Opinion
NO. 2012 KA 0306
10-24-2012
STATE OF LOUISIANA v. COURTNEY J. JOHNSON
Hillar C. Moore, III District Attorney Dylan C. Alge Assistant District Attorney Baton Rouge, Louisiana Counsel for Plaintiff/Appellee State of Louisiana Frederick Kroenke Baton Rouge, Louisiana Counsel for Defendant/Appellant Courtney J. Johnson
NOT DESIGNATED FOR PUBLICATION
Appealed from the
19th Judicial District Court
In and for the Parish of East Baton Rouge
State of Louisiana
Case No. 07-10-0554
The Honorable Richard D. Anderson, Judge Presiding
Hillar C. Moore, III
District Attorney
Dylan C. Alge
Assistant District Attorney
Baton Rouge, Louisiana
Counsel for Plaintiff/Appellee
State of Louisiana
Frederick Kroenke
Baton Rouge, Louisiana
Counsel for Defendant/Appellant
Courtney J. Johnson
BEFORE: CARTER, C. J., GU1DRY, AND GAIDRY, JJ.
GAIDRY , J.
The defendant, Courtney J. Johnson, was charged by bill of information with possession of oxycodone, a violation of La. R.S. 40:967(C). The defendant initially pled not guilty. He later changed his plea to guilty to the responsive offense of attempted possession of oxycodone. See La. R.S. 14:27 and 40:979. The defendant waived sentencing delays, and the trial court sentenced him to two and one-half years imprisonment at hard labor. He subsequently filed a pro se motion for post-conviction relief seeking an out-of-time appeal, which was granted. The defendant now appeals, designating two assignments of error. We affirm the conviction and sentence.
FACTS
As a basis for the guilty plea, the defendant agreed with the following rendition of facts. On June 10, 2010, officers with the Baton Rouge City Police Department stopped the defendant's vehicle due to excessive window tinting. It was also determined that his driver's license had been suspended. The officers read the defendant his Miranda rights and patted him down. During the course of that process, they discovered twenty-one pills of oxycodone in the defendant's front pocket. The defendant admitted that he had gotten the pills from his wife, and that he had no valid prescription for them for himself.
ASSIGNMENT OF ERROR NO. I
In his first assignment of error, the defendant argues that the trial court erred in imposing a sentence that is unconstitutionally excessive. Specifically, the defendant argues that the maximum sentence for attempted possession of oxycodone, two and one-half years imprisonment at hard labor, is not appropriate in the instant case because the defendant is not one of the worst types of offenders and the crime committed was not one of violence. The defendant also argues that the trial court did not sufficiently articulate the basis for the sentence as required by La. Code Crim. P. art. 894.1, and that it would have been appropriate for the trial court to order a presentence investigation report (PSI).
The defendant concedes that he did not make an oral or written motion to reconsider sentence. One purpose of the motion to reconsider sentence is to allow the defendant to raise any errors that may have occurred in the sentencing while the trial judge still has the jurisdiction to change or correct the sentence. The defendant may point out such errors or deficiencies, or may present argument or evidence not considered in the original sentencing, thereby preventing the necessity of a remand for resentencing. State v. Mims, 619 So.2d 1059 (La. 1993) (per curiam). Under the clear language of La. Code Crim. P. art. 881.1(E), failure to make or file a motion to reconsider sentence precludes a defendant from raising an objection to the sentence on appeal, including a claim of excessiveness. Accordingly, in this case the defendant is procedurally barred from having his challenge to the sentence reviewed by this Court on appeal. See State v. Duncan, 94-1563 (La. App. 1st Cir. 12/15/95), 667 So.2d 1141, 1143 (en banc per curiam). See State v. Felder, 2000-2887 (La. App. 1st Cir. 9/28/01), 809 So.2d 360, 369, writ denied, 2001-3027 (La. 10/25/02), 827 So.2d 1173.
The defendant's first assignment of error is without merit.
ASSIGNMENT OF ERROR NO. 2
In his second assignment of error, the defendant contends that in the event that trial counsel's failure to file a motion to reconsider sentence precludes this Court from considering the constitutionality of the sentence, then that failure constitutes ineffective assistance of counsel.
At the outset, however, the State argues that the defendant is also barred from appealing or seeking review of his sentence because it was imposed in conformity with a plea agreement which was set forth in the record at the time of the plea. See La. Code Crim. P. art. 881.2(A)(2). The State points out that during the guilty plea colloquy, the prosecutor stated, "It's my understanding, your Honor, that [defense counsel] discussed a best interest plea in this matter," to which defense counsel responded, "That's correct, your Honor." In addition, immediately after the defendant's sentence was announced, the State informed the trial court that it was waiving any habitual offender prosecution which might arise from the conviction. The State claims that prior to pleading, the State and defense counsel arranged for the defendant to plead to a reduced charge of attempted possession of oxycodone, and that the State would waive habitual offender proceedings if the trial court would impose the maximum sentence for attempted possession of oxycodone. The State maintains that all parties were aware of this arrangement prior to the imposition of the sentence, but concedes that the exact details are not in the record.
After a careful review, we conclude that the record reveals that a plea agreement existed at the time of the defendant's plea, but that the agreement was not set forth in the record with any particularity. Without specific reference to an agreed-upon sentence in the record at the time of the plea, La. Code Crim. P. art. 881.2(A)(2) does not bar appellate review of the sentence imposed. See State v. Faul, 2003-1423 (La. App. 1st Cir. 2/23/04), 873 So.2d 690, 692. The mere act of entering a guilty plea to a reduced charge, without specific reference to an agreed upon sentence, sentencing range, or sentencing cap, does not act as a de facto sentencing cap foreclosing appellate review of any subsequent sentence. State v. Raymond, 97-0202 (La. App. 1st Cir. 2/20/98), 708 So.2d 1156, 1157. Accordingly, we will address the merits of the defendant's argument.
As a general rule, a claim of ineffective assistance of counsel is more properly raised by an application for post-conviction relief in the district court where a full evidentiary hearing may be conducted. Nonetheless, where the record discloses evidence needed to decide the issue of ineffective assistance of counsel, and that issue is raised by assignment of error on appeal, the issue may be addressed in the interest of judicial economy. See State v. Henry, 2000-2250 (La. App. 1st Cir. 5/11/01), 788 So.2d 535, 538, writ denied, 2001-2299 (La. 6/21/02), 818 So.2d 791. Thus, in the interest of judicial economy, we choose to consider the defendant's excessiveness argument in order to address the claim of ineffective assistance of counsel. See State v. Wilkinson, 99-0803 (La. App. 1st Cir. 2/18/00), 754 So.2d 301, 303, writ denied, 2000-2336 (La. 4/20/01), 790 So.2d 631.
A defendant is entitled to effective assistance of counsel under the Sixth Amendment to the United States Constitution and Article I, § 13 of the Louisiana Constitution. A claim of ineffectiveness is analyzed under the two-pronged test developed by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct 2052, 2064, 80 L.Ed.2d. 674 (1984). The defendant must show that: (1) his attorney's performance was deficient, which requires a showing that counsel made errors so serious that he was not functioning as counsel guaranteed by the Sixth Amendment, and (2) the deficiency prejudiced the defendant, which requires a showing that the errors were so serious that the defendant was deprived of a fair trial. The defendant must prove actual prejudice before relief will be granted. State v. Serigny, 610 So.2d 857, 859-60 (La. App. 1st Cir. 1992), writ denied, 614 So.2d 1263 (La. 1993). It is not sufficient for a defendant to show that the error had some conceivable effect on the outcome of the proceeding. Rather, he must show that, but for the counsel's unprofessional errors, there is a reasonable probability the outcome of the trial would have been different. State v. McMillan, 2009-2094 (La. App. 1 st Cir. 7/1/10), 43 So.3d 297, 302, writ denied, 2010-1779 (La. 2/4/11), 57 So.3d 309. Further, it is unnecessary to address the issues of both the counsel's performance and prejudice to the defendant if the defendant makes an inadequate showing on one of the components. See Serigny, 610 So.2d at 860.
The failure to file a motion to reconsider sentence in itself does not constitute ineffective assistance of counsel. However, if the defendant can show a reasonable probability that, but for counsel's error, his sentence would have been different, a basis for an ineffective assistance claim may be found. Thus, the defendant must show that but for his counsel's failure to file a motion to reconsider sentence, the sentence would have been changed, either in the district court or on appeal. Felder, 809 So.2d at 370.
The Eighth Amendment to the United States Constitution and Article I, Section 20, of the Louisiana Constitution prohibit the imposition of excessive or cruel punishment. Although a sentence may be within statutory limits, it may violate a defendant's constitutional right against excessive punishment and is subject to appellate review. State v. Sepulvado, 367 So.2d 762, 767 (La. 1979). Generally, a sentence is considered excessive if it is grossly disproportionate to the severity of the crime or is nothing more than the needless imposition of pain and suffering. A sentence is considered grossly disproportionate if, when the crime and punishment are considered in the light of the harm to society, it is so disproportionate as to shock one's sense of justice. State v. Hurst, 99-2868 (La. App. 1st Cir. 10/3/00), 797 So.2d 75, 83, writ denied, 2000-3053 (La. 10/5/01), 798 So.2d 962.
Louisiana Code of Criminal Procedure article 894.1 sets forth items which must be considered by the trial court before imposing sentence. While the trial court need not recite the entire checklist of Article 894.1, the record must reflect that it adequately considered the guidelines. State v. Williams, 521 So.2d 629, 633 (La. App. 1st Cir. 1988). In light of the criteria expressed by Article 894.1, a review for individual excessiveness must consider the circumstances of the crime and the trial court's stated reasons and factual basis for its sentencing decision. State v. Watkins, 532 So.2d 1182, 1186 (La. 1988). However, the goal of Article 894.1 is the articulation of the factual basis for a sentence, not rigid or mechanical compliance with its provisions. See State v. Lanclos, 419 So.2d 475, 478 (La. 1982). Even when a trial court assigns no reasons, the sentence will be set aside on appeal and remanded for resentencing only if the record is either inadequate or clearly indicates that the sentence is excessive. See La. Code Crim. P. art. 881.4(D); State v. Harris, 601 So.2d 775, 779 (La. App. 1st Cir. 1992).
The crime of possession of oxycodone, with which the defendant was originally charged, exposed the defendant to a term of imprisonment with or without hard labor for not more than five years and, in addition, may have been sentenced to pay a fine of not more than five thousand dollars. La. R.S. 40:967(C)(2). The crime of attempted possession of oxycodone, to which the defendant pled guilty, exposed defendant to a term of imprisonment not to exceed one-half of the longest term of imprisonment prescribed for possession. La. R.S. 40:979(A). Thus, the trial court's sentence of two and one-half years imprisonment at hard labor, with no fine, falls within the statutory guidelines.
At the guilty plea colloquy, the trial court inquired about the defendant's age, level of education, his ability to read and understand English, and his most recent employment. The defendant waived sentencing delays, and the trial court sentenced him to two and one-half years at hard labor, without stating reasons. However, immediately thereafter the State announced that it was waiving any habitual offender prosecution which might arise from this conviction. In addition, at the time the defendant entered his guilty plea, the State and defense counsel informed the trial court that defense counsel had discussed a best interest plea in this matter.
The defendant argues on appeal that the two and one-half year sentence is excessive because it is the maximum sentence for attempted possession of oxycodone, but maximum sentences should be reserved for the worst offenders, which he is not. He also points out that his was not a crime of violence which might justify the maximum penalty. The defendant further contends that it would have been appropriate for the trial court to order a PSI, considering that the defendant admitted that the oxycodone pills belonged to his wife and further investigation could have substantially ameliorated his guilt. The defendant also argues that he showed willingness to cooperate by changing his plea to guilty. The State contends that the defendant is in fact one of the worst offenders for attempted possession, pointing out that the defendant did not merely attempt to possess, but was actually in possession of twenty-one pills of oxycodone.
A trial judge is given wide discretion in the imposition of sentences within statutory limits, and the sentence imposed should not be set aside as excessive in the absence of manifest abuse of discretion. State v. Hurst, 797 So.2d at 83. In the instant case, even though the record does not set forth a plea agreement with particularity, it is clear that the defendant acknowledged making a best interest plea and pled guilty to a lesser charge, and that the State agreed to forego habitual offender proceedings. The trial court could properly consider the circumstances of that plea agreement, whatever it was. In addition, the defendant was actually in possession of twenty-one pills of oxycodone. Even though the defendant pleads guilty to a lesser charge, it is not improper for the sentencing court to consider the defendant's actual conduct. See State v. Wooden, 572 So.2d 1156, 1161 (La. App. 1st Cir. 1990); State v. Heath, 447 So.2d 570, 577 (La. App. 1st Cir. 1984), writ denied, 448 So.2d 1302 (La. 1984). Further, while a PSI can provide helpful information to a trial court in determining an appropriate sentence, there is no requirement in law that a PSI be conducted, and such an investigation is more in the nature of an aid to the court, and not a right of the accused. See La. Code Crim. P. art. 875(A)(1); State v. Howard, 262 La. 270, 263 So.2d 32, 35 (1972). Based on the circumstances of the guilty plea and the facts adduced at the guilty plea colloquy, we find that the trial court did not abuse its discretion in sentencing the defendant to two and one-half years imprisonment at hard labor. Therefore, the sentence is not excessive. Accordingly, even if trial counsel's failure to file or make a motion to reconsider sentence constituted deficient performance, the defendant has failed to prove actual prejudice.
Assignment of Error No. 2 is without merit.
Accordingly, we affirm the defendant's conviction and sentence.
CONVICTION AND SENTENCE AFFIRMED.
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).