NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
09-273
STATE OF LOUISIANA
VERSUS
WILBURN STROTHER
************
APPEAL FROM THE THIRTIETH JUDICIAL DISTRICT COURT PARISH OF VERNON, NO. 74511 HONORABLE JOHN C. FORD, DISTRICT JUDGE
MICHAEL G. SULLIVAN JUDGE
Court composed of Oswald A. Decuir, Michael G. Sullivan, and Shannon J. Gremillion, Judges.
AFFIRMED.
Asa A. Skinner District Attorney Terry W. Lambright Assistant District Attorney Post Office Box 1188 Leesville, Louisiana 71446 (337) 239-2008 Counsel for: State of Louisiana
Annette Fuller Roach Louisiana Appellate Project Post Office Box 1747 Lake Charles, Louisiana 70602 (337) 436-2900 Counsel for Defendant/Appellant: Wilburn Strother SULLIVAN, Judge.
Defendant, Wilburn Strother, was charged by bill of information with
possession of methamphetamine, a violation of La.R.S. 40:967; possession of drug
paraphernalia, a violation of La.R.S. 40:1023; and reckless operation of a motor
vehicle, a violation of La.R.S. 14:99. Defendant pled guilty to possession of
methamphetamine, and the remaining charges were dropped.
Defendant was sentenced on December 23, 2008, to serve five years at hard
labor with credit for time served. On January 8, 2009, Defendant filed a Motion to
Reconsider Sentence which was summarily denied. Defendant is now before this
court on appeal, asserting that his sentence is excessive. For the following reasons,
Defendant’s sentence is affirmed.
FACTS
The facts set forth at Defendant’s guilty plea hearing indicate that a 911 call
was made on January 2, 2007, concerning a domestic dispute involving Defendant.
When Defendant was later confronted during a traffic stop, he was found to be in
possession of methamphetamine.
ASSIGNMENT OF ERROR
In his sole assignment of error, Defendant argues that the trial court erred in
imposing the maximum sentence of five years at hard labor for one count of
possession of methamphetamine. In State v. Brandenburg, 06-1158, p. 28 (La.App.
3 Cir. 2/7/07), 949 So.2d 625, 644, writs denied, 07-538, 07-614 (La. 10/26/07), 966
So.2d 571, 573, this court stated:
The trial court has wide discretion in imposing a sentence, and a sentence imposed within the statutory limits will not be deemed constitutionally excessive absent a manifest abuse of discretion. State v. Evans, 97-504 (La.App. 3 Cir. 10/29/97); 702 So.2d 1148, writ
1 denied, 97-2979 (La.4/3/98); 717 So.2d 231. This court, in State v. Dubroc, 99-730, p. 22 (La.App. 3 Cir. 12/15/99); 755 So.2d 297, 311, noted:
The relevant question on review of a sentence is whether the trial court abused its broad sentencing discretion and not whether the sentence imposed may appear harsh or whether another sentence might be 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). To constitute an excessive sentence, this court must find the penalty imposed is 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, therefore, it is nothing more than needless imposition of pain and suffering. State v. Campbell, 404 So.2d 1205 (La.1981). The trial court is given wide discretion in imposing a sentence, and a sentence imposed within statutory limits will not be deemed excessive in the absence of manifest abuse of discretion. State v. Pyke, 95-919 (La.App. 3 Cir. 3/6/96); 670 So.2d 713.
State v. Boudreaux, 00-1467, p. 12 (La.App. 3 Cir. 4/4/01), 782 So.2d 1194, 1201, writ denied, 01-1369 (La.3/28/02), 812 So.2d 645 (quoting State v. Dubroc, 99-730, p. 22 (La.App. 3 Cir. 12/15/99), 755 So.2d 297, 311). “As a general rule, maximum sentences are appropriate in cases involving the most serious violation of the offense and the worst type of offender.” State v. Hall, 35,151, p. 4 (La.App. 2 Cir. 9/26/01), 796 So.2d 164, 169.
On appeal, Defendant argues that the drugs at issue were possessed for
personal use and that rehabilitation is the preferred method of treating substance
abuse rather than long periods of incarceration. Additionally, Defendant contends
that his prior felony offenses were old, having occurred during his relative youth, and
that his prior offenses were not in the same crime family as the instant offense.
Defendant maintains that the lengthy period that he led a law-abiding life should have
been considered in mitigation by the trial court.
Defendant, however, failed to include these specific grounds in his motion to
reconsider sentence as required by La.Code Crim.P. art. 881.1. Consequently,
2 Defendant is precluded from urging same for the first time on appeal, and thus, the
new allegations are 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.
Pursuant to La.R.S. 40:967(C)(2), the maximum possible sentence for
possession of methamphetamine is five years, with or without hard labor, and a
possible fine of up to $5,000.00. Defendant received the maximum possible sentence
but was spared a fine. Defendant argues on appeal that he is not the worst type of
offender and, thus, that he should not have received the maximum sentence.
At sentencing, the trial court stated that it considered the sentencing guidelines
under La.Code Crim.P. art. 894.1 and the information contained in Defendant’s Pre-
Sentence Investigation Report (PSI). The PSI indicated that the instant offense was
Defendant’s third felony conviction. As such, the trial court noted that Defendant
was not entitled to a suspended sentence. The trial court also addressed Defendant’s
history of burglary charges and a pending charge of domestic abuse battery. The trial
court found that Defendant was at risk for committing another felony and that a lesser
sentence would deprecate the seriousness of the offense.
The State asserts on appeal that although Defendant is classified by Probation
and Parole as a third felony offender, the instant conviction is his fifth felony
conviction. The PSI confirms that the instant offense was Defendant’s fifth felony
conviction. The State also correctly points out that Defendant’s prior felony
probation was revoked due to the commission of another felony for which he was
subsequently convicted.
In support of his claim that he is not the worst type of offender and should not
have received the maximum sentence, Defendant refers to State v. Jason, 03-1565
3 (La.App. 3 Cir. 6/30/04), 879 So.2d 360. In Jason, the twenty-seven-year-old
defendant, a second felony offender, received a three-year sentence for possession of
cocaine, a Schedule II controlled dangerous substance with the same penalty
provision as methamphetamine. His prior offense was possession of cocaine.
Defendant also contrasts his case against State v. Graham, 35,184 (La.App. 2
Cir. 10/31/01), 799 So.2d 645, writ denied, 02-59 (La. 11/08/02), 828 So.2d 1114,
wherein the defendant received the maximum five-year sentence for possession of
cocaine. In addition to the possession conviction, the defendant was also convicted
of two counts of distribution of cocaine and received concurrent sentences of fifteen
and twenty years, the first five years without benefits. The defendant sold crack
cocaine to an undercover agent on two occasions and was in possession of crack
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NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
09-273
STATE OF LOUISIANA
VERSUS
WILBURN STROTHER
************
APPEAL FROM THE THIRTIETH JUDICIAL DISTRICT COURT PARISH OF VERNON, NO. 74511 HONORABLE JOHN C. FORD, DISTRICT JUDGE
MICHAEL G. SULLIVAN JUDGE
Court composed of Oswald A. Decuir, Michael G. Sullivan, and Shannon J. Gremillion, Judges.
AFFIRMED.
Asa A. Skinner District Attorney Terry W. Lambright Assistant District Attorney Post Office Box 1188 Leesville, Louisiana 71446 (337) 239-2008 Counsel for: State of Louisiana
Annette Fuller Roach Louisiana Appellate Project Post Office Box 1747 Lake Charles, Louisiana 70602 (337) 436-2900 Counsel for Defendant/Appellant: Wilburn Strother SULLIVAN, Judge.
Defendant, Wilburn Strother, was charged by bill of information with
possession of methamphetamine, a violation of La.R.S. 40:967; possession of drug
paraphernalia, a violation of La.R.S. 40:1023; and reckless operation of a motor
vehicle, a violation of La.R.S. 14:99. Defendant pled guilty to possession of
methamphetamine, and the remaining charges were dropped.
Defendant was sentenced on December 23, 2008, to serve five years at hard
labor with credit for time served. On January 8, 2009, Defendant filed a Motion to
Reconsider Sentence which was summarily denied. Defendant is now before this
court on appeal, asserting that his sentence is excessive. For the following reasons,
Defendant’s sentence is affirmed.
FACTS
The facts set forth at Defendant’s guilty plea hearing indicate that a 911 call
was made on January 2, 2007, concerning a domestic dispute involving Defendant.
When Defendant was later confronted during a traffic stop, he was found to be in
possession of methamphetamine.
ASSIGNMENT OF ERROR
In his sole assignment of error, Defendant argues that the trial court erred in
imposing the maximum sentence of five years at hard labor for one count of
possession of methamphetamine. In State v. Brandenburg, 06-1158, p. 28 (La.App.
3 Cir. 2/7/07), 949 So.2d 625, 644, writs denied, 07-538, 07-614 (La. 10/26/07), 966
So.2d 571, 573, this court stated:
The trial court has wide discretion in imposing a sentence, and a sentence imposed within the statutory limits will not be deemed constitutionally excessive absent a manifest abuse of discretion. State v. Evans, 97-504 (La.App. 3 Cir. 10/29/97); 702 So.2d 1148, writ
1 denied, 97-2979 (La.4/3/98); 717 So.2d 231. This court, in State v. Dubroc, 99-730, p. 22 (La.App. 3 Cir. 12/15/99); 755 So.2d 297, 311, noted:
The relevant question on review of a sentence is whether the trial court abused its broad sentencing discretion and not whether the sentence imposed may appear harsh or whether another sentence might be 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). To constitute an excessive sentence, this court must find the penalty imposed is 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, therefore, it is nothing more than needless imposition of pain and suffering. State v. Campbell, 404 So.2d 1205 (La.1981). The trial court is given wide discretion in imposing a sentence, and a sentence imposed within statutory limits will not be deemed excessive in the absence of manifest abuse of discretion. State v. Pyke, 95-919 (La.App. 3 Cir. 3/6/96); 670 So.2d 713.
State v. Boudreaux, 00-1467, p. 12 (La.App. 3 Cir. 4/4/01), 782 So.2d 1194, 1201, writ denied, 01-1369 (La.3/28/02), 812 So.2d 645 (quoting State v. Dubroc, 99-730, p. 22 (La.App. 3 Cir. 12/15/99), 755 So.2d 297, 311). “As a general rule, maximum sentences are appropriate in cases involving the most serious violation of the offense and the worst type of offender.” State v. Hall, 35,151, p. 4 (La.App. 2 Cir. 9/26/01), 796 So.2d 164, 169.
On appeal, Defendant argues that the drugs at issue were possessed for
personal use and that rehabilitation is the preferred method of treating substance
abuse rather than long periods of incarceration. Additionally, Defendant contends
that his prior felony offenses were old, having occurred during his relative youth, and
that his prior offenses were not in the same crime family as the instant offense.
Defendant maintains that the lengthy period that he led a law-abiding life should have
been considered in mitigation by the trial court.
Defendant, however, failed to include these specific grounds in his motion to
reconsider sentence as required by La.Code Crim.P. art. 881.1. Consequently,
2 Defendant is precluded from urging same for the first time on appeal, and thus, the
new allegations are 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.
Pursuant to La.R.S. 40:967(C)(2), the maximum possible sentence for
possession of methamphetamine is five years, with or without hard labor, and a
possible fine of up to $5,000.00. Defendant received the maximum possible sentence
but was spared a fine. Defendant argues on appeal that he is not the worst type of
offender and, thus, that he should not have received the maximum sentence.
At sentencing, the trial court stated that it considered the sentencing guidelines
under La.Code Crim.P. art. 894.1 and the information contained in Defendant’s Pre-
Sentence Investigation Report (PSI). The PSI indicated that the instant offense was
Defendant’s third felony conviction. As such, the trial court noted that Defendant
was not entitled to a suspended sentence. The trial court also addressed Defendant’s
history of burglary charges and a pending charge of domestic abuse battery. The trial
court found that Defendant was at risk for committing another felony and that a lesser
sentence would deprecate the seriousness of the offense.
The State asserts on appeal that although Defendant is classified by Probation
and Parole as a third felony offender, the instant conviction is his fifth felony
conviction. The PSI confirms that the instant offense was Defendant’s fifth felony
conviction. The State also correctly points out that Defendant’s prior felony
probation was revoked due to the commission of another felony for which he was
subsequently convicted.
In support of his claim that he is not the worst type of offender and should not
have received the maximum sentence, Defendant refers to State v. Jason, 03-1565
3 (La.App. 3 Cir. 6/30/04), 879 So.2d 360. In Jason, the twenty-seven-year-old
defendant, a second felony offender, received a three-year sentence for possession of
cocaine, a Schedule II controlled dangerous substance with the same penalty
provision as methamphetamine. His prior offense was possession of cocaine.
Defendant also contrasts his case against State v. Graham, 35,184 (La.App. 2
Cir. 10/31/01), 799 So.2d 645, writ denied, 02-59 (La. 11/08/02), 828 So.2d 1114,
wherein the defendant received the maximum five-year sentence for possession of
cocaine. In addition to the possession conviction, the defendant was also convicted
of two counts of distribution of cocaine and received concurrent sentences of fifteen
and twenty years, the first five years without benefits. The defendant sold crack
cocaine to an undercover agent on two occasions and was in possession of crack
cocaine at the time of his arrest. He admitted having a previous conviction for a drug
offense. On appeal, the court noted that the defendant’s drug use extended beyond
personal use and, thus, qualified him as the “worst type of possession offender.” Id.
at 650.
Cases involving possession of methamphetamine were also found in the
jurisprudence. In State v. Console, 07-1422 (La.App. 3 Cir. 4/30/08), 981 So.2d 875,
the defendant pled guilty to two counts of possession of methamphetamine and
cocaine and was sentenced to five years at hard labor on each count. The defendant
also pled guilty to possession of stolen property and possession of testosterone. In
exchange for the defendant’s guilty plea, thirty-six pending charges were dismissed.1
On appeal, the defendant’s claim that his sentence was excessive was rejected. The
1 The pending charges included “twelve counts of dogfighting, two counts of cruelty to animals, possession of marijuana, four counts of possession of a controlled dangerous substance, possession of drug paraphernalia, theft, simple criminal damage to property, possession of stolen things, [and] two counts of theft.” Id. at 879.
4 appellate court noted that the trial court had “adequately considered both the
mitigating and aggravating circumstances” and that the defendant had “received a
significant benefit from his plea bargain.” Id. at 881.
In State v. Smith, 43,136 (La.App. 2 Cir. 4/23/08), 981 So.2d 200, the
defendant was charged with possession of methamphetamine and found guilty as
charged following a jury trial. He was sentenced to four years at hard labor. A truck
in which the defendant was a passenger was stopped by officers. A “dugout” pipe,
electronic scales, and suspected illegal drugs were discovered during a pat-down
search. After the defendant was arrested and transported to the station, a bag
containing 1.7 grams of methamphetamine was found in the patrol unit. The
defendant admitted that the bag belonged to him. The defendant did not challenge
his sentence on appeal.2
Lastly, in State v. Bellow, 07-824 (La.App. 5 Cir. 3/11/08), 982 So.2d 826, the
defendant was charged with possession of methamphetamine and found guilty as
charged following a trial by jury. He was sentenced to two years at hard labor.
During an undercover investigation for narcotic activity, the defendant was observed
acting suspiciously and was stopped for several traffic violations. A pat-down search
revealed that the defendant had a clear plastic bag containing methamphetamine in
his pocket. The defendant did not challenge his sentence, and no other facts
regarding sentencing were discussed on appeal.
Although Defendant’s actions in the instant case do not rise to the level of
those of the defendant in Graham, Defendant, nonetheless, has a significant history
2 The defendant argued on appeal that the trial court erred in denying his motion for a mistrial after a sheriff’s deputy stated on direct examination that the defendant had told him that he was a convicted felon. The appellate court affirmed the defendant’s conviction and sentence.
5 of felony crimes. Considering the sentences imposed for similar crimes, in addition
to Defendant’s criminal history, the maximum sentence does not shock this court’s
sense of justice. The trial court did not abuse its discretion by imposing the five-year
maximum sentence.
DECREE
This opinion is NOT DESIGNATED FOR PUBLICATION. Uniform Rules—Courts of Appeal, Rule 2–16.3.