State v. LeBlanc

12 So. 3d 1125, 8 La.App. 3 Cir. 1533, 2009 La. App. LEXIS 1136, 2009 WL 1608451
CourtLouisiana Court of Appeal
DecidedJune 10, 2009
Docket08-1533
StatusPublished
Cited by5 cases

This text of 12 So. 3d 1125 (State v. LeBlanc) 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. LeBlanc, 12 So. 3d 1125, 8 La.App. 3 Cir. 1533, 2009 La. App. LEXIS 1136, 2009 WL 1608451 (La. Ct. App. 2009).

Opinions

PAINTER, Judge.

| defendant, Maryln A. LeBlanc, appeals the sentence she received in connection with her guilty plea to one count of vehicular homicide and three counts of vehicular negligent injuring. For the following reasons, we vacate the thirty-year sentence imposed on the conviction for vehicular homicide and remand the matter to the trial court for resentencing in accordance with this opinion. Furthermore, we sever Defendant’s misdemeanor sentences from this appeal and instruct Defendant that she must file an application seeking supervisory review with this court within thirty days of this ruling should she choose to seek review thereof.

FACTUAL AND PROCEDURAL BACKGROUND

Whereas Defendant pled guilty, the facts are as recited by the State at the guilty plea hearing, as follows:

[O]n or about April 21, 2007, in the evening between 7:00 and 8:00, the Hardy family from Port Barre’ was traveling by car to a family reunion here in Lafayette Parish.
Michael Hardy was driving. Kyle Hardy was a front seat passenger. Kristy Hardy and Mrs. Genevieve Hardy were the rear seat passengers in the Hardys’ 2002 Toyota Camry. These are the four individuals that represent the victims in these first four counts.
They were proceeding southbound on Louisiana Highway 724, otherwise known as South Fieldspan. Mr. Michael Hardy would come to be later examined after the collision as to his blood alcohol content, and he was found to be absolutely free of any alcohol.
The defendant, on the other hand, Maryln LeBlanc, was proceeding northbound on Louisiana Highway 724, again South Fieldspan, in a Jeep Grand Cherokee. Approaching the Hardy vehicle, she was driving rapidly, speeding, and recklessly.
There were actually three vehicles in the Hardy family caravan going to the family function. Michael was driving the lead vehicle. Michael had turned off of Highway 90 onto Highway 724 proceeding south when the defendant’s vehicle, driving erratically, veered onto and into the edge of the side ditch and came out of the ditch and straightened |2up and then abruptly crossed into the southbound lane in which the Hardy vehicle was proceeding.
Mr. Hardy, Michael Hardy, tried to swerve to the right in an attempt to miss the defendant’s vehicle, but due to [1127]*1127the speed and the erratic driving of the defendant, the defendant’s Jeep struck violently the driver’s side of the Hardy Camry, spinning the Camry out of control into the side ditch and onto the south — off of the southbound lane, coming to rest there. The violent collision resulted in the death of Mrs. Genvieve Hardy and serious bodily injury to Kyle Hardy, Kristy Hardy, and Michael Hardy.
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She turned onto 343 and proceeded south, where she was eventually stopped by the Lafayette Parish Sheriffs Office patrol units.
She exhibited slurred speech and glossy red eyes. She performed extremely poorly on the field sobriety test. Samples were taken from the defendant and were analyzed by the Louisiana State Police Crime' Lab. Her samples were found to contain — her body samples were found to contain methadone, meprobamate, hydrocodone, cocaine, diazepam, and marijuana....

Defendant was charged by bill of information with one count of vehicular homicide, a violation of La.R.S. 14:32.1, three counts of vehicular negligent injuring, violations of La.R.S. 14:39.1, one count of operating a vehicle while intoxicated, a violation of La.R.S. 14:98, one count of possession of a controlled dangerous substance, Schedule II, a violation of La.R.S. 40:967, one count of possession of a controlled dangerous substance, Schedule I, a violation of La.R.S. 40:966, one count of reckless operation of a vehicle, a violation of La.R.S. 14:99, two counts of hit-and-run driving, violations of La.R.S. 14:100, one count of failure to conform to required position and method of turning at intersections, a violation of La.R.S. 32:101(C), and one count of failure to have driver’s license in immediate possession when driving, a violation of La.R.S. 32:411(D).

|3On March 13, 2008, Defendant pled guilty to one count of vehicular homicide and three counts of vehicular negligent injuring. The remaining charges were dismissed. The trial court ordered a presen-tence investigation report. Defendant was sentenced on September 8, 2008, to the maximum sentence of thirty years at hard labor with three years to be served without the benefit of parole, probation or suspension of sentence on the conviction for vehicular homicide, and the maximum sentence of six months on each of the three counts of vehicular negligent injuring, to be served concurrently with each other and with the thirty-year sentence. Defendant filed a “Motion to Reconsider Sentence,” alleging an excessive sentence. The motion was denied without a hearing or written reasons.

Defendant now appeals asserting that the maximum sentence of thirty years is constitutionally excessive under the circumstances of the case. For the following reasons, we agree.

DISCUSSION

Errors Patent

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. Although we recognize that there are two errors patent, these errors are precluded from review for the following reasons.

First, there is a misjoinder of offenses in the bill of indictment. Counts 1 and 6 of the bill of information are punishable by imprisonment with or -without hard labor, and are thus triable by a jury of six, all of whom must concur to render a verdict. La.Code Crim.P. art. 782, La.R.S. 14:32.1 and La.R.S. 40:967. The remaining counts of the twelve count [1128]*1128bill are to be tried by the court without a jury. La.Code Crim.P. art. 779. Louisiana Code of Criminal Procedure Article 4931 .¡provides for the joinder of offenses in a single bill under limited circumstances if the offenses joined are triable by the same mode of trial. Consequently, Counts 1 and 6 were improperly joined with the remaining counts. However, the Defendant did not file a motion to quash the bill of information on the basis of misjoinder of offenses, as required by statute. La.Code Crim.P. art. 495. Additionally, by entering an unqualified guilty plea, the Defendant waived review of this non-jurisdictional pre-plea defect. See State v. Crosby, 338 So.2d 584 (La.1976). Thus, this error is precluded from review.

Second, the trial court failed to impose a mandatory fíne. Louisiana Revised Statutes 14:32.1(B) requires the imposition of a fíne of not less than two thousand dollars nor more than fifteen thousand dollars. The trial court’s failure to impose a mandatory fine in this case renders the Defendant’s sentence illegally lenient. However, the error is not raised by Defendant, and we will not address it herein.

We next address a procedural issue. The Defendant entered a plea of guilty to Counts 1 through 4. Because Counts 2-4, vehicular negligent injuring, were not triable by jury, the proper mode of appellate review for these offenses is an application for writ of review, rather than an appeal. La.Code Crim.P. art. 912.1.

Defendant has not challenged her misdemeanor convictions.

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Cite This Page — Counsel Stack

Bluebook (online)
12 So. 3d 1125, 8 La.App. 3 Cir. 1533, 2009 La. App. LEXIS 1136, 2009 WL 1608451, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-leblanc-lactapp-2009.