State of Louisiana v. Thomas J. Charles

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

07-385

STATE OF LOUISIANA

VERSUS

THOMAS J. CHARLES

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APPEAL FROM THE
THIRTY-SIXTH JUDICIAL DISTRICT COURT
PARISH OF BEAUREGARD, NO. CR-247-05
HONORABLE HERMAN I. STEWART JR., DISTRICT JUDGE

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ULYSSES GENE THIBODEAUX
CHIEF JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Marc T. Amy, and
Michael G. Sullivan, Judges.

AFFIRMED.

David W. Burton
District Attorney - Thirty-Sixth Judicial District Court
Richard Alan Morton, Assistant District Attorney
P. O. Box 99
DeRidder, LA 70634
Telephone: (337) 463-5578
COUNSEL FOR:
Plaintiff/Appellee - State of Louisiana

Carey J. Ellis, III
Louisiana Appellate Project
P. O. Box 719
Rayville, LA 71269
Telephone: (318) 728-2043
COUNSEL FOR:
Defendant/Appellant - Thomas J. Charles

THIBODEAUX, Chief Judge.

The Defendant, Thomas J. Charles (Charles), pleaded guilty to

possession of cocaine with intent to distribute, in violation of La.R.S. 40:967, and

four counts of distribution of cocaine, in violation of La.R.S. 40:967. As a result of

a plea agreement, the State dismissed the charge of possession of a firearm while in

possession or during the sale of cocaine, a violation of La.R.S. 14:95(E). On each

count, the trial court sentenced Charles to eight years at hard labor, ordered him to

pay $1,000.00, plus the court costs, and to serve the first two years without benefit

of probation, parole or suspension of sentence.1 Charles appeals, claiming the

sentence to be excessive. For the following reasons, we affirm.

FACTS

At the guilty plea hearing, no factual basis for the offenses to which

Charles pled guilty was articulated. The following facts come from the documents

the State provided in its answer to Charles’s motion for discovery and inspection.

On March 3, 2005, Charles was arrested and charged with possession

with intent to distribute crack cocaine. In August and September of 2005, Charles

sold crack cocaine on four occasions to an undercover agent. Charles was

subsequently arrested and charged with four counts of distribution of cocaine on

January 10, 2006.

ASSIGNMENT OF ERROR

By his sole assignment of error, Charles argues that the total sentence of

eight years at hard labor constituted an excessive sentence. In his Motion to

Reconsider Sentence, Charles did not assert with any specificity the grounds upon

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Charles was sentenced to six months on the misdemeanor charge in docket number
CR-1055-05 to run consecutively to the sentences in docket number CR-247-2005, and to pay a fine
of $500.00.

which he alleged his sentence to be excessive. The motion merely asserted that “[t]he

sentence imposed on the defendant is grossly out of proportion to the crime

committed.” When a defendant fails to assert specific grounds for excessiveness, he

is then limited on appeal to a review of a bare claim of excessiveness. State v. Mims,

619 So.2d 1059 (La.1993), appeal after remand, 626 So.2d 856 (La.App. 2 Cir.

1993), writ denied, 93-2933 (La. 2/11/94), 634 So.2d 373.

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. 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. The relevant
question is whether the trial court abused its broad
sentencing discretion, not whether another sentence might
have been more appropriate.

State v. Barling, 00-1241, 00-1591, 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 (citations omitted).

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

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

[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.
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.” Additionally, it
is within the purview of the trial court to particularize the
sentence because the trial judge “remains in the best

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position to assess the aggravating and mitigating
circumstances presented by each case.”

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 (citations omitted).

Charles pled guilty to one count of possession of cocaine with the intent

to distribute and to four counts of distribution of cocaine, infractions of La.R.S.

40:967.

[The violator] shall be sentenced to 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; and may, in addition, be sentenced to pay a fine
of not more than fifty thousand dollars.

La.R.S. 40:967(B)(4)(b). Thus, Charles faced up to one hundred fifty years at hard

labor, plus a possible total fine of $250,000.00. As such, Charles’s eight year

sentence on each count ordered to run concurrently and the $1,000.00 fine on each

count was significantly less than the possible penalties he could have received.

When sentencing Charles, the trial court considered the pre-sentence

investigation report from the Department of Probation and Parole, witness testimony

from both the State and Charles, letters from Charles’s wife, mother, friends, and

pastor. The trial court also looked at the DVD made at the time of three buys of the

cocaine. The trial court noted Charles’s age, his wife’s pregnancy, and the fact that

these were Charles’s first felony offenses. Nonetheless, the trial court found very

troubling that Charles was already deeply involved in the street-level drug trade with

plans to become a dealer at the higher level. Moreover, Charles was convicted for

three misdemeanors, and he was on misdemeanor probation at the time he committed

the crime of possession of cocaine with intent to distribute. The trial court found

particularly telling that Charles was released on bond for the possession with intent

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to distribute charge when he committed the four distributions of cocaine. After

considering all of the mitigating and aggravating factors, the trial court concluded

that the degree of Charles’s involvement in the drug activity commands the sentence

he received.

Additionally, the charge of illegal carrying of weapons while in

possession or during the sale of cocaine, a violation of La.R.S. 14:95(E), was

dismissed pursuant to a plea agreement. The penalty for such violation is a fine of

not more than ten thousand dollars and imprisonment at hard labor for not less than

five nor more than ten years, without the benefit of probation, parole, or suspension

of sentence. Thus, Charles received a significant benefit in the reduction of his

sentence exposure as a result of his plea agreement. Therefore, in light of that benefit

to Charles, the trial court did not abuse its wide discretion in imposing eight year

sentences to run concurrently. State v. Cook, 95-2784 (La. 5/31/96), 674 So.2d 957,

cert. denied, 519 U.S. 1043, 117 S.Ct. 615 (1996).

ERRORS PATENT

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

for errors patent on the face of the record. After reviewing the record, there are no

errors patent.

CONCLUSION

The Defendant’s sentences are affirmed.

AFFIRMED.

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION. Rule
2-16.3, Uniform Rules—Courts of Appeal.

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