State of Louisiana v. Larry Collins

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

03-388

STATE OF LOUISIANA

VERSUS

LARRY COLLINS

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APPEAL FROM THE
THIRTIETH JUDICIAL DISTRICT COURT
PARISH OF VERNON, NO. 62,431
HONORABLE VERNON B. CLARK, PRESIDING
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SYLVIA R. COOKS
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Sylvia R. Cooks and Billy H. Ezell,
Judges.

AFFIRMED.

Asa Skinner
Assistant District Attorney
P.O. Box 1188
Leesville, LA 71446
(337) 239-2008
COUNSEL FOR APPELLEE:
State of Louisiana

Laura Pavy
Louisiana Appellate Project
P.O. Box 750602
New Orleans, LA 70175-0602
(504) 833-2910
COUNSEL FOR DEFENDANT/APPELLANT:
Larry Collins

COOKS, Judge.

Defendant pled guilty to distribution of cocaine and was sentenced to sixteen

years at hard labor, fined $1,500.00 and ordered to pay court costs. He appeals his

sentence contending it was excessive. For the following reasons, we affirm.

FACTS

On December 7, 2001, the Defendant, Larry Collins, distributed cocaine to an

undercover officer. Defendant was charged by bill of information with two counts of

possession of cocaine with intent to distribute, a violation of La.R.S. 40:967(A).

Defendant initially entered a plea of not guilty, but eventually pled guilty to

distribution of cocaine, also a violation of La.R.S. 40:967(A). Defendant was

subsequently sentenced to sixteen years at hard labor, to run concurrent to any other

sentence he was subject to, with credit for time served. He was ordered to pay a fine

of $1,500.00 and court costs. A Motion to Reconsider Sentence was filed and denied

by the trial court. Defendant then lodged this appeal contending the sentence imposed

was excessive.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors

patent on the face of the record. Initially, we note there is a problem with the bill of

information. The record indicates Defendant was charged with two counts of

possession of cocaine with intent to distribute. Defendant entered a plea of guilty to

count one of the bill and count two was dismissed as part of a plea agreement.

However, the record further indicates the bill was not amended and Defendant pled

guilty to distribution of cocaine.

In State v. Charles, 02-0443 (La.App. 3 Cir. 10/2/02), 827 So.2d 553, writ

denied, 02-2707 (La. 3/28/03), 840 So.2d 569, the defendant was charged with

distribution of cocaine, but pled guilty to an amended charge of possession with the

intent to distribute cocaine, which this court found was a nonresponsive offense. See

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also State v. Starks, 615 So.2d 943 (La.App. 1 Cir. 1993). Defendant, thus, pled

guilty to a nonresponsive offense; and this court found it was an error for the State not

to amend the bill of information. See La.Code Crim.P. art. 814.

In State v. Richard, 99-1078 (La.App. 3 Cir. 12/27/00), 779 So.2d 927, this

court recognized as error patent the defendant’s plea to a nonresponsive crime. In

addressing the error, we stated:

According to this court in State v. Price, [461 So.2d 503 (La.App. 3 Cir.
1984)] the State should have amended the bill of information to reflect
the Defendant’s plea to the nonresponsive offense, which the State did
not do in the instant case. However, later, in State v. Rito, [96-1444
(La.App. 3 Cir. 10/8/97), 700 So.2d 1169] this court stated that, neither
a statute, nor the constitution required the prosecution to amend the bill
of information before a defendant can plead guilty to a nonresponsive
crime. The court stated:

It is well settled that a defendant may plead guilty to
a crime nonresponsive to the original indictment as long as
the district attorney accepts it. La.Code Crim.P. art.
487(B) and State v. Price, 461 So.2d 503 (La.App. 3
Cir.1984). Further, the state is not constitutionally or
statutorily required to amend the information before the
defendant can plead to a nonresponsive offense. Price, 461
So.2d 503 (Knoll, J., dissenting).

Nevertheless, the court went on to decide whether the state’s failure to
amend the bill of information was harmless or reversible error. The
court found the first circuit’s opinion in State v. Barclay, [591 So.2d
1178 (La.App. 1 Cir. 1991), writ denied, 595 So.2d 653 (La.1992)] to be
dispositive of the issue. Discussing Barclay, the court stated:

In that case, the defendant was charged by grand jury
indictment with aggravated rape but pled guilty to
conspiracy to commit aggravated rape. The court espoused
the following harmless error principle to uphold the
conviction and sentence despite the state’s failure to
formally amend the bill of information:

[W]here . . . the defendant enters a plea
of guilty to a crime nonresponsive to the
original indictment when such plea is
acceptable to the district attorney, the
defendant is fully aware of the charge to
which he pleaded as shown by extensive
Boykinization, and the plea is not prejudicial
to the defendant, any error caused by a failure
to formally amend the indictment is harmless.

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. . . .

In Rito, the court distinguished State v. Cook, [372 So.2d 1202
(La.1979)] which found reversible error in the state’s failure to amend
the bill of information. This court stated:

We are able to distinguish the Supreme Court case from the
instant case because in the former case, the nonresponsive
crime to which that defendant pled (simple burglary of an
inhabited dwelling) was more serious than the offense he
was originally charged with (simple burglary). As a result,
the Supreme Court found a flaw, justifying reversal in that
case. In contrast, the crime that defendant pled guilty to in
this case was less serious than that originally charged with,
and the resulting sentence imposed was more favorable to
the defendant in this instance.

Id. at 929-930 (Footnotes omitted).

Possession with the intent to distribute cocaine and distribution of cocaine are

contained in the same statute and carry the same penalty. Our examination of the

record reveals the Barclay factors were met. The State accepted Defendant’s plea, and

thoroughly Boykinized Defendant. The trial court stated Defendant was pleading

guilty to distribution of cocaine and explained the nature of that offense as well as its

penalty range. When asked if he understood what he was pleading guilty to and the

penalty range, Defendant replied “Yes, sir.” Defendant also benefitted from his plea

in that one charge was dismissed, no habitual offender bill was filed and at least one-

half of his sentence was to run concurrent with a sentence he was then serving. He

also received a mid-range sentence of sixteen years. Facing the possibility of a

$50,000.00 fine, he was ordered to pay only $1,500.00. Thus, Defendant clearly was

not prejudiced and the error is harmless.

We also note the trial court failed to impose the first two years of Defendant’s

sentence without benefit of parole, probation, or suspension of sentence. La.R.S.

15:301.1(A) and (C) provide that these provisions are self-activating and occur by

operation of law. Thus, we find Defendant’s sentence is deemed to contain the

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restriction pursuant to La.R.S. 15:301.1(A).

EXCESSIVE SENTENCE

Defendant contends the trial court imposed an excessive sentence. In State v.

Williams, 02-707, pp. 7-9 (La.App. 3 Cir. 3/5/03), 839 So.2d 1095, 1100-01, we stated

as follows:

La. Const. art. 1, § 20 ensures that “[n]o law shall subject any
person to . . . cruel, excessive, or unusual punishment.” A punishment
is considered constitutionally excessive if it “(1) makes no measurable
contribution to acceptable penal goals of punishment and hence is
nothing more tha[n] the purposeful and needless imposition of pain and
suffering; or (2) is grossly out of proportion to the severity of the crime.”
State v. Wilson, 96-1392, p. 3 (La.12/13/96); 685 So.2d 1063,
1065(citing Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d
859 (1976)). When reviewing a sentence, the appellate court must be
mindful that the trial court is in the best position to consider the
aggravating and mitigating circumstances of each case and that the trial
court is given broad discretion in sentencing. State v. Cook, 95-2784
(La.5/31/96); 674 So.2d 957. As such, the reviewing court will
determine whether the trial court abused its broad discretion, not whether
another sentence may have been more appropriate. Id.

The trial court must state for the record the considerations taken
into account and the factual basis for the sentence. La.Code Crim.P. art.
894.1(C). Although the trial court need not refer to every factor listed
in Article 894.1(A), the record should affirmatively reflect that adequate
consideration was given to codal guidelines in particularizing the
defendant's sentence. State v. Iron, 00-1238 (La.App. 3 Cir. 2/15/01);
780 So.2d 1123, writ denied, 01-1232 (La.3/15/02); 811 So.2d 898. Yet,
when the trial court fails to adequately address the factors of La.Code
Crim.P. art. 894.1, “the trial court's reasoning alone will not necessitate
the need for re-sentencing as long as an adequate factual basis is found
within the record.” State v. Butler, 98-1258, p. 7 (La.App. 3 Cir. 2/3/99);
734 So.2d 680, 684.

The trial court may also consider other factors not provided by
La.Code Crim.P. art. 894.1. Specifically, when the offense to which the
defendant has pled guilty inadequately describes the entire course of the
defendant's conduct, the court may consider the benefit obtained by the
defendant through the plea bargain. State v. Lanclos, 419 So.2d 475
(La.1982). The trial court should particularly make such considerations
where the plea bargain results in a significant reduction in the
defendant's potential exposure to imprisonment. State v. Robinson,
33,921 (La.App. 2 Cir. 11/1/00); 770 So.2d 868; State v. Waguespack,
589 So.2d 1079 (La.App. 1 Cir.1991), writ denied, 596 So.2d 209
(La.1992). In addition, the trial court may consider other criminal
activity which did not result in a conviction. State v. Texada, 98-1647

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(La.App. 3 Cir. 5/5/99); 734 So.2d 854, writ denied, 00-2751
(La.6/29/01); 794 So.2d 824.

Defendant pled guilty to one count of distribution of cocaine and was sentenced

to sixteen years at hard labor, to run concurrent to any other sentence he was subject

to serve, with credit for time already served, and ordered to pay a fine of $1,500.00

and court costs. In exchange for his plea, the State dismissed the accompanying

charge of possession of cocaine with intent to distribute, agreed to waive the filing of

any habitual offender proceedings, and recommended that at least half of any sentence

imposed run concurrent to any sentence Defendant was then serving.

At sentencing, the trial court made the following comments:

All right. The court considered all of this [the Defendant’s
medical records] as well as reviewed the Article 894.1 factors of the
Code of Criminal Procedure and found that the following were
applicable: First, this is a drug case and there is significant economic
harm or impact on society in general when one is dealing in the use or
distribution of illegal controlled dangerous substances. There are no
substantial grounds which would tend to excuse or justify his criminal
conduct nor did he act under strong provocation by any victims. He’s 36
years of age. He’s single and has no children. He is in, what I’d classify
as, poor health. According to this, he has HIV and some of the
complications that are a result of that illness. His vision in one eye is
impaired. There are some mental health issues as well, according to the
records, and I understand he’s also on dialysis at this point.

. . . .

He has no employment record and there’s no indication of any work
history in the PSI. He has an eleventh grade education and he has a
history of drug and alcohol use. He did receive treatment one time, but
failed to comply or complete that. He’s classified as a third felony
offender in this case. His prior record includes juvenile - a juvenile
history, in that in 1982, he was convicted of felony theft and given two
years Louisiana - at LTI. As an adult, on January 27, 1998 in this court,
he was convicted of distribution of marijuana and placed on five years
probation. That was revoked. He was given good time parole twice and
that was revoked. On September 18th, 1992 in this court, he was
convicted of distribution of cocaine and given 18 years Department of
Corrections. A good time parole at that time in - January 12th, 2001 was
given and that was revoked on February 25th, 2002 and his next
scheduled good time date is September 2nd, 2006.

The trial court then sentenced Defendant stating the following:

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Considering all of the factors in this case and primarily his health, the
court is going to order that this sentence run concurrent - totally in
concurrent with any other sentence that he’s currently subject to.

. . . .

I think he’s going to be in prison for a long enough period of time and
there is some, some consideration by this court that he may not make it
out of prison because of his health and that’s a factor the court
considered in this, in this issue of concurrency versus consecutiveness.

Defendant specifically contends that “in view of his dire medical condition -

[Defendant] suffers from HIV, undergoes regular dialysis, and has a history of mental

health issues - the sentence he received is tantamount to a sentence of life

imprisonment.” Defendant also argues the trial court and trial counsel misconstrued

the charges against him because the bill of information charged him with possession

of cocaine with intent to distribute but the trial court sentenced him for distribution

of cocaine. Defendant asserts this error “reveals a less than considered process by

which [he] received such a grave sentence.”

In his Motion to Reconsider Sentence, Defendant merely alleged his sentence

was “excessive and improper.” Although it is arguable Defendant did not preserve

these issues for review, we will review them in the interest of justice. Rule 1-3,

Uniform Rules - Courts of Appeal; State v. Graves, 01-156 (La.App. 3 Cir. 10/3/01),

798 So.2d 1090, writ denied, 02-29 (La. 10/14/02), 827 So.2d 420.

We note the trial court specifically considered the Defendant’s HIV status at

sentencing. The trial court ran the entirety of the Defendant’s sentence concurrent

with the sentence he was then serving because of his HIV status and various other

health conditions.

Defense counsel recited for the court the charge to which Defendant was

entering a guilty plea as follows:

BY MS. NELSON:

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Your Honor, at this time, we would be withdrawing our former plea to
count one, bill of information 62,431, charging Mr. Collins with the
offense of distribution of cocaine and tender a plea of guilty to that
offense, Your Honor.

* * * *

BY MR. SKINNER:

. . . that is correct, Your Honor.

BY THE COURT:

All right. Okay. Is that, is that your plea Mr. Collins?

BY MR. COLLINS:

Yes, sir.

The record establishes the trial court informed Defendant he was pleading guilty to

distribution of cocaine and explained the nature of the charge as well as the penalty

range. The Defendant indicated he understood the charge and the penalty range. The

Waiver of Constitutional Rights and Plea of Guilty form was signed by Defendant, his

attorney, an assistant district attorney, and approved by the judge. That form indicates

the Defendant was entering a plea of guilty to distribution of cocaine. Furthermore,

the recitation of facts at Defendant’s guilty plea indicates he sold cocaine to an

undercover officer.

Thus, Defendant’s contention that the judge did not properly consider his case

is not supported by the record. Also, Defendant has failed to show prejudice since the

crime of distribution of cocaine and possession of cocaine with intent to distribute

carry the same penalty.

Under La.R.S. 40:967(B)(4)(b), Defendant was subject to a sentence from two

to thirty years and a possible fine of up to $50,000.00. Defendant was given a mid-

range sentence of sixteen years and a fine of $1,500.00. Defendant is classified as a

third felony offender, having previously been convicted of distribution of marijuana

and distribution of cocaine. However, the State agreed not to file any habitual

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offender proceedings under La.R.S. 15:529.1 or La.R.S. 40:982. Lastly, an

accompanying charge of possession of cocaine with intent to distribute was dismissed.

Thus, Defendant benefitted significantly from the plea bargain. The trial court did not

abuse its discretion in the imposition of Defendant’s sentence.

DECREE

For the foregoing reasons, Defendant’s sentence is affirmed.

AFFIRMED.

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