State of Louisiana v. Tonya Avant Sandifer

Judgment rendered January 15, 2020.
Application for rehearing may be filed
within the delay allowed by Art. 922,
La. C. Cr. P.

No. 53,276-KA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

STATE OF LOUISIANA Appellee

versus

TONYA AVANT SANDIFER Appellant

*****

Appealed from the
Eighth Judicial District Court for the
Parish of Winn, Louisiana
Trial Court No. 43,909

Honorable Jacque D. Derr, Judge

*****

LOUISIANA APPELLATE PROJECT Counsel for Appellant
By: Peggy J. Sullivan

R. CHRISTOPHER NEVILS Counsel for Appellee
District Attorney

COLE B. SMITH
Assistant District Attorney

*****

Before MOORE, GARRETT, and COX, JJ.

COX, J., concurs in part and dissents in part with written reasons.

MOORE, J.

After a jury trial, the defendant, Tonya Sandifer, was convicted of

distribution of methamphetamine, a Schedule II CDS, and attempted

distribution of methamphetamine. The court imposed consecutive sentences

of 25 years and 15 years at hard labor, and denied the defendant’s motion to

reconsider sentence. Defendant appealed. For the reasons that follow, we

affirm the conviction, vacate the sentence, and remand to the trial court with

instructions.

FACTS

Tonya Avant Sandifer was charged by bill of information with

distribution of methamphetamine, a Schedule II CDS, in violation of La.

R.S. 40:967A, and attempted distribution of methamphetamine, a Schedule

II CDS, in violation of La. R.S. 40:967A and 14:27. These offenses were

committed on May 10 and 16, 2016.

The Winn Parish Sheriff’s Office and the Louisiana State Police

Department (“LSP”) were investigating drug crimes in Winn Parish.

Raymond Durbin was employed by the police as a confidential informant

(“CI”) to confect a drug deal between Sandifer and an undercover LSP

officer, Sergeant William Moore. On May 10, 2016, Sgt. Moore was

working undercover using the alias, “Luke,” when he met Sandifer, Durbin

and Misty Holmes at Gum Springs Park in Winn Parish. Durbin introduced

Sandifer to “Luke,” and Sandifer entered the passenger’s side of Luke’s

vehicle. Sandifer sold the undercover officer one ounce of

methamphetamine (approximately 28 grams) for $700. The

methamphetamine from the purchase was transferred to the North Louisiana

Crime Lab.

Sandifer and “Luke” exchanged cell phone numbers and texted one

another over the next few days. Through a text message, “Luke” requested

another drug buy in the amount of four ounces of methamphetamine.

Sandifer checked with her supplier and informed the undercover agent that

the price would be $2,450. He agreed to the price, and the two agreed to

meet at Gum Springs on May 16, 2016, to complete the transaction.

Due to the risk associated with large drug deals, Officer Patrick

Deshautelle, the LSP case agent in charge of the operation, decided to

intercept the drugs before they were delivered to Sandifer. On May 16,

2016, Ramonta Jackson, Sandifer’s alleged supplier, was apprehended by a

state trooper while Jackson was en route to meet Sandifer. Some four

ounces of a substance was recovered from Jackson’s vehicle; it later tested

positive for methamphetamine.

Luke (Sgt. Moore) and Sandifer met on May 16, 2016, as scheduled,

but Sandifer informed him that her supplier had been stopped by a state

trooper. Sandifer attempted to find a second supplier, but was unable to

procure any drugs to sell to the agent. Three months later, Sandifer was

arrested on August 10, 2016. At trial, Sandifer testified that Durbin was

living with her and that it was his idea to sell drugs, and in fact it was Durbin

who introduced her to the undercover officer she knew as Luke.

The jury unanimously found Sandifer guilty of distribution of

methamphetamine and, by an 11-1 vote, found her guilty of attempted

distribution.

On February 19, 2019, Sandifer appeared for sentencing. The court

stated that it had reviewed the sentencing guidelines of La. C. Cr. P. art.

894.1, and concluded that it should impose a sentence of imprisonment
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because any other sentence would not adequately reflect the seriousness of

the offenses. The court stated that illegal drugs are the source of most of the

evil that occurs in the world. It noted the destructive effect drugs have on

individual lives and families, as drug use tears at the fabric of our society.

The court also opined that distribution of drugs is a far more egregious

offense than mere possession, and, in this case, the defendant was convicted

of distribution and attempted distribution of large quantities of

methamphetamine. Finding no mitigating factors in the case, the court

concluded that the facts of the case warrant substantial terms of

imprisonment. Accordingly, the court sentenced Sandifer to 25 years at hard

labor for the distribution conviction and 15 years at hard labor for the

attempted distribution conviction. The court ordered that the sentences were

to be served consecutively.

Sandifer filed a motion to reconsider sentence on grounds that the

sentence is excessive and not commensurate with the crimes for which the

defendant was convicted. The trial court denied the motion, stating that the

sentences were “correct.”

This appeal followed.

DISCUSSION

Sandifer filed three assignments of error, all urging that the sentences

imposed are excessive. By the first assignment, Sandifer alleges the

sentences imposed are unconstitutionally harsh and excessive given the facts

and circumstances of this case; by the second assignment, that the trial court

failed to state an adequate basis for the sentences; and, by the third

assignment, that the court erred when it denied her motion to reconsider the

sentences.
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Sandifer argues that the record contains none of her personal

information. Instead of discussing the facts of the case during sentencing,

the trial court, she argues, went on a tirade regarding the evils of drugs in

society. Sandifer contends that the trial court failed to state, for the record,

the reasons for imposing such a harsh sentence. Further, the court failed to

consider the role that Raymond Durbin played in Sandifer’s decision to sell

drugs. Sandifer explains that the court’s announced personal feelings about

drugs in society do not constitute a sufficient basis for the sentences

imposed.

Additionally, Sandifer notes that the trial court failed to justify the

imposition of consecutive sentences for the two offenses which arose out of

the same conduct and occurred closely in time. State v. Nixon, 51,319 (La.

App. 2 Cir. 5/19/17), 222 So. 3d 123, writ denied, 17-0966 (La. 4/27/18),

239 So. 3d 836. Sandifer contends that she was given a maximum sentence

and a near-maximum sentence ordered to run consecutively, even though the

offenses were committed close in time and arose out of the same course of

conduct. The record fails to justify the consecutive sentences imposed, she

argues.

Appellate courts utilize a two-pronged analysis in reviewing a

sentence to determine whether it is excessive. First, the record must show

that the trial court considered the factors in La. C. Cr. P. art. 894.1. The trial

judge is not required to list every aggravating or mitigating circumstance so

long as the record reflects that he adequately considered the guidelines of the

article. State v. Smith, 433 So. 2d 688 (La. 1983); State v. DeBerry, 50,501

(La. App. 2 Cir. 4/13/16), 194 So. 3d 657, writ denied, 16-0959 (La. 5/1/17),

219 So. 3d 332. The goal of La. C. Cr. P. art. 894.1 is for the court to
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articulate the factual basis for the sentence, and not simply mechanical

compliance with its provisions. Where the record clearly shows an adequate

factual basis for the sentence imposed, remand is unnecessary even where

there has not been full compliance with La. C. Cr. P. art. 894.1. State v.

Lanclos, 419 So. 2d 475 (La. 1982); State v. DeBerry, supra. The important

elements which should be considered are the defendant’s personal history

(age, family ties, marital status, health, employment record), prior criminal

record, seriousness of the offense, and the likelihood of rehabilitation. State

v. Jones, 398 So. 2d 1049 (La. 1981); State v. DeBerry, supra. There is no

requirement that specific matters be given any particular weight at

sentencing. State v. DeBerry, supra; State v. Shumaker, 41,547 (La. App. 2

Cir. 12/13/06), 945 So. 2d 277, writ denied, 07-0144 (La. 9/28/07), 964 So.

2d 351.

In the second prong of the analysis, the court determines whether the

sentence is constitutionally excessive. A sentence violates La. Const. art. I,

§ 20, if it is grossly out of proportion to the seriousness of the offense or

nothing more than a purposeless and needless infliction of pain and

suffering. State v. Dorthey, 623 So. 2d 1276 (La. 1993); State v. Bonanno,

384 So. 2d 355 (La. 1980). A grossly disproportionate sentence shocks the

sense of justice when the crime and punishment are viewed in light of the

harm done to society. State v. Weaver, 01-0467 (La. 1/15/02), 805 So. 2d

166; State v. Meadows, 51,843 (La. App. 2 Cir. 1/10/18), 246 So. 3d 639,

writ denied, 18-0259 (La. 10/29/18), 254 So. 3d 1208.

The trial court has wide discretion to impose a sentence within the

statutory limits, and the sentence imposed will not be set aside as excessive

absent a manifest abuse of that discretion. State v. Nixon, supra; State v.
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Williams, 03-3514 (La. 12/13/04), 893 So. 2d 7; State v. Diaz, 46,750 (La.

App. 2 Cir. 12/14/11), 81 So. 3d 228. On review, an appellate court does not

determine whether another sentence may have been more appropriate, but

whether the trial court abused its discretion. State v. Williams, supra; State

v. Free, 46,894 (La. App. 2 Cir. 1/25/12), 86 So. 3d 29.

The law regarding whether two or more sentences imposed should be

served concurrently or consecutively is governed by La. C. Cr. P. art. 883,

which reads:

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. In the case of the concurrent sentence, the judge
shall specify, and the court minutes shall reflect, the date from
which the sentences are to run concurrently.

We have previously stated that in cases involving multiple offenses

and sentences, the trial court has limited discretion to order that the multiple

sentences are to be served concurrently or consecutively. State v. Nixon,

supra; State v. Allen, 52,318 (La. App. 2 Cir. 11/14/18), 260 So. 3d 703.

Concurrent sentences arising out of a single course of conduct are not

mandatory, and consecutive sentences under those circumstances are not

necessarily excessive, State v. Nixon, supra; State v. Harris, 52,663 (La.

App. 2 Cir. 8/14/19), 277 So. 3d 912; State v. Hebert, 50,163 (La. App. 2

Cir. 11/18/15), 181 So. 3d 795. However, a judgment directing that

sentences arising from a single course of conduct be served consecutively

requires particular justification from the evidence or record. Accordingly,

when consecutive sentences are imposed, the court shall state the factors

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considered and its reasons for the consecutive terms. Among the factors to

be considered are: (1) the defendant’s criminal history; (2) the gravity or

dangerousness of the offense; (3) the viciousness of the crimes; (4) the harm

done to the victims; (5) whether the defendant constitutes an unusual risk of

danger to the public; and (6) the potential for the defendant’s rehabilitation.

The failure to articulate specific reasons for consecutive sentences does not

require remand, however, if the record provides an adequate factual basis to

support consecutive sentences. Nixon, supra.

As a general rule, maximum or near-maximum sentences are reserved

for the worst offenders and the worst offenses. State v. Cotten, 50,747 (La.

App. 2 Cir. 8/10/16), 201 So. 3d 299. The trial court is in the best position

to consider the aggravating and mitigating circumstances of a particular

case, and, therefore, is given broad discretion in sentencing. State v. Cook,

95-2784 (La. 5/31/96), 674 So. 2d 957, cert. denied, 519 U.S. 1043, 117

S. Ct. 615, 136 L. Ed. 2d 539 (1996).

Finally, when determining whether a defendant’s sentence is

excessive, a reviewing court should compare the defendant’s punishment

with the sentences imposed for similar crimes by the same court or other

courts. State v. Johnston, 50,706 (La. App. 2 Cir. 6/22/16), 198 So. 3d 151,

writ granted on other grounds, 16-1460 (La. 65/17), 221 So.3d 46; State v.

Ferguson, 44,009 (La. App. 2 Cir. 2/25/09), 4 So. 3d 315.

In this case, we note that the record contains little to no information

about Sandifer, including her personal life, family, education, and

employment background. A sketchy presentence investigation (“PSI”) gives

little more than her name, date of birth, and first offender status. Sandifer is

currently 41 years old. She has no prior felony convictions and no prior
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misdemeanor convictions. The PSI shows that a misdemeanor charge of

domestic abuse battery was dismissed in 2009, and misdemeanor charges of

criminal trespass and two possession of drug paraphernalia charges are

pending. Additionally, the PSI reports an arrest made on July 8, 2017, for

possession of a Schedule II CDS, methamphetamine, after her arrest on the

instant offenses.

According to the transcripts of several pretrial plea hearings, the state

apparently offered Sandifer a plea agreement whereby it would file no

habitual offender bill and, possibly, offered a sentence of 9 years. Sandifer

rejected all the state’s plea offers; instead, she chose to go to trial.

At trial, Sandifer testified that she had lived with Raymond Durbin,

the confidential informant who set up the drug deal, prior to this offense.

She said that her electricity had been shut off, and she could not afford the

required deposit to turn it back on. She knew that Durbin had engaged in

drug activity in the past, and was not surprised when he suggested

introducing her to his friends involved in drug transactions to raise money.

The friend to whom she was introduced was a man by the name “Luke,”

who, unknown to her, was actually a police undercover agent, Sgt. William

Moore. Sandifer testified that Durbin insisted that she actually execute the

transaction because she needed the experience in case Luke might need

something (more drugs) while he was not available or at work. She admitted

that she did the actual transactions, but she insisted that Durbin was the

person setting up the deals. Of course, the jury found Sandifer guilty as

charged.

In 2016, the sentencing range for distribution of schedule II CDS,

methamphetamine, was a minimum of 2 years but not more than 30 years’
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imprisonment at hard labor and a fine of up to $50,000. La. R.S.

40:967(B)(1) (2016). The sentencing range for attempted distribution of

schedule II CDS, methamphetamine, was a fine or imprisonment or both, not

exceeding one-half of the largest fine, or one-half of the longest term of

imprisonment prescribed for the completed crime, in this case, 15 years. La.

R.S. 40:967(B)(1) (2016) and 14:27.

At sentencing, the court disagreed with Sandifer’s characterization of

herself as a kind of naive, surrogate “middleman” to the drug transactions,

carrying out the deal for Durbin. Contrary to Sandifer’s account, the court

viewed the evidence as showing that Sandifer was not a rookie drug dealer,

and these transactions were not Sandifer’s “first rodeo,” as she had claimed.

The court vigorously expressed its view that illegal drugs are a scourge

responsible for most of the evil in the world. The court said that it viewed

drug dealers as far more culpable than drug users. It sentenced Sandifer to a

near-maximum term of 25 years for distribution of one ounce of

methamphetamine and imposed the maximum sentence of 15 years for

attempted distribution of four ounces of methamphetamine. Additionally,

the court made these consecutive, making the total term of imprisonment of

40 years tantamount to a life sentence for the 41-year-old defendant.

In this case, Sandifer was a first felony offender, and while she

perhaps served as a “middleman” in the distribution scheme, she clearly

knew what she was doing to make money. She sold approximately 28 grams

of methamphetamine, and subsequently attempted to sell approximately 113

grams of methamphetamine.

On review, we conclude that the sentences imposed by the court are

indeed very severe, particularly in view of the legislature’s intent to lessen
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the penalties for certain drug crimes by enacting by 2017 La. Acts 281, § 2.

Act 281 reduced the maximum sentencing exposure for the instant offenses

to 20 years instead of 30 and, thus, reduced the maximum for attempted

distribution to 10 years instead of 15.1 However, even though Sandifer was

sentenced after the amendment was in effect for offenses committed after

2017, the court correctly applied the 2016 version of the statute when the

offenses were committed. It was, therefore, within the court’s discretion to

impose a near-maximum sentence of 25 years for distribution and the

maximum 15 years for attempted distribution. When we consider the

pernicious nature of the particular illegal drug sold for distribution in this

case, methamphetamine, the devastating effect it has on society, and the fact

that the defendant, who at age 41 cannot attribute her behavior to bad

judgment and youthful indiscretion, we find that the trial court did not abuse

its discretion by imposing these severe sentences.

On the other hand, under State v. Nixon, supra, we conclude that this

record fails to provide an adequate factual basis to support consecutive

sentences. Concurrent sentences are generally appropriate when the

offenses arise from a single course of conduct or a common scheme or plan.

Sandifer committed two offenses, but they arose out of the same course of

criminal conduct and involved a single individual. Certainly from the

perspective of the LSP, this was actually a single investigation targeting a

particular drug dealer by initially gaining her trust with a small deal, and

then immediately following it by a larger deal. The undercover agent, Luke,

kept contact with Sandifer over the next few days after the first deal to set up

1
La. R.S. 40:967(B)(1) (effective 2017), concerning sales between 28 grams and
200 grams.
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the second deal. Sandifer sold one ounce of methamphetamine to him, and

then attempted to comply with his request to sell him more within a week.

While it is within the court’s discretion to make sentences consecutive

rather than concurrent, a judgment directing that sentences arising from a

single course of conduct be served consecutively requires particular

justification from the evidence or record. The record is devoid of particular

justification for the consecutive sentences in this case.

In State v. Wing, 51,857 (La. App. 2 Cir. 2/28/18), 246 So. 3d 711, the

defendant was convicted of two counts of simple burglary and sentenced to

serve eight years at hard labor on each count, consecutively. On review, we

found that the sparse record made at sentencing did not supply a sufficient

factual basis to support consecutive sentences. We stated:

In ordering that the sentences were to be served consecutively,
it is not clear from the record whether the trial court specifically
considered whether the offenses were the same act or
transaction or part of a common scheme or plan. While we
make no judgment on this issue, if they were part of a common
scheme or plan, the trial court is required to specify reasons for
ordering the sentences to be served consecutively. Id. at 717.

In this case, the trial court did not specify any reasons for ordering

Sandifer’s sentences be served consecutively. Our review of the record

finds that concurrent sentences would be appropriate in this case since the

offenses arose out of a single course of conduct, and since maximum and

near-maximum sentences were imposed on this first offender. For this

reason, we vacate the sentences and remand to the trial court for

resentencing with concurrent sentences, or alternatively, if the court still

wishes to impose consecutive sentences, to specify the reasons why

consecutive sentences are warranted.

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CONCLUSION

For the foregoing reasons, we affirm the conviction of the defendant,

Tonya Avant Sandifer. However, we conclude that the record does not

support the imposition of consecutive sentences in this case. Therefore, we

vacate the sentences and remand to the trial court for resentencing.

CONVICTION AFFIRMED; SENTENCE VACATED;

REMANDED.

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COX, J., concurs in part and dissents in part with written reasons.

I agree with the majority’s opinion in all respects, except for the

ruling on the consecutive sentences. I do not reach the conclusion that

consecutive sentences are not appropriate in this case. The trial court has the

discretion to determine whether the sentences should be concurrent or

consecutive. I am not making a judgment on whether or not consecutive

sentences are appropriate at this juncture. If the trial court wishes to impose

consecutive sentences in this case, the trial court will need to specify the

reasons why consecutive sentences are warranted in light of the cases cited

by the majority. Then, after receiving the trial court’s reasons for the

consecutive sentences, this Court could properly review whether or not the

trial court erred in that regard.

I agree to affirm the conviction of the defendant, vacate the sentence,

and remand to the trial court for resentencing pursuant to the cases outlined

in the majority’s opinion. However, I respectfully dissent and make no

ruling on whether concurrent or consecutive sentences are appropriate in this

case.

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