State v. Guillory

• Court: Court of Appeal of Louisiana
• Writing for the Court: KYZAR, Judge.
• Citation: State v. Guillory, 350 So.3d 893 (La. App. 2022)
• Decision Date: 09 March 2022
• Docket Number: 21-590
• Parties: STATE of Louisiana v. Solomon Burke GUILLORY, Jr.

350 So.3d 893

STATE of Louisiana

v.Solomon Burke GUILLORY, Jr.

21-590

Court of Appeal of Louisiana, Third Circuit.

March 9, 2022

Dayal Reddy, Attorney at Law, 2901 Ridgelake Dr. Suite 105, Metairie, LA 70002, (504) 484-9040, COUNSEL FOR DEFENDANT/APPELLANT: Solomon Burke Guillory, Jr.

Hon. Trent Brignac, District Attorney, Julhelene E. Jackson, Assistant District Attorney, 13th JDC, P. O. Drawer 780, Ville Platte, LA 70586, (337) 363-3438, COUNSEL FOR APPELLEE: State of Louisiana

Court composed of Billy Howard Ezell, Van H. Kyzar, and Candyce G. Perret, Judges.

KYZAR, Judge.

Defendant, Solomon Burke Guillory, Jr., seeks review of his sentences following his convictions for the offenses of possession of cocaine, possession of marijuana, and possession of tramadol. For the reasons set forth herein, we affirm the sentences imposed by the trial court.

FACTS AND PROCEDURAL HISTORY

This matter is before this court on direct appeal for the second time. In State v. Guillory , 20-353 (La.App. 3 Cir. 5/12/21), 318 So.3d 368, we reversed Defendant's convictions for possession with intent to distribute cocaine and possession with the intent to distribute marijuana, rendered convictions of possession of cocaine, in violation of La.R.S. 40:967, and possession marijuana, in violation of La.R.S. 40:966, and remanded his case to the trial court for re-sentencing. We also affirmed Defendant's conviction and five-year sentence, including a fine of $2,500.00, for possession of tramadol, in violation of La.R.S. 40:969. Guillory , 318 So.3d 368.

On June 21, 2021, the trial court held a re-sentencing hearing and sentenced Defendant to two years at hard labor and a $2,500.00 fine for possession of cocaine, to run consecutively to his tramadol sentence, and fifteen days and a $300.00 fine for possession of marijuana, to run concurrently with his sentence for possession of cocaine. However, the trial court recalled the monetary fines and amended the sentences "to where [Defendant] is not paying any fines on the possession of crack cocaine and no fines on the marijuana." Defendant did not file a motion with the trial court for reconsideration of his sentences for these offenses.¹

Defendant is now before this court requesting an errors patent review and further asserting that his sentences are excessive, including his sentence for possession of tramadol.

ERRORS PATENT

All appeals are reviewed for errors patent on the face of the record in accordance with La.Code Crim.P. art. 920. After reviewing the record, we find no errors patent.

DISCUSSION

In his sole assignment of error, Defendant asserts that his sentences are excessive and illegal when considering "the negligible amount of alleged contraband allegedly attributed to his possession." The stipulated amount of contraband, as contained in the Acadiana lab report, described "3.5 grams of marijuana, 2.6 grams of cocaine, and 10 pills of Tramadol." Defendant argues that these amounts do not require a punishment of maximum and consecutive sentences, as was issued by the trial court. Defendant asserts that the trial court abused its discretion in issuing these sentences because the record does not reflect that he is the worst kind of offender, and, further, that certain facts should have been given additional consideration in mitigating his sentences. First, Defendant claims his record does not reflect any violent criminal history. Second, the record does not reflect that Defendant violated requirements of probation from his previous guilty pleas. Third, Defendant has training and experience to be employed lawfully as a tax-paying professional. Considering these mitigating facts, Defendant requests this court "reverse and vacate his consecutive sentences of two years for crack cocaine, five years for tramadol, and fifteen days – concurrently – for marijuana to be reversed and rendered to sentences of probation because the maximum sentence by the trial court is excessive."

The State counters Defendant's arguments and asserts that the sentence is not unconstitutionally excessive. The State notes that the trial court considered a pre-sentence investigation report, which provided information on Defendant's criminal record, the nature of any offenses allegedly committed, disposition of criminal charges, and any probation/parole record. The State also notes that the trial court found Defendant's offenses to be of such a nature that endangers the public, and Defendant was given an opportunity to, and did, provide mitigating factors for the trial court to consider. The State concludes by asserting the trial court imposed a sentence that was specific to Defendant's background and the facts of the case. According to the State, the sentence is within the statutory limit and is in compliance with guidelines contained La.Code Crim.P. art. 894.1.

This court has previously ruled on Defendant's excessive sentence claim for possession of tramadol and affirmed the conviction and sentence. Guillory , 318 So.3d 368. Therefore, we will not consider this claim again.

Louisiana Code of Criminal Procedure Article 881.1 provides the mechanism for preserving the review of a sentence for appeal, and in felony cases, requires the filing of a motion to reconsider the sentence within "thirty days following the imposition of sentence or within such longer period as the trial court may set at sentence[.]" La.Code Crim.P. art. 881.1(A)(1). The motion, whether orally or in writing "shall set forth the specific grounds on which the motion is based." La.Code Crim.P. art. 881.1(B).

Failure to make or file a motion to reconsider sentence or to include a specific ground upon which a motion to reconsider sentence may be based, including a claim of excessiveness, shall preclude the state or the defendant from raising an objection to the sentence or from urging any ground not raised in the motion on appeal or review.

La.Code Crim.P. art. 881.1(E).

Defendant's failure to make or file a motion to reconsider sentence can preclude him from appealing his sentence. State v. Duplantis , 13-424 (La.App. 3 Cir. 11/27/13), 127 So.3d 143, writ denied , 14-283 (La. 9/19/14), 148 So.3d 949. However, this court has previously reviewed claims of excessiveness where no motion to reconsider sentence was filed or objection made, performing a bare excessiveness review. State v. Debarge , 17-670 (La.App. 3 Cir. 2/7/18), 238 So.3d 491. We choose to do so here.

We note, as provided in La.Code Crim.P. art. 779, that Defendant's misdemeanor conviction for possession of marijuana, under La.R.S. 40:966, would not normally be triable by a jury, and, therefore, would not be reviewable on appeal. However, we will review this sentence here, as Defendant was originally charged and convicted of a felony, but on appeal, this court entered a misdemeanor conviction and remanded the case for resentencing, along with the conviction for possession of cocaine. Accordingly, Defendant's sentence is still entitled to review. Louisiana Code of Criminal Procedure Article 912.1 states, "The defendant may appeal to the court of appeal from a judgment in a criminal case triable by jury[.]" At the time of Defendant's first appeal, he was appealing the judgment of a criminal case that was triable by jury. For this matter, we look to State v. Norman , 20-142, pp. 8-9 (La.App. 5 Cir. 12/30/20), 310 So.3d 287, 294, writ denied , 21-150 (La. 4/7/21), 313 So. 3d 983, in which the fifth circuit held:

In the instant matter, Defendant was charged in the same bill of information with armed robbery (count one); illegal possession of stolen things valued at between $5,000 to $24,999 (count two); and aggravated flight from an officer in (count three). Trial commenced before a 12-person jury on October 28, 2019, and concluded the following day. Even though this case involves a misdemeanor conviction, we find that the matter is appealable because Defendant's charge as to count two was a felony that was "triable by a jury." See State v. Armant , 02-907 (La. App. 5 Cir. 1/28/03), 839 So.2d 271, 273 (where this Court noted that although the case involved the defendant's misdemeanor convictions, the matter was still appealable because it was triable by a jury); State v. Gaubert , 15-774 (La. App. 4 Cir. 12/9/15), 179 So.3d 982, 987, writ denied , 16-1579 (La. 1/23/17), 215 So.3d 681 (the Louisiana Fourth Circuit noted that it had jurisdiction over the defendant's appeal from her misdemeanor conviction because the defendant was charged and tried for a felony that was "triable by jury").

Accordingly, we will review whether Defendant's sentences for both possession of cocaine and marijuana were excessive. In doing so, we look to the following guidelines regarding excessive sentence review, laid out by our jurisprudence:

Sentences within the statutory sentencing range can be reviewed for constitutional excessiveness. State v. Sepulvado , 367 So.2d 762 (La.1979). In 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, a panel of this court discussed the review of excessive sentence claims, stating:

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

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