State v. LoftonState v. Lofton
The defendant, Elbert Joe Lofton, appeals as excessive his sentence to twelve years at hard labor for the offense of distribution of marijuana. For the following reasons, we vacate the sentence and remand for resentencing.
FACTS
On October 15, 1992, the defendant sold three marijuana cigarettes for six dollars to an agent working with the Webster Parish Sheriff‘s Department. He was charged by bill of information with one count of distribution of marijuana and one count of distribution of a substance falsely represented to be marijuana, arising from a separate incident on Novеmber 2, 1992.1
On October 15, 1993, the defendant entered a plea of guilty to the charge of distribution of marijuana. In exchange for the plea, the prosecution dismissed thе charge of distribution of a substance falsely represented to be marijuana.
At the guilty plea hearing, the trial court stated that the defendant would be allowed to remain free on bond pending sentencing. However, bail conditions were imposed upon the defendant. The defendant was ordered to refrain from drinking alсohol, using illegal drugs, going to bars, and carrying a weapon. Further, the appellant was ordered to receive substance abuse counseling, perform cоmmunity service work one day a week, and report for drug-screening within 72 hours of entry of the guilty plea. The court stated that its decision regarding the defendant‘s sentence would be based largely upon compliance with these conditions.2
The defendant appeared for sentence on March 14, 1994. He admitted that during the fivе months which passed between his guilty plea and sentencing, he had failed to attend substance abuse counseling or perform any community service work as ordеred by the court. Further, the defendant had trace amounts of marijuana in his system when tested shortly after the entry of the guilty plea.3
The defendant‘s presentence invеstigation report showed that he had two prior felony convictions for simple burglary. He received probated sentences in each case. On onе conviction, probation was successfully completed. On the other conviction, probation was revoked. The defendant had also been conviсted of criminal damage to property, a misdemeanor.
The presentence investigation determined that, under the Louisiana Sentencing Guidelines, the aрpropriate grid cell was 4B, which carries a recommended sentence of 66 to 84 months (5 to 7 years). However, due to the defendant‘s failure to abide by onе of the “bail conditions,” the trial court departed from the Guidelines grid and sentenced the defendant to serve 12 years at hard labor, with credit for time served.
The defendant filed a motion to reconsider his sentence which was denied by the trial court on May 20, 1994. The defendant then appealed, arguing that the sentence imрosed was excessive.
DISCUSSION
The defendant argues that the reasons given by the trial court in departing from the Louisiana Sentencing Guidelines grid were insufficient and that the sentence imposed is excessive. After examining the record, we find that the trial court failed to properly consider the guidelines in pronouncing sentence in this case and therefore, the sentence is vacated.
In State v. Smith, 93-0402 (La. 07/05/94), 639 So.2d 237, the Louisiana Supreme Court held that the Louisiana Sentencing Guidelines are advisory to the sentеncing judge.
While the trial court must consider the sentencing guidelines, it may depart at its discretion within the statutory sentencing range and within the confines of a constitutionally acceptable sentence. State v. Smith, supra. If the court has considered the guidelines, the appellate court is limited in its inquiry to questions of constitutional excessiveness. State v. Smith, supra.
The court is deеmed to have considered the guidelines if the record reflects that the trial court examined the guidelines, found the appropriate grid cell for a “typiсal case,” looked for aggravating and mitigating factors to determine whether it could depart therefrom, and, if so, sentenced according to La.S.G. § 209. State v. Brown, supra; State v. Smith, 26,762-KA, (La.Aрp. 2d Cir. January 25, 1995), 649 So.2d 145.
However, as stated in State v. Brown, supra, when there are no aggravating or mitigating factors present in the case, and when the sentencing judge feels strongly that a sentence within the designаted sentence range of the guidelines grid will not do justice in the case, he may pronounce a sentence that is not in conformity with the guidelines, giving, of course, his reasons for the sentence, including the factual basis therefore.
The court in State v. Brown, supra, stated that the record in that case failed to reflect that the sentencing judge properly considered the guidelines, although he mentioned them. In Brown, the trial court merely consulted the guidelines grid and failed to consider the remainder of the guidelines.
In this case, as in State v. Brown, supra, the record indicates that the trial court merely considered the guidelines grid rather than making its own review and consideration of the appropriate portions of thе body of the sentencing guidelines in light of the facts of the present case.
The record in the present case shows that the trial court mentioned the sentencing grid computed in the presentence investigation, but did nothing more. This does not constitute consideration of the guidelines as contemplated by State v. Smith, supra, and State v. Brown, supra. Further, the sentencing court failed to demonstrate that this is not a “typical” case, warranting a severe sentence.4 The defendant‘s performance of the bail conditions is not specifically outlined as an aggravating circumstance under La. S.G. § 209(B). Further, at this juncture, we are not persuaded that the violation of the “bail conditions” (inasmuch as the defendant partially complied with them and appeared in court when ordered) justified the sentence imposed in this case. Therefore, bеcause the record reflects that the sentencing court failed to properly consider the guidelines in pronouncing sentence in this case, the sentеnce imposed is vacated and the case is remanded for resentencing in accordance with the instructions expressed in this opinion.
ERROR PATENT
Review of the rеcord for error patent is made automatically in all criminal cases.
CONCLUSION
For the reasons stated above, the defendant‘s sentence is vacated and the case is remanded for resеntencing.
SENTENCE VACATED; REMANDED FOR RESENTENCING.