Judgment rendered January 15, 2020. Application for rehearing may be filed within the delay allowed by Art. 922, La. C. Cr. P.
No. 53,276-KA
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
STATE OF LOUISIANA Appellee
versus
TONYA AVANT SANDIFER Appellant
Appealed from the Eighth Judicial District Court for the Parish of Winn, Louisiana Trial Court No. 43,909
Honorable Jacque D. Derr, Judge
LOUISIANA APPELLATE PROJECT Counsel for Appellant By: Peggy J. Sullivan
R. CHRISTOPHER NEVILS Counsel for Appellee District Attorney
COLE B. SMITH Assistant District Attorney
Before MOORE, GARRETT, and COX, JJ.
COX, J., concurs in part and dissents in part with written reasons. MOORE, J.
After a jury trial, the defendant, Tonya Sandifer, was convicted of
distribution of methamphetamine, a Schedule II CDS, and attempted
distribution of methamphetamine. The court imposed consecutive sentences
of 25 years and 15 years at hard labor, and denied the defendant’s motion to
reconsider sentence. Defendant appealed. For the reasons that follow, we
affirm the conviction, vacate the sentence, and remand to the trial court with
instructions.
FACTS
Tonya Avant Sandifer was charged by bill of information with
distribution of methamphetamine, a Schedule II CDS, in violation of La.
R.S. 40:967A, and attempted distribution of methamphetamine, a Schedule
II CDS, in violation of La. R.S. 40:967A and 14:27. These offenses were
committed on May 10 and 16, 2016.
The Winn Parish Sheriff’s Office and the Louisiana State Police
Department (“LSP”) were investigating drug crimes in Winn Parish.
Raymond Durbin was employed by the police as a confidential informant
(“CI”) to confect a drug deal between Sandifer and an undercover LSP
officer, Sergeant William Moore. On May 10, 2016, Sgt. Moore was
working undercover using the alias, “Luke,” when he met Sandifer, Durbin
and Misty Holmes at Gum Springs Park in Winn Parish. Durbin introduced
Sandifer to “Luke,” and Sandifer entered the passenger’s side of Luke’s
vehicle. Sandifer sold the undercover officer one ounce of
methamphetamine (approximately 28 grams) for $700. The
methamphetamine from the purchase was transferred to the North Louisiana
Crime Lab. Sandifer and “Luke” exchanged cell phone numbers and texted one
another over the next few days. Through a text message, “Luke” requested
another drug buy in the amount of four ounces of methamphetamine.
Sandifer checked with her supplier and informed the undercover agent that
the price would be $2,450. He agreed to the price, and the two agreed to
meet at Gum Springs on May 16, 2016, to complete the transaction.
Due to the risk associated with large drug deals, Officer Patrick
Deshautelle, the LSP case agent in charge of the operation, decided to
intercept the drugs before they were delivered to Sandifer. On May 16,
2016, Ramonta Jackson, Sandifer’s alleged supplier, was apprehended by a
state trooper while Jackson was en route to meet Sandifer. Some four
ounces of a substance was recovered from Jackson’s vehicle; it later tested
positive for methamphetamine.
Luke (Sgt. Moore) and Sandifer met on May 16, 2016, as scheduled,
but Sandifer informed him that her supplier had been stopped by a state
trooper. Sandifer attempted to find a second supplier, but was unable to
procure any drugs to sell to the agent. Three months later, Sandifer was
arrested on August 10, 2016. At trial, Sandifer testified that Durbin was
living with her and that it was his idea to sell drugs, and in fact it was Durbin
who introduced her to the undercover officer she knew as Luke.
The jury unanimously found Sandifer guilty of distribution of
methamphetamine and, by an 11-1 vote, found her guilty of attempted
distribution.
On February 19, 2019, Sandifer appeared for sentencing. The court
stated that it had reviewed the sentencing guidelines of La. C. Cr. P. art.
894.1, and concluded that it should impose a sentence of imprisonment 2 because any other sentence would not adequately reflect the seriousness of
the offenses. The court stated that illegal drugs are the source of most of the
evil that occurs in the world. It noted the destructive effect drugs have on
individual lives and families, as drug use tears at the fabric of our society.
The court also opined that distribution of drugs is a far more egregious
offense than mere possession, and, in this case, the defendant was convicted
of distribution and attempted distribution of large quantities of
methamphetamine. Finding no mitigating factors in the case, the court
concluded that the facts of the case warrant substantial terms of
imprisonment. Accordingly, the court sentenced Sandifer to 25 years at hard
labor for the distribution conviction and 15 years at hard labor for the
attempted distribution conviction. The court ordered that the sentences were
to be served consecutively.
Sandifer filed a motion to reconsider sentence on grounds that the
sentence is excessive and not commensurate with the crimes for which the
defendant was convicted. The trial court denied the motion, stating that the
sentences were “correct.”
This appeal followed.
DISCUSSION
Sandifer filed three assignments of error, all urging that the sentences
imposed are excessive. By the first assignment, Sandifer alleges the
sentences imposed are unconstitutionally harsh and excessive given the facts
and circumstances of this case; by the second assignment, that the trial court
failed to state an adequate basis for the sentences; and, by the third
assignment, that the court erred when it denied her motion to reconsider the
sentences. 3 Sandifer argues that the record contains none of her personal
information. Instead of discussing the facts of the case during sentencing,
the trial court, she argues, went on a tirade regarding the evils of drugs in
society. Sandifer contends that the trial court failed to state, for the record,
the reasons for imposing such a harsh sentence. Further, the court failed to
consider the role that Raymond Durbin played in Sandifer’s decision to sell
drugs. Sandifer explains that the court’s announced personal feelings about
drugs in society do not constitute a sufficient basis for the sentences
imposed.
Additionally, Sandifer notes that the trial court failed to justify the
imposition of consecutive sentences for the two offenses which arose out of
the same conduct and occurred closely in time. 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. Sandifer contends that she was given a maximum sentence
and a near-maximum sentence ordered to run consecutively, even though the
offenses were committed close in time and arose out of the same course of
conduct. The record fails to justify the consecutive sentences imposed, she
argues.
Appellate courts utilize a two-pronged analysis in reviewing a
sentence to determine whether it is excessive. First, the record must show
that the trial court considered the factors in La. C. Cr. P. art. 894.1. The trial
judge is not required to list every aggravating or mitigating circumstance so
long as the record reflects that he adequately considered the guidelines of the
article. 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. The goal of La. C. Cr. P. art. 894.1 is for the court to 4 articulate the factual basis for the sentence, and not simply mechanical
compliance with its provisions. 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. The important
elements which should be considered are the defendant’s personal history
(age, family 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 at
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.
In the second prong of the analysis, the court determines 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 infliction of pain and
suffering. State v. Dorthey, 623 So. 2d 1276 (La. 1993); State v. Bonanno,
384 So. 2d 355 (La. 1980). A grossly disproportionate sentence shocks the
sense of justice when the crime and punishment are viewed in light of the
harm done to society. State v. Weaver, 01-0467 (La. 1/15/02), 805 So. 2d
166; State v. Meadows, 51,843 (La. App. 2 Cir. 1/10/18), 246 So. 3d 639,
writ denied, 18-0259 (La. 10/29/18), 254 So. 3d 1208.
The trial court has wide discretion to impose a sentence within the
statutory limits, and the sentence imposed will not be set aside as excessive
absent a manifest abuse of that discretion. State v. Nixon, supra; State v. 5 Williams, 03-3514 (La. 12/13/04), 893 So. 2d 7; State v. Diaz, 46,750 (La.
App. 2 Cir. 12/14/11), 81 So. 3d 228. On 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. Williams, supra; State
v. Free, 46,894 (La. App. 2 Cir. 1/25/12), 86 So. 3d 29.
The law regarding whether two or more sentences imposed should be
served concurrently or consecutively is governed by La. C. Cr. P. art. 883,
which reads:
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 be served consecutively unless the court expressly directs that some or all of them be served concurrently. In the case of the concurrent sentence, the judge shall specify, and the court minutes shall reflect, the date from which the sentences are to run concurrently.
We have previously stated that in cases involving multiple offenses
and sentences, the trial court has limited discretion to order that the multiple
sentences are to be served concurrently or consecutively. State v. Nixon,
supra; State v. Allen, 52,318 (La. App. 2 Cir. 11/14/18), 260 So. 3d 703.
Concurrent sentences arising out of a single course of conduct are not
mandatory, and 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; State v. Hebert, 50,163 (La. App. 2
Cir. 11/18/15), 181 So. 3d 795. However, a judgment directing that
sentences arising from a single course of conduct be served consecutively
requires particular justification from the evidence or record. Accordingly,
when consecutive sentences are imposed, the court shall state the factors
6 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.
The failure to articulate specific reasons for consecutive sentences does not
require remand, however, if the record provides an adequate factual basis to
support consecutive sentences. Nixon, supra.
As a general rule, maximum or near-maximum sentences are reserved
for the worst offenders and the worst offenses. State v. Cotten, 50,747 (La.
App. 2 Cir. 8/10/16), 201 So. 3d 299. The trial court is in the best position
to consider the aggravating and mitigating circumstances of a particular
case, and, therefore, is given broad discretion in sentencing. 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).
Finally, 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. Johnston, 50,706 (La. App. 2 Cir. 6/22/16), 198 So. 3d 151,
writ granted on other grounds, 16-1460 (La. 65/17), 221 So.3d 46; State v.
Ferguson, 44,009 (La. App. 2 Cir. 2/25/09), 4 So. 3d 315.
In this case, we note that the record contains little to no information
about Sandifer, including her personal life, family, education, and
employment background. A sketchy presentence investigation (“PSI”) gives
little more than her name, date of birth, and first offender status. Sandifer is
currently 41 years old. She has no prior felony convictions and no prior 7 misdemeanor convictions. The PSI shows that a misdemeanor charge of
domestic abuse battery was dismissed in 2009, and misdemeanor charges of
criminal trespass and two possession of drug paraphernalia charges are
pending. Additionally, the PSI reports an arrest made on July 8, 2017, for
possession of a Schedule II CDS, methamphetamine, after her arrest on the
instant offenses.
According to the transcripts of several pretrial plea hearings, the state
apparently offered Sandifer a plea agreement whereby it would file no
habitual offender bill and, possibly, offered a sentence of 9 years. Sandifer
rejected all the state’s plea offers; instead, she chose to go to trial.
At trial, Sandifer testified that she had lived with Raymond Durbin,
the confidential informant who set up the drug deal, prior to this offense.
She said that her electricity had been shut off, and she could not afford the
required deposit to turn it back on. She knew that Durbin had engaged in
drug activity in the past, and was not surprised when he suggested
introducing her to his friends involved in drug transactions to raise money.
The friend to whom she was introduced was a man by the name “Luke,”
who, unknown to her, was actually a police undercover agent, Sgt. William
Moore. Sandifer testified that Durbin insisted that she actually execute the
transaction because she needed the experience in case Luke might need
something (more drugs) while he was not available or at work. She admitted
that she did the actual transactions, but she insisted that Durbin was the
person setting up the deals. Of course, the jury found Sandifer guilty as
charged.
In 2016, the sentencing range for distribution of schedule II CDS,
methamphetamine, was a minimum of 2 years but not more than 30 years’ 8 imprisonment at hard labor and a fine of up to $50,000. La. R.S.
40:967(B)(1) (2016). The sentencing range for attempted distribution of
schedule II CDS, methamphetamine, was a fine or imprisonment or both, not
exceeding one-half of the largest fine, or one-half of the longest term of
imprisonment prescribed for the completed crime, in this case, 15 years. La.
R.S. 40:967(B)(1) (2016) and 14:27.
At sentencing, the court disagreed with Sandifer’s characterization of
herself as a kind of naive, surrogate “middleman” to the drug transactions,
carrying out the deal for Durbin. Contrary to Sandifer’s account, the court
viewed the evidence as showing that Sandifer was not a rookie drug dealer,
and these transactions were not Sandifer’s “first rodeo,” as she had claimed.
The court vigorously expressed its view that illegal drugs are a scourge
responsible for most of the evil in the world. The court said that it viewed
drug dealers as far more culpable than drug users. It sentenced Sandifer to a
near-maximum term of 25 years for distribution of one ounce of
methamphetamine and imposed the maximum sentence of 15 years for
attempted distribution of four ounces of methamphetamine. Additionally,
the court made these consecutive, making the total term of imprisonment of
40 years tantamount to a life sentence for the 41-year-old defendant.
In this case, Sandifer was a first felony offender, and while she
perhaps served as a “middleman” in the distribution scheme, she clearly
knew what she was doing to make money. She sold approximately 28 grams
of methamphetamine, and subsequently attempted to sell approximately 113
grams of methamphetamine.
On review, we conclude that the sentences imposed by the court are
indeed very severe, particularly in view of the legislature’s intent to lessen 9 the penalties for certain drug crimes by enacting by 2017 La. Acts 281, § 2.
Act 281 reduced the maximum sentencing exposure for the instant offenses
to 20 years instead of 30 and, thus, reduced the maximum for attempted
distribution to 10 years instead of 15.1 However, even though Sandifer was
sentenced after the amendment was in effect for offenses committed after
2017, the court correctly applied the 2016 version of the statute when the
offenses were committed. It was, therefore, within the court’s discretion to
impose a near-maximum sentence of 25 years for distribution and the
maximum 15 years for attempted distribution. When we consider the
pernicious nature of the particular illegal drug sold for distribution in this
case, methamphetamine, the devastating effect it has on society, and the fact
that the defendant, who at age 41 cannot attribute her behavior to bad
judgment and youthful indiscretion, we find that the trial court did not abuse
its discretion by imposing these severe sentences.
On the other hand, under State v. Nixon, supra, we conclude that this
record fails to provide an adequate factual basis to support consecutive
sentences. Concurrent sentences are generally appropriate when the
offenses arise from a single course of conduct or a common scheme or plan.
Sandifer committed two offenses, but they arose out of the same course of
criminal conduct and involved a single individual. Certainly from the
perspective of the LSP, this was actually a single investigation targeting a
particular drug dealer by initially gaining her trust with a small deal, and
then immediately following it by a larger deal. The undercover agent, Luke,
kept contact with Sandifer over the next few days after the first deal to set up
1 La. R.S. 40:967(B)(1) (effective 2017), concerning sales between 28 grams and 200 grams. 10 the second deal. Sandifer sold one ounce of methamphetamine to him, and
then attempted to comply with his request to sell him more within a week.
While it is within the court’s discretion to make sentences consecutive
rather than concurrent, a judgment directing that sentences arising from a
single course of conduct be served consecutively requires particular
justification from the evidence or record. The record is devoid of particular
justification for the consecutive sentences in this case.
In State v. Wing, 51,857 (La. App. 2 Cir. 2/28/18), 246 So. 3d 711, the
defendant was convicted of two counts of simple burglary and sentenced to
serve eight years at hard labor on each count, consecutively. On review, we
found that the sparse record made at sentencing did not supply a sufficient
factual basis to support consecutive sentences. We stated:
In ordering that the sentences were to be served consecutively, it is not clear from the record whether the trial court specifically considered whether the offenses were the same act or transaction or part of a common scheme or plan. While we make no judgment on this issue, if they were part of a common scheme or plan, the trial court is required to specify reasons for ordering the sentences to be served consecutively. Id. at 717.
In this case, the trial court did not specify any reasons for ordering
Sandifer’s sentences be served consecutively. Our review of the record
finds that concurrent sentences would be appropriate in this case since the
offenses arose out of a single course of conduct, and since maximum and
near-maximum sentences were imposed on this first offender. For this
reason, we vacate the sentences and remand to the trial court for
resentencing with concurrent sentences, or alternatively, if the court still
wishes to impose consecutive sentences, to specify the reasons why
consecutive sentences are warranted.
11 CONCLUSION
For the foregoing reasons, we affirm the conviction of the defendant,
Tonya Avant Sandifer. However, we conclude that the record does not
support the imposition of consecutive sentences in this case. Therefore, we
vacate the sentences and remand to the trial court for resentencing.
CONVICTION AFFIRMED; SENTENCE VACATED;
REMANDED.
12 COX, J., concurs in part and dissents in part with written reasons.
I agree with the majority’s opinion in all respects, except for the
ruling on the consecutive sentences. I do not reach the conclusion that
consecutive sentences are not appropriate in this case. The trial court has the
discretion to determine whether the sentences should be concurrent or
consecutive. I am not making a judgment on whether or not consecutive
sentences are appropriate at this juncture. If the trial court wishes to impose
consecutive sentences in this case, the trial court will need to specify the
reasons why consecutive sentences are warranted in light of the cases cited
by the majority. Then, after receiving the trial court’s reasons for the
consecutive sentences, this Court could properly review whether or not the
trial court erred in that regard.
I agree to affirm the conviction of the defendant, vacate the sentence,
and remand to the trial court for resentencing pursuant to the cases outlined
in the majority’s opinion. However, I respectfully dissent and make no
ruling on whether concurrent or consecutive sentences are appropriate in this
case.