Fourth Judicial District Attorney Steve Tew says his office did not agree last November to a reduced sentence for a Mer Rouge man convicted of vehicular homicide, in spite of court records and statements made in open court that the district attorney’s office agreed to the lighter prison term.
During a Nov. 13, 2018 hearing at Morehouse Parish Courthouse in Bastrop, Fourth Judicial District Court Judge Robert Johnson signed off on a new plea and sentencing agreement between Tew’s office and Craig A. Oliphant, 53, of Mer Rouge.
Oliphant was arrested in February 2009 for driving drunk and striking a pedestrian who died in a ditch. Oliphant’s blood alcohol content at the time was 0.247 grams percent.
Under the new sentence, Oliphant must serve 13 years at hard labor. Credit would be given for any and all time served since the date of his arrest (about eight years thus far). The court also imposed a $2,000 fine.
State of Louisiana v. Craig A. Oliphant was a landmark case in Louisiana and across the country, too, because of the state Supreme Court’s ruling in March 2013 that vehicular homicide constituted a “crime of violence.” A crime of violence is an offense committed with the substantial risk that physical force will be used against another person.
At the time of the Supreme Court’s ruling, Oliphant had been sentenced to 25 years in prison. Under the original 25-year sentence, Johnson ruled Oliphant would not be eligible for benefits for the first 15 years. The Supreme Court ruled that Johnson had erred in giving Oliphant a lenient sentence: Oliphant should serve 85 percent, or about 21 years, of his 25-year sentence because it was a crime of violence.
In July 2013, Johnson reduced Oliphant’s sentence from 25 years to 18 years at hard labor. As of November 2018, that sentence is now 13 years.
Not only did Oliphant benefit from a further reduced sentence last November, but the timing of Oliphant’s new sentence also could shave off more time that he spends in prison. That would be the case because of recent changes to certain offenders’ eligibility for benefits, such as parole or probation.
Under state law, a person convicted of a crime of violence must serve up to 85 percent of their sentence before they are eligible for benefits, though recent changes dropped that percentage — in some cases — to 75 percent.
The Supreme Court’s ruling in State v. Oliphant led to a change of laws in Louisiana and other states, as prosecutors enlisted the help of state legislators to clearly delineate vehicular homicide as a crime of violence when alcohol was detected in the driver’s blood.
Oliphant is currently serving his sentence at the Morehouse Parish Jail Annex, according to the state Department of Corrections (DOC). Thanks to his reduced sentence, Oliphant’s earliest possible release date is Feb. 17, 2021, according to DOC.
DA says judge responsible
for lighter sentence
When asked about Oliphant’s new sentence, Tew told The Ouachita Citizen the judge was responsible for reducing Oliphant’s time in prison.
“This is a guess,” Tew said. “I think the judge was trying to put him on the street, with as little time as possible.”
In response to The Ouachita Citizen’s inquiries about Oliphant’s eligibility for benefits under the old and new sentences, Assistant District Attorney John Spires disputed Johnson’s description that Oliphant’s new sentence was “agreed upon” by Oliphant and the district attorney’s office.
“From the start of this case, the sentence has been left to the judge’s discretion,” Spires said. “The only agreement was the dismissal of the second count of the bill of indictment, which was hit and run driving.”
Tew and Spires’ descriptions were at odds with statements made in open court last November. During the Nov. 13, 2018 hearing, the court used the phrases “agreed upon sentence” and “sentence agreement” to describe Oliphant’s new sentence.
During a second interview, Tew also disputed Johnson’s description of Oliphant’s new sentence as an “agreed upon sentence.”
In his remarks, Tew continued to claim Johnson was solely responsible for the new sentence.
“It’s up to the judge and what he chooses to do,” Tew said.
The Ouachita Citizen pointed out that Tew’s office did not object to the new plea agreement or new sentence during the Nov. 13, 2018 court hearing.
“We didn’t agree to it, we just didn’t raise any fuss about it,” Tew said. “We checked with the victim’s mother. She said it’s fine. She didn’t have any objection.”
The Ouachita Citizen’s review of the court record at the Morehouse Parish Clerk of Court’s office revealed a handwritten order by Johnson designating the new sentence as part of a “sentencing agreement to serve 13 (years).”
A copy of the State of Louisiana Uniform Commitment Order also indicated Oliphant’s new sentence was part of a “plea and sentencing agreement.”
plea was involuntary
The basis for setting aside Oliphant’s 18-year sentence and approving the new sentence was Oliphant’s claim that his previous attorneys — the now deceased John Joyce, of Monroe — did not inform him that he was pleading guilty to a crime of violence.
Oliphant made that claim in a March 29, 2016 application for post-conviction relief.
“Mover prior to the entry of his plea neither discussed with his attorneys, nor was he informed of the possibility that the offense to which he was to enter a plea could or would be designated as a crime of violence,” stated Oliphant’s application for post-conviction relief.
Monroe attorney Lavalle Salomon signed Oliphant’s application for post-conviction relief and represented him during the November 2018 hearing.
Johnson convened the hearing by questioning the claims in Oliphant’s application for post-conviction relief.
“You contend that your client was not properly informed by his prior counsel that...it was a crime of violence,” Johnson said. “Because he was allegedly not told then by his counsel or the court, it made his plea involuntary.”
Salomon confirmed Johnson’s statement.
“That’s the gist of it,” Salomon said.
Prior to pleading guilty to vehicular homicide during a July 19, 2010 court hearing, Oliphant said he no objections with his legal counsel’s performance and understood he could serve up to 30 years in prison.
The Ouachita Citizen’s review of the July 19, 2010 transcript revealed the following exchanges:
“Now, you understand that by statute as I read it to you, your sentence could be anywhere from five to no more than 30 years. You understand that?” Johnson said.
“Yes, sir, I understand,” Oliphant said.
Johnson also asked Oliphant whether he discussed his plea with legal counsel.
“Have you had an opportunity to visit with all of your lawyers in this case and discuss with them the facts of this case and any defenses that you might have to this prosecution?” Johnson said.
“Yes, sir,” Oliphant said.
Johnson again asked Oliphant a series of questions about whether his legal counsel had discussed the nature of the charges, the penalties for those charges, his plea and possible defense. Oliphant confirmed that such discussions did take place.
When asked whether he was satisfied with his legal counsel’s work, Oliphant said, “Completely, Your Honor.”
In his motion for post-conviction relief, Oliphant claimed his guilty plea was involuntarily made because he did not know it accepted the crime of violence designation, but Johnson ruled Oliphant had committed a crime of violence at the time of sentencing. According to the Supreme Court’s March 2013 ruling, the trial court had the authority at the time to designate a crime as a crime of violence when imposing a sentence.
During the November 2018 hearing, Assistant District Attorney Stephen Sylvester confirmed the district attorney’s office would agree to setting aside the original plea agreement in favor of a new plea agreement and new sentence.
“The state has also spoken to the family, and they have no opposition,” Salomon said. “This is the end.”
Johnson granted the petition for post-conviction relief, vacated the previous sentence and imposed the new 13-year sentence.
At the time of the hearing, Oliphant indicated he had served about eight years in prison.
During the hearing, Oliphant took the witness stand to waive his rights under the terms of the new plea agreement. Salomon provided Oliphant with tissues, because he was crying.
After Oliphant’s testimony concluded, Salomon asked that his client be given credit for time served in prison because of Oliphant’s participation in an in-patient rehabilitation program after his arrest but before his original sentence.
“That is something I am not comfortable doing,” Johnson said.
Facts of the case
According to the court record, Oliphant was driving a 2006 Jeep Grand Cherokee SUV on U.S. Hwy 165 from Bastrop to Bonita, when he crossed the fog line to the right and struck Carvis M. Scott, who was standing on the shoulder near his mother’s home. After the impact, Scott was thrown into Fredrick Matthews, and both men fell into a nearby ditch. Matthews was injured, but Scott was pronounced dead at the scene.
When questioned by authorities, Oliphant denied drinking any alcohol though he performed poorly on a field sobriety test. During an Intoxilyzer breath test, Oliphant’s blood alcohol content was 0.247 grams percent. In Louisiana, 0.08 grams percent is considered intoxicated.
Oliphant claimed he thought he had hit a mailbox or trash can while he was looking down for his cell phone.
“This Court finds that there was no provocation whatsoever that caused you to commit this tragic and senseless crime that has left three children without a father, a mother without a son, and a family in mourning over the loss of a beloved brother,” Johnson said during a March 24, 2011 sentencing hearing, according to a court transcript.
In its March 2013 ruling, the Supreme Court noted that Oliphant’s “spectacularly high blood alcohol content” and impaired driving had the “general criminal intent necessary to commit vehicular homicide,” because he was intoxicated and driving an instrument with enough force to kill someone.
“The District Court articulated this very rationale at sentencing when it observed defendant’s actions were ‘no different from a person putting a bullet in a gun, pointing that gun at another human being, pulling the trigger, and killing that person. A gun is a dangerous weapon and so is a motor vehicle in the hands of an intoxicated person, especially one who was as intoxicated as [defendant] on the night of this tragedy,’” stated the Supreme Court’s March 2013 ruling.
Almost 10 years before eligible for benefits
In response to this newspaper’s inquiries, Spires pointed out that Oliphant could benefit from recent changes to the law that reduced the amount of time a person convicted for a crime of violence must serve in prison.
“Until recent changes in the law, a person convicted of a crime of violence served eighty-five percent (85%) of his sentence before becoming eligible for benefits,” Spires said.
“Under the new changes, some crimes of violence maintain that percentage while others require the person to serve seventy-five percent (75%) of the sentence. Although I cannot speak for that department, I believe the Department of Corrections will apply the latter to this sentence.”
Spires pointed out that DOC ultimately determined an offender’s eligibility for benefits.
Under the previous sentence of 18 years at hard labor, Oliphant was expected to serve some 13.5 years, with credit for eight years already served, before becoming eligible for benefits such as parole or probation, according to Spires.
Under his new sentence, Oliphant is expected to serve about 9.75 years in prison, with eight years credit, before becoming eligible for benefits, Spires said.