STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
09-1065
STATE OF LOUISIANA
VERSUS
KEYOWASKI M. DOUCET
**********
APPEAL FROM THE THIRTEENTH JUDICIAL DISTRICT COURT PARISH OF EVANGELINE, NO. 77660-FA HONORABLE JOHN LARRY VIDRINE, DISTRICT JUDGE
ULYSSES GENE THIBODEAUX CHIEF JUDGE
Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, and Elizabeth A. Pickett, Judges.
AFFIRMED WITH INSTRUCTIONS.
Annette Fuller Roach Louisiana Appellate Project P. O. Box 1747 Lake Charles, LA 70602-1747 Telephone: (337) 436-2900 COUNSEL FOR: Defendant/Appellant - Keyowaski M. Doucet
Trent Brignac District Attorney, Thirteenth Judicial District Court Julhelene E. Jackson Assistant District Attorney, Thirteenth Judicial District Court P. O. Box 780 Ville Platte, LA 70586 Telephone: (337) 363-3438 COUNSEL FOR: Plaintiff/Appellee - State of Louisiana THIBODEAUX, Chief Judge.
In 2009, Defendant, Keyowaski M. Doucet, pled guilty to the following
counts: (1) vehicular homicide, in violation of La.R.S. 14:32.1; (2) driving while
intoxicated, first offense, in violation of La.R.S. 14:98; (3) careless operation of a
motor vehicle, in violation of La.R.S. 32:58; (4) driving under suspension, in
violation of La.R.S. 32:415; and, (5) no seat belt, in violation of La.R.S. 32:295.1.
The trial court sentenced Doucet to the concurrent sentences of twenty-five years at
hard labor for vehicular homicide, six months in the parish jail for driving while
intoxicated, six months in the parish jail for careless operation, six months in the
parish jail for driving under suspension, and thirty days in parish jail for no seat belt.
Doucet appeals claiming his vehicular homicide sentence was excessive. For the
following reasons, we affirm.
ISSUES
We shall consider whether:
(1) Defendant’s sentence of twenty five years at hard labor was excessive where Defendant, with previous misdemeanor and felony convictions, drove a vehicle while under the influence of illegal drugs and alcohol into a home killing the resident and leaving the scene;
(2) the trial court satisfied the mandates of La.Code Crim.P. art. 894.1; and,
(3) the defense counsel’s failure to file a motion to reconsider sentence is enough to support a claim of ineffective assistance of counsel under the circumstances of the case mentioned above.
FACTS
In 2008, Doucet, while under the influence of PCP, marijuana, and
alcohol, veered off the road and struck a home, killing the resident. The pre-sentence investigation report (PSI) indicates that police were dispatched in reference to a
vehicle stolen by Doucet. While looking for the vehicle, police were advised to go
to the home of Doucet’s mother. Doucet’s mother then instructed Doucet to show
police where the vehicle was. Doucet voluntarily went with police and, eventually,
located the vehicle.
After an investigation, police concluded that Doucet left the road and
struck a ditch. He continued to travel through a private field, struck two fences, and,
eventually, struck a private residence. Police concluded that Doucet never attempted
to slow down or brake after leaving the roadway. After the accident, Doucet left the
scene and made no attempt to notify emergency personnel about the crash.
The following is a summary of Doucet’s personal and criminal history
contained in the PSI. Doucet is currently classified as a second felony offender. He
stated that he was not in the right state of mind at the time of the accident and that he
was sorry about the accident. Doucet is the only child born to never-married parents.
His mother raised him along with his three younger half-brothers, and the family is
very close.
Doucet quit attending school after completing the seventh grade. He
entered the work force at the age of 20. Doucet worked as a galleyhand for ESS, an
offshore company, for approximately two months before being laid off.
Approximately a year later, Doucet worked off-and-on as a painter. In 2007, Doucet
secured employment with Dean Hart Construction. He was employed with them on
two separate occasions, for approximately one month on each occasion, in 2007 and
in 2008. In February of 2008, Doucet’s probation was revoked under Act 402 for a
ninety-day period.
2 Most recently, in September of 2008, Doucet worked for another
construction company. Doucet stated he was employed with this company until his
arrest for this offense. He has been incarcerated since that time.
Doucet has never married. He has reported having two daughters who
live with their mother. Doucet had contact with his children prior to his incarceration.
Doucet reported using illegal drugs and alcohol from his teens until his
arrest for this offense. While on probation for offenses for which he was convicted
in 2006, Doucet denied having an alcohol problem. He reported the use of Cocaine,
Marijuana, and PCP. Doucet continued to use illegal drugs during his period of
probation. He was returned to court for these violations and others. The court
ordered that he complete the Revocation Center, a ninety-day lock-down drug
treatment program.
There, Doucet received drug treatment counseling and life skills
counseling. He completed that program. Nevertheless, he continued to use illegal
drugs during the remainder of this period of supervision.
Doucet has not reported any physical health problems. At the time that
he was placed on probation in 2006, he reported having received treatment for
approximately one week for mental health problems. He advised that he suffered
from depression and anger. He completed an Anger Management Program in 2005.
While on probation, Doucet reported suffering from depression. He was advised that
he should be evaluated by the Mental Health Clinic. He never contacted the clinic.
Doucet has indicated that he was not in the right frame of mind at the time he
committed this offense.
Doucet became criminally active at age fourteen. His adult record began
at age nineteen. He has been arrested on numerous occasions for misdemeanor and
3 felony offenses. Thus, Doucet pled guilty to obstructing a public passage and
contempt of court in 2004; criminal damage to property, criminal damage, and
possession of marijuana in 2005; filing a false public record, unauthorized use of a
motor vehicle, disturbing the peace, and contempt of court in 2006; resisting arrest
by flight, no driver’s license, following too close with an accident, hit and run, and
contempt of court in 2008; disturbing the peace by offensive language,
misrepresentation during booking, simple assault, and resisting arrest in 2009.
Charges of simple battery, resisting an officer, and threatening a public official were
pending at the time the PSI was completed.
Because of Doucet’s convictions, he was placed on misdemeanor
probation on two separate occasions. It appears that he completed one of those
periods of supervision satisfactorily. The other misdemeanor probation has not been
completed, and there was an active bench warrant for Doucet’s arrest. He failed to
return for a revocation hearing in that matter.
He has also been supervised for two separate felony convictions. Both
of these convictions occurred in 2006. Doucet was supervised on both of them
simultaneously. Doucet violated the conditions of probation on several occasions by
committing new misdemeanor offenses: using illegal drugs and not making a sincere
effort to comply with many of the other conditions of probation. He was scheduled
to be returned to court in both dockets. Doucet has already been served with notice
of the hearing when he committed this offense. Both periods of probation were
revoked. The first period of probation was a result of a conviction for filing false
public record. The second, for unauthorized use of a motor vehicle. Because both
offenses occurred prior to any conviction, Doucet remained a first felony offender.
4 This offense of vehicular homicide is Doucet’s third felony offense. However, he is
only classified as a second felony offender.
Finally, the PSI contained the following observation. The sentence for
vehicular homicide mandates that three years be served without benefit of probation,
parole, or suspension of sentence. Therefore, Doucet is not eligible for probation.
Also, he is not eligible for the Impact Program due to the mandated sentence.
PROCEDURAL NOTE
Doucet entered a plea of guilty to Counts 1 through 5 listed above.
Because Counts 2-5 were not triable by jury, the proper mode of appellate review for
these offenses is an application for writ of review, rather than an appeal. La.Code
Crim.P. art. 912.1.
In State v. Turner, 04-1250 (La.App. 3 Cir. 3/2/05), 896 So.2d 286, writ
denied, 05-871 (La. 12/12/05), 917 So.2d 1084, Defendant appealed his convictions
for two felonies and one misdemeanor, but made no specific arguments regarding his
misdemeanor conviction. Thus, this court severed the misdemeanor conviction from
Defendant’s appeal of the two felony convictions. The court ordered Defendant to
file a writ of review regarding the misdemeanor conviction in compliance with the
Rules of Court. Id. If Defendant desired to seek review of the misdemeanor
conviction, this court considered the notice of appeal as a notice to file a writ of
review within thirty days of the court’s opinion.1
In State v. Stevens, 07-976 (La.App. 3 Cir. 3/5/08), 978 So.2d 535, the
State misjoined a felony with a misdemeanor in a single bill of information. This
court held that because Defendant failed to file a motion to quash the bill, he waived
1 In the decree language in Turner, 896 So.2d 286, this court simply affirmed Defendant’s felony convictions with no reference to the misdemeanor.
5 any objection to the error. We further noted that because the misdemeanor was not
triable by jury, the proper mode of appellate review was an application for writ of
review. Thus, we severed the misdemeanor conviction from the appeal.
In this case, Doucet has not challenged the misdemeanors; his
assignments of error concern his sentence for vehicular homicide. Therefore, this
court severs the misdemeanors from the appeal and instructs Doucet that if he chooses
to seek review of the misdemeanors, he must file an application seeking supervisory
review with this court within thirty days of the court’s ruling on appeal.2
Finally, the record does not indicate that the trial court advised Doucet
of the prescriptive period for filing post-conviction relief as required by La.Code
Crim.P. art. 930.8. Thus, we direct the trial court to inform Doucet of the provisions
of La.Code Crim.P. art. 930.8 by sending appropriate written notice to Doucet within
ten days of the rendition of this opinion, and to file written proof in the record of the
proceedings that Doucet received the notice. See 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.
LAW AND DISCUSSION
Because all of the issues Doucet raises pertain to his sentence, we shall
address them at the same time. Defendant has thirty days after the imposition of
sentence to make or file a motion to reconsider sentence. La.Code Crim.P. art. 881.1.
Thus, Defendant’s excessive sentence claim is barred under La.Code Crim.P. art.
881.1 when Defendant neither made nor filed an objection regarding his sentence.
State v. Blake, 03-1465 (La.App. 3 Cir. 5/5/04), 872 So.2d 602. Nevertheless, when
2 Appellate counsel notes that pursuant to La.Code Crim.P. art. 493.1, the maximum aggregate sentence for counts 2 through 5 could not exceed six months. She notes that three six-month sentences and one thirty-day sentence were imposed, to run concurrently. However, she concedes that the appeal is limited to review of the sentence imposed for the felony offense of vehicular homicide.
6 the record contains sufficient evidence to address the ineffective assistance of counsel
issue, this court examines “whether there was a reasonable probability that the trial
court would have reduced” Defendant’s sentence if Defendant’s trial counsel made
or filed a motion to reconsider sentence. Id. at 608 (citing State v. Prudhomme,
02-511 (La.App. 3 Cir. 10/30/02), 829 So.2d 1166, writ denied, 02-3230 (La.
10/10/03), 855 So.2d 324).
When the defense counsel fails to file a motion to reconsider sentence,
Defendant may have a claim of ineffective assistance of counsel when Defendant
“can show a reasonable probability, but for defense counsel’s error, his sentence
would have been different.” Prudhomme, 829 So.2d at 1177 (citing State v. Texada,
98-1647 (La.App. 3 Cir. 5/5/99), 734 So.2d 854). Moreover,
[a] claim of ineffective assistance of counsel is properly raised in an application for post-conviction relief. This allows the trial judge an opportunity to order a full evidentiary hearing on the matter. State v. Burkhalter, 428 So.2d 449 (La.1983). However, where the record contains evidence sufficient to decide the issue and the issue is raised by an assignment of error on appeal, it may be considered. State v. James, 95-962 (La.App. 3 Cir. 2/14/96); 670 So.2d 461.
State v. Francis, 99-208, pp. 10-11 (La.App. 3 Cir. 10/6/99), 748 So.2d 484, 491, writ
denied, 00-544 (La. 11/13/00), 773 So.2d 156.
To prove an allegation of ineffectiveness, Defendant must specifically
show prejudice. Blake, 872 So.2d 602 (citing State v. Reed, 00-1537 (La.App. 3 Cir.
3/6/02), 809 So.2d 1261, writ denied, 02-1313 (La. 4/25/03), 842 So.2d 391).
“Whether or not a defendant received ineffective assistance of counsel is a two-part
inquiry. First, we must determine whether the trial court would have reduced the
Defendant’s sentences upon the filing of a ‘Motion to Reconsider Sentence.’ Second,
we must determine whether the sentences were excessive.” Id. at 609.
7 (1) Would the Trial Court Have Reduced the Defendant’s Sentence
Doucet did not file a motion to reconsider sentence and did not object
to the sentence at the time it was imposed. In brief to this court, Doucet asserts the
trial court did not inquire into his family or work history. He maintains the record
does not indicate a lengthy criminal record and none of his prior offenses are in the
same “crime family” as vehicular homicide. He further asserts that he had no prior
convictions for driving while intoxicated.
Doucet contends he assisted police in locating the vehicle after the
accident and accepted responsibility for his actions by pleading guilty. He avers the
trial court failed to give consideration to these mitigating factors. Further, the trial
court failed to consider his need for substance abuse rehabilitation.
Doucet also argues that the victim’s death and his use of drugs are
elements of the offense and should not be considered as aggravating factors. Further,
the record does not support the trial court’s conclusion that the events were likely to
re-occur. Doucet asserts that considering the factors listed by the trial court at
sentencing, it failed to give sufficient weight to La.Code Crim.P. art. 894.1 in arriving
at the sentence. Doucet then contends his sentence is excessive.
At sentencing, the trial court noted Doucet’s extensive criminal record,
which began at a very early age. The trial court commented that it reviewed the PSI
and that it has carefully considered the provisions of La.Code Crim.P. art. 894. The
trial court distinguished factual circumstances of this case from the one where two
people have been drinking together and then decided to get into a car together and
one of the persons gets killed in an accident. The trial court reasoned that unlike
Doucet’s victim, the victim who gets into the car and gets killed assumed a certain
amount of risk. Thus, the trial court concluded that a lesser sentence than what it was
8 going to impose would deprecate the seriousness of Doucet’s offence, especially in
light of Doucet’s criminal record that pointed to probable recidivism.
We find that the trial court considered the circumstances of this case and
Doucet’s circumstances before imposing the sentence. Thus, we conclude that the
trial court was unlikely to have reduced Doucet’s sentence had a motion to reconsider
sentence been filed.
(2) Excessiveness of Sentence
To constitute an excessive sentence, this Court must find that the penalty is so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no reasonable contribution to acceptable penal goals and[,] therefore, is nothing more than the needless imposition of pain and suffering. The trial judge has broad discretion, and a reviewing court may not set sentences aside absent a manifest abuse of discretion.
State v. Guzman, 99-1528, p. 15 (La. 5/16/00), 769 So.2d 1158, 1167 (citations
omitted). The following factors help to decide whether a sentence is shocking or
makes no meaningful contribution to acceptable penal goals: “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, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ denied,
03-562 (La. 5/30/03), 845 So.2d 1061 (citing State v. Smith, 99-606, 99-2015, 99-
2019, 99-2094 (La. 7/6/00), 766 So.2d 501). Although a comparison of sentences
imposed for similar crimes can be helpful, “it is well settled that sentences must be
individualized to the particular offender and to the particular offense committed.” Id.
(quoting State v. Batiste, 594 So.2d 1, 3 (La.App. 1 Cir. 1991)). Finally, because the
trial court is in the best position to evaluate the aggravating and mitigating factors of
9 a particular case, “it is within the purview of the trial court to particularize the
sentence.” Id.
Vehicular homicide is punishable by imprisonment with or without hard
labor for not less than five years nor more than thirty years. La.R.S. 14:32.1(B).
Doucet was sentenced to serve twenty-five years at hard labor.
In State v. Morain, 07-1207 (La.App. 3 Cir. 4/2/08), 981 So.2d 66, this
court found the sentence excessive. There, Defendant received a sentence of twenty
years, the maximum permitted at the time of the offense, for the death of a seventeen-
year old who was changing a tire on the side of the road. We distinguished the
circumstances in Morain from the circumstances in other cases where the defendants
received maximum or near maximum sentences. Unlike the defendants in other cases,
who had blood alcohol levels several times the legal limit, had prior DWI
convictions, and showed no remorse, Defendant in Morain had blood alcohol level
slightly over the limit, he had no prior DWI or other convictions, and he showed
remorse.
In State v. Kotrla, 08-364 (La.App. 3 Cir. 11/5/08), 996 So.2d 1224, we
held that a first-time felony offender’s sixteen-year sentence was not excessive where
Defendant’s blood alcohol level was twice the legal limit and his actions resulted in
the death of a human being and serious bodily injuries to two other persons.
In State v. Barber, 42,548 (La.App. 2 Cir. 10/24/07), 968 So.2d 829, the
court held that a twenty-year sentence, two-thirds of the maximum, was not excessive
where Defendant, who had two prior DWIs and was seen drinking excessively prior
to the accident, fled the scene of the accident on foot after striking and killing a
person.
10 From the cases cited above, it appears that the maximum sentences are
affirmed where Defendants engaged in prior DWI violations, other criminal offenses,
or both, and had no remorse. On the other hand, Defendants with minor or no
criminal history received one-half or three-quarters of the maximum sentences.
Here, Doucet’s criminal conduct began when he was fourteen years old.
He has been convicted of numerous misdemeanors and two felonies. He failed to
comply with the conditions of his probation on several occasions. Further, a
revocation hearing was requested and scheduled for November 12, 2008. On
November 11, 2008, he committed the offense at issue. Based on Doucet’s history
of drug use, his criminal history, his classification as a second felony offender, and
that he was on probation at the time he committed this offense, we find Doucet’s
sentence for vehicular homicide not excessive.
Consequently, even if Doucet’s trial counsel had filed a motion to
reconsider sentence, Doucet’s sentence would have been deemed appropriate under
the circumstances. Therefore, the trial counsel’s failure to file the motion did not
prejudice Doucet. Finally, “[w]here the record clearly shows an adequate factual
basis for the sentence imposed, remand is unnecessary even where there has not been
full compliance with La.C.Cr.P. art. 894.1.” State v. Leger, 04-1467, p. 62 (La.App.
3 Cir. 6/1/05), 907 So.2d 739, 780, writ denied, 05-2263 (La. 4/17/06), 926 So.2d
509, cert. denied, 549 U.S. 910, 127 S.Ct. 245 (2006) (quoting State v. Hampton,
38,017, 38,018, 38,019, 38,020, 38,021, 38,022, p. 11 (La.App. 2 Cir. 1/28/04), 865
So.2d 284, 292, writ denied, 04-834 (La. 3/11/05), 896 So.2d 57, writ denied, 04-
2380 (La. 6/3/05), 903 So.2d 452).
11 CONCLUSION
Doucet’s sentence for vehicular homicide is affirmed. This court severs
the misdemeanor convictions from the appeal and instructs Doucet to file an
application for supervisory review within thirty days of this ruling if he chooses to
seek review of the misdemeanors. Additionally, the trial court is directed to inform
Doucet of the provisions of La.Code Crim.P. art. 930.8 by sending appropriate written
notice to Doucet within ten days of the rendition of this opinion, and to file written
proof in the record of the proceedings that Doucet received the notice.