State of Louisiana v. Joshua J. Ward

Judgment rendered June 30, 2021.
Application for rehearing may be filed
within the delay allowed by Art. 922,
La. C. Cr. P.

No. 53,969-KA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

STATE OF LOUISIANA Appellee

versus

JOSHUA J. WARD Appellant

*****

Appealed from the
Fifth Judicial District Court for the
Parish of Franklin, Louisiana
Trial Court No. 20201F

Honorable John Clay Hamilton, Judge

*****

LOUISIANA APPELLATE PROJECT Counsel for Appellant
By: Paula Corley Marx

PENNY WISE DOUCIERE Counsel for Appellee
District Attorney

CAROLINE HEMPHILL
AMANDA MICHELE WILKINS
Assistant District Attorneys

*****

Before GARRETT, STONE, and STEPHENS, JJ.

GARRETT, J., concurs with written reasons.

STEPHENS, J., concurs with written reasons.

STONE, J.

This criminal appeal arises from the Fifth Judicial District Court,

Franklin Parish, the Honorable Clay Hamilton presiding. On January 8,

2020, the defendant, Joshua J. Ward (“Ward”), pled guilty to possession of

methamphetamine (over 2 grams but less than 28 grams), and was sentenced

to 10 years of incarceration at hard labor. Under a separate bill of

information, Ward was prosecuted for aggravated flight from an officer, and

also pled guilty to that charge on the same day; this charge was predicated

on the same incident as the one leading to the instant conviction for

possession of methamphetamine. The trial court ordered that these sentences

run concurrently with one another.

Ward now appeals, and urges three assignments of error. For the

reasons stated herein, we affirm his conviction and sentence.

FACTS

On June 15, 2019, officers of the Winnsboro Police Department

responded to the scene of a shooting at Westwood Apartments in

Winnsboro, Louisiana. As they arrived, officers observed Ward driving

away in a vehicle at high speed. The officers attempted to stop Ward but he

refused to comply. After traveling at speeds in excess of 100 mph, crossing

the center line, and traveling into oncoming traffic on Highway 4, Ward

finally stopped the vehicle. Officers searched the vehicle and found a

plastic Glock pistol case and four magazines (two of which contained .40

caliber ammunition that matched the spent shell casings at the scene of the

shooting). On the driver’s side floorboard, officers also found a plastic bag

of several multi-colored tablets, which were later determined to be

methamphetamine. Ward was charged in separate bills of information with
1

possession of a Schedule II Controlled Dangerous Substance (“CDS”),

methamphetamine, attempted second degree murder, and aggravated flight

from an officer where human life is endangered.

As previously stated, pursuant to a plea agreement, Ward pled guilty

to aggravated flight from an officer and possession of methamphetamine.

The state agreed to dismiss the attempted second degree murder charge, as

well as another unspecified charge. There was no sentencing agreement, but

the parties agreed that Ward would be sentenced by the trial court following

the submission of a presentence investigation (“PSI”) report.

On March 11, 2020, after reviewing the PSI report, the trial court

determined that Ward had previously been convicted of misdemeanor

possession of marijuana, and accordingly sentenced Ward to an enhanced

sentence of 10 years at hard labor for the possession of methamphetamine

conviction. As to the aggravated flight from an officer conviction, Ward was

sentenced to 5 years at hard labor. The trial judge ordered that the sentences

be served concurrently. Defense counsel made an oral objection to the

sentences and subsequently filed a motion to reconsider; neither set forth

specific grounds. The trial court denied the motion. Ward now appeals,

urging the following assignments of error: (1) the 10-year sentence is in

violation of his plea agreement; (2) his sentence is excessive; and (3) his trial

counsel was ineffective.

DISCUSSION

Violation of plea agreement

Ward argues that the trial court erred in sentencing him to an

enhanced sentence of 10 years, when possession of methamphetamine, to

which he pled guilty, only carries a maximum sentence of 5 years. Ward
2

argues that such a sentence enhancement is a violation of the plea

agreement. Ward further asserts that he did not plead guilty to an enhanced

sentence.

At the plea hearing, the state advised the trial court that Ward would

plead guilty to aggravated flight from an officer and to possession of a

Schedule II CDS, methamphetamine, and the state would dismiss the

attempted second degree murder charge, along with other charges. The state

also informed the trial court that a PSI report would be ordered and filed into

the record, and that the trial court would “make the ultimate decision on his

sentence.”

At the plea hearing, the trial court advised Ward that the penalty for

possession of methamphetamine, under La. R.S. 40:967(C)(2), was one to

five years with or without hard labor, and carried a potential fine of not more

than $5,000. However, the trial court did not inform Ward of potential

sentencing enhancement under La. R.S. 40:982, which states:

A. Any person convicted of any offense under this Part, if
the offense is a second or subsequent offense, shall be
sentenced to a term of imprisonment that is twice that
otherwise authorized or to payment of a fine that is twice
that otherwise authorized, or both. If the conviction is for
an offense punishable under R.S. 40:966(B), 967(B),
968(B), or 969(B), and if it is the offender’s second or
subsequent offense, the court may impose, in addition to
any term of imprisonment and fine, twice the special
parole term otherwise authorized.
B. For purposes of this Section, an offense shall be
considered a second or subsequent offense if, prior to the
commission of such offense, the offender had at any time
been convicted of any violation of this state, the United
States, any other state of or any foreign country, relating to
the unlawful use, possession, production, manufacturing,
distribution, or dispensation of any narcotic drug,
marijuana, depressant, stimulant, or hallucinogenic drugs.
(Emphasis added).

3

The state claims that there was no violation of the plea agreement

because there was no agreed-upon sentence. Ward agreed to be sentenced

by the trial court after a review of the PSI report. The state did not agree to

waive any sentencing enhancements, and never promised that Ward would

only receive the maximum five-year sentence or that the sentences would

run concurrently. The state further argues that La. R.S. 40:982 is mandatory

and the trial court was required to impose the enhanced 10-year sentence.

The state also argues that La. R.S. 40:982 is treated as a sentencing

enhancement provision which must be implemented after conviction, like

La. R.S. 15:529.1, and not as a substantive element of the presently charged

offense. In support, the state cites State v. Skipper, 04-2137 (La. 6/29/05),

906 So. 2d 399.

A plea agreement is a contract between the state and a criminal

defendant. State v. Patterson, 51,559 (La. App. 2 Cir. 9/27/17), 244 So. 3d

733. In State v. Young, 50,072 (La. App. 2 Cir. 8/12/15), 174 So. 3d 719,

appeal after remand, 51,175 (La. App. 2 Cir. 2/15/17), 215 So. 3d 906, writ

denied, 17-0472 (La. 11/13/17), 230 So. 3d 204, this Court explained the

principles governing the validity of plea agreements:

In determining the validity of plea agreements, Louisiana courts
generally refer to rules of contract law, while recognizing at the
same time that a criminal defendant’s constitutional right to
fairness may be broader than his or her rights under contract
law. State v. Givens, 1999-3518 (La. 1/17/01), 776 So. 2d 443.
The party demanding performance of a contract has the burden
of proving its existence. State v. Louis, 94-0761, p. 7 (La.
11/30/94), 645 So. 2d 1144 at 1149. In the context of plea
bargains, a defendant may demand specific performance of the
state’s promise if he can show that the parties reached an
agreement, that he performed his part of the agreement, and that
in doing so, he relinquished a fundamental right. Id. at 1149-
50; see also, State v. Tanner, 425 So. 2d 760, 763 (La. 1983).

4

Contracts have the effect of law for the parties and must be
performed in good faith. La. C.C. art. 1983. A party has an
implied obligation to make a good faith effort to fulfill the
conditions of a contract. Bloom’s Inc. v. Performance Fuels,
L.L.C., 44,259 (La. App. 2 Cir. 7/1/09), 16 So. 3d 476, writ
denied, 2009-2003 (La. 11/20/09), 25 So. 3d 800. When there
are reciprocal obligations, the obligor of one may not be put in
default unless the obligor of the other has performed or is ready
to perform his own obligation. La. C.C. art. 1993. Also, a
party to a commutative contract may refuse to perform his
obligation if the other has failed to perform. La. C.C. art. 2022.

A plea is constitutionally infirm when the defendant is induced to

plead guilty by a plea agreement (or by what the defendant reasonably

believes is a plea agreement) and the terms of the agreement are not

satisfied. When a plea agreement is breached, the defendant has the option

of specific performance or to withdraw the guilty plea. State v. Patterson,

supra.

La. C. Cr. P. art. 556.1 provides in pertinent part:

A. In a felony 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.

....
....

E. Any variance from the procedures required by this Article
which does not affect substantial rights of the accused shall not
invalidate the plea.

Although defense counsel made an oral objection to the sentence at

the hearing and filed a motion to reconsider sentence, neither included

specific grounds regarding the trial court’s application of La. R.S. 40:982.

5

As a result, the defense failed to preserve this issue for appeal. La. C.Cr.P.

art. 881.1, in relevant part, states as follows regarding motions to reconsider

sentence:

B. The motion shall be oral at the time of sentence or shall
be in writing thereafter and shall set forth the specific
grounds on which the motion is based.
…
E. Failure to… include a specific ground upon which a
motion to reconsider sentence may be based, including a
claim of excessiveness, shall preclude…the defendant
from raising an objection to the sentence or from urging
any ground not raised in the motion on appeal or review.
(Emphasis added).

In State v. Rathore, 52,084 (La. App. 2 Cir. 6/27/18), 251 So. 3d 628, the

defendant pled guilty to a drug offense. After the plea but prior to

sentencing, the state filed a motion to invoke sentencing under La. R.S.

40:982, and defense counsel failed to object to the application of La. R.S.

40:982. This Court held that by failing to object, the defendant failed to

preserve the sentencing enhancement issue for appeal. Thus, in this case,

Ward waived his right to appeal his sentence, and for this reason alone, his

convictions and sentences must be affirmed.

Nonetheless, we point out further reasons that Ward’s convictions and

sentences must be affirmed. In State v. Rathore, supra, the defendant argued

that the trial court violated the plea agreement by enhancing her sentence

under La. R.S. 40:982. At the plea hearing, the defendant was advised that

the maximum sentence for possession of methamphetamine was 5 years with

or without hard labor, and that she could be sentenced “up to the maximum

that the law allows.”1 Approximately five months after Rathore pled guilty,

1
Our jurisprudence indicates that there is no requirement that defendants be
advised that their sentence is subject to enhancement under La. R.S. 40:982. See State v.
Welch, 45, 950 (La. App. 2 Cir. 1/26/11), 57 So.3d 442, 445, writ denied, 11-0423(La.
6

the prosecution filed a motion to invoke enhanced sentencing under La. R.S.

40:982; the trial court held a hearing on the motion, and later imposed an

enhanced sentence.

On appeal, we held that the trial court, in imposing an enhanced

sentence, neither rendered Rathore’s plea involuntary nor violated her plea

agreement: there was no prior agreement regarding sentencing and no

indication that the state agreed to forgo seeking the enhanced sentence.

State v. Rathore, supra, is binding precedent in the instant case. The

operative facts therein are indistinguishable from this case. The state and the

defendant agreed that the court would decide the sentence after a PSI; there

was no stipulation in any way limiting the defendant’s sentencing exposure.

In neither Rathore nor this case was the defendant given notice on the record

in advance of pleading guilty of the potential for an enhanced sentence under

La. R.S. 40:982.2 Therefore, in this case, we are constrained to hold that the

trial court’s imposition of the sentencing enhancement did not violate the

plea agreement and did not render Ward’s guilty plea involuntary.3

This assignment of error lacks merit and is rejected. However, we do

find it troubling that La. R.S. 40:982 specifies no procedural requirements

whatsoever. For example, as written, La. R.S. 40:982 appears to: (1) allow

9/16/11), 69 So. 3d 1145. Thus, the failure of the trial court and the prosecution to advise
Ward of his true sentencing exposure had no effect.
2
Likewise, the defendant in State v. Rathore and the defendant in this case both
failed to make any effort to oppose sentencing enhancement in the trial court; neither
defendant filed a motion to withdraw guilty plea, made an objection to enhancement on
the record, or filed a motion to reconsider sentence attacking enhancement for lack of
advance notice or lack of proof of the prior conviction
3
Furthermore, La. R.S. 40:982 neither sets forth any specific procedure to be
utilized in its application, nor does it require a motion by the state to invoke its use.
Accordingly, it makes no difference that the prosecution in State v. Rathore made a
motion to invoke La. R.S. 40:982, whereas here, the trial court invoked that statute on its
own motion.

7

any misdemeanor possession of marijuana conviction, obtained at any time,

to be used for enhancement purposes; and (2) not require that a defendant be

given notice of potential enhancement prior to sentencing. Furthermore, it

appears that the mere statement in a PSI that a prior misdemeanor drug

conviction exists is sufficient proof for doubling the sentence, at least where

that statement is uncontroverted.

Excessive sentence

Ward’s second argument is that his sentence of 10 years, the

maximum, is unduly harsh and excessive. Ward argues that he is not the

worst offender and these are not the worst offenses. Ward claims he only

possessed a “small” amount of methamphetamine, 2.08 grams. Ward argues

that he was only 28 years old at the time of the offenses. He further argues

that he has strong family support, which would aid in his rehabilitation, has

always maintained employment, regularly attends church, and has

consistently supported his two six-year-old children.

The state argues that Ward failed to establish that the trial court

abused its discretion in sentencing. The state notes that Ward received a

tremendous benefit when the state agreed to dismiss the attempted murder

charge and when the trial judge imposed concurrent sentences.

An appellate court utilizes a two-pronged test in reviewing a sentence

for excessiveness. First, the record must show that the trial court took

cognizance of the criteria set forth 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),
8

219 So. 3d 332. The articulation of the factual basis for a sentence is the

goal of La. C. Cr. P. art. 894.1, not rigid or 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. The trial court is not required to assign

any particular weight to any specific matters at sentencing. State v. Parfait,

52,857 (La. App. 2 Cir. 8/14/19), 278 So. 3d 455, writ denied, 19-01659 (La.

12/10/19), 285 So. 3d 489.

Second, the court must determine 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 sentence is considered grossly disproportionate if, when the crime

and punishment are viewed in light of the harm done to society, it shocks the

sense of justice. 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 in the imposition of sentences

within the statutory limits and such sentences should not be set aside as

excessive in the absence of a manifest abuse of that discretion. State v.
9

Williams, 03-3514 (La. 12/13/04), 893 So. 2d 7; State v. Allen, 49,642 (La.

App. 2 Cir. 2/26/15), 162 So. 3d 519, writ denied, 15-0608 (La. 1/25/16),

184 So. 3d 1289. A trial judge 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. Allen, supra. 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.

Adams, 53,055 (La. App. 2 Cir. 11/20/19), 285 So. 3d 526, writ denied, 20-

00056 (La. 9/8/20), 301 So. 3d 15.

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

for the worst offenders and the worst offenses. State v. Cozzetto, 07-2031

La. 2/15/08), 974 So. 2d 665; State v. Hogan, 47,993 (La. App. 2 Cir.

4/10/13), 113 So. 3d 1195, writ denied, 13-0977 (La. 11/8/13), 125 So. 3d

445.

The defendant’s receipt of a substantial advantage via plea bargain is

an appropriate consideration in sentencing. Accordingly, where the

defendant has pled guilty to an offense which does not adequately describe

his conduct or has received a significant reduction in sentencing exposure

through a plea bargain, the trial court has great discretion in imposing even

the maximum sentence for the pled offense. State v. Washington, 52,518

(La. App. 2 Cir. 2/27/19), 266 So. 3d 430, writ denied, 19-00776 (La.

10/21/19), 280 So. 3d 1174.

Possession of a Schedule II CDS, with an aggregate weight of 2 grams

or more, but less than 28 grams, second offense, is punishable by up to 10

years with or without hard labor and a fine of up to $10,000. La. R.S.

40:967(C)(2); La. R.S. 40:982.
10

The trial court did not abuse its discretion in sentencing Ward to 10

years at hard labor for possession of methamphetamine. At the sentencing

hearing, the trial court reviewed the PSI report, the facts of this case, and the

applicable sentencing factors set forth in La. C. Cr. P. art. 894.1. The trial

court gave sufficient weight to each of the applicable aggravating and

mitigating factors, and the record adequately supports the sentence imposed.

The trial court recounted Ward’s criminal history as outlined in this

paragraph. In 2008, Ward was arrested for discharging firearms where

prohibited, disturbing the peace, and aggravated second degree battery; he

pled guilty to aggravated second degree battery and was sentenced to 6 years

at hard labor, with 5 years and three months suspended, and 5 years of

probation. While Ward was on probation, in 2012, he was arrested for

possession of marijuana, simple battery, and aggravated assault; he pled

guilty to possession of marijuana and simple battery, and was sentenced to

90 days on each charge. At that time, his probation was revoked and he was

remanded to serve the original six-year sentence. Ward was released on

parole in May 2017, and while on parole, was arrested for the instant

offenses in June 2019. The trial court observed that, each time Ward has

been granted the leniency of probation or parole, he has been caught

committing more crimes during his probation or parole period, including

firearms offenses and crimes of violence.

The trial court further noted that Ward’s conduct threatened, caused,

or could have caused serious harm, that Ward was again involved in conduct

which involved harm to a person and firearms, that the victims did not

induce or facilitate the commission of the crimes, and that there was no

indication that Ward’s imprisonment would entail any excessive hardship to
11

himself or his dependents. The trial court found that Ward was unwilling to

accept responsibility for his actions, and referencing Ward’s own statement,

found that Ward’s history of criminal conduct indicates that he will, in the

future, continue to be in the wrong place at the wrong time. The trial court

noted that, because the state agreed to dismiss the charge for attempted

second degree murder, Ward avoided exposure to a possible 50-year

sentence. La. R.S. 14:30.1; La. R.S. 14:27(D)(1)(a).

Ward’s criminal history merits further emphasis. In 2008, he was

convicted for aggravated second degree battery, i.e., “a battery committed

with a dangerous weapon when the offender intentionally inflicts serious

bodily injury.” La. R.S.14:34.7. (Emphasis added). While on probation for

his aggravated second degree battery, Ward was arrested for aggravated

assault, simple battery, and possession of marijuana, but was only convicted

for possession of marijuana (as mentioned earlier) and simple battery.

Thereafter, Ward spent approximately 5 years imprisoned. In 2017, Ward

was released into society on parole, but before he could even finish his term

of parole, he committed the instant offenses, wherein he showed wanton

disregard for the safety of other human beings. Remarkably, Ward, through

counsel, now asserts to this court that his sentence is excessive in part

because he regularly attends church and has always provided for his two six-

year-old children. We are confounded as to how this has any effect of

making his maximum sentence excessive. Rather, it shows that despite

having brought two children into this world, and realizing that they are

dependent on him to provide for them, Ward committed dangerous criminal

acts. Ward must have realized that these acts would rightfully earn him a

substantial prison sentence and thus render him incapable of providing for
12

his own children; that burden will now fall on other people. If anything,

Ward’s regular church attendance further emphasizes the already obvious

point that he committed these crimes despite knowing better.

Finally, we note that Ward’s total sentencing exposure was 10 years –

i.e., five years for possession of methamphetamine in this case, and five

years for aggravated flight from an officer in the companion case (No. 53,

968-KA). The trial judge could have validly sentenced Ward to the

maximum of five years on each conviction and ordered that the sentences be

served consecutively, for a total of 10 years of imprisonment. Thus, if

Ward’s sentence for possession of methamphetamine had not been

enhanced, he was still facing a maximum exposure of 10 years, had the trial

court to imposed the sentences to be served consecutively.

Ward’s maximum sentence is not constitutionally excessive. This

claim is meritless.

Ineffective assistance of counsel

Ward’s final argument is in the alternative. He argues that if the

sentencing claims are procedurally barred, this case should be remanded for

resentencing on the basis of ineffective assistance of counsel. Ward asserts

that he was sentenced to twice what he agreed would be the maximum for

possession of methamphetamine, and that there was no strategic reason for

defense counsel not to object or file a motion to enforce the plea agreement

in order to preserve his claims for appeal.

The state argues that because the plea agreement was not violated,

counsel could not have been ineffective in failing to file a motion to enforce

the plea agreement because such a motion would have been meritless.

13

Claims of ineffective assistance of counsel are more properly raised in

an application for post-conviction relief in the trial court because it provides

the opportunity for a full evidentiary hearing under La. C. Cr. P. art. 930.

However, when the record is sufficient, allegations of ineffective assistance

of trial counsel may be resolved on direct appeal in the interest of judicial

economy. State v. Frost, 53,312 (La. App. 2 Cir. 3/4/20), 293 So. 3d 708,

writ denied, 20-00628 (La. 11/18/20), 304 So. 3d 416.

A claim of ineffectiveness of counsel is analyzed under the two-prong

test developed in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052,

80 L. Ed. 2d 674 (1984). First, to establish that his attorney was ineffective,

the defendant must show that counsel’s performance was deficient. This

requires a showing that counsel made errors so serious that he was not

functioning as the counsel guaranteed the defendant by the Sixth

Amendment. Second, the defendant must show that counsel’s deficient

performance prejudiced his defense and that, but for counsel’s

unprofessional errors, there is a reasonable probability that the outcome

would have been different. Strickland, supra; State v. Reese, 49,849 (La.

App. 2 Cir. 5/20/15), 166 So. 3d 1175, writ denied, 15-1236 (La. 6/3/16),

192 So. 3d 760.

A reviewing court must give great deference to trial counsel’s

judgment, tactical decisions, and trial strategy, strongly presuming he has

exercised reasonable professional judgment. State v. Smith, 49,356 (La.

App. 2 Cir. 11/19/14), 152 So. 3d 218, writ denied, 14-2695 (La. 10/23/15),

179 So. 3d 597. A defendant making a claim of ineffective assistance of

counsel must identify certain acts or omissions by counsel which led to the

14

claim; general statements and conclusory charges will not suffice.

Strickland, supra; Reese, supra.

Ward only provides general, conclusory allegations that defense

counsel was ineffective in failing to object to his sentences or file a motion

to enforce the plea agreement. Furthermore, as this Court has determined

that there was no violation of the plea agreement, counsel cannot be found

deficient in failing to raise this issue in the trial court.

Nevertheless, because the record is insufficient to resolve this matter

on appeal, this claim would be more appropriately raised in an application

for post-conviction relief where a full evidentiary hearing may be ordered.

CONCLUSION

For the foregoing reasons, Joshua Ward’s conviction and sentence are

affirmed.

AFFIRMED.

15

GARRETT, J., concurring.

When the defendant pled guilty to the drug charge at issue in this

appeal, he was advised by the trial court that the maximum sentence that

could be imposed was five years. The “double penalty” under the

enhancement statute, La. R.S. 40:982, was not mentioned by either the trial

court or the district attorney. Unlike what occurred in State v. Rathore, cited

in the majority opinion, the defendant in this case was given no advance

notice that the trial court would be invoking, of its own volition, the

provisions of La. R.S. 40:982. In Rathore, the State filed a motion to invoke

the provisions and a hearing was actually held. Presumably at that hearing,

the State established the validity of the prior conviction. In Rathore, the

defendant lodged no objection to the State’s motion, despite having an

opportunity to do so. The situation before us is completely different, as the

defendant had no advance notice that a 2013 misdemeanor conviction would

be used to double the penalty.

The trial court applied the law as written by our legislature. However,

I find La. R.S. 40:982 to be a problematic statute. Unlike our habitual

offender laws, La. R.S. 40:982 contains no procedural requirements or

cleansing periods. As written, any misdemeanor possession of marijuana

conviction can be used for enhancement purposes.1 Whether the defendant’s

2013 misdemeanor conviction for possession of marijuana was validly

entered is unknown. The 2013 misdemeanor conviction from “Winnsboro

PD” noted in the PSI report is the extent of the information we have. No

docket number or court minutes are available for review.

1
Our legislature has recently decriminalized some possession of marijuana offenses
(see Act 247 of 2021).
1

However, the defendant did not file a motion to withdraw his guilty

plea or to seek specific performance of a plea agreement below. Nor did the

generic objection to the sentence made below or the motion to reconsider

urge any of the grounds that have been raised for the first time on appeal.

From a procedural standpoint, those issues are not before us. Nevertheless, I

do have concerns about the use of La. R.S. 40:982 to double the penalty

without any advance notice to a defendant.

I concur in the result only because the defendant’s sentences in this

case and the companion case (No. 53,968-KA) were ordered to be served

concurrently. If the defendant’s sentence on the drug charge had not been

enhanced, he was still facing a maximum exposure of ten years total (five

years on each charge) had the trial court chosen to run the sentences

consecutively. I would not find two five-year sentences imposed

consecutively to be excessive. Accordingly, I respectfully concur in the

results reached in this appeal and the companion case (No. 53,968-KA).

2

STEPHENS, J., concurring.

I concur, as I agree with both Judges Stone and Garrett.

Judge Stone’s opinion is thorough, and her analysis well-reasoned.

The correct result was reached in this case.

I find, as did Judge Garrett, that the enhancement statute, La. R.S. 40:982, is

a problematic law. I write separately, however, because it is my opinion

that, as applied in the instant case, La. R.S. 40:982 is patently

unconstitutional.

1