State of Louisiana v. Brenda Langlinais

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

09-422

STATE OF LOUISIANA

VERSUS

BRENDA LANGLINAIS

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APPEAL FROM THE
SIXTEENTH JUDICIAL DISTRICT COURT
PARISH OF IBERIA, NO. 07-2426
HONORABLE LORI ANN LANDRY, DISTRICT JUDGE

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JOHN D. SAUNDERS
JUDGE

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Court composed of Sylvia R. Cooks, John D. Saunders, and Shannon J. Gremillion,
Judges.

AFFIRMED IN PART, AMENDED IN PART.

Mary Constance Hanes
Residential Address
450 Lowerline Street
New Orleans, LA 70118
(504) 866-6652
Counsel for Defendant/Appellant:
Brenda Langlinais

Hon. J. Phillip Haney
District Attorney
300 Iberia Street, Suite 200
New Iberia, LA 70560
(337) 369-4420
Counsel for Plaintiff/Appellee:
State of Louisiana

SAUNDERS, Judge.

FACTS AND PROCEDURAL HISTORY:

On August 3, 2007, agents with the Iberia Parish Sheriff’s Department received

information that a large quantity of narcotics was located at a residence occupied by

the Defendant, Brenda Langlinais. The homeowner, the Defendant’s sister, consented

to a search of the residence. During the search, agents witnessed the Defendant pick

up an object on a nightstand and place it in the waistband of her pants. The object,

a black plastic container, housed ten grams of crack cocaine, six large and nine small

rocks. Also, approximately 590 tablets of Lortab (dihydrocodeinone) were seized in

the search and neither the Defendant nor her sister, had a legitimate prescription for

the medication.

On December 5, 2007, the Defendant was charged by bill of information as

follows: count one - possession with intent to distribute a schedule III controlled

dangerous substance, dihydrocodeinone, a violation of La.R.S. 40:968(A)(1); count

two - possession with intent to distribute a schedule II controlled dangerous

substance, cocaine, a violation of La.R.S. 40:967(A)(1); and, count three– possession

of a firearm while in possession of dihydrocodeinone and cocaine, a violation of

La.R.S. 14:95(E). Pursuant to a plea agreement, the Defendant entered a plea of no

contest to counts one and two, and the remaining count was dismissed.

The Defendant was sentenced on June 25, 2008, to serve five years on count

one, and to ten years on count two, with five years suspended. The sentences were

ordered to run concurrently. The trial court also ordered five years of supervised

probation upon the Defendant’s release, along with special conditions of probation.

The special conditions of probation are as follows:

1) Report to the probation office within twenty-four (24) hours of
release;

2) report monthly and pay a $56.00 monthly supervision fee;

3) on the charge of Possession With Intent to Distribute Cocaine,
pay a fine of $2,000.00 and on the charge of Possession with
Intent to Distribute Dihydrocodeinone, pay a fine of $2,000.00;
also pay cost of court; Fine and court cost is to be paid within two
(2) years;

4) pay the cost of prosecution in the amount of $100.00 within
two (2) years of signing up;

5) reimburse the Indigent Defender Board $500.00 for services
rendered to be paid within two (2) years;

6) pay $500.00 for each charge to the 16th Judicial Acadiana
Crime Lab Fund within three (3) years;

7) pay $100.00 to the Clerk of Court to defray the filing cost
within sixty (60) days of signing up;

8) perform 100 eight (8) hour days of community service;

9) within seven (7) days of signing up, attend, pay for and
successfully complete an approved substance abuse program and
evaluation and follow any recommendation for treatment;

10) remain drug and alcohol free; stay out of bars, casinos and
away from illicit drug and substance abusers;

11) attend five (5) AA or NA meetings a week while on
probation;

12) medical condition is to be taken care of at Department of
Corrections Facility

A motion to reconsider the Defendant’s sentences was filed by her public

defender on July 22, 2008, and denied on July 25, 2008. A subsequent motion to

reconsider was filed by private counsel on July 23, 2008, and denied as moot on July

28, 2008.

The Defendant is now before this court on appeal, asserting that her sentences

and the fines and special conditions of probation are excessive.

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ASSIGNMENT OF ERROR:

The sentence of five (5) years for possession with intent to
distribute dihydrocodeinone (count one) and ten (10) years, with all but
five (5) years suspended, for possession with intent to distribute cocaine
(count two), and the fines and numerous special conditions of probation
are excessive under the circumstances of this case.

DISCUSSION OF APPLICABLE LAW:

In her sole assignment of error, the Defendant agues that her sentences and the

fines and special conditions of probation are 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, 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

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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 maximum possible sentence for possession with intent to distribute

dihydrocodeinone is ten years at hard labor and a fine of not more than $15,000.00.

La.R.S. 40:968(B). As such, the Defendant received one-half of the maximum

possible sentence and her fine of $2,000.00 was significantly less than the maximum

possible fine.

The sentencing range for possession with intent to distribute cocaine is two to

thirty years at hard labor, the first two years to be served without benefit of parole,

probation or suspension of sentence, and a fine of not more than $50,000.00. La.R.S.

40:967(B)(4)(b). The Defendant’s ten-year sentence is one-third of the maximum

possible sentence, and her $2,000.00 fine is a fraction of the maximum possible fine.

Additionally, half of the Defendant’s ten-year sentence was suspended, further

reducing the amount of time she must serve.

Lastly, the benefit received from the Defendant’s plea bargain was significant.

Prior to her plea, the Defendant faced an additional hard-labor sentence of five to ten

years, without benefit of probation, parole, or suspension of sentence, and a fine of

not more than ten thousand dollars. La.R.S. 14:95(E).

At sentencing, the Defendant confirmed that she has been under continuous

medical care since 1979. She also described her medical condition, stating that she

had back surgery in 1979 and neck surgery in 1984. As a result, she suffers from

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chronic pain and had been under the treatment of Dr. Steven Staires for 3 weeks for

pain management. When she began treatment under Dr. Staires, he reduced the large

amount of pain medication that she had been taking for two years with the use of

methadone. According to the Defendant, she could function but was still in pain. She

also explained that she has a hammer toe and wears only a certain type of shoe. The

Defendant testified that she has had ten heart stents and one renal stent and was due

to return to her doctor in July. With regard to work, the Defendant stated that she was

sitting with an elderly woman, but that the job was hard now because she was no

longer taking pain medication.

In reaching its decision, the trial court stated that it considered the following:

I did read in preparation for your sentencing a letter from Dr. Hebert
who speaks very well of you and the care that you gave his ninety-five
year old mother that they had not been able to get before that. They
speak very well of you and I take that into consideration.

I also take into consideration ... your medical conditions that you
assert. They’re not very different from my medical conditions. I too had
back surgery, major back surgery in the nineties and I too am in chronic
pain. I just have to decide that I have to go forward. Everybody has
some kind of pain. I see a long list of medications listed by Dr. Stine.
The Toprol, a lot of people take Toprol. The aspirin, a lot of people take
aspirin. There are lots of things that are here that’s just for regular
functioning. Ms. Nancy says you’re elderly. She’d better be careful.
You’re fifty-one years old. You’ll be fifty-one in September. So there
are lots of things here for stomach upset and all those things that can be
caused by the amount of medications that you’re taking that are
prescribed, and the amount of medications that you’re taking that are not
prescribed.

In addition to that, in order to care for a ninety year old lady, I
have no doubt, ma’am, that you have to exert energy. They’re a dead
weight and I think that’s a medical term. You have to move the, you
have to lift them. There are things that you have to do that do not
indicate to me that you’re incapable. You’ve for years lived as someone
who couldn’t work, and that’s okay. I just don’t have that luxury. I also
have to take into consideration the fact that you are a first time felony
offender, and I tell the kids, though, the young kids sometimes, you
picked a doozy for your first time, and you are a first time felony

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offender and I am going to keep that in consideration, but quite often
and regularly in this courtroom young men and particularly young
African American men go to jail for having a lot less dope. I’m not
saying that that is bad. Selling dope is selling dope. But you have a
large amount of crack cocaine, a large amount of Lortabs, and a gun.
And you’ve already received the benefit of the gun charge being
dismissed.

....

I understand your medical condition, but it’s not anything that
cannot be taken care of by the Department of Corrections. Know that
all my sentences reflect mercy. I will not throw you away just like I
don’t throw the young people away. You are here, there’s some
consequences to your behavior, and notwithstanding your medical
conditions, . . .

....

Let me make it clear to you, Ms. Langlinais, I think you do have
some medical problems, but I think you’ve used that as a reason to
develop the drug problem. And therefore you’re no different than Mr.
Ted Antoine who sat up there earlier today. He has a drug problem, he
just didn’t have prescription drugs. A drug problem is a drug problem
is a drug problem. I think you have a drug problem and you need to deal
with it.

I’m not going to say maintain gainful employment. I think the
community service can be done in connection with the disabilities. As
the record is clear that you have worked in a service industry that
requires you to be able to do some physical exertion. In addition to that,
the information from Dr. Steve Stine tells me all of your medical
conditions are under control. You do not experience chest pains on
physical exertion and you’re not experiencing shortness of breath other
than brought on by your stress. These are stressful times. I understand
that.

The trial court also stressed that it could have ordered consecutive sentences

and was under no obligation to run them concurrently. The trial court then stated:

In addition to that, young kids sometimes do what I call stupid
points, because they’re young and stupid. We all were. You’re past
that. Those people who know better should do better. Those people
who hold themselves out as being responsible are held to a different
level. I didn’t create that. Your sentence is consistent with my
sentencing style.

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The letter from Dr. J. R. Hebert to which the court referred at sentencing

reflects that in addition to his praise of the Defendant’s caregiving to his elderly

mother, he indicates that he did not condone the Defendant’s actions. Dr. Hebert,

nonetheless, requested that the trial court consider an alternative to jail time in

sentencing her. He explained that the Defendant “brought about a renewed spirit and

value of life” to his ninety-five-year-old mother who had been confined to a

wheelchair for several years. Dr. Hebert described the Defendant as “not only a

caregiver, but a valued and trusted friend” to his mother.

The Defendant’s medical evaluation by Dr. Jonathan H. Stine, upon which the

trial court relied in sentencing, was also reviewed. Although the trial court was

correct in stating that the Defendant’s medical conditions were under control per Dr.

Stine’s conclusion, a review of Dr. Stine’s evaluation provides a more accurate and

thorough summary of the Defendant’s health problems than that which was stated by

the trial court at sentencing. First, Dr. Stine, the Defendant’s cardiologist, identified

the Defendant’s multiple diagnoses, which included coronary artery disease, renal

artery disease, congestive heart failure, hypertension, hyperlipidemia and chronic

hepatitis B infection. The Defendant was taking thirteen medications for the

maintenance of these problems, eleven of which were prescription medications. Her

medical history included the placement of numerous coronary artery stents and a renal

artery stent. The trial court correctly stated, however, that Dr. Stine reported that the

Defendant’s medical conditions were either stable or well-controlled.

On appeal, the Defendant stresses that although the sentences and fines are

within the respective sentencing ranges, they are, nonetheless, excessive, considering

her age and the fact that this was her first conviction of any kind. In addition to her

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health problems as discussed above, the Defendant asserts that her only income is

from disability payments, supplemented with income from caring for an elderly

woman.

With regard to the fines and special conditions of probation, the Defendant

asserts that they are onerous and destine her for failure. The fines and fees the

Defendant will be expected to pay during her first two years of probation total

$6,200.00: $2,000.00 in fines for each conviction, $500.00 for costs of prosecution,

$500.00 to the Indigent Defender Board, and $1,200.00 for twenty-four months of

supervised probation fees. In her third year of probation, the Defendant will be

expected to pay a total of $1,600.00: $500.00 to the Acadiana Crime Lab Fund for

each conviction and $600.00 for twelve months of supervised probation fees. The

Defendant contends that these sums of money are beyond what she can reasonably

be expected to pay, considering she relies on disability income and her limited ability

to earn additional money.

The Defendant also points to the trial court’s recognition at sentencing that she

is unlikely to earn much from working and that the court was not going to require her

to maintain gainful employment. As such, the Defendant maintains that it makes little

sense to impose fines and fees which she is unable to pay, especially the fines that are

not mandatory. Additionally, the trial court ordered the Defendant to perform one

hundred eight-hour days of community service and to attend five AA or NA meetings

a week during her probationary period, further reducing her ability to supplement her

disability income.

This court finds significance in the mitigating factors present in this

case—most notably that the Defendant is a first time offender, that she is in poor

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health, and that she is over fifty years of age. However, we are also vigilantly aware

of, and hold great respect for, the wide discretion owed to the trial court in imposing

a sentence. We find that the trial court was measured and deliberate in handing out

a relatively lenient sentence for such a serious offense. With regard to the length of

the sentence, while we are mindful of the Defendant’s condition and health, we

cannot say that the trial court exhibited a manifest abuse of discretion in handing

down this sentence, considering the much harsher penalty it could have imposed.

We are greatly concerned, however, with the severe special conditions of

probation that accompany the sentence. We note that the primary purpose of

probation is the rehabilitation of the defendant through reintegration into society.

State v. Clark, 391 So.2d 1174 (La.1980). We find it difficult to see how such

rehabilitation would be possible when the Defendant will be placed under such a

heavy financial burden.

In State v. Hall, 99-2887 (La.App. 4 Cir. 10/4/00), 775 So.2d 52, the defendant

pled guilty to possession of cocaine and was sentenced to three years at hard labor,

suspended, and three years of probation with ten special conditions of probation at

a total cost of $1,300.00 plus a $20 per month probation fee. On appeal, the

Defendant argued that the conditions of probation were financially excessive. The

court found, however, that the defendant, a twenty-eight-year-old able-bodied male,

was gainfully employed in the construction industry, and thus, failed to show that the

conditions of probation were financially excessive. In reaching its decision, the court

stated:

The purpose of probation is the promotion of a defendant’s
rehabilitation by allowing him to reintegrate into society without
confinement. State v. Clark, 391 So.2d 1174, 1177 (La.1980); State v.
Davis, 375 So.2d 69, 73 (La.1979). “It holds no promise and serves no

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purpose if the conditions are so harsh that the probationer is destined for
failure at the outset.” State v. Carey, 392 So.2d 443, 444 (La.1981).
This includes financial conditions. See Carey; State v. Sartain, 571
So.2d 192 (La.App. 4 Cir.1990). Such excessively harsh financial
conditions of probation will be stricken by appellate courts. Carey;
Sartain.

Id. at 59.

In State v. Parker, 423 So.2d 1121, 1124 (La.1982), the supreme court stated:

In the past, we have consistently afforded the trial judge a wide
latitude in the imposition of probationary conditions, as long as the
conditions are reasonably related to the rehabilitation of the individual
and do not constitute excessive, cruel, or unusual punishment. La.
Const. art. 1, sec. 20; La.C.Cr.P. arts. 894, 894.1; State v. Morgan, 389
So.2d 364 (La.1980); State v. Davis, 375 So.2d 69 (La.1979); State v.
Credeur, 328 So.2d 59 (La.1976). This discretion is not without its
bounds, however. We cannot countenance the imposition of sentences
under conditions which heap an unjust burden upon the generally
impecunious criminal defendant.

Considering same, the court found that the $200.00 per month payment to the

criminological fund as a condition of probation was not reasonably related to the

defendant’s rehabilitation. The court noted that the defendant was already burdened

with fixed expenses, consuming an appreciable portion of his disposable income. The

court found significant the fact that the defendant was the sole support of his elderly

mother and that he had some difficulty in paying $150.00 per month in child support.

These cases are on point with the matter before us and reflect our grave

concern on the issue of the excessive burden placed by the special conditions of

probation. The Defendant’s health problems, coupled with her already limited

income, make it unrealistic for the court to expect her to be capable of meeting these

conditions. Accordingly, we find that the special conditions are excessive

considering the jurisprudence and the circumstances surrounding this case.

Pursuant to La.Code Crim.P. art. 882, an appellate court can correct an illegal

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sentence at any time. An appellate court may not correct an illegal sentence if that

correction involves the exercise of sentencing discretion. State v. Curtis, 08-99

(La.App. 3 Cir. 6/5/08), 987 So.2d 294. We note, however, the multiple cases

wherein certain aspects of a sentence have been vacated in lieu of remanding the

matter back to the trial court for resentencing. First, there is a line of cases involving

default prison time for failure to pay a fine and/or costs. The second circuit in State

v. Helsley, 457 So.2d 707 (La.App. 2 Cir. 1984), vacated the portion of the

defendant’s sentence involving the fine and costs rather than remanding the case to

the trial court for resentencing. In reaching its decision, the court stated:

If a defendant is indigent, the trial court may not impose a maximum
sentence of imprisonment and a fine which will cause him to be
imprisoned beyond the maximum duration fixed by statute when he is
unable to pay a fine. State v. Williams, supra [288 So.2d 319
(La.1974)]. The imposition of the fine and costs in addition to the
maximum term of imprisonment is excessive in this case because the
defendant is an indigent whose financial situation is unlikely to
substantially improve during the extended period of imprisonment
which he is facing; thus, he will be forced to serve a longer term of
imprisonment than that statutorily imposed because of his impecunious
condition.

Id. at 721.

After the Helsley decision, the Fourth Circuit addressed the discriminatory

aspect of imposing a fine on an indigent defendant in State v. Williams, 489 So.2d

286, 291-92 (La.App. 4 Cir. 1986). The specific issue addressed by the court was

whether imposing a fine on an indigent defendant and then automatically converting

the fine into an additional prison term violated the Due Process and Equal Protection

Clauses of the United States and Louisiana Constitutions.

To determine whether the different treatment for an indigent
violates the Equal Protection clause, we must decide whether and under
what circumstances a defendant's indigent status may be considered in
imposing a fine which can result in additional time. This is substantially

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similar to asking the due process question of whether and when it is
fundamentally unfair to impose such a fine which converts into
additional prison time when an indigent is totally unable to pay. See
Bearden v. Georgia, 103 S.Ct. at 2069, n. 8.

The state has a fundamental interest in appropriately punishing
individuals who break criminal laws whether the persons are rich or
poor. Sentencing judges are vested with wide discretion in determining
the initial punishment in a particular case and consider many factors
including the defendant's financial condition. Bearden v. Georgia, 103
S.Ct. at 2071.

The state’s penological interests are served here by imposition of
the predicate prison term. The objective of imposing a fine in addition
to the sentence relates to augmenting the state’s revenues, but that
purpose cannot be served when the indigent defendant cannot pay the
fine and the additional imprisonment saddles the state with the cost of
housing and feeding him for an additional six months. See Tate v.
Short, 401 U.S. at 399, 91 S.Ct. at 671.

Louisiana courts have consistently held that an indigent may not
be given a fine in default of which a prison term is imposed in excess of
the statutory maximum. State v. Williams, 288 So.2d at 319; State v.
Williams, 480 So.2d 432 (La.App. 4th Cir.1985), writ granted, 484
So.2d 662 (La.1986); State v. Turner, 480 So.2d 404 (La.App. 4th
Cir.1985); State v. Helsley, 457 So.2d 707 (La.App.2d Cir.1984); State
v. Plaisance, 444 So.2d 665 (La.App. 1st Cir.1983); State v. Young, 432
So.2d 1012 (La.App. 1st Cir.1983).

The rule of Williams, Tate and Bearden is that the state cannot
impose a fine as a sentence and then automatically convert it into a
prison term solely because the defendant is indigent and cannot pay the
fine regardless of whether the aggregate sentence exceeds the statutory
maximum. State v. White, 476 So.2d 1162 (La.App. 3rd Cir.1985); State
v. Perry, 472 So.2d 344 (La.App. 3rd Cir.1985); State v. LaGrange, 471
So.2d 1186 (La.App. 3rd Cir.1985). Cf. State v. Jones, 473 So.2d 66
(La.App. 3rd Cir.1985). Contra State v. Williams, 480 So.2d at 432;
State v. Garrett, 480 So.2d 412 (La.App. 4th Cir.1985), writ granted,
484 So.2d 662 (La.1986); State v. Coon, 475 So.2d 33 (La.App.2d
Cir.1985); State v. Swartz, 444 So.2d 660 (La.App. 1st Cir.1983).

Imprisoning a person solely because he lacks funds to pay the fine
was condemned in Williams, Tate and Bearden. That is exactly what
happened in this case. The trial court imposed the fine, stated that
Williams was indigent and could not pay the fine (without considering
the reasons for his inability to pay or other alternatives), and declared
that in lieu of payment he would have to serve additional time.

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Although the defendant in Williams had not yet defaulted on his fine, the court

recognized that he would not be able to improve his impoverished condition while

serving his prison term and concluded that his sentence was unconstitutional. His

sentence was then amended to delete that portion which imposed additional jail time

in default of payment of the fine. Unlike in Helsley, the fine was left intact.

Likewise, in State v. Roye, 501 So.2d 916 (La.App. 2 Cir. 1987), the appellate

court found that the portions of defendant’s sentences which required him to serve

additional periods of incarceration in default of the payment of fines and costs were

constitutionally impermissible. The court reasoned:

The U.S. Supreme Court has held that when the aggregate
imprisonment exceeds the statutory maximum and results from an
involuntary failure to pay a fine, there is an impermissible
discrimination that rests solely on the inability to pay. Williams v.
Illinois, 399 U.S. 235, 90 S.Ct. 2018, 26 L.Ed.2d 586 (1970). This rule
has consistently been followed in Louisiana appellate decisions. State
v. Helsley, 457 So.2d 707 (La.App. 2d Cir.1984); State v. Williams, 480
So.2d 432 (La.App. 4th Cir.1985), writ granted, 484 So.2d 662
(La.1986); and State v. Plaisance, 444 So.2d 665 (La.App. 1st
Cir.1983).

However, the Louisiana Supreme Court has apparently extended
this rule to provide that the state cannot impose a fine as a sentence and
then automatically convert it into a prison term solely because the
defendant is indigent and cannot pay the fine, regardless of whether the
aggregate sentence exceeds the statutory maximum, relying upon
Bearden v. Georgia, 461 U.S. 660, 103 S.Ct. 2064, 76 L.Ed.2d 221
(1983); Tate v. Short, 401 U.S. 395, 91 S.Ct. 668, 28 L.Ed.2d 130
(1971); Morris v. Schoonfield, 399 U.S. 508, 90 S.Ct. 2232, 26 L.Ed.2d
773 (1970) and Williams v. Illinois, supra. See: State v. Garrett, 484
So.2d 662 (La.1986); State v. Williams, 484 So.2d 662 (La.1986); State
v. Pinkney, 488 So.2d 682 (La.1986).

Based upon these more recent pronouncements of the Louisiana
Supreme Court, by which we are bound, this court, and other appellate
courts of this state, have now been required to reverse and set aside, as
unconstitutional, jail terms in lieu of the payment of fines assessed to
indigent defendants. State v. Gooden, 502 So.2d 1180 (La.App. 2d
Cir.1987); State v. Williams, 489 So.2d 286 (La.App. 4th Cir.1986);
State v. White, 476 So.2d 1162 (La.App. 3rd Cir.1985); and State v.

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Bohanna, 491 So.2d 756 (La.App. 1st Cir.1986).

Based on the aforementioned decisions, we are compelled to
follow the pronouncements of the Louisiana Supreme Court which hold
that the state cannot impose a fine as a sentence and then automatically
convert it into a prison term solely because the defendant is indigent and
cannot pay the fine, regardless of whether the aggregate sentence
exceeds the statutory maximum.

Id. at 919. The defendant’s prison terms were affirmed, but the sentences were

amended to delete that portion which required the defendant to serve one year

imprisonment in default of payment of the $5,000 fine and to serve an additional sixty

days in jail in default of payment of the $500 fine and costs. As in Williams, the court

did not disturb the fines and costs.

The second circuit in State v. Evans, 506 So.2d 1283 (La.App. 2 Cir. 1987)

went a step further and amended both the default time and fees/costs. In Evans, the

trial court imposed the maximum sentence as a well as a $2,000.00 fine and court

costs. In default thereof, an additional one year in jail was ordered. Based on its

finding that the defendant was indigent and faced a long term of imprisonment, the

fine, court costs and default time were vacated on appeal.

Regarding the excessiveness of a special condition of probation, we note the

recently decided case State v. Standfill, 44,407 (La.App. 2 Cir. 7/1/09), 15 So.3d

1252. In Standfill, the defendant was convicted of simple cruelty to animals and

sentenced to six months, suspended, and placed on two years probation. As a special

condition of probation, the Defendant was ordered to perform 180 eight-hour days of

community service at the local animal control center. On appeal, the defendant

argued that the trial court imposed an excessive amount of community service and the

appellate court agreed. The court noted that the only mandatory portion of the cruelty

to animals statute called for five eight-hour days while the remainder was

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discretionary. Considering same, along with the specific facts of the case, the court

found that the trial court abused its discretion, and subsequently amended the

sentence to impose only the mandatory hours of community service. The court also

vacated the rest of the sentence, specifically the six months suspended, and probation

with special conditions.

In the instant case, we conclude that the special conditions of probation are

excessive, and thus, we find that the trial court abused its discretion. The special

conditions of probation are exceptionally onerous for a woman who has been disabled

for many years and is on a limited income. Not only is her financial situation unlikely

to improve during her imprisonment or while serving probation, her medical

diagnoses which pose a serious and ongoing threat to her health are chronic and will

not likely improve as she ages. As such, we vacate the special conditions of

probation in part, leaving the remainder of the sentence intact. We do not vacate the

special conditions that require the Defendant to report to the probation office within

twenty-four hours, report monthly to the probation office, and to pay a $56.00

monthly supervision fee.

CONCLUSION:

The Defendant’s sentence for possession with intent to distribute

dihydrocodeinone is affirmed. The Defendant’s sentence for possession with intent

to distribute cocaine is affirmed and amended by deleting the special conditions of

probation, with the exception of reporting to the probation office within twenty-four

hours of release, reporting monthly, and paying a $56.00 monthly supervision fee.

AFFIRMED AND AMENDED IN PART.

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