State of Louisiana v. Paul E. Day

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

05-287

STATE OF LOUISIANA

VERSUS

PAUL E. DAY

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APPEAL FROM THE
THIRTY-SIXTH JUDICIAL DISTRICT COURT
PARISH OF BEAUREGARD, NO. CR-217-04
HONORABLE STUART S. KAY, JR., DISTRICT JUDGE

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MARC T. AMY
JUDGE

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Court composed of Sylvia R. Cooks, Oswald A. Decuir, and Marc T. Amy, Judges.

AFFIRMED; REMANDED WITH INSTRUCTIONS.

David W. Burton
District Attorney
36th Judicial District Court
Post Office Box 99
DeRidder, LA 70634
(337) 463-5578
COUNSEL FOR APPELLEE:
State of Louisiana

Paula C. Marx
Louisiana Appellate Project
Post Office Box 80006
Lafayette, LA 70598
(337) 991-9757
COUNSEL FOR DEFENDANT/APPELLANT:
Paul E. Day

AMY, Judge.

The defendant pled guilty to one count of possession of methamphetamine, in

violation of La.R.S. 40:967. He was sentenced to pay a $1,000.00 fine and to serve

sixty months at hard labor, with twelve months of the sentence suspended. The

defendant was further sentenced to five years of supervised probation with special

conditions after his prison term. This sentence is to be served consecutively to a

previous sentence of seven years for possession and distribution of marijuana. The

defendant appeals, alleging that his sentence is excessive. For the following reasons,

we affirm and remand with instructions.

Factual and Procedural Background

Due to the defendant’s guilty plea, no trial testimony was presented concerning

the facts of the offense. Further, the State did not present a factual basis for the

defendant’s plea at the Boykin hearing or at the sentencing hearing. The district court

stated that the factual basis for the conviction is comprised of the State’s answer to

the defendant’s motion for discovery. The offense reports contained therein state that

on November 7, 2003, Beauregard Parish Sheriff’s officers searched the defendant’s

residence and found a small plastic bag containing methamphetamine as well as a

smoking device which had marijuana in it.

The bill of information for the instant offense charged the defendant with

possession of marijuana in violation of La.R.S. 40:966(C) and possession of

methamphetamine in violation of La.R.S. 40:967(C); both charges were also alleged

to be second or subsequent offenses in violation of La.R.S. 40:982. Pursuant to an

agreement with the State, the defendant pled guilty to one count of possession of

methamphetamine and the State dismissed the charges relating to possession of

marijuana and both of the subsequent offense charges. The defendant confirmed at

his guilty plea hearing that the agreement contained no promises regarding the length

of his sentence or the availability of early release. The defendant was subsequently

sentenced to serve sixty months at hard labor, with twelve months of the sentence

suspended. He was further sentenced to five years of supervised probation after his

release with the conditions that he pay a fine of $1,000.00, reimburse the Indigent

Defender Board $40.00, pay a monthly supervision fee of $50.00, pay a $5.00

monthly assessment fee as required by La.Code Crim.P. art. 895.1(F), refrain from

drug and alcohol use, and submit to random drug and alcohol screens at his own

expense. At the time of his arrest, the defendant had been on parole for a 1999

conviction for possession and distribution of marijuana, which had resulted in a seven

year sentence; his sentence for the instant offense was to be served consecutively to

that sentence.

The defendant timely filed a Motion to Reconsider Sentence, which was denied

by the district court. The defendant now appeals, asserting that the district court erred

in imposing a sentence that “is unconstitutionally excessive for this offender and this

offense.”

Discussion

Errors Patent

In accordance with La.Code Crim.P. art. 920, this court reviews all appeals for

errors patent on the face of the record. After reviewing the record, we find there is

one error which requires correction.

As conditions of his probation, the district court ordered the defendant to pay

a $1,000.00 fine, plus costs and fees, as well as a $40.00 reimbursement fee to the

Indigent Defender Board. The district court ordered that all sums be paid pursuant

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to a pay plan set by the defendant’s probation officer. The trial court erred in failing

to establish a payment plan for fees ordered as conditions of probation. See State v.

Fontenot, 01-540 (La.App. 3 Cir. 11/7/01), 799 So.2d 1255; State v. Reynolds, 99-

1847 (La.App. 3 Cir. 6/7/00), 772 So.2d 128. Therefore, we remand the matter and

instruct the district court to specify a payment schedule for the fees ordered as

conditions of the defendant’s probation.

Excessive Sentence

As his sole assignment of error, the defendant alleges that the sentence imposed

by the district court is excessive.

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

Crim.P. art. 881.1. According to Article 881.1, in order to raise any sentencing

claims on appeal, a defendant must file a motion to reconsider the sentence setting

forth the specific grounds upon which the motion is based.1 State v. Mims, 619 So.2d

1059 (La.1993). The defendant need not, however, allege any more specific ground

than that the sentence is excessive in order to preserve a claim of constitutional

excessiveness. Id.

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

excessive because he was “an excellent candidate for rehabilitation in that he has

already submitted to and successfully completed a Drug Rehabilitation Program.”

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Louisiana Code of Criminal Procedure Article 881.1(E) states:

Failure to make or file a motion to reconsider sentence or to include a specific
ground upon which a motion to reconsider sentence may be based, including a claim
of excessiveness, shall preclude the state or the defendant from raising an objection
to the sentence or from urging any ground not raised in the motion on appeal or
review.

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The defendant also alleged in his Motion to Reconsider, as well as in his brief to this

court, that his sentence should have been ordered to run concurrently with the

sentence for his 1999 conviction, and not consecutively to it.

In Mims, the Louisiana Supreme Court 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.

Id. 619 So.2d at 1059. (Emphasis added.)

The defendant alleged in his Motion to Reconsider that his sentence was

excessive due to his successful completion of a drug rehabilitation program. Our

review indicates that the district judge made the following statement to the defendant

at his sentencing hearing, “You have been in in-patient drug programs; yet, you

continue to involve yourself with illegal drug use. I have little hope for your

rehabilitation with such a record.” Consequently, in accordance with Mims, we find

that the district court has already considered the defendant’s allegations, that he has

completed other rehabilitation programs and that he would be “a good candidate” for

similar future programs, in establishing the sentence. Therefore, we decline to

consider that argument separately from our bare excessiveness analysis. We will also

consider his argument regarding the consecutive nature of his sentence in our bare

excessiveness analysis.

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

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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.
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. 2/1/01), 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 stated:

[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. 7/5/00), 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. 2/12/03), 846 So.2d 786, 789, writ denied,

03-562 (La. 5/30/03), 845 So.2d 1061.

The defendant pled guilty to possession of methamphetamine, in violation of

La.R.S. 40:967(C)(2), which states, in pertinent part:

C. Possession. It is unlawful for any person knowingly or
intentionally to possess a controlled dangerous substance as classified
in Schedule II unless such substance was obtained directly or pursuant
to a valid prescription or order from a practitioner, as provided in R.S.
40:978 while acting in the course of his professional practice, or except
as otherwise authorized by this Part.

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(2) 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.

In sentencing the defendant in the instant matter, the district judge stated:

The sentence of the Court is that you be committed to the
Louisiana Department of Corrections and confined at hard labor for a
period of 60 months on the count of possession of methamphetamines
which you plead guilty on September 24, 2004 (sic.)

This sentence shall run consecutive to any sentence previously imposed upon
you in any court which may remain unserved. Specifically, it shall be consecutive to
your prior conviction in the 36th Judicial District Court on July 21st 1999 for illegal
carrying of weapons and distribution of marijuana.

Further, 12 months of this sentence is to be suspended with 48
months of the sentence to be served. Upon your release from prison,
you are placed on five years supervised probation subject to the
following conditions which shall be concurrent with any conditions of
parole:

You are to pay a fine of $1,000., plus costs and fees on a pay plan
set by your probation officer. You are to reimburse the Indigent
Defender Board the sum of $40 for services rendered on a pay plan set
by your probation officer. You are to pay the monthly probation
supervision fee of $50 mandated by statute upon your release from jail
while you are on supervised probation.

You are to pay the $5 monthly assessment required by Article
895.1F of the Louisiana Code of Criminal Procedure. You are to use no
drugs or alcohol during your probation unless those substances are
prescribed for you by a physician, licensed in the United States.

You are to submit to random drug and alcohol screens at your
expense upon request of your probation officer. These screens shall be
of such nature and kind and shall be of such frequency as your probation
officer shall deem appropriate under the circumstances and may include
the drawing of bodily fluids.

I will also recommend you for participation in the Blue Walters
Drug Treatment Program while you are in custody. If you are not
eligible or do not complete this program when you are released on
probation, you are to seek a substance and abuse evaluation from a
resource acceptable to your probation officer of the recommendations of
that evaluator becoming the conditions of your probation.

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This sentence has been imposed after consideration of the pre-
sentence investigation report from the Louisiana Division of Probation
and Parole dated November 11th, 2004.

Further this sentence has been imposed after reviewing the record
in this case, particularly the discovery provided by the State to the
defense which includes the laboratory report and chemical analysis by
the Southwest Louisiana Regional Crime Lab, dated December 2, 2003,
which along with your admission of guilt provides the Court with the
factual basis for this conviction.

You appear before this Court as a second felony offender. This
present conviction is your third drug offense, having been previously
convicted of possession of marijuana in 1991 and distribution of
marijuana in 1998.

Your original charges in this case were two counts of possession
of controlled substances, charged as a second or subsequent offense.
Once these – one of these counts was dismissed, and the charge or plea
was reduced to possession of methamphetamine without the second-
offense enhancement.

You have been given ample consideration in your plea agreement
with the State which did not include any commitment by this Court as
to the length of sentence. You have been both on probation and in
prison in connection with these prior offenses.

You have been in in-patient drug treatment programs; yet, you
continue to involve yourself with illegal drug use. I have little hope for
your rehabilitation with such a record. However, as you have a family
for whom you are responsible, I am providing for a split sentence with
probation upon your release from prison with the hope of finally
assuring that you will remain drug free.

Further, I have considered your willingness to admit your
wrongdoing in this case in imposing this sentence. The sentence is both
fair and just under the circumstances, and it is clearly not excessive
given your history.

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

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

consideration the benefit the defendant obtained through the plea bargain. State v.

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

419 So.2d 475 (La.1982)). This court further stated that the district court “should

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particularly make such considerations where the plea bargain results in a significant

reduction in the defendant’s potential exposure to imprisonment.” Id. at 1101 (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 the present case, the district court stated that it considered the “ample

consideration” that the defendant received in his plea agreement with the State.

In light of the plea agreement, the State agreed to dismiss count one of

possession of marijuana, second offense and the additional sentencing enhancement

for second or subsequent offense for the methamphetamine possession count. The

sentence for second offense possession of marijuana under La.R.S. 40:966(E)(2) is

not more than five years, which could be doubled under the sentence enhancement

of La.R.S. 40:982(A) to ten years. The State also agreed to dismiss the sentence

enhancement under La.R.S. 40:982(A) for the second count of possession of

methamphetamine, which reduced his sentencing exposure from ten years to five

years. See La.R.S. 40:967(C)(2) and La.R.S. 40:982(A). Thus, the defendant

received a great benefit through his plea agreement, which reduced his total

sentencing exposure from twenty years to five years.

In State v. Entwistle, 30,261 (La.App. 2 Cir. 1/21/98), 706 So.2d 1036, the

defendant pled guilty to two charges of possession of methamphetamine. Remaining

charges of possession of marijuana, possession of drug paraphernalia, possession of

methamphetamine and possession of methamphetamine with intent to distribute were

not prosecuted. The defendant was sentenced to five years at hard labor on each

charge, with the terms to run consecutively. The defendant’s criminal history

included convictions for distribution of methamphetamine and possession of

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marijuana in 1990, possession of marijuana in 1996, DWI first in 1986, DWI second

in 1993, and DWI third in 1994. The second circuit held that the trial court had not

abused its discretion in sentencing the defendant and stated, “[f]urther, either because

the second charge arose while defendant was on bond for the first offense, or because

of defendant’s 1990 conviction for the same offense, it was appropriate that the

sentences be served consecutively.” Id. at 1037.

In State v. Simons, 29,544 (La.App. 2 Cir. 5/7/97), 694 So.2d 593, the

defendant, a second felony offender, was sentenced to serve five years at hard labor

for possession of methamphetamine. In affirming the defendant’s sentence, the

second circuit stated:

On this record, we do not find that the district court abused its
broad discretion and the sentence imposed is not unconstitutionally
excessive. This healthy, mature, single, second felony offender presents
no special circumstances. He continued abuse of controlled dangerous
substances while on bail pending further proceedings and his
commission of the present offense while on probation place him within
that class of offenders for whom a maximum sentence is appropriate.
He received a substantial benefit from his plea bargain, including the
prosecution’s agreement not to seek sentence enhancement as a repeat
offender. The sentence imposed does not shock the sense of justice and,
therefore, is not unconstitutionally excessive.

Id. at 595-96.

In the present matter, the district court noted that the defendant is a second

felony offender. Our review of the record indicates that he previously pled guilty to

six counts of distribution of marijuana and one count of possession of marijuana

pursuant to a plea agreement in which the State dismissed charges on three counts of

possession of a firearm while in possession of marijuana. Maximum sentences should

be reserved for the most egregious and blameworthy of offenders. State v. LeBlanc,

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578 So.2d 1036 (La.App. 3 Cir. 1991), writ denied, 620 So.2d 833 (La.1993). In this

instance, the defendant falls within that category.

The defendant also alleges that the district court erred in ordering that his

sentence run consecutively to the seven-year sentence he received in 1999; the

defendant had been released on parole for that sentence at the time of his arrest in the

instant matter. Louisiana Code of Criminal Procedure Article 883 states, in pertinent

part:

If the defendant is convicted of two or more offenses based on the
same act or transaction, or constituting parts of a common scheme or
plan, the terms of imprisonment shall be served concurrently unless the
court expressly directs that some or all be served consecutively. Other
sentences of imprisonment shall be served consecutively unless the court
expressly directs that some or all of them be served concurrently.

The defendant was convicted of only one charge, which was related to drugs

found in the defendant’s home during a search on November 7, 2003. Although the

district judge stated that the defendant’s sentence in the instant matter was to run

consecutively to “any sentence previously imposed . . . in any court,” the district court

made no reference to any other charges arising from the search of the defendant’s

home on November 7, 2003. Further, neither the defendant nor the State has alleged

that any other sentence to be served arose from acts that were a part of a common

scheme or plan to those related to the November 7, 2003 search. Because the district

judge clearly designated that the sentences be served consecutively, as required by

La.Code Crim.P. art. 883, the imposition of consecutive sentences by the trial court

was not an abuse of its sentencing discretion. See State v. Vollm, 04-837 (La.App. 3

Cir. 11/10/04), 887 So.2d 664. This assignment is without merit.

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DECREE

For the foregoing reasons, Paul E. Day’s conviction for possession of

methamphetamine in violation of La.R.S. 40:967 and his sentence to serve sixty

months at hard labor, consecutive to any previous sentence, is affirmed. However,

regarding the conditions of the defendant’s probation following his prison term, we

remand the matter and instruct the district court to specify a payment schedule for the

fees ordered as conditions of the defendant’s probation.

AFFIRMED; REMANDED WITH INSTRUCTIONS.

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