State of Louisiana v. Joseph Devin Delacerda

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

14-36

STATE OF LOUISIANA

VERSUS

JOSEPH DEVIN DELACERDA

**********
APPEAL FROM THE
TENTH JUDICIAL DISTRICT COURT
PARISH OF NATCHITOCHES, DOCKET NO. C 17316A
HONORABLE ERIC ROGER HARRINGTON, DISTRICT JUDGE
**********

SYLVIA R. COOKS
JUDGE

**********

Court composed of Sylvia R. Cooks, Marc T. Amy, and James David Painter
Judges.

AFFIRMED.

Paula C. Marx
Louisiana Appellate Project
P.O. Box 80006
Lafayette, LA 70598-0006
ATTORNEY FOR DEFENDANT/APPELLANT
Joseph Devin Delacerda

James D. “Buddy” Caldwell, Louisiana Attorney General
Clifford R. Strider, III, Assistant Attorney General
P.O. Box 94005
Baton Rouge, LA 70804
(225) 326-6500
ATTORNEY FOR APPELLEE
State of Louisiana

Cooks, J.

FACTS AND PROCEDURAL HISTORY

On September 26, 2010, at approximately 8:30 a.m., Joseph Devin

Delacerda (Defendant) was driving Miss Lauren Delrie’s (Delrie) Honda Accord in

which she was an occupant. Defendant was traveling at a speed in excess of 70

m.p.h. on rural Highway 490 in Natchitoches Parish when he lost control of the

vehicle and hit a tree. He had a blood alcohol level of 0.13 percent at the time of

the crash. Delrie died at the scene as a result of the injuries she sustained in the

one-car crash. As a result of his severe injuries Defendant had no recollection of

the accident.

Defendant was charged by bill of information on December 7, 2010, with

vehicular homicide, a violation of La.R.S. 14:32.1, and reckless operation of a

vehicle, a violation of La. R.S. 14:99. He entered a plea of not guilty on December

13, 2010. On May 4, 2011, the State dismissed count two of the bill of

information. On May 13, 2011, Defendant filed a motion to appoint a sanity

commission to determine his capacity to proceed. The trial court granted

Defendant’s motion, and on June 20, 2012, Defendant was committed to the

custody of the Louisiana Department of Health and Hospitals, Eastern Louisiana

Mental Health System Forensic Division (D.H.H.) because he lacked the mental

capacity to understand the proceedings against him and assist in his own defense.

On January 7, 2013, a review of Defendant’s capacity to proceed was conducted

and the trial court found Defendant competent to stand trial.

On May 9, 2013, Defendant pled guilty to vehicular homicide. A sentencing

hearing was held on August 9, 2013, and Defendant was sentenced to serve twelve

years at hard labor, with ten years of the sentence to be served without benefit of

probation, parole, or suspension of sentence, and to pay a fine of $3,000.00.

Defendant appeals his sentence asserting three assignments of error: 1) the trial

court erred in imposing a twelve-year sentence because Defendant suffered a

traumatic brain injury in the crash and will never be the same mentally again; 2)

the trial court failed to particularize his sentence; and 3) the trial court erred in

classifying the crime in this case as a crime of violence.

ERRORS PATENT

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

errors patent on the face of the record. After reviewing the record we find there is

an error patent.

The trial court erred in ruling on the State’s Motion to Place Additional

Conditions on Bond while the issue of mental capacity to proceed was pending.

Louisiana Code of Criminal Procedure Article 642 (emphasis added) states:

The defendant’s mental incapacity to proceed may be raised at
any time by the defense, the district attorney, or the court. When the
question of the defendant’s mental incapacity to proceed is raised,
there shall be no further steps in the criminal prosecution, except the
institution of prosecution, until the defendant is found to have the
mental capacity to proceed.

On May 13, 2011, Defendant filed a Motion to Appoint Sanity

Commission/Determine Mental Incapacity to Proceed. Three days later, the court

ordered a mental evaluation and set the matter for a hearing on June 15, 2011. On

that date, defense counsel appeared in court and stated he had spoken with the

prosecutor and the State had no objection to the appointing of a sanity commission.

On June 27, 2011, the court issued a written order appointing a sanity commission.

On August 29, 2011, the State filed a motion requesting an independent mental

examination of the Defendant which was granted by the court on August 30, 2011.

On April 23, 2012, as a result of information obtained during the mental

evaluations of Defendant, the State requested the trial court place conditions on

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Defendant’s bond. A hearing on the matter was held May 25, 2012. The court

removed Defendant’s “release on his own recognizance bail status” and remanded

Defendant to the sheriff’s custody. On June 20, 2012, Defendant was committed to

the D.H.H. On January 7, 2013, Defendant was found to have the capacity to

proceed to trial as a result of the treatments received in the facility.

In State v. Young, 576 So.2d 1048, 1062-63 (La.App. 1 Cir.), writ denied,

584 So.2d 679 (La.1991) (footnote omitted), the first circuit stated the following:

We also note that further proceedings in the prosecution were
conducted in the interim between the appointment of the sanity
commission (March 13) and the ruling that the defendant had the
capacity to proceed to trial (May 3). See La.C.Cr.P. art. 642. On April
4, 1989, the motion to suppress hearing was resumed and one defense
witness testified. Thereafter, the motion to suppress was again
continued. On the same date, the State amended the indictment from
first degree murder to second degree murder, and the trial court fixed
bond. On May 3, before ruling on the defendant’s capacity to proceed
to trial, the trial court issued a ruling denying the defendant’s motion
to suppress and allowed the defendant to be rearraigned on the
amended charge of second degree murder.

While Article 642 permits the institution of prosecution in the
interim between the appointment of a sanity commission and the
ruling thereon, no provision is made for the amendment of an
indictment or bill of information. In any event, assuming it was patent
error to allow the filing of an amended charge, we find such error is
not reversible. The reduction of the charge to second degree murder
clearly benefitted the defendant by eliminating the possibility of a
death sentence upon conviction. Likewise, if patent error occurred
when the trial court fixed bond, the fixing of a bond on a reduced
charge is also favorable to the defendant and cannot be deemed
reversible patent error.

The motion to suppress hearings were held on four different
dates, and the ruling thereon was issued on May 3. Although it was
patent error to resume the motion to suppress hearing on April 4, we
note that only one witness, a defense witness, testified on this date.
We find no reversible error. Furthermore, while the trial court issued a
ruling denying the motion to suppress on May 3, the same date as the
ruling on the defendant’s capacity to proceed, the motion to suppress
ruling came immediately before the capacity to proceed ruling and,
therefore, technically was patent error. However, since the rulings on
the motion to suppress and the defendant’s capacity to proceed were
issued in the same hearing, we find no reversible error.

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Finally, the trial court permitted the defendant to be rearraigned
on the charge of second degree murder on May 3, but it did so
immediately before the ruling on the defendant’s capacity to proceed.
Again, although we find patent error in the rearraignment, we find no
reversible error. The defendant entered a plea of not guilty and did not
object to the rearraignment occurring before the capacity to proceed
ruling. See La.C.Cr.P. art. 841; State v. Beauchamp, 510 So.2d 22, 29
(La.App. 1st Cir.), writ denied, 512 So.2d 1176 (La.1987).

In State v. Francois, 05-1385, pp. 2-3 (La.App. 3 Cir. 4/5/06), 926 So.2d

744, 747, writ denied, 06-1048 (La. 1/12/07), 948 So.2d 138, this court addressed a

similar issue:

All appeals are reviewed for errors patent on the face of the
record. Review of the record revealed two errors patent. The first
error patent involves actions taken between the appointment of a
sanity commission on July 14, 2003, and the trial court’s
determination on December 15, 2003, that Defendant was capable of
proceeding. According to La.Code Crim.P. art. 642, “[w]hen the
question of the defendant’s mental incapacity to proceed is raised,
there shall be no further steps in the criminal prosecution, except the
institution of prosecution, until the defendant is found to have the
mental capacity to proceed.”

A number of “steps” were taken during the pendency of the
commission, including Defendant’s arraignment, where he pled not
guilty; the filing of several motions by Defendant; hearings on some
of the motions filed by Defendant; and the filing of writ applications
with this court which were addressed. The sanity commission panel
members issued their findings that Defendant was capable of
proceeding to trial on September 29, 2003 and October 23, 2003, and
on December 15, 2003, the trial court found Defendant capable of
proceeding to trial.

In State v. Davis, 94-2332 (La.App. 1 Cir. 12/15/95), 666 So.2d
400, writ denied, 96-127 (La.4/19/96), 671 So.2d 925, the court
determined that an arraignment and a pretrial conference being held
during the pendency of a sanity commission were harmless errors
because they occurred before the defendant pled guilty and because
the defendant did not allege that he was prejudiced by the trial court’s
failure to comply with the requirements of Article 642. In State v.
Karam, 02-163 (La.App. 3 Cir. 7/31/02), 834 So.2d 1003, this court
concluded that motion hearings held during the pendency of a sanity
commission were harmless error[s], as the hearings did not prejudice
defendant. The court explained that the purpose of Article 642 is to
insure that no action prejudicial to the defendant is taken while the
sanity commission is pending.

4

Not all of the motions Defendant filed were resolved in his
favor; however, they were pretrial in nature and were not prejudicial
to him. Furthermore, Defendant does not allege that he was
prejudiced by the occurrence of these “steps” during the pendency of
the sanity commission. We find any error was harmless. See State v.
Prudhomme, 99-2029 (La.App. 3 Cir. 6/5/02), 819 So.2d 443, writ
denied, 02-2073 (La.6/27/03), 847 So.2d 1251.

We find that the court’s error in changing Defendant’s bail status and

remanding him to the custody of the sheriff harmless in this case. Defendant does

not allege he was prejudiced by the occurrence of this step prior to the court’s

finding he had the capacity to proceed to trial.

ASSIGNMENTS OF ERROR NOS. 1 & 2

In his first assignment of error, Defendant contends it is a needless

imposition of pain and suffering to impose a twelve-year hard labor sentence on a

twenty-four-year-old defendant who has suffered a traumatic brain injury in the

crash which killed the occupant in the car he was driving. In his second

assignment of error, Defendant contends the trial court failed to particularize the

sentence to him thus violating the guidelines of La.Code Crim.P. art. 894.1.

At the time sentence was imposed defense counsel entered only a general

objection thereto and failed to file a motion to reconsider sentence. In State v.

Barling, 00-1241, 00-1591, pp. 10-11 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035,

1041-42, writ denied, 01-838 (La. 2/1/02), 808 So.3d 331 (emphasis in original),

this court discussed the review of sentences in such cases as follows:

The failure to timely file a written motion to reconsider
sentence or to orally urge any specific ground for reconsideration at
sentencing precludes a defendant from objecting to the sentence
imposed. State v. Moore, 98–1423 (La.App. 3 Cir. 3/3/99); 734 So.2d
706. See also State v. King, 95–344 (La.App. 3 Cir. 10/4/95); 663
So.2d 307, writ denied, 95–2664 (La.3/15/96); 669 So.2d 433.
La.Code Crim.P. art. 881.1 (emphasis added) serves as the basis for
this restriction and provides, in pertinent part:

A. (1) Within thirty days following the imposition
of sentence or within such longer period as the trial court

5

may set at sentence, the state or the defendant may make
or file a motion to reconsider sentence.

(2) The motion shall be oral at the time of
sentencing or in writing thereafter and shall set forth the
specific grounds on which the motion is based.

....

D. Failure to make or file a motion to reconsider
sentence or to include a specific ground upon which a
motion to reconsider sentence may be based, including a
claim of excessiveness, shall preclude the state or the
defendant from raising an objection to the sentence or
from urging any ground not raised in the motion on
appeal or review.

In cases where courts have held that an oral objection alone is
sufficient to preserve the issue for review, the oral objection contained
the basis for the motion, such as excessiveness of sentence. See State
v. Caldwell, 620 So.2d 859 (La.1993); State v. Trahan, 98–1442
(La.App. 4 Cir. 12/1/99); 752 So.2d 921. Therefore, since Defendant’s
oral motion did not set forth any specific grounds to support his claim
of excessive sentences, we are relegated to a bare claim of
excessiveness. State v. Mims, 619 So.2d 1059 (La.1993), after
remand, 626 So.2d 856 (La.App. 2 Cir.1993), writ denied, 93–2933
(La.2/11/94); 634 So.2d 373.

Because defense counsel only entered a general objection in this matter, we are

relegated to a bare claim of excessiveness.

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).

Id. at 1042-43.

6

In deciding whether a sentence is shocking or makes no
meaningful contribution to acceptable penal goals, 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.

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.

Defendant pled guilty to vehicular homicide, an offense punishable by a fine

of not less than $2,000.00 nor more than $15,000.00, and imprisonment with or

without hard labor for not less than five years and not more than thirty years, with

at least three years of the sentence to be imposed without benefit of probation,

parole, or suspension of sentence. La.R.S. 14:32.1(B). Defendant was sentenced

to serve twelve years at hard labor, with ten years of the sentence to be served

without benefit of probation, parole, or suspension of sentence, and to pay a fine of

$3,000.00.

At the sentencing hearing, the State informed the trial court that Defendant

was on probation when he committed the instant offense. Additionally, after he

was arrested for the instant offense, he was released on a recognizance bond, and

“[h]is actions while he was out on bond were sufficient, that this [c]ourt felt it was

necessary that he be incarcerated.” Defense counsel informed the trial court

Defendant had a problematic brain injury with a GAF score of sixty, an IQ of

approximately 75, and dementia secondary to a traumatic brain injury that is

chronic.1 Defense counsel also stated Defendant suffered from chronic pain and

further noted Defendant’s condition did improve while he was at the D.H.H.

facility, East Feliciana. Additionally, Defense counsel pointed out to the trial court

that Defendant took responsibility for his actions.

1
GAF stands for global assessment function. There was no explanation of the
Defendant’s GAF score at the sentencing hearing.
7

After recessing to consider the matter, the trial court articulated in detail its

rationale for the sentence imposed:

The relevant history of the case is as follows. Mr. Delacerda is
twenty-four (24) years of age. He was born to parents who were not
married. And he and his biological father have never had a
relationship. His mother married Jonathan Delacerda, when Joseph
was two (2) to three (3) years old, and Mr. Delacerda adopted Joseph.
His mother and Jonathan were subsequently divorced. On his first day
of school in the ninth grade at Winnfield High School, Joseph was
suspended for possessing brass knuckles. He was placed in the youth
challenge program, completed the program, and earned his GED. On
July 14, 2008, when he was 19, Joseph was arrested on a felony grade
criminal damage to property charge. He pled guilty on March 6, 2009,
received a deferred sentence, and was placed on two (2) years
supervised probation. On September 26, 2010, when he was 21, he
was driving a vehicle with Lauren Delrie as a passenger. The vehicle
left the highway, struck a tree, and Lauren was killed. Tests revealed
that Joseph had a blood-alcohol concentration of .13 g. Tests also
revealed that Lauren had a blood alcohol concentration of .11 g.
Therefore both were legally intoxicated. Neither Joseph nor Lauren
was wearing a seatbelt at the time of the accident. The State Police
determined that the vehicle was traveling a little over 73 mph,
immediately prior to leaving the rural highway. Joseph was severely
injured in the accident, was in a coma for a period of time, and was
hospitalized until December 2, 2010. He was arrested and charged
with vehicular homicide, DWI first offense and reckless operation,
and was released on bond. Subsequently the State filed a Bill of
Information formally charging him with Vehicular Homicide and
Reckless Operation. On May 25, 2012 is [sic] bond was revoked after
a hearing in which the Court heard allegations that he had been
consuming alcoholic beverages and was not being supervised by his
family. Subsequently a bond of $250,000 was set, which Joseph was
unable to make, and he has remained in custody. During that time the
charges have been pending, a Motion for a Sanity Commission was
filed. And the Court appointed two psychologists, Dr. George Seiden,
and Dr. Richard Williams to examine Mr. Delacerda and file reports
with the Court. Dr. Seiden interviewed Mr. Delacerda on July 19,
2011. His diagnostic impression was dementia, secondary to traumatic
brain injury, alcohol abuse, and apparent remission, and bipolar
disorder by patient history. He found his medical status, to be post
severe traumatic brain injury. His GAF at that time was 45. He
concluded that Mr. Delacerda did not have the ability to consult with
his attorney with understanding. He did not understand the
proceedings against him. He could not assist in his defense, he said.
Dr. Seiden said that Mr. Delacerda’s lack of capacity to proceed was
caused by his traumatic brain injury from the accident and that at best
he could determine this condition did not exist prior to the date of the
accident. Dr. Williams also interviewed Mr. Delacerda on the same
day. And his findings were essentially the same. As a result of the

8

doctors [sic] evaluations, the State filed a Motion to have Mr.
Delacerda committed to the East Louisiana (sic) Mental Health
Facility in Feliciana. He was admitted to the facility on July 11,
2012[,] and remained there until discharged in December, 2012.
During that time he received treatment in counseling. He cooperated
in that process. Upon discharge, the medical opinion was given by
staff there that he had the mental capacity to proceed, as he then
understood the proceedings against him, and he had the ability to
assist his attorney in his defense. Specifically the written evaluation
of the facility indicated that his insight, judgment, and fund of
knowledge were fair, and that other than moderate cognitive slowing,
comparable to that of someone with mild, mental retardation, he had
no psychiatric symptoms at that time and showed no psychiatric signs.
Mr. Delacerda was placed, and to my knowledge, remains on
Risperidone for stress and anxiety, Devapenton (phonetic) for
neuropathic pain, and Trazadone (phonetic) for sleep. The Court
concludes Dr. Seiden . . . and Williams, and the East Louisiana
Mental Health Facility that as a result of the accident Mr. Delacerda
was left in a mildly mentally retarded state. In determining the
appropriate sentence for Mr. Delacerda, the Court has had the benefit
of the filings in the records, the reports referred to above, the
statements presented today, the bail hearing evidence, a pre-sentence
investigative report, which I shared with counsel, and the well-made
argument of counsel. The crime of vehicular homicide was created by
the Louisiana Legislature. The Legislature also set the minimum and
maximum penalty for the crime. … By its very definition, the crime of
vehicular homicide involves the death of someone. Therefore, in each
vehicular homicide case, the Judge is sentencing a defendant who has
caused someone’s death. It is very understandable that a family that
has lost a loved one feels that the person committing the crime should
get the max, because he took their loved one away from them.
However, as I pointed out, in each case, vehicular homicide, a family
has lost the loved one. In the crime of second degree murder, the
Legislature set the penalty at a life sentence for the convicted person .
. . no choice. Yet, as I just pointed out, the Legislature set a sentencing
range for vehicular homicide of five (5) to thirty (30) years. That
means that a Court cannot sentence a defendant to thirty (30) years,
the maximum for vehicular homicide, just because they caused
someone’s death. As that happens in every vehicular homicide case.
Instead, in providing a sentencing range, the Legislature was directing
the Courts to assess a defendant’s conduct in committing the crime,
whether he had a lengthy criminal history, whether he showed
remorse, and other aggravating and mitigating factors that might be
appropriate. And then determine an appropriate sentence, within the
sentencing range provided by the Legislature. The Higher Courts of
this State, have also reviewed on appeal the sentences imposed by
Court’s [sic] of persons convicted of vehicular homicide, and each
sentencing Court has the ability to review what sort of sentences the
Higher Courts have previously approved and disapproved. Yet a
sentence must be individualized to the particular offender and to the
particular offense committed. The sentencing guidelines are set forth

9

in Code of Criminal Procedure Article 894.1, and I will consider them
now. Paragraph A says that a Court should impose a prison sentence if
any of the following exist. In the case of vehicular homicide, a prison
sentence is mandatory, but I think it’s helpful to review these factors
anyway, because their language is applicable here, and I have taken
them into consideration in determining the length of the sentence to be
imposed. One, there is an undue risk that during the period of a
suspended sentence or probation, the defendant will commit another
crime. I am of the opinion that this is true of the defendant. While on
felony probation, he committed this crime. While out on bond on this
crime, he continued to consume alcoholic beverages and conduct
himself inappropriately to the extent that I revoked his bail in the
interest of public safety. The defendant is in need of correctional
treatment or a custodial environment that can be provided most
effectively by his commitment to an institution. Based on the bond
hearing, and even after today’s hearing, I have no confidence that the
defendant is prepared to live a stable functional life on his own at this
point. And I see in sufficient [sic] family support to ensure that would
happen. He has frankly done better since he was incarcerated and he
continues to need correctional treatment and a custodial environment,
in my opinion. Additionally, number three, a lesser sentence than I
impose today would deprecate the seriousness of the defendant’s
crime. The sentence, I do impose in my opinion, recognize [sic] the
seriousness of this crime. Other aggravating factors that I find are as
follows. He created a risk of death or great bodily harm, not just to . . .
to not just himself and Lauren but to others in oncoming vehicles, by
operating a vehicle while intoxicated at a high rate of speed on a rural
highway. Significantly, while Lauren may have also been intoxicated,
she did not choose to get behind the wheel that morning, he did. This
was not his first felony offense. He was already on probation and does
not appear to have been rehabilitating himself, at least as far as
committing this crime indicates. His conduct while out on bail did not
indicate that he was trying to change his life. He has caused
immeasurable grief, distress, and suffering to Lauren [sic] family.
When I practiced law, I represented parents who lost two children in
tragic incidents. I do not believe there is a greater grief for a parent
than the loss of a child. We all want to believe in the normal order of
life and pray that we will go before our children do. Factors that I
have considered in mitigation are as follows. While on bail, his
girlfriend became pregnant with his child, which has now been born.
That child and her mother will be without him during his period of
incarceration. Joseph Delacerda has been punished by his own
actions. It cannot in any way compare with Lauren’s [sic] death. But
as a result of his actions, and whatever he was before the accident, he
is now a mentally retarded man and he will be for the rest of his life.
He did express remorse is his statement in the pre-sentence report. I
do not fine [sic] that home incarceration is appropriate for Mr.
Delacerda, even if you would otherwise be eligible. His prior history,
while on bail, does not give me comfort that he would be compliant.
Additionally, for the reasons I have already expressed, a more
custodial environment is appropriate. And regardless of Mr.

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Delacerda’s physical and mental condition today . . . which I have
taken into consideration in determining the length of sentence, there is
[sic] still consequences to his actions.

Defendant asserts he was not competent at the time his bond was revoked,

and he was incapable of trying to change his life at that point. He also notes his

competency was restored after a long hospital stay, he better understands his

limitations now, and he does not have a drivers’ license and probably never will.

Defendant further claims the trial court’s reference to its prior representation of

parents who lost two children in tragic accidents was a clear expression of the trial

court’s personal feelings, and such cannot justify a sentence imposed in a court of

law. He cites the trial court’s statement that it had no confidence that he was

prepared to live a stable, functional life on his own at that point. Defendant asserts

the lines between the necessity of custodial incarceration and the need for

assistance for dementia are blurred in this case. He asserts that alternatives such as

group homes and day programs may be available and should have been considered

by the trial court. He argues that twelve years incarceration for a man suffering

from intellectual incapacity makes no measurable contribution to acceptable penal

goals and is, therefore, nothing more than the needless imposition of pain and

suffering.

In State v. Franco, 08-1071, pp. 4-5 (La.App. 3 Cir. 4/1/09), 8 So.3d 790,

793, writ denied, 09-1439 (La. 2/12/10), 27 So.3d 843, this court discussed the

nature of the offense of vehicular homicide as follows:

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
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

11

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 twenty-one-year-old

Lauren Delrie which, as aptly state by the trial court: “caused immeasurable grief,

distress, and suffering to Lauren[’s] (sic) family.”

In State v. Blackwell, 13-316 (La.App. 3 Cir. 10/9/13) (unpublished

opinion), writ denied, 13-2600 (4/11/14), __ So.3d__, the defendant, a nineteen-

year-old chaplin’s assistant in the United States Army, and father of one child, was

convicted of vehicular homicide. The defendant was driving ninety-nine miles per

hour on Highway 171 south, failed to apply his breaks, and hit a pedestrian,

causing the pedestrian’s death. At the time of the accident, the defendant’s blood

alcohol level was 0.111. He pled guilty to vehicular homicide and was sentenced

to serve ten years at hard labor. This court affirmed the first offender’s sentence,

finding it was not excessive.

In State v. Gumto, 10-876 (La.App. 4 Cir. 4/13/11) (unpublished opinion),

writ denied, 11-998 (La. 11/18/11), 75 So.3d 449, the defendant was convicted of

vehicular homicide. While riding his motorcycle, the defendant turned to speak to

his passenger, with whom he was arguing, and struck a concrete curb. The

passenger was thrown from the motorcycle and died due to extensive brain

damage. His blood alcohol level was 0.923. The fourth circuit affirmed the

defendant’s thirteen-year sentence, of which ten years was to be served without

benefit of probation, parole, or suspension of sentence. In reaching its conclusion,

the fourth circuit cited the following cases:

Similar sentences have been upheld on appeal. In State v.
Rodrigue, 2000–1369 (La.App. 4 Cir. 6/13/01), 789 So.2d 729, this
court affirmed a fifteen year sentence for vehicular homicide.3 The
Second Circuit affirmed a sentence of fifteen years at hard labor for a
first offender found to have disregarded public safety by speeding.

12

State v. Lanham, 31,791 (La.App. 2 Cir. 3/31/99); 731 So.2d 936. See
also State v. Baker, 31,162 (La.App. 2 Cir. 10/28/98); 720 So.2d 767
(first offender’s fifteen year sentence at hard labor on each of three
counts of vehicular homicide affirmed on appeal). The First Circuit
upheld a ten-year sentence at hard labor for a first offender guilty of
vehicular homicide where the appellant’s actions demonstrated a
reckless disregard for the safety of others. State v. Trahan, 93–1116
(La.App. 1 Cir. 5/20/94), 637 So.2d 694.
_________________________
3
This court affirmed similar sentences in unpublished opinions. A ten year
sentence at hard labor was affirmed in State v. Jackson, unpub., 99–0783
(La.App. 4 Cir. 12/22/99). A fifteen year sentence at hard labor was affirmed in
State v. Nabors, unpub., 96–1427 (La.App. 4 Cir. 6/18/97).

Id. at 8. (This case can be found by using Westlaw citation 2011 WL 9160380.)

In State v. Kotrla, 08-364 (La.App. 3 Cir. 11/5/08), 996 So.2d 1224, the

defendant was convicted of vehicular homicide after he struck another vehicle,

causing the death of the passenger in that vehicle. The defendant was a first-

offender whose blood alcohol level was more than twice the legal limit. He was

sentenced to sixteen years at hard labor, with the first five years to be served

without benefit of parole.2 This court affirmed the defendant’s sentence.

The Defendant in the case at bar was a second offender and received a

sentence that was two years more than Blackwell’s sentence. Blackwell was a first

offender. The fourth circuit discussed sentences for first offenders in its analysis in

Gumto, 10-876; thus we can surmise Gumto was a first offender. Gumto was

sentenced to serve one year more than Defendant in the case at bar. The sentence

received by Kotrla, who was a first offender, was four years more than that

received by Defendant, however, Defendant is required to serve ten years of his

sentence without benefits whereas Kotrla was required to serve five years of his

sentence without benefits. Thus it is clear the sentence received by Defendant in

the case at bar is comparable to those received by first offenders though he is a

second offender.
2
At the time of the commission of the offense, the penalty for vehicular homicide was
imprisonment for two to thirty years.
13

Based on the trial court’s lengthy discussion at the sentencing hearing we

conclude the trial court sufficiently particularized Defendant’s sentence. After

considering the nature of the offense, Defendant’s particular circumstances, and a

comparison of the sentences imposed in other vehicular homicide cases, we find

the trial court did not abuse its discretion when imposing a sentence of twelve

years at hard labor without benefit of probation, parole, or suspension of sentence

in the case at bar. Defendant’s first and second assignments of error lack merit.

ASSIGNMENT OF ERROR NO. 3

In his third assignment of error Defendant contends the trial court erred in

classifying the crime in this case as a crime of violence.

In State v. Oliphant, 12-1176, pp. 1-2 (La. 3/19/13), 113 So.3d 165, 166,

(emphasis added) the Louisiana State Supreme Court discussed the facts of the

case as follows:

While driving his vehicle in a highly intoxicated state,
defendant, Craig Oliphant, struck and killed a pedestrian, Cravis M.
Scott, and subsequently pled guilty to the charge of vehicular
homicide. The District Court ultimately sentenced defendant to
twenty-five years at hard labor, with the first fifteen years without
benefit of probation, parole, or suspension of sentence, and designated
the offense a crime of violence. The appellate court affirmed the
conviction, reversed the portion of the sentence designating vehicular
homicide a crime of violence, vacated the twenty-five-year sentence,
and remanded the matter for resentencing. We granted this writ to
provide guidance to the lower courts regarding whether the offense of
vehicular homicide fits the general definition of a crime of violence
under La.Rev.Stat. § 14:2(B). State v. Oliphant, 12-1176
(La.11/9/12), 100 So.3d 822. For the following reasons, we find the
offense of vehicular homicide is a crime of violence pursuant to
La.Rev.Stat. § 14:2 as the offense involves the use of physical force
and the substantial risk that force will be used against another person
in the commission of the offense as well as the use of a dangerous
weapon. Finding no error in the District Court’s designation, we
reverse the judgment of the Court of Appeal, vacate defendant’s
sentence, and remand this matter to the District Court for
resentencing.

The supreme court then found:

14

No evidence suggests the defendant in the present case
deliberately ran down the victim and his friend as they stood off the
highway by the mailbox of the home occupied by the victim’s mother.
Nevertheless, the evidence does show defendant, with a spectacularly
high blood alcohol content of .247g%, veered out of his lane of travel,
drove along the fog line, and sent both men flying into a ditch upon
impact, killing one man and injuring another. Thus, the evidence
leaves no doubt defendant, as previously noted, had the general
criminal intent necessary to commit vehicular homicide when he
drove his SUV in an extremely intoxicated state and struck the victim
with sufficient force to kill upon impact. Under these circumstances,
we agree with the State that, in the manner of its use by its highly
intoxicated driver, defendant’s vehicle was a multi-ton instrumentality
“likely to produce death or great bodily harm,” and the offense of
vehicular homicide is, therefore, a crime of violence.

The District Court articulated this very rationale at sentencing
when it observed defendant’s actions were “no different from a person
putting a bullet in a gun, pointing that gun at another human being,
pulling the trigger, and killing that person. A gun is a dangerous
weapon and so is a motor vehicle in the hands of an intoxicated
person, especially one who was as intoxicated as [defendant] on the
night of this tragedy.”

Accordingly, we find, under the explicit and plain language of
the relevant statutory provisions, vehicular homicide does qualify as a
crime of violence. Therefore, because the District Court did not err in
its designation, we reverse the ruling of the Court of Appeal to the
contrary.

Having found vehicular homicide is a crime of violence, we
must now address the corresponding sentencing consequences of that
designation. In the present case, the District Court originally
sentenced defendant to twenty-five years without parole eligibility,
but reduced the term of parole ineligibility to fifteen years on
reconsideration. However, because vehicular homicide is a crime of
violence, defendant must serve at least eighty-five percent of his full
term before becoming eligible for early release on parole pursuant to
La.Rev.Stat. § 15:574.4(B)(1), which provides: “Notwithstanding any
other provisions of law to the contrary, a person convicted of a crime
of violence and not otherwise ineligible for parole shall serve at least
eighty-five percent of the sentence imposed before being eligible for
parole.” Thus, by operation of law, defendant must serve at least
twenty-one years and three months of his twenty-five-year sentence
before becoming eligible for early release, not fifteen years as the
District Court ordered on reconsideration.

Therefore, we find it necessary to vacate defendant’s sentence
and remand this matter to the District Court with instructions to
reconsider defendant’s sentence in view of the mandatory provisions
on parole eligibility and early release for crimes of violence.

15

Id. at 173-74(emphasis added)

The issue of whether vehicular homicide is a crime of violence was raised in

Defendant’s presentence memorandum. Therein he alleged the offense should not

be considered a crime of violence because Oliphant is distinguishable from this

case in that it involved a pedestrian struck by a drunk driver. Additionally, he

asserts that at the time he entered his plea he was under the impression that he was

not pleading guilty to a crime of violence, and any sentence he would receive

would be served under normal parole requirements without the necessity that he

serve eighty-five percent of his sentence before becoming eligible for parole. He

further asserted suspension of his sentence was not prohibited under La.Code

Crim.P. art. 893.3

The issue was addressed by the parties at the sentencing hearing. The trial

court noted that, at the time Defendant entered his plea of guilty the parties were

not aware of the decision in Oliphant. Defense counsel argued the case at bar was

distinguishable and that Justice Hughes’ dissent in Oliphant, 113 So.3d 1065,

should be determinative of the issue. The State argued the Oliphant decision

should not be limited to the facts of that case. The trial court found the Oliphant

decision is not limited to the facts of the case and under its holding vehicular

homicide is a crime of violence. Defense counsel objected to the trial court’s

ruling.

Defendant was subsequently called to the witness stand and was questioned

by the trial court. He was given the opportunity to withdraw his plea but he chose

to move forward with sentencing. At the time Defendant was sentenced, the trial

3
At the sentencing hearing, defense counsel noted Defendant was required to serve a
minimum of three years.
16

court stated, “[t]his is a crime of violence which will require you to serve at least

85% of your sentence before you are eligible for early release on parole.”

Defendant argues that a negligent act is not an intentional violent act and

should not be considered a crime of violence. Defendant asserts the facts in

Oliphant are clearly distinguishable from those in the case at bar as Oliphant’s

blood alcohol level was 0.247 when he struck a man standing on the shoulder of

the road in front of his mother’s residence. Defendant also notes Delrie was a

passenger in the vehicle and her blood alcohol level was 0.11. Defendant argues

there was no evidence of any intentional act to support the classification of the

offense as crime of violence.

Prior to its repeal by 2011 La. Acts 186, effective August 15, 2011, La.Code

Crim.P. art. 890.1 required the trial court to designate whether the crime involved

was a crime of violence, which was the case at the time of Oliphant’s conviction.

However, as noted by our state supreme court in Oliphant, 113 So.3d at 169 n.1:

In 2012 La. Acts 160, the Legislature completely rewrote
La.Code Crim. Proc. art. 890.1 to provide a trial court with the
authority to depart from a mandatory minimum term of imprisonment
and/or to restore eligibility for parole, probation, or suspension of
sentence otherwise denied by law under certain specified conditions in
which the State, defendant, and the court agree to that result. As
amended, however, La.Code Crim. Proc. art. 890.1(D) expressly
excludes crimes of violence and sex offenses . . . .

The trial court was not required to designate the offense at issue a crime of

violence. The trial court told Defendant the designation of the offense as a crime

of violence would require him to serve at least eighty-five percent of his sentence

before he was eligible for early release on parole. Additionally, we note that

Defendant does not assert nor demonstrate any prejudice.

For the reasons as stated above, we affirm Defendant’s sentence.

AFFIRMED.

17