Opinion
NO. 2023-KA-0591
04-17-2024
STATE of Louisiana v. Tashonty C. TONEY
Jason Rogers Williams, District Attorney, Orleans Parish, Brad Scott, Chief of Appeals, 619 S. White Street, New Orleans, LA 70119, COUNSEL FOR STATE/APPELLEE Sherry Watters, LOUISIANA APPELLATE PROJECT, P. 0. Box 58769, New Orleans, LA 70158, COUNSEL FOR DEFENDANT/APPELLANT
APPEAL FROM CRIMINAL DISTRICT COURT ORLEANS PARISH, NO. 545-469, SECTION "A", Honorable Simone A. Levine
Jason Rogers Williams, District Attorney, Orleans Parish, Brad Scott, Chief of Appeals, 619 S. White Street, New Orleans, LA 70119, COUNSEL FOR STATE/APPELLEE
Sherry Watters, LOUISIANA APPELLATE PROJECT, P. 0. Box 58769, New Orleans, LA 70158, COUNSEL FOR DEFENDANT/APPELLANT
(Court composed of Chief Judge Terri F. Love, Judge Rosemary Ledet, Judge Nakisha Ervin-Knott)
Judge Rosemary Ledet
1This is the second appeal in this criminal case by Defendant-Tashonty Toney—of his sentences. Mr. Toney pled guilty to a sixteen-count indictment; we group the sixteen counts into the following five categories:
(i) Count 1: La. R.S. 14:100(0(1), hit and run driving-no death or serious bodily injury;
(ii) Counts 2 and 3: La. R.S. 14:32.1(C), Vehicular homicide BAC greater than 0.20;
(iii) Counts 4 to 9: La. R.S. 14:39.2, first degree vehicular negligent injuring;
(iv) Count 10: La. R.S. 14:39.1, vehicular negligent injuring; and
(v) Counts 11 to 16: La. R.S. 14:100(0(1), hit and run driving-no death or serious bodily injury.
For ease of discussion, the same misdemeanor offense as in category "(i)"—La. R.S. 14:100(C)(1)—is repeated in category (v).
La. R.S. 14:32.1(B) provides, in part, that "[i]f 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."
La. R.S. 14:32.1(C) states that "[w]hoevever 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.
Following the first sentencing hearing, the district court sentenced Mr. Toney to the maximum sentence on each count and ordered the sentences run consecutively. As a result, the district court initially imposed a 91-year cumulative sentence.
2In the first appeal, this Court vacated the sentences and remanded for a second sentencing hearing at which Mr. Toney would be given the opportunity to present mitigating evidence. State v. Toney, 21-0131 (La. App. 4 Cir. 11/3/21), 331 So.3d 398 ("Toney One"), writ denied, 21-01805 (La. 1/26/22), 332 So.3d 77.
On remand, following the second sentencing hearing, the district court again sentenced Mr. Toney to the maximum sentence on each count. But, the district court made the following three changes to the conditions on those sentences: (i) ordered that all but two of the categories of sen- fences run concurrently, which resulted in a 65-year cumulative sentence ; (ii) ordered that each of the consecutive 30-year sentences for negligent homicide be served without benefit of probation, parole, or suspension of sentence only for the first 15 years; and (iii) ordered that all fines, except for a $1,000 fine as to Count 10, be waived. This second appeal followed.
The two counts of vehicular homicide (Counts 2 and 3) were ordered to run consecutively to each other— because two of the victims died, La. R.S. 14:32.1(D) mandated this condition; and Count 2 was ordered to run consecutive to Counts 4 to 9: the first degree vehicular negligent injuring counts. As to Count 10, the vehicular negligent injuring count, the district court stated: "[t]hat sentence did run consecutively previously, but this time the Court will run that 6 month misdemeanor sentence concurrently."
The sentencing transcript showed the trial court failed to specify the statutory time that the sentences were to be served without benefits. Accordingly, the matter was remanded for resentencing solely that purpose. Benavides, 54,265, p. 27, 336 So.3d at 126.
Here, as in Toney One, the district court imposed a legal, maximum sentence within the range provided by the applicable criminal statutes on each count. As we noted in Toney One, 21-0131, p. 7, n.2, 331 So.3d at 402, these statutes provide the following sentencing ranges:
La. R.S. 14:100(C)(1)(b) provides in pertinent part, "[w]hoever commits the crime of hit-and-run driving where there is no death or serious bodily injury shall be fined not more than five hundred dollars, imprisoned for not less than ten days nor more than six months, or both…".
La. R.S. 14:39.1(C) provides, "[w]hoever commits the crime of vehicular negligent injuring shall be fined not more than one thousand dollars or imprisoned for not more than six months, or both."
La. R.S. 14:39.2(D) provides, "[w]hoever commits the crime of first degree vehicular negligent injuring shall be fined not more than two thousand dollars or imprisoned with or without hard labor for not more than five years, or both."
La. R.S. 14:32.1 provides in relevant parts 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. … 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. …
(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.
(D) Notwithstanding the provisions of Code of Criminal Procedure Article 883, if the offense for which the offender was convicted pursuant to the provisions of this Section proximately or directly causes the death of two or more human beings, the offender shall be sentenced separately for each victim, and such sentences shall run consecutively.
At the time of the defendant’s offense in Ellis, 2010-1019, 67 So.3d 623, the imposition of consecutive sentences for multiple vehicular homicides, although available, was not statutorily mandated.
3 STATEMENT OF THE CASE
This Court, in Taney One, summarized the facts of this case; we do not repeat them all here. Simply stated, the incident in question occurred on the night of March 2, 2019, following the Endymion Mardi Gras parade. The incident occurred when Mr. Toney operated his vehicle at an excessive rate of speed—80 mph—while intoxicated. His vehicle struck seven bicyclists, who were legally riding in a bike lane. Two of the bicyclists—Sharee Walls and David Hynes—were pronounced dead on the scene; the other seven bicyclists suffered various degrees of injuries. Mr. Toney’s vehicle also struck several other vehicles. Ultimately, Mr. Toney’s vehicle came to rest on the neutral ground. He exited his vehicle and fled on foot. Witnesses retained Mr. Toney two blocks away, and the 4police arrested him. Thereafter, Mr. Toney was charged with 16 counts, summarized at the outset of this opinion. He pled guilty to all counts.
Ms. Walls’ first name is spelled differently in the indictment than it is spelled throughout the transcripts.
La. R.S. 15:574.4(B) states in part that ‘[n]otwithstanding any other provisions of law to the contrary, a person convicted of a crime of violence and not otherwise ineligible for parole shall serve at least sixty-five percent of the sentence imposed, before being eligible for parole."
Following a two-day sentencing hearing, held in October 2019, the district court imposed a 91-year cumulative sentence, which was broken down into the five categories as follows:
• Count 1: hit and run driving-no death or serious bodily injury: six months in Orleans Parish Prison ("OPP"), to run concurrent with any and all other sentences;
• Counts 2 and 3: La. R.S. 14:32.1(C), Vehicular homicide BAG greater than 0.20: thirty years at hard labor in the Department of Corrections ("DOC") on each count, without benefit of probation, parole, or suspension of sentence, to run consecutive to each other and to all other sentences; and a fine of $2000 on each count;
• Counts 4 to 9: first degree vehicular negligent injuring: five years at hard labor in the DOC on each count, with the sentences for each count to run consecutive to each other and to the previous sentences; and a fine of $2000 on each count;
• Count 10: vehicular negligent injuring: six months in OPP, to run consecutive to Counts 11-16; and a fine of $1000; and
• Counts 11 to 16: hit and run driving- no death or serious bodily injury: six months in OPP on each count, to run concurrent with each other and with any and all other sentences.
Mr. Toney does not challenge either the hit-and-run driving or the vehicular negligent injuring sentences in this appeal. Accordingly, appeal of those sentences is deemed abandoned. Thus, only Counts 2 and 3, and Counts 4 to 9 are before us on appeal.
Mr. Toney filed a motion to reconsider sentence, which the district court denied.
In connection with the motion to reconsider, in November 2019, four of the non-homicide victims submitted a letter to the district court in support of reconsideration and a reduced sentence (the "November 2019 Letter"). The letter was written by three of the first degree negligent injuring victims and the victim named in Count 10, Gabriel Alaino. These victims requested a reduction of Mr. Toney’s sentence. In their letter, these victims cited several mitigating factors—Mr. Toney's decision to plead guilty; his demonstration of remorse; his commitment to his family; and their belief that without a driver’s license, Mr. Toney did not pose a lasting threat to society. In their letter, these victims stated that "[Mr. Toney's] irresponsible and thoughtless actions gruesomely killed two beautiful souls and injured many others, and for that he should spend a significant amount of time in prison and never be allowed to drive a motor vehicle." These victims opined that "Mr. Toney should be required to serve 15-25 years before the consideration of parole." The victims also suggested the 5-year sentences for first degree negligent injuring should run concurrently with the vehicular homicide sentences. In exchange for such a reduced sentence, the victims asked that Mr. Toney "be banned for life from ever obtaining a driver’s license."
5In Toney One, this Court observed that it could not adequately review Mr. Toney’s arguments regarding the excessiveness of his sentence; thus, this Court vacated Mr. Toney’s sentences and remanded to the district court for a second sentencing hearing. In so doing, this Court instructed that the district court "state the considerations taken into account and the factual basis found in the record for (1) imposing a maximum sentence for any count of the conviction, (2) imposing consecutive sentences, and (3) restricting benefits on sentences." Toney One, 21-0131, p. 15, 331 So.3d at 407-08.
On remand, the district court, in December 2022, conducted a second sentencing hearing. At the hearing, the State introduced the record and exhibits from the first sentencing hearing. The State also submitted, among other things, Mr. Toney’s 2016 DWI arrest citation (the "2016 DWI"). Mr. Toney introduced character letters from family, friends, and co-workers; and the November 2019 Letter written by four of the non-homicide victims.
At the resentencing hearing, both sides called multiple witnesses. The State’s witnesses included the homicide victims’ parents, family members, and friends. The State’s witnesses testified regarding the devastating impact of the homicide victims’ deaths and those victims’ beloved character. Mr. Toney offered testimony from his mother, aunts, and work supervisor as to his otherwise good character and his roles as caretaker for his mother—who was diagnosed with cancer in 2017—and as a father figure to a nephew and nieces. Mr. Toney’s 6witnesses expressed their condolences to the victims. Several of his witnesses expressed their willingness to assist Mr. Toney in the event he is released from prison.
At the hearing, Mr. Toney testified and read a statement that he had prepared expressing his remorse and his regret. He did not contest the 2016 DWI. He testified that he fulfilled all the requirements associated with the 2016 DWI, including taking all the required courses—attendance at a Mothers Against Drunk Driving ("MADD") course was required; attendance at Alcoholics Anonymous ("AA") was not required, He admitted that he had an alcohol problem in 2019. He explained that, on the day of the incident, March 2, 2019, he was celebrating his birthday and that he drank a lot on the parade route. He admitted he made a conscious, reckless decision to drink that day and that he was drunk when he made the decision to drive. He stated that he did not know he was driving 80 mph; rather, he testified that he "didn’t drive 80 miles an hour on purpose. I didn’t know that I was going that fast at all." Likewise, he stated that he did not recall driving in the bike lane. He stated that he blacked out. He stated that he fled because he was spooked and scared. But, he took full responsibility for his actions.
During cross-examination by the State regarding the phone call with his sister following the first sentencing hearing in which he and his sister were laughing and his sister called Ms. Walls' parents of nasty names, Mr. Toney testified that he never responded to his sister's name-calling and that he did not chastise his sister because he knew she "was wound up," so he just changed the conversation.
Following the second sentencing hearing, the district court sentenced Mr. Toney to a 65-year cumulative sentence. Broken down into the five categories, the sentence imposed was as follows:
• Count 1: hit and run driving-no death or serious bodily injury: six months in OPP, to run concurrent with any and all other sentences.
7• Counts 2 and 3: vehicular homicide BAC greater than 0.20: On Count 2, Ms. Walls, thirty years at hard labor in the DOC for fifteen years without benefit of parole, probation or suspension of sentence; and this sentence will run consecutive to the previous sentences of the felonies—Counts 4 to 9 first degree vehicular negligent injuring; on Count 3, Mr. Hynes, thirty years at hard labor in the DOC without benefit of probation, parole, or suspension of sentence for the first fifteen years; and this sentence will run consecutive to the sentence in Count two, but concurrent with all other sentences. • Counts 4 to 9: first degree vehicular negligent injuring: five years at hard labor in the DOC on each count to run concurrent with any and all other sentences;
By statute, Counts 2 and 3 are designated crimes of violence since Mr. Toney’s BAC was greater than 0.20. See La. R.S. 14:32.1(C).
• Count 10: vehicular negligent injuring: six months in the OPP to run concurrent with any and all other sentences and a $1,000 fine.
•Counts 11 to 16: hit and run driving- no death or serious bodily injury: six months in the OPP, to run concurrent with any and all other sentences.
Mr. Toney filed a motion to reconsider sentence, which the district court denied. This second appeal followed.
DISCUSSION
In a single assignment of error, Mr. Toney asserts that his felony sentences are excessive for various reasons. According to Mr. Toney, under the circumstances surrounding this incident and the circumstances personal to him, the maximum (or near maximum) sentences are an abuse of discretion, excessive, and cruel and unusual punishment. Before addressing this argument, we first 8summarize the jurisprudential principles governing excessive sentence review. Then, we apply the principles here.
Mr. Toney does not challenge the sentences on the misdemeanor counts—Count 1, and Counts 11 to 16, the hit-and-run driving sentences; and Count 10, the vehicular negligent injuring sentence—in his appeal. Accordingly, appeal of those sentences is deemed abandoned and shall not be reviewed.
Mr. Toney subdivides his excessive sentences argument into the following four parts:
a) Where consecutive sentences are mandated, that factor must be considered in determining the terms of each sentence.
b) The court's order that half of the sentences be served without parole is excessive.
c) The identical sentences for first degree negligent injuring do not consider the varying degrees of injuries.
d) The maximum sentences are not supported by the record where the district court was required to consider mitigating circumstances and lesser sentences under State v. Dorthey, 623 So.2d 1276 (La. 1993).
Excessive Sentence Review Principles
[1–3] Both the Eighth Amendment of the United States Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of cruel and unusual punishment; the Louisiana Constitution additionally prohibits excessive punishment. State v. Wilson, 14-1267, p. 23 (La. App. 4 Cir. 4/29/15), 165 So.3d 1150, 1165. "A sentence is constitutionally excessive if it makes no measurable contribution to acceptable goals of punishment, is nothing more than the purposeless imposition of pain and suffering and is grossly out of proportion to the severity of the crime." State v. Ambeau, 08-1191, p. 9 (La. App. 4 Cir. 2/11/09), 6 So.3d 215, 221. "A sentence is grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice." State v. Weaver, 01-0467, p. 11 (La. 1/15/02), 805 So.2d 166, 174.
[4–6] The excessiveness of a sentence is a question of law; a reviewing court will not set aside a sentence as excessive absent a manifest abuse of discretion by the sentencing judge. See State v. Scott, 23-0022, p. 17 (La. App. 4 Cir. 8/30/23), 372 So.3d 42, 55-56, writs denied, 23-01317, 23-01318 (La. 3/19/24), 381 So.3d 707. As this Court has observed, "[o]ur sentence review should strive only to correct 'abuses of sentencing power’ by the district judge, and not to attempt to impose sentences that we deem more appropriate." 9 State v. Hamdalla, 12-1413, p. 16 (La. App. 4 Cir. 10/2/13), 126 So.3d 619, 627 (internal citation omitted). Stated otherwise, "the relevant question is not whether another sentence might have been more appropriate but whether the trial court abused its broad sentencing discretion." State v. Boudreaux, 11-1345, p. 5 (La. App. 4 Cir. 7/25/12), 98 So.3d 881, 885 (citation omitted).
[7] The jurisprudence is well-settled that a two-pronged analysis applies in reviewing excessive sentence claims. State v. Smith, 11-0664, pp. 23-24 (La. App. 4 Cir. 1/30/13), 108 So.3d 376, 390. First, we must determine if the district court considered the La. C.Cr.P. art. 894.1 sentencing guidelines. Smith, 11-0664, p. 23, 108 So.3d at 390. This Court has observed that "[o]ur purpose is not to enforce mechanical compliance by a sentencing judge [with La. C.Cr.P. art. 894.1], ‘but to ensure that there is a factual basis for the sentence imposed." Id. (citation omitted).
[8] If the appellate court finds that the trial judge has adequately complied with the La. C.Cr.P. art. 894.1 sentencing guidelines, the appellate court must then, under the second prong of the analysis, "determine whether the defendant’s sentence was tailored to both the severity of his crime and his personal situation." Smith, 11-0664, p. 24, 108 So.3d at 390. Stated differently, we must determine "whether the sentence imposed is too severe in light of the particular defendant and the circumstances of the case, keeping in mind that maximum sentences should be reserved for the most egregious offenders." State v. Dillion, 23-0453, p. 4 (La. App. 4 Cir. 11/17/23), 377 So.3d 820, 823 (citation omitted); see also State v. Quebedeaux, 424 So.2d 1009, 1014 (La. 1982) (observing that "maximum sentences are reserved for cases involving the most serious violations of the charged offense and for the worst kind of offender").
[9–13] 10In reviewing a maximum sentence, courts sometimes engage in "a comparator" review of comparable sentences imposed in, other cases. Hamdalla, 12-1413, pp. 19, 126 So.3d at 629. A comparator review "is useful in itself and sets the stage for … inquiry into the nature of the offender and the offense." State v. Telsee, 425 So.2d 1251, 1254 (La.1983). But, "the focus of sentence review remains on the character and propensities of the offender and the circumstances of the offense." State v. LeBlanc, 09-1355, p. 10 (La. 7/6/10), 41 So.3d 1168, 1173. A comparator review, thus, is only to determine if the district court abused its broad sentencing discretion. Hamdalla, 12-1413, pp. 19-20, 126 So.3d at 629
"A comparator is any of various instruments for comparing a measured property of an object with a standard." Hamdalla, 12-1413, p. 19, 126 So.3d at 629. In the excessive sentence review context, a comparator includes "factors such as eligibility for parole, probation, and suspension of sentence." Id.
[14–16] In engaging in an excessive sentence review, three general principles are pertinent. First, "great weight must be given to [the district court’s] factual characterizations of the aggravating and mitigating circumstances justifying more severe punishment." State v. Sepulvado, 367 So.2d 762, 767 (La. 1979). Second, an appellate court "shall not set aside a sentence for excessiveness if the record supports the sentence imposed." La. C.Cr.P. art. 881.4(D). Third, "a remand for resentencing is appropriate only when ‘there appear[s] to be a substantial possibility that the defendant’s complaints of an excessive sentence ha[ve] merit.’ " State v. Soraparu, 97-1027 (La. 10/13/97), 703 So.2d 608 (quoting State v. Wimberly, 414 So.2d 666, 672 (La. 1982)). Recapping, appellate courts apply a two-pronged analysis to address excessive sentence claims. The first prong is whether the district court adequately considered the La. C. Cr. P. art. 894.1 sentencing guidelines. 11 Dillion, 23-0453, p. 3, 377 So.3d at 823. The second prong is whether the sentence is warranted based on the facts established by the record. Id. We now turn to the application of these principles to this case.
Prong One—Compliance with La . C.Cr.P. art. 894.1
Complying with this Court’s remand instructions, the district court provided a detailed analysis and documented its consideration of the La. C.Cr.P. art. 894.1 sentencing guidelines in imposing the sentences. Multiple pages of the transcript from the second sentencing hearing, as the State points out, are taken up by the district court’s articulation of the factual considerations on which the court based the sentences it imposed.
As noted elsewhere in this opinion, Mr. Toney only challenges the felony counts—Counts 2 and 3, and Counts 4 to 9. We, thus, confine our analysis to those counts.
On appeal, Mr. Toney challenges several of the sentencing factors the district court cited. He contends that the only aggravating factor the district court legitimately relied on was the creation of a risk to more than one person. He further contends that the other remaining factors the district court cited are not supported by the evidence and do not support the maximum sentences imposed on him. In particular, Mr. Toney challenges the district court’s finding that Mr. Toney’s actions were deliberately cruel. He contends that this finding was contrary to the district court’s later remark that there was no intent— that he did not contemplate his criminal conduct would cause or threaten serious harm. Mr. Toney also challenges the district court’s finding that bicyclists are vulnerable within the meaning of the statute. In support, he cites La. C.Cr.P. art. 894.1(B)(2), which he contends establishes that the vulnerability must be due to "extreme youth, 12advanced age, disability, or ill health," not being a bicyclist. None of these arguments is persuasive.
Mr. Toney’s first argument is based on an apparent conflict between the district court’s finding that Mr. Toney’s conduct in the commission of the offenses manifested deliberate cruelty to the victims, and the district court’s finding, as a mitigating factor, that "[Mr. Toney] did not contemplate that his criminal conduct could cause this serious harm." We conclude this conflict is insignificant. Twice in its detailed reasons, the district court mentioned a finding of deliberate cruelty to the victims. The district court’s two statements, in context, were as follows:
[First Statement:] You pled guilty and that is worth something. But you must have been extremely drunk for you not to still, even to this day tell us that you remember much of anything. You plowed through human beings like they were not there. You did not stop until your car had struck another car.
I find that the offenses were committed in a particularly heinous, atrocious and cruel manner. I think that your conduct during the commission of the offense manifested deliberate cruelty to the victims. The fact that you did not stop to provide aid, you knowingly created a risk of death or great bodily harm to more than one person. This injury and the events of those nights resulted in significant permanent injuries and significant economic loss to multiple victims and their families.
* * * [Second Statement:] And I find that the defendant’s conduct during the commission of the offense manifested deliberate cruelty to these two victims, not to mention the other seven. I find that the defendant should have known the particular vulnerability or incapability of defending themselves when they’re in a bike lane, and he is speeding on a city highway, and they’re struck while they’re lawfully in the bike lane. The offender knowingly created a risk of death and great bodily harm to more than one person. The offense resulted in a significant and permanent injury and significant economic loss to the victim and the victim’s family. I find that there are aggravating circumstances like that he hit multiple cars, that he fled from the scene, and that his blood alcohol content was higher than .20.
13The district court cited, as one of the mitigating factors it considered, factor 23—that "[t]he defendant did not contemplate that his criminal conduct would cause or threaten serious harm." La. C.Cr.P. art. 894.1(B)(23). Including this mitigation factor, at best, was a recognition that vehicular homicide was not a specific intent crime. Indeed, the district court made the following observation at the second sentencing hearing:
[T]his is not a specific intent crime or a general intent crime. It’s a negligent crime. So based on [Mr. Toney’s] negligence, two people’s lives were taken and he admits this. We normally have a sentence for someone that has committed a specific intent crime and has taken someone’s life. In this case it was recklessness. So, when you demand justice, given the death of two people and an injury for seven others, and you have Mr. Toney that has no prior criminal convictions, he has a prior criminal history. And rather shockingly that police report [for the 2016 DWI] that I read is very similar to this. This occurred in Slidell several years before this, outside a parade route in which he was speeding.
[17] Any conflict between the district court’s reliance on this mitigating factor and the district court’s finding that Mr. Toney’s conduct on the date of the offense manifested deliberate cruelty to the victims—repeated twice in the reasons—is insignificant. The circumstances of the crime here were horrific. The crime resulted in scenes of traumatic destruction, and the carnage it created was unimaginable. The crime resulted in the deaths of two bicyclists, the injury of seven others, and the potential harm to countless others.
[18] Nor do we find merit to Mr. Toney’s contention that the district court erred in recognizing the vulnerability of bicyclists as an aggravating factor. A similar aggravating factor was cited in State v. McKinney, 23-162 (La. App. 3 Cir. 10/4/23), 372 So.3d 957. There, the appellate court emphasized that the defendant’s actions in driving while intoxicated resulted not only in the death of one victim—a runner—but also "imperiled others in the victim’s running group…." 14 McKinney, 23-162, p. 24, 372 So.3d at 970. The same is true here of the other bicyclists, who were legally riding in a bike lane. The district court’s reliance on those bicyclists’ vulnerability is not misplaced.
In addressing sentencing guidelines, the Louisiana Supreme Court has observed that the factual considerations a district court must consider include "the defendant’s personal history, his prior criminal record, the seriousness of the offense, the likelihood that he will commit another crime, [and] his potential for rehabilitation through correctional services other than confinement." State v. Jones, 398 So.2d 1049, 1051-52 (La. 1981). Here, the record reflects the district court took into account these type of factual considerations in fashioning the sentences imposed on Mr. Toney.
The district court judge noted Mr. Toney’s age—35 years at time of sentencing, 32 years at time of offense; noted Mr. Toney’s prior criminal record—no prior convictions, but a prior criminal violation that was strikingly similar to this one—the 2016 DWI; noted the seriousness of the offense, killing two bicyclists, injuring seven others; noted its finding that it was likely that Mr. Toney would commit another crime; and noted his rehabilitation potential. As to the last factor, the district court observed that Mr. Toney will respond best to rehabilitation, and it would be appropriately provided while he is incarcerated.
In sum, our review of the record reflects that the district court appropriately and methodically applied the La. C.Cr.P. art. 894.1 sentencing guidelines. For all these reasons, we find the first prong of the excessive sentence analysis is satisfied. Prong Two—Sentence Warranted Based on the Facts Established by the Record
[19] Under a review to determine whether the sentence is excessive or the crime is among the most serious violations of the offense charged and the defendant is 15among the worst class of offenders, a court evaluates a trio of factors: (1) the nature of the crime; (2) the nature and background of the offender; and (3) the sentences imposed for similar crimes by the same and other courts. State v. Aguliar-Benitez, 17-361, p. 20 (La. App. 5 Cir. 12/10/18), 260 So.3d 1247, 1263 (internal footnotes and citations omitted). We separately address each of these factors.
Nature of the crimes
[20] First Degree Vehicle Negligent Injuring is a violation of La. R.S. 14:39.2, which provides for a maximum five-year sentence. Vehicular homicide is a violation of La. R.S. 14:32.1, which provides for a maximum thirty-year sentence. "The nature of the crime [of vehicular homicide] is obviously serious—it is a form of homicide. However, it is a homicide that is not based on an intentional killing." State v. Joseph, 20-287, pp. 14-15 (La. App. 3 Cir. 5/5/21) (unpub.), 2021 WL 1783537.
The Louisiana Legislature’s continual reassessment of vehicular homicide as a serious felony offense is reflected in its continual increase of the penalty range, summarized in LeBlanc, 09-1355, pp. 9-10, 41 So.3d at 1173. As the Supreme Court observed in LeBlanc, the Legislature has continually increased the sentencing range—raising the maximum sentence to fifteen years in 1989; to twenty years, with or without hard labor, in 1999; and to the current maximum of thirty years, with or without hard labor, in 2004. Id., 09-1355,p. 9, 41 So.3d at 1173. "The changes reflect the growing awareness in this state and elsewhere of the carnage caused by intoxicated drivers on the open road." Id., 09-1355, 16p. 10, 41 So.3d at 1173. The circumstances of the instant offense were horrific, and the carnage unimaginable. Nature and Background of the Offender
Other provisions reflecting enhanced penalties include that offenders with a BAC of 0.15 percent are required to serve at least five years of the sentence without benefits as opposed to three years without benefits for a lesser BAC, and an offender with a BAC of 0.20 percent shall be convicted of a crime of violence. See La. R.S. 14:32.1(B) and La. R.S. 14:32.1(C). Also, La. R.S. 15:574.4(A)(1)(b)(ii) provides, in part, that an offender convicted of a crime of violence who is otherwise eligible for parole, "shall be eligible for parole consideration upon serving sixty-five percent of the sentence imposed." Here, Mr. Toney plead guilty to having a BAC of 0.20 percent when he caused the fatal accident.
Although Mr. Toney had no prior criminal convictions, the district court found he had a prior arrest citation—the 2016 DWI. Moreover, the district court characterized the 2016 DWI as strikingly similar conduct to the instant offense—the 2016 DWI also involved drinking and speeding at a parade route.
Mr. Toney contends that his background did not qualify him as a worst offender for whom the maximum sentences are reserved. This argument, however, fails to consider the horrific nature of the offenses. The three-part test requires consideration of all the factors in making that determination of whether the maximum sentence is warranted; "[t]his analysis is cumulative and focuses on a combination of these factors." State v. Smith, 99-0606, pp. 17-18 (La. 7/6/00), 766 So.2d 501, 514.
Sentence Imposed for Similar Crimes by the Same Court and Other Courts
Mr. Toney contends that other vehicular homicide cases involving more egregious, circumstances and more egregious offenders have resulted in more lenient sentences. A similar comparator review argument was rejected in State v. McKinney, 23-162 (La. App. 3 Cir. 10/4/23), 372 So.3d 957.
17In the McKinney case, the defendant, who was driving while intoxicated, struck a pedestrian who was running with a group in the road. The defendant immediately stopped his vehicle and called for emergency assistance. The victim was transported to the hospital but did not survive. The trial court imposed a thirty-year sentence on the defendant for the one count of vehicular homicide. The trial court, however, suspended seven years of defendant’s sentence and ordered that only three years be served without benefit of probation, parole, or suspension of sentence. The defendant argued that lesser sentences had been imposed in cases involving more egregious offenders.
Rejecting the defendant’s comparator review argument, the appellate court in McKinney observed:
Defendant does not address the fact that each of the [cited] 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.
23-162, p. 21-22, 372 So.3d at 969. Concluding, the appellate court in McKinney observed that "the trial court considered [the defendant’s] 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." 23-162, p. 24, 372 So.3d at 970. As noted elsewhere in this opinion, the appellate court in McKinney emphasized that the defendant’s actions resulted not only in one victim’s death, but also "imperiled others in the victim’s running group." Id. Giving the serious nature of the crime coupled with the serious consequences, the appellate court in McKinney affirmed.
Echoing the comments of the appellate court in McKinney, we note that other than in State v. LeBlanc, 09-1355 (La. 7/6/10), 41 So.3d 1168 (which the 18Supreme Court reversed the appellate court and reinstated the district court’s sentence), and State v. Morain, 07-1207 (La. App. 3 Cir. 4/2/08), 981 So.2d 66 (which found the district court’s imposition of the maximum twenty-year sentence for vehicular homicide was excessive given that the record did not show defendant to be one of the worst offenders), no appellate jurisprudence could be found in which a reviewing court has vacated a vehicular homicide sentence as excessive. We decline to do so here. Indeed, we stress that this Court has already remanded once for resentencing in this matter.
There were multiple remands in Morain, Initially, the appellate court remanded for correction of an indeterminate and Illegally lenient sentence. State v. Morain, 06-710 (La. App. 3 Cir. 11/2/06), 941 So.2d 720. Following the first remand, the appellate court held that the district court's imposition of the maximum twenty-year sentence for vehicular homicide was excessive given that the record did not show defendant to be one of the worst offenders. State v. Morain, 07-1207 (La. App. 3 Cir. 4/2/08), 981 So.2d 66. Following the second remand, the appellate court held a 15-year sentence at hard labor, with eight years to be served without benefit of parole, probation or suspension of sentence, was not excessive. State v. Morain, 08-1546 (La. App. 3 Cir. 6/3/09), 11 So.3d 733.
In our prior opinion in Toney One, 21-0131, p. 12, 331 So.3d at 406, we engage in a comparator of prior vehicular homicide cases and observed as follows:
State v Gordon, 17-846 (La. App. 3 Cir. 3/28/18), 240 So.3d 301 (finding consecutive sentences of 18 years each, 3 years to be served without benefit, for three counts of vehicular homicide was not excessive given defendant’s history and drug abuse); State v. Lewis, 13-1588 (La. App. 4 Cir. 8/27/14), 147 So.3d 1251 (finding a sentence of 20 years for vehicular homicide, with 5 years to be served without benefits, and a concurrent sentence of 5 years for first degree vehicular negligent injuring was not excessive) State v. Morain, 07-1207 (La. App. 3 Cir. 4/2/08), 981 So.2d 66 (finding that the trial court’s imposition of the maximum 20-year sentence for vehicular homicide was excessive given that the record does not show defendant to be one of the worst offenders); State v. Landry, 09-260 (La. App. 3 Cir. 11/4/09), 21 So.3d 1148 (finding a sentence of 30 years for vehicular homicide with all but 18 years suspended and 5 years to be served without benefits was not excessive where defendant's BAC was 0.231 at the time of the accident).
[21] An excessive sentence review contemplates not only the length of the sentence, but also the availability and restrictions of benefits regarding parole eligibility and early release. See LeBlanc, 09-1355, p. 11, 41 So.3d at 1174. As noted elsewhere in this opinion, a comparator review is sometimes helpful. 19 Hamdalla, 12-1413, pp. 19-20, 126 So.3d at 629. Here, the district court limited the time to be served without benefit of parole to fifteen of each thirty-year consecutive sentence. The district court also declined to impose any fines on the sentences; the previous sentences included a $2,000 fine on both Count 2 and 3. Thus, technically speaking, Mr. Toney did not receive the maximum sentence for vehicular homicide. See McKinney, 23-162, p. 17, 372 So.3d at 967. Regardless, considering the horrific nature of the crime coupled with the nature of Mr. Toney’s background, we cannot conclude the overall sentences the district court judge imposed for the two counts of vehicular homicide were a manifest abuse of discretion.
Our finding is buttressed by the district court’s response, at the second sentencing hearing, to the November 2019 Letter written by four of the non-homicide. Addressing the November 2019 Letter, the district court observed:
I note that Sofia Vorhoff, Harry Vorhoff and Penelope Catzen all signed a letter to this Court suggesting that the sentence that this Court ordered for the defendant in the sentencing range was zero to five years, they allege that they thought that the five year sentence which this Court ran consecutive on each of those counts was not a fair sentence. And they thought that he should have a 15 to 25 year sentence before he would
be eligible for parole. Additionally, they had asked for a ban for life for him to have a driver’s license. I note interestingly that by me placing him in jail for such a long period of time would have been in fact been a ban for life from him having a driver’s license, since the law doesn’t provide that a criminal Court Judge can ever ban anyone for life from driving.
See State v. Johnson, 580 So.2d 998, 1002 (La. App. 3d Cir. 1991) (observing that "[a] condition of probation cannot extend beyond the maximum probationary term of five years" and that "the trial court could only limit the suspension of defendant's driver's license for a maximum of five years").
The district court’s response to the November 2019 Letter provides insight to the reason for the limitation the court imposed on Mr. Toney’s parole eligibility on the 20two vehicle homicide counts—first fifteen years of each count without benefit of probation, parole, or suspension of sentence.
[22] Here, as in LeBlanc, we conclude that "the circumstances of the present case so clearly demonstrate why the legislature has steadily increased punishment for the crime of vehicular homicide, the decision of where to place defendant’s conduct on that broad sentencing continuum fell within the discretion of the [district] court." 09-1355, p. 10, 41 So.3d at 1173. We also find significant, as did the district court, that Mr. Toney fled the scene. See State v. Cook, 95-2784, p. 2 (La. 5/31/96), 674 So.2d 957, 958 (observing that "[f]or the court, the defendant’s flight from the scene ‘manifested deliberate cruelty to the victim’ adding to ‘this already serious act … a greater degree of culpability’ because it ‘could have meant the difference between an individual living and dying’ "). For all these reasons, we find Mr. Toney’s argument regarding the excessiveness of the sentences for the vehicular homicide counts unpersuasive.
[23] We next address Mr. Toney’s argument that the maximum sentences of five years imposed on each of the six counts of first degree negligent injuring are excessive. Mr. Toney cites two reasons in support of this argument. First, he contends that the identical sentences for first degree negligent injuring do not consider that each of the victims sustained varying degrees of injuries. Second, he contends that these sentences do not comport with other reported cases—a comparator review argument.
Mr. Toney’s first contention is that the fact the five-year sentences for Counts 4 to 9 are identical despite varying degrees of injuries to the victims renders those sentences excessive. Counts 4 to 9 charged the first degree vehicular negligent injuring of Sophie Vorhoff, Harry Vorhoff, Penelope Catzen, Stephen 21Franklin, Catherine Holmes, and Raven Smith, respectively. Mr. Toney contends that the sentence is excessive at least as to Counts 5 and 6 given that the injuries of those two victims—Mr. Vorhoff and Ms Catzen—consisted of scrapes and bruises. Mr. Toney contends that those injuries were akin to those of another victim, Ms. Alaino—the victim named in Count 10 whose offense was charged as a misdemeanor. Mr. Toney also points out that Mr. Franklin, the victim named in Count 7, was able to leave the scene with a limp without medical treatment. According to Mr. Toney, the district court’s decision to impose the same five-year maximum sentence for all six counts illustrates the excessiveness of the sentences given the disparity in the six victims’ injuries. Such a comparison is misplaced. The extent of the injuries is only one of countless factors that a district court can consider in sentencing. Mr. Toney also makes a comparator review argument; he contends that the maximum sentences of five years imposed on each of the six counts of first degree negligent injuring are excessive when compared to other reported cases. In support, he cites State v. Blanchard, 03-0612 (La. App. 5 Cir. 11/13/03), 861 So.2d 657 and State v. Feaster, 36, 868 (La. App. 2 Cir. 3/5/03), 840 So.2d 675. Mr. Toney emphasizes that, in Blanchard, the appellate court found a five-year sentence, with two years of home incarceration, was not excessive for a defendant who had an extensive criminal record, was addicted to alcohol, and refused to take responsibility for his actions. Likewise, in Feaster, the appellate court found consecutive five-year sentences on two charges of first-degree vehicular negligent injuring were not excessive given the defendant was driving without a valid driver’s license and received a substantial benefit from his plea. Mr. Toney 22emphasizes that unlike the Blanchard facts, he has no criminal record or history of addiction; and, in contrast to Feaster, he did not receive any benefit from his guilty
Mr. Toney’s reliance on these cases is misplaced. A more appropriate comparator to this case is State v. Cozzetto, 07-2031 (La. 2/15/08), 974 So.2d 665. There, the Louisiana Supreme Court reinstated the district court’s maximum five-year sentence for first degree negligent injuring. In so doing, the Supreme Court observed:
In combination, the circumstances recited by the court in its reasons provided an adequate factual basis for the court’s conclusion that by fleeing the scene of the accident resulting from his extreme intoxication after causing the victim serious injury the defendant had placed himself among the most blameworthy offenders committing the charged crime.
Cozzetto, 07-2031, p. 2, 974 So.2d at 666. As noted elsewhere in this opinion, two factors that are significant here are the presence of multiple victims, including two fatalities, and the fact that Mr. Toney fled the scene.
Although Mr. Toney did not have a prior criminal conviction, his criminal history included the 2016 DWI, which the district court characterized as strikingly similar to this incident. Additionally, the circumstances of his first degree negligent injuring offenses involved inflicting injury on six victims, excluding the two fatality victims, the vehicular negligent injuring victim, and property damage. Moreover, the district court in resentencing Mr. Toney ordered that the sentences run concurrently, not consecutively. Given Mr. Toney had a possible sentencing exposure of thirty years if the district court had re-imposed consecutive sentences, we cannot conclude the concurrent five-year sentences on these six counts are excessive. Mr. Toney’s first degree negligent injuring excessive sentencing error is unpersuasive.
DECREE
23For the foregoing reasons, we affirm the defendant’s sentences.
AFFIRMED
LOVE, C.J., DISSENTS IN PART AND CONCURS IN PART WITH REASONS
LOVE, C.J., DISSENTS IN PART AND CONCURS IN PART WITH REASONS
1I agree with the majority to affirm the sentences imposed arising out of Mr. Toney’s first degree negligent injuring offenses. However, I find the maximum thirty-year sentences imposed on each count of the two vehicular homicide sentences, including fifteen years each without benefit of parole, probation, or suspension of benefits ("benefits"), are excessive and would remand for resentencing. Accordingly, I respectfully dissent in part for the reasons that follow.
The majority sets forth the standard to evaluate excessive sentence claims and notes that appellate courts apply a two-pronged approach for such an evaluation: (1) whether the trial court considered the La. C.Cr.P. art. 894.1 sentencing guidelines; and (2) whether the sentence is constitutionally excessive. See State v. Edison, 37,012, pp. 2-3 (La. App. 2 Cir. 5/14/03), 847 So.2d 140, 142-43. I agree with the majority that the. trial court complied with the first prong of an excessive sentence review—consideration of the La. C.C.P. art. 894.1 statutory sentencing guidelines prior to the imposition of the sentences. However, as to the second prong, I reach a different result in considering whether the vehicular homicide sentences were excessive. Upon application of the three factors 2enunciated in State v. Whatley, 2006-316, p. 5 (La. App. 3 Cir. 11/2/06), 943 So.2d 601, 605: the nature of the crime, the defendant’s background and comparison of the sentence imposed to similar crimes, I find the vehicular homicide sentences are constitutionally excessive for the following reasons.
Nature of the Crime
The nature of the crime involved herein is vehicular homicide. The Supreme Court, in State v. LeBlanc, 2009-1355, pp. 9-10 (La. 7/6/10), 41 So.3d 1168, 1173, discussed the legislative history of the sentencing ranges for vehicular homicides as follows:
Over the years, the legislature has steadily increased punishment for the crime, raising the maximum sentence to 15 years imprisonment in 1989 La. Acts 584, then to 20 years imprisonment, with or without hard labor, in 1999 La. Acts 1103, and thereafter, to its present maximum of 30 years imprisonment with or without hard labor. 2004 La. Acts 750. The legislature has since increased the mandatory minimum term of imprisonment from two to five years and increased the minimum term of parole disability from one to three years. 2006 La. Acts 294. The. changes reflect the growing awareness in this state and elsewhere of the carnage caused by intoxicated drivers on the open road. Cf. Michigan Dept. of State Police v. Sitz, 496 U.S. 444, 451, 110 S.Ct. 2481, 2485, 110 L.Ed.2d 412 (1990)("No one can seriously dispute the magnitude of the drunken driving problem or the States’ interest in eradicating it. Media reports of alcohol-related death and mutilation on the Nation’s roads are legion.").
Another indicator of the legislature’s steadily increased punishment for vehicular homicide offenders is the offender’s receipt of consecutive sentences as outlined in La. R.S. 1432.1(D) for causing the deaths of two or more human beings in the same incident. Other penal provisions reflecting enhanced punishment include that offenders with a blood alcohol concentration ("BAG") of 0.15 percent are required to serve at least five years of the sentence without benefits as opposed to three years without benefits for a lesser BAG, and an offender with a BAG of 0.20 percent shall be convicted of a crime of violence. See La. R.S. 14:32.1(B) and 3La. R.S. 14:32.1(C).1a Belatedly, La. R.S. 15:574.4(A)(1)(b)ii states, in part, that an offender convicted of a crime of violence who is otherwise eligible for parole, "shall be eligible for parole consideration upon serving sixty-five percent of the sentence imposed." Here, Mr. Toney was impaired with a high BAG of at least 0.20 percent when he caused the fatal accident.
In determining that the nature of the offense supports the maximum sentences imposed, the majority focuses on the trial court’s finding that Mr. Toney’s conduct in the commission of the offenses manifested "deliberate" cruelty to the victims and was, therefore, properly considered as an aggravating factor in sentencing. The majority notes that the trial court emphasized that Mr. Toney drove at an excessive rate of speed, attempted to flee, and did not render first-aid. Clearly, Mr. Toney’s offenses were horrific, caused immeasurable devastation to the victims’ families and loved ones, and unfairly cut short the lives of two outstanding, promising individuals. However, while there is no dispute that the results were cruel, the trial court pointed to no evidence that Mr. Toney deliberately intended the results. Although Mr. Toney’s conduct can rightfully be condemned as abhorrent to any sober-minded person, regrettably, Mr. Toney was "blind drunk" at the time of the offense. Accordingly, unlike the majority, I do find an inherent contradiction in the trial court’s finding of deliberate cruelty juxtaposed against the court’s finding that "[it] considered as mitigating [that] the defendant did not contemplate that his criminal conduct could cause this serious harm."
4As referenced, although our statutory provisions have steadily increased the penalties for vehicular homicide, notwithstanding, the sentencing range is five to thirty years for each offense. This writer recognizes that no sentence can offer adequate relief or comfort for the surviving families and loved ones of the victims. Nevertheless, a vehicular homicide excessive sentence claim is still entitled to review within the statutory sentencing range for that offense. That review necessarily requires appellate courts to apply the seminal precepts that maximum sentences are reserved for the most serious offender and that there should be some consistency when imposing maximum sentences. See State v. Morain, 2008-1546, p. 6 (La. App. 3 Cir. 6/3/09), 11 So.3d 733, 738.
Defendant’s Nature and Background
The review of the second factor—the offender’s nature and background—substantiates that Mr. Toney had no prior criminal convictions; however, as noted by the trial court and the majority, Mr. Toney did have a criminal history which included a previous 2016 DWI citation. In connection with that citation, Mr. Toney’s uncontradicted testimony asserted that he fulfilled all the requirements associated with the citation—which did not include attendance at AA meetings.
The majority indicates that Mr. Toney "knew" he had a drinking problem. However, while Mr. Toney acknowledged a drinking problem at sentencing, he testified that he lacked the self-awareness to realize he had a drinking problem at the time of the accident. Mr. Toney testified that "I wish back then I would have realized what it was, and learned my lesson, you know got everything under control. My mental health and everything under control, but I didn’t realize that then. I didn’t realize where I stand now." He averred that he rarely "partied" at the time of the accident because he worked all the time, and the accident date—his birthday—"was the one day that I got in my head, just relax and this is what 5happened." Mr. Toney relayed that he has attended AA since his incarceration and had not drank in three years.
Defendant’s background also showed that Defendant was gainfully employed. He was described as an honest, reliable, and trustworthy by his supervisor, aunt, and co-workers. Defendant also served as his mother’s caretaker and acted as a father figure to a nephew and nieces. Defendant accepted responsibility for his actions by entering a "blind" guilty plea and expressed great remorse at the sentencing hearing for his actions on the accident date.
The majority rejects Mr. Toney’s contention that his overall law-abiding background was not considered by the trial court in his sentencing on the vehicular homicide counts, citing the horrific nature of the offenses. Nevertheless, as noted by the majority, the three-part test in reviewing a claim for the imposition of the maximum sentence requires consideration of all the factors in determining an excessive sentence. See State v. Smith, 1999, pp. 17-18 (La. 7/6/00), 766 So. 2d 501, 514. This review necessarily includes evaluation of the offender’s nature and background. Thus, the "horrific nature" of the offense cannot preclude consideration of the offender’s background in imposition of the maximum sentence; otherwise such a review would never take place as inevitably all vehicular homicides offenses involving impaired drivers are of a "horrific nature" and devastate the surviving family members and loved ones.
In totality, as discussed further herein below, I find Mr. Toney’s background does not qualify as the worst offender for whom the maximum sentence is reserved when compared to other convicted multiple homicide offenders.
Comparative Sentences
This Court emphasized in Toney I, 2021-0131, p. 9. 331 So.3d at 403, that comparison of sentences is an important factor in reviewing a claim for excessiveness as "[s]uch a comparison helps to assure that a defendant’s sentence will be 6proportional in comparison with other offenders—that the maximum sentences will be reserved for the most egregious or blameworthy of offenders, and that others of similar conduct will not receive sentences lighter than the defendant’s." Id., 2021-0131, p. 9, 331 So.3d at 403-4. Moreover, a reviewing court’s consideration of sentences imposed by other courts provides consistency in the punishment of similar dimes for similarly situated offenders. State v. Morain, 2008-1546, p. 4 (La. App. 3 Cir. 6/3/09), 11 So.3d 733, 737.
At the outset of any review of comparative sentences, it must be noted that well-settled jurisprudence establishes that an excessive sentence review contemplates not only the length of the sentence, but also the availability and restrictions of benefits regarding parole eligibility and early release. See LeBlanc, 2009-1355, p. 11, 41 So.3d at 1174. Therefore, the actual sentence an offender is likely to serve is an important element in determining if a sentence is excessive.
In LeBlanc, the Supreme Court reversed the decision of the appellate court to vacate the trial court’s imposition of the maximum thirty-year sentence for vehicular homicide for a first-time offender without a prior record, where the defendant had been cited for DWI, possessed cocaine and marijuana, and had a "cocktail" of cocaine and other legal drugs in her system. Id., 2009-1355, pp. 11-13, 41 So.3d at 1174-75. The Court noted that the defen- dant had an acknowledged long-standing history of abusing legal and illegal drugs, "punctuated by a few, half-hearted attempts to receive treatment," and had gone on a self-confessed cocaine binge in the days leading up to the fatality accident. Id., 2009-1355, p. 12, 41 So.3d at 1174. The Court also found that the defendant did not necessarily accept her culpability for the accident, pointing out that the defendant reaped the benefits of a plea bargain, which reduced her sentence by nearly 20 years. Id. Moreover, the Court highlighted that the trial court imposed the mandatory minimum of three years for parole eligibility and crafted a sentence that made it possible for the defendant to obtain early release and earn good-time7 credit after serving one-third of her term; as such, the Supreme Court observed that the defendant’s "maximum thirty (30) year sentence [was] actually a fifteen (15) year sentence at best." Id., 2009-1355, p. 11, 41 So.3d at 1174. The Court then opined that "the availability of early release options is generally a relevant consideration in review of sentences for excessiveness." Id. Accordingly, in consideration of those factors, the LeBlanc Court found the defendant’s original sentence was not excessive, reversed the appellate court, and remanded the case to the district court for execution of the original sentence. Id., 2009-1355, p. 13, 41 So.3d at 1175.
Therefore, in the context of the above-referenced criteria, Mr. Toney is entitled to have his sentences and parole eligibility/early release options compared with that of other multiple vehicular homicide offenders to determine excessiveness.
Maximum Sentences
In State v. Crenshaw, 39,586 (La. App. 2 Cir. 4/6/05), 899 S.2d 751, the defendant went to trial on two counts of vehicular homicide, wherein he challenged the sufficiency of the evidence to prove that he was the driver. Upon conviction, the defendant received the then maximum sentences of twenty years each at hard labor for two counts of vehicular homicide, to be served consecutively, with one year each to be served without benefits. Id., 39,586, p. 2, 899 So.2d at 753-54. Notably, at the time of sentencing, there was no statutory mandate for consecutive sentences for multiple counts of vehicular homicide. Nevertheless, the appellate court found that the consecutive sentences were not constitutionally excessive where the defendant had gone to trial and had three prior DWI convictions. Id., 39,586, pp. 14-16, 899 So.2d at 759-61.
The appellate court found that maximum sentences of fifteen years for three counts of vehicular homicide in State v. Guillory, 1993-1031 (La. App. 3 Cir. 4/27/94), 640 So.2d 427, were not excessive. The Third Circuit noted that the sentences were to 8be served concurrently; the defendant had one prior felony conviction and three misdemeanor convictions; the defendant had a blood alcohol level of .29; and after drinking excessively on the night of the accident, the defendant had twice been urged by others not to drive. Id., 1993-1031, 647 So.2d at 430.
In State v. Yates, 574 So.2d 566 (La. App. 3 Cir. 1991), the defendant argued that his two consecutive five-year sentences—the maximum at the time—for two counts of vehicular homicide were excessive. Although the defendant received the maximum sentence, the sentence on count two was suspended and the defendant was placed on supervised probation for five years after release from confinement. Id., 574 So.2d at 567. In affirming the over-all sentence, the Third Circuit found that the sentence was not excessive, emphasizing that the defendant had two prior DWI convictions, showed no remorse for his conduct, and continued to drink on a daily basis after the accident. Id., 574 So.2d at 569-70.
Non-Maximum Sentences
The defendant in State v. Benavides, 54,265 (La. App. 2 Cir. 3/9/22), 336 So.3d 114, went to trial and was convicted on two counts of vehicular homicide. The trial court imposed sentences of twenty and nineteen years; however, did not address the length of time to be served without benefits. Defendant maintained on appeal that the sentences were excessive given that he had a family to support and had no prior offenses. Id., 54,265, p.17, 336 So.3d at 123. The appellate court found the midrange sentences were not excessive, noting that although the defendant had no prior record, he admitted that he had an active drinking problem. Id., 54,265, p. 23, 336 So.3d at 125. As in LeBlanc, supra, the trial court stated that the "sentence should give the defendant the incentive for rehabilitation and to take advantage of early release on parole." Id.2a
9In State v. Gordon, 2017-846 (La. App. 3 Cir. 3/28/18), 240 So.3d 301, the defendant pled guilty to three counts of vehicular homicide as a result of driving under the influence of methamphetamines, in exchange for the State’s dismissal of a negligent injuring charge. The trial court sentenced the defendant to eighteen years at hard labor on each count for killing three members of the same family, with three years served without benefits. The defendant had no criminal record. The principal aggravating factors in defendant’s case were that the defendant admitted to a long-standing, on-going problem with methamphetamine abuse—which included taking the drug almost every other day— and a finding that methamphetamines and amphetamines were, in fact, found in his urine sample after the accident. Id., 2017-846, p. 6, 240 So.3d at 306. Hence, the Gordon Court found that the eighteen-year consecutive sentences imposed, three years without benefits, were not constitutionally excessive.
The defendant in State v. Ellis, 2010-1019, pp. 2-3 (La. App. 5 Cir. 5/24/11), 67 So.3d 623, 626-27, a first time felony offender, entered an Alford guilty plea to two counts of vehicular homicide while driving under the influence of marijuana. The trial court sentenced the defendant to concurrent sentences of twenty-five years at hard labor and imposed the first five years without benefits. Id., 2010-1019, p. 2, 67 So.3d at 624.3a At sentencing, the trial court found that the defendant was arrested for drug possession on the date of the accident, had marijuana in his system, was driving recklessly with a suspended license, and showed no remorse. Id., 2010-1019, pp. 4-5, 67 So.3d at 626. In rejecting the defendant’s excessive sentence claim, the appellate court observed that the trial court made it possible for the defendant to be released on parole after serving one-third of his twenty-five year sentence, or approximately 8.33 years, and considered the defendant’s 10eligibility for early release on good time credits. Id., 2010-1019, p. 6, 67 So.3d at 627. The appellate court, quoting LeBlanc, 2009-1355, p. 11, 41 So.3d at 1173, found that "[t]he availability of early release options is generally a relevant consideration in review of sentences for excessiveness." Id. Consequently, given the parole eligibility considerations, the benefit the defendant reaped from his plea agreement, and the circumstances of the offense, the Ellis Court affirmed the defendant’s sentences, finding no abuse of the trial court’s discretion. Id., pp. 6-7, 2, 67 So.3d at 627.
The defendant in State v. Edison, 37,012 (La. App. 2 Cir. 5/14/03), 847 So.2d 140, entered guilty pleas to two counts of vehicular homicide in exchange for the State’s agreement to dismiss two counts of first degree negligent injuring. The trial court imposed two concurrent terms of fourteen years, with the first year to be without benefits. The maximum sentence at the time was twenty years. Considering the gravity of the offenses and the benefit Defendant received from the plea bargain, the appellate court affirmed the defendant’s sentences. Id., 37,012, 847 So.2d 140.
In State v. Trahan, 1993-1116 (La. App. 1 Cir. 5/20/94), 637 So.2d 694, a first-time felony offender, went to trial and was convicted on three counts of vehicular homicide. He was sentenced to three ten-year prison terms, to be served concurrently. The statute in effect at the time provided for a sentence of two to 11fifteen years. The appellate court determined that the sentence was not excessive where the defendant showed little remorse for his conduct after the accident, and while awaiting trial, was observed having several drinks at a bar. Id., 1993-1116, 687 So.2d at 708-09.
In State v. Stein, 611 So.2d 800 (La. App. 3 Cir. 1992), the defendant pled no contest to two counts of vehicular homicide and received concurrent sentences of four and one-half years. The statutory sentencing range at the time was two to fifteen years. The defendant had two prior misdemeanor convictions. Based on the defendant’s possible exposure to a fifteen-year sentence and the imposition of concurrent sentences, the appellate court denied the defendant’s excessive sentence claim. Id., 611 So.2d at 802.
Notwithstanding the inexplicable grief and carnage inflicted by Mr. Toney as a result of this tragic accident, based on our review of the foregoing sentences imposed for multiple vehicular homicide offenders and their respective backgrounds, Mr. Toney’s maximum sentences and the thirty years imposed without benefits are inconsistent with the sentences imposed on the other offenders. For example, the background of the Crenshaw defendant, arguably the most egregious offender, included three DWI convictions, and moreover, he did not accept responsibility for his actions by requiring the State to go to trial. In comparison, Mr. Toney had one DWI citation—no convictions—and accepted responsibility by entering a guilty plea. Although the Crenshaw defendant received the maximum twenty-year sentences, he only had to serve one year each without benefits.
Here, Mr. Toney not only received the total maximum sentences of sixty years, but also was required to serve a total of thirty years without benefits without the availability of early release options. The thirty-year consecutive sentences imposed, with fifteen years without benefits on each sentence, means that a minimum, Mr. Toney will have to serve thirty years before any consideration for parole eligibility. Additionally, Mr. Toney faces other parole eligibility release restrictions because he was found to have committed a crime of violence premised on his 0.20 percent BAG level. Pursuant to La. R.S. 15:574.4(B), the existence of a 0.20 percent BAG would require Mr. Toney to serve at least sixty-five percent of 12the sentence to become parole eligible.4a Based on that computation, Mr. Toney would have to serve 39 years for the DOC to consider him for parole eligibility and/or early release.
Additionally, although the existing maximum sentences were imposed in the Guillory and Yates cases, unlike Mr. Toney, those offenders received the benefit of concurrent or suspended sentences, and had considerably worse backgrounds. In particular, the Guillory defendant received concurrent fifteen-year sentences, although he had a prior felony and misdemeanor convictions and had been repeatedly urged not to drink on the night of the accident. Similarly, the Yates defendant received a suspended five-year sentence on the second count of his vehicular conviction and his background included two prior DWI convictions, a lack of remorse, and continued drinking after the accident.
As to benefits and early release options, the other comparable offenders in Benavides, Gordon, Ellis, Edison, Trahan, and Stein discussed hereinabove not only received less than the maximum sentences and/or concurrent sentences, they also received lesser restrictions on benefits, ranging from one to five years. The record in the present matter supports a statutory minimum five-year restriction on benefits based on Defendant’s BAC. However, in placing the thirty-year restrictions on benefits, the trial court failed to provide specific reasons; This failure contravened this Court’s directive upon remand in Toney I, 2021-1031, 331 So.3d at 407-08, to state the considerations "for restricting benefits on sentences." Here, Mr. Toney’s restrictions on benefits were triple that of other multiple homicide offenders, and as underscored in LeBlanc, supra, those restrictions are a relevant consideration in a review of sentences for excessiveness.
13The majority relies on State v. McKinney, 2023-162 (La. App. 3 Cir. 10/4/23), 372 So.3d 957 and State v. Cook, 674 So.2d 957, 958 (La. 1996) to reject Mr. Toney’s argument that a review of similar sentences supported that more egregious circumstances and offenders received more lenient sentences. However, closer scrutiny reveals that the results reached in McKinney and Cook are distinguishable from the present matter.
In McKinney, 2023-162, p. 1, 372 So.3d at 959, the trial court sentenced the defendant to the maximum sentence of 30 years for vehicular homicide, with the first three years to be served without benefits, and in conjunction therewith, suspended seven years of the defendant’s sentence and placed him on supervised probation for three years upon his release. In crafting the sentence, the trial court stated "I 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." Id., 2023-162, p. 10, 372 So.3d at 964. The trial court further noted the defendant’s eligibility for parole and opined that there’s no reason to think the defendant would not get his "good time"—which ' is not discretionary; and opined that under the circumstances the defendant’s overall sentence was not "not close to being cruel and unusual under the Constitution. Id. On appellate review, the McKinney court determined that the defendant’s excessive sentence claim lacked merit because notwithstanding the defendant’s characterization, the trial court did not impose the maximum sentence. The court pointed out that the trial court suspended seven years of the defendant’s sentence and ordered that the first three years only be served without benefits, although statutorily, the defendant’s blood alcohol level required that at least five years be served without benefits. 2023-162, pp. 17-18, 372 So.3d at 967. Moreover, the Mckinney court noted that the trial court considered good time and parole in fixing the Defendant’s sentence. Id., 2023-162, p. 18, 372 So.3d at 967. The appellate court quoting LeBlanc, 2009-1355, p.11, 41 So.3d at 1174, in finding 14"[t]he availability of early release options[,]" the supreme court has explained, "is generally a relevant consideration in review of sentences for excessiveness." Id.
Unlike McKinney, in the matter sub judice, Mr. Toney unequivocally received the maximum sentence. The trial court did not suspend any part of Mr. Toney’s sentence. Further, the trial court’s imposition of thirty years without benefits reflects that the trial court gave no consideration to the availability of early release, a relevant consideration in considering an excessive sentence claim.
The majority compares Mr. Toney to the defendant in Cook, whose 9-year sentence at hard labor for one count of vehicular homicide was reinstated by the Supreme Court, in part, because of the defendant’s flight from the scene. The majority notes that the Court observed that the defendant’s flight "manifested deliberate cruelty to the victim" because it "could have meant the difference between an individual living and dying." 674 So.2d at 958. However, the Cook defendant’s "flight" differs from Mr. Toney’s flight. In State v. Cook, 1995-212, p. 1 (La. App. 3 Cir. 10/18/95), 664 So.2d 489, 490, the facts show that the defendant purposefully left the scene of the accident to drive to a friend’s residence. The victim was unconscious, face down in a ditch, and died from the trauma. Id. Although Mr. Toney attempted to flee in the present matter, no evidence was introduced that his flight was purposeful and that the victims’ outcome would have been different but for his attempted flight. Moreover, in contrast to Mr. Toney, the Cook defendant did not receive the maximum sentence.
Accordingly, upon review of the offense, Defendant’s background, and comparison with similar multiple homicide defendants, the trial record does not support that Mr. Toney is the worst of the multiple vehicular homicide offenders for whom the maximum sentence is reserved. I find the overarching factors of this case are more analogous to the defendant in Morain, 2007-1207, 981 So.2d 66. In Morain, the defendant had no prior DWI convictions, showed remorse for his 15actions, and had not been involved in other criminal activity; consequently, upon comparison of the defendant’s conduct and offense with other offenders who received the maximum sentence, the Third Circuit concluded that the maximum twenty-year sentence imposed on the defendant was excessive and remanded for resentencing. Id., 2007-1207, pp. 11-12, 981 So.2d at 72-73.
As per Leblanc, our jurisprudence has generally upheld the imposition of maximum sentences where the defendant has the availability of early release options and the actual sentence served will be less than the maximum; that is not the case here. Thus, Mr. Toney’s contention that the vehicular homicide sentences are excessive has merit.
Based on the foregoing reasons, I respectfully dissent in part and would remand for resentencing Mr. Toney’s vehicular homicide convictions.