State of Louisiana v. Lynn B. Cornwell

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

08-44

STATE OF LOUISIANA

VERSUS

LYNN B. CORNWELL

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APPEAL FROM THE
THIRTY-SIXTH JUDICIAL DISTRICT COURT
PARISH OF BEAUREGARD, DOCKET NO. CR-1084-2006
HONORABLE HERMAN I. STEWART, DISTRICT JUDGE

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JAMES T. GENOVESE
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Jimmie C. Peters, and
James T. Genovese, Judges.

AFFIRMED.

Mitchel M. Evans II
Post Office Box 28
DeRidder, Louisiana 70634
(337) 462-5225
COUNSEL FOR DEFENDANT/APPELLANT:
Lynn B. Cornwell

David W. Burton
District Attorney - Thirty-sixth Judicial District
ADA Richard F. Blankenship
Post Office Box 99
DeRidder, Louisiana 70634
(337) 463-5578
COUNSEL FOR APPELLEE:
State of Louisiana

GENOVESE, Judge.

On November 27, 2006, the State charged the Defendant, Lynn B. Cornwell,

with three counts of obtaining a controlled dangerous substance through

misrepresentation, fraud, forgery, and deception, in violation of La.R.S.

40:971(B)(1)(b). The Defendant pled guilty to all three charged offenses on August

17, 2007, and the trial court ordered a presentence investigation report.

The trial court adduced evidence at the Defendant’s sentencing hearing on

October 25, 2007. After assigning written reasons, the trial court sentenced the

Defendant to three years at hard labor on each count, directed the sentences to run

concurrently, gave the Defendant credit for time served, fined the Defendant $500.00

on each count for a total of $1,500.00, and ordered the Defendant to pay one cost of

court.

Defendant now appeals his sentences, arguing that his sentences are excessive

and that the trial court failed to adequately consider the sentencing guidelines set

forth in La.Code Crim.P. art. 894.1. The record indicates that the Defendant did not

file a motion to reconsider his sentences. For the following reasons, we affirm the

Defendant’s sentences.

FACTS

The Defendant obtained three different prescriptions for hydrocodone. Before

submitting the three prescriptions to a pharmacist on three different dates, the

Defendant added the number one before the number of pills prescribed, thereby

obtaining 300 pills more than prescribed.

DISCUSSION

The Defendant, in his brief, asserts that his sentences are excessive in view of

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his “endemic drug addiction.” The Defendant also contends that the trial court did

not adequately consider the sentencing guidelines set forth by La.Code Crim.P. art.

894.1.

As previously stated, the record contains no documentation showing that the

Defendant sought reconsideration of his sentences by the trial court.

Failure to make or file a motion to reconsider sentence or to
include a specific ground upon which a motion to reconsider sentence
may be based, including a claim of excessiveness, shall preclude the
state or the defendant from raising an objection to the sentence or from
urging any ground not raised in the motion on appeal or review.

La.Code Crim.P. art. 881.1(E). Despite the procedural bar to reviewing penalties in

situations where the defense failed to seek reconsideration of sentence, this court, in

such cases, has previously reviewed those penalties for bare excessiveness in the

interest of justice. State v. Graves, 01-156 (La.App. 3 Cir. 10/3/01), 798 So.2d 1090,

writ denied, 02-29 (La. 10/14/02), 827 So.2d 420.

Therefore, although the Defendant’s specific claims are barred from review,

this court will consider the bare excessiveness of the penalties imposed by the

sentencing court.

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).

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State v. Barling, 00-1241, 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.

The trial court ordered the Defendant to serve three years at hard labor for each

offense to run concurrently with each other. According to La.R.S. 40:971(B)(2), any

person who violates La.R.S. 40:971(B)(1) “shall be imprisoned, with or without hard

labor, for not more than five years; and, in addition may be sentenced to pay a fine

of not more than five thousand dollars.” Therefore, the Defendant’s sentences fall

within the statutory sentencing parameters and are midrange penalties.

In deciding whether a sentence is shocking or makes no
meaningful contribution to acceptable penal goals, 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 record shows that the trial court considered the nature of the offenses, as

well as the circumstances of the offender, when it individualized the penalty to the

Defendant and the offenses he committed:

SENTENCE WITH WRITTEN REASONS

Lynn B. Cornwell, on August 20, 2007, you entered guilty pleas
to three (3) counts of obtaining a controlled dangerous substance by
fraud. In each instance[,] the controlled dangerous substance you
obtained was hydrocodone. You obtained these drugs by raising the
quantity number of pills on your prescriptions from (30), (30), and (20)

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to (130), (130), and (120). You thereby obtained (380) hydrocodone
pills between August 18, 2006 and September 6, 2006[,] of which 300
were obtained by fraud.

Your guilty pleas were straight up pleas without any
recommendation by the District Attorney’s Office pertaining to sentence
and no commitment of any particular sentence was made by the Judge.
A pre-sentence investigation report was ordered and obtained and a
sentencing hearing was held on October 25, 2007.

[Louisiana Revised Statutes 14:971] B(2) provides for a
maximum sentence in this case of five (5) years imprisonment with or
without hard labor, and a fine of not more than $5,000.00.

You are twenty-nine (29) years old and you have a substantial
criminal history. On October 9, 2003[,] you were sentenced to six (6)
months in the Beauregard Parish Jail[,] which sentence was suspended[;]
this sentence being on misdemeanor charges of issuing worthless
checks. In 2004 while on probation for the worthless checks, you
committed and were convicted of three (3) counts of forgery in
Beauregard Parish. During the same time frame, you committed and
were convicted of a felony forgery charge in Jasper County, Texas. You
were on parole from the Department of Corrections on the Beauregard
forgery charges when you committed the instant offenses.

On August 11, 2004, when I sentenced you for your forgery
conviction, I stated in the written reasons for judgment, “The sentencing
hearing and the PSI revealed that you have a very severe drug
dependency. Your drug habit has included the use of cocaine, crystal
meth, and prescription medications. You told the probation office that[,]
at one time[,] you were using an “eight ball” of cocaine a day. You
estimated your habit was costing anywhere from $80.00 to $300.00 per
day. Although you were employed, it is obvious you were spending
much more than you were earning in maintaining your habit.” Although
you now state that you do not have a drug problem, I have very little
reason to believe there has been any substantial change in your addiction
to drugs.

Your criminal history outweighs the positive factors set forth in
the letter I received from your mother this morning pertaining to your
financial assistance to your family.

You are not a good candidate for probation since you have now
twice committed offenses while on either probation or parole.

According to the PSI[,] you have shown no remorse and[,] in
fact[,] have denied the commission of these offenses to the probation
officer. However, at the sentencing hearing[,] you readily admitted

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[you] committed these crimes.

At arriving at your sentence[,] I have taken into consideration all
factors both aggravating and mitigating as set forth in the sentencing
guidelines provided by R.S. [894.1].

I have concluded that[,] in view of your criminal history[,] the
appropriate sentence for you is that you serve three (3) years with the
Department of Corrections at hard labor on each count, running
concurrently, and with credit for time served. Additionally, you are to
pay a fine of $500.00 on each of the three (3) counts or total fines of
$1,500.00 plus one (1) court cost.

You are hereby advised that pursuant to the provisions of
Louisiana Code of Criminal Procedure Article 930.8, you must file [an]
application for post conviction relief within two (2) years after the
judgment of conviction and the sentence has become final under the
applicable provisions of the law or the right to do so may be lost to you.

Thus, the trial court considered the facts of the case, the nature of the crime, the

Defendant’s past criminal record, the Defendant’s drug addiction, the Defendant’s

work history, the Defendant’s inability to be successful on probation, and the

Defendant’s failure to show remorse for his offenses. Hence, the record clearly

indicates that the trial court particularized and individualized the penalty to the

Defendant and to the offenses committed.

The defendant in State v. Burge, 498 So.2d 196 (La.App. 1 Cir. 1986), received

a two-and-a-half year sentence for his conviction on attempted possession of Valium

through means of fraud. In that case, the defendant complained that his sentence, as

the maximum possible penalty, was excessive. In sentencing Burge, the trial court

found that the defendant was classified as a second felony offender due to a prior

felony drug conviction. The defendant received a suspended sentence for the first

conviction, and he committed the attempted possession of Valium by fraud while on

probation. In sentencing Burge to the maximum penalty, the trial court also

considered Burge’s several arrests for alcohol-related crimes and other controlled

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dangerous substance offenses, as well as his arrest for disturbing the peace and simple

battery subsequent to committing the attempted possession of Valium through fraud.

The trial court held that the defendant needed correctional treatment and that a lesser

sentence would deprecate the seriousness of the crime. Burge’s maximum sentence

was affirmed.

In State v. Sewell, 448 So.2d 755 (La.App. 2 Cir. 1984), the second circuit

affirmed the maximum five-year sentence for possession of a controlled dangerous

substance through fraud. In that case, the defendant was on probation for a prior

felony conviction at the time he committed the offense, and the defendant was also

charged with being a fugitive from justice following a probation violation. Sewell

had four prior misdemeanor convictions, including a drug crime and an offense

“against the person.” The defendant additionally had four prior felony arrests, also

including crimes “against the person,” and another forged prescription accusation.

The second circuit found no abuse of discretion by the trial court in sentencing Sewell

to the maximum five-year sentence.

Considering the Defendant’s criminal history of persistently committing crimes

involving fraud, his record of being unable to successfully complete probation and

parole, his being on parole at the time he committed the three instant offenses, and

the penalties imposed for similar offenses, we do not find the Defendant’s midrange

sentences shocking to one’s sense of justice. Further, we find that the Defendant’s

sentences make a meaningful contribution to acceptable penal goals. Accordingly,

we find that the trial court did not abuse its discretion when it sentenced the

Defendant.

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DISPOSITION

Defendant’s sentences are affirmed in all respects.

AFFIRMED.

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