State v. Blackmon

748 So. 2d 50, 1999 WL 994183
CourtLouisiana Court of Appeal
DecidedNovember 3, 1999
Docket99-391
StatusPublished
Cited by16 cases

This text of 748 So. 2d 50 (State v. Blackmon) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Blackmon, 748 So. 2d 50, 1999 WL 994183 (La. Ct. App. 1999).

Opinion

748 So.2d 50 (1999)

STATE of Louisiana, Appellee.
v.
Jeffery P. BLACKMON, Defendant-Appellant.

No. 99-391.

Court of Appeal of Louisiana, Third Circuit.

November 3, 1999.

*51 Raymond LeJeune, Asst. Dist. Atty., Mamou, C. Brent Coreil, Dist. Atty., Ville Platte, for State.

J. Michael Small, Alexandria, for Jeffery P. Blackmon.

Before DECUIR, AMY and PICKETT, Judges.

AMY, Judge.

The defendant entered guilty pleas to charges of vehicular homicide and first offense driving while intoxicated. For the vehicular homicide conviction, he was sentenced to fifteen years at hard labor without the benefit of probation, parole, or suspension of sentence. He was also ordered to pay a ten thousand dollar fine. The defendant appeals this sentence asserting it is excessive and that the trial judge failed to adequately consider the mitigating factors present. For the following reasons, we affirm.

Factual and Procedural Background

This matter stems from an automobile accident occurring on the evening of June 9, 1998. The State alleges that, on the evening of the accident, the defendant, Jeffery Blackmon, was driving a vehicle in which his own child and his girlfriend's child were passengers and were not protected by child restraints. During the evening, Blackmon allegedly struck a vehicle and then left the scene at a high rate of speed. Police officers were summoned and began pursuing the Blackmon's vehicle.

When the officers came upon the Blackmon vehicle, they discovered that Blackmon had been involved in another accident in which he struck the rear of a pickup truck. The driver of the truck, John Morein, was ejected and died as a result of his injuries. Morein's wife, Candace, was a passenger and was seriously injured. The record indicates that Mrs. Morein was pregnant at the time of the accident and that the pregnancy was threatened due to the accident.

The defendant underwent a blood alcohol test subsequent to the accident which revealed a blood alcohol concentration of.162 percent. On June 19, 1998, the defendant was charged with vehicular homicide, a violation of La.R.S. 14:32.1, and with first degree vehicular negligent injuring, a violation of La.R.S. 14:39.2. The defendant was also charged with related misdemeanor offenses.

On November 16, 1998, the defendant entered a plea of guilty to vehicular homicide and first offense driving while intoxicated. Pursuant to a plea agreement, the State agreed to not pursue the negligent injuring charge in exchange for the plea. Additionally, the State agreed not to pursue the four misdemeanor charges pending against the defendant. The agreement contained no recommendation regarding sentencing.

A sentencing hearing was held at which the defendant presented witnesses and Morein's family members read prepared statements. The trial court subsequently sentenced the defendant on January 22, 1999. On the charge of vehicular homicide, the defendant was sentenced to fifteen years at hard labor without the benefit of probation, parole, or suspension of sentence. He was also ordered to pay a fine of ten thousand dollars and attend a court approved driver improvement program. As for the driving while intoxicated charge, the trial court sentenced the defendant to serve six months, pay a five hundred dollar fine, and attend the driver improvement program described above.

Following sentencing, the defendant objected to the sentence imposed and filed *52 a Motion to Reconsider Sentence asserting the trial court imposed an excessive sentence, failed to adequately consider mitigating circumstances, and failed to adequately articulate for the record, the factual basis for the sentence. This motion was denied. The defendant then filed a motion for appeal on the vehicular homicide sentence only. He assigns the following as error:

1. The imposition of a sentence of fifteen years without benefit of probation, parole or suspension of sentence constitutes cruel, excessive, and unusual punishment in violation of Article I, Section 20 of the Louisiana Constitution.
2. The Trial Court failed to consider the mitigating evidence presented at the sentencing hearing by way of live testimony and letters from persons who were acquainted with the Appellant.
3. The Trial Court failed to comply with the requirements of Article 894.1(C) of the Code of Criminal Procedure by failing to state for the record the considerations taken into account and the factual basis for imposing a fifteen year sentence.
4. The Trial Court erred in denying Appellant's Motion to Reconsider Sentence.

Discussion

Error Patent

La.Code Crim.P. art. 920 requires that all appeals be reviewed for errors patent on the face of the record. Our review reveals one error. During the plea hearing, the trial court did not personally inform the defendant of the nature of the charges and the maximum and minimum penalties possible under the charges. La. Code Crim.P. art. 556.1(A)(1) provides as follows:

A. In any criminal case, the court shall not accept a plea of guilty or nolo contendere, without first addressing the defendant personally in open court and informing him of, and determining that he understands, all of the following:
(1) The nature of the charge to which the plea is offered, the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law.

Although the trial judge did not do so personally, he asked the assistant district attorney to do so. The assistant district attorney informed defendant in open court as follows:

The vehicular homicide, which is Count 1 of the Bill of Information or indictment, but I think this is a Bill of Information. This is a violation of Article 32.1, Your Honor, vehicular homicide. The penalty provision of that is, whoever commits the crime of vehicular homicide shall be fined not less than $2,000.00 nor more than $15,000.00 and shall be imprisoned with or without hard labor for not less than two years nor more tha[n] fifteen years. At least one of the sentence of imprisonment shall be imposed without benefit of probation, parole or suspension of sentence. The Court shall require the defendant to participate in a court approved substance abuse program or a court approved, driving program, or both.

As the defendant alleges no misunderstanding as to the nature of the charge pled and the plea colloquy demonstrates that the defendant had adequate information on which to enter an intelligent and voluntary plea pursuant to Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), we conclude that the mere fact that the trial court invited the assistant district attorney to read the charges and possible penalties is not reversible error.

Excessiveness of the Sentence

In his first assignment of error, the defendant contends the sentence of fifteen years at hard labor without the benefit of probation, parole, or suspension of sentence is unconstitutionally excessive. He *53 argues this is the "harshest reported sentence ever imposed on a person convicted of vehicular homicide" and that other cases, involving more egregious behavior than his resulted in lesser sentences.

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Bluebook (online)
748 So. 2d 50, 1999 WL 994183, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-blackmon-lactapp-1999.