State v. Powers

569 So. 2d 624, 1990 La. App. LEXIS 2426, 1990 WL 166869
CourtLouisiana Court of Appeal
DecidedOctober 31, 1990
DocketNo. 21833-KA
StatusPublished
Cited by2 cases

This text of 569 So. 2d 624 (State v. Powers) 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. Powers, 569 So. 2d 624, 1990 La. App. LEXIS 2426, 1990 WL 166869 (La. Ct. App. 1990).

Opinion

SEXTON, Judge.

The defendant, Richard 0. Powers, a/k/a Shane, along with his brother, William S. Powers, Jr., a/k/a Cass, was charged with distribution of cocaine, in violation of LSA-R.S. 40:967. The defendant pled guilty as charged and was sentenced to 25 years imprisonment at hard labor. On appeal, the defendant’s only assignment of error is that this sentence is excessive. Finding that the sentence is excessive, we vacate it and remand for resentencing.

On January 26, 1989, pursuant to information received from a confidential informant, two undercover Shreveport police officers, together with that informant, went to a pool hall in Minden, Louisiana. One of the officers and the informant entered the pool hall and made arrangements with the defendant to purchase one ounce of cocaine for $950. The defendant left the pool hall and returned with a substance later determined to be cocaine. The officer gave the defendant $1,000 in exchange for the cocaine. The defendant, apparently functioning primarily as an intermediary, handed the money to his brother, William S. Powers, Jr., who returned $100 to the defendant. The defendant transferred $50 of that money to the police officer and kept the remaining $50.

It is well settled that the sentencing judge is given wide discretion in imposing a sentence within the statutory limits and such a sentence should not be set aside as excessive in the absence of a manifest abuse of discretion. State v. Square, 433 So.2d 104 (La.1983); State v. Brooks, 431 So.2d 865 (La.App. 2d Cir.1983); State v. Hammonds, 434 So.2d 452 (La.App. 2d Cir.1983), writ denied, 439 So.2d 1074 (La.1983).

[625]*625The sentencing guidelines of LSA-C.Cr.P. Art. 894.1 provide the criteria to consider in determining whether a sentence is excessive. State v. Sepulvado, 367 So.2d 762 (La.1979); State v. Tully, 430 So.2d 124 (La.App. 2d Cir.1983), writ denied, 435 So.2d 438 (La.1983). While the trial judge need not articulate every aggravating and mitigating circumstance outlined in Art. 894.1, the record must reflect that he adequately considered these guidelines in particularizing the sentence to the defendant. State v. Nealy, 450 So.2d 634 (La.1984); State v. Knighton, 449 So.2d 1171 (La.App. 2d Cir.1984); State v. Smith, 433 So.2d 688 (La.1983); State v. Hammonds, supra; State v. Cunningham, 431 So.2d 854 (La.App. 2d Cir.1983), writ denied, 438 So.2d 1112 (La.1983).

The defendant received 25 years imprisonment at hard labor, only 5 years less than the maximum he was exposed to under LSA-R.S. 40:967 B(l). The trial court specifically stated that the only reason that defendant did not receive the maximum sentence was because he had no prior felony convictions. The defendant’s only prior conviction was a misdemeanor for what the presentence investigation (PSI) labeled “assault, battery, and great bodily injury with a deadly weapon.” That offense occurred in California in 1986. The defendant pled guilty and was sentenced to 180 days in jail, a $50 fine, and placed on three years probation. The defendant was also charged with attempted murder in 1988 in California. A jury found him not guilty on that charge and deadlocked as to lesser, included offenses. A mistrial was declared and the case was later dismissed.

The defendant also has charges pending in Bossier Parish for possession of cocaine with intent to distribute, possession of more than 28 grams of cocaine, and possession of a firearm during the commission of a drug felony. During the sentencing on the instant charge, the defendant professed his innocence on these pending drug charges, which all arose out of a single incident. The defendant admitted being in possession of the firearms, claiming he collects firearms and had recently purchased those found in his possession. Nevertheless, according to the defendant’s story, there were two automobiles involved in the Bossier Parish incident, only one of which was transporting cocaine. The defendant was apparently in the automobile in which no cocaine was found and he claimed he was unaware that drugs were being transported in the second vehicle. The trial court specifically noted that it was not considering the Bossier Parish arrest as an aggravating factor, noting that the defendant would be considered innocent on that charge until proven guilty.

The trial court’s statement that the defendant would have received the maximum sentence if this were not his first felony would seem to indicate that there were no other mitigating factors in this case. However, the record disputes this. The defendant, 26 years of age, is married and has one son and one daughter. The defendant’s imprisonment would likely entail some hardship on his family. The defendant and his family own a home and live in California. The defendant is a high school graduate and has attended several semesters at a community college. The defendant is in good physical and mental health and denies drug or heavy alcohol usage. The trial court also noted that it had received many letters

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Related

State v. Hamilton
594 So. 2d 1376 (Louisiana Court of Appeal, 1992)
State v. Cathey
569 So. 2d 627 (Louisiana Court of Appeal, 1990)

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Bluebook (online)
569 So. 2d 624, 1990 La. App. LEXIS 2426, 1990 WL 166869, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-powers-lactapp-1990.