NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT KA **********

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1 NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT KA STATE OF LOUISIANA VERSUS EVA J. VAN WINKLE ********** APPEAL FROM THE THIRTY-SIXTH JUDICIAL DISTRICT COURT PARISH OF BEAUREGARD, NO. CR HONORABLE STUART S. KAY, JR., DISTRICT JUDGE ********** JOHN D. SAUNDERS JUDGE ********** Court composed of John D. Saunders, Glenn B. Gremillion, and Elizabeth A. Pickett, Judges. AFFIRMED WITH INSTRUCTIONS. Hon. David W. Burton District Attorney 36th Judicial District Court P. O. Box 99 DeRidder, LA (337) Counsel for Plaintiff: State of Louisiana

2 David L. Wallace Attorney at Law P. O. Box 489 DeRidder, LA (337) Counsel for Defendant: Eva J. Van Winkle

3 SAUNDERS, Judge. On December 2, 2005, the State charged Defendant, Eva J. Vanwinkle, with one count of second offense possession of marijuana, in violation of La.R.S. 40:966. On March 9, 2006, the State filed an amended bill of information under the same docket number charging Defendant with one count of second offense possession of marijuana, in violation of La.R.S. 40:966, and with one count of possession of cocaine, in violation of La.R.S. 40:967. At the March 28, 2006, arraignment, Defendant pled not guilty to both charges. Pursuant to a plea agreement, Defendant pled guilty to second offense possession of marijuana on August 9, Defendant also pled guilty to second offense operation of a vehicle while intoxicated ( OWI ), which offense the State charged under a different docket number. In exchange for Defendant s guilty pleas, the State dismissed the possession of cocaine charge. After conducting a sentencing hearing on November 6, 2006, the district court sentenced Defendant on November 20, The sentencing court ordered Defendant to serve sixty months at hard labor, suspended forty-two months of the sentence, and placed Defendant on three years supervised probation with special conditions. The district court further gave Defendant credit for time served and designated the sentence to run concurrently with Defendant s second offense OWI penalty. The sentencing court then ordered Defendant to pay an aggregate $1, fine for both the possession of marijuana and the OWI convictions. Defendant appealed her sentence, and on appeal, this court, upon finding an error patent, vacated Defendant s sentence and remanded the case for resentencing. State v. Van Winkle, (La.App. 3 Cir. 6/6/07), 964 So.2d 400. On remand, the district ordered Defendant to serve sixty months at hard labor, suspended forty-two

4 months of the sentence, and placed Defendant on three years supervised probation with special conditions. The district court further gave Defendant credit for time served and designated the sentence to run concurrently with Defendant s second offense OWI penalty. On remand, the sentencing court specified that Defendant was to pay a $1, fine for the second offense possession of marijuana conviction, court costs, and other fees according to a court-approved payment plan. On August 3, 2007, the sentencing court issued written reasons for the sentence it imposed. On August 10, 2007, Defendant filed a Motion to Reconsider Sentence with the trial court. In the pleading, Defendant simply alleged that [t]he sentence imposed on the defendant is grossly out of proportion to the crime committed. The district court denied the motion, citing the reasons issued in its written reasons for the sentence imposed. Defendant once again appeals and argues that the sentence imposed for her second offense possession of marijuana conviction is excessive. We affirm Defendant s sentence. STATEMENT OF FACTS: The transcript of the November 6, 2006, sentencing hearing reveals the following facts in the case: On direct examination, Defendant testified that her arrest for OWI and second offense possession of marijuana arose from a traffic stop in Beauregard Parish. Since 1993, Defendant has been on various medications, including pain medicine, for systemic lupus erythematosus, a fatal disease that attacks all organs in the body. Although she did not know it at the time of her arrest, Defendant now realizes that she should not drive while she is on her medication. 2

5 Defendant also testified on direct examination that she has had three back surgeries and was taking the medication for her back surgery on the date of her traffic stop. Because of her back problems, the Social Security Administration qualified Defendant as a disabled person in Defendant had a mild stroke about two years before the hearing. Defendant averred that, at the time of her original sentencing, she had been providing care for her mother-in-law who broke her hip two weeks before the hearing. Defendant s twenty-two-year-old son was also disabled due to a birth defect. Although Defendant s son is employed with a company that accepts disabled workers, Defendant still helps him financially. Defendant attested that she has also been helping her mother meet her daily needs since a brain surgery in 2000, as no other person is in a position to help her mother, because her mother s husband is also disabled with kidney problems and severe asthma. Defendant admitted that she has previously been convicted of offenses in Calcasieu and Cameron Parishes. Defendant was placed on probation for the offenses and successfully met all of the conditions of probation. Defendant was confident that, if the court placed her on probation, she would be willing to meet all probation conditions. Defendant accepted responsibility and expressed remorse for her actions. On cross-examination, Defendant confirmed that her current convictions were second offense possession of marijuana and second offense OWI. Defendant revealed that her first conviction for OWI happened in 1999, as a result of alcohol intoxication. Defendant s first conviction for possession of marijuana was also in Defendant additionally has a 1998 felony conviction for possession of cocaine. Although sentenced to hard labor for the cocaine conviction, Defendant was released 3

6 on probation. Defendant served some time in the local parish jail for the offense, but she had to go to the hospital because she had cancer. Defendant averred that she had no other convictions. Defendant declared that she would be able to comply with supervision fees because she receives a disability income and because her husband works. The court also examined Defendant. During that examination, Defendant confirmed that she also had been convicted for fighting, but she could not remember when or where the conviction occurred. The district court questioned Defendant about an arrest in 1998, for simple battery, resisting an officer, possession of CDS IV, use or sale of drug paraphernalia, and possession of marijuana. Defense counsel explained that the bulk of the charges had been dismissed as a result of Defendant s plea agreement when she pled guilty to possession of marijuana. The sentencing court also asked about felony worthless check charges and a battery charge in Cameron Parish in Defense counsel stated that he was not sure about the disposition of those charges. The district court next asked about charges in 1992, in Bay City, Texas for possession of drug paraphernalia, possession of marijuana, and resisting an officer. Defendant thought that the charges had been dismissed, but she could not clearly remember due to memory loss caused by the lupus. Defendant again expressed her remorse and stated that she wanted to change her life. The sentencing court indicated that it understood, but Defendant had a twenty-year history of violating the law with a good number of the violations coming from drugs and alcohol. 4

7 ERRORS PATENT: In accordance with La.Code Crim.P. art. 920, we review all appeals for errors patent on the face of the record. After reviewing the record, we find that there are no 1 errors patent. However, we do find that the minutes of sentencing are in need of correction. The minutes of sentencing, unlike the transcript of sentencing, fail to reflect that the district court stated that the payment plan to be set by the probation officer was subject to the approval of the court. Therefore, we order the district court to correct the court minutes to reflect that the fines and fees to be paid within twentyfour months on a payment plan set by the probation officer, which shall be subject to court approval. DISCUSSION: In her Motion to Reconsider Sentence, Defendant simply alleged that [t]he sentence imposed on the defendant is grossly out of proportion to the crime committed. In her brief to this court, Defendant argues that [t]he Trial Court erred in imposing an unduly harsh and excessive sentence upon defendant-appellant based upon the circumstances of the case. She contends that the district court erred in imposing the maximum sentence allowed by law. The supreme court has determined that the standard for reviewing excessive sentence claims is abuse of discretion: The trial judge is given a wide discretion in the imposition of sentences within the statutory limits, and the sentence imposed by him should not be set aside as excessive in the absence of a manifest abuse of his discretion. A trial judge is in the best position to consider the 1 We note that the errors patent review is limited to the sentence imposed on the charge of possession of marijuana, second offense, district court docket number CR , as Defendant limited her appeal to this sentence. 5

8 aggravating and mitigating circumstances of a particular case, and, therefore, is given broad discretion in sentencing. On review, an appellate court does not determine whether another sentence may have been more appropriate, but whether the trial court abused its discretion. State v. Williams, , p. 14 (La. 12/13/04), 893 So.2d 7, 16-17(citations omitted). As previously mentioned, the district court sentenced Defendant to serve sixty months (five years) at hard labor; suspended forty-two months (three and a half years) of the sentence; and placed Defendant on three years supervised probation with special conditions. Thus, Defendant received the maximum term of imprisonment for a second offense possession of marijuana. A sentence which falls within the statutory limits may be excessive under certain circumstances. To constitute an excessive sentence, this Court must find that the penalty is so grossly disproportionate to the severity of the crime as to shock our sense of justice or that the sentence makes no reasonable contribution to acceptable penal goals and[,] therefore, is nothing more than the needless imposition of pain and suffering. The trial judge has broad discretion, and a reviewing court may not set sentences aside absent a manifest abuse of discretion. State v. Guzman, , , p. 15 (La. 5/16/00), 769 So.2d 1158, 1167 (citations omitted). Usually, the maximum penalty under law is reserved for the worst offenses and the worst type of offenders. See State v. Clark, 446 So.2d 293 (La.1984). In State v. Smith, , p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ denied, (La. 5/30/03), 845 So.2d 1061 (citations omitted), this court discussed the factors it would consider in order to determine whether a sentence shocks the sense of justice or makes no meaningful contribution to acceptable penal goals: 6

9 In deciding whether a sentence is shocking or makes no meaningful contribution to acceptable penal goals, an appellate court may consider several factors including the nature of the offense, the circumstances of the offender, the legislative purpose behind the punishment and a comparison of the sentences imposed for similar crimes. While a comparison of sentences imposed for similar crimes may provide some insight, it is well settled that sentences must be individualized to the particular offender and to the particular offense committed. Additionally, it is within the purview of the trial court to particularize the sentence because the trial judge remains in the best position to assess the aggravating and mitigating circumstances presented by each case. (citations omitted). On August 3, 2007, the sentencing court explained the aggravating and mitigating circumstances of the case when it issued written reasons for the sentence it imposed: This sentence has been imposed after consideration of the pre-sentence investigation report from the Louisiana Division of Probation and Parole dated August 30, 2006, and reviewing the record in this case, particularly the discovery provided by the State to the defense and the laboratory report and chemical analysis by the Southwest Louisiana Regional Crime Lab dated February 2, 2006, which along with your admission of guilt provides the Court with a factual basis for this conviction. In imposing this sentence, I have also considered the letters submitted on your behalf by your attorney attesting to your general good character and detailing some of your medical problems and the testimony at your sentencing hearing. You appear before this Court for sentencing as a second felony offender with a third felony theft in Texas, which had its disposition deferred and was ultimately dismissed. You have two prior misdemeanor convictions and numerous felony and misdemeanor arrests in Calcasieu and Cameron Parishes, for which probation and parole could not find records of disposition. Your criminal history begins twenty years ago. You apparently have successfully completed probation in several cases. Your guilty plea in this case was entered without any commitment by this Court as to length of sentence. As earlier indicated you have previously been on probation on several occasions, yet continue to violate the law. Probation alone does not seem to be an effective tool to 7

10 manage your behavior, as you continue to involve yourself with illegal drug use. It is now time for imprisonment. However, I have chosen to provide a split sentence with evaluation and treatment and a lengthy probation period upon your release from prison, with the hope of finally assuring that you will remain drug free. Further, I have considered your willingness to admit your wrong doing in this case in imposing this sentence and your medical condition in determining the length of this sentence. I have also considered the letters of support referenced earlier. It is the Court s expectation that you will receive the medical attention and substance abuse counseling you need while incarcerated. The sentence is both just and fair under the circumstances. Thus, the sentencing court particularized Defendant s sentence by considering aggravating and mitigating factors, i.e., the nature of the offense and the circumstances of the offender, before determining the length of the sentence. The district court also explained the purpose behind the punishment; it indicated that the sentence included a mandatory term of incarceration because Defendant s history has shown that probationary treatment, alone, has not been sufficient to deter her from repeat offenses. In State v. Brown, (La.App. 5 Cir. 7/27/04), 880 So.2d 899, the fifth circuit affirmed a five-year hard labor sentence for second offense possession of marijuana. At the time of his offense, Brown was twenty years and had been on probation for three months from a conviction for possession of marijuana with intent to distribute. The fifth circuit found the maximum sentence to be warranted because prior probationary treatment had not curtailed Brown s involvement in drug activity. In State v. Johnson, 36,938, 36,939 (La.App. 2 Cir. 3/5/03), 839 So.2d 1060, the second circuit affirmed a five-year hard labor sentence for second offense possession of marijuana. Originally charged with fourth offense marijuana and possession of cocaine with intent to distribute, Johnson pled guilty to second offense 8

11 possession of marijuana and simple possession of cocaine. The district court imposed maximum penalties for both convictions and ordered the sentences to run concurrently. At the time of his sentencing, Johnson was a twenty-five-year-old fourth felony offender. The bulk of the defendant s previous charges had been for drug offenses and battery. The defendant also had a history of probation and parole revocation. The district court found that Johnson needed custodial treatment and that he was likely to commit another offense. Marking the significant benefit derived from the plea agreement, the Johnson court found no constitutional error in the defendant s sentence. The second circuit also affirmed the five-year sentence imposed for second offense possession of marijuana in State v. Mayweather, 556 So.2d 200 (La.App. 2 Cir. 1990). Thirty-nine-year-old Mayweather had an extensive ongoing criminal record, which the district court found indicated an undue risk that the defendant would commit another crime if placed on probation. The second circuit found Mayweather s sentence to be sufficiently particularized and factually supported. In the instant case, Defendant has a twenty-year criminal history, with several drug offenses. Defendant benefitted from her plea agreement through the dismissal of the possession of cocaine charge. Past repeated probationary treatments have not deterred herfrom committing drug offenses. The sentencing court made allowances for Defendant s disability by suspending three- and-a-half years of the sentence. Accordingly, we find that Defendant s assignment of error is without merit as the district court did not abuse its discretion in imposing the maximum sentence and ordering the bulk of the sentence to be suspended. 9

12 CONCLUSION: We affirm Defendant s sentence. Additionally, we order the minutes of sentencing to be corrected to reflect that the payment plan set by the probation officer shall be subject to court approval. AFFIRMED WITH INSTRUCTIONS. THIS OPINION IS NOT DESIGNATED FOR PUBLICATION. Rule , Uniform Rules, Courts of Appeal. 10

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