365 So. 2d 1339 | La. | 1978
Lead Opinion
Lee Underwood was convicted after a jury trial of three counts of distribution of marijuana and sentenced to terms of imprisonment of seven, eight and ten years, respectively, the terms to run consecutively. On appeal we affirm the defendant’s convictions but vacated the sentences and remanded for re-sentencing because information brought to light at the time of an earlier limited remand
In connection with Underwood’s original appeal it was noted that the three instances of distribution took place within a two month time period and that the sale in each case was to the same undercover officer, Weems. The first sale was of ten lids of marijuana (less than one pound), the second involved twenty lids and the third, which culminated in Underwood’s arrest, was of fifty-three pounds. After the arrest, as a result of the execution of a search warrant, three large cellophane bags of marijuana were seized from Underwood’s residence.
In setting forth reasons for the sentences imposed in the instant case, the trial judge unequivocally stated that he did not use the prejudicial pre-sentence report originally prepared by the division of probation and parole which contained the offending data highlighted in our original opinion.
Defendant relies heavily upon the observations made by this Court in its earlier opinion that on their face the consecutive sentences totalling twenty-five years appear excessive, absent some further explanation not found in the record. The original opinion set forth the view that in the case of a defendant with a settled family and no previous record who made three sales to the same agent over a short time span, consecutive sentences totalling twenty-five years are excessive. The Court reported that concurrent sentences are the usual rule in the case of a defendant without a previous record, absent a showing that the public safety requires a longer sentence, and noted that except in the case of a defendant with a previous record, concurrent sentences should normally not exceed the maximum for the most serious offense tried. National studies were said to indicate a usual range of sentence for a nondangerous first offender as not exceeding from five to ten years as a maximum, absent exceptional circumstances such as extended criminal activity which had not theretofore led to conviction.
The state in brief notes the proscription set forth in Article 878 of the Code of Criminal Procedure
A majority of the Court has indicated its agreement that Article I, § 20 of the Louisiana Constitution of 1974 renders the issue of excessiveness of individual sentences a subject of appellate review. In State v. Segers, 355 So.2d 238 (La.1978), without addressing the issue of the scope of appellate review of sentences in light of that constitutional provision, the Court affirmed the sentences imposed, a majority agreeing that they were not excessive. Three judges merely concurred in Segers, two for the articulated reasons that the Court could not properly review the excessiveness of the sentences imposed. But see State v. Walker, 328 So.2d 87, 89 (La.1976), in which the judges who lately in Segers and other cases
When we originally considered Underwood’s appeal we did not have before us the testimony of the undercover officer, Weems, upon which the trial judge relied so heavily in determining the sentences he imposed. Weems’ unrebutted testimony recounted that when the officer first approached the defendant at his home, telling a story accepted by defendant that a man he met in jail had sent him to deliver $42.00 owed Underwood for marijuana, Underwood responded to a complaint by Weems that he was unable to obtain work by inquiring whether Weems was interested in purchasing quantities of marijuana from him at $7.00 per package for re-sale at a profit. To assuage Weems’ feigned apprehensions about detection in the event he would undertake marijuana sales, Underwood assured that there was no cause to “. . . worry about the heat around here” because “[t]hey can only get the little guys and not the big guys.” On the occasion of their first meeting Underwood sold Weems ten packages of marijuana, which he retrieved from a shed beside his home, accepting $60.00 in payment and “fronting” Weems the additional ten dollars. Underwood explained to the officer at this time that he normally sold marijuana in bundles of thirty packages each (totalling one pound) for the price of $210.00, but agreed to break down a bundle for Weems. He represented to Weems that he could supply any amount of marijuana desired because he grew his own, and stated that he could establish Weems as a seller in one of several surrounding areas.
A month later Weems again contacted Underwood, relating that he had visited friends in Little Rock, Arkansas during a recent visit to that city who expressed an interest in buying marijuana in 75 to 100 pound quantities. Weems recounted that Underwood told him a week’s notice would be required before he could supply such amounts and it was agreed that there would be further contact regarding this tentative arrangement. At this second meeting Underwood inquired whether Weems wished to purchase more marijuana and the two men agreed to a transaction involving twenty packages, sold for a total of $140.00. Underwood secured the marijuana from the bed of his pick-up truck an hour later when Weems returned to Underwood’s residence to receive the substance, as instructed.
Approximately two weeks after the second transaction undercover officer Weems notified the defendant that his friends in Little Rock desired to purchase 100 pounds of marijuana. Underwood and Weems met at a shopping center to discuss the possibility of such a sale and Underwood confessed that he could only supply 53 pounds because of the time of year. The
Law enforcement officials involved in efforts to apprehend drug offenders arranged to land an airplane at an appointed airfield and Weems pretended to meet the buyers and receive from them money and containers in which to place the marijuana to be purchased. While going through the motions of this pretended receipt of money Weems noted a vehicle identical to one he had before observed at Underwood’s home drive by the airport area several times, as if conducting a surveillance of the scene. Weems contacted Underwood by telephone, then proceeded to the church lot where he had agreed to meet Underwood and soon thereafter the defendant arrived. Before actually approaching Weems, Underwood remained parked across the street from Weems’ vehicle and cautiously observed the area for a period of time. When the two men met, Underwood proposed that they proceed to another unspecified location in the area to consummate the sale. When Weems refused to accompany Underwood, the defendant then used his citizens band radio to call and order delivery of the marijuana to the church lot. The delivery vehicle, the same one observed by Weems driving around the airport area earlier in the evening, soon arrived and a young girl exited along with the man who was driving.
Underwood retrieved bags unloaded from the bed of the delivery vehicle and placed them in Weems’ car. After Weems opened the bags to assure that they contained marijuana, he announced his identity and advised Underwood that he was under arrest. Underwood dived to the ground after hearing Weems’ announcement but made no effort to use the gun that was there.
From Weems’ uncontradicted account of his dealings and conversations with Underwood the trial judge concluded that Underwood was a substantial supplier of an illegal drug. In support of this conclusion, the trial judge pointed to the testimony relating defendant’s urging of Weems’ purchases, intended for re-sale, on three separate occasions and the precautions he took in preparing for the large, final sale. From defendant’s assertions to Weems the trial judge inferred that Underwood had some kind of profit-seeking organization which employed assistants whom Underwood continually sought, that he was a grower and supplier who was totally familiar with street prices and disdainful of police efforts against distributors of his stature.
Our review of the testimony of Officer Weems establishes that the conclusions of fact and inferences of the trial judge were adequately supported by the record. Based on the facts found, we cannot say that the imposition of four, six and ten year terms of imprisonment to be served consecutively was an abuse of the trial judge’s discretion in determining the appropriate sentences available from the statutory range of sentences.
The trial judge painstakingly outlined his consideration of the sentencing guidelines set forth in Article 894.1 of the Code of Criminal Procedure,
We do not necessarily agree with the trial judge that Underwood’s claimed lack of awareness of the seriousness of the crimes and the penalties indicates that there exists an undue risk» that leniency would lead to the commission of other crimes. However, we are in agreement with the trial judge’s assessment of the other factors considered in connection with application of the sentencing guidelines of Article 894.1 to the extent that we cannot say that the sen
Dec "ee
For the reasons stated hereinabove, we affirm the sentences imposed.
SENTENCES AFFIRMED.
. After the appeal was ordered by the trial court, but before the record was lodged in this Court, Underwood sought a limited remand, alleging that the exceptionally heavy sentence imposed on him under the circumstances indicated that it was based on prejudicial and inaccurate information in a pre-sentence report. Request for inspection was denied by the trial judge, notwithstanding the judge expressed he had no objection to inspection, on the basis that the report compiled in this case had been returned to the parole and probation department. We granted a remand for consideration by the trial judge of Underwood’s request for pre-sentence report data. 345 So.2d 904 (La. 1977).
. The portion of the report which prompted complaints set forth the following:
“According to information received from the Narcotic Strike Force, the offender was probably the largest distributor of marijuana that they have apprehended in this area. He was*1341 bringing it in large quantities, and at times using at least one of his employees that worked for him in his construction business to make deliveries for him.”
. C.Cr.P. art. 878 provides:
“A sentence shall not be set aside on the ground that it inflicts cruel or unusual punishment unless the statute under which it is imposed is found unconstitutional.”
. See e. g., State v. Gambino, 362 So.2d 1107 (La.1978).
. The controversy which exists is well expressed in State v. Progue, 350 So.2d 1181 (La. 1977) in the following language:
“La.Const. art. 1, § 20 provides in pertinent part:
. No law shall subject any person to euthanasia, to torture, or to cruel, excessive, or unusual punishment . . . (Emphasis added.)
Some members of this court, including the author of this opinion, are of the view that this constitutional provision only gives to this court the judicial power to declare as unconstitutional laws which provide for excessive sentences rather than extending the judicial power to appellate review of sentences imposed in individual cases. Other members of the court interpret the provision as conferring upon this court constitutional authority to review sentences imposed in individual cases.”
. R.S. 40:966 provides the penalty for distribution of marijuana. It stated, in pertinent part:
“Any person who violates Subsection A [prohibiting distribution] with respect to:
Any other controlled dangerous substance classified in Schedule I [including marijuana] shall, upon conviction be sentenced to a term of imprisonment at hard labor for not more than, ten years and pay a fine of not more than fifteen thousand dollars.”
. Article 894.1 of the Code of Criminal Procedure provides in full as follows:
“A. When a defendant has been convicted of a felony or misdemeanor, the court should impose a sentence of imprisonment if:
*1344 (1) There is an undue risk that during the period of a suspended sentence or probation the defendant will commit another crime;
(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; or
(3) A lesser sentence will deprecate the seriousness of the defendant’s crime.
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:
(1) The defendant’s criminal conduct neither caused nor threatened serious harm;
(2) The defendant did not contemplate that his criminal conduct would cause or threaten serious harm;
(3) The defendant acted under strong provocation;
(4) There was substantial grounds tending to excuse or justify the defendant’s criminal conduct, though failing to establish a defense;
(5) The victim of the defendant’s criminal conduct induced or facilitated its commission;
(6) The defendant has compensated or will compensate the victim of his criminal conduct for the damage or injury that he sustained;
(7) The defendant has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the instant crime;
(8) The defendant’s criminal conduct was the result of circumstances unlikely to recur;
(9) The character and attitudes of the defendant indicate that he is unlikely to commit another crime;
(10) The defendant is particularly likely to respond affirmatively to probationary treatment; and
(11) The imprisonment of the defendant would entail excessive hardship to himself or his dependents.
C. The court shall state for the record the considerations taken into account and the factual basis therefor in imposing sentence.”
Dissenting Opinion
dissenting.
The majority makes a strong case for the maximum ten-year sentence on the most serious of the three marijuana-distribution counts. Also, if the evidence indicated that the defendant had been engaged in marijuana distribution over an extended period of time (rather than just for a few months), without having been caught before, the consecutive sentences of an additional ten years might be justified.
However, the consecutive additional sentences were imposed for minor transactions arising out of the course of criminal conduct for which the maximum ten-year sentence was appropriate. The defendant is a previously law-abiding citizen, albeit in the few months prior to his arrest engaging in marijuana-distribution of a substantial nature.
Therefore, under the sentencing principles noted in our original opinion, 353 So.2d 1013 (La.1978), concurrent instead of consecutive sentences should have been imposed, since the conduct arose out of the same contained (non-extended) course of conduct. The ten-year maximum penalty for distribution of marijuana legislatively contemplated that this substantial penalty was appropriate for this course of conduct — the legislature could not have intended, for instance, one hundred years of imprisonment for a person who sold ten marijuana cigarettes to the same or different persons on the single day of his life in which he violated the law.
One of the strongest reasons advanced for permitting joinder of separate offenses for trial in a single proceeding is to facilitate the imposition of concurrent rather than consecutive sentences for what, in effect, is a single course of conduct. Commentary, Standard 1.1, ABA Standards of Criminal Justice Relating to Severance and Joinder (1968). This purpose is thwarted, when consecutive sentences are imposed merely because several counts of the same course of conduct have been joined for trial in a single proceeding. Prior to permission of such joinder by recent legislation, in all probability the state, satisfied with its conviction and maximum sentence on one charge, would not have for a first offender also prosecuted him and secured additional sentences on the other minor charges here joined for trial.
I therefore respectfully dissent from the consecutive sentences as excessive. La. Const, of 1974, Art. 1, Section 20.