State v. Cathey

569 So. 2d 627, 1990 WL 166902
CourtLouisiana Court of Appeal
DecidedOctober 31, 1990
Docket21880-KA
StatusPublished
Cited by11 cases

This text of 569 So. 2d 627 (State v. Cathey) 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. Cathey, 569 So. 2d 627, 1990 WL 166902 (La. Ct. App. 1990).

Opinion

569 So.2d 627 (1990)

STATE of Louisiana, Appellee,
v.
Cindy D. CATHEY, Appellant.

No. 21880-KA.

Court of Appeal of Louisiana, Second Circuit.

October 31, 1990.

*629 Wellborn Jack, Jr., Shreveport, for appellant.

William J. Guste, Jr., Atty. Gen., Paul J. Carmouche, Dist. Atty., Gay C. Gaskins, Asst. Dist. Atty., Shreveport, for appellee.

Before NORRIS, LINDSAY and HIGHTOWER, JJ.

NORRIS, Judge.

The defendant, Cindy D. Cathey, was charged by bill of information with three counts of distribution of Schedule II Controlled Dangerous Substances (CDS). Counts 1 and 3 charged her with distribution of methamphetamine, and count 2 with distribution of cocaine. LSA-R.S. 40:967 A(1). Following a trial, the jury found Cathey guilty as charged. The events occurred in September, 1987 and at that time the sentencing range on counts 1 and 3 (methamphetamine) was 0-10 years and a maximum fine of $15,000. R.S. 40:967 B(2). As for count 2, cocaine is classified as a narcotic drug and carries a sentencing range of 5-30 years at hard labor and a maximum fine of $15,000. R.S. 40:961(23); R.S. 40:967 B(1). The trial court sentenced the defendant to serve five years at hard labor and $5,000 fines on counts 1 and 2; it further provided a term of four years at hard labor and a $5,000 fine on count 3. All sentences were to run consecutively. The total sentence was 14 years at hard labor and fines totalling $15,000. She now appeals challenging her sentence as excessive. We vacate the sentence and remand with instructions.

On three separate occasions within a two-week period Cathey, age 17, distributed drugs to undercover Shreveport Narcotics Officers. On September 2, 1987, a meeting was set up by a confidential informant for Cathey to sell one gram of methamphetamine to an undercover officer. The three met at Andrews Grocery on the corner of St. Vincent and State Streets in Shreveport at approximately 9:05 p.m. Cathey told them that she could not get the drugs at that time, but that she would have access to the drugs later that night. She instructed them to meet her at a church parking lot on the corner of Fairfield and 61st Streets. They went to the church parking lot at 10:00 p.m. and met Cathey and a Lisa A. Burnley who were there waiting. The undercover officer gave Cathey $100 in marked money. She took the money and went to pick up the drugs from another location while Burnley waited with the undercover officer and the confidential informant in their car. Cathey brought back one gram of methamphetamine and gave it to the undercover officer. In the course of the sale Burnley gave the undercover officer a telephone number and told him to contact either of them for his future drug needs.

On September 4, 1987, the undercover officer called Cathey to set up a meeting to purchase more methamphetamine. She told him that she could not get the methamphetamine right then, but that she could get cocaine. The undercover officer asked if she could get more than one gram of it. After she made a telephone call to her source, she told him she could get two grams of cocaine for $200. She met with two undercover officers at around 12:15 a.m. the next morning. Cathey told the undercover officers that her source was not yet at home and they would have to wait until he called. The source called at approximately 12:48 a.m. and the undercover officers then paid her $200 in marked bills. She left to pick up the drugs and later returned, accompanied by Charley Ferlito, Jr., with two grams of cocaine. She gave the cocaine to the undercover officers.

On September 15, 1987, almost two weeks later, the undercover officer made another call to Cathey, again to set up a drug deal. He asked for an "8-ball," 1/8 ounce of methamphetamine. She said it would cost $300. The meeting occurred at 12:50 p.m. that evening, again at the corner *630 of St. Vincent and State Streets. She got in the undercover officer's car and traded the methamphetamine for the $300. She told him during the transaction to contact her in the future and not Lisa Burnley because she could get the drugs for him faster and with less hassle.

On November 6, 1987, Cathey and her codefendants, Burnley and Ferlito, were arrested. Both codefendants pled guilty to possession of Schedule II CDS for their activities in the transactions. Each received sentences of four years at hard labor, suspended, subject to four years supervised probation with special conditions. After Cathey's one-day trial, she was convicted on all three counts. As noted, her aggregate sentence was 14 years at hard labor and $15,000 in fines.

The test of excessiveness is two-tiered. First, while a trial court need not articulate every aggravating and mitigating factor of LSA-C.Cr.P. art. 894.1, the record must show that the district court took cognizance of these guidelines in particularizing the sentence to the defendant. State v. Smith, 433 So.2d 688 (La.1983). The articulation of the factual basis for a sentence is the goal of art. 894.1, not rigid or mechanical compliance with its provisions. Even if the district court does not fully comply with the article, remand is unnecessary as long as the record clearly shows an adequate factual basis for the sentence imposed. State v. Lanclos, 419 So.2d 475 (La.1982). The important factors to consider include the defendant's personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of the offense and likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Hudgins, 519 So.2d 400 (La.App. 2d Cir.1988), writ denied 521 So.2d 1143 (La.1988).

The sentencing colloquy presents difficulties. Even though Cathey had no prior history of criminal activity or delinquency, the trial court concluded, without stating a factual basis, that her criminal conduct was the result of circumstances likely to reoccur and that her character and attitude did not indicate that she could stay free from crime if placed on supervised probation. It noted the suspended sentences of her codefendants but indicated that made "no difference." It further noted that the PSI indicated she had been in the drug culture since dropping out of school at age 16; however, it ignored her apparent lack of involvement with law enforcement subsequent to her arrest in September 1987 until sentencing in September 1989. The court stated that she had no "credible" work record, yet dismissed the fact that she was only 19 years old at the time of sentencing and was employed both at the time of these offenses and afterward. The trial court failed to articulate an adequate factual basis to particularize the sentence imposed to the defendant and therefore did not adequately comply with art. 894.1. Smith, supra; Lanclos, supra.

The second tier is constitutional excessiveness. A sentence violates LSA-Const. Art. 1, § 20 (1974) if it is grossly out of proportion to the seriousness of the offense or nothing more than a needless and purposeless imposition of pain and suffering. State v. Bonanno, 384 So.2d 355 (La. 1980). A sentence is grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, the sentence shocks the sense of justice. State v. Hogan, 480 So.2d 288 (La.1985). Important considerations include the nature of the offense and the offender (i.e., the harm caused or threatened to the victim as well as the culpability and character of the offender) and comparison of defendant's sentence with those imposed upon others for a similar crime. State v. Lathers, 444 So.2d 96 (La.1983); State v. Telsee,

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Bluebook (online)
569 So. 2d 627, 1990 WL 166902, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-cathey-lactapp-1990.