State of Louisiana v. Ricky Allen Rexrode

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

17-457

STATE OF LOUISIANA

VERSUS

RICKY ALLEN REXRODE

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APPEAL FROM THE
THIRTIETH JUDICIAL DISTRICT COURT
PARISH OF VERNON, NO. 89832/89833
HONORABLE SCOTT WESTERCHIL, DISTRICT JUDGE

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ULYSSES GENE THIBODEAUX
CHIEF JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, and
Shannon J. Gremillion, Judges.

AFFIRMED.

Asa Allen Skinner
District Attorney - 30th Judicial District
Terry Wayne Lambright
First Assistant District Attorney
Drew W. Mason
Assistant District Attorney
P. O. Box 1188
Leesville, LA 71496-1188
Telephone: (337) 239-2008
COUNSEL FOR:
Plaintiff/Appellee - State of Louisiana

Chad M. Ikerd
Louisiana Appellate Project
P. O. Box 2125
Lafayette, LA 70502
Telephone: (225) 806-2930
COUNSEL FOR:
Defendant/Appellant - Ricky Allen Rexrode

THIBODEAUX, Chief Judge.

Defendant Ricky Allen Rexrode is a second felony offender who pled

guilty to the charge of possession of CDS II (methamphetamine) and to the charge

of possession of drug paraphernalia. As part of a plea bargain, the State dismissed

one count of possession of CDS II (hydrocodone), one count of possession of a

legend drug without a prescription (tizanidine hydrochloride), and one count of

speeding (35 mph in a 25 mph zone). Mr. Rexrode was sentenced to three years

with credit for time served. His motion to reconsider his sentence alleging

excessiveness and abuse of discretion was denied. He now asserts excessiveness

of his sentence on appeal. We affirm.

I.

ISSUES

We shall consider whether Defendant’s three-year sentence for

possession of CDS II (methamphetamine) is excessive.

II.

FACTS AND PROCEDURAL HISTORY

Mr. Rexrode was stopped for speeding. Mr. Rexrode was driving 36

mph in a 25 mph zone. He granted permission to search his vehicle. The

automobile search revealed some pills. A subsequent search of Mr. Rexrode

revealed that he had a crystal substance in his right front pocket. The substance

was later sent to the crime lab and identified as methamphetamine. Additionally,

the officer found a copper and orange smoking device.

Mr. Rexrode was charged by two separate bills of information. Trial

court docket number 89832 charged Mr. Rexrode with three felonies: one count of

possession of CDS II (hydrocodone), in violation of La.R.S. 40:967(C)(2); one

count of possession of CDS II (methamphetamine), in violation of La.R.S.

40:967(C)(2); and one count of possession of a legend drug without a prescription

(tizandine hydrochloride), in violation of La.R.S. 40:1060.13. The bill in trial

court docket number 89833 charged Mr. Rexrode with two misdemeanors: one

count of possession of drug paraphernalia, in violation of La.R.S. 40:1023(C), and

one count of speeding (35 mph in a 25 mph zone), in violation of La.R.S. 32:64.

Mr. Rexrode entered a guilty plea to the charge of possession of CDS

II (methamphetamine) and to the charge of possession of drug paraphernalia. The

remaining charges were dismissed pursuant to the plea agreement.

Following a pre-sentence investigation (PSI), Mr. Rexrode was

sentenced to serve three years at hard labor for the possession of CDS II conviction

and fifteen days in the Vernon Parish jail for the possession of drug paraphernalia

conviction, with the sentences to run concurrently. No contemporaneous objection

was made to the sentence.

Mr. Rexrode’s Motion to Reconsider Sentence alleging excessiveness

of sentence and abuse of discretion for failure to consider mitigating circumstances

was denied. Mr. Rexrode now appeals his sentence for possession of CDS II

(methamphetamine). The motion and order for appeal are under both docket

numbers. Mr. Rexrode does not advance any assignment of error regarding the

misdemeanor, which would only be properly challenged under a writ of review

pursuant to La.Code Crim.P. art. 912.1.

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Mr. Rexrode is a 49 year-old single father of four, and has worked as

a mechanic and dispatcher for a cab company. Mr. Rexrode also cares for his two

parents. He has been on probation five times since 1995 with three out of five

supervision periods terminated unsatisfactorily. The trial court found that Mr.

Rexrode needed correctional treatment or a custodial environment.

III.

STANDARDS OF REVIEW

Sentences within the statutory sentencing range can be reviewed for

constitutional excessiveness. State v. Sepulvado, 367 So.2d 762 (La.1979). 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. Barling, 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01),

779 So.2d 1035, 1042-43 (citing State v. Etienne, 99-192 (La.App. 3 Cir.

10/13/99), 746 So.2d 124, writ denied, 00-165 (La. 6/30/00), 765 So.2d 1067).

IV.

LAW AND DISCUSSION

Mr. Rexrode alleges that his three-year sentence for possession of

CDS II (methamphetamine) is excessive. He argues excessive sentence because

his crime has no real victim as the amount of methamphetamine in his possession

was intended for personal consumption. Mr. Rexrode urges that he is an addict,

but none of his prior convictions were for drug offenses. Mr. Rexrode’s only

violent conviction was for simple battery.

“[Louisiana] Const. art I, § 20, guarantees that, ‘[n]o law shall subject

any person to cruel or unusual punishment.’” Barling, 779 So.2d at 1042-43. “To

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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.”

Id. at 1042 (citing State v. Campbell, 404 So.2d 1205 (La.1981)).

The relevant question is whether the trial court abused its broad

sentencing discretion, not whether another sentence might have been more

appropriate. Barling, 779 So.2d at 1042-43 (citing 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)). In reviewing the defendant’s sentence, the appellate court should

consider the nature of the crime, the nature and background of the offender, and

the sentences imposed for similar crimes. State v. Lisotta, 98-648 (La.App. 5 Cir.

12/16/98), 726 So.2d 57 (citing State v. Telsee, 425 So.2d 1251 (La.1983)), writ

denied, 99-433 (La. 6/25/99), 745 So.2d 1183. “[T]he appellate court must be

mindful that the trial court is in the best position to consider the aggravating and

mitigating circumstances of each case. . . .” State v. Williams, 02-707 (La.App. 3

Cir. 3/5/03), 839 So.2d 1095, 1100 (citing Cook, 674 So.2d 957).

With regard to sentences for similar crimes, Mr. Rexrode cites State v.

Jason, 03-1565 (La.App. 3 Cir. 6/30/04), 879 So.2d 360, wherein a second felony

offender’s three-year sentence for possession of CDS II (cocaine) was affirmed.

Mr. Rexrode argues he should receive a lesser sentence than the defendant received

in Jason because the Jason defendant had a recent prior conviction for the same

offense, whereas this is Mr. Rexrode’s first felony conviction in nearly thirty years

and his prior felony was for theft rather than a drug offense. We upheld the

defendant’s three-year sentence. Additionally, in State v. Freeman, 97-1115

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(La.App. 5 Cir. 12/29/98), 727 So.2d 630, the fifth circuit likewise upheld a three-

year sentence for possession of CDS II (cocaine) where the defendant had a prior

conviction for distribution of marijuana.

The trial court noted that Mr. Rexrode’s prior felony conviction was

for theft in 1989, he has pled guilty to at least seven misdemeanors since then and

has failed to satisfactorily complete probation four out of five times. The trial

court considered this as an aggravating circumstance, as within the trial court’s

broad discretion. The trial court may consider the benefit to the defendant

obtained by the plea agreement. Williams, 839 So.2d at 1101.

In exchange for his guilty plea, the State dismissed a second

possession of CDS II charge and a possession of a legend drug charge, both of

which carried a maximum sentence of five years at hard labor and a fine of not

more than five thousand dollars. Mr. Rexrode has failed to satisfactorily complete

misdemeanor probation. The trial court stated that Mr. Rexrode did not appear to

respond favorably to probation and posed an undue risk that he would commit

another crime. The trial court’s imposition of a sentence of three years at hard

labor does not appear to “shock the sense of justice,” nor was it an abuse of

discretion.

We find that the trial court did not abuse its discretion when

sentencing Mr. Rexrode and that the sentence is not excessive. Additionally, this

court should sever the misdemeanor conviction from the appeal and Mr. Rexrode

may file application seeking supervisory review of the misdemeanor conviction in

compliance with the Uniform Rules—Courts of Appeal within thirty days of this

court’s ruling on appeal, if so desired.

We affirm the sentence imposed by the trial court.

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V.

CONCLUSION

For the foregoing reasons, we affirm the sentence imposed by the trial

court.

AFFIRMED.

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