State of Louisiana v. Mark I. Gordon AKA Mark Gordon

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

17-846

STATE OF LOUISIANA

VERSUS

MARK I. GORDON
AKA MARK GORDON

**********

APPEAL FROM THE
SEVENTH JUDICIAL DISTRICT COURT
PARISH OF CONCORDIA, NO. 15-3799
HONORABLE KATHY JOHNSON, DISTRICT JUDGE

**********

MARC T. AMY
JUDGE

**********

Court composed of Marc T. Amy, Shannon J. Gremillion, and Candyce G. Perret,
Judges.

AFFIRMED.

Marty L. White
Terri R. Lacy
Assistant Attorneys General
Post Office Box 94005
Baton Rouge, LA 70804-9005
(225) 326-6200
COUNSEL FOR APPELLEE:
State of Louisiana

Chad M. Ikerd
Louisiana Appellate Project
Post Office Box 2125
Lafayette, LA 70502
(225) 806-2930
COUNSEL FOR DEFENDANT/APPELLANT:
Mark I. Gordon

AMY, Judge.

The defendant was charged with three counts of vehicular homicide and one

count of first degree vehicular negligent injuring. The defendant entered a guilty

plea to three counts of vehicular homicide, and the State dismissed the negligent

injuring charge. The trial court sentenced the defendant to eighteen years for each

count of vehicular homicide, with the sentences to run consecutively. The

defendant appeals. For the following reasons, we affirm.

Factual and Procedural Background

Trooper Brennon Russell 1 of the Louisiana State Police testified that, on

October 1, 2015, he received a call on his police radio reporting a vehicular

accident on U.S. Highway 84 near Wildsville, Louisiana. He explained that, upon

arriving at the scene, he observed a pickup truck in a ditch and a tractor-trailer,

which he described as a “log truck . . . that was off in the ditch as well with the back

of the log truck laid over.” Trooper Russell stated that three passengers from the

truck were pronounced dead at the scene. Officers determined that the victims were

a father, Richard Stewart, his teenage daughter, Vera, and his teenage son, George.

A fourth passenger from the truck was transported from the scene to receive

medical treatment.

The police report states that the tractor-trailer was traveling at approximately

68 miles per hour when it crossed the centerline and struck the truck. Trooper

Russell testified that, in the course of investigating the accident, he spoke to

witnesses, including several people who told him that they had telephoned 911 to

report the tractor-trailer prior to the accident. In particular, Trooper Russell recalled

1
We note that Trooper Russell’s first name is spelled elsewhere in the record as
“Brennen.” However, we will use the spelling “Brennon” as it is consistent with the transcript.

the statement of one witness, who told him that she had been behind the tractor-

trailer for approximately ten to fifteen minutes before the accident:

[She] stated that she was behind the truck. Said that several vehicles
had actually went around the truck in opposite lanes and also through
the ditch to avoid hitting the truck head-on. She stated that the truck
had been all over the road for quite some time and that she had called
911[.]

Trooper Russell testified that, during his investigation, he located the driver

of the tractor-trailer, whom he identified as Mark Gordon. Trooper Russell

described the conversation that he had with Mr. Gordon:

When I spoke to Mr. Gordon . . . I asked him if he knew what was
going on? He didn’t know what was going on. He said he thought he
just ran off the road. He was sweating and he couldn’t concentrate on
talking to me. He was talking about several other things and he was
running around . . . he couldn’t sit still. He couldn’t talk to me
straight . . . he didn’t even realize what had happened is what I should
say.

In the police report, Trooper Russell details that “[Mr.] Gordon admitted to using

Methamphetamine the day prior to the crash.” The police report further states that

Master Trooper Linda Vachula transported Mr. Gordon from the accident scene to

the Concordia Parish Sheriff’s Office, where he submitted to a urinalysis. The

sample was given to the Louisiana State Police Crime Laboratory, which issued a

scientific analysis report that states: “Amphetamine and Methamphetamine were

detected in the specimen of urine labeled Mark I. Gordon.”

The State filed a bill of information charging the defendant, Mark Gordon,

with three counts of vehicular homicide, violations of La.R.S. 14:32.1, and one

count of first degree vehicular negligent injuring, a violation of La.R.S. 14:39.2.

The defendant entered a guilty plea to three counts of vehicular homicide pursuant

to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160 (1970), and the State agreed

to dismiss the negligent injuring charge. The plea was considered an “open ended

2

plea,” such that the defendant received no guarantee regarding the length of his

sentences.

Subsequently, a sentencing hearing was held, and the trial court reviewed the

general sentencing guideline factors found in La.Code Crim.P. art. 894.1(A),

stating:

Article 894.1 states when a defendant has been convicted of a felony,
the Court should impose a sentence of imprisonment, if any of the
following occurs: number one) there’s an undue risk that during the
period of a suspended sentence or probation the defendant will commit
another crime. On that one I’m not sure that Mr. Gordon would
commit another crime. I believe he probably would seek treatment and
not use drugs after this particular offense. Number two) the defendant
is in need of correctional treatment or custodial environment that can
be provided most effectively by his commitment to an institution.
Now, my answer to that is, yes. I believe he should be committed to an
institution, because, he’s in need of correctional treatment. And
number three) a lesser sentence would deprecate the seriousness of the
defendant’s crime. The answer to that is, yes. To release Mr. Gordon
on probation would indeed not be the proper thing to do. There have
been three deaths that resulted from his action.

Next, the trial court discussed the general sentencing guideline factors found

in La.Code Crim.P. art. 894.1(B). Although the guideline factors do not control

the trial court’s discretion, they “shall be accorded weight in its determination of

suspension of sentence or probation[.]” In reviewing the factors, the trial court

stated:

Number one) the defendant’s conduct during the commission of the
offense manifested deliberate cruelty to the victim. No. I don’t think
there was any deliberate cruelty in this particular instance. Number
two) the offender knew or should have known that the victim of the
offense was particularly vulnerable or incapable of resistance due to
extreme youth, advanced age, disability or ill health. My answer to
that is no. That was not the type of crime that was committed. It was
not a crime committed against the person. Number three) the offender
offered or has been offered or has given or received anything of value
for the commission of the offense. Once again, the answer to that is
no. Number four) the offender used his or her position or status to
facilitate the commission of the offense. The answer to that is no.
Number five) the offender knowingly created a risk of death or bodily

3

harm to more than one person. The Court finds the answer to that is
yes. The defendant, he knowingly created a risk of death or great
bodily harm to others when he used drugs and he got behind the wheel
and drove on a highway where other people were going to be traveling.
Drugs effect [sic] your judgment and they also effect [sic] your
reaction time when you’re driving. Number six) the offender used
threats of or actual violence in the commission of the offense. The
answer is no. Number seven) subsequent to the offense, the offender
used or caused others to use violence, force or threats with the intent to
influence the institution conduct or outcome of the criminal
proceedings. The answer to that is no. Number nine) the offense
resulted in a significant permanent injury or significant economic loss
to the victim or his family. The answer to that certainly is yes. His
conduct resulted in the death of three people. In fact, my
understanding they were all from one family and it caused significant
economic loss to the family of each victim. Mr. Richard Stewart, as I
understand was the driver and was the father of the two teenagers that
were killed. And he leaves behind, I noted -- I think with whom he
lived, but was not married. He left behind someone that cared for him
that was depending on him to support them. Number ten) the offender
used a dangerous weapon in the commission of the offense. The
answer is no. Number eleven) the offense involved multiple victims or
incidences [sic] for which separate sentences have not been imposed.
In this instance there are multiple victims and there will be separate
sentences that are to be imposed pursuant to the statute. The statute
reads as follows: in 14:32.1 relative to vehicular homicide.
Subsection D provides that if the offense for which an offender is
convicted approximately [sic] or directly causes the death of two or
more human beings, the offender shall be sentenced separately for each
victim and each sentence shall run consecutively. Number twelve) the
offender was persistently involved in several offenses not already
considered his [sic] criminal history as part of the multiple offender
adjudication. The answer to that is no. Number thirteen) the offender
was a leader or his violation was in concert with one or more other
persons with respect to whom the offender occupied a position of
organizer a supervisory position or any other position of management.
The answer to that is no. Number fourteen) the offense was a major
economic offense. The answer to that is no. It was not motivated by
money. Number fifteen) the offense was a controlled dangerous
offense and the offender obtained substantial income or resources from
ongoing drug activities. The answer to that is no. Mr. Gordon was not
involved in selling of drugs when this occurred. Number sixteen) the
offense was a controlled substance offense in which the offender
involved juveniles and the trafficking or distribution of drugs. The
answer to that is no. Seventeen) the offender committed the offense in
furtherance of a terrorist action. The answer to that is no. Eighteen)
the offender foreseeably endangered human life by discharging a
firearm during the commission of the offense which has as an element
the use, attempted use, or threaten[ed] use of physical force against the

4

person or property of another in which by its very nature involves a
substantial risk that physical force may be used in the course of
committing the offense. The answer to that is no. Number nineteen)
the offender used a firearm or other dangerous weapon while
committing or attempting to commit an offense which has as an
element the use, attempted use, or threaten[ed] use of physical force
against the person or property of another in which by its very nature
involves a substantial risk that physical force may be used in the
course of committing the offense. The answer to number nineteen is
no. Number twenty) the offender used a firearm or other dangerous
weapon while committing or attempting to commit a controlled
dangerous substance offense. The answer to that is no. Any other
aggravating circumstances: I don’t think there were any other
aggravating circumstances involved. Number twenty-two) the
defendant’s criminal conduct neither caused nor threatened serious
harm. The answer to that is yes, because, we’ve got three deaths. . . .
[T]wenty three. The defendant did not contemplate that his criminal
conduct would cause or threaten serious harm. I don’t believe he
actively contemplated, because he was under the influence of drugs at
the time it occurred. But, . . . a normal person that used drugs would
have considered how his conduct would effect [sic] others. Number
twenty-four) the defendant acted under strong provocation. The
answer to that is no. Twenty-five) there were substantial grounds
tending to excuse or justify the defendant’s criminal conduct . . .
though failing to establish defense. The answer to that is no. Number
twenty-six) the victim of the defendant’s criminal conduct inducted
[sic] or facilitated its commission. The answer to that is no. We’ve
got three innocent victims that had no participation in the offense.
Number twenty-seven) the defendant has compensated or will
compensate the victim of his criminal conduct for the damage or injury
he sustained. Well, in this particular instance he cannot compensate.
He cannot bring back three individuals who died. Number twenty-
eight) the defendant has no history of prior delinquency or criminal
activity or has led a law abiding life for a substantial period of time
before the commission of the instant crime. The answer to that is yes,
according to the pre-sentence [report]. Twenty-nine) the defendant’s
criminal conduct was the result of circumstances unlikely to re-occur.
At this point, as I stated previously, I don’t believe Mr. Gordon would
use drugs and drive again. Number thirty) the defendant is particularly
likely to respond affirmatively to probationary treatment. Well, he
probably would. But, because of the seriousness of the offense I think
it would be improper to place Mr. Gordon on probation. Thirty-one)
the imprisonment of the defendant would entail excessive hardship to
himself or his dependents. I know he has a seven year old and a wife
and it will cause some hardship. But, I don’t think it would be
excessive hardship. I believe that his wife could become employed
and she can always call upon her relatives to assist her and the child.
Number thirty-two) the defendant has voluntarily participated in a pre-
trial drug testing program. That’s not applicable in this particular

5

situation. And number thirty-three) and other relevant mitigating
circumstances and the Court’s not informed of any other mitigating
circumstances. The Court has considered the fact that he admitted
using crystal meth; began using at the age of 28; and, admitted that
he’s used it as often as every other day. Subsequent to the accident a
urine sample was taken from the defendant and it indicated that in his
system he had methamphetamines and amphetamines. The witnesses
to the accident stated that the vehicle driven by Mr. Gordon, which
was a Peterbilt truck pulling a tractor carrying logs, had crossed the
center line several times prior to the wreck which caused the death of
Mr. Richard Stewart, Vera Stewart and George Stewart. Two vehicles
had had to leave the lane of traffic, one going into the ditch to avoid
being hit by Mr. Gordon. Once again, one witness stated that Mr.
Gordon’s vehicle had gone into the other lane of traffic for on and off
for about 15 minutes. Law enforcement had been called to come stop
Mr. Gordon, but unfortunately, they did not make it to him to stop him
before this accident. We’ve got two teenagers in the back of the
Dodge truck that were ejected and killed. A 17 year old. Vera was 17.
George was 15. They essentially are innocent victims. They did
nothing wrong that resulted in their death. Richard Stewart, the driver,
was 49 years old. Once again, the court’s informed that all three of the
victims were from the same family. So, Mr. Gordon, essentially,
wiped out almost the entire family. But for using methamphetamine,
which impaired the defendant’s mood, his judgment, his ability to
respond while driving, the Stewart family would still be here. When
someone uses drugs and then gets behind the wheel of a vehicle and
operates it, he knowingly creates a risk of death and great bodily harm
to the members of the public who are driving or riding in vehicles.
This offense was directly caused by defendant’s criminal conduct. He
cannot right the wrong that’s been committed. He cannot pay
restitution, because, restitution money will be inadequate.

Ultimately, the trial court sentenced the defendant to eighteen years at hard

labor, three years of which is to be served without benefit of probation, parole, or

suspension of sentence, on each count of vehicular homicide. The trial court

ordered that the sentences be served consecutively. The defendant filed a motion to

reconsider the sentences, and the trial court denied the motion. The defendant now

appeals, asserting the following assignment of error: “Mark Gordon’s three

consecutive eighteen-year sentences for vehicular homicide are excessive.”

6

Discussion

Errors Patent

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

errors patent. An error patent is one which is “discoverable by a mere inspection of

the pleadings and proceedings and without inspection of the evidence.” La.Code

Crim.P. art. 920(2). Upon review, we find that there is an error patent regarding the

sentences imposed. Louisiana Revised Statutes 14:32.1(B) provides, in pertinent

part:

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. . . . The court shall
require the offender to participate in a court-approved substance abuse
program[.]

On each of the sentences, the trial court failed to impose the fine and the

court-approved substance abuse program as required by La.R.S. 14:32.1. Thus, the

sentences are illegally lenient. However, the parties have not raised the issue of the

sentences being illegally lenient. See State v. Celestine, 11-1403 (La.App. 3 Cir.

5/30/12), 91 So.3d 573; State v. Jacobs, 08-1068 (La.App. 3 Cir. 3/4/09), 6 So.3d

315, writ denied, 09-755 (La. 12/18/09), 23 So.3d 931. Accordingly, we turn to

consideration of the defendant’s assigned error.

Excessive Sentences

As discussed above, the defendant pled guilty to three counts of vehicular

homicide, in violation of La.R.S. 14:32.1, and was sentenced to eighteen years at

hard labor, three years of which is to be served without benefit of probation, parole,

or suspension of sentence, on each count, with the sentences to run consecutively.

7

In his only assignment of error, the defendant contends that his three consecutive

eighteen-year sentences for vehicular homicide are excessive. In briefing to this

court, the defendant argues that his sentences are excessive because he had never

been in any type of criminal trouble prior to the accident; had no driving violations

that showed a history of reckless driving; cooperated with the police officers at the

scene of the accident; expressed remorse to the victims’ family; and spared the

victims’ family from having to put forth arguments regarding causation and

intoxication. The defendant contends that he does not need to be incarcerated to

ensure the public’s safety and asserts: “[T]he trial court made clear its hard labor

sentence was based purely on the impact of this accident. The court did not factor

in the safety to the community going forward despite stating [Mr. Gordon] was

likely a good candidate for probation, but for ‘the seriousness of the offense.’”

Regarding excessive sentence claims, a panel of this court has stated:

A sentence may be excessive, even if it falls within the statutory
guidelines, “if the punishment is so grossly disproportionate to the
severity of the crime that it shocks the sense of justice and serves no
purpose other than to inflict pain and suffering.” State v. Oliphant,
48,998 (La.App. 2 Cir. 4/9/14), 137 So.3d 142, 144. In State v.
Thomas, 08-1358 (La.App. 3 Cir. 5/6/09), 18 So.3d 127, 130, this
Court stated the standard of review for an excessiveness claim:

The trial judge is given a wide discretion in the imposition
of sentences within the statutory limits, and the sentence
imposed by him should not be set aside as excessive in the
absence of a manifest abuse of discretion. A trial judge is
in the best position to consider the aggravating and
mitigating circumstances of a particular case, and
therefore, is given broad discretion in sentencing. On
review, an appellate court does not determine whether
another sentence may have been more appropriate, but
whether the trial court abused its discretion.

In reviewing the trial judge’s sentencing decision there are three
factors to be considered: (1) the nature of the crime; (2) the nature
and background of the offender; and (3) the sentence imposed for
similar crimes by the same court and other courts. State v. Morris, 10-

8

1278 (La.App. 3 Cir. 5/4/11), 63 So.3d 389, 391. Although comparison
with other cases is an element of sentence review, “the focus of
sentence review remains on the character and propensities of the
offender and the circumstances of the offense.” State v. LeBlanc, 09-
1355 (La. 7/6/10), 41 So.3d 1168, 1173.

State v. Bennett, 16-432, pp. 4-5 (La.App. 3 Cir. 12/7/16), 208 So.3d 898, 901.

Nature of the Crime

We begin by considering the nature of the crime. The sentencing range for

vehicular homicide is found in La.R.S. 14:32.1, which provides, in pertinent part:

“Whoever commits the crime of vehicular homicide . . . 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.” Concerning the nature of the offense,

a panel of this court has stated:

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
sentence was increased from one year to three years, further
evidencing the legislature’s intent to convey the seriousness of this
offense.

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. The legislature amended La.R.S.

14:32.1 again in 2014 to add subsection (D), which provides, in pertinent part:

Notwithstanding the provisions of Code of Criminal Procedure
Article 883, if the offense for which the offender was convicted
pursuant to the provisions of this Section proximately or directly
causes the death of two or more human beings, the offender shall be
sentenced separately for each victim, and such sentences shall run
consecutively.

9

In this case, the offense resulted in the deaths of a forty-nine-year-old man,

his seventeen-year-old daughter, and his fifteen-year-old son. As the trial court

observed, “all three of the victims were from the same family. So, [the defendant]

essentially, wiped out almost the entire family. But for using methamphetamines,

which impaired the defendant’s mood, his judgment, his ability to respond while

driving, the . . . family would still be here.”

Nature and Background of the Offender

Next, we consider the nature and background of the offender. At the

sentencing hearing, the trial court described the defendant as follows:

Mr. Gordon has no juvenile record nor no adult record prior to this
particular wreck. So up to that day he was a law abiding citizen. . . .
Mark Isiah Gordon was born July 13, 1987 . . . . He . . . completed the
8th grade before dropping out in his 9th grade year. . . . Mr. Gordon
dropped out of the school system to go to work and advised much of
his life has been oil field employment. However, at the time of the
incident [sic] offense, he was employed driving a log truck due to lack
of work suffered by many in the oil field at that time. He married . . .
on June 6, 2009 and this marriage has produced one child, a son, who
is now seven years of age. Mr. Gordon began experimenting with
marijuana use around 16 years of age and started only using it
occasionally. He denied marijuana use ever being a type of problem
with him and used very little during these years. Mr. Gordon began
using methamphetamine at the age of 28 and admitted he’s used it as
often as every other day. He has never received any type of inpatient
or outpatient treatment for this use.

Sentences Imposed for Similar Crimes

Last, we consider sentences imposed for similar crimes. In Bennett, 208

So.3d 898, the defendant pled no contest to one count of vehicular homicide and

was sentenced to twenty years at hard labor, with eight years suspended and five

years of supervised probation. At the time of the offense, he had oxycodone,

amphetamine, and methamphetamine in his system. The defendant alleged that his

sentence was excessive because he was not among the most egregious and

10

blameworthy offenders; he took accountability for his actions on the day of the

accident; he cooperated with law enforcement; and he exhibited a sense of remorse.

The trial court found that a previous drug possession charge and prior drug use were

aggravating factors; that the defendant’s continual drug use created an undue risk

that he might commit another crime during a period of suspended sentence; that a

lesser offense would deprecate the seriousness of the offense; and that the

defendant’s drug use created a risk of great bodily harm or death to more than one

person. After comparing the defendant’s sentences to similar cases, a panel of this

court affirmed the defendant’s sentence and concluded that the defendant failed to

show that the trial court abused its discretion.

In State v. Matt, 11-1539 (La.App. 3 Cir. 6/6/12), 91 So.3d 1252, the

defendant was convicted of one count of vehicular homicide and sentenced to

twenty years at hard labor, the first ten years to be served without benefit of

probation, parole, or suspension of sentence. A panel of this court concluded that

the sentence was not an abuse of the trial court’s discretion.

In State v. Ellis, 10-1019 (La.App. 5 Cir. 5/24/11), 67 So.3d 623, writ denied,

12-1055 (La. 9/28/12), 98 So.3d 830, the defendant was convicted of two counts of

vehicular homicide and sentenced to twenty-five years at hard labor on each count,

to run concurrently. 2 At the time of the offense, the offender was under the

influence of marijuana. The fifth circuit affirmed the sentences even though the

defendant was a first felony offender.

2
We note that at the time Ellis was decided, La.R.S. 14:32.1 did not yet contain the
requirement in subsection (D) that “if the offense . . . directly causes the death of two or more
human beings, the offender shall be sentenced separately for each victim, and such sentences
shall run consecutively.”

11

Considering the nature of the crime, the nature and background of the

defendant, sentences imposed for similar crimes, and the trial court’s evaluation of

the factors set forth in La.Code Crim.P. art. 894.1, we conclude that the defendant

has failed to demonstrate that his sentences are unconstitutionally excessive.

Furthermore, we note that La.R.S. 14:32.1(D) requires that the defendant’s

sentences be served consecutively.

DECREE

For the foregoing reasons, the sentence of the defendant, Mark I. Gordon, of

eighteen years at hard labor, three years of which is to be served without benefit of

probation, parole, or suspension of sentence, on each of three counts of vehicular

homicide, to be served consecutively, is affirmed.

AFFIRMED.

12