State of Louisiana v. Uganon Sha Richard

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

22-18

STATE OF LOUISIANA

VERSUS

UGANON SHA RICHARD

************
APPEAL FROM THE
THIRTY-THIRD JUDICIAL DISTRICT COURT
PARISH OF ALLEN, DOCKET NO. CR-2019-2230
HONORABLE ERROL DAVID DESHOTELS, JR., DISTRICT JUDGE

************
SYLVIA R. COOKS
CHIEF JUDGE
************

Court composed of Sylvia R. Cooks, Chief Judge, Billy Howard Ezell and D. Kent
Savoie, Judges.

CONVICTIONS AFFIRMED; SENTENCES AFFIRMED IN PART AND
VACATED IN PART.

John Keith Richardson
Allen Parish District Attorney’s Office
P.O. Box 839
Oberlin, LA 70655
(337) 639-2641
COUNSEL FOR APPELLEE:
State of Louisiana

Sherry Waters
Louisiana Appellate Project
P.O Box 58769
New Orleans, LA 70158-8769
(504) 723-0284
COUNSEL FOR DEFENDANT/APPELLANT:
Uganon Sha Richard

COOKS, Chief Judge.

FACTS AND PROCEDURAL HISTORY

On July 3, 2019, pursuant to a search warrant, police raided the home of

Defendant, Uganon Sha Richard. During the raid, authorities seized 1.54 grams of

methamphetamine, 11.34 grams of cocaine, 3.39 grams of marijuana, and 19.44

grams of synthetic marijuana. Defendant’s home was in a posted drug-free zone.

Defendant was charged by bill of information with possession with intent to

distribute methamphetamine, a violation of La.R.S. 40:967(A)(1); possession with

intent to distribute cocaine, a violation of La.R.S. 40:967(A)(1); possession with

intent to distribute marijuana and/or synthetic derivatives, a violation of La.R.S.

40:966(A)(1); violating a controlled dangerous substance law in a drug-free zone, a

violation of La.R.S. 40:981.3(A)(1); obstruction of justice, a violation of La.R.S.

14:130.1(B)(2); child endangerment, a violation of La.R.S. 40:967(B)(2)(b); and

possession of drug paraphernalia, in violation of La.R.S. 40:1023(C) and 40:1025.

Defendant pled guilty to possession with intent to distribute less than 28 grams of

methamphetamine, possession with intent to distribute less than 28 grams of cocaine,

possession with intent to distribute less than 2.5 pounds of marijuana/synthetic

marijuana, obstruction of justice, and violation of the controlled dangerous

substances law in a drug-free zone, an enhancement of the first three charges.

Defendant was originally sentenced to nine years at hard labor on each of his

convictions of possession with intent to distribute methamphetamine, possession

with intent to distribute cocaine, possession with intent to distribute marijuana, and

for his violation of a controlled dangerous substance law in a drug-free zone. For

obstruction of justice, Defendant was sentenced to five years at hard labor. The State

filed a habitual offender bill seeking to have Defendant declared a fourth or

subsequent offender. A habitual offender hearing was held and by written judgment,

the court found Defendant is a fourth or subsequent felony offender.

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The court vacated Defendant’s original sentences and sentenced him as a

fourth or subsequent felony habitual offender on each of his five convictions to

twenty years to run concurrently with each other and any other time he may be

serving.

Defendant now appeals, asserting the State failed to prove he was a multiple

offender because it failed to prove the applicable discharge dates or that less than

five years of correctional supervision had passed between convictions. Defendant

also asserted the trial court erred in imposing excessive sentences in this case.

ANALYSIS

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 there is

an error patent that requires we vacate the sentences imposed on all three counts of

possession with the intent to distribute controlled dangerous substances (CDS) and

one count of violating the CDS law in a drug-free zone (La.R.S. 40:981.3). Further,

the case is remanded for resentencing on those counts.

The trial court erred in imposing a separate sentence for Defendant’s violation

of the CDS law within a drug-free zone instead of imposing an enhanced sentence

on each count of possession with intent to distribute a CDS. Defendant was charged

with three counts of possession with the intent to distribute controlled dangerous

substances. In a separate count, the State charged Defendant with violating the

provisions of La.R.S. 40:966 through 970 of the Uniform CDS Law while in a drug-

free zone, a violation of La.R.S. 40:981.3(A)(1). At Defendant’s guilty plea

proceeding, the trial court asked if the violation of La.R.S. 40:981.3 was a separate

charge to which Defendant must plead guilty. Defense counsel responded, “[N]o, it

is technically not[;] it is just gonna [sic] be the enhancement on the first three counts

he pled guilty to.” Before accepting his guilty plea on counts one through three, the

trial court asked Defendant if he acknowledged the “applicability of the violation of

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the CDS law in a drug free zone[.]” Defendant responded in the affirmative.

However, at both the original sentencing and the habitual offender sentencing, the

trial court imposed sentences on all three counts of possession with the intent to

distribute CDS and imposed a separate sentence for “violation of CDS laws in a drug

free zone.”

Louisiana Revised Statutes 40:981.3, in pertinent part, states the following:

A. (1) Any person who violates a provision of R.S. 40:966
through 970 of the Uniform Controlled Dangerous Substances Law
while on any property used for school purposes by any school, within
two thousand feet of any such property, or while on a school bus, shall,
upon conviction, be punished in accordance with Subsection D of this
Section.

(2) Any person who violates a provision of R.S. 40:966(A),
967(A), 968(A), 969(A), or 970(A) while on property used as a drug
treatment facility or within two thousand feet of any such property,
when included within an area marked as a drug-free zone pursuant to
R.S. 40:1058.10, shall, upon conviction, be punished in accordance
with Subsection D of this Section.

(3)(a) Any person who violates a provision of R.S. 40:966
through 970 of the Uniform Controlled Dangerous Substances Law
while on any religious building property, public housing authority
property, child day care center property, or within two thousand feet of
any such property, if the area is posted as a drug free zone, shall, upon
conviction, be punished in accordance with Subsection D of this
Section.

....

D. (1) Whoever violates a provision of this Section shall be
punished by the imposition of the maximum fine and be imprisoned for
not more than one and one-half times the longest term of imprisonment
authorized by the applicable provisions of R.S. 40:966 through 970.

(2) A sentence imposed for a violation of the provisions of this
Section shall not be subject to parole, probation, or suspension of
sentence to the extent that the minimum sentence for a violation of a
felony provision of R.S. 40:966 through 970 is not subject to parole,
probation, or suspension of sentence.

It is clear from the wording of the above provision that La.R.S. 40:981.3 does

not have a stand-alone penalty provision. Rather, the possible penalty is dependent

on the applicable CDS offense for which the defendant is charged. In this case,

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Defendant pled guilty to violating three different CDS provisions while being within

a drug-free zone. Each one of these offenses is punishable by imprisonment from

one to ten years with or without hard labor and a maximum fine of $50,000.00. With

the application of La.R.S. 40:981.3, each offense was punishable by the maximum

fine of $50,000.00 and imprisonment with or without hard labor from two to fifteen

years, with two years to be served without benefit of parole, probation, or suspension

of sentence.

Ultimately, Defendant was adjudicated and sentenced as a fourth habitual

offender as to each count. The habitual offender penalty provision applicable to

Defendant is La.R.S. 15:529.1(A)(4)(b):

If the fourth felony and no prior felony is defined as a crime of
violence under R.S. 14:2(B) or as a sex offense under R.S. 15:541, the
person shall be imprisoned for not less than twenty years nor more than
twice the longest possible sentence prescribed for a first conviction. If
twice the possible sentence prescribed for a first conviction is less than
twenty years, the person shall be imprisoned for twenty years.

Section G of La.R.S. 15:529.1 states that any habitual offender sentence must be

served at hard labor without benefit of probation or suspension. The restriction of

parole eligibility, however, is that which is provided for in the reference statute. State

v. Ford, 16-869 (La.App. 3 Cir. 4/19/17), 217 So.3d 634, writ denied, 17-936 (La.

4/6/18), 239 So.3d 829 (citing State v. Tate, 99-1483 (La. 11/24/99), 747 So.2d 519).

Accordingly, the habitual offender sentencing range for each of the CDS offenses

within a drug free zone is imprisonment for twenty to thirty years at hard labor,

without benefit of probation or suspension of sentence, and with two years to be

served without benefit of parole, probation, or suspension of sentence.

Under the plain wording of La.R.S. 40:981.3(D), the trial court should have

imposed a sentence for each count of possession with the intent to distribute a CDS,

with each sentence being imposed under the penalty provision of La.R.S. 40:981.3,

in conjunction with the penalty provision for each CDS violation. Consequently,

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each sentence imposed for possession with the intent to distribute a CDS (counts one

through three) and the sentence imposed for a violation of the CDS law in a drug-

free zone (La.R.S. 40:981.3) is vacated and the case remanded for the trial court to

resentence Defendant accordingly.

Defendant’s Assignments of Error

In his first assigned error, Defendant contends the State failed to prove his

multiple offender status because it failed to prove his discharge dates which were

required to show that less than five years lapsed between offenses for purposes of

La.R.S. 15:529.1(C)(1).

Louisiana Revised Statutes 15:529.1(C)(1) provides in pertinent part:

[T]he current offense shall not be counted as, respectively, a second,
third, fourth, or higher offense if more than five years have elapsed
between the date of the commission of the current offense or offenses
and the expiration of the correctional supervision, or term of
imprisonment if the offender is not placed on supervision following
imprisonment, for the previous conviction or convictions, or between
the expiration of the correctional supervision, or term of imprisonment
if the offender is not placed on supervision following imprisonment, for
each preceding conviction or convictions alleged in the multiple
offender bill and the date of the commission of the following offense or
offenses. In computing the intervals of time as provided in this
Paragraph, any period of parole, probation, or incarceration by a person
in a penal institution, within or without the state, shall not be included
in the computation of any of the five-year periods between the
expiration of the correctional supervision, or term of imprisonment if
the offender is not placed on supervision following imprisonment, and
the next succeeding offense or offenses.

Louisiana Revised Statutes 15:529.1 provides:

J. For purposes of this Section, “correctional supervision” means
any period of parole, probation, or incarceration of a person in a penal
institution, either within the state of Louisiana or outside of the state.

In State v. Bourque, 14-809, pp. 2-3 (La.App. 3 Cir. 12/10/14) (unpublished

opinion), this court discussed the cleansing period and how periods of parole are to

be considered in determining whether that period has lapsed:

In State v. Thomas, 05–2210, p. 10 (La.App. 1 Cir. 6/9/06), 938
So.2d 168, 176, writ denied, 06–2403 (La.4/27/07), 955 So.2d 683, the
first circuit stated the following about the above statutory provision:

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The statutory revision makes it clear that each step of the
defendant’s multiple offender ladder must be examined to
determine whether the State may link his first conviction
to his second, his second conviction to his third, and his
third conviction to his fourth to charge the defendant as a
fourth felony offender.

In “linking” up the defendant’s prior convictions, the date that a
defendant is actually discharged from state custody and supervision is
the date upon which the cleansing period begins. State v. Boutte, 10–
928, p. 3 (La.App. 3 Cir. 3/9/11), 58 So.3d 624, 627, writ denied, 11–
689 (La.10/7/11), 71 So.3d 314 (quoting State v. Boykin, 29,141
(La.App. 2 Cir. 1/31/97), 688 So.2d 1250). While a defendant is on
parole, he is still in state custody. State v. Vincent, 387 So.2d 1097
(La.1980). Thus, the cleansing period does not begin until the
defendant’s parole ends.

In the present case, the State charged Defendant with three
previous felony convictions: (1) possession of cocaine (conviction date
October 2, 2003); (2) false impersonation of a police officer (conviction
date December 11, 2003); and (3) distribution of dihydrocodeinone
(conviction date February 22, 1990). The commission date of the
offense for which Defendant’s sentence was enhanced (failure to renew
registration as a sex offender) was November 19, 2010. Since ten years
did not lapse between Defendant’s commission of failure to renew his
registration (November 19, 2010) and Defendant’s most recent prior
conviction (false impersonation of a police officer—December 11,
2003), the State was not required to prove the date on which Defendant
was discharged for serving his sentence for falsely impersonating a
police officer. See Boutte, 58 So.2d 624. Additionally since false
impersonation of an officer and the next previous conviction
(possession of cocaine) occurred within a few months of each other
(December 11, 2003 and October 3, 2003, respectively), the State was
not required to prove Defendant’s discharge date for the possession of
cocaine conviction. It is clear that ten years did not lapse between any
of these convictions.

Thus, the only remaining “link” in the ladder is the link between
the discharge date for his first previous conviction (distribution of
dihydrocodeinone-conviction date February 22, 1990) and the
commission of Defendant’s next previous conviction (possession of
cocaine—conviction date October 2, 2003). As the State notes in its
brief, it introduced a letter from the Department of Public Safety and
Corrections dated June 26, 2012, which shows that Defendant’s parole
for distribution of dihydrocodeinone (conviction date February 22,
1990) ended on June 14, 1999. This exhibit was introduced at
Defendant’s first habitual offender hearing without any objection. At
Defendant’s most recent habitual offender proceeding, the State asked
the trial court to take judicial notice of the first habitual offender
proceeding, which the trial court did without any objection from
Defendant. It is apparent from the record that less than ten years lapsed
between Defendant’s June 14, 1999, discharge date for distribution of

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dihydrocodeinone and Defendant’s conviction for possession of
cocaine (October 2, 2003); thus, the State satisfied its burden of proving
that less than ten years lapsed between these two previous offenses.
Accordingly, the period between each of the “links” in the “ladder”
were each less than ten years.

In the present case, there are four prior offenses at issue, those being 01-623,

05-1514, 11-3335, and 18-1800. In brief, Defendant states that in 01-623, he was

discharged for time served on November 15, 2004, then was subsequently arrested

in 05-1514 on February 22, 2005. According to Defendant, there was no evidence

of his release in 05-1514, and he was arrested on January 6, 2011, for the offense in

11-3335. He was subsequently released on good time on October 3, 2016, and was

arrested in 18-1800 on May 17, 2017. He was released on good time for the offense

in 18-1800 on February 14, 2019, and the current offense was committed on or about

July 3, 2019. Because the subsequent arrest dates (and thus, the commission dates)

fall within five years of the previous release dates except for the 2005 offense (for

which Defendant contends there was no evidence of his release presented),

Defendant’s challenge on appeal is limited to only this cleansing time period.

On October 12, 2005, Defendant was sentenced in 05-1514 for possession

with intent to distribute methamphetamine to ten years with the first five years to be

served without benefit of parole, probation, or suspension of sentence.1 The date of

the commission of the 2011 offense was January 6, 2011. There were approximately

three months between the expiration of the “without benefits” five-year term of the

2005 sentence and the commission of the 2011 offense. When Defendant entered

his guilty plea to and was sentenced for the 2011 offense on July 12, 2012, the court

ordered the ten-year sentence to run concurrently with any time Defendant was

“backing up” which defense counsel informed the court was in docket number 05-

1514.

1
Defendant was also sentenced to ten years for possession with intent to distribute cocaine.
The judge ordered two years of that sentence to be served without benefit of parole, probation, or
suspension of sentence with the two sentences to run concurrently.
8

Additionally, Christopher Bertrand of the Ville Platte District of the Louisiana

Department of Probation and Parole supervised Defendant during his period of

“good time parole” which falls under the Department of Corrections. During his

testimony, the State introduced Exhibit 2, the pen pack of Defendant’s Department

of Corrections records. He explained that this system is called CAJUN, and it

contains a defendant’s docket numbers, the location, revocation date, the offenses,

the commission dates, and the convictions dates. In using this system to prepare the

presentence investigation report, Mr. Bertrand came across 2018-1800, 2011-F-

3335, 2005-1514, and 2001-F-623. Defendant’s DOC number, which is assigned

upon a first felony conviction, appeared on the previous docket numbers as well as

the most recent docket number, 2019-2230. At the time of the conviction for the

current offenses, Defendant was still on supervision for CLA 29748, ALN 2005-F-

1514, ALN 2011-3335, and ALN 18-1800, and the new conviction caused an

automatic revocation of parole on all “those matters.” Referring to his records, Mr.

Bertrand testified that in 05-1514, Defendant was sentenced on October 12, 2005, to

ten years at hard labor for possession with intent to distribute cocaine, and ten years

at hard labor for possession with intent to distribute methamphetamine, to run

concurrently. For 11-3335, Defendant was sentenced on July 12, 2012, to ten years

at hard labor. Mr. Bertrand did not know when supervision ended for each of these

sentences. He explained that DOC does the time calculations and that “[w]hen

[Defendant] was eligible to be off, or his parole term, parole supervision date would

be on his diminution of sentence” and that appeared on the second page of the pen

pack. This page shows that for docket numbers 05-1514, 11-3335, and 18-1800,

Defendant was released on diminution of sentence as if on parole on February 14,

2019. On redirect examination, Mr. Bertrand explained that Defendant was still

being supervised in 2019 for his 2005 conviction.

9

Therefore, the five-year cleansing period did not lapse between the end of

Defendant’s supervision on the 2005 offense and the commission of the 2011

offense. Accordingly, this assignment of error has no merit.

Defendant’s second assigned error asserts his sentences are excessive and as

such should be vacated. As discussed in the error patent section above, we have

determined all Defendant’s sentences must be vacated except for the obstruction of

justice sentence. Thus, the obstruction of justice sentence is is the only sentence at

issue in this assignment of error.

For obstruction of justice, Defendant pled guilty pursuant to La.R.S.

14:130.1(B)(2), which carries a sentence of imprisonment for not more than twenty

years. As a fourth or subsequent offender, Defendant faced a sentence of twenty

years to life imprisonment; thus, he received the minimum sentence. Defense

counsel presented argument for imposition of a sentence below the mandatory

minimum based on Defendant’s lack of a violent history. Defendant testified at the

sentencing hearing that he was on work release and had been employed as a chef for

nine months. He confirmed that incarceration for a significant amount of time would

cost him this job. Letters submitted to the court by both the kitchen manager and

general manager of the restaurant provided very positive feedback about Defendant

and indicated their intent to offer him a more permanent position upon release.

The court noted that none of the prior offenses were violent offenses or sex

offenses and that Defendant had been very cordial and pleasant in all proceedings.

However, the court pointed out that although he had found Defendant to be a fourth

or subsequent felony offender per the habitual offender statute, this was actually his

eighth felony conviction. Under those circumstances, the court indicated that it did

not feel it was appropriate to deviate below the minimum statutory requirement. At

the close of the sentencing proceeding, defense counsel objected.

10

In State v. Williams, 16-140, pp. 19-20 (La.App. 3 Cir. 9/28/16), 201 So.3d

379, 394-95 (alterations in original), the defendant was sentenced to the mandatory

minimum sentence of twenty years for possession with intent to distribute a Schedule

II controlled dangerous substance as a third felony habitual offender. In finding his

sentence was not excessive, this court stated:

Article 1, § 20 of the Louisiana Constitution of
1974, prohibits “cruel, excessive, or unusual punishment.”
A sentence which falls within the statutory limits may
nevertheless be excessive under the circumstances. State
v. Sepulvado, 367 So.2d 762 (La.1979); State v. Naquin,
527 So.2d 601 (La.App. 3 Cir.1988). To constitute
an excessive sentence this court must find that the penalty
is 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,
therefore, is nothing more than needless imposition of pain
and suffering. State v. Campbell, 404 So.2d 1205
(La.1981); State v. Everett, 530 So.2d 615 (La.App. 3
Cir.1988), writ denied, 536 So.2d 1233 (La.1989). The
trial judge is given wide discretion in imposing a sentence,
and a sentence imposed within the statutory limits will not
be deemed excessive in the absence of manifest abuse of
discretion. State v. Howard, 414 So.2d 1210 (La.1982).

State v. Walker, 96–112, pp. 3–4 (La.App. 3 Cir. 6/5/96), 677 So.2d
532, 534–35, writ denied, 96–1767 (La. 12/6/96), 684 So.2d 924.

A trial court must look at the particular
circumstances of the case and the defendant’s background
in order to impose a sentence that is suited for him. On
review, the issue is not whether another sentence would
have been more appropriate; rather, it is whether the trial
court abused its discretion.

State v. Beverly, 03–1348, p. 2 (La.App. 3 Cir. 3/3/04), 867 So.2d 107,
110 (footnotes omitted).

Mandatory minimum sentences imposed on
multiple offenders under the Habitual Offender Law are
presumed to be constitutional, and a defendant bears the
burden of rebutting that presumption. State v. Ladd, 13-
1663, p. 3 (La.App. 4 Cir. 7/2/14), 146 So.3d 642, 644,
vacated and remanded on other grounds, 14–1611 (La.
3/27/15), 164 So.3d 184, (citing State v. Johnson, 97-
1906, pp. 5–6 (La. 3/4/98), 709 So.2d 672, 675, and State
v. Short, 96–2780, p. 8 (La.App. 4 Cir. 11/18/98), 725
So.2d 23, 27). To rebut the presumption that a mandatory

11

minimum sentence is constitutional, a defendant must
clearly and convincingly show that:

[he] is exceptional, which in this
context means that because of unusual
circumstances, the defendant is a victim of
the legislature’s failure to assign sentences
that are meaningfully tailored to the
culpability of the offender, the gravity of the
offense, and the circumstances of the case.

Id. (quoting State v. Lindsey, 99–3302, p. 5 (La. 10/17/00), 770 So.2d
339, 343).

“[D]epartures downward from the minimum sentence
under the Habitual Offender Law should occur only in rare
situations.” Lindsey, p. 5, 770 So.2d at 343 (quoting
Johnson, 97–1906, p. 8, 709 So.2d at 677).

State v. Hall, 14–1046, p. 15 (La.App. 4 Cir. 5/13/15), 172 So.3d 61,
70.

In brief, Defendant’s total argument consists of an assertion that
his twenty year sentence and his five year sentence are “constitutionally
excessive as they make no contribution to acceptable goals of
punishment and are nothing more than the purposeless imposition of
pain and suffering and are grossly out of proportion to the severity of
the crime.” Defendant does not explain how the mandatory sentence
is excessive in his case or in what way he is exceptional or a victim of
the legislature’s failure to assign a sentence that is meaningful to his
circumstance. Thus, Defendant has failed to meet his burden of proof.
There is no merit to this assignment of error.

Likewise, in State v. Fleming, 04-1218, pp. 10-12 (La.App. 5 Cir. 4/26/05),

902 So.2d 451, 459-60, writ denied, 05-1715 (La. 2/10/06), 924 So.2d 161 (footnote

omitted), the court stated:

There must be substantial evidence to rebut the constitutionality
presumption. “The trial court may not depart from the legislatively
mandated minimum simply because of some subjective impression or
feeling about the defendant.” State v. Bell, 97-1134 (La.App. 5 Cir.
2/25/98), 709 So.2d 921, 927, writ denied, 98-0792 (La.9/16/98), 721
So.2d 477. It has been strongly emphasized by the Louisiana Supreme
Court that downward departures from a mandatory minimum sentence
should occur in rare situations. State v. Lindsey, 99-3256 c/w 99-3302
(La.10/17/00), 770 So.2d 339, 343, cert. denied, 532 U.S. 1010, 121
S.Ct. 1739, 149 L.Ed.2d 663 (2001). The Legislature maintains the sole
authority to define criminal conduct and provide penalties for that
conduct. State v. Johnson, 709 So.2d at 675 (citations omitted). “[I]t is
apparent that the Legislature’s determination of an appropriate
minimum sentence should be afforded great deference by the

12

judiciary.” Although courts have the power to declare these sentences
excessive, this should only be done when the court is clearly and firmly
convinced that the minimum sentence is excessive. Id. at 676. A trial
judge cannot rely solely upon the non-violent nature of the present
crime or of previous crimes to justify the rebuttal of the constitutionality
presumption. Id. As stated in Johnson,

Under this statute the defendant with multiple felony
convictions is treated as a recidivist who is to be punished
for the instant crime in light of his continuing disregard for
the laws of our state. He is subjected to a longer sentence
because he continues to break the law.

Id. at 677.

Defendant was sentenced to the mandatory minimum of twenty
years without the benefit of parole, probation, or suspension of sentence
after being adjudged a fourth felony offender. Defendant’s predicate
convictions were for robbery, felon in possession of a firearm, and
burglary.

...

In light of defendant’s extensive criminal history, we find that
the trial court did not abuse its discretion in sentencing defendant. The
defendant did not offer sufficient evidence to rebut the presumption that
his enhanced sentence was constitutional and not excessive. The
defendant argues that a twenty-year sentence for possessing a glass tube
containing cocaine residue is excessive since he is accused of only
smoking from the glass tube, not beating or stabbing someone with it.
He further argues that such a sentence for such a small amount of
cocaine is a needless imposition of pain and suffering. In State v.
Johnson, 03-903 (La.App. 5 Cir. 12/9/03), 864 So.2d 645, 653, this
Court, relying on State v. Robinson, concluded that defendant had not
made a showing of exceptional circumstances to justify a downward
departure from the minimum sentence mandated by the Habitual
Offender Statute when the defendant sought a downward departure on
the grounds that the amount of narcotics (.01 grams) was small.

This Court has found that a twenty-year sentence for a defendant
convicted of possession of cocaine and subsequently adjudicated a
fourth felony offender is not excessive. See, State v. Bailey, 875 So.2d
949. In this case, defendant has failed to prove that a downward
deviation from the mandatory minimum sentence is warranted.
Accordingly, we find that the enhanced sentence imposed is not
excessive.

We find Defendant has not established that he is exceptional or a victim of the

“legislature’s failure to assign a sentence meaningful to his circumstance” to justify

a downward departure from the minimum sentence mandated by the Habitual

13

Offender Statute. Williams, 201 So.3d at 395. Accordingly, this assignment of error

has no merit.

DECREE

For the foregoing reasons, Defendant’s convictions and his habitual offender

sentence for obstruction of justice are affirmed. The three sentences imposed for

possession with the intent to distribute CDS (counts one through three) and the

sentence imposed for a violation of the CDS law within a drug-free zone are vacated

and the case remanded for resentencing on those counts. The trial court is instructed

to impose a sentence for each count of possession with intent to distribute a CDS,

with each sentence being imposed under the penalty provision of La.R.S. 40:981.3,

in conjunction with the applicable penalty provision for each CDS violation.

CONVICTIONS AFFIRMED; SENTENCES AFFIRMED IN PART
AND VACATED IN PART.

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