State of Louisiana v. Gregory Harville, Jr.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

23-413

STATE OF LOUISIANA

VERSUS

GREGORY HARVILLE, JR.

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APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 355,692
HONORABLE WILLIAM GREGORY BEARD, DISTRICT JUDGE

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D. KENT SAVOIE
JUDGE

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Court composed of D. Kent Savoie, Candyce G. Perret, and Ledricka J. Thierry,
Judges.

AFFIRMED AND REMANDED WITH INSTRUCTIONS.

G. Paul Marx
Louisiana Appellate Project
P.O. Box 82389
Lafayette, LA 70598
(337) 237-2537
COUNSEL FOR DEFENDANT/APPELLANT:
Gregory Harville, Jr.

J. Phillip Terrell, Jr.
District Attorney
Kenneth A. Doggett, Jr.
Assistant District Attorney
Ninth Judicial District Court
Parish of Rapides, State of Louisiana
P.O. Box 7358
Alexandria, La 71306-7358
(318) 473-6650
COUNSEL FOR PLAINTIFF/APPELLEE:
State of Louisiana

SAVOIE, Judge.

On June 8, 2022, the State filed a bill of information charging Defendant,

Gregory Harville, Jr., with one count of illegal carrying of weapons during

possession of a controlled dangerous substance (cocaine), a violation of La.R.S.

14:95(E), and one count of possession with the intent to distribute fentanyl, a

violation of La.R.S. 40:967(A)(1). Defendant initially pled not guilty to the

offenses; however, on March 13, 2023, he withdrew his plea of not guilty and

entered a plea of guilty on both counts.

On April 10, 2023, the trial court sentenced Defendant to ten years with the

Department of Corrections without the benefit of probation, parole, or suspension

of sentence and fined Defendant $5,000 for illegal carrying of weapons with drugs.

The trial court also sentenced Defendant to thirty-five years with the Department

of Corrections and fined Defendant $5,000 for possession with the intent to

distribute a Schedule II controlled dangerous substance. The trial court ordered the

sentences to run concurrently.

Defendant now appeals his sentence for possession with intent to distribute

fentanyl, arguing it is unconstitutionally excessive. For the reasons stated below,

Defendant’s sentence is affirmed.

FACTS

The trial court articulated the following facts at the sentencing hearing:

On March 24th, 2022, the defendant was arrested for three
counts of possession with intent to distribute three different controlled
dangerous substances: Cocaine, Methamphetamines and Fentanyl,
along with the charges of illegal carrying of weapons with drugs,
illegal possession of a stolen firearm[,] and a contempt of court.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for

errors patent on the face of the record. After reviewing the record, we find an error

patent involving the sentence imposed for possession with the intent to distribute

fentanyl, and also an error in the minutes of sentencing.

First, the sentence imposed for possession with the intent to distribute

fentanyl is illegally lenient because the trial court failed to impose any portion of

the sentence without benefit of parole as required by La.R.S. 40:967(B)(4)(a).

However, this issue was not raised as an error on appeal, and, therefore, we

conclude that no action should be taken. See State v. Brown, 19-771, (La.

10/14/20), 302 So.3d 1109.

Second, the minutes of sentencing require correction. Although the

transcript of sentencing indicates the trial court imposed a $5,000 fine on both

counts, the minutes indicate a $5,000 fine was imposed for illegal carrying of a

weapon but not for possession with the intent to distribute fentanyl. In the event of

a conflict, the sentencing transcript prevails. State v. Williams, 15-498 (La.App. 3

Cir. 12/9/15), 181 So.3d 857, writ denied, 16-26 (La. 1/13/17), 215 So.3d 242.

Therefore, the trial court is instructed to amend the sentencing minutes to

accurately reflect the sentence imposed by the trial court.

ASSIGNMENT OF ERROR

In his sole assignment of error, Defendant contends the trial court erred in

imposing an excessive sentence without a presentence investigation and based on

hypothetical harms for a drug dealer who took responsibility for his offenses. In

addition, Defendant argues the trial court held him liable for a raid in May, after he

had been in jail for weeks.

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Defendant argues in his appellant brief that the trial court imposed a harsh

sentence upon him based on a “guilt by association” theory. Defendant further

argues that the trial court failed to properly apply the mitigating and aggravating

factors to his case by adding “potential victims” as part of the grounds for

sentencing. Lastly, Defendant asserts that the trial court imposed a near maximum

sentence due to fentanyl abuse. Defendant is only contesting the sentence for

possession with intent to distribute fentanyl.

In opposition, the State asserts that Defendant’s arguments lack merit and

should be denied. It argues that Defendant considered himself a drug dealer and

had prior convictions for drug related offenses. Additionally, the State asserts that

Defendant never requested a presentence investigation prior to sentencing, nor did

he object to the lack thereof at the sentencing hearing.

In reviewing a sentence for excessiveness, an appellate court
uses a two-step process. First, the record must show that the trial court
took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1.
The articulation of the factual basis for a sentence is the goal of La. C.
Cr. P. art. 894.1, not rigid or mechanical compliance with its
provisions. State v. Kelly, 52,731 (La. App. 2 Cir. 6/26/19), 277 So.
3d 855, writ denied, 2019-01845 (La. 6/3/20), 296 So. 3d 1071. The
trial court is not required to list every aggravating or mitigating
circumstance so long as the record reflects that it adequately
considered the guidelines of the article. State v. Smith, 433 So. 2d 688
(La. 1983); State v. Kelly, supra. The important elements which
should be considered are the defendant’s personal history (age, family
ties, marital status, health, employment record), prior criminal record,
seriousness of the offense, and the likelihood of rehabilitation. State v.
Jones, 398 So. 2d 1049 (La. 1981); State v. Thompson, 50,392 (La.
App. 2 Cir. 2/24/16), 189 So. 3d 1139, writ denied, 2016-0535 (La.
3/31/17), 217 So. 3d 358. There is no requirement that specific
matters be given any particular weight at sentencing. State v.
Thompson, supra.

Second, the court must determine whether the sentence is
constitutionally excessive. A sentence violates La. Const. art. I, § 20,
if it is grossly out of proportion to the severity of the crime or nothing
more than a purposeless and needless infliction of pain and suffering.
State v. Dorthey, 623 So. 2d 1276 (La. 1993); State v. Kelly, supra. A

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sentence is considered grossly disproportionate if, when the crime and
punishment are viewed in light of the harm done to society, it shocks
the sense of justice. State v. Weaver, 2001-0467 (La. 1/15/02), 805
So. 2d 166; State v. Kelly, supra.

The trial court has wide discretion in the imposition of
sentences within the statutory limits and such sentences should not be
set aside as excessive in the absence of a manifest abuse of that
discretion. State v. Williams, 2003-3514 (La. 12/13/04), 893 So. 2d 7;
State v. Kelly, supra. A trial judge is in the best position to consider
the aggravating and mitigating circumstances of a particular case, and,
therefore, is given broad discretion in sentencing. State v. Allen,
49,642 (La. App. 2 Cir. 2/26/15), 162 So. 3d 519, writ denied, 2015-
0608 (La. 1/25/16), 184 So. 3d 1289. On review, an appellate court
does not determine whether another sentence may have been more
appropriate, but whether the trial court abused its discretion. State v.
Kelly, supra.

State v. Bell, 53,712, pp. 5-7 (La.App. 2 Cir. 1/13/21), 310 So.3d 307, 311-12.

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.

State v. Soileau, 13-770,13-771, p. 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. “Generally, maximum

sentences are reserved for the most serious violation of the offense and the worst

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type of offender.” State v. Herbert, 12-228, p. 5 (La.App. 3 Cir. 6/13/12), 94 So.3d

916, 920, writ denied, 12-1641 (La. 2/8/13), 108 So.3d 78.

At the sentencing hearing, neither the State, nor the defense, called any

witnesses to testify or otherwise presented arguments to the trial court. Prior to

imposing Defendant’s thirty-five-year sentence, the trial court stated the following:

All sentences must be individualized to be compatible with the
offender, as well as the offense. The Court should review the
defendant’s personal history that being age, family ties, health, along
with any criminal record, the seriousness of the offense, the likelihood
that he will commit another crime, and his potential for rehabilitation
through correctional services. In fashioning a sentence, the Court has
considered three factors: 1) the nature of the crime; 2) the nature of
the background of the offender; and 3) the sentence imposed for
similar crimes by the same Court and other courts. In gathering the
necessary information in order to fashion a sentence to this particular
case, the Court has reviewed the entire record, the evidence adduced
at the trial of the co-defendant, Terri Latrelle Williams, and the
sentencing memos of the State and the defense.

Also, in any sentencing, the Court has to balance the goals of
sentencing, rehabilitation, the protection of public and society, the
victim, and any punishment deterrence. The first consideration is
rehabilitation. Can this defendant be rehabilitated? Does he have
sufficient education, training and life experience to rehabilitate
himself? By law, the maximum sentence is forty years, so he will not
spend the rest of his life in jail. Which sentence provides for the best
chance of success upon release?

The second consideration is society. What sentence today
would serve as a general deterrence for the community as a whole?
Deterrence to society is a strong consideration. The societal issue here
is the escalating epidemic of illegal drug distribution, particularly of a
known drug to have such deadly effects. The sentence today should
have an affect on this problem. We shall -- we have to send some kind
of message that when someone commits this type of crime, this is
what’s going to happen.

The third consideration is the victim. How the crime has
affected the victim even though there is no specific victim, there is an
unlimited potential for anyone coming into contact with these drugs to
have a serious reaction, possible death.

The fourth consideration is punishment. What sentence should
be given to this, to specifically deter the defendant from future

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criminal conduct? How long of a sentence should the defendant serve
as just penalty for the crimes he has committed? He should have to
serve a sentence that would be just for distributing potential deadly
drugs to society.

The sentencing guidelines. Also, the Court has to take into
consideration the sentencing guidelines which are set forth in
Louisiana Code of Criminal Procedure Article, Article 894.1. A)
When the defendant has been convicted of a felony or misdemeanor,
the Court should impose a sentence of imprisonment if any of the
following occurs: 1) There is an undue risk that during the period of a
suspended sentence or probation the defendant would commit another
crime. This is a finding of the Court. Based upon the [ ] defendant’s
actions involving drug dealing, there could be a likelihood that the
defendant would commit more drug crimes if a suspended sentence or
probation. His previous convictions for drug distribution reflect that
he will continue to sell drugs. 2) The defendant is in need of
correctional treatment or a custodial environment that can be provided
most effectively by his commitment to an institution. This is a finding
of the Court. A custodial environment will help the defendant [ ] with
the needed correctional treatment. The defendant’s conduct shows that
he needs correctional treatment in a custodial environment to help him
from committing further crimes, along with providing the public some
protection from him. Custodial correctional treatment may provide the
rehabilitation needed to help the defendant in deterring him from
committing future criminal activity. 3) A lesser sentence will
deprecate the seriousness of the defendant’s crime. This is a finding of
the Court. A light sentence would only reward the defendant and
provide further risk to the public given the possession of deadly drugs
with firearms. Anyone in the community is in danger of either serious
injury or even death by his self-professed drug dealing.

The aggravating factors. This Court has looked at the
aggravating factors contained in Louisiana Code of Criminal
Procedure Article 894.1B and finds the following to be applicable: 1)
The offender’s conduct during the commission of the offense
manifested deliberate cruelty to the victim. Even though there is not a
specific victim, there are possible victims. Anyone who received these
drugs, likely to be drug addicts, buying the drugs found with the
defendant and suffer [sic] a cruel experience or possible death. 2) The
offender knew or should have known that the victim of the offense
was particularly vulnerable or incapable of resistance due to extreme
youth, advanced age, disability or ill health. Drug addicts or anyone
who suffers from drug addiction would be at the whim of these drugs.
3) The offender offered or has been offered or has given or received
anything of value for the commission of the offense. The defendant
was arrested with a large amount of cash on both occasions coming
from the sale of illegal drugs. 5) The offender knowingly created a
risk of death or great bodily harm to more than one person. With the

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supplying of the deadly drug, anyone, particularly any drug addict,
would be at risk of harm or death. 10) The offender used a dangerous
weapon in the commission of the offense. The defendant was arrested
for drugs and guns, a Hi-Point and a Glock. The offender was a leader
or his violation was in concert with one or more other persons with
respect to whom the offender occupied a position of organizer, a [ ]
supervisory position or any other position of management. According
to his testimony at his co-defendant’s trial, the defendant was the
organizer and the leader of their drug sale operation. His own
testimony was that he “took fault for my drugs, and I’m a dealer, man,
and planned on selling them exactly”. 15) The offense was a
controlled dangerous substance offense and the offender obtained
substantial income or resources for ongoing drug activities. The
defendant was selling drugs and receiving money from those sales.
21) Any other relevant aggravating circumstances which include the
public concern over the increasing distribution of illegal drugs that
have the potential for causing death.

Also, the Court has looked at the mitigating factors contained in
Louisiana Code of Criminal Procedure Article 894.1B and finds the
following to be applicable: The mitigating factors: 31) The
imprisonment of the defendant would entail excessive hardship to
himself or his dependents. In 2021, the defendant’s sister died leaving
six children. He took on the responsibility for their care of his six -- of
his sister’s children, along with his own child. 33) Any other relevant
mitigation, mitigating circumstance. His work history, he took
responsibility for [ ] his involvement, he confessed to be the drug
dealer, circumstances involving two deaths in his family.

In the instant case, Defendant pled guilty to the illegal carrying of weapons

during the possession of a controlled dangerous substance, which requires

imprisonment for not less than five years, but not more than ten years, at hard labor

without the benefit of probation, parole, or suspension of sentence and a fine of not

more than $10,000. La.R.S. 14:95(E). Defendant also pled guilty to the possession

of fentanyl with the intent to distribute, which requires imprisonment for not less

than five years, but no more than forty years, at hard labor and a fine of not more

than $50,000. La.R.S. 40:967(B)(4)(a). Pursuant to La.R.S. 40:964, fentanyl is a

schedule II drug. The trial court described fentanyl as a prescription synthetic

opioid that is fifty times more potent than heroin, with only two milligrams needed

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to make the substance lethal. The Centers of Disease Control and Prevention

(CDC) labels fentanyl as the deadliest drug in the country, serving as the cause of

most drug overdoses, with approximately three hundred deaths per day. Defendant

received thirty-five years, almost the maximum, for this offense.

Defendant alleges this sentence is excessive under the circumstances,

considering the trial court failed to order a presentencing investigation,

misinterpreted the sentencing guidelines, and assumed Defendant was a major drug

dealer.

At the time of the offense, Defendant was a thirty-eight-year-old offender

with a criminal history. As the trial court noted, Defendant’s prior offenses started

in December of 2002 and included convictions for possession of marijuana, simple

battery, and monetary instrument abuse. Defendant previously served two

sentences with the Department of Corrections. Aside from his criminal history,

Defendant unfortunately lost his mother and sister, which caused him to become

responsible for his sister’s six children, in addition to his daughter. Defendant

contends he turned to crime as a means to provide for his family.

In considering similar cases, the trial court cited State v. Simien, 22-338

(La.App. 3 Cir. 11/30/22), 354 So.3d 144, writ denied, 22-1847 (La. 6/21/23), 362

So.3d 427, wherein this court affirmed the defendant’s twenty-year sentence for

possession with intent to distribute fentanyl, eight-year sentence for illegal carrying

of weapons, as well as other sentences.

While there are a limited number of cases involving possession of fentanyl,

wherein the trial court imposed a thirty-five-year sentence, we nonetheless

conclude that Defendant’s sentence in this case was not excessive, considering the

amount of fentanyl he possessed and his prior criminal history.

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According to the testimony given at co-defendant Terri Williams’s trial,

Defendant was in possession of over twenty-eight grams of fentanyl and crack

when he was arrested. Defendant also testified to being a drug dealer and his

intent to sell the drugs. Although he claims he is not a big drug dealer and that he

has taken responsibility for his actions, Defendant’s testimony at Terri Williams’s

trial and prior drug-related convictions exhibit otherwise. Moreover, Defendant

could have been charged as a habitual offender due to his recent felony offense of

monetary instrument abuse, which would have increased his sentencing range.

Thus, Defendant received a significant benefit by not being charged as a habitual

offender. As discussed in State v. Wortham, 47,431, p. 5 (La.App. 2 Cir.

11/14/12), 107 So.3d 132, 136:

[w]hen a defendant has received a significant reduction in potential
exposure to confinement through a plea bargain, the trial court has
great discretion in imposing even the maximum sentence possible for
the pled offense. State v. Fatheree, [46,686, p. 6 (La.App. 2 Cir.
11/2/11), 77 So.3d 1047, 1051]; State v. Germany, 42,239 (La.App. 2
Cir. 4/30/08), 981 So.2d 792.

Additionally, Defendant argues that the trial court failed to order a

presentence investigation; however, “[a]s noted by the Louisiana Supreme Court,

the presentence investigation report (or “PSI”) is an aid to the court, not a right of

the defendant[.]” State v. Jones, 11-87, p. 7 (La.App. 5 Cir. 12/13/11), 81 So.3d

835, 840 (citing State v. Bell, 377 So.2d 275 (La.1979)). Therefore, Defendant’s

argument lacks merit.

Based on the information provided, we find that Defendant’s sentence is not

constitutionally excessive. Defendant failed to show how the trial court abused its

sentencing discretion or how his sentence amounted to nothing more than the

purposeful imposition of pain and suffering. Furthermore, as the trial court

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indicated, Defendant has repeatedly committed drug offenses. The trial court

indicated that it reviewed the mitigating facts but focused on Defendant’s ongoing

lifestyle as a drug offender, and it sentenced Defendant in compliance with

applicable sentencing range. Therefore, Defendant’s sentence is affirmed.

DECREE

For the reasons set forth above, Defendant’s sentence is hereby affirmed.

Additionally, we remand this matter to the trial court with instructions to amend

the original sentencing minutes to accurately reflect that the trial court imposed a

$5,000 fine on both counts.

AFFIRMED AND REMANDED WITH INSTRUCTIONS.

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