State of Louisiana v. Charles Ray Anderson

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

06-620

STATE OF LOUISIANA

VERSUS

CHARLES RAY ANDERSON

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APPEAL FROM THE
TWENTY-SEVENTH JUDICIAL DISTRICT COURT
PARISH OF ST. LANDRY, NO. 04-K-2270-B
HONORABLE ELLIS J. DAIGLE, DISTRICT JUDGE

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ELIZABETH A. PICKETT
JUDGE

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Court composed of Michael G. Sullivan, Elizabeth A. Pickett, and Billy Howard
Ezell, Judges.

AFFIRMED.

G. Paul Marx
Attorney at Law
P. O. Box 82389
Lafayette, LA 70598-2389
(337) 237-2537
Counsel for Defendant-Appellant:
Charles Ray Anderson

Earl B. Taylor
District Attorney, 27th J.D.C.
P. O. Drawer 1968
Opelousas, LA 70571-1968
(337) 948-3041
Counsel for Plaintiff-Appellee:
State of Louisiana

PICKETT, Judge.

STATEMENT OF FACTS

We were unable to locate a formal entry of a factual basis by the state at the

guilty plea hearing or either of the sentencing hearings. At his guilty plea hearing,

the defendant stated the following in response to the trial court’s questions:

Q. Now, in order to substantiate and support your plea in this matter,
please tell me what happened which resulted in you being charged
with this crime.

A. (No response.)

Q. What occurred, tell me what – what happened and how you got
arrested and the circumstances around the arrest?

A. I was going to get my girlfriend from Baton Rouge, and I was
going through Port Barre, Louisiana, and when the law – when
the cops stopped me, they found some rocks in my car.

Q. All right. And those rocks that they found, they were your rocks?

A. Yes, sir.

Q. And the number of rocks that they found, do you recall how
many?

A. I think twenty-five (25).

Q. Okay. And those rocks, that was rocks of cocaine?

A. Yes, sir.

The bill of information states that the offense took place on or about June 1, 2004.

On July 5, 2005, the State filed a bill of information charging the defendant,

Charles Ray Anderson, with possession of cocaine with the intent to distribute in

violation of La.R.S. 40:967(A)(1). The defendant filed a Written Plea of Not Guilty

in Lieu of Formal Arraignment with Notice of Trial Date and Other Appearance

Dates on August 12, 2005, and a trial date was set.

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However, on October 11, 2005, the defendant moved to withdraw his not guilty

plea and enter a plea of guilty to possession with the intent to distribute cocaine. The

trial court accepted the defendant’s guilty plea and ordered a presentence

investigation.

At a sentencing hearing on March 10, 2006, the defendant indicated that

wished to withdraw his guilty plea because he had understood that as a condition of

his guilty plea, he would be sentenced on certain other charges that were outstanding

at the time and that all sentences would be ordered to be served concurrently.

Defense counsel told the court that he had not previously heard of such an agreement.

The court noted that it was unclear whether the defendant actually had any such

outstanding charges and was hesitant to consider a plea withdrawal request until it

was assured of the existence of other charges. Consequently, the trial court reset the

sentencing hearing in order to give defense counsel an opportunity to determine

whether there were, in fact, outstanding charges which would be affected by such an

agreement.

The defendant was sentenced at a hearing on April 13, 2006, to serve ten years

at hard labor with the first two years of which to be served without benefit of parole,

probation or suspension of sentence, with credit given for time served.

The defendant is now before this court, alleging that the sentence imposed by

the trial court was unconstitutionally excessive. The defendant additionally asserts

that he received ineffective assistance because his trial counsel failed to file a motion

to reconsider his sentence.

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ERRORS PATENT

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

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

there are no errors patent.

ASSIGNMENTS OF ERROR

In the defendant’s first assignment of error, he alleges that his sentence is

unconstitutionally excessive. In his second assignment he alleges that his trial

counsel’s failure to file a motion to reconsider his sentence constituted ineffective

assistance of counsel.

Louisiana Code of Criminal Procedure Article 881.1. states that within thirty

days of the imposition of a sentence, a defendant may make or file a motion to

reconsider that sentence. Generally, the failure to make or file a timely motion to

reconsider precludes a defendant from raising an objection to the sentence on appeal.

State v. Sullivan, 02-360 (La.App. 3 Cir. 10/2/02), 827 So.2d 1260, writs denied, 02-

2931 (La. 4/21/03), 841 So.2d 790; 02-2965 (La. 9/5/03), 852 So.2d 1024. However,

in the instant matter, the defendant argues that trial counsel’s failure to file the motion

to reconsider constituted ineffective assistance and should not bar appellate review

of his sentence.

This court considered a similar issue in State v. Prudhomme, 02-511, p. 16

(La.App. 3 Cir. 10/30/02), 829 So.2d 1166, 1177, writ denied, 02-3230 (La.

10/10/03), 855 So.2d 324, stating:

Failure to file a motion to reconsider the sentence does not
necessarily constitute ineffective assistance of counsel. State v. Texada,
98-1647 (La.App. 3 Cir. 5/5/99); 734 So.2d 854. Nevertheless, the
defendant may have a basis to claim ineffective assistance of counsel
when he can show a reasonable probability, but for defense counsel's
error, his sentence would have been different. Id. Furthermore, in State

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v. Francis, 99-208[, pp. 10-11] (La.App. 3 Cir. 10/6/99); 748 So.2d
484[, 491], writ denied, 00-0544 (La.11/13/00); 773 So.2d 156, this
court stated:

A claim of ineffective assistance of counsel is
properly raised in an application for post conviction relief.
This allows the trial judge an opportunity to order a full
evidentiary hearing on the matter. State v. Burkhalter, 428
So.2d 449 (La.1983). However, where the record contains
evidence sufficient to decide the issue and the issue is
raised by an assignment of error on appeal, it may be
considered. State v. James, 95-962 (La.App. 3 Cir.
2/14/96); 670 So.2d 461.

We find that there is sufficient evidence in the record to address the

defendant’s ineffective assistance claim and determine whether there was a

reasonable probability that the trial court would have reduced his sentence had a

motion to reconsider been filed.

The defendant was convicted of possession with intent to distribute cocaine in

violation of La.R.S. 40:967, which provides in Section B(4)(b) for: “a term of

imprisonment at hard labor for not less than two years nor more than thirty years, with

the first two years of said sentence being without benefit of parole, probation, or

suspension of sentence[.]” In this case, the defendant was sentenced to ten years at

hard labor, the first two of which to be served without benefit of parole, probation or

suspension of sentence. At the defendant’s sentencing hearing, the trial court

articulated its reasons for sentencing as follows:

Considering the input from the defendant, the pre-sentence
investigation, and the guidelines set forth in Louisiana Code of Criminal
Procedure Article 894.1 and other applicable sentencing statutes,
including Revised Statute 40:967 (A) (1), the Court notes the following
factors pertinent to this sentencing: The defendant is a first felony
offender, however, the penalty for this crime is imprisonment at hard
labor for not less than two (2) years, nor more than thirty (30) years with
the first two (2) years being without the benefit of parole, probation or
suspension of sentence. The defendant has several misdemeanor
convictions and has at least one felony charge pending in the 27th

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Judicial District Court. There is an undue risk that during the period of
a suspended sentence of probation the defendant will commit another
crime. The defendant is in need of correctional treatment or a custodial
environment that can be provided most effectively by his commitment
to an institution; a lesser sentence will deprecate the seriousness of the
defendant’s crime, and there are no mitigating circumstances. The
defendant is presently before the Court indicating that he has remorse
for this crime.

The defendant’s main argument on appeal is that he is a first-felony offender

for whom a minimum sentence is appropriate. He also states that the court did not

give sufficient weight to his claim that he had changed his lifestyle since the arrest.

As stated above, the defendant had a number of previous and pending charges

that appeared on his criminal record, and the trial court had to reschedule the initial

sentencing hearing to allow time to determine which charges were actually pending.

The defendant’s counsel stated at the final sentencing hearing that there were charges

for simple criminal damage to property, inciting a riot, aggravated battery and

introduction of contraband into a penal institution. However, defense counsel asked

that the defendant be considered a first offender, stating that those charges had all

either prescribed without having been pursued further, been dropped by the victim,

or had not been billed. Despite his request for first-offender status, defense counsel

acknowledged that the defendant had a pending charge for distribution of cocaine.

The trial judge stated that, in addition to the defendant’s criminal record, he

was considering the presentence investigation and the defendant’s statements as well.

Our review indicates that at the first sentencing hearing, the defendant stated that he

was not guilty. At the second hearing, the defendant told the court that he had “really

changed [his] life when [he] got married” and requested leniency from the court in its

sentencing. His counsel made a substantially similar statement to the court, saying

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that the defendant had advised him that he had “turned his life around” and was

recently married.

Based on the fact that the trial court continued the sentencing hearing, listened

to the defendant’s statements and clearly considered the details of the presentence

report and guidelines of La.Code Crim.P. art. 894.1 in its reasons for judgment, it is

not likely that the trial court would have reduced the defendant’s sentence if a motion

to reconsider had been made.

This court has considered a defendant’s excessive sentence claim despite its

finding that there was not a reasonable probability of a sentence reduction had trial

counsel filed a motion to reconsider. State v. White, 03-1535 (La.App. 3 Cir.

4/28/04), 872 So.2d 588; See also State v. Blake, 03-1465 (La.App. 3 Cir. 5/5/04),

872 So.2d 602 (applying a “two-part inquiry” analysis in which the excessive

sentence determination constituted the second prong).

In State v. Wilturner, 03-719, pp. 5-6 (La.App. 3 Cir. 11/5/03), 858 So.2d 743,

746 (alteration in original), this court provided the following analysis of the law

pertaining to excessive sentence claims:

The standard of review for Louisiana appellate courts in
determining whether a sentence levied upon a particular defendant was
excessive is the manifest-abuse-of-discretion standard. State v. Guzman,
99-1753 (La.5/16/00), 769 So.2d 1158. A trial judge has considerable
latitude in imposing sentences within the constraints provided by law.
State v. Thompson, 02-0333 (La.4/9/03), 842 So.2d 330. However, in
State v. Marshall, 94-0461, p. 24 (La.9/5/95), 660 So.2d 819, 829, the
Louisiana Supreme Court held that “[a] sentence may violate a
defendant’s constitutional right against excessive punishment even if it
is within the statutory limit,” citing State v. Sepulvado, 367 So.2d 762
(La.1979). Furthermore, under both United States and Louisiana law,
a sentence is unconstitutionally excessive if it “(1) makes no measurable
contribution to acceptable goals of punishment and hence is nothing
more than the purposeless and needless imposition of pain and suffering;
or (2) is grossly out of proportion to the severity of the crime.” Coker
v. Georgia, 433 U.S. 584, 592, 97 S.Ct. 2861, 2866, 53 L.Ed.2d 982

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(1977); State v. Handy, 96-2505, p. 1 (La.1/6/97), 686 So.2d 36, 37,
citing State v. Dorthey, 623 So.2d 1276 (La.1993). The Louisiana
Supreme Court has provided a list of several factors that appellate courts
are to consider in ascertaining whether a sentence, by its excessive
duration or severity, is grossly disproportionate to the underlying
offense. State v. Baxley, 94-2982 (La.5/22/95), 656 So.2d 973, citing
State v. Telsee, 425 So.2d 1251, 1253 (La.1983). The appellate court's
analysis of the sentence is cumulative and centers on an amalgam of
relevant factors. Id. Among these factors the supreme court notes, are
“the nature of the offense and the offender, a comparison of the
punishment with sentences imposed for similar crimes, the legislative
purpose behind the punishment, and a comparison of the punishment
provided for this crime in other jurisdictions.” Baxley, 656 So.2d at 980,
citing Telsee, 425 So.2d at 1253-54.

The potential sentencing range in the instant matter is not less than two years

or more than thirty years. The defendant’s ten-year sentence is a midrange sentence.

The sentence is not the most severe nor the most lenient. Although the defendant

points out that he was a first-felony offender, the trial court cited his criminal record

in its reasons for the sentence. The court noted that the defendant had several

previous misdemeanor convictions and at least one other felony charge pending at the

time of sentencing. The trial court stated that it had considered the input from the

defendant as well as the presentence investigation in determining the appropriate

sentence. In its reasons for sentencing, the trial court paid attention to the factors set

forth in La.Code Crim.P. art. 894.1, noting that a lesser sentence would deprecate the

seriousness of the crime, the defendant’s need for a custodial environment and a lack

of mitigating circumstances.

Additionally, a brief review of similar cases, which involve a first-felony

distribution offender with an extensive history of arrests and/or misdemeanor

convictions, indicates that the defendant’s ten-year sentence is not unreasonable or

excessive. See State v. Cooks, 36,613 (La.App. 2 Cir. 12/4/02), 833 So.2d 1034

(seven-year sentence not excessive considering extensive misdemeanor record and

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other factors); State v. Wilkinson, 99-803, p. 5 (La.App. 1 Cir. 2/18/00), 754 So.2d

301, 304 (court noted “lengthy record of arrests and misdemeanor convictions” and

other factors in affirming seven-year sentence).

Consequently, we find that the trial court did not abuse its discretion in

sentencing the defendant to serve ten years at hard labor, the first two years without

the benefit of parole, probation or suspension of sentence. Both of the defendant’s

assignments of error are without merit.

AFFIRMED.

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

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