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State v. Allen
Factual and Procedural Background
Kevin O'Brien Allen was charged by bill of information with two counts of distribution of marijuana after two sales to a confidential informant on December 27, 2012 and March 13, 2013. Task force officers conducted constant surveillance and received marijuana from the confidential informant; lab analysis confirmed the substance was marijuana. Allen denied the sales. A jury convicted Allen 11–1 on both counts. At sentencing the trial court considered the PSI and La.C.Cr.P. art. 894.1, found few mitigating factors, noted Allen's extensive prior drug-related convictions qualifying him as a fourth felony offender, and imposed concurrent 10–year hard labor sentences on each count to run consecutive to any other sentence. Allen's motion to reconsider sentence alleging unconstitutional excessiveness was denied, and he appealed.
Legal Issues Presented
- Whether the concurrent sentences of 10 years at hard labor are constitutionally excessive.
- Whether the trial court complied with La.C.Cr.P. art. 894.1 (raised by appellant; court addressed preclusion).
Arguments of the Parties
Appellant's Arguments
- The concurrent 10-year hard labor sentences are excessive and disproportionate to the offenses.
- Although possessing a criminal history, he is not the worst type of offender because prior offenses did not involve violence or weapons.
- The amounts of marijuana sold were small, indicating not a large-scale dealer but sales to facilitate personal use.
- The trial court failed to comply with La.C.Cr.P. art. 894.1 by not considering social history, work experience, education, or other mitigating factors and failed to inquire about past substance abuse treatment.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| State v. Mims, 619 So.2d 1059 (La.1993) | Preclusion of issues not raised in motion to reconsider sentence. | The court held Allen is precluded from raising La.C.Cr.P. art. 894.1 compliance and failure to inquire into substance abuse on appeal because they were not raised in the motion to reconsider sentence. |
| State v. Humphries, 48,235 (La.App.2d Cir.9/25/13), 124 So.3d 1177 | Preclusion of issues not raised in motion to reconsider sentence (appellate authority). | Used alongside State v. Mims to support preclusion ruling, though the court nonetheless found adequate Art. 894.1 compliance in the record. |
| State v. Dorthey, 623 So.2d 1276 (La.1993) | A sentence violates La. Const. art. 1, § 20 if grossly out of proportion to the offense or is a purposeless and needless infliction of pain and suffering. | Provided the constitutional standard for evaluating whether Allen's sentences were excessive. |
| State v. Bonanno, 384 So.2d 355 (La.1980) | Definition/standard for constitutional excessiveness of a sentence. | Applied with Dorthey to assess whether the sentences were grossly disproportionate. |
| State v. Cozzetto, 07–2031 (La.2/15/08), 974 So.2d 665 | Maximum or near maximum sentences are generally reserved for the worst offenses and offenders. | Referenced in considering appropriate sentencing range; noted Allen's 10-year terms are not near maximum exposure. |
| State v. McKinney, 43,061 (La.App.2d Cir.2/13/08), 976 So.2d 802 | Support for principle that maximum sentences are for worst offenses/offenders. | Used to contextualize sentencing norms and compare Allen's sentences to the statutory range. |
| State v. Kidd, 45,638 (La.App.2d Cir.11/3/10), 55 So.3d 90 | Absent a showing of manifest abuse of discretion, an appellate court may not set aside a sentence as excessive. | The court applied this standard and found no manifest abuse of sentencing discretion in Allen's case. |
| State v. Zeigler, 42,661 (La.App.2d Cir.10/24/07), 968 So.2d 875 | A trial judge is best positioned to consider aggravating and mitigating circumstances and is given broad discretion in sentencing. | The court deferred to the trial court's sentencing discretion given its consideration of the PSI, criminal history, and sentencing guidelines. |
Court's Reasoning and Analysis
The court reviewed the record, noting the trial court's consideration of the facts, the PSI, and La.C.Cr.P. art. 894.1 at sentencing. Although Allen raised La.C.Cr.P. art. 894.1 compliance and failure to inquire into substance abuse, those issues were not preserved in his motion to reconsider and are thus precluded on appeal under La.C.Cr.P. art. 881.1(E) and controlling authority. The appellate court nonetheless found adequate Art. 894.1 compliance and noted the trial court's recommendation for substance abuse counseling. Applying the constitutional standard for excessiveness (La. Const. art. 1, § 20), as articulated in Dorthey and Bonanno, and recognizing that maximum sentences are generally reserved for the worst offenders (Cozzetto, McKinney), the court observed Allen's sentencing exposure (5–30 years per count) and that the imposed concurrent 10–year terms are in the lower range. Considering Allen's persistent drug-related criminal history and prior failures of leniency or rehabilitation, the court concluded the sentences were not a purposeless or needless infliction of pain and suffering and that the trial court did not abuse its broad sentencing discretion.
Holding and Implications
Holding: The convictions and sentences are AFFIRMED.
Implications: The direct effect is that Allen's convictions and the concurrent 10–year hard labor sentences are upheld. The court applied established excessiveness standards and sentencing-deference principles; the opinion does not announce any new legal precedent.
CARAWAY
Carey J. Ellis, III, Louisiana Appellate Project, for Appellant. J. Schuyler Marvin, District Attorney, John M. Lawrence, Lane Pittard, Alexandra Aiello, Assistant District Attorneys, for Appellee.
Before CARAWAY, GARRETT and LOLLEY, JJ.
CARAWAY, J.
Following a jury trial, Kevin O'Brien Allen was convicted of two counts of distribution of marijuana, in violation of La. R.S. 40:966(A), and was subsequently sentenced to concurrent 10–year hard labor terms on each count, to run consecutively with any other sentence. Allen appeals his sentences. We affirm.
FactsOn June 14, 2013, Kevin O'Brien Allen was charged by bill of information with two counts of distribution of marijuana, after he made two sales of marijuana to a confidential informant on December 27, 2012, and March 13, 2013.
The testimony at trial established that in conjunction with the Bossier Parish Narcotics Task Force, a confidential informant, equipped with video and audio equipment and money for the purchase of marijuana, met with Allen on two occasions. After constant surveillance by narcotics task force officers on each transaction, the confidential informant returned with marijuana. Although the videos of the undercover operations did not show hand-to-hand drug transactions, the confidential informant told task force officers that he did in fact purchase the marijuana from Allen. Lab analysis confirmed that the substance received by the officers, and submitted into evidence at trial, was marijuana. Allen denied selling marijuana to the confidential informant on either occasion and concluded that the drugs were in the confidential informant's vehicle. By an 11–1 vote, a jury found Allen guilty as charged.
At the sentencing hearing, the trial court considered the facts of this case, the presentence investigation (“PSI”) report, and the sentencing guidelines set forth in La.C.Cr.P. art. 894.1. Upon review of the PSI, the trial court concluded that it was difficult to find any mitigating factors in Allen's favor. The court noted Allen's extensive criminal history which qualified him as a fourth felony offender, specifically noting Allen's significant drug history, largely involving marijuana, since 2001. Allen's record included convictions for simple burglary of an inhabited dwelling and possession of marijuana in 2001. For a 2004 conviction of possession of marijuana with intent to distribute, Allen received a suspended 5–year hard labor sentence but had his probation revoked. In 2007, he was convicted of possession of marijuana, second offense, and in 2009, he was convicted of felony possession of marijuana. He had subsequent convictions in 2012 for forgery and misdemeanor theft for which his probation was revoked due to the commission of new offenses. He was also convicted of possession of a Schedule II CDS after he took contraband from a penal institution.
In imposing the chosen sentences, the trial court considered Allen's drug offense history and observed that any lesser sentence would deprecate the seriousness of the offense. The court noted that Allen faced potential sentencing exposure of 60 years and would not be eligible for probation, which would be inappropriate in any event due to Allen's previous probation revocations. Thereafter the trial court sentenced Allen to concurrent sentences of 10 years at hard labor on each count to be served consecutive with any other sentence.
On May 29, 2014, Allen filed a motion to reconsider sentence on the grounds of unconstitutional excessiveness, which was denied. This appeal followed.
DiscussionOn appeal Allen argues that the concurrent sentences of 10 years at hard labor are excessive under the circumstances of this case. Allen contends that although he has a criminal history, he does not qualify as the worst type of offender as his previous offenses did not involve violence or the use of weapons. He also urges that the amount of marijuana sold is small, indicating that he is not a large-scale dealer, but rather limits his activities to facilitate personal use. Allen raises issues regarding the trial court's compliance with La.C.Cr.P. art. 894.1 including the lack of consideration of his social history, work experience, education, or any other mitigating factors. He finally complains that the trial court failed to inquire about past substance abuse treatment.
Because La.C.Cr.P. art. 894.1 compliance as well as the failure of the trial court to inquire into Allen's substance abuse treatment history were not raised in the motion to reconsider sentence, Allen is now precluded from raising these issues on appeal and is limited to review of his sentences for constitutional excessiveness. La.C.Cr.P. art. 881.1(E); State v. Mims, 619 So.2d 1059 (La.1993); State v. Humphries, 48,235 (La.App.2d Cir.9/25/13), 124 So.3d 1177. Even so, we find adequate Art. 894.1 compliance by the trial court, including consideration of mitigating factors, and note the trial court's recommendation that Allen receive substance abuse counseling.
A sentence violates La. Const. art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). Maximum or near maximum sentences are generally reserved for the worst offenses and offenders. State v. Cozzetto, 07–2031 (La.2/15/08), 974 So.2d 665; State v. McKinney, 43,061 (La.App.2d Cir.2/13/08), 976 So.2d 802. Absent a showing of manifest abuse of that discretion, an appellate court may not set aside a sentence as excessive. State v. Kidd, 45,638 (La.App.2d Cir.11/3/10), 55 So.3d 90. A trial judge is in the best position to consider the aggravating and mitigating circumstances of a particular case, and, therefore, is given broad discretion in sentencing. State v. Zeigler, 42,661 (La.App.2d Cir.10/24/07), 968 So.2d 875.
For these offenses, Allen faced sentencing exposure of not less than 5, nor more than 30 years hard labor on each count. La. R.S. 40:966(B)(3). Thus, the imposed 10–year concurrent sentences are in the lower range of sentencing choices. Considering Allen's persistent criminal history of drug offenses, failure to benefit from prior leniency in sentencing or be rehabilitated through previous incarceration, we cannot find that the imposed sentences amount to a purposeless and needless imposition of pain and suffering. Thus, the trial court acted within its sentencing discretion in imposing the chosen sentences. This assignment of error is without merit.
DecreeFor the foregoing reasons, Allen's convictions and sentences are affirmed.
AFFIRMED.
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