Fifth Circuit Court of Appeal

Case Number: 16-KA-600

Judge: Susan M. Chehardy, Fredericka Homberg Wicker, and Jude G. Gravois

Court: FIFTH CIRCUIT COURT OF APPEAL, STATE OF LOUISIANA

Plaintiff's Attorney:

Paul D. Connick, Jr.
Terry M. Boudreaux
Gail D. Schlosser
Seth W. Shute

Defendant's Attorney:

Lieu T. Vo Clark

Description: On July 31, 2015, the Jefferson Parish District Attorney filed a bill of
information charging defendant with possession of heroin, a violation of La. R.S.
40:966(C). A twelve-person jury found defendant guilty as charged on May 3,
2016. He was sentenced to ten years imprisonment at hard labor on May 26, 2016,
after which he filed a motion to reconsider sentence and a motion for appeal. On
June 3, 2016, the district court denied the former and granted the latter.
Thereafter, on July 21, 2016, the state filed a multiple offender bill of
information alleging defendant to be second felony offender. At the hearing on the
bill, the court adjudicated defendant a second felony offender, vacated his original
sentence, and imposed an enhanced sentence of twenty years imprisonment at hard
labor without the benefit of probation or suspension of sentence. Defendant filed a
motion to reconsider his enhanced sentence and a motion for appeal. On July 27,
2016, the district court denied the motion to reconsider and granted defendant’s
appeal.
FACTS
Around 10:30 p.m. on the night of June 26, 2015, Detectives William
Whittington and John Wiebelt of the Jefferson Parish Sheriff’s Office (“JPSO”)
were conducting undercover surveillance as part of a narcotics investigation in and
around the intersection of South Jamie Boulevard and U.S. Highway 90 in
Avondale, Louisiana. From their separate unmarked vehicles, both detectives
observed a Ford Ranger pickup truck enter a McDonald’s parking lot without “too
many cars” and park at a distance from the restaurant’s entrance. This aroused the


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detectives’ suspicions since a patron of the restaurant would typically park close to
the entrance in an uncrowded lot. But the driver of the truck, a female, remained in
her vehicle and seemed to be waiting for something.
Approximately ten minutes later, a red Chrysler Sebring convertible entered
the lot and parked next to the truck. The female exited her truck and entered the
passenger side of the Sebring. The Sebring then “idled through” the parking lot
and pulled up next to a fuel pump at a nearby gas station. The car remained next to
the pump for approximately one or two minutes, but no one exited the vehicle and
no gas was pumped. The Sebring then “idled back” next to the truck in the
McDonald’s parking lot. The female exited the Sebring, entered her truck, and
drove off.
Suspecting that a narcotics transaction had occurred, Detective Whittington
decided to stop the Sebring. His decision to stop the Sebring rather than the truck,
he explained, was motivated in part by a recently-received tip from a confidential
informant that defendant drove a red Chrysler Sebring convertible and was “known
to sell quantities of heroin throughout Avondale.” Detective Whittington requested
the assistance of JPSO Deputy Joseph Waguespack to conduct the stop with his
marked police vehicle. With lights and sirens, Deputy Waguespack stopped the
Sebring several blocks away from the McDonald’s. Upon contact with the vehicle,
Detective Whittington immediately recognized the driver as defendant who had an
outstanding attachment for his arrest. Defendant was placed under arrest and a
search incident thereto turned up three grams of heroin in his pocket.
DISCUSSION
On appeal, defendant does not challenge his conviction, but assigns two
errors regarding his sentence. He argues that the district court erred in denying his
motion to reconsider his enhanced sentence and that his enhanced sentence is
unconstitutionally excessive. We address these interrelated assignments together.


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The failure to make or to file a motion to reconsider sentence, or to state the
specific grounds upon which the motion is based, limits a defendant to a review of
the sentence for constitutional excessiveness only. State v. Brown, 15-96 (La. App.
5 Cir. 9/15/15), 173 So.3d 1262, 1269. Here, because defendant’s motion to
reconsider merely argued that his enhanced sentence was excessive, we
accordingly limit our review to excessiveness.
The Eighth Amendment to the United States Constitution and Article I, § 20
of the Louisiana Constitution prohibit the imposition of excessive punishment.
State v. McGowan, 16-130 (La. App. 5 Cir. 8/10/16), 199 So.3d 1156, 1162. A
sentence is considered excessive, even if it is within the statutory limits, if it is
grossly disproportionate to the severity of the offense or imposes needless and
purposeless pain and suffering. Id. A sentence is grossly disproportionate if, when
the crime and punishment are considered in light of the harm done to society, it
shocks the sense of justice. State v. Hill, 12-495 (La. App. 5 Cir. 12/18/12), 106
So.3d 1209, 1212.
An appellate court shall not set aside a sentence for excessiveness if the
record supports the sentence imposed. La. C.Cr.P. art. 881.4(D); McGowan,
supra. In reviewing a sentence for excessiveness, the appellate court shall consider
the crime and the punishment in light of the harm to society and gauge whether the
penalty is so disproportionate as to shock the sense of justice, while recognizing
the sentencing court’s broad discretion. Id. at 1162-63. When reviewing the
sentencing court’s discretion, three factors are considered: (1) the nature of the
crime, (2) the nature and background of the offender, and (3) the sentence imposed
for similar crimes by the same court and other courts. Id. at 1163. Before
considering these three factors, we choose to note that defendant’s sentence was
within the statutory limits and was less than his potential sentencing exposure.


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Under the law in effect at the time of the offense, possession of heroin
carried a mandatory penalty of imprisonment at hard labor for not less than four
nor more than ten years. La. R.S. 40:966(C). Defendant was sentenced to the
maximum ten years, but this sentence was vacated when defendant was
adjudicated a second felony offender on the basis of his predicate conviction for
possession of heroin in 24th JDC No. 03-2308. Pursuant to La. R.S. 15:529.1,
defendant’s second felony offender status carried a mandatory penalty of
imprisonment at hard labor for not less than five nor more than twenty years
without benefit of probation or suspension of sentence. Defendant was sentenced
to the maximum twenty years.
This maximum sentence was due in part to defendant’s refusal to accept plea
bargains from the state. Prior to trial of this matter, the state offered defendant a
plea deal that was put on the record. It was acknowledged that defendant was a
quadruple felony offender facing a possible life sentence if convicted of the instant
offense, and that in exchange for a guilty plea, the state would charge defendant as
a second felony offender for which he would receive a twelve-year sentence. In
exchange for this plea, the state further offered defendant a concurrent ten-year
sentence and agreed not to multiple bill him on additional charges pending against
him in 24th JDC No. 13-1818—felon in possession of a firearm (La. R.S. 14:95.1),
possession with intent to distribute heroin (La. R.S. 40:966(A)), and possession
with intent to distribute cocaine (La. R.S. 40:967(A)).
Defendant did not accept the offered plea deal, proceeded to trial, and was
convicted. The state did not bill defendant as a quadruple felony offender, but
billed him as a second felony offender. At the hearing on this bill, defendant was
advised that if he stipulated to the bill as a second felony offender, he would
receive an enhanced sentence of fifteen years. But if he denied the allegation and
forced the state to prove his second felony offender status, he would receive an


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enhanced sentence of twenty years. Defendant elected the latter option, was
adjudicated a second felony offender, and was sentenced to twenty years. The
state then dismissed the pending charges in 24th JDC No. 13-1818 and 24th JDC
No. 13-2056.1
With the foregoing in mind, we now turn to the three factors of our
excessiveness inquiry. First, regarding the nature of the crime, defendant was
sentenced to twenty years on the basis of two felony convictions for heroin
possession. Though defendant was convicted of simple possession, the facts of
this case and defendant’s history suggest that he is involved in heroin distribution.
It is difficult to overstate the serious nature of any crime involving heroin given the
danger the substance presently poses to public health. According to the Centers for
Disease Control and Prevention, “[h]eroin-related overdose deaths [in the United
States] have more than quadrupled since 2010.”2
Second, regarding defendant’s background, the record indicates that
defendant has a criminal history, including a felony conviction for heroin
possession and several felony drug charges. In fact, defendant’s reputation for
selling “quantities of heroin throughout Avondale” contributed to his arrest in this
case.
Lastly, regarding sentences for similar crimes, the Louisiana Supreme Court
has approved a twenty-year enhanced sentence for a second felony offender with
an underlying conviction for possession of heroin. In State v. Thompson, 02-333
(La. 4/9/03), 842 So.2d 330, the defendant, who had been convicted of two counts
of heroin possession and adjudicated a second felony offender, received an
enhanced sentence of twenty years on one of the counts, to be served concurrently
with his ten-year sentence on the other. On appeal, the Fourth Circuit reversed one

1 In 24th JDC No. 13-2056, defendant was charged with the misdemeanor offenses of resisting an officer (La. R.S. 14:108) and battery of a police officer (La. R.S. 14:34.2). 2 https://www.cdc.gov/drugoverdose/data/heroin.html (last visited June 27, 2017).


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of the convictions and the corresponding enhanced sentence, but on certiorari
review, the Louisiana Supreme Court reinstated both, finding the sentence was
within the sentencing court’s discretion in view of the defendant’s previous
twenty-three felony and six misdemeanor arrests, as well as a conviction for
possession of cocaine. Id. at 338.
Our review of the three foregoing factors as well as the facts and
circumstances of this case leads us to conclude that the district court did not abuse
its broad discretion in sentencing defendant to the maximum twenty years as a
second felony offender. Accordingly, we likewise find that the district court did
not err in denying defendant’s motion to reconsider his enhanced sentence. These
assignments of error are without merit.
ERRORS PATENT
The record was reviewed for errors patent according to La. C.C.P. art. 920;
State v. Oliveaux, 312 So.2d 337 (La. 1975); and State v. Weiland, 556 So.2d 175
(La. App. 5 Cir. 1990). Our review indicates that defendant was not advised of the
applicable prescriptive period in which to seek post-conviction relief.
Accordingly, by way of this opinion, defendant is hereby advised that no
application for post-conviction relief, including applications which seek an out-of
time appeal, shall be considered if it is filed more than two years after the
judgment of conviction and sentence has become final under the provisions of La.
C.Cr.P. arts. 914 or 922. See State v. Brooks, 12-226 (La. App. 5 Cir. 10/30/12),
103 So.3d 608, 615, writ denied, 12-2478 (La. 4/19/13), 111 So.3d 1030.

Outcome: