State of Louisiana v. Randall Turner

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

07-809

STATE OF LOUISIANA

VERSUS

RANDALL TURNER

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APPEAL FROM THE
THIRTIETH JUDICIAL DISTRICT COURT
PARISH OF VERNON, NO. 71397-398
HONORABLE VERNON BRUCE CLARK, DISTRICT JUDGE

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ULYSSES GENE THIBODEAUX
CHIEF JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, and
Jimmie C. Peters, Judges.

AFFIRMED.

William E. Tilley
District Attorney - 30th Judicial District Court
Terry W. Lambright
Assistant District Attorney - 3th Judicial District Court
P. O. Box 1188
Leesville, LA 71496
Telephone: (337) 239-2008
COUNSEL FOR:
Plaintiff/Appellee - State of Louisiana

Paula C. Marx
Louisiana Appellate Project
P. O. Box 80006
Lafayette, LA 70598-0006
Telephone: (337) 991-9757
COUNSEL FOR:
Defendant/Appellant - Randall Turner

THIBODEAUX, Chief Judge.

The Defendant, Randall Turner,1 pled guilty to possession of cocaine

with intent to distribute, a violation of La.R.S. 40:987. A resisting arrest charge was

dismissed. The State agreed to recommend a sentence concurrent with any other

sentence the Defendant was serving and further agreed not to file habitual offender

proceedings. He was sentenced to twelve years at hard labor.

He appeals on the grounds of excessiveness and that the trial court failed

to particularize his sentence. We affirm.

FACTS

At the guilty plea hearing, the State made the following recitation of

facts:

BY MR. SEASTRUNK:

Judge, the State contends that back on October the
2nd, 2006, that officers of the Leesville Police Department
were on routine patrol over in the area known as the
“Crossing” area which is characterized as a high crime
drug trafficking area. That at the time they observed this
defendant - engaged in a investigatory stop of this
defendant and while patting him down felt a bag with hard
rock like objects in the bag. They attempted to handcuff
and subdue this defendant and this defendant fled from the
officers. After a short foot pursuit, they captured the -
apprehended the defendant. At the time, they engaged in
a search incident to an arrest and found on him a bag
containing approximately twelve rocks of cocaine. Those
items were subsequently submitted to the Louisiana Crime
Lab where they tested positive for crack cocaine. This
occurred in Vernon Parish.

LAW AND DISCUSSION

Defendant argues that his twelve-year sentence was excessive. Pursuant

to La.R.S. 40:967(B)(4)(b), the sentencing range for possession of cocaine with intent

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At sentencing, the trial court noted that Defendant’s first name is spelled “Randell,” not
“Randall.” However, the latter spelling was used on the bill of information.

to distribute is two to thirty years. He further argues the trial court failed to

particularize the sentence to him. Defendant’s core arguments were raised in his

motion to reconsider sentence.

The analysis for excessive sentence claims is well-settled:

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
(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, 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.

Further, the court has stated, “[t]o aid in such an analysis, the courts have

employed the following three-step analysis: ‘The court should consider three factors

in reviewing a judge's sentencing discretion: 1. the nature of the crime, 2. the nature

and background of the offender, and 3. the sentence imposed for similar crimes by

the same court and other courts.’ State v. Lisotta, 98-648, p. 4 (La.App. 5 Cir.

12/16/98), 726 So.2d 57, 58, writ denied, 99-433 (La. 6/25/99), 745 So.2d 1183.”

State v. Williams, 06-1247, p. 20 (La.App. 3 Cir. 3/7/07), 953 So.2d 91, 105-06.

The first two Lisotta factors were covered in the trial court’s reasons for

sentence:

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BY THE COURT:

All right, ma’am. The court considered the factors
of Article 894.1 of the Code of Criminal Procedure and
found the following were applicable. This is a drug case
and there is always significant economic harm or impact
on society in general when one is dealing in the use or
distribution of illegal drugs. There are no substantial
grounds which would tend to excuse or justify his conduct
nor did he act under strong provocation by anyone. He’s
twenty-two years of age. He’s single. He doesn’t have any
children. He is in good health. He has an employment
history in that he has worked primarily as a cook in the fast
food business. He has a tenth grade education plus one
year at LTI. He does not have a GED. He is classified as
a second felony offender in that the record reflects that he
has a juvenile record in that on July 11th, 2001 in Leesville
City Court he was adjudicated a delinquent for simple
burglary of an inhabited dwelling. He was sent to LTI until
his eighteen birthday. On January 23rd, 2002 in Leesville
City Court, he was convicted of theft and he was sent to
LTI and that was to run concurrent with the simple
burglary offense. On October 6, 2004, - this is an adult
now - in the 30th Judicial District Court he was convicted
of simple burglary, simple criminal damage to property,
misdemeanor grade. On the felony, simple burglary, he
was given a split sentence of seven years Department of
Correction [sic] but thirty months of that was to be served
and forty - he was given forty months probation. When he
was released on a combined parole and probation situation,
that was revoked later due to these charges that he stands
before me on today so his compliance of probation and
parole, both - well, as an adult is, is, is poor and he has the
prior felony grade convictions as a juvenile. The sentence
is as follows: That he serve twelve years at hard labor with
the Louisiana Department of Corrections and pay a fine of
$1,200.00 plus court costs. This sentence is made to run
concurrent with any other sentence he’s subject to and he’ll
be given credit for time served since the date of his arrest
which was October 3rd, 2006. The court advises you that
pursuant to the Code of Criminal Procedure Article 894.1D
your sentence is not subject to diminution for good
behavior due to your prior simple burglary conviction.
Your sentence was not enhanced upon the basis of any
habitual offender proceedings. You’re, further, advised
that under Code of Criminal Procedure Article 914 any
appeal must be taken by written motion or oral motion in
open court made no later than thirty days after the
judgment or ruling from which the appeal is taken. And,
likewise, under Article 930.8 any proceeding for post-

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conviction relief, subject to the exceptions set forth therein,
must be filed within a period of two years from the date
this conviction and sentence becomes final. That’s the
sentence of the court, ma’am.

Thus, although he is young, Defendant has a history of felony-level

offenses. The present crime is his second adult felony, and he committed it while he

was on probation. Regarding the third Lisotta factor, the Defendant’s twelve-year

sentence falls in the lower portion of the two-to-thirty-year range that he faced. In

State v. Rutland, 02-425 (La.App. 3 Cir. 10/2/02), 829 So.2d 603, this court approved

a fifteen-year sentence for possession of cocaine with intent to distribute for a

defendant who was on parole at the time of the offense. Although the trial court and

this court acknowledged the existence of mitigating factors, this court held the

sentence was not excessive, stating, “[i]n this matter, the sentence imposed is not so

grossly disproportionate to the severity of the offense as to shock our sense of justice,

and it does make a measurable contribution to acceptable penal goals.” Id. at 606-07.

In upholding a seventeen and one-half year sentence, the fourth circuit

observed:

In State v. Spencer, 29,993 (La.App. 2 Cir. 1/21/98),
707 So.2d 96, the Second Circuit found that a twenty-year
sentence for distribution of cocaine and possession with the
intent to distribution was not excessive for a defendant
with an extensive criminal history.

In State v. Bonanno, 384 So.2d 355 (La.1980), the
Louisiana Supreme Court found that a twenty-one year
sentence for distribution of cocaine was not excessive for
a defendant who had no prior history of delinquency, but
intended to open a new cocaine market in the Shreveport
area.

State v. Black, 00-2674, p. 4 (La.App. 4 Cir. 12/27/01), 806 So.2d 92, 95.

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The sentence in this case appears to comport with sentences formulated

by other Louisiana courts. Further, considering all three Lisotta factors, we are

unable to say that the trial court abused its broad sentencing discretion.

CONCLUSION

Based on the foregoing, the 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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