State of Louisiana v. Damien D. Trahan

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

04-709 consolidated with 04-711, 04-712

STATE OF LOUISIANA

VERSUS

DAMIEN D. TRAHAN

**********

APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NOS. 6314-03, 7707-03, 11377-03
HONORABLE G. MICHAEL CANADAY, DISTRICT JUDGE

**********
ELIZABETH A. PICKETT
JUDGE
**********

Court composed of Ulysses Gene Thibodeaux, Chief Judge, Glenn B. Gremillion, and
Elizabeth A. Pickett, Judges.

AFFIRMED; REMANDED WITH INSTRUCTIONS.

Robert Richard Bryant, Jr.
District Attorney
Sharon Darville Wilson
Assistant District Attorney
Carla S. Sigler
Assistant District Attorney
P. O. Box 3206
Lake Charles, LA 70602
(337) 437-3400
Counsel for State-Appellee:
State of Louisiana

Peggy J. Sullivan
Louisiana Appellate Project
P. O. Box 2775
Monroe, LA 71207-2775
(318) 387-6124
Counsel for Defendant-Appellant:
Damien D. Trahan

Pickett, Judge.

FACTS

On November 11, 2002, a Lake Charles City Police Officer found the

defendant, Damien Trahan, in possession of three rocks of cocaine weighing twenty-

four thousandths of a gram. On March 11, 2003, the defendant was charged by a bill

of information, 6314-03, with possession of a schedule II controlled dangerous

substance, namely cocaine, in violation of La.R.S. 40:967(C)(2) and with operating

a vehicle without headlights on the highway between sunset and sunrise, in violation

of La.R.S. 32:303.

On January 1, 2003, a Calcasieu Parish Sheriff’s Deputy found the defendant

to be in possession of a brown vanilla extract bottle containing one quarter of an

ounce of phencyclidine. On March 27, 2003, the defendant was charged by a bill of

indictment, 7707-03, with possession of a Schedule I controlled dangerous substance

with intent to distribute, namely phencyclidine (PCP), in violation of La.R.S.

40:966(A)(1).

On August 29, 2002, a Calcasieu Parish Sheriff’s Deputy found the defendant

to be in the possession of five rocks of cocaine weighing one and forty-three one

hundredths grams. On June 6, 2003, the defendant was charged by a bill of

information, 11377-03, with possession of a schedule II controlled dangerous

substance, namely cocaine, in violation of La.R.S. 40:967(C)(2).

The defendant was arraigned on August 12, 2003, and entered pleas of not

guilty to all charges.

Subsequently, on November 21, 2003, the defendant entered into a plea bargain

with the state. As a result of this plea bargain, the defendant pled guilty to the drug

1

charge in bill of information 6314-03, with the state dismissing the second count of

driving without headlights; he pled guilty to an amended charge of possession of a

schedule I controlled dangerous substance, namely phencyclidine in violation of

La.R.S. 40:966(C)(2) under bill of indictment 7707–03; and he pled guilty as charged

under bill of information 11377-03. As a part of this plea bargain, the state agreed

to nolle prosse docket number 17543-03, which charged the defendant with

possession of a schedule I controlled dangerous substance, namely phencyclidine and

illegal carrying of a weapon; docket number 5568-02, which charged the defendant

with resisting an officer, illegal carrying of a weapon and aggravated assault of a

police officer; and docket number 20597-03, which charged the defendant with illegal

possession of a stolen firearm and resisting an officer.

At the guilty plea hearing, the state and the defendant submitted a joint

sentencing recommendation. This recommendation was ultimately rejected by the

trial court.

On February 4, 2004, the defendant was sentenced to ten years at hard labor

with six years suspended in docket number 7707-03, and to four years at hard labor

with three years suspended on each count in docket numbers 6314-03 and 11377-03.

These sentences were ordered by the trial court to run consecutively. The defendant

filed a Motion to Reconsider Sentence which was denied. This appeal followed.

DISCUSSION

In his sole assignment of error, the defendant alleges that the trial court erred

in imposing a constitutionally excessive sentence upon him.

The defendant filed a Motion to Reconsider in accordance with La.Code

Crim.P. art. 881.1. Under Article 881.1, a defendant must file a motion to reconsider

2

the sentence setting forth the specific grounds upon which the motion is based in

order to raise any sentencing claims on appeal. State v. Mims, 619 So.2d 1059

(La.1993). In order to preserve a claim of constitutionally excessive sentence, the

defendant need only claim that his sentence is excessive. Id.

In his Motion to Reconsider, the defendant alleged only that his sentence was

excessive. The supreme court, in Mims, 619 So.2d at 1059-60, held:

If the defendant does not allege any specific ground for excessiveness
or present any argument or evidence not previously considered by the
court at original sentencing, then the defendant does not lose the right
to appeal the sentence; the defendant is simply relegated to having the
appellate court consider the bare claim of excessiveness.

The defendant did not allege any specific ground for excessiveness and is therefore

relegated to a bare excessive sentence review. The defendant alleged in his Motion

to Reconsider that his sentence was disproportionate to the facts and circumstances

surrounding the offenses and his personal history. The defendant also alleged that he

is a first felony offender and the period of incarceration will impose a hardship on his

family.

This court has set forth the following standard to be used in reviewing

excessive sentence claims:

La.Const. art. I, § 20 guarantees that, “[n]o law shall subject any
person to cruel or unusual punishment.” To constitute an excessive
sentence, the reviewing court must find the penalty 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 is, therefore, nothing more than a needless
imposition of pain and suffering. State v. Campbell, 404 So.2d 1205
(La.1981). The trial court has wide discretion in the imposition of
sentence within the statutory limits and such sentence shall not be set
aside as excessive absent a manifest abuse of discretion. State v.
Etienne, 99-192 (La.App. 3 Cir. 10/13/99); 746 So.2d 124, writ denied,
00-0165 (La.6/30/00); 765 So.2d 1067. The relevant question is
whether the trial court abused its broad sentencing discretion, not
whether another sentence might have been more appropriate. State v.

3

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).

State v. Barling, 00-1241, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035, 1042-43,

writ denied, 01-838 (La. 2/1/02), 808 So.2d 331.

In order to decide whether a sentence shocks the sense of justice or makes no

meaningful contribution to acceptable penal goals, this court has held:

[An] appellate court may consider several factors including the nature
of the offense, the circumstances of the offender, the legislative purpose
behind the punishment and a comparison of the sentences imposed for
similar crimes. State v. Smith, 99-0606 (La.7/6/00), 766 So.2d 501.
While a comparison of sentences imposed for similar crimes may
provide some insight, “it is well settled that sentences must be
individualized to the particular offender and to the particular offense
committed.” State v. Batiste, 594 So.2d 1 (La.App. 1 Cir.1991).
Additionally, it is within the purview of the trial court to particularize
the sentence because the trial judge “remains in the best position to
assess the aggravating and mitigating circumstances presented by each
case.” State v. Cook, 95-2784 (La.5/31/96), 674 So.2d 957, 958.

State v. Smith, 02-719, p. 4 (La.App. 3 Cir.), 846 So.2d 786, 789, writ denied, 03-562

(La. 5/30/03), 845 So.2d 1061.

The defendant pled guilty to two counts of possession of cocaine, in violation

of La.R.S. 40:967(C)(2) and possession of phencyclidine (PCP) in violation of

La.R.S. 40:966(C)(2). La.R.S. 40:967(C)(2) states:

Any person who violates this Subsection as to any other
controlled dangerous substance shall be imprisoned with or without hard
labor for not more than five years and, in addition, may be sentenced to
pay a fine of not more than five thousand dollars.

La.R.S. 40:966(C) states, in pertinent part:

Any person who violates this Subsection with respect to:

(2) Phencyclidine, shall be sentenced to imprisonment with or
without hard labor for not less than five nor more than twenty years and
may be sentenced to pay a fine of not more than five thousand dollars,
or both.

4

When sentencing the defendant the trial court stated:

All right. Mr. Trahan, the Court’s called upon to look at Article
894. It says when the defendant’s been convicted of a felony, the Court
should impose a sentence of imprisonment if any of the following occur.

Is there an undue risk during any period of a suspended sentence
or probation, would the defendant commit another crime? The Court’s
answered that in the affirmative, indicating that you’ve had constant
scrapes with the law as an adult, since 18. And further, these charges
originally were pending on August the 2nd. Released on bond,
additional charges November the 2nd. Released on bond, and finally
charges again on November -- on January the -- I’m sorry, of August of
2002, November of 2002, and of January of 2003, that they occurred.
It appears that each time you were given an opportunity you didn’t take
it serious that you were going to be having to be held accountable for
your actions.

Is the defendant in need of correctional treatment or a custodial
environment that can be provided most effectively by his commitment
to an institution? It is noted that you have had opportunities, albeit
misdemeanors, that you were given jail sentences, 10 days in the parish
jail, 30 days in the parish jail, 54 days in the parish jail, but yet, it still
hasn’t gathered your attention. So, the Court feels that incarceration is
acknowledgeable in your situation.

Would a lesser sentence deprecate the seriousness of the
defendant’s crime? It’s noted that before the Court there are three
distinct offenses, all involving controlled dangerous substances and the
Court would feel that any lesser sentence than some type of
incarceration would deprecate the seriousness of the offense.

As indicated, while the record technically does appear that you are
a first offender, you are apparently very familiar with the criminal justice
system, having been involved in the juvenile criminal justice system and
then upon turning -- as an adult, having numbers of charges and
offenses. But however, technically noting that no felony convictions
have occurred.

The Court notes as an aggravating circumstance to look at the
seriousness of your offenses, that you have been persistently involved
in similar offenses that have not already been considered as a criminal
history, or part of a multiple offender adjudication. Specifically noting
since 1996, up through 2003, various charges being brought against you.

Other aggravating circumstances, that the defendant has no
history of prior delinquency. The Court answers that in the negative.

5

Has led a law abiding life for a substantial period of time before
the commission of the offense. Again, answering that in the negative.

Will the defendant’s conduct be the result of circumstances
unlikely to occur? Your history dictates otherwise.

Is the defendant particularly likely to respond to probationary
treatment? Again, you’ve been given opportunities, put out on bond,
and still showed a disregard for the criminal justice system.

It does note that you attempted at one point to become involved
in a pre-trial drug testing program, however, you did not complete the
program, and in fact, returned back into getting into trouble subsequent
to that attempt. Any matters that weren’t specifically mentioned were
reviewed and either deem insignificant or inapplicable to the instant
offenses that’s before the Court. The Court finds no mitigating
circumstances.

At this time, the defendant has pleaded guilty to the offense of
possession of CDS-1, Phencyclidine, commonly referred to as PCP, a
violation of Title 40:966. With regard to that offense, the Court
sentences you to serve 10 years with the Department of Corrections, six
of those years suspended.

With regard to possession of cocaine, a violation of Title 40:967,
the Court tences you to serve four years with the Department of
Corrections and will suspend three of those years. Those four years are
to run consecutive with the 10 year sentence on the CDS-1.

With regard to the other count of possession of cocaine, he is
sentenced to serve the four years with the Department of Corrections,
consecutive, three years of that suspended.

The Court takes cognizance of the Code of Criminal Procedure
Article 883 that the offenses before the Court are three distinct acts and
not an aggregate, and the Court distinctly orders that the offenses be
served consecutively.

It is noted that the totality of the time that you would serve based
on the offenses would be six years, Mr. Trahan, and those would be at
hard labor.

In State v. Williams, 02-707, p. 8 (La.App. 3 Cir. 3/5/03), 839 So.2d 1095,

1100, this court stated:

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.

6

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.

Louisiana Code of Criminal Procedure Article 894.1, however, does not require that

the trial court assign any particular weight to any specific matters at sentencing. State

v. Jones, 33,111 (La.App. 2 Cir. 3/1/00), 754 So.2d 392, writ denied, 00-1467 (La.

2/2/01), 783 So.2d 385. The trial court sufficiently considered the aggravating and

mitigating circumstances.

In his brief the defendant argues that because he had no criminal history of any

kind, his sentence of imprisonment was excessive. This court has held that “although

La.Code Crim.P. 893 allows the sentencing court to suspend sentence and grant

probation on a defendant’s first felony conviction, a defendant’s status as a first

felony offender does not preclude a sentence of incarceration.” State v. Richard, 94-

1263, p. 5 (La.App. 3 Cir. 5/17/95), 657 So.2d 258, 261. In State v. Winfield, 597

So.2d 1222, 1223-24 (La.App. 3 Cir. 1992), this court stated:

The defendant also places emphasis on his status as a first felony
offender. This, however, does not preclude a sentence of incarceration.
State v. Johnson, 483 So.2d 230 (La.App. 3d Cir.1986). The judge
stated a probated sentence would deprecate the seriousness of the
offense and that he considered the offense to be a serious one. These
reasons have been held by this court to be sufficient to overcome the
first felony offender status. State v. Capdeville, 438 So.2d 1310
(La.App. 3d Cir.1983).

The defendant claims that as he is a first offender, he should be granted

suspended sentences and be placed on probation. The trial judge stated that he felt

lesser sentences would deprecate the seriousness of the offense, and that because the

defendant had “constant scrapes with the law” and had committed two of the offenses

while on bond, there was undue risk the defendant would commit another crime if the

7

sentences were suspended and the defendant was in need of a “custodial or

correctional environment.” Under Winfield, this is enough to overcome the first

offender status.

This court has held that “when the offense to which the defendant pled guilty

does not adequately describe his conduct, the trial court may take into consideration

the benefit the defendant obtained through the plea bargain. Williams, 839 So.2d at

1101, citing State v. Lanclos, 419 So.2d 475 (La.1982). This court further stated that

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.” Id., citing 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 this case the state agreed to dismiss seven additional charges including:

possession of phencyclidine, two counts of illegal carrying of a weapon, two counts

of resisting an officer, aggravated assault on a police officer and illegal possession

of a stolen firearm. The count of possession of phencyclidine carries a penalty of up

to twenty years in prison. La.R.S. 40:966(C)(2). The two counts of illegal carrying

of a weapon carry a penalty of up to six months in prison each. La.R.S. 14:95(B)(1).

The two counts of resisting an officer carry a penalty of up to six months in prison

each. La.R.S. 14:108(C). The crime of aggravated assault on a police officer carries

a penalty of up to six months in prison. La.R.S. 14:37. Illegal possession of a stolen

firearm carries a penalty of up to five years in prison. La.R.S. 14:69.1(B)(1). The

defendant received a great benefit by having these charges dismissed, relieving him

of facing a possible twenty-seven and a half years in prison.

8

The defendant also received a benefit by pleading to possession of

phencyclidine. The defendant was originally charged with possession of

phencyclidine with intent to distribute which carries a penalty of up to thirty years in

prison. La.R.S. 40:966(B)(2). The defendant received the benefit of ten years

reduced sentencing exposure.

The trial court adequately noted all of the relevant aggravating and mitigating

circumstances. The defendant committed the second crime while on bond for the first

crime and committed the third crime while on bond for the second. The defendant

also received a great benefit by pleading guilty to the reduced charges. The trial court

did not abuse its wide discretion in sentencing the defendant. Accordingly, this

assignment of error is without merit. The defendant’s sentences are affirmed.

ERROR PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed by the

court for errors patent on the face of the record. After reviewing the record, we find

one error. The minutes of sentencing require correction. The minutes indicate the

defendant was sentenced to three years at hard labor, three years suspended, and three

years supervised probation on each count of possession of cocaine. The transcript of

sentencing, however, reflects that the trial court sentenced the defendant to four years

at hard labor, three years suspended, and five years supervised probation. We are

remanding this matter to the trial court for the purpose of amending the minutes to

accurately reflect the actual sentence imposed.

CONCLUSION

The defendant’s sentences are affirmed. This matter is remanded to the trial

court for correction of the minutes.

9

AFFIRMED; REMANDED WITH INSTRUCTIONS.

This opinion is NOT DESIGNATED FOR PUBLICATION.
Rule 2-16.3(c), Uniform Rules, Courts of Appeal.

10