State v. RuizState v. Ruiz
Lawrence P. Ruiz was charged by bill of information with vehicular homicide, a violation
He appealed and this Court affirmed his conviction but vacated his sentence and remanded the case for resentencing in accordance with the Louisiana Sentencing Guidelines. State v. Ruiz, 630 So.2d 897 (La.App. 4th Cir.1993). Ruiz was resentenсed on February 8, 1994, to serve fifteen years at hard labor as a second offender under
STATEMENT OF FACTS
We adopt the stаtement of facts from our previous opinion in this case:
On September 12, 1990, at about 11:00 p.m., the appellant was driving a pick-up truck westbound on Chef Menteur Highway near the intersection of Alcee Fortier when he struck the rear of an eighteen wheeler parked on the shoulder of the road. The passenger of the pick-up was killed instantaneously as a result of the cоllision. The appellant was taken to Methodist Hospital where he was treated for his injuries. The investigating officer, Edward Cooper, after investigating the accident scene and interrogating witnesses, saw the appellant at Methodist Hospital where he advised appellant that he was under arrest for negligent homicide. Cooper then requested the assistance of a nurse to draw blood from the appellant. Alvee Carlini, R.N., with the appellant‘s consent, drew blood from him in the presence of Officer Cooper, according to the instructions on the blоod collection kit provided by the State of Louisiana. Also urine samples were taken from the appellant.
Officer John Palm was qualified as an expert in blood testing. He testified that hе tested the blood sample from the appellant and found it to be .27 percent blood alcohol. Officer Palm also testified that the urine sample tested positive for marijuana mеtabolites.
Ronald Erwin, the driver of the parked 18-wheeler hit by the appellant, testified that his rig was parked on the shoulder three to four feet from the highway. He testified that he was parked sufficiently off the road such that he could and did walk between the road and his rig. Erwin further testified that after he parked, he put on his flashers and went to a nearby store. He called his dispatcher, went back to the sleeper area of his rig and waited for the local delivery man to get back to the warehouse so he could exchange loads.
An RTA bus driver and three passengers all testifiеd that they noticed the pick-up truck prior to the accident when the truck passed the bus on the right, on the shoulder of the road, as the bus waited out a red light at Chef Menteur Highway and Bullard Avenue. These witnesses also noticed that the pick-up was speeding and zigzagging on and off the shoulder of the road.
An accident reconstruction expert, Gene Moody, testified for the defense that the road was defective because it lacked the “fog line” on the right edge of the road and because the drop off from the road to the shoulder was too deep. Moody further noted that there is a tendency to follow the vehicle in front of you. Thus, if a vehicle is parked on the shoulder, there may be the tendency to run off the side of the roadway. Finally, Moody was of the opinion that the faded “fog line” and the rig parked on the shoulder caused the appellant to drive off the shoulder and the deep and irregular drop off kept him from getting back onto the road before the collision. Moody further concluded that the appellant was not going over forty-five miles per hour and that, even if the appellant had been sobеr, he would not have been able to prevent the accident.
Sherri Zoller also testifying for the defense stated she was driving behind the appellant immediately prior to the accident аnd that the 18-wheeler did not have its flashing lights on or any warnings posted. She further testified that she did not notice
the appellant‘s truck speeding or swerving prior to the impact. She testified that she offеred to give a statement to the police, but they said they already had enough witnesses. On cross-examination, Ms. Zoller admitted that she did not notice the defendant‘s truck prior to impact. Shе further admitted that she travels that highway often going to her camp on Lake Catherine and the road conditions had never caused her to go off the side of the road. Finally, the defense сalled Juan Tony Campos, the emergency medical technician who was called to the scene. Mr. Campos testified that the driver of the 18-wheeler told him that he was sleeping when the accident occurred, contradicting the driver‘s testimony.
ERROR PATENT
In our review of the record we note an error patent. The sentence of fifteen years at hard labor as a second оffender is illegally lenient. Ruiz was sentenced under
THE SENTENCE IMPOSED ON RUIZ IS NOT ILLEGALLY EXCESSIVE
Ruiz claims that on resentencing the trial court erred in not complying with the Sentencing Guidelines and in imposing a statutorily excessive sentence. The defendant was sentenced to fifteen years at hard labor on February 8, 1994, after the effective dates of the Felony Sentencing Guidelines and revised
The sentencing range under
The Louisiana Supreme Court held:
(1) while a trial judge must consider the Guidelines, he has complete discretion to reject the Guidelines and impose any sentence which is not constitutionally excessive, but is within the statutоry sentencing range for the crime of which a defendant has been convicted, so long as he states for the record the considerations taken into account and the factual bаsis for his imposition of that sentence,
La.Code Cr.P. art. 894.1 ; and (2) where the trial judge has considered the Guidelines and imposed a sentence, adequately stating for the record the considerations taken into account and the factual basis for imposition of that sentence, an appellate court is limited to a review of the sentence imposed for constitutional excessivеness, without regard as to whether the trial judge either employed or deviated from the Guidelines.
State v. Smith, 93-0402, p. 3 (La. 7/5/94); 639 So.2d 237, 240. [Emphasis in original] The trial judge has discretion to reject the Guidelines which means the suggested sentenсe may be ignored, as well as the listed aggravating and mitigating factors. As long as the trial judge considers the Guidelines and states the considerations and basis for the sentence, appellate review is limited to constitutional excessiveness.
Here the trial court stated that it considered the sentencing guidelines and cases under Article 894.1; the court noted a case in which the Fifth Circuit hеld that at the sentencing the trial court properly determined that a lack of “remorse” was an aggravating factor.
The court also noted that Ruiz had driven in such a reckless manner moments before
Because the trial court adequately considered the Guidelinеs and stated his reasons for the sentence, we will consider whether the sentence is constitutionally excessive.
In considering excessiveness, we look at sentences given in similar cases in order to determine whether the sentence is inordinate in a particular case. Recently the First Circuit upheld a sentence of ten years for a first offender guilty of vehicular homicide where the appellant was found to have demonstrated a reckless disregard fоr the safety of others. State v. Trahan, 93-1116 (La.App. 1st Cir. 5/20/94), 637 So.2d 694. Similarly, the Third Circuit found a sentence of fifteen years for a second offender sentenced under
Accordingly, we affirm Ruiz‘s conviction and sentence.
CONVICTION AND SENTENCE AFFIRMED.