State v. Dillon

812 So. 2d 770, 2002 WL 273528
CourtLouisiana Court of Appeal
DecidedFebruary 26, 2002
Docket01-KA-906
StatusPublished
Cited by11 cases

This text of 812 So. 2d 770 (State v. Dillon) 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. Dillon, 812 So. 2d 770, 2002 WL 273528 (La. Ct. App. 2002).

Opinion

812 So.2d 770 (2002)

STATE of Louisiana
v.
Michael DILLON.

No. 01-KA-906.

Court of Appeal of Louisiana, Fifth Circuit.

February 26, 2002.

*771 Bruce G. Whittaker, Louisiana Appellate Project, New Orleans, LA, for Michael Dillon, Defendant-Appellant.

*772 Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Thomas J. Butler, Assistant District Attorneys—Appellate Counsel, Lisa B. Schneider, Assistant District Attorney—Trial Counsel, Gretna, LA, for State of Louisiana, Plaintiff-Appellee.

Panel composed of Judges JAMES L. CANNELLA, MARION F. EDWARDS and SUSAN M. CHEHARDY.

CHEHARDY, Judge.

On January 23, 2001, the Jefferson Parish District Attorney's Office filed a bill of information charging the defendant, Michael Dillon, with five counts of distribution of cocaine, in violation of LSA-R.S. 40:967A. The next day, defendant was arraigned and pled not guilty. On March 7, 2001, trial was held and the jury found the defendant guilty as charged on all five counts. On March 15, 2001, the defendant was sentenced to twenty years at hard labor on each count, to be served consecutively, with the first five years being without benefit of probation, parole, or suspension of sentence. That same day, the State filed a multiple offender bill of information and the defendant denied the allegations of the multiple bill.

On April 4, 2001, the State presented evidence in support of the multiple offender bill of information and the trial judge found that the defendant was a third felony offender with one violent predicate offense. That day, the trial court vacated the defendant's sentence on count five and imposed an enhanced sentence of life imprisonment without benefit of parole, probation, or suspension of sentence, to be served consecutively to the original sentences for counts one through four. Defendant filed a timely motion for appeal.

FACTS

In March of 2000, the Jefferson Parish Sheriffs Office ("JPSO") Narcotics Division began an undercover narcotics operation in response to citizen complaints that an individual was selling illegal narcotics in the Avondale area. One of the coordinating officers, Lisa Fleming testified that, on March 13, 2000, she provided an undercover agent with currency to purchase narcotics and a vehicle equipped with audio and video equipment to record that purchase.

That same day, the undercover agent purchased two rocks of crack cocaine from a man who identified himself as "Michael Dillon." The transaction was recorded on videotape. On March 16, 2000, the undercover agent identified the defendant in a photographic line-up.

On April 4, 2000, another undercover agent purchased two rocks of cocaine from the defendant. The transaction was recorded on videotape. The second undercover agent also identified the defendant in a photographic line-up.

On April 5, 2000 and April 17, 2000, the first undercover agent again purchased two rocks of crack cocaine from the defendant. Both of these transactions were also recorded on videotape. On June 13, 2000, the second undercover agent again purchased two rocks of cocaine from the defendant. This transaction was also videotaped.

At trial, all five videotapes were played for the jury. Further, the parties stipulated that the substances acquired from all five transactions tested positive for cocaine. Finally, at trial, both undercover agents identified the defendant as the person from whom they purchased crack cocaine.

DISCUSSION

In brief, the defendant argues that his life sentence, imposed consecutively to his four twenty-year sentences, is excessive, considering the small amount of drugs that he sold. First, we note that the record *773 shows no evidence that defendant filed a written motion to reconsider sentence pursuant to La.C.Cr.P. art. 881.1.[1] Further, although defendant made an oral objection at his enhanced sentencing, his objection was not specific enough to satisfy the requirements of the article.[2] Defendant did not specifically object to the imposition of the consecutive sentences or the excessiveness of his life sentence. The failure to file a motion to reconsider sentence, or to state specific grounds upon which the motion is based, limits a defendant to a bare review of the sentence for constitutional excessiveness. State v. Curtis, 97-769 (La. App. 5 Cir. 2/11/98), 707 So.2d 1328, 1329-1330. Accordingly, our review is limited to the constitutional excessiveness of defendant's sentences.

The Eighth Amendment to the United States Constitution and Article I, § 20, of the Louisiana Constitution prohibit the imposition of excessive or cruel punishment. State v. Wickem, 99-1261 (La. App. 5 Cir. 4/12/00), 759 So.2d 961, 968, writ denied, 00-1371 (La.2/16/01), 785 So.2d 839. A sentence is constitutionally excessive, even if it is within the statutory limits, if it is grossly disproportionate to the severity of the offense or is nothing more than the needless and purposeless imposition of pain and suffering. Id. The sentence imposed will not be set aside as excessive absent a showing of manifest abuse of the trial court's wide discretion to sentence within statutory limits. Id.

Three factors are considered in reviewing a trial court's sentencing discretion: 1) the nature of the crime, 2) the nature and background of the offender, and 3) the sentence imposed for similar crimes by the same court and other courts. State v. Watts, 99-311 (La.App. 5 Cir. 8/31/99), 746 So.2d 58, writ denied, 99-2733 (La.3/24/00), 758 So.2d 145. The issue on appeal is whether the trial court abused its discretion, not whether another sentence might have been more appropriate. Id., at 64.

First, we consider the constitutional excessiveness of the twenty-year sentence imposed for each of defendant's five convictions for distribution of cocaine. The penalty for distribution of cocaine is imprisonment at hard labor for not less than five years nor more than thirty years, with the first five years of the sentence to be served without benefit of parole, probation, or suspension of sentence. In addition, the trial judge may impose a fine of not more than fifty thousand dollars on each count. La. R.S. 40:967(B)(4)(b).

In support of his argument that his sentences are excessive, defendant asserts that he "was convicted for selling small amounts of a controlled substance to persons he believed to be drug users" and he is not a "big time dope dealer."

In State v. George, 34,621 (La.App. 2 Cir. 4/4/01), 785 So.2d 975, the court affirmed a thirty-year sentence for a defendant who sold $20 worth of cocaine to an undercover police officer. As in the present case, the judge noted that the defendant had a lengthy criminal history. In affirming the sentence, the court of appeal pointed out that the defendant had "demonstrated *774 that he is not capable of leading a law-abiding life" because the record showed he spent his entire adult life either committing crimes or in prison. Id. at 980.

Similar circumstances are present here. The record shows that the defendant has prior felony convictions for issuing worthless checks and simple robbery. Prior criminal activity is one of the factors to be considered by the trial judge in sentencing a defendant and prior criminal activity is not limited to convictions. State v. Washington, 414 So.2d 313, 315 (La.1982). The defendant in the instant case received two-thirds of the maximum sentence for each of his convictions.

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Bluebook (online)
812 So. 2d 770, 2002 WL 273528, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-dillon-lactapp-2002.