State of Louisiana v. Nicholas Trent Console

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

07-1422

STATE OF LOUISIANA

VERSUS

NICHOLAS TRENT CONSOLE

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APPEAL FROM THE
THIRTY-EIGHTH JUDICIAL DISTRICT COURT,
PARISH OF CAMERON, 124571, 124576, 125998, and 127642
HONORABLE H. WARD FONTENOT, DISTRICT JUDGE

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J. DAVID PAINTER
JUDGE

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Court composed of Marc T. Amy, Billy Howard Ezell, and J. David Painter..

AFFIRMED AND REMANDED.

Jennifer A. Jones, Assistant District Attorney
Thirty-Eighth Judicial District
P.O. Box 280
Cameron, LA 70631
(337) 775-5713
Counsel for State of Louisiana

G. Paul Marx, Attorney at Law
Louisiana Appellate Project
P.O. Box 82389
Lafayette, LA 70598
(337) 237-2537
Counsel for Defendant-Appellant:
Nicholas Trent Console

PAINTER, Judge.

Defendant pled guilty to two counts of possession of methamphetamine and/or

cocaine, possession of stolen property, and possession of testosterone. Defendant

was sentenced as follows: 1) docket number 124571, possession of

methamphetamine, five years at hard labor; 2) docket number 124576, possession of

stolen property, five years at hard labor, to run concurrently to docket number

124571; 3) docket number 125998, possession of methamphetamine and cocaine,

five years at hard labor, to run consecutively to docket numbers 124571 and 124576

and concurrently with docket number 127642, suspended, with five years probation,

effective upon release from the first two sentences, and a $2,000.00 fine and court

costs over the probation period; and, 4) docket number 127642, possession of

testosterone, five years at hard labor, also to run consecutively to docket numbers

124571 and 124576 and concurrently with docket number 125998, suspended, with

five hears probation. Defendant is now before this court on appeal, asserting that his

total sentence of ten years is excessive. For the following reasons, we affirm his

sentences but remand the matter to the trial court for establishment of a payment

schedule for the fine and court costs imposed.

FACTUAL AND PROCEDURAL BACKGROUND

Defendant, Nicholas Trent Console, was charged in four bills of information

on three separate dates. On June 29, 2006, he was charged in docket number 124571,

with possession of methamphetamine, in violation of La.R.S. 40:967(C), and in

docket number 124576, with possession of stolen property, in violation of La.R.S.

14:69. On October 12, 2006, Defendant was charged in docket number 125998, with

possession of methamphetamine and cocaine, in violation of La.R.S. 40:967(C).

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Finally, on March 12, 2007, he was charged in docket number 127642, with

possession of testosterone, in violation of La.R.S. 40:968(C).

On March 7, 2007, Defendant pled guilty to the charges in docket numbers

124571, 124576, and 125998, two counts of possession of methamphetamine and/or

cocaine and possession of stolen property. The minutes of the guilty plea indicate

that charges in unrelated docket numbers 124574, 124575 and 124577-79 were

dismissed upon the payment of damages of $542.82 by Monday, March 12, 2007. On

March 12, 2007, Defendant pled guilty to the charge in docket number 127642,

possession of testosterone.

Defendant was sentenced on May 22, 2007, in all four dockets, as follows: 1)

docket number 124571, possession of methamphetamine, five years at hard labor; 2)

docket number 124576, possession of stolen property, five years at hard labor, to run

concurrently to docket number 124571; 3) docket number 125998, possession of

methamphetamine and cocaine, five years at hard labor, to run consecutively to

docket numbers 124571 and 124576 and concurrently with docket number 127642,

suspended, with five years probation, effective upon release from the first two

sentences, and a $2,000.00 fine and court costs over the probation period; and, 4)

docket number 127642, possession of testosterone, five years at hard labor, also to

run consecutively to docket numbers 124571 and 124576 and concurrently with

docket number 125998, suspended, with five years probation. The State’s Motion to

Dismiss all remaining charges was granted. A Motion to Reconsider Sentence was

filed on June 14, 2007, and subsequently denied without a hearing. Defendant now

appeals, asserting that his total sentence of ten years is excessive.

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DISCUSSION

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, we find one error

patent in that the trial court failed to establish a determinate payment plan for the fine

and court costs ordered as conditions of probation.

“This court has found error patent when the trial court fails to establish a

payment plan for fees ordered as conditions of probation.” State v. Theriot, 04-897,

04-898, p. 7 (La.App. 3 Cir. 2/9/05), 893 So.2d 1016, 1021. In this case, as a

condition of probation for the sentence imposed on the conviction of possession of

methamphetamine and cocaine, docket number 125998, the trial court ordered that

Defendant pay a fine of $2,000.00 “plus the court costs over his period of probation.”

However, the trial court failed to set a monthly payment amount. Therefore, pursuant

to State v. Stevens, 06-818, p. 3 (La.App. 3 Cir. 1/31/07), 949 So.2d 597, 600,

wherein we noted that the payment plan “may be determined by the trial court or

formulated by Probation and Parole and approved by the trial court[,]” we find that

the trial court’s order is insufficient to constitute a determinate payment plan.

Consequently, we remand the case to the trial court with instructions to establish a

payment schedule for the fine and court costs ordered as conditions of probation;

either or both of these amounts may be determined by the trial court or formulated by

Probation and Parole and approved by the trial court.

Excessiveness of Sentence

In his sole assignment of error, Defendant argues that his ten-year sentence for

drug possession is excessive because the trial court did not consider the needs of his

family for support, his employment and other conduct since his arrest, his being the

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caregiver for his grandmother, his eligibility for a suspended sentence, and his

“immediate confession and cooperation in the case.” Defendant also maintains that

the trial court should not have considered his unsuccessful substance abuse treatment

as an aggravating factor.

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 (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.

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.

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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.

Defendant faced a total possible sentence of twenty-five years and a total

possible fine of $18,000.00. First, the penalty for possession of methamphetamine

and/or cocaine is imprisonment for not more than five years, with or without hard

labor, and a possible fine of not more than $5,000.00. La.R.S. 40:967(C)(2). The trial

court did not impose a ten-year sentence for this offense in docket number 124571, as

alleged by Defendant, but instead, ordered a sentence of five years, the maximum

possible jail time for this offense. Defendant was spared a possible $5,000.00 fine.

Further, Defendant’s five-year sentence for possession of methamphetamine and

cocaine in docket number 125998, which was ordered to run consecutively to docket

number 124571, was suspended; thus, Defendant will not be subjected to additional

jail time unless he violates his probation. Defendant, however, was ordered to pay

$2,000.00 and court costs but was not required to begin payment until his release on

probation.

The penalty for possession of stolen property valued at $500.00 or more is up

to ten years imprisonment, with or without hard labor, or a possible fine of not more

than $3,000.00, or both. La.R.S. 14:69. Thus, Defendant’s five-year hard labor

sentence was half of the possible maximum sentence he could have received for this

offense, and he was not fined. Further, the sentence was ordered to run concurrently

to the five-year sentence in docket number 124571, which did not result in any

additional jail time.

Defendant’s conviction for possession of testosterone carries a sentence of not

more than five years, with or without hard labor, and a possible fine of not more than

$5,000.00. La.R.S. 40:968(C). Thus, Defendant received the maximum possible

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sentence. The sentence, however, was ordered to run consecutively to his sentence in

docket number 124571 and was suspended. Thus, the sentence will not result in

additional jail time unless Defendant violates his probation. Further, Defendant was

not fined.

Lastly, Defendant received a significant benefit from his plea agreement.

Although the actual number of offenses that were dismissed is not exactly clear from

the record, the trial court observed from Defendant’s pre-sentence investigation report

that a large number of charges had been dropped. The State indicates in its brief that

thirty-six pending charges were dismissed for his guilty pleas. The court minutes

dated December 19, 2006 reflect the following pending charges in docket numbers

124552-124579, which include the charges in the instant case, with the exception of

docket number 125998: twelve counts of dogfighting, two counts of cruelty to

animals, possession of marijuana, four counts of possession of a controlled dangerous

substance, possession of drug paraphernalia, theft, simple criminal damage to

property, possession of stolen things, two counts of theft, and simple criminal damage

to property. Considering same, Defendant faced a significant amount of jail time and

possible fines as a result of his criminal activity.

In Defendant’s Motion to Reconsider Sentence, he argues that the trial court

failed to consider the aggravating and mitigating circumstances under the sentencing

guidelines set forth in La.Code Crim.P. art. 894.1. In mitigation, Defendant stressed

the following: 1) he has two children and was paying child support; 2) he has

maintained gainful employment and been a productive citizen since his arrest; 3) he

was living with and caring for his elderly maternal grandmother; 4) no weapons were

used in the commission of the offenses; 5) his conduct did not cause or threaten

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serious harm; 6) he was eligible for probation and/or home incarceration; and 7) he has

been a lifelong resident of Louisiana.

On appeal, as noted above, Defendant incorrectly states that his sentence takes

him “out of society for 10 years,” rather than five. In addition to reasserting some of

the claims set forth in his Motion to Reconsider Sentence, Defendant now complains

that the trial court did not address his drug addiction and that it should not have

considered Defendant’s unsuccessful substance abuse treatment as an aggravating

circumstance. However, pursuant to La.Code Crim.P. art. 881.1, Defendant’s failure

to include this specific ground in his Motion to Reconsider Sentence precludes him

from urging same for the first time on appeal. Accordingly, Defendant’s new

allegation is not properly before this court and will not be considered herein. See State

v. Grogan, 00-1800 (La.App. 3 Cir. 5/2/01), 786 So.2d 862.

At sentencing, defense counsel told the trial court that Defendant was living

with and caring for his eighty-one year old grandmother, who along with his recently

deceased grandfather, had raised him since the age of seven. The trial court was

informed of Defendant’s employment status, earning $22.50 an hour, and that he was

paying $450.00 in child support to his ex-wife. It was also reported to the trial court

that Defendant had participated in drug rehabilitation in the previous year and was

eligible for probation. The trial court subsequently sentenced Defendant, setting forth

the following reasons for same:

THE COURT:

The Court has gone over a very thorough pre-sentence
investigation. Some of this information had come to me simply because
Mr. Console has been a regular appearer before the Court on its criminal
docket. And I’ve been the judge who’s presided over all his appearances.
I say it on one hand, but then, on the other hand his felony, was that out
of Cameron Parish or was that out of somewhere --

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MS. JONES:

No, sir. That was in Calcasieu.

THE COURT:

That was out of Calcasieu; that’s right. But he appeared before
this Court on three felonies and they are serious felonies.

He exhibits a history of addictive behavior and although you tell
the Court that he has had some therapy, his attempts at outpatient
treatment for his substance abuse has not been successful.

The large number of charges which are being dropped in
connection with this plea indicate a pattern of criminal behavior, a much
broader pattern of criminal behavior than just the three charges would
indicate.

The Court feels like he is a good candidate for custodial
environment, that it would be good for him and the community.

The report says that he owes child support but the mother of the
child accepts less. It doesn’t say how much less she has to accept. So,
the Court finds that there’s not that much impact to innocent persons for
his incarceration.

These charges are for some of the more dangerous drugs,
amphetamine -- methamphetamines and cocaine are destructive drugs
and any lesser sentence would diminish the importance -- the severity of
the crime.

The defendant also exhibits a high risk of recidivism.

Considering the information relayed to the trial court at sentencing and the

information noted by the trial court in Defendant’s pre-sentence investigation report,

we find that the trial court adequately considered both the mitigating and aggravating

circumstances in the instant case. Additionally, Defendant received a significant

benefit from his plea bargain. Accordingly, we find that Defendant’s total sentence

of five years is not excessive and is, therefore, affirmed.

DECREE

For all of the foregoing reasons, Defendant’s sentences are affirmed. However,

the matter is remanded to the trial court with instructions to establish a payment

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schedule for the fine and court costs imposed pursuant to State v. Stevens, 06-818

(La.App. 3 Cir. 1/31/07), 949 So.2d 597.

AFFIRMED AND REMANDED.

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