State v. Langlinais

• Citation: 27 So.3d 1011
• Decision Date: 16 December 2009
• Docket Number: No. 09-422.,09-422.
• Parties: STATE of Louisiana v. Brenda LANGLINAIS.
• Court: Court of Appeal of Louisiana (US)

27 So.3d 1011

STATE of Louisiana v. Brenda LANGLINAIS.

No. 09-422.

Court of Appeal of Louisiana, Third Circuit.

December 16, 2009.

Mary Constance Hanes, New Orleans, LA, for Defendant/Appellant: Brenda Langlinais.

Hon. J. Phillip Haney, District Attorney, New Iberia, LA, for Plaintiff/Appellee: State of Louisiana.

Court composed of SYLVIA R. COOKS, JOHN D. SAUNDERS, and SHANNON J. GREMILLION, Judges.

SAUNDERS, Judge.

FACTS AND PROCEDURAL HISTORY:

On August 3, 2007, agents with the Iberia Parish Sheriff's Department received information that a large quantity of narcotics was located at a residence occupied by the Defendant, Brenda Langlinais. The homeowner, the Defendant's sister, consented to a search of the residence. During the search, agents witnessed the Defendant pick up an object on a nightstand and place it in the waistband of her pants. The object, a black plastic container, housed ten grams of crack cocaine, six large and nine small rocks. Also, approximately 590 tablets of Lortab (dihydrocodeinone) were seized in the search and neither the Defendant nor her sister, had a legitimate prescription for the medication.

On December 5, 2007, the Defendant was charged by bill of information as follows: count one-possession with intent to distribute a schedule III controlled dangerous substance, dihydrocodeinone, a violation of La. R.S. 40:968(A)(1); count two-possession with intent to distribute a schedule II controlled dangerous substance, cocaine, a violation of La. R.S. 40:967(A)(1); and, count three-possession of a firearm while in possession of dihydrocodeinone and cocaine, a violation of La. R.S. 14:95(E). Pursuant to a plea agreement, the Defendant entered a plea of no contest to counts one and two, and the remaining count was dismissed.

The Defendant was sentenced on June 25, 2008, to serve five years on count one, and to ten years on count two, with five years suspended. The sentences were ordered to run concurrently. The trial court also ordered five years of supervised probation upon the Defendant's release, along with special conditions of probation. The special conditions of probation are as follows:

1) Report to the probation office within twenty-four (24) hours of release;

2) report monthly and pay a $56.00 monthly supervision fee;

3) on the charge of Possession With Intent to Distribute Cocaine, pay a fine of $2,000.00 and on the charge of Possession with Intent to Distribute Dihydrocodeinone, pay a fine of $2,000.00; also pay cost of court; Fine and court cost is to be paid within two (2) years;

4) pay the cost of prosecution in the amount of $100.00 within two (2) years of signing up;

5) reimburse the Indigent Defender Board $500.00 for services rendered to be paid within two (2) years;

6) pay $500.00 for each charge to the 16th Judicial Acadiana Crime Lab Fund within three (3) years;

7) pay $100.00 to the Clerk of Court to defray the filing cost within sixty (60) days of signing up;

8) perform 100 eight (8) hour days of community service;

9) within seven (7) days of signing up, attend, pay for and successfully complete an approved substance abuse program and evaluation and follow any recommendation for treatment;

10) remain drug and alcohol free; stay out of bars, casinos and away from illicit drug and substance abusers;

11) attend five (5) AA or NA meetings a week while on probation;

12) medical condition is to be taken care of at Department of Corrections Facility

A motion to reconsider the Defendant's sentences was filed by her public defender on July 22, 2008, and denied on July 25 2008. A subsequent motion to reconsider was filed by private counsel on July 23, 2008, and denied as moot on July 28, 2008.

The Defendant is now before this court on appeal, asserting that her sentences and the fines and special conditions of probation are excessive.

ASSIGNMENT OF ERROR:

The sentence of five (5) years for possession with intent to distribute dihydrocodeinone (count one) and ten (10) years, with all but five (5) years suspended, for possession with intent to distribute cocaine (count two), and the fines and numerous special conditions of probation are excessive under the circumstances of this case.

DISCUSSION OF APPLICABLE LAW:

In her sole assignment of error, the Defendant argues that her sentences and the fines and special conditions of probation are excessive. 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[p.5] (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 [p. 3] (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.

The maximum possible sentence for possession with intent to distribute dihydrocodeinone is ten years at hard labor and a fine of not more than $15,000.00. La. R.S. 40:968(B). As such, the Defendant received one-half of the maximum possible sentence and her fine of $2,000.00 was significantly less than the maximum possible fine.

The sentencing range for possession with intent to distribute cocaine is two to thirty years at hard labor, the first two years to be served without benefit of parole, probation or suspension of sentence, and a fine of not more than $50,000.00. La. R.S. 40:967(B)(4)(b). The Defendant's ten-year sentence is one-third of the maximum possible sentence, and her $2,000.00 fine is a fraction of the maximum possible fine. Additionally, half of the Defendant's ten-year sentence was suspended, further reducing the amount of time she must serve.

Lastly, the benefit received from the Defendant's plea bargain was significant. Prior to her plea, the Defendant faced an additional hard-labor sentence of five to ten years, without benefit of probation, parole, or suspension of sentence, and a fine of not more than ten thousand dollars. La. R.S. 14:95(E).

At sentencing, the Defendant confirmed that she has been under continuous medical care since 1979. She also described her medical condition, stating that she had back surgery in 1979 and neck surgery in 1984. As a result, she suffers from chronic pain and had been under the treatment of Dr. Steven Staires for 3 weeks for pain management. When she began treatment under Dr. Staires, he reduced the large amount of pain medication that she had been taking for two years with the use of methadone. According to the Defendant, she could function but was still in pain. She also explained that she has a hammer toe and wears only a certain type of shoe. The Defendant testified that she has had ten heart stents and one renal stent and was due to return to her doctor in July. With regard to work, the Defendant stated that she was sitting with an elderly woman, but that the job was hard now because she was no longer taking pain medication.

In reaching its decision, the trial court stated that it considered the following:

I did read in preparation for your sentencing a letter from Dr. Hebert who speaks very well of you and the care that you gave his ninety-five year old mother that they had not been able to get before that. They speak very well of you and I take that into consideration.

I also take into consideration ... your medical conditions that you assert. They're not very different from my medical conditions. I too had back surgery, major back surgery in the nineties and I too am in chronic pain. I just have to decide that I have to go forward. Everybody has some kind of pain. I see a long list of medications listed by Dr. Stine. The Toprol, a lot of people take Toprol. The aspirin, a lot of people take aspirin. There are lots of things that are here that's just for regular functioning. Ms. Nancy says you're elderly. She'd better be careful. You're fifty-one years old. You'll be fifty-one in September. So there are lots of things here for stomach upset and all those things that can be caused by...