State of Louisiana v. Phillip A. Maggio

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

14-1148

STATE OF LOUISIANA

VERSUS

PHILLIP A. MAGGIO

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APPEAL FROM THE
TENTH JUDICIAL DISTRICT COURT
PARISH OF NATCHITOCHES, NO. C 20234
HONORABLE ERIC ROGER HARRINGTON, DISTRICT JUDGE

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JOHN E. CONERY
JUDGE

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Court composed of Marc T. Amy, John E. Conery, and David Kent Savoie, Judges.

AFFIRMED.

Van H. Kyzar
District Attorney
10th Judicial District Court
Post Office Box 838
Natchitoches, Louisiana 71458-0838
(318) 357-2214
COUNSEL FOR APPELLEE:
State of Louisiana

Edward K. Bauman
Louisiana Appellate Project
Post Office Box 1641
Lake Charles, Louisiana 70602-1641
(337) 491-0570
COUNSEL FOR DEFENDANT/APPELLANT:
Phillip A. Maggio

CONERY, Judge.

On May 17, 2013, Defendant, Phillip A. Maggio, was charged by bill of

information with theft over $500.00, in violation of La.R.S. 14:67. On March 28,

2014, Defendant pled guilty to theft over $500.00 but less than $1500.00, in

violation of La.R.S. 14:67(B)(2). On May 19, 2014, Defendant was given a

sentence of five years with the Louisiana Department of Corrections. Defendant

has timely appealed his sentence, claiming excessiveness. Defendant’s sentence is

affirmed.

FACTS AND PROCEDURAL HISTORY

Defendant was arrested for selling a pressure-washer which belonged to his

father, as well as charging unauthorized purchases worth over $400.00 on his

parents’ Home Depot charge card on April 4, 2013.

After his arrest, Defendant was released on his own recognizance in order to

attend the Fresh Start Outreach Ministry in Winnsboro, Louisiana, for a seven-

month treatment program, after which he was supposed to complete an internship,

go to a halfway house, then participate in an aftercare program. Defendant never

made it past the first step, as he was forced to restart the Fresh Start program in

August 2013 after violating rules. Defendant was then kicked out of Fresh Start

for testing positive for cocaine following a visit home for Christmas.

When Defendant was kicked out of Fresh Start, rather than returning to the

Natchitoches Parish Detention Center, Defendant drove off in his own vehicle after

taking a staff member’s phone. Defendant was subsequently returned to custody,

and held without bond prior to his guilty plea.

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.

ASSIGNMENT OF ERROR

Defendant’s sole assignment of error is that his sentence is excessive.

Defendant argues that he is in need of rehabilitation, not incarceration, and that

because he completed probation after his prior felony plea, he would be better

served by receiving probation and drug treatment.

Defendant never filed a motion to reconsider sentence, nor was any

contemporaneous objection made to the sentence when announced. Louisiana

Code of Criminal Procedure Article 881.1 provides the mechanism for preserving

the review of a sentence on appeal:

A. (1) In felony cases, within thirty days following the
imposition of sentence or within such longer period as the trial court
may set at sentence, the state or the defendant may make or file a
motion to reconsider sentence.

....

E. Failure to make or file a motion to reconsider sentence or to
include a specific ground upon which a motion to reconsider sentence
may be based, including a claim of excessiveness, shall preclude the
state or the defendant from raising an objection to the sentence or
from urging any ground not raised in the motion on appeal or review.

Because the Defendant failed to file a motion to reconsider sentence, we find

that Defendant is precluded from a review of the excessiveness of his sentence.

See State v. Cormier, 13-1140 (La.App. 3 Cir. 4/9/14) (unpublished opinion); State

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v. Bowles, 13-80 (La.App. 3 Cir. 10/9/13), 123 So.3d 350, writ denied, 13-2655

(La. 4/25/14), 138 So.3d 643.

However, in the interest of justice, we review Defendant’s sentence for bare

excessiveness. See State v. Austin, 13-1322 (La.App. 3 Cir. 5/7/14), 139 So.3d

583, writ denied, 14-1111 (La. 1/9/15).

The law is well-settled concerning the 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.
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, 01-838 (La.2/1/02), 808 So.2d
331.

[E]ven when a sentence falls within the statutory sentencing
range, it still may be unconstitutionally excessive, and 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:

[An] appellate court may consider several factors
including the nature of the offense, the circumstances of
the offender, the legislative purpose behind the
punishment and a comparison of the sentences imposed
for similar crimes. State v. Smith, 99-0606 (La.7/6/00);

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766 So.2d 501. 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.

State v. Decuir, 10-1112, pp. 11-13 (La.App. 3 Cir. 4/6/11), 61 So.3d 782, 790-91;

see also State v. Day, 14-708 (La.App. 3 Cir. 12/23/14), ___ So.3d ___.

The instant case did not involve violence, the offender only has one prior

conviction, but has a history of arrests for crimes relating to his drug addiction, and

the legislative intent was to enforce the social taboo against taking the property of

another, even one’s parents.

Under La.R.S. 14:67(B)(2) at the time of the crime:

When the misappropriation or taking amounts to a value of five
hundred dollars or more, but less than a value of one thousand five
hundred dollars, the offender shall be imprisoned, with or without
hard labor, for not more than five years, or may be fined not more
than two thousand dollars, or both.

During sentencing, the trial court gave a detailed explanation of why it made

the discretionary decision to sentence the Defendant to a maximum sentence of

five years. That explanation included a discussion of both Defendant’s prior

felony conviction for possession of controlled dangerous substances, and his

“satisfactory” completion of probation for that conviction. The trial court also

discussed Defendant’s failure to complete half of the treatment programs provided

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for him during that probation. Further, it discussed Defendant’s failure to complete

treatment between his arrest and plea on this charge.

The trial court also noted its consideration of La.Code Crim.P. art. 894.1,

and its finding that imprisonment should be imposed under La.Code Crim.P. art.

894.1(A)(2), which requires a sentence of imprisonment where “[t]he defendant is

in need of correctional treatment or a custodial environment that can be provided

most effectively by his commitment to an institution.” The trial court finally noted

that the only mitigating factor it could find was Defendant’s lack of a “criminal

heart.”

Considering Defendant’s admitted prior history of substance abuse, his

inability to complete treatment for said substance abuse while out on bond for this

theft charge, and Defendant’s prior felony conviction, we find that the trial court

did not abuse its discretion in sentencing Defendant to a maximum sentence of five

years imprisonment.

DISPOSITION

Defendant’s assignment of error is without merit. Defendant’s sentence is

affirmed.

We note that the offender may be eligible for the intensive incarceration and

parole supervision program pursuant to La.R.S. 15:574.4.4(B), if the staff and

warden at the adult reception and diagnostic center so recommend after proper

screening and testing. We recommend to the Louisiana Department of Public

Safety and Corrections, if feasible, to screen Defendant for eligibility for this

program, provided that he is willing to participate.

AFFIRMED.

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