State of Louisiana v. Jerry L. Lefeat

DO NOT PUBLISH

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

11-297

STATE OF LOUISIANA

VERSUS

JERRY L. LEFEAT

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APPEAL FROM THE
THIRTIETH JUDICIAL DISTRICT COURT
PARISH OF VERNON, NO. 78556
HONORABLE VERNON B. CLARK, DISTRICT JUDGE

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J. DAVID PAINTER
JUDGE

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Court composed of John D. Saunders, J. David Painter, and James T. Genovese,
Judges.

AFFIRMED.

Paula C. Marx
P.O. Box 80006
Lafayette, LA 70598-0006
COUNSEL FOR DEFENDANT/APPELLANT:
Jerry L. Lefeat

Terry W. Lambright
P.O. Box 1188
Leesville, LA 71446
COUNSEL FOR APPELLEE:
State of Louisiana

PAINTER, Judge.

Defendant, Jerry L. Lefeat, appeals as excessive the sentence imposed in

connection with his conviction of possession of a controlled dangerous substance,

specifically Xanax. For the following reasons, we affirm the sentence imposed.

FACTS

Subject to a valid traffic stop, Defendant was searched, and the officer found

four and one-half pills of Xanax in a cigarette pack in Defendant’s pocket.

Defendant admitted that he did not have a prescription for Xanax.

Defendant was charged by bills of information with one count of possession

of a controlled dangerous substance, Xanax, a violation of La.R.S. 40:969, one

count of possession of drug paraphernalia, a violation of La.R.S. 40:1023, one

count of operating a motor vehicle with an expired MVI Sticker, a violation of

La.R.S. 32:1304, and one count of aggravated battery, a violation of La.R.S. 14:34.

On October 15, 2010, Defendant pled guilty to the reduced charge of

attempted possession of Xanax. In exchange for his guilty plea, the State dismissed

the remaining charges and agreed not to file any habitual offender proceedings

against Defendant.

On December 8, 2010, Defendant was sentenced to two years at hard labor,

with credit for time served with the sentence to be served concurrently with any

other sentence Defendant may have had to serve at the time of the guilty plea.

Defendant filed a AMotion to Reconsider Sentence@ on December 16, 2010. The

motion was denied without a hearing or written reasons.

Defendant has perfected a timely appeal, asserting only that the sentence

was excessive under the circumstances of his case.

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DISCUSSION

Defendant argues that the near maximum sentence of two years was

excessive because he was found in possession of only four and one-half Xanax

pills and that the trial court did not consider certain mitigating factors.

Defendant pled guilty to attempted possession of a controlled dangerous

substance, in violation of La.R.S. 14:27 and 40:967(C). Louisiana Revised

Statutes 40:967(C)(2) provides that for the offense of possession of a schedule II

drug, the offender may be imprisoned with or without hard labor for up to five

years and may be ordered to pay a fine of not more than five thousand dollars. The

attempt statute, La.R.S. 14:27(D)(3), provides that an offender Ashall be fined or

imprisoned or both, in the same manner as for the offense attempted; such fine or

imprisonment shall not exceed one-half of the largest fine, or one-half of the

longest term of imprisonment prescribed for the offense so attempted, or both.@

Defendant could have received a maximum sentence of two and one-half years and

a two thousand two hundred and fifty dollar fine. He was sentenced to two years at

hard labor and received a one thousand dollar fine.

In State v. Williams, 03-3514, p. 14 (La. 12/13/04), 893 So.2d 7, 16-17, the

supreme court stated the standard of review for a sentence as follows:

The trial judge is given a wide discretion in the imposition of
sentences within the statutory limits, and the sentence imposed by him
should not be set aside as excessive in the absence of a manifest abuse
of his discretion. State v. Thompson, 2002-0333 (La.4/9/03), 842
So.2d 330; State v. Washington, 414 So.2d 313 (La.1982); State v.
Abercrumbia, 412 So.2d 1027 (La.1982). A trial judge is in the best
position to consider the aggravating and mitigating circumstances of a
particular case, and, therefore, is given broad discretion in sentencing.
State v. Cook, 95-2785 (La.5/31/96), 674 So.2d 957. On review, an
appellate court does not determine whether another sentence may
have been more appropriate, but whether the trial court abused its
discretion. Id.

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Furthermore, 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

stated:

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. 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, Ait 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).

Finally, in State v. Williams, 02-707, p. 8 (La.App. 3 Cir. 3/5/03), 839 So.2d

1095, 1101, this court held that A[t]he trial court may also consider other factors

not provided by La.Code Crim.P. art. 894.1[,]@ including Athe benefit obtained by

the defendant through the plea bargain.@

At the sentencing hearing, noting that Defendant=s father was recently

seriously injured and needed Defendant=s assistance, the trial court stated:

I reviewed the pre-sentence report[,] and the Court is going to note
now that the report indicates Mr. Lefeat is a third felony offender
which means that he is not qualified or eligible for probationary
treatment in this case unless it was under the special circumstances of
a Drug Court offense and that is not the case here as part of this plea
agreement, so the defendant is not eligible for probation as a third
felony offender and I am somewhat restricted. … The court notes that
thereBthis is drug case under Article 894.1 factors[,] and there is
significant economic harm or impact on society in general when one
deals in the use or distribution of illegal drugs. There are no
substantial grounds tending to excuse or justify this criminal
conduct… The defendant did not act under strong provocation by
anyone. He=s forty-eight years of old [sic]Bage and he=s divorce[d] and
has two children. He=s in good health. He has some employment
history in the past. He has a tenth grade education. He has had a
history of drug and alcohol use in the past. His drug of choice has
been some cocaine use and in 1997, he did go through an inpatient
treatment program at Bridge House but apparently has continued
some drug use thereafter. As I noted, he=s classified as a third felony
offender and the record reflects that on September the 8th, 1995 in the
30th Judicial District Court he was convicted of forgery and theft,
given a five-year Department of Corrections sentence, which was
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suspended and he was placed on five years of supervised probation.
That probation was subsequently revoked January 25, 2001. On
February 27th, 2001 in the 36th Judicial District Court, he was
convicted of issuing worthless checks, felony grade, and given one
year with the Department of Corrections. The report also indicates
that beginning in 1980, in the Jennings City court, he had begun a
history of misdemeanor criminal activity, mostly DWI=s, some of
which involved probation, which in most cases his probation was
revoked because of noncompliance… He[ ] has a very poor history
then of compliance with any kind of probationary treatment he=s
received in the past which certainly would negate any consideration
for probation in this case were he even eligible for such. The Court
therefore, sentences him considering these factors as followsBand, and
I will also note that [] Ms. Nelson was able to cut his exposure in half,
by the plea agreement, from five years to two and one [half] years and
that=s certainly, a significant reduction in this exposure.

Moreover, Defendant=s exposure to imprisonment was significantly reduced

by his plea agreement in that the State agreed to dismiss several charges, including

an aggravated battery charge, which carries a maximum of ten years imprisonment,

and the State agreed to not file a habitual offender bill against Defendant.

Concerning the amount of the illegal drug found in Defendant=s possession,

the trial court did not abuse its discretion when it sentenced Defendant to two years

at hard labor, which was six months short of the maximum sentence in this case.

See State v. Rowe, 43,272 (La.App. 2 Cir. 5/7/08), 982 So.2d 362, State v. Morton,

05-137 (La.App. 5 Cir. 7/26/05), 910 So.2d 973, and State v. Simons, 29,544

(La.App. 2 Cir. 5/7/97), 694 So.2d 593.

While Defendant argues that the trial court did not take into consideration

mitigating circumstances, he did not list what factors the trial court failed to

consider. The trial court fully considered Defendant=s position and circumstances

and, accordingly, did not abuse its vast discretion when it sentenced Defendant to

two years imprisonment. Accordingly, the sentence is affirmed.

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CONCLUSION

Under the circumstances, we find that the sentence imposed was not an

abuse of the trial court’s discretion. As a result, Defendant’s sentence is affirmed.

AFFIRMED.

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