NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
11-702
STATE OF LOUISIANA
VERSUS
CORY R. HOWARD
**********
APPEAL FROM THE THIRTIETH JUDICIAL DISTRICT COURT PARISH OF VERNON, NO. 79,772 HONORABLE VERNON B. CLARK, DISTRICT JUDGE
JIMMIE C. PETERS JUDGE
Court composed of Jimmie C. Peters, Marc T. Amy, and Shannon J. Gremillion, Judges.
AFFIRMED.
Paula Corley Marx Louisiana Appellate Project P. O. Box 80006 Lafayette, LA 70598-0006 (337) 991-9757 COUNSEL FOR DEFENDANT/APPELLANT: Cory R. Howard Asa Allen Skinner District Attorney Thirtieth Judicial District Court P. O. Box 1188 Leesville, LA 71446-1188 (337) 239-2008 COUNSEL FOR APPELLEE: State of Louisiana
Terry Wayne Lambright Attorney at Law 118 S. Third St., Suite A Leesville, LA 71446 (337) 239-6557 COUNSEL FOR APPELLEE: State of Louisiana PETERS, J.
The State of Louisiana (state) originally charged the defendant, Cory R.
Howard, by bill of information with possession with intent to distribute a controlled
dangerous substance, cocaine, in violation of La.R.S. 40:967(A)(1). The defendant
subsequently entered into a plea agreement with the state wherein he agreed to plead
guilty to the reduced charge of attempted possession with intent to distribute, cocaine,
a violation of La.R.S. 40:967(A)(1) and La.R.S. 14:27, in exchange for the state
agreeing not to charge him as a habitual offender. The defendant pled guilty to the
reduced charge and the trial court subsequently sentenced him to serve an eight-year
hard-labor sentence and to pay a $2,500.00 fine. After the trial court rejected his
motion to reconsider his sentence, the defendant perfected this appeal. In his appeal,
the defendant asserts only that his sentence is excessive. For the following reasons,
we affirm the defendant’s sentence in all respects.
The factual background giving rise to this prosecution is not in dispute. In late
June of 2010, the defendant was on supervised probation for a prior criminal
conviction. While being interrogated by police officers and his probation officer in
the parking lot of a Vernon Parish club on June 26, 2010, the defendant’s cellular
telephone rang. One of the officers involved in the interrogation answered the
telephone, and the party on the other end of the line asked for a ―twenty,‖ which is
common language used when requesting a twenty-dollar rock of cocaine. The officer
also viewed a text message on the defendant’s phone wherein the message requested a
―twenty.‖ A subsequent search of the defendant’s residence resulted in the recovery
of several pieces of crack cocaine.
In his sole assignment of error, the defendant asserts that his sentence is
excessive, considering that he is only twenty years old and is in need of substance
abuse treatment. The defendant also asserts that the trial court failed to sufficiently particularize his sentence and that the trial record fails to demonstrate sufficient
compliance with La.Code Crim.P. art. 894.1.
This court has set forth the following standard to be used in reviewing
excessive sentence claims:
La.Const. art. I, § 20 guarantees that, ―[n]o law shall subject any person to cruel or unusual punishment.‖ To constitute an excessive sentence, the reviewing court must find the penalty so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no measurable contribution to acceptable penal goals and is, therefore, nothing more than a needless imposition of pain and suffering. State v. Campbell, 404 So.2d 1205 (La.1981). The trial court has wide discretion in the imposition of sentence within the statutory limits and such sentence shall not be set aside as excessive absent a manifest abuse of discretion. State v. Etienne, 99-192 (La.App. 3 Cir. 10/13/99); 746 So.2d 124, writ denied, 00-0165 (La.6/30/00); 765 So.2d 1067. The relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. State v. Cook, 95-2784 (La.5/31/96); 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).
State v. Barling, 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035, 1042-43, writ denied, 01-838 (La. 2/1/02), 808 So.2d 331 (alteration in original).
In considering whether a sentence shocks the sense of justice or makes no meaningful
contribution to acceptable penal goals, this court has stated that:
[A]n appellate court may consider several factors including the nature of the offense, the circumstances of the offender, the legislative purpose behind the punishment and a comparison of the sentences imposed for similar crimes. State v. Smith, 99-0606 (La.7/6/00); 766 So.2d 501. While a comparison of sentences imposed for similar crimes may provide some insight, ―it is well settled that sentences must be individualized to the particular offender and to the particular offense committed.‖ State v. Batiste, 594 So.2d 1 (La.App. 1 Cir.1991). Additionally, it is within the purview of the trial court to particularize the sentence because the trial judge ―remains in the best position to assess the aggravating and mitigating circumstances presented by each case.‖ State v. Cook, 95- 2784 (La.5/31/96); 674 So.2d 957, 958.
State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ denied, 03-562 (La. 5/30/03), 845 So.2d 1061.
The penalty for attempted possession with intent to distribute cocaine is
imprisonment at hard labor for not more than fifteen years and a fine of not more than 2 $25,000. La.R.S. 40:967(B)(4)(b) and La.R.S. 14:27(D)(3). As such, the defendant’s
eight-year sentence is slightly more than one-half of the maximum possible sentence,
and his $2,500.00 fine was a fraction of the maximum possible fine. Additionally, the
defendant received a substantial benefit as a result of his guilty plea by reducing his
sentencing exposure as charged and avoiding the possible enhancement of his
sentence as a habitual offender.
With regard to the mitigating and aggravating circumstances considered by the
trial court in sentencing the defendant, the trial court stated:
All right. I reviewed the factors of Article 894.1 of the Code of Criminal Procedure and found the following were applicable: First, this is a drug case and there is always significant economic harm or impact on society in general when one is dealing in the use of distribution of illegal drugs. There are no substantial grounds which would tend to excuse or justify his criminal conduct nor did he act under strong provocation by anyone. He’s young. He’s twenty years of age. He’s single. He doesn’t have any children. He’s in good health. The PSI did not cover anything about any employment history of any kind and so I have no information about that. He’s -- he had a – he has an eleventh grade education and does not have his GED as far as I’ve seen. He does have a history of some drug and -- drug use. He used cocaine and marijuana and has not received treatment. He’s classified as a second felony offender in that the report indicates that on January 27th, 2010, in this court, he was convicted of possession of cocaine. A deferred sentence was imposed. He was placed on supervised probation for five years and that probation was revoked on August 3rd, 2010.
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NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
11-702
STATE OF LOUISIANA
VERSUS
CORY R. HOWARD
**********
APPEAL FROM THE THIRTIETH JUDICIAL DISTRICT COURT PARISH OF VERNON, NO. 79,772 HONORABLE VERNON B. CLARK, DISTRICT JUDGE
JIMMIE C. PETERS JUDGE
Court composed of Jimmie C. Peters, Marc T. Amy, and Shannon J. Gremillion, Judges.
AFFIRMED.
Paula Corley Marx Louisiana Appellate Project P. O. Box 80006 Lafayette, LA 70598-0006 (337) 991-9757 COUNSEL FOR DEFENDANT/APPELLANT: Cory R. Howard Asa Allen Skinner District Attorney Thirtieth Judicial District Court P. O. Box 1188 Leesville, LA 71446-1188 (337) 239-2008 COUNSEL FOR APPELLEE: State of Louisiana
Terry Wayne Lambright Attorney at Law 118 S. Third St., Suite A Leesville, LA 71446 (337) 239-6557 COUNSEL FOR APPELLEE: State of Louisiana PETERS, J.
The State of Louisiana (state) originally charged the defendant, Cory R.
Howard, by bill of information with possession with intent to distribute a controlled
dangerous substance, cocaine, in violation of La.R.S. 40:967(A)(1). The defendant
subsequently entered into a plea agreement with the state wherein he agreed to plead
guilty to the reduced charge of attempted possession with intent to distribute, cocaine,
a violation of La.R.S. 40:967(A)(1) and La.R.S. 14:27, in exchange for the state
agreeing not to charge him as a habitual offender. The defendant pled guilty to the
reduced charge and the trial court subsequently sentenced him to serve an eight-year
hard-labor sentence and to pay a $2,500.00 fine. After the trial court rejected his
motion to reconsider his sentence, the defendant perfected this appeal. In his appeal,
the defendant asserts only that his sentence is excessive. For the following reasons,
we affirm the defendant’s sentence in all respects.
The factual background giving rise to this prosecution is not in dispute. In late
June of 2010, the defendant was on supervised probation for a prior criminal
conviction. While being interrogated by police officers and his probation officer in
the parking lot of a Vernon Parish club on June 26, 2010, the defendant’s cellular
telephone rang. One of the officers involved in the interrogation answered the
telephone, and the party on the other end of the line asked for a ―twenty,‖ which is
common language used when requesting a twenty-dollar rock of cocaine. The officer
also viewed a text message on the defendant’s phone wherein the message requested a
―twenty.‖ A subsequent search of the defendant’s residence resulted in the recovery
of several pieces of crack cocaine.
In his sole assignment of error, the defendant asserts that his sentence is
excessive, considering that he is only twenty years old and is in need of substance
abuse treatment. The defendant also asserts that the trial court failed to sufficiently particularize his sentence and that the trial record fails to demonstrate sufficient
compliance with La.Code Crim.P. art. 894.1.
This court has set forth the following standard to be used in reviewing
excessive sentence claims:
La.Const. art. I, § 20 guarantees that, ―[n]o law shall subject any person to cruel or unusual punishment.‖ To constitute an excessive sentence, the reviewing court must find the penalty so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no measurable contribution to acceptable penal goals and is, therefore, nothing more than a needless imposition of pain and suffering. State v. Campbell, 404 So.2d 1205 (La.1981). The trial court has wide discretion in the imposition of sentence within the statutory limits and such sentence shall not be set aside as excessive absent a manifest abuse of discretion. State v. Etienne, 99-192 (La.App. 3 Cir. 10/13/99); 746 So.2d 124, writ denied, 00-0165 (La.6/30/00); 765 So.2d 1067. The relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. State v. Cook, 95-2784 (La.5/31/96); 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).
State v. Barling, 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035, 1042-43, writ denied, 01-838 (La. 2/1/02), 808 So.2d 331 (alteration in original).
In considering whether a sentence shocks the sense of justice or makes no meaningful
contribution to acceptable penal goals, this court has stated that:
[A]n appellate court may consider several factors including the nature of the offense, the circumstances of the offender, the legislative purpose behind the punishment and a comparison of the sentences imposed for similar crimes. State v. Smith, 99-0606 (La.7/6/00); 766 So.2d 501. While a comparison of sentences imposed for similar crimes may provide some insight, ―it is well settled that sentences must be individualized to the particular offender and to the particular offense committed.‖ State v. Batiste, 594 So.2d 1 (La.App. 1 Cir.1991). Additionally, it is within the purview of the trial court to particularize the sentence because the trial judge ―remains in the best position to assess the aggravating and mitigating circumstances presented by each case.‖ State v. Cook, 95- 2784 (La.5/31/96); 674 So.2d 957, 958.
State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ denied, 03-562 (La. 5/30/03), 845 So.2d 1061.
The penalty for attempted possession with intent to distribute cocaine is
imprisonment at hard labor for not more than fifteen years and a fine of not more than 2 $25,000. La.R.S. 40:967(B)(4)(b) and La.R.S. 14:27(D)(3). As such, the defendant’s
eight-year sentence is slightly more than one-half of the maximum possible sentence,
and his $2,500.00 fine was a fraction of the maximum possible fine. Additionally, the
defendant received a substantial benefit as a result of his guilty plea by reducing his
sentencing exposure as charged and avoiding the possible enhancement of his
sentence as a habitual offender.
With regard to the mitigating and aggravating circumstances considered by the
trial court in sentencing the defendant, the trial court stated:
All right. I reviewed the factors of Article 894.1 of the Code of Criminal Procedure and found the following were applicable: First, this is a drug case and there is always significant economic harm or impact on society in general when one is dealing in the use of distribution of illegal drugs. There are no substantial grounds which would tend to excuse or justify his criminal conduct nor did he act under strong provocation by anyone. He’s young. He’s twenty years of age. He’s single. He doesn’t have any children. He’s in good health. The PSI did not cover anything about any employment history of any kind and so I have no information about that. He’s -- he had a – he has an eleventh grade education and does not have his GED as far as I’ve seen. He does have a history of some drug and -- drug use. He used cocaine and marijuana and has not received treatment. He’s classified as a second felony offender in that the report indicates that on January 27th, 2010, in this court, he was convicted of possession of cocaine. A deferred sentence was imposed. He was placed on supervised probation for five years and that probation was revoked on August 3rd, 2010. On October the 9th, 2009, in the 30th Judicial District Court, he was convicted of possession of marijuana and resisting and given six months in the Vernon Parish jail, six months probation. His probation was revoked there. And, on January 27th, 2010, possession of marijuana, possession of drug paraphernalia, and his probation of was revoked.
Based on the above discussion of the aggravating and mitigating factors pertaining to
the defendant, we find no merit in his contention that the trial court failed to
adequately consider those factors. State v. Decuir, 10-1112 (La. App. 3 Cir. 4/6/11),
61 So.3d 782.
In considering whether the sentence is excessive, we first note that similar
sentences have been found not excessive. See State v. Regis, 09-806 (La.App. 4 Cir.
3 11/12/09), 25 So.3d 183, writ denied, 10-3 (La. 6/18/10), 38 So.3d 322; State v. Latin,
42,134 (La.App. 2 Cir. 6/20/07), 960 So.2d 1186; and State v. Haley, 97-1385
(La.App. 3 Cir. 3/6/98), 709 So.2d 992. Nor do we find this sentence to be excessive
considering the reasons stated by the trial court, the fact that the sentence is in the
mid-range of the defendant’s sentencing exposure, and the fact that the defendant
received a substantial benefit from the plea agreement he entered into with the state.
Additionally, the defendant did not assert in his motion to reconsider in the trial court
that he was in need of substance abuse treatment in lieu of incarceration. Given his
failure to raise this issue at the trial court, the issue is not properly before this court for
the first time on appeal. See La.Code Crim.P. art. 881.1.
We find no merit in the defendant’s assignment of error.
DISPOSITION
For the foregoing reasons, we affirm the defendant’s sentence in all respects.
This opinion is NOT DESIGNATED FOR PUBLICATION. Rules 2-16.2 and 2- 16.3, Uniform Rules—Courts of Appeal.