Opinion
2016 KA 0740
10-31-2016
STATE OF LOUISIANA v. BJORN MERRIELL, JR.
Hillar C. Moore, III District Attorney Cristopher J.M. Casler Assistant District Attorney Baton Rouge, Louisiana Counsel for Appellee State of Louisiana Adekunle A. Obebe Baton Rouge, Louisiana Counsel for Defendant/Appellant Bjorn Merrieli, Jr.
NOT DESIGNATED FOR PUBLICATION On Appeal from the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana
No. 07-14-0775 Honorable Anthony J. Marabella, Jr., Judge Presiding Hillar C. Moore, III
District Attorney Cristopher J.M. Casler
Assistant District Attorney
Baton Rouge, Louisiana Counsel for Appellee
State of Louisiana Adekunle A. Obebe
Baton Rouge, Louisiana Counsel for Defendant/Appellant
Bjorn Merrieli, Jr. BEFORE: WHIPPLE, C.J., GUIDRY, AND McCLENDON, JJ. McCLENDON, J.
Defendant, Bjorn Merriell, was charged by bill of information with two counts of possession of a schedule I controlled dangerous substance with intent to distribute (marijuana and synthetic marijuana), violations of LSA-R.S. 40:966A(1). He initially pled not guilty. Thereafter, defendant withdrew his prior plea of not guilty and agreed to plead guilty to a reduced charge of second-offense possession of marijuana, a violation of LSA-R.S. 40:966C and E(2)(a) (prior to amendment by 2015 La. Acts No. 295, § 1); additionally, the State dismissed the synthetic marijuana charge in its entirety. After considering the contents of a presentence investigation report (PSI), the trial court sentenced defendant to the maximum term of five years at hard labor and imposed a $2000.00 fine. Defendant filed a motion to reconsider sentence, which the trial court denied. He now appeals, asserting a single assignment of error contending that his sentence is excessive. For the following reasons, we affirm the conviction and sentence.
FACTS
Because defendant pled guilty, the facts of his offense were not developed at a trial. At the time defendant pled guilty, the State gave the following factual basis for defendant's plea:
Your honor, may it please the court, if this matter went to trial the [s]tate would prove that on or about May 28th of 2014 officers with the Baton Rouge City Police Department[']s narcotic division executed a duly authorized search warrant at 2916 Ontario Street. They made entry into the residence and found innumerous people inside including the defendant, Mr. Bjorn Merriell. During the course of their search they uncovered various - some small, some large bags of marijuana, 20.4 grams of marijuana in one bag, 261.6 grams of marijuana in another bag, 101.3 grams of suspected marijuana in a third bag, as well as sums of money and other items of evidence throughout. They Mirandized all subjects, made contact with Mr. Merriell during which course he admitted owning the Ruger pistol that was found as well as $4080.00 worth of cash that was found within the house. All individuals present were booked since none of them stepped up and claimed ownership of the marijuana. All of them were in a position to exercise constructive possession over the contraband seized from the house.Defendant confirmed this factual basis as true.
EXCESSIVE SENTENCE
In his sole assignment of error, defendant argues that his sentence is excessive under the circumstances of his case. He contends that the sentence exceeds the statutory maximum set by the legislature and also that the imposition of a maximum sentence was nothing more than a purposeful and needless infliction of pain and suffering that failed to take into account his individual circumstances.
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. Hurst, 99-2868 (La.App. 1 Cir. 10/3/00), 797 So.2d 75, 83, writ denied, 00-3053 (La. 10/5/01), 798 So.2d 962. 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).
Defendant's first argument is that his sentence is illegal because it exceeds the statutory maximum penalty for second-offense possession of marijuana, as determined by the legislature. This contention is incorrect. While the maximum term of imprisonment for second-offense possession of marijuana has been reduced from five years to six months, this amendment occurred after the commission of the instant offense. See LSA-R.S. 40:966E(2)(a) (prior to amendment by 2015 La. Acts No. 295, § 1); LSA-R.S. 40:966E(1)(b) (following amendment by 2015 La. Acts No. 295, § 1). It is well established that the law in effect at the time of the commission of the offense is the applicable provision. Although the trial court should consider any ameliorative changes in the law in imposing sentence, the trial court should not derogate from the penalty provision in effect at the time of the commission of the offense. See State v. Sugasti, 01-3407 (La. 6/21/02), 820 So.2d 518, 521. Therefore, the sentence imposed does not exceed the statutory maximum as was set forth at the time of the commission of the offense.
We turn next to a consideration of whether defendant's five-year, maximum sentence is excessive. Maximum sentences may be imposed for the most serious offenses and the worst offenders, or when the offender poses an unusual risk to the public safety due to his past conduct of repeated criminality. State v. Miller, 96-2040 (La.App. 1 Cir. 11/7/97), 703 So.2d 698, 701, writ denied, 98-0039 (La. 5/15/98), 719 So.2d 459.
Louisiana Code of Criminal Procedure article 894.1 sets forth the factors for the trial court to consider when imposing sentence. While the entire checklist of Article 894.1 need not be recited, the record must reflect that the trial court adequately considered the criteria. State v. Brown, 02-2231 (La.App. 1 Cir. 5/9/03), 849 So.2d 566, 569. 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. 1 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).
Prior to sentencing defendant, the trial court noted that it had reviewed the PSI prepared by the Division of Probation and Parole. While the trial court recognized defendant's official classification as a "first offender," the court also noted that defendant had an ongoing criminal history. According to the PSI, in 2013, defendant was arrested for possession with intent to distribute a schedule I controlled dangerous substance. In May of 2014 (the arrest that is the subject of the instant appeal), he was arrested for the originally billed offenses, as well as illegal carrying of a weapon and possession of a schedule IV controlled dangerous substance. In July of 2014, defendant was also arrested for possession with intent to distribute schedule I, III, and IV controlled dangerous substances. In September of 2014, he was arrested for production or distribution of a schedule I controlled dangerous substance (synthetic marijuana), possession of drug paraphernalia, and resisting an officer. In January of 2015, defendant was arrested for interfering with a law enforcement investigation, disturbing the peace, and another instance of resisting an officer. Finally, in July of 2015, defendant was cited for illegal use of a controlled dangerous substance in the presence of a person under 17 years old. The trial court stated that some of these arrests have resulted in felony charges that are pending in other sections of the court. According to the PSI, defendant's charges that are pending in other sections of the trial court appear to arise out of the July 2014 arrest and July 2015 summons.
In considering the Article 894.1 factors, the trial court found defendant to be in need of a custodial environment, and not probation. Further, the court believed that a lesser sentence than the one imposed would deprecate the seriousness of the offense. In particular, the trial court noted that defendant had pending felony charges in another section of court and several arrests, including multiple recent arrests for "serious felony drug distribution charges." Finally, the trial court stated its opinion that the district attorney gave defendant a "tremendous deal and break" by reducing his charges to second-offense possession of marijuana. Considering the above, the trial court imposed the maximum possible sentence of five years at hard labor.
An ameliorative change in the penalty provision of a statute that occurs after the commission of the offense is only a factor to be weighed by the trial judge in imposing sentence. See State v. Martin, 01-2986 (La.App. 1 Cir. 6/21/02), 822 So.2d 153, 155 (discussing State v. Clark, 391 So.2d 1174, 1176 (La. 1980)). The change in the sentencing provision was brought to the trial court's attention at the sentencing hearing, where defense counsel stated that the offense would be considered as a misdemeanor under new law. This argument was repeated in the motion to reconsider. Therefore, at the time it sentenced defendant and denied the motion to reconsider, the trial court was aware of the change in law. In sentencing defendant, the trial court apparently placed greater weight on defendant's repeated criminal history, than the recent legislative changes.
Considering the record as a whole, we find that the trial court did not err or abuse its discretion in imposing the maximum possible sentence in this case. A trial court is entitled to consider a defendant's entire criminal history in determining the appropriate sentence to be imposed. See State v. Ballett, 98-2568 (La.App. 4 Cir. 3/15/00), 756 So.2d 587, 602, writ denied, 00-1490 (La. 2/9/01), 785 So.2d 31. Defendant's history of repeated criminality is sufficient to demonstrate that he is among the worst type of offenders, making him eligible for a maximum sentence. See Miller, 703 So.2d at 701.
This assignment of error is without merit.
CONCLUSION
For the foregoing reasons, defendant's conviction and sentence are affirmed.
CONVICTION AND SENTENCE AFFIRMED.