Opinion
No. 34,520-KA.
May 9, 2001.
APPEALED FROM THE FOURTH JUDICIAL DISTRICT COURT FOR THE PARISH OF OUACHITA, LOUISIANA TRIAL COURT NO. 99-F1337 HONORABLE JOHN R. HARRISON, JUDGE.
ROBERT S. NOEL, II, Counsel for Appellant.
RICHARD IEYOUB, Attorney General, JERRY L. JONES, District Attorney, GEARY AYCOCK, Assistant District Attorney, Counsel for Appellee.
Before GASKINS, CARAWAY and DREW, JJ.
The defendant, Sylvester Wayne Myles, entered a plea of guilty to one count of attempted distribution of cocaine. He was sentenced to serve six years at hard labor, to be served consecutively with any other sentence. He appeals his sentence as excessive. We affirm the conviction and sentence.
FACTS
On July 26, 1999, an undercover law enforcement officer negotiated to buy a small amount of cocaine from the defendant. The defendant was unable to locate any cocaine to sell that day. On July 30, 1999, the officer again contacted the defendant and purchased from him two rocks of cocaine for $20.00. A little later that day, the officer purchased a $10.00 bag of marijuana from the defendant. On August 2, 1999, the undercover officer purchased four rocks of cocaine and one bag of marijuana from the defendant for $40.00. The defendant was arrested and charged with two counts of distribution of cocaine, two counts of distribution of marijuana, and one count of attempted distribution of cocaine.
On June 12, 2000, pursuant to a plea agreement, the defendant entered a plea of guilty to one count of attempted distribution of cocaine. In exchange for the guilty plea, the other four drug charges were dismissed. On July 5, 2000, the defendant appeared for sentencing. He was ordered to serve six years at hard labor, to run consecutively to any other sentence. Credit was given for time served and the defendant was properly informed of the applicable delays for seeking post conviction relief. The defendant filed a motion to reconsider sentence which was denied by the trial court on July 26, 2000. The defendant then appealed, arguing that his sentence is excessive.
Also, as noted in State v. Myles, 34,519 (La.App. 2d Cir. 5/9/01), 786 So.2d 902, rendered this day, an unrelated charge of armed robbery was dismissed, as well as another possession of cocaine charge.
The defendant argues that the trial court erred in ordering that his sentence be served consecutively with the sentence in an unrelated case. He claims that both offenses concerned sales of narcotics and contends that they arose out of the same course of conduct. Therefore, under La.C.Cr.P. art. 883, the defendant asserts that his sentence should have been ordered to be served concurrent to the sentence imposed in the plea in No. 34,519-KA, for second degree battery. He also argues that the sentence is excessive because he is a first felony offender. These arguments are without merit.
This same day, we render an opinion addressing the defendant's guilty plea and sentence for an unrelated offense of second degree battery in No. 34,519-KA.
La.C.Cr.P. art. 883 provides:
If the defendant is convicted of two or more offenses based on the same act or transaction, or constituting parts of a common scheme or plan, the terms of imprisonment shall be served concurrently unless the court expressly directs that some or all be served consecutively. Other sentences of imprisonment shall be served consecutively unless the court expressly directs that some or all of them be served concurrently. In the case of the concurrent sentence, the judge shall specify, and the court minutes shall reflect, the date from which the sentences are to run concurrently.
LEGAL PRINCIPLES
The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. 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 trial judge is not required to list every aggravating and mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La. 1983). The articulation of the factual basis for a sentence is the goal of La.C.Cr.P. art. 894.1, not rigid or mechanical compliance with its provisions. 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 the offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La. 1981); State v. Bradford, 29,519 (La.App. 2d Cir. 4/2/97), 691 So.2d 864; State v. Hudgins, 519 So.2d 400 (La.App. 2d Cir. 1988), writ denied, 521 So.2d 1143 (La. 1988).
Whether the sentence imposed is too severe depends upon 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 (La. 1993); State v. Bonanno, 384 So.2d 355 (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 (La. 1985); State v. Bradford, 29,519 (La.App. 2d Cir. 4/2/97), 691 So.2d 864.
A trial court has wide discretion to sentence within the statutory limits. Absent a showing of manifest abuse of discretion, we will not set aside a sentence as excessive. State v. Square, 433 So.2d 104 (La. 1983); State v. Washington, 29,478 (La.App. 2d Cir. 4/2/97), 691 So.2d 345.
A suspended sentence is not mandated simply because a defendant is a first felony offender. State v. Woodman, 28,004 (La.App. 2d Cir. 1/24/96), 666 So.2d 1255, writ denied, 96-0489 (La. 5/3/96), 672 So.2d 696.
DISCUSSION
The record shows that the trial court considered the sentencing factors set forth in La.C.Cr.P. art. 894.1. Prior to imposing sentence, the trial court reviewed a presentence investigation (PSI) report. The court noted that the defendant was 21 years old, had a normal childhood, and both of his parents had been employed. He changed schools frequently, was expelled once, and failed to graduate.
The trial court found that the defendant had been involved in drugs since the age of 18. The court noted that the defendant's attempt to distribute cocaine caused harm to the community. The sentencing court observed that the defendant had a significant criminal record, including convictions for simple battery, criminal mischief, contempt of court, resisting arrest on two separate occasions, and trespassing. The court expressed concern over the defendant's pattern of committing batteries and drug offenses, finding that the criminal conduct was likely to recur and the defendant would not respond favorably to probation. The court found that the defendant was in need of correctional treatment best provided by incarceration. The trial court noted that a lesser sentence than that actually imposed would deprecate the seriousness of the offense. Therefore, we find that the trial court adequately considered the factors listed in La.C.Cr.P. art. 894.1 in imposing this sentence.
Further, the sentence imposed is not excessive. The maximum period of incarceration that may be imposed for attempted distribution of cocaine is 15 years at hard labor. Additionally, the defendant received the benefit of a plea agreement whereby the other four drug offenses were dismissed, significantly reducing the defendant's maximum sentencing exposure. The sentence, which is less than one-half the maximum that could have been imposed, is not disproportionate to the severity of the offense and does not shock the sense of justice. Also, even though the defendant is a first felony offender, he possesses an extensive criminal history. Therefore, the trial court did not abuse its discretion in refusing to grant the defendant a suspended sentence.
We also note that this offense is unrelated to that charged in No. 34,519-KA. That offense, second degree battery, occurred in 1998, whereas the present drug offense took place in 1999. The offenses were not part of the same act or transaction and did not constitute parts of a common scheme or plan. Where two offenses are separate and not viewed as a single course of conduct, it is certainly within the discretion of the trial court to order that the terms of incarceration be served consecutively. State v. Robinson, 33,921 (La.App. 2d Cir. 11/1/00), 770 So.2d 868. Therefore, the trial court did not abuse its discretion in refusing to place the defendant on probation, in the length of sentence imposed, or in ordering that the sentence be served consecutively with any other sentence.
Upon examination, we have not found any error patent on the face of the record.
CONCLUSION
For the reasons stated above, we affirm the conviction and sentence of the defendant, Sylvester Wayne Myles, for attempted distribution of cocaine.
AFFIRMED.