State of Louisiana v. Kenneth Romero AKA Kenneth J. Romero

• Court: Louisiana Court of Appeal
• Decided: February 21, 2018
• Docket: KA-0017-0636
• Status: Unknown

Opinion

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

17-636

STATE OF LOUISIANA

VERSUS

KENNETH ROMERO

************

APPEAL FROM THE THIRTEENTH JUDICIAL DISTRICT COURT PARISH OF EVANGELINE, NO. 98015-FB HONORABLE CHUCK RANDALL WEST, DISTRICT JUDGE

************ SYLVIA R. COOKS JUDGE ************

Court composed of Sylvia R. Cooks, Elizabeth A. Pickett, and Phyllis M. Keaty, Judges.

AFFIRMED WITH INSTRUCTIONS.

Trent Brignac District Attorney Nicole F. Gil Assistant District Attorney P. O. Drawer 780 Ville Platte, LA 70586 (337) 363-3438 COUNSEL FOR APPELLEE: State of Louisiana

Thomas E. Guilbeau Jason W. Robideaux P. O. Box 3331 Lafayette, LA 70502 (337) 232-7240 COUNSEL FOR APPELLANT: Kenneth Romero COOKS, Judge.

FACTS AND PROCEDURAL HISTORY

On October 19, 2013, Defendant, Kenneth Romero, while driving his Dodge

pick-up truck, struck the victim, Jonathon Ben. As a result of the injuries suffered

from the collision, Mr. Ben died. Defendant did not stop and render any assistance

to Mr. Ben, nor did he call the police or any emergency assistance. Instead he fled

the scene.

On February 5, 2014, Defendant was charged by bill of information with one

count of vehicular homicide, in violation of La.R.S. 14:32.1, and one count of hit-

and-run driving resulting in death, in violation of La.R.S. 14:100(C)(2). In

anticipation of a plea agreement on March 3, 2017, the State amended the first

count of the bill to negligent homicide, in violation of La.R.S. 14:32. At that time,

Defendant pled guilty to negligent homicide and entered a plea in accordance with

North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160 (1970) on the hit-and-run

driving charge. Pursuant to Alford, trial counsel acknowledged for the record that

he believed there was “sufficient and substantial evidence” of Defendant’s guilt

with respect to the hit-and-run driving charge without admitting guilt.

On May 10, 2017, the trial court sentenced Defendant to serve three and

one-half years at hard labor and a twenty-five hundred dollar fine for negligent

homicide and eight years at hard labor for the hit-and-run driving, with a twenty-

five hundred dollar fine and three years of his sentence suspended with five years

of supervised probation. The sentences were to run concurrently.

Defendant now appeals, raising a single assignment of error, namely, that

the trial court erred in accepting Defendant’s Alford plea when Defendant denied

knowing his vehicle had struck the victim “without requiring the State to establish

a substantial basis of guilt in the record.” For the reasons discussed below, we find

2 no merit to Defendant’s assignment of error and affirm his convictions and

sentences.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for

errors patent on the face of the record. The court minutes of sentencing require

correction. For the offense of negligent homicide, the sentencing minutes reflect

that the court imposed a sentence of three and one-half years at hard labor and that

upon release, Defendant is to be placed on five years of supervised probation.

The sentencing transcript indicates that on the negligent homicide charge, a

hard labor sentence of three and one-half years was imposed with no portion of the

sentence being suspended and Defendant not being placed on probation. “[W]hen

the minutes and the transcript conflict, the transcript prevails.” State v. Wommack,

00-137, p. 4 (La.App. 3 Cir. 6/7/00), 770 So.2d 365, 369, writ denied, 00-2051 (La.

9/21/01), 797 So.2d 62.

Accordingly, the trial court is ordered to correct the sentencing minutes to

accurately reflect Defendant’s sentence for negligent homicide.

ASSIGNMENT OF ERROR

Defendant’s only assignment of error relates to his conviction for hit-and-

run driving, a violation of La.R.S. 14:100, which states: “Hit and run driving is the

intentional failure of the driver of a vehicle involved in or causing any accident, to

stop such vehicle at the scene of the accident, to give his identity, and to render

reasonable aid.” Additionally, La.R.S. 14:100(C)(2) provides for a greater penalty

“when death or serious bodily injury is a direct result of the accident and when the

driver knew or should have known that death or serious bodily injury has

occurred.”

In his sole assignment of error, Defendant argues the trial court erred by

accepting his Alford plea to hit-and-run driving because the trial court should have

3 known there was a serious question regarding whether or not Defendant “knew or

should have known that death or serious bodily injury has occurred.”

Defendant’s argument, despite his semantic use of the term “specific

knowledge” throughout, is that the trial court should have required a more in-depth

factual basis because there was a question regarding Defendant’s intent. Namely,

he argues that he had no idea he hit the victim until he noticed a dent in his vehicle

the following morning, which indicates he did not have the necessary “specific

knowledge.” His entire argument is based on the false belief that hit-and-run

driving requires specific intent, which it does not. The supreme court noted in State

v. Williams, 03-3514, p. 13 (La. 12/13/04), 893 So.2d 7, 16, that hit-and-run

driving is a general intent crime where “the criminal intent necessary to sustain a

conviction for hit-and-run driving is established by the very doing of the act, i.e.

hit-and-run driving.”

Voluntary intoxication does not negate general intent. See La.R.S. 14:15.

Therefore, the fact that Defendant claims he was too intoxicated to remember

hitting anyone has no bearing on whether or not he had the intent to commit hit-

and-run driving. Additionally, while Defendant now claims the trial court and the

State both should have known that a more substantial basis of guilt must be placed

into the record, the trial court specifically asked Defendant and both of his

attorneys if they were satisfied with the factual basis recited by the State. All three

stated that they were satisfied with the factual basis. Thus, in light of the above,

there is no issue with the factual basis given at the time of Defendant’s plea.

“[T]he standard under Alford is whether the strength of the factual basis,

coupled with the other circumstances of the plea, reflects that the plea was a

voluntary and intelligent choice among the alternatives available to Defendant.”

State v. Fregia, 12-646, pp. 6-7 (La.App. 3 Cir. 12/5/12), 105 So.3d 999, 1004.

Prior to the reading of the factual basis, Defendant and his attorneys acknowledged 4 there was sufficient evidence to convict him of hit-and-run driving. They likewise

failed to object to the factual basis after it was read. Finally, the basis specifically

noted that Defendant hit the victim, Mr. Jonathon Ben, with his truck, failed to stop

or render aid in any way, and Mr. Ben died as a result. Therefore, we find no merit

to Defendant’s assignment of error.

DECREE

For the foregoing reasons, Defendant’s convictions and sentences are

affirmed; however, the trial court is ordered to correct the sentencing minutes to

accurately reflect Defendant’s sentence for negligent homicide.