State of Louisiana v. Sandy Nicole Deleon

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

23-779

STATE OF LOUISIANA

VERSUS

SANDY NICOLE DELEON

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 14643-VC-2019
HONORABLE DAVID ALEXANDER RITCHIE, DISTRICT JUDGE

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D. KENT SAVOIE
JUDGE

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Court composed of Elizabeth A. Pickett, D. Kent Savoie, and Jonathan W. Perry,
Judges.

VACATED AND REMANDED.

G. Paul Marx
Louisiana Appellate Project
Post Office Box 82389
Lafayette, Louisiana 70598-2389
(337) 237-2537
COUNSEL FOR DEFENDANT/APPELLANT:
Sandy Nicole Deleon

Stephen C. Dwight
District Attorney
Fourteenth Judicial District
John E. Turner
Assistant District Attorney
Post Office Box 3206
Lake Charles, Louisiana 70601
(337) 437-3400
COUNSEL FOR APPELLEE:
State of Louisiana

SAVOIE, Judge.

Defendant, Sandy Nicole Deleon, was charged by bill of information with

vehicular homicide while having a blood alcohol concentration of .08% or more, in

violation of La.R.S. 14:32.1. After initially entering a plea of not guilty, Defendant

subsequently pled guilty to the charged offense on November 29, 2021. On

February 7, 2022, she was sentenced to thirty years in the Department of

Corrections with all but fifteen years suspended. The first five years were to be

served without the benefit of probation, parole, or suspension of sentence. Upon

release from prison, Defendant was to be placed on probation for five years,

subject to the general terms and conditions of La.Code Crim.P. art. 895 and the

following special conditions:

-$2,000 fine plus court costs
-30 eight-hour days of community service
-not drive any vehicle without an ignition interlock device
-not drive any vehicle without a valid driver’s license
-no consumption of alcoholic beverages
-submit to random drug and alcohol screens
-“subject to electronic monitoring if determined to be by [her]
probation officer”
-pay a $60.00 monthly supervision fee and an $11.00 monthly
technology fee
-undergo an evaluation by the Office of Behavioral Health to
determine the nature and extent of any substance abuse or use disorder
and participate in any necessary treatment
-complete a driver improvement program
-complete five Victim Impact Panels, one for each year of probation
-pay $500.00 fee to the Public Defender’s Office

On February 14, 2022, the trial judge clarified the sentence in open court.

He changed the thirty eight-hour days of community service to 480 hours. He also

reduced the term of supervised probation from five to three years and changed the

number of panels to be completed to match the number of years of probation. The

trial judge further stated, in pertinent part:

But what’s important about that is I want you, in this type of case, to
do as many of those hours as possible, a minimum, doing prevention
work. Talking to kids, talking - - you know, talking to other types of
groups, talking to maybe college students, talking to maybe
fraternities and sororities, talking to maybe civic groups, talking to
high school kids, talking to drivers ed programs. There’s a lot of
people that you can talk to to tell them - - tell them what happened.

....

And so I want you to use as much of that community service time - -
in fact, I’d like for you to use all of it, okay. But of course, I do allow
you to do some community service through church attendance, you
know. If you bring your kids with you, you know, I’ll give you extra
time, extra credit for, you know, bringing your children with you to
church. So you can get community service that way as well. But the
thing is, I want you to use - - I want you to do, if possible, 75 percent
of that time - - of those community service hours doing prevention. I
want you to seek out groups to go talk to to say, hey, you know, this
stuff is real, it happens.

....

And of course on the other side of it, I’m not - - it looks like - -
I thought I was able to give you five years of supervised probation,
but it looks like I can only give you three. But what I am going to do
is I’m going to say this up front, that I - - I want the records to reflect
and the minutes to reflect that I, because I can only give you three
years instead of five years, that I do not intend for there to be any - -
you know, any compliance credit given, because I think three years of
supervised probation is not any kind of a lengthy - - I mean, I don’t
think that’s unreasonable under the circumstances to - - to do that.
And you’re going to need that time to get all that community service
done anyway.

Defendant now appeals her sentence.

FACTS

The factual basis provided at the guilty plea revealed that on or about March

17, 2019, state troopers responded to a two-vehicle crash on Interstate 10

westbound near milepost 15 in Calcasieu Parish. Upon their arrival, the officers

saw that a red Dodge Charger had crashed into a barrier, and a Ford pickup truck

was in the ditch on the side of the road. Through witness accounts at the scene,

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and the later admission by Defendant, officers learned that Defendant was the

driver of the Dodge Charger. When the driver of the vehicle in front of her hit

their brakes, Defendant rear-ended the vehicle. Officers noticed an odor of alcohol

on Defendant’s breath and slurred speech and asked her if she had been drinking.

She indicated that she had consumed several shots of alcohol, later admitting to

having consumed at least six. She performed poorly on standardized field sobriety

tests, and a subsequent breath test at the station indicated her blood alcohol content

was .192. This accident resulted in the death of the victim, Ricky Broussard.

ERRORS PATENT

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

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

errors patent, one of which was raised by Defendant on appeal.

In defense counsel’s brief to this court, although not assigned as a separate

error, he contends that the community service element of Defendant’s sentence is

indeterminate in that the judge stated that doing 75% of the community service

hours might be sufficient. Within the body of the excessive sentence assignment

of error, defense counsel contends:

However, the judge set a hearing on February 14th . . . that
changed the community service from 30 to 480 hours, with at least
75% to be “speaking to groups about what happened to her in this
case”. The MADD Victim Impact Panel assignment was reduced
from 5 to 3 based on the offense. . . . There are no particulars about
this part of the sentence, no procedures, no referral to nonprofit
sources of community service, and no clear direction on how to
comply. . . . Certainly intervention is important, but there are
questions about elements of the sentence. Particularly community
service and public speaking, which the court has no structure for and
which as a result may not be practical or possible.

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Defendant is correct in her assertion that the trial court did not specify how

much of the community service was required to be spent doing prevention. The

court stated, in pertinent part:

But what’s important about that is I want you, in this type of case, to
do as many of those hours as possible, a minimum, doing prevention
work. . . . And so I want you to use as much of that community
service time - - in fact, I’d like for you to use all of it, okay. . . . But
the thing is, I want you to use - - I want you to do, if possible, 75
percent of that time - - of those community service hours doing
prevention.

Additionally, although not raised by Defendant on appeal, another part of the

community service order is also indeterminate: “[i]f you bring your kids with you,

you know, I’ll give you extra time, extra credit for, you know, bringing your

children with you to church. So you can get community service that way as well.”

It is unclear how much “extra time, extra credit” toward her community service

hours will be given to Defendant if she brings her children to church with her.

Addressing a different error, this court has required remand for resentencing

when there is indeterminacy regarding conditions of probation:

We find that the trial court’s imposition of 250 hours of
community service without stating whether it applied to one count or
both counts rendered the sentences indeterminate. This court
addressed a similar indeterminate sentence in State v. Williamson, 22-
657, pp. 9-12 (La.App. 3 Cir. 4/5/23), 364 So.3d 572, 578-80, writs
denied, 23-628, 23-643 (La. 11/8/23), 373 So.3d 68, 373 So.3d 68:

The sentences imposed are indeterminate because
the trial court ordered the payment of restitution “to the
victim in this matter” without specifying to what count or
counts the restitution order applied.

....

In State v. Pope, 19-670, (La.App. 3 Cir. 6/10/20),
299 So.3d 161, writ denied, 20-852 (La. 10/6/20), 302
So.3d 532, this court found the trial court imposed
indeterminate sentences when it failed to specify on
which count or counts it imposed several terms of the

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sentence, including restitution. See also State v. Duhon,
20-513 (La.App. 3 Cir. 5/26/21), 322 So.3d 326, where
this court found the defendant’s sentences were
indeterminate because the trial judge failed to state on
which count or counts restitution was imposed.

We further note that in State v. Brown, 19-771 (La.
10/14/20), 302 So.3d 1109, the supreme court announced
a new rule concerning indeterminate sentences. The
indeterminate sentence in Brown involved the trial
court’s failure to specify whether the concurrent, sixty-
year terms of imprisonment for three counts of armed
robbery with a firearm included the mandatory five-year
sentence enhancement required by La.R.S. 14:64.3(A).
The court of appeal vacated the sentences and remanded
for resentencing; however, the supreme court found error
by the court of appeal and stated the following regarding
the purpose of La.Code Crim.P. art. 879’s requirement
that determinate sentences be imposed:

The court of appeal erred in finding
the sentences were indeterminate as an error
patent. The 1926 indeterminate sentence law
provided that, except as to certain
enumerated offenses, the sentence imposed
should include both a minimum and a
maximum term. See 2916 La. Acts 222.
Under this law, after serving the minimum
term of his sentence a prisoner was eligible
for parole. To remedy confusion over the
correct interpretation and application of this
law, Article 529 of the Code of Criminal
Procedure was amended in 1942 to require
determinate sentences of fixed terms of
imprisonment. See 1942 La. Acts 46.

At present, [La.Code Crim.P.] art. 879
continues to require that a term of
imprisonment be a fixed number of years by
providing that “[i]f a defendant who has
been convicted of an offense is sentenced to
imprisonment, the court shall impose a
determinate sentence.” This article is
routinely misapplied by the intermediate
appellate courts to find determinate, fixed
term sentences to be indeterminate when a
district court has not specified that five years
of a fixed sentence result from the firearms
enhancement provision of La.R.S.

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14:64.3(A). The intermediate appellate
courts vacate such sentences in errors patent
review. [Citations omitted.]

As a rule of thumb, however, if it is
possible to calculate a parole eligibility or
full-term release date, then the sentence is
not indeterminate. While it is possible that
defendant’s sentences did not include the
firearms enhancement and were therefore
illegally lenient, they were not
indeterminate. Furthermore, the State did
not complain on appeal that the sentences
were illegally lenient. Therefore, the court of
appeal erred in finding as an error patent that
they were indeterminate and in vacating
them, absent any complaint by the State that
the district court failed to apply the
mandatory firearms enhancement.

Id. at 1110 (alteration in original)(emphasis in original).

Brown, however, does not address the problems
that may arise in the present case if the sentences were
allowed to remain as they were imposed. For instance,
the trial court's failure to specify on which count or
counts restitution is imposed could be problematic in the
event one of the counts is vacated. Depending on which
count is vacated, it may be unclear as to whether the
restitution order is vacated as well. Additionally, in
Duhon, 322 So.3d 326, this court found the sentences
were indeterminate despite counsel’s argument that the
trial court’s intent could be discerned from the record.
As this court did in Pope and Duhon, we hereby
vacate the sentences imposed, remand for the imposition
of determinate sentences, and specifically instruct the
trial court to specify on which count or counts the
restitution order applies.

We find that the present case is also distinguishable from
Brown. In addition to the problem of not knowing to which count the
community service hours would apply if one of Defendant’s
convictions were vacated, it is also unclear in this case whether the
trial court intended for Defendant to complete a total of 250 hours of
community service or complete a total of 500 hours of community
service (250 on each count). The trial court stated that it wanted
Defendant to complete a heavy amount of community service. The
trial court further ordered the probation periods to run consecutively.
Thus, the trial court may have intended for Defendant to complete 500

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hours over the six-year period of probation. Since Defendant’s failure
to fulfill a condition of probation could result in the revocation of her
probation, it is important for Defendant to be aware of the
requirements.

Such an error typically requires that the sentence be vacated and
the matter remanded for resentencing. As discussed below, we find
merit to the State’s assignment of error regarding the sentence
imposed for attempted second degree murder, requiring that sentence
to be vacated and remanded for resentencing. Thus, the error patent
regarding the indeterminate condition of probation is moot as it
pertains to the attempted second degree murder sentence. Since the
State does not challenge the sentence imposed for aggravated battery,
however, the error patent is not moot as to that sentence. Accordingly,
we vacate the sentence for aggravated battery as indeterminate and
remand the matter for resentencing on that count. If probation is
imposed on one or both counts, we instruct the trial court to specify
whether any conditions imposed apply to one or both counts.

State v. Portalis, 23-395, pp. 5–7 (La.App. 3 Cir. 12/6/23), 375 So.3d 1113, 1119–

21 (alterations in original) (footnote omitted).

Accordingly, Defendant’s sentence is vacated, and the case remanded for

resentencing for correction of the indeterminacies discussed above.

Defendant additionally contends that the Uniform Commitment Order is not

accurate as it erroneously stated that the amount of time to be served without

benefit of parole, probation, or suspension of sentence is five years instead of

three. The State correctly notes that the trial court changed the probationary term

to three years, not the number of years to be served without benefits. Accordingly,

we find no merit in this claim.

As for defense counsel’s contention on appeal that there are no procedures

or referral to nonprofit sources of community service, clear direction on how to

comply, nor court structure for community service, we are unsure of what error she

is alleging the trial court committed. The trial judge indicated that the prevention

work he included as part of her community service included talking to kids,

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groups, college students, fraternities and sororities, civic groups, talking to driver’s

education programs. Accordingly, this contention has no merit.

ASSIGNMENT OF ERROR

Defendant contends the trial court imposed an excessive sentence where it

did not sufficiently consider her military service, lack of prior offenses, and

remorse for the accident. As this assignment of error concerns the excessiveness

of the term of the sentence imposed, it is pretermitted by our determination in the

errors patent section above.

DECREE

Defendant’s sentence is vacated, and the case is remanded for resentencing.

VACATED AND REMANDED.

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