State of Louisiana v. Javier C. Gonzales

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

KA 11-1063

STATE OF LOUISIANA

VERSUS

JAVIER C. GONZALES

**********

APPEAL FROM THE
THIRTY-SIXTH JUDICIAL DISTRICT COURT
PARISH OF BEAUREGARD, NO. CR2010-254
HONORABLE MARTHA ANN O’NEAL, DISTRICT JUDGE

**********

BILLY HOWARD EZELL
JUDGE

**********

Court composed of John D. Saunders, Elizabeth A. Pickett, and Billy Howard
Ezell, Judges.

SENTENCE AFFIRMED; REMANDED WITH INSTRUCTIONS

David W. Burton
District Attorney
Richard Alan Morton
Assistant District Attorney
P. O. Box 99
DeRidder, LA 70634
(337) 463-5578
COUNSEL FOR PLAINTIFF/APPELLEE:
State of Louisiana

Mary E. Roper
Louisiana Appellate Project
830 Main Street
Baton Rouge, LA 70802-5597
(225) 387-6600
COUNSEL FOR DEFENDANT/APPELLANT:
Javier C. Gonzales

EZELL, Judge.

Defendant, Javier C. Gonzales, was charged by a bill of information with

one count of possession of a controlled dangerous substance, to wit: marijuana,

with the intent to distribute, a violation of La.R.S. 40:966. On May 16, 2011,

Defendant pled guilty to the charged offense. The trial court requested a “limited”

presentence investigation report.

Defendant was sentenced on June 15, 2011, to five years at hard labor, with

all but two years suspended and three years supervised probation upon release.

Defendant filed a “Motion to Reconsider Sentence” on June 17, 2011. The motion

was denied on the same date without written reasons.

Defendant has perfected a timely appeal. He argues that the five year

sentence is excessive under the circumstances of his case and that the trial court

erred when it refused to reconsider the sentence.

For the following reasons, we affirm the five-year prison sentence as

imposed by the trial court.

FACTS

Whereas Defendant pled guilty, there were no facts given at the guilty plea

hearing. However, a Task Force Offense Report indicates that after being advised

that Defendant was selling marijuana out of his home, officers went to Defendant’s

home. When Defendant answered the door, the officers asked him if he was selling

marijuana. Defendant admitted he was and consented to a search of his home. Six

ounces of marijuana were located in his freezer.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for

errors patent on the face of the record. After reviewing the record, there is one

error patent.

The sentencing minutes provide that “a payment plan is to be established by

the probation officer.” A review of the transcript indicates the trial court did not

order a payment plan. Accordingly, the transcript prevails. State v. Wommack, 00-

137 (La.App. 3 Cir. 6/7/00), 770 So.2d 365, writ denied, 00-2051 (La. 9/21/01),

797 So.2d 62. When the fine, court costs, and fees are imposed as conditions of

probation and the trial court is silent as to a payment plan, as in this case, this court

has required a specific payment plan be established. See State v. Wagner, 07-128

(La.App. 3 Cir. 11/5/08), 996 So.2d 1208. Therefore, the matter is remanded to the

trial court for establishment of a payment plan for the fine, fees, and court costs,

noting that the plan may either be determined by the trial court or by probation and

parole, with approval by the trial court. See State v. Stevens, 06-818 (La.App. 3

Cir. 1/31/07), 949 So.2d 597.

ASSIGNMENTS OF ERROR

Defendant asserts two assignments of error, that the sentence imposed on the

conviction for possession of marijuana with intent to distribute was excessive and

that the trial court refused to reconsider the sentence.

In brief, Defendant argues that the trial court failed to take into consideration

the fact that he was a twenty-three year old, first felony offender and that he had

only resorted to selling marijuana after he had been out of work for a month

without finding other employment.

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
2

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.

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 pled guilty to one count of possession of marijuana with intent to

distribute, a violation of La.R.S. 40:966, which in pertinent part provides for a

range of punishment of not less than five nor more than thirty years imprisonment

and a fine of not more than fifty thousand dollars. La.R.S. 40:966(B)(3). Defendant

was sentenced to the minimum sentence of five years with all but two years

suspended and a fine of $1,500.00, plus court costs. He was also ordered to serve

three years supervised probation upon release.

Prior to sentencing, the trial court ordered a “limited” presentence

investigation report. The trial court also received letters from both the State and

defense counsel outlining the facts of the case and their positions as to what
3

sentence would be appropriate in this case and the basis for their recommendations.

The trial court also received letters from prior employers and friends of Defendant

who spoke of Defendant’s good attributes and requested leniency. At the

sentencing hearing, the trial court noted that it had reviewed the presentence

investigation report and the comments from the State and defense counsel.

On June 17, 2011, Defendant filed a “Motion to Reconsider Sentence,”

wherein he argued the sentence was excessive compared to two other defendants

who pled guilty on the same date to the same charge but received five years,

suspended, with fifteen days and forty-five days jail time respectively. The trial

court denied the motion without written reasons on the same date.

A trial court has vast discretion in imposing a sentence, and a sentence

imposed within the statutory limits should not be set aside absent a clear showing

of abuse of that discretion. State v. Brown, 02-1382 (La.App. 3 Cir. 4/2/03), 842

So.2d 1181, writ denied, 03-1224 (La. 11/7/03), 857 So.2d 491. See also State v.

Cook, 95-2784 (La. 5/31/96), 674 So.2d 957, cert. denied, 519 U.S. 1043, 117

S.Ct. 615 (1996), wherein the supreme court noted that the question is whether the

trial court abused its discretion and not whether another sentence would have been

more appropriate.

In Brown, this court did not find a five-year sentence imposed on a young,

first felony offender, who was a paraplegic caught transporting twenty-eight

pounds of marijuana was an abuse of discretion. This court noted that the charge

had been reduced to attempted possession of marijuana with intent to distribute;

accordingly, the defendant was exposed to fifteen years imprisonment but received

only one-third of the potential term.

In State v. Champagne, 07-97 (La.App. 3 Cir. 5/30/07), 957 So.2d 962, this

court affirmed a sentence of ten years imposed on a conviction for possession of
4

marijuana with intent to distribute. The defendant was a second felony offender—

the prior felony also being a drug offense—but had led an “otherwise law-abiding

life” and had five dependents at home. This court noted that the defendant had

received only one-third of the potential term of imprisonment he could have

received under the circumstances of his case.

The above offenders received only five and ten years imprisonment

respectively for possessing several pounds of marijuana. In Defendant’s case, he

received five years imprisonment, with all by two years suspended, for possessing

only six ounces of marijuana. However, as pointed out by the State, while the

amount of marijuana in the above-referenced cases was significantly more than the

six ounces found in Defendant’s freezer, Defendant had told the officers that in the

three or four months he had been selling the marijuana, he made eleven to twelve

thousand dollars, which translates to a sizable amount of marijuana. Except for the

fact Defendant is young and a first felony offender, he does not offer any other

mitigating factor that was not put before the trial court.

The court finds there is nothing in the record before this court which

indicates that the trial court abused its considerable discretion when it sentenced

Defendant to five years imprisonment, three years suspended, with three years

supervised probation, and a $1,500.00 fine. The sentence was minimal compared

to what he could have received, and the sentence does not shock this court’s sense

of justice.

Accordingly, because there is no finding of abuse of discretion by the trial

court, the trial court did not commit error when it denied Defendant’s motion for

reconsideration of the sentence without an evidentiary hearing.

5

DISPOSITION

We affirm the sentence as imposed and remand the case to the trial court for

establishment of a payment plan for the fine, fees, and court costs, noting that the

plan may either be determined by the trial court or by probation and parole, with

approval by the trial court.

SENTENCE AFFIRMED; REMANDED WITH INSTRUCTIONS.

This opinion is NOT DESIGNATED FOR PUBLICATION. Uniform

Rules-Courts of Appeal. Rule 2-16.3.

6