State v. Day

915 So. 2d 950, 2005 WL 2864347
CourtLouisiana Court of Appeal
DecidedNovember 2, 2005
Docket05-287
StatusPublished
Cited by9 cases

This text of 915 So. 2d 950 (State v. Day) 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. Day, 915 So. 2d 950, 2005 WL 2864347 (La. Ct. App. 2005).

Opinion

915 So.2d 950 (2005)

STATE of Louisiana
v.
Paul E. DAY.

No. 05-287.

Court of Appeal of Louisiana, Third Circuit.

November 2, 2005.

*951 David W. Burton, District Attorney, DeRidder, LA, for Appellee, State of Louisiana.

Paula C. Marx, Louisiana Appellate Project, Lafayette, LA, for Defendant/Appellant, Paul E. Day.

Court composed of SYLVIA R. COOKS, OSWALD A. DECUIR, and MARC T. AMY, Judges.

AMY, Judge.

The defendant pled guilty to one count of possession of methamphetamine, in violation of La.R.S. 40:967. He was sentenced to pay a $1,000.00 fine and to serve sixty months at hard labor, with twelve months of the sentence suspended. The defendant was further sentenced to five years of supervised probation with special conditions after his prison term. This sentence is to be served consecutively to a previous sentence of seven years for possession and distribution of marijuana. The defendant appeals, alleging that his sentence is excessive. For the following reasons, we affirm and remand with instructions.

Factual and Procedural Background

Due to the defendant's guilty plea, no trial testimony was presented concerning the facts of the offense. Further, the State did not present a factual basis for the defendant's plea at the Boykin hearing or at the sentencing hearing. The district court stated that the factual basis for the conviction is comprised of the State's answer to the defendant's motion for discovery. The offense reports contained therein state that on November 7, 2003, Beauregard Parish Sheriff's officers searched the defendant's residence and found a small plastic bag containing methamphetamine as well as a smoking device which had marijuana in it.

*952 The bill of information for the instant offense charged the defendant with possession of marijuana in violation of La.R.S. 40:966(C) and possession of methamphetamine in violation of La.R.S. 40:967(C); both charges were also alleged to be second or subsequent offenses in violation of La.R.S. 40:982. Pursuant to an agreement with the State, the defendant pled guilty to one count of possession of methamphetamine and the State dismissed the charges relating to possession of marijuana and both of the subsequent offense charges. The defendant confirmed at his guilty plea hearing that the agreement contained no promises regarding the length of his sentence or the availability of early release. The defendant was subsequently sentenced to serve sixty months at hard labor, with twelve months of the sentence suspended. He was further sentenced to five years of supervised probation after his release with the conditions that he pay a fine of $1,000.00, reimburse the Indigent Defender Board $40.00, pay a monthly supervision fee of $50.00, pay a $5.00 monthly assessment fee as required by La.Code Crim.P. art. 895.1(F), refrain from drug and alcohol use, and submit to random drug and alcohol screens at his own expense. At the time of his arrest, the defendant had been on parole for a 1999 conviction for possession and distribution of marijuana, which had resulted in a seven year sentence; his sentence for the instant offense was to be served consecutively to that sentence.

The defendant timely filed a Motion to Reconsider Sentence, which was denied by the district court. The defendant now appeals, asserting that the district court erred in imposing a sentence that "is unconstitutionally excessive for this offender and this offense."

Discussion

Errors Patent

In accordance with La.Code Crim.P. art. 920, this court reviews all appeals for errors patent on the face of the record. After reviewing the record, we find there is one error which requires correction.

As conditions of his probation, the district court ordered the defendant to pay a $1,000.00 fine, plus costs and fees, as well as a $40.00 reimbursement fee to the Indigent Defender Board. The district court ordered that all sums be paid pursuant to a pay plan set by the defendant's probation officer. The trial court erred in failing to establish a payment plan for fees ordered as conditions of probation. See State v. Fontenot, 01-540 (La.App. 3 Cir. 11/7/01), 799 So.2d 1255; State v. Reynolds, 99-1847 (La.App. 3 Cir. 6/7/00), 772 So.2d 128. Therefore, we remand the matter and instruct the district court to specify a payment schedule for the fees ordered as conditions of the defendant's probation.

Excessive Sentence

As his sole assignment of error, the defendant alleges that the sentence imposed by the district court is excessive.

The defendant filed a Motion to Reconsider in accordance with La.Code Crim.P. art. 881.1. According to Article 881.1, in order to raise any sentencing claims on appeal, a defendant must file a motion to reconsider the sentence setting forth the specific grounds upon which the motion is based.[1]State v. Mims, 619 *953 So.2d 1059 (La.1993). The defendant need not, however, allege any more specific ground than that the sentence is excessive in order to preserve a claim of constitutional excessiveness. Id.

In his Motion to Reconsider, the defendant alleged that his sentence was excessive because he was "an excellent candidate for rehabilitation in that he has already submitted to and successfully completed a Drug Rehabilitation Program." The defendant also alleged in his Motion to Reconsider, as well as in his brief to this court, that his sentence should have been ordered to run concurrently with the sentence for his 1999 conviction, and not consecutively to it.

In Mims, the Louisiana Supreme Court held:

If the defendant does not allege any specific ground for excessiveness or present any argument or evidence not previously considered by the court at original sentencing, then the defendant does not lose the right to appeal the sentence; the defendant is simply relegated to having the appellate court consider the bare claim of excessiveness.

Id. 619 So.2d at 1059. (Emphasis added.)

The defendant alleged in his Motion to Reconsider that his sentence was excessive due to his successful completion of a drug rehabilitation program. Our review indicates that the district judge made the following statement to the defendant at his sentencing hearing, "You have been in in-patient drug programs; yet, you continue to involve yourself with illegal drug use. I have little hope for your rehabilitation with such a record." Consequently, in accordance with Mims, we find that the district court has already considered the defendant's allegations, that he has completed other rehabilitation programs and that he would be "a good candidate" for similar future programs, in establishing the sentence. Therefore, we decline to consider that argument separately from our bare excessiveness analysis. We will also consider his argument regarding the consecutive nature of his sentence in our bare excessiveness analysis.

This court has set forth the following standard to be used in reviewing excessive sentence claims:

La. Const. art. I, § 20

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Cite This Page — Counsel Stack

Bluebook (online)
915 So. 2d 950, 2005 WL 2864347, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-day-lactapp-2005.