State Of Louisiana VS Cardell Demond Robinson

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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCl9IT N0 2012 KA 1731 STATE OF LOUISIANA VERSUS CARDELL DEMOND ROBINSON udgment rendered April 26 2013 q O v Appealed from the 19 Judicial District Court in and for the Parish of East Baton Rouge Louisiana Trial Court No 1i 0063 10 Honorable Donald R Johnson Judge HON HILLAR C MOORE III ATTORNEYS FOR DISTRICT ATTORNEY STATE OF LOUISIANA JACLYN C CHAPMAN ASSISTANT DISTRICT ATTORNEY BATON ROUGE LA LIEU T VO CLARK AZTORNEY FOR LOUISIANA APPELLATE PROJECT APPELLANT DEFENDANT MANDEViLLE LA CARDELL DEMOND ROBINSON BEFORE KUHN PETTIGREW AND McDONALD JJ PETTIGREW 7 The defendant Cardell Demond Robinson was charged by bill of information with one count of domestic abuse batt involving strangulation count I a violation of La ry S 35 R 14 and one count of possession with intenk to distribute marijuana count L 3 II a violation of La R 40 He pled not guilty on both counts Thereafter the S 966 A State severed the charges and proceeded to trial on count II only Subsequently the State dismissed count I The defendant waived his right to a jury trial on count II and following a bench trial was found guilty as charged The State then filed a habitual offender bill of information against the defendant Following a hearing the defendant was adjudged a fourth habitual offender and was sentenced to life at hard labor felony without the benefit of probation parole or suspension of reconsideration of sentence but the motion was denied sentence He moved for He now appeals contending that the sentence imposed was unconstitutionally excessive and that the trial court erred in denying the motion to reconsider sentence For the following reasons we affirm the conviction habitual offender adjudication and sentence on count II FACTS On September 8 2010 Baton Rouge City Police Department Sergeant Kenneth Brewer and other police officers responded to a call for the police from Karla Brown at 12254 La Margie in Baton Rouge Upon entering the residence Sergeant Brewer noticed a faint odor of marijuana Ad he saw a box of sandwich bags in the bedroom itionally The bags had their corners torn off which was consistent with the packaging of marijuana Subsequently Sergeant Brewer located fourteen small baggies of marijuana and one medium bag of marijuana in a cookie can in the kitchen Sergeant Brewer testified in his opinion the smaller baggies were packaged fcr sale The defendant initially claimed the marijuana was for his personal use Thereafter however he stated 1 Predicate 1 was set forth as the defendant September 29 2005 rnnviction under Nineteenth Judicial s District Court Docket 12 for simple burglary 0380 03 Predicate 2 was set forth as the defendant s September 29 2005 convictions under Nineteenth Judicial District Court Docket 11 for theft 0619 04 value over 500 and possession of cocaine Predicate 3 was set forth as the defendant sSeptember 29 2005 conviction under Nineteenth Judicial District Court Docket OS for simple burglary 0683 2 I might you know sell one of my boys a 61unt every now and then but I not a bad m 9uY EXCESSIVE SENTENCE The defendant combines assignments of error numbers 1 and 2 for argument He argues the mandatory life sentence imposed upon him was unconstitutionally excessive because he was twenty years old and given a life sentence for the offense of seven occasionally selling marijuana to his friends Article I Section 20 of the Louisiana Constitution prohibits the imposition of excessive punishment Although a sentence may be within statutory limits it may violate a defendanYs constitutional right against excessive punishment and is subject to appellate review Generally a sentence is considered excessive if it is grossly disproportionate to the severity of the crime or is nothing more than the needless imposition of pain and suffering A sentence is considered grossly disproportionate if when the crime and punishment are considered in light of the harm to society it is so disproportionate as to shock one sense of justice A trial judge is given wide discretion in the imposition of s sentences within statutory limits and the sentence imposed should not be set aside as excessive in the absence of manifest abuse of discreEion State v Hurst 99 2868 pp 10 La App 1 Cir 10 797 So 75 83 writ denied 2000 La 11 00 3 2d 3053 Ol 5 10 798 So 962 2d In State v Dorthey 623 So 1276 1280 La 1993 the Louisiana 2d 1281 Supreme Court recognized that if a trial judge determines that the punishment mandated by the Habitual Offender Law makes no measurable contribution to acceptable goals of punishment or that the sentence amounts to nothing more than the purposeful imposition of pain and suffering and is grossly out of proportion to the severity of the crime he is duty bound to reduce the sentence to one that would not be constitutionaily excessive However the holding in Dorthey was made only after and in light of express recognition by the court that the determination and definition of acts which are punishable as crimes is purely a legislative function It is the Legislature prerogative to s 3 determine the length of the sentence imposed for crimes classified as felonies Moreover courts are charged with applyinr th punishments unless they are found to be se unconstitutional Dorthey 23 So at i27 c omitted 2a itations In State v Johnson 97 l 3 709 Sc b72 the Louisiana 1906 a 4 9S 2d Supreme Court reexamined the issue of wnen Dorthe permits a downward departure from the mandatory minimum sentences in the Habitual Offender Law The court held that to rebut the presumption that the mandatory minimum sentence was constitutional the defendant had to clearly and convincingly show that he is exceptional which in this conte means that because of unusual circumstances this defendant is a victim of the s legislature failure to assign sentences that are meaningfully tailored to the culpability of the offender the gravity of the offense and the circumstances of the case Johnson 1906 97 at 8 709 So at 676 citation omitted 2d Any person who violates La R 40 with respect to a substance classified S 966 A in La R 40 Schedule I shail upon conviction be sentenced to a term of S 964 imprisonment at hard labor for not less tha five nor more than thirly years and pay a fine of not more than fifly thousand dollars La R 40 S 966 3 B Louisiana Revised Statutes 15 pertinent part provides 1in 529 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 4 If the fourth or subsequent felony is such Ehat upon a first conviction the offender woula be punishable by imprisonment fQr any term less than his natural life then b If the fourth felony and two of the prior felonies are felonies defined as a violation of the Unifornn Controlled Dangerous Substances Law punishable by imprisonment for ten years or more or of any other crime punishable by imprisonment for twelve years or more or any combination of such crimes the person shall be imprisoned for the remainder of his natural life without benefit of parole probation or suspension of sentence At the habitual ofFender hearing the defendant argued that on September 29 2005 he had pled guilty to charges under five different bills of information without 4 knowledge that each guilty plea would be counted as a separate conviction under the Habitual Offender Law in the event thak he commiited a subsequent offense The defendant failed t clearly arsd con show that because of unusual gly inci circumstances he was a victim of the ieg3siature aiiure to assign sentences that were c meaningfully tailored to his culpability tY grav i tine affense and the circumstances ty of the case Accordingly there was no reason for the trial court to deviate from the provisions of La R 15 in sentencing him Additionally the sentence S 529 b 4 A 1 imposed was not grossly disproportionate to the severity of the offense and thus was not unconstitutionally excessive Contrary to the defendant argument he was not s given a life sentence for the offense of occasionally selling marijuana to his friends Rather he was sentenced as a recidivist and punished for the instant offense in light of his continuing disregard for the laws of our state See Johnson 97 at 8 709 So 1906 2d at 677 This assignment of error is without merit CONVICTION HABITUAL OFFENDER ADJUDICATION AND SENTENCE ON COUNT II AFFIRMED 2 In State v Johnson 2003 pp ll La 10 884 So 568 579 the Louisiana Supreme 299 18 04 19 2d Court overruled its earlier decislon in State ex rel Mims v Butler 601 So 649 650 La 1992 on 2d g reh which had found Act 688 of 1982 amending the Habituai Offender Law did not eliminate a sequential requirement for enhanced penalties in the sentencing of multiple offenders Thereafter the legislature enacted 2005 La Acts No 218 1 annending La R 15 to provide that m S 529 B 1 ultiple convictions obtained on the same day prior ta Qctober 19 2004 shall be counted as one convidion for the purpose of this Sedion 5

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