State v. Ballard
State v. Ballard
Opinion of the Court
Ricky Ballard, defendant, was originally charged by bill of information with distribution of Dilaudid, a Schedule II drug, in
FACTS:
On June 24, 1987, appellant sold five Dilaudid pills to an undercover police officer of the Grant Parish Sheriffs Office. In the transaction appellant requested and was paid $150 for the pills. On July 28, 1987, officers proceeded to his residence to arrest him for distribution of controlled substances. When appellant opened the door the officers detected a strong odor of marijuana and procured a warrant to search appellant’s home. The search revealed some marijuana, various pills, and paraphernalia commonly used for injecting narcotics. This search resulted in two additional charges, possession of CDS and possession of marijuana.
In what is described as a “plea agreement” in appellant’s brief, the distribution charge was reduced to possession of Dilau-did, and the other two charges were placed on the court’s “Delayed Docket.” Appellant pled guilty to possession of Dilaudid. There was no agreement as to sentence.
The trial court ordered a presentence investigation report prepared. This report shows that, in addition to the offenses mentioned, appellant’s remaining criminal record consists of a driving while intoxicated conviction in 1985. At sentencing, the trial judge gave credit for time served which appears from the record to have been approximately six months.
ASSIGNMENTS OF ERROR:
Appellant’s two alleged errors .are that the trial judge failed to comply with the sentencing guidelines of La.C.Cr.P. art. 894.1, and that he imposed an excessive sentence.
La.C.Cr.P. art. 894.1 provides criteria for consideration in determining whether a sentence is excessive and mandates that the “trial court shall state for the factual basis therefore in imposing sentence.” State v. Cox, 369 So.2d 118 (La. 1979); State v. Sepulvado, 367 So.2d 762 (La. 1979). The sentencing judge need not articulate every mitigating and aggravating circumstances, however, the record should reflect that the sentencing judge considered the guidelines in particularizing the sentence. State v. Aucoin, 500 So.2d 921 (La.App. 3rd Cir. 1987). Failure to adequately comply with Article 894.1 does not necessitate vacating the sentence or warrant a remand for resentencing if the record illumines and supports the sentencing choice. State v. Howard, 511 So.2d 11 (La.App. 3rd Cir. 1987). A sentence imposed by the trial court which falls within statutory limitations may still be unconstitutionally excessive. State v. Sepulvado, supra. A sentence is deemed excessive if it (1) makes no measurable contribution to acceptable penal goals and therefore is nothing more than a purposeless and needless imposition of pain and suffering; or (2) is grossly out of proportion to the severity of the crime. State v. Cann, 471 So.2d 701 (La. 1985); State v. Landry, 502 So.2d 281 (La.App. 3rd Cir. 1987), writ denied, 508 So.2d 63 (La. 1987). The trial court is given wide discretion in imposing sentence and a sentence imposed within statutory limits will not be deemed excessive in the absence of manifest abuse of discretion. State v. Howard, 414 So.2d 1210 (La. 1982).
In the instant case, the articulation of sentencing reasons by the trial judge fails to meet the guidelines contemplated by La.C.Cr.P. art. 894.1. However, the record illumines and supports the sentencing choice. Remand for resentencing is necessary only if the sentence imposed is shown to be apparently severe in relation to the particular offender and the facts of the offense as contained in the record. State v. Vizena, 454 So.2d 1291 (La.App. 3rd Cir. 1984).
Appellant was exposed by the plea to the reduced charge to a possible penalty of five years at hard labor and a fine of up to $5,000. La.R.S. 40:967(C). The three year sentence imposed is in the middle range of sentencing exposure. The penalty
For these reasons, these assignments of error are without merit.
AFFIRMED.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.