State Of Louisiana VS Zachariah Dan Johnson
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2010 KA 1930 STATE OF LOUISIANA VERSUS ZACHARIAH DAN JOHNSON Judgment Rendered May 6 201 1 Appealed from the 22nd Judicial District Court In and for the Parish of St Tammany State of Louisiana Case No 476706 The Honorable Martin E Coady Judge Presiding Walter P Reed Counsel for Appellee District Attorney Covington Louisiana State of Louisiana Kathryn W Landry Baton Rouge Louisiana Bertha M Hillman Counsel for DefendantAppellant Thibodaux Louisiana Zachariah Dan Johnson BEFORE CARTER C GAIDRY AND WELCH JJ J GAIDRY J The defendant Zachariah Dan Johnson was charged by bill of information with two counts of violation of La R 40 1 S 966 1 A distribution of marijuana a Schedule I drug count one and 2 distribution of methylenedioxymethamphetamine MDMA or ecstacy a Schedule I drug count two He pleaded not guilty to both charges Following a trial by jury defendant was convicted as charged on both counts The trial court originally sentenced defendant to imprisonment at hard labor for ten years on count one and 20 years at hard labor on count two Subsequently the state filed a bill of information seeking to have defendant adjudicated and sentenced as a third felony habitual offender See La R 15 the Habitual Offender Law Following a hearing the S 529 1 trial court adjudicated defendant a third felony habitual offender vacated the previously imposed sentence on count one and resentenced defendant to imprisonment at hard labor for 20 years without the benefit of probation or suspension of sentence concurrently The court ordered that the sentences run Defendant filed a motion to reconsider and the trial court denied the motion Defendant now appeals In a single assignment of error defendant asserts the trial court erred in denying his motion to reconsider Finding no merit in the assigned error we affirm defendant convictions s habitual offender adjudication and sentences FACTS In July 2009 Detective Julie Boynton of the St Tammany Parish s Sheriff office agreed to assist Sergeant Fred Ohler and several other The minute entry for the June 14 2010 habitual offender sentencing reflects that the court initially stated that the sentences were vacated on both counts However the minute entry also reflects Later in the day Court ordered that Count 1 is the only count to be vacated Emphasis added Thus the sentence on count two remains as originally imposed N officers of the Slidell Police Department with an undercover drug operation Sergeant Ohler had received information from a confidential informant that defendant was selling illegal narcotics in the Slidell Village North area an area known as a high drugcrime area As part of the operation Sergeant Ohler was to arrange for Detective Boynton to be introduced to defendant by the informant for the purpose of purchasing illegal drugs On July 2 2009 the informant drove Detective Boynton to the intersection of Beechwood and Walnut Streets in Slidell where they met with defendant Detective Boynton conversed with defendant and eventually negotiated the purchase of 20 worth of marijuana During 00 the conversation Detective Boynton also told defendant that she worked for a company named Textron and agreed to assist defendant in gaining employment To facilitate his employment efforts defendant provided Detective Boynton with his name and date of birth Detective Boynton told defendant that she also wanted to purchase some MDMA Defendant replied that he only had marijuana However he indicated that he would contact another individual to arrange an MDMA purchase After exchanging telephone numbers with the defendant Detective Boynton and the informant left the area Shortly thereafter Detective Boynton received a telephone call from defendant advising that the individual with the MDMA was in the area and was prepared to make the sale of the drug to her Detective Boynton and the informant met with defendant again to transact that drug purchase On that occasion defendant introduced Detective Boynton to an individual named Brandon Navarre Navarre sold Detective Boynton 17 tablets of suspected MDMA 3 Scientific testing confirmed that the vegetative material purchased during the first transaction was marijuana Thirteen of the 17 tablets purchased in the second transaction tested positive for MDMA A warrant was then obtained for defendant arrest and defendant subsequently was s arrested EXCESSIVE SENTENCES In his sole assignment of error defendant contends the trial court erred in denying his motion to reconsider the sentence He argues that the sentences imposed are excessive under the facts of this case Specifically he asserts that the trial court erred in failing to give consideration to several mitigating factors i his age 29 years his lack of any juvenile criminal e record and his status as the father of one child Defendant further notes that 18 of the 20 aggravating circumstances listed in the sentencing guidelines of La C art 894 do not apply to this case Thus he argues that the 20 P Cr 1 year sentences imposed constitute cruel and unusual punishment and are nothing more than a needless imposition of pain and suffering Article I 20 of the Louisiana Constitution prohibits the imposition of excessive punishment A sentence is unconstitutionally excessive if it is grossly disproportionate to the severity of the offense or is nothing more than a purposeless and needless infliction of pain and suffering Dorthey 623 2d So 1276 1280 La 1993 State v A sentence is grossly disproportionate if when the crime and punishment are considered in light of the harm done to society it shocks the sense of justice State v Hogan 2 The remaining tablets were determined to contain benzylpiperazine a drug not then scheduled by the State of Louisiana Benzylpiperazine was added to the list of Schedule I drugs in La R 40 by Acts 2009 No 153 1 effective August 15 2009 S 964 1 5 E 3 In his motion to reconsider and in his brief before this court defendant refers to sentence in the singular Thus it is unclear which sentence defendant is appealing as excessive We will accordingly review both sentences one of which is a mandatory minimum sentence 4 480 So 288 291 La 1985 2d Although a sentence may be within statutory limits it may violate a defendant constitutional right against s excessive punishment and is subject to appellate review State v Sepulvado 367 So 762 767 La 1979 State v Lanieu 981260 p 12 La App 2d 1st Cir 4 734 So 89 97 writ denied 99 1259 La 10 750 99 1 2d 99 8 2d So 962 However a trial court is given wide discretion in the imposition of sentences within statutory limits and the sentence imposed by it should not be set aside as excessive in the absence of manifest abuse of discretion State v Lobato 603 So 739 751 La 1992 2d The Louisiana Code of Criminal Procedure sets forth items that must be considered by the trial court before imposing sentence La C art P Cr 1 894 The trial court need not cite the entire checklist of article 894 1 but the record must reflect that it adequately considered the criteria State v Herrin 562 So 1 11 La App 1st Cir writ denied 565 So 942 La 2d 2d 1990 In light of the criteria expressed by article 894 1 a review for individual excessiveness must consider the circumstances of the crime and the trial court stated reasons and factual basis for its sentencing decision s State v Watkins 532 So 1182 1186 La App 1 st Cir 1988 Remand 2d for full compliance with article 894 is unnecessary when a sufficient 1 factual basis for the sentence is shown State v Lanclos 419 So 475 478 2d La 1982 Distribution ofMarijuana Sentence Louisiana Revised Statutes 40 provides that any person 3 B 966 convicted of distribution of marijuana shall be sentenced to a term of imprisonment at hard labor for not less than five years nor more than thirty years and pay a fine of not more than fifty thousand dollars The defendant was sentenced as a habitual offender on the conviction for 5 distribution of marijuana Prior to its 2010 amendments the Habitual Offender Law La R 15 529 provided in part as follows S 1 1 A Any person who after having been convicted within this state of a felony thereafter commits any subsequent felony within this state upon conviction of said felony shall be punished as follows b If the third felony is such that upon a first conviction the offender would be punishable by imprisonment for any term less than his natural life then i The person shall be sentenced to imprisonment for a determinate term not less than two thirds of the longest possible sentence for the conviction and not more than twice the longest possible sentence prescribed for a first conviction s Defendant predicate offenses are two cocaine possession convictions the first in 2003 and another in 2008 As a third felony habitual offender with these predicates defendant was exposed to a potential sentence of imprisonment at hard labor for a minimum of 20 years to a maximum of 60 years for the distribution of marijuana conviction See La S R 15 529 prior to its 2010 amendments and La R i b A 1 S 3 B 966 40 He received the mandatory minimum sentence on this conviction The Louisiana constitutionality of the Supreme Court has repeatedly upheld the Habitual Offender Law and accordingly the minimum sentences it imposes are likewise presumed to be constitutional State v Johnson 971906 pp 56 La 3 709 So 672 675 9 4 2d A sentencing judge must always start with the presumption that a mandatory sentence under the Habitual Offender Law is constitutional A court may only depart from the minimum sentence if it finds that there is clear and convincing evidence in the particular case before it that would rebut the presumption of constitutionality In order to rebut the presumption that the M mandatory minimum sentence is constitutional the defendant must clearly and convincingly show that he is exceptional that is that because of unusual circumstances he is a victim of the legislature failure to assign sentences s that are meaningfully tailored to the culpability of the offender the gravity of the offense and the circumstances of the case Downward departures from the minimum sentence under the Habitual Offender Law should occur only in rare situations State v Lindsey 99 3302 pp 45 La 10 00 17 770 So 339 343 citing Johnson 971906 at p 9 709 So at 677 2d 2d In addition the trial judge must keep in mind the goals of the Habitual Offender Law which are to deter and punish recidivism and that the sentencing court role is not to question the wisdom of the legislature in s requiring enhanced punishments for multiple offenders but rather to determine whether the particular defendant before it has proven that the minimum sentence is so excessive in his case that it violates Louisiana s Constitution Lindsey 993302 at p 5 770 So at 343 2d As noted above defendant sentence of 20 years is the minimum s under the statute and thus is presumed constitutional It is therefore incumbent upon defendant to rebut this presumption In his brief defendant does not specifically state that he is one of those rare persons who is deserving of a downward departure from the mandatory minimum sentence Instead he simply cites his age 29 years his lack of a juvenile criminal record and the fact that he is a parent to support his claim that the sentence is excessive However at the multiple offender sentencing defendant s counsel specifically argued for a downward departure from the minimum sentence noting that defendant is a relatively youthful offender with a drug problem who sold a small amount of marijuana and arranged for the sale of 7 a small amount of MDMA or ecstacy Counsel argued that under those circumstances even the minimum sentence would be excessive Based upon our review of the record in this case we do not find that defendant has clearly and convincingly shown that he is exceptional Defendant made no showing of exceptional circumstances to justify a lesser We do not find that his age parenthood and lack of juvenile sentence criminal history are sufficient circumstances to warrant a downward departure from the mandatory minimum sentence of imprisonment at hard labor for 20 years Furthermore even considering the relatively small amount of drugs sold in this case we do not find that a lesser sentence is warranted Defendant has failed to cite any unusual or exceptional circumstances to show that he is a victim of the legislature failure to assign s a sentence meaningfully tailored to his culpability the gravity of the offense and the circumstances of the case We find that defendant who has repeatedly committed felony drug offenses is exactly the type of recidivist that the Habitual Offender Law intends to punish severely As such there was no reason for the trial judge to deviate from the mandatory minimum sentence provided for in this matter Accordingly we find no error in the trial court imposition of the 20 year sentence for the offense of distribution s of marijuana The sentence is not excessive Distribution ofMDMA Sentence Under La R 40 any person convicted of distribution of S 966 2 B MDMA faces a penalty of imprisonment at hard labor for not less than five years nor more than thirty years at least five years of which shall be served without benefit of parole probation or suspension of sentence and a fine of not more than 50 As previously noted defendant was sentenced 00 000 8 to imprisonment at hard labor for 20 years on his distribution of MDMA conviction Prior to imposing the sentences the trial court specifically referenced s defendant criminal history and noted that any lesser sentences would deprecate the seriousness of the offenses Given the trial court wide s discretion in the imposition of sentences and the fact that defendant s MDMA distribution sentence is well within the statutory limits we cannot say that the trial court manifestly abused its discretion in sentencing defendant to 20 years at hard labor on this conviction The sentence is neither grossly disproportionate to the severity of the offense in light of the harm to society nor so disproportionate as to shock our sense of justice Although the court did not list every aggravating and mitigating factor considered the sentence is clearly supported by the record Considering the s defendant propensity to continue drug activity and his failure to respond to past rehabilitation efforts we conclude that the sentence imposed herein is not unconstitutionally excessive The trial court did not err in denying the defendant motion to s reconsider the sentences This assignment of error lacks merit SENTENCING ERROR Under La C art 920 we are limited in our review to errors P Cr 2 designated in the defendant assignments of error and error discoverable by s a mere inspection of the pleadings and proceedings without inspection of the evidence See State v Price 05 2514 p 18 La App 1 st Cir 12 06 28 952 So 112 123 en bane writ denied 07 0130 La 2 976 So 2d 08 22 2d 1277 After a careful review of the record we have found sentencing errors 4 The record reflects that defendant served a period of imprisonment on one of his prior drug convictions 6 For his conviction of distribution of MDMA defendant was sentenced to 20 years at hard labor Under La R 40 the court was S 966 2 B required to restrict parole on at least five years of the sentence The court did not impose a parole restriction on any portion of the sentence which s Accordingly defendant sentence did not include a parole restriction is illegally lenient However since the sentence is not inherently prejudicial to defendant and neither the state nor defendant has raised this sentencing issue on appeal we decline to correct the error See State v Price 05 2514 at pp 18 22 952 So at 123 25 2d For the foregoing reasons defendant convictions habitual offender s adjudication and sentences are affirmed CONVICTIONS HABITUAL OFFENDER ADJUDICATION AND SENTENCES AFFIRMED 10
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