State v. Kotrla

• Decision Date: 05 November 2008
• Docket Number: No. 08-364.,08-364.
• Citation: 996 So.2d 1224
• Parties: STATE of Louisiana v. Marshall M. KOTRLA.
• Court: Court of Appeal of Louisiana — District of US

996 So.2d 1224

STATE of Louisiana v. Marshall M. KOTRLA.

No. 08-364.

Court of Appeal of Louisiana, Third Circuit.

November 5, 2008.

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

Randall M. Guidry, Durio, McGoffin, Stagg & Ackermann, Lafayette, Louisiana, for Defendant/Appellant, Marshall M. Kotrla.

Court composed of SYLVIA R. COOKS, MICHAEL G. SULLIVAN, and BILLY HOWARD EZELL, Judges.

SULLIVAN, Judge.

Defendant, Marshall M. Kotrla, was charged by bill of information with vehicular homicide, a violation of La.R.S. 14:32.1, and two counts of first degree vehicular negligent injuring, violations of La.R.S. 14:39.2. After one full day of trial, Defendant withdrew his plea of not guilty and entered a plea of guilty as charged. Defendant was sentenced to serve sixteen years at hard labor for vehicular homicide, with the first five years without benefit of parole. The trial court also imposed a $2,000.00 fine and ordered Defendant to pay court costs of $183.50. He was sentenced to five years at hard labor for each count of first degree vehicular negligent injuring. All three sentences were ordered to run concurrently. A motion to reconsider sentence was filed on April 4, 2007; the motion was denied without a hearing.

Defendant now appeals, asserting that his sentence for vehicular homicide is excessive and that the trial court did not adequately consider a mitigating factor which should have resulted in a reduced sentence. For the following reasons, we amend Defendant's sentence for vehicular homicide and affirm as amended.

FACTS

The following facts were taken from the factual basis set forth by the State at Defendant's guilty plea hearing. On March 25, 2006, Defendant was driving his vehicle while under the influence of alcohol and struck another vehicle, causing the death of one passenger and seriously injuring the driver and another passenger.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, this court reviews all appeals for errors patent on the face of the record. We have discovered several errors patent regarding Defendant's sentence and an error regarding the trial court's advisement of the prescriptive period of La.Code Crim.P. art. 930.8.

The sentencing provision for vehicular homicide, La.R.S. 14:32.1(B), that was in effect when the offense was committed provided, in pertinent part:

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 two years nor more than thirty years. At least one year of the sentence of imprisonment shall be imposed without benefit of probation, parole, or suspension of sentence. 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. ... The court shall require the offender to participate in a court-approved substance abuse program and may require the offender to participate in a court-approved driver improvement program.

At Defendant's sentencing, the trial court stated:

So, for the offense of vehicular homicide, the Court sentences you to a term of imprisonment at hard labor for 16 years. And ... five years of that sentence must be served without benefit of parole. The Court is also imposing a fine of $2,000 and court costs of $183.50.

For each count of first degree negligent injuring, the Court is imposing a sentence of five years at hard labor. And all these sentences will run concurrently.

Further, if you are granted parole in this matter, the Court is ordering that a condition of your parole be that you pay the fine and court costs which I've just imposed; that you undergo substance abuse treatment; that you complete a driver improvement course; that you not operate a vehicle unless that vehicle is equipped with an interlocking device; and that you participate in the No Fear No Future program of the Junior League or some other similar program about drinking. ...

. . . .

Also, as a condition of parole, I would want restitution made to the families in this case. But since, at this point, we are not aware of what those amounts are, those will be determined at such time that parole may become appropriate.

I'm also requesting that the Department of Corrections confine you to a facility where you can receive substance abuse treatment.

. . . .

Pursuant to Code of Criminal Procedure Article 930.8, you have two years from this date-from the date your conviction and sentence become final to file for post-conviction relief. This means, if you appeal this sentence and your appeal is denied, you have two years from the judgment on appeal to file for post-conviction relief. If you do not take an appeal, then your conviction is going to be final five days from today, and you'll have two years from that date to file for post-conviction relief.

In State v. Bradley, 99-364 (La. App. 3 Cir. 11/3/99), 746 So.2d 263, this court explained that the power to regulate one on parole is vested in a parole board within the Department of Corrections and that a trial court has no authority to impose a condition on a parolee. More specifically, a sentencing court is without authority to impose restitution as a condition for a defendant's future parole. State v. Douglas, 576 So.2d 1102 (La.App. 3 Cir. 1991). Additionally, La.Code Crim.P. art 888 provides that costs and fines shall be payable immediately.

The trial court erred in ordering that Defendant pay the fine and court costs, as well as restitution, as conditions of any possible future parole. Defendant's sentence is amended, deleting payment of the fine, court costs, and restitution, as well as the requirement that he undergo substance abuse treatment, as conditions of parole, and the trial court is instructed to make an entry in the court minutes reflecting the amendment.

Although the trial court recommended that Defendant be confined to a facility where he could receive substance abuse treatment, it failed to require that he participate in a court-approved substance abuse program as part of his original sentence as mandated by La.R.S. 14:32.1, thus rendering Defendant's sentence illegally lenient. Defendant's sentence must be amended to reflect that he is required to participate in a court-approved substance abuse program, and we instruct the trial court to make a notation in the minutes reflecting the amendment. See State v. Williams, 00-1725 (La.11/28/01), 800 So.2d 790, and La.Code Crim.P. art. 882.

According to La.Code Crim.P. art. 930.8, the two-year prescriptive period for filing post-conviction relief begins to run when the defendant's conviction and sentence become final under the provisions of La.Code Crim.P. arts. 914 or 922. According to the time periods set forth in those articles, the earliest a conviction and sentence can become final is thirty days after the imposition of sentence, provided that the defendant files neither an appeal nor a motion to reconsider sentence. The trial court erred in advising Defendant when the prescriptive period for filing post-conviction relief would begin to run. Accordingly, 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 such notice into the record of these proceedings. 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.

ASSIGNMENT OF ERROR NUMBER ONE

Defendant argues that a sixteen-year sentence for a first-time offender who pled guilty is excessive. This court has set forth the following standard to be used in reviewing excessive sentence claims:

La. Const. art. I, § 20 guarantees that, "[n]o law shall subject any person to cruel or unusual punishment." To constitute an excessive sentence, the reviewing court must find the penalty 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 is, therefore, nothing more than a needless imposition of pain and suffering. State v. Campbell, 404 So.2d 1205 (La.1981). The trial court has wide discretion in the imposition of sentence within the statutory limits and such sentence shall not be set aside as excessive absent a manifest abuse of discretion. State v. Etienne, 99-192 (La.App. 3 Cir. 10/13/99); 746 So.2d 124, writ denied, 00-0165 (La.6/30/00); 765 So.2d 1067. The relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been 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).

State v. Barling, 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035 1042-43, writ denied, 01-838 (La.2/1/02), 808 So.2d 331 (alteration in original).

To decide whether a sentence shocks the sense of justice or makes no meaningful contribution to acceptable penal goals, this court has held:

[A]n appellate court may consider several factors including the nature of the offense, the circumstances of the offender, the legislative purpose behind the punishment and a comparison of the sentences imposed for similar crimes. State v. Smith, 99-0606 (La.7/6/00), 766 So.2d 501. While a comparison of sentences imposed for similar crimes may provide some insight, "it is well settled that sentences must be individualized to the particular offender and to the particular offense committed." State v. Batiste, 594 So.2d 1 (La.App. 1 Cir.1991). Additionally, it is within the purview of the trial...