State of Louisiana v. Mark A. Griffin

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

10-36

STATE OF LOUISIANA

VERSUS

MARK A. GRIFFIN

**********

APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 15982-08
HONORABLE G. MICHAEL CANADAY, DISTRICT JUDGE

**********

SHANNON J. GREMILLION
JUDGE

**********

Court composed of Ulysses Gene Thibodeaux, Chief Judge, Shannon J. Gremillion,
and David E. Chatelain,* Judges.

AFFIRMED.

John Foster DeRosier
14th Judicial District Court
District Attorney
P. O. Box 3206
Lake Charles, LA 70602-3206
(337) 437-3400
Counsel for Plaintiff/Appellee:
State of Louisiana

G. Paul Marx
Attorney at Law
P. O. Box 82389
Lafayette, LA 70598-2389
(337) 237-2537
Counsel for Defendant/Appellant:
Mark A. Griffin

*
Honorable David E. Chatelain participated in this decision by appointment of the Louisiana
Supreme Court as Judge Pro Tempore.

GREMILLION, Judge.

Defendant, Mark A. Griffin, was charged by bill of information with

distribution of cocaine, a violation of La.R.S. 40:967. Defendant pled guilty to the

charge in exchange for the dismissal of three pending charges of distribution of a

Schedule II substance.

At the time of the plea the State established that on February 13, 2008,

Defendant sold approximately one-half ounce of crack cocaine to an undercover

officer. The transaction took place in a vehicle belonging to Defendant’s family.

Defendant was positively identified on audio and visual tapes as the person involved

in the sale.

Defendant was then sentenced to fifteen years at hard labor, the first two

without benefit of probation, parole, or suspension of sentence. Defendant is now

before this court on appeal, setting forth two assignments of error involving his

sentence and the effectiveness of defense counsel at sentencing. We affirm.

ASSIGNMENT OF ERROR NUMBER ONE

In his first assignment of error, Defendant argues that the trial court erred in

immediately imposing sentence without a substantial factual basis upon which to

determine his sentence. Defendant does not object to the lack of a sentencing delay

as required by La.Code Crim.P. art. 873, nor does Defendant claim that his sentence

is excessive. Defendant simply maintains that, without any facts beyond the essential

facts set forth at the time of his guilty plea, the trial court could not comply with the

law in imposing sentence. Defendant asserts that the trial court had no background

facts other than the offense conduct and evidence of a prior conviction when it

1

imposed sentence. As such, Defendant concludes that, without any facts offered into

evidence, he did not receive a fair hearing on the issue of sentencing.

Moreover, Defendant was sentenced for the offense without benefit of a

presentence investigation report (PSI) or any other documented evidence, other than

testimony of Defendant or his counsel. However, in sentencing Defendant, the trial

court considered the mitigating and aggravating factors set forth in La.Code Crim.P.

art. 894.1, as follows:

THE COURT:

All right. Anytime the Court considers sentencing someone, it’s
required to review Article 894.1 of the Code of Criminal Procedure.

Section 1 says: Is there an undue risk that during the period of a
suspended sentence or probation the defendant will commit another
crime?

The Court notes that he is a second-time offender, the other
offense being Attempted Distribution, whether that was the negotiated
plea or -- the entirety of the offense report does not have that
information. However, the fact that he’s returned back to the same type
of activity shows that that must be answered in the affirmative.

Further, is the defendant in need of correctional treatment or a
custodial environment that can be provided most effectively by
commitment to an institution?

Again, the Legislature has dictated that there be mandatory jail
time associated with this offense, as evidenced by the two years without
benefit of probation, parole, or suspension.

The Court answers that in the affirmative.

Would a lesser sentence deprecate the seriousness of the
defendant’s crime?

Based on the colloquy here today, it is noted that the defendant
had a prior substance abuse charge. The defendant had an opportunity
for probation, and that probation was revoked. He did indicate he had
done well on parole. But then he’s admitted that he had no drug
substance abuse problems, but yet did admit here to dealing drugs.

2

The Court finds that a lesser sentence other than some
incarceration would deprecate the seriousness of the defendant’s
offense.

It’s also noted that there was [sic] a number of other charges that
was [sic] given consideration by the State in dismissing various
distribution charges.

In reviewing aggravating and mitigating circumstances, the Court
would find that -- would find that the offender would have known most
of his victims would be vulnerable to offenses because of their
addictions and the purchase of drugs. That he’s offered or given -- or
something -- received something for the commission of the offense.
Again, part of the distribution type of offense.

It’s noted that it is a substance abuse offense. The Court would
find that this offense results generally in significant permanent injury to
those that are victims or recipients of distribution charges, but the State
being the primary victim in this matter.

It’s noted that the offense involved multiple incidents for which
separate sentences have not been imposed but have been indicated it’s
dismissed. And then the prior that was not part of a multiple offender
adjudication also indicates substance abuse distribution issues.

Another aggravating circumstance would be the probation failure
in the past.

In looking at mitigating circumstances, it’s noted that a history of
delinquency or criminal activity and led a law-abiding life would be
more aggravating than mitigating.

Are they likely to result in circumstances unlikely to reoccur?

Again, noting the totality of the charges and the history of the
defendant, more aggravating than mitigating.

Next, the trial court ascertained that Defendant was not married, but had two

children whom he supported when he was working. The trial court then noted that

imprisonment would entail a hardship on Defendant’s children. However, in the trial

court’s opinion, the fact that Defendant’s income was derived from selling drugs

cancelled out the hardship. If Defendant had a more appropriate livelihood, the trial

court believed that his dependants would endure a hardship. Lastly, the trial court

3

confirmed that Defendant had not participated in any pre-trial drug testing programs

since he was incarcerated.

After sentence was imposed, counsel for Defendant asked the trial court to

reduce the sentence to possibly ten years to give Defendant an opportunity to salvage

what he could of his life. The trial court felt, however, that Defendant had been given

such a chance with his first conviction. The trial court also stated that nothing had

been offered to show that Defendant was ready to return to society or that he could

do anything other than supply drugs to people with addictions. The trial court added

that Defendant needed to understand that there are consequences for what he has

done, noting again that the Defendant is a second offender, and received only one-

half of the maximum thirty-year sentence.

In the instant case, the trial court, in sentencing Defendant, expressly referred

to the guidelines of La.Code Crim.P. art. 894.1, applying the facts ascertained at the

time of Defendant’s guilty plea and sentencing as discussed herein. Also, Defendant

does not set forth any specific facts not properly considered by the trial court in

sentencing Defendant. In light of the trial court’s thorough consideration of the

mitigating and aggravating circumstances revealed at the time of Defendant’s guilty

plea and sentencing, we find no merit in Defendant’s argument.

ASSIGNMENT OF ERROR NUMBER TWO

In his final assignment of error, Defendant argues that defense counsel was

ineffective for failing to offer any evidence in mitigation or to move for a PSI.

Usually, ineffective assistance of counsel claims raised on appeal are relegated to

post-conviction relief, but in the interest of judicial economy, we choose to resolve

the issue here. State v. Lee, 08-456 (La.App. 3 Cir. 11/5/08), 996 So.2d 1217.

4

This court has held that ineffective assistance of counsel claims must meet two

separate criteria to have merit:

The right of a defendant in a criminal proceeding to the effective
assistance of counsel is constitutionally mandated by the Sixth
Amendment of the U.S. Constitution. In order to prove that counsel was
ineffective, the defendant must meet the two-pronged test enunciated by
the Supreme Court. First, the defendant must show that counsel’s
performance was deficient. Second, the defendant must show that this
deficiency prejudiced the outcome of the trial. Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984);
State v. Brooks, 505 So.2d 714 (La.1987), cert. denied, 484 U.S. 947,
108 S.Ct. 337, 98 L.Ed.2d 363 (1987). To establish a claim of
ineffective assistance of counsel, a defendant must demonstrate that his
defense attorney failed to meet the level of competency normally
demanded of attorneys in criminal cases. State ex rel. Graffagnino v.
King, 436 So.2d 559 (La.1983); State v. Fickes, 497 So.2d 392 (La.App.
3 Cir. 1986), writ denied, 515 So.2d 1105 (La.1987).

State v. James, 95-962, pp. 4-5 (La.App. 3 Cir. 2/14/96), 670 So.2d 461, 465.

Defendant claims that his trial attorney should have offered evidence in

mitigation at sentencing, such as witness testimony, a document from his record, or

a social history; or alternatively, moved for a PSI. Defendant, however, does not

specify any particular fact or piece of evidence that defense counsel should have

presented at sentencing. As such, Defendant has not shown how defense counsel’s

performance was deficient. Thus, Defendant has not satisfied the first prong of the

Strickland test. Additionally, Defendant does not claim that a PSI would, in fact,

contain mitigating evidence and concedes that the trial court is not always required

to order a PSI. This assignment of error lacks merit.

DECREE

Defendant’s sentence is affirmed.

AFFIRMED.

5