State of Louisiana v. Kendrick Jerrod Smith

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

10-377

STATE OF LOUISIANA

VERSUS

KENDRICK JERROD SMITH

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APPEAL FROM THE
THIRTIETH JUDICIAL DISTRICT COURT
PARISH OF VERNON, NO. 76637
HONORABLE VERNON BRUCE CLARK, DISTRICT JUDGE

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SHANNON J. GREMILLION
JUDGE

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Court composed of Oswald A. Decuir, J. David Painter, and Shannon J. Gremillion,
Judges.

AFFIRMED.

Asa Allen Skinner
District Attorney, 30th Judicial District Court
P. O. Box 1188
Leesville, LA 71496-1188
(337) 239-2008
Counsel for Plaintiff/Appellee:
State of Louisiana

Mark Owen Foster
Louisiana Appellate Project
P. O. Box 2057
Natchitoches, LA 71457
(318) 572-5693
Counsel for Defendant/Appellant:
Kendrick Jerrod Smith

Terry Wayne Lambright
Attorney at Law
100 S. Third St., Suite A
Leesville, LA 71446
(337) 239-6557
Counsel for Plaintiff/Appellee:
State of Louisiana

GREMILLION, Judge.

In December 2008, the Leesville Police Department received a call about a

disturbance at the Mona Lisa Apartments. Officers encountered Defendant, Kendrick

Jerrod Smith, and, thereafter, entered the residence. Once inside, police observed

several clear plastic bags containing marijuana. The bags were packaged in a manner

that suggested the intent to sell the marijuana at a later date.

Defendant was charged by bill of information with possession with intent to

distribute marijuana. He first entered a plea of not guilty but subsequently withdrew

that plea and entered a plea of guilty to the charged offense. As part of a plea

agreement, another charge of distribution in a separate bill of information was

dismissed. Ultimately, Defendant was sentenced to serve seven years at hard labor

and to pay a fine of $1,000. His motion to reconsider sentence was denied by the trial

court.

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

contends the sentence imposed by the trial court was cruel, unusual, and excessive in

violation of La.Const. art. 1, § 20. We affirm the court below.

This court discussed the standard of review applicable to claims of

excessiveness in State v. Bailey, 07-130, p. 3 (La.App. 3 Cir. 10/3/07), 968 So.2d 247,

250, as follows:

A sentence which falls within the statutory limits may be
excessive under certain circumstances. 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.

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State v. Guzman, 99-1753, 99-1528, p. 15 (La.5/16/00), 769 So.2d 1158,
1167 (citations omitted).

In 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 (citations
omitted), this court discussed the factors it would consider in order to
determine whether a sentence shocks the sense of justice or makes no
meaningful contribution to acceptable penal goals:

In deciding whether a sentence is shocking or makes
no meaningful contribution to acceptable penal goals, 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.
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.” 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.”

Defendant was convicted of possession with intent to distribute marijuana. The

penalty for said offense is imprisonment at hard labor for not less than five nor more

than thirty years and a fine of not more than $50,000. La.R.S. 40:966(B)(3).

Defendant was sentenced to serve seven years at hard labor and to pay a fine of

$1,000.

Defendant asserts that the record contains little or no evidence that the trial

court reviewed the mitigating factors listed in La.Code Crim.P. art. 894.1. Defendant

further asserts he showed remorse for his actions and had voluntarily attended

substance abuse programs and programs through drug court to address his substance

abuse problem. Defendant contends his efforts were not considered by the trial court.

At the sentencing hearing, the trial court indicated it had reviewed the

presentence investigation report and asked defense counsel if there was anything she

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would like to offer. Defense counsel informed the trial court that Defendant had been

attending Vernon ADAC, NA, and Drug Court on a voluntary basis. The trial court

then made the following comments:

All right. The court ordered a pre-sentence investigation to be
conducted and I’ve reviewed the contents of that report in determining
the sentence in this case. I have found the factors of Article 894.1 as
follows to be applicable. First, this is a drug case and there is significant
economic harm or impact on society in general when one is dealing in
the use or distribution of illegal drugs. Next, there are no substantial
grounds tending to excuse or justify his criminal conduct nor did he act
under strong provocation by any victims or others. He’s twenty-two
years of age. He’s single. He does not have any children. He’s in good
health. There was no indication of any history of employment. He has
a tenth grade education and has not received his GED. He does have a
history of some drug and alcohol use. He has a prior record and is
classified as a second felony offender. The report indicates that on
November the 10th, 2005, he was convicted of possession of cocaine,
possession of a Schedule IV drug and possession of marijuana first
offense. He was given a five-year Department of Correction sentence.
That was suspended and he was placed on five years supervised
probation and he’s currently on probation and the report indicates that
his compliance is poor and I noted also earlier that in one of these bills
of information was a distribution charge that was dismissed and he has -
so, therefore received substantial benefit from, from his plea agreement.

After reviewing the sentencing transcript, it is apparent that the trial court

considered the factors set forth in La.Code Crim.P. art. 894.1 at the time Defendant

was sentenced. Furthermore, the record clearly supports the sentence imposed.

Defendant was a second felony offender who was on probation at the time he

committed the offense, a charge of distribution in a separate docket number was

dismissed as part of a plea agreement, and the sentence he received was two years

more than the minimum sentence. This assignment of error lacks merit.

DECREE

Defendant’s sentence is affirmed.

AFFIRMED.

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