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STATE v. BOUQUET, 2015 KA 1301. (2016)

Court: Court of Appeals of Louisiana Number: inlaco20160418197 Visitors: 11
Filed: Apr. 15, 2016
Latest Update: Apr. 15, 2016
Summary: NOT DESIGNATED FOR PUBLICATION PETTIGREW , J. Defendant, Michael D. Bouquet, was charged by bill of information with possession of a Schedule II controlled dangerous substance (methamphetamine), a violation of La. R.S. 40:967(C)(2) (count one), and creation or operation of a clandestine laboratory, a violation of La. R.S. 40:983 (count two). He pled not guilty to each count. Following a jury trial, defendant was found guilty of the responsive offenses of attempted possession of a Schedule
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NOT DESIGNATED FOR PUBLICATION

Defendant, Michael D. Bouquet, was charged by bill of information with possession of a Schedule II controlled dangerous substance (methamphetamine), a violation of La. R.S. 40:967(C)(2) (count one), and creation or operation of a clandestine laboratory, a violation of La. R.S. 40:983 (count two). He pled not guilty to each count. Following a jury trial, defendant was found guilty of the responsive offenses of attempted possession of a Schedule II controlled dangerous substance, a violation of La. R.S. 14:27, 40:967(C)(2), and 40:979(A); and attempted creation or operation of a clandestine laboratory, a violation of La. R.S. 14:27, 40:979(A), and 40:983. Defendant filed motions for new trial, in arrest of judgment, and for postverdict judgment of acquittal, all of which the trial court denied. On count one, the trial court sentenced defendant to two years at hard labor; on count two, the trial court sentenced defendant to five years at hard labor. The trial court ordered these sentences to run concurrently with each other, but consecutive to a sentence defendant is serving as a result of having his probation revoked in East Baton Rouge Parish.

Defendant now appeals, alleging that his sentences are excessive and that his trial counsel was ineffective for failing to file a motion to reconsider his sentences. For the following reasons, we affirm defendant's convictions and sentences.

FACTS

On October 12, 2014, Deputy Chase Migues of the Livingston Parish Sheriff's Office was dispatched to investigate a report of suspicious vehicles at a residence located at 9924 Chapel Hill Drive. Shortly after arriving at the scene, Deputy Migues made contact with defendant, who approached him after walking from the rear of the residence. Defendant told Deputy Migues that he had been looking for a chain he intended to borrow from the homeowner, who apparently was not present. Deputy Migues made contact with the homeowner's father, who informed him that no one should have been at the residence at that time. Deputy Migues then asked defendant for consent to search his vehicle, and defendant assented.

Upon searching the center console of defendant's vehicle, Deputy Migues found syringes and alcohol wipes. Defendant initially stated that these items belonged to his diabetic mother, but he later admitted that he used them to shoot methamphetamine. Deputy Migues placed defendant under arrest and continued to search the vehicle. In the trunk, Deputy Migues found a speaker box containing camp fuel and a blender with a ground, white powder. Defendant admitted that the powdery substance was used to make methamphetamine, and Deputy Migues later determined this substance to be Sudafed. Defendant told Deputy Migues that he had received these items from the homeowner, who instructed defendant to bring them to the residence.

The day following his arrest, defendant spoke with Livingston Parish Sheriff's Deputy Carl Childers. Deputy Childers reviewed with defendant the electronic NPLEX (National Precursor Log Exchange) logs of his completed and blocked purchases of pseudoephedrine for 2014. Defendant admitted to purchasing boxes of medications containing pseudoephedrine in order to trade them for methamphetamine.

INEFFECTIVE ASSISTANCE OF COUNSEL/EXCESSIVE SENTENCE

In related assignments of error, defendant argues that the trial court erred in imposing an unconstitutionally excessive sentence and that trial counsel was ineffective for failing to file a motion to reconsider sentence.

As defendant recognizes, the record does not contain an oral or written motion to reconsider sentence. One purpose of the motion to reconsider sentence is to allow the defendant to raise any errors that may have occurred in sentencing while the trial court still has the jurisdiction to change or correct the sentence. The defendant may point out such errors or deficiencies, or may present argument or evidence not considered in the original sentencing, thereby preventing the necessity of a remand for resentencing. State v. Mims, 619 So.2d 1059 (La. 1993) (per curiam). Under the clear language of La. Code Crim. P. art. 881.1(E), failure to make or file a motion to reconsider sentence precludes a defendant from raising an objection to the sentence on appeal, including a claim of excessiveness. Accordingly, in this case defendant is procedurally barred from having his challenge to the sentence, raised in assignment of error number one, reviewed by this court on appeal. See State v. Felder, 2000-2887, p. 10 (La. App. 1 Cir. 9/28/01), 809 So.2d 360, 369, writ denied, 2001-3027 (La. 10/25/02), 827 So.2d 1173.

In the interest of judicial economy, however, we will review defendant's excessiveness argument in order to address the claim of ineffective assistance of counsel. See State v. Wilkinson, 99-0803, p. 3 (La. App. 1 Cir. 2/18/00), 754 So.2d 301, 303, writ denied, 2000-2336 (La. 4/20/01), 790 So.2d 631.

As a general rule, a claim of ineffective assistance of counsel is more properly raised in an application for postconviction relief in the trial court rather than by appeal. This is because postconviction relief provides the opportunity for a full evidentiary hearing under La. Code Crim. P. art. 930.1 However, when the record is sufficient, this court may resolve this issue on direct appeal in the interest of judicial economy. State v. Lockhart, 629 So.2d 1195, 1207 (La. App. 1 Cir. 1993), writ denied, 94-0050 (La. 4/7/94), 635 So.2d 1132.

The claim of ineffective assistance of counsel is to be assessed by the two-part test of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See State v. Fuller, 454 So.2d 119, 125 n.9 (La. 1984). The defendant first must show that counsel's performance was deficient and, second, that the deficiency prejudiced him. Counsel's performance is deficient when it can be shown that he made errors so serious that he was not functioning as the "counsel" guaranteed to the defendant by the Sixth Amendment. Counsel's deficient performance will have prejudiced the defendant if he shows that the errors were so serious as to deprive him of a fair trial. The defendant must make both showings to prove that counsel was so ineffective as to require reversal. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. To carry his burden, the defendant "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. It is unnecessary to address the issues of both counsel's performance and prejudice to the defendant if the defendant makes an inadequate showing on one of the components. State v. Serigny, 610 So.2d 857, 860 (La. App. 1 Cir. 1992), writ denied, 614 So.2d 1263 (La. 1993).

The failure to file a motion to reconsider sentence in itself does not constitute ineffective assistance of counsel. Felder, 2000-2887 at 10-11, 809 So.2d at 370. However, if the defendant can show a reasonable probability that, but for counsel's error, his sentence would have been different, a basis for an ineffective assistance claim may be found. Thus, defendant must show that but for his counsel's failure to file a motion to reconsider sentence, the sentence would have been changed, either in the district court or on appeal. Felder, 2000-2887 at 11, 809 So.2d at 370.

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, p. 10 (La. App. 1 Cir. 10/3/00), 797 So.2d 75, 83, writ denied, 2000-3053 (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).

Louisiana Code of Criminal Procedure article 894.1 sets forth the factors for the district court to consider when imposing sentence. While the entire checklist of Article 894.1 need not be recited, the record must reflect that the district court adequately considered the criteria. State v. Brown, 2002-2231, p. 4 (La. App. 1 Cir. 5/9/03), 849 So.2d 566, 569. However, the goal of Article 894.1 is the articulation of the factual basis for a sentence, not rigid or mechanical compliance with its provisions. State v. Lanclos, 419 So.2d 475, 478 (La. 1982). Therefore, even in the absence of adequate compliance with Article 894.1, it is not necessary to remand the matter for resentencing when the sentence imposed is not apparently severe in relation to the particular offender or the particular offense. Even when a trial court assigns no reasons, the sentence will be set aside on appeal and remanded for resentencing only if the record is either inadequate or clearly indicates that the sentence is excessive. See La. Code Crim. P. art. 881.4(D); State v. Harris, 601 So.2d 775, 778-779 (La. App. 1 Cir. 1992).

In the instant case, for defendant's conviction for attempted possession of methamphetamine, he was exposed to a term of imprisonment with or without hard labor for not more than two-and-one-half years and a fine of not more than $2,500.00. See La. R.S. 14:27(D)(3), 40:967(C)(2), and 40:979(A). He was sentenced to two years at hard labor on this offense. For his conviction of attempted creation or operation of a clandestine laboratory, he was exposed to a term of imprisonment at hard labor for not more than seven-and-one-half years and a fine of not more than $12,500.00. See La. R.S. 14:27(D)(3), 40:979(A), and 40:983(C). He was sentenced to five years at hard labor on this offense, to be served concurrently with the sentence on count one.

Defendant argues that the trial court failed to consider the factors delineated in Article 894.1 in imposing the above sentences. Defendant contends that his methamphetamine addiction was a strong provocation for his actions, mitigating his culpability for these offenses.

As noted by defendant, the trial court failed to state that it had considered the sentencing guidelines of Article 894.1. Similarly, the trial court did not provide a substantial discussion as to the reasons for the sentences imposed. Nevertheless, despite the trial court's failure to more fully articulate the factual basis for defendant's sentences, our review indicates that the sentences are not apparently severe in relation to the particular offender or the particular offenses. The sentences imposed by the trial court were not the maximum possible sentences. Further, defendant's rap sheet, which is included as part of the record, indicates a clear history of repeated criminality dating back to at least 1989. Defendant's prior offenses include numerous drug offenses, including at least one prior conviction for creation or operation of a clandestine laboratory.

On appellate review of a sentence, the relevant question for the reviewing court is whether the trial court abused its broad sentencing discretion, and not whether other sentences might have been more appropriate. State v. Soraparu, 97-1027 (La. 10/13/97), 703 So.2d 608 (per curiam). Based on our review, we find that, although the trial court failed to adequately articulate sentencing reasons, the sentences are not apparently severe and are supported by the record. Accordingly, a remand for full compliance with Article 894.1 is not necessary. Under the circumstances, the defendant's sentences were neither disproportionate to the seriousness of the offenses nor shocking to our sense of justice. Even in light of the mitigating factor urged by the defendant, we cannot find that the trial court abused its wide discretion in imposing sentence. The sentences imposed were not unconstitutionally excessive.

Defendant has failed to make an adequate showing on appeal that a properly filed motion to reconsider sentence would have resulted in the trial court amending his sentences. Therefore, even if we were to conclude that defendant's trial counsel performed deficiently in not filing a motion to reconsider sentence, defendant failed to show that he was prejudiced in this regard.

CONVICTIONS AND SENTENCES AFFIRMED.

FootNotes


1. In order to receive such a hearing, a defendant would have to satisfy the requirements of La. Code Crim. P. art. 924, et seq.
Source:  Leagle

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