State of Louisiana v. George McKinney, Jr.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

23-162

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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WILBUR L. STILES
JUDGE

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Court composed of Elizabeth A. Pickett, Ledricka J. Thierry, and Wilbur L. Stiles,
Judges.

AFFIRMED.

Walter M. Sanchez
Jennifer E. Jones
Sanchez Burke LLC
1200 Ryan Street
Lake Charles, LA 70601
(337) 433-4405
COUNSEL FOR DEFENDANT/APPELLANT:
George McKinney, Jr.

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

David S. Pipes
14th Judicial District, Assistant District Attorney
901 Lakeshore Drive, Suite 800
Lake Charles, LA 70601
(337) 437-3400
COUNSEL FOR APPELLEE:
State of Louisiana

STILES, Judge.

On remand from this court, the trial court vacated Defendant’s initial sentence

for vehicular homicide and resentenced Defendant to thirty years, with the first three

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

The trial court suspended seven years of Defendant’s sentence and placed him on

supervised probation for three years upon his release. Defendant was further ordered

to pay restitution for costs associated with the victim’s death. Defendant appeals his

sentence, asserting that the thirty year sentence is excessive. For the reasons

discussed below, we affirm Defendant’s sentence.

FACTS AND PROCEDURAL HISTORY

On October 29, 2020, Defendant George McKinney, Jr. was arrested 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, he was charged by bill of information 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, approximately three months after being

billed with vehicular homicide, Defendant withdrew his previous plea of not guilty

and pleaded 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 beath 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.

Defendant’s counsel requested a Pre-Sentence Investigation Report (PSI),

which was ordered by the trial court. However, the PSI was not completed.

Defendant’s counsel waived any objection and elected to proceed with Defendant’s

sentencing without the PSI.

Subsequently, on May 21, 2021, the trial court sentenced Defendant to serve

thirty years with the Department of Corrections, suspended seven years, and placed

Defendant on supervised probation for five years. 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 a $7,500.00 fine, restitution, and 1,000

hours of community service, directly related to the prevention of impaired driving,

i.e., talking with high school students, college students, and driver’s education

students.

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 did, however,

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

of Defendant’s probation could be converted into other court-approved services, but

emphasized that the main focus of the community service would remain prevention

of impaired driving.

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Defendant appealed his sentence as excessive to this court. In State v.

McKinney, 21-721 (La.App. 3 Cir. 4/6/22), 337 So.3d 931, this court affirmed

Defendant’s conviction but vacated his sentence as indeterminate and remanded the

case for resentencing. The panel instructed:

Defendant’s conviction is affirmed. Defendant’s
sentence is vacated as indeterminate and the matter is
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
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.

McKinney, 337 So.3d at 938-39.

On remand, Defendant’s counsel filed a Motion for Pre-Sentence

Investigation, which the trial court granted on July 5, 2022. At the subsequent August

19, 2022 hearing on resentencing, the trial court vacated the original sentence and

resentenced Defendant to serve thirty years with the Department of Corrections, with

the first three years to be served without benefit of probation, parole, or suspension

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of sentence. The trial court suspended seven years of Defendant’s sentence and

placed him on supervised probation for three years, upon his release, with several

conditions of probation, including restitution to Mr. Webb’s family members

($8,816.00 for the victim’s head stone and $11,106.05 for funeral expenses), a

monthly supervision fee, and 300 hours of court-approved community service (100

hours per year of probation). The trial court ordered seventy-five percent of the

community service hours to be devoted to DWI prevention. Among other conditions,

the trial court ordered Defendant to submit to a substance abuse evaluation and enroll

in a driver-improvement program. For the restitution imposed, the trial court ordered

the Office of Probation and Parole to prepare a payment plan and submit it to the

trial court.

Defendant filed a Motion to Reconsider Sentence, which the trial court denied

on January 24, 2023. However, the trial court clarified that Defendant must perform

100 community service hours per year, with a minimum of thirty hours to be focused

on DWI prevention. Defense counsel objected to the ruling.

Defendant appeals, advancing two assignments of error:

ASSIGNMENTS OF ERROR

1. The trial court abused its discretion by only considering
aggravating factors inherent in the crime of vehicular homicide,
failing to adequately consider the defendant’s background and
any mitigating factors, and by failing to state for the record an
adequate factual basis for the sentence imposed before a sentence
was imposed in violation of La.Code Crim.Pro. 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.

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DISCUSSION

Errors Patent

Pursuant to La.Code Crim.P. art. 920, this court reviews all appeals for errors

patent on the face of the record. That review reveals no errors patent requiring

correction. We turn to consideration of Defendant’s assigned errors.

Sentencing

By both assignments of error, Defendant maintains that the trial court abused

its discretion in imposing a sentence of thirty years of incarceration with seven years

suspended and three years of supervised probation subject to special conditions upon

release.

Louisiana Code of Criminal Procedure Article 894.1

Defendant first maintains that the trial court failed to consider relevant

mitigating and aggravating factors and further failed to state for the record the factual

basis for the sentence imposed. See La.Code Crim.P. art. 894.1. Defendant contends

that the trial court instead focused on 2017 legislative changes in the provision and

only cited aggravating factors that are inherent in the crime of vehicle homicide. See

La.R.S. 14:32.1(A)(2). In particular, Defendant points out that “the loss of a human

life is at the core of the crime of vehicle homicide.” Defendant suggests the trial

court failed to take into account a number of mitigating factors, including whether

he lacked specific intent to cause or threaten serious harm. Defendant asserts that the

trial court should have further considered that he lacks a criminal history, that the

circumstance of the offense is unlikely to recur, and that Defendant is likely to

respond affirmatively to rehabilitation. Defendant argues that the trial court

otherwise only “vaguely referenced” Defendant’s age, remorse, and religious

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background. According to Defendant, failure to appropriately consider the

mitigating factors resulted in an excessive sentence.

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 court “shall state for the record the considerations taken into

account and the factual basis thereof in imposing sentencing.” La.Code Crim.P. art.

894.1(C). The supreme court has explained that the trial court need not articulate

every aggravating and mitigating circumstance of Article 894.1. State v. Smith, 433

So.2d 688 (La.1983). See also State v. Charles, 20-498 (La.App. 3 Cir. 5/5/21), 318

So.3d 356. The record must instead reflect that the court considered the guidelines

in particularizing the sentence to the defendant. Id.

Despite the mandate of Article 894.1, the “failure to comply with article 894.1

does not automatically render a sentence invalid.” State v. Smith, 34,325, p. 2

(La.App. 2 Cir. 12/20/00), 775 So.2d 640, 642. Rather, if “the record clearly shows

an adequate factual basis for the sentence imposed, remand is unnecessary . . . .” Id.

The reviewing court thus considers whether the record presented is sufficient to

demonstrate that the trial court did not abuse its discretion. Id. See also Charles, 318

So.3d 356; State v. Decuir, 10-1112 (La.App. 3 Cir. 4/6/11), 61 So.3d 782.

Review of the lengthy resentencing transcript demonstrates both that the trial

court considered the guidelines and that it particularized the sentence to Defendant.

With regard to the factors of Article 894.1(A),1 the trial court stated:

1
Article 894.1(A) provides:

A. When a defendant has been convicted of a felony or misdemeanor, the
court should impose a sentence of imprisonment if any of the following occurs:

(1) There is an undue risk that during the period of a suspended sentence
or probation the defendant will commit another crime.

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And now let me get to under 894.1 the aggravating and mitigating
factors. All right. Under 894.1(a), you know, it says, “When a defendant
has been convicted of a felony or misdemeanor the court shall impose
a sentence of imprisonment if any of the following occurs. One I don’t
find to be applicable necessarily. Number two, “Defendant is in need
of correctional treatment or a custodial environment that could provide
him most effectively by commitment to an institution.” That’s not
necessarily what I’m relying on, but number three (a)(3) is, “A lesser
sentence will deprecate the seriousness of the defendant’s crime.” I
think that certainly is appropriate in this case[.]”

Continuing, the trial court further addressed the applicable grounds of Article

894.1(B) and explained:

[A]nd under (b), 894.1(b), “The following grounds, while not
controlling the discretion of the Court, shall be accorded weight in its
determination of suspension of sentence or probation.” Yeah, I think
that number five, (b)(5), “The offender knowingly created a risk of
death or great bodily harm to more than one person,” I think that is
certainly true. Any time you’re impaired and you decide to get behind
the wheel you are certainly knowingly creating, even though most
drunk drivers think they’re the best drunk drivers around and they got
it under control, they’re certainly knowingly creating a risk of bodily
harm to more than one person when they get behind the wheel. They’re
choosing to go out there and gamble with other people’s lives. I think
that certainly applies here.

And number nine, “The offense resulted in a significant
permanent injury or significant economic loss to the victim or his
family.” I think the letters, the testimony from the sentencing hearing,
speak volumes of how true that is. Well, of course, and what I just
ordered in restitution certainly speaks to that as well; $20,000 is just
what the funeral costs and the head stone costs. That doesn’t even come
close to what the other economic loss is to this family going forward.
He had four children, a wife and four children, to raise and to provide
for. So, the economic loss is just incalculable at this point.

Number ten, I don’t know that that’s contemplated. It’s probably
not contemplated, so I won’t consider that. I guess using a dangerous
weapon. I guess that’s not contemplated with the vehicle necessarily,

(2) The defendant is in need of correctional treatment or a custodial
environment that can be provided most effectively by his commitment to an
institution.

(3) A lesser sentence will deprecate the seriousness of the defendant's
crime.

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but all right, and then, let’s see. Well, let me say this. I don’t agree
with number twenty-three, that, “The defendant did not contemplate
that his criminal conduct would cause or threaten serious harm.” I think
that he may not have necessarily thought that it would cause, but he had
to know that it could or threaten serious harm. I don’t know that that’s
a mitigating factor. I’m not considering that to be a mitigating factor.
I know that was suggested, but number twenty-eight, you know, it says,
“The defendant has no history of prior delinquency or criminal activity
or has led a law-abiding life,” it says, “for a substantial period of time
before the commission of the instant crime.” I mean he was twenty-two.
He appears to have no criminal history, although I know the statistics
show that for every time somebody gets a DWI they have driven many,
many times before, impaired before they actually - - for each time they
get caught, but I don’t have any evidence of that before me, but I’m just
saying, but apparently he has no criminal history, but then I think it was
also stated in here, I mean I think it was also mentioned that, “The
defendant’s criminal conduct was the result of circumstances unlikely
to recur.” You know, I don’t know that I can buy into that either because
I don’t know. I don’t know that that’s true. I mean I’ve had a couple
of people that have had vehicular homicides that have been re-arrested
for DWIs that I’ve had come before me, you know, so I don’t know that
I can necessarily say that. I mean I hope that’s true, but I don’t know
that I can - - I mean I don’t know if there’s necessarily a basis for this
or not. So, I mean I don’t know if this is the kind of case where I can
say that that is true or not, but I don’t think this is the kind of case where
I can say that.

I do accept that the defendant has remorse, genuine remorse.
You know, the fact that he did plead quickly in this matter I think is a
positive sign to try to get this resolved quickly for the family.
Unfortunately, we’re back here again, just kind of opened wounds back
up for everybody, but anyway, but I don’t think those mitigating factors
are enough to offset the aggravating factors and I really believe that I
am allowed to look at the sentence itself and look at the amount of time
under the law that he is likely to serve. He is a trustee by all accounts,
you know, from what I’m hearing, from what I hear from Mr. Sanchez.
He’s working in the office up there in Catahoula. He's well-behaved,
you know. There’s no reason to think he’s not going to get his good
time, which is not, just so everybody understands, the parole board,
that’s discretionary at twenty-five percent. The good time is not
discretionary. He’s going to get that. He’s going to get that good time
at thirty-five percent. He’s not going to go in front of the parole board
for them to make a decision on that. He’s going to get that. Parole is
they have to decide whether he gets that at twenty-five percent, but the
good time is, when he’s eligible for that he gets it, and I don’t believe
that under all these circumstances that that amount of time is anything
that could possibly be considered excessive under the Constitution. In
light of everything that happened in this case, under all the facts and
circumstances, you know, it cannot be said to shock the conscience in

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this Court’s opinion and I’ve been elected to make this decision and I
have broad discretion and I believe that the amount of time to be served
in this case is not even close to being cruel and unusual under the
Constitution, and so with that being said I think that in light of the
severe nature of what happened here.

Plainly, the trial court articulated the factual basis for the sentence. Providing

such a basis is the goal of Article 894.1 rather than a rigid or mechanical compliance

with its provisions. See Smith, 433 So.2d 640. As such, the trial court is not required

to list every aggravating or mitigating circumstance so long as the record reflects

that it adequately considered the guidelines. Id. The trial court did so, referencing

the aggravating circumstances it found supported the sentence imposed. It pointedly

explained that it felt that a lesser sentence would deprecate the seriousness of the

offense, that Defendant knowingly created a risk of death of death or great bodily

harm to more than one person, that the offense created significant permanent injury

and “incalculable” economic loss due to the victim’s wife and four children, and

that, although Defendant may not have known the harm that his intoxicated driving

would cause, “he had to know it could or threaten serious harm.”

The trial court further specifically addressed and ultimately discounted certain

of the mitigating factors that Defendant argues warranted a lesser sentence. For

example, the trial court was unpersuaded that his age, twenty-two, was so youthful

as to be a more compelling mitigating factor. The trial court was similarly

unpersuaded by lack of “apparent” criminal history. While Defense counsel’s brief

to this court posits both that Defendant is a strong candidate for rehabilitation and

that he is unlikely to repeat the offense, the trial court found these subjective factors

uncompelling, stating that he didn’t “know that that’s true.”

The trial court again rejected Defendant’s repeated argument at the hearing on

the Motion to Reconsider Sentence and was again adamant that its principal concern

9

was that a lesser sentence would deprecate the seriousness of the crime. See La.Code

Crim.P. art. 894.1(A)(3). The court repeated its evaluation of the mitigating factors

advanced by Defendant but explained that it either found them not objectively true

or, to the extent they were applicable, outweighed by the seriousness of the offense.

In any event, the trial court provided an adequate factual basis for the sentence

imposed and considered the factors of Article 894.1, simply assessing those factors

differently than Defendant finds appropriate. Given the trial court’s superior position

to evaluate aggravating and mitigating circumstances in a particular case, its

balancing of the factors is afforded broad discretion. State v. Williams, 03-3514 (La.

12/13/04), 893 So.2d 7.

Further, reference to the extensive resentencing transcript undermines

Defendant’s alternate position that the trial court erroneously reviewed the Article

894.1 factors “post-sentence.” Citing State v. Everett, 432 So.2d 250 (La.1983).

Instead, the trial court’s evaluation of the Article 894.1 factors in this case was issued

in conjunction with the imposition of sentence and revealed the trial court’s

reasoning. See La.Code Crim.P. art. 894.1(C) (“The court shall state for the record

the considerations taken into account and the factual basis therefore in imposing

sentence.”).

This continuum in the trial court’s ruling differentiates this matter from

Everett, 432 So.2d 250, where the trial court mistakenly believed that the penalty for

the defendant’s offense was mandatory and imposed the maximum sentence without

considering the full range of sentencing alternatives. Thus, “the trial judge (possibly

because he mistakenly considered the sentence to be mandatory) failed to comply

with La.C.Cr.P. Art. 894.1C . . . .” Id. at 251. Although the trial court in Everett later

supplemented the record with a one-page form supplying sentencing considerations,

10

the supreme court found the procedure improper. Within that context, the supreme

court explained that the sentencing factors were not revealed to the defendant or his

counsel “in order that any inaccurate consideration can be corrected before sentence

is pronounced.” Id. at 252 (emphasis in the original).

In contrast, the trial court in this case articulated the Article 894.1 factors in

the moments following the sentence and did so in the presence of the attorneys.

Counsel was able to immediately assess those reasons in shaping its objection to the

sentence and in its notice to the trial court that it would seek reconsideration of the

sentence.

For these reasons, we find no merit in Defendant’s contention that the trial

court abused its discretion by failing to adequately consider Defendant’s background

and mitigating factors or state for the record an adequate factual basis for the

sentence imposed.

Excessiveness of Sentence

In Defendant’s second assignment of error, Defendant contends that the

sentence imposed by the Trial Court was cruel, unusual, and excessive in violation

of La.Const. art. 1, § 20. Focusing solely on the thirty-year term of imprisonment,

Defendant asserts that the trial court imposed the “maximum sentence” available

under La.R.S. 14:32.1 and did so without an adequate factual basis. He contends that

his personal history, his potential for rehabilitation, and the particulars of the crime

do not indicate that he is the most blameworthy offender of vehicle homicide. Rather,

he notes that he stopped after the accident, contacted emergency services, and

pleaded guilty within four months of the accident. Finally, Defendant asserts the trial

court failed to conduct a review of sentences imposed for similar offenses. Such a

review, Defendant contends, shows that defendants with greater criminal histories

11

involved in offenses with more egregious circumstances have received lesser

sentences.

Louisiana Revised Statutes 14:32.1 provides the penalty for vehicular

homicide as follows:

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.

C. Whoever commits the crime of vehicular homicide shall be
sentenced as an offender convicted of a crime of violence if the
offender's blood alcohol concentration, at the time of the offense,
exceeds 0.20 percent by weight based on grams of alcohol per one
hundred cubic centimeters of blood.

As to review of claims of excessive sentence, this court has explained:

Sentences within the statutory sentencing range can be reviewed
for constitutional excessiveness. State v. Sepulvado, 367 So.2d 762
(La.1979). In State v. Barling, 00-1241, 00-1591, p. 12 (La.App. 3 Cir.
1/31/01), 779 So.2d 1035, 1042-43, writ denied, 01-838 (La. 2/1/02),
808 So.2d 331, a panel of this court discussed the review of excessive
sentence claims, stating:

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

12

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).

Further, in reviewing the defendant’s sentences, 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. In 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, a panel of this court observed that:

While a comparison of sentences imposed for similar
crimes may provide some insight, “it is well settled that
sentences must be individualized to the particular offender
and to the particular offense committed.” State v. Batiste,
594 So.2d 1 (La.App. 1 Cir. 1991). Additionally, it is
within the purview of the trial court to particularize the
sentence because the trial judge “remains in the best
position to assess the aggravating and mitigating
circumstances presented by each case.” State v. Cook, 95-
2784 (La. 5/31/96); 674 So.2d 957, 958[, cert. denied, 519
U.S. 1043, 117 S.Ct. 615 (1996)].

State v. Soileau, 13-770, 13-771, pp. 4–5 (La.App. 3 Cir. 2/12/14), 153 So.3d 1002,

1005–06, writ denied, 14-452 (La. 9/26/14), 149 So.3d 261.

Pertinent to Defendant’s contention that he received the maximum term of

imprisonment, this court has explained:

As a general rule, maximum or near maximum
sentences are reserved for the worst offenders and the
worst offenses. State v. Cozzetto, 2007-2031 (La. 2/15/08),
974 So.2d 665; State v. McKinney, 43,061 (La.App.2d Cir.
2/13/08), 976 So.2d 802. However, the reviewing court
does not determine whether another sentence would have
been more appropriate, but whether the trial court abused

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its discretion. State v. Esque, 46,515 (La.App.2d Cir.
9/21/11), 73 So.3d 1021, writ denied, 2011-2347 (La.
3/9/12), 84 So.3d 551.

State v. Bartie, 22-401, p. 16 (La.App. 3 Cir. 3/8/23), 358 So.3d 266, 276 (quoting

State v. Jackson, 48,552, pp. 33-34 (La.App. 2 Cir. 1/29/14), 132 So.3d 516, 535,

writ denied, 14-394 (La. 9/19/14), 148 So.3d 952, and writ denied, 14-412 (La.

9/26/14), 149 So.3d 260).

Despite Defendant’s characterization, however, the trial court did not impose

the maximum sentence available under La.R.S. 14:32.1(B). The trial court instead

suspended seven years of Defendant’s sentence and ordered that only the first three

years be served without benefit of probation, parole, or suspension. As Defendant’s

blood alcohol level exceeded .15, Defendant was exposed to the requirement that “at

least five years of the sentence of imprisonment shall be imposed without benefit of

probation, parole, or suspension of sentence.” (Emphasis added.) Neither did the trial

court impose the mandatory fine of $2,000.00 to $15,000.00 as required by the

statute. See, e.g., Bartie, 358 So.3d at 276 (“Defendant is not technically serving

maximum to which he was exposed.”). See also State v. Landry, 09-260, p. 7

(La.App. 3 Cir. 11/4/09), 21 So.3d 1148, 1153, writ denied, 09-2577 (La. 5/21/10),

36 So.3d 229.

Additionally, the trial court remarked at the resentencing and Motion to

Reconsider Sentence hearings that Defendant’s behavior thus far indicates he will

receive good time and parole. “The availability of early release options[,]” the

supreme court has explained, “is generally a relevant consideration in review of

sentences for excessiveness.” State v. LeBlanc, 09-1355, p. 11 (La. 7/6/10), 41 So.3d

1168, 1174.

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Defendant acknowledges that early release is a relevant consideration but

asserts that it does not absolve the court of particularizing a sentence. As explained

above, the trial court thoroughly particularized the sentence in this case, speaking

not only of the damage Defendant caused to the victim and the victim’s family but

to the fact that multiple lives were put at risk by Defendant’s carelessness. The trial

court was concerned that a lesser sentence would deprecate the seriousness of

Defendant’s crime which involved a blood alcohol level twice the presumptive level

of intoxication well after the 5:30 a.m. offense. The trial court also noted that

Defendant could help others, both while in jail and upon release. The trial court

ordered Defendant to devote much of his community service time to educating others

on the dangers of drunk driving.

As a further component of his excessiveness claim, Defendant contends that

the trial court failed to conduct a meaningful review of sentences imposed for similar

crimes. The trial court’s ruling indicates otherwise, however.

Significantly, much of Defendant’s argument below focused on his contention

that other vehicular homicide cases in the Fourteenth Judicial District Court resulted

in lesser sentences. The trial court permitted lengthy argument at the hearing on the

Motion to Reconsider Sentence before observing that the majority of the cases cited

by Defendant involved pleas with sentence recommendations. The trial court

explained that “every case is different. Every situation is different. Every case has

to be decided based on the facts and circumstances of that case.” The trial court also

pointed out that, as the sentencing judge in the majority of the cases cited by

Defendant, he could recall factors that were not necessarily presented in the record.

In his brief to this court, Defendant points to appellate opinions which he

contends demonstrate that more egregious and blameworthy defendants have

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received sentences of less than the maximum allowed by La.R.S. 14:32.1. Citing

State v. Gordon, 17-846 (La.App. 3 Cir. 3/28/18), 240 So.3d 301 and State v. State

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

In Gordon, 240 So.3d 301, the defendant pleaded guilty to three counts of

vehicular homicide and was sentenced to eighteen years on each count, to run

consecutively. The underlying incident arose when Gordon’s tractor-trailer crossed

a highway centerline and struck another vehicle, killing a father and his two children.

Id. Amphetamine and methamphetamine were detected in Gordon’s urine, and

Gordon also admitted to regular use of methamphetamine, including the day of the

accident. Id. The trial court noted that Gordon had no criminal record prior to the

accident. Id. After comparing Gordon’s sentences with similar offenses, this court

found the sentences were not excessive. Id. It should be noted, however, that

although the individual sentences imposed in Gordon were less than that imposed in

the present case, the trial court ordered that the three eighteen year sentences be

served consecutively.

Defendant also references Bennett, 208 So.3d 898, a case in which the

defendant pleaded no contest to vehicular homicide and was sentenced to twenty

years at hard labor, with eight years suspended, five years of supervised probation,

and was ordered to pay a $2,000.00 fine. Bennett tested positive for

methamphetamine, amphetamine, and opiates following the crash in which his

vehicle collided with a truck, killing Bennett’s passenger. Id. This court noted that

Bennett was a first felony offender at the time of his plea but had a pending drug

possession charge when the accident occurred. Id.

Although Defendant largely focuses on Gordon and Bennett, jurisprudence

includes other instances in which the trial court imposed less than the maximum

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sentence permitted by La.R.S. 14:32.1. See State v. Joseph, 20-287 (La.App. 3 Cir.

5/5/21) (unpublished opinion) (2021 WL 1783537); State v. Blackwell, 13-316

(La.App. 3 Cir. 10/9/13) (unpublished opinion) (2013 WL 5539242), writ denied,

13-2600 (La. 4/11/14), 137 So.3d 1215; State v. Matt, 11-1539 (La.App. 3 Cir.

6/6/12), 91 So.3d 1252, and State v. Kotrla, 08-364 (La.App. 3 Cir. 11/5/08), 996

So.2d 1224. Jurisprudence further contains cases resulting in thirty-year sentences

but which involve perpetrators demonstrating greater intoxication than Defendant or

who, unlike Defendant, had criminal histories. See, e.g., State v. Deville, 11-88

(La.App. 3 Cir. 10/5/11), 74 So.3d 774, writ denied, 11-2450 (La. 3/30/12), 85 So.3d

114 and State v. Landry, 09-260 (La.App. 3 Cir. 11/4/09), 21 So.3d 1148, writ

denied, 09-2577 (La. 5/21/10), 36 So.3d 229.

Defendant does not address the fact that each of the above cases shares the

fact that the reviewing panel upheld the sentence imposed by the trial court. None of

the panels found it appropriate to reduce the sentence imposed by the trial court.

Instead, each case reflects the fact-intensive nature of sentencing and the deference

afforded the trial court’s shaping of a sentence given the unique facts and

circumstances of each case and each offender.

On this point, the supreme court has repeatedly explained “that sentence

review under the Louisiana constitution does not provide an appellate court with a

vehicle for substituting its judgment for that of a trial judge as to what punishment

is more appropriate in a given case.” State v. Savoy, 11-1174, p. 5 (La. 7/2/12), 93

So.3d 1279, 1283 (citing State v. Walker, 00-3200 (La. 10/12/01), 799 So.2d 461;

State v. Cook, 95-2784 (La. 5/31/96), 674 So.2d 957, cert. denied, 519 U.S. 1043,

117 S.Ct. 615 (1996); State v. Humphrey, 445 So.2d 1155 (La.1984)).

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That standard is reflected in LeBlanc, 41 So.3d 1168, wherein the supreme

court reversed this court’s determination that LeBlanc’s thirty-year sentence for

vehicular homicide was excessive. The supreme court reinstated the thirty-year

sentence, explaining that the legislature has steadily increased punishment for the

offense of vehicular homicide reflecting the dangers posed by intoxicated drivers.

Id. That evolving legislation has provided broader sentencing ranges and increased

opportunities for trial courts “to exercise their discretion in individualizing

punishment to the particular defendant and the particular circumstances of the case,

within the general parameter … that sentences at or near the maximum should

ordinarily apply only to the most blameworthy offenders committing the most

serious violations of the described offense.” Id. at 1173. The supreme court has

explained that “[w]hile comparison with similar cases, ‘is useful in itself and sets the

stage,’ the focus of sentence review remains on the character and propensities of the

offender and the circumstances of the offense.’” Id. (quoting State v. Telsee, 425

So.2d 1251, 1254 (La.1980)).

Mindful of that directive, we maintain Defendant’s sentence. The trial court’s

careful consideration of Defendant’s character and the circumstances surrounding

this offense are seen in the reasons for ruling at both resentencing and in its denial

of the Motion to Reconsider Sentence. Despite Defendant’s characterization, the

sentence imposed is not the maximum permitted by La.R.S. 14:32.1. The trial court

instead suspended seven years and ordered that only three years be served without

benefit of probation, parole, or suspension of sentence. This reduction in the

minimum period of incarceration is advantageous to Defendant since La.R.S.

14:32.1(B) required that five years be served without those benefits due Defendant’s

blood alcohol level of .173. As the trial court recognized, Defendant has the potential

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for early release from imprisonment with good behavior, an appropriate

consideration in shaping the sentence. See LeBlanc, 41 So.3d 1168. Neither did the

trial court impose the mandatory fine required by 14:32.1(B).

While Defendant focuses on his lack of criminal history, the trial court

considered his lack of arrest record but placed a larger emphasis on the seriousness

of Defendant’s offense and the implicit disregard for the safety of others. His actions

resulted in the death of the victim, imperiled others in the victim’s running group,

and as the trial court expressed, the offense “wasn’t just a minor error in judgment.

This was a very serious, serious thing that happened with very serious

consequences.” The record supports those findings.

We accordingly find that this assignment lacks merit.

DECREE

For these reasons, Defendant’s sentence is affirmed.

AFFIRMED.

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