State of Louisiana v. Corderrel Cooksey a/k/a Cordarrel Cooksey

• Court: Louisiana Court of Appeal
• Decided: May 26, 2021
• Docket: 53,660-KA
• Status: Published

Opinion

Judgment rendered May 26, 2021. Application for rehearing may be filed within the delay allowed by Art. 922, La. C. Cr. P.

No. 53,660-KA

COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA

*****

STATE OF LOUISIANA Appellee

versus

CORDERREL COOKSEY A/K/A Appellant CORDARREL COOKSEY

Appealed from the Forty-Second Judicial District Court for the Parish of DeSoto, Louisiana Trial Court No. 1CR29859

Honorable Charles Blaylock Adams, Judge

LOUISIANA APPELLATE PROJECT Counsel for Appellant By: Douglas Lee Harville

CHARLES BLAYLOCK ADAMS Counsel for Appellee District Attorney

LEA R. HALL, JR. GEORGE WINSTON, III Assistant District Attorneys

Before PITMAN, STONE, and THOMPSON, JJ.

Pitman, J., concurs in the result.

Thompson, J., concurs in the result. STONE, J.

This arises from the 42nd Judicial District Court in DeSoto Parish. The

appellant, Corderell Cooksey (“Cooksey”), was convicted of: (1) possession

of methamphetamine with the intent to distribute, a violation of La. R.S. 40:

966(B)(1)(b); and (2) possession of more than 14 grams of marijuana, in

violation of La. R.S. 40:967. Regarding the methamphetamine, the appellant

was sentenced to 18 years of imprisonment at hard labor; regarding the

marijuana, the appellant was sentenced to six months of imprisonment, to

run concurrently with the other sentence. In this appeal, Cooksey challenges

the 18-year sentence as unconstitutionally excessive. For the reasons stated

hereinafter, we affirm his sentence.

FACTS AND PROCEDURAL HISTORY

Cooksey’s encounter with the police began as a traffic stop which the

police justified based on an inoperable light on his vehicle license plate. The

police saw loose marijuana in the car. Thereupon, the police searched the car

and found nearly 3,000 methamphetamine pills,1 more marijuana, $2,016

cash stuffed in a Crown Royal bag, and two digital scales. The

methamphetamine was divided among several separate plastic bags.

1 After the pills arrived at the crime lab, Randall Robillard, a forensic chemist, began testing. Robillard was accepted as an expert in forensic chemistry in open court. Robillard identified his certified report in open court and testified that to test a larger quantity of drugs, he uses a hypergeometric sampling plan. This means that he takes the total number of pills and the weight to get a specified number of tablets that need to be tested so that there is 99 % confidence that at least 28 grams of the pills tested contains the illegal substance. Robillard stated that the confidence level increases as more pills are tested. In this case, Robillard tested 5 of the 2,923 pills. Robillard testified that those pills were selected at random. Robillard was able to confirm that the total weight of the pills collected was 695.7 grams and of the five pills tested, they were all positive for methamphetamine. The loose vegetable material tested was confirmed to be 80.2 grams and contained marijuana. The appellant was charged with possession with intent to distribute

both the methamphetamine and the marijuana, and elected to go to jury trial.

Cooksey subsequently was convicted and sentenced as previously stated

herein. Special agent Paul Hursey, who was accepted at trial as an expert in

drug investigations, testified that the estimated street value of the

methamphetamine seized was between $14,000 and $23,000.

The trial court ordered a presentence investigative report (“PSIR”). At

the sentencing hearing, the trial court asked if Cooksey disagreed with any

of the assertions in the PSIR. In response, no material disagreements were

raised. The trial court noted that Cooksey has six children and has a good

relationship with them, and has a consistent work history. However, the trial

court also noted that the appellant had already accumulated a significant

criminal history aside from the matters for which he was convicted in this

case. In particular, at the time of Cooksey’s sentencing he: (1) had already

been convicted of misdemeanor theft, domestic abuse battery, and criminal

trespass; (2) had a separate, unrelated pending charge for possession with

intent to distribute schedule I controlled dangerous substances (the arrest

related to this charge occurred prior to the arrest for the instant offenses);

and (3) had separate, unrelated charges for distribution of schedule II

controlled dangerous substances and carrying a concealed weapon (the arrest

related to these charges occurred after the arrest for the instant offenses).

The sentencing range for La. R.S. 40:967(B)(1)(b) is 1 to 20 years of

incarceration at hard labor; the statute also authorizes a fine of up to

$50,000.

2 DISCUSSION

Generally, appellate courts apply a two-pronged test when reviewing a

sentence for excessiveness, to wit: (1) whether the trial court adequately

considered the sentencing guidelines established in La. C. Cr. P. art. 894.1;

and (2) whether the sentence is constitutionally excessive. State v. Gardner,

46,688 (La. App. 2 Cir. 11/2/11), 77 So. 3d 1052. However, if the defendant

fails to file a timely motion to reconsider sentence, he or she waives the right

to appellate review of the trial court’s consideration of the sentencing

guidelines. To that effect, La. C.Cr.P. art. 881.1(E) states:

Failure to make or file a motion to reconsider sentence or to include a specific ground upon which a motion to reconsider sentence may be based, including a claim of excessiveness, shall preclude the state or the defendant from raising an objection to the sentence or from urging any ground not raised in the motion on appeal or review.

The right to appeal a sentence can be preserved by an oral motion to

reconsider at the sentencing hearing, or thereafter, by a written motion to

reconsider filed within 30 days after the sentencing. La. C.Cr. P. art. 881.1.

When a defendant fails to make a motion to reconsider sentence, the

appellate court’s review of the sentence is limited to a bare claim of

constitutional excessiveness. State v. Benson, 53,578 (La. App. 2 Cir.

11/10/2020), 305 So. 3d 135.

In this case, Cooksey did not object or make an oral motion to

reconsider sentence at the sentencing hearing, nor did he file a written

motion to consider sentence. He, therefore, waived his right to appeal

regarding the trial court’s consideration of the sentencing guidelines.

3 Constitutional excessiveness

Our review is limited to whether or not Cooksey’s sentence is

constitutionally excessive. On that point, Cooksey argues that State v.

Sharkey, 602 So. 2d 249 (La. App. 2 Cir. 1992), State v. Wyatt, 591 So. 2d

761 (La. App. 2 Cir. 1991), and State v. Tilley, 400 So. 2d 1363 (La. 1981),

necessitate a sentence of 10 years or less. Like the instant case, all three of

these cases involved defendants without prior felony convictions. In each

case cited, the initial sentences for offenses related to drug dealing were

deemed excessive on appeal. Also, all of these cases, like the instant case,

involved a series of drug sales or arrests for drug sales.

Before we discuss in detail the specific cases that Cooksey relies

upon, we must first set forth the general precepts of review for constitutional

excessiveness of a sentence. In State v. Sepulvado, 367 So. 2d 762 (La.

1979), the Louisiana Supreme Court held that the Louisiana Constitution of

1974 “gives the courts… a basis for determining that sentences…though not

cruel or unusual…are too severe as punishment for certain conduct and thus

unconstitutional.” A sentence can be constitutionally excessive, even when it

falls within statutory limits if: (1) the punishment is so grossly

disproportionate to the severity of the crime that, when viewed in light of the

harm done to society, it shocks the sense of justice; or (2) it serves no

purpose other than to needlessly inflict pain and suffering. State v. Dorthey,

623 So. 2d 1276 (La. 1993). The circumstances of the case and the

background of the defendant are relevant in making this determination. State

v. Sharkey, 602 So. 2d 249 (La. App. 2 Cir. 1992). The sentencing judge

may consider whatever facts and evidence he or she considers important in

determining the best interest of the public and the defendant. As a general 4 rule, maximum or near-maximum offenses are reserved for the worst

offenders and the worst offenses. State v. Sandifer, 53,276 (La. App. 2 Cir.

1/15/20), 289 So. 3d 212. However, the trial court has wide discretion to

sentence within statutory limits. State v. Sharkey, supra. The defendant must

show a manifest abuse of discretion to have a sentence set aside as

excessive. Id.

In State v. Sharkey, supra, Sharkey was convicted of two counts of

distribution of cocaine and received two concurrent 20-year hard labor

sentences; the maximum sentence for that crime was 30 years. The

convictions stemmed from two undercover drug buys by narcotics agents

which took place in February of 1991. In the first buy, an agent received

one rock of crack cocaine for $25 and in the second buy, the agent received

one rock of crack cocaine for $20. 1 There was also a third incident wherein

Sharkey sold the agent a rock of crack cocaine for $25; this charge was

dismissed as a result of Sharkey’s plea to the other two offenses. Sharkey

was a first-felony offender. Similar to the trial judge in this case, the judge

in Sharkey opined that the offenses posed significant harm to the public

because of the seriousness of selling drugs and that the likelihood of

recidivism was high due to the repeated incidences in that case. In holding

that Sharkey’s 20-year sentence was excessive, we noted that his criminal

record consisted of “relatively minor” misdemeanors, the most serious of

which was a purse snatching conviction in 1983. We also emphasized that

each drug transaction underlying Sharkey’s convictions involved one rock

worth no more than $25.2

2 The Sharkey opinion cited to many other cases where this Court found sentences to be excessive based on the defendants’ backgrounds and criminal histories. See State v. 5 In State v. Wyatt, supra, Wyatt, who was 36 years old at the time of

his offenses, was convicted of three counts of distribution of cocaine and

sentenced to concurrent 12-year sentences. These three counts arose from

two separate incidents that were five hours apart. In the first incident, Wyatt

sold one agent two rocks of crack cocaine for $40, and sold a second agent

an identical amount. In the second incident, another agent purchased two

additional rocks. All three of the undercover buyers were total strangers to

the defendant. In its reasoning, this Court noted that while the

circumstances indicated that Wyatt routinely sold “crack” for a profit, he

was capable of rehabilitation based on several factors: he was a high school

graduate, had served three years in the military (and was honorably

discharged), and worked for the same employer for 14 years. Further,

Wyatt’s criminal history, with the exception of DWIs, was over ten years

prior. He also had satisfactorily completed probation. This Court relied

heavily on State v. Tilley, supra, in finding that Wyatt’s sentence was

excessive and remanded the case for resentencing for a sentence not to

exceed 10 years at hard labor.

In State v. Tilley, supra, the supreme court vacated Tilley’s sentence

of 21 years for the conviction of distribution of cocaine, and held that the

maximum sentence constitutionally permissible under the circumstances

would be 10 years. Tilley was 18 years old at the time of the offense.

Characterizing Tilley as a “small fish” in the drug trade, the supreme court

Winston, 572 So. 2d 54 (La. 1991) (9-year sentence excessive); State v. Wyatt, supra (12- year sentence excessive); State v. Miller, 587 So. 2d 125 (La. App. 2 Cir. 1991) (10-year sentence excessive); State v. Smith, 576 So. 2d 105 (La. App. 2 Cir. 1991) (10-year sentence excessive); State v. Cathey, 569 So. 2d 627 (La. App. 2 Cir. 1990) (14-year sentence excessive); and State v. Strickland, 486 So. 2d 1015 (La. App. 2 Cir. 1986) (20- year sentence excessive), on appeal after remand, 505 So. 2d 752 (La. App. 2 Cir. 1987).

6 noted that under circumstances similar to those presented, a permissible

sentencing range would be from the statutory minimum to ten years. Tilley

had approximately 34 packets containing cocaine and sold six to an

undercover officer for $60. When asked by the officer about other

substances, defendant claimed to be out of Dilaudid. Between the time of

the offense at issue and Tilley’s arrest, he sold another controlled dangerous

substance to the same officer. Additionally, a search of his residence

following his arrest yielded marijuana, for which Tilley was charged with

possession. Tilley was an 18-year-old high school dropout who had made

plans to pursue a GED. His employment history was steady and consistent

for someone his age with his educational background. Although he was

unmarried, he lived with his physically disabled mother. In addition to the

criminal activity outlined above, Tilley had two DWI convictions and an

outstanding third charge. Following his arrest, he registered at, and

continued to attend, a substance abuse clinic. The matter was remanded for

resentencing within the minimum to ten-year range.

In a more recent case, State v. Sandifer, supra, the defendant was a

first-felony offender involved in two drug transactions with undercover

officers. In the first transaction, she sold 28 grams of methamphetamine for

$700, and in the other she attempted to sell 113 grams of methamphetamine

for an agreed price of $2,450. These two offenses arose from a single course

of conduct. The defendant was convicted of one count of distributing

methamphetamine, and sentenced to 25 years; she was also convicted of

attempted distribution of methamphetamine and sentenced to 15 years. The

trial court ordered the sentences to run consecutively. Under the statutory

law in effect at the time of her offenses, the maximum possible sentences for 7 these crimes were 30 years and 15 years, respectively. The presentence

investigation report indicated that the defendant, at the time of sentencing,

had two pending charges for possession of drug paraphernalia. It also stated

that she was arrested for possession of methamphetamine (again) after being

released on bail for the subject offenses.

We vacated and remanded for resentencing on the ground that the

record did not justify consecutive sentences. In our instructions, we ordered

the trial court to resentence Sandifur with concurrent sentences, or

alternatively, if the court desired to again impose consecutive sentences,

state the reasons for doing so on the record.

Sharkey, supra, Tilley, supra, and Wyatt, supra, show that where the

defendant is a first-time felon who sold or attempted to sell only moderate

quantities of crack cocaine, a sentence of greater than 10 years may be

excessive, even if the defendant’s subject conviction or convictions are part

of a series of drug transactions. We see no reason to treat methamphetamine

differently. However, in this case, the record indicates that Cooksey

possessed a quantity of methamphetamine worth $14,000 to $23,000, which

must be characterized as a large amount. Indeed, Cooksey’s possession of

3,000 methamphetamine pills suggests that the he probably was higher in

chain of distribution than a mere retailer. Accordingly, the cases upon which

the appellant relies must be distinguished. This assignment of error lacks

merit.

CONCLUSION

The appellant’s conviction and sentence are AFFIRMED.