Opinion
NO. 2013 KA 0073
2013-09-13
STATE OF LOUISIANA v. BARRY D. McQUEEN
Walter P. Reed District Attorney Covington, LA Attorneys for Plaintiff-Appellee, State of Louisiana Kathryn W. Landry Baton Rouge, LA Lieu T. Vo Clark Mandeville, LA Attorney for Defendant-Appellant, Barry McQueen
NOT DESIGNATED FOR PUBLICATION
On Appeal from the
22nd Judicial District Court,
In and for the Parish of St. Tammany,
State of Louisiana
Trial Court No. 518156
Honorable Peter J. Garcia, Judge Presiding
Walter P. Reed
District Attorney
Covington, LA
Attorneys for Plaintiff-Appellee,
State of Louisiana
Kathryn W. Landry
Baton Rouge, LA
Lieu T. Vo Clark
Mandeville, LA
Attorney for Defendant-Appellant,
Barry McQueen
BEFORE: KUHN, HIGGINBOTHAM, AND THERIOT, JJ.
HIGGINBOTHAM, J.
Defendant, Barry D. McQueen, was charged by bill of information with production and manufacture of a schedule II controlled dangerous substance (methamphetamine), a violation of La. R.S. 40:967(A)(1) (count one), and possession of a schedule II controlled dangerous substance (methamphetamine), a violation of La. R.S. 40:967(C) (count two) He pled not guilty. After a jury trial, defendant was found guilty as charged on both counts. The trial court denied defendant's motions for new trial and postverdict judgment of acquittal. For his conviction on count one, defendant was sentenced to fifteen years at hard labor, with ten years to be served without benefit of parole, probation, or suspension of sentence. For his conviction on count two, defendant was sentenced to five years at hard labor. The trial court ordered these sentences to run concurrently. Defendant filed a motion to reconsider sentence, but the trial court denied that motion. He now appeals, alleging two assignments of error relating to the constitutionality of his sentences. For the following reasons, we affirm defendant's convictions and sentences.
One codefendant, Anthony Alexius, was charged with identical offenses via the same bill of information. However, Alexius pled guilty prior to defendant's trial, and he is not a party to the instant appeal.
FACTS
On October 17, 2011, Detective Julie Boynton of the St. Tammany Parish Sheriff's Office received a tip that defendant and his daughter, Trina McQueen, were dealing methamphetamine from a location on Spur 41 in Pearl River. Detective Boynton performed surveillance on the location identified in the tip, and she was able to identify a red, four-door Kia sedan belonging to Trina McQueen. She later accessed the National Precursor Log Exchange ("NPLEx") database, which tracks individuals' purchases of pseudoephedrine products, to run searches on defendant and Trina, and for notification of subsequent purchases. The NPLEx database returned results indicating that defendant had forty-six "activities" dating from October 6, 2009, to December 5, 2011, including a purchase of a pseudoephedrine product on October 16, 2011.
Detective Boynton later detailed these forty-six "activities" as forty-two purchases, three blocked purchases, and one "exceedence," in which defendant had purchased more than the weekly or monthly quota of pseudoephedrine products.
On December 5, 2011, Detective Boynton was notified that defendant had purchased a pseudoephedrine product on Chef Menteur Highway in New Orleans. She and her partner, Detective Christopher Comeaux, were traveling to purchase some office supplies at the time. They were on U.S. Hwy. 11 in Pearl River when they spotted a red, four-door Kia sedan. After briefly following it, Detectives Boynton and Comeaux were able to identify the vehicle as the same one belonging to Trina, while also confirming that she was the driver. They followed her to the Jubilee Food Mart, where she purchased four containers of salt. Based on the earlier NPLEx notification and their observations of Trina, Detectives Boynton and Comeaux believed that a methamphetamine "cook" might be happening that day. As a result, they decided to perform an investigatory stop of Trina.
Detective Comeaux testified as an expert in the manufacturing of methamphetamine and explained that table salt is often used in the process of producing methamphetamine.
Out of concern for their safety, Detectives Boynton and Comeaux called for backup to assist them in stopping Trina. However, because of the short distance between the food mart and defendant's residence on Spur 41, the requested backup was unable to arrive before Trina made it home. As Trina pulled into the driveway, the detectives pulled in behind her. Trina exited her vehicle and the detectives made contact with her. Detective Boynton then identified defendant near a shed on the property. She instructed him to walk over to Detective Comeaux, and he complied. Detective Boynton then instructed Anthony Alexius, who was inside the shed, to approach her. After initially hesitating, Alexius also complied.
As Detective Comeaux made contact with defendant, he went to perform a protective pat down of defendant's body. Prior to the pat down, defendant exclaimed that he was in possession of a bag of methamphetamine. Detective Comeaux immediately informed defendant of his Miranda rights and proceeded with the pat down. He immediately recovered a straw and some foil from defendant's pockets, but he was unable to locate the methamphetamine. He asked defendant to direct him to it, and defendant indicated that the drugs were in the small change pocket of his pants. Detective Comeaux ultimately succeeded in recovering a bag of methamphetamine. During a subsequent conversation, defendant admitted to Detective Comeaux that there was a bag of methamphetamine hanging in the shed that he had just finished "smoking off," or finalizing its production. Based on this information, the detectives secured a search warrant for the property. In the ensuing search, they recovered the bag from the shed that defendant had identified, as well as numerous other items suspected to be used in the production of methamphetamine.
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct 1602, 16 L.Ed.2d 694 (1966).
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ASSIGNMENTS OF ERROR #1 AND #2
In two related assignments of error, defendant argues that his sentences are constitutionally excessive and constitute cruel and unusual punishment under the facts of this case. In that regard, he contends that the trial court erred in denying his motion to reconsider sentence. Defendant's claims of constitutional excessiveness are predicated on his lack of any criminal history and the fact that the trial court imposed a maximum sentence for his conviction on count two.
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's constitutional right against excessive punishment and is subject to appellate review, State v. Sepulvado, 367 So.2d 762, 767 (La. 1979). A sentence is constitutionally excessive if it is grossly disproportionate to the severity of the offense or is nothing more than a purposeless and needless infliction of pain and suffering. See State v. Dorthey, 623 So.2d 1276, 1280 (La. 1993). A sentence is grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. State v. Hogan, 480 So.2d 288, 291 (La. 1985). A trial court is given wide discretion in the imposition of sentences within statutory limits, and the sentence imposed by it should not be set aside as excessive in the absence of manifest abuse of discretion. State v. Lobato, 603 So.2d 739, 751 (La. 1992).
The Louisiana Code of Criminal Procedure sets forth items that must be considered by the trial court before imposing sentence. La. Code Crim. P. art. 894.1. The trial court need not recite the entire checklist of Article 894.1, but the record must reflect that it adequately considered the guidelines. State v. Herrin, 562 So.2d 1, 11 (La. App. 1st Cir.), writ denied, 565 So.2d 942 (La. 1990). In light of the criteria expressed by Article 894.1, a review for individual excessiveness should consider the circumstances of the crime and the trial court's stated reasons and factual basis for its sentencing decision. State v. Watkins, 532 So.2d 1182, 1186 (La. App. 1st Cir. 1988). Remand for full compliance with Article 894.1 is unnecessary when a sufficient factual basis for the sentence is shown. State v. Lanclos, 419 So.2d 475, 478 (La. 1982).
On count one, defendant was subject to a sentence at hard labor for not less than ten years nor more than thirty years, at least ten years of which shall be served without benefit of parole, probation, or suspension of sentence, and he was subject to an additional fine of not more than five hundred thousand dollars. See La. R.S. 40:967(B)(3)(a). As noted above, the trial court imposed a sentence of fifteen years imprisonment at hard labor, with ten years to be served without the benefit of parole, probation, or suspension of sentence. No fine was imposed. On count two, defendant was subject to a sentence with or without hard labor for not more than five years, and he was subject to an additional fine of up to five thousand dollars. See La. R.S. 40:967(C). The trial court imposed the maximum sentence of five years at hard labor, but defendant was not fined for this offense either.
As a general rule, maximum or near maximum sentences are to be reserved for the worst offenders and the worst offenses, State v. James, 2002-2079 (La. App. 1st Cir. 5/9/03), 849 So.2d 574, 586. Prior to sentencing defendant, the trial court asked defendant if he wished to make a statement. Defendant opted to do so, and stated to the court that while he was indeed in possession of methamphetamine, he had no part in its production. The trial court cited Article 894.1 and found that defendant was in need of correctional treatment or a custodial environment. Further, the trial court believed that there was an undue risk that defendant would commit additional crimes if he were given a suspended sentence. The trial judge noted specifically that he took issue with defendant's refusal to take responsibility for the entirety of his actions.
Despite the fact that defendant apparently has no significant criminal history outside of the instant offenses, the record provides ample justification for the mid-range sentence imposed on count one and the concurrent, maximum sentence on count two. First, the trial court adequately considered the factors set forth in Article 894.1. In addition, the trial judge clearly believed that defendant was of the worst class of offenders and that his crimes were serious offenses. Finally, although the trial court imposed a maximum sentence on count two, that sentence was ordered to run concurrently with the more severe sentence on count one, which effectively diminishes the impact of the maximum sentence. See State v. Preston, 498 So.2d 79, 81 (La. App. 5th Cir. 1986) (finding a lessened impact of two different maximum sentences which were to be served concurrently). Accordingly, the sentences imposed are not grossly disproportionate to the severity of the offenses and, therefore, are not constitutionally excessive. For the same reasons, we find that the trial court did not err or abuse its discretion in denying defendant's motion to reconsider sentence.
These assignments of error are without merit.
CONCLUSION
For these reasons, we hereby affirm the convictions and sentences of defendant, Barry D. McQueen.
CONVICTIONS AND SENTENCES AFFIRMED.