State v. Console

• Decision Date: 30 April 2008
• Docket Number: No. 07-1422.,07-1422.
• Citation: 981 So.2d 875
• Parties: STATE of Louisiana v. Nicholas Trent CONSOLE.
• Court: Court of Appeal of Louisiana — District of US

981 So.2d 875

STATE of Louisiana v. Nicholas Trent CONSOLE.

No. 07-1422.

Court of Appeal of Louisiana, Third Circuit.

April 30, 2008.

Jennifer A. Jones, Assistant District Attorney, Thirty-Eighth Judicial District, Cameron, LA, for State of Louisiana.

G. Paul Marx, Attorney at Law, Louisiana Appellate Project, Lafayette, LA, for Defendant-Appellant: Nicholas Trent Console.

Court composed of MARC T. AMY, BILLY HOWARD EZELL, and J. DAVID PAINTER.

J. DAVID PAINTER, Judge.

Defendant pled guilty to two counts of possession of methamphetamine and/or cocaine, possession of stolen property, and possession of testosterone. Defendant was sentenced as follows: 1) docket number 124571, possession of methamphetamine, five years at hard labor; 2) docket number 124576, possession of stolen property, five years at hard labor, to run concurrently to docket number 124571; 3) docket number 125998, possession of methamphetamine and cocaine, five years at hard labor, to run consecutively to docket numbers 124571 and 124576 and concurrently with docket number 127642, suspended, with five years probation, effective upon release from the first two sentences, and a $2,000.00 fine and court costs over the probation period; and, 4) docket number 127642, possession of testosterone, five years at hard labor, also to run consecutively to docket numbers 124571 and 124576 and concurrently with docket number 125998, suspended, with five hears probation. Defendant is now before this court on appeal, asserting that his total sentence of ten years is excessive. For the following reasons, we affirm his sentences but remand the matter to the trial court for establishment of a payment schedule for the fine and court costs imposed.

FACTUAL AND PROCEDURAL BACKGROUND

Defendant, Nicholas Trent Console, was charged in four bills of information on three separate dates. On June 29, 2006, he was charged in docket number 124571, with possession of methamphetamine, in violation of La.R.S. 40:967(C), and in docket number 124576, with possession of stolen property, in violation of La.R.S. 14:69. On October 12, 2006, Defendant was charged in docket number 125998, with possession of methamphetamine and cocaine, in violation of La.R.S. 40:967(C). Finally, on March 12, 2007, he was charged in docket number 127642, with possession of testosterone, in violation of La.R.S. 40:968(C).

On March 7, 2007, Defendant pled guilty to the charges in docket numbers 124571, 124576, and 125998, two counts of possession of methamphetamine and/or cocaine and possession of stolen property. The minutes of the guilty plea indicate that charges in unrelated docket numbers 124574, 124575 and 124577-79 were dismissed upon the payment of damages of $542.82 by Monday, March 12, 2007. On March 12, 2007, Defendant pled guilty to the charge in docket number 127642, possession of testosterone.

Defendant was sentenced on May 22, 2007, in all four dockets, as follows: 1) docket number 124571, possession of methamphetamine, five years at hard labor; 2) docket number 124576, possession of stolen property, five years at hard labor, to run concurrently to docket number 124571; 3) docket number 125998, possession of methamphetamine and cocaine, five years at hard labor, to run consecutively to docket numbers 124571 and 124576 and concurrently with docket number 127642, suspended, with five years probation, effective upon release from the first two sentences, and a $2,000.00 fine and court costs over the probation period; and, 4) docket number 127642, possession of testosterone, five years at hard labor, also to run consecutively to docket numbers 124571 and 124576 and concurrently with docket number 125998, suspended, with five years probation. The State's Motion to Dismiss all remaining charges was granted. A Motion to Reconsider Sentence was filed on June 14, 2007, and subsequently denied without a hearing. Defendant now appeals, asserting that his total sentence of ten years is excessive.

DISCUSSION

Errors Patent

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find one error patent in that the trial court failed to establish a determinate payment plan for the fine and court costs ordered as conditions of probation.

"This court has found error patent when the trial court fails to establish a payment plan for fees ordered as conditions of probation." State v. Theriot, 04-897, 04-898, p. 7 (La.App. 3 Cir. 2/9/05), 893 So.2d 1016, 1021. In this case, as a condition of probation for the sentence imposed on the conviction of possession of methamphetamine and cocaine, docket number 125998, the trial court ordered that Defendant pay a fine of $2,000.00 "plus the court costs over his period of probation." However, the trial court failed to set a monthly payment amount. Therefore, pursuant to State v. Stevens, 06-818, p. 3 (La.App. 3 Cir. 1/31/07), 949 So.2d 597, 600, wherein we noted that the payment plan "may be determined by the trial court or formulated by Probation and Parole and approved by the trial court[,]" we find that the trial court's order is insufficient to constitute a determinate payment plan. Consequently, we remand the case to the trial court with instructions to establish a payment schedule for the fine and court costs ordered as conditions of probation; either or both of these amounts may be determined by the trial court or formulated by Probation and Parole and approved by the trial court.

Excessiveness of Sentence

In his sole assignment of error, Defendant argues that his ten-year sentence for drug possession is excessive because the trial court did not consider the needs of his family for support, his employment and other conduct since his arrest, his being the caregiver for his grandmother, his eligibility for a suspended sentence, and his "immediate confession and cooperation in the case." Defendant also maintains that the trial court should not have considered his unsuccessful substance abuse treatment as an aggravating factor.

This court has set forth the following standard to be used in reviewing excessive sentence claims:

La. Const. art. I, § 20 guarantees that, "[n]o law shall subject any person to cruel or unusual punishment." To constitute an excessive sentence, the reviewing court must find the penalty so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no measurable contribution to acceptable penal goals and is, therefore, nothing more than a needless imposition of pain and suffering. State v. Campbell, 404 So.2d 1205 (La.1981). The trial court has wide discretion in the imposition of sentence within the statutory limits and such sentence shall not be set aside as excessive absent a manifest abuse of discretion. State v. Etienne, 99-192 (La.App. 3 Cir. 10/13/99); 746 So.2d 124, writ denied, 00-0165 (La.6/30/00); 765 So.2d 1067. The relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. 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. Barling, 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035, 1042-43, writ denied, 01-838 (La.2/1/02), 808 So.2d 331.

To decide whether a sentence shocks the sense of justice or makes no meaningful contribution to acceptable penal goals, this court has held:

[An] appellate court may consider several factors including the nature of the offense, the circumstances of the offender, the legislative purpose behind the punishment and a comparison of the sentences imposed for similar crimes. State v. Smith, 99-0606 (La.7/6/00); 766 So.2d 501. While a comparison of sentences imposed for similar crimes may provide some insight, "it is well settled that sentences must be individualized to the particular offender and to the particular offense committed." State v. Batiste, 594 So.2d 1 (La.App. 1 Cir.1991). Additionally, it is within the purview of the trial court to particularize the sentence because the trial judge "remains in the best position to assess the aggravating and mitigating circumstances presented by each case." State v. Cook, 95-2784 (La.5/31/96); 674 So.2d 957, 958.

State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ denied, 03-562 (La.5/30/03), 845 So.2d 1061.

Defendant faced a total possible sentence of twenty-five years and a total possible fine of $18,000.00. First, the penalty for possession of methamphetamine and/or cocaine is imprisonment for not more than five years, with or without hard labor, and a possible fine of not more than $5,000.00. La.R.S. 40:967(C)(2). The trial court did not impose a ten-year sentence for this offense in docket number 124571, as alleged by Defendant, but instead, ordered a sentence of five years, the maximum possible jail time for this offense. Defendant was spared a possible $5,000.00 fine. Further, Defendant's five-year sentence for possession of methamphetamine and cocaine in docket number 125998, which was ordered to run consecutively to docket number 124571, was suspended; thus, Defendant will not be subjected to additional jail time unless he violates his probation. Defendant, however, was ordered to pay $2,000.00 and court costs but was not required to begin payment until his release on probation.

The penalty for possession of stolen property valued at $500.00 or more is up to ten years imprisonment, with or without hard labor, or a possible fine of not more than $3,000.00, or both. La.R.S. 14:69. Thus, Defendant's five-year hard labor sentence was half of the possible maximum sentence he could have received for this offense, and he was not fined. Further, the sentence was ordered to run concurrently to the five-year sentence in docket number 124571, which did not result in any additional jail time....