STATE OF LOUISIANA * NO. 2023-KA-0591
VERSUS * COURT OF APPEAL
TASHONTY C TONEY * FOURTH CIRCUIT
* STATE OF LOUISIANA
*
* *******
TFL LOVE, C.J., DISSENTS IN PART AND CONCURS IN PART WITH REASONS
I agree with the majority to affirm the sentences imposed arising out of Mr.
Toney’s first degree negligent injuring offenses. However, I find the maximum
thirty-year sentences imposed on each count of the two vehicular homicide
sentences, including fifteen years each without benefit of parole, probation, or
suspension of benefits (“benefits”), are excessive and would remand for
resentencing. Accordingly, I respectfully dissent in part for the reasons that
follow.
The majority sets forth the standard to evaluate excessive sentence claims
and notes that appellate courts apply a two-pronged approach for such an
evaluation: (1) whether the trial court considered the La. C.Cr.P. art. 894.1
sentencing guidelines; and (2) whether the sentence is constitutionally excessive.
See State v. Edison, 37,012, pp. 2-3 (La. App. 2 Cir. 5/14/03), 847 So.2d 140, 142-
43. I agree with the majority that the trial court complied with the first prong of an
excessive sentence review—consideration of the La. C.C.P. art. 894.1 statutory
sentencing guidelines prior to the imposition of the sentences. However, as to the
second prong, I reach a different result in considering whether the vehicular
homicide sentences were excessive. Upon application of the three factors
1 enunciated in State v. Whatley, 2006-316, p. 5 (La. App. 3 Cir. 11/2/06), 943 So.2d
601, 605: the nature of the crime, the defendant’s background and comparison of
the sentence imposed to similar crimes, I find the vehicular homicide sentences are
constitutionally excessive for the following reasons.
Nature of the Crime
The nature of the crime involved herein is vehicular homicide. The Supreme
Court, in State v. LeBlanc, 2009-1355, pp. 9-10 (La. 7/6/10), 41 So.3d 1168, 1173,
discussed the legislative history of the sentencing ranges for vehicular homicides
as follows:
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. Cf. Michigan Dept. of State Police v. Sitz, 496 U.S. 444, 451, 110 S.Ct. 2481, 2485, 110 L.Ed.2d 412 (1990)(“No one can seriously dispute the magnitude of the drunken driving problem or the States’ interest in eradicating it. Media reports of alcohol-related death and mutilation on the Nation’s roads are legion.”).
Another indicator of the legislature’s steadily increased punishment for vehicular
homicide offenders is the offender’s receipt of consecutive sentences as outlined in
La. R.S. 1432.1(D) for causing the deaths of two or more human beings in the
same incident. Other penal provisions reflecting enhanced punishment include that
offenders with a blood alcohol concentration (“BAC”) of 0.15 percent are required
to serve at least five years of the sentence without benefits as opposed to three
years without benefits for a lesser BAC, and an offender with a BAC of 0.20
percent shall be convicted of a crime of violence. See La. R.S. 14:32.1(B) and La.
2 R.S. 14:32.1(C).1 Relatedly, La. R.S. 15:574.4(A)(1)(b)ii states, in part, that an
offender convicted of a crime of violence who is otherwise eligible for parole,
“shall be eligible for parole consideration upon serving sixty-five percent of the
sentence imposed.” Here, Mr. Toney was impaired with a high BAC of at least
0.20 percent when he caused the fatal accident.
In determining that the nature of the offense supports the maximum
sentences imposed, the majority focuses on the trial court’s finding that Mr.
Toney’s conduct in the commission of the offenses manifested “deliberate” cruelty
to the victims and was, therefore, properly considered as an aggravating factor in
sentencing. The majority notes that the trial court emphasized that Mr. Toney
drove at an excessive rate of speed, attempted to flee, and did not render first-aid.
Clearly, Mr. Toney’s offenses were horrific, caused immeasurable devastation to
the victims’ families and loved ones, and unfairly cut short the lives of two
outstanding, promising individuals. However, while there is no dispute that the
results were cruel, the trial court pointed to no evidence that Mr. Toney
deliberately intended the results. Although Mr. Toney’s conduct can rightfully be
condemned as abhorrent to any sober-minded person, regrettably, Mr. Toney was
“blind drunk” at the time of the offense. Accordingly, unlike the majority, I do
find an inherent contradiction in the trial court’s finding of deliberate cruelty
juxtaposed against the court’s finding that “[it] considered as mitigating [that] the
defendant did not contemplate that his criminal conduct could cause this serious
harm.”
1La. R.S. 14:32.1(B) provides, in part, that “[i]f 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.”
La. R.S. 14:32.1(C) states that “[w]hoevever 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 of blood.
3 As referenced, although our statutory provisions have steadily increased the
penalties for vehicular homicide, notwithstanding, the sentencing range is five to
thirty years for each offense. This writer recognizes that no sentence can offer
adequate relief or comfort for the surviving families and loved ones of the victims.
Nevertheless, a vehicular homicide excessive sentence claim is still entitled to
review within the statutory sentencing range for that offense. That review
necessarily requires appellate courts to apply the seminal precepts that maximum
sentences are reserved for the most serious offender and that there should be some
consistency when imposing maximum sentences. See State v. Morain, 2008-1546,
p. 6 (La. App. 3 Cir. 6/30/09), 11 So.3d 733, 738.
Defendant’s Nature and Background
The review of the second factor—the offender’s nature and background—
substantiates that Mr. Toney had no prior criminal convictions; however, as noted
by the trial court and the majority, Mr. Toney did have a criminal history which
included a previous 2016 DWI citation. In connection with that citation, Mr.
Toney’s uncontradicted testimony asserted that he fulfilled all the requirements
associated with the citation—which did not include attendance at AA meetings.
The majority indicates that Mr. Toney “knew” he had a drinking problem.
However, while Mr. Toney acknowledged a drinking problem at sentencing, he
testified that he lacked the self-awareness to realize he had a drinking problem at
the time of the accident. Mr. Toney testified that “I wish back then I would have
realized what it was, and learned my lesson, you know got everything under
control. My mental health and everything under control, but I didn’t realize that
then. I didn’t realize where I stand now.” He averred that he rarely “partied” at
the time of the accident because he worked all the time, and the accident date—his
birthday—“was the one day that I got in my head, just relax and this is what
4 happened.” Mr. Toney relayed that he has attended AA since his incarceration and
had not drank in three years.
Defendant’s background also showed that Defendant was gainfully
employed. He was described as an honest, reliable, and trustworthy by his
supervisor, aunt, and co-workers. Defendant also served as his mother’s caretaker
and acted as a father figure to a nephew and nieces. Defendant accepted
responsibility for his actions by entering a “blind” guilty plea and expressed great
remorse at the sentencing hearing for his actions on the accident date.
The majority rejects Mr. Toney’s contention that his overall law-abiding
background was not considered by the trial court in his sentencing on the vehicular
homicide counts, citing the horrific nature of the offenses. Nevertheless, as noted
by the majority, the three-part test in reviewing a claim for the imposition of the
maximum sentence requires consideration of all the factors in determining an
excessive sentence. See State v. Smith, 1999, pp. 17-18 (La. 7/6/00), 766 So. 2d
501, 514. This review necessarily includes evaluation of the offender’s nature and
background. Thus, the “horrific nature” of the offense cannot preclude
consideration of the offender’s background in imposition of the maximum
sentence; otherwise such a review would never take place as inevitably all
vehicular homicides offenses involving impaired drivers are of a “horrific nature”
and devastate the surviving family members and loved ones.
In totality, as discussed further herein below, I find Mr. Toney’s background
does not qualify as the worst offender for whom the maximum sentence is reserved
when compared to other convicted multiple homicide offenders.
Comparative Sentences
This Court emphasized in Toney I, 2021-0131, p. 9. 331 So.3d at 403, that
comparison of sentences is an important factor in reviewing a claim for excessiveness
as “[s]uch a comparison helps to assure that a defendant’s sentence will be
5 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.” Id., 2021-0131, p. 9,
331 So.3d at 403-4. Moreover, a reviewing court’s consideration of sentences imposed
by other courts provides consistency in the punishment of similar crimes for similarly
situated offenders. State v. Morain, 2008-1546, p. 4 (La. App. 3 Cir. 6/30/09), 11
So.3d 733, 737.
At the outset of any review of comparative sentences, it must be noted that well-
settled jurisprudence establishes that an excessive sentence review contemplates not
only the length of the sentence, but also the availability and restrictions of benefits
regarding parole eligibility and early release. See LeBlanc, 2009-1355, p. 11, 41
So.3d at 1174. Therefore, the actual sentence an offender is likely to serve is an
important element in determining if a sentence is excessive.
In LeBlanc, the Supreme Court reversed the decision of the appellate court to
vacate the trial court’s imposition of the maximum thirty-year sentence for vehicular
homicide for a first-time offender without a prior record, where the defendant had been
cited for DWI, possessed cocaine and marijuana, and had a “cocktail” of cocaine and
other legal drugs in her system. Id., 2009-1355, pp. 11-13, 41 So.3d at 1174-75. The
Court noted that the defendant had an acknowledged long-standing history of abusing
legal and illegal drugs, “punctuated by a few, half-hearted attempts to receive
treatment,” and had gone on a self-confessed cocaine binge in the days leading up to
the fatality accident. Id., 2009-1355, p. 12, 41 So.3d at 1174. The Court also found
that the defendant did not necessarily accept her culpability for the accident, pointing
out that the defendant reaped the benefits of a plea bargain, which reduced her
sentence by nearly 20 years. Id. Moreover, the Court highlighted that the trial court
imposed the mandatory minimum of three years for parole eligibility and crafted a
sentence that made it possible for the defendant to obtain early release and earn good-
6 time credit after serving one-third of her term; as such, the Supreme Court observed
that the defendant’s “maximum thirty (30) year sentence [was] actually a fifteen (15)
year sentence at best.” Id., 2009-1355, p. 11, 41 So.3d at 1174. The Court then opined
that “the availability of early release options is generally a relevant consideration in
review of sentences for excessiveness.” Id. Accordingly, in consideration of those
factors, the LeBlanc Court found the defendant’s original sentence was not excessive,
reversed the appellate court, and remanded the case to the district court for execution
of the original sentence. Id., 2009-1355, p. 13, 41 So.3d at 1175.
Therefore, in the context of the above-referenced criteria, Mr. Toney is
entitled to have his sentences and parole eligibility/early release options compared
with that of other multiple vehicular homicide offenders to determine
excessiveness.
Maximum Sentences
In State v. Crenshaw, 39,586 (La. App. 2 Cir. 4/6/05), 899 S.2d 751, the
defendant went to trial on two counts of vehicular homicide, wherein he challenged the
sufficiency of the evidence to prove that he was the driver. Upon conviction, the
defendant received the then maximum sentences of twenty years each at hard labor for
two counts of vehicular homicide, to be served consecutively, with one year each to be
served without benefits. Id., 39,586, p. 2, 899 So.2d at 753-54. Notably, at the time of
sentencing, there was no statutory mandate for consecutive sentences for multiple
counts of vehicular homicide. Nevertheless, the appellate court found that the
consecutive sentences were not constitutionally excessive where the defendant had
gone to trial and had three prior DWI convictions. Id., 39,586, pp. 14-16, 899 So.2d at
759-61.
The appellate court found that maximum sentences of fifteen years for three
counts of vehicular homicide in State v. Guillory, 1993-1031 (La. App. 3 Cir. 4/27/94),
640 So.2d 427, were not excessive. The Third Circuit noted that the sentences were to
7 be served concurrently; the defendant had one prior felony conviction and three
misdemeanor convictions; the defendant had a blood alcohol level of .29; and after
drinking excessively on the night of the accident, the defendant had twice been urged
by others not to drive. Id., 1993-1031, 647 So.2d at 430.
In State v. Yates, 574 So.2d 566 (La. App. 3 Cir. 1991), the defendant argued
that his two consecutive five-year sentences—the maximum at the time—for two
counts of vehicular homicide were excessive. Although the defendant received the
maximum sentence, the sentence on count two was suspended and the defendant was
placed on supervised probation for five years after release from confinement. Id., 574
So.2d at 567. In affirming the over-all sentence, the Third Circuit found that the
sentence was not excessive, emphasizing that the defendant had two prior DWI
convictions, showed no remorse for his conduct, and continued to drink on a daily
basis after the accident. Id., 574 So.3d at 569-70.
Non-Maximum Sentences
The defendant in State v. Benavides, 54,265 (La. App. 2 Cir. 3/9/22), 336 So.3d
114, went to trial and was convicted on two counts of vehicular homicide. The trial
court imposed sentences of twenty and nineteen years; however, did not address the
length of time to be served without benefits. Defendant maintained on appeal that the
sentences were excessive given that he had a family to support and had no prior
offenses. Id., 54,265, p.17, 336 So.3d at 123. The appellate court found the mid-range
sentences were not excessive, noting that although the defendant had no prior record,
he admitted that he had an active drinking problem. Id., 54,265, p. 23, 336 So.3d at
125. As in LeBlanc, supra, the trial court stated that the “sentence should give the
defendant the incentive for rehabilitation and to take advantage of early release on
parole.” Id.2
2 The sentencing transcript showed the trial court failed to specify the statutory time that the
sentences were to be served without benefits. Accordingly, the matter was remanded for resentencing solely that purpose. Benavides, 54,265, p. 27, 336 So.3d at 126. 8 In State v. Gordon, 2017-846 (La. App. 3 Cir. 3/28/18), 240 So.3d 301, the
defendant pled guilty to three counts of vehicular homicide as a result of driving
under the influence of methamphetamines, in exchange for the State’s dismissal of
a negligent injuring charge. The trial court sentenced the defendant to eighteen
years at hard labor on each count for killing three members of the same family,
with three years served without benefits. The defendant had no criminal record.
The principal aggravating factors in defendant’s case were that the defendant
admitted to a long-standing, on-going problem with methamphetamine abuse—
which included taking the drug almost every other day—and a finding that
methamphetamines and amphetamines were, in fact, found in his urine sample
after the accident. Id., 2017-846, p. 6, 240 So.3d at 306. Hence, the Gordon Court
found that the eighteen-year consecutive sentences imposed, three years without
benefits, were not constitutionally excessive.
The defendant in State v. Ellis, 2010-1019, pp. 2-3 (La. App. 5 Cir. 5/24/11),
67 So.3d 623, 626-27, a first time felony offender, entered an Alford guilty plea to
two counts of vehicular homicide while driving under the influence of marijuana.
The trial court sentenced the defendant to concurrent sentences of twenty-five
years at hard labor and imposed the first five years without benefits. Id., 2010-
1019, p. 2, 67 So.3d at 624.3 At sentencing, the trial court found that the defendant
was arrested for drug possession on the date of the accident, had marijuana in his
system, was driving recklessly with a suspended license, and showed no remorse.
Id., 2010-1019, pp. 4-5, 67 So.3d at 626. In rejecting the defendant’s excessive
sentence claim, the appellate court observed that the trial court made it possible for
the defendant to be released on parole after serving one-third of his twenty-five
year sentence, or approximately 8.33 years, and considered the defendant’s
3 At the time of the defendant’s offense in Ellis, 2010-1019, 67 So.3d 623, the imposition of
consecutive sentences for multiple vehicular homicides, although available, was not statutorily mandated. 9 eligibility for early release on good time credits. Id., 2010-1019, p. 6, 67 So.3d at
627. The appellate court, quoting LeBlanc, 2009-1355, p. 11, 41 So.3d at 1173,
found that “[t]he availability of early release options is generally a relevant
consideration in review of sentences for excessiveness.” Id. Consequently, given
the parole eligibility considerations, the benefit the defendant reaped from his plea
agreement, and the circumstances of the offense, the Ellis Court affirmed the
defendant’s sentences, finding no abuse of the trial court’s discretion. Id., pp. 6-7,
2, 67 So.3d at 627.
The defendant in State v. Edison, 37,012 (La. App. 2 Cir. 5/14/03), 847
So.2d 140, entered guilty pleas to two counts of vehicular homicide in exchange
for the State’s agreement to dismiss two counts of first degree negligent injuring.
The trial court imposed two concurrent terms of fourteen years, with the first year
to be without benefits. The maximum sentence at the time was twenty years.
Considering the gravity of the offenses and the benefit Defendant received from
the plea bargain, the appellate court affirmed the defendant’s sentences. Id.,
37,012, 847 So.2d 14.
In State v. Trahan, 1993-1116 (La. App. 1 Cir. 5/20/94), 637 So.2d 695, a
first-time felony offender, went to trial and was convicted on three counts of
vehicular homicide. He was sentenced to three ten-year prison terms, to be served
concurrently. The statute in effect at the time provided for a sentence of two to
fifteen years. The appellate court determined that the sentence was not excessive
where the defendant showed little remorse for his conduct after the accident, and
while awaiting trial, was observed having several drinks at a bar. Id., 1993-1116,
637 So.2d at 708-09.
In State v. Stein, 611 So.2d 800 (La. App. 3 Cir. 1992), the defendant pled
no contest to two counts of vehicular homicide and received concurrent sentences
of four and one-half years. The statutory sentencing range at the time was two to
10 fifteen years. The defendant had two prior misdemeanor convictions. Based on the
defendant’s possible exposure to a fifteen-year sentence and the imposition of
concurrent sentences, the appellate court denied the defendant’s excessive sentence
claim. Id., 611 So.2d at 802.
Notwithstanding the inexplicable grief and carnage inflicted by Mr. Toney
as a result of this tragic accident, based on our review of the foregoing sentences
imposed for multiple vehicular homicide offenders and their respective
backgrounds, Mr. Toney’s maximum sentences and the thirty years imposed
without benefits are inconsistent with the sentences imposed on the other
offenders. For example, the background of the Crenshaw defendant, arguably the
most egregious offender, included three DWI convictions, and moreover, he did
not accept responsibility for his actions by requiring the State to go to trial. In
comparison, Mr. Toney had one DWI citation—no convictions—and accepted
responsibility by entering a guilty plea. Although the Crenshaw defendant
received the maximum twenty-year sentences, he only had to serve one year each
without benefits.
Here, Mr. Toney not only received the total maximum sentences of sixty
years, but also was required to serve a total of thirty years without benefits without
the availability of early release options. The thirty-year consecutive sentences
imposed, with fifteen years without benefits on each sentence, means that a
minimum, Mr. Toney will have to serve thirty years before any consideration for
parole eligibility. Additionally, Mr. Toney faces other parole eligibility release
restrictions because he was found to have committed a crime of violence premised
on his 0.20 percent BAC level. Pursuant to La. R.S. 15:574.4(B), the existence of
a 0.20 percent BAC would require Mr. Toney to serve at least sixty-five percent of
11 the sentence to become parole eligible.4 Based on that computation, Mr. Toney
would have to serve 39 years for the DOC to consider him for parole eligibility
and/or early release.
Additionally, although the existing maximum sentences were imposed in the
Guillory and Yates cases, unlike Mr. Toney, those offenders received the benefit of
concurrent or suspended sentences, and had considerably worse backgrounds. In
particular, the Guillory defendant received concurrent fifteen-year sentences,
although he had a prior felony and misdemeanor convictions and had been
repeatedly urged not to drink on the night of the accident. Similarly, the Yates
defendant received a suspended five-year sentence on the second count of his
vehicular conviction and his background included two prior DWI convictions, a
lack of remorse, and continued drinking after the accident.
As to benefits and early release options, the other comparable offenders in
Benavides, Gordon, Ellis, Edison, Trahan, and Stein discussed hereinabove not
only received less than the maximum sentences and/or concurrent sentences, they
also received lesser restrictions on benefits, ranging from one to five years. The
record in the present matter supports a statutory minimum five-year restriction on
benefits based on Defendant’s BAC. However, in placing the thirty-year
restrictions on benefits, the trial court failed to provide specific reasons. This
failure contravened this Court’s directive upon remand in Toney I, 2021-1031, 331
So.3d at 407-08, to state the considerations “for restricting benefits on sentences.”
Here, Mr. Toney’s restrictions on benefits were triple that of other multiple
homicide offenders, and as underscored in LeBlanc, supra, those restrictions are a
relevant consideration in a review of sentences for excessiveness.
4 La. R.S. 15:574.4(B) states in part that ‘[n]otwithstanding any other provisions of law to the
contrary, a person convicted of a crime of violence and not otherwise ineligible for parole shall serve at least sixty-five percent of the sentence imposed, before being eligible for parole.”
12 The majority relies on State v. McKinney, 2023-162 (La. App. 3 Cir.
10/4/23), 372 So.3d 957 and State v. Cook, 674 So.2d 957, 958 (La. 1996) to reject
Mr. Toney’s argument that a review of similar sentences supported that more
egregious circumstances and offenders received more lenient sentences. However,
closer scrutiny reveals that the results reached in McKinney and Cook are
distinguishable from the present matter.
In McKinney, 2023-162, p. 1, 372 So.3d at 959, the trial court sentenced the
defendant to the maximum sentence of 30 years for vehicular homicide, with the
first three years to be served without benefits, and in conjunction therewith,
suspended seven years of the defendant’s sentence and placed him on supervised
probation for three years upon his release. In crafting the sentence, the trial court
stated “I believe that I am allowed to look at the sentence itself and look at the
amount of time under the law that he is likely to serve.” Id., 2023-162, p. 10, 372
So.3d at 964. The trial court further noted the defendant’s eligibility for parole and
opined that there’s no reason to think the defendant would not get his “good
time”—which is not discretionary; and opined that under the circumstances the
defendant’s overall sentence was not “not close to being cruel and unusual under
the Constitution. Id. On appellate review, the McKinney court determined that the
defendant’s excessive sentence claim lacked merit because notwithstanding the
defendant’s characterization, the trial court did not impose the maximum sentence.
The court pointed out that the trial court suspended seven years of the defendant’s
sentence and ordered that the first three years only be served without benefits,
although statutorily, the defendant’s blood alcohol level required that at least five
years be served without benefits. 2023-162, pp. 17-18, 372 So.3d at 967.
Moreover, the Mckinney court noted that the trial court considered good time and
parole in fixing the Defendant’s sentence. Id., 2023-162, p. 18, 372 So.3d at 967.
The appellate court quoting LeBlanc, 2009-1355, p.11, 41 So.3d at 1174, in finding
13 “[t]he availability of early release options[,]” the supreme court has explained, “is
generally a relevant consideration in review of sentences for excessiveness.” Id.
Unlike McKinney, in the matter sub judice, Mr. Toney unequivocally
received the maximum sentence. The trial court did not suspend any part of Mr.
Toney’s sentence. Further, the trial court’s imposition of thirty years without
benefits reflects that the trial court gave no consideration to the availability of early
release, a relevant consideration in considering an excessive sentence claim.
The majority compares Mr. Toney to the defendant in Cook, whose 9-year
sentence at hard labor for one count of vehicular homicide was reinstated by the
Supreme Court, in part, because of the defendant’s flight from the scene. The
majority notes that the Court observed that the defendant’s flight “manifested
deliberate cruelty to the victim” because it “could have meant the difference
between an individual living and dying.” 674 So.2d at 958. However, the Cook
defendant’s “flight” differs from Mr. Toney’s flight. In State v. Cook, 1995-212, p.
1 (La. App. 3 Cir. 10/18/95), 664 So.2d 489, 490, the facts show that the defendant
purposefully left the scene of the accident to drive to a friend’s residence. The
victim was unconscious, face down in a ditch, and died from the trauma. Id.
Although Mr. Toney attempted to flee in the present matter, no evidence was
introduced that his flight was purposeful and that the victims’ outcome would have
been different but for his attempted flight. Moreover, in contrast to Mr. Toney, the
Cook defendant did not receive the maximum sentence.
Accordingly, upon review of the offense, Defendant’s background, and
comparison with similar multiple homicide defendants, the trial record does not
support that Mr. Toney is the worst of the multiple vehicular homicide offenders
for whom the maximum sentence is reserved. I find the overarching factors of this
case are more analogous to the defendant in Morain, 2007-1207, 981 So.2d 66. In
Morain, the defendant had no prior DWI convictions, showed remorse for his
14 actions, and had not been involved in other criminal activity; consequently, upon
comparison of the defendant’s conduct and offense with other offenders who
received the maximum sentence, the Third Circuit concluded that the maximum
twenty-year sentence imposed on the defendant was excessive and remanded for
resentencing. Id., 2007-1207, pp. 11-12, 981 So.2d at 72-73.
As per Leblanc, our jurisprudence has generally upheld the imposition of
maximum sentences where the defendant has the availability of early release
options and the actual sentence served will be less than the maximum; that is not
the case here. Thus, Mr. Toney’s contention that the vehicular homicide sentences
are excessive has merit.
Based on the foregoing reasons, I respectfully dissent in part and would
remand for resentencing Mr. Toney’s vehicular homicide convictions.