State of Louisiana v. Neal W. Insley

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

04-1006

STATE OF LOUISIANA

VERSUS

NEAL W. INSLEY

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APPEAL FROM THE
THIRTIETH JUDICIAL DISTRICT COURT
PARISH OF VERNON, NO. 65179
HONORABLE VERNON B. CLARK, DISTRICT JUDGE

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MARC T. AMY
JUDGE

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Court composed of John D. Saunders, Marc T. Amy, and Michael G. Sullivan,
Judges.

AFFIRMED.

William E. Tilley
District Attorney
Thirtieth Judicial District Court
Post Office Box 1188
Leesville, LA 71446-1188
(337) 239-2008
COUNSEL FOR APPELLEE:
State of Louisiana

Terry Wayne Lambright
100 South Third Street
Leesville, LA 71446
(337) 239-6557
COUNSEL FOR APPELLEE:
State of Louisiana

Paula Corley Marx
Louisiana Appellate Project
Post Office Box 80006
Lafayette, LA 70598-0006
(337) 991-9757
COUNSEL FOR DEFENDANT/APPELLANT:
Neal W. Insley

Neal W. Insley
Hunt Correctional Facility
Post Office Box 174
24 Hour Care Unit
St. Gabriel, LA 70776

AMY, Judge.

The defendant pled guilty to attempted cultivation of marijuana and was

sentenced to serve four years at hard labor and to pay a fine of one thousand five

hundred dollars plus court costs. The defendant now appeals, asserting that his

sentence was unconstitutionally excessive, and not particularized to him, pursuant to

La.Code Crim.P. art. 894.1. He also asserts that the trial court erred in refusing his

request for post-conviction bail. For the following reasons, we affirm.

Factual and Procedural Background

According to the factual basis supplied by the State at the defendant’s guilty

plea hearing, members of the Vernon Parish Sheriff’s Office and the Vernon Parish

Task Force went to a residence to arrest an individual for a probation violation. That

individual lived in the residence with the defendant and helped to care for him, as the

defendant is restricted to a wheelchair. While on the premises, the officers noticed

five marijuana plants growing in plain view beside a shed behind the residence. The

defendant admitted that the plants were his and that he had been growing them. He

also consented to a search of the residence, where officers found marijuana and drug

paraphernalia.

The defendant was charged by a bill of information with one count of

cultivation of marijuana in violation of La.R.S. 40:966, one count of possession of

marijuana in violation of La.R.S. 40:966, and one count of possession of drug

paraphernalia in violation of La.R.S. 40:1033. The defendant entered a plea of not

guilty at his arraignment on December 2, 2003. However, on February 4, 2004,

pursuant to a plea agreement with the State, he entered a plea of guilty to attempted

cultivation of marijuana, a violation of La.R.S. 14:27 and La.R.S. 40:966. The

remaining charges were dismissed. The defendant was sentenced to serve four years

at hard labor and was ordered to pay a fine of one thousand five hundred dollars plus

court costs. The defendant filed a motion to reconsider on May 19, 2004, which was

denied. The defendant now appeals, alleging the following as error:

1. The sentence imposed was cruel, unusual, and
unconstitutionally excessive.

2. The trial court failed to particularize the sentence to this
offender and offense, and further failed to comply with the mandates of
Article 894.1 in sentencing Neal Insley.

3. A four year hard labor sentence was imposed, thus the trial
judge erred in denying bail to Neal Insley after sentence and until final
judgment.

Discussion

Errors 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

that there are no errors patent.

Excessive Sentence and Particularization of Sentence to Defendant

In his first assignment of error, the defendant contends the sentence imposed

is cruel, unusual, and unconstitutionally excessive. In his second assignment of error,

the defendant contends the trial court failed to particularize the sentence to this

offender and offense, and further failed to comply with the mandates of La.Code

Crim.P. art. 894.1. Inasmuch as these two assignments of error are closely related,

we will discuss them together.

The defendant questions in his appellate brief whether mandatory incarceration

fits the crime committed, asserting in support that the plants were grown for his own

personal use. The defendant further asserts that the trial court did not demonstrate

compliance with the requirement in La.Code Crim.P. art. 894.1(C) that the sentencing

court state the considerations taken into account for the record, in order to ensure that

a sentence is individualized. The defendant specifically points to the trial court’s

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comment, “[f]irst, this is a drug case and there is always significant harm to society

in general when one is dealing in the use or distribution of illegal drugs.” The

defendant’s argument with regard to the statement is two-fold: first, that the

statement merely reflects the trial judge’s “personal feelings” and, second, that the

trial judge did not thereafter articulate how the defendant’s “cultivation and personal

use of marijuana was or could have been a significant harm to society.” The

defendant further argues in his appellate brief that the trial court “seemed unduly

impressed” with the defendant’s criminal history and failed to give adequate

consideration to a number of mitigating circumstances. Finally, the defendant states

that, “[t]he failure of the court to give appropriate weight to the mitigating factors in

this case and the facts of the crime has resulted in an unconstitutionally excessive

sentence[.]”

This court has stated the standard for reviewing an excessive sentence as

follows:

The Eighth Amendment to the United States Constitution and La.
Const. art. I, § 20 prohibit the imposition of cruel or excessive
punishment. “ ‘[T]he excessiveness of a sentence becomes a question
of law reviewable under the appellate jurisdiction of this court.’ ” State
v. Dorthey, 623 So.2d 1276, 1280 (La.1993) (quoting State v.
Sepulvado, 367 So.2d 762, 764 (La.1979)). Still, the trial court is given
wide discretion in imposing a sentence, and, absent a manifest abuse of
that discretion, we will not deem as excessive a sentence imposed within
statutory limits. State v. Pyke, 95-919 (La.App. 3 Cir. 3/6/96), 670
So.2d 713. . . . The only relevant question for us to consider on review
is not whether another sentence would be more appropriate, but whether
the trial court abused its broad discretion in sentencing a defendant.
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).

State v. Whatley, 03-1275, pp. 5-6 (La.App. 3 Cir. 3/3/04), 867 So.2d 955, 958. A

sentence will only be deemed excessive if it amounts to a needless and purposeless

imposition of pain and suffering or if it is so grossly disproportionate to the

seriousness of the crime as to shock one’s conscious. State v. Walker, 96-112

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(La.App. 3 Cir. 6/5/96), 677 So.2d 532, writ denied, 96-1767 (La. 12/6/96), 684

So.2d 924.

With respect to a trial court’s compliance with the requirements of La.Code

Crim.P. art. 894.1, this court has stated:

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. La.Code
Crim.P. art. 894.1; State v. Klause, 525 So.2d 1076 (La.App. 3
Cir.1988). 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 imposing a sentence. The sentencing court need not
articulate every circumstance or read through a checklist of items to
comply with the requirements of La.Code Crim.P. art. 894.1. State v.
Pontiff, 604 So.2d 71 (La.App. 3 Cir.1992). However, the record must
affirmatively reflect that adequate consideration was given to the codal
guidelines in particularizing the defendant’s sentence. State v. Smith,
433 So.2d 688 (La.1983).

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 necessitate a remand for resentencing. State v.
Cottingin, 476 So.2d 1184 (La.App. 3 Cir.1985), appeal after remand,
496 So.2d 1379 (La.App. 3 Cir.1986); State v. Morgan, 428 So.2d 1215
(La.App. 3 Cir.1983), writ denied, 433 So.2d 166 (La.1983); See also,
Smith, 433 So.2d 688 and State v. Stein, 611 So.2d 800 (La.App. 3
Cir.1992). Even though art. 894.1 has undergone several major
revisions, the reasoning used in these cases is still applicable.

State v. Bey, 03-277, pp. 5-6 (La.App. 3 Cir. 10/15/03), 857 So.2d 1268, 1272-73

(quoting State v. Anderson, 95-1688, p. 4 (La.App. 3 Cir. 5/8/96), 677 So.2d 480,

483).

The defendant was convicted of attempted cultivation of marijuana in violation

of La.R.S. 40:966, which provides for an imprisonment sentencing range of five to

thirty years and a fine of not more than fifty thousand dollars. Louisiana Revised

Statutes 14:27(D)(3) sets forth the appropriate penalty for attempted cultivation of

marijuana, providing that the sentence imposed for an attempt shall not exceed

one-half of the longest term of imprisonment prescribed for the offense attempted.

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The Louisiana Supreme Court has found that this language requires no minimum

penalty provision. State v. Callahan, 95-1331 (La. 3/29/96), 671 So.2d 903.

When sentencing the defendant, the following remarks were made by the trial

court:

I considered the factors under Article 894.1 of the Code of Criminal
Procedure, and, found that the following were applicable. First, this is
a drug case, and, there is always significant harm to society in general
when one is dealing in the use or distribution of illegal drugs. There are
no substantial grounds which would tend to excuse or justify this
defendant’s criminal conduct, nor did he act under strong provocation
by any other individuals. He is forty-one years of age. He is single. He
has two children. Both of them are adults. He is in relatively poor
health in that he is disabled and is confined to a wheelchair. He does
have some employment record in that in the past he has worked as a
sandblaster, and, fabricator, and, worked off shore as well. He has an
eighth grade education and has not received a G.E.D. He has a history
of marijuana use which he admits to for at least twenty years. He has
gone through therapy for emotional problems, and, for pain management
with doctors, but, has not received any kind of therapy for any kind of
illegal drug use. He has a prior criminal record, and, has been classified
in the PSI as a third felony offender. In 1979 in New Birn
(PHONETIC), North Carolina he was convicted of auto larceny, a felony
grade offense, and, was sentenced to twelve years confinement. He
escaped on August 31st, 1981, and, was captured apparently, the next
day, September 1st, 1981. He was paroled February 23rd, 1983, and, then
was discharged on October 26, 1983. Then, September – excuse me,
June 26th, 1986 he was convicted of simple battery in Oberlin, Louisiana
and was given eighteen months with the Department of Corrections
time. He was paroled in that case July 27th, 1987, and, that expired
February – April 27th, 1988. He also has a conviction on his record for
misdemeanor grade escape and possession of marijuana. As I said, he
is a third felony offender, and, therefore, not eligible for probation in
this case. The court has struggled, somewhat, with what to do with you
in this case to be honest with you, Mr. Insley. Home incarceration was
an option to the court, but, I felt that the possibility of home
incarceration would, basically, leave you in the same kind of situation
that was there whenever you were growing your marijuana, that is, I’d
leave you in your home, and, there is no assurance that you wouldn’t do
the same thing, or some other activity out of your home that you had
done before, and, so, the only other option to the court, I think, is to
remove you from any kind of environment like that. The court,
therefore, sentences you to serve a sentence of 4 years at hard labor with
the Louisiana Department of Corrections, and, pay a fine of $1,500.00
plus court costs.

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We find that the trial court clearly considered the defendant’s personal history

including his age, family ties, marital status, health, employment record, prior

criminal record, and the likelihood of recidivism or rehabilitation. “[I]t is not

improper for the trial court to take into account public concerns in imposing a

sentence as well as the threat of harm to society of controlled dangerous substances

as long as the sentence is particularized to the defendant.” State v. Page, 575 So.2d

892, 894 (La.App. 2 Cir. 1991). Additionally, it is clear that the court considered

mitigating factors in articulating the defendant’s sentence. The court was not

required to give any of the mitigating factors any particular weight. Bey, 857 So.2d

1268. Based on the trial court’s comments, we find that the trial court did comply

with La.Code Crim.P. art 894.1 and imposed a sentence that was particularized to the

defendant.

Turning to the defendant’s claim that his four year sentence was excessive, we

first note that the defendant could have been sentenced to a term of imprisonment

ranging from zero to fifteen years. La.R.S. 40:966; La.R.S. 14:27. Our review of the

record reveals that the defendant was originally charged with cultivation of marijuana

and was allowed to plead guilty to a lesser offense; furthermore, the State dismissed

the charges of possession of marijuana and possession with intent to use drug

paraphernalia. Where the entire course of the defendant’s conduct is inadequately

described by the offense to which he pled guilty, the court may consider the benefit

obtained by the defendant through a plea bargain. State v. Lanclos, 419 So.2d 475

(La.1982). Although the defendant suggests that his parole expired for his last crime

in 1985, the judge is entitled to consider a defendant’s prior criminal record in

fashioning a sentence, and the record reflects that the defendant is a third felony

offender. State v. Myles, 94-217 (La. 6/3/94), 638 So.2d 218. Consequently, we find

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that the defendant’s sentence, which was at the low end of the sentencing range

applicable, is not excessive. Therefore, these assignments are without merit.

Denial of Bail Pending Final Judgment

For his final assignment, the defendant alleges that the trial court erred in

denying his request for bail, pending a final judgment in his case. The defendant cites

Louisiana Code of Criminal Procedure Article 332, which states in pertinent part:

C. After sentence and until final judgment, bail should be allowed
if a sentence of five years or less is actually imposed. . . .

D. In those instances above in which bail shall be allowed, the
court shall consider whether the release of the person convicted or
sentenced will pose a danger to any other person or the community in
determining the amount of bail.

Furthermore, we note that the defendant asserts that this matter should be remanded

to the trial court with instructions to set bond pending appeal and to impose a lesser

sentence commensurate with the crime committed.

“The issue of whether or not the trial court has improperly refused bail is

neither properly nor timely raised on appeal. The correct procedure is to invoke the

supervisory jurisdiction of the appellate court through La.C.Cr.P. art. 322.” State v.

Young, 532 So.2d 301, 302 (La.App. 3 Cir. 1988) (citing State v. Simmons, 414 So.2d

705 (La.1982)), writs denied, 538 So.2d 588, 589 (La. 1989). The defendant has not

filed a writ invoking the supervisory jurisdiction of this court, but instead raised the

issue for the first time on appeal.

In State v. Gamberella, 633 So.2d 595 (La.App. 1 Cir. 1993), writ denied, 94-

200 (La. 6/24/94), 640 So.2d 1341, the defendant was an AIDS patient who appealed

the trial court’s denial of his request for post-conviction bail pending his appeal. In

affirming his conviction and sentence, the court stated, “[a]s is evident from this case,

once a conviction has been either affirmed or reversed on appeal, the issue of

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post-conviction bail pending appeal is moot.” Id. at 608. Since the defendant

asserted this issue in an appeal instead of a supervisory writ, we find that our decision

in this appeal renders the defendant’s claim moot. Accordingly, this assignment has

no merit.

DECREE

For the foregoing reasons, the four year sentence of the defendant, Neal W.

Insley, for attempted cultivation of marijuana is affirmed.

AFFIRMED.

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