State v. Wortham

107 So. 3d 132, 2012 WL 5500441, 2012 La. App. LEXIS 1482
CourtLouisiana Court of Appeal
DecidedNovember 14, 2012
DocketNo. 47,431-KA
StatusPublished
Cited by2 cases

This text of 107 So. 3d 132 (State v. Wortham) 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. Wortham, 107 So. 3d 132, 2012 WL 5500441, 2012 La. App. LEXIS 1482 (La. Ct. App. 2012).

Opinion

CARAWAY, J.

hJatavious Wortham pled guilty to one count of distribution of cocaine and one count of simple possession of marijuana for which he received concurrent sentences of 12 years at hard labor and 6 months in the parish jail. After his probation on a separate felony was revoked, and his previous sentence imposed consecutively to his offenses of conviction, Wortham appealed his sentences as excessive. We affirm.

Facts

On June 23, 2011, Wortham was charged with separate counts of distribution of cocaine, possession of marijuana and resisting an officer after he sold the drugs to a confidential informant earlier in the year. At the time of the offenses, Wortham was on probation for a prior undisclosed felony for which he had received a suspended 8-year sentence with probation.

On December 5, 2011, Wortham pled guilty to distribution of cocaine and simple possession of marijuana in exchange for the state’s dismissal of the resisting an officer offense. Additionally, the state recommended a 12-year hard labor sentence for the distribution charge and that the court impose a concurrent sentence for the misdemeanor marijuana conviction.

At his guilty plea, Wortham confirmed that his attorney had explained the charges and penalties, as well as the state’s plea offer and “suggested sentence.” He also confirmed his understanding of his rights and waiver of those rights by the guilty plea. Wortham admitted to the prosecution’s stated factual basis for the plea. Finding that Wortham knowingly and voluntarily waived his rights, the trial court accepted Wortham’s guilty |2pleas. The defendant waived time delays for sentencing and no presentence investigation report was ordered.

Wortham received concurrent sentences of 12 years at hard labor without benefit of probation, parole, or suspension of sentence for the first 2 years on the cocaine conviction and 6 months in the parish jail for the marijuana conviction.

Immediately after sentencing, the trial court addressed the state’s petition to revoke Wortham’s probation on his previous felony conviction and the issue of whether the reinstated sentence should run concurrently or consecutively as follows:

COURT: All right. Any — any requests as it relates to how these should run?
STATE: No, Your honor.
COURT: All right. Then, Mr. Gilley, anything you or Mr. Wortham want to tell the Court?
GILLEY: No, Your Honor. He would like to have his probation revoked and start working on that time.
COURT: All right. Then we will show based upon the conviction of this felony, that his probation is revoked. Now, previously I had stated that 88,-743 and 83,744 will run concurrent with one another but the Court in 77,772 and 77,785 will revoke the probation, reinstate the original sentence, run that consecutive with the matters he had pled guilty to today and give him credit for time served.

After sentencing on December 12, 2011, Wortham sent a letter to the trial court entitled “Motion to appeal sentence” informing the court that his appointed attorney told him that if he pled guilty and took the 12-year recommended sentence, then [135]*135“everything else would be running | .¡concurrent.” Wortham asked that he be allowed to withdraw his plea1 or be resen-tenced so that all the sentences would run concurrently.

By letter stamped filed December 21, 2011, Wortham made a pro se request to reconsider sentence in which he asked the trial court to consider running his recent convictions concurrently with his prior sentences and recommend Wortham for a substance abuse program.2

The trial court responded to these letters by granting Wortham an appeal on December 29, 2011.

Discussion

On appeal, Wortham raises two sentencing issues. He first contends that the record lacks a sufficient factual basis for the 12-year sentence and does not indicate that the facts of the case “were adequately considered in particularizing the sentence to Mr. Wortham.” Wortham argues that he is a “youthful offender with a limited education” who sold “one $20 rock of crack to a confidential informant.” Wortham also complains that under these circumstances, the 12-year sentence, imposed consecutively to the original 8-year sentence on Wortham’s prior felony, are excessive.

The trial court has wide discretion in imposing a sentence within minimum and maximum limits allowed by the statute and a sentence will knot be set aside as excessive unless the defendant shows the trial court abused its discretion. State v. Hardy, 39,238 (La.App.2d Cir.1/26/05), 892 So.2d 710; State v. Young, 46,575 (La.App.2d Cir.9/21/11), 73 So.3d 473, writ denied, 11-2304 (La.3/9/12), 84 So.3d 550. The reviewing court does not determine whether another sentence would have been more appropriate, but whether the trial court abused its discretion. State v. Esque, 46,515 (La.App.2d Cir.9/21/11), 73 So.3d 1021, writ denied, 11-2347 (La.3/9/12), 84 So.3d. 551.

An excessive sentence is reviewed by examining whether the trial court adequately considered the guidelines established in La.C.Cr.P. art. 894.1 and whether the sentence is constitutionally excessive. State v. Gardner, 46,688 (La.App.2d Cir.11/2/11), 77 So.3d 1052. A review of the sentencing guidelines does not require a listing of every aggravating or mitigating circumstance; the trial court need only articulate a factual basis for the sentence and the record must reflect that the trial court adequately considered the guidelines of the sentencing guidelines. State v. Cunningham, 46,664 (La.App.2d Cir.11/2/11), 77 So.3d 477; State v. McGraw, 616 So.2d 262 (La.App. 2d Cir.1993). Where the record shows an adequate factual basis for the sentence imposed, remand is unnecessary even where the trial court has not fully complied with the sentencing guidelines of La.C.Cr.P. art. 894.1. State v. Lanclos, 419 So.2d 475 [136]*136(La.1982); State v. McGraw, supra. The important elements which should be considered are the defendant’s personal history, prior criminal record, seriousness of offense, and the likelihood of rehabilitation. State v. McGraw, supra. The trial court is not required to weigh any specific matters over other matters. State v. Moton, 46,607 (La.App.2d Cir.9/21/11), 73 So.3d 503, writ denied, 11-2288 (La.3/30/12), 85 So.3d 113; State v. Caldwell, 46,645 (La.App.2d Cir.9/21/11), 74 So.3d 248, writ denied, 11-2348 (La.4/27/12), 86 So.3d 625.

Under constitutional review, a sentence can be excessive even when it falls within statutory guidelines, if the punishment is so grossly disproportionate to the severity of the crime that it shocks the sense of justice and serves no purpose other than to inflict pain and suffering. State v. Fatheree, 46,686 (La.App.2d Cir.11/2/11), 77 So.3d 1047.

The trial court’s discretion in sentencing is not limited by sentencing recommendations from the state and the defense attorney. State v. Robinson, 33,921 (La.App.2d Cir.11/1/00), 770 So.2d 868; State v. Green, 221 La. 713, 60 So.2d 208 (1952).

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Bluebook (online)
107 So. 3d 132, 2012 WL 5500441, 2012 La. App. LEXIS 1482, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-wortham-lactapp-2012.