State of Louisiana v. Sherrel King

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
10-1215

STATE OF LOUISIANA

VERSUS

SHERREL KING

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APPEAL FROM THE
THIRTIETH JUDICIAL DISTRICT COURT
PARISH OF VERNON, NO. 76909
HONORABLE JOHN C. FORD, DISTRICT JUDGE

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J. DAVID PAINTER
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, J. David Painter, and
Phyllis M. Keaty, Judges.

AFFIRMED.

Asa Skinner
District Attorney
Terry Lambright
Assistant District Attorney
P.O. Box 1188
Leesville, LA 71496
Counsel for Appellee:
State of Louisiana

G. Paul Marx
Louisiana Appellate Project
P.O. Box 82389
Lafayette, LA 70598
Counsel for Defendant/Appellant:
Sherrel King

PAINTER, Judge.

Defendant, Sherrel King, appeals the sentence imposed in connection with her

conviction for distribution of cocaine. For the following reasons, we affirm the

sentence.

FACTS

On December 22, 2008, Defendant sold crack cocaine to a confidential

informant. She was charged by bill of information filed on August 5, 2009, with

distribution of cocaine, in violation of La.R.S. 40:967, and entered a plea of not

guilty on August 11, 2009. Jury selection began on December 7, 2009. Prior to the

selection of all jurors, Defendant changed her plea to guilty. Defendant was

sentenced on February 23, 2010, to serve ten years at hard labor, to run concurrently

with any other sentence.

Defendant filed a pro se motion for reconsideration of sentence on February

25, 2010. The motion was denied on March 4, 2010. On April 20, 2010, Defendant

filed a pro se motion for out-of-time appeal. On May 14, 2010, Defendant filed

another pro se motion for reconsideration of sentence. The motion was denied on

May 20, 2010. On May 20, 2010, Defendant filed a second motion for out-of-time

appeal. On June 19, 2010, the trial court denied the first motion for out-of-time

appeal. On August 31, 2010, the trial court granted the second motion for out-of-time

appeal. On September 14, 2010, defense counsel filed a motion for appeal, which

was subsequently granted.

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

contends that the trial court erred in imposing a hard labor sentence which terminated

her drug treatment.

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DISCUSSION

In her only assignment of error, Defendant contends that the trial court erred

in imposing a hard labor sentence which terminated her drug treatment. Defendant

asserts that she was near completion of her treatment plan and could have served a

mixed sentence, which would have best served the public interest and her own by

addressing what the trial court found was a serious drug addiction.

Defendant pled guilty to distribution of crack cocaine, which is punishable by

a term of imprisonment from two to thirty years. La.R.S. 40:967. Defendant was

sentenced to serve ten years at hard labor, to run concurrently with any other

sentence.

To determine whether a sentence is constitutionally excessive, this court has

stated that:

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 (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 (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.

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, this court held that in order to

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decide whether a sentence shocks the sense of justice or makes no meaningful

contribution to acceptable penal goals, the following factors may be considered:

[T]he 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 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.

At the sentencing hearing, defense counsel informed the trial court that

Defendant expressed a desire for the trial court to consider her as a candidate for drug

court. Further, she had a certificate showing that she completed the program at

Washington Street Center, an inpatient rehabilitation facility, and had been referred

for additional rehabilitation at Freedom House in Baton Rouge. The State indicated

that it was opposed to referring Defendant to drug court. When sentencing

Defendant, the trial court indicated that Defendant was a fourth felony offender, and

it considered her completion of rehabilitation.

Defendant contends that after she committed the offense, she went to inpatient

treatment and successfully addressed her addiction, with the opportunity to complete

treatment at Freedom House in Baton Rouge. She asserts that the trial court could

have allowed her to complete treatment and then serve the two-year minimum with

rigorous supervision after incarceration. However, Defendant did not mention drug

treatment in either of her motions for reconsideration of sentence and did not object

to the sentence at the sentencing hearing on the basis that she should be allowed to

attend rehabilitation at Freedom House. Therefore, the issue is not properly before

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this court as a basis for excessiveness of sentence and will not be addressed by this

court. La.Code Crim.P. art. 881.1.

Defendant also contends that the imposition of a prison term was excessive

given the fact that she had treatment and was passing drug screens in advance of

sentencing. However, the record reveals that Defendant is a fourth felony offender.

Further, pursuant to her plea agreement, the State agreed not to charge her as a

habitual offender and dismissed charges of theft in an amount greater than $300, four

counts of theft in an amount greater than $500, conspiracy to distribute cocaine, and

possession with intent to distribute cocaine. Based on Defendant’s criminal history

and the benefit she received from the plea bargain, we find that her sentence is not

excessive.

CONCLUSION

For these reasons, we affirm the sentence imposed by the trial court.

AFFIRMED.

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