State v. Butler

760 So. 2d 620, 2000 WL 562864
CourtLouisiana Court of Appeal
DecidedMay 10, 2000
DocketNo. 33,403-KA
StatusPublished
Cited by2 cases

This text of 760 So. 2d 620 (State v. Butler) 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. Butler, 760 So. 2d 620, 2000 WL 562864 (La. Ct. App. 2000).

Opinion

| ¶ SAMS, J., Pro Tem.

Arno Butler pled guilty to simple possession of a Controlled Dangerous Substance (CDS), Schedule II, La. R.S. 40:967 C and to DWI second offense, La. R.S. 14:98 and was sentenced to the maximum five years at hard labor on the drug charge and four months on the DWI charge. Butler appeals the five-year sentence as excessive. We affirm.

Facts

Around 11:15 p.m. on July 3, 1998, Sergeant Evans, á deputy for the Webster Parish Sheriff, pursued a vehicle which had left a gas station after failing to pay for the gas. About 150 yards north of the store the vehicle stopped; Sgt. Evans observed Butler climb over his passenger and exit the vehicle on the passenger side; Butler almost immediately fell down to the ground. When Sgt. Evans caught Butler, he detected the odor of alcohol and noticed that Butler had trouble maintaining his balance. Sgt. Evans" conducted a “pat down” search and discovered a knife and a black film canister in the appellant’s shirt pocket; Sgt. Evans confiscated the knife.

Butler was arrested for DWI, handcuffed and placed in the back of the deputy’s vehicle. While Sgt. Evans was contacting a dispatcher for a wrecker and conducting an inventory search of the vehicle, he noticed Butler wriggling in the back seat of the patrol unit. He removed Butler from the vehicle and noticed that the black canister had been removed from the shirt pocket. He searched Butler and found the canister in his pants pocket. He removed the canister and discovered a sealed plastic bag containing a pinkish-white, .rock-like substance, which he suspected to be methamphetamine (crystal). Butler was again advised of his rights and returned to the police unit.

Butler was taken to the.Minden Police Department and given a breath test, which registered .179 grams percent: Butier had $494.00 on his person. He was ^charged with Possession of Methamphetamine with Intent to Distribute, La. R.S. 40:967 and DWI third offense, La. R.S. 14:98.

Butler pled guilty to an amended charge of Simple Possession of Methamphetamine and DWI, second offense and was sentenced to five years at hard labor for the [622]*622possession charge and four months for the DWI charge, sentences to run consecutively. Butler appeals his sentence as excessive; specifically, Butler alleges that the district court failed to give due consideration to mitigating circumstances and gave undue consideration to his criminal history; the court failed to consider sentencing alternatives specifically probation and suspension of all or a portion of the sentence, or the appropriateness of home incarceration in lieu of imprisonment; and the pre-sentence investigation (PSI) report did not indicate the specific resources available in the community to provide needed assistance to Butler in the event of probation.

Discussion

The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth 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. Dunn, 30,767 (La.App.2d Cir.6/24/98), 715 So.2d 641. The articulation of the factual basis for a sentence is the goal of La.C.Cr.P. art. 894.1, not rigid or 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).

Secondly, whether the sentence imposed is too severe depends on the circumstances of the case and the background of the defendant. A sentence |3violates La. Const, art. 1, § 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 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. Hogan, 480 So.2d 288 (La.1985); State v. Bradford, 29,519 (La.App.2d Cir.4/2/97), 691 So.2d 864.

A trial court has wide discretion to sentence within the statutory limits. Where a defendant has pled guilty to an offense which does not adequately describe his conduct or has received a significant reduction in potential exposure to confinement through a plea bargain, the trial court has great discretion in imposing even the maximum sentence possible for the pled offense. State v. Black, 28,100 (La.App.2d Cir.2/28/96), 669 So.2d 667, writ denied, 96-0836 (La.9/20/96), 679 So.2d 430. Absent a showing of manifest abuse of that discretion, we will not set aside a sentence as excessive. State v. Square, 433 So.2d 104 (La.1983); State v. Washington, 29,478 (La.App.2d Cir.4/2/97), 691 So.2d 345.

Butler has an eighth-grade education and has been regularly employed as a logger. His wife, Mary Butler, is disabled from an automobile accident and is unable to work. According to Butler, his wife relies on him financially, to take care of her physical needs, and to take care of the house. The couple have two sons, who, at the time of sentencing, were 18 and 20 years old. The sentencing judge received letters from Mrs. Butler, the children, other relatives, friends, and employer, exalting his giving nature and willingness to care for others and the fact that he is not a danger to society.

A review of Butler’s criminal record reveals convictions for disturbing the peace by fighting, disturbing the peace, two hit and runs, three DWIs, two counts of misdemeanor theft, and criminal damage to property. Additionally, Butler has a |4felony conviction for simple arson for which he was sentenced to six years at hard labor and was released on parole, which was subsequently revoked because of a previous DWI. Butler has been on [623]*623probation or parole on four separate occasions; one was revoked and three were terminated satisfactorily.

While the court expressed sympathy regarding the circumstances of the Mrs. Butler, it noted that the couple’s sons were old enough to take care of her. Because Butler had the benefit of two reduced charges, the court noted that a sentence less than the five years at hard labor for the drug offense would deprecate the seriousness of the offense. The initial charge of possession of methamphetamine with intent to distribute carried a sentencing range of five to thirty years and was reduced to simple possession of methamphetamine with a maximum prison exposure of five years. The DWI, third offense, which was actually Butler’s fourth DWI charge, was reduced to DWI, second offense.

In his first assignment, Butler contends that the district court failed to give due consideration to mitigating circumstances and in giving undue consideration and weight to his criminal history. There is no requirement, however, that specific matters be given any particular weight at sentencing. State v. Berry, 29,945 (La.App.2d Cir.10/29/97), 702 So.2d 33; State v. Callahan, 29,351 (La.App.2d Cir.2/26/97), 690 So.2d 864, writ denied, 97-0705 (La.9/26/97), 701 So.2d 979.

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Bluebook (online)
760 So. 2d 620, 2000 WL 562864, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-butler-lactapp-2000.