State v. Williams
State v. Williams
Opinion of the Court
hDefendant, Farrell W. Williams, Jr., appeals his sentence- as a second felony offender. For the reasons that follow, we affirm defendant’s conviction and-sentence.
STATEMENT OF THE CASE
On July 31, 2015, the Jefferson Parish District Attorney filed a bill of information charging defendant with possession of heroin, a violation of La. R.S. 40:966(C). A twelve-person jury found defendant guilty as charged on May 3, 2016. He was sentenced to ten years imprisonment at hard labor on May 26, 2016, after which he filed a motion to reconsider sentence and a motion for appeal. On June 3, 2016, the district court denied the former and granted the latter.
Thereafter, on July 21, 2016, the state filed a multiple offender bill of information alleging defendant to be second felony offender. At the hearing on the bill, the court .adjudicated defendant a second felony offender, vacated his original sentence, and imposed an enhanced sentence of twenty years imprisonment at hard labor without the benefit of probation or suspension of sentence. Defendant filed a motion
FACTS
Around 10:30 p.m. on the night of June 26, 2016, Detectives William Whittington and John Wiebelt of the Jefferson Parish Sheriffs Office (“JPSO”) were conducting undercover surveillance as part of a narcotics investigation in and around the intersection of South Jamie Boulevard and U.S. Highway 90 in Avondale, Louisiana. From their separate unmarked vehicles, both detectives observed a Ford Ranger pickup truck enter a McDonald’s parking lot without “too many cars” and park at a distance from the restaurant’s entrance. This aroused the | ^detectives’ suspicions since a patron of the restaurant would typically park close to the entrance in an uncrowded lot. But the driver of the truck, a female, remained in her vehicle and seemed to be waiting for something.
Approximately ten minutes later, a red Chrysler Sebring convertible entered the lot and parked next to the truck. The female exited her truck and entered the passenger side of the Sebring. The Sebr-ing then “idled through” the parking lot and pulled up next to a fuel pump at a nearby gas station. The car remained next to the pump for approximately one or two minutes, but no one exited the vehicle and no gas was pumped. The Sebring then “idled back” next to the truck in the McDonald’s parking lot. The female exited the Sebring, entered her truck, and drove off.
Suspecting that a narcotics transaction had occurred, Detective Whittington decided to stop the Sebring. His decision to stop the Sebring rather than the truck, he explained, was motivated in part by a recently-received tip from a confidential informant that defendant drove a red Chrysler Sebring convertible and was “known to sell quantities of heroin throughout Avondale.” Detective Whittington requested the assistance of JPSO Deputy Joseph Waguespack to conduct the stop with his marked police vehicle. With lights and sirens, Deputy Waguespack stopped the Sebring several blocks away from the McDonald’s. Upon contact with the vehicle, Detective Whit-tington immediately recognized the driver as defendant who had an outstanding attachment for his arrest. Defendant was placed under arrest and a search incident thereto turned up three grams of heroin in his pocket.
DISCUSSION
On appeal, defendant does not challenge his conviction, but assigns two errors regarding his sentence. He argues that the district court erred in denying his motion to reconsider his enhanced sentence and that his enhanced sentence is unconstitutionally excessive. We address these interrelated assignments together.
UThe failure to make or to file a motion to reconsider sentence, or to state the specific grounds upon which the motion is based, limits a defendant to a review of the sentence for constitutional ex-cessiveness only. State v. Brown, 15-96 (La. App. 5 Cir. 9/15/15), 173 So.3d 1262, 1269. Here, because defendant’s motion to reconsider merely argued that his enhanced sentence was excessive, we accordingly limit our review to excessiveness.
The Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. State v. McGowan, 16-130 (La. App. 5 Cir. 8/10/16), 199 So.3d 1156, 1162. A sentence is considered excessive, even if it is within the statutory limits, if it is grossly disproportionate to the severity of the offense or imposes needless and purposeless pain and suffering. Id. A sentence is grossly dispro
An appellate court shall not set aside a sentence for excessiveness if the record supports the sentence imposed. La. C.Cr.P. art. 881.4(D); McGowan, supra. In reviewing a sentence for excessiveness, the appellate court shall consider the crime and the punishment in light of the harm to society and gauge whether the penalty is so disproportionate as to shock the sense of justice, while recognizing the sentencing court’s broad discretion. Id. at 1162-63. IVhen reviewing the sentencing court’s discretion, three factors are considered: (1) the nature of the crime, (2) the nature and background of the offender, and (3) the sentence imposed for similar crimes by the same court and other courts. Id. at 1163. Before considering these three factors, we choose to note that defendant’s sentence was within the statutory limits and was less than his potential sentencing exposure.
|4Under the law in effect at the time of the offense, possession of heroin carried a mandatory penalty of imprisonment at hard labor for not less than four nor more than ten years. La. R.S. 40:966(C). Defendant was sentenced to the maximum ten years, but this sentence was vacated when defendant was adjudicated a second felony offender on the basis of his predicate conviction for possession of heroin in 24th JDC No. 03-2308. Pursuant to La. R.S. 15:529.1, defendant’s second felony offender status carried a mandatory penalty of imprisonment at hard labor for not less than five nor more than twenty years without benefit of probation or suspension of sentence. Defendant was sentenced to the maximum twenty years.
This maximum sentence was due in part to defendant’s refusal to accept plea bargains ft’om the state. Prior to trial of this matter, the state offered defendant a plea deal that was put on the record. It was acknowledged that defendant was a quadruple felony offender facing a possible life sentence if convicted of the instant offense, and that in exchange for a guilty plea, the state would charge defendant as a second felony offender for which he would receive a twelve-year sentence. In exchange for this plea, the state further offered defendant a concurrent ten-year sentence and agreed not to multiple bill him on additional charges pending against him in 24th JDC No. 13-1818—felon in possession of a firearm (La. R.S. 14:95.1), possession with intent to distribute heroin (La. R.S. 40:966(A)), and possession with intent to distribute cocaine (La. R.S. 40:967(A)).
Defendant did not accept the offered plea deal, proceeded to trial, and was convicted. The state did not bill defendant as a quadruple felony offender, but billed him as a second felony offender. At the hearing on this bill, defendant was advised that if he stipulated to the bill as a second felony offender, he would receive an enhanced sentence of fifteen years. But if he denied the allegation and forced the state to prove his second felony offender status, he would receive an ^enhanced sentence of twenty years. Defendant elected the latter option, was adjudicated a second felony offender, and was sentenced to twenty years. The state then dismissed the pending charges in 24th JDC No. 13-1818 and 24th JDC No. 13-2056.
With the foregoing in mind, we now turn to the three factors of our excessiveness
Second, regarding defendant’s background, the record indicates that defendant has a criminal history, including a felony conviction for heroin possession and several felony drug charges. In fact, defendant’s reputation for selling “quantities of heroin throughout Avondale” contributed to his arrest in this case.
Lastly, regarding sentences for similar crimes, the Louisiana Supreme Court has approved a twenty-year enhanced sentence for a second felony offender with an underlying conviction for possession of heroin. In State v. Thompson, 02-333 (La. 4/9/03), 842 So.2d 330, the defendant, who had been convicted of two counts of heroin possession and adjudicated á second felony offender, received an enhanced sentence of twenty years on one of the counts, to be served concurrently with his ten-year sentence on thé other. On appeal, the Fourth Circuit reversed one Rof the convictions and the corresponding enhanced sentence, but on certiorari review, the Louisiana Supreme Court reinstated both, finding the sentence was within the sentencing court’s discretion in view of the defendant’s previous twenty-three felony and six misdemeanor arrests, as well as a conviction for possession of cocaine. Id. at 338.
Our review of the three foregoing factors as well as the facts and circumstances of this case- leads us to conclude that the district court did not abuse its broad discretion in sentencing defendant to. the maximum twenty years as a second felony offender. Accordingly, we likewise find that the district court did not err in denying defendant’s motion to reconsider his enhanced sentence. These assignments of error are without merit. '
ERRORS PATENT
The record was reviewed for errors patent according to La. C.C.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La. 1975); and State v. Weiland, 556 So.2d 175 (La. App. 5 Cir. 1990). Our review indicates that defendant was not advised of the applicable prescriptive period in which to seek post-conviction relief. Accordingly, by way of this opinion, defendant is hereby advised that no application for post-conviction relief, including applications which seek an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence has'become final under the provisions of La. C.Cr.P. arts. 914 or 922. See State v. Brooks, 12-226 (La. App. 5 Cir. 10/30/12), 103 So.3d 608, 615, writ denied, 12-2478 (La. 4/19/13), 111 So.3d 1030.
DECREE
For the foregoing reasons, defendant’s conviction and sentence are affirmed.
CONVICTION AND SENTENCE AFFIRMED
. In 24th JDC No. 13-2056, defendant was charged with the misdemeanor offenses of resisting an officer (La. R.S. 14:108) and battery of a police officer (La. R.S. 14:34.2).
. https://www.cdc.gov/drugoverdose/data/ heroin.html (last visited June 27, 2017).
Concurring Opinion
CONCURS WITH REASONS
|7I agree fully with the analysis and the majority’s conclusion that Mr. Williams’ sentence is not constitutionally excessive. I write separately to highlight the practical and the economic inefficiencies resulting from the decision to multiple bill a non
| «The most obvious consequence of a conviction under La. R.S. 15:529.1 is the increased sentencing range to which Mr. Williams is subject. Upon his conviction for possession of heroin, in violation of La. R.S. 40:966(0), Mr. Williams received the maximum sentence of ten years at hard labor. Thereafter, the State filed a multiple offender bill of information, alleging that Mr. Williams was a second felony offender with a 2004 conviction for possession of heroin. As a result of his conviction under La. R.S. 16:529.1(A)(1), the statute required the'district court to-sentence the habitual offender to “a determinate term not less than one-half the longest term and not more than twice the longest term prescribed for a first conviction.”
Unfortunately, this is not a zero sum game either for the State or for Mr. Williams. Incarcerating Mr. ■ Williams— whose three felony convictions have all
While the State bears high costs for incarcerating Mr. Williams, it does not seem to reap even roughly equivalent concomitant benefits. Since at least 1993, Mr. Williams has had drug problems. Under these circumstances, it is not likely that a prolonged term of imprisonment accomplishes much in the way of deterrence. Indeed, on the margin, the risk of a lengthy prison sentence is unlikely to deter a multiple drug offender ex ante—that is, at the time he makes the decision to possess drugs. If Mr. Williams is an addict, as it appears he is based on his criminal record, his demand for drugs is relatively inelastic.
Because Mr. Williams will conceivably be released from prison one day, the State does have an interest in rehabilitating him and facilitating his reentry into society. The Legislature explicitly expressed the State’s interest in | ^rehabilitating the incarcerated in La. R.S. 15:828(A)(1) which provides in pertinent part,
Persons committed to and in the physical custody of the department shall be treated in a humane manner, and the department shall direct efforts toward the rehabilitation of such persons in order to effect their return to the community as promptly as practicable.
To facilitate rehabilitation and reentry, the Legislature has created numerous programs and initiatives aimed at incentiviz-ing offenders to develop the habit of living by the rules while in prison and to obtain the education and the skills needed to succeed once they are released. Nevertheless, despite the State’s interest in rehabilitating offenders, the Legislature has barred those who have been convicted as habitual offenders under La. R.S. 15:529.1 from participating in many of these programs. For example, La. R.S. 15:571.3(B)(1)(a) provides a felony offender, “[u]nless otherwise prohibited,” with the opportunity to earn “diminution of sentence by good behavior and performance of work or self-improvement activities, or both, to be known as ‘good time.’” If eligible to receive good time, an inmate may earn diminution of his sentence at “the rate of one and one half-day for every one day in actual custody served on the imposed sentence.”
Similarly, as a convicted habitual offender, Mr. Williams is also barred'from participating in the Workforce Development Sentencing Program pursuant to La. R.S. 13:5401(b)(1)(f). This relatively new and innovative program provides eligible offenders with educational and vocational train-mg, moral rehabilitation, basic social and life skills, and community and faith-based support systems to help facilitate their reentry into society. By virtue of his habitual offender conviction, Mr. Williams is also barred from participating in work release programs until “the last year of his term.” . La. R.S. 15:1111.
. Effective November 1, 2017, the Legislature has shortened the sentencing range for a second felony offender to “one-third the longest term and not more than twice the longest term prescribed for a first conviction.” Acts 2017, No. 282.
. Prior to these amendments, La. R.S. 15:574.4(A)(1)(a) denied parole eligibility to Mr. Williams because he has been convicted of three felonies, all of which are drug related.
. See Henry N. Butler et al., Economic Analysis for Lawyers 420 (3d ed. 2014).
. Effective November 1, 2017, the rate at which an inmate may earn good time will increase to thirteen days for every seven days in actual custody on the imposed sentence. Acts 2017, No. 280, § 3.
. La. R.S. 15:1111 governs work release programs established and administered by the Department of Corrections. This statute limits a habitual offender's work release eligibility to the “last year of his term.” In contrast, La. R.S. 15:711 governs work release programs established and administered by the sheriff in each parish. This statute limits habitual offenders' work release eligibility to the "last six months of their terms.” Thus, prisoners in parish custody have an even shorter window during which they may be eligible for work release participation.
. As a practical matter, the Board of Pardons & Parole will often hold a parole hearing six months before the offender becomes parole eligible. If the Board grants parole, it will then often set a parole release date six months after the parole hearing such that a habitual offender may at least take advantage of six months of work release.
.As Butler, Drahozal, and Bailey point out, “Serving time in jail may reduce legal opportunities so that the opportunity cost of future criminal activity is lower.” Butler et al., supra, 386. This point is important and makes sense. Based on the economic model of rational choice, the degree to which an offender is likely to recidivate depends heavily on the alternatives to criminal behavior available to him such that the opportunity cost of criminal behavior is higher. Work release programs are an effective rehabilitation measure because they expand these legal alternatives. Given the damage a single felony conviction does to one’s job prospects outside the prison walls, it makes no sense to limit a habitual offender’s access to job programs within the
Case-law data current through December 31, 2025. Source: CourtListener bulk data.