State v. Baillio

144 So. 3d 1162, 2014 WL 2875011, 2014 La. App. LEXIS 1624
CourtLouisiana Court of Appeal
DecidedJune 25, 2014
DocketNo. 49,093-KA
StatusPublished
Cited by1 cases

This text of 144 So. 3d 1162 (State v. Baillio) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Baillio, 144 So. 3d 1162, 2014 WL 2875011, 2014 La. App. LEXIS 1624 (La. Ct. App. 2014).

Opinion

WILLIAMS, J.

| |The defendant, Robert Stephen Baillio, was charged by bill of information with carrying a concealed weapon by a convicted felon, a violation of LSA-R.S. 14:95.1, and possession with intent to distribute a Schedule II controlled dangerous substance (methamphetamine), a violation of LSA-R.S. 40:967. He pled guilty as charged. For the concealed weapon conviction, the defendant was sentenced to serve 10 years at hard labor without benefit of probation, parole or suspension of sentence. For the drug conviction, he was sentenced to serve 30 years at hard labor, with credit for time served, and fined $5,000, plus court costs, or 60 days in prison in lieu of payment.1 For the following reasons, we amend the sentence to vacate that portion of the sentence imposing jail time in default of payment of the fine and costs, and as amended, we affirm.

FACTS

In September 2010, officers from the Shreveport Police Department learned that defendant, Robert Stephen Baillio, was selling methamphetamine in the Shreveport area. On September 13, 2010, a “confidential source” arranged to purchase methamphetamine from the defendant. When the defendant arrived at the agreed-upon location to deliver the drugs, police officers approached him, advised him of his Miranda rights and placed him under arrest. At that time, the defendant admitted to the police officers that he had brass knuckles, a concealed weapon, on his person. A search of his person revealed the weapon. Subsequently, the officers transported the defendant to his vehicle, where | ahis toddler-aged son was waiting. The defendant then admitted that he had methamphetamine in his pocket and packaging materials in his vehicle. The officers retrieved six grams of methamphetamine from the defendant’s person. In a subse[1164]*1164quent interview with police officers, the defendant admitted that he had been distributing methamphetamine to multiple locations, targets and sources.

The defendant was charged with carrying a concealed weapon by a convicted felon, a violation of LSA-R.S. 14:95.1, and possession with intent to distribute methamphetamine, a Schedule II controlled dangerous substance (“CDS”), a violation of LSA-R.S. 40:967(A)(1). Subsequently, he pled guilty as .charged. As stated above, he was sentenced to serve 10 years without benefits on the concealed-weapon conviction and 30 years at hard labor for the possession with intent to distribute methamphetamine conviction.2 The trial court also imposed a fine in the amount of $5,000, plus court costs “or 60 days in lieu of same.”

The trial court denied the defendant’s motion to reconsider sentence. The defendant now appeals.

DISCUSSION

The defendant contends the trial court abused its discretion in ordering him to serve 30 years in prison for the drug conviction. He argues that he is a nonviolent offender, and the trial court concluded that he was the “worst of offenders” when it imposed a 30-year sentence. The defendant also argues that in State v. Lingefelt, 38,038 (La.App.2d Cir.[l/28/04),s 865 So.2d 280, writ denied, 2004-0597 (La.9/24/04), 882 So.2d 1165, the defendant, who had been involved in the manufacturing of methamphetamine for more than 20 years, received a 22-year sentence at hard labor without benefits. The defendant maintains that, unlike the defendant in Linge-felt, there was no indication that he manufactured and distributed drugs over a long period of time; he was in possession of only six grams of methamphetamine at the time of his arrest.

LSA-R.S. 40:967(B)(1) sets forth the sentencing range for a defendant who is convicted of possession with intent to distribute methamphetamine. That statute provides that a person so convicted “shall be sentenced to a term of imprisonment at hard labor for not less than two years nor more than thirty years; and may, in addition, be sentenced to pay a fine of not more than [$50,000].”

As a general rule, maximum or near maximum sentences are reserved for the worst offenders and the worst offenses. State v. Cozzetto, 2007-2031 (La.2/15/08), 974 So.2d 665; State v. Morrison, 45,620 (La.App.2d Cir.11/24/10), 55 So.3d 856. However, the trial court has wide discretion in imposing sentences within the minimum and maximum limits allowed by the statute. Thus, a sentence will not be set aside as excessive unless the defendant shows the trial court abused its discretion. State v. Hardy, 39,233 (La.App.2d Cir.1/26/05), 892 So.2d 710; State v. Young, 46,575 (La.App.2d Cir.9/21/11), 73 So.3d 473, writ denied, 2011-2304 (La.3/9/12), 84 So.3d 550.

A trial judge is in the best position to consider the aggravating and 14 mitigating circumstances of a particular case, and, therefore, is given broad discretion in sentencing. State v. Zeigler, 42,661 (La.App.2d Cir.10/24/07), 968 So.2d 875. The reviewing court does not determine whether another sentence would have been more appropriate, but whether the trial court abused its discretion. State v. Es-que, 46,515 (La.App.2d Cir.9/21/11), 73 [1165]*1165So.3d 1021, writ denied, 2011-2304 (La.3/9/12), 84 So.3d 551.

An excessive sentence argument is reviewed by examining whether the trial court adequately considered the guidelines established in LSA-C.Cr.P. art. 894.1, and whether the sentence is constitutionally excessive. State v. Gardner, 46,688 (La. App.2d Cir.11/2/11), 77 So.3d 1052. However, where the defendant’s motion to reconsider sentence alleges mere excessiveness of sentence, the reviewing court is limited to only a review of whether the sentence is constitutionally excessive. State v. Mims, 619 So.2d 1059 (La.1993); State v. Boyd, 46,321 (La.App.2d Cir.9/21/11), 72 So.3d 952.

Under constitutional review, a sentence can be excessive, even when it falls within statutory guidelines, if the punishment is so grossly disproportionate to the severity of the crime that it shocks the sense of justice and serves no purpose other than to inflict pain and suffering. State v. Fatheree, 46,686 (La.App.2d Cir.11/2/11), 77 So.3d 1047.

In the instant case, prior to imposing the defendant’s 30-year sentence, the trial court considered the factors set forth in LSA-C.Cr.P. art. 894.1. The court stated: lsYou are a fifth felony offender, okay, and the huge deal on the [possession with intent to distribute a Schedule] II[CDS] and the [aggravated] flight, those get you to the — those would get you to the mandatory life, you know, because of the type that they are. And I do note on the PSI that [your criminal] history spans a very long period of time since 1986.

You have got burglary charges, drug charges, a lot of drug charges. You [have] burglary of an inhabited dwelling charges, battery, seven counts of simple burglary, having pled guilty to two. You have got some other simple burglary inhabited dwellings dismissed. Some were pled down to simple burglary. Marijuana, pills, meth. Pretty much run the gamut.
I don’t see — I will agree with you there [are] not a lot of violent offenses other than your simple battery charges, okay? It’s amazing that somebody can keep doing this stuff and haven’t learned.
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Bluebook (online)
144 So. 3d 1162, 2014 WL 2875011, 2014 La. App. LEXIS 1624, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-baillio-lactapp-2014.