State v. Deville

• Decision Date: 05 October 2011
• Docket Number: No. KA 11–88.,KA 11–88.
• Parties: STATE of Louisiana v. Jeffery Neal DEVILLE.
• Court: Court of Appeal of Louisiana — District of US

74 So.3d 774

STATE of Louisiana

v.Jeffery Neal DEVILLE.

No. KA 11–88.

Court of Appeal of Louisiana, Third Circuit.

Oct. 5, 2011.

Willard Trichel Armitage, Jr., James C. Downs, District Attorney, Ninth Judicial District Court, Alexandria, LA, for Plaintiff/Appellee, State of Louisiana.

Michael Anderson, Alexandria, LA, for Defendant/Appellant, Jeffery Neal Deville.

Court composed of ELIZABETH A. PICKETT, BILLY HOWARD EZELL, and SHANNON J. GREMILLION, Judges.

EZELL, Judge.

[3 Cir. 1] On January 28, 2010, the Defendant, Jeffery Neal DeVille, was charged by bill of information with two counts of vehicular homicide, violations of La.R.S. 14:32.1. The Defendant entered a plea of guilty to the charges on July 20, 2010, and was sentenced to thirty years at hard labor on each count, the sentences to run concurrently to each other and consecutively to the sentence he was already serving. The first five years of the sentences were ordered to be served without benefit of probation, parole, or suspension of sentence. The Defendant's motion to reconsider sentence was denied after a hearing on October 25, 2010.

The Defendant is now before this court on appeal, asserting that his sentences are excessive. For the following reasons, we remand this matter back to the trial court for resentencing of Defendant on each conviction of vehicular homicide due to the illegally lenient sentences given on those convictions.

FACTS

The facts as established in a written stipulation between the parties reflect that on September 30, 2009, the Defendant was driving his vehicle southbound on U.S. 167 when he hit the guardrail and then crossed the median and struck a vehicle head on, killing the driver, a sixty-year-old woman, and her passenger, a sixty-four-year-old man. Toxicology reports indicate that at the time of the accident, the Defendant was driving under the influence of carisoprodol, meprobamate, alprazolam, clonazepam, and cocaine benzoylecgonine.

EXCESSIVE SENTENCE

In his sole assignment of error, the Defendant argues that his thirty-year concurrent sentences, ordered to run consecutively to any other sentences, are excessive.

In State v. Brandenburg, 06–1158, p. 28 (La.App. 3 Cir. 2/7/07), 949 So.2d 625, 644, writ denied, 07–538, 07–614 (La.10/26/07), 966 So.2d 571, 573, this court stated:

The trial court has wide discretion in imposing a sentence, and a sentence imposed within the statutory limits will not be deemed constitutionally excessive absent a [3 Cir. 2] manifest abuse of discretion. State v. Evans, 97–504 (La.App. 3 Cir. 10/29/97); 702 So.2d 1148, writ denied, 97–2979 (La.4/3/98); 717 So.2d 231. This court, in State v. Dubroc, 99–730, p. 22 (La.App. 3 Cir. 12/15/99); 755 So.2d 297, 311, noted:

The relevant question on review of a sentence is whether the trial court abused its broad sentencing discretion and not whether the sentence imposed may appear harsh or whether another sentence might be more appropriate. State v. Cook, 95–2784 (La.5/31/96); 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996). To constitute an excessive sentence, this court must find the penalty imposed is so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no measurable contribution to acceptable penal goals; and, therefore, it is nothing more than needless imposition of pain and suffering. State v. Campbell, 404 So.2d 1205 (La.1981). The trial court is given wide discretion in imposing a sentence, and a sentence imposed within statutory limits will not be deemed excessive in the absence of manifest abuse of discretion. State v. Pyke, 95–919 (La.App. 3 Cir. 3/6/96); 670 So.2d 713.

State v. Boudreaux, 00–1467, p. 12 (La.App. 3 Cir. 4/4/01), 782 So.2d 1194, 1201, writ denied, 01–1369 (La.3/28/02), 812 So.2d 645 (quoting State v. Dubroc, 99–730, p. 22 (La.App. 3 Cir. 12/15/99), 755 So.2d 297, 311). “As a general rule, maximum sentences are appropriate in cases involving the most serious violation of the offense and the worst type of offender.” State v. Hall, 35,151, p. 4 (La.App. 2 Cir. 9/26/01), 796 So.2d 164, 169.

Pursuant to La.R.S. 14:32.1(B), the sentencing range for vehicular homicide is five to thirty years, with or without hard labor, and with at least five years to be served without benefit of probation, parole, or suspension of sentence if previously convicted of driving while intoxicated. As such, the Defendant received the maximum possible prison term on each count, but the minimum number of years without benefit of probation, parole, or suspension of sentence. The trial court, however, did not impose the mandated fine of $2,000.00 to $15,000.00. Additionally, the Defendant received concurrent sentences, significantly reducing his total sentence.

At sentencing, the Defendant stated that he was forty-nine years old, divorced with two girls, ages eighteen and twenty-one, and completed twelfth grade. His mother lived [3 Cir. 3] next door to him. The Defendant, a contract welder, was between jobs at the time of his arrest.

Next, the trial court confirmed that the Defendant was previously convicted of driving while intoxicated in 1988. The Defendant also had prior convictions for possession of controlled dangerous substances, schedules II, III, and IV, on June 22, 2007, and he was on probation at the time of the instant offense. The trial court also considered the stipulation between the parties regarding the facts of the case, specifically the pharmacology report of Dr. William J. George. In mitigation, the Defendant stressed he did not contemplate that his criminal conduct would cause or threaten serious harm and his criminal conduct was the result of circumstances unlikely to reoccur. The Defendant also asserted that he was likely to respond affirmatively to probationary treatment and imprisonment would entail excessive hardship to himself or his dependents.

The Defendant's brother, Jerry Deville, testified that they helped out their eighty-one-year-old mother who depends on them for physical assistance and some financial assistance. Jerry added that from the time the Defendant was eighteen years old, he had broken a number of bones, including a leg, both arms, and he sustained a crushed pelvis. According to Jerry, the Defendant had been on pain medication all of his life. Lastly, Jerry stated that the Defendant was not on disability, however, and worked to support himself.

The trial court found that there were no aggravating or mitigating circumstances. In its reasons for ruling, the trial court stated:

Mr. Deville, when this incident happened, this was not an accident, you were under the influence when this incident occurred of four different drugs. One of them, you were twice the therapeutic dose of Carisoprodol C-a-r-I-s-o-p-r-o-d-o-l. You were twice the therapeutic dose. You weren't under the influence of four, you were under the influence of five at the time this occurred. That's not an accident, sir. When people do that, things happen. We know when people are drunk and driving down the road and they run into someone, that's not an accident, we know that that's going to happen, sir. So, your—I hope that you've learned something about what you've caused—you caused the death of Ms. Fry, Mr. Tyner, you've heard from Trevor Fry about his mother, raising him and those three children, so that they could be better people, and you have taken from her, the joy of what we would call her golden years. She worked hard to get to where she [3 Cir. 4] was at sixty, to be able to enjoy the rest of her life. You've taken that from her because of operating while under the influence of a controlled dangerous substance, five of them, while you were impaired.

So, based upon the statements—well, the information that we've received about your, your biographical information, the factual basis, the sentencing guidelines, that we've gone over, the fact that you were on probation for Possession of CDS II, III and IV, and that you have a previous conviction in 1988 from the Ninth JDC for DWI, and the fact that you were under the influence of those five drugs at the time of the incident, the sentence of the Court on each of these counts is that you're to serve 30 years at hard labor, with the Louisiana Department of Corrections.

In his motion to reconsider sentence, the Defendant stressed that he voluntarily entered guilty pleas to the charges, fully accepting responsibility for his conduct. Considering the facts, circumstances, and mitigating factors, as well as the nature of the crime, his nature and background, and sentences imposed for similar crimes by the same court and other courts, the Defendant maintained that his sentences were excessive. The Defendant then provided a list of seven cases since 1999 involving vehicular homicide in the Ninth Judicial District Court which he believed demonstrated that his sentences were more than twice the highest sentence previously imposed during the last ten years.

At the hearing on the Defendant's motion to reconsider sentence, the Defendant introduced certified copies of the minutes from the cases cited in his motion. In response, the trial court declared that the Defendant's list of cases was not exclusive and that there had been twenty-five cases since 2000. Also, with regard to the cases cited by the Defendant, the trial court stated that it had no knowledge of the specific facts of the cases upon which it could refer and compare the instant case. The trial court opined, however, that the facts in State v. LeBlanc, 09–1355 (La.7/6/10), 41 So.3d 1168, were similar to those in the instant case and supported the sentences imposed in the instant case. In LeBlanc, the supreme court reinstated the defendant's thirty-year sentence for vehicular homicide which was found to be excessive and vacated by this court on appeal in State v. LeBlanc, 08–1533 (La.App. 3 Cir. 6/10/09), 12 So.3d 1125.

In its reasons for...