State v. Douglas

72 So. 3d 392, 2010 La.App. 1 Cir. 2039, 2011 La. App. LEXIS 896, 2011 WL 3107799
CourtLouisiana Court of Appeal
DecidedJuly 26, 2011
DocketNo. 2010 KA 2039
StatusPublished
Cited by4 cases

This text of 72 So. 3d 392 (State v. Douglas) 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. Douglas, 72 So. 3d 392, 2010 La.App. 1 Cir. 2039, 2011 La. App. LEXIS 896, 2011 WL 3107799 (La. Ct. App. 2011).

Opinion

HIGGINBOTHAM, J.

|2The defendant, Derrick Wayne Douglas, was charged by bill of information with possession with intent to distribute cocaine, a violation of LSA-R.S. 40:967(A). He pled not guilty. The State amended the bill of information to charge the defendant with possession of cocaine, a violation of LSA-R.S. 40:967(C). The defendant pled not guilty to the amended charge. The defendant was tried by a jury and found guilty of the responsive offense of attempted possession of cocaine, in violation of LSA-R.S. 40:967(C) and LSA-R.S. 14:27. See also LSA-R.S. 40:979. The defendant filed a pro se motion for post-verdict judgment of acquittal. The State filed a habitual offender bill of information. A hearing was held on the habitual offender bill of information, and the defendant was adjudicated a fourth-felony habitual offender.1 The defendant was sentenced to life imprisonment without the benefit of probation, parole,, or suspension of sentence. The trial court denied the defendant’s motion to reconsider sentence. Later, the court also denied the defendant’s pro se motion for post-verdict judgment of acquittal.

[395]*395The defendant appealed. On June 19, 2009, in an unpublished opinion, this court found merit in the defendant’s claim that the trial court failed to rule on the pro se motion for post-verdict judgment of acquittal before sentence. We noted that the trial court no longer had jurisdiction over the case at the time of the ruling on the pro se motion for post-verdict judgment of acquittal.2 We vacated the sentence and remanded the matter to the trial court for further proceedings. State v. Douglas, 09-0002 (La.App. 1st Cir.6/19/09), 11 So.3d 1246.

IsOn remand, the trial court denied the defendant’s motion for post-verdict judgment of acquittal. After a second habitual offender hearing, the defendant was again found to be a fourth-felony habitual offender and sentenced to life imprisonment at hard labor. The defendant moved for reconsideration of the sentence. The trial court denied the motion. The defendant now appeals, urging the following assignments of error by counseled and pro se briefs:

Counseled:
1.The trial court erred in imposing a sentence herein which is unconstitutionally excessive.
Pro se:
1. The trial court erred by not providing the [defendant] the prior appellate record, denying him a right to appeal his conviction.’
2. [The defendant’s] appeal counsel was ineffective.
3. The trial court erred in sentencing the [defendant] to life at hard labor as a habitual offender when the statute does not provide for a hard-labor sentence.
4. The trial court erred in sentencing the [defendant] to 51 years, then to a life sentence, without vacating the 51 year sentence.
5. The trial court erred in finding the [defendant] a fourth felony offender despite insufficient evidence of [defendant’s] knowing and intelligent waiver of constitutional rights during predicate guilty pleas.
6. The trial court erred in imposing a vindictive sentence on the [defendant] because he exercised his right to go to trial by jury.

We affirm the defendant’s conviction, habitual offender adjudication, and sentence.

FACTS

In the prior appeal, the facts of this ease were summarized as follows:

On or about February 14, 2007, at approximately 9:30 a.m., Detective Michael Burkett, of the Baton Rouge City Police Narcotics Division, received a tip from a confidential informant regarding narcotics activity involving the defendant at the 1100 block of North 48th Street. Detective Burkett and other officers responded to the scene in plain clothes and an unmarked vehicle. The officers wore badges identifying themselves as police officers. Detective Burkett |4observed the defendant and another subject sitting in a brown Cadillac in front of a residence. The defendant was positioned in the driver’s seat while the other occupant sat in the passenger seat.
The officers pulled into the driveway of the house, exited their vehicle, and began walking toward the Cadillac. The occupants observed the officers as they [396]*396approached. Detective Burkett and Detective Drew White observed the defendant as he reached between his legs, and the passenger placed an object in his mouth, opened the door, and exited the vehicle. Detective Burkett approached the driver’s side of the vehicle while the other officers went to the passenger side. Detective Burkett asked the defendant to step out of the vehicle and walk toward the front of the vehicle, and the defendant complied. Detective Burkett observed, through the open door of the car in plain view on the seat where the defendant was sitting, a bag of suspected marijuana and a bag of suspected crack cocaine between the seats, next to a digital scale. After being questioned, the passenger attempted to flee but was apprehended. Detective Burkett placed the defendant under arrest and informed him of his Miranda rights at the scene and again at the narcotics office interview room.
Upon a search incident to an arrest, more drugs were found on the passenger, and one hundred and fifteen dollars were found in the defendant’s pocket. The defendant stated that the money came from selling cocaine. The defendant also stated that he had purchased the cocaine and marijuana from the subject in the passenger seat and that he intended to smoke the marijuana but was going to sell the cocaine. The defense stipulated to the results of the Louisiana State Police Crime Lab Report, finding that the substances seized at the scene were tested and determined to consist of marijuana and cocaine.

COUNSELED ASSIGNMENT OF ERROR EXCESSIVE SENTENCE

In his sole counseled assignment of error, the defendant argues the trial court erred in imposing an unconstitutionally excessive sentence. Specifically, he argues that the maximum sentence of life imprisonment was not warranted in this case because there was no showing that he is the worst type of offender or that he committed the most serious violation of the offense. The State asserts the sentence imposed is justified based upon the defendant’s criminal history and his propensity to continue to break laws.

| r,Article I, § 20 of the Louisiana Constitution prohibits the imposition of excessive punishment. Generally, a sentence is unconstitutionally excessive if it is grossly disproportionate to the severity of the offense or is nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey, 628 So.2d 1276, 1280 (La.1993). A sentence is grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. State v. Hogan, 480 So.2d 288, 291 (La.1985).

The Louisiana Code of Criminal Procedure sets forth items that must be considered by the trial court before imposing sentence. LSA-C.Cr.P. art. 894.1. The trial court need not cite the entire checklist of Article 894.1, but the record must reflect that it adequately considered the criteria. State v. Herrin, 562 So.2d 1, 11 (La.App. 1st Cir.), writ denied, 565 So.2d 942 (La.1990).

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Cite This Page — Counsel Stack

Bluebook (online)
72 So. 3d 392, 2010 La.App. 1 Cir. 2039, 2011 La. App. LEXIS 896, 2011 WL 3107799, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-douglas-lactapp-2011.