STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
17-457
STATE OF LOUISIANA
VERSUS
RICKY ALLEN REXRODE
**********
APPEAL FROM THE THIRTIETH JUDICIAL DISTRICT COURT PARISH OF VERNON, NO. 89832/89833 HONORABLE SCOTT WESTERCHIL, DISTRICT JUDGE
ULYSSES GENE THIBODEAUX CHIEF JUDGE
Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, and Shannon J. Gremillion, Judges.
AFFIRMED.
Asa Allen Skinner District Attorney - 30th Judicial District Terry Wayne Lambright First Assistant District Attorney Drew W. Mason Assistant District Attorney P. O. Box 1188 Leesville, LA 71496-1188 Telephone: (337) 239-2008 COUNSEL FOR: Plaintiff/Appellee - State of Louisiana
Chad M. Ikerd Louisiana Appellate Project P. O. Box 2125 Lafayette, LA 70502 Telephone: (225) 806-2930 COUNSEL FOR: Defendant/Appellant - Ricky Allen Rexrode THIBODEAUX, Chief Judge.
Defendant Ricky Allen Rexrode is a second felony offender who pled
guilty to the charge of possession of CDS II (methamphetamine) and to the charge
of possession of drug paraphernalia. As part of a plea bargain, the State dismissed
one count of possession of CDS II (hydrocodone), one count of possession of a
legend drug without a prescription (tizanidine hydrochloride), and one count of
speeding (35 mph in a 25 mph zone). Mr. Rexrode was sentenced to three years
with credit for time served. His motion to reconsider his sentence alleging
excessiveness and abuse of discretion was denied. He now asserts excessiveness
of his sentence on appeal. We affirm.
I.
ISSUES
We shall consider whether Defendant’s three-year sentence for
possession of CDS II (methamphetamine) is excessive.
II.
FACTS AND PROCEDURAL HISTORY
Mr. Rexrode was stopped for speeding. Mr. Rexrode was driving 36
mph in a 25 mph zone. He granted permission to search his vehicle. The
automobile search revealed some pills. A subsequent search of Mr. Rexrode
revealed that he had a crystal substance in his right front pocket. The substance
was later sent to the crime lab and identified as methamphetamine. Additionally,
the officer found a copper and orange smoking device. Mr. Rexrode was charged by two separate bills of information. Trial
court docket number 89832 charged Mr. Rexrode with three felonies: one count of
possession of CDS II (hydrocodone), in violation of La.R.S. 40:967(C)(2); one
count of possession of CDS II (methamphetamine), in violation of La.R.S.
40:967(C)(2); and one count of possession of a legend drug without a prescription
(tizandine hydrochloride), in violation of La.R.S. 40:1060.13. The bill in trial
court docket number 89833 charged Mr. Rexrode with two misdemeanors: one
count of possession of drug paraphernalia, in violation of La.R.S. 40:1023(C), and
one count of speeding (35 mph in a 25 mph zone), in violation of La.R.S. 32:64.
Mr. Rexrode entered a guilty plea to the charge of possession of CDS
II (methamphetamine) and to the charge of possession of drug paraphernalia. The
remaining charges were dismissed pursuant to the plea agreement.
Following a pre-sentence investigation (PSI), Mr. Rexrode was
sentenced to serve three years at hard labor for the possession of CDS II conviction
and fifteen days in the Vernon Parish jail for the possession of drug paraphernalia
conviction, with the sentences to run concurrently. No contemporaneous objection
was made to the sentence.
Mr. Rexrode’s Motion to Reconsider Sentence alleging excessiveness
of sentence and abuse of discretion for failure to consider mitigating circumstances
was denied. Mr. Rexrode now appeals his sentence for possession of CDS II
(methamphetamine). The motion and order for appeal are under both docket
numbers. Mr. Rexrode does not advance any assignment of error regarding the
misdemeanor, which would only be properly challenged under a writ of review
pursuant to La.Code Crim.P. art. 912.1.
2 Mr. Rexrode is a 49 year-old single father of four, and has worked as
a mechanic and dispatcher for a cab company. Mr. Rexrode also cares for his two
parents. He has been on probation five times since 1995 with three out of five
supervision periods terminated unsatisfactorily. The trial court found that Mr.
Rexrode needed correctional treatment or a custodial environment.
III.
STANDARDS OF REVIEW
Sentences within the statutory sentencing range can be reviewed for
constitutional excessiveness. State v. Sepulvado, 367 So.2d 762 (La.1979). 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. Barling, 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01),
779 So.2d 1035, 1042-43 (citing State v. Etienne, 99-192 (La.App. 3 Cir.
10/13/99), 746 So.2d 124, writ denied, 00-165 (La. 6/30/00), 765 So.2d 1067).
IV.
LAW AND DISCUSSION
Mr. Rexrode alleges that his three-year sentence for possession of
CDS II (methamphetamine) is excessive. He argues excessive sentence because
his crime has no real victim as the amount of methamphetamine in his possession
was intended for personal consumption. Mr. Rexrode urges that he is an addict,
but none of his prior convictions were for drug offenses. Mr. Rexrode’s only
violent conviction was for simple battery.
“[Louisiana] Const. art I, § 20, guarantees that, ‘[n]o law shall subject
any person to cruel or unusual punishment.’” Barling, 779 So.2d at 1042-43. “To
3 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.”
Id. at 1042 (citing State v. Campbell, 404 So.2d 1205 (La.1981)).
The relevant question is whether the trial court abused its broad
sentencing discretion, not whether another sentence might have been more
appropriate. Barling, 779 So.2d at 1042-43 (citing 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)). In reviewing the defendant’s sentence, the appellate court should
consider the nature of the crime, the nature and background of the offender, and
the sentences imposed for similar crimes. State v. Lisotta, 98-648 (La.App. 5 Cir.
12/16/98), 726 So.2d 57 (citing State v. Telsee, 425 So.2d 1251 (La.1983)), writ
denied, 99-433 (La. 6/25/99), 745 So.2d 1183. “[T]he appellate court must be
mindful that the trial court is in the best position to consider the aggravating and
mitigating circumstances of each case. . . .” State v. Williams, 02-707 (La.App. 3
Cir. 3/5/03), 839 So.2d 1095, 1100 (citing Cook, 674 So.2d 957).
With regard to sentences for similar crimes, Mr. Rexrode cites State v.
Jason, 03-1565 (La.App. 3 Cir. 6/30/04), 879 So.2d 360, wherein a second felony
offender’s three-year sentence for possession of CDS II (cocaine) was affirmed.
Mr. Rexrode argues he should receive a lesser sentence than the defendant received
in Jason because the Jason defendant had a recent prior conviction for the same
offense, whereas this is Mr. Rexrode’s first felony conviction in nearly thirty years
Free access — add to your briefcase to read the full text and ask questions with AI
STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
17-457
STATE OF LOUISIANA
VERSUS
RICKY ALLEN REXRODE
**********
APPEAL FROM THE THIRTIETH JUDICIAL DISTRICT COURT PARISH OF VERNON, NO. 89832/89833 HONORABLE SCOTT WESTERCHIL, DISTRICT JUDGE
ULYSSES GENE THIBODEAUX CHIEF JUDGE
Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, and Shannon J. Gremillion, Judges.
AFFIRMED.
Asa Allen Skinner District Attorney - 30th Judicial District Terry Wayne Lambright First Assistant District Attorney Drew W. Mason Assistant District Attorney P. O. Box 1188 Leesville, LA 71496-1188 Telephone: (337) 239-2008 COUNSEL FOR: Plaintiff/Appellee - State of Louisiana
Chad M. Ikerd Louisiana Appellate Project P. O. Box 2125 Lafayette, LA 70502 Telephone: (225) 806-2930 COUNSEL FOR: Defendant/Appellant - Ricky Allen Rexrode THIBODEAUX, Chief Judge.
Defendant Ricky Allen Rexrode is a second felony offender who pled
guilty to the charge of possession of CDS II (methamphetamine) and to the charge
of possession of drug paraphernalia. As part of a plea bargain, the State dismissed
one count of possession of CDS II (hydrocodone), one count of possession of a
legend drug without a prescription (tizanidine hydrochloride), and one count of
speeding (35 mph in a 25 mph zone). Mr. Rexrode was sentenced to three years
with credit for time served. His motion to reconsider his sentence alleging
excessiveness and abuse of discretion was denied. He now asserts excessiveness
of his sentence on appeal. We affirm.
I.
ISSUES
We shall consider whether Defendant’s three-year sentence for
possession of CDS II (methamphetamine) is excessive.
II.
FACTS AND PROCEDURAL HISTORY
Mr. Rexrode was stopped for speeding. Mr. Rexrode was driving 36
mph in a 25 mph zone. He granted permission to search his vehicle. The
automobile search revealed some pills. A subsequent search of Mr. Rexrode
revealed that he had a crystal substance in his right front pocket. The substance
was later sent to the crime lab and identified as methamphetamine. Additionally,
the officer found a copper and orange smoking device. Mr. Rexrode was charged by two separate bills of information. Trial
court docket number 89832 charged Mr. Rexrode with three felonies: one count of
possession of CDS II (hydrocodone), in violation of La.R.S. 40:967(C)(2); one
count of possession of CDS II (methamphetamine), in violation of La.R.S.
40:967(C)(2); and one count of possession of a legend drug without a prescription
(tizandine hydrochloride), in violation of La.R.S. 40:1060.13. The bill in trial
court docket number 89833 charged Mr. Rexrode with two misdemeanors: one
count of possession of drug paraphernalia, in violation of La.R.S. 40:1023(C), and
one count of speeding (35 mph in a 25 mph zone), in violation of La.R.S. 32:64.
Mr. Rexrode entered a guilty plea to the charge of possession of CDS
II (methamphetamine) and to the charge of possession of drug paraphernalia. The
remaining charges were dismissed pursuant to the plea agreement.
Following a pre-sentence investigation (PSI), Mr. Rexrode was
sentenced to serve three years at hard labor for the possession of CDS II conviction
and fifteen days in the Vernon Parish jail for the possession of drug paraphernalia
conviction, with the sentences to run concurrently. No contemporaneous objection
was made to the sentence.
Mr. Rexrode’s Motion to Reconsider Sentence alleging excessiveness
of sentence and abuse of discretion for failure to consider mitigating circumstances
was denied. Mr. Rexrode now appeals his sentence for possession of CDS II
(methamphetamine). The motion and order for appeal are under both docket
numbers. Mr. Rexrode does not advance any assignment of error regarding the
misdemeanor, which would only be properly challenged under a writ of review
pursuant to La.Code Crim.P. art. 912.1.
2 Mr. Rexrode is a 49 year-old single father of four, and has worked as
a mechanic and dispatcher for a cab company. Mr. Rexrode also cares for his two
parents. He has been on probation five times since 1995 with three out of five
supervision periods terminated unsatisfactorily. The trial court found that Mr.
Rexrode needed correctional treatment or a custodial environment.
III.
STANDARDS OF REVIEW
Sentences within the statutory sentencing range can be reviewed for
constitutional excessiveness. State v. Sepulvado, 367 So.2d 762 (La.1979). 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. Barling, 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01),
779 So.2d 1035, 1042-43 (citing State v. Etienne, 99-192 (La.App. 3 Cir.
10/13/99), 746 So.2d 124, writ denied, 00-165 (La. 6/30/00), 765 So.2d 1067).
IV.
LAW AND DISCUSSION
Mr. Rexrode alleges that his three-year sentence for possession of
CDS II (methamphetamine) is excessive. He argues excessive sentence because
his crime has no real victim as the amount of methamphetamine in his possession
was intended for personal consumption. Mr. Rexrode urges that he is an addict,
but none of his prior convictions were for drug offenses. Mr. Rexrode’s only
violent conviction was for simple battery.
“[Louisiana] Const. art I, § 20, guarantees that, ‘[n]o law shall subject
any person to cruel or unusual punishment.’” Barling, 779 So.2d at 1042-43. “To
3 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.”
Id. at 1042 (citing State v. Campbell, 404 So.2d 1205 (La.1981)).
The relevant question is whether the trial court abused its broad
sentencing discretion, not whether another sentence might have been more
appropriate. Barling, 779 So.2d at 1042-43 (citing 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)). In reviewing the defendant’s sentence, the appellate court should
consider the nature of the crime, the nature and background of the offender, and
the sentences imposed for similar crimes. State v. Lisotta, 98-648 (La.App. 5 Cir.
12/16/98), 726 So.2d 57 (citing State v. Telsee, 425 So.2d 1251 (La.1983)), writ
denied, 99-433 (La. 6/25/99), 745 So.2d 1183. “[T]he appellate court must be
mindful that the trial court is in the best position to consider the aggravating and
mitigating circumstances of each case. . . .” State v. Williams, 02-707 (La.App. 3
Cir. 3/5/03), 839 So.2d 1095, 1100 (citing Cook, 674 So.2d 957).
With regard to sentences for similar crimes, Mr. Rexrode cites State v.
Jason, 03-1565 (La.App. 3 Cir. 6/30/04), 879 So.2d 360, wherein a second felony
offender’s three-year sentence for possession of CDS II (cocaine) was affirmed.
Mr. Rexrode argues he should receive a lesser sentence than the defendant received
in Jason because the Jason defendant had a recent prior conviction for the same
offense, whereas this is Mr. Rexrode’s first felony conviction in nearly thirty years
and his prior felony was for theft rather than a drug offense. We upheld the
defendant’s three-year sentence. Additionally, in State v. Freeman, 97-1115
4 (La.App. 5 Cir. 12/29/98), 727 So.2d 630, the fifth circuit likewise upheld a three-
year sentence for possession of CDS II (cocaine) where the defendant had a prior
conviction for distribution of marijuana.
The trial court noted that Mr. Rexrode’s prior felony conviction was
for theft in 1989, he has pled guilty to at least seven misdemeanors since then and
has failed to satisfactorily complete probation four out of five times. The trial
court considered this as an aggravating circumstance, as within the trial court’s
broad discretion. The trial court may consider the benefit to the defendant
obtained by the plea agreement. Williams, 839 So.2d at 1101.
In exchange for his guilty plea, the State dismissed a second
possession of CDS II charge and a possession of a legend drug charge, both of
which carried a maximum sentence of five years at hard labor and a fine of not
more than five thousand dollars. Mr. Rexrode has failed to satisfactorily complete
misdemeanor probation. The trial court stated that Mr. Rexrode did not appear to
respond favorably to probation and posed an undue risk that he would commit
another crime. The trial court’s imposition of a sentence of three years at hard
labor does not appear to “shock the sense of justice,” nor was it an abuse of
discretion.
We find that the trial court did not abuse its discretion when
sentencing Mr. Rexrode and that the sentence is not excessive. Additionally, this
court should sever the misdemeanor conviction from the appeal and Mr. Rexrode
may file application seeking supervisory review of the misdemeanor conviction in
compliance with the Uniform Rules—Courts of Appeal within thirty days of this
court’s ruling on appeal, if so desired.
We affirm the sentence imposed by the trial court.
5 V.
CONCLUSION
For the foregoing reasons, we affirm the sentence imposed by the trial
court.