State of Louisiana v. Kenrard D. Broussard

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

12-1144

STATE OF LOUISIANA

VERSUS

KENRARD D. BROUSSARD

**********

APPEAL FROM THE
SIXTEENTH JUDICIAL DISTRICT COURT
PARISH OF IBERIA, NO. 10-1536
HONORABLE KEITH R. J. COMEAUX, DISTRICT JUDGE

**********

PHYLLIS M. KEATY
JUDGE

**********

Court composed of Jimmie C. Peters, Elizabeth A. Pickett, and Phyllis M. Keaty,
Judges.

CONVICTION AFFIRMED; SENTENCE
AFFIRMED AS AMENDED; AND
REMANDED WITH INSTRUCTIONS.

J. Phil Haney
District Attorney
Angela B. Odinet
Assistant District Attorney
415 Main Street
St. Martinville, Louisiana 70582
(337) 394-2220
Counsel for Appellee:
State of Louisiana

Harry Daniels, III
Daniels & Washington
830 Main Street
Baton Rouge, Louisiana 70802
(225) 346-6280
Counsel for Defendant/Appellant:
Kenrard D. Broussard

Kenrard D. Broussard
Richwood Correctional Center Unit 4
180 Pine Bayou Circle
Monroe, Louisiana 71202
In Proper Person

KEATY, Judge.

Defendant, Kenrard D. Broussard, was charged by bill of information with

possessing cocaine within two thousand feet of school property, violations of

La.R.S. 40:967 and 40:981.3, and drug racketeering, a violation of La.R.S. 15:1351

to 1356. During the trial, the State amended the bill to one thousand feet to

accurately reflect La.R.S. 40:981.3 at the time of the commission of the offense.1

The jury found Defendant guilty of possession of two hundred grams to four

hundred grams of cocaine within one thousand feet of school or school property.

He was acquitted of the racketeering charge.

On January 31, 2012, Defendant was sentenced to eighteen years at hard

labor, without the benefit of probation and parole. Additionally, a $350,000.00

fine was imposed. Defendant now appeals.

COUNSEL-FILED ASSIGNMENTS OF ERROR:

1. Broussard was entrapped as a matter of law when he was induced
by an Agent of the State to commit a crime.

2. The Court sentenced Broussard to an Illegal and Impermissible
sentence by sentencing him to 18 years at hard labor without benefit
of probation, parole or suspension of sentence.

3. The sentence imposed is excessive for this offense and this
offender.

PRO SE ASSIGNMENTS OF ERROR:

1. The state failed to introduce evidence sufficient for the jury to find
beyond a reasonable doubt that Broussard was predisposed to commit
the crime.

2. The trial court’s instructions on the defense of entrapment were
plainly erroneous because of its failure to inform the jury that the state

1
Louisiana Revised Statutes 40:981.3 was amended by 2010 La. Acts No. 506, § 2,
effective August 15, 2010, to change the definition of a ―drug free zone‖ from ―[a]n area within
one thousand feet of any property used for school purposes‖ to ―[a]n area within two thousand
feet of any property used for school purposes.‖

has the burden of proving beyond a reasonable doubt that Broussard
was predisposed or not entrapped.

3. Broussard’s eighteen year sentence is excessive for a first time
offender.
DISCUSSION

Facts

The Iberia Parish Sheriff’s Office found a large quantity of cocaine and

marijuana at Charles Ransonet’s home. Ransonet claimed the cocaine belonged to

Defendant. The police arranged, through Ransonet, for Defendant to pick up the

cocaine from Ransonet’s shed located behind Ransonet’s property. Defendant

went to the shed and obtained the cocaine. The police arrested Defendant when he

exited the shed. The property was located within a thousand feet of a school.

Errors Patent

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

this court for errors patent on the face of the record. After reviewing the record,

there is one error patent raised and addressed in Assignment of Error Number Two

and a second error patent discussed below.

Defendant was informed at sentencing that he has two years within which to

file an application for post-conviction relief. Louisiana Code of Criminal

Procedure Article 930.8 provides that a defendant has two years after the

conviction and sentence become final to seek post-conviction relief. In State v.

Celestine, 11-1403 (La.App. 3 Cir. 5/30/12), 91 So.3d 573, and State v. Grace, 10-

1222 (La.App. 3 Cir. 4/6/11), 61 So.3d 812, writ denied, 11-961 (La. 10/21/11), 73

So.3d 382, this court found a similar advisement insufficient and directed the trial

court to inform the defendant of the provisions of La.Code Crim.P. art. 930.8 by

sending appropriate written notice to the defendant within ten days of the rendition

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of the opinion and to file written proof in the record that the defendant received the

notice.

Based on the prior jurisprudence of this court, we direct the trial court to

inform Defendant of the provisions of La.Code Crim.P. art. 930.8 by sending

appropriate written notice to Defendant within ten days of the rendition of the

opinion and to file written proof in the record that Defendant received the notice.

Assignment of Error Number One and Pro Se Assignment of Error Number One

Defendant asserted he was entrapped by Ransonet, who was acting on behalf

of the Iberia Parish Sheriff’s Department. He argues that the State failed to present

sufficient evidence that he was predisposed beyond a reasonable doubt to commit

the crime.

In his attorney-filed appellant brief, Defendant contends (citations omitted):

In this case Charlie Ransonet was detained after a narcotics
investigation was conducted at his home. During a search of
Ransonet’s home Agents located a large amount of cocaine, marijuana,
and drug processing material. After the agents located the drugs
Ransonet requested that he be allowed to contact his friend Sheriff
Louis Ackal. The agents called Sheriff Ackal for Ransonet. After
speaking with the Sheriff, Ransonet then told the agents that the drugs
belong to Kenrard Broussard.

At that point Ransonet was not arrested for any of the drugs and
was told to contact Broussard to come get the drugs. Ransonet tried
for four days over numerous calls to get Broussard to come get the
drugs. Finally after four days of pleading with Broussard to come get
drugs, Ransonet was able to convince Broussard to come get drugs.
Broussard and Ransonet had been friend[s] for over five years. They
would discuss politics, they would help each other with yard work and
would sometime attend sporting events. Ransonet was Broussard’s
mentor, and he used this position and Broussard’s trust and love for
him to persuade and induce someone who otherwise had no
predisposition to illegal drug activity.

After tricking Broussard to come get the drugs Ransonet then
went to the narcotic’s office to inform them that Broussard would be
picking up drugs on that day. Only one of the phone calls between
Broussard and Ransonet was made at the narcotics office.

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[The] State was unable to present any evidence of
predisposition by Broussard. In fact during the search of Broussard’s
home[,] agents did not locate any evidence that he was involved in
any illegal drug activity. Agents also testified that prior to arresting
Ransonet, Broussard was not part of any active investigation.

The State also attempted to show Broussard was predisposed by
arguing and attempting to show that Broussard had been involved in
numerous drug transactions. The State also charged Broussard with
Drug Racketeering. The jury rejected the State’s argument of
predisposition when they found Broussard NOT GUILTY of Drug
Racketeering.

In this case Ransonet acting on behalf of the State induced
Broussard in to [sic] going [to] get the drugs out of the shed.
Ransonet did this in order to save himself and to avoid prosecution.

In his pro se brief to this court, Defendant argues (citations omitted):

After Ransonet’s home was searched and he was detained, he called
Broussard via cell phone to come by his home to pick up narcotics.
Broussard refused and the narcotics were placed into evidence.
Broussard did not engage in the criminal activity for profit. Broussard
was doing Ransonet a favor after numerous calls by Ransonet
pleading with him to help him out. Broussard evidenced reluctance to
engage in the criminal activity, but was overcome by the repeated
calls and pleading from Ransonet made over four days. Narcotic
agents did not bother to record any of the phone calls between
Ransonet and Broussard. There’s no evidence Broussard would have
possessed narcotics absent the overwhelming strength of Ransonet’s
inducement.

The State responds that Defendant waived the defense of entrapment

because he failed to raise it at trial. The State alternatively contends that, if the

issue is properly before this court, Defendant failed to prove entrapment.

An affirmative defense, such as entrapment, is a legal argument which

cannot be raised for the first time on appeal. State v. Perkins, 07-423 (La.App. 3

Cir. 10/31/07), 968 So.2d 1178, writ denied, 07-2408 (La. 5/9/08), 980 So.2d 688.

In this case, Defendant raised the defense of entrapment during the opening

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statement. Furthermore, the trial court gave a jury instruction on entrapment. Thus,

this issue is properly before this court.

In State v. Brand, 520 So.2d 114, 117 (La.1988) (footnote omitted), the

court explained:

Entrapment is an affirmative defense. See Model Penal Code §
2.13(2); State v. Cook, 460 So.2d 1075 (La.App. 2nd Cir.1984), cert.
denied[,] 466 So.2d 465, 466 (1985). Thus, the burden was on
defendant to prove entrapment by a preponderance of the evidence.
The question whether the government agent implanted the criminal
idea in the mind of an innocent person to induce the commission of a
crime that would not otherwise be committed is one for the jury.
Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413
(1932).

The entrapment defense will not be recognized when the law
enforcement official merely furnishes the accused with an opportunity
to commit a crime to which he is predisposed. State v. Moody, 393
So.2d 1212 (La.1981). In entrapment cases, a line must be drawn
between the trap for the unwary innocent and the trap for the unwary
criminal. Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2
L.Ed.2d 848 (1958). Thus, the focus in determining an entrapment
defense is on the conduct and predisposition of the defendant, as well
as the conduct of the government agent.

See also State v. Caldwell, 616 So.2d 713 (La.App. 3 Cir.), writ granted in part

and remanded on other grounds, 620 So.2d 859 (La.1993.)

In State v. Williams, 11-79, p. 10 (La.App. 5 Cir. 11/29/11), 80 So.3d 626,

633, the court explained:

The first inquiry is whether the defendant proved by a
preponderance of the evidence that he was induced by an agent of the
government to commit the crime. If so, the next inquiry is whether
the State adduced evidence of the defendant’s predisposition to
commit the crime such that a rational trier of fact, viewing the
evidence in the light most favorable to the prosecution, could have
concluded that it was the defendant’s predisposition to commit the
crime, rather than the State’s inducement that caused the defendant’s
conduct.

At trial, Sergeant Todd Anslum, with the Iberia Parish Sheriff’s Office,

testified that in May 2010, his office received complaints of illegal drug activity at

5

Ransonet’s home. On May 20, 2010, he went to Ransonet’s home and spoke to

him outside of the house. The front door of the home was open. During his

conversation with Ransonet, Officer Anslum smelled marijuana emitting from the

home. When he asked Ransonet about the smell, Ransonet admitted that there was

marijuana in a can on a coffee table in his living room. After finding the marijuana

in the can, Officer Anslum arrested Ransonet and continued to search the home. In

one of the bedrooms, Officer Anslum recovered a ―plastic grocery bag which

contained four other bags with what appeared to be cocaine inside of them‖; the

total amount was about 300 grams. Another 268 grams of marijuana were found in

the cat’s bed. In another bedroom, four grams of cocaine, some marijuana, and

several items of drug paraphernalia were found. Among the items found in the

home was a cutting agent used to cut the kilos of cocaine, a sifter used to break up

the cocaine into a fine powder, a mirror used for cutting the cocaine, and a scale

used to measure the narcotics.

Officer Anslum explained that the four bags suspected of containing cocaine

found at Ransonet’s home were used to investigate Defendant. After being put in

the evidence locker by Officer Anslum, the four bags of cocaine in the white

plastic grocery bag were removed and placed in the shed at Ransonet’s home. Up

until the time he went to Ransonet’s home, Officer Anslum was not investigating

Defendant. Moreover, although he gave the District Attorney a search warrant and

an arrest warrant for Ransonet, Ransonet had not been arrested at the time of trial.

Byron LaSalle, a narcotics agent for the Iberia Parish Sheriff’s Office, also

testified at trial. When asked how the investigation regarding Defendant was

initiated, Officer LaSalle responded that Ransonet, who was under investigation,

informed him that the illegal narcotics found in his home belonged to Defendant.

6

On May 24, 2010, the police put the white grocery bag containing the

baggies of cocaine seized from Ransonet’s home in the shed at Ransonet’s home.

A camera system was set up in Ransonet’s home to monitor the cocaine that was in

the shed. Officer LaSalle and Officer Comeaux, another Sheriff’s Office employee,

arrived at Ransonet’s home around 5:00 p.m. They watched the shed via a monitor

set up in the home. The police were also conducting surveillance on the street to

inform the officers in the home of Defendant’s arrival. According to Officer

LaSalle, Defendant entered Ransonet’s shed around 6:00 p.m. Officer LaSalle

testified, ―He [Defendant] walked directly to the back, to the shed, walked into the

shed, opened the drawer, grabbed this bag, looked at it, kind of hid it under his

shirt, and then he started to exit the shed.‖ As Defendant exited the shed, the

officers arrested him. The officers seized from Defendant the cocaine, a digital

scale, and some plastic bags. Defendant dropped the white grocery bag containing

the cocaine as the officers approached him. Officer LaSalle testified about his

conversation with Defendant following the arrest, as follows:

Q. What did he tell you during that conversation?

A. During that conversation he told me that the cocaine was, in
fact, his; that he was a guidance counselor at Carencro Middle High
School -- middle school, not high school. He had been a guidance
counselor there for a couple of years and didn’t want to lose his job.
He told me that he had been selling cocaine for approximately four
months. He told me that his supplier lives in Houston, some guy in
Houston. He told me that his supplier doesn’t front him the cocaine,
that he has to go to him with the money to buy, you know, large
amounts of cocaine at a time. I then asked him how he could afford
that on being a guidance counsel. He said he makes, you know, extra
money selling dope. That’s about it.

Q. Did you ask him what he was going to do with the cocaine that
you arrested him with?

A. Yes. I asked what he intended on doing once he got from
Charlie’s house. He was bring[ing] it to his mom’s house in

7

Jeanerette to go hide it. I had also asked him about the scale and the
baggies, and that was, you know, to weigh it and repackage it for
street level sales.

On cross-examination, Officer LaSalle acknowledged that the statement by

Defendant was not written by Defendant, nor was it recorded or video taped. He

explained that he took notes at the time of the questioning. However, Officer

LaSalle’s notes were not introduced into evidence.

During his cross-examination, Officer LaSalle acknowledged that drugs

were found in Ransonet’s living room and in two bedrooms. More specifically,

officers found marijuana, rolling paper, a metal clip, and a pill in the living room.

Inside a dresser drawer in the first bedroom, officers discovered four bags of

cocaine weighing approximately 311 grams. More marijuana and cocaine were

found in the second bedroom, along with a mirror, razors, a scale, and a sifter,

which to his knowledge is used for snorting and breaking up cocaine. Officers also

found sandwich bags, which, according to Officer LaSalle, are typically used to

repackage narcotics.

The following exchange occurred between Defendant’s attorney and Officer

LaSalle:

Q. From your observation of Charlie’s house and what was found
in those three rooms, in your experience as a detective, narcotics
detective, this would indicate that you were, in fact, at the home of a
drug dealer, right?

A. Yes.

Officer LaSalle acknowledged that Ransonet was the only one to implicate

Defendant. In addition, Officer LaSalle admitted that it was his office that agreed

to place the drugs in Ransonet’s shed and that he was the person who removed the

8

drugs from the narcotics office and placed them in the shed, which was located in a

school zone.

Officer LaSalle testified that Defendant consented to a search of his house.

After searching the house, the officers found no evidence of drugs and no evidence

that drugs were being sold from Defendant’s house. Furthermore, Officer LaSalle

testified that there was no investigation of Defendant prior to his arrest on May 24.

During cross-examination, Officer LaSalle was questioned about

Defendant’s predisposition for illegal drug activity. He responded there was

nothing found at Defendant’s home to suggest illegal drug activity. When asked if

he found any evidence to suggest that Defendant was ―enterprising and

racketeering,‖ Officer LaSalle responded that Defendant owned a Land Rover, a

Mercedes Benz, and a Dodge pick-up truck.2

Jason Comeaux, a Sergeant in the Narcotics Division of the Iberia Parish

Sheriff’s Office, testified that he was with Officer LaSalle at Ransonet’s home on

May 24. He was inside the home with Officer LaSalle monitoring the shed, and he

observed Defendant walk into the shed and get the cocaine.

Ransonet testified that beginning in 2005, and through 2010, he purchased

small quantities of marijuana and cocaine from Defendant and that there were over

160 transactions between them. According to Ransonet, Defendant was his sole

supplier of drugs during that time period. Ransonet admitted, however, that he

sold drugs before he met Defendant and that he had never seen Defendant use

drugs. Ransonet stated that he and Defendant were friends and that occasionally

Defendant would bring his child to swim at Ransonet’s house.

2
During closing arguments, Defendant’s attorney stated that Defendant’s vehicles were
used vehicles.

9

Ransonet testified that Defendant has twice asked to stash drugs at his house.

The first time occurred about two weeks before the police searched his home in

May 2010. Defendant had asked Ransonet to stash drugs at his house because

Defendant’s house was ―hot.‖ Defendant had picked up the drugs several days

later but had again stashed drugs at Ransonet’s house on the Monday before his

house was searched on Thursday, May 20. Ransonet testified that after his home

was searched and drugs were found, he requested to call Sheriff Ackal to ask what

his best course of action was. The sheriff told him to cooperate with the officers.

Ransonet testified that while detained at the sheriff’s office on May 20, the

officers requested that he get Defendant to pick up the cocaine. Then the following

pertinent exchange occurred:

Q. And, at that point, they let you leave the station?

A. No, sir.

Q. You made a phone call to Kenrard Broussard?

A. Exactly, sir.

Q. And, at that point, he told you he wasn’t coming get the drugs?

A. He did not say that.

Q. On the 20th?

A. He told me he wasn’t going to come get it that night.

Q. He told you he wasn’t coming get the drugs?

....

Q. Now, it wasn’t until your constant calling him, begging and
pleading him to come get the drugs, to do this one big favor, that he
finally agreed to come do this one favor, a favor for his friend Charlie,
and he came get the drugs?

A. That was not our conversation, sir.

10

....

A. Everything I did after that, after the 20th would be at the
Sheriff’s Department.

Q. I understand that. You were acting on behalf of the Sheriff’s
Office calling Mr. Broussard, correct?

A. And they were the ones who was [sic] in charge of me calling
and being there while I was calling.

Q. And they were in charge of you calling?

A. Right, sir.

Q. But I’m talking about May 24th. You went to the office and you
told Agent Anslum that Kenrard Broussard was coming get the drugs.
He made you call Kenrard Broussard and you finally got Kenrard
Broussard to agree to come get the drugs?

A. That’s what they wanted me to do.

....

Q. If your phone records reflect numerous calls between May 20 th,
2010 and May 24th, 2010, would that be lying or would that true?

A. That would be the truth.

Ransonet informed Defendant that he would leave the drugs in the building behind

his house.

Based upon the above testimony, we conclude that the State proved by a

preponderance of the evidence that Defendant was predisposed to the crime.

Ransonet testified that Defendant supplied him with drugs. Officer LaSalle

testified that Defendant confessed to him that he sold drugs. Defendant offered no

evidence to rebut the testimony. Accordingly, this claim lacks merit.

Pro Se Assignment of Error Number Two

Defendant argues that the trial court’s instructions on the defense of

entrapment were plainly erroneous because of its failure to inform the jury that the

11

State had the burden of proving beyond a reasonable doubt that he was predisposed

or not entrapped. Defendant contends the trial court instructed the jury that

Defendant must prove entrapment by a preponderance of the evidence and the

proper standard was beyond a reasonable doubt. In support of his argument,

Defendant cites to only federal cases.

As noted above, the proper standard in Louisiana for proving entrapment is

preponderance of the evidence, and the trial court properly instructed the jury as to

that standard. See Brand, 520 So.2d 114, and Caldwell, 616 So.2d 713.

Accordingly, this assignment of error lacks merit.

Assignment of Error Number Two

Defendant asserts his sentence is illegal. He contends the trial court erred in

ordering his sentence be served without the benefit of probation, parole, or

suspension of sentence, and his sentence should be amended to provide that only

the first ten years are to be served without the benefit of probation, parole, or

suspension of sentence.

Defendant was convicted of a violation of La.R.S. 40:967. The applicable

penalty provision for possessing more than 200 grams of cocaine but less than 400

grams of cocaine is contained in Section F(1)(b) of La.R.S. 40:967. It provides a

sentence of ten to thirty years at hard labor with a fine of $100,000.00 to

$350,000.00. Additionally, the penalty for possession of the cocaine within 1,000

feet of a school zone, as set forth in La.R.S. 40:981.3, provides that violators ―shall

be punished by the imposition of the maximum fine and be imprisoned for not

more than one and one-half times the longest term of imprisonment authorized by

the applicable provisions of R.S. 40:966 through 970.‖ Thus, in this case, the trial

12

court was required to impose a $350,000.00 fine and imprisonment of zero to

forty-five years. Furthermore, La.R.S. 40:981.3(E)(2) provides:

A sentence imposed for a violation of the provisions of this
Section shall not be subject to parole, probation, or suspension of
sentence to the extent that the minimum sentence for a violation of a
felony provision of R.S. 40:966 through 970 is not subject to parole,
probation, or suspension of sentence.

In this case, the minimum sentence that could be imposed under La.R.S.

40:967 was ten years at hard labor. Thus, the trial court was authorized to impose

ten years of Defendant’s sentence without benefit of probation, parole, or

suspension of sentence. The trial court erred in ordering the entire sentence to be

served without benefits. Therefore, we amend the sentence and order that only the

first ten years of the sentence be served without the benefit of probation, parole, or

suspension of sentence. The trial court is ordered to enter a minute entry to set

forth the amendment.

Assignment of Error Number Three and Pro Se Assignment of Error Number

Three

Defendant asserts his eighteen-year sentence is excessive for a first offender.

In his pro se brief, Defendant points out that he is married with a son, and he was

employed as a school counselor for over eight years. Defendant contends that the

trial court erroneously relied on facts that were proven untrue when imposing

sentence. Defendant argues that the trial court stated that he had supplied drugs to

Ransonet and was the leader, but the jury found him not guilty of drug

racketeering.

At his sentencing hearing, Defendant testified that he was ―deeply

remorseful . . . for the mistakes‖ that he made. He stated, ―I did a favor for

someone I considered a friend and it is one that will affect me . . . for the rest of my

13

life.‖ Defendant maintained that he had no intention of distributing the cocaine

and that he got the cocaine from the shed as a favor for Ransonet.

The trial court set forth the following factors when imposing the sentence:

THE COURT:

All right. The Court has considered all of the evidence that has
been presented in this particular case [and] also notes that it sat
through the entire trial and considered the evidence that was presented
at the trial.

Factors to be determined in this particular case were found in
Article, Code of Criminal Procedure Article 894.1. And the Court
finds the following factors under subparagraph B, to be applicable.
No. 1) The offender’s conduct during the commission of the offense
manifested deliberate cruelty to the victim. The victims in this
particular case are the recipients of those, of the, the dope that was
distributed by Mr. Broussard. The Court is very well aware of drug
addiction since this Court does Drug Court over in St. Martin Parish
and it affects, drugs affect a lot of people in the community, a lot of
families, and a lot of family members. It is, it is a serpent in the
community of, of families that, that causes havoc amongst families.
And the Court does not take lightly the fact that someone who is
distributing drugs should be given lenient sentences.

The offender, No. 3) The offender offered or has been offered
or has given or received anything of value for the commission of the
offense. He received money. He got money for distributing drugs to
Charlie Ransonet and others.

The offender knowingly created a risk of death or great bodily
harm to more than one person. By distributing drugs these people die.

No. 11) The offense involved multiple victims and, and
incidents for which separate sentences have not been imposed. The
testimony was that, by Mr. Broussard to agent Lasalle that he had
been, he had been selling dope for a number of occasions. I think it
was in excess of one year.

No. 13) The offender was a leader or his violation was in
concert with one or more persons with respect to whom the offender
occupied a position of organizer, a supervisory position, or any other
position of management. It – Charlie Ransonet testified
uncontradicted that he was supplied drugs by Mr. Broussard.
Therefore, he was a leader above Mr. Ransonet. And Mr. Ransonet
was also a user/supplier. He sold to friends and also used some
himself.

14

No. 15) The offense was a controlled dangerous substance
offense and the offender obtained substantial income or resources
from ongoing drug activities. Mr. Broussard admitted that he had
ongoing drug activities and he sold.

The Court finds one mitigating factor is that the defendant has
no prior history of delinquency or criminal activity, has led a law
abiding life for a substantial period of time before the commission of
the instant offense and before his admission that he started selling
drugs approximately a year to two years prior to being arrested from,
on this particular case. The Court has considered all of these factors,
has considered the testimony involved and also has considered the
statutes involved and finds that I cannot give him a suspended
sentence according to the Legislature Statue [sic] under 40:967 and
40:981.3. And that the defendant is in need of correctional treatment
in a custodial environment which can be provided which can be
provided most effectively by his commitment to an institution. The
Court finds that any lesser sentence that it gives today would
depreciate the seriousness of the offender, defender’s [sic] crime.

Defendant filed a motion to reconsider sentence arguing excessiveness of

sentence. The trial court denied the motion without a hearing. The sentencing

range for Defendant’s conviction is up to forty-five years at hard labor. Defendant

was sentenced to eighteen years at hard labor, a mid-range sentence.

In State v. Baker, 06-1218, pp. 7-8 (La.App. 3 Cir. 4/18/07), 956 So.2d 83,

89, writ denied, 07-320 (La. 11/9/07), 967 So.2d 496, writ denied, 07-1116 (La.

12/7/07), 969 So.2d 626, this court explained:

This court has set forth the following standard to be used in
reviewing 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.

15

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, 01-0838 (La.2/1/02), 808
So.2d 331 (alteration in original).

In State v. Lisotta, 98-648 (La.App. 5 Cir. 12/16/98), 726 So.2d
57, writ denied, 99-0433 (La.6/25/99), 745 So.2d 1183, our colleagues
on the Fifth Circuit Court of Appeal noted three factors the appellate
court should consider in reviewing a judge’s sentencing discretion.
They are:

1. the nature of the crime,

2. the nature and background of the offender, and

3. the sentence imposed for similar crimes by the same
court and other courts.

State v. Telsee, 425 So.2d 1251 (La.1983); State v. Richmond, 97-
1225 (La.App. 5 Cir. 3/25/98), 708 So.2d 1272.

Id. at 58.

After finding over 300 grams of cocaine along with marijuana and other

drug paraphernalia at Ransonet’s private residence, Ransonet indicated the cocaine

belong to Defendant. He stated that Defendant was his supplier, and he was

keeping the cocaine for him. The police, through Ransonet, arranged for

Defendant to pick up the cocaine from Ransonet’s shed located in the back of

Ransonet’s property. The police arrested Defendant as soon as he exited the shed

with the cocaine.

Defendant, a first-time offender, completed college. He was a guidance

counselor at Carencro Middle School. He was married and had a son, age thirteen,

at time of the sentencing hearing.

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Defendant was sentenced to the mid-range sentence. There are not many

reported cases dealing with first offenders having committed possession of cocaine

from 200 to 400 grams.

In State v. Pham, 01-2199 (La.App. 4 Cir. 1/22/03), 839 So.2d 214, the

defendant, a first-time offender, was convicted of possession of more than 200

grams but less than 400 grams of cocaine. He was sentenced to twenty-five years

at hard labor. On appeal, the defendant argued his sentence was excessive. The

court affirmed the sentence.

In State v. Rios, 528 So.2d 163 (La.App. 3 Cir.), writ denied, 530 So.2d 83

(La.1988), the defendants were originally charged with possession of 400 or more

grams of cocaine, but entered guilty pleas to the lesser crime of possession of

cocaine in excess of 200 grams but less than 400 grams and were each sentenced to

ten years at hard labor and a $100,000.00 fine. On appeal, neither defendant

challenged the term of his sentence.

After applying the factors set forth in Lisotta, we conclude that the trial court

did not abuse its discretion by imposing the eighteen-year sentence. Defendant,

although a first offender, was sentenced to a mid-range sentence. As indicated by

the two cases cited above, the eighteen-year sentence is in line with sentences

imposed on similarly situated defendants. Thus, Defendant failed to prove that the

eighteen-year sentence imposed by the trial court is excessive.

DECREE

Defendant’s conviction is affirmed. The trial court is directed to inform

Defendant of the provisions of La.Code Crim.P. art. 930.8 by sending appropriate

written notice to Defendant within ten days of the rendition of the opinion and to

file written proof in the record that Defendant received the notice. In addition, we

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amend Defendant’s sentence and order that only the first ten years of the sentence

be served without the benefit of probation, parole, or suspension of sentence. The

trial court is ordered to enter a minute entry to set forth the amendment. In all

other respects, Defendant’s sentence is affirmed.

CONVICTION AFFIRMED; SENTENCE AFFIRMED AS
AMENDED; AND REMANDED WITH INSTRUCTIONS.
This opinion is NOT DESIGNATED FOR PUBLICATION.
Uniform Rules—Courts of Appeal, Rule 2–16.3.

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