Fill and Sign the Original Brief on Behalf of Defendant Appellant Louisiana Form

COURT OF APPEAL, _________ CIRCUIT STATE OF LOUISIANA NUMBER: _________ * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * STATE OF LOUISIANA VS. ______________ * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * CRIMINAL ACTION NOS. _________ & _________ _________ JUDICIAL DISTRICT COURT IN AND FOR THE PARISH OF _________ , STATE OF LOUISIANA HONORABLE ______________ , TRIAL JUDGE * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * ORIGINAL BRIEF ON BEHALF OF DEFENDANT/APPELLANT ______________ * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * ______________ ______________ ASSISTANT DISTRICT ATTORNEY INDIGENT DEFENDER BOARD COURTHOUSE BUILDING _________ JUDICIAL DISTRICT COURT ______________ ______________ _________ , LA _________ _________ , LA _________ ( ___ ) _________ REPRESENTING THE STATE OF REPRESENTING DEFENDANT - LOUISIANA - APPELLEE APPELLANT I. JURISDICTION This is an appeal from a felony conviction. Jurisdiction is vested in this Court by Article V, Section 10, of the Louisiana Constitution of 1974, as amended, and by the provisions of Article 212.1 of the Louisiana Code of Criminal Procedure. II. SYLLABUS OF LAW Louisiana Code of Criminal Procedure, Article 894.1 (A) State v. Telsee , 425 So.2d 1251 (La. 1983) State v. Merrill , 650 So.2d 793 (La. App. 4th Cir. 1995) State v. Flowers , 559 So.2d 1372 (La. 1990) State v. Gordon , 444 So. 2d 1188 (La. 1984) State v. Tilley , 400 So.2d 1363 (La. 1981) State v. Strickland , 486 So.2d 1015 (La. App. 2nd Cir. 1986) State v. Jett , 419 So.2d 844 (La.1982) III. STATEMENT OF THE CASE On _________ ___ , 20 ___ , ______________ plead guilty before the Honorable ______________ to one (1) count of Distribution of Marijuana in a School Zone, under Docket Number _________ . At that time, the Court ordered a pre-sentence investigation and set a sentencing date of _________ ___ , 20 ___ . IV. ACTION OF TRIAL COURT On _________ ___ , 20 ___ , Defendant, ______________ , appeared before the Honorable ______________ for sentencing on one (1) count of Distribution of Marijuana in a School Zone. Also, on that date ______________ plead guilty to an additional count of Distribution of Cocaine under Docket Number _________ . On _________ ___ , 20 ___ , the Defendant, ______________ , was sentenced to serve fifteen (15) years at hard labor without benefit of probation, parole or suspension of sentence, under Docket Number _________ . ______________ was also sentenced under Docket Number _________ , to ten (10) years at hard labor, these sentences to run consecutively. V. ASSIGNMENTS OF ERROR Assignment of Error No. 1 THE TRIAL COURT ERRED IN SENTENCING THE DEFENDANT TO A TERM OF IMPRISONMENT OF FIFTEEN YEARS AND TEN YEARS TO RUN CONSECUTIVELY, AS SUCH WAS AN EXCESSIVE SENTENCE WHICH IS CRUEL AND UNUSUAL PURSUANT TO THE U.S. AND LOUISIANA CONSTITUTIONS. VI. ISSUES PRESENTED FOR REVIEW 1. Whether the trial court imposed a constitutionally excessive sentence. VII. ARGUMENT ASSIGNMENT OF ERROR NO. 1: Article 1, Section 20, of the Louisiana Constitution of 1974 prohibits excessive punishment. Punishment is unconstitutionally excessive if (1) it makes no measurable contribution to acceptable goals of punishment and is nothing more than the purposeless and needless imposition of pain and suffering or (2) is grossly out of proportion to the severity of the crime. State v. Telsee , 425 So.2d 1251, 1253 (La. 1983). The trial court should consider the factors articulated by Louisiana Code of Criminal Procedure, Article 894.1 as an aid when reviewing an allegedly excessive sentence. In State v. Jett , 419 So.2d 844, (S.CT.1982), the Court noted that their review of possible constitutional error is not absolutely precluded by a defendant = s agreement to plead guilty or receive a particular sentence. In State v. Merrill , 650 So.2d 793, (La. App. 4th Cir. 1995), the Court held that a sentence of twenty years at hard labor was excessive. The defendant, Guilroy Merrill, was convicted of Distribution of Cocaine and he also had a prior conviction of Theft. The Court relied upon the reasoning in the per curiam opinion of State v. Flowers , 559 So.2d 1372 (La. 1990). In the Flowers case, the defendant was a first felony offender with family dependents and he only distributed small amounts of cocaine to an undercover narcotics agent. In State v. Gordon , 444 So.2d 1188 (La. 1984), the Court found that a twenty year suspended sentence was excessive because it was very likely that the defendant would violate his probation because of his drug addiction. The Court noted that the defendant had led a productive life, had no prior criminal record, and had apparently only sold a small amount of cocaine within a short period of time in order to support his addiction. Likewise, the Supreme Court and Second Circuit Court of Appeals have held that excessive sentences should not be imposed upon defendants convicted of drug offenses when they are only small scale dealers. State v. Tilley , 400 So.2d 1363 (La. 1981), State v. Strickland , 486 So.2d 1015 (La. App. 2nd Cir. 1986). In the instant case, the defendant is a twenty year old male and a first felony offender, with family dependants. A twenty-five year hard labor sentence is a needless imposition of pain and suffering and it is also grossly out of proportion to the severity of the crime. According to the record, ______________ sold a small amount of marijuana in a school zone on _________ ___ , 20 ___ , and then on _________ ___ , 20 ___ , he sold three (3) rocks of crack cocaine to an undercover police officer. This crack cocaine actually belonged to another individual and ______________ was not the supplier of these drugs. (TR.25) The trial court did not adequately and impartially weigh the evidence. The type and level of harm by which the defendant was convicted is minimal compared to the type and level of harm of large-scale drug dealers. The circumstances surrounding this defendant and seriousness level of these particular offenses does not warrant a twenty-five year sentence for a first offender. Accordingly, in this case, defendant argues that this sentence was excessive and asks this Court to vacate the trial court = s sentence and to sentence defendant appropriately. VIII. CONCLUSION The sentence of twenty-five years at hard labor is excessive for a twenty year old defendant without any prior felony convictions. Therefore, the sentence of the trial court should be vacated and the defendant should be sentenced accordingly. RESPECTFULLY SUBMITTED BY: ______________________________ ______________ _________ Judicial District Indigent Defender Board _________ ( ___ ) _________ Bar No. _________ CERTIFICATE OF SERVICE I HEREBY CERTIFY that I have forwarded a copy of the above original brief to the records of all counsel by placing a copy thereof in the United States Mail, postage prepaid and properly addressed. Signed in ______________ , Louisiana, on this ________ day of ___________________, 20 ___ . ______________________________ ______________