State of Louisiana v. Robert Wagner, Jr.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

07-128

STATE OF LOUISIANA

VERSUS

ROBERT WAGNER, JR.

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APPEAL FROM THE
SIXTEENTH JUDICIAL DISTRICT COURT
PARISH OF IBERIA, NO. 04-1730
HONORABLE LORI A. LANDRY, DISTRICT JUDGE

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ULYSSES GENE THIBODEAUX
CHIEF JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders, and
Marc T. Amy, Judges.

AFFIRMED AND REMANDED WITH
INSTRUCTIONS.

Honorable J. Phillip Haney
District Attorney, 16th Judicial District Court
300 Iberia Street - Suite 200
New Iberia, LA 70560
COUNSEL FOR:
Plaintiff/Appellee - State of Louisiana

Jeffrey J. Trosclair
Assistant District Attorney, 16th Judicial District Court
St. Mary Parish Courthouse
Franklin, LA 70538
Telephone: (337) 828-4100
COUNSEL FOR:
Plaintiff/Appellee - State of Louisiana

Sherry Watters
Louisiana Appellate Project
P. O. Box 58769
New Orleans, LA 70158-8769
Telephone: (504) 723-0284
COUNSEL FOR:
Defendant/Appellant - Robert Wagner, Jr.

THIBODEAUX, Chief Judge.

Defendant, Robert Wagner Jr., pled guilty to one count of possession

with intent to distribute cocaine. As part of Defendant’s plea agreement, all ancillary

charges against him were dismissed. Defendant was sentenced to twelve years

imprisonment at hard labor; all but six years were suspended. Defendant’s sentence

was to run concurrently with another sentence in a separate docket number.

Defendant was also sentenced to five years of probation, fined $2,000, and ordered

to pay a fee of $2,000 to the 16th Judicial District Court ACL Crime Lab Fund for the

cost of the investigation. He appeals on the basis of excessiveness of sentence and

failure of the trial court to properly consider mitigating factors. These claims are

meritless. We, therefore, affirm. We remand to the trial court for the imposition of

a specific payment plan for the payment of fines and costs, including fees to the 16th

Judicial District Court ACL Crime Lab Fund. The plan may either be determined by

the trial court or by Probation and Parole, with approval by the trial court. See State

v. Stevens, 06-818 (La.App. 3 Cir. 1/31/07), 949 So.2d 597.

ISSUES

The issues before this court are:

(1) whether the trial court failed to consider, as a mitigating
factor, the small amount of cocaine in Defendant’s
possession?

2) whether the trial court imposed an unconstitutionally
excessive sentence on Defendant?

FACTUAL/PROCEDURAL BACKGROUND

On September 9, 2004, Robert Wagner Jr. was arrested for possession

with intent to distribute cocaine. During this incident, Defendant kicked out the

window of the patrol car and escaped. He was later found hiding in his parents’

home, at which time police found 0.96 grams of cocaine. Prior to this incident,

Defendant had been released on bond following other drug-related offenses.

As part of his plea agreement, the State agreed to dismiss all ancillary

charges against Defendant. On November 15, 2005, Defendant withdrew his former

plea of not guilty and entered a plea of guilty to one count of possession with the

intent to distribute cocaine. On August 24, 2006, Defendant was sentenced to twelve

years imprisonment, with hard labor; all but six years were suspended. Defendant’s

sentence was to run concurrently with another sentence for possession of testosterone

and possession of nandrolone in docket number 05-1805. In addition, Defendant was

ordered to pay a fine of $2,000 and a fee of $2,000 to the 16th Judicial District Court

ACL Crime Lab Fund for the cost of the investigation. Upon release from

incarceration, Defendant was to be placed on probation for five years. After

sentencing, Defendant filed a Motion to Reconsider, arguing that the trial court had

failed to consider the small amounts of drugs involved and that the sentence imposed

on Defendant was excessive. The trial court denied Defendant’s Motion to

Reconsider, and he now appeals.

LAW AND DISCUSSION

Defendant raises two issues on appeal. First, that the trial court imposed

an unconstitutionally excessive sentence on him, and second, that the trial court failed

to consider the mitigating factors under La.Code Crim.P. art. 894.1. Upon review,

an appellate court may not set aside a sentence as excessive unless there was a

manifest abuse of discretion by the trial judge. State v. Lanclos, 419 So.2d 475

(La.1982). Further, when reviewing excessive sentence claims, this court has set

forth the following standard:

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The Eight Amendment to the United States
Constitution and La.Const. art. 1, § 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)). Nevertheless, 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. Davenport, 07-254, pp. 3-4 (La.App. 3 Cir. 10/3/07), 967 So.2d 563, 565.

Excessiveness of Sentence

To decide whether a sentence shocks the sense of justice or makes no

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

[A]n 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. 2/12/03), 846 So.2d 786, 789, writ denied,

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

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Defendant pled guilty to one count of possession with the intent to

distribute cocaine which, pursuant to La.R.S. 40:967, carries a sentence of

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

the first two years to be served without benefit of probation, parole, or suspension of

sentence. In addition to imprisonment, the court may impose a fine of up to $50,000.

Here, Defendant benefitted under his plea agreement with the State. First, rather than

face multiple charges, the State dismissed all of Defendant’s ancillary charges.

Second, Defendant will serve his sentence concurrently with his sentence under

docket number 05-1805. Further, the trial court suspended all but six years of

Defendant’s sentence. Also, Defendant was fined only $2,000 and ordered to pay

another $2,000 in restitution.

Defendant argues that the trial court’s sentence is an unconstitutionally

excessive sentence. However, this offense was committed while Defendant was out

on bond following his arrest for the offenses charged in docket number 04-288, three

counts of distribution of cocaine. Additionally, after the Defendant was released on

bond for the current offense, he was subsequently charged in docket number 05-1805

with possession of testosterone and possession of nandrolone. Considering

Defendant’s propensity to commit crime and his benefit under his plea agreement, we

conclude that Defendant’s sentence for possession with the intent to distribute

cocaine is not excessive.

In his appeal, Defendant next raises an issue that was not argued before,

or ruled upon by, the trial court. Specifically, Defendant argues that the trial court

violated the rules on sentencing enhancement established in Apprendi v. New Jersey,

530 U.S. 466 (2000) and Blakely v. Washington, 542 U.S. 961 (2004). Defendant

contends that his sentence was imposed based on mistakes of fact that were not

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admitted nor proven at trial. We find that Defendant failed to raise this issue before

the trial court. However, we exercise our discretion under Uniform Rules—Courts

of Appeal, Rule 1-3 and consider the issue. Nevertheless, we find this challenge to

be meritless. Clearly, Defendant’s sentence was not enhanced because it was not

beyond the statutory maximum sentence. In Apprendi, the Supreme Court held that

enhancing a sentence beyond the statutory maximum is unconstitutional if the facts

involved have not been proven beyond a reasonable doubt. Apprendi, 530 U.S. 466.

Moreover, the trial court did not amend the original sentence imposed through any

sort of enhancement.

Mitigating Factors

Defendant asserts that the trial court erred when it failed to consider, as

a mitigating factor, the amount of drugs he possessed.

The trial judge is not required to list every
aggravating or mitigating circumstance so long as the
record reflects that he adequately considered the guidelines
of the article. State v. Smith, 433 So.2d 688 (La.1983);
State v. Dunn, 30,767 (La.App. 2d Cir. 6/24/98), 715 So.2d
641. The articulation of the factual basis for a sentence is
the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical
compliance with its provisions. The important elements,
such as Defendant’s personal history, prior criminal record,
seriousness of offense and the likelihood of rehabilitation,
were considered. See State v. Jones, 398 So.2d 1049
(La.1981); State v. Haley, 38,258 (La.App. 2d Cir.
4/22/04), 873 So.2d 747, writ denied, 04-2606 (La.
6/24/05), 904 So.2d 728. There is no requirement that
specific matters be given any particular weight at
sentencing. State v. Jones, 33,111 (La.App. 2d Cir.
3/1/00), 754 So.2d 392, writ denied, 00-1467 (La. 2/2/01),
783 So.2d 385.

State v. Shirley, 41,608, p. 4 (La.App. 2 Cir. 12/13/06), 945 So.2d 267, 270, writ

denied, 07-1394 (La. 4/4/08), 978 So.2d 321.

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Since there is no requirement that the amount of drugs involved in a drug

transaction be given any particular weight, the trial court did not err when it failed to

consider that Defendant sold small amounts of cocaine as a mitigating factor.

At sentencing, the trial court considered letters from Defendant’s

employer, pastor, and girlfriend, which attested to his hard work and his ability to

reform. The trial court also reviewed Defendant’s certified criminal history and

considered his behavior while awaiting sentencing. Next, the trial court heard the

testimony of Defendant’s mother, Godmother, and girlfriend, who testified that

Defendant is a good person who got mixed up with the wrong crowd. On cross-

examination, the State introduced information about Defendant’s recent criminal

activity. Defendant also provided the trial court with letters requesting leniency,

claiming he had learned his lesson. Yet, prior to sentencing, Defendant was released

on bail twice and he was subsequently charged with this, and another drug related

offense.

Following the witness testimony, the trial court stated it did not take drug

dealing lightly and it was “of no moment” that Defendant was caught with small

amounts of drugs. Further, despite the fact that Defendant did not have a felony

record, he did have a fairly lengthy criminal history. The trial court also considered

Defendant’s benefit under his plea agreement. After considering all of this evidence,

the trial court imposed its sentence upon Defendant. The trial court did not abuse its

discretion in imposing its sentence.

Errors Patent

There are patent errors regarding the payment of the fine, the court costs,

and investigation costs imposed as conditions of the Defendant’s probation. At the

sentencing hearing, the trial court stated, in pertinent part:

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Under Docket # 04-1730, you will pay a fine of two
thousand dollars, plus court costs, within twenty-four
months of signing up for probation.

....

During the period of time you are on probation with
me you are going to pay to the 16th JDC ACL, Crime Lab
Fund, under Docket # 04-228, you will pay them one
thousand dollars for the cost of investigation.

Under 04-1730, you will pay them two thousand
dollars for the cost of investigation.

When the fines and costs are imposed as a condition of probation, but

the trial court is silent as to the mode of payment or the trial court attempts to

establish a payment plan, this court has required a specific payment plan be

established. See State v. Theriot, 04-897 (La.App. 3 Cir. 2/9/05), 893 So.2d 1016

(fine, court costs, cost of prosecution); State v. Fuslier, 07-572 (La.App. 3 Cir.

10/31/07), 970 So.2d 83 (fine and costs); and, State v. Console, 07-1422 (La.App. 3

Cir. 4/30/08), 981 So.2d 875 (fine and court costs).

We view this procedure as no different from payment plans dealing with

payment for restitution. See State v. Dean, 99-475 (La.App. 3 Cir. 11/3/99), 748

So.2d 57, writ denied, 99-3413 (La. 5/26/00), 762 So.2d 1101 (restitution only); State

v. Reynolds, 99-1847 (La.App. 3 Cir. 6/7/00), 772 So.2d 128 (restitution, fine, and

costs); State v. Stevens, 06-818 (La.App. 3 Cir. 1/31/07), 949 So.2d 597 (restitution,

fine, court costs, and reimbursement to Indigent Defender Board); and, State v.

Fontenot, 01-540 (La.App. 3 Cir. 11/7/01), 799 So.2d 1255 (restitution, court costs

and payments to victim’s fund, Indigent Defender Board, and District Attorney).

Similarly, the payment to the crime lab fund to be paid during the

probationary period was an insufficient payment plan, requiring remand to the trial

court for establishment of a payment plan. The plan may either be determined by the

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trial court or by Probation and Parole, with approval by the trial court. See Stevens,

949 So.2d 597.

CONCLUSION

This court cannot say that the trial court manifestly abused its discretion

when sentencing Defendant. We do not find that the trial court imposed an excessive

sentence upon Defendant since the trial court did not have to give any particular

weight to the amount of drugs and, further, Defendant’s sentence was within the

guidelines of the law. Because of the aforementioned reasons, Defendant’s sentence

is affirmed. We remand to the trial court for the imposition of a specific payment

plan for the payment of fines and costs, including fees to the 16th Judicial District

Court ACL Crime Lab Fund. The plan may either be determined by the trial court or

by Probation and Parole, with approval by the trial court.

AFFIRMED AND REMANDED WITH INSTRUCTIONS.

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