Opinion
No. 08-519.
November 5, 2008. NOT DESIGNATED FOR PUBLICATION
APPEAL FROM THE TWELFTH JUDICIAL DISTRICT COURT PARISH OF AVOYELLES, NO. 141,433-B, HONORABLE WILLIAM BENNETT, DISTRICT JUDGE.
Charles A. Riddle, III, District Attorney — 12th Judicial District Court, Anthony Francis Salario, Assistant District Attorney — 12th Judicial District Court, Marksville, LA, COUNSEL FOR: Plaintiff/Appellee — State of Louisiana.
Mark Owen Foster, Louisiana Appellate Project, Natchitoches, LA, COUNSEL FOR: Defendant/Appellant — Miquel Finch.
Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, OSWALD A. DECUIR, and MARC T. AMY, Judges.
The Defendant, Miquel Finch, was convicted of distribution of a controlled dangerous substance in violation of La.R.S. 40:967(A)(1). Subsequent to the conviction but prior to sentencing, he was charged by bill of information as a habitual offender in violation of La.R.S. 15:529.1. After a hearing, the Defendant was adjudicated as a third felony offender and sentenced to twenty years at hard labor with credit for time served. The trial court also ordered the sentence to run concurrently with any other sentence or sentences previously imposed and informed the Defendant that this is not an enhanced sentence, and that the sentence is subject to diminution for good behavior.
At the habitual offender hearing and sentencing, the trial court found no mitigating circumstances other than the trial counsel's argument that the underlying offense involved a sale of only two pills, which did not justify any reduction in the mandatory minimum sentence. The trial court further noted that the Defendant previously rejected a plea agreement for a ten-year sentence without a habitual offender proceeding being filed against him.
The Defendant appeals the habitual offender adjudication and sentencing on the basis of excessiveness. We affirm. In a separate proceeding, this court affirmed the underlying conviction for distribution of methamphetamine. See State of La. v. Miquel Finch, Docket No. 08-518.
Excessiveness of Sentence
As his sole assignment of error, the Defendant contends that his sentence is excessive because the trial court did not consider mitigating factors when imposing the sentence.
The Eighth Amendment to the United States Constitution and La.Const. art. 1, § 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)). Nevertheless, 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. Davenport, 07-254, pp. 3-4 (La.App. 3 Cir. 10/3/07), 967 So.2d 563, 565.
State v. Carter, 07-1237 (La.App. 3 Cir. 4/9/08), 981 So.2d 734, 754.
The Defendant was convicted of distribution of a controlled dangerous substance, a violation of La.R.S. 40:967(A)(1). The sentencing range for that offense is imprisonment at hard labor for not less than two years nor no more than thirty years and a fine of not more than fifty thousand dollars. Once the Defendant was adjudicated as an habitual offender, he was subject to a sentence of not less than two-thirds of the longest possible sentence and not more than twice the possible sentence. La.R.S. 15:529.1(A)(1)(a)(i). Thus, the sentencing range as an habitual offender was from twenty years to sixty years at hard labor. The Defendant was sentenced to serve the mandatory minimum of twenty years at hard labor.
Under the habitual offender law, mandatory minimum sentences are presumed to be constitutional. State v. Johnson, 97-1906 (La. 03/04/98), 709 So.2d 672. The Defendant can overcome this presumption by clear and convincing evidence that he has an exceptional circumstance, "which in this context means that because of unusual circumstances this defendant is a victim of the legislature's failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case." Id. at 676 (quoting State v. Young, 94-1636 (La.App. 4 Cir. 10/26/95), 663 So.2d 525, writ denied, 95-3010 (La. 3/22/96), 669 So.2d 1223).
The Defendant has failed to meet his burden. Other than making the general allegation that his sentence is excessive, the Defendant provides no factual support to demonstrate that he is an exception to the habitual offender law. As previously mentioned, his sentence of twenty years is the mandatory minimum allowed by law and, therefore, the sentence is presumed to be constitutional. The only mitigating factor that the Defendant raised before the trial court and before this court is that the offense involved the sale of only two pills. The trial court found that this did not justify a reduced sentence.
In State v. Fleming, 04-1218 (La.App. 5 Cir. 4/26/05), 902 So.2d 451, writ denied, 05-1715 (La. 2/10/06), 924 So.2d 161, the court addressed this particular issue and rejected the defendant's argument that a twenty-year sentence for possession of a glass tube containing only cocaine residue was constitutionally excessive. When affirming the defendant's sentence, the Fleming court relied on State v. Johnson, 03-903 (La.App. 5 Cir. 12/9/03), 864 So.2d 645, in which the court held that a small amount of cocaine (.01 grams) did not demonstrate the type of exceptional circumstances that justify a "downward departure from the minimum sentence mandated by the Habitual Offender Statute." Id. at 653-54.
Accordingly, the amount of drugs involved in the offense is of no consequence and, thus, the trial court was correct in its reasoning and judgment. The Defendant's sentence is not excessive and is affirmed.
Errors Patent
The habitual offender bill of information contains an incorrect statutory citation in the heading of the bill. Specifically, the bill cites La.R.S. 15:1353, a racketeering statute. The State cited the correct statute, La.R.S. 15:529.1, in the body of the bill.
Louisiana Code of Criminal Procedure Article 464 states:
The indictment shall be a plain, concise, and definite written statement of the essential facts constituting the offense charged. It shall state for each count the official or customary citation of the statute which the defendant is alleged to have violated. Error in the citation or its omission shall not be ground for dismissal of the indictment or for reversal of a conviction if the error or omission did not mislead the defendant to his prejudice.
There is nothing on the face of the record indicating this citation error misled the Defendant to his prejudice, and neither the minutes nor the pleadings indicate the Defendant alleged any prejudice prior to the hearing. Accordingly, this error is harmless. See State v. Poche, 05-1042 (La.App. 3 Cir. 3/1/06), 924 So.2d 1225 and State v. Roberts, 06-765 (La.App. 3 Cir. 1/17/07), 947 So.2d 208, writ denied, 07-362 (La. 10/5/07), 964 So.2d 938.
CONCLUSION
The Defendant's sentence is affirmed.
AFFIRMED.
THIS OPINION IS NOT DESIGNATED FOR PUBLICATION. Rule 2-16.3, Uniform Rules — Courts of Appeal.