State v. Young
State v. Young
Opinion of the Court
1 j>This is defendant Dale Young’s second appeal. On May 14, 2002, he was convicted of two counts of distribution of cocaine in a drug free zone, in violation of LSA-R.S. 40:967(A) and 40:981.3, and one count of distribution of cocaine, in violation of LSA-R.S. 40:967(A). This Court affirmed his convictions
On remand, a sentencing hearing was held, at which time the trial court re-sentenced Young to twenty-five year’s on each of the two counts of distribution of cocaine in a drug free zone and ten years on the one count of distribution of cocaine, which was the same as his original sentence. The court ordered the sentences to run consecutively and imposed a $50,000 fine on each of the three counts. In imposing sentence, the only sentencing factor articulated by the court |swas that the matters were distinct and not part of a single action. Young appeals his sentences as excessive.
The facts of this case have been set forth in the first appeal and need not be repeated here. On appeal, Young contends that the sentences are individually excessive under the circumstances of the case, both because of their length and because of the order that they be served consecutively. He argues that the narcotics transactions forming the basis for the sentences were part of a single course of conduct, that each transaction was set up and carried out by the same female undercover officer, and that Judge Snowdy articulated no factors encompassed within the jury’s verdict to demonstrate that either lengthy or consecutive sentences were warranted. He further urges that counsel was ineffective in failing not only to object specifically to the sentences and the failure of the trial judge to articulate any special justification, but also in failing to file a motion to reconsider the excessive sentences so as to preserve all issues relating to the sentences for appellate review.
The Eighth Amendment to the United States Constitution and Article I, Section 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. A sentence is considered excessive, even when it is within the | ¿applicable statutory range, if it is grossly disproportionate to the offense or imposes needless and purposeless pain and suffering.
In reviewing a sentence for ex-cessiveness, the appellate court must consider the punishment and the crime in light of the harm to society and gauge whether the penalty is so disproportionate as to shock our sense of justice. The trial judge is afforded wide discretion in determining sentence, and the court of appeal will not set aside a sentence for excessiveness if the record supports the sentence imposed.
The sentencing range for distribution of cocaine in a drug free zone is between two and forty-five years and the range for distribution of cocaine is between two and thirty years.
LSA-C.Cr.P. art. 883 provides in pertinent part:
If the defendant is convicted of two or more offenses based on the same act or transaction, or constituting parts of a common scheme or plan, the terms of imprisonment shall be served concurrently unless the court expressly directs that some or all be served consecutively. Other sentences of imprisonment shall be served consecutively unless the court expressly directs that some or all of them be served concurrently.
| RIt has been held that multiple drug transactions occurring on different days are separate and distinct acts so as to render Article 883 inapplicable and to justify consecutive sentences, even when they involved the same undercover officer and the transaction occurs at the same location.
In the present matter, Young sold $100 worth of cocaine on two different occasions and $50 on one occasion, within a one and one-half month period.
This Court has upheld a twenty-two-year sentence for a defendant who, in addition to a violation of LSA-R.S. 40:981.3, had one earlier felony drug conviction and had been previously arrested on eight pri- or occasions. He was charged with a total of seventeen offenses in these arrests, six of which involved firearms charges, three were for drug-related offenses (one of which resulted in the felony conviction mentioned above), five were for crimes against persons, and three for crimes against property.
This Court has also affirmed a defendant’s two, fifteen-year consecutive sentences for two counts of distribution of cocaine, where the defendant sold cocaine to two different undercover agents on two separate occasions approximately one month apart.
Looking to other appellate courts, a sentence of fifteen years in prison for distribution of cocaine has been affirmed by the Second Circuit in a case where a defendant was a fourth felony offender, with numerous prior arrests and convictions for drug-related offenses.
The Fourth Circuit has noted that twenty-year sentences for distribution of cocaine have been found to be excessive where the amount of cocaine involved is small.
After review, we find that Young received a much more severe penalty than more egregious offenders of the same offense. The consecutive nature of Young’s sentences is constitutionally excessive considering that the record on appeal does not establish that Young is a large-scale drug dealer or that he has a history of selling drugs, and the quantity of drugs and the money involved in each transaction was small. The defendant was thirty-one years of age at the time of sentencing, and although the record alludes to prior criminal activity, the State did not establish such. These factors militate in favor of a lesser aggregate sentence than Young received.
Accordingly, we find that the sentences are excessive, and we remand this case to the trial court for re-sentencing.
In view of this finding, the assignment of error regarding ineffective assistance of counsel is moot.
SENTENCES VACATED; REMANDED FOR RE-SENTENCING.
. State v. Young, 04-1318 (La.App. 5 Cir. 4/26/05), 902 So.2d 461.
. State v. McLelland, 03-498 (La.App. 5 Cir. 10/15/03), 860 So.2d 31, 37, writ denied, 03-3372 (La.3/26/04), 871 So.2d 347.
. State v. Wickem, 99-1261 (La.App. 5 Cir. 4/12/00), 759 So.2d 961, 968, writ denied, 00-1371 (La.2/16/01), 785 So.2d 839.
. State v. Brown, 04-230 (La.App. 5 Cir. 7/27/04), 880 So.2d 899, 902.
. Id.
. State v. Rogers, 2001-2139 (La.App. 4 Cir. 3/6/02), 812 So.2d 809, writ denied 2002-0945 (La. 11/22/02), 829 So.2d 1035 (citing State v. Walker, 414 So.2d 1245 (La. 1982)).
. LSA-R.S. 40:967(B)(4)(b) and 40:981.3(E); State v. Johnson, 03-903 (La.App. 5 Cir. 12/9/03), 864 So.2d 645, 653.
. State v. Scott, 92-667 (La.App. 5 Cir. 12/29/1992), 612 So.2d 293; State v. Miller, 561 So.2d 892 (La.App.2d Cir.5/9/90), writ denied, 566 So.2d 983 (La.9/28/90).
. State v. McCraney, 01-439 (La.App. 5 Cir. 9/25/01), 798 So.2d 227.
. See, State v. Bartley, 00-1370 (La.App. 5 Cir. 2/14/01), 782 So.2d 29; State v. Curtis, 97-769 (La.App. 5 Cir. 2/11/98), 707 So.2d 1328.
. State v. Sanders, 98-855 (La.App. 5 Cir. 5/19/99), 734 So.2d 1276, writ denied, 99-1980 (La. 1/7/00), 752 So.2d 175.
. State v. Dillon, 01-906 (La.App. 5 Cir. 2/26/02), 812 So.2d 770, writ denied, 02-1189 (La.4/21/03), 841 So.2d 779.
. State v. Converse, 03-0711 (La.App. 5 Cir. 12/30/03), 864 So.2d 803, writ denied, 04-0195 (La.6/4/04), 876 So.2d 74.
. State v. Johnson, 03-903 (La.App. 5 Cir. 12/9/03), 864 So.2d 645.
. State v. McCloud, 04-1112 (La.App. 5 Cir. 3/29/05), 901 So.2d 498.
. State v. Hines 39,613 (La.App. 2 Cir. 4/6/05), 899 So.2d 744.
. State v. Wyatt, 591 So.2d 761 (La.App. 2d Cir. 1991).
. State v. Rogers, supra.
Reference
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- STATE of Louisiana v. Dale YOUNG
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