State v. Insley

893 So. 2d 209, 2005 WL 233530
CourtLouisiana Court of Appeal
DecidedFebruary 2, 2005
Docket04-1006
StatusPublished
Cited by6 cases

This text of 893 So. 2d 209 (State v. Insley) 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. Insley, 893 So. 2d 209, 2005 WL 233530 (La. Ct. App. 2005).

Opinion

893 So.2d 209 (2005)

STATE of Louisiana
v.
Neal W. INSLEY.

No. 04-1006.

Court of Appeal of Louisiana, Third Circuit.

February 2, 2005.

*210 William E. Tilley, District Attorney, Thirtieth Judicial District Court, Terry Wayne Lambright, Leesville, LA, for Appellee, State of Louisiana.

Paula Corley Marx, Louisiana Appellate Project, Lafayette, LA for Defendant/Appellant, Neal W. Insley.

Court composed of JOHN D. SAUNDERS, MARC T. AMY, and MICHAEL G. SULLIVAN, Judges.

*211 AMY, Judge.

The defendant pled guilty to attempted cultivation of marijuana and was sentenced to serve four years at hard labor and to pay a fine of one thousand five hundred dollars plus court costs. The defendant now appeals, asserting that his sentence was unconstitutionally excessive, and not particularized to him, pursuant to La.Code Crim.P. art. 894.1. He also asserts that the trial court erred in refusing his request for post-conviction bail. For the following reasons, we affirm.

Factual and Procedural Background

According to the factual basis supplied by the State at the defendant's guilty plea hearing, members of the Vernon Parish Sheriff's Office and the Vernon Parish Task Force went to a residence to arrest an individual for a probation violation. That individual lived in the residence with the defendant and helped to care for him, as the defendant is restricted to a wheelchair. While on the premises, the officers noticed five marijuana plants growing in plain view beside a shed behind the residence. The defendant admitted that the plants were his and that he had been growing them. He also consented to a search of the residence, where officers found marijuana and drug paraphernalia.

The defendant was charged by a bill of information with one count of cultivation of marijuana in violation of La.R.S. 40:966, one count of possession of marijuana in violation of La.R.S. 40:966, and one count of possession of drug paraphernalia in violation of La.R.S. 40:1033. The defendant entered a plea of not guilty at his arraignment on December 2, 2003. However, on February 4, 2004, pursuant to a plea agreement with the State, he entered a plea of guilty to attempted cultivation of marijuana, a violation of La.R.S. 14:27 and La.R.S. 40:966. The remaining charges were dismissed. The defendant was sentenced to serve four years at hard labor and was ordered to pay a fine of one thousand five hundred dollars plus court costs. The defendant filed a motion to reconsider on May 19, 2004, which was denied. The defendant now appeals, alleging the following as error:

1. The sentence imposed was cruel, unusual, and unconstitutionally excessive.
2. The trial court failed to particularize the sentence to this offender and offense, and further failed to comply with the mandates of Article 894.1 in sentencing Neal Insley.
3. A four year hard labor sentence was imposed, thus the trial judge erred in denying bail to Neal Insley after sentence and until final judgment.

Discussion

Errors Patent

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed by the court for errors patent on the face of the record. After reviewing the record, we find that there are no errors patent.

Excessive Sentence and Particularization of Sentence to Defendant

In his first assignment of error, the defendant contends the sentence imposed is cruel, unusual, and unconstitutionally excessive. In his second assignment of error, the defendant contends the trial court failed to particularize the sentence to this offender and offense, and further failed to comply with the mandates of La.Code Crim.P. art. 894.1. Inasmuch as these two assignments of error are closely related, we will discuss them together.

The defendant questions in his appellate brief whether mandatory incarceration fits the crime committed, asserting in support that the plants were grown for his own *212 personal use. The defendant further asserts that the trial court did not demonstrate compliance with the requirement in La.Code Crim.P. art. 894.1(C) that the sentencing court state the considerations taken into account for the record, in order to ensure that a sentence is individualized. The defendant specifically points to the trial court's comment, "[f]irst, this is a drug case and there is always significant harm to society in general when one is dealing in the use or distribution of illegal drugs." The defendant's argument with regard to the statement is two-fold: first, that the statement merely reflects the trial judge's "personal feelings" and, second, that the trial judge did not thereafter articulate how the defendant's "cultivation and personal use of marijuana was or could have been a significant harm to society." The defendant further argues in his appellate brief that the trial court "seemed unduly impressed" with the defendant's criminal history and failed to give adequate consideration to a number of mitigating circumstances. Finally, the defendant states that, "[t]he failure of the court to give appropriate weight to the mitigating factors in this case and the facts of the crime has resulted in an unconstitutionally excessive sentence[.]"

This court has stated the standard for reviewing an excessive sentence as follows:

The Eighth Amendment to the United States Constitution and La. Const. art. I, § 20 prohibit the imposition of cruel or excessive punishment. "`[T]he excessiveness of a sentence becomes a question of law reviewable under the appellate jurisdiction of this court.'" State v. Dorthey, 623 So.2d 1276, 1280 (La.1993) (quoting State v. Sepulvado, 367 So.2d 762, 764 (La.1979)). Still, the trial court is given wide discretion in imposing a sentence, and, absent a manifest abuse of that discretion, we will not deem as excessive a sentence imposed within statutory limits. State v. Pyke, 95-919 (La.App. 3 Cir. 3/6/96), 670 So.2d 713.... The only relevant question for us to consider on review is not whether another sentence would be more appropriate, but whether the trial court abused its broad discretion in sentencing a defendant. State v. Cook, 95-2784 (La.5/31/96), 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).

State v. Whatley, 03-1275, pp. 5-6 (La.App. 3 Cir. 3/3/04), 867 So.2d 955, 958. A sentence will only be deemed excessive if it amounts to a needless and purposeless imposition of pain and suffering or if it is so grossly disproportionate to the seriousness of the crime as to shock one's conscious. State v. Walker, 96-112 (La.App. 3 Cir. 6/5/96), 677 So.2d 532, writ denied, 96-1767 (La.12/6/96), 684 So.2d 924.

With respect to a trial court's compliance with the requirements of La.Code Crim.P. art. 894.1, this court has stated:

The Legislature has provided criteria to aid a sentencing court in determining whether a sentence of imprisonment should be imposed and whether suspension of a sentence or probation is warranted. La.Code Crim.P. art. 894.1; State v. Klause, 525 So.2d 1076 (La.App. 3 Cir.1988). Paragraph C of Article 894.1 requires the court to state for the record the considerations taken into account and the factual basis used when imposing a sentence. The sentencing court need not articulate every circumstance or read through a checklist of items to comply with the requirements of La.Code Crim.P. art. 894.1. State v.

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Bluebook (online)
893 So. 2d 209, 2005 WL 233530, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-insley-lactapp-2005.