State of Louisiana v. Robert Eugene Vascocu

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

KA 22-511

STATE OF LOUISIANA

VERSUS

ROBERT EUGENE VASCOCU

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APPEAL FROM THE
TENTH JUDICIAL DISTRICT COURT
PARISH OF NATCHITOCHES, NO. C-28990
HONORABLE DESIREE DYESS, DISTRICT JUDGE

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GARY J. ORTEGO
JUDGE

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Court composed of D. Kent Savoie, Van H. Kyzar, and Gary J. Ortego, Judges.

AFFIRMED.

Billy Joseph Harrington
District Attorney
R. Bray Williams
Assistant District Attorney
Tenth Judicial District Court
P. O. Box 838
Natchitoches, LA 71458-0838
(318) 357-2214
COUNSEL FOR APPELLEE:
State of Louisiana

T. Taylor Townsend
Attorney at Law
P. O. Box 784
Natchitoches, LA 71458-0784
(318) 238-3612
COUNSEL FOR DEFENDANT/APPELLANT:
Robert Eugene Vascocu

ORTEGO, Judge.

On December 9, 2019, Defendant, Robert Eugene Vascocu, was charged by

bill of indictment with negligent homicide, in violation of La.R.S. 14:32. Initially,

Defendant pled not guilty to the charge.

On December 8, 2021, Defendant, with his counsel present, withdrew his not

guilty plea, entered a plea of guilty to negligent homicide, and acknowledged for the

record that there was no plea agreement with the State, nor any sentencing

recommendation or sentencing cap. The trial court then fully Boykinized the

Defendant, accepted the Defendant’s plea, ordered a presentence investigation (PSI),

and set the matter for a sentencing hearing. Defendant filed a memorandum prior to

sentencing in which he argued that, given the facts and circumstances of the case, he

should be given a probated or suspended sentence.

On January 20, 2022, the trial court held a sentencing hearing and heard

testimony from numerous witnesses, along with arguments from the State and

defense counsel. The trial court then sentenced Defendant to the maximum term of

five years at hard labor, along with imposing the maximum fine of five thousand

dollars and notified Defendant that he had two years to apply for post-conviction

relief. Defendant orally objected to the sentence, and on February 18, 2022, filed a

“Motion to Reconsider, Amend, or Modify Sentence,” with a memorandum in

support. In his motion, Defendant claimed the trial court’s compliance with La.Code

Crim.P. art. 894.1 was inadequate to support his maximum sentence and further that

his maximum sentence is constitutionally excessive. By Order signed February 25,

2022, Defendant’s motion was denied.

On March 24, 2022, Defendant filed a motion for appeal, which was granted

by the trial court. Defendant is now before this court alleging two assignments of

error regarding his sentence. For the reasons stated herein, this court affirms

Defendant’s sentence.

FACTS

Since this case was resolved with a guilty plea, the facts in the record are not

fully developed. However, the trial court, in addressing Defendant at the sentencing

hearing, detailed the following facts:

The facts of this case, according to the Pre-Sentence Investigation
Report on August 12, 2019, state that you were summoned by your
granddaughter, Mr. McQuill[i]n’s ex-wife, to come to her house,
(inaudible) an argument between her and ex-husband, Mr. McQuill[i]n,
who was attempting to take physical custody of their child. Mr.
McQuill[i]n was asked by his ex-wife to babysit the child the following
day, but he could not, preferring to take the child that night. You
grabbed a gun and drove to your granddaughter’s house. You pulled up
along Mr. McQuill[i]n’s truck, exited your vehicle with a gun in hand,
and ordered Mr. McQuill[i]n to leave the property. Mr. McQuill[i]n
agreed to leave. Mr. McQuill[i]n turned to walk away, at which point
you approached him, struck Mr. McQuill[i]n in the back of the head
with a gun, causing it to fire, and a bullet enter[ed] his head from behind
the right ear. Mr. McQuill[i]n fell dead.

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 conclude that

there are no errors patent.

ASSIGNMENTS OF ERROR NUMBERS ONE AND TWO

Defendant appeals his sentence on two grounds. First, he asserts the trial court

abused its discretion in imposing the maximum sentence prescribed by law. Second,

he claims his sentence is constitutionally excessive. Defendant’s two assignments of

error are closely intertwined, so we will address the two together.

2

In his brief to this court, Defendant claims the trial court’s compliance with

La.Code Crim.P. art. 894.1 was inadequate to support the maximum sentence he

received. Specifically, Defendant argues that, had the trial court properly considered

the factors in La.Code Crim.P. art. 894.1(A), it would have found a sentence of

probation or suspension of sentence was warranted. Further, Defendant claims that

had the trial court properly considered the mitigating factors, pursuant to La.Code

Crim.P. art. 894.1(B), it would have found a lesser term of imprisonment more

appropriate. Defendant argues his maximum sentence makes no measurable

contribution to the acceptable goals of punishment and is “nothing more than the

purposeless and needless imposition of pain and suffering on an elderly, remorseful

defendant who pled guilty.” Defendant further asserts his sentence is excessive, and

a lesser sentence tailored to him would not deprecate the seriousness of his crime.

The State, in contrast, contends the trial court did not abuse its discretion and

sentenced Defendant within the statutory limits. The State further argues that the

Defendant’s sentence is not disproportionate to the severity of the crime, and a lesser

sentence would deprecate the seriousness of the crime.

At Defendant’s sentencing hearing, and having taken into consideration the

eighteen victim impact statements presented by the victim’s family, testimony from

business associates and friends, as well as Defendant’s character witnesses, along

with the Pre-Sentence Investigative Report, the trial court provided the following

reasons for imposing the maximum sentence:

As previously stated, the defendant was originally arrested by the
Natchitoches Parish Sheriff’s [O]ffice for the crime of second-degree
murder. An offense that carries a mandatory sentence of life
imprisonment. In my opinion, the facts, as I know them, could clearly
support a charge of manslaughter, an offense that carries a maximum
sentence of 40 years imprisonment. To your benefit, Mr. Vascocu, the

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grand jury indicted you with negligent homicide, an offense that carries
the maximum of five (5) years imprisonment. . . . I have reviewed the
record[,] defense counsel’s sentencing memorandum, victim impact
statements, and heard the testimony of Mr. and Mrs. McQuill[i]n, as
well as Mr. Vascocu’s character witnesses, Mr. Calvert, Mr. Guin, Mr.
Fredieu, and the others.

....

In determining a sentence, the Court has . . . reviewed and considered
the sentencing guidelines, and the sentencing factors [as] set forth in
the Louisiana Code of Criminal Procedure Article 894.1. Those
guidelines mandate that when a defendant has been convicted of a
felony the Court should impose a sentence of imprisonment. Here, this
case calls for a sentence of imprisonment. This Court, as all criminal
courts, must steadfastly balance compassion, justice, and public safety
in its criminal sentencing. This Court has taken notice and has weighed
in its decision today, the defendant’s social history, his lack of any prior
criminal record, and that this is his first and hopefully last felony
offense. . . . This Court has also taken note that a dangerous weapon
was used in this crime. A .22 caliber pistol, and that the offense resulted
in a very significant and permanent injury. And significant economic
loss to the victim or his family, most specifically the victim’s daughter
and parents. Mr. Vascocu, whatever sentence I give you today, it does
not ignore the grave serious nature of your crime . . . the shooting death
of Mr. McQuill[i]n at point-blank range at the head. What is so
heartbreaking to this Court is that an innocent child was present the
night of Mr. McQuill[i]n’s death . . . his own daughter. According to all
accounts, you consciously brought a gun with you. Mr. McQuill[i]n
was unarmed. And Mr. McQuill[i]n was walking away from you.

Additionally, the trial court specifically found that two of the three provisions

of La.Code Crim.P. art. 894.1(A) applied to Defendant. The trial court found that

Defendant needed correctional treatment or a custodial environment which could be

provided most effectively by commitment to an institution pursuant to La.Code

Crim.P. art. 894.1(A)(2). The trial court further found that because the victim, a

young twenty-year-old man and father, had been killed by Defendant, a lesser

sentence would deprecate the seriousness of Defendant’s offense pursuant

to La.Code Crim. P. art. 894.1(A)(3). Finally, the trial court found imprisonment

was warranted in this case and sentenced Defendant to five years at hard labor, along

with a five thousand dollar fine.

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A careful review of the record shows that the trial court did in fact properly

consider and articulate the criteria/factors set forth in La.Code Crim.P. art. 894.1.

The purpose of La.Code Crim.P. art. 894.1 is to provide for the trial court’s

articulation of a factual basis for a sentence, not a rigid or mechanical compliance

with its provisions. State v. Bell, 53,712, pp. 5-6 (La.App. 2 Cir. 1/13/21), 310 So.3d

307, 311. “While the trial judge need not articulate every aggravating and mitigating

circumstance outlined in art. 894.1, the record must reflect that he adequately

considered these guidelines in particularizing the sentence to the defendant.” State

v. Smith, 433 So.2d 688, 698 (La.1983) (citing State v. Ray, 423 So.2d 1116

(La.1982); State v. Keeney, 422 So.2d 1144 (La.1982); State v. Duncan, 420 So.2d

1105 (La.1982)). Importantly, the trial court should consider the defendant’s

personal history, including his age, marital status, health, and employment record;

his criminal record; the seriousness of the offense; and “the likelihood of

rehabilitation through correctional services other than confinement.” State v. Jones,

398 So.2d 1049, 1051-52 (La.1981); see also State v. Thompson, 50,392 (La.App. 2

Cir. 2/24/16), 189 So.3d 1139, writ denied, 16-535 (La. 3/31/17), 217 So.3d 358.

“There is no requirement that specific matters be given any particular weight

at sentencing.” State v. Brown, 51,352, p. 22 (La.App. 2 Cir. 5/2/17), 223 So.3d 88,

103, writ denied, 17-1154 (La. 5/11/18), 241 So.3d 1013 (citations omitted).

Additionally, appellate courts must determine whether the sentence imposed

is constitutionally excessive:

Sentences within the statutory sentencing range can be reviewed
for constitutional excessiveness. State v. Sepulvado, 367 So.2d 762
(La.1979). 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.
Barling, 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d
1035, 1042-43 (citing State v. Etienne, 99-192 (La.App. 3 Cir.
10/13/99), 746 So.2d 124, writ denied, 00-165 (La. 6/30/00), 765 So.2d
1067).
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....

“[Louisiana] Const. art I, § 20, guarantees that, ‘[n]o law shall
subject any person to cruel or unusual punishment.’” Barling, 779
So.2d at 1042-43. “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.” Id. at
1042 (citing State v. Campbell, 404 So.2d 1205 (La.1981)).

The relevant question is whether the trial court abused its broad
sentencing discretion, not whether another sentence might have been
more appropriate. Barling, 779 So.2d at 1042-43 (citing 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)). In reviewing the defendant’s
sentence, the appellate court should consider the nature of the crime,
the nature and background of the offender, and the sentences imposed
for similar crimes. State v. Lisotta, 98-648 (La.App. 5 Cir. 12/16/98),
726 So.2d 57 (citing State v. Telsee, 425 So.2d 1251 (La.1983)), writ
denied, 99-433 (La. 6/25/99), 745 So.2d 1183. “[T]he appellate court
must be mindful that the trial court is in the best position to consider
the aggravating and mitigating circumstances of each case. . . .” State
v. Williams, 02-707 (La.App. 3 Cir. 3/5/03), 839 So.2d 1095, 1100
(citing Cook, 674 So.2d 957).

State v. Rexrode, 17-457, pp. 3-4 (La.App. 3 Cir. 11/15/17), 232 So.3d 1251, 1253-

54 (alterations in original). “Generally, maximum sentences are reserved for the

most serious violation of the offense and the worst type of offender.” State v.

Herbert, 12-228, p. 5 (La.App. 3 Cir. 6/13/12), 94 So.3d 916, 920, writ denied, 12-

1641 (La. 2/8/13), 108 So.3d 78.

Looking first to the nature of the crime, Defendant was charged with negligent

homicide, which is defined as “[t]he killing of a human being by criminal

negligence.” La.R.S. 14:32(A)(1). Negligent homicide is punishable by

imprisonment with or without hard labor for not more than five years and/or a fine

of not more than five thousand dollars. La.R.S. 14:32(C)(1). Here, Defendant

received the maximum sentence and the maximum fine.

6

We find that the trial court thoroughly detailed the factual circumstances

leading up to the crime at the sentencing hearing. Although negligent homicide is

not defined as a crime of violence, under La.R.S. 14:2(B) the particular set of facts

in this case, as found and stated by the trial court, are violent in nature. The trial

court further noted that the victim, Mr. McQuillin, was unarmed and had his back to

Defendant when Defendant hit Mr. McQuillin in the back of the head with a loaded

firearm, causing the firearm to discharge a bullet into Mr. McQuillin’s head. The

PSI reflects that following the shooting, Defendant instructed his granddaughter to

call 911, remained at the scene waiting for authorities to arrive, disarmed himself,

and voluntarily confessed to the crime. Further, and as found and stated by the trial

court, the facts of this case are such that, had these and other mitigating

circumstances not been shown, Defendant might have been charged by the grand

jury with a more serious offense, either second-degree murder, for which he was

originally arrested and charged, or manslaughter.

As to the nature and background of the offender, Defendant was described as

a sixty-eight-year-old first offender with no prior arrests at the time of sentencing.

The PSI indicated he was divorced and a father, grandfather, and great grandfather.

According to his doctor, Defendant suffered from numerous health conditions such

as hypertension, hyperlipidemia, and coronary artery disease which require close

medical monitoring and strict compliance with medication and diet. After dropping

out of high school, Defendant maintained steady employment and eventually owned

a paint and drywall business which operated for thirty-five years, with several

members of the community testifying as to his good character and his personal

history at the sentencing hearing.

7

Regarding the imposition of the maximum sentence for negligent homicide,

appellate courts have upheld a wide range of sentences from three to five years, and

sometimes with suspended sentences, under varying factual circumstances. The

imposition of maximum sentences was generally discussed in State v. Webre, 09-

351, pp. 3-4 (La.App. 3 Cir. 11/4/09), 21 So.3d 1154, 1156-57 (alterations in

original), as follows:

In State v. Burnaman, 03-1647, p. 5 (La.App. 3 Cir.
5/12/04), 872 So.2d 637, 641, this court considered the
appropriateness of the imposition of maximum sentences,
explaining:

[M]aximum sentences are usually reserved
for the most egregious and blameworthy of
offenders. State v. LeBlanc, 578 So.2d 1036
(La.App. 3 Cir.1991), writ denied, 620 So.2d
833 (La.1993). In reviewing the imposition
of a maximum sentence, the First Circuit has
held:

This Court has stated that maximum
sentences permitted under statute may be
imposed only for the most serious offenses
and the worst offenders, State v. Easley, 432
So.2d 910, 914 (La.App. 1 Cir.1983), or
when the offender poses an unusual risk to
the public safety due to his past conduct of
repeated criminality. See State v. Chaney,
537 So.2d 313, 318 (La.App. 1 Cir.1988),
writ denied, 541 So.2d 870 (La.1989). A trial
court’s reasons for imposing sentence, as
required by La.Code Crim. P. art. 894.1, are
an important aid to this court when reviewing
a sentence alleged to be excessive. State v.
McKnight, 98-1790 at p. 25, 739 So.2d [343]
at 359 [ (La.App. 1 Cir.1999) ].

State v. Runyon, [05-36, 05-104, pp. 22-23 (La.App. 3 Cir.
11/2/05),] 916 So.2d [407,] 423-24[, writ denied, 06-1348
(La.9/1/06), 936 So.2d 207].

See also State v. Runyon, 06-823, p. 12 (La.App. 3 Cir. 12/6/06), 944
So.2d 820, 830, writ denied, 07-49 (La.9/21/07), 964 So.2d 330.

8

The defendant in Webre received the maximum sentence for negligent

homicide which this court affirmed on appeal. Id. This court noted the defendant had

a criminal history, including numerous arrests and prior driving while intoxicated

(DWI) and hit-and-run convictions, and showed a lack of remorse. Id.

In State v. Parker, 42,947 (La.App. 2 Cir. 1/30/08), 974 So.2d 844, the second

circuit upheld a five-year sentence with a $3,500.00 fine for negligent homicide,

although half of the sentence was suspended. The second circuit found the defendant

received a significant benefit from the jury returning a responsive verdict when she

was charged with vehicular homicide, a benefit which reduced her sentencing

exposure. Id. at 848. The court noted that defendant’s “actual incarceration would

only amount to one-half of the maximum sentence.” Id. (footnote omitted).

The second circuit also upheld a maximum sentence for negligent homicide

involving a shooting in State v. Pope, 47,486, 47,487 (La.App. 2 Cir. 9/26/12), 106

So.3d 600. In Pope, the defendant was charged with second degree murder, which

was later amended to manslaughter, before he pled guilty to negligent homicide and

felony theft. Id. The defendant in Pope shot his estranged wife during an argument

that was witnessed by their twenty-one-year-old daughter and eighteen-year-old son.

Id. While out on bond, he committed felony theft, which the court considered an

aggravating circumstance. Id.

In State v. Ducote, 19-263 (La.App. 3 Cir. 12/18/19), 286 So.3d 604, writ

denied, 20-134 (La. 5/7/20), 296 So.3d 611, this court found the maximum five-year

sentence was not excessive considering the circumstances of the case. The defendant

pointed an AR-15 at his friend, the victim, without checking to see if the gun was

loaded or if the safety was engaged, and deliberately pulled the trigger. Id. The

defendant lied to law enforcement and claimed the gun fell out of his truck and

accidentally discharged. Id. In affirming his sentence, this court reasoned that “[t]he
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deliberate and conscious action of pulling the trigger substantiates imposing the

maximum sentence[,]” and “his clear disregard for firearm safety shows him to be

the worst kind of offender in the context of negligent homicide.” Id. at 608-09.

In State v. Hughes, 03-420 (La.App. 3 Cir. 12/31/03), 865 So.2d 853, writ

denied, 04-663 (La. 9/24/04), 882 So.2d 1165, this court found a five-year sentence

for negligent homicide was not excessive for a first-time felony offender with four

children. The defendant attempted to commit suicide by driving into a head-on

accident at high speed but instead killed the driver of the other car. Id. This court

found the trial court did not abuse its discretion in sentencing the defendant to the

maximum sentence based on her wanton and reckless disregard for the lives and

safety of others. Id.

In this case, Defendant argues that the maximum sentence is not warranted,

because there is an absence of exceptional circumstances. Defendant argues that he

is not the worst type of offender based on his lack of criminal record, his social

history, and his actions after committing the crime, including confessing to the

crime, and pleading guilty as charged without a sentencing recommendation or

sentencing cap. Defendant further argues that he did not commit another crime or

violate any of the trial court’s conditions while out on bond.

Defendant further cites other accidental shooting cases, such as State v.

Asberry, 451 So.2d 1353 (La.App. 1 Cir. 1984), and State v. McFerson, 583 So.2d

516 (La.App. 3 Cir.), writ denied, 588 So.2d 113 (La.1991). In those cases, the

Defendant argues that those defendants received lesser sentences than the one

imposed in this case. Defendant claims the facts in the Asberry and McFerson cases

are more synonymous with his case, and he further argues that cases where the

maximum sentence was upheld involve egregious facts and aggravating

circumstances.
10

In Asberry, 451 So.2d 1353, the first circuit upheld a three-year sentence for

a defendant who shot his nephew, turned himself in, and subsequently pled guilty to

negligent homicide. The trial court, in sentencing the defendant, noted in mitigation

that he pled guilty as charged, had no previous convictions, voluntarily surrendered

to the police, and expressed remorse for his actions. Id. at 1354. In McFerson, 583

So.2d 516, the defendant brought a firearm to a nightclub and, while attempting to

put the firearm in the front of his pants, was bumped by [a third party] which caused

the firearm to discharge. Id. The defendant was convicted of negligent homicide and

sentenced to three years at hard labor. Id. In that case, this court noted the defendant

was nineteen years old, an Army officer, and a first offender in affirming his

sentence. Id.

Even evaluating sentences given to defendants for similar crimes, our

jurisprudence acknowledges that “[t]he trial judge is given great discretion in the

imposition of sentences within statutory limits, and the sentence should not be set

aside in the absence of abuse of his discretion.” State v. Bradley, 414 So.2d 724, 725

(La.1982) (citations omitted), and 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, p. 3 (La. 5/31/96), 674 So.2d 957,

959 (per curium) (quoting State v. Humphrey, 445 So.2d 1155, 1165 (La.1984)),

cert. denied, 519 U.S. 1043, 117 S.Ct. 615 (1996).

A review of the foregoing jurisprudence shows that appellate courts have

affirmed a wide range of sentences for negligent homicide convictions. Although

Defendant contends the trial court failed to comply with La.Code Crim. P. art. 894.1,

this court finds to the contrary. Further, this court finds that the sentence imposed

does not shock the sense of justice, nor is it disproportionate to the severity of the

offense and the specific violent facts of this case.
11

After carefully reviewing the record, this court finds that the trial court did not

abuse its discretion in sentencing Defendant to the maximum sentence. Therefore,

we affirm Defendant’s sentence and find these assignments of error are without

merit.

DECREE

For the foregoing reasons, and in view of the record before us, the trial court’s

sentence imposed upon Defendant, Robert Eugene Vascocu, pursuant to his

voluntary guilty plea to negligent homicide, is affirmed.

AFFIRMED.

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