State of Louisiana v. Catrina L. Wallace

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

11-1258

STATE OF LOUISIANA

VERSUS

CATRINA L. WALLACE

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APPEAL FROM THE
TWENTY-EIGHTH JUDICIAL DISTRICT COURT
PARISH OF LASALLE, NO. 89648
HONORABLE J. CHRISTOPHER PETERS, DISTRICT JUDGE

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SHANNON J. GREMILLION
JUDGE

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Court composed of James T. Genovese, Shannon J. Gremillion, and Phyllis M.
Keaty, Judges.

CONVICTIONS AFFIRMED; SENTENCES VACATED AND REMANDED
FOR RESENTENCING.

James Edgar Boren
Attorney at Law
830 Main Street
Baton Rouge, LA 70802
(225) 387-5786
COUNSEL FOR DEFENDANT/APPELLANT:
Catrina L. Wallace

Rachel Jones Conner
Attorney At Law
4833 Conti Street, Suite 207
New Orleans, LA 70119
(504) 427-7038
COUNSEL FOR DEFENDANT/APPELLANT:
Catrina L. Wallace

J. Reed Walters
District Attorney - 28th Judicial District Court
P. O. Box 1940
Jena, LA 71342
(318) 992-8282
COUNSEL FOR APPELLEE:
State of Louisiana

GREMILLION, Judge.

On three separate occasions within a three-week period, Defendant sold a

confidential informant one to three grams of cocaine. She was charged by a bill of

information with three counts of distribution of a controlled dangerous substance,

cocaine, a violation of La.R.S. 40:967(A). A jury convicted her on each count.

Defendant was sentenced to serve five years at hard labor on each count, to run

consecutively, with the first two years to be served without the benefit of parole,

probation, or suspension of sentence, for a total of fifteen years imprisonment and

three thousand dollars in fines plus court costs.

Defendant appeals and assigns as error: 1) The trial court erred when it

denied her request to strike a potential juror for cause; and 2) The consecutive

sentences, totaling fifteen years, are constitutionally excessive considering the

circumstances of her case. For the following reasons, we affirm the convictions.

However, we find merit in Defendant‟s contention that the imposed consecutive

sentences are excessive, and we vacate the sentences, and we remand the matter to

the trial court for resentencing.

ASSIGNMENT OF ERROR NUMBER ONE

Defendant argues that the trial court erred when it denied her challenge for

cause when she sought to exclude a prospective juror who declared that he would

hold it against Defendant if she did not testify. As a result of the trial court‟s

refusal, Defendant was forced to use a peremptory challenge to excuse the juror,

“thereby prejudicing her right to effective voir dire examination and selection of a

fair and impartial jury.” In State v. Schmidt, 99-1412, pp. 29-30 (La.App. 3 Cir.

7/26/00), 771 So.2d 131, 148, writ denied, 00-2950 (La. 9/28/01), 798 So.2d 105,

cert. denied, 535 U.S. 905, 122 S.Ct. 1205 (2002), this court stated:

A criminal defendant has the fundamental right to have a jury
determine whether he may be guilty or innocent; whether the state
proved all elements of the crime beyond a reasonable doubt. La.
Const. art. I, § 17; State v. Lacoste, 256 La. 697, 237 So.2d 871
(1970). Nevertheless, this fundamental right would become
meaningless if not guided by the principle that the jury should be
impartial in order to ensure that the criminal defendant receives a fair
trial. This principle does not mean that a criminal defendant has the
right to be tried by a particular type of jury or juror, but it simply
means that it is essential that the jury be impartial and competent.
State v. McLean, 211 La. 413, 30 So.2d 187 (1947); State v. Lewis,
98-904 (La.App. 3 Cir. 12/9/98); 724 So.2d 830, writ denied, 99-0438
(La.11/12/99); 749 So.2d 649. To ensure that the jury is competent
and impartial, La. Const. art. I, § 17 provides safeguards, such as the
defendant‟s “right to full voir dire examination of prospective jurors
and to challenge jurors peremptorily.”

The purpose of voir dire is to test the competency and
impartiality of prospective jurors to determine whether they are fit to
serve on the jury. Voir dire is designed to uncover information about
the prospective jurors, which may be used as a basis for challenges for
cause or exercise of peremptory challenges. State v. Berry, 95-1610
(La.App. 1 Cir. 11/8/96); 684 So.2d 439, writ denied, 97-0278
(La.10/10/97); 703 So.2d 603. When a defendant exposes the
partiality of a juror, the juror may not be automatically excluded for
cause. The state or the trial court may rehabilitate the juror by asking
questions and obtaining answers demonstrating the juror‟s ability to
decide the case impartially pursuant to law and evidence. Ultimately,
the trial court has the power to determine whether or not a juror may
be excused for cause. State v. Turner, 96-845 (La.App. 3 Cir. 3/5/97);
692 So.2d 612, writ denied, 97-2761 (La.2/20/98); 709 So.2d 773.

In State v. Scott, 04-1312, pp. 16-17 (La. 1/19/06), 921 So.2d 904, 921, cert.

denied, 549 U.S. 858, 127 S.Ct. 137 (2006), overruled on other grounds by State v.

Dunn, 07-878 (La. 1/25/08), 947 So.2d 658, the supreme court discussed the trial

court‟s role in determining whether a prospective juror should be excused for cause

from the jury panel, as follows:

A trial court is vested with broad discretion in ruling on
challenges for cause, and its rulings will be reversed only when a
review of the voir dire record as a whole reveals an abuse of
discretion. State v. Cross, 93-1189, p. 7 (La.6/30/95), 658 So.2d 683,
686; State v. Robertson, 92-2660, p. 4 (La.1/14/94), 630 So.2d 1278,
1281. Prejudice is presumed when a challenge for cause is denied
erroneously by a trial court and the defendant ultimately exhausts his
peremptory challenges. Robertson, 92-2660 at p. 3, 630 So.2d at
1280; State v. Ross, 623 So.2d 643, 644 (La.1993). An erroneous
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ruling depriving an accused of a peremptory challenge is a substantial
violation of his constitutional and statutory rights and constitutes
reversible error. Cross, 93-1189 at p. 6, 658 So.2d at 686; State v.
Bourque, 622 So.2d 198, 225 (La.1993). “A challenge for cause
should be granted, even when a prospective juror declares his ability
to remain impartial, if the juror‟s responses as a whole reveal facts
from which bias, prejudice or inability to render judgment according
to law may be reasonably implied.” State v. Jones, 474 So.2d 919,
926 (La.1985). However, a trial court does not abuse its discretion
when it refuses to excuse a prospective juror on the ground he is not
impartial where, after further inquiry or instruction, the potential juror
has demonstrated a willingness and ability to decide the case
impartially according to the law and evidence. Robertson, 92-2660 at
p. 4, 630 So.2d at 1281.

To prove there has been error warranting reversal of a
conviction, defendant is only required to show: (1) the erroneous
denial of a challenge for cause; and (2) the use of all his peremptory
challenges. Robertson, 92-2660 at p. 3, 630 So.2d at 1281.

Louisiana Code of Criminal Procedure Article 797, in pertinent part,

provides:

The state or the defendant may challenge a juror for cause on
the ground that:

....

(2) The juror is not impartial, whatever the cause of his
partiality. An opinion or impression as to the guilt or innocence of the
defendant shall not of itself be sufficient ground of challenge to a
juror, if he declares, and the court is satisfied, that he can render an
impartial verdict according to the law and the evidence;

....

(4) The juror will not accept the law as given to him by the
court[.]

A review of the record shows that Defendant used all of her twelve

peremptory challenges, including one challenge used to exclude the prospective

juror after she attempted to have him excused for cause.

During voir dire, the trial court questioned the venire panel prior to the panel

being questioned by the State or Defendant. The trial court asked: “Because the

State has its burden of proof, the defendant does not have to prove anything, which
3

means she does not have to testify or present any evidence if she should choose not

to. Should she choose to elect to exercise this right, will any of you hold that

against her.” The prospective juror, Chad Estis, answered “Yes, sir.” A little later,

the State asked Mr. Estis about his response to the question of whether he would

hold it against Defendant if she did not testify:

Q. And I‟m not certain I understand, but I think I heard you say you
would hold it against the defendant, if she didn‟t testify?

A. Yes, sir, I mean, I mean, it kind of goes back to my kids, you
know. I mean if one of my kids was in the yard crying saying the
other one done something to it, and the other one don‟t say nothing,
guess who gets in trouble?

Q. Been there and done that. If the Judge tells you that the law is such
that the constitution of this country and of this State, says that the
defendant does not have to testify, can you apply that? Or would it be
difficult for you?

A. I understand it‟s the law and everything, I mean, but everybody‟s
got, you know, everybody‟s [sic] is their own person.

Q. I understand.

A. I mean, you can‟t make somebody think something (inaudible).

When it was Defendant‟s turn to question the prospective jurors, her counsel

went immediately to Mr. Estis. The following conversation took place:

Q. Good morning, again to you all. Mr. Estis, you said that if a person
does not get up and defend themselves that you, you‟d hold that
against them, is that correct?

A. I mean, if they‟re not going to defend themselves, they must be
guilty. That‟s the way I think.

Q. Okay. Even, even if the, even if the State doesn‟t put on enough
evidence, but just puts on a little evidence, but the defendant still
doesn‟t get up and say anything, you still find them guilty?

A. Well, it just depends on the situation. I mean, it seems like a person
would want to put their side of the story out there.

Q. You said it seems like the person would want to put their side of
the story out there?

4

A. Yeah, yes, ma‟am.

Q. And so, the Judge instructed you and also the D.A. has also
mentioned and told you about a law that says that the defendant, the
defendant does not have to testify, that that‟s their constitutional right.
And although that is the law, it doesn‟t change your opinion about
how you feel about that situation, does it?

A. Not really.

Q. You still would say if they do not testify, that you would hold that
against them?

A. I guess it really depends on the circumstances and everything, I
mean, but 90% of the time, I mean, you would think that if
somebody‟s not going to say nothing, you know, they don‟t want to, I
guess, incriminate theirselves [sic] (inaudible).

Q. You said it would depend on the circumstances. What kind of
circumstances would it depend on?

A. I don‟t know.

Q. You don‟t know. It‟s all right if that‟s how you truly feel and that‟s
what you‟re here for to tell the truth and be honest and that‟s what we
want is the truth and to be honest about your true feelings. So no one
is going to hold it against you if that‟s how you truly feel, regardless if
they have a law or not and you feel like you don‟t like that law and
you‟re still going to feel the same way, that‟s okay.

A. Yes, ma‟am.

Q. That‟s what we‟re here for. And so that‟s what you‟re telling me,
regardless of it they have a law, that‟s just how you feel. If they don‟t
get up and testify, then you‟re going to hold it against them?

A. Yes, ma‟am.

After defense counsel completed her examination of the prospective jurors,

the trial court spoke with Mr. Estis, as follows:

Q. Mr. Estis, I just have one question, one set of questions and I know
you knew they were coming. You said earlier that you, and obviously
it‟s human nature that we want to hear both sides of the story.

A. Yes, sir.

Q. And it‟s human nature, and I know how we may feel personally, if
we were in that situation how we would react. You understand that

5

our constitution provides that a person doesn‟t have to testify, doesn‟t
have to present any evidence if they don‟t want to?

A. Yes, sir.

Q. That‟s the whole idea of the State having to prove beyond a
reasonable doubt. You understand that?

A. (No audible response).

Q. So, given—and the State bearing the burden of proof. Given that, if
I instructed you in the final instructions, if you were selected as a
juror, if I instructed you that that was the law, which it is, that, would
you hold it against the defendant if she chose to exercise that right not
to take the stand and not to present any evidence?

A. I mean, if they didn‟t have anything against her, I wouldn‟t.

Q. Okay. I was fixing to say, if they didn‟t, if the State didn‟t prove its
case?

A. If they had nothing, I wouldn‟t, but if they had, you know, some
pretty substantial stuff against her—

Q. But you understand the State has to prove beyond a reasonable
doubt. If they don‟t reach that burden, then the case, then their case
falls, you understand that?

A. Yes, sir.

Q. And so, and so, you could abide by that, by that standard if the
State—now the State may have some evidence, may have, you know,
but they don‟t have enough to reach the burden, the standard for you
beyond a reasonable doubt, you could abide by that, right?

A. Yes, sir.

Defense counsel, the State, and the judge then retired to the judge‟s

chambers. The trial court asked if there were any challenges for cause. Defense

counsel challenged Mr. Estis for the reason he had stated that he would hold it

against Defendant if she did not testify. She argued:

MS. TODD: And we tried to rehabilitate him and asked him if
they had a law against it, would he change his mind. And he said: No.
Then he said it depended on the circumstances and I told him it‟s all
right, just tell the truth. He still was adamant about, well, he felt like
they should, they should speak if they did something wrong, and make

6

sure they didn‟t do anything wrong, they should speak. It was no
rehabilitation for him.

THE COURT: You didn‟t listen to me, did you? In any event,
Mr. Walters?

MR. WALTERS: I have to say, that‟s a close call, but I think he
did sufficiently rehabilitate himself when you asked him the questions
about, you understand that you can‟t hold that against her and, again,
some evidence, that‟s what prompted me to ask that question. So, I
think he‟s sufficiently rehabilitated. It‟s not like Mr. Ashworth and
Mr. Boyette. I mean, they were pretty clear.

The question referred to by the State was as follows:

I mean, it‟s not up to me. It‟s not up to the Judge. It‟s not up to
Ms. Todd. It‟s up to you as an individual juror. You deliberate with
your other, your fellow jurors, but y‟all come to the conclusion, yes
you have or you haven‟t. I mean, I may put one piece of evidence up
there and if you say: I believe it, proof beyond a reasonable doubt.
Conviction. But if I put one piece of evidence up there and you say: I
may need a little bit more. And you vote “not guilty”. So, it‟s the
weight, it‟s the quality, it‟s, you know, that‟s your decision. Do you
understand that?

Mr. Estis answered, “Yes, sir.”

The trial court then ruled:

Okay. I‟ve had opportunity to review Mr. Estis‟ demeanor. I
looked at him and I questioned him and I was concerned at his
answers to your questions, Ms. Todd, and to some of your questions,
Mr. Walters. But when I asked him point blank, what the deal is, I
think the question ends up in his mind, not necessarily right against
not self-incrimination or right not to testify, I think his concern is
more of a burden of, of a burden, what, what the, what constituted
reasonable doubt for him. I do believe he understood the law and I do
believe he was rehabilitated and I‟m going to disallow the challenge
for cause.

As noted in State v. Raymond, 08-1204, p. 10 (La.App. 5 Cir. 4/28/09), 13

So.3d 577, 585, writ denied, 09-1205 (La. 2/5/10), 27 So.3d 296, the Louisiana

Supreme Court “made it clear in State v. Kang, 02-2812, p. 8 (La. 10/21/03), 859

So.2d 649, 655, that courts of appeal are to give proper deference to the trial

court‟s findings with respect to voir dire, and that a prospective juror‟s responses

7

during voir dire should be viewed as a whole, and not on a piece-meal basis.”

Furthermore, in Raymond, the fifth circuit stated,

An appellate court does not have the benefit of observing the
potential jurors in person to assess the facial expressions and
intonations in voice as they answer questions. Therefore, this court
will not disturb such a decision by the trial judge unless a review of
the voir dire as a whole indicates an abuse of discretion.

Id. at 584 (citations omitted).

In Raymond, the fifth circuit found that the trial court did not abuse its

discretion when it denied a challenge for cause based on the prospective juror‟s

response that he would hold it against the defendant if he did not testify. The

defense‟s and the state‟s questions and the prospective juror‟s answers were in the

same vein as the current case.

When the prosecutor asked Mr. Terrio if he could put aside his
normal human curiosity and not let that affect his decision, Mr. Terrio
replied, “It‟s going to be on my mind. If I hear the evidence I‟m going
to take the evidence into consideration.” The prosecutor again asked
Mr. Terrio if he could accept the fact that the burden of proving the
case was on the State. Mr. Terrio stated, “I can accept that‟s the way
it‟s got to go but, I mean, like I said, if I‟m, if I‟m accused of a crime
and I‟m innocent I‟m, I‟m shouting to the top of this roof what I got
[sic] to say.” He continued, “That‟s, that‟s just human nature. Correct
me if I‟m wrong.” The prosecutor explained that sometimes people
don‟t take the stand because their lawyer tells them not to or there are
other considerations not directly having to do with the case. Mr.
Terrio stated, “Sure, I guess that‟s possible.”

The prosecutor then asked the prospective jurors whether any of
them had a problem sitting in judgment on another human being, and
Mr. Terrio responded negatively. He also indicated he would follow
the court‟s instruction that the State had to prove each element of the
crime. Afterwards, the following exchange occurred between the
judge and Mr. Terrio:

THE COURT:

All right.

Mr. Terrio, to spite your [sic], your inclination to
want to hear what the defendant has to say, if I tell you
he doesn‟t have to take the stand and that‟s the law,
you‟re becoming a judge now, okay, you‟re the judge,
8

are you going to follow the law whether you agree with it
or not?

MR. TERRIO: Yes.

THE COURT: Okay. You‟re sure?

MR. TERRIO: Yes.

Defense counsel subsequently challenged Mr. Terrio for cause,
arguing that Mr. Terrio repeatedly told the court he could not follow
the law regarding defendant‟s right not to testify. The prosecutor
responded that Mr. Terrio, in response to a question from the trial
judge at the end, said he could be fair. After a discussion, the trial
judge denied the challenge for cause as to Mr. Terrio.

A charge of bias may be removed by the rehabilitation of the
prospective juror. State v. Chapman, 410 So.2d 689, 695 (La.1981).
A trial judge‟s refusal to excuse a prospective juror on the ground that
he is not impartial is not an abuse of discretion where, on further
inquiry or instruction, the juror has demonstrated the willingness and
the ability to decide the case impartially according to the law and
evidence. State v. Welcome, 458 So.2d 1235, 1241 (La.1983), cert
denied, 470 U.S. 1088, 105 S.Ct. 1856, 85 L.Ed.2d 152 (1985).

In the instant case, although Mr. Terrio initially said that he had
a problem with defendant not testifying, on further inquiry, he
demonstrated the willingness and ability to decide the case impartially
according to the law and evidence. Therefore, we find that the trial
court did not err by denying the challenge for cause of Mr. Terrio.

Id. at 586-87.

The trial court was correct when it surmised that Mr. Estis‟ reaction to the

question of whether he would hold it against Defendant if she did not testify came

from a confusion of what constituted beyond a reasonable doubt. At one point,

defense counsel asked:

Q. Okay. You also, you all have heard Mr. Walters as well as Judge
Peters speak of burden of proof and they told you it‟s the State‟s
burden of proof, beyond a reasonable doubt, to prove that my client
did what they say that she did. They also told you that, I, we don‟t
have to prove anything, it‟s all upon the State. So, if the State comes
in and they prove, they bring some evidence, but not enough to prove
beyond a reasonable doubt, what would your verdict be[?]

9

Mr. Estis asked, “I mean, what is „some evidence, not enough‟?” Defense counsel

responded: “They being enough to say, okay, maybe she could have, but it‟s just, it

wasn‟t enough to say beyond a reasonable doubt, she did it. It was a little sketchy.”

Mr. Estis then said, “[t]hat would be not guilty, I guess.”

We cannot say the trial court abused its discretion when it denied

Defendant‟s challenge of the prospective juror, Mr. Estis. The trial court had the

benefit of observing Mr. Estis‟ demeanor during voir dire, and from the total voir

dire it appeared Mr. Estis agreed that he could decide the case from the weight of

the evidence the State presented without consideration of whether Defendant

testified or not. We find no merit to this assignment of error.

ASSIGNMENT OF ERROR NUMBER TWO

Defendant argues that her sentences totaling fifteen years of imprisonment

are constitutionally excessive considering that she was a first time felony offender,

a single mother of three boys, two with special needs, and was currently in school

earning a degree to be a paralegal. She argues that the trial court took no

consideration of any mitigating factors and that it was only the crime of

distribution that “motivated the harsh sentence he meted out on this 30 year old[.]”

This court has articulated the following standard regarding the review of

excessive sentence claims:

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
10

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. If we determine

that a sentence should be set aside, we must remand to the trial court for

resentencing. La.Code Crim.P. art. 883.

A person found guilty of the offense of distribution of a controlled

dangerous substance, schedule II, is punishable by a sentence of “not less than two

years nor more than thirty years, with the first two years of said sentence being

without benefit of parole, probation or suspension of sentence; and may, in

addition, be sentenced to pay a fine of not more than fifty thousand dollars.”

La.R.S. 40:967(B)(4)(b). Defendant was sentenced to five years on each count, to

be served consecutively, for a total of fifteen years imprisonment, plus a fine of

one thousand dollars on each count for a total fine of three thousand dollars.

Initially, we note that Defendant does not challenge the excessiveness of the

individual five-year sentences but alleges that the consecutive sentences constitute

excessiveness. Defendant argues that the trial court failed to adequately consider

any mitigating factors as set forth in La.Code Crim.P. art. 894.1 when imposing

consecutive sentences for a single course of conduct. Defendant further argues that

the trial court “gave no particular justification to justify the departure from the

Louisiana Supreme Court‟s preference for concurrent sentence where there is a

single course of conduct[.]”

Defendant was convicted of selling one to three grams of cocaine on three

separate dates over a three-week period for a total of five hundred dollars.

Louisiana Code of Criminal Procedure Article 883, in pertinent part, provides that

“[i]f the defendant is convicted of two or more offenses based on the same act or
11

transaction, or constituting parts of a common scheme or plan, the terms of the

imprisonment shall be served concurrently unless the court expressly directs that

some or all be served consecutively.”

While Defendant does not explain her theory of how her drug activity

constituted a single course of conduct, she cites State v. Underwood, 353 So.2d

1013 (La.1977) and argues that in Underwood, “the Louisiana Supreme Court

vacated as excessive a consecutive twenty-five year sentence for three counts of

distribution of marijuana over two month period . . . where defendant had no prior

criminal record and in the absence of a showing that the public safety required a

longer sentence.” In Underwood, however, the supreme court vacated the

sentences not because the three sentences ordered to be served consecutively were

excessive as such, but because “the consecutive sentences totaling twenty-five

years appear on their face to be excessive, absent some further explanation not

found in the record.” Id. at 1019. The trial court had seemingly based the

sentences on a “gross misinformation of constitutionally prejudicial magnitude

contained in the pre-sentence report” that the defendant was a kingpin in the drug

world. Id. The defendant was convicted of two counts of distribution of marijuana

and one count of possession of marijuana. Each of these convictions had

imposable maximum sentences of ten years. The supreme court stated:

Here, the defendant, a businessman of settled family without
previous criminal record, was convicted of selling marijuana to the
same undercover agent on three occasions over a two-month period.
The three offenses were joined in a single indictment and consolidated
for trial. By almost any objective standard or accepted principle of
sentencing, the consecutive sentences totaling twenty-five years are
excessive, as all studies cited below show.

Based on American theory and practice, concurrent rather than
consecutive sentences are the usual rule, at least for a defendant
without previous criminal record and in the absence of a showing that
the public safety requires a longer sentence. Except for an offender
who has been convicted prior to the present offenses, the concurrent
12

sentences should normally not exceed the maximum for the most
serious offense tried. The national studies additionally indicate a usual
range of sentence for a nondangerous first offender convicted of a
nondangerous offense as not exceeding from five to ten years as a
maximum, in the absence of exceptional circumstances (e. g.,
extended criminal activity which has nevertheless not heretofore
resulted in a conviction).

Id. (footnote omitted).

In the current case, Defendant‟s total term of imprisonment is only one-half

of the potential maximum sentence of thirty years she could have received on any

one of the three convictions. Furthermore, in State v. Young, 05-795, p. 5 (La.App.

5 Cir. 3/14/06), 926 So.2d 652, 655-56 (footnote omitted), the fifth circuit stated:

It has been held that multiple drug transactions occurring on
different days are separate and distinct acts so as to render Article
883 inapplicable and to justify consecutive sentences, even when
they involved the same undercover officer and the transaction
occurs at the same location. Therefore, the trial court was not
required to articulate particular justification for imposing
consecutive sentences.

In the current case, at the sentencing hearing, the trial court noted that it had

reviewed all the letters sent on Defendant‟s behalf and the presentence

investigation report. The trial court stated that it was bound by the factors

contained in La.Code Crim.P. art. 894.1 and noted that Defendant was a young

mother and a first time felony offender who has been convicted of three very

serious crimes. The trial court stated:

It is no secret in our community that I view drug distribution as one of
the vilest offenses in our criminal code. Your ability to make a living
upon the selling of poisons to others in regard to, without regard to the
dangers or complications to others is reprehensible and will not be
tolerated. Additionally, the distribution of cocaine is the type of crime
that is likely to re-occur if restrictions are not placed upon your
activity. The lucrative nature of this activity makes one seem that this
is easy money and an alternative to honest living. . . . I believe that if a
suspended sentence were imposed in this matter, that the lure of the
illicit sale of drugs would be too strong and you would likely engage
in criminal activity again. Accordingly, I believe that a probated
sentence would not be appropriate in the instant situation because
there is an undue risk that you may commit the same offense or
13

another crime while being placed on probation. . . . I‟ve viewed your
demeanor throughout the trial and today, I‟m reviewing your
demeanor. I see a little bit of remorse today more so than I saw during
the trial. But, I‟m still wondering whether you‟re phased, or even
phased by the seriousness, serious nature of this crime. . . . I
understand the hardships that incarceration will impose, especially
those that your children will suffer. However, I believe that justice
requires a stringent sentence. I really wish you would have considered
your children‟s future before you engaged in the conduct for which
you are convicted.

Defendant argues an offender without a prior felony record should be

sentenced to concurrent sentences rather than consecutive sentences. See State v.

Watson, 372 So.2d 1205 (La.1979). In State v. Hawkins, 06-1599 (La.App. 3 Cir.

5/2/07), 956 So.2d 146, writ denied, 07-1156 (La. 12/7/07), 969 So.2d 627, this

court noted that the supreme court favored concurrent sentences. The factors to

consider when imposing consecutive sentences include defendant‟s criminal

record, the severity or violent nature of the offenses, or the danger the defendant

poses to the public. See State v. Thomas, 98-1144 (La. 10/9/98), 719 So.2d 49.

Furthermore, while noting that particularly where the convictions arise out of the

same course of conduct, in State v. Brown, 627 So.2d 192, 199-200 (La.App. 3 Cir.

1993), writ denied, 93-3101 (La. 3/18/94), 634 So.2d 850, this court stated that “in

cases involving offenders without prior felony record, concurrent rather than

consecutive sentence should be imposed[.]” See also State v. Merritt, 03-946

(La.App. 3 Cir. 3/17/04), 875 So.2d 80, rev’d in part on other grounds on

rehearing, 03-946 (La.App. 3 Cir. 10/13/04), 884 So.2d 1283.

In Young, 926 So.2d 652, the defendant twice sold one hundred dollars‟

worth of cocaine in a drug-free zone and fifty dollars‟ worth on a third occasion,

all within a one and one-half month period. He was sentenced to two twenty-five

year terms of imprisonment and one ten-year term, to be served consecutively for a

total of sixty years. He appealed, alleging that the sentences were excessive both

14

individually and consecutively. The fifth circuit agreed, noting that “[i]n

reviewing a trial court‟s sentencing discretion, three factors are considered: 1) the

nature of the crime, 2) the nature and background of the offender, and 3) the

sentence imposed for similar crimes in this court and other courts[.]” Id. at 655. In

discussing claims that consecutive sentences are constitutionally excessive, the

fifth circuit reviewed the following cases:

This Court has upheld a twenty-two-year sentence for a
defendant who, in addition to a violation of LSA-R.S. 40:981.3, had
one earlier felony drug conviction and had been previously arrested on
eight prior occasions. He was charged with a total of seventeen
offenses in these arrests, six of which involved firearms charges, three
were for drug-related offenses (one of which resulted in the felony
conviction mentioned above), five were for crimes against persons,
and three for crimes against property. In that opinion, we noted that
this Court has previously upheld sentences of fifteen years of
imprisonment for commission of this offense where the defendants
did not have a criminal history.

This Court has also affirmed a defendant‟s two, fifteen-year
consecutive sentences for two counts of distribution of cocaine, where
the defendant sold cocaine to two different undercover agents on two
separate occasions approximately one month apart. In upholding his
consecutive sentences, we noted that defendant had a history of prior
criminal activity. We have upheld a defendant‟s five, twenty-year
consecutive sentences for five counts of distribution of cocaine.
However, there the defendant had a criminal history of prior felony
convictions for issuing worthless checks and simple robbery and also
received a life sentence after being adjudicated a third felony
offender. In comparison, another defendant received eighteen-year
sentences on each of his five counts of distribution of cocaine, which
were ordered to run concurrently. He had a history of dealing
narcotics and was later found to be a second felony offender. In
another case, we upheld a twenty-year enhanced sentence for
distribution of cocaine in violation of LSA-R.S. 40:981.3 after the
defendant was adjudicated a fourth felony offender. Finally, we
affirmed a sixty-five-year enhanced sentence for a defendant found to
be a third felony offender for distribution of cocaine in violation of
LSA-R.S. 40:981.3.

Looking to other appellate courts, a sentence of fifteen years in
prison for distribution of cocaine has been affirmed by the Second
Circuit in a case where a defendant was a fourth felony offender, with
numerous prior arrests and convictions for drug-related offenses. The
Second Circuit also found three concurrent twelve-year sentences
constitutionally excessive where a thirty-six-year-old defendant made
15

three separate sales of cocaine on the same day to two undercover
officers.

The Fourth Circuit has noted that twenty-year sentences for
distribution of cocaine have been found to be excessive where the
amount of cocaine involved is small. In that case, the defendant was
convicted of six counts of distribution of cocaine and sentenced to six
consecutive terms of twenty years each. In finding the cumulative
sentence excessive, the court reviewed other cases involving more
egregious defendants and concluded that the court abused its
sentencing discretion.

Id. at 656-57 (footnotes omitted).

The fifth circuit then went on to vacate the defendant‟s sentences, stating:

After review, we find that Young received a much more severe
penalty than more egregious offenders of the same offense. The
consecutive nature of Young‟s sentences is constitutionally excessive
considering that the record on appeal does not establish that Young is
a large-scale drug dealer or that he has a history of selling drugs, and
the quantity of drugs and the money involved in each transaction was
small. The defendant was thirty-one years of age at the time of
sentencing, and although the record alludes to prior criminal activity,
the State did not establish such. These factors militate in favor of a
lesser aggregate sentence than Young received.

Id. at 657.

Upon remand, in State v. Young, 07-1021 (La.App. 5 Cir. 3/25/08), 984

So.2d 144, writ denied, 08-938 (La. 11/21/08), 996 So.2d 1105, the defendant‟s

sentences were ordered to be served concurrently for a total of eighteen years

imprisonment. In State v. Wyatt, 591 So.2d 761 (La.App. 2 Cir. 1991), the second

circuit found three twelve-year sentences imposed concurrently to be excessive

under circumstances similar to the current case. The defendant in Wyatt was

convicted of three counts of distribution of cocaine. The second circuit noted:

Although defendant‟s past is hardly crime-free, his only
previous convictions have been for driving while intoxicated. While
his history indicates arrests on a variety of charges, no disposition is
indicated for any of them except the DWIs. Excepting those DWIs,
defendant‟s previous adult encounters with criminal activity were in
1978 and 1974, both over ten years prior to the instant offenses. Even
though he was adjudicated a juvenile delinquent in 1968, his
background report indicates that he completed his probation and was
16

discharged. In addition, the record shows that he satisfactorily
completed his probation following his second DWI in 1986.

....

Finally, we consider the circumstances giving rise to
defendant‟s arrest. The defendant made three separate sales to two
different undercover officers approximately five hours apart. Two of
these transactions apparently occurred virtually contemporaneously
and the third transaction was a return visit by one of those officers
later that same morning.

Id. at 765. The second circuit recommended “that the maximum sentence which

can be affirmed in the instant circumstances is ten years at hard labor.” Id. at 764.

In brief, the State cites two cases which it claims supports its contention that

the sentences imposed in the current case are not excessive, State v. Davis, 438

So.2d 1288 (La.App. 3 Cir. 1983), writ denied, 445 So.2d 455 (La.1984), and State

v. Sewell, 39,380 (La.App. 2 Cir. 3/2/05), 894 So.2d 1286. The State asserts in its

brief that in Davis, “a sentence of five (5) years at hard labor on one (1) count of

distribution of cocaine was upheld along with sentences for two (2) counts of

distribution of marijuana.” However, though the sentences were ordered to be

served consecutively, for a total of eleven years imprisonment, the record reflected

that “[t]here was substantial evidence that marijuana was used regularly at

defendant‟s home and that the defendant‟s home was being used to supply illegal

drugs to various member of the community. The defendant was unemployed and

the likelihood that he would commit another crime was great.” Davis, 438 So.2d at

1291. In the current case, Defendant was employed at the time of the arrest at a

health care facility and had been employed there for four years.

In Sewell, the defendant was convicted of five counts of distribution of

cocaine and was sentenced to five years on each count with the first three

sentences to be served consecutively and the remaining two sentences to be served

concurrently, for a total of fifteen years imprisonment. The second circuit did not
17

find the sentences excessive; however, it did find that the defendant had an

extensive criminal history, which included convictions for aggravated battery,

possession of marijuana, aggravated assault—reduced from attempted second

degree murder, two counts of simple battery, obtaining controlled dangerous

substances by fraud, receiving stolen property, possession of cocaine with intent to

distribute, and non-support of children. Furthermore, “[a]fter the offenses in the

present case, the defendant was charged with possession of cocaine, illegal

possession of a weapon by a convicted felon, distribution of cocaine, conspiracy to

distribute cocaine, and possession with intent to distribute cocaine.” Sewell, 894

So.2d at 1293. The second circuit agreed with the trial court that the defendant

was in need of correctional treatment best provided by incarceration and that he

was likely to commit another crime if placed on probation. In Sewell, our

colleagues provide a textbook example of when consecutive sentences are

appropriate. However, in the current case, Defendant is serving the same term of

imprisonment as Sewell.

In State v. Wagner, 07-128 (La.App. 3 Cir. 11/5/08), 996 So.2d 1208, the

defendant pled guilty to one count of possession with the intent to distribute

cocaine. In exchange for his guilty plea, the state dismissed several ancillary

charges. Moreover, while out on bond awaiting sentencing, the defendant

committed two more drug offenses. The trial court sentenced the defendant to

twelve years, with all but six suspended, to be served concurrently with a sentence

previously imposed. In State v. Langlinais, 09-422 (La.App. 3 Cir. 12/16/09), 27

So.3d 1011, writ denied, 10-176 (La. 1/7/11), 52 So.3d 882, the defendant was

charged with two counts of possession of controlled dangerous substances with

intent to distribute and one count of possession of a firearm while in possession of

the two drugs. In exchange for her guilty pleas to the two drug offenses, the state
18

dismissed the possession of a firearm offense. She was sentenced to five years on

one count and ten years on the other count, to be served concurrently.

Considering the above jurisprudence, we note that almost without exception,

in cases where small amounts of drugs were sold over a short periods of time,

consecutive sentences were imposed on defendants who had prior, and in many

cases, extensive criminal activity. Otherwise, the courts imposed concurrent

sentences. In the current case, there was no indication that Defendant was

involved in a large-scale drug operation, that she had a history of drugs offenses,

or that she used drugs. There is no indication of a felony criminal history at all.

Further, a more severe penalty was imposed on Defendant than more egregious

violators of the same offense. Thus, we find that the imposition of three five-year

sentences to be served consecutively to be constitutionally excessive. See

La.Code Crim.P. art. 881.4.

DECREE

Defendant‟s convictions are affirmed. However, the trial court abused its

discretion when it imposed three five-year sentences to be served consecutively,

resulting in constitutionally excessive sentences. We, therefore, vacate the

sentences and remand to the trial court for resentencing with the instruction that the

maximum consecutive sentence may not total more than ten years at hard labor

with the first two years to be served without the benefit of parole, probation, or

suspension of sentence.

CONVICTIONS AFFIRMED; SENTENCES VACATED AND REMANDED
FOR RESENTENCING.

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