State of Louisiana v. George McKinney, Jr.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

21-721

STATE OF LOUISIANA

VERSUS

GEORGE MCKINNEY, JR.

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 12652-20
HONORABLE DAVID A. RITCHIE, DISTRICT JUDGE

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JOHN E. CONERY
JUDGE

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Court composed of Sylvia R. Cooks, Chief Judge, Billy H. Ezell, and John E.
Conery, Judges.

CONVICTION AFFIRMED. SENTENCE VACATED AND CASE
REMANDED FOR RESENTENCING.

Walter M. Sanchez
Sanchez Burke, L.L.C.
1200 Ryan Street
Lake Charles, Louisiana 70601
(337) 433-4405
COUNSEL FOR DEFENDANT/APPELLANT:
George Mckinney, Jr.

Stephen C. Dwight
District Attorney
14th Judicial District
David S. Pipes
Assistant District Attorney
14th Judicial District
Post Office Box 3206
Lake Charles, Louisiana 70601
(337) 437-3400
COUNSEL FOR APPELLEE:
State of Louisiana

CONERY, Judge.

FACTS AND PROCEDURAL HISTORY

On October 29, 2020, Defendant, George McKinney, Jr., was arrested by the

Calcasieu Parish Sheriff’s Office and charged with one count of Driving While

Intoxicated, 1st offense in violation of La.R.S. 14:98, one count of Careless

Operation of a Motor Vehicle in violation of La.R.S. 32:58, and one count of

Vehicular Homicide in violation of La.R.S. 14.32.1.

On November 17, 2020, Mr. McKinney was billed with one count of

Vehicular Homicide, with a blood alcohol reading of 0.8 or higher, in violation of

La.R.S.14:32.1. On February 25, 2021, four (4) months from the date of the

incident, Defendant withdrew his previous plea of not guilty and entered a plea of

guilty to the charge.

The State submitted the following factual basis at the guilty plea proceeding:

If brought to trial the State would prove beyond a reasonable doubt
that on or about October 29, 2020[,] deputies with the Calcasieu
Parish Sheriff’s Office were dispatched to a single vehicle crash
involving a pedestrian. Upon arrival they did locate the driver of the
vehicle, that being the defendant, Mr. George McKinney, Jr. Upon
interviewing Mr. McKinney[,] they did see physical signs of
impairment, including an overwhelming odor of alcoholic beverage,
slurring of words, and stopping speaking mid-sentence, as well as red,
bloodshot eyes. They did ask Mr. McKinney to do standardized field
sobriety, which he did and performed poorly. Upon that poor
performance they did arrest him and transport him to Calcasieu Parish
Sheriff’s Office in order to provide a proper breath sample. That
breath sample was given and was given as a .173 BAC.

The victim in this case, Mr. Jason Webb, was transported to the
hospital and subsequently pronounced deceased.

Mr. McKinney’s counsel requested a Pre-Sentence Investigation Report

(PSI), which was ordered by the trial court. However, the PSI was never received

and counsel for Mr. McKinney waived any objection and elected to proceed with

Defendant’s sentencing.

On May 21, 2021, after receiving testimony, and victim impact evidence as

well as Defendant’s statement, the trial court sentenced Defendant to thirty years at

hard labor, but suspended seven years, and placed Defendant on supervised

probation for five years under the supervision of the Department of Corrections.

The trial court imposed the general terms and conditions of probation set forth in

La.Code Crim.P. arts. 895 and 895.1 and several special conditions, including

payment of a $7,500.00 fine, restitution, and one thousand (1,000) hours of

community service directly related to the prevention of impaired driving.

Defendant filed a motion to reconsider sentence, which was denied, in part,

by the trial court at a hearing held August 13, 2021. The trial court clarified that

fifty percent of the community service activities imposed as a condition of

Defendant’s probation could be converted into other court-approved community

service. The trial court emphasized that the main focus of the community service

would remain prevention, to include presentations to high school and college

students about the dangers of impaired and or distracted driving. All other motions

were denied.

Defendant timely filed a motion for appeal, which was granted by the trial

court on August 23, 2021. Defendant’s brief in this court alleged two assignments

of error:

ASSIGNMENTS OF ERROR

1. The trial court abused its discretion by failing to adequately
consider the defendant’s background and any mitigating factors,
almost exclusively considering the personal characteristics of
the victim and the impact on the victim’s survivors as its basis
for the sentence, and by failing to state for the record an

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adequate factual basis for the sentence imposed, in violation of
La. Code Crim.P. art. 894.1

2. The trial court abused its discretion in imposing a sentence
upon the defendant that was cruel, unusual, and excessive, in
violation of La. Const. art. I, § 20.

In reviewing the record, the transcript of the sentencing hearing, and the

transcript of the hearing held on Defendant’s motion to reconsider sentence, there

are errors patent that will require the sentence imposed by the trial court to be

vacated. We will pretermit a full discussion of the two assignments of error raised

by Defendant on appeal. However, considering the sentence initially imposed on

the Defendant, a twenty-two year old first offender, this court will briefly reiterate

the trial court’s responsibility to fully consider not only aggravating factors but all

mitigating factors in its reasons for sentencing pursuant to La. Code Crim.P. art.

894.1.

Errors Patent

In accordance with La.Code Crim.P. art. 920, this court reviews all appeals

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

there are errors patent which make the sentence imposed indeterminate and require

that Defendant’s sentence be vacated. We remand for resentencing.

First Error Patent- Failure To Specify The Amount of Restitution To Be Paid

First, the trial court imposed restitution as a condition of Defendant’s

probation without specifying the amount of restitution to be paid, stating:

You’re to pay restitution to this family for funeral expenses of
the victim and if they have any counseling expenses the children
incur. Not only funeral expenses, but if there are any medical bills
that were - - that the family had to bear, you know, that were not
covered by insurance as a result of this accident.

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Louisiana Code of Criminal Procedure Article 895.1 provides for the

imposition of restitution as a condition of probation and states, in pertinent part:

A. (1) When a court places the defendant on probation, it shall,
as a condition of probation, order the payment of restitution in cases
where the victim or his family has suffered any direct loss of actual
cash, any monetary loss pursuant to damage to or loss of property, or
medical expense. The court shall order restitution in a reasonable sum
not to exceed the actual pecuniary loss to the victim in an amount
certain. However, any additional or other damages sought by the
victim and available under the law shall be pursued in an action
separate from the establishment of the restitution order as a civil
money judgment provided for in Subparagraph (2) of this Paragraph.
The restitution payment shall be made, in discretion of the court,
either in a lump sum or in monthly installments based on the earning
capacity and assets of the defendant.

La.Code Crim.P. art. 895.1.

In a recent case, this court addressed the trial court’s failure to set a fixed

amount of restitution and found the error required the sentence to be vacated and

the case remanded for resentencing. State v. Loyd, 18-968 (La.App. 3 Cir. 6/5/19),

274 So.3d 112.

In another recent case, a panel of this court in State v. Vidrine, 19-210

(La.App. 3 Cir. 10/2/19), 280 So.3d 664, 671-72 also vacated defendant’s

sentence and remanded the case This court instructed that if restitution was

imposed, the trial court must specify the amount. Id.

As in Loyd and Vidrine, the trial court in the present case failed to specify

the amount of restitution imposed as a condition of probation. Accordingly, we

find the sentence must be vacated and the case remanded for resentencing. The

trial court is instructed that if restitution is imposed as a condition of probation, it

should specify the amount of restitution and follow the procedure set forth in

La.Code Crim.P. art. 895.1.

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The sentence imposed by the trial court is also indeterminate based on the

trial court’s failure to specify the amount of time to be served without benefit of

probation, parole, or suspension of sentence. The pertinent penalty provision for

La.R.S. 14:32.1 provides:

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 Section shall include instruction on railroad grade crossing
safety.

Defendant pled guilty to the first penalty range set forth above – a fine

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

without hard labor for five to thirty years, with at least three years of the

sentence served without benefit of probation, parole, or suspension of

sentence. The trial court stated the following in imposing Defendant’s

sentence:

All right, as was stated, the penalty is five - - well, it’s five to
thirty - - well, with three has to be without benefit of probation,
parole, or suspension of sentence, and then - - all right, Mr. - - and
look, and I’m going to say this. Well, I’m trying to - - well, I may
address this issue in a minute, but I’m just going to go ahead and
impose the sentence.

I am going to do a split sentence. I’m going to impose a
sentence of thirty years in the Department of Corrections. I’m going

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to suspend seven of those years. I’m going to place you on - - once
you serve whatever time - - however much time you’re going to serve
out of the remaining twenty-three years, you’re going to be on five
years of supervised probation . . . .

Even though the trial court mentioned the three-year period to be served

without benefits when it recited the penalty provision, it did not mention the

three-year period without benefits when it actually imposed sentence. At the

motion to reconsider hearing, the trial court mentioned that at least three years

of the sentence must be served without benefits, but never specified a

determinate amount of time to be served without benefits.

In the case of State v. Parker, 14-393, pp. 2-3 (La.App. 3 Cir. 10/1/14),

149 So.3d 892, 893-94, a panel of this court held that the trial court must

specify the number of years to be served without benefits. On remand for

resentencing, the trial court must specify the amount of time to be served

without benefit of probation, parole, or suspension of sentence.

Error Patent – Failure To Establish A Payment Plan For Conditions of Probation

Third, the trial court imposed a fine, court costs, and restitution as conditions

of probation without establishing a payment plan. In State v. Arisme, 13-269, p. 3

(La.App. 3 Cir. 10/9/13), 123 So.3d 1259, 1262 (quoting State v. Wagner, 07-127,

p. 7 (La.App. 3 Cir. 11/5/08), 996 So.2d 1203, 1208), this court stated:

When the fines and costs are imposed as a condition of
probation, but the trial court is silent as to the mode of payment or the
trial court attempts to establish a payment plan, this court has required
a specific payment plan be established. See State v. Theriot, 04-897
(La.App. 3 Cir. 2/9/05), 893 So.2d 1016 (fine, court costs, and cost of
prosecution); State v. Fuslier, 07-572 (La.App. 3 Cir. 10/31/07), 970
So.2d 83 (fine and costs); State v. Console, 07-1422 (La.App. 3 Cir.
4/30/08), 981 So.2d 875 (fine and court costs).

We view this procedure as no different from
payment plans for restitution. See State v. Dean, 99-475
(La.App. 3 Cir. 11/3/99), 748 So.2d 57, writ denied, 99-

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3413 (La. 5/26/00), 762 So.2d 1101 (restitution only)
[(other cites omitted)].

We, therefore, remand this case to the trial court
for establishment of a payment plan for the fine, noting
that the plan may either be determined by the trial court
or by Probation and Parole, with approval by the trial
court. See [State v.] Stevens, [06-818 (La.App. 3 Cir.
1/31/07), 949 So.2d 597].

See also State v. Trosclair, 19-833 (La.App. 3 Cir. 6/24/20), 299 So.3d 704, writ

denied, 20-949 (La. 1/20/21), 308 So.3d 1162.

On remand for resentencing, we instruct the trial court to establish a

payment plan for any fine, costs, or restitution imposed as a condition of probation.

As stated above, the payment plan may be determined by either the trial court or by

the Office of Probation and Parole with approval of the trial court by appropriate

order.

Error Patent – Supervised Probation Exceeded The Term Allowed By Statute

We also find that by placing Defendant on supervised probation for five

years, the trial court exceeded the time allowed by La.Code Crim.P. art.

893(A)(1)(a). In 2017, the legislature amended La.Code Crim.P. art. 893 to

change the probationary period for most offenses from a maximum of five years to

a maximum of three years. 2017 La. Acts No. 280, § 1.1 Since the offense in the

present case does not fall within any of the exceptions outlined in the statute, we

find that the probationary period in this case must not exceed three years.

Accordingly, we instruct the trial court on remand that if any portion of

Defendant’s sentence is suspended, the probationary period imposed must be

1
The offense in this case was committed on October 29, 2020. Therefore, the 2017
amendments apply.

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specifically stated, but shall not exceed three years in accordance with La.Code

Crim.P. art. 893.

Error Patent – Failure to Order Participation In A Substance Abuse Program

Lastly, the trial court failed to order Defendant to participate in a court-

approved substance abuse program as required by La.R.S. 14:32.1(B).

Discussion of Defendant’s Assignments of Error

As previously stated, the number of errors patent require remand of this case

for resentencing. Accordingly, this court did not address Defendant’s assignment

of error wherein he claims the trial court failed to adequately consider Defendant’s

background and other mitigating factors pursuant to La.Code Crim.P. art. 894.1,

nor Defendant’s claim of constitutional excessiveness based on the particular facts

of this case.

A panel of this circuit in the case of State v. Charles, 18-222 (La. App. 3 Cir.

5/1/19), 270 So.3d. 859, recently reiterated the requirements of La.Code Crim.P.

art. 894.1 in explaining that the brevity of the trial court’s reasons for imposing

sentence in the matter before it provided “no insight or ability” for review of the

trial court’s sentence.

The panel further explained:

[Louisiana Code of Criminal Procedure Article] 894.1 enumerates
aggravating and mitigating factors to be considered by the trial court
in imposing sentence, and requires that the trial judge “state for
the record the considerations taken into account and the factual
basis therefor in imposing sentence.” The purpose of the statute is
to afford a reviewing court some insight into the reasoning process of
the sentencing judge, so that the propriety of the sentence can better
be evaluated. The trial judge need not state for the record his
consideration of each of the aggravating or mitigating circumstances
enumerated in the article. However, the record must reflect that
the judge did consider these guidelines in particularizing the
sentence to the defendant. The record should reflect that the trial
court considered not only the seriousness of the crime and the

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defendant’s criminal history, but also the defendant’s personal
history (age, mental status, dependents, family ties, employment
record, emotional and physical health), and his potential for
rehabilitation. The judge should indicate that he considered not
only the factors militating for incarceration, but also any factor
mitigating against it.

Id. at 868-69 (emphasis added) (internal citations omitted) (quoting State v. See,

462 So.2d 1369, 1372 (La.App. 3 Cir. 1985), writ denied in part, granted in part,

467 So.2d 525 (La.1985)).

In addition, with regard to Defendant’s claim of excessiveness, the trial court

appears to have imposed the near maximum sentence of thirty years with seven

years suspended on a first time offender, in order to “set an example and to deter

others from driving while impaired.”

In State v. Burnaman, 03-1647, p. 5 (La.App 3 Cir. 5/12/04), 872 So.2d 637,

641 a panel of this court held that “[i]n sentencing the Defendant to the maximum

sentence in an attempt to deter others from engaging in the same type of conduct,

the trial court abused its discretion.”

As in Burnaman, the trial court in this case stated that he sentenced

Defendant to set an example and deter others from driving while impaired: “I have

used this case an example, you know, to say, hey, you know, these are the kinds of

things that happen. I’ve used this case and other cases that have happened as

examples.” On remand, the trial court must particularize the sentence to the

defendant after considering all aggravating and mitigating factors.

Constitutionally Excessive Sentence

In Defendant’s Assignment of Error Number 2, defense counsel argues that

the sentence imposed was constitutionally excessive for this young, first time

offender under the facts and circumstances of this case. Louisiana Constitution

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Article 1, § 20 ensures that “No law shall subject any person to … cruel, excessive,

or unusual punishment.” In order to impose a constitutionally permissive sentence,

on remand for resentencing, the trial judge must consider not only the nature of the

crime, the facts and circumstances of the case before it, the nature and background

of the offender, but also should include a review of sentences imposed for similar

crimes and impose a sentence that is not constitutionally excessive. See State v.

Baker, 06-1218 (La.App. 3 Cir. 4/18/07), 956 So.2d 83, writ denied, 07-320 (La.

11/9/07), 967 So.2d 496, writ denied, 07-1116 (La. 12/7/07), 969 So.2d 626. See

also State v. Meaux, 21-522 (La.App. 3 Cir. 2/23/22), _ So.3d _ (2022 WL

534387).

CONCLUSION

Defendant’s conviction is affirmed. Defendant’s sentence is vacated as

indeterminate and the matter remanded for resentencing. The trial court is

instructed that if restitution is again imposed as a condition of probation, the

amount must be specified, pursuant to the procedures set forth in La.Code Crim.P.

art. 895.1. The trial court is instructed to establish a payment plan for any fines,

costs, restitution, or fees imposed as a condition of probation. The payment plan

may either be determined by the trial court or by the Office of Probation and Parole

with approval by the trial court.

Additionally, the trial court is instructed to specify the amount of time that is

to be served without benefit of probation, parole, or suspension of sentence in

accordance with La.R.S. 14:32.1(B). If any portion of Defendant’s sentence is

suspended, the probation period imposed should not exceed three years in

accordance with La.Code Crim.P. art. 893. Considering the particular facts of this

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case, the trial court must also order the Defendant to participate in a court-

approved substance abuse program pursuant to La.R.S. 14:32.1(B).

Finally, the trial court is instructed to specifically particularize the sentence

imposed and must consider and articulate for the record not only the aggravating

factors, but also all mitigating factors it may find applicable pursuant to La.Code

Crim.P. art. 894.1.

CONVICTION AFFIRMED. SENTENCE VACATED AND CASE
REMANDED FOR RESENTENCING.

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