State of Louisiana v. Margaret Ann Howard

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

KA 10-1184 consolidated with KA 10-1185

STATE OF LOUISIANA

VERSUS

MARGARET ANN HOWARD

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APPEAL FROM THE
THIRTIETH JUDICIAL DISTRICT COURT
PARISH OF VERNON, NOS. 78297, 78298
HONORABLE VERNON BRUCE CLARK, DISTRICT JUDGE

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BILLY HOWARD EZELL
JUDGE

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Court composed of Billy Howard Ezell, J. David Painter, and James T. Genovese,
Judges.

AFFIRMED.

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

Edward Kelly Bauman
Louisiana Appellate Project
P. O. Box 1641
Lake Charles, LA 70602-1641
(337) 491-0570
Counsel for Defendant/Appellant:
Margaret Ann Howard

Terry Wayne Lambright
100 South Third Street, Suite A
Leesville, LA 71446
(337) 239-6557
Counsel for Plaintiff/Appellee:
State of Louisiana

EZELL, JUDGE.

The Defendant, Margaret Ann Howard, was charged by bill of information

filed in trial court docket number 78297 on March 24, 2010, with conspiracy to

distribute Xanax, in violation of La.R.S. 14:26 and La.R.S. 40:969. On the same date,

she was also charged by bill of information filed in trial court docket number 78298

with conspiracy to distribute Lorcet, in violation of La.R.S. 14:26 and La.R.S. 40:968.

The Defendant entered a plea of not guilty in both docket numbers on March 30,

2010.

On April 28, 2010, the Defendant pled guilty to both charges. She was

sentenced on July 28, 2010, to serve three years at hard labor on each count, to run

concurrently. A motion to reconsider sentence was filed on July 29, 2010, and denied

the following day.

A motion for appeal was filed on August 5, 2010, and was subsequently

granted. The Defendant is now before this court asserting two assignments of error.

Therein, she contends the trial court erred in denying her eligibility for good time

credit and imposing excessive sentences.

FACTS

At the time the Defendant entered her pleas of guilty, the State set forth the

following factual basis:

On or about October the 2nd, 2009, this defendant did conspire
with others to drive to the state of Texas - to Houston to obtain some
prescription medication consisting of Lorcet, Xanax and others and
conspire with others to do so to take her there and in exchange for the
same would transfer to them some of the medication that she received
through a pharmaceutical prescription at a pharmacy and then returned
back here to the state of Louisiana at her address at 122[sic] Westwood
Drive, Leesville, Louisiana.

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ASSIGNMENT OF ERROR NUMBER ONE

In her first assignment of error, the Defendant contends the trial court erred in

denying her eligibility for good time credit.

At the sentencing hearing, the trial court stated the following: “I advise you,

ma’am, that pursuant to the Code of Criminal Procedure Article 894.1D, your

sentence is not subject to diminution for good behavior due to your prior convictions

and your sentence has not been enhanced upon the basis of any habitual offender

proceedings.”

The Defendant cites State v. Rutland, 02-425, (La.App. 3 Cir. 10/2/02), 829

So.2d 603, in support of her argument that the trial court improperly denied her

eligibility for diminution of sentence for good behavior. Therein, this court stated:

“[A] trial judge lacks authority under La.R.S. 15:57[1.3](C) to
deny a defendant eligibility for good time credits against his sentence,”
as the authority granted by that statute is entirely the domain of the State
of Louisiana, Department of Corrections. State v. Narcisse, 97-3161, p.
1 (La.6/26/98), 714 So.2d 698, 699. There does exist an exception
under La.Code Crim.P. art. 890.1 whereby the trial court may deny
diminution of sentence for good behavior if the crime for which the
sentence is imposed is a crime of violence. However, in this case the
defendant’s offense is not a crime of violence and does not subject him
to this exception. Thus, denial of the defendant’s right to credit against
his sentence for good behavior is illegal. This court may, upon review,
correct an illegal sentence. La.Code Crim.P. art. 822(A).

Id. at 605 (alteration in original).

The Defendant asserts that the offenses to which she pled guilty were not

crimes of violence. Therefore, the trial court was without authority to deny her good

time credit, and this court should correct her illegal sentences.

In State v. James, 09-606, p. 2 (La.App. 3 Cir. 12/9/09), 26 So.3d 915, 916, the

trial court told the defendant: “I advise you, sir, -you, sir, that pursuant to the Code

of Criminal Procedure, Article 894.1 D, you’re [sic] sentence is not subject to

diminution for good behavior based on your prior convictions.” This court found the

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trial court had merely advised the defendant pursuant to La.Code Crim.P. art. 894.1

that he was not eligible for diminution of sentence. It did not deny eligibility for

diminution of sentence pursuant to La.R.S. 15:571.3, as prohibited by State v.

Narcisse, 97-3161 (La. 6/26/98), 714 So.2d 698.

Based on this court’s ruling in James, 26 So.3d 915, the trial court merely

advised the Defendant pursuant to its obligation under La.Code Crim.P. art. 894.1

that she was not eligible for diminution of her sentences and did not deny eligibility

for diminution of those sentences. Accordingly, this assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER TWO

In her second assignment of error, the Defendant contends her sentences are

excessive.

The Defendant pled guilty to conspiracy to distribute Xanax and conspiracy

to distribute Lorcet. Each offense is punishable by a term of imprisonment not to

exceed five years. La.R.S. 14:26; La.R.S. 40:968; La.R.S. 40:969. The Defendant

was sentenced to serve three years at hard labor on each count, to run concurrently.

The Eighth Amendment to the United States Constitution and La.
Const. art. 1, § 20 prohibit the imposition of cruel or excessive
punishment, and the law is well settled with regard to what constitutes
cruel or excessive punishment. An excessive sentence is a penalty that
is so grossly disproportionate to the severity of the crime that it shocks
our sense of justice or it makes no measurable contribution to acceptable
penal goals and, therefore, is nothing more than a needless imposition
of pain and suffering. State v. Campbell, 404 So.2d 1205 (La.1981).
Additionally, the trial court is given wide discretion in imposing a
sentence, and, absent a manifest abuse of that discretion, the reviewing
court should not deem as excessive a sentence imposed within statutory
limits. State v. Howard, 414 So.2d 1210 (La.1982); State v. Pyke, 95-
919 (La.App. 3 Cir. 3/6/96), 670 So.2d 713. Still, a sentence that falls
within the statutory limits may be excessive under the particular
circumstances of a given case. State v. Sepulvado, 367 So.2d 762
(La.1979). Additionally, “[m]aximum sentences are reserved for the
most serious violations and the worst offenders.” State v. Farhood, 02-
490, p.11 (La.App. 5 Cir. 3/25/03), 844 So.2d 217, 225. The only
relevant question for the reviewing court to consider is not whether
another sentence would be more appropriate, but rather whether the trial

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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).

Louisiana Code of Criminal Procedure Article 894.1(A) provides
that the trial court should impose an imprisonment sentence if any of the
following are established by the record:

(1) There is an undue risk that during the period of a
suspended sentence or probation the defendant will commit
another crime.

(2) The defendant is in need of correctional treatment or a
custodial environment that can be provided most effectively by
his commitment to an institution.

(3) A lesser sentence will deprecate the seriousness of the
defendant’s crime.

Additionally, the trial court must “state for the record the considerations
taken into account and the factual basis therefor in imposing sentence.”
La.Code Crim.P. art. 894.1(C). However, in complying with this article,
the trial court “need not articulate every circumstance or read through a
checklist of items.” State v. Anderson, 95-1688, p.4 (La.App. 3 Cir.
5/8/96), 677 So.2d 480, 483.

....

Citing the supreme court in State v. Telsee, 425 So.2d 1251
(La.1983), the fifth circuit, in State v. Lisotta, 98-648, p.4 (La.App. 5
Cir. 12/16/98), 726 So.2d 57, 58, writ denied, 99-433 (La.6/25/99), 745
So.2d 1183, suggested that:

The court should consider three factors in reviewing
a judge’s sentencing discretion:

1. the nature of the crime,

2. the nature and background of the offender, and

3. the sentence imposed for similar crimes by the same
court and other courts.

State v. Fontenot, 09-1044, pp. 4-6 (La. App. 3 Cir. 5/12/10), 38 So.3d 1122, 1125-

26.

At the sentencing hearing, the trial court stated the following:

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She entered pleas of guilty on April the 28th, 2010, and the plea
agreement with the State was that the State would dismiss number
78,295, 78,296 in return for the pleas of guilty to the two numbered
matters I have called and the State agreed not to seek any habitual
offender enhancement of the sentence as part of the plea agreement.1
The court ordered a pre-sentence investigation and the court has
received that report and I have reviewed its contents in determining the
sentence in this case.

....

. . . The court considered the factors of Article 894.1 of the Code of
Criminal Procedure and found that the following were 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. . . . There are no substantial grounds tending to excuse or justify
the defendant’s criminal conduct nor did she act under strong
provocation by anyone. She is fifty-five years of age. She’s divorced
and has three children. She is in somewhat poor health in that she is a
diabetic and she claims to be on several medications at this time for
various things. She is drawing currently Social Security Benefits. She
has a ninth grade education. She has a history of drug and alcohol abuse
- or, rather she denies any history of drug or alcohol abuse. However,
she admitted that she had gotten these drugs from a doctor in Texas for
some problem that she may have had regarding some pain. She does
have a prior record and is classified as a third felony offender in the
report. The report indicates that on June 24th, 1982 in the 30th Judicial
District Court, she was convicted of felony grade theft and simple
burglary and given eighteen months DOC time. That was suspended
and she was placed on three years supervised probation. Then, on July
31st, 1995 in the 30th Judicial District Court, she was convicted of
illegal possession of stolen property, a felony grade, and given eighteen
months with the Department of Corrections and that was suspended and
she was placed on supervised probation for a period of three years. She
completed both of those probations satisfactorily and the last one, as I
noted, was in 1995 and it’s somewhat of a puzzle to me as to why she is
now in the, in the business of distributing pain killers and it’s, it’s
somewhat of a puzzle to me that she would do that, quite frankly, unless
she needed the money perhaps. . . . [B]ecause it is her third felony
offended[sic] - offense the court is of the opinion that she has had
multiple opportunities to learn the error of her ways in the past and she
hasn’t and she’s now in the drug culture so the court finds that the
sentences and, quite frankly, probation did not deter this in the past and
so it’s not something the court is willing to consider at this time.

1
The Defendant was charged with distribution of Xanax in docket number 78295 and
distribution of Lorcet in docket number 78296.

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The Defendant contends the trial court failed to give adequate consideration

to her age, medical problems, and the fact that she responded well to probation in the

past. The Defendant also contends the trial court failed to note that she had only two

prior convictions, one in 1982 and the other in 1995, that were not drug-related, and

she obtained the drugs in question with a valid prescription. The Defendant further

contends that her sentences are excessive.

We find the trial court considered the nature of the crimes and thoroughly

reviewed the Defendant’s background at the time of sentencing. The trial court was

aware of her age, medical problems, that she had two prior convictions, had been on

probation, and had obtained the drugs in question with a valid prescription. “[T]here

is no requirement that specific mitigating factors be given any particular weight by

the sentencing court.” State v. Bey, 03-277, pp. 11-12 (La.App. 3 Cir. 10/15/03), 857

So.2d 1268, 1275.

In light of the Defendant’s status as a third felony offender, the fact that she did

not receive maximum sentences, and she received a substantial benefit from the plea

bargain, we find the Defendant’s sentences are not excessive. Accordingly, this

assignment of error lacks merit.

CONCLUSION

The Defendant’s sentences are affirmed.

AFFIRMED.

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

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