No. CR82-605 | La. Ct. App. | May 25, 1983
Lead Opinion
On June 7, 1982, defendant Lloyd G. Jones, Jr., pleaded guilty to various drug charges and was sentenced by the trial court.
This appeal (our number CR 82-605) involves methaqualone. It is consolidated with appeal Number CR 82-606 as to the same defendant which involves marijuana. That case is reported in 433 So. 2d 382" court="La. Ct. App." date_filed="1983-05-25" href="https://app.midpage.ai/document/state-v-jones-7526355?utm_source=webapp" opinion_id="7526355">433 So.2d 382 (La.App. 3rd Cir.1983). We discuss both
This appeal is solely concerned with defendant’s claim that the sentences imposed are excessive and that the trial court failed to comply with the sentencing guidelines set forth in LSA-C.Cr.P. 894.1. Through a process of suspending prison terms imposed, levying heavy fines and requiring service of concurrent terms of six months imprisonment in the parish jail as a condition of probation, defendant’s effective penalty for all offenses consists of serving six months in the parish jail, payment of fines totaling $30,000 plus costs of court and forfeiture of a 1972 automobile. The total probation period was ten years. The defendant was given two years to pay his fines. The period of two years given defendant within which to pay his fines is the amount of time requested on behalf of defendant and is, therefore, apparently not a point of complaint. Tr. 126, Record in Number CR 82-605. The maximum to which defendant could have been sentenced was fifty years and six months and fines of $75,000.00. If the State could complain of insufficiency of sentence, we might well regard such a complaint as more meritorious than defendant’s claim for excessiveness.
The only thing unusual about defendant’s sentence is the fact that the trial court chose to levy heavy fines instead of imposing extensive prison terms in state prisons operated by the State Department of Corrections. In imposing the sentences the sentencing judge commented that, because of the defendant’s family connections, defendant’s life would be endangered if he should be required to serve in a prison under the Department of Corrections. The trial judge stated he doubted that the defendant would last a year in such a prison before being killed.
The trial judge was faced with a practical •concern touching on the welfare of the defendant. His disposition appears to have been made out of compassion for the defendant. We think we may reasonably conclude that the trial judge properly performed his discretionary function in the best interests of the defendant. Defendant only complains of the $30,000.00 in fines. He makes no complaint about the length or conditions of his probation. Considering that the only other penalty which defendant has to suffer is his six-month prison sentence, it ill behooves him to complain. Presented with special circumstances we feel that a trial court in its sound discretion is given considerable leeway in adjusting the penalty to be imposed. In this instance, we do not find the imposition of fines totaling $30,000.00 to be excessive. Considering all facts of the sentences together they are not disproportionate to the crime committed.
A special point of argument urged by defendant is that the imposition of $30,-000.00 in fines is disproportionate to fines levied against other defendants in other drug cases prosecuted in the Fourteenth Judicial District Court. Defendant alleges that such fines range from $2,500.00 to $10,-000.00. Defendant further alleges that the same district judge who sentenced him has since meted out fines of $2,500.00 and $1,000.00 to offenders sentenced on charges similar to those to which defendant pleaded guilty.
Sentencing judges are not required to treat codefendants equally. State v. Rogers, 405 So. 2d 829" court="La." date_filed="1981-09-28" href="https://app.midpage.ai/document/state-v-rogers-1753562?utm_source=webapp" opinion_id="1753562">405 So.2d 829 (La.1981) and State v. Quimby, 419 So. 2d 951" court="La." date_filed="1982-09-07" href="https://app.midpage.ai/document/state-v-quimby-1914055?utm_source=webapp" opinion_id="1914055">419 So.2d 951 (La.1982). The same should apply to comparisons of similar offenses.
These arguments made on behalf of defendant focus on the amount of fines only, and defendant’s brief does not discuss these fines together with prison terms which may have been given. We are of the opinion that each case must be considered on its own merits and the sentencing judge should take into account the circumstances of each case. A trial judge has no obligation to impose the same penalty on all drug offenders. On the contrary, the judge has the duty to individualize each sentence by
The record indicates that defendant made five sales involving approximately 2½ pounds of marijuana and 150 tablets of methaqualone to undercover agents working for the sheriff’s department. At the time of this arrest, defendant was discovered to have over a pound of marijuana in the trunk of his car. In sentencing defendant, the trial court noted the severity of defendant’s crimes and the absence of any mitigating factors that would deprecate the seriousness of his offenses. The court found that defendant differed from many others convicted of similar offenses in that he came from a good background and was fairly well educated. The court concluded that the only impetus behind defendant’s criminal activity was his own greed.
In reviewing a claim of excessive sentencing, the trial judge is to be accorded wide discretion in the imposition of sentences within statutory limits. The sentence should not be set aside as excessive in the absence of a manifest abuse of discretion. State v. Abercrumbia, 412 So. 2d 1027" court="La." date_filed="1982-04-05" href="https://app.midpage.ai/document/state-v-abercrumbia-1141344?utm_source=webapp" opinion_id="1141344">412 So.2d 1027 (La.1982). The maximum fines which could have been imposed, as we have noted, totaled $75,000.00.
In view of the remarks made by the sentencing judge concerning his reason for imposing $30,000.00 in fines, together with his other comments, we conclude that he adequately complied with the sentencing guidelines of LSA-C.Cr.P. art. 894.1.
For the foregoing reasons, the sentences complained of are affirmed.
AFFIRMED.
APPENDIX I
The charges to which defendant Lloyd Jones, Jr. pleaded guilty and the sentences imposed are summarized as follows:
1.Two counts of possession of metha-qualone with intent to distribute the drug, a violation of LSA-R.S. 40:967 A(l).
Defendant was sentenced on each of these charges to pay a fine of $7,500.00 plus costs (or to serve two years in prison in default of payment). In addition defendant was sentenced on each count to serve five years in prison under the supervision of the Department of Corrections with the sentences to run consecutively. However, the prison sentences were suspended and defendant was placed on five years of supervised probation; service of six months in the parish prison was imposed as a condition of the probation. The total fines on these two counts amounted to $15,000.00.
2. Three counts of distribution of marijuana, a violation of LSA-R.S. 40:967 A(l) and one count of possession of marijuana, a violation of LSA-R.S. 40:966 D.
On two of the counts of distribution of marijuana the defendant was sentenced to pay fines on each of the counts, $7,500.00 each, or a total of $15,000.00. The additional sentence in each was similar to those imposed for possession of methaqualone and subject to the same six months parish jail sentence. At a later date defendant was sentenced on the third count of distribution of marijuana to the same sentence but without imposition of a fine. See Tr. 13 in Number CR 82-605 and Tr. 14 in Number CR 82-606. These sentences were to run concurrently. On count four, simple possession of marijuana, defendant was sentenced to serve six months in the parish jail concurrently with the conditional six month jail sentences, all of which were to run concurrently.
3. The trial court fixed the date for beginning service of the concurrent six months jail sentences at August 2, 1982, and ordered all fines to be paid on or before July 28, 1984, two years after the first sentences were imposed.
Dissenting Opinion
dissenting.
The majority opinion views the sentence as (1) levying heavy fines in lieu of extensive prison terms, and (2) each defendant must be sentenced “on its own merit” without consideration of sentences imposed for similar crimes by the same court and other
The defendant is 26 years of age; he had never been convicted of a crime; he has served 4 years in the U.S. Marine Corps, 2 of those 4 years were with a fighter squadron in Korea, Okinawa, Japan and the Phil-lipines. He is working his way through college and receives $342 a month under his G.I. Bill. The record discloses favorable recommendation for the defendant by good and law-abiding citizens that depicted him as capable of reforming. The record does not support that he is a hard-core drug dealer, worthy of heavy fines or long prison terms. The trial court, in sentencing the defendant stated:
“THE COURT: Well, we have, as I said, Mr. Jones, received some letters and some information on you. We have some people who feel that you are not a real bad fellow, and that you should be given an opportunity to show, as you have just expressed, that you can be a good citizen. I have a letter here from a Mr. Cole (sic) of the IBEW, who expresses that; and also a letter here from your aunt, Mrs. Reava Chesson, and a letter from Curtis Nelson out at McNeese, and a letter from John Wood, also at McNeese. A letter from a William Bradshaw, an architect here in town. I also note that you were honorably discharged from the marine corps. We have been given all the information which, from ETC, and so on, which I will not rehash and go over. But, apparently these people feel that you’re a good person and worth saving. The .. . of course, you’ve pled guilty here to distribution of a controlled dangerous substances, and that’s bad. And, you know, we have so many people who come before the court who have had very little opportunity in life. They’ve received little education, their environment was bad. They may have been raised in a large family, alot of them had very little to eat and very little of the pleasures that others have enjoyed. You have been denied none of these things. You live in a nice home. You have fine parents. You have an automobile to run around in. You . .. I notice boats in your yard, and you go fishing and you do all of these good things, and you ... yet chose to disobey the law and obviously make a profit at selling controlled drugs. The Legislature has said that when someone commits an offense as you have, that the penalty shall not be more than 10 years with the Louisiana Department of Corrections, and or a fine of not more than $15,000.00 on each count. Of course, you come from a very fine family. I know your father, I think he’s a fine person. He has a very responsible position and job in our community. If I were to send you to the Department of Corrections, Lloyd, I doubt if you would last a year. Because somebody there . .. some person would take it upon themselves to kill you. Sentencing you to the Department of Corrections would be signing your death warrant. Somebody would like to say, well, I killed the son of an aid to a United States Congressman. And, I recognize that.”
La. Const. Art. 1, § 20 prohibits the imposition by law of excessive punishment. A sentence, although within the statutory limit, may be deemed unconstitutionally excessive that is enforceable by this court on appellate review. State v. Sepulvado, 367 So. 2d 762" court="La." date_filed="1979-01-29" href="https://app.midpage.ai/document/state-v-sepulvado-1733248?utm_source=webapp" opinion_id="1733248">367 So.2d 762 (La.1979); State v. Telsee, 425 So. 2d 1251" court="La." date_filed="1983-01-10" href="https://app.midpage.ai/document/state-v-telsee-1615975?utm_source=webapp" opinion_id="1615975">425 So.2d 1251 (La.1983). Our Supreme Court has determined that a sentence constitutes excessive punishment if it (1) makes no measurable contribution to acceptable goals of punishment and hence is nothing more than the purposeless and needless imposition of pain and suffering; or (2) is grossly out of proportion to the severity of the crime. Telsee, supra; State v. Bourgeois, 406 So. 2d 550" court="La." date_filed="1981-11-16" href="https://app.midpage.ai/document/state-v-bourgeois-1092550?utm_source=webapp" opinion_id="1092550">406 So.2d 550 (La.1981); State v. Bonanno, 384 So. 2d 355" court="La." date_filed="1980-05-19" href="https://app.midpage.ai/document/state-v-bonanno-1680466?utm_source=webapp" opinion_id="1680466">384 So.2d 355 (La.1980).
The defendant’s car was forfeited and he was sentenced to serve 10 years at hard labor with the Louisiana Department of Corrections, which was suspended and he was placed on 10 years supervisory probation conditioned upon him serving 6 months in the Parish Jail. He was further sentenced to pay a $30,000 fine within 2 years and in default thereof, he was to serve 2
A study of the trial court’s fines previous to that imposed on the defendant reflect that the largest fine imposed for drug offenses was $10,000. The majority opinion disregards this discrepency of fines, citing State v. Quimby, 419 So. 2d 951" court="La." date_filed="1982-09-07" href="https://app.midpage.ai/document/state-v-quimby-1914055?utm_source=webapp" opinion_id="1914055">419 So.2d 951 (La.1982). However, Quimby, supra, states:
“This does not mean that disparity in sentences of co-defendants with similar backgrounds, charged with similar participation in identical crimes may not be considered as a factor in determining whether a sentence is excessive and out of proportion to the severity of a crime. It is only a factor to be considered along with all other appropriate considerations when there is no reasonable basis in the record for the disparity. State v. Sims, 410 So. 2d 1082" court="La." date_filed="1982-03-01" href="https://app.midpage.ai/document/state-v-sims-1115568?utm_source=webapp" opinion_id="1115568">410 So.2d 1082 (La.1982). (Emphasis added)
A fine of $7,500 for possession with intent to distribute preludin was held to be excessive by our Supreme Court in State v. Forshee, 395 So. 2d 742" court="La." date_filed="1981-03-02" href="https://app.midpage.ai/document/state-v-forshee-1720054?utm_source=webapp" opinion_id="1720054">395 So.2d 742 (1981).
Accordingly, I find the fine unconstitutionally disproportionate and excessive, and would remand the case to the trial court for resentencing, consistent with the views expressed herein.
For these reasons, I respectfully dissent.