State v. GuilloryState v. Guillory
This case is before us for the third time, following two remands. See, State v. Guillory, 598 So.2d 1299 (La.App. 3d Cir.1992) and State v. Guillory, 617 So.2d 151 (La.App. 3d Cir.1993). On January 24, 1991, defendant, David Guillory, was charged by bill of indictment with three counts of vehicular homicide, in violation of
On May 29, 1992, the defendant was resentenced pursuant to this court‘s order. Defendant was resentenced to serve fifteen (15) years on each count of vehicular homicide to run concurrently; count one was to be served without benefit of probation or suspension of sentence. Defendant filed a motion to reconsider sentence on June 30, 1992, in which he alleged that the sentenced imposed was cruel, usual and excessive. Defendant‘s request was denied on July 29, 1992. The defendant appealed his resentencing wherein this court vacated the sentences on the three counts of vehicular homicide and once again remanded for resentencing on each count. This court also directed the trial judge to consider the new sentencing guidelines.
On May 10, 1993, on remand from this court, the defendant was sentenced on count one to fifteen years at hard labor, 7½ of which were without benefit of parole, probation or suspension of sentence; on count two, he was sentenced to 5½ years at hard labor; on count three, he was also sentenced to 5½ years at hard labor. Additionally, he was also fined $2,000.00 on each count. These sentences were ordered to run concurrently and the defendant was given credit for time served.
After the denial of his motion to reconsider sentence, the defendant appealed and assigned as error the following:
(1) The sentence imposed on count one was cruel, unusual and excessive;
(2) The trial court failed to adequately articulate the reasons and factual basis for the sentences.
For the following reasons, we affirm as amended.
FACTS
On or about November 30, 1990, near the intersection Airport Service Road on La. 385 in Lake Charles, Louisiana, the defendant committed the offense of vehicular homicide (three counts), in violation of
ERRORS PATENT
This court is authorized to correct an illegal sentence pursuant to
ASSIGNMENTS OF ERROR
By defendant‘s first assignment of error, he contends that the sentence imposed on count one was cruel, unusual and excessive. In his second assignment of error, the defendant contends that the trial judge failed to adequately articulate the reasons for sentence and the factual basis thereof. These
Based upon the Presentence Investigation Report and the Sentencing Guidelines Report, “3C” is the correct grid cell classification for the defendant. This classification provides for a minimum of six years and a maximum of seven years incarceration or 210-140 sanction units and falls within the discretionary sanction zone. However, the vehicular homicide statute,
The defendant suggested the presence of four mitigating factors under La.S.G. § 209(C)(3), (7), (12), and (15):
(3) At the time of the offense, the capacity of the offender to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was somewhat impaired;
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(7) The offender committed the offense without significant premeditation;
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(12) The offender cooperated with law enforcement authorities with respect to the current crime of conviction or any other criminal conduct by the offender or other person;
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(15) The offender pled guilty or otherwise accepted responsibility for the offense and expressed genuine remorse.
The trial judge addressed the issue as to whether these circumstances are mitigating. After reviewing the four mitigating factors raised by the defendant, the trial judge found factors three (3) and seven (7) inapplicable to the circumstances of this case. Moreover, the trial judge concluded factors twelve (12) and fifteen (15) were outweighed by the aggravating circumstances discussed below. We agree.
The aggravating factors found by the trial court are listed under La.S.G. § 209(B)(5), (9) and (11):
(5) The offender knowingly created a risk of death or great bodily harm to more than one person;
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(9) The offense resulted in a significant permanent injury or significant economic loss to the victim or his family;
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(11) The offense involved multiple victims or incidents for which separate sentences have not been imposed.
The trial court apparently felt that the aggravating factors outweighed the mitigating factors presented by the defendant. In State v. Guillory, 617 So.2d 151 (La.App. 3d Cir. 1993), when this defendant appealed his first resentence, this court stated that La.S.G. § 209(B)(11) does not classify multiple victims where separate sentences are imposed as an aggravating circumstance. On remand after the defendant‘s first resentence, the sentencing judge stated, “it is an aggravating circumstance when you have multiple victims in any instance.”
In the present case, there are several factors that distinguish the multiple victims as an aggravating circumstance from the typical La.S.G. § 209(B)(11) situation. Here, the three (3) counts of vehicular homicide were all ordered to run concurrent. Three criminal acts were based on the same act or transaction. When this occurs, the sentencing judge should, and he did, impose concurrent sentences. The concurrent nature of the sentences, whereby all three (3) counts would coincide, should allow the sentencing judge to classify the three (3) counts of vehicular homicide as an aggravating circumstance. Furthermore, if the sentencing
“A punishment is constitutionally excessive if it makes no measurable contribution to acceptable goals of punishment and 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. Dorthey, 623 So.2d 1276 (La.1993). After reviewing the facts and circumstances of the present case, particularly the fact that three people were killed and one was severely injured, we find that this sentence is not grossly out of proportion to the severity of three (3) counts of vehicular homicide.
The trial judge did not sentence the defendant to the minimum provided by
For the foregoing reasons, we hold that defendant‘s sentence on count one is not excessive.
CONCLUSION
The defendant‘s sentence on count one is hereby amended to set aside that portion of the sentence disallowing parole for seven and one-half (7½) years. The sentence, as amended, on count one is affirmed under the legal standard that gives the trial judge wide discretion in imposing sentences and because the sentence imposed is not so grossly disproportionate to the severity of the crime as to shock one‘s sense of justice. Moreover, after reviewing the facts and consulting the sentencing guidelines, the trial judge found sufficient aggravating circumstances to deviate from the sentencing guidelines. He articulated those reasons on the record as required by law and then imposed a more severe sentence while staying within the Habitual Offender Statute,
The sentence imposed on counts two and three are affirmed. The fines of $2,000.00 on each count concurrently imposed are also affirmed.
AFFIRMED AS AMENDED.
THIBODEAUX, J., concurs in part, dissents in part and assigns reasons.
THIBODEAUX, Judge, concurring in part and dissenting in part.
I concur only in those portions of the majority‘s opinion which set aside the disallowance of parole and which affirm the sentences on counts two and three. Otherwise, I dissent for the following reasons.
Based on the Presentence Investigation Report and the Sentencing Guidelines Report, “3C” is the correct grid cell classification for the defendant. This classification
The majority correctly observes the presence of four mitigating factors under La.S.G. § 209(C)(3), (7), (12), and (15) which were suggested by the defendant:
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(3) At the time of the offense, the capacity of the offender to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was somewhat impaired;
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(7) The offender committed the offense without significant premeditation;
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(12) The offender cooperated with law enforcement authorities with respect to the current crime of conviction or any other criminal conduct by the offender or other person;
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(15) The offender pled guilty or otherwise accepted responsibility for the offense and expressed genuine remorse.
The trial court found mitigating factors 3 and 7 inapplicable. I disagree. The record reflects that defendant‘s blood alcohol level was.29 at the time of the offense. The presence of this high level of alcoholic content is sufficient to have impaired the ability of the offender to appreciate the criminality of his conduct and certainly impaired his ability to conform his conduct to the requirements of law. Furthermore, there is nothing in the record to indicate that the defendant caused the accident and committed the offenses for which he was charged with any premeditation, much less “significant premeditation.”
The trial court found the following aggravating factors under La.S.G. § 209(B)(5), (9), and (11):
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(5) The offender knowingly created a risk of death or great bodily harm to more than one person;
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(9) The offense resulted in a significant permanent injury or significant economic loss to the victim or his family;
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(11) The offense involved multiple victims or incidents for which separate sentences have not been imposed.
At least one of the aggravating factors should not have been considered. The trial court had already been instructed by this court in State v. Guillory, 617 So.2d at 153 that La.S.G. § 209(B)(11)—involvement of multiple victims where separate sentences are imposed—does not constitute an aggravating circumstance. Notwithstanding this instruction, the trial court nonetheless referred to this circumstance as an aggravating factor. This was error. This court compounds the error by sanctioning the use of this circumstance as an aggravating factor despite our previous instruction to the contrary. It does so by speciously distinguishing the use or non-use of multiple victims as an aggravating factor on whether a concurrent or consecutive sentence is imposed. The nature of the sentence should have nothing to do with the classification of a factor as aggravating. If anything, it is the converse that is true—i.e., aggravating, factors may impact on a court‘s decision to impose a consecutive or concurrent sentence. Here, the exact opposite occurred which has resulted, in my view, in an injustice.
It is my view that under La.S.G. § 309(B), the trial court must impose the minimum sentence provided by law, 7½ years, unless aggravating circumstances justify the imposition of a more severe sentence. I do not find