State v. Zeigler

968 So. 2d 875, 2007 WL 3087155
CourtLouisiana Court of Appeal
DecidedOctober 24, 2007
Docket42,661-KA
StatusPublished
Cited by37 cases

This text of 968 So. 2d 875 (State v. Zeigler) 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. Zeigler, 968 So. 2d 875, 2007 WL 3087155 (La. Ct. App. 2007).

Opinion

968 So.2d 875 (2007)

STATE of Louisiana, Appellee
v.
Garry ZEIGLER, Sr., Appellant.

No. 42,661-KA.

Court of Appeal of Louisiana, Second Circuit.

October 24, 2007.

*876 Louisiana Appellate Project', by James E. Beal, Jonesboro, for Appellant.

Garry Zeigler, Sr., Jerry L. Jones, District Attorney. Robert N. Anderson, Assistant District Attorney, for Appellee.

Before STEWART, DREW and MOORE, JJ.

STEWART, J.

The defendant, Garry Zeigler, Sr., was convicted of distribution of cocaine. After remand from this court, defendant was sentenced as a fourth felony offender to 30 years at hard labor without benefit of probation or suspension of sentence, the first two years of which to be served without *877 benefit of parole.[1] The defendant now seeks review of his sentence for excessiveness. Finding no merit in his claims, we affirm his sentence.

FACTS

A jury convicted Zeigler of distribution of cocaine, and the facts of the case are set out in this court's previous opinion, wherein it affirmed the conviction. See State v. Zeigler, 40,673 (La.App.2d Cir.1/25/06), 920 So.2d 949. In short, the defendant was identified to the Metro Narcotics FBI Drug Task Force as a cocaine supplier, the task force then set up an undercover "buy bust" with Zeigler, and defendant sold six pieces of crack cocaine to an undercover agent in exchange for $100. The state filed a habitual offender bill of information alleging that Zeigler should be sentenced as a fourth habitual offender based upon the following prior felony convictions: (1) two counts of simple burglary on June 22, 1977, in Docket No. 37,702; (2) distribution of cocaine, a Schedule II CDS, on January 16, 1992, in Docket No. 91F0877; and, (3) possession of cocaine, a Schedule II CDS, on January 26, 2000, in Docket No. 98-F1617. The trial court refused to consider the 1977 convictions for simple burglary on the ground that it could not insure that the defendant's due process rights had been protected in the absence of a transcript of that guilty plea colloquy. Thus, in accordance with La. R.S. 15:529.1(A)(1)(b)(i), the trial court sentenced defendant as a third felony offender to 25 years at hard labor, with credit for time served, without benefit of parole, probation, or suspension of sentence.

On appeal, this court mistakenly found that the defendant had been convicted of possession of cocaine with intent to distribute in Docket No. 98-F1617, instead of possession of cocaine. Thus, this court mistakenly ordered that the sentence be remanded so that the trial court could sentence Zeigler to life imprisonment without benefit of parole, probation or suspension of sentence as a third felony offender pursuant to La. R.S. 15:529.1(A)(1)(b)(ii). On remand, the trial court complied with this court's sentencing instructions. On appeal from remand, this court noted its prior mistake in sentencing the defendant as a third felony offender to life imprisonment without benefit of parole, probation, or suspension of sentence. This court then considered the state's appeal of the defendant's sentence, wherein it argued that the trial court had erred in refusing to consider Zeigler's 1977 convictions for simple burglary and that he should be considered a fourth felony offender. This court found that the trial court should have considered the 1977 convictions and sentenced him as a fourth felony offender pursuant to La. R.S. 15:529.1(A)(1)(c)(i), which states that defendant "shall be sentenced to imprisonment for the fourth or subsequent felony for a determined term no less than the longest prescribed for a first conviction but in no event less than 20 years and not more than his natural life." See State v. Zeigler, 41,617 (La.App.2d Cir.12/20/06), 945 So.2d 946. Applying this formula to the prescribed sentence for distribution of cocaine under La. R.S. 40:967(B)(4)(b), the sentencing range for the defendant as a fourth felony offender is 30 years to life *878 imprisonment at hard labor, without benefit of probation or suspension of sentence, and without benefit of parole for the first two years. On the second remand, the trial court imposed the minimum sentence of 30 years at hard labor without benefit of probation or suspension of sentence, and without benefit of parole for the first two years. This appeal ensued.

DISCUSSION

The defendant argues that the 30-year sentence is excessive and that the trial court's original sentence of 25 years should be reinstated. The state argues that the 30-year sentence imposed on the defendant was the mandatory minimum sentence that could be imposed upon him under the habitual offender statute and that the minimum sentence is presumed to be constitutional. The state further argues that the defendant presented no evidence to show the trial court why anything less than the mandatory minimum sentence should be imposed.

In reviewing claims of excessive sentence, an appellate court uses a two-step process. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not a rigid or mechanical compliance with its provisions. The trial court is not required to list every aggravating or mitigating circumstance so long as the record reflects that it adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688, 698 (La.1983); State v. Dunn, 30,767 (La.App.2d Cir.06/24/98), 715 So.2d 641, 643. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with La. C. Cr. P. art. 894.1. State v. Lanclos, 419 So.2d 475, 478 (La. 1982). The important elements which should be considered are the defendant's personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense, and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049, 1051-52 (La.1981); State v. Haley, 38,258 (La.App.2d Cir.04/22/04), 873 So.2d 747, 753, writ denied, 2004-2606 (La.06/24/05), 904 So.2d 728.

Second, whether the sentence imposed is too severe depends on the circumstances of the case and the background of the defendant. A sentence violates La. Const. art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276, 1280 (La.1993); State v. Bonanno, 384 So.2d 355, 358 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Hogan, 480 So.2d 288, 291 (La.1985).

There is no requirement that specific matters be given any particular weight at sentencing. State v. Jones, 33,111 (La.App.2d Cir.03/01/00), 754 So.2d 392, 394, writ denied, XXXX-XXXX (La.02/02/01), 783 So.2d 385. As a general rule, maximum sentences are appropriate in cases involving the most serious violation of the offense and the worst type of offender. State v. Grissom, 29,718 (La. App.2d Cir.8/20/97), 700 So.2d 541; State v. Walker, 573 So.2d 631 (La.App. 2d Cir. 1991). The trial court shall exercise its sentencing discretion to impose sentences according to the individualized circumstances of the offense and the offender. State v.

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968 So. 2d 875, 2007 WL 3087155, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-zeigler-lactapp-2007.