STATE OF LOUISIANA * NO. 2021-KA-0131
VERSUS * COURT OF APPEAL TASHONTY C TONEY * FOURTH CIRCUIT * STATE OF LOUISIANA *******
APPEAL FROM CRIMINAL DISTRICT COURT ORLEANS PARISH NO. 545-469, SECTION “A” Honorable Laurie A. White, Judge ****** Judge Sandra Cabrina Jenkins ****** (Court composed of Judge Joy Cossich Lobrano, Judge Sandra Cabrina Jenkins, Judge Paula A. Brown)
LOBRANO, J., CONCURS IN THE RESULT. BROWN, J., CONCURS IN THE RESULT
Jason Rogers Williams, District Attorney G. Benjamin Cohen, Chief of Appeals David B. LeBlanc, Assistant District Attorney Orleans Parish District Attorney’s Office 619 S. White Street New Orleans, LA 70119
COUNSEL FOR STATE OF LOUISIANA/APPELLEE
Ralph Shipley Whalen, Jr. ATTORNEY AT LAW 1100 Poydras Street Suite 2950 New Orleans, LA 70163--1133
COUNSEL FOR DEFENDANT/APPELLANT
SENTENCE VACATED; REMANDED
NOVEMBER 3, 2021 SCJ
Defendant, Tashonty Toney, appeals the 91-year cumulative sentence
imposed by the trial court after he pled guilty to a sixteen-count indictment.
Defendant pled guilty as charged to two counts of vehicular homicide with a Blood
Alcohol Concentration (BAC) over .20 percent, six counts of first degree vehicular
negligent injuring, one count of vehicular negligent injuring, and seven counts of
hit-and-run driving with no death or serious bodily injury. Defendant’s guilty plea
agreement did not include an agreement on sentencing, which was to be
determined by the trial court following a sentencing hearing. The trial court
imposed the maximum sentences for each count of defendant’s conviction and
ordered the sentences to run consecutively.
Based upon our review of defendant’s sentencing, and in light of sentencing
guidelines and jurisprudence, we find that the trial court failed to sufficiently
articulate reasons and considerations for its imposition of maximum, consecutive
sentences. Consequently, we cannot adequately review defendant’s arguments
regarding the excessiveness of his sentence and the denial of his motion to
1 reconsider. For the reasons provided herein, we vacate defendant’s sentence and
remand to the trial court to hold a meaningful sentencing hearing.
FACTS AND PROCEDURAL BACKGROUND
Because defendant entered pleas of guilty as charged, the facts underlying
defendant’s convictions were not developed at any hearing or at a trial. The facts
of this case are derived from the New Orleans Police Department arrest report gist
and from video recordings introduced at the sentencing hearing.1
On March 2, 2019, at approximately 8:05 p.m., defendant was driving a
Chevy Camaro southbound on Esplanade Avenue, a divided two-lane street with a
designated bike lane. Driving at a high rate of speed in excess of the 35 mph speed
limit, surveillance video captured defendant veer his car right out of the traffic
lane, drive into the designated bike lane, and surpass two cars travelling in the
traffic lane. Moments later, out of view of surveillance video, defendant’s car
struck three bicyclists travelling southbound in the designated bike lane. All three
bicyclists were thrown from their bicycles. Defendant did not stop but continued
driving at a high rate of speed in the designated bike lane, striking four more
bicyclists and side-swiping several parked cars in the parking lane. As defendant
continued southbound on Esplanade Ave., approximately four blocks from where
he struck the first group of bicyclists, defendant swerved toward the neutral ground
attempting to avoid another vehicle travelling in the traffic lane, but defendant
collided with that vehicle and came to rest on the neutral ground. After the crash,
defendant exited his vehicle and fled the scene on foot. Witnesses to the collision
1 The State introduced four video recordings: three surveillance recordings capturing scenes during the incident along Esplanade Avenue on March 2, 2019; and one NOPD body camera recording from Officer Walker who processed defendant at the NOPD Traffic/DUI Office following his arrest.
2 and the preceding incidents followed defendant, caught up with him, and detained
him two blocks from the scene of the collision until NOPD officers arrived.
After the collision, emergency medical services responded first to the scene
to render aid to the victims struck by defendant’s vehicle. Two of the bicyclist
victims, Sharee Walls and David Hynes, were pronounced deceased on the scene.
Seven other bicyclist victims struck by defendant’s vehicle suffered numerous,
serious and critical injuries.
When NOPD officers arrived to investigate, an on-scene show-up
identification was conducted with a witness who identified defendant as the driver
of the Chevy Camaro who exited the vehicle and fled the scene. Officers noted
that defendant appeared to be impaired. Defendant was taken into custody on
suspicion of driving under the influence (DUI) and transported to the NOPD
Traffic/DUI Office on Tchoupitoulas Street.
While at the DUI office, NOPD Officer John Walker activated his body
worn camera. Ofc. Walker noted that defendant appeared impaired, had watery,
bloodshot eyes, slurred his speech when he spoke, and emitted an odor of alcohol.
Ofc. Walker read defendant his Miranda rights and his rights relative to chemical
testing. Defendant acknowledged that he understood his rights; he elected not to
speak with Ofc. Walker and stated his refusal to take a breathalyzer test three
times. Ofc. Walker then explained the procedure for obtaining a warrant for a
blood test and transporting defendant to the hospital for his blood to be drawn.
While Ofc. Walker informed defendant of his rights and the procedures, defendant
became visibly upset and made several statements about letting his family down
and having a drinking problem.
3 Approximately five hours after the incident, samples of defendant’s blood
and urine were collected at the University Medical Center, pursuant to a signed
warrant to retrieve biological specimens. The results of the chemical tests
indicated a blood alcohol concentration (BAC) of .14. Accounting for the rate of
absorption and elimination of alcohol from the body at .015 per hour, the State
submits defendant’s BAC was .215 at the time of the incident.
On May 2, 2019, the State filed a sixteen-count indictment, charging
defendant with one count of hit-and-run driving—no death or serious injury, a
violation of La. R.S. 14:100(C)(1); two counts of vehicular homicide with a BAC
greater than .20, a violation of La. R.S. 14:32.1(C); six counts of first degree
vehicular negligent injuring, a violation of La. R.S. 14:39.2; one count of vehicular
negligent injuring, a violation of La. R.S. 14:39.1; and six more counts of hit and
run driving—no death or serious injury. At his arraignment on May 6, 2019,
defendant pled not guilty to all charges in the indictment.
On October 21, 2019, defendant withdrew his not guilty plea and pled guilty
as charged to fourteen counts of the indictment, excluding the two counts of
vehicular homicide. Defendant acknowledged that the plea agreement he signed
on those fourteen counts did not include a sentencing agreement or
recommendation. The trial court questioned defendant regarding his waiver of
rights, informed him of the possible sentencing range for each conviction, found
defendant was knowingly and voluntarily entering the guilty plea, accepted his
guilty plea, and held the sentencing date open until after the trial on the two
remaining counts of vehicular homicide, set for October 28, 2019.
On October 28, 2019, defendant withdrew his not guilty plea and pled guilty
as charged to the two remaining counts of vehicular homicide. The trial court
4 again questioned defendant regarding his waiver of rights and his understanding
that, because he entered a “blind” plea agreement, there was no agreement or
recommendation on defendant’s sentencing. The trial court found defendant was
entering his plea knowingly and voluntarily, and accepted his guilty plea.
On that same day, the trial court proceeded with the sentencing hearing and
heard victim impact testimony. The trial court heard testimony from several
family members of the two deceased victims, relaying the impact of the loss of
their loved ones. The surviving seven victims testified as to the extent of their
injuries and the impact of the incident on their lives. The State also offered into
evidence, with defendant’s objection, the three surveillance videos capturing parts
of the incident, photographs of the scene of the incident, and the body camera
video from the DUI office.
The following day, October 29, 2019, defendant presented testimony from
his family members. In cross-examination of defendant’s sister, Taryn, the State
played a recording in open court of a jail call between defendant and his sister.
Defendant then testified on his own behalf and expressed his remorse to the
victims and their families.
After a brief recess, the trial court imposed sentences against defendant for
all sixteen counts of the indictment. The sentences imposed are as follows:
Count 1: hit and run driving—no death or serious bodily injury: six months
in Orleans Parish Prison (OPP), to run concurrent with any and all other
sentences;
Counts 2 and 3: vehicular homicide with a BAC greater than .20: thirty
years at hard labor on each count, without benefit of probation, parole, or
5 suspension of sentence, to run consecutive to each other and to all other
sentences; and a fine of $2000 on each count;
Counts 4 - 9: first degree vehicular negligent injuring: five years at hard
labor on each count, with the sentences for each count to run consecutive to
each other and to the previous sentences; and a fine of $2000 on each count;
Counts 11 - 16: hit and run driving—no death or serious bodily injury: six
months in OPP on each count, to run concurrent with each other and with
any and all other sentences;
Count 10: vehicular negligent injuring: six months in OPP, to run
consecutive to Counts 11-16; and a fine of $1000.
Cumulatively, the trial court imposed a sentence of 91 years, including sixty years
imposed without benefit of parole, probation, or suspension of sentence.
On November 27, 2019, defendant filed a motion to reconsider sentence and
to supplement the record with the jail recording played in open court before
sentencing. In support of defendant’s motion, four of the victims submitted a letter
to the trial court in support of reconsideration and a reduced sentence for
defendant. On February 28, 2020, the trial court held a hearing and denied
defendant’s motion to reconsider sentence. The court minutes from that date also
reflect that the State filed into the trial court record an audio CD of the jail call.
Thereafter, defendant filed this timely appeal of his sentence.
DISCUSSION
Defendant raises three assignments of error in this appeal of his sentence.
1. The trial court abused its discretion in imposing a 91-year cumulative
sentence on a first time offender. The sentence makes no measurable
contribution to the acceptable goals of punishment, it constitutes nothing
6 more than the purposeless imposition of pain and suffering, and it is
grossly out of proportion to the severity of crimes that involve no
criminal intent.
2. The trial court erred in denying defendant’s motion to reconsider
sentence.
3. The trial court erred in imposing consecutive sentences for offenses that
occurred in a single course of conduct without providing sufficient
justification from evidence in the record.
In essence, defendant contends that the trial court abused its broad
sentencing discretion and imposed an excessive sentence given the facts in the
record, the lack of criminal intent, and the history of the defendant.
We begin by acknowledging that the trial court imposed a legal, maximum
sentence within the range provided by the applicable criminal statutes.2 For
2 La. R.S. 14:100(C)(1)(b) provides in pertinent part, “[w]hoever commits the crime of hit-and- run driving where there is no death or serious bodily injury shall be fined not more than five hundred dollars, imprisoned for not less than ten days nor more than six months, or both…”. La. R.S. 14:39.1(C) provides, “[w]hoever commits the crime of vehicular negligent injuring shall be fined not more than one thousand dollars or imprisoned for not more than six months, or both.” La. R.S. 14:39.2(D) provides, “[w]hoever commits the crime of first degree vehicular negligent injuring shall be fined not more than two thousand dollars or imprisoned with or without hard labor for not more than five years, or both.” La. R.S. 14:32.1 provides in relevant parts as follows: (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 five years nor more than thirty years. … 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. … (C) Whoever commits the crime of vehicular homicide shall be sentenced as an offender convicted of a crime of violence if the offender’s blood alcohol concentration, at the time of the offense, exceeds 0.20 percent by weight based on grams of alcohol per one hundred cubic centimeters. (D) Notwithstanding the provisions of Code of Criminal Procedure Article 883, if the offense for which the offender was convicted pursuant to the provisions of this Section proximately or directly causes the death of two or more human beings, the
7 sentences imposed within the statutory range, a trial court abuses its discretion only
when it contravenes the prohibition of cruel and excessive punishment in La.
Const. art. 1, §20. State v. Soraparu, 97-1027, p. 1 (La. 10/13/97), 703 So.2d 608,
608 (quoting State v. Sepulvado, 367 So.2d 762, 767 (La. 1979)). A sentence is
unconstitutionally excessive when it imposes punishment grossly out of proportion
to the severity of the offense or if it constitutes nothing more than the needless
imposition of pain and suffering. State v. Bonanno, 384 So.2d 355, 357 (La.
1980).
On appellate review of the trial court’s imposition of sentence, the relevant
question for the reviewing court is not whether another sentence might have been
more appropriate but whether the trial court abused its broad sentencing discretion.
State v. Smith, 01-2574, pp. 6-7 (La. 1/14/03), 839 So.2d 1, 4. The statutory
sentencing guidelines provided by La. C.Cr.P. art. 894.1 furnish criteria by which
the reviewing court can measure whether a sentence within the statutory limits is
nevertheless excessive. Bonanno, 384 So.2d at 357. The Louisiana Supreme
Court has further explained the significance of the sentencing guidelines as
follows:
The goal of the legislative scheme embodied in [art. 894.1] is to tailor the individual sentence imposed on the particular defendant to the particular circumstances of the case. The result which obtains is that the maximum sentences are to be reserved for the most egregious and blameworthy of offenders within a class. Accordingly, insight into the nature of the offender and his offense may be gained by asking, for example, whether (1) there is undue risk the defendant will commit another crime, (2) the defendant needs to be institutionalized, (3) a lesser sentence will deprecate the seriousness of defendant’s crime, (4) defendant’s conduct caused or threatened harm, (5) defendant has a criminal record, (6) defendant will respond to rehabilitation.
offender shall be sentenced separately for each victim, and such sentences shall run consecutively. …
8 Another factor is comparison of the defendant’s punishment with the sentences imposed for similar crimes by the same court and other courts. Such a comparison helps to assure that a defendant’s sentence will be proportional in comparison with other offenders— that the maximum sentences will be reserved for the most egregious or blameworthy of offenders, and that others of similar conduct will not receive sentences lighter than the defendant’s.
State v. Telsee, 425 So.2d 1251, 1253-54 (La. 1983) (internal citations omitted).
Additionally, in this case, we find the history of the sentencing range for the
offense of vehicular homicide, as discussed by the Louisiana Supreme Court in
State v. Leblanc, 09-1355 (La. 7/6/10), 41 So.3d 1168, to be pertinent to our
review:
When the legislature first enacted the crime of vehicular homicide, 1983 La. Acts 635, the penalty it provided, a maximum of five years imprisonment, with or without hard labor, made the offense the equivalent of negligent homicide, a crime long punished by the same maximum sentence. La. R.S. 14:32. Within that range, maximum sentences of five years imprisonment were not uncommon for vehicular homicide, whether charged under La. R.S. 14:32 or La. R.S. 14:32.1. (citations omitted). Over the years, the legislature has steadily increased punishment for the crime, raising the maximum sentence to 15 years imprisonment in 1989 La. Acts 584, then to 20 years imprisonment with or without hard labor, in 1999 La. Acts 1103, and thereafter, to its present maximum of 30 years imprisonment with or without hard labor. 2004 La. Acts 750. The legislature has since increased the mandatory minimum term of imprisonment from two to five years and increased the minimum term of parole disability from one to three years. 2006 La. Acts 294. The changes reflect the growing awareness in this state and elsewhere of the carnage caused by intoxicated drivers on the open road. (citation omitted). The broader sentencing ranges provided for the offense over the years have provided trial courts with increased opportunities to exercise their discretion in individualizing punishment to the particular defendant and the particular circumstances of the case, within the general parameter, as recognized in the present case by both the trial court and court of appeal, that sentences at or near the maximum should ordinarily apply only to the most blameworthy offenders committing the most serious violations of the described offense. While comparisons with other similar cases “is useful in itself and sets the stage,” the focus of sentence review remains on the character and propensities of the offender and the circumstances of the offense. Telsee, 425 So.2d at 1254.
9 Leblanc, 09-1355, pp. 9-10, 41 So.3d at 1173.
In Leblanc, defendant was charged in a 12-count bill with vehicular
homicide, vehicular negligent injuring, driving while intoxicated, possession of
marijuana and cocaine, and several traffic offenses. As in the instant case,
defendant entered into a plea agreement that did not include sentence, pleading
guilty to one count of vehicular homicide, and to three counts of vehicular
negligent injuring. The trial court ordered a presentence investigation and
conducted a sentencing hearing at which members of the victim’s family and
defendant’s family addressed the court. The trial court then imposed a sentence on
defendant’s conviction of vehicular homicide of 30 years imprisonment at hard
labor, three years without benefit of parole, probation, or suspension of sentence.
The trial court also imposed the maximum sentences of six months on each of the
vehicular negligent injuring convictions, to run concurrently with each other and
with the 30-year sentence for vehicular homicide. On appeal, the Third Circuit
vacated the 30-year sentence for vehicular homicide as excessive and remanded for
resentencing. The Louisiana Supreme Court then granted the State’s writ to review
the Third Circuit’s finding of excessiveness. Leblanc, 09-1355, pp. 1-2, 41 So.3d
at 1169.
In reviewing the trial court’s imposition of sentence, the Louisiana Supreme
Court reviewed the facts in the record from defendant’s guilty plea colloquy, the
testimony presented at the sentencing hearing, the findings of the presentence
investigation, and the trial court’s stated reasons for sentence. The Court found
that the trial court had given thorough consideration to the defendant’s history both
as a first offender and as a drug addict, who showed reckless disregard for life and
10 whose actions resulted in a death after she took a cocktail of prescription drugs,
cocaine, and marijuana and got behind the wheel. In concluding its review of the
trial court’s sentence, the Court significantly noted that the trial court clearly took
into account the possibilities of early release on parole in determining the length of
defendant’s sentence.3 The Court then concluded that “[g]iven the existence of
ameliorative alternatives and the extreme circumstances surrounding commission
of the crime”, the trial court’s “decision of where to place defendant’s conduct on
that broad sentencing continuum fell within the discretion of the trial court” and
the punishment imposed was not excessive. Leblanc, 09-1355, pp. 10, 12, 41
So.3d at 1173, 1175.
In the case sub judice, our review of the trial court’s sentencing finds that the
trial court did not provide a thorough review of facts or record evidence on which
it relied, nor did the trial court individualize the sentence in consideration of
defendant’s first offender history, his character, or propensity for criminal
behavior. We find the trial court failed to allow defendant to present mitigation;4
that the trial court referred to evidence submitted to the trial court but not
introduced into the record;5 and that the trial court relied disproportionately on its
impressions of defendant’s demeanor rather than his testimony and statements of
3 “The presentence report underscored these opportunities when, after recommending a maximum sentence, it reminded the court that ‘with the possibility of parole release, and guaranteed Good Time Release, the maximum thirty (30) year sentence is actually a fifteen (15) year sentence at best.’” Leblanc, 09-1355, p. 11, 41 So.3d at 1174. 4 On October 28, 2019, prior to the guilty plea colloquy, defense counsel noted that it wanted to present the testimony of defendant’s treating physician in mitigation but the physician was not present in court and had not been subpoenaed at that time. Although the trial court issued an instanter subpoena for the physician to appear the following day, it had not been delivered and the trial court proceeded with the sentencing hearing without that requested mitigation testimony. 5 At the beginning of sentencing, the trial court stated, “[t]he photographs were returned to the State which I reviewed; there was video which was returned to you. I’m not placing that in the record.” Any evidence reviewed by the trial court and taken into consideration in its findings must be entered into the record to allow for proper appellate review. La. Const. art. 1, § 19.
11 remorse.6 In addition, the trial court did not provide any reasons for denying
defendant all parole eligibility on his consecutive sentences for vehicular homicide.
Based on a survey of comparable cases, the trial court in this case has
imposed the harshest sentence for vehicular homicide in Louisiana jurisprudence;
and defendant’s 91-year cumulative sentence effectively constitutes a life sentence
for offenses that lack criminal intent. See State v. Gordon, 17-846 (La. App. 3 Cir.
3/28/18), 240 So.3d 301 (finding consecutive sentences of 18 years each, 3 years to
be served without benefit, for three counts of vehicular homicide was not excessive
given defendant’s history and drug abuse); State v. Lewis, 13-1588 (La. App. 4 Cir.
8/27/14), 147 So.3d 1251 (finding a sentence of 20 years for vehicular homicide,
with 5 years to be served without benefits, and a concurrent sentence of 5 years for
first degree vehicular negligent injuring was not excessive) State v. Morain, 07-
1207 (La. App. 3 Cir. 4/2/08), 981 So.2d 66 (finding that the trial court’s
imposition of the maximum 20-year sentence for vehicular homicide was excessive
given that the record does not show defendant to be one of the worst offenders);
State v. Landry, 09-260 (La. App. 3 Cir. 11/4/09), 21 So.3d 1148 (finding a
sentence of 30 years for vehicular homicide with all but 18 years suspended and 5
years to be served without benefits was not excessive where defendant’s BAC was
0.231 at the time of the accident).
There is no question that the defendant’s acts on March 2, 2019, demonstrate
reckless disregard for the safety and lives of others. Certainly, the pain and
suffering caused by defendant’s actions are deserving of a harsh penalty of
6 The trial court recounted images of defendant’s demeanor on the night of the incident, which can be a relevant consideration, but does not preclude rehabilitation which is a significant consideration. The trial court also referenced a jail call which was not entered into this record, and weighed statements made by defendant’s sister against defendant. The trial court also dismissed defendant’s testimonial remorse.
12 imprisonment. This Court also acknowledges that retribution and deterrence are
worthy considerations when imposing sentence in a case such as this. Cf. Ewing v.
California, 538 U.S. 11, 25, 123 S.Ct. 1179, 1187, 155 L.Ed.2d 108 (2003) (“A
sentence can have a variety of justifications, such as incapacitation, deterrence,
retribution, or rehabilitation.”)(citation omitted). However, the trial court shall rely
on the facts and evidence properly introduced into the record and state its
considered reasons for imposing sentence, including the restriction or denial of
parole eligibility.
Additionally, the trial court failed to articulate its reasoning for imposing
consecutive sentences. The general rule for concurrent versus consecutive
sentences is set forth in La. C.Cr.P. art. 883, which provides in pertinent part,
If the defendant is convicted of two or more offenses based on the same act or transaction, or constituting parts of a common scheme or plan, the terms of imprisonment shall be served concurrently unless the court expressly directs that some or all be served consecutively. Other sentences of imprisonment shall be served consecutively unless the court expressly directs that some or all of them be served concurrently.
Louisiana courts view consecutive sentences to be similar in nature to a
habitual offender enhancement, as first explained by the Louisiana Supreme Court
in State v. Sherer, stating:
Because the function of the consecutive sentence should be similar to the sentence imposed on habitual or dangerous offenders, sentences for crimes arising from a single course of conduct should be concurrent rather than consecutive, absent a showing that the offender poses an unusual risk to the safety of the public. We cannot presume that the sentencing judge viewed the defendant as an unusual risk to the safety of the public because he did not so state. Instead, the judge expressed his belief that the defendant had become virtually rehabilitated and should be released on parole at the earliest possible time. For these reasons, the imposition of consecutive rather than concurrent sentences totaling 12 years at hard labor upon a defendant deemed parole-eligible by the sentencing judge for crimes of criminal negligence, rather than intentional offenses, arising from a single
13 course of conduct, are unexplained by the judge’s statements and unillumined by this problematic record.
437 So.2d 276, 277 (La. 1983) (internal citation omitted).
Relying on the reasoning in Sherer, the Third Circuit recently found the
imposition of multiple consecutive, habitual offender enhanced sentences to be
“suspect without some evidence the defendant is an undue risk to the public” and
remanded the matter to the trial court for resentencing with concurrent sentences.
State v. Brown, 19-682, p. 13 (La. App 3 Cir. 6/17/20), 299 So.3d 661, 670. In
doing so, the Third Circuit additionally noted,
[T]he recently enacted Louisiana’s Justice Reinvestment Reforms of 2017 implore [the courts] to seriously consider Louisiana’s history of long-term incarceration. See 2017 Acts Nos. 258, 260, 261, 262, 264, 265, 277, 280, 281, and 282. In keeping therewith, we find the imposition of concurrent rather than consecutive sentences for crimes arising out of the same conduct would better serve the policy behind the Justice Reinvestment Initiative of reducing sentences for certain drug offenses as well as habitual offender penalties.
Id.
In the instant case, the trial court failed to articulate reasons for ordering the
sentences for each count of first degree vehicular negligent injuring to run
consecutively to each other and to the sentences for vehicular negligent injuring
and hit-and-run driving, and to the sentences for vehicular homicide. While the
sentences for vehicular homicide are statutorily required to run consecutively,
pursuant to La. R.S. 14:32.1(D), the imposition of consecutive sentences for the
offenses that arose from the same course of defendant’s conduct is unexplained by
the trial court and unilluminated by this record. See State v. Lee, 94-2584, p. 9 (La.
App. 4 Cir. 1/19/96), 668 So.2d 420, 427 (“[A]lthough concurrent sentences are
the usual rule for convictions arising out of a single course of illegal conduct,
consecutive sentences will not necessarily be found excessive, but, rather other
14 factors must be considered. … prior criminal history of the defendant; whether the
defendant poses an unusual risk to public safety; the harm done to the victims; and
the viciousness of the crime.”)(citations omitted).
In consideration of the foregoing, specifically the lack of sufficiently
articulated reasons based on record evidence for the trial court’s imposition of
maximum, consecutive sentences against this defendant, we find this record is
insufficient to allow for a meaningful review of defendant’s excessiveness claim.
See State v. Brazell, 17-0032 (La. App. 4 Cir. 4/18/18), 245 So.3d 15 (vacating
defendant’s sentence based on the absence of any reasons or considerations for the
sentence imposed and denial of motion for downward departure). Moreover, given
that the 91-year cumulative sentence imposed is the harshest penalty imposed for
these offenses, “there appear[s] to be a substantial possibility that the defendant’s
complaints of an excessive sentence ha[ve] merit”, and we find a remand for
resentencing is appropriate. Soraparu, 97-1027, p. 1, 703 So.2d at 608 (quoting
State v. Wimberly, 414 So.2d 666, 672 (La. 1982)).
CONCLUSION
For the foregoing reasons, we vacate defendant’s sentences and we remand
to the trial court for a meaningful sentencing hearing. At that sentencing hearing,
defendant shall be afforded the opportunity to present mitigating evidence and
testimony, and, at the conclusion of the hearing, the trial court shall state the
considerations taken into account and the factual basis found in the record for (1)
imposing a maximum sentence for any count of the conviction, (2) imposing
consecutive sentences, and (3) restricting benefits on sentences.