendant‟s vehicle at that
time pursuant to Louisiana Statute R.S. 32:666, Chemical
Testing.

In support of his assignments of error, Defendant appends to his

appellate brief a transcript of the April 29, 2010 hearing wherein his guilty

plea was vacated because he could not be sentenced under the provision

required by his plea bargain; the transcript is not contained in the appellate

record.

If there is insufficient information in the record to resolve an

ineffective assistance of counsel claim, that claim should be relegated to

post-conviction relief:
8

Claims of ineffective assistance of counsel are more
properly raised in an application for post-conviction relief in the
trial court because it provides the opportunity for a full
evidentiary hearing under La. C. Cr. P. art. 930. When the
record is sufficient, however, allegations of ineffective
assistance of trial counsel may be resolved on direct appeal in
the interest of judicial economy.

State v. Eiskina, 42,492, p. 2 (La.App. 2 Cir. 9/19/07), 965 So.2d 1010, 1013

(citation omitted). Because a review of Defendant‟s allegations of

ineffective assistance of counsel would require the introduction of evidence

in addition to that provided by the appellate record, Defendant‟s ineffective

assistance of counsel arguments are more properly reviewed via application

for post-conviction relief.

Accordingly, the resolution of Defendant‟s second pro se assignment

of error is relegated to post-conviction relief. Defendant may raise these

arguments in an application for post-conviction relief filed in compliance

with La.Code Crim.P. art. 930.8.

Judicial and Prosecutorial Misconduct

Via letters received by this court, Defendant contends that there was

prosecutorial and judicial misconduct. He alleges that the prosecution

maliciously used its power to selectively and/or vindictively prosecute him,

improperly elicited information, improperly expressed her personal opinion

as to his guilt, bolstered the case against Defendant by alluding to her

personal integrity and oath of office, and misled the fact finder about the

facts of the case. Defendant has added complaints that the prosecutor had

unconstitutional motives and acted in bad faith, violated his rights to due

process and equal protection, was motivated by discriminatory intent, failed

to establish a prima facie case, infected the matter with her improper

conduct, expressed her personal opinions with “[illicit] information outside
9

the presence of defendant‟s counsel and the victim‟s family‟” personally

provided the victim‟s family with a copy of the pre-sentence investigation

report at the sentencing hearing, violated his constitutional rights and 18

U.S.C. § 3553, Rule 32(e)(i) by disclosing the PSI contents, and introduced

that PSI into evidence without first allowing Defendant to see if there were

any factual inaccuracies. Further, Defendant complains that the sentencing

court improperly said negative things about Defendant in relation to the case

when sentencing him. Defendant does not assert or provide record references

showing that contemporaneous objections were made to these alleged errors;

therefore, he is barred from bringing these claims on appeal. Additionally,

Defendant‟s complaints are conclusory statements with no supporting

authority or argument and without record references. Therefore, the

complaints are to be considered abandoned under Uniform Rules–Courts of

Appeal, Rule 2–12.4.

CONCLUSION

The sentence imposed on Defendant is amended to remove the default

jail time provision. The trial court is instructed to make an entry in the

minutes reflecting the amendment. In all other respects, the conviction and

sentence are affirmed.

CONVICTION AFFIRMED; SENTENCE AFFIRMED AS AMENDED

10