State of Louisiana v. Michael L. Larry

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

14-253

STATE OF LOUISIANA

VERSUS

MICHAEL L. LARRY

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APPEAL FROM THE
THIRTIETH JUDICIAL DISTRICT COURT
PARISH OF VERNON, NO. 76313
HONORABLE JAMES RICHARD MITCHELL, DISTRICT JUDGE

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JOHN E. CONERY
JUDGE

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Court composed of Sylvia R. Cooks, Jimmie C. Peters, and John E. Conery, Judges.

AFFIRMED.

Annette Roach
Louisiana Appellate Project
Post Office Box 1747
Lake Charles, Louisiana 70602-1747
(337) 436-2900
COUNSEL FOR DEFENDANT/APPELLANT:
Michael L. Larry

Asa A. Skinner
District Attorney
Terry W. Lambright
Assistant District Attorney
30th Judicial District Court
Post Office Box 1188
Leesville, Louisiana 71446
(337) 239-2008
COUNSEL FOR APPELLEE:
State of Louisiana

CONERY, Judge.

Defendant, Michael L. Larry, was charged by bill of information filed on

April 8, 2009, with possession of cocaine, a violation of La.R.S. 40:967.

Defendant entered a plea of not guilty on September 4, 2013. On September 6,

2013, Defendant withdrew his former plea and entered a plea of guilty. Defendant

was sentenced on November 12, 2013, to serve four years at hard labor. A motion

to reconsider sentence was filed on December 9, 2013, and was subsequently

denied. A motion for appeal was filed on January 7, 2014, and was later granted.

Defendant is before this court asserting one assignment of error wherein he

contends that his sentence is excessive. We find that Defendant’s claim lacks

merit and affirm.

FACTS

On November 24, 2008, Defendant was operating a vehicle that was stopped

because of a traffic violation. Thereafter, police executed a search warrant at

Defendant’s residence. During the search, police found residue in a cigar box in a

trash can. The residue was tested and determined to be cocaine.

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, we find that

there are no errors patent.

DISCUSSION

In his sole assignment of error, Defendant contends the four year hard labor

sentence imposed by the trial court violates U.S. Const. amend. VIII and La.Const.

art. 1, § 20, as it is nothing more than cruel and unusual punishment, and thus,

excessive.

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
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. 5 Cir. 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.

Defendant pled guilty to possession of cocaine, which is punishable by

imprisonment for not more than five years with or without hard labor. La.R.S.

40:967(C)(2). Defendant received a sentence of four years at hard labor.

Defendant testified at the sentencing hearing. He indicated he was thirty-

seven years old, married, and had four children. Defendant admitted that he had

been convicted of aggravated assault and burglary of an inhabited dwelling in

Mississippi. Further, Defendant testified that he was out on bond for a drug

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offense he committed in Indiana at the time he was arrested for the offense at issue

herein. After Defendant’s arrest in Vernon Parish, he was extradited to Indiana

and was incarcerated there for three and one-half years. While he was incarcerated

in Indiana, Defendant participated in a nine month drug rehabilitation program, a

six month anger management program, and a literacy program. Defendant also

took the GED exam but failed one part of the test. Further, Defendant had sought

to have the Louisiana detainer placed on him lifted because it prevented him from

having his sentence in Indiana modified.

Defendant was released in Indiana on August 26, 2013, and was extradited

back to Louisiana to face the subject charges. Defendant testified that he had not

been out of jail in the past four years and was to be on probation for two years

following his release in Indiana. Defendant indicated that, upon his release, he had

a family waiting on his return, a place to live, and a job at a landscaping company

in Indiana.

After Defendant testified, the trial court imposed sentence, stating the

following:

As he has stated in his testimony, he is approximately 37 years of age,
has four children, and is married. There was a plea agreement in this
case that there would be no habitual offender proceedings filed if he
entered a guilty plea, which he has done.

This is, of course, a drug case and with all drug cases there is
economic harm and impact on society in general. There were no
grounds to justify this defendant’s conduct. He did not act under any
provocation from any victim or any other person. As I stated, I think
this defendant is in good health. He has a prior employment record in
that he worked at a casino as a cook and has worked as a ranch
farmhand at some point in time in Mississippi. He has an eleventh
grade education. He does have some history of drug and alcohol abuse
and does have a history of receiving drug and alcohol treatment. He
does have a prior criminal record in that in 1995 he was convicted in
Mississippi of aggravated assault and burglary, and then in 2005, he
was convicted in Indiana of two counts of possession of cocaine as

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well. It does not appear that this defendant is a person who is likely to
respond to probationary treatment and that he is in need of
correctional treatment. Any sentence lesser than the one that I’m
going to give would deprecate the seriousness of this defendant’s
offense.

Defendant argues the trial court did not give sufficient consideration to his

rehabilitative attempts, including the substance abuse treatment and the programs

he completed while incarcerated in Indiana. Defendant further argues that, based

upon the small amount of cocaine, his prior drug abuse history, the lengthy delay

between arrest and sentencing, the lost opportunities in Indiana as a result of the

Louisiana detainer, the programs he completed after the instant offense, and the

need to support his four children, a lesser sentence would have better served the

needs of society.

However, in his motion to reconsider sentence, Defendant merely claimed

his sentence was excessive. For this reason, we find that Defendant’s particular

concerns regarding his sentence cannot be addressed herein as such issues are

precluded from review. See La.Code Crim.P. art. 881.1(E); State v. Prejean, 10-

480, p. 2 (La.App. 3 Cir. 11/3/10), 50 So.3d 249, 251. We will, however, perform

a bare excessiveness review of Defendant’s sentence.

As previously stated, the record indicates the trial court considered the

nature of the offense and Defendant’s background prior to imposition of sentence

and discussed such on the record. The current offense was Defendant’s fourth

felony offense. Additionally, as part of a plea agreement, the State dismissed

charges in trial court docket numbers 76,314 and 76,315 and agreed that it would

not charge Defendant as a habitual offender. See State v. McCorkle, 97-966

(La.App. 5 Cir. 2/25/98), 708 So.2d 1212; State v. Whitfield, 08-641 (La.App. 3

Cir. 12/10/08), 998 So.2d 935; State v. Thornton, 44,077 (La.App. 2 Cir. 4/8/09), 8

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So.3d 830. Thus, in light of Defendant’s criminal history, the benefit received

from the plea bargain, and the jurisprudence, Defendant’s sentence is not

excessive.

DISPOSITION

Defendant’s sentence is affirmed.

AFFIRMED.

This opinion is not designated for publication. Uniform Rules—Courts of Appeal,

Rule 2–16.3.

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