State of Louisiana v. Demetrius D. Zeno

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

08-639

STATE OF LOUISIANA

VERSUS

DEMETRIUS D. ZENO

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APPEAL FROM THE
THIRTIETH JUDICIAL DISTRICT COURT
PARISH OF VERNON, NO. 73094
HONORABLE VERNON B. CLARK, DISTRICT JUDGE

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OSWALD A. DECUIR
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, and Sylvia R. Cooks and
Oswald A. Decuir, Judges.

CONVICTION AFFIRMED; SENTENCE VACATED
IN PART AND OTHERWISE AFFIRMED.

William E. Tilley
District Attorney
Terry W. Lambright
Assistant District Attorney
P.O. Box 1188
Leesville, LA 71446
(337) 239-2008
Counsel for Plaintiff/Appellee:
State of Louisiana

Peggy J. Sullivan
Louisiana Appellate Project
P. O. Box 2775
Monroe, LA 71207-2775
(318) 387-6124
Counsel for Defendant/Appellant:
Demetrius D. Zeno

DECUIR, Judge.

After an undercover operation, the Defendant, Demetrius D. Zeno, was charged

by bill of information with four counts of distribution of marijuana, in violation of

La.R.S. 40:966; four counts of distribution of cocaine, in violation of La.R.S. 40:967;

and one count of distribution of methamphetamine and 3,4-

methylenedioxymethamphetamine, in violation of La.R.S. 40:966 and 40:967.

Pursuant to a plea bargain, the Defendant entered a plea of guilty to four counts of

distribution of cocaine and one count of distribution of marijuana. The remaining

charges were dismissed. The Defendant was sentenced on each count to serve

concurrent terms of seven years at hard labor and to pay a fine of seven hundred fifty

dollars. The Defendant is now before this court asserting one assignment of error.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for

errors patent on the face of the record. We find error herein in a portion of the

sentence imposed.

The trial court ordered payment of $1,504.00 for “restitution to the Vernon

Parish Narcotics Task Force” without first suspending a portion of the Defendant’s

sentence. Louisiana Code of Criminal Procedure Article 895.1 provides, in pertinent

part:

B. When a court suspends the imposition or the execution of a
sentence and places the defendant on probation, it may in its discretion,
order placed, as a condition of probation, an amount of money to be paid
by the defendant to any or all of the following:

....

(4) To a law enforcement agency for the reasonable costs
incurred in arresting the defendant, in felony cases involving the
distribution of or intent to distribute controlled dangerous substances.

Louisiana law provides no authority allowing the trial court to order payment

of restitution to a law enforcement agency without first suspending the sentence of

incarceration. State v. Clark, 93-1470 (La.App. 3 Cir. 10/5/94), 643 So.2d 463, writ

denied, 94-2715 (La. 2/9/95), 649 So.2d 418. Accordingly, this court must vacate the

restitution portion of the sentence imposed.

ASSIGNMENT OF ERROR

In his sole assignment of error, the Defendant contends the sentences imposed

constitute excessive sentences under the facts and circumstances of this case.

Prior to sentencing, the trial court reviewed the pre-sentence investigation

report and a letter from the Defendant. At the hearing, the sentencing court

considered the factors set forth in La.Code Crim.P. art. 894.1, noting the Defendant’s

age and educational level, that he has children, was employed at the time of his arrest,

and is a first felony offender. The trial court also considered the economic harm to

society, the lack of justification or provocation, the number of offenses, and the

benefit received from the plea bargain. The Defendant argues, however, that the trial

court gave no indication of the weight ascribed to any of these factors and seemed to

give little weight to the number of mitigating circumstances.

The Defendant asserts that although the trial court acknowledged his history

of drug and alcohol abuse for which he has never received treatment, the court did not

consider a sentence which would best provide treatment. The Defendant argues that

his drug problem serves as provocation in this matter and should have been dealt with

in order to rehabilitate him.

In his motion to reconsider sentence, the Defendant argued that his sentences

were excessive, “given due consideration to the facts and circumstances of the case,

the pre-sentence investigation and its results, and any and all other matters at the

disposal of the court at the time said sentence was imposed.” The Defendant did not

set forth any specific arguments in this motion. Thus, all issues raised in brief to this

court, except the Defendant’s claim that his sentences are excessive, were not

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preserved for appellate review and will not be considered. State v. Curtis, 08-99

(La.App. 3 Cir. 6/5/08), 987 So.2d 294.

The Eighth Amendment to the United States Constitution and La.
Const. art. 1, § 20 prohibit the imposition of cruel or excessive
punishment. “ ‘[T]he excessiveness of a sentence becomes a question
of law reviewable under the appellate jurisdiction of this court.’ ” State
v. Dorthey, 623 So.2d 1276, 1280 (La.1993) (quoting State v.
Sepulvado, 367 So.2d 762, 764 (La.1979)). Nevertheless, the trial court
is given wide discretion in imposing a sentence, and, absent a manifest
abuse of that discretion, we will not deem as excessive a sentence
imposed within statutory limits. State v. Pyke, 95-919 (La.App. 3 Cir.
3/6/96), 670 So.2d 713. . . . The only relevant question for us to consider
on review is not whether another sentence would be more appropriate,
but whether the trial court abused its broad discretion in sentencing a
defendant. 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. Carter, 07-1237, p. 32 (La.App. 3 Cir. 4/9/08), 981 So.2d 734, 754 (quoting

State v. Davenport, 07-254 (La.App. 3 Cir. 10/3/07), 967 So.2d 563).

The Defendant pled guilty to one count of distribution of marijuana. The

sentencing range for that offense is imprisonment at hard labor for not less than five

nor more than thirty years and a fine of not more than fifty thousand dollars. La.R.S.

40:966(B)(3). The Defendant was sentenced to serve seven years at hard labor and

to pay a fine of seven hundred fifty dollars.

The Defendant also pled guilty to four counts of distribution of cocaine. The

sentencing range for that offense is 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 a potential fine

of not more than fifty thousand dollars. La.R.S. 40:967(B)(4)(b). The Defendant was

sentenced to serve seven years at hard labor on each count, with the first two years

of each sentence to be served without benefit of probation, parole, or suspension of

sentence, and to pay a fine of seven hundred fifty dollars. These sentences were

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ordered to run concurrently with each other and the sentence imposed for distribution

of marijuana.

Pursuant to the terms of a plea bargain, three counts of distribution of

marijuana and one count of distribution of methamphetamine were dismissed. Each

of the charged offenses was punishable by a term of imprisonment of five to thirty

years. Had the State been able to prove the Defendant’s guilt on all counts, he would

have faced a very long sentence. Thus, he has certainly received a substantial benefit

from his plea bargain. Additionally, the trial court ordered all of the Defendant’s

sentences to be served concurrently.

Similar sentences have been upheld in other cases. In State v. Green, 04-357

(La.App. 5 Cir. 11/16/04), 890 So.2d 6, the fifth circuit upheld sentences of fifteen

years on each of two counts of distribution of marijuana, with the sentences to run

concurrently. In State v. Semien, 06-841 (La.App. 3 Cir. 1/31/07), 948 So.2d 1189,

writ denied, 07-448 (La. 10/12/07), 965 So.2d 397, this court upheld a twelve-year

sentence for a first offender convicted of distribution of cocaine.

Considering the evidence in the record before us and relevant jurisprudence,

as well as the terms of the plea bargain entered into by the Defendant and the State,

we affirm the sentences imposed on the Defendant.

DECREE

Finding patent error in the order of restitution to the Vernon Parish Narcotics

Task Force, we vacate that portion of the sentence imposed. In all other respects, the

conviction and sentence are hereby affirmed.

CONVICTION AFFIRMED; SENTENCE VACATED IN PART AND

OTHERWISE AFFIRMED.

This opinion is NOT DESIGNATED FOR PUBLICATION. Rule 2-16.3, Uniform Rules,
Courts of Appeal.

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