Judgment rendered April 9, 2025. Application for rehearing may be filed within the delay allowed by Art. 922, La. C. Cr. P.
No. 56,272-KA
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
STATE OF LOUISIANA Appellee
versus
KEVIN LENARD THOMPSON Appellant
Appealed from the Fifth Judicial District Court for the Parish of West Carroll, Louisiana Trial Court No. 2023-F090
Honorable Will Barham, Judge
LOUISIANA APPELLATE PROJECT Counsel for Appellant By: Peggy J. Sullivan
PENNY W. DOUCIERE Counsel for Appellee District Attorney
MOLLY M. CLEMENT Assistant District Attorney
Before COX, THOMPSON, and ELLENDER, JJ. COX, J.
This criminal appeal arises from the Fifth Judicial District Court,
West Carroll Parish. Defendant, Kevin Lenard Thompson (“Thompson”),
was convicted of two counts of possession of a Schedule II CDS (less than
28 grams), in violation of La. R.S. 40:967(C), and one count of possession in
a drug free zone, in violation of La. R.S. 40:981.3(A)(1).
Thomspon was sentenced to 10 years at hard labor without benefit of
parole, probation, or suspension of sentence, each for counts one and two.
He was further sentenced to 7 ½ years at hard labor without benefits and a
$5,000 fine, for count three; each sentence was to be served consecutively.
For the following reasons, Thompson’s convictions are affirmed; however,
his sentences are vacated and remanded for resentencing.
FACTS
Surveillance video from Corner Market Nursery in Oak Grove,
Louisiana revealed that on June 16, 2023, a man, who was later identified as
Thompson, was seen entering the parking lot of the store and parking his
vehicle. Thompson was then seen exiting the vehicle, dropping a bag on the
ground, and after less than a minute, returning to his truck and leaving. A
store employee, Summer Wolf (“Wolf”), spotted the bag and gave it to the
store’s owner, Breanne Bancroft (“Bancroft”), because she believed the bag
contained narcotics. Bancroft then contacted law enforcement.
The bag and a copy of the store’s surveillance video were provided to
Officer Malcolm Miles (“Officer Miles”), who then identified Thompson in
the video. The bag was later discovered to have contained both cocaine and
hydrocodone. Officer Miles also determined that the bag was located in the vicinity of Oak Grove High School, a drug free zone. Thompson was
arrested the following day.
On July 20, 2023, Thompson was charged by bill of information with
three counts of possession with the intent to distribute a Schedule II CDS
and one count of possession in a drug free zone. On February 29, 2024, the
State filed its notice of intent to use Thompson’s prior conviction from
September 2019, where he was charged with eight counts of distribution of
Schedule II CDS under La. R.S. 40:982, for sentence enhancement. The
State later filed an amended bill of information, changing Thompson’s first
three counts to possession of a Schedule II CDS greater than two grams but
less than 28 grams.
Jury trial commenced March 4, 2024, wherein the following
testimony was presented:
First, Bancroft testified she was the owner of Corner Market Nursery,
an animal and feed store in Oak Grove, Louisiana. Bancroft explained that
on June 16, 2023, her employee, Wolf, brought her a bag found in the store
parking lot. Bancroft stated that when she looked in the bag, she saw what
appeared to be pills, and a “white substance [that] looked like drugs,” so she
reviewed the store surveillance to see where Wolf found the bag and then
contacted the police. Bancroft testified that her store has seven surveillance
cameras, with three cameras directed at the southeast, southwest, and
northwest areas to cover the entire span of the parking lot.
Bancroft then identified the surveillance video from June 16, 2023,
and identified the various angles around the store; the video was then played
for the jury. In viewing the video, Bancroft testified that she did not know
2 the man seen on the video, and at no point did the man ever come into the
store, let alone did he purchase anything.
Next, Wolf testified that she was employed by Bancroft at Corner
Market Nursery as a multi-use employee, responsible for loading, secretarial
duties, and filling in as a cashier. Wolf stated that on June 16, 2023, she was
helping a customer load items into their car when she accidentally kicked a
bag in the parking lot. Wolf stated that when she inspected the bag, it was
filled with what appeared to be drugs in sandwich bags. Wolf explained that
she immediately took the bag to Bancroft. She then identified pictures of the
contents of the bag she found. On cross-examination, Wolf clarified that
when she found the bag, there were no other items in the area, and that
inside the bag were smaller bags with what she believed were drugs.
Officer Miles, of the Oak Grove Police Department, then testified that
in addition to his duties as an officer, he also serves as a school resource
officer. He stated that on June 16, 2023, he received a complaint that a
suspicious person left a bag containing drugs in the parking lot of Corner
Market Nursery. Officer Miles testified that when he arrived at the store,
Bancroft provided him with the bag that was discovered in the parking lot
and the store’s surveillance video. Officer Miles stated that in viewing the
video, he was able to identify the man in the video as well as the license
plate on the truck the man was seen driving. He explained that after running
the license plates, registration confirmed that Thompson was the owner of
the vehicle.
Officer Miles identified Thompson in open court and on the
surveillance video. Officer Miles confirmed that he could see Thompson
dropping a bag in the parking lot. He then reviewed pictures taken of the 3 contents of the bag and stated that after testing, the items found in the bag
were confirmed to be cocaine and hydrocodone pills. Officer Miles then
testified that both a measurement from Google Maps and his personal use of
a measuring wheel1 confirmed that Corner Market Nursery, where the drugs
were found, was located within 1,247 feet of Oak Grove High School, which
is a drug free zone. Officer Miles explained this was significant because
contraband cannot be within 2,000 feet of a drug free zone, like a school.
On cross-examination, Officer Miles testified that he did not test the
bag or its contents for fingerprints because the surveillance video showed
who had the bag. He further stated that he was unaware if anyone else was
in the vehicle with Thompson on the day in question and acknowledged
Thompson has a twin brother. Officer Miles admitted that Thompson did
not return to the store to retrieve the bag, and when Thompson was arrested,
no drugs were found on his person. On redirect, Officer Miles explained
that he had known Thompson and his twin brother his entire life and noted
that Thompson and his twin are not identical.
Before the close of testimony, the State made an oral motion to amend
the bill of information to correct the Schedule II CDS for count two from
methamphetamine to cocaine. After the trial court denied the motion, the
State dismissed count three. The jury unanimously found Thompson guilty
as charged on the remaining three charges: namely, two counts of possession
of a Schedule II CDS (less than 28 grams), in violation of La. R.S.
40:967(C), and one count of possession in a drug free zone, in violation of
La. R.S. 40:981.3(A)(1). The State initially filed a petition for habitual
1 Officer Miles specified that the distance from the measuring wheel was 1,322 feet from Oak Grove High School to Corner Market Nursery. 4 offender sentencing; however, the petition was later dismissed and the State
waived its right to pursue habitual offender charges.
Sentencing was held on May 1, 2024, wherein the trial court
acknowledged that Thompson’s sentence was subject to La. R.S. 40:982 for
a subsequent or second offense. The trial court then noted that it extensively
reviewed the art. 894.1 factors and reviewed Thompson’s PSI, noting his
history of drug convictions, and failure to adhere to the requirements of his
probation and parole. Given this, the trial court found that Thompson was in
need of correctional treatment or a custodial environment, and expressed that
Thompson, in light of health concerns regarding his kidneys, be given all
measures that can effectively be provided to him.
The trial court, however, also expressed its sentiments that a lesser
sentence, given Thompson’s past, would deprecate the seriousness of the
offenses committed. The trial court then sentenced Thompson to 10 years at
hard labor without benefit of parole, probation, or suspension of sentence
each for both counts one and two, and 7 ½ years at hard labor without
benefits and a $5,000 fine, for count three, with each sentence to be served
consecutively. Thompson subsequently filed a motion for reconsideration
on May 14, 2024, which was denied. This appeal followed.
DISCUSSION
Assignment of Error 1
By his first assignment of error, Thompson argues that the State failed
to prove beyond a reasonable doubt that he was guilty of two counts of
possession of a Schedule II CDS, or that he possessed drugs in a drug free
zone.
5 Specifically, Thompson argues that the State was required to show
that he knowingly or intentionally possessed a Schedule II CDS; however,
the evidence presented, namely the video surveillance from Corner Market
Nursery, was insufficient to show Thompson was even aware he was in
possession of drugs. Thompson argues that the video only shows a bag
dropping as he exited his truck, and at no point is he seen attempting to pick
the bag up or returning at any point to look for or retrieve the bag.
Thompson maintains that his actions are consistent with someone who is
unaware drugs are in their possession. Moreover, Thompson argues that the
State failed to identify that the bag was “linked” to him through either DNA
or fingerprint analysis.
The standard of appellate review for a sufficiency of the evidence
claim is whether, after viewing the evidence in the light most favorable to
the prosecution, any rational trier of fact could have found the essential
elements of the crime proven beyond a reasonable doubt. Jackson v.
Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L.Ed. 2d 560 (1979);
State v. Tate, 01-1658 (La. 5/20/03), 851 So. 2d 921, cert. denied, 541 U.S.
905, 124 S. Ct. 1604, 158 L.Ed. 2d 248 (2004); State v. Steines, 51,698 (La.
App. 2 Cir. 11/15/17), 245 So. 3d 224, writ denied, 17-2174 (La. 10/8/18),
253 So. 3d 797. This standard, now codified in La. C. Cr. P. art. 821, does
not afford appellate courts with a means to substitute its own appreciation of
the evidence for that of the fact finder. Steines, supra.
The Jackson standard is applicable to cases involving both direct and
circumstantial evidence. An appellate court reviewing the sufficiency of the
evidence in such cases must resolve any conflict in the direct evidence by
viewing that evidence in the light most favorable to the prosecution. When 6 the direct evidence is thus viewed, the facts established by the direct
evidence must be sufficient for a rational trier of fact to conclude beyond a
reasonable doubt that the defendant was guilty of every essential element of
the crime. State v. Sutton, 436 So. 2d 471 (La. 1983).
Circumstantial evidence consists of proof of collateral facts and
circumstances from which the existence of the main fact may be inferred
according to reason and common experience. State v. Broome, 49,004 (La.
App. 2 Cir. 4/9/14), 136 So. 3d 979, writ denied, 14-0990 (La. 1/16/15), 157
So. 3d 1127. If a case rests essentially upon circumstantial evidence, that
evidence must exclude every reasonable hypothesis of innocence. La. R.S.
15:438; Broome, supra; State v. Gipson, 45,121 (La. App. 2 Cir. 4/14/10),
34 So. 3d 1090, writ denied, 10-1019 (La. 11/24/10), 50 So. 3d 827.
Appellate courts neither assess the credibility of witnesses nor
reweigh evidence. State v. Smith, 94-3116 (La. 10/16/95), 661 So. 2d 442.
A reviewing court affords great deference to the trier of fact’s decision to
accept or reject the testimony of a witness in whole or in part. State v.
Jackson, 53,497 (La. App. 2 Cir. 5/20/20), 296 So. 3d 1156. Where there is
conflicting testimony concerning factual matters, the resolution of which
depends upon a determination of the credibility of the witnesses, the matter
is one of the weight of the evidence, not its sufficiency. State v. Allen,
36,180 (La. App. 2 Cir. 9/18/02), 828 So. 2d 622, writ denied, 02-2997 (La.
6/27/03), 847 So. 2d 1255.
In the absence of internal contradiction or irreconcilable conflict with
physical evidence, one witness’s testimony, if believed by the trier of fact, is
sufficient support for a requisite factual conclusion. State v. Elkins, 48,972
(La. App. 2 Cir. 4/9/14), 138 So. 3d 769, writ denied, 14-0992 (La. 12/8/14), 7 153 So. 3d 438; State v. Wiltcher, 41,981 (La. App. 2 Cir. 5/9/07), 956 So.
2d 769.
In the present case, Thompson was convicted, in part, of two counts of
possession of cocaine and hydrocodone, Schedule II CDS drugs, in violation
of La. R.S. 40:967(C).
It is unlawful for any person to knowingly or intentionally possess a
Schedule II controlled dangerous substance unless it was obtained directly or
pursuant to a valid prescription or order from a practitioner, as provided in
La. R.S. 40:978, while acting in the course of his professional practice, or
except as otherwise authorized by the statute. La. R.S. 40:967(C). To
convict a defendant of possession of a CDS, the State must prove that the
defendant knowingly possessed an illegal drug. Broome, supra; State v.
Murphy, 09-432 (La. App. 5 Cir. 11/24/09), 28 So. 3d 496, writ denied, 10-
0016 (La. 6/25/10), 38 So. 3d 334.
Possession may be established by showing that the defendant
exercised either actual or constructive possession of the substance. “Actual
possession” means having an object in one’s possession or on one’s person
in such a way as to have direct physical contact with and control of the
object. Broome, supra. The State need not prove the defendant actually
possessed the drugs, as evidence of constructive possession is sufficient.
State v. Simon, 51,778 (La. App. 2 Cir. 1/10/18), 245 So. 3d 1149, writ
denied, 18-0283 (La. 11/5/18), 255 So. 3d 1052.
Constructive possession is established by evidence that the drugs were
within the defendant’s dominion and control and that the defendant had
knowledge of their presence. State v. Simon, supra. Guilty knowledge is an
essential element of possession of contraband and can be inferred from the 8 circumstances. State v. Toups, 01-1875 (La. 10/15/02), 833 So. 2d 910;
State v. Simon, supra. A defendant’s mere presence in an area where drugs
are located or association with one possessing drugs does not constitute
constructive possession. State v. Brisban, 00-3437 (La. 2/26/02), 809 So. 2d
923. However, proximity to the drug, or association with the possessor, may
establish a prima facie case of possession when colored by other evidence.
State v. Richardson, 18-717 (La. App. 5 Cir. 9/4/19), 279 So. 3d 501, writ
denied, 19-01722 (La. 7/2/20), 297 So. 3d 764.
Courts use several factors to determine whether a defendant exercised
dominion and control to constitute constructive possession, including: (1)
the defendant’s knowledge that drugs were in the area, (2) the defendant’s
relationship with other persons found in actual possession, (3) the
defendant’s access to the area where the drugs were found, (4) evidence of
drug paraphernalia or of recent drug use, and (5) the defendant’s physical
proximity to the drugs. State v. Simon, supra. Further, a defendant may be
found to have been in joint possession even if the drug is in the physical
custody of a companion if he willfully and knowingly shares with the other
the right to control of it. State v. Moore, 48,492 (La. App. 2 Cir. 11/20/13),
128 So. 3d 608, 612, writ denied, 13-3003 (La. 5/3014), 140 So. 3d 1175.
On appeal, Thompson argues that the State failed to sufficiently show
he knowingly possessed drugs. He maintains that his actions, the failure to
either pick the bag up, return to retrieve the bag, or look for the bag after he
left the store, were consistent with someone who was unaware drugs were in
their possession. Moreover, Thompson argues that the State failed to link
the bag of drugs to him either through DNA or fingerprint evidence or show
that he even knew the drugs were present in the vehicle. The State, 9 however, presented the narrative that Thompson’s actions were consistent
with someone who made a “drug drop.” We agree.
Upon review of the surveillance video, it can be seen that the parking
lot was free of any debris or objects prior to Thompson’s arrival. It is only
after Thompson exits his vehicle, briefly walks toward the store, and then
leaves, is the small bag-like object seen in the parking lot. We note that
during this time, no other person or vehicle goes through the area except for
Thompson. The bag did not manifest itself from nothing; Thompson either
dropped the bag, or it fell from his vehicle. Regardless, it is evident the
drugs were in Thompson’s vehicle, located on the driver’s side, and were,
therefore, within his control and dominion.
Moreover, Officer Miles identified Thompson from the video,
established Thompson was the owner of the vehicle, and no other person
was ever identified to be in the vehicle during that time. Therefore, after a
thorough examination of the record and viewing the evidence in the light
most favorable to the prosecution, we find that there was sufficient evidence
for any rational trier of fact to convict Thompson of all three offenses.
Assignments of Error 2 & 3
By his final assignments of error, Thompson argues that the trial court
erred in imposing maximum sentences for each count, and ordering that each
sentence be served consecutively and without benefit of parole, probation, or
suspension of sentence. Thompson further argues that the trial court erred in
denying his motion to reconsider sentence because of the undue hardship
that would be placed on Thompson’s health and his family, and concurrent
sentences would have been more appropriate because the events in this case
arose from one transaction. 10 Appellate review of sentences for excessiveness is a two-prong
inquiry. Under the first prong, the record must show that the trial court
considered the factors in La. C. Cr. P. art. 894.1. The primary goal of La. C.
Cr. P. art. 894.1 is for the court to articulate the factual basis for the sentence
imposed, and not simply mechanical compliance with its provisions.
However, if the record reflects that the trial judge adequately considered the
guidelines of the article, then he is not required to list every aggravating or
mitigating circumstance. State v. Smith, 433 So. 2d 688 (La. 1983); State v.
DeBerry, 50,501 (La. App. 2 Cir. 4/13/16), 194 So. 3d 657, writ denied, 16-
0959 (La. 5/1/17), 219 So. 3d 332.
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. C. Cr. P. art. 894.1. State v. Lanclos, 419 So. 2d 475
(La. 1982); State v. DeBerry, supra. In sentencing, the important elements
which should be considered are the defendant’s personal history (age,
familial ties, marital status, health, employment record), prior criminal
record, seriousness of the offense, and the likelihood of rehabilitation. State
v. Jones, 398 So. 2d 1049 (La. 1981); State v. DeBerry, supra. There is no
requirement that specific matters be given any particular weight during
sentencing. State v. DeBerry, supra; State v. Shumaker, 41,547 (La. App. 2
Cir. 12/13/06), 945 So. 2d 277, writ denied, 07-0144 (La. 9/28/07), 964 So.
2d 351.
Next, under the second prong of the analysis, the court must
determine whether the sentence is constitutionally excessive. A sentence
violates La. Const. art. I, § 20, if it is grossly out of proportion to the
seriousness of the offense or nothing more than a purposeless and needless 11 infliction of pain and suffering. State v. Dorthey, 623 So. 2d 1276 (La.
1993); State v. Mandigo, 48,801 (La. App. 2 Cir. 2/26/14), 136 So. 3d 292,
writ denied, 14-0630 (La. 10/24/14), 151 So. 3d 600. A sentence is
considered grossly disproportionate if, when the crime and punishment are
viewed in light of the harm done to society, it shocks the sense of justice.
State v. Weaver, 01-0467 (La. 1/15/02), 805 So. 2d 166; State v. Hollins,
50,069 (La. App. 2 Cir. 8/12/15), 174 So. 3d 710.
Moreover, when determining whether a defendant’s sentence is
excessive, a reviewing court should compare the defendant’s punishment
with the sentences imposed for similar crimes by the same court or other
courts. State v. Parks, 54,888 (La. App. 2 Cir. 12/14/22), 352 So. 3d 166.
A trial court maintains wide discretion to sentence within the statutory
limits. Absent a showing of manifest abuse of such discretion, a sentence
will not be set aside as excessive. Upon review, an appellate court does not
determine whether another sentence may have been more appropriate, but
whether the trial court abused its discretion. State v. Weaver, supra; State v.
Davis, 50,149 (La. App. 2 Cir. 11/18/15), 181 So. 3d 200.
In the present case, Thompson acknowledges the State waived its
right to pursue habitual offender charges, and that it intended to enhance his
sentence pursuant to La. R.S. 40:982. In doing so, the State relied upon
Thompson’s previous conviction from September 2019, in which he pled
guilty to “distribution of Schedule I CDS, distribution of Schedule II CDS,
four counts, possession with intent to distribute a Schedule I CDS,
possession with intent to distribute a Schedule II CDS, two counts. . . and
was sentenced to eight years at hard labor on each count.”
12 Thompson was convicted of two counts of possession of a Schedule II
CDS (less than 28 grams), in violation of La. R.S. 40:967(C)(2), and one
count of possession of a Schedule II CDS in a drug free zone, in violation of
La. R.S. 40:981.3(A)(1). Thompson was ultimately sentenced to 10 years at
hard labor without benefit of parole, probation, or suspension of sentence,
for counts one and two. Thompson was further sentenced to 7 ½ years at
hard labor without benefits and a $5,000 fine, for count three, with each
sentence to be served consecutively.
Possession of a Schedule II CDS, pursuant to La. R.S. 40:967(C), is
punishable with or without hard labor for not more than five years, and the
defendant may be ordered to pay a fine of not more than $5,000. Further,
La. R.S. 40:982(A) provides that “any person convicted of any offense under
this part, if the offense is a 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 authorized or both.” Therefore, under this statute, a
second conviction of possession of a Schedule II CDS is punishable at ten
years with or without hard labor, and, in addition, the trial court may order a
fine of not more than $10,000. Moreover, La. R.S. 40:981.3 provides:
D. (1) Whoever violates a provision of this Section shall be punished by the imposition of the maximum fine and be imprisoned for not more than one and one-half times the longest term of imprisonment authorized by the applicable provisions of R.S. 40:966 through 970.
(2) A sentence imposed for a violation of the provisions of this Section shall not be subject to parole, probation, or suspension of sentence to the extent that the minimum sentence for a violation of a felony provision of R.S. 40:966 through 970 is not subject to parole, probation, or suspension of sentence.
Although Thompson received the maximum sentences for each
offense, there is no question that the sentences fell within the statutory range 13 for each offense. In this case, the trial court reviewed Thomspon’s PSI and
the sentencing guidelines set forth in La. C. Cr. P. art. 894.1, and noted that
among other offenses, Thompson previously pled guilty to possession of
Schedule II CDS with intent to distribute in 2011, and pled guilty again to
one count of distribution of a Schedule I CDS, one count of possession with
intent to distribute a Schedule I CDS, two counts of possession with intent to
distribute a Schedule II CDs, and four counts of possession of a Schedule II
CDS.
The trial court reviewed Thompson’s personal history, read the
statement Thompson’s aunt submitted on his behalf, and the court even
acknowledged that Thompson had been on dialysis since he was 22.
However, the court found that there was an undue risk Thompson would
commit another crime, and was in need of correctional treatment, and a
lesser sentence, given his criminal history, would deprecate the seriousness
of these offenses. Given this and the thoroughness of the trial court’s review
of the art. 894.1 factors, we cannot say that the trial court erred in imposing
the 10 year sentences for counts one and two, and the 7 ½ years for count
three.
However, Thomspon also argues that the trial court erred in imposing
his sentences to be served consecutively rather than concurrently, and
without benefits.
First, with respect to whether multiple sentences should be served
concurrently or consecutively, La. C. Cr. P. art. 883 provides in part:
If the defendant is convicted of two or more offenses based on the same act or transaction, or constituting parts of a common scheme or plan, the terms of imprisonment shall be served concurrently unless the court expressly directs that some or all be served consecutively. Other sentences of imprisonment shall 14 be served consecutively unless the court expressly directs that some or all of them be served concurrently.
Trial courts have limited discretion to order that multiple sentences can be
served concurrently or consecutively. State v. Allen, 52,318 (La. App. 2 Cir.
11/14/18), 260 So. 3d 703; State v. Nixon, 51,319 (La. App. 2 Cir. 5/19/17),
222 So. 3d 123, writ denied, 17-0966 (La. 4/27/18), 239 So. 3d 836.
Concurrent sentences that arise from a single course of conduct are not
mandatory; likewise, consecutive sentences under those circumstances are
not necessarily excessive. State v. Nixon, supra; State v. Harris, 52,663 (La.
App. 2 Cir. 8/14/19), 277 So. 3d 912.
However, a judgment directing that sentences arising from a single
course of conduct be served consecutively requires particular justification
from the evidence or record. Id. Accordingly, when consecutive sentences
are imposed, the court shall state the factors considered and its reasons for
the consecutive terms. Among the factors to be considered are: (1) the
defendant’s criminal history; (2) the gravity or dangerousness of the offense;
(3) the viciousness of the crimes; (4) the harm done to the victims; (5)
whether the defendant constitutes an unusual risk of danger to the public;
and (6) the potential for the defendant’s rehabilitation. However, the failure
to articulate specific reasons for consecutive sentences does not require
remand if the record provides an adequate factual basis to support
consecutive sentences. Id.
The trial court in this case thoroughly reviewed the art. 894.1 factors
in sentencing Thompson and carefully reviewed Thompson’s PSI and
criminal history. However, in ordering that Thompson’s sentences should
be served consecutively, the trial court provided:
15 Each and every one of these sentences due to the nature of these offenses, the places-the place that they happened, the defendant’s repeated offenses in this particular case, the Court does feel that it is most appropriate even though. . . they did all occur at the same time, I think that they are separate and distinct in a number of ways, and I believe that consecutive sentences are called for and appropriate in this particular case.
The trial court only briefly acknowledges that Thompson’s activities all
formed part of a single course of conduct and determined that “they are
separate and distinct in a number of ways,” but provides no further
explanation of the distinct nature of Thompson’s actions. In this Court’s
view, Thompson’s actions are not so separate and distinct as to justify
consecutive sentences, and the trial court did not adequately address the fact
that Thompson’s activities all formed part of a single scheme or plan.
Thompson’s three convictions were not crimes of violence and arose
out of a single course of conduct within a very short period of time at one
location: Thompson dropped a bag of drugs in the parking lot of Corner
Market Nursery, which was located in the vicinity of a drug free zone. This
Court is of the opinion that while Thompson has a criminal history of
possession, this does not change the single nature of the event, which
reflects that the sentences should have been ordered to run concurrently
rather than consecutively. Thus, we find that the presumption in favor of
concurrent sentences applies in this case.
Moreover, in this case, in sentencing Thompson, the trial court
specified that each sentence would be served without benefit of probation,
parole, or suspension of sentence. While Thompson did not raise the issue
in his motion to reconsider sentence, and no contemporaneous objection was
16 made to the sentence, this Court may review the issue as error patent.2 A
conviction under La. R.S. 40:967(C)(2) provides that a defendant “shall be
imprisoned, with or without hard labor, for not less than one year nor more
than five years and, in addition, may be sentenced to pay a fine of not more
than five thousand dollars.” La. R.S. 40:981.3(A)(1) further provides that:
D. (1) Whoever violates a provision of this Section shall be punished by the imposition of the maximum fine and be imprisoned for not more than one and one-half times the longest term of imprisonment authorized by the applicable provisions of R.S. 40:966 through 970.
(2) A sentence imposed for a violation of the provisions of this Section shall not be subject to parole, probation, or suspension of sentence to the extent that the minimum sentence for a violation of a felony provision of R.S. 40:966 through 970 is not subject to parole, probation, or suspension of sentence.
Further, La. R.S. 40:982 provides:
Any person convicted of any offense under this Part, if the offense is 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. If the conviction is for an offense punishable under R.S. 40:966(B), 967(B), 968(B), or 969(B), and if it is the offender’s second or subsequent offense, the court may impose, in addition to any term of imprisonment and fine, twice the special parole term otherwise authorized.
Although the trial court imposed each sentence to be served without
benefits, the provisions of the applicable statutes do not support such an
imposition, and Thompson was not adjudicated as a habitual offender under
La. R.S. 15:529.1, to justify the restriction of benefits. Therefore, we find
that Thompson’s sentences should not have been imposed without benefits,
except to the portion allowable by law.
2 See, State v. Green, 93-1432 (La. App. 4 Cir. 4/17/96), 673 So.2d 262. 17 La. C. Cr. P. art. 881.4 states that if an appellate court finds that a
sentence must be set aside on any ground, the court shall remand for
resentencing by the trial court. The appellate court may give direction to the
trial court concerning the proper sentence to impose. Id. Accordingly,
Thompson’s sentence is vacated and set aside for the reasons stated
hereinabove and remanded to the trial court for resentencing in accordance
with this opinion.
CONCLUSION
For the above reasons, Thompson’s convictions are affirmed. The
sentences are vacated, and this case is remanded to the trial court with
instructions.
CONVICTIONS AFFIRMED; SENTENCES VACATED AND
REMANDED FOR RESENTENCING WITH INSTRUCTIONS.