STATE OF LOUISIANA
COURT OF APPEAL l
FIRST CIRCUIT
2020 KA 0981
VERSUS
ANTHONY JOSEPH CHANEY
Judgment Rendered: JUN 0 4 2021
Appealed from the 22nd Judicial District Court
In and for the Parish of St. Tammany State of Louisiana Case No. 0239 F 2019
The Honorable Raymond S. Childress, Judge Presiding
Warren L. Montgomery Counsel for Appellee Matthew Caplan State of Louisiana
District Attorney J. Bryant Clark, Jr.
Assistant District Attorney Covington, LA
Sherry Watters Counsel for Defendant/ Appellant New Orleans, LA Anthony Joseph Chaney
BEFORE: GUIDRY, McCLENDON, AND LANIER, JJ. LANIER, J.
The defendant, Anthony Joseph Chaney, was charged by bill of information
with two counts of distribution of heroin, violations of La. R.S. 40: 966( A). He
pled not guilty and, following a jury trial, was found guilty as charged on both
counts. On each count, the defendant was sentenced to twenty years imprisonment
at hard labor. The State filed a habitual offender bill of information. Following a
hearing on the matter, the defendant was adjudicated a fourth -felony habitual
offender. His twenty-year sentences were vacated, and the defendant was
resentenced, on each count, to forty- five years imprisonment. The sentences were
ordered to run concurrently. The defendant moved for reconsideration of his
sentences, which was denied. The defendant now appeals, designating two
assignments of error. We affirm the convictions and habitual offender
adjudication. We amend the sentences to provide that they be served at hard labor
and affirm as amended.
FACTS
Based on information that the defendant was selling heroin in the Slidell
area, Louisiana State Trooper Dennis Indest, in an undercover capacity, arranged
to purchase heroin from the defendant. On August 15, 2017 and on August 17,
2017, Trooper Indest met with the defendant in Slidell. On each of these dates, the
defendant got into Trooper Indest' s vehicle, which was equipped with audio and
video recording equipment, and sold the trooper heroin. During the first
transaction, the defendant sold Trooper Indest . 42 grams of heroin. During the
second transaction, the defendant sold Trooper Indest . 299 grams of heroin.
The defendant did not testify at trial.
2 ASSIGNMENT OF ERROR NO. 1
In his first assignment of error, the defendant argues the State failed to prove
he was a fourth -felony habitual offender. Specifically, the defendant contends that
one of his predicate convictions was a misdemeanor, rather than a felony. As such,
according to the defendant, the five-year " cleansing period" means he was not
proven to be a felony habitual offender.
At the habitual offender hearing, the State proved the defendant had been
convicted of and sentenced for the following predicate offenses -- possession of
marijuana, second offense, committed in 2013; attempted disarming of a peace
officer, committed in 2011; and simple burglary, committed in 2009. Accordingly,
the trial court adjudicated the defendant a fourth -felony habitual offender.
The Habitual Offender Law requires that predicate offenses be felonies. See
La. R. S. 15: 529. 1( A). When the defendant was convicted of possession of
marijuana, second offense, in 2013, the offense was a felony. See La. R.S.
40: 966( E)( 2)( a)' ( prior to amendment by 2015 La. Acts, No. 295, § 1). At present,
and at the time of the sentencing of the defendant, the offense of possession of
marijuana, second offense, is a misdemeanor, rather than a felony. See La. R.S.
40: 966( C)( 2)( d). 2 The defendant argues in brief that, because of the recent
amendment to possession of marijuana, second offense, this predicate conviction is
not a felony and, as such, he was not proven to be a fourth -felony habitual
offender. According to the defendant, his 2013 possession of marijuana, second
offense, conviction cannot be considered for enhanced sentencing as a habitual
1 In 2013 and prior to the 2015 amendment, possession of marijuana, second offense was punishable by a fine of not less than $ 250, nor more than $ 2, 000, and imprisonment with or without hard labor for not more than five years, or both. See State v. Lewis, 48, 023 ( La. App. 2 Cir. 5/ 15/ 13), 115 So. 3d 721, 722.
2 This provision provides: " On a second conviction the offender shall be fined not more than one thousand dollars, imprisoned in the parish jail for not more than six months, or both." A felony is any crime for which an offender may be sentenced to death or imprisonment at hard labor. See La. R. S. 14: 2( 4).
3 offender because in 2017, when the instant crimes were committed, possession of
marijuana, second offense, was a misdemeanor.
We note initially that the defendant failed to preserve this issue for appellate
review. The defendant did not file a motion to quash the habitual offender bill of
information prior to his habitual offender hearing. Further, defense counsel did not
lodge any objection to the trial court' s finding that possession of marijuana, second
offense, was a felony at the time it was committed and, as such, could be used in
the defendant' s adjudication as a habitual offender. Any challenge to a previous
conviction which is not made before sentence is imposed may not thereafter be
raised to attack the sentence. La. R.S. 15: 529. 1( D)( 1)( b). See State v. Hall, 94-
3147 ( La. 6/ 2/ 95), 654 So. 2d 1085 ( per curiam) ( observing that defendant
remained bound by his failure to raise his present complaint at the time he was
adjudicated a multiple offender); State v. Dahlem, 2013- 0577 ( La. App. 1st Cir.
6/ 18/ 14), 148 So. 3d 591, 599, affd, 2014- 1555 ( La. 3/ 15/ 16), 197 So. 3d 676.
Accordingly, the defendant did not properly preserve for appellate review the
argument raised herein regarding the habitual offender adjudication. See La. Code
Crim. P. art. 841( A); State v. Cockerham, 2017- 0535 ( La. App. 1st Cir. 9/ 21/ 17),
231 So. 3d 698, 707- 08, writ denied, 2017- 1802 ( La. 6/ 15/ 18), 245 So. 3d 1035.
The failure of the defendant to preserve this issue notwithstanding, we do
not find that the trial court erred in adjudicating the defendant a fourth -felony
offender. The defendant was convicted of possession of marijuana, second
offense, in 2013. ( State' s Exhibit 3, bill of information). The amendment of the
offense of possession of marijuana, second offense, from a felony to a
misdemeanor, became effective June 29, 2015. See 2015 La. Acts, No. 295, § 1.
The defendant committed the instant offenses of distribution of heroin on August
15 and August 17 of 2017. He was convicted and sentenced in 2019. He was
resentenced as a fourth -felony habitual offender in 2020. 4 According to the defendant, the 2017 amendments to La. R.S. 40: 966
wherein some drug offenses were made more ameliorative) were meant to reflect
that possession of marijuana, second offense, was worthy of only a misdemeanor
classification and punishment, rather than the type of crime that could be used to
enhance a habitual offender sentence. The defendant points out that possession of
marijuana, second offense, was not a felony when he committed the instant
offenses ( distribution of heroin). He concludes, therefore, that since his possession
of marijuana conviction, second offense, was a misdemeanor at the time of the
instant offenses in 2017, this " misdemeanor" prior conviction cannot be used to
enhance his sentence as a habitual offender. We do not agree.
A defendant must be sentenced according to the sentencing provisions in
effect at the time of the commission of the offense. See State v. Sugasti, 2001-
3407 ( La. 6/ 21/ 02), 820 So. 2d 518, 520; State v. Paciera, 290 So. 2d 681, 687 ( La.
1974); State v. Dreaux, 205 La. 387, 396, 17 So. 2d 559, 562 ( 1944). The general
rule applies even when the changes in sentence are ameliorative in nature.
Although the trial judge should consider the ameliorative changes in the law in
imposing sentence, the trial judge should not derogate from the penalty provision
in effect at the time of the commission of the offense. Sugasti, 820 So. 2d at 521.
In support of his position, the defendant cites in brief to State v. Ross, 2015-
1113 ( La. App. 4th Cir. 12/ 21/ 16), 207 So. 3d 511, 520- 22, writs denied, 2017-
0118, 0394, 0537 ( La. 9/ 22/ 17), 277 So. 3d 823, 826, 827, wherein all of the
defendant' s felonies, instant and prior, were non- violent crimes of simple
possession. Despite being sentenced to twenty- year minimum concurrent
sentences as a fourth -felony habitual offender, the fourth circuit found the trial
court erred in failing to apply State v. Dorthey, 623 So.2d 1276 ( La. 1998) to
deviate below the mandatory minimum sentence. In supplying several reasons
s why the defendant was exceptional, a majority of the fourth circuit panel in Ross,
207 So. 3d at 522, subscribed to the following dicta:
Although we are cognizant that the law at the time of the offense generally applies at sentencing, courts should also consider the expression of legislative will at the time the new law was passed. Here, although the 2015 amendments were made neither explicitly retroactive nor prospective, it is clear that the legislature currently
believes that a conviction for possession of marijuana, second offense, does not rise to the level of a felony. Implicitly, the legislature also believes such a conviction should not be used to enhance a sentence under the Habitual Offender Law. [ Citations and footnote omitted.]
Dissenting in part in the Ross decision, 207 So. 3d at 525 n.4, Judge Lobrano
pointed out in a footnote:
In 2015, the Louisiana legislature enacted significant
amendments to the Uniform Controlled Dangerous Substances Law with respect to sentences for possession of marijuana. See 2015 La. Acts 295 ( eff. June 29, 2015). Pertinent to Mr. Ross' case is the amendment which reduced possession of marijuana, second offense,
from a felony, punishable by up to five years imprisonment, to a misdemeanor, punishable by a maximum six months imprisonment in parish jail. See La. R.S. 40: 966 E( 1)( b). But because the offense for possession of marijuana, second offense, occurred before this
amendment became effective, it is still considered a felony. See State v. Sugasti, 01- 3407, p. 4 ( La. 6/ 21/ 02), 820 So. 2d 518, 520 (" This
court has consistently held that the law in effect at the time of the commission of the offense is determinative of the penalty which the convicted accused must suffer.").
We disagree with the assertion of the Ross panel majority that "[ i] mplicitly,
the legislature also believes such a conviction [ of possession of marijuana, second
offense] should not be used to enhance a sentence under the Habitual Offender
Law." Id. at 522. We find nothing, implicitly or explicitly, in the amendments to
possession of marijuana, second offense, which suggests that an offense that was a
felony at the time of the commission, but is later amended to a misdemeanor, can
no longer be used as a predicate felony sentence enhancement under the Habitual
Offender Law.
In State v. Blackwell, 377 So.2d 110, 112- 13 ( La. 1979), the defendant
argued the trial court erred in adjudging him a third felony offender because, while
Z possession of marijuana constituted a felony when he committed that offense in
1970, the offense was reclassified as a misdemeanor in 1972. The supreme court
found, as it had consistently held, that for multiple offender purposes, an offense
which is subsequently reduced to a misdemeanor retains its felony status as of the
time of commission. The Blackwell Court concluded that if "the legislature had
intended to give a retroactive effect to any aspect of the reclassification of
possession of marijuana, it would have done so in enacting the new statute." Id. at
113. See State v. Robair, 2013- 0337 ( La. App. 4th Cir. 1/ 15/ 14), 133 So. 3d 96,
101, writ denied, 2014- 0322 ( La. 9/ 12/ 14), 147 So. 3d 705; see also State v.
Sawyer, 350 So. 2d 611, 615 ( La. 1977) ( wherein the court held "[ t]he status of the
offenses are determined as of the time of the conviction."); State v. Common,
2013- 488 ( La. App. 5th Cir. 2/ 26/ 14), 132 So. 3d 1282, 1283- 84, writ denied, 2014-
1366 ( La. 3/ 27/ 15), 162 So. 3d 381 ( observing that the Louisiana Supreme Court
has rejected the argument that a felony which has been reduced to a misdemeanor
cannot serve to enhance a sentence" to reject a similar argument.).
In the amendment to the marijuana simple possession statute, there is no
language regarding retroactive application, and there is no language to authorize
the statute' s ameliorative effects to those already convicted. See State v. Parker,
2003- 0924 ( La. 4/ 14/ 04), 871 So. 2d 317, 326. There is, particularly, nothing found
in the language of this amendment to suggest that because an offense has been
subsequently reduced to a misdemeanor, a defendant is thus permitted to
collaterally attack in a habitual offender proceeding that prior felony offense for
which he has already been convicted and sentenced.
The defendant further argues in brief that because his possession of
marijuana, second offense, conviction from 2013 could not be used as a felony
predicate, applying the five-year cleansing period of La. R.S. 15: 529( C)( 1), his two
other felony convictions in 2009 and 2011 could not be used in his habitual offender adjudication since more than five years had passed between the 2011
conviction and the instant offenses in 2017. This assertion is baseless. Since we
have concluded that the 2013 felony conviction could be used in the trial court' s
determination of the defendant' s habitual offender status, all of the defendant' s
prior felony convictions link up to the instant offenses, with less than five years
between each conviction. Moreover, the ten- year cleansing period applies to the
defendant' s prior conviction in 2011 of attempted disarming of a peace officer
because it is a crime of violence. See La. R.S. 15: 529. 1( C)( 2) & La. R.S.
14: 2( B)( 36).
Based on the foregoing, this assignment of error is without merit.
ASSIGNMENT OF ERROR NO. 2
In his second assignment of error, the defendant argues that his sentences are
excessive.
The Eighth Amendment to the United States Constitution and Article I, § 20,
of the Louisiana Constitution prohibit the imposition of cruel or excessive
punishment. Although a sentence falls within statutory limits, it may be excessive.
State v. Sepulvado, 367 So. 2d 762, 767 ( La. 1979). A sentence is considered
constitutionally excessive if it is grossly disproportionate to the seriousness of the
offense or is nothing more than a purposeless and needless infliction of pain and
suffering. A sentence is considered grossly disproportionate if, when the crime
and punishment are considered in light of the harm done to society, it shocks the
sense of justice. State v. Livous, 2018- 0016 ( La. App. 1st Cir. 9/ 24/ 18), 259
So. 3d 1036, 1044, writ denied, 2018- 1788 ( La. 4/ 15/ 19), 267 So. 3d 1130.
The trial court has great discretion in imposing a sentence within the
statutory limits, and such a sentence will not be set aside as excessive in the
absence of a manifest abuse of discretion. State v. Scott, 2017- 0209 ( La. App. 1 st
Cir. 9/ 15/ 17), 228 So. 3d 207, 211, writ denied, 2017- 1743 ( La. 8/ 31/ 18), 251 So. 3d 8 410. Louisiana Code of Criminal Procedure article 894. 1 sets forth the factors for
the trial court to consider when imposing sentence. While the entire checklist of
La. Code of Crim. P. art. 894. 1 need not be recited, the record must reflect the trial
court adequately considered the criteria. State v. Brown, 2002- 2231 ( La. App. 1 st
Cir. 5/ 9/ 03), 849 So. 2d 566, 569.
The articulation of the factual basis for a sentence is the goal of La. Code
Crim. P. art. 894. 1, not rigid or mechanical compliance with its provisions. Where
the record clearly shows an adequate factual basis for the sentence imposed,
remand is unnecessary even where there has not been full compliance with La.
Code Crim. P. art. 894. 1. State v. Lanclos, 419 So.2d 475, 478 ( La. 1982). The
trial judge should review the defendant' s personal history, his prior criminal
record, the seriousness of the offense, the likelihood that he will commit another
crime, and his potential for rehabilitation through correctional services other than
confinement. State v. Jones, 398 So.2d 1049, 1051- 52 ( La. 1981), State v.
Spikes, 2017- 0087 ( La. App. 1st Cir. 9/ 15/ 17), 228 So. 3d 201, 204- 05. On
appellate review of a sentence, the relevant question is whether the trial court
abused its broad sentencing discretion, not whether another sentence might have
been more appropriate. State v. Thomas, 98- 1144 ( La. 10/ 9/ 98), 719 So. 2d 49, 50
per curiam).
The sentencing range for distribution of heroin is five to forty years at hard
labor. See La. R.S. 40: 966( B)( 3). As a fourth -felony habitual offender, the
defendant' s sentencing range was " not less than the longest prescribed for a first
conviction but in no event less than twenty years and not more than his natural
life[.]" See La. R.S. 15: 529. 1( A)(4)( a). 3 Accordingly, the defendant' s sentencing
3 For sentencing purposes, the 2017 version of the Habitual Offender Law is applicable because the defendant committed the underlying offenses in August of 2017, prior to the November 1, 2017 amendments. Se La. R.S. 15: 529. 1( K)( 1); State v. Lyles, 2019- 00203 ( La. 10/ 22/ 19), 286 So. 3d 407, 410 ( per curiam).
M exposure was forty years to life imprisonment. The trial court sentenced the
defendant to concurrent forty -five-year sentences on each count.
The defendant argues in brief that even a minimum sentence of forty years 4 would have been excessive. See La. R. S. 15: 529. 1( I). According to the
defendant, he was such a " low level dealer," the police made no effort to arrest him
in August of 2017. Further, he had a job, and his criminal record consisted of non-
violent offenses, except for one attempted crime of violence.
In Dorthey, 623 So.2d at 1280- 81, the Louisiana Supreme Court opined that
if a trial judge were to find that the punishment mandated by La. R.S. 15: 529. 1
makes no " measurable contribution to acceptable goals of punishment" or that the
sentence amounted to nothing more than " the purposeful imposition of pain and
suffering" and is " grossly out of proportion to the severity of the crime," he has the
option, indeed the duty, to reduce such sentence to one that would not be
constitutionally excessive. In State v. Johnson, 97- 1906 ( La. 3/ 4/ 98), 709 So. 2d
672, 676- 77, the Louisiana Supreme Court reexamined the issue of when Dorthey
permits a downward departure from the mandatory minimum sentences in the
Habitual Offender Law. A sentencing court must always start with the
presumption that a mandatory minimum sentence under the Habitual Offender Law
is constitutional. A court may only depart from the minimum sentence if it finds
clear and convincing evidence in the particular case before it that rebuts this
presumption of constitutionality. A trial court may not rely solely upon the non-
violent nature of the instant or prior offenses as evidence that justifies rebutting the
presumption of constitutionality. While the classification of a defendant' s instant
or prior offenses as non-violent should not be discounted, this factor has already
4 The defendant incorrectly asserts throughout his argument that he was originally sentenced to the maximum sentence of 40 years on each count prior to the sentences being vacated and being resentenced as a habitual offender. As previously stated in the opinion, the record shows the defendant was originally sentenced to 20 years on each count. 10 been taken into account under the Habitual Offender Law for third and fourth
offenders. Johnson, 709 So. 2d at 676.
To rebut the presumption that the mandatory minimum sentence is
constitutional, the defendant must clearly and convincingly show that he is
exceptional, which means that, because of unusual circumstances, this defendant is
a victim of the legislature' s failure to assign sentences that are meaningfully
tailored to the culpability of the offender, the gravity of the offense, and the
circumstances of the case. Given the legislature' s constitutional authority to enact
statutes such as the Habitual Offender Law, it is not the sentencing court' s role to
question the legislature' s wisdom in requiring enhanced punishments for multiple
offenders. Instead, the sentencing court is only allowed to determine whether the
particular defendant before it has proven that the mandatory minimum sentence is
so excessive in his case that it violates the constitution. Departures downward
from the minimum sentence under the Habitual Offender Law should occur only in
rare situations. Johnson, 709 So. 2d at 676- 77.
In imposing forty -five-year concurrent sentences, the trial court noted:
There are certain reasons, that I would add, that I took into consideration regarding the sentence that was handed down here today. The Defendant has an extensive criminal history, having been arrested, prosecuted and convicted on at least three prior occasions. And he has indicated no remorse, or accepted any responsibility, whatsoever for the case that I have before me here today.
We find nothing unusual or unique about the defendant' s circumstances that
would justify a downward departure from the mandatory minimum forty -year
sentence. The record before us clearly establishes an adequate factual basis for the
sentences imposed. The defendant has not proven by clear and convincing
evidence that he is exceptional such that a forty -five-year sentence ( in the
aggregate) was meaningfully tailored to the culpability of the offender, the gravity
11 of the offenses, and the circumstances of the case. See State v. Noble, 2012- 1923
La. 4/ 19/ 13), 114 So. 3d 500, 501 ( per curiam) ( observing that "[ d] efendant faces
the enhanced sentencing ranges provided by Louisiana' s Habitual Offender Law to
punish him not only for his most recent violation of this state' s controlled
substances law, but also for his repeated felonious behavior over time, placing him
in an unfortunately large class of offenders."); State v. Garrott, 2015- 0116 ( La.
App. 1st Cir. 11/ 9/ 15), 2015 WL 6951461, at * 4 ( unpublished), writ denied, 2015-
2288 ( La. 3/ 4/ 16), 188 So. 3d 1057 and writ denied, 2015- 2346 ( La. 1/ 9/ 17), 214
So. 3d 873 (" Considering the trial court' s reasons for sentencing, and the
defendant' s repeated criminality, we find no abuse of discretion by the trial court.
There is nothing particularly unusual about the defendant' s circumstances that
would justify a downward departure from the mandatory minimum sentence.")
Accordingly, no downward departure from the presumptively constitutional
mandatory minimum sentence is warranted. Moreover, given that the trial court
appears to have taken the ameliorative changes into consideration since the
defendant was sentenced at the very low end of a sentencing range that included a
life sentence, we find the sentences imposed are not grossly disproportionate to the
severity of the offenses and, therefore, are not unconstitutionally excessive. See
State v. Thompson, 50, 392 ( La. App. 2nd Cir. 2/ 24/ 16), 189 So. 3d 1139, 1146,
writ denied, 2016- 0535 ( La. 3/ 31/ 17), 217 So. 3d 358.
This assignment of error is without merit.
REVIEW FOR ERROR
Pursuant to La. Code Crim. P. art. 920, this court routinely conducts a
review for error discoverable by mere inspection of the pleadings and proceedings
and without inspection of the evidence. After a careful review of the record, we
have found a sentencing error.
12 Regarding the habitual offender resentencing, the minutes indicate that the
sentences are at hard labor, but in the sentencing transcript, the trial court failed to
provide that the defendant' s sentences be served at hard labor. Generally, when
there is a discrepancy between the minutes and the transcript, the transcript must
prevail. State v. Lynch, 441 So. 2d 732, 734 ( La. 1983). Any sentence imposed
under the habitual offender statute shall be at hard labor. See La. R.S.
15: 529. 1( G). Further, La. Code Crim. P. art. 882( A) authorizes correction by the
appellate court. We find that correction of these illegally lenient sentences does
not involve the exercise of sentencing discretion and, as such, there is no reason
why this court should not simply amend the sentences. Accordingly, since a
sentence at hard labor was the only sentence that could be imposed, we correct the
defendant' s sentences following the habitual offender adjudication to reflect that
they be served at hard labor. We remand to the trial court for correction of the
commitment order, if necessary, and for transmission of the amended record to the
Department of Corrections.
As amended, the sentences are affirmed.
CONVICTIONS AND HABITUAL OFFENDER ADJUDICATION AFFIRMED; SENTENCES AMENDED TO PROVIDE THAT THEY BE SERVED AT HARD LABOR AND AFFIRMED AS AMENDED; REMANDED FOR CORRECTION OF THE COMMITMENT ORDER, IF NECESSARY, AND FOR TRANSMISSION OF THE AMENDED RECORD TO THE DEPARTMENT OF CORRECTIONS.