DO NOT PUBLISH
STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
08-510
STATE OF LOUISIANA
VERSUS
JESSICA D. BRISTER
********** APPEAL FROM THE THIRTIETH JUDICIAL DISTRICT COURT PARISH OF VERNON, NO. 72,070 HONORABLE LESTER KEES, DISTRICT JUDGE
**********
J. DAVID PAINTER JUDGE
********** Court composed of Jimmie C. Peters, Elizabeth A. Pickett, and J. David Painter, Judges.
AFFIRMED.
Paula C. Marx P.O. Box 80006 Lafayette, LA 70598 Counsel for Defendant-Appellant: Jessica D. Brister
Terry W. Lambright Assistant District Attorney P.O. Box 1188 Leesville, LA 71446 Counsel for Appellee: State of Louisiana PAINTER, Judge
Defendant, Jessica M. Brister, appeals as excessive the sentence imposed in
connection with her plea of guilty to possession of methadone and simple possession
of marijuana.
FACTS
On November 28, 2006, deputies from the Vernon Parish Sheriff’s Office
responded to a call at 215 Goodman Road in Leesville and spoke to Courtney Brister,
Defendant’s daughter. Miss Brister advised that she had been slapped by Defendant,
causing bruising on her face. Defendant was arrested for causing property damage.
After Defendant granted permission for deputies to search the house, Defendant’s
daughter informed the deputies that there was marijuana in the dog house and drugs
in the car. Officers found a zip-lock bag of marijuana in the dog house and a metal
container containing pills, some of which were identified as methadone, in the car.
On April 17, 2007, Defendant was charged by bill of information with
possession of methadone, a second subsequent offense, a violation of La.R.S. 40:982
and 40:967(C), and with possession of marijuana with intent to distribute, a second
subsequent offense, a violation of La.R.S. 40:982 and 40:966(A). On December 5,
2007, Defendant entered a plea of guilty to possession of methadone and to the
reduced charge of simple possession of marijuana. In exchange for her plea, the State
agreed not to seek any enhancement of the penalties.
Defendant was sentenced to serve three years at hard labor for possession of
methadone and six months in the parish jail for possession of marijuana. She was
given credit for time served on each sentence, and the sentences were ordered to run
concurrently to each other and to the sentence imposed in docket number 72,465.1
1 Defendant also entered a plea of guilty to theft over $300.00 but less than $500.00 in docket number 72,465. An appeal involving the sentence imposed for that charge is before this court under
1 A Motion to Reconsider Sentence was filed on February 27, 2008, in which
Defendant argued that her sentences were excessive and a manifest abuse of
discretion. She also asserted that the trial court failed to adequately consider
applicable mitigating circumstances in determining the appropriate sentences to be
imposed. The motion was summarily denied the following day. Defendant is now
before this court on appeal asserting that her sentence for possession of methadone
is excessive. For the following reasons, we affirm.
DISCUSSION
Error Patent
In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for
errors patent on the face of the record. After reviewing the record, we find there is
one error patent.
The bill of information erroneously stated that Defendant was a second
offender pursuant to the provisions set forth in La.R.S. 40:982. See State v. Edwards,
06-850 (La.App. 3 Cir. 6/13/07), 963 So.2d 419. In State v. Skipper, 04-2137 (La.
6/29/05), 906 So.2d 399, the supreme court held that La.R.S. 40:982 should be treated
as a sentencing enhancement provision and should not be set forth in the charging
instrument. However, Defendant failed to file a Motion to Quash or to
contemporaneously object to the charging instrument on this basis; thus, this issue is
precluded from review on appeal. See State v. Ruiz, 06-1755 (La. 4/11/07), 955 So.2d
81.
Excessive Sentence
docket number 08-508.
2 In her sole assignment of error, Defendant argues that the sentence for
possession of methadone is excessive. 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 [p.5] (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 [p. 3] (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, 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.
To decide whether a sentence shocks the sense of justice or makes no
meaningful contribution to acceptable penal goals, this court has held:
[An] 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.
3 In her brief to this court, Defendant complains that at sentencing, the trial court
discussed the economic harm in connection with one dealing drugs despite the fact
that she was found in possession of three methadone pills. Defendant maintains that
the record does not support a finding that she was dealing but that in light of her
admitted substance abuse problem, the quantity suggests that the pills were for
personal use. Defendant, however, did not state this specific ground in her Motion
to Reconsider Sentence, and pursuant to La.Code Crim.P. art. 881.1, she is precluded
from urging it for the first time on appeal. Accordingly, Defendant’s allegation
regarding the court’s consideration of alleged drug dealing is not properly before this
court and will not be considered herein. See State v. Grogan, 00-1800 (La.App. 3
Cir.
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DO NOT PUBLISH
STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
08-510
STATE OF LOUISIANA
VERSUS
JESSICA D. BRISTER
********** APPEAL FROM THE THIRTIETH JUDICIAL DISTRICT COURT PARISH OF VERNON, NO. 72,070 HONORABLE LESTER KEES, DISTRICT JUDGE
**********
J. DAVID PAINTER JUDGE
********** Court composed of Jimmie C. Peters, Elizabeth A. Pickett, and J. David Painter, Judges.
AFFIRMED.
Paula C. Marx P.O. Box 80006 Lafayette, LA 70598 Counsel for Defendant-Appellant: Jessica D. Brister
Terry W. Lambright Assistant District Attorney P.O. Box 1188 Leesville, LA 71446 Counsel for Appellee: State of Louisiana PAINTER, Judge
Defendant, Jessica M. Brister, appeals as excessive the sentence imposed in
connection with her plea of guilty to possession of methadone and simple possession
of marijuana.
FACTS
On November 28, 2006, deputies from the Vernon Parish Sheriff’s Office
responded to a call at 215 Goodman Road in Leesville and spoke to Courtney Brister,
Defendant’s daughter. Miss Brister advised that she had been slapped by Defendant,
causing bruising on her face. Defendant was arrested for causing property damage.
After Defendant granted permission for deputies to search the house, Defendant’s
daughter informed the deputies that there was marijuana in the dog house and drugs
in the car. Officers found a zip-lock bag of marijuana in the dog house and a metal
container containing pills, some of which were identified as methadone, in the car.
On April 17, 2007, Defendant was charged by bill of information with
possession of methadone, a second subsequent offense, a violation of La.R.S. 40:982
and 40:967(C), and with possession of marijuana with intent to distribute, a second
subsequent offense, a violation of La.R.S. 40:982 and 40:966(A). On December 5,
2007, Defendant entered a plea of guilty to possession of methadone and to the
reduced charge of simple possession of marijuana. In exchange for her plea, the State
agreed not to seek any enhancement of the penalties.
Defendant was sentenced to serve three years at hard labor for possession of
methadone and six months in the parish jail for possession of marijuana. She was
given credit for time served on each sentence, and the sentences were ordered to run
concurrently to each other and to the sentence imposed in docket number 72,465.1
1 Defendant also entered a plea of guilty to theft over $300.00 but less than $500.00 in docket number 72,465. An appeal involving the sentence imposed for that charge is before this court under
1 A Motion to Reconsider Sentence was filed on February 27, 2008, in which
Defendant argued that her sentences were excessive and a manifest abuse of
discretion. She also asserted that the trial court failed to adequately consider
applicable mitigating circumstances in determining the appropriate sentences to be
imposed. The motion was summarily denied the following day. Defendant is now
before this court on appeal asserting that her sentence for possession of methadone
is excessive. For the following reasons, we affirm.
DISCUSSION
Error Patent
In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for
errors patent on the face of the record. After reviewing the record, we find there is
one error patent.
The bill of information erroneously stated that Defendant was a second
offender pursuant to the provisions set forth in La.R.S. 40:982. See State v. Edwards,
06-850 (La.App. 3 Cir. 6/13/07), 963 So.2d 419. In State v. Skipper, 04-2137 (La.
6/29/05), 906 So.2d 399, the supreme court held that La.R.S. 40:982 should be treated
as a sentencing enhancement provision and should not be set forth in the charging
instrument. However, Defendant failed to file a Motion to Quash or to
contemporaneously object to the charging instrument on this basis; thus, this issue is
precluded from review on appeal. See State v. Ruiz, 06-1755 (La. 4/11/07), 955 So.2d
81.
Excessive Sentence
docket number 08-508.
2 In her sole assignment of error, Defendant argues that the sentence for
possession of methadone is excessive. 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 [p.5] (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 [p. 3] (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, 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.
To decide whether a sentence shocks the sense of justice or makes no
meaningful contribution to acceptable penal goals, this court has held:
[An] 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.
3 In her brief to this court, Defendant complains that at sentencing, the trial court
discussed the economic harm in connection with one dealing drugs despite the fact
that she was found in possession of three methadone pills. Defendant maintains that
the record does not support a finding that she was dealing but that in light of her
admitted substance abuse problem, the quantity suggests that the pills were for
personal use. Defendant, however, did not state this specific ground in her Motion
to Reconsider Sentence, and pursuant to La.Code Crim.P. art. 881.1, she is precluded
from urging it for the first time on appeal. Accordingly, Defendant’s allegation
regarding the court’s consideration of alleged drug dealing is not properly before this
court and will not be considered herein. See State v. Grogan, 00-1800 (La.App. 3
Cir. 5/2/01), 786 So.2d 862.
The penalty for possession of methadone is not more than five years, with or
without hard labor, and a fine of not more than $5,000.00. La.R.S. 40:967(C)(2).
Defendant’s three year sentence was sixty percent of the maximum possible sentence,
and she was not fined. Further, Defendant received a significant benefit from her plea
agreement. Prior to her guilty plea, Defendant faced a felony charge of possession
of marijuana with intent to distribute, which carries a penalty of five to thirty years
at hard labor and a fine of not more than $50,000.00. La.R.S. 40:966(B)(3).
Defendant was allowed to plea guilty to the reduced charge of possession of
marijuana, a misdemeanor, and received only six months in the parish jail to run
concurrently with the sentence for possession of methadone and the sentence for theft
over $300.00, but less than $500.00, in docket number 72,465. Additionally,
Defendant was originally charged as a second offender for both offenses.
Convictions as a second offender would have resulted in a substantially harsher
sentence than that which she received. Pursuant to La.R.S. 40:982(A), a person
4 convicted of a second or subsequent offense “. . . shall be sentenced to a term of
imprisonment that is twice that otherwise authorized or to payment of a fine that is
twice that otherwise authorized, or both.” Defendant was sentenced for the instant
conviction and the theft conviction in docket number 72,465 at the same time. At
sentencing, the evidence considered by the trial court included a letter written by
Defendant to the court, a certificate of baptism, documents from the office of
community service, and a certificate of participation in a step program. After
reviewing the facts of both offenses and the plea agreement between Defendant and
the State, the trial court noted that there were no grounds that would tend to excuse
or justify Defendant’s conduct, that she had a history of alcohol and drug abuse, and
that she was a second felony offender.
Considering the fact that Defendant did not receive a near maximum sentence
and in light of the benefit received from her plea agreement, the trial court did not
abuse its sentencing discretion. Additionally, Defendant’s sentence is in line with
those imposed on similarly-situated defendants. See State v. Williams, 07-490
(La.App. 3 Cir. 10/31/07), 969 So.2d 744; State v. Morton, 05-137 (La.App. 5 Cir.
7/26/05), 910 So.2d 973. The record indicates that the trial court complied with the
requirements of La.Code Crim.P. art. 894.1. Accordingly, Defendant’s sentence is
CONCLUSION
For these reasons, the sentence imposed on Defendant for possession of
methadone is affirmed.