Judgment rendered December 14, 2022. Application for rehearing may be filed within the delay allowed by Art. 922, La. C. Cr. P.
No. 54,888-KA
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
STATE OF LOUISIANA Appellee
versus
MATTHEW J. PARKS Appellant
Appealed from the First Judicial District Court for the Parish of Caddo, Louisiana Trial Court No. 376,352
Honorable Donald E. Hathaway, Jr., Judge
LOUISIANA APPELLATE PROJECT Counsel for Appellant By: Peggy Sullivan
JAMES E. STEWART, SR. Counsel for Appellee District Attorney
TOMMY JAN JOHNSON JASON WAYNE WALTMAN VICTORIA T. WASHINGTON Assistant District Attorneys
Before MOORE, COX, and HUNTER, JJ. COX, J.
This criminal appeal arises from the First Judicial District Court,
Caddo Parish, Louisiana. Following a jury trial, defendant, Matthew Parks
(“Parks”), was convicted of one count of vehicular homicide in violation of
La. R.S. 14:32.1. Parks was fined $2,000 and sentenced to 25 years at hard
labor, with five years to be served without benefit of probation, parole, or
suspension of sentence. Parks now appeals, challenging the sufficiency of
the evidence for his conviction and the excessiveness of his sentence. For
the following reasons, we affirm Parks’ conviction but remand for
resentencing.
STATEMENT OF FACTS
On June 11, 2020, Shreveport Police Department (“SPD”) responded
to an automobile accident that occurred at the intersection of Highway 3132
and Linwood Avenue in Shreveport, Louisiana. Evidence introduced at trial
established that the victim, Barbara Moore (“Moore”), operated a red, 1999
Grand Marquis, and Parks was alleged to have driven a silver, 2003 GMC
Yukon (“SUV”), which collided into the front left side of Moore’s vehicle,
trapping her inside, and ultimately caused Moore’s death. Upon arrival at the
scene, first responders reported seeing a man on the roadway and Moore
inside the vehicle. Responding officer Darrell Favis (“Officer Favis”)1
requested a DWI unit, and Parks was taken into custody and subsequently
arrested for Moore’s death.
1 Prior to its opening statement, the State provided that Officer Favis, the initial responding officer, although subpoenaed to testify at trial, was unable to testify because he was involved in an automobile accident the morning of trial and would be unable to testify for any portion of the trial. The State and counsel for Parks agreed to continue trial without Officer Favis’ testimony. On July 6, 2020, the State of Louisiana filed a bill of information
charging Parks with vehicular homicide.2 On July 13, 2021, a two-day jury
trial commenced, wherein the following testimony was adduced at trial:
Corporal Grigsby
First, the State called Corporal Clinton Grigsby (“Cpl. Grigsby”), of
the DWI unit for SPD. Cpl. Grigsby testified that on the day in question,
Officer Favis contacted him and requested a DWI unit because there had
been a major accident and he suspected that one driver was under the
influence. Cpl. Grigsby stated that when he arrived at the scene of the
accident, emergency medical services (“EMS”) and other police units were
present. He stated that he spoke to Officer Favis, who identified Parks as the
driver suspected of being under the influence, he detained Parks, and
transported him to SPD’s selective unit downtown.
He explained that once he arrived at the selective unit, he read Parks
his chemical rights for intoxication, but was unable to administer either the
walk-and-turn or one-leg-stand sobriety test because Parks claimed that his
face, chin, and thigh were injured from the accident. Cpl. Grigsby stated
that as a result, he had to administer an Intoxilyzer,3 which reflected that
Parks’ BAC was .142 grams percent. Cpl. Grigsby noted that he also
suspected Parks was under the influence because he had a strong odor of
alcohol, slurred speech, and glossy eyes. After the State introduced and
2 The bill of information initially provided that Park’s blood alcohol concentration (“BAC”) was .10%, in violation of La. R.S. 14:32.1, but was later amended to reflect a BAC of .08%. 3 Cpl. Grigsby explained that in operating the Intoxilyzer, he was required to enter Parks’ driver’s license number.
2 played a video of Cpl. Grigsby administering the Intoxilyzer, Cpl. Grigsby
identified Parks in open court as the person in the video.
On cross-examination, Cpl. Grigsby testified that while there were
civilians present when he arrived at the accident, he did not take a statement
from them, and no civilian informed him that Parks was the driver of the
SUV. He clarified that Officer Favis, the initial responding officer to the
accident, informed him that Parks was the driver.4 In reviewing the video of
Parks’ sobriety test, Cpl. Grigsby testified that Parks had a napkin with
blood on it against his face because he had been injured from the accident.
Finally, in reviewing his accident report, Cpl. Grigsby noted that while
detained, Parks stated that when he “woke up, [sic] he was on the passenger
side and a civilian had pulled him from the vehicle.” Cpl. Grigsby then
stated that, while not detailed in his report, Parks also stated that he was
“thrown in that vehicle when the accident occurred.”
Captain Allen
Next, Captain Jefferey Mark Allen (“Cpt. Allen”) of the Shreveport
Fire Department (“SFD”) testified. Cpt. Allen stated that as a member of his
station’s rescue response vehicle, he was responsible for “all hazardous
materials, incidents and all technical rescue to include road, confined space
and trans vehicle extrication, [and] structural collapse”; or simply, cutting
and removing individuals from vehicles. Cpt. Allen testified that he arrived
at the accident around midnight or one in the morning. He stated that when
4 On redirect, Cpl. Grigsby clarified that his only role while at the scene of the accident was to render DWI services because “one of the drivers was showing impairment.”
3 he exited his truck, he saw a man in the roadway yelling and inconsolable,
and observed another person, later identified as Moore, in another vehicle.
Cpt. Allen explained that he and some of his team attempted to
examine the man, but turned their attention to Moore after the man refused
medical treatment. In describing how he attended to Moore and the extent
of damage from the accident, Cpt. Allen stated that when he first examined
Moore, she was breathless and did not have a pulse. He explained that
normally when a patient is pulseless and unresponsive, he would perform
CPR, but in this case, he was unable to because Moore was trapped inside
her vehicle. He testified that he had to administer another test on Moore, but
after no electrical activity was detected in Moore’s heart, he declared her
deceased. Cpt. Allen explained that Moore’s vehicle was hit from the front
left side and that the vehicle was hit hard enough that the “body of the car
was detached from the frame.” He stated that because of the way Moore
was trapped within the vehicle, namely that her feet were tangled within the
brake and gas pedal, he had to wait on another SFD truck with the proper
equipment to cut Moore away from the vehicle.
On cross-examination, Cpt. Allen provided further information
regarding the man he first encountered. He stated that after he finished
tending to Moore, he went back to check on the man and was informed that
SPD took the man in for questioning. Cpt. Allen clarified that although the
man he initially saw at the scene of the accident was described as a patient in
his report, he did not deem him to be a patient because the man indicated
that he was okay and did not need help. Cpt. Allen stated that he did not
recall whether the man had any injuries, but specified on redirect that once
the man indicated he was okay, his focus was on Moore. In asking to 4 identify whether he knew who Parks was, Cpt. Allen stated that he did not,
but that he assumed Parks was the driver of the SUV but was not certain.
Corporal Dixon
Next, Corporal Matthew Dixon (“Cpl. Dixon”) testified that as a
crime scene investigator for SPD, his general duty is to identify victims and
other persons and collect evidence that is deemed to have any evidentiary
value either through photography or inked impressions.5 Cpl. Dixon stated
that on the night of the accident, he was called to identify the deceased
driver, which he accomplished by taking her prints and comparing them to
the tentative ID he received. On cross-examination, Cpl. Dixon clarified
that he was called to the scene of the accident solely for the purpose of
identifying the victim and that he did not collect DNA or fingerprints from
any other person or any surface from the SUV.
Long Jin, M.D.
Next, Dr. Long Jin (“Dr. Jin”), who performed Moore’s autopsy, was
tendered as an expert in clinical, anatomical, and forensic pathology. Dr. Jin
testified that he conducted an external exam of Moore’s body, but he did not
have to collect sample slides because her injuries were “obviously the cause
of her death,” as she suffered multiple blunt force injuries as a result of the
accident. Dr. Jin then listed several of Moore’s injuries, including, but not
limited to the following: compound fracture of both ankles, closed fracture
of the right distal radius, chest wall contusion and bruising, rib fractures, and
a split aorta, which resulted in “catastrophic bleeding.”
5 Cpl. Dixon explained that inked impressions replicate an exact impression of a person’s finger, which is then used to obtain a person’s name, SID number, or state identification number. This information is run through the statewide Automated Fingerprint Identification System, which contains fingerprints for anyone that has a government job, such as city or state employer, or any person with a criminal record. 5 Corporal Lane
Next, Corporal Tasha Lane (“Cpl. Lane”), a crash investigator from
SPD, testified. Cpl. Lane explained that when called to an accident, she
marks the scene by photographing the area, and if needed, will speak with
anyone at the scene as a “follow-up.” In describing the accident, Cpl. Lane
stated that the collision occurred at the intersection of Linwood and
Highway 3132, which had a speed limit of 45 miles per hour (“mph”), and
that the accident spanned a large area with “one vehicle that was turned the
opposite way, facing the opposite way towards the interstate, and another
one farther down that was partially on the roadway.”
Cpl. Lane stated that when she arrived at the accident at 1:39 a.m., she
spoke with the supervising officer, Matt Reardon, and Officer Favis. The
State then introduced, and Cpl. Lane reviewed, several photographs she took
of the accident. In her review, Cpl. Lane noted that the only airbag deployed
from the SUV was the driver’s and the SUV sustained damage primarily to
the front driver’s side. She further testified that Parks was determined to be
the driver of the SUV and that investigators did not locate any passengers
from the SUV. She stated that she did not speak with any civilians who
claimed to be the driver of the SUV or any first responders who reported
seeing anyone drive the SUV. Cpl. Lane also noted that, other than Parks
and Moore, no other individual indicated that they had been injured from the
accident.
Cpl. Lane then testified that, as part of her investigation, she applied
for a search warrant for the SUV’s airbag control module (“ACM”) and she
and Sergeant Duane Farquhar (“Sgt. Farquhar”) recovered the information
from it. She explained that information concerning a vehicle’s seat belts, 6 number of passengers, speed, and braking is downloaded and stored in the
ACM. On cross-examination, Cpl. Lane reviewed the photographs of the
accident again and clarified that the photographs were of the scene when she
arrived. She reiterated that she spoke to Officer Favis and that she did not
speak with anyone who identified themselves as the driver of the SUV.6
Finally, Cpl. Lane explained that the SUV’s ACM revealed that the only
occupant in the vehicle at the time of the accident was the driver and that the
driver’s seat belt was unbuckled.
Sergeant Farquhar
Sgt. Farquhar, the State’s last witness and supervisor of the crash
investigations unit for SPD, testified. Sgt. Farquhar testified that he
collected and interpreted the crash data report generated from the SUV’s
ACM. He explained that the ACM records crash data and airbag
deployment data, which is then retrieved through Bosch Crash Data
Retrieval software or through a vehicle’s OB2D port. Sgt. Farquhar stated
that due to the extensive damage from the SUV, he had to physically remove
the ACM to generate a crash report. He stated that because the SUV was an
older model vehicle, the ACM yielded only basic data including, “velocity
or speed in miles an hour, engine RPMs, throttle percentages, braking circuit
status, whether or the brakes were engaged or not, which airbags were
deployed, and whether or not the seat belt restraint system, the active
restraint system was engaged or not.”
6 Cpl. Lane also reviewed video surveillance from an officer’s vehicle and stated that while there were some civilian vehicles present at the scene of the accident, she was unsure whether any other officers spoke with any bystanders or if officers attempted to contact Kenneth Wilson, the owner of the SUV. 7 Regarding the SUV’s airbag system, Sgt. Farquhar explained that the
system is passive such that it is only activated or will “wake up” when it
detects a change in velocity or negative accelerations; as such, the system
will monitor activity but will not deploy the airbags until needed. He stated
that the SUV’s supplemental inflatable restraint system warning lamp status,
which indicates whether a vehicle’s airbag system is deactivated, was not on,
which meant that the system was “factory set and [sic] ready to work.” He
explained that the SUV’s passenger airbag, which is the only airbag that can
be suppressed, did not deploy because the module did not register a
passenger weight above 65 pounds,7 indicating that the seat was vacant from
anyone over 65 pounds. Sgt. Farquhar then stated that five seconds before
the airbags deployed, the vehicle traveled at 57 mph and increased to 67
mph one second before deployment.
On cross-examination, Sgt. Farquhar clarified that the airbags were in
proper condition at the time of the accident. He stated that, in general,
airbags are federally regulated and that he had never known airbags not to
deploy. He explained that airbags operate according to a sensing module
that determines which airbags to deploy based on a change in velocity. He
stated that if a passenger is detected, the airbags will deploy, especially if the
vehicle is hit in the front. Sgt. Farquhar testified that while a passenger
airbag can be turned off, he was unsure whether this particular SUV had the
capability to do so.
7 Sgt. Farquhar explained that airbag deployment is a two-stage system based on the weight of its passengers. He stated that the first-stage deployment is “a 75-mile-an- hour deployment if it detects a small statured person or their weight.” Further, the second-stage deployment, which is the main system, is a “150-miles-per-hour deployment.” 8 Daylan Roberson
Finally, Daylan Roberson (“Roberson”) testified in Parks’ defense.
Roberson stated that on the night in question, Parks called him and the pair
made plans to meet at Roberson’s house before visiting with a group of
people. Roberson alleged that Parks rode with an unnamed man to
Roberson’s house because Parks had been drinking. Roberson stated that his
brother, Cameron Roberson (“Cameron”), drove his car, a white Mercedes,
and they followed behind Parks and the unnamed man. Roberson explained
that as they traveled down Linwood, he was looking down at his phone
when he heard a “loud boom.” He stated that when he looked up, he saw
that Parks and the unnamed man had gotten into an accident.
Roberson testified that Cameron immediately pulled the car over and
the pair went to help Parks when they noticed that the unnamed man exited
the SUV but noticed that Parks didn’t move. Roberson stated he and
Cameron removed Parks from the SUV by reaching through the passenger
window to unbuckle Parks’ seat belt before they pulled him out. He testified
that after he made sure Parks was okay, he, Cameron, and Parks went to
check on the driver of the other vehicle. Roberson stated that when they
realized the driver did not survive the accident, he called his parents, and
Cameron called 911. Roberson stated that first responders arrived shortly
after his parents arrived and he was questioned separately from everyone
else. He explained that because he was asked to leave, he was unaware that
Parks had been arrested until hours later.
On cross-examination, Roberson admitted that after he learned that
Parks was arrested for Moore’s death, he did not speak with officers for
several months, and only clarified the details of the accident to Parks’ 9 attorney sometime after. Roberson then provided that he saw the unnamed
man drive the SUV and that while he did not know who the man was, he
described him as being short and having dark skin. Roberson stated that he
saw this unnamed man exit the SUV shortly after the accident occurred, but
could not recall whether the man left the scene, and had no knowledge of
where the man went.
At the close of testimony, the jury unanimously found Parks guilty as
charged. On August 18, 2021, Parks appeared for sentencing, wherein the
judge denied Parks’ motion for new trial. Thereafter, the judge briefly
reviewed Parks’ criminal history, reflecting that Parks was previously
convicted of operating a motor vehicle while intoxicated in February 2020.
After the trial court reviewed the facts of this case and noted the victim
impact statements, it sentenced Parks to 25 years at hard labor, and in
accordance with La. R.S. 14:32.1(B), provided that the first five years were
to be served without benefit of probation, parole, or suspension of sentence;
additionally, the court imposed a $2,000 fine. This appeal followed.
DISCUSSION
Sufficiency of the Evidence
In his first assignment of error, Parks contends that the evidence
presented at trial was insufficient to support his conviction. Specifically,
Parks argues that the State failed to prove beyond a reasonable doubt that he
was the individual who drove the SUV, in part, because none of the State’s
witnesses testified to actually having seen Parks drive the SUV or that they
spoke to any bystanders at the time of the accident who confirmed that Parks
drove the SUV. In contrast, he argues that Roberson, who was present at the
time of the accident, testified that Parks had been a passenger in the SUV 10 and that his testimony confirmed that Parks was not the driver. He further
argues that the State failed to consider that the information collected from
the vehicle’s ACM could be false. Specifically, he argues that there are
instances in which airbags have failed to deploy, do not always function
properly, or may be disabled, which could have occurred in this case. We
disagree.
The standard of appellate review for a sufficiency of the evidence
claim is whether, after viewing the evidence in the light most favorable to
the prosecution, any rational trier of fact could have found the essential
elements of the crime proven beyond a reasonable doubt. Jackson v.
Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979);
State v. Tate, 01-1658 (La. 5/20/03), 851 So. 2d 921, cert. denied, 541 U.S.
905, 124 S. Ct. 1604, 158 L. Ed. 2d 248 (2004); State v. Steines, 51,698 (La.
App. 2 Cir. 11/15/17), 245 So. 3d 224, writ denied, 17-2174 (La. 10/8/18),
253 So. 3d 797. This standard, now codified in La. C. Cr. P. art. 821, does
not afford appellate courts with a means to substitute its own appreciation of
the evidence for that of the fact finder. Steines, supra.
The Jackson standard is applicable to cases involving both direct and
circumstantial evidence. An appellate court reviewing the sufficiency of the
evidence in such cases must resolve any conflict in the direct evidence by
viewing that evidence in the light most favorable to the prosecution. When
the direct evidence is thus viewed, the facts established by the direct
evidence must be sufficient for a rational trier of fact to conclude beyond a
reasonable doubt that defendant was guilty of every essential element of the
crime. State v. Sutton, 436 So. 2d 471 (La. 1983).
11 Circumstantial evidence consists of proof of collateral facts and
circumstances from which the existence of the main fact may be inferred
according to reason and common experience. State v. Broome, 49,004 (La.
App. 2 Cir. 4/9/14), 136 So. 3d 979, writ denied, 14-0990 (La. 1/16/15), 157
So. 3d 1127. If a case rests essentially upon circumstantial evidence, that
evidence must exclude every reasonable hypothesis of innocence. La. R.S.
15:438; Broome, supra; State v. Gipson, 45,121 (La. App. 2 Cir. 4/14/10),
34 So. 3d 1090, writ denied, 10-1019 (La. 11/24/10), 50 So. 3d 827.
Appellate courts neither assess the credibility of witnesses nor
reweigh evidence. State v. Smith, 94-3116 (La. 10/16/95), 661 So. 2d 442.
Rather, the reviewing court affords great deference to the jury’s decision to
accept or reject the testimony of a witness in whole or in part. State v.
Gilliam, 36,118 (La. App. 2 Cir. 8/30/03), 827 So. 2d 508, writ denied, 02-
3090 (La. 11/14/03), 858 So. 2d 422. Where there is conflicting testimony
concerning factual matters, the resolution of which depends upon a
determination of the credibility of the witnesses, the matter is one of the
weight of the evidence, not its sufficiency. State v. Allen, 36, 180 (La. App.
2 Cir. 9/18/02), 828 So. 2d 622, writ denied, 02-2595 (La. 6/27/03), 847 So.
2d 1255.
In the absence of internal contradiction or irreconcilable conflict with
physical evidence, one witness’s testimony, if believed by the trier of fact, is
sufficient support for a requisite factual conclusion. State v. Elkins, 48,972
(La. App. 2 Cir. 4/9/14), 138 So. 3d 769, writ denied, 14-0992 (La. 12/8/14),
152 So. 3d 438; State v. Wiltcher, 41,981 (La. App. 2 Cir. 05/09/07), 956 So.
2d 769. When a defendant challenges both the sufficiency of the evidence,
and other trial errors, the reviewing court first reviews sufficiency, as a 12 failure to satisfy the sufficiency standard will moot trial errors. State v.
McGee, 51,977 (La. App. 2 Cir. 4/3/19), 316 So. 3d 1196.
Moreover, in a case where a defendant claims he was not the person
who committed the offense, the Jackson standard requires that the
prosecution negate any reasonable probability of misidentification. State v.
Green, 38, 335 (La. App. 2 Cir. 5/12/04), 873 So. 2d 889, writ denied, 04-
1795 (La. 11/24/04), 888 So. 2d 227; State v. Powell, 27,959 (La. App. 2
Cir. 4/12/96), 677 So. 2d 1008, writ denied, 96-1807 (La. 2/21/97), 688 So.
2d 520
Here, Parks was charged with vehicular homicide, in violation of La.
14:32.1 which is defined, in pertinent part as:
. . . the killing of a human being caused proximately or caused directly by an offender engaged in the operation of, or in actual physical control of, any motor vehicle, aircraft, watercraft, or other means of conveyance, whether or not the offender had the intent to cause death or great bodily harm, whenever any of the following conditions exist and such condition was a contributing factor to the killing:
(1) The operator is under the influence of alcoholic beverages as determined by chemical tests administered under the provisions of R.S. 32:662.
(2) The operator's blood alcohol concentration is 0.08 percent or more by weight based upon grams of alcohol per one hundred cubic centimeters of blood.
Accordingly, to “convict a defendant under the vehicular homicide statute,
the State must prove that the offender’s unlawful blood alcohol
concentration, combined with his operation of a vehicle, caused the death of
a human being.” State v. Magrini, 19-0951 (La. App. 4 Cir. 5/27/20), 301
So. 3d 525. In this case, Parks does not dispute that he drank alcohol prior
to the accident, as the record reflects that his BAC was .142 grams percent;
rather, he contends that the State failed to prove that he drove the SUV. 13 At the outset, we note that while none of the State’s witnesses actually
saw Parks drive or exit the driver’s side of the SUV, as they arrived
sometime after the accident occurred, their collective testimony, coupled
with the evidence from the ACM, was nevertheless sufficient for a rational
trier of fact to conclude that Parks drove the SUV. In particular, Cpl.
Grigsby testified that the responding officer requested a DWI unit because
one of the drivers involved in the accident showed signs of impairment. He
stated that when he arrived, the responding officer identified Parks as the
driver suspected of being under the influence, and noted that Parks was
injured from the accident. Cpl. Lane similarly testified that Parks was
determined to be the driver of the SUV and that, other than Parks and
Moore, no other individual indicated that they were injured.
Although Parks argues that there was a possibility that the airbags
malfunctioned, we highlight Sgt. Farquhar’s testimony that at the time of the
accident, the airbags were “factory set and [sic] ready to work.” Moreover,
while Roberson testified that he pulled Parks from the passenger side of the
SUV, the information garnered from the ACM, as Sgt. Farquhar testified,
revealed that: (1) the only registered passenger in the SUV was the driver;
(2) the driver’s seat belt was unbuckled; (3) the passenger seat was vacant
from anyone over 65 pounds; and (4) only the driver’s airbag deployed. Sgt.
Farquhar also indicated that in order for the passenger airbag to deploy, the
vehicle must detect a passenger weight greater than 65 pounds, otherwise the
airbag will be suppressed, and in this case, only the driver’s side airbag
deployed. Further, despite Roberson’s statement that he saw Parks in the
passenger seat of the SUV at the time of the accident, the jury, when
14 presented with the totality of the evidence before it, discounted Roberson’s
testimony and concluded that Parks was the driver.
Accordingly, after viewing this evidence in the light most favorable to
the prosecution, we find that the State presented sufficient evidence, beyond
a reasonable doubt, that any rational trier of fact could conclude that Parks
was the driver of the SUV.
Excessive Sentence
In his second assignment of error, Parks alleges that his sentence was
excessive and violated the 8th Amendment prohibition against cruel and
unusual punishment. Specifically, he argues that the trial court failed to
provide a sufficient factual basis for the imposition of his sentence and tailor
his sentence to the specific offense.
Appellate review of sentences for excessiveness is a two-prong
inquiry. Under the first prong, the record must show that the trial court
considered the factors in La. C. Cr. P. art. 894.1. The primary goal of La. C.
Cr. P. art. 894.1 is for the court to articulate the factual basis for the sentence
imposed, and not simply mechanical compliance with its provisions.
However, if the record reflects that the trial judge adequately considered the
guidelines of the article, then he is not required to list every aggravating or
mitigating circumstance. State v. Smith, 433 So. 2d 688 (La. 1983); State v.
DeBerry, 50,501 (La. App. 2 Cir. 4/13/16), 194 So. 3d 657, writ denied, 16-
0959 (La. 5/1/17), 219 So. 3d 332.
Where 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. Lanclos, 419 So. 2d 475
(La. 1982); State v. DeBerry, supra. In sentencing, the important elements 15 which should be considered are the defendant’s personal history (age,
familial ties, marital status, health, employment record), prior criminal
record, seriousness of the offense, and the likelihood of rehabilitation. State
v. Jones, 398 So. 2d 1049 (La. 1981); State v. DeBerry, supra. There is no
requirement that specific matters be given any particular weight during
sentencing. State v. DeBerry, supra; State v. Shumaker, 41,547 (La. App. 2
Cir. 12/13/06), 945 So. 2d 277, writ denied, 07-0144 (La. 9/28/07), 964 So.
2d 351.
Next, under the second prong of the analysis, the court must
determine whether the sentence is constitutionally excessive. A sentence
violates La. Const. art. I, § 20, if it is grossly out of proportion to the
seriousness of the offense or nothing more than a purposeless and needless
infliction of pain and suffering. State v. Dorthey, 623 So. 2d 1276 (La.
1993); State v. Mandigo, 48,801 (La. App. 2 Cir. 2/26/14), 136 So. 3d 292,
writ denied, 14-0630 (La. 10/24/14), 151 So. 3d 600. A sentence is
considered grossly disproportionate if, when the crime and punishment are
viewed in light of the harm done to society, it shocks the sense of justice.
State v. Weaver, 01-0467 (La. 1/15/02), 805 So. 2d 166; State v. Hollins,
50,069 (La. App. 2 Cir. 8/12/15), 174 So. 3d 710.
When determining whether a defendant’s sentence is excessive, a
reviewing court should compare the defendant’s punishment with the
sentences imposed for similar crimes by the same court or other courts.
State v. Johnston, 50,706 (La. App. 2 Cir. 6/22/16), 198 So. 3d 151, writ
granted on other grounds, 16-1460 (La. 6/5/17), 221 So. 3d 46; State v.
Ferguson, 44,009 (La. App. 2 Cir. 2/25/09), 4 So. 3d 315.
16 A trial court maintains wide discretion to sentence within the statutory
limits. Absent a showing of manifest abuse of such discretion, a sentence
will not be set aside as excessive. Upon review, an appellate court does not
determine whether another sentence may have been more appropriate, but
whether the trial court abused its discretion. State v. Weaver, supra; State v.
Davis, 50,149 (La. App. 2 Cir. 11/18/15), 181 So. 3d 200. As a general
proposition, maximum or near maximum sentences are reserved for the
worst offenders and the worst offenses. State v. Hogan, 47,993 (La. App. 2
Cir. 4/10/13), 113 So. 3d 1195, writ denied, 13-0977 (La. 11/8/13), 125 So.
3d 445.
The penalty for conviction of vehicular homicide is a fine of not less
than $2,000 nor more than $15,000 and imprisonment with or without hard
labor for not less than 5 years nor more than 30 years, with at least 3 years of
the sentence to be served without benefit of probation, parole, or suspension
of sentence. If the offender was previously convicted of a violation of La.
R.S. 14:98, 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. La. R.S. 14:32.1(B).
In the case sub judice, the trial court sentenced Parks to 25 years at
hard labor, with the first five years to be served without benefit of probation,
parole, or suspension of sentence, as well as a $2,000 fine. Parks argues that
the trial court sentenced him without the benefit of a PSI or consideration of
his record, and therefore, made no effort to particularize this sentence to him
as an offender. Accordingly, he argues that his sentence should be set aside
and remanded for resentencing. 17 After a thorough review, we find that the record does not clearly
reflect the trial court’s reasons for imposing Parks’ sentence. Specifically,
we note that the sentencing colloquy does not show that the trial court
clearly considered the sentencing factors under La. C. Cr. P. art. 894.1 in
particularizing the sentence to Parks. Although the trial court reviewed
Parks’ prior convictions, it did not discuss any personal information
regarding Parks’ background, including personal life, education,
employment, family, or any other similarly relevant facts. The trial court
provided:
. . . the Court is required to consider Code of Criminal Procedure Article 894.1A, paragraphs (1), (2)[,] and (3). I find all three applicable to this case. Also, considering the aggravating and mitigating factors of Article 894.1(B), the Court has found that the offense resulted in a significant permanent injury or significant economic loss to the victim or her family. I find no other aggravating circumstances or mitigating circumstances contained in that article. [sic] Parks, this is a difficult decision. It’s tough to do. I thought long and hard about it. It’s going to be the sentence of the Court that you serve 25 years at hard labor. Five years will be served without benefit of parole, probation[,]or suspension of sentence. You’ll be fined $2,000. Your fine and costs will be collected through inmate banking. This sentence will run consecutive to any other sentence that you may be subject to. You’ll be given credit for any time you have served.
While we recognize that La. C. Cr. P. art. 875 does not mandate a PSI, we
highlight that the record would contain more information about Parks
relevant to tailoring an appropriate sentence if a PSI had been ordered.
Although the lack of a PSI does not alone provide a basis for vacating
Parks’ sentence, we find that the trial court only recited a conclusory
consideration of the factors in art. 894.1(B). While a trial court is not
required to consider each and every factor or give certain weight to specific
factors, the record reflects that the trial court only mentioned one
18 aggravating factor, that “the offense resulted in a significant permanent
injury or significant economic loss to the victim or her family,” and while it
noted that no other aggravating or mitigating factor applied, it did not refer
to any of the specific aggravating or mitigating circumstances it found
inapplicable.
Similar to this Court’s analysis in State v. Trotter, 54,496 (La. App. 2
Cir. 6/29/22), 342 So. 3d 1116, wherein the defendant was similarly
sentenced without full consideration of his personal history and the factors
under art. 894.1, we also find that the only information we know about Parks
is his age8 and his prior convictions. In order to properly review this
assignment of error, this court requires more information to adequately
determine if the sentence was particularized to Parks as an offender.
Accordingly, this court pretermits discussion of whether the sentence
imposed in this case is excessive and remands this matter to the trial court to
provide its reasons for the imposed sentence in consideration of the art.
894.1 factors.
Error Patent
Our review of the record has also revealed that, in sentencing, the trial
court inadvertently omitted a portion of Parks’ sentence under La. R.S.
14:32.1, which provides that the trial 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.”
Accordingly, this matter should be addressed by the trial court at the next
hearing regarding Parks’ sentencing.
8 We note that this Court is aware of Parks’ age from a full review of the record; however, his age was not discussed during sentencing. 19 CONCLUSION
For the foregoing reasons, Parks’ conviction is affirmed, and we
remand the matter to the trial court for resentencing with the aforementioned
considerations.
CONVICTION AFFIRMED; SENTENCE VACATED;
REMANDED FOR RESENTENCING.