State of Louisiana v. Eric Joseph Breaux

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

18-690

STATE OF LOUISIANA

VERSUS

ERIC JOSEPH BREAUX

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 11442-15
HONORABLE G. MICHAEL CANADAY, DISTRICT JUDGE

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JOHN D. SAUNDERS
JUDGE

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Court composed of John D. Saunders, Phyllis M. Keaty, and John E. Conery, Judges.

AFFIRMED.

John F. DeRosier
District Attorney
Fourteenth Judicial District Court
Karen C. McLellan
Elizabeth B. Hollins
Assistant District Attorneys
901 Lakeshore Drive, Suite 800
Lake Charles, LA 70601
(337) 437-3400
COUNSEL FOR APPELLEE:
State of Louisiana

Paula C. Marx
Louisiana Appellate Project
P. O. Box 82389
Lafayette, LA 70598-2389
(337) 991-9757
COUNSEL FOR DEFENDANT/APPELLANT:
Eric Joseph Breaux

SAUNDERS, Judge.

Defendant, Eric Joseph Breaux, was charged by indictment on April 23, 2015,

with one count of possession with intent to distribute marijuana, a violation of

La.R.S. 40:966(A)(1); one count of illegal carrying of a weapon while in the

possession of drugs, a violation of La.R.S. 14:95(E); and one count of cultivation of

marijuana, a violation of La.R.S. 40:966(A)(1). On May 29, 2015, Defendant

entered a plea of not guilty to all the charges. On March 29, 2016, the State amended

the indictment to charge one count of attempted possession with intent to distribute

marijuana, a violation of La.R.S. 40:979 and La.R.S. 40:966(A)(1); and one count

of attempted cultivation of marijuana, a violation of La.R.S. 40:979 and La.R.S.

40:989.1. Defendant withdrew his plea of not guilty and entered a plea of guilty to

the amended charges. Sentencing was deferred under La.Code Crim.P. art. 893, and

Defendant was placed on supervised probation for five years.

On April 17, 2017, a probation violation hearing was held where Defendant

admitted to violating his probation; however, the trial court refused to accept

Defendant’s admission without a formal hearing. A formal probation violation

hearing was held on November 29, 2017, where the trial court found that Defendant

admitted to inappropriately touching a minor child, in violation of the terms and

conditions of his probation. Defendant’s probation was revoked, and the trial court

set a sentencing hearing for December 1, 2017. At that sentencing hearing,

Defendant was sentenced to serve eight years with the department of corrections for

attempted possession of marijuana with intent to distribute and four years with the

department of corrections for attempted cultivation of marijuana, to run

concurrently.

Defendant filed a motion to reconsider sentence on January 5, 2018, which

was denied by the trial court on January 4, 2018. On February 2, 2018, Defendant

filed, and the trial court granted, a Motion for Appeal of Sentences.

FACTS:

On March 3, 2014, Combined Anti-Drug Task Force detectives were alerted

to illegal drug activity at 6670 Lloyd Arabie Road, Lake Charles. The detectives

made contact with Defendant and informed him of the complaint, and, during this

contact, detectives smelled marijuana. Defendant then consented to a search of the

residence, and detectives found five marijuana plants, 67.93 grams of marijuana, an

assault rifle, a grinder with marijuana residue, and other paraphernalia.

Defendant admitted he possessed the 67.93 grams of marijuana, possessed the

assault rifle found during the search, possessed the paraphernalia found in the search,

sold some marijuana about a week prior, and told the detectives that he had been

growing the marijuana plants for about three months.

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

that there are no errors patent.

ASSIGNMENTS OF ERROR NUMBERS ONE AND TWO:

Defendant briefed his first two assignments of error together, stating that they

are interrelated, so we will discuss them together.

In Defendant’s first assignment of error, he alleges that the trial court abused

its discretion when it sentenced him, an intellectually disabled forty-one-year-old

first-time offender, to serve eight and four-year sentences for attempting to possess

marijuana with intent to distribute and attempting to cultivate five marijuana plants.

In his second assignment of error, Defendant argued that the trial court failed to
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comply with the requirements set forth in La.Code Crim.P. art. 894.1 because the

factors in sentencing did not justify the sentences that were imposed and did not

support the disparate treatment between Defendant and his co-defendant. We find

no merit to the first assignment of error and that the second assignment of error was

waived.

Defendant asserts that he accepted responsibility by pleading guilty to

attempted cultivation of marijuana and attempted possession with intent to distribute

marijuana. However, according to Defendant, the sentences imposed were excessive

and were cruel and unusual because of his intellectual disability.

Louisiana courts have laid out the following guidelines with regard to

constitutionally excessive sentence review:

Sentences within the statutory sentencing range can be reviewed
for constitutional excessiveness. State v. Sepulvado, 367 So.2d 762
(La.1979). In 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, a panel of this court discussed the review of excessive
sentence claims, stating:

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).

Further, in reviewing the defendant’s sentences, the appellate
court should consider the nature of the crime, the nature and
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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. In 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, a panel of this court observed that:

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. Soileau, 13-770, 13-771, pp. 4-5 (La.App. 3 Cir. 2/12/14), 153 So.3d 1002,

1005-06, writ denied, 14-452 (La. 9/26/14), 149 So.3d 261.

Defendant pled guilty to La.R.S. 40:966(A)(1), La.R.S. 40:989.1, and La.R.S.

40:979. The pertinent penalty provision of La.R.S. 40:966(B)(3) in 2014 stated:

A substance classified in Schedule I which is marijuana,
tetrahydrocannabinols, or chemical derivatives of
tetrahydrocannabinols, or synthetic cannabinoids shall upon conviction
be sentenced to a term of imprisonment at hard labor for not less than
five nor more than thirty years, and pay a fine of not more than fifty
thousand dollars.

Additionally, La.R.S. 40:989.1(A)(2) states, “Whoever violates the provisions of

this Subsection shall be sentenced to a term of imprisonment with or without hard

labor for not less than two years nor more than ten years and may, in addition, be

sentenced to pay a fine of not more than twenty thousand dollars.”

Defendant’s guilty plea to La.R.S. 40:979 reduced the sentencing range of

those statutes as follows:

A. Except as otherwise provided herein, any person who attempts
or conspires to commit any offense denounced and/or made unlawful
by the provisions of this Part shall, upon conviction, be fined or
imprisoned in the same manner as for the offense planned or attempted,
but such fine or imprisonment shall not exceed one-half of the longest

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term of imprisonment prescribed for the offense, the commission of
which was the object of the attempt or conspiracy.

Thus, the sentencing range for attempted possession of marijuana with intent

to distribute was zero to fifteen years, and the sentencing range for attempted

cultivation of marijuana was zero to five years. At the December 1, 2017 sentencing

hearing following the probation violation hearing, Defendant was sentenced to eight

years with the department of corrections for attempted possession of marijuana with

intent to distribute and four years with the department of corrections for attempted

cultivation of marijuana, to run concurrently. The trial court gave no reasons for the

sentences that were imposed.

Defendant stated in his motion to reconsider that although he and his co-

defendant were charged as a result of the same offenses, he received a much harsher

sentence than his co-defendant, who was not intellectually disabled or illiterate. The

co-defendant was charged with misdemeanors and was only convicted of possession

of drug paraphernalia resulting in a disparity that shows that Defendant’s sentences

were excessive.

As noted by the State, although Defendant faced jail time, he was initially

given the benefit of probation pursuant to La.Code Crim.P. art. 893 rather than

serving jail time for his convictions. The State points out that had he completed

probation successfully, he would have been eligible for an expungement of his

record. La.Code Crim.P. art. 893(E); La.Code Crim.P. art. 978. The record

indicates that Defendant had no prior record, with this being his first time offending.

At the guilty plea hearing, Defendant told the court that he could not read and write

and received supplemental security income (SSI) because he could not read. Despite

these circumstances, Defendant told the detectives that he had sold marijuana a week

prior to the arrest for the matter at hand, while his co-defendant did not, which

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resulted in felony charges for Defendant while the co-defendant was charged with

misdemeanors.

Further, the sentence for attempted possession of marijuana with intent to

distribute is in line with other sentences for the same crime. In State v. Brown, 02-

1382 (La.App. 3 Cir. 4/2/03), 842 So.2d 1181, writ denied, 03-1224 (La. 11/7/03),

857 So.2d 491, this court determined that a five-year sentence at hard labor for

attempted possession with intent to distribute marijuana was not excessive. In that

case, the defendant, a paraplegic first-offender, benefited from a plea bargain, and

the State amended the charge from the original charge of possession with intent to

distribute marijuana, and the defendant’s sentence exposure decreased from a

potential thirty years at hard labor to fifteen years at hard labor. Here, Defendant

also benefited from a plea deal where he was originally charged with possession with

intent to distribute marijuana, but the charge was subsequently amended to attempted

possession with intent to distribute marijuana.

In State v. Allen, 28,988 (La.App. 2 Cir. 10/30/96), 682 So.2d 864, the second

circuit held that a five-year sentence for attempted possession of marijuana with

intent to distribute was not constitutionally excessive where the defendant, a first-

time felony offender, obtained a substantial benefit from her plea bargain, the

sentence was one third of the maximum range, and she was not sentenced to pay a

fine.

There is no case law discussing the excessiveness of a sentence under La.R.S.

40:989.1; however, in State v. Insley, 04-1006 (La.App. 3 Cir. 2/2/05), 893 So.2d

209, this court determined that four years for attempted cultivation of marijuana

under La.R.S. 40:966 was not excessive where the defendant benefited from a plea

deal where the original charge of cultivation of marijuana was amended to attempted

cultivation of marijuana, thus, significantly minimizing the defendant’s sentence
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exposure. The maximum sentence under La.R.S. 40:966 for attempted cultivation

of marijuana was fifteen years, and the maximum Defendant here faced under

La.R.S. 40:989.1 was five years, but Defendant’s four-year sentence for this charge

was to run concurrently with the eight-year sentence for his conviction of attempted

possession of marijuana with intent to distribute. Furthermore, his sentence

exposure was reduced by his plea. Therefore, we find that the trial court did not

abuse its discretion when sentencing Defendant.

In his motion to reconsider, Defendant failed to raise the claim he presents in

his second assignment of error that the trial court failed to comply with the

requirements of La.Code Crim.P. art. 894.1. Louisiana Code of Criminal Procedure

Article 881.1 sets forth this requirement as follows:

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.

Since Defendant did not raise this claim in his motion to reconsider, this claim is

precluded from review.

ASSIGNMENT OF ERROR NUMBER THREE:

Defendant argues in his third assignment of error that although the sentence

of eight years for attempted possession with intent to distribute marijuana is not

illegal since the maximum sentence at the time of the crime was fifteen years, a

reduction in his sentence is warranted because the maximum at the time of

sentencing was five years. Defendant cited the supreme court’s decision in State v.

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Clark, 391 So.2d 1174 (La.1980), that an ameliorative change in the penalty

provision was a factor that the trial judge could consider during sentencing.

The State argues that Defendant’s claim that he is entitled to the ameliorative

effects of the legislature’s amendment to La.R.S. 40:966 for possession of marijuana

with intent to distribute is precluded from review because Defendant failed to raise

this issue in his motion to reconsider sentence, as required by La.Code Crim.P. art.

881.1(E).

Defendant’s failure to raise this claim in his motion to reconsider precludes it

from review by this court as required under La.Code Crim.P. art. 881.1(E).

DECREE:

Defendant’s convictions and sentences are affirmed.

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