State of Louisiana v. Andrae Rashun Allen

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

09-1281

STATE OF LOUISIANA

VERSUS

ANDRAE RASHUN ALLEN

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APPEAL FROM THE
THIRTIETH JUDICIAL DISTRICT COURT
PARISH OF VERNON, NO. 76082
HONORABLE VERNON BRUCE CLARK, DISTRICT JUDGE

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ULYSSES GENE THIBODEAUX
CHIEF JUDGE

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

AFFIRMED.

Paula Corley Marx
Louisiana Appellate Project
P. O. Box 80006
Lafayette, LA 70598-0006
Telephone: (337) 991-9757
COUNSEL FOR:
Defendant/Appellant - Andrae Rashun Allen

Asa Allen Skinner
District Attorney, Thirtieth Judicial District Court
Terry W. Lambright
Assistant District Attorney, Thirtieth Judicial District Court
P. O. Box 1188
Leesville, LA 71446
Telephone: (337) 239-2008
COUNSEL FOR:
Plaintiff/Appellee - State of Louisiana

THIBODEAUX, Chief Judge.

In 2009, Defendant, Andrae Rashun Allen (Allen), was charged with the

offenses: (Count 1) simple robbery, a violation of La.R.S. 14:65; (Count 2)

aggravated assault, a violation of La.R.S. 14:37; (Count 3) simple battery, a violation

of La.R.S. 14:35; (Count 4) faulty exhaust system, a violation of La.R.S. 32:352;

(Count 5) expired license plate, a violation of La.R.S. 47:508; and, (Count 6)

possession with intent to distribute cocaine, a violation of La.R.S. 40:967(A). Allen

pled guilty to the reduced charge of misdemeanor theft, to aggravated assault, to

simple battery, and to the reduced charge of possession of cocaine. The remaining

charges were dismissed.

The trial court sentenced Allen to the following concurrent sentences

with credit for the time served: Count 1 - six months in jail, pay court costs, and

make restitution to the victim in the amount of $489.00; Count 2 - one hundred

twenty days in jail and pay court costs; Count 3 - six months in jail and pay court

costs; and Count 6 - five years at hard labor and pay a $2,000.00 fine and court costs.

Allen filed a motion to reconsider sentence that the trial court summarily denied.

Allen appealed, asserting that his sentence for possession of cocaine is

excessive. For the following reasons, we affirm.

ISSUES

We shall consider whether:

(1) the sentence of five years at hard labor was
excessive where a twenty-nine-year-old Defendant
was charged with possession with intent to distribute
cocaine but pled guilty to a reduced charge of
possession of cocaine and was a fourth-felony
offender with a history of parole revocations;

(2) in addition to the five-year sentence referenced
above, the imposition of a fine of two thousand

dollars, less than half of the maximum possible, was
excessive.

FACTS

At the time of Allen’s guilty plea, the State established that on November

5, 2008, Allen was stopped in the parking lot of Shop Rite in Vernon Parish and was

in possession of cocaine.

At sentencing, the trial court observed that in drug cases such as this one,

there is a significant economic impact on society. The trial court noted that there

were no substantial grounds to excuse Allen’s behavior even though Allen denied

knowledge of the presence of drugs in the vehicle. The trial court considered Allen’s

age, his high-school education, his good physical health, and that he was single and

without children. The trial court then focused on Allen’s criminal history, noting

Allen’s use of marijuana since the age of twelve without receiving any treatment. The

trial court observed that Allen was a fourth felony offender previously convicted of:

(1) as a juvenile, theft of property and possession of marijuana in 1996; (2) as an

adult, theft and burglary in 1997; (3) illegal use of a weapon in 1998; and, (4) simple

burglary of an inhabited dwelling and theft, felony grade, in 1999. Finally, the trial

court noted Allen’s history of parole revocations.

LAW AND DISCUSSION

Excessiveness of Sentence

Allen argues that his five-year sentence for possession of cocaine was

excessive and that the trial court failed to comply with La.Code Crim.P. art. 894.1 in

fashioning the sentence.

“No law shall subject any person . . . to cruel, excessive, or unusual

punishment.” La.Const. art. 1, § 20.

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To constitute an excessive sentence, this Court must find
that the penalty is so grossly disproportionate to the
severity of the crime as to shock our sense of justice or that
the sentence makes no reasonable contribution to
acceptable penal goals and[,] therefore, is nothing more
than the needless imposition of pain and suffering. The
trial judge has broad discretion, and a reviewing court may
not set sentences aside absent a manifest abuse of
discretion.

State v. Guzman, 99-1528, p. 15 (La. 5/16/00), 769 So.2d 1158, 1167 (citations

omitted). The following factors are applied when determining whether a sentence is

shocking or makes no meaningful contribution to acceptable penal goals: “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, 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 (citing State v. Smith, 99-606, 99-2015, 99-

2019, 99-2094 (La. 7/6/00), 766 So.2d 501). Although a comparison of sentences

imposed for similar crimes can be helpful, “it is well settled that sentences must be

individualized to the particular offender and to the particular offense committed.” Id.

(quoting State v. Batiste, 594 So.2d 1, 3 (La.App. 1 Cir. 1991)). Because the trial

court is in the best position to evaluate the aggravating and mitigating factors of a

particular case, “it is within the purview of the trial court to particularize the

sentence.” Id. Finally, “[a]s a general rule, maximum sentences are appropriate in

cases involving the most serious violation of the offense and the worst type of

offender.” State v. Hall, 35,151, p. 4 (La.App. 2 Cir. 9/26/01), 796 So.2d 164, 169

(citing State v. Grissom, 29,718 (La.App. 2 Cir. 8/20/97), 700 So.2d 541; State v.

Walker, 573 So.2d 631 (La.App. 2 Cir. 1991)).

Possession of cocaine is punishable by imprisonment, with or without

hard labor, for not more than five years, or a fine of not more than $5,000.00, or both.

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La.R.S. 40:967(C). Thus, Allen’s five-year sentence was the maximum possible, but

his $2,000.00 fine was less than one-half of the maximum possible. Allen received

a significant benefit from his plea agreement. In addition to the reduction of two

charges, two charges were dismissed, significantly diminishing his sentencing

exposure.

On appeal, Allen concedes that the trial court examined his personal and

criminal history at sentencing. Yet, he maintains that the trial court’s personal

feelings about drug cases overshadowed its duty to particularize the sentence.

Therefore, Allen argues, the trial court did not demonstrate compliance with the

purpose of La.Code Crim.P. art. 894.1 to insure that the sentence was individualized.

Allen adds that his personal history should be considered, including not

only his age, but also that he had smoked marijuana since he was twelve and had not

received any treatment. Allen also stresses that his only prior drug offense was as a

juvenile. Further, Allen points to his high school education and asserts that he has

worked in hospitals, stripping, waxing, and buffing floors, and thus, with

rehabilitation and treatment, has the potential to re-enter society as a contributing

member.

Finally, Allen maintains that he is not the worst type of offender and the

offense was not the most serious of offenses. He asserts that no one was injured in

the crime and that the effect on society, in general, should not be a factor in justifying

a maximum sentence. Allen does not refer to any jurisprudence upon which he relies

in making this argument.

The record reflects that the trial court considered Allen’s Presentence

Investigation Report which contained a plethora of information, including his

personal, employment, social, and criminal history. The trial court then referred to

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several of the facts contained in the report at sentencing. Most notable is that Allen

is a fourth felony offender.

This court affirmed a $1,500.00 fine and the maximum five-year

sentence for possession of cocaine in a case in which the defendant had two previous

drug convictions, was originally charged with possession of cocaine with intent to

distribute, and in which the State refrained from billing the defendant as a habitual

offender. State v. Williams, 07-490 (La.App. 3 Cir. 10/31/07), 969 So.2d 744.

A five-year sentence for possession of cocaine was also affirmed in a

case in which the trial court imposed no fine on a defendant who had a criminal

history indicating that he was a career criminal with no prior convictions. State v.

McCorkle, 97-966 (La.App. 5 Cir. 2/25/98), 708 So.2d 1212.

Finally, this court affirmed a sentence of five years at hard labor in a case

in which the twenty-six-year-old defendant, originally charged with possession with

intent to distribute cocaine, was a third-time felony drug offender with a history of

probation and parole revocations. State v. Thomas, 08-1358 (La.App. 3 Cir. 5/6/09),

18 So.3d 127.

The mitigating and aggravating facts in this case are similar to those in

the above-referenced cases. Considering the trial court’s reasons for sentencing, in

addition to the jurisprudence supporting the maximum sentence for similarly situated

defendants, this court concludes that the five-year imprisonment imposed on Allen

is not excessive.

Indigence and Imposition of Fine

Allen argues that he is indigent, and, thus, the imposition of a $2,000.00

fine was not appropriate. In support, Allen refers to State v. Perry, 472 So.2d 344

(La.App. 3 Cir. 1985). There, a defendant who pled guilty to attempted distribution

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of a counterfeit schedule II controlled dangerous substance was found indigent by the

trial court and was appointed counsel for his defense. In addition to four years of

imprisonment at hard labor, an upper-range sentence, the trial court imposed a

$5,000.00 fine and court costs, or, in default of paying the fine, imposed an additional

year of imprisonment.1 This court found that sentence excessive.

Relying on State v. Mims, 550 So.2d 760 (La.App. 2 Cir. 1989), the State

argues that consideration of Allen’s ability to pay the fine is premature. In Mims, the

court discussed the consideration of default jail time before a defendant is required

to pay a fine and concluded that such consideration was premature.

The issue in Perry and in Mims regarding fines was the default jail time,

not that the indigent defendant was ordered to pay a fine. Further, in Perry, the jail

time and fine were both excessive because the trial judge failed to state for the record

the considerations and facts upon which the sentence was based.

This court was unable to find any jurisprudence which prohibits or limits

the trial court’s imposition of a fine on an indigent defendant. Moreover, although

the ruling in Mims is distinguishable from this case, it does suggest that considering

a defendant’s indigence prior to the time he is called upon to pay the fine is

premature.

As noted above, Allen’s $2,000.00 fine was less than one-half of the

maximum possible fine. Also, the trial court clearly stated for the record the facts it

considered in determining Allen’s sentence. Finally, the trial court did not order

default time in the event Allen did not pay his fine. For these reasons, Allen’s fine

is not excessive.

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The maximum sentence and fine were five years at hard labor and $7,500.00.

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ERRORS PATENT

After reviewing the record, there are two errors patent and a procedural

issue worth noting. The bill of information provides the wrong citation for

possession of cocaine with intent to distribute. The bill lists it as a violation of

La.R.S. 40:966(A), whereas the proper citation is La.R.S. 40:967(A). The erroneous

citation of a statute in the charging instrument is harmless error as long as the error

does not mislead Defendant to his prejudice. La.Code Crim.P. art. 464.

Here, Allen does not allege any prejudice because of the erroneous

citation; thus, any error is harmless. Additionally, by entering an unqualified plea,

Allen waived review of this non-jurisdictional pre-plea defect. See State v. Crosby,

338 So.2d 584 (La.1976). Accordingly, this court finds this error harmless and/or

waived.

There is a misjoinder of offenses in the bill of information. Offenses

may be joined in a single bill of information only if the offenses are triable by the

same mode of trial. La.Code Crim.P. art. 493. Here, Allen’s amended charges in

counts one through five (theft under $300.00, aggravated assault, simple battery, a

faulty exhaust system, and expired license plate) are misdemeanors, triable by a judge

without a jury. La.Code Crim.P. art. 779. Count six, possession of cocaine with

intent to distribute, is a felony triable by a jury composed of twelve jurors, ten of

whom must concur to render a verdict. La.Code Crim.P. art. 782. Consequently,

count six was improperly joined with the misdemeanors.

Nevertheless, Allen did not file a motion to quash the bill of information

on the basis of misjoinder of offenses as required by statute. See La.Code Crim.P. art.

495. Additionally, by entering an unqualified guilty plea, Allen waived review of this

non-jurisdictional pre-plea defect. See Crosby, 338 So.2d 584.

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Finally, we note that the proper mode of review for the misdemeanor

offenses is an application for writ of review, rather than an appeal. La.Code Crim.P.

art. 912.1. In State v. Turner, 04-1250 (La.App. 3 Cir. 3/2/05), 896 So.2d 286, writ

denied, 05-871 (La. 12/12/05), 917 So.2d 1084, the defendant appealed his

convictions for two felonies and one misdemeanor, but made no specific arguments

regarding his misdemeanor conviction. Thus, this court severed the misdemeanor

conviction from the defendant’s appeal of the two felony convictions. The court

ordered the defendant to file a writ of review regarding the misdemeanor conviction

in compliance with the Rules of Court. Id. There, if the defendant desired to seek

review of the misdemeanor conviction, we considered the notice of appeal as a notice

to file a writ of review within thirty days of the court’s opinion.

As in Turner, Allen has not assigned any error regarding his

misdemeanor convictions. Additionally, Allen concedes that there is a misjoinder and

requests that he be allowed to seek supervisory review of the misdemeanors once the

appeal is completed. Therefore, this court severs the misdemeanor convictions from

the appeal and orders Allen to file a writ of review in compliance with the Uniform

Rules of Court, if he so desires.

CONCLUSION

Andrae Rashun Allen’s sentence is affirmed.

AFFIRMED.

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