Opinion
NUMBER 2012 KA 0975
12-21-2012
STATE OF LOUISIANA v. DUSTIN MORRIS
Ricky L. Babin District Attorney Counsel for Plaintiff/Appellee State of Louisiana Donald D. Candell Joni M. Buquoi Gonzales, LA Jane L. Beebe Louisiana Appellate Project New Orleans, LA Counsel for Defendant/Appellant Dustin Morris
NOT DESIGNATED FOR PUBLICATION
Appealed from the
Twenty-Third Judicial District Court
In and for the Parish of Ascension
State of Louisiana
Docket Number 27,595
Honorable Thomas J. Kliebert, Jr., Judge Presiding
Ricky L. Babin
District Attorney
Counsel for
Plaintiff/Appellee
State of Louisiana
Donald D. Candell
Joni M. Buquoi
Gonzales, LA
Jane L. Beebe
Louisiana Appellate Project
New Orleans, LA
Counsel for
Defendant/Appellant
Dustin Morris
BEFORE: CARTER, C.J., GUIDRY, AND GAIDRY, JJ.
GUIDRY , J.
The defendant, Dustin Morris, was charged by bill of information with one count of possession of a. schedule III controlled dangerous substance, i.e., Suboxone (buprenorphine & naloxone) (count I), a violation of La. R.S. 40:968(C); one count of possession of a schedule IV controlled dangerous substance, i.e., Soma (carisoprodol) (count II), a violation of La. R.S. 40:969(C); and one count of third-offense driving while intoxicated (count III), a violation of La. R.S. 14:98. Pursuant to a plea bargain, he pled guilty to counts I and III, and the State nolprossed count II. On count I, he was sentenced to five years at hard labor and was fined $1,000. On count III, he was sentenced to four years at hard labor, with forty-five days of the sentence without benefit of probation, parole, or suspension of sentence, and was fined $1,000. The sentences were ordered to run concurrently with each other. He moved for reconsideration of sentence, but the motion was denied. He now appeals, contending the sentence imposed on count I was excessive. For the following reasons, we affirm the convictions and sentences.
FACTS
Due to the defendant's guilty pleas, there was no trial, and thus, no trial testimony concerning the offenses. At the Boykin hearing, however, the defendant agreed with the following factual basis for the charges:
[O]n or about September 12th, 2010[,] in the Parish of Ascension[,] there was a car crash and [the defendant] had some prescription bottles in [his] pocket. One bottle containing Somas, the other bottle containing 35 Suboxones, and the prescription was not in [the defendant's] name. [The defendant] was swaying; [he] failed the horizontal gaze and stigma [sic] test; [he] admitted to taking some Somas about an hour before that. [The defendant] threw the prescription bottles away because [he] knew the cops were coming, and [he] [was] arrested and charged with possession of those drugs and for driving while under the influence.EXCESSIVE SENTENCE
In his sole assignment of error, the defendant argues the trial court erred in imposing the maximum sentence on count I because the defendant was "an addict who had never been forced to enter rehabilitation." He does not challenge the sentence imposed on count III.
Article I, Section 20, of the Louisiana Constitution prohibits the imposition of excessive 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. 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 light of the harm to society, it is so disproportionate as to shock one's sense of justice. 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, 99-2868, pp. 10-11 (La. App. 1st Cir. 10/3/00), 797 So. 2d 75, 83, writ denied, 00-3053 (La. 10/5/01), 798 So. 2d 962. Maximum sentences may be imposed only for the most serious offenses and the worst offenders, or when the offender poses an unusual risk to the public safety due to his past conduct of repeated criminality. State v. Miller, 96-2040, p. 4 (La. App. 1st Cir. 11/7/97), 703 So. 2d 698, 701, writ denied, 98-0039 (La. 5/15/98), 719 So. 2d 459.
Any person who violates La. R.S. 40:968(C) shall be imprisoned with or without hard labor for not more than five years and, in addition, may be required to pay a fine of not more than five thousand dollars. La. R.S. 40:968(C). On count I, the defendant was sentenced to five years at hard labor and was fined $ 1,000.
At sentencing, the court stated the defendant was twenty-eight years old and a multiple first offender. The court indicated it had ordered and reviewed a presentence investigation (PSI) report in the case. The court set forth it had considered the defendant's social history as well as the statements of his probation officer. The court noted the defendant's criminal record involving substance abuse dated back to 2002. Further, the court noted that following the instant offenses, the defendant had been arrested for introduction of contraband into a penal facility. The court found the defendant had continued to abuse substances after being afforded the opportunity for rehabilitation while on active probation following his 2010 conviction for the sale, distribution, and possession of a "legend drug." The court indicated it had considered all of the factors set forth in La. C. Cr. P. art. 894.1 in arriving at a sentence for the defendant.
The sentence imposed on count I was not grossly disproportionate to the severity of the offense and thus was not unconstitutionally excessive. Further, a maximum sentence was warranted. Count I was the most serious offense because the defendant's drug abuse caused him to lose control of a vehicle and created a risk of great bodily harm or death to the defendant and the public. Further, the defendant is the worst kind of offender because he refuses to stop committing drug offenses. We also note the defendant benefitted from plea bargaining in this case. A defendant's reduced penalty exposure as a result of plea bargaining is a valid factor for consideration in imposing sentence. See State v. Lanclos, 419 So. 2d 475, 478 (La. 1982).
This assignment of error is without merit.
REVIEW FOR ERROR
The defendant requests that this court examine the record for error under La. C. Cr. P. art. 920(2). This court routinely reviews the record for such errors, whether or not such a request is made by a defendant. Under La. C. Cr. P. art. 920(2), we are limited in our review to errors discoverable by a mere inspection of the pleadings and proceedings without inspection of the evidence.
On count III, the trial court sentenced the defendant to four years at hard labor, with forty-five days of the sentence without benefit of probation, parole, or suspension of sentence, and fined him $1,000. However, La. R.S. 14:98(D)(l)(a) requires one year of the sentence be imposed without benefit of probation, parole, or suspension of sentence and a mandatory fine of $2,000. Although the failure to impose the correct restrictions and the correct fine are errors under La. C. Cr. P. art. 920(2), these errors certainly are not inherently prejudicial to the defendant. Because the trial court's failure to impose the correct parole restriction and the correct fine were not raised by the State in either the trial court or on appeal, we are not required to take any action. As such, we decline to correct the illegally lenient sentence. See State v. Price, 05-2514, pp. 18-22 (La. App. 1st Cir. 12/28/06), 952 So. 2d 112, 123-25 (en banc), writ denied, 07-0130 (La. 2/22/08), 976 So. 2d 1277.
CONVICTIONS AND SENTENCES AFFIRMED.
Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).