State Of Louisiana VS Jessie Bell, Jr. a/k/a Jessie Moten
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2012 KA 1615 STATE OF LOUISIANA VERSUS JESSIE BELL JR DATE OF JUDGMENT APR 2 6 2013 ON APPEAL FROM THE SEVENTEENTH JUDICIAL DISTRICT COURT NiJMBER 477 DNISION C PARISH OF LAFOURCHE 549 STATE OF LOUISIANA HONORABLE WALTER L LANIER III JUDGE Camille A Morvant II DA Lisa R Pinho ADA Counsel for Appellee State of Louisiana Annette M Fontana ADA Thibodaux Louisiana Frank Sloan Mandeville Counsel for Defendant Appellant Louisiana Jessie Bell Jr x BEFORE Ki PETTIGREW AND McDONALD JJ 1HN Disposition HABITUAL OFFENDER SENTENCES AFFIRIVIED KiJHN J The defendant Jessie Bell Jr a Jessie Moten was charged by bill of k information with distribution of cocaine and possession of cocaine with intent to distribute violations of La R 40 He pled not guilty and following a S 967 A jury trial was found guilty as charged on both counts Thereafter the State filed a habitual offender bill of information seeking to enhance the defendant sentences s pursuant to La R 15 Initially the defendant was sentenced on each S 529 L count to thirty years at hard labor with the first two years without benefit of parole probation or suspension of sentence and with the sentences to run concurrently Following a habitual offender hearing he was adjudicated a fourth felony habitual offender the prior sentences were vacated and he received a single sentence of life imprisonment without benefit of parole probation or suspension of sentence On appeal this Court affirmed the convictions See State u Bell 10 La App lst Cir 6 unpublished writ denied 11 1954 11 10 1504 La 2 79 So 1024 Following a separate appeal of the habitual offender 12 3 3d adjudications and sentence this Court affirmed the habitual offender adjudications vacated the habitual offender sentence and remanded for resentencing See State v Bell 10 La App lst Cir 12 0786 11 21 unpublished On remand the defendant was sentenced to life imprisonment on each count without benefit of probation parole ar suspension of sentence with the sentences to run concurrently He moved for reconsideration of sentences but the motion was denied The defendant now appeals contending the trial court misinterpreted this Court opinion in the prior appeal taken from his original s habitual offender sentence in docket number 2010 In the alternative he 0786 argues the sentences imposed were excessive For the following reasons we affirm the habitual offender sentences 2 FACTS The facts concerning the defendant offenses are set forth in the prior appeal s he took from his convictions docket number 2010 1954 MISINTERPRETATION OF OPINION In assignment of error number one the defendant argues the trial court misinterpreted the opinion rendered by this Court in the prior appeal taken from his habitual offender adjudications and sentence docket number 2010 as 0786 requiring the imposition of two life sentences In State u Dorthey 623 So 1276 1280 La 1993 the Louisiana 2d 81 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 punishmenY 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 constitutionally 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 s Legislature prerogative to determine the length of the sentence imposed for crimes classified as felonies Mareover courts are charged with applying these punishments unless they are found to be unconstitutional Dorthey 623 So at 2d 1278 citarions omitted In State u Johnson 97 La 3 709 So 672 the Louisiana 1906 98 4 2d Supreme Court reexamined the issue of when Dorthey permits a downward departure from the mandatory minimum sentences in the Habitual Offender Law 3 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 context means that because of unusual circumstances this defendant is a victim of the legislature s 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 709 Sa2d at 676 In the defendant prior appeal taken from his habitual offender s adjudications and sentence docket number 2010 we remanded for 0786 resentencing stating In this case after being convicted of distribution of cocaine and possession of cocaine with intent to distribute the defendant was billed as a habitual informarion the state offender In the habitual offender bill of listed both of these convictions At the conclusion of the habitual offender hearing the trial court adjudicated the defendant to be a fourth habituai offender and vacated both felony of the previously imposed sentences The court then imposed a single enhanced sentence of life imprisonment at hard labor without the benefit of probation parole or suspension of sentence Therefore it is unclear whether the court intended to enhance one or both of the sentences If the court intended to enhance only one sentence the record does not indicate for which conviction it intended to enhance the sentence Moreover if the court intended to enhance both sentences but then imposed only a single sentence error occurred It is well settled that sentencing error occurs when a trial court in sentencing for multiple counts does not impose a separate sentence for each count See State v Russland Enterprises Inc 542 So 154 2d 155 La App lst Cir 1989 In support of his argument that the trial court misinterpreted this Court prior s opinion the defendant relies on the following comments made by the trial court on remand There was an appeal on Mr Bell behalf on the issue of the habitual s offender The First Circuit has spoken on the issue I had given Mr Bell a single life sentence As I read the First Circuit opinion which s remanded the sentencing back to me after affirming the habitual offender sentence sic the best I can do is read it to report that Mr Bell was appropriately found to be a habitual offender There were two charges associated with his conviction at the jury trial and therefare it would appear instead of one life sentence 4 that I was supposed to sentence Mr Bell to two life sentences as best I can tell from the First Circuit judgment s Additionally the defendant also cites the trial court comments at the hearing s on the motion to reconsider sentence as follows Okay With regard to this is a reconsideration the Court would note that this the issue of the legaliry of Mr Be11 sentence has been s upheld by the First Circuit There was a technical issue that the Court only gave Mr Bell a single life sentence for his charges of habitual offender when he was there were two counts on the underlying charge which was which created his habitual offender status I have clarified that and ordered it to be two concurrent life sentences With regard to any discretion this Court may have and the Court would argue that I do not have discretion he is a fourth time habitual offender the Code seems clear to the Court that it would be a mandatory life sentence and the Court has in fact ardered two life sentences for Mr Bell to run concurrent Although the trial court stated it was supposed to sentence the defendant to two life sentences and had no discretion the record reviewed in its entirery indicates the court was aware of its autharity under porthey and Johnsan to depart from the mandatory minimum sentences upon a showing that the defendant was exceptional but found no such showing had been made In imposing maximum sentences at the initial sentencing the trial court stated The Court does not believe Mr Bell is an addict I believe you a re dealer Though you may use cocaine there was no indication at the trial in this matter that you were under the influence of cocaine I think you a dealer I think that what you done all along I re s ve think you know the system in and out I think you manipulate it to the way that works for you And I do think you a threat to the re public if you are not incarcerated Other crimes are a factar in the sentencing guideline Mr Bell has a significant record a significant record involving drugs two prior possession with intents to distribute two prior possessions The court believes that if he uses drugs it may be recreational I do not believe he sells the quantity of drugs that he has as an addict If he was an addict he would be a corner or as I would describe a corner seller selling a few rocks of crack cocaine in order to get a few rocks to smoke Mr Bell tends to deal in larger quantities 5 The Court does not believe that this is an issue of correcting Mr Bell addictive behaviors to make him go on a straight and s narrow The Court believes that he did this as a money operation This is how he sustains his living This is how he made his money He did not do or sell drugs to continue a drug habit He sold drugs to make money The Court believes a lesser sentence would deprecate the seriousness of the defendant crime s The Court believes that the offender was persistently involved in similar offenses Some of that would be in his criminal history The Court believes that Mr Bell was the leader of this operation There was sic some facts that came out in trial that Mr Bell was had given some drugs to some other individuals for various reasons The Court believes that he was in a position to organize these events The Court believes that Mr Bell was an individual who in Lafourche Parish would receive fairly large quantities of drugs and distribute them to other levels of dealers Again he was not a street vendar selling on the corner He was a higher level dealer than that The Court believes that he obtained substantial income ar resources from the ongoing drug activities The Court does not particularly believe that he respond affirmatively to probationary treatments ll s He been given that opportunity on other times The Court believes that he go back to handling himself in such a way to make a living ll by selling drugs At the original habitual offender sentencing the trial court stated t he Court does not believe it has any discretion and that as stated in one of the cases the Court had no choice but to sentence the offender to life imprisonment The court explained however tCourt does not find that there are any minimizing he factars to consider in Mr Bell case In fact as previously articulated the Court s would find the opposite that there are numerous factual bases that clearly fit the statute and clearly would prohibit the Court from finding any minimizing or other factual basis for diminution of Mr Bell life sentence The defense objected to s the sentence given the fact that judicially in some of the case law it indicated s that there is some discretion even on a mandatory life sentence The trial court responded a if I have any discretion I will choose for the factors previously nd articulated to choose not to exercise any discretion This assignment of error is without merit 6 EXCESSIVE SENTENCE In assignment of error number two the defendant argues the mandatory life sentences imposed upon him were unconstitutionally excessive because the culpability of the defendant must be viewed in light of his eighth education grade I stent e nonjob skills and job opportunities 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 defendant sconstitutional 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 s judge is given wide discretion in the imposition of sentences within statutory limits and the sentence imposed should not be set aside as excessive in the absence of manifest abuse of discretion State v Hurst 99 La App lst 2868 Cir 10 797 So 75 83 writ denied 00 La 10 798 So 00 3 2d 3053 O1 5 2d 962 Whoever distributes cocaine or possesses cocaine with intent to distribute is exposed to a possible sentence of imprisonment at hard labor for not less than two years or more than thirty years with the first two years of said sentence being without benefit of parole probation or suspension of sentence and a fine of not more than fifty thousand dollars La R 40 S 967 b 4 B Prior to amendment by 2010 La Acts Nos 911 1 and 973 2 La R S 1in 529 15 pertinent part provided A state 1 Any person who after having been convicted within this a felony thereafter commits any subsequent felony within of 7 this state upon conviction of said felony shall be punished as follows c If the fourth or subsequent felony is such that upon a first conviction the offender would be punishable by imprisonment for any term less than his natural life then ii If the fourth felony and two of the prior felonies are felonies defined as a violation of the Uniform Controlled Dangerous Substances Law punishable by imprisonment for ten years or more the person shall be imprisoned far the remainder of his natural life without benefit of parole probation or suspension of sentence On remand on each count the defendant was sentenced to life imprisonment without the benefit of probation parole or suspension of sentence sentences to run concurrently In the instant case the defendant failed to clearly and convincingly show that because of unusual circumstances he was a victim of the legislature failure s to assign sentences that were meaningfully tailored to his culpability the graviry of the offense and the circumstances of the case See Johnson 709 So at 676 2d Accordingly there was no reason for the trial court to deviate from the provisions of La R 15 prior to amendment by 2010 La Acts Nos 911 S 5291 ii c 1 A 1 and 973 2 in sentencing the defendant Additionally the sentences imposed were not grossly disproportionate to the severity of the offenses and thus were not unconstitutionally excessive This assignment of error is without merit HABITUAL OFFENDER SENTENCES AFFIRMED I 8
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