State of Louisiana v. Jessica Dawn Brister

DO NOT PUBLISH

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

08-510

STATE OF LOUISIANA

VERSUS

JESSICA D. BRISTER

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APPEAL FROM THE
THIRTIETH JUDICIAL DISTRICT COURT
PARISH OF VERNON, NO. 72,070
HONORABLE LESTER KEES, DISTRICT JUDGE

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J. DAVID PAINTER
JUDGE

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Court composed of Jimmie C. Peters, Elizabeth A. Pickett, and J. David Painter,
Judges.

AFFIRMED.

Paula C. Marx
P.O. Box 80006
Lafayette, LA 70598
Counsel for Defendant-Appellant:
Jessica D. Brister

Terry W. Lambright
Assistant District Attorney
P.O. Box 1188
Leesville, LA 71446
Counsel for Appellee:
State of Louisiana

PAINTER, Judge

Defendant, Jessica M. Brister, appeals as excessive the sentence imposed in

connection with her plea of guilty to possession of methadone and simple possession

of marijuana.

FACTS

On November 28, 2006, deputies from the Vernon Parish Sheriff’s Office

responded to a call at 215 Goodman Road in Leesville and spoke to Courtney Brister,

Defendant’s daughter. Miss Brister advised that she had been slapped by Defendant,

causing bruising on her face. Defendant was arrested for causing property damage.

After Defendant granted permission for deputies to search the house, Defendant’s

daughter informed the deputies that there was marijuana in the dog house and drugs

in the car. Officers found a zip-lock bag of marijuana in the dog house and a metal

container containing pills, some of which were identified as methadone, in the car.

On April 17, 2007, Defendant was charged by bill of information with

possession of methadone, a second subsequent offense, a violation of La.R.S. 40:982

and 40:967(C), and with possession of marijuana with intent to distribute, a second

subsequent offense, a violation of La.R.S. 40:982 and 40:966(A). On December 5,

2007, Defendant entered a plea of guilty to possession of methadone and to the

reduced charge of simple possession of marijuana. In exchange for her plea, the State

agreed not to seek any enhancement of the penalties.

Defendant was sentenced to serve three years at hard labor for possession of

methadone and six months in the parish jail for possession of marijuana. She was

given credit for time served on each sentence, and the sentences were ordered to run

concurrently to each other and to the sentence imposed in docket number 72,465.1

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Defendant also entered a plea of guilty to theft over $300.00 but less than $500.00 in docket
number 72,465. An appeal involving the sentence imposed for that charge is before this court under

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A Motion to Reconsider Sentence was filed on February 27, 2008, in which

Defendant argued that her sentences were excessive and a manifest abuse of

discretion. She also asserted that the trial court failed to adequately consider

applicable mitigating circumstances in determining the appropriate sentences to be

imposed. The motion was summarily denied the following day. Defendant is now

before this court on appeal asserting that her sentence for possession of methadone

is excessive. For the following reasons, we affirm.

DISCUSSION

Error 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 there is

one error patent.

The bill of information erroneously stated that Defendant was a second

offender pursuant to the provisions set forth in La.R.S. 40:982. See State v. Edwards,

06-850 (La.App. 3 Cir. 6/13/07), 963 So.2d 419. In State v. Skipper, 04-2137 (La.

6/29/05), 906 So.2d 399, the supreme court held that La.R.S. 40:982 should be treated

as a sentencing enhancement provision and should not be set forth in the charging

instrument. However, Defendant failed to file a Motion to Quash or to

contemporaneously object to the charging instrument on this basis; thus, this issue is

precluded from review on appeal. See State v. Ruiz, 06-1755 (La. 4/11/07), 955 So.2d

81.

Excessive Sentence

docket number 08-508.

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In her sole assignment of error, Defendant argues that the sentence for

possession of methadone is excessive. 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, 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.

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.

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In her brief to this court, Defendant complains that at sentencing, the trial court

discussed the economic harm in connection with one dealing drugs despite the fact

that she was found in possession of three methadone pills. Defendant maintains that

the record does not support a finding that she was dealing but that in light of her

admitted substance abuse problem, the quantity suggests that the pills were for

personal use. Defendant, however, did not state this specific ground in her Motion

to Reconsider Sentence, and pursuant to La.Code Crim.P. art. 881.1, she is precluded

from urging it for the first time on appeal. Accordingly, Defendant’s allegation

regarding the court’s consideration of alleged drug dealing 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.

The penalty for possession of methadone is not more than five years, with or

without hard labor, and a fine of not more than $5,000.00. La.R.S. 40:967(C)(2).

Defendant’s three year sentence was sixty percent of the maximum possible sentence,

and she was not fined. Further, Defendant received a significant benefit from her plea

agreement. Prior to her guilty plea, Defendant faced a felony charge of possession

of marijuana with intent to distribute, which carries a penalty of five to thirty years

at hard labor and a fine of not more than $50,000.00. La.R.S. 40:966(B)(3).

Defendant was allowed to plea guilty to the reduced charge of possession of

marijuana, a misdemeanor, and received only six months in the parish jail to run

concurrently with the sentence for possession of methadone and the sentence for theft

over $300.00, but less than $500.00, in docket number 72,465. Additionally,

Defendant was originally charged as a second offender for both offenses.

Convictions as a second offender would have resulted in a substantially harsher

sentence than that which she received. Pursuant to La.R.S. 40:982(A), a person

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convicted of a second or subsequent offense “. . . shall be sentenced to a term of

imprisonment that is twice that otherwise authorized or to payment of a fine that is

twice that otherwise authorized, or both.” Defendant was sentenced for the instant

conviction and the theft conviction in docket number 72,465 at the same time. At

sentencing, the evidence considered by the trial court included a letter written by

Defendant to the court, a certificate of baptism, documents from the office of

community service, and a certificate of participation in a step program. After

reviewing the facts of both offenses and the plea agreement between Defendant and

the State, the trial court noted that there were no grounds that would tend to excuse

or justify Defendant’s conduct, that she had a history of alcohol and drug abuse, and

that she was a second felony offender.

Considering the fact that Defendant did not receive a near maximum sentence

and in light of the benefit received from her plea agreement, the trial court did not

abuse its sentencing discretion. Additionally, Defendant’s sentence is in line with

those imposed on similarly-situated defendants. See State v. Williams, 07-490

(La.App. 3 Cir. 10/31/07), 969 So.2d 744; State v. Morton, 05-137 (La.App. 5 Cir.

7/26/05), 910 So.2d 973. The record indicates that the trial court complied with the

requirements of La.Code Crim.P. art. 894.1. Accordingly, Defendant’s sentence is

affirmed.

CONCLUSION

For these reasons, the sentence imposed on Defendant for possession of

methadone is affirmed.

AFFIRMED.

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