State v. Davis

528 So. 2d 615, 1988 WL 43098
CourtLouisiana Court of Appeal
DecidedMay 4, 1988
Docket19554-KA, 19555-KA
StatusPublished
Cited by11 cases

This text of 528 So. 2d 615 (State v. Davis) 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. Davis, 528 So. 2d 615, 1988 WL 43098 (La. Ct. App. 1988).

Opinion

528 So.2d 615 (1988)

STATE of Louisiana, Appellee,
v.
Joseph Eugene DAVIS and Glenda Ruth Davis, Appellants.

Nos. 19554-KA, 19555-KA.

Court of Appeal of Louisiana, Second Circuit.

May 4, 1988.
Writ Denied October 7, 1988.

*616 Thomas W. Davenport, Jr., Monroe, for appellants.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., James Norris, Dist. Atty., Marcus Clark, Asst. Dist. Atty., for appellee.

Before HALL, FRED W. JONES, Jr. and LINDSAY, JJ.

LINDSAY, Judge.

The defendants in these consolidated cases, Joseph Eugene Davis and Glenda Ruth Davis, are husband and wife. Both were arrested on November 11, 1986 and charged with one count of possession with intent to distribute a controlled dangerous substance, phencyclidine, commonly referred to as PCP, a violation of LSA-R.S. 40:966. They were also charged with obstruction of justice, a violation of LSA-R.S. 14:130.1. While free on bond, Joseph Davis was arrested on two subsequent occasions and charged with distribution of PCP.

Joseph Davis entered into a plea agreement whereby he pled guilty to one count of attempted possession of PCP and one count of distribution of PCP. In exchange for the pleas, the charge of obstruction of justice and the second charge of distribution of PCP were dismissed. Joseph Davis was sentenced to three years at hard labor on the attempted possession charge and five years at hard labor and a $5,000 fine on the distribution charge. In default of payment of the fine, the defendant was ordered to serve an additional six months imprisonment. These sentences were ordered to be served consecutively.

Glenda Ruth Davis also entered into a plea agreement and entered a plea of guilty to one count of attempted obstruction of justice. She was sentenced to serve two years at hard labor. The other charge against her was dismissed.

Both defendants appealed their sentences and the cases were consolidated on appeal. Joseph Davis contends that his sentences were excessive, both as to the length of the sentences and because the sentences were ordered to be served consecutively rather than concurrently.

Glenda Davis argues that her sentence was excessive and also argues that the trial court erred in refusing to allow her a hearing to rebut information in the presentence investigation which she claims was erroneous.

For the following reasons, we affirm the sentences of Joseph Davis. We vacate the sentence of Glenda Davis and remand her case for resentencing.

FACTS

On November 11, 1986, Monroe law enforcement officers received a tip that Joseph Davis was in possession of PCP. The Davis vehicle was stopped pursuant to this tip and Joseph Davis and his wife, Glenda Davis, were ordered out of the car. The defendants were ordered to place their hands on top of the vehicle. Glenda Davis removed her hands from the vehicle and entered the vehicle to retrieve a plastic bag. When ordered to cease this activity, she dropped a plastic bag containing cigarette rolling papers.

During a pat down search of Joseph Davis, a law enforcement officer detected a bottle in the defendant's shirt pocket. When the officer attempted to remove the bottle, Joseph Davis dropped the bottle to the ground and attempted to kick it under the car. A struggle ensued. Joseph Davis was subdued and the bottle was recovered. Although part of the contents were spilled, *617 a subsequent crime lab analysis determined that the bottle contained PCP.

During the altercation between Joseph Davis and the law enforcement officers, Glenda Davis again entered the car, grabbed a box of Sherman cigarettes and fled into a nearby wooded area. She was pursued and apprehended. The officers recovered a box containing several Sherman cigarettes. A laboratory analysis determined that these cigarettes had not been treated with PCP.

Both defendants were placed under arrest. Following this arrest, they made bond and were released. On November 24, 1986, they were charged by bill of information with one count of possession of PCP with intent to distribute and one count of obstruction of justice.

On December 16, 1986, while free on bond, Joseph Davis was arrested and charged with selling a PCP-laced cigarette to an undercover police officer. He again made bond and was released from jail. In May of 1987, Joseph Davis was arrested for the third time and charged with distribution of PCP.

Pursuant to plea agreements, Glenda Davis entered a plea of guilty on June 1, 1987 to one count of attempted obstruction of justice. On June 2, 1987, Joseph Davis entered a plea of guilty to one count of attempted possession of PCP arising from the incident on November 11, 1986. He also pled guilty to one count of distribution of PCP in connection with the December 16, 1986 arrest. In exchange for the pleas, the other charges of distribution of PCP and obstruction of justice were dismissed. The trial court ordered presentence investigations.

Both defendants were sentenced on August 17, 1987. The trial court sentenced Joseph Davis to serve three years at hard labor on the charge of attempted possession of PCP. On the charge of distribution of PCP, Joseph Davis was ordered to serve five years at hard labor and pay a fine of $5,000, or to serve an additional six months imprisonment in lieu of payment of the fine. The sentences were ordered to be served consecutively.

Glenda Davis was ordered to serve two years imprisonment at hard labor for attempted obstruction of justice.

In these appeals, both defendants contend their sentences are unconstitutionally excessive. In addition, Joseph Davis contends the trial court erred by ordering that his sentences be served consecutively rather than concurrently. Glenda Davis contends the trial court erred in considering erroneous information in the presentence investigation report and in not allowing her an opportunity to rebut this information.

We find that the sentences imposed upon Joseph Davis were not unconstitutionally excessive. Further we determine that the trial court did not err in ordering Joseph Davis' sentences to be served consecutively rather than concurrently. However, we do find error in the trial court's consideration of Glenda Davis' sentence, requiring that we vacate her sentence and remand the case for further proceedings and resentencing.

SENTENCING CONSIDERATIONS REGARDING GLENDA DAVIS

Glenda Davis argues that the trial court erred when it denied her an opportunity to rebut information contained in the presentence investigation report. She also objects to the trial court's statements that because she was involved in the drug trade she was not a good mother, that she was not truthful in the statements made to the probation officer who prepared the presentence investigation report, and that she was just as guilty as Joseph Davis of possession of PCP on November 11, 1986. She further attacks as untrue the trial court's statement that while she was free on bond she sold a PCP-laced cigarette to a police informant, and contends that she was not given an opportunity to rebut this erroneous information. Only the defendant's final contention is meritorious.

LSA-C.Cr.P. Art. 875 provides specific instances in which a trial court may order the Department of Public Safety and Corrections to prepare a presentence investigation of a defendant to aid the court in *618 imposing sentence. LSA-C.Cr.P. Art. 876 provides that the presentence investigation report is privileged.

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Bluebook (online)
528 So. 2d 615, 1988 WL 43098, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-davis-lactapp-1988.