State v. MaloneState v. Malone
The defendant, Odell Malone III, entered a guilty plea to one сount of possession of cocaine with intent to distribute. He was sentenced to serve fifteen years at hard labor without benefit of parolе, probation, or suspension of sentence. The defendant now appeals his sentence as excessive. We affirm the conviction, аmend the sentence, and affirm the sentence as amended.
FACTS
On December 19, 1997, the Mansfield Police Department received information that а man, holding a baby, was selling crack cocaine in a parking lot on Johnson Street. Upon investigation, the defendant was observed at the scеne, holding an infant wrapped in a blanket. When the blanket was removed, a plastic bag was found on the baby, containing 26 grams of a substance later determined through laboratory analysis to be crack cocaine.
The defendant was arrested and charged with one count of possession of cocaine with intent to distribute. It was also determined that the defendant had two prior felony convictions. A plea bargain agreement was reached whereby the defendant entered a plea of guilty to the charge of possession of cocaine with intent to distribute in exchange for the prosecution‘s agreement not to charge him under the habitual offender law. A presentence investigation (PSI) was conductеd, and sentence was imposed on July 9, 1998. The defendant timely filed a motion to reconsider the sentence. The defendant now appeals his sentence as excessive.
EXCESSIVE SENTENCE
In reviewing claims of excessive sentence, an appellate court uses a two-step process. First, thе record must show adequate consideration of the criteria set forth in
A trial court has wide discretion to sentence within the statutory limits. Absent a showing of manifest abuse of discretion, this court does not set aside a sentence as excessive. State v. Square, 433 So.2d 104 (La.1983); State v. Washington, 29,478 (La. App.2d Cir.4/2/97), 691 So.2d 345.
A plea bargain which brings about substantial benefits to a defendant is a legitimate consideration in sentencing. State v. Strange, 28,466 (La.App.2d Cir.6/26/96), 677 So.2d 587.
Defendant concedes in brief that the trial court sufficiently articulated a factual basis for the sentence imposed, but he argues that the court placed too little emphasis on mitigating factors and gave undue weight to the aggravating factor that defendаnt used an infant to conceal his cocaine.
Prior to imposing sentence, the district judge reviewed a PSI report. The 30-year-old defendant was a third felony offender with prior convictions for simple burglary and possession of a firearm by a convicted felon. His parole had been rеvoked in 1995 and 1996. He was ineligible for probation due to his third offender status. The court believed defendant received a “tremendous benefit” from his plеa bargain. The court noted that defendant‘s criminal history dated back to 1986, including convictions for shoplifting, simple battery and resisting an officer, in addition to his felony convictions for simple burglary and possession of a firearm by a convicted felon. While on parole, the defendant went to Texas and was charged with residential burglary, disorderly conduct, assault and illegal possession of a pistol. The court noted that defendant had hidden his drugs on an infant, which the court believed was an aggravating factor under
On this record, we do not find constitutional error. There is no requirement that specific matters be given any particular weight. State v. Berry, 29,945 (La. App.2d Cir.10/29/97), 702 So.2d 33; State v. Callahan, 29,351 (La.App.2d Cir.2/26/97), 690 So.2d 864, writ denied 97-0705 (La.9/26/97), 701 So.2d 979. The record shows that the PSI contains information on the matters the defense contends were given insufficient weight by the court. Further, it is well settled that the trial judge is not required to list every aggravating or mitigating circumstance so long as the record shows he adequately considered the guidelines of the article. We find no error in that regard.
As a third felony offender, defendant would have faced a sentencing exposure of up to 60 years at hard labor. The sentence imposed is а mere quarter of that and is at the middle of the range (five to thirty years) to which he was exposed as a direct consequence of his guilty pleа.
Although the defense cited a number of cases in which lesser sentences were imposed, we note that the facts and circumstances of thоse cases were not the same as are present in this matter. Further, each decision was rendered prior to the 1997 amendment to
Under the circumstances of this case, and giving due consideration to the defendant‘s background, the period of imprisonment adjudged is appropriate for this mature, healthy third felony offender who presents no special matters which would mandate the imposition of a lesser sentence. The sеntence imposed does not shock our sense of justice and is not a needless or purposeless infliction of pain and suffering. Therefore, it is not constitutionally excessive. The assigned error lacks merit.
ERROR PATENT
Our error patent review under
CONCLUSION
For the reasons stated above, we affirm the conviction of the defendant, Odell Malone III, and we affirm his sentence to serve fifteen years at hard labor. We amend his sentence to provide that the first five years of the sentence are to be served without benefit of parole, probation, or suspension of sentence.
AFFIRMED AS AMENDED.
Notes
B. The following grounds, while not controlling the discretion of the court, shall be accorded weight in its determination of suspension of sentence or probation:
(16) The offense was a controlled dangerous substance offense in which the offender involved juveniles in the trafficking or distribution of drugs.