State of Louisiana v. Mark Thomas Williams AKA Mark T. Williams AKA Mark Williams

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

11-708

STATE OF LOUISIANA

VERSUS

MARK THOMAS WILLIAMS
AKA MARK T. WILLIAMS
AKA MARK WILLIAMS

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APPEAL FROM THE
THIRTIETH JUDICIAL DISTRICT COURT
PARISH OF VERNON, NO. 80,022
HONORABLE VERNON B. CLARK, DISTRICT JUDGE

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SHANNON J. GREMILLION
JUDGE

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Court composed of Jimmie C. Peters, Marc T. Amy, and Shannon J. Gremillion,
Judges.

AFFIRMED.

Paula C. Marx
Louisiana Appellate Project
P. O. Box 80006
Lafayette, LA 70598-0006
(337) 991-9757
COUNSEL FOR DEFENDANT/APPELLANT:
Mark Thomas Williams
AKA Mark T. Williams
AKA Mark Williams

Asa A. Skinner
District Attorney, 30th Judicial District Court
P.O. Box 1188
Leesville, LA 71496-1188
(337) 239-2008
COUNSEL FOR APPELLEE:
State of Louisiana

Terry Wayne Lambright
Assistant District Attorney, 30th Judicial District Court
P. O. Box 1188
Leesville, LA 71496-1188
(337) 239-2008
COUNSEL FOR APPELLEE:
State of Louisiana

GREMILLION, Judge.

Defendant, Mark Thomas Williams, was originally charged with several

offenses: possession of marijuana, improper lane usage, open container in a

vehicle, contributing to the delinquency of a juvenile, and possession of a

controlled dangerous substance, marijuana, on the premises of a jail. On January

11, 2011, Defendant pled guilty to one count of contraband in a penal institution, a

violation of La.R.S. 14:402, and one count of improper lane usage, a violation of

La.R.S. 32:79. The remaining charges were dismissed.

Defendant was sentenced to three years hard labor, suspended, on the

conviction for possession of contraband on the premises of a jail, with three years

supervised probation, restitution to the Public Defender’s Office, other special

conditions, and ordered to pay a fine of seventy-five dollars, or fifteen days in jail,

on the conviction for improper lane usage. Defendant filed a “Motion to

Reconsider Sentence” on April 18, 2011. The trial court denied the motion without

a hearing or written reasons.

Defendant appeals, asserting one assignment of error: The trial court erred

when it denied him “the benefits available upon completion of his three-year

probation as provided in La.Code Crim.P. art. 893 (E)(2).” For the following

reasons, Defendant’s sentence is affirmed.

FACTS

On August 8, 2009, Defendant was pulled over for a traffic violation. As he

was being booked into the Leesville City Jail for the above mentioned offenses, the

police found on his person a baggie of a green leafy substance, which later proved

to be marijuana.

ASSIGNMENT OF ERROR

Defendant argues that because the trial court specifically denied the request

for him to be sentenced pursuant to La.Code Crim.P. art. 893, he was deprived of

the option, or benefit, of petitioning the trial court to set aside the conviction and

dismiss the prosecution following successful completion of the probationary

period.

Louisiana Code of Criminal Procedure Article 893, in pertinent part, allows

suspension or deference of sentence, except for certain enumerated offenses, as

follows:

A. When it appears that the best interest of the public and of the
defendant will be served, the court, after a first or second conviction
of a noncapital felony, may suspend, in whole or in part, the
imposition or execution of either or both sentences, where suspension
is allowed under the law, and in either or both cases place the
defendant on probation under the supervision of the division of
probation and parole. . . .

....

E. (1)(a) When it appears that the best interest of the public and
of the defendant will be served, the court may defer, in whole or in
part, the imposition of a sentence after conviction of a first offense
noncapital felony under the conditions set forth in this Paragraph.
When a conviction is entered under this Paragraph, the court may
defer the imposition of sentence and place the defendant on probation
under the supervision of the division of probation and parole.

....

(2) Upon motion of the defendant, if the court finds at the
conclusion of the probationary period that the probation of the
defendant has been satisfactory, the court may set the conviction aside
and dismiss the prosecution. . . .

At the sentencing hearing, the trial court initially stated that “[t]here was a

request by the Defense at the time of the plea that the Court consider sentencing

under Article 893 and for concurrent sentences.” However, following a recitation

of the facts of the case and a review of Defendant’s presentence investigation

report, the trial court stated:

All right sir. All right. He’s a first felony offender. The Court is
going to deny the request for an 893 though and sentence him as
follows: On 80,022, possession of the contraband, that he serve three
years at hard labor with the Louisiana Department of Corrections and
there’s no fine provision in that Article or in that statute so I—I’m not

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entitled to impose any fine. I’m suspending the execution of the prison
sentence and placing him on supervised probation[.]

Defendant argues the trial court’s action of denying his request to be

sentenced under Article 893 was premature. The State, however, argues in brief

that it is not a matter of prematurity. The State contends that since the trial court

suspended his sentence, rather than deferring the imposition of a sentence, the

benefit of petitioning for the conviction to be set aside and the prosecution

dismissed is not available to Defendant.

At the guilty plea hearing, the only discussion of Article 893 was a brief

remark made by defense counsel that Defendant was “requesting consideration for

these pleas under Article 893[.]” Despite the brevity of the language and the trial

court’s apparent refusal to sentence Defendant pursuant to Article 893, it

essentially did grant Defendant’s request. Louisiana Code Criminal Procedure

Article 893(A) is the statutory authority to suspend a sentence under certain

conditions.

Furthermore, as pointed out by the State, there is no option to request the

conviction be set aside and the prosecution dismissed when a sentence is

suspended, as opposed to when the imposition of a sentence is deferred.

Accordingly, the trial court’s decision to sentence Defendant pursuant to Article

893(A) was not premature. See Horton v. Curry, 45,871 (La.App. 2 Cir. 7/22/10),

44 So.3d 830, wherein the second circuit, while discussing expungement of a

criminal record, noted that only when the imposition of a sentence was deferred

pursuant to La.Code Crim.P. art. 893(E)(1)(a) at the time of sentencing could the

record be ultimately expunged. See also State v. Comardelle, 06-251 (La.App. 5

Cir. 9/26/06), 942 So.2d 1126.

Defendant does not challenge the legality of this sentence otherwise. In

State v. Sibley, 09-1104 (La.App. 3 Cir. 6/2/10), 41 So.3d 581, this court has held

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that a trial court has vast discretion in imposing sentences and the sentence shall

not be set aside absent manifest abuse of discretion. Moreover, “[t]he 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).” Id. at 583 (quoting 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). At the sentencing hearing, the trial court noted that, while

Defendant was a first time felony offender, he had several misdemeanor offenses

including assault, theft, trespass, operating a vehicle while intoxicated, and

improper telephone communications and that on two occasions he had not

terminated probation satisfactorily. He also had two pending felony charges in

Texas. The trial court did not abuse its discretion when it refused to defer

imposition of sentence but instead suspended the sentence.

DECREE

Defendant’s sentence is affirmed.

AFFIRMED.

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