State of Louisiana v. Brian Joseph Suire

NOT FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

07-509

STATE OF LOUISIANA

VERSUS

BRIAN JOSEPH SUIRE

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APPEAL FROM THE
SIXTEENTH JUDICIAL DISTRICT COURT
PARISH OF IBERIA, NO. 02-1119
HONORABLE GERARD B. WATTIGNY, PRESIDING
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SYLVIA R. COOKS
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks and
Billy H. Ezell, Judges.

AFFIRMED.

Robert Vines, District Attorney’s Office
300 Iberia Street, Suite 200
New Iberia, LA 70560
(337) 369-4420
COUNSEL FOR APPELLEE:
State of Louisiana

Richard Spears
101 Taylor Street
New Iberia, LA 70562
(337) 367-1960
COUNSEL FOR DEFENDANT-APPELLANT:
Brian Joseph Suire

COOKS, Judge.

On June 21, 2003, narcotics agents with the Iberia Parish Sheriff’s Office

received information that the Defendant, Brian Joseph Suire, was involved in illegal

narcotics activity. Agents went to the Defendant’s residence, knocked on the door

and were granted permission to enter and search the residence. Approximately forty-

two grams of cocaine were found in the residence. A handgun was also found at the

residence. Defendant was arrested and Mirandized, and subsequently confessed to

selling cocaine.

Defendant was charged by bill of information with possession of cocaine

between 28-200 grams, a violation of La.R.S. 40:967(F)(1)(a), and possession of a

firearm while in possession of drugs, a violation of La.R.S. 14:95(E). Defendant

initially pled not guilty but later withdrew that plea and entered a plea of guilty to the

amended charge of possession with intent to distribute cocaine. As part of the plea

agreement, the charge of possession of a firearm was dismissed.

Defendant was sentenced to serve eight years at hard labor, three of which were

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

of sentence and credit for time served. Upon release, Defendant was to be placed on

five years supervised probation under the general conditions of La.Code Crim.P. art

895(A) and the following special conditions: 1. report to the probation office within

forty-eight hours of release; 2. pay a $50.00 monthly supervision fee; 3. pay a fine of

$5,000.00 and cost of court, payable at one-sixtieth each month on probation; 4. pay

cost of prosecution, $1,000.00, payable at one-sixtieth each month on probation; 5.

pay the Iberia Parish Drug Court Fund $1,000.00, payable at one-sixtieth each month

on probation; 6. pay to the Iberia Parish Office Narcotics Unit $500.00, payable at

one-sixtieth each month on probation; 7. pay the Acadiana Crime Lab Fund $500.00,

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payable at one-sixtieth each month on probation; and, 8. do not frequent or go into

any bars or casinos.

A motion to reconsider sentence was denied, and a motion for appeal was

granted. Defendant is now before this court on appeal asserting that the trial court

imposed an excessive sentence. For the following reasons, we affirm Defendant’s

sentence.

ANALYSIS

In his sole assignment of error, Defendant argues the trial court erred in

imposing an excessive sentence. In his motion to reconsider sentence, Defendant did

not assert with specificity the grounds upon which he alleged his sentence is

excessive. The motion merely asserted that he “seeks to have the sentence

reconsidered.” 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).

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. 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 [p.5] (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 [p. 3] (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, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035,

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1042-43, writ denied, 01-838 (La. 2/1/02), 808 So.2d 331.

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

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

[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.7/6/00), 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.

The Defendant pled guilty to possession with intent to distribute cocaine, a

violation of La.R.S. 40:967(B), which reads, in pertinent part:

Except as provided in Subsection F, any person who violates Subsection
A with respect to:

(4)(b) Distribution, dispensing, or possession with
intent to produce, manufacture, distribute, or dispense
cocaine or cocaine base or a mixture or substance
containing cocaine or its analogues as provided in
Schedule II(A)(4) of R.S. 40:964 . . . 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.

Thus, Defendant’s eight-year sentence, with three years suspended, was one-sixth of

the maximum sentence. Also, Defendant was originally charged with possession of

a firearm while in possession of drugs, a violation of La.R.S. 14:95(E), and could

have received a sentence of five to ten years at hard labor, without the benefit of

probation, parole, or suspension of sentence and a fine up to ten thousand dollars.

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At sentencing, the trial court offered into evidence Defendant’s criminal

records check and letters from various people concerning the Defendant’s good

character. When sentencing the Defendant, the trial court stated:

Let’s see, I think Mr. Suire is now thirty-one? All right. The
Court considers the following factors in sentencing Mr. Suire. That he
was born May 3, 1974; that he’s thirty-one years of age; that he has a -
three years college education; he’s a mature individual; he’s an educated
individual; he’s not a person who is ignorant; he is not a person who is
uneducated. He has work experience as a general contractor with a
successful business according to his wife. In this case he was charged
on June 21, 2002, with Possession of Cocaine, more than 28 grams but
less than 200 grams. He was also charged with Possession of a Firearm
while in possession of a controlled dangerous substance. He pled guilty
to a reduced charge of Possession with Intent to Distribute Cocaine, and
dismissal of the possession, I think, and dismissal of the possession
within - Possession of a Firearm while in possession of a controlled
dangerous substance. So, he has obtained substantial benefits by the, his
plea bargain and reduced his exposure from not less than five years nor
more than thirty years to an exposure of not less than two years nor more
than thirty years, the first two years without benefit. On dismissal of the
firearm charge, he has reduced his exposure by not less than five nor
more than ten years without benefits. So, he’s already received a
substantial benefit by his plea bargain.

The facts of the case revealed for the period of time that the case
has been in the court shows that he was in possession of forty-two (42)
grams, actually in possession of (42) grams of cocaine found in his
residence. Also that he confessed that at the time of the Boykin that he
was selling cocaine, which I note today is contradictory to what his wife
told us. I’m not saying she’s incorrect but obviously her husband said
one thing on the record and has told her something different.

I find the defendant is needing, in need of correctional treatment
or a custodial environment that can be provided most effectively by his
commitment to an institution. A lesser sentence than I would give
would deprecate the seriousness of his crime, particularly considering
the amount and value of the cocaine that he had at the time of the arrest.
The offense was a controlled dangerous substance offense and the
offender, in his admission of selling cocaine, would have received
substantial income and resources from his selling activity of this
quantity of cocaine.

As we all know, there’s a tremendous amount of damage that are
done in our communities, tremendous amount of pain and suffering that
are brought upon citizens who become addicted to cocaine and
tremendous amount of suffering by their families for victims who
become subject to addiction for cocaine, and of course persons who

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possess quantities of cocaine and sell quantities of cocaine are
responsible for that suffering in our community.

This is his first felony offense and I give him recognition for that.

There is much testimony by his wife of attempts to cooperate with
the police but the uncooperativeness of the police in accordance with her
testimony and I believe her testimony. Her testimony does show that
she and her father went out and attempted to obtain the information so
they could be informants to the police as a way to help her husband. I
have to note, however, that those efforts which she made and whatever
efforts he made in accordance with her testimony did not result in one
arrest or one conviction for any drug offenses. Therefore, though the
intent may have been good, the result was, the result amounted to
nothing because either the officers were not interested in what they
could produce or they really didn’t produce anything that was of any
value to the officers. So, the fact that Mr. Suire asserts through his wife
that he attempted to cooperate and the fact that she made some efforts
to cooperate, although she was not guilty of any crime, really does not
help him as far as sentencing goes. People have good intentions - we
can’t take away from their sentence Ìcause they had good intentions after
they committed a crime to help police solve other crimes if they don’t
help them solve other crimes. So, I take note of that but I don’t find that
that is persuasive with the Court in considering his sentence.

And as I said it’s hard for the Court to sentence someone who is
working and supporting his family but of course there are many people
who are working, supporting their families who commit crimes that have
to be punished because of the crimes they commit. This is a very serious
crime and one that the Court knows is a problem for our communities in
this modern day. And of course the quantity of cocaine possessed by the
defendant in this case indicates to the Court of course an intent to
distribute that cocaine.

Considering the trial court’s extensive review of the mitigating and aggravating

circumstances in the instant case, in addition to the benefit received by the plea

bargain, we do not find Defendant’s sentence is excessive. Accordingly, Defendant’s

sentence is affirmed.

DECREE

For the foregoing reasons, Defendant’s sentence is affirmed.

AFFIRMED.

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

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