State of Louisiana v. Jeffery Lynn Cooley

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

22-140

STATE OF LOUISIANA

VERSUS

JEFFERY LYNN COOLEY

**********

APPEAL FROM THE
THIRTY-SIXTH JUDICIAL DISTRICT COURT
PARISH OF BEAUREGARD, NO. CR-2017-816
HONORABLE MARTHA ANN O’NEAL, DISTRICT JUDGE

**********

ELIZABETH A. PICKETT
JUDGE

**********

Court composed of Elizabeth A. Pickett, Van H. Kyzar, and Candyce G. Perret,
Judges.

AFFIRMED AND REMANDED WITH INSTRUCTIONS.

S. Christie Smith, IV
SmithAdvocates, LLC
P.O. Box 1528
Leesville, LA 71496
(337) 239-2244
COUNSEL FOR DEFENDANT- APPELLANT:
Jeffery Lynn Cooley

James R. Lestage
District Attorney, Thirty-Sixth Judicial District
Richard A. Morton
Assistant District Attorney
124 South Stewart Street
DeRidder, LA 70634
(337) 463-5578
COUNSEL FOR APPELLEE:
State of Louisiana

PICKETT, Judge.

FACTS

As stated by this court in the defendant’s prior appeal:

The charges against the defendant, [Jeffery] Lynn Cooley, arise
from two incidents. On August 6, 2017, the defendant and a few other
individuals allegedly lured Preston Maddox to the defendant’s home
and held him there against his will while beating him and robbing him
as retaliation for his believed involvement in Elizabeth Ann Frazier’s
prior arrest for selling drugs. When law enforcement executed a
warrant at the defendant’s home two days later, they found numerous
drugs inside the home, leading to the five charges related to controlled
dangerous substances (CDS).

State v. Cooley, 21-25, 21-26, p. 1 (La.App. 3 Cir. 10/6/21), 329 So.3d 870, 872.

On October 6, 2017, the defendant was charged by bill of information,

alongside Elizabeth Ann Frazier, with armed robbery of Preston Maddox, in

violation of La.R.S. 14:64; second degree kidnapping of Preston Maddox, in

violation of La.R.S. 14:44.1; and aggravated battery of Preston Maddox, in

violation of La.R.S. 14:34. The three offenses occurred on August 6, 2017. On

January 17, 2019, an amended bill of information was filed, maintaining the

original three charges and adding five additional drug charges against only the

defendant: possession with the intent to distribute CDS II (methamphetamine), in

violation of La.R.S. 40:967; possession of CDS IV (temazepam), in violation of

La.R.S. 40:969; possession of CDS IV (zolpidem tartrate), in violation of La.R.S.

40:969; possession of CDS IV (tramadol), in violation of La.R.S. 40:969; and

possession of CDS II (morphine sulphate), in violation of La.R.S. 40:967. The

CDS charges all have an offense date of August 8, 2017. On August 30, 2019, a

second amended bill of information was filed, removing Elizabeth Ann Frazier as a

codefendant but maintaining the eight charges against the defendant listed in the

first amended bill of information.

On September 30, 2019, a jury found the defendant guilty as charged of

armed robbery, second degree kidnapping, aggravated battery, and possession with

intent to distribute CDS II (methamphetamine), and possession of CDS II

(morphine sulphate). Additionally, the jury found the defendant guilty of the

responsive verdicts of attempted possession of CDS IV (temazepam), attempted

possession of CDS IV (zolpidem tartrate), and attempted possession of CDS IV

(tramadol).

On October 1, 2019, the State filed a “Habitual Offender Bill of

Information,” contending the defendant was a fourth felony offender, based on

prior convictions on May 31, 1996; October 28, 2004; and February 3, 2012. On

October 30, 2019, the defendant admitted to the accusations of the habitual

offender bill. On November 19, 2019, the defendant was sentenced as a habitual

offender to life imprisonment at hard labor without benefit of probation, parole, or

suspension of sentence on all eight counts, with the life sentences to run

concurrently to each other but consecutively to any other sentence the defendant

might be serving.

Prior to the resentencing, the defendant filed a “Motion to Reconsider

Sentence” on December 6, 2019, which argued the defendant’s life sentences were

constitutionally excessive. The motion was denied without a hearing on December

13, 2019.

On September 28, 2020, the trial court, on its own motion, held a hearing to

declare mistrials on the defendant’s non-unanimous convictions for armed robbery

and second degree kidnapping and to resentence the defendant on the remaining

six convictions. This hearing was held in response to the Supreme Court’s ruling

in Ramos v. Louisiana, 590 U.S. ___, 140 S.Ct. 1390 (2020), which held all

criminal convictions must be the result of a unanimous jury. After declaring
2

mistrials on the armed robbery and second degree kidnapping convictions, the trial

court stated that the “sentence technically remains unchanged. But for clarity of

the record,” restated that the defendant was sentenced to life imprisonment at hard

labor without benefit for the six other convictions. At the resentencing, the trial

court noted the defendant had filed a motion in July, titled as a motion for new

trial, which sought a declaration of mistrial in all eight convictions. After

confirming the defendant was seeking a mistrial on all charges, the trial court noted

that it had denied that motion “by granting the mistrial on count[] one and count

two.”

On appeal, this court affirmed the defendant’s convictions for aggravated

battery, possession with intent to distribute CDS II (methamphetamine), possession

of CDS II (morphine sulphate), attempted possession of CDS IV (temazepam),

attempted possession of CDS IV (zolpidem tartrate), and attempted possession of

CDS IV (tramadol). State v. Cooley, 21-25 (La.App. 3 Cir. 10/6/21), 329 So.3d

870; State v. Cooley, 21-26 (La.App. 3 Cir. 10/6/21), 329 So.3d 410. This court

affirmed the defendant’s mandatory life sentences for aggravated battery and

possession with intent to distribute CDS II (methamphetamine). Id. However, this

court vacated the mandatory life sentences imposed on counts five through eight

(convictions for attempted possession of CDS IV (temazepam), attempted

possession of CDS IV (zolpidem tartrate), attempted possession of CDS IV

(tramadol), and possession of CDS II (morphine sulphate)), and this court

remanded the case for resentencing on those counts under La.R.S.

15:529.1(A)(4)(a). Id.

On November 4, 2021, the trial court resentenced the defendant following

this court’s judgment. The trial court vacated the sentences on counts three

through eight. The trial court reinstated the life sentences imposed on counts three
3

(aggravated battery) and four (possession with intent to distribute

methamphetamine). The trial court then imposed twenty-five years at hard labor

each for counts five (attempted possession of temazepam), six (attempted

possession of zolpidem tartrate), and seven (attempted possession of tramadol).

The court found that these charges comprised a fourth felony offense for purposes

of the habitual offender law and ordered the sentences to run concurrently with one

another as well as to the sentences on counts three and four, which had been

affirmed by this court. The court ordered these sentences to run consecutively to

any other sentence which remained unserved. As to count eight, possession of

morphine sulphate, the court sentenced the defendant to life imprisonment at hard

labor. The court found that this charge comprised a fourth felony offense under the

habitual offender law and ordered this sentence to run concurrently with counts

three, four, five, six, and seven but consecutively to any other unserved sentence.

The state filed a notice of dismissal and dismissed count one, armed robbery,

and count two, second degree kidnapping. On December 2, 2021, the defendant

filed a motion to reconsider sentence with the trial court and asserted his habitual

offender sentences were excessive, especially his life sentence for a CDS violation.

The trial court denied the motion on December 9, 2021. On January 13, 2022, the

defendant filed a motion for appeal, which was granted.

ASSIGNMENTS OF ERROR

1. The trial court erred by sentencing the defendant to the maximum
sentence of life in prison for the offense of Possession of CDS II
(Morphine Sulphate) because it is constitutionally excessive.

2. The trial court erred in sentencing the defendant to twenty-five
years for attempted CDS charges because the sentences are
constitutionally excessive.

3. The trial court erred in sentencing the defendant to life in prison
for Aggravated Battery and Possession with Intent to Distribute CDS

4

II (methamphetamine) because the sentences are constitutionally
excessive.

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 the court minutes of sentencing require correction.

Although the court minutes of sentencing reflect that the defendant’s life

sentence for count eight, possession of morphine sulfate, was imposed without the

benefit of parole, the sentencing transcript does not show any parole restriction was

imposed on this sentence. “[W]hen the minutes and the transcript conflict, the

transcript prevails.” State v. Wommack, 00-137, p. 4 (La.App. 3 Cir. 6/7/00), 770

So.2d 365, 369, writ denied, 00-2051 (La. 9/21/01), 797 So.2d 62. Accordingly,

the trial court is ordered to correct the court minutes of sentencing to delete the

denial of parole on the defendant’s habitual offender sentence for possession of

morphine sulfate.

DISCUSSION

The defendant argues that his sentences are constitutionally excessive. As

to his life sentence for possession of morphine sulfate, the defendant argues his

sentence is excessive because it was a comparatively minor and non-violent crime,

and the facts do not show that he is the worst kind of offender. “Second, the

twenty-five years [sic] sentences for the remaining attempted possession of CDS

charges are also excessive because those crime [sic] are among the smallest

felonies conceptually possible, and a sentence even at the minimum of the habitual

enhancement (twenty years) is excessive.” Lastly, the defendant argues that his

sentences for possession with intent to distribute methamphetamine and aggravated

5

battery are constitutionally excessive because “the circumstances do not suggest

that the offender is the ‘worst-of-the-worst’ of offenders.”

The defendant argues that the state’s evidence at trial suggested he was a

mid-level narcotics seller and user, and neither the instant case “nor the predicates

are particularly remarkable in scope or egregiousness.” The defendant notes that

the aggregation of his prior convictions formed the basis for the habitual offender

enhancement. The defendant further notes that his same argument applies to all

three assignments of error, “that the severe sentences are constitutionally

unwarranted.” The defendant maintains that maximum sentences are reserved for

cases involving the most serious violations and worst offenders, but he is not in

that category. The defendant asserts that “these drug offenses are of the most

minor type, and even the aggravated battery is not particularly egregious.” As to

the battery, “it was suggested that the defendant slapped the forehead of the

complainant with the broad side of a knife. There was no cut or appreciable

physical injury.”

The defendant concludes by arguing that his convictions are for modest

amounts of illegal substances, and the violent crime resulted in no particular injury.

The defendant insists that the only true aggravating factor is his number of

convictions. He argues that maximum life sentences for the drug and battery

convictions shock the conscience, especially when considering the small quantity

of drugs and how the victim was a voluntary participant in the drug culture who

suffered minimal harm. For these reasons, the defendant asks this court to vacate

his sentences and remand for resentencing.

In brief, the state asserts that the trial court did not abuse its discretion in

resentencing the defendant because the sentences are not constitutionally excessive

given the defendant’s status as a fourth-felony habitual offender and past crimes of
6

violence and other serious felonies. The state notes that the defendant argues he is

not the “worst-of-the-worst” and should not be subject to the sentences imposed;

however, the state argues that these sentences must be considered based on the

totality of the circumstances, which includes a lifetime of criminal behavior by the

defendant. The state urges this court to affirm the defendant’s sentences based on

his repeated commission of felony offenses, including crimes of violence, his

intended distribution of methamphetamine, the fact that the defendant has spent

much of his adult life in custody or on probation, and the fact that he is exactly the

type of criminal for which the habitual offender law was adopted. As to the

defendant’s argument regarding his convictions for aggravated battery and

possession with intent to distribute methamphetamine, the state points out that

these sentences were previously affirmed by this court and should not now be

reconsidered.

Before addressing the defendant’s resentencing claims on counts five

through eight, we address his claim that his previously affirmed sentences of life

imprisonment for aggravated battery and possession with intent to distribute

methamphetamine are excessive. In State v. Wise, 14-378, pp. 14-15 (La.App. 5

Cir. 10/15/14), 182 So.3d 63, 73-74, writ denied, 14-2406 (La. 9/18/15), 178 So.3d

143, the fifth circuit held:

Firstly, since this Court previously affirmed defendant’s
conviction, defendant may appeal only his resentencing. See State v.
Anderson, 12-869 (La.App. 5 Cir. 6/27/13), 121 So.3d 119, 124, writ
denied, 13-1861 (La.2/21/14), 133 So.3d 679 (finding the trial errors
alleged by the defendant in his second appeal could have, and should
have, been raised in the defendant’s original appeal; thus, this Court
found the issues waived and not within this Court’s jurisdiction on
appeal); State v. Martinez, 09-1057 (La.App. 5 Cir. 5/25/10), 40 So.3d
1113 (finding, issue regarding sufficiency of the evidence raised by
the defendant in his second appeal would not be addressed by this
Court on the defendant’s second appeal which only involved multiple
bill proceedings); State v. Anderson, 97-2587 (La.App. 4 Cir.
11/18/98), 728 So.2d 14 (where the Fourth Circuit affirmed the
7

defendant’s convictions on original appeal, vacated the sentences and
remanded the matter for resentencing because the defendant had been
sentenced prior to the hearing on his post-trial motions. On his second
appeal, the defendant raised several claims of trial error. The Fourth
Circuit found that the defendant could appeal only
his resentencing and that the alleged trial errors should have been
raised in the first appeal and were thus considered waived).
Accordingly, here, we find that defendant’s conviction has already
been affirmed and that the only issues before this Court on
defendant’s second appeal relate to his resentencing.

In the defendant’s previous appeal, this court held that there was no merit to the

defendant’s contention that his life sentences for aggravated battery and possession

with intent to distribute methamphetamine are constitutionally excessive. Cooley,

329 So.3d 870. This court affirmed the defendant’s convictions and sentences for

aggravated battery and possession with intent to distribute methamphetamine and

remanded the matter for resentencing on the remaining convictions. Therefore, the

defendant may appeal only his resentencing on counts five through eight.

We now consider the defendant’s claims regarding the excessiveness of his

resentencing. Louisiana courts have laid out the following guidelines regarding

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
8

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
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[, cert. denied, 519 U.S. 1043, 117 S.Ct. 615 (1996)].

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.

Furthermore, in State v. Baker, 06-1218 (La.App. 3 Cir. 4/18/07), 956 So.2d

83, writ denied, 07-320 (La. 11/9/07), 967 So.2d 496, and writ denied, 07-1116

(La. 12/7/07), 969 So.2d 626, this court adopted the fifth circuit’s three factor test

from State v. Lisotta, 98-648, (La.App. 5 Cir. 12/16/98), 726 So.2d 57, writ denied,

99-433 (La. 6/25/99), 745 So.2d 1183, which established that an appellate court

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

and the sentences imposed for similar crimes.

Looking first to the nature of the crime, counts five through eight involve

non-violent drug offenses, and on appeal, this court vacated the life sentences on

9

counts five through eight and remanded for resentencing under La.R.S.

15:529.1(A)(4)(a). Cooley, 329 So.3d 870. This article provides, “The person

shall be sentenced to imprisonment for the fourth or subsequent felony for a

determinate term not less than the longest prescribed for a first conviction but in no

event less than twenty years and not more than his natural life.” Therefore, the

sentencing ranges as a fourth habitual offender for possession of morphine

sulphate, attempted possession of temazepam, attempted possession of zolpidem

tartrate, and attempted possession of tramadol are not less than twenty years but

not more than life imprisonment.

As to the nature and background of the offender, we will look to the remarks

made during the resentencing hearing on remand. At the resentencing hearing

held on November 4, 2021, the trial court indicated that it reviewed the factors

previously stated during the prior habitual offender hearing and still found the

defendant “to be a person who [for] most of his adult life used and/or sold illegal

drugs.” The trial court continued, “The testimony heard by this Court in the jury

trial proved the use or the distribution of drugs contributed to all aspects of the

crimes for which the defendant was convicted.” The court stated that there were

no mitigating factors or redeeming qualities that supported a downward departure

or a deviation from the possible sentences. The trial court additionally stated that

the defendant’s sentences were not excessive because his ongoing lifestyle as a

drug user or dealer was established from the evidence presented. As to the

defendant’s life sentence for possession of morphine sulphate, the trial court again

stated this sentence was not excessive “because [t]he defendant’s ongoing lifestyle

as a drug dealer is evidence [sic] throughout all evidence presented [sic] is found to

be main thing of Jeffery Lynn Cooley’s life of crime.”

10

Since the trial court directly referenced the prior habitual offender and

sentencing hearings in imposing these new sentences, we will consider the

information from those prior hearings. At the habitual offender hearing on October

30, 2019, the defendant testified that he was forty-six years old and had completed

a twelfth-grade education. The defendant testified that he had worked in the past,

and he openly admitted that he had been convicted of all the prior felonies

contained in the habitual offender bill of information, which included: distribution

of CDS I (lysergic acid diethylamide); possession of CDS I (marijuana) with

intent to distribute; attempted possession of a firearm by a person convicted of a

felony; possession of CDS II (methamphetamine) with intent to distribute; and

felony domestic abuse battery by strangulation. At the resentencing hearing held

on September 28, 2020, the court noted that the defendant “through [h]is adult life

has used or sold illegal drugs for most of the time and the testimony presented in

the jury trial painted a particular gruesome and cruel battery of the victim.”

The final factor in the Baker analysis is a comparison of the sentences

imposed for similar crimes. As stated above, the defendant was given a life

sentence for possession of morphine sulphate as a fourth felony habitual offender.

In State v. Douglas, 10-2039 (La.App. 1 Cir. 7/26/11), 72 So.3d 392, writ denied,

11-2307 (La. 5/25/12), 90 So.3d 406, and writ denied, 12-2508 (La. 5/3/13), 115

So.3d 474, the defendant was found guilty of attempted possession of cocaine, a

violation of La.R.S. 40:967, and the state filed a habitual offender bill of

information where defendant was adjudicated a fourth felony habitual offender.

The defendant was sentenced to life imprisonment without benefits. In affirming

the defendant’s sentence, the first circuit held:

In his sole counseled assignment of error, the defendant argues
the trial court erred in imposing an unconstitutionally excessive
sentence. Specifically, he argues that the maximum sentence of life
11

imprisonment was not warranted in this case because there was no
showing that he is the worst type of offender or that he committed the
most serious violation of the offense. The State asserts the sentence
imposed is justified based upon the defendant’s criminal history and
his propensity to continue to break laws.

....

Based on his prior convictions, as a fourth-felony habitual
offender, the defendant was exposed to a penalty of imprisonment,
with or without hard labor, for a minimum of twenty years to a
maximum of life. See LSA-R.S. 40:967(C)(2); LSA-R.S.
14:27(D)(3) and LSA-R.S. 40:979(A). See also LSA-R.S.
15:529.1(A)(1)(c)(i) (prior to the 2010 amendments). As previously
noted, the defendant received the maximum sentence. This court has
stated that maximum sentences permitted under statute may be
imposed only for the most serious offenses and the worst offenders,
State v. Easley, 432 So.2d 910, 914 (La.App. 1st Cir.1983), or when
the offender poses an unusual risk to the public safety due to his past
conduct of repeated criminality. See State v. Chaney, 537 So.2d 313,
318 (La.App. 1st Cir.1988), writ denied, 541 So.2d 870 (La.1989).

Initially we point out that, in denying two separate motions for
reconsideration of the sentence, the trial court specifically noted that
all relevant aggravating and/or mitigating circumstances were taken
into consideration. Further, the evidence introduced at the habitual
offender hearing in this case established that the defendant has been
committing felony drug offenses since 1990. Considering the
defendant’s extensive criminal record, we find that the trial court
adequately considered the criteria of Article 894.1 and did not
manifestly abuse its discretion in imposing the statutory maximum
sentence upon the defendant. Such a sentence is clearly supported by
the record. The defendant, who has repeatedly committed felony drug
offenses, poses an unusual risk to public safety and is exactly the type
of recidivist that the Habitual Offender Law intends to punish
severely. The maximum sentence imposed in this case is not
unconstitutionally excessive.

Id. at 396-97.

We note that there are a limited number of cases involving possession of a

Schedule II controlled dangerous substance where the defendant was adjudicated a

fourth felony habitual offender and sentenced to life imprisonment. However, we

find that the defendant’s life sentence for possession of morphine sulphate was not

excessive when considering his prior convictions. While the defendant points to

the general principle that maximum sentences are reserved for the most
12

blameworthy of offenders, this court finds that the defendant fits within that

category. At sentencing, the trial court noted the defendant had an ongoing

lifestyle as a drug dealer and that drugs contributed to all aspects of the crimes for

which the defendant was convicted. The defendant presents a very limited

argument to bolster his excessive sentence claim, and counsel even acknowledges

that the defendant’s number of convictions constitutes an aggravating

circumstance. In looking at the defendant’s habitual offender bill of information

and his six other convictions, the defendant is not only a repeat drug offender but

has also committed crimes of violence. The trial court noted it considered the

factors and found that there were no applicable mitigating factors in this

circumstance, and because of the defendant’s lifestyle, imposed the maximum life

sentence. The defendant’s life sentence is supported by the record because he has

repeatedly committed felony drug offenses, which in turn pose a risk to public

safety, and the defendant is exactly the type of recidivist that the habitual offender

law intended to punish severely. Furthermore, the defendant is already serving

mandatory life sentences for aggravated battery and possession with intent to

distribute CDS II (methamphetamine) that were previously affirmed by this court.

We affirm the defendant’s life sentence for possession of CDS II (morphine

sulfate).

In the defendant’s remaining assignment of error, he argues the trial court

imposed excessive sentences by sentencing him to twenty-five years each on

counts five through seven, to run concurrently, for his attempted possession

charges. As stated above, count five was attempted possession of CDS IV

(temazepam); count six was attempted possession of CDS IV (zolpidem tartrate);

and count seven was attempted possession of CDS IV (tramadol). In State v.

Murphy, 09-805 (La.App. 5 Cir. 2/23/10), 34 So.3d 886, writ denied, 10-690 (La.
13

10/15/10), 45 So.3d 1110, the defendant was convicted of possession of

clonazepam, in violation of La.R.S. 40:969(C). The state filed a habitual offender

bill of information and alleged the defendant was a fourth felony habitual offender.

The trial court found the defendant to be a fourth felony offender and sentenced

him to thirty years at hard labor. In affirming the defendant’s adjudication as a

fourth felony offender and his thirty-year sentence, the fifth circuit held:

In his second assignment of error, defendant complains that his
30–year habitual offender sentence is unconstitutionally excessive,
considering that the underlying offense, possession of clonazepam,
was relatively minor. In response, the State claims that the sentence is
appropriate, considering that defendant had several prior convictions
for narcotics distribution, which demonstrates he is a habitual drug
dealer.

....

At the time of the underlying offense in this case,
the sentencing range for possession of clonazepam was not more than
five years. LSA-R.S. 40:969 C(2). As a fourth felony offender whose
underlying conviction was not for a crime of violence, defendant was
subject to a sentencing range of 20 years to life in prison. LSA-R.S.
15:529.1 A(1)(c)(i).

At the time of sentencing, the trial judge noted that LSA–R.S.
15:529.1 B was amended to provide that multiple convictions
obtained on the same day prior to October 19, 2004 count as only one
conviction for purposes of multiple offender proceedings. On
December 4, 2002, defendant entered guilty pleas to drug distribution
charges in three cases, but they counted as one conviction for multiple
bill purposes. The trial judge also stated that he felt the 30–
year sentence was appropriate based on defendant’s criminal record,
and that a lesser sentence would deprecate the seriousness of that
record.

Defendant’s prior convictions show a continuing pattern of
drug distribution that was not forestalled by previous convictions and
terms of imprisonment. Based on the record before us, we find that
the trial court did not abuse its broad discretion in imposing the 30–
year sentence. Accordingly, this assignment of error is without merit.

Id. at 890-91.

In State v. Henry, 42,416 (La.App. 2 Cir. 9/19/07), 966 So.2d 692, writ

denied, 07-2227 (La. 8/29/08), 989 So.2d 95, the defendant was convicted of
14

illegal possession of CDS IV, was found to be a fourth felony offender, and was

sentenced to twenty-five years at hard labor. The second circuit affirmed the

defendant’s conviction and twenty-five-year sentence. The second circuit noted

that:

As previously stated, the trial court found Defendant to be a
fourth-felony offender and sentenced him to 25 years without benefit
of parole, probation or suspension of sentence. The sentencing range
for fourth-felony offenders is “for a term not less than the longest
prescribed for a first conviction but in no event less than twenty years
and not more than his natural life.” La. R.S. 15:529.1(A)(1)(c)(i).
Accordingly, the trial court imposed a sentence within the lower-range
of the sentencing statute. Defendant was given the opportunity to
avoid arrest by cooperating with law enforcement in other narcotics
investigations and Defendant rejected the State’s plea offer of five
years. Defendant was also given the opportunity for a pre-
sentence investigation, but turned it down because his counsel
believed that a reporting of Defendant’s past misdemeanor offenses
could be harmful. The record indicates that the trial court heard the
arguments of counsel and that Defendant personally addressed the
trial court before sentencing. Prior to imposing sentence, the trial
court inquired into Defendant’s age, which was 49 years old. The trial
court noted the following reasons for the sentence it imposed:

It’s the sentence of the Court that you serve 25
years in prison [at] hard labor. This is actually your fifth
felony offense. You’re adjudicated as a fourth felony
offender. The evidence of your guilt was beyond any
reasonable doubt. It appears to the Court that you’re
incalcitrant about the offense. You’re still arguing when
the guilt was overwhelming, shows to me no remorse for
what you’ve done and you’re what in layman’s terms
would be considered a career criminal. I think any
lesser sentence is inappropriate.

Thus, a review of the record indicates that the trial court was
cognizant of the sentencing considerations of La. C. Cr. P. art. 894.1.

....

Applying the reasoning from State v. Johnson, [97-1906 (La.
3/4/98), 709 So.2d 672,] to the present case, we do not find that a
sentence less than the mandatory minimum under the Habitual
Offender Law is required. The trial court rejected that argument and
imposed a sentence slightly higher than the mandatory minimum.
Defendant did not present clear and convincing evidence that his
circumstances were exceptional or that he was the victim of the
legislature’s failure to assign sentences meaningfully tailored to his
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culpability, to the gravity of his offense or to the circumstances of his
case.

This assignment is, therefore, without merit.

Id. at 704-06.

In State v. Corkern, 18-1000 (La.App. 1 Cir. 12/21/18) (unpublished

opinion), writ denied, 19-194 (La. 4/22/19), 268 So.3d 303,1 the state charged the

defendant with two counts of possession of alprazolam, in violation of La.R.S.

40:969(C), along with possession of hydrocodone and possession with intent to

distribute amphetamine. The state filed a habitual offender bill of information, and

the defendant was adjudicated a fourth felony offender. The trial court sentenced

the defendant as a habitual offender to twenty years at hard labor on one count of

possession of alprazolam. In affirming the defendant’s habitual offender

adjudication and sentence, the first circuit held:

The defendant committed the instant offenses on February 1,
2016. Accordingly, the applicable provisions of the Habitual Offender
Statute are those as they existed on the date the offenses were
committed. See State v. Parker, 2003-0924 (La. 4/14/04), 871 So.2d
317, 327 (“the punishment to be imposed on defendant, a habitual
offender, is that provided by La. R.S. 15:529.1 as it existed on the date
he committed the underlying offense”). . . .

The defendant stipulated to being a fourth-felony habitual
offender. Accordingly, his sentencing range was twenty years to life
imprisonment. The defendant argues in brief that his twenty-year
sentence is excessive because of his age (thirty-four years old); the
small amount of drugs he possessed; his criminal history does not
consist of crimes of violence or sex crimes; and the drug crimes that
he did commit were not punishable by ten years or more. The
defendant notes that the maximum sentence allowable for each of the
instant convictions was five years.

The record reflects that the defendant was not sentenced to
twenty years imprisonment for the instant offenses, all of which
carried sentences for not more than five years imprisonment. See La.
R.S. 40:967(C)(2) 40:969(C)(2). The defendant received the enhanced
sentence because of his continued lawlessness. The major reasons the
Legislature passed the Habitual Offender Law were to deter and

1
The case citation is 2018 WL 6718603.
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punish recidivism. Under this statute, a 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. [State v.] Johnson, [97-1906 (La. 3/4/98),] 709 So.2d
[672,] 677. Moreover, it would seem that the defendant’s age, the
instant offenses, and his criminal history of non-violent offenses is
precisely the reason he was sentenced to only the minimum of twenty
years imprisonment under a sentencing range that included life
imprisonment.

The defendant has not pointed to any instances of how his
situation is unique. In any case, there is nothing particularly unusual
about the defendant’s circumstances that would justify a downward
departure from the mandatory sentence under La.R.S.
15:529.1(A)(4)(a). The record before us established an adequate
factual basis for the sentence imposed. The defendant has not shown
by clear and convincing evidence that he is exceptional such that the
sentence would not be meaningfully tailored to the culpability of the
offender, the gravity of the offense, and the circumstances of the case.
See Johnson, 709 So.2d at 676. Accordingly, no downward departure
from the presumptively constitutional mandatory minimum sentence
is warranted. The enhanced twenty-year sentence imposed is not
grossly disproportionate to the severity of the offenses and, therefore,
is not unconstitutionally excessive. This pro se assignment of error is
without merit.

Id. at pp. 16-18 (footnotes omitted).

Based on these cases, we find the defendant’s sentences on counts five, six,

and seven are not constitutionally excessive. The defendant has not argued for a

downward departure, nor has he shown how his situation is unique or that the

sentences amounted to nothing more than the purposeful imposition of pain and

suffering. Furthermore, as the trial court indicated, the defendant has repeatedly

committed drug offenses along with the violent crimes documented on the habitual

offender bill of information. The trial court indicated that it reviewed the

mitigating facts but focused on the defendant’s ongoing lifestyle as a drug offender

and sentenced the defendant in compliance with the habitual offender law. We,

therefore, affirm the defendant’s sentences for counts five through seven.

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CONCLUSION

We affirm the defendant’s habitual offender sentences. However, the trial

court is ordered to correct the court minutes of sentencing to delete the denial of

parole on the defendant’s habitual offender sentence for count eight, possession of

CDS IV (morphine sulfate).

AFFIRMED AND REMANDED WITH INSTRUCTIONS.

This opinion is NOT DESIGNATED FOR PUBLICATION.
Uniform Rules—Courts of Appeal, Rule 2-16.3.

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