State v. Franco

• Decision Date: 01 April 2009
• Docket Number: No. 08-1071.,08-1071.
• Citation: 8 So.3d 790
• Parties: STATE of Louisiana v. Raymundo FRANCO.
• Court: Court of Appeal of Louisiana — District of US

8 So.3d 790

STATE of Louisiana v. Raymundo FRANCO.

No. 08-1071.

Court of Appeal of Louisiana, Third Circuit.

April 1, 2009.

Rehearing Denied May 13, 2009.

James E. Beal, Louisiana Appellate Project, Jonesboro, Louisiana, for Defendant/Appellant, Raymundo Franco.

Michael Harson, District Attorney, Ronald E. Dauterive, Assistant District Attorney, Lafayette, Louisiana, for State of Louisiana.

Raymundo Franco, Cottonport, Louisiana, Defendant/Appellant.

Court composed of JOHN D. SAUNDERS, MICHAEL G. SULLIVAN, and JAMES T. GENOVESE, Judges.

SULLIVAN, Judge.

Defendant, Raymundo Franco, appeals his sentence for vehicular homicide, claiming it is excessive. He also makes a pro se claim that the trial court breached his plea agreement and that his consent was vitiated when he received an excessive sentence. For the following reasons, we affirm Defendant's sentence, as amended, and remand with instructions.

Facts

On February 18, 2007, the weekend before Mardi Gras, Defendant ran a red light, and his vehicle collided with a vehicle driven by B.D.,¹ a seventeen-year-old female. Defendant's blood alcohol concentration was 0.26. B.D. had two passengers, K.V. and M.L, who were also seventeen years old. B.D. was killed, and K.V. and M.L. were seriously injured. M.L.'s left leg was amputated below the knee, and she had to undergo numerous surgeries, which required her to be hospitalized for an extended period of time. K.V. was also hospitalized and lost her spleen.

Defendant was charged with vehicular homicide, a violation of La.R.S. 14:32.1, two counts of first degree vehicular negligent injuring, a violation of La.R.S. 14:39.2, and operating a motor vehicle without required insurance, a violation of La.R.S. 32:861. He pled guilty to vehicular homicide and two counts of first degree vehicular negligent injuring; the charge of operating a motor vehicle without required insurance was dismissed. For his conviction of vehicular homicide, Defendant was sentenced to twenty-four years at hard labor and ordered to serve the first five years without the benefit of probation, parole, or suspension of sentence; he was also ordered to pay a fine of $2,000.00 and court costs of $183.50. For each conviction of first degree vehicular negligent injuring, Defendant was sentenced to five years at hard labor. The three sentences were ordered to run concurrently, and Defendant was given credit for time served. The trial court requested that Defendant be confined to a facility in which he could receive alcohol and substance abuse treatment and imposed conditions of parole.

Defendant filed a pro se Motion to Reconsider Sentence, which was summarily denied with reasons. He then filed a pro se "Motion to Vacate Illegal Sentence ordering Resentence," which was also summarily denied with reasons. Thereafter, he filed this appeal.

Errors Patent

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. There are two error patents.

The trial court imposed conditions of parole; however, it does not have the authority to impose such conditions. State v. Bradley, 99-364 (La.App. 3 Cir. 11/3/99), 746 So.2d 263. Accordingly, Defendant's sentence is amended by deleting the conditions of parole, and the trial court is instructed to make an entry in the court minutes reflecting this amendment.

The trial court gave Defendant incorrect advice as to the time period for seeking post-conviction relief. It informed Defendant that his sentences and convictions would be final in five days if he did not file an appeal or a motion to reconsider his sentence. Pursuant to La.Code Crim.P. arts. 914 and 922, the earliest a conviction and sentence can become final is thirty days after the imposition of sentence, provided the defendant does not file an appeal or a motion to reconsider sentence. In light of this error, the trial court is directed to inform Defendant of the correct prescriptive period by sending appropriate written notice to him within ten days of the rendition of this opinion and to file written proof of the notice in the record of this proceeding. State v. Roe, 05-116 (La.App. 3 Cir. 6/1/05), 903 So.2d 1265, writ denied, 05-1762 (La.2/10/06), 924 So.2d 163.

Excessive Sentence

Defendant urges that the trial court failed to give sufficient consideration to mitigating factors in fashioning his sentence for vehicular homicide, and as a result, he received an excessive sentence. In his pro se Motion to Reconsider Sentence, Defendant did not set forth a specific ground upon which his motion was based, stating only that his sentence was excessive. A motion to reconsider sentence must be based upon a specific ground. La.Code Crim. art. 881.1(E). This requirement includes claims of excessiveness. Id. In State v. Mims, 619 So.2d 1059, 1059-60 (La.1993), the supreme court addressed this requirement, explaining:

If the defendant does not allege any specific ground for excessiveness or present any argument or evidence not previously considered by the court at original sentencing, then the defendant does not lose the right to appeal the sentence; the defendant is simply relegated to having the appellate court consider the bare claim of excessiveness.

Defendant did not argue that the trial court did not sufficiently consider the mitigating factors as provided in La.Code Crim.P. art. 894.1 or that the trial court failed to comply with Article 894.1; therefore, he is relegated to a bare claim of excessiveness. Id.

In State v. Semien, 06-841, pp. 11-12 (La.App. 3 Cir. 1/31/07), 948 So.2d 1189, 1197, writ denied, 07-448 (La. 10/12/07), 965 So.2d 397, this court stated:

The Eighth Amendment to the United States Constitution and La. Const. art. I, § 20 prohibit the imposition of cruel or excessive punishment. "`[T]he excessiveness of a sentence becomes a question of law reviewable under the appellate jurisdiction of this court.'" State v. Dorthey, 623 So.2d 1276, 1280 (La.1993) (quoting State v. Sepulvado, 367 So.2d 762, 764 (La.1979)). Still, the trial court is given wide discretion in imposing a sentence, and, absent a manifest abuse of that discretion, we will not deem as excessive a sentence imposed within statutory limits. State v. Pyke, 95-919 (La.App. 3 Cir. 3/6/96), 670 So.2d 713. However, "[m]aximum sentences are reserved for the most serious violations and the worst offenders." State v. Farhood, 02-490, p. 11 (La.App. 5 Cir. 3/25/03), 844 So.2d 217, 225. The only relevant question for us to consider on review is not whether another sentence would be more appropriate, but whether the trial court abused its broad discretion in sentencing a defendant. 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).

The fifth circuit, in [State v.] Lisotta, [98-648 (La.App. 5 Cir. 12/16/98),] 726 So.2d [57] at 58, stated that the reviewing court should consider three factors in reviewing the trial court's sentencing discretion:

1. The nature of the crime,

2. The nature and background of the offender, and

3. The sentence imposed for similar crimes by the same court and other courts.

State v. Whatley, 03-1275, pp. 5-6 (La. App. 3 Cir. 3/3/04), 867 So.2d 955, 958-59 first two alterations in original.

Nature of the Crime

The crime at issue here is vehicular homicide, which carries a maximum sentence of thirty years at hard labor. La. R.S. 14:32.1. In 2004, the legislature increased the maximum penalty for vehicular homicide from twenty years to thirty years, demonstrating its intent to convey the serious nature of this crime. State v. Morain, 07-1207 (La.App. 3 Cir. 4/2/08), 981 So.2d 66. Then, in 2006, the minimum penalty for vehicular homicide was increased from two years to five years at hard labor, and the minimum number of years required to be imposed without benefit of probation, parole, or suspension of sentence was increased from one year to three years, further evidencing the legislature's intent to convey the seriousness of this offense.

In this case, the offense caused the untimely death of a seventeen-year-old girl, for which "[t]here is no measure of punishment to this defendant that can erase this crime, ease [this family's] pain, or comfort this family," as the trial court observed.

Nature and Background of Defendant

Defendant was twenty-three years old at the time of the accident herein. He had no prior felony convictions but had several misdemeanor convictions, including DWI, improper lane usage, careless operation, and no driver's license in possession. In fact, Defendant was on probation for a prior DWI conviction at the time of the instant offense. Additionally, his blood alcohol concentration was more than three times the legal limit of "0.08 percent or more by weight based on grams of alcohol per one hundred cubic centimeters of blood." La.R.S. 14:98(A)(1)(b).

Defendant obtained his Graduate Equivalency Diploma, then attended a branch of Texas A & M in Houston, Texas, which led him to be a diver. He moved to New Iberia, Louisiana, to work as a diver, where he was gainfully employed for about two years before the accident. He accepted responsibility for his conduct and showed remorse for the consequences of his misconduct. He admitted that he has a substance abuse problem for which he needed help and completed Project Kite, a substance abuse program offered to incarcerated inmates. He was also...