State of Louisiana v. Desmond Jason

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

03-1565

STATE OF LOUISIANA

VERSUS

DESMOND JASON

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APPEAL FROM THE
TWENTY-SEVENTH JUDICIAL DISTRICT COURT
PARISH OF ST. LANDRY, NUMBER 00-K-1653-A
HONORABLE JAMES T. GENOVESE, DISTRICT JUDGE

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BILLIE COLOMBARO WOODARD
JUDGE

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Court composed of Sylvia R. Cooks, Billie Colombaro Woodard, and Marc T. Amy,
Judges.

AFFIRMED.

Mr. Earl Taylor, District Attorney
District Attorney’s Office
Twenty-Seventh Judicial District
Post Office Box 1968
Opelousas, Louisiana 70571
(337) 948-3041
COUNSEL FOR PLAINTIFF/APPELLEE:
State of Louisiana

Mr. James E. Beal
Louisiana Appellate Project
Post Office Box 307
Jonesboro, Louisiana 71251
(318) 259-2391
COUNSEL FOR DEFENDANT/APPELLANT:
Desmond Jason

WOODARD, Judge.

Defendant, Mr. Desmond Jason, challenges his sentence of three years at hard
labor after he pled guilty to possession of cocaine. For the following reasons, we
affirm.

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On April 14, 2000, Dwain Grimmett, an officer with the Opelousas City Police
Department, saw a red Jaguar driving slowly down a street. Officer Roylis Gallow
was on the scene, as well. Neither the driver of the vehicle nor the Defendant, who
was a passenger in the vehicle, wore seatbelts. When the officer pulled the vehicle
over, he saw Mr. Jason put a small plastic bag into his mouth. He then removed the
plastic bag from his mouth and put it into his pocket. The officer observed him chew
something and when asked what he was chewing, Mr. Jason said he was eating several
rocks of crack cocaine and handed the officer the plastic bag, which was later
determined to have contained residue of crack cocaine.
On June 16, 2000, Mr. Jason was charged, by bill of information, with one
count of possession of a controlled dangerous substance, Schedule II, cocaine, in
violation of La.R.S. 40:967(C). He filed a motion to suppress the evidence, which the
trial court heard and denied in open court on September 17, 2003. Immediately
following the hearing, Mr. Jason entered an Alford plea of guilty to the one count of
possession of cocaine, after which the trial court sentenced him to three years at hard
labor but deferred the imposition of the sentence until Mr. Jason could perfect an
appeal. However, he failed to file an appeal within the time delays the law allows.
Nonetheless, this court granted an out-of-time appeal on October 1, 2003.
Mr. Jason appeals, alleging that the trial court did not comply with La.Code
Crim.P. art. 894.1's requirements when it sentenced him, resulting in an excessive
sentence; and that the trial court erred when it did not observe the required three-day
delay by sentencing him immediately following the guilty plea.

*****

1

ERRORS PATENT
In accordance with La.Code Crim.P. art. 920, we review all appeals for errors
patent on the face of the record. After reviewing the record, we find none.

EXCESSIVE SENTENCE
In his first two assignments of error, Mr. Jason alleges that the trial court did
not take into consideration mitigating factors as La.Code Crim.P. art. 894.1 requires,
resulting in a constitutionally excessive sentence. Louisiana Code of Criminal
Procedure Article 881.1(E) provides that the failure to file or make a timely motion
to reconsider sentence precludes a defendant from objecting to the sentence on appeal.
Mr. Jason did not make or file a motion to reconsider his sentence. Nevertheless, we
will briefly address his allegation that the sentence is excessive under the
circumstances.
He pled guilty to possession of cocaine in violation of La.R.S. 40:967(C).
Louisiana Revised Statutes 40:967(C)(2) provides for a maximum term of
imprisonment of five years, with or without hard labor. Additionally, the offender
may be fined up to five thousand dollars. In the present case, Mr. Jason was sentenced
to three years at hard labor.
In State v. Hopkins,1 this court held:

Article 1, § 20 of the Louisiana Constitution of 1974, prohibits,
“cruel, excessive, or unusual punishment.” A sentence that falls within
the statutory limits may nevertheless be excessive under the
circumstances. To constitute an excessive sentence this court must find
that the penalty is so grossly disproportionate to the severity of the crime
as to shock our sense of justice or that the sentence makes no measurable
contribution to acceptable penal goals and therefore, is nothing more
than needless imposition of pain and suffering. The trial judge is given
wide discretion in imposing a sentence, and a sentence imposed within
statutory limits will not be deemed excessive lacking a manifest abuse
of discretion.

The Legislature has provided criteria to aid a sentencing court in
determining whether a sentence of imprisonment should be imposed and
whether suspension of a sentence or probation is warranted. Paragraph
(c) of Article 894.1 requires the court to state for the record the
considerations taken into account and the factual basis used when

1
96-1063, p.6 (La.App. 3 Cir. 3/5/97), 692 So.2d 538, 541 (citations omitted).

2

imposing a sentence. The trial court need not refer to every aggravating
and mitigating circumstance in order to comply with the article.
However, the record must affirmatively reflect that adequate
consideration was given to the codal guidelines in particularizing the
defendant's sentence.

If there is an adequate factual basis for the sentence contained in
the record, the trial court's failure to articulate every circumstance listed
in Article 894.1 will not require a remand for resentencing.

Mr. Jason argues that “the trial judge failed to adequately consider all of the
mitigating factors . . . in imposing a mid range sentence which is normally reserved
for the more serious offenders.” Specifically, he argues that the trial court should have
considered, as mitigating factors, the fact that his was a victimless crime and that he
was only twenty-seven years old at the time he pled guilty.
Following a proper Boykinization, at the sentencing portion of the hearing, the
trial court stated:

In connection herewith, the court notes that this defendant has a
prior conviction, by his own admission, a prior conviction of cocaine, a
prior drug offense, that this particular offense is another drug offense
dealing with possession of cocaine. The court finds that a lesser sentence
would – under Article 894.1, the special conditions in this matter, the
court feels that a lesser sentence would deprecate the seriousness of the
defendant’s crime, that the defendant is in need of correctional treatment,
and perhaps drug treatment, in a custodial environment that can be
provided most effectively by his commitment to an institution. The court
notes that this is a second offense possession of marijuana [sic] charge,
and as a result thereby, the court finds those factors pertinent to this
court’s sentence and, therefore, the court sentences the defendant to
serve three years at hard labor, with credit for time served. This sentence
is not enhanced, he is entitled to diminution of sentence[.]

In State v. Freeman,2 the defendant was sentenced to three years at hard labor
for possession of cocaine. Mr. Freeman argued that the sentence was excessive;
however, the fifth circuit affirmed it. He was a second time felony offender; his first
offense being distribution of marijuana. In his case, the fifth circuit stated:

2
97-1115 (La.App. 5 Cir. 12/29/98), 727 So.2d 630.

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We conclude that the defendant’s sentence of three years in this
case is not constitutionally excessive. A person convicted of possession
of cocaine may be imprisoned for up to five years, with or without hard
labor, and may be sentenced to pay a fine of not more than five thousand
dollars. LSA-R.S. 40:967C (2). The court could therefore have imposed
a much greater penalty. Defendant argues that justice would be better
served if he were given a suspended sentence, considering that at the
time of his conviction he had a job and a good relationship with his son.
However, defendant was given such an opportunity when he was placed
on probation for his prior conviction.3

In the instant case, Mr. Jason has failed to show how the trial court abused its
considerable discretion when it sentenced him to a mid range sentence of three years
at hard labor. This was Mr. Jason’s second conviction for the same offense. The trial
court could have sentenced him to a much harsher term as well as a fine of up to five
thousand dollars. This court does not find that the sentence is grossly disproportionate
to the severity of the offense nor is it shocking to our sense of justice. Accordingly,
this assignment is without merit.

SENTENCING DELAY
Mr. Jason’s final assignment of error involves La.Code Crim.P. art. 873's delay
requirements for imposing sentence. Louisiana Code of Criminal Procedure Article
873 provides:

If a defendant is convicted of a felony, at least three days shall
elapse between conviction and sentence. If a motion for a new trial, or
in arrest of judgment, is filed, sentence shall not be imposed until at least
twenty-four hours after the motion is overruled. If the defendant
expressly waives a delay provided for in this article or pleads guilty,
sentence may be imposed immediately.

(Emphasis added.)

Mr. Jason argues that “[n]owhere in the transcript of the sentencing is there any
indication of a waiver of the three day delay for sentencing after conviction, nor the
twenty-four hour delay after ruling on the Motion to Suppress, which is required by
LSA C. Cr. P. Article 873[.]” However, he entered a plea of guilty under North

3
Id. at 636.

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Carolina v. Alford,4 on September 17, 2003. Article 873 expressly states that if a
defendant pleads guilty, the court may sentence him immediately. Further, Article
873 has no application to a motion to suppress. Thus, Mr. Jason’s argument that the
trial court erred when it sentenced him within twenty-four hours after its denial of his
motion to suppress is meritless.

CONCLUSION

We find no abuse of discretion in the trial court’s sentence of three years at hard
labor, nor do we find the sentence to be excessive. Further, the trial court did not
violate La.Code Crim.P. Art. 873 by sentencing the Defendant immediately after he
pled guilty. Accordingly, we affirm the trial court’s judgment.

AFFIRMED.

4
400 U.S. 25, 91 S.Ct. 160 (1970).

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