State of Louisiana v. Darrell Dontrell Fort

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

13-934

STATE OF LOUISIANA

VERSUS

DARRELL DONTRELL FORT

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 14832-10
HONORABLE DAVID KENT SAVOIE, DISTRICT JUDGE

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JOHN D. SAUNDERS
JUDGE

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Court composed of Sylvia R. Cooks, John D. Saunders, and Elizabeth A. Pickett,
Judges.

AFFIRMED.

John Foster DeRosier
14th JDC District Attorney
Karen C. McLellan
14th JDC, ADA
P. O. Box 3206
Lake Charles, LA 70602-3206
(337) 437-3400
COUNSEL FOR APPELLEE:
State of Louisiana

Edward John Marquet
Louisiana Appellate Project
Post Office Box 53733
Lafayette, LA 70505-3733
(337) 237-6841
COUNSEL FOR DEFENDANT/APPELLANT:
Darrell Dontrell Fort

Darrell Dontrell Fort
Richwood Correctional Center
180 Pine Bayou Circle
Richwood, LA 71202
COUNSEL FOR DEFENDANT/APPELLANT:
Darrell Dontrell Fort

SAUNDERS, Judge.

The Defendant, Darrell Dontrell Fort, was charged by bill of information

with possession of cocaine and obstruction of justice. On November 14, 2011, he

entered a guilty plea to charge of possession of cocaine and was subsequently

sentenced to serve five years in the Louisiana Department of Corrections. In

conjunction with his plea, the State dismissed several pending charges and agreed

not to file a habitual offender bill.

Originally in this matter, appellate counsel filed a brief and a motion to

withdraw as counsel pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396

(1967). This court denied the motion to withdraw and ordered counsel to brief the

issue of whether the voluntariness of Defendant‟s plea was affected by defense

counsel‟s indication at sentencing that by entering the guilty plea they thought they

were “cleaning the slate” and from the record it appears the obstruction of justice

charge is still pending along with three other charges for distribution of cocaine.

FACTS:

According to the statement of facts provided at the guilty plea proceeding,

Defendant was found in possession of approximately one-tenth of a gram of

cocaine on March 24, 2010.

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,

we find no errors patent.

ASSIGNMENT OF ERROR:

Appellate counsel cites general principles of law regarding the voluntariness

of guilty pleas and notes that defense counsel was obviously unaware of the

existence of new charges at the time of the plea “as he would certainly have

determined their dismissal as well.” Counsel notes that the only party aware of the

existence of the new charges was Defendant, and he did not mention their

existence. Appellate counsel concludes his argument by stating, “[u]nless this

Court is prepared to conclude that trial counsel‟s failure to determine the existence

of other criminal charges unknown to the State of Louisiana or the trial court and

this failure is tantamount to ineffective assistance of counsel, it appears that the

plea was freely and voluntarily given and is therefore valid.”

The State responds in brief that Defendant was aware of the charges to be

dismissed as they were indicated on the plea form. The State notes the prosecutor

also chose to dismiss additional pending misdemeanor charges. The State

contends the new drug charges mentioned at the sentencing proceeding were not

part of the plea bargain. Since there was no statement by Defendant or his attorney

that they thought the plea bargain covered these charges and no mention of a desire

to withdraw the guilty plea, the State contends the plea was knowingly and

voluntarily given. Since appellate counsel does not appear to contend that trial

counsel was ineffective and does not challenge the validity of the plea, this

assignment of error presents nothing for review.

PRO SE ASSIGNMENTS OF ERROR NOS. 1 & 2:

Defendant contends his sentence is unconstitutionally excessive and that the

trial court failed to state for the record the factual basis for imposing consecutive

sentences. Defendant‟s five-year sentence for possession of cocaine was imposed

to run consecutively to the four-year sentence imposed the same day for a violation

of his probation stemming from a 2009 simple burglary conviction. In a separate

section of the brief, Defendant ties the consecutive nature of the sentences to his

excessive sentence claim.

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Defendant was sentenced on February 29, 2012, and he subsequently filed a

written pro se motion to reconsider sentence contending his sentence was “very

high.” He asked the court for a second chance to afford him an opportunity to “do

the right thing.” He noted that he wanted to help and support his mother who was

undergoing dialysis and that he did not want his son to think “being incarcerated is

the right thing to do.” The motion was denied by the trial court on April 17, 2012.

Defendant‟s claim that the trial court failed to state for the record the factual

basis for imposing consecutive sentences was not set forth in the motion to

reconsider sentence. Despite La.Code Crim.P. art. 881.1(E), this court has chosen

to review sentencing claims, when no motion to reconsider was filed or no ground

specified in the motion, as a bare claim of excessiveness. See State v. Johnlouis,

09-235 (La.App. 3 Cir. 11/4/09), 22 So.3d 1150, writ denied, 10-97 (La. 6/25/10),

38 So.3d 336, cert. denied, __ U.S. __, 131 S.Ct. 932 (2011); State v. Thomas, 08-

1358 (La.App. 3 Cir. 5/6/09), 18 So.3d 127; State v. Perry, 08-1304 (La.App. 3

Cir. 5/6/09), 9 So.3d 342, writ denied, 09-1955 (La. 6/25/10), 38 So.3d 352; State

v. H.J.L., 08-823 (La.App. 3 Cir. 12/10/08), 999 So.2d 338, writ denied, 09-606

(La. 12/18/09), 23 So.3d 936; State v. Quinn, 09-1382 (La.App. 3 Cir. 5/12/10), 38

So.3d 1102, writ denied, 10-1355 (La. 1/7/11), 52 So.3d 885. Based on this

precedent, we will review Defendant‟s argument as a bare claim of excessiveness.

This court discussed the standard of review applicable to claims of

excessiveness in State v. Whatley, 03-1275, pp. 5-6 (La.App. 3 Cir. 3/3/04), 867

So.2d 955, 958-59, as follows:

The Eighth Amendment to the United States Constitution and
La. Const. art. I, § 20 prohibit the imposition of cruel or excessive
punishment. “ „[T]he excessiveness of a sentence becomes a question
of law reviewable under the appellate jurisdiction of this court.‟ ”
State v. Dorthey, 623 So.2d 1276, 1280 (La.1993) (quoting State v.
Sepulvado, 367 So.2d 762, 764 (La.1979)). Still, the trial court is
given wide discretion in imposing a sentence, and, absent a manifest
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abuse of that discretion, we will not deem as excessive a sentence
imposed within statutory limits. State v. Pyke, 95-919 (La.App. 3 Cir.
3/6/96), 670 So.2d 713. However, “[m]aximum sentences are
reserved for the most serious violations and the worst offenders.”
State v. Farhood, 02-490, p. 11 (La.App. 5 Cir. 3/25/03), 844 So.2d
217, 225. The only relevant question for us to consider on review is
not whether another sentence would be more appropriate, but whether
the trial court abused its broad discretion in sentencing a defendant.
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).

The fifth circuit, in [State v.] Lisotta, 726 So.2d [57] at 58
[(La.App.1998) ], stated that the reviewing court should consider three
factors in reviewing the trial court's sentencing discretion:

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.

Even when a sentence falls within the statutory sentencing range, it still may

be unconstitutionally excessive. In determining whether a sentence shocks the

sense of justice or makes no meaningful contribution to acceptable penal goals, this

court has suggested that several factors may be considered:

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.” State v. Batiste, 594 So.2d 1 (La.App. 1 Cir.1991).
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.” State v. Cook, 95-2784 (La.5/31/96); 674 So.2d 957, 958.

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.

Defendant was sentenced to the maximum sentence of five years at hard

labor. Although La.R.S. 40:967 allows for a fine of not more than $5,000.00, a fine

was not imposed. In conjunction with Defendant‟s guilty plea, the following

charges were dismissed: 25527-09 (possession of cocaine), 33373-10

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(unauthorized use of an access card over $500), 02988-11 (misrepresentation

during booking, resisting by false information, speeding, and driving or allowing

others unlicensed to speed), and DA-091473 (possession of marijuana and resisting

pending in city court). Additionally, the State agreed not to file a habitual offender

bill.

At the guilty plea proceeding, Defendant indicated to the court that the

instant offense was his third felony conviction. It is clear he had been placed on

probation for a previous simple burglary conviction, and his probation was violated

by the commission of the instant offense. Additionally, at the close of the guilty

plea proceeding, the court, noting that Defendant needed education and training,

sent him to the Academy of Training Skills. At first, the court was leaning toward

deferring sentencing for two years, but defense counsel suggested they hold a

status hearing in a year and if Defendant had “screw[ed] it up,” he could be

sentenced at that point. Approximately three months after the plea proceeding,

Defendant was brought in for sentencing because things had not worked out at the

Academy of Training Skills.

In State v. Williams, 07-490 (La.App. 3 Cir. 10/31/07), 969 So.2d 744, this

court found the imposition of the maximum sentence was not excessive where it

was the defendant‟s third drug conviction, he received a benefit from the reduction

of his original charge of possession with intent to distribute cocaine, and the state

agreed not to file a habitual offender bill. Likewise, in State v. Thomas, 08-1358

(La.App. 3 Cir. 5/6/09), 18 So.3d 127, this court upheld the maximum five-year

sentence for a third felony drug offender who benefitted from the state‟s reduction

of the original charge of possession with intent to distribute and who had a history

of parole and probation revocation.

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Therefore, we find that, under the facts of this case, imposition of the

maximum five-year sentence was not an abuse of the trial court‟s discretion.

Defendant has prior felony convictions, and he was unsuccessful in completing a

prior term of probation. Additionally, he benefitted substantially from the

dismissal of numerous charges and the State‟s choice not to file a habitual offender

bill as part of his plea agreement. Accordingly, this claim has no merit.

CONSECUTIVE SENTENCES:

As noted above, the court ran Defendant‟s five-year sentence for possession

of cocaine consecutively to his four-year probation violation sentence. Defendant

ties his excessiveness argument to the consecutive nature of his sentences.

Louisiana Code of Criminal Procedure Article 883 provides in pertinent

part:

If the defendant is convicted of two or more offenses based on
the same act or transaction, or constituting parts of a common scheme
or plan, the terms of imprisonment shall be served concurrently unless
the court expressly directs that some or all be served consecutively.
Other sentences of imprisonment shall be served consecutively unless
the court expressly directs that some or all of them be served
concurrently.

Clearly, the offenses at issue were based on two distinct acts, one resulting in a

2009 simple burglary conviction, the other, the instant offense, committed in

March of 2010. As such, we find no merit to Defendant‟s contentions.

Further, La.Code Crim.P. art. 901 requires a sentence resulting from a

probation revocation to run consecutively to the sentence imposed for the new

conviction unless the court originally imposing the probation specifically orders

that the sentences are to be served concurrently.

Accordingly, we find that the trial court did not abuse its discretion in

ordering the sentence for the instant offense to run consecutively to the sentence

imposed as a result of the probation violation. See State v. Coleman, 12-373
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(La.App. 3 Cir. 11/7/12), 101 So.3d 580, writ denied, 12-2649 (La. 5/17/13), 117

So.3d 510.

DECREE:

Defendant‟s conviction and sentence are affirmed.

AFFIRMED.

This opinion is NOT DESIGNATED FOR PUBLICATION. Uniform

Rules-Courts of Appeal, Rule 2-16.3.

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