STATE v. ORTEGO (2025)

Defendant, Tammy V. Ortego, appeals her eighteen-month sentence at hard labor for possession of methamphetamine weighing less than two grams. For the following reasons, we conclude that the trial court did not abuse its discretion in sentencing defendant to eighteen months imprisonment at hard labor, particularly given defendant's criminal history and the circumstances of the offense. We further conclude that the court did not err in denying defendant's Motion for Reconsideration of Sentence. Additionally, defendant is not entitled to review of the court's alleged failure to comply with La. C.Cr.P. art. 894.1. We affirm defendant's conviction and sentence. We remand the matter to the trial court for correction of the sentencing minute entry and the Louisiana Uniform Commitment Order, as discussed below.

PROCEDURAL BACKGROUND

On March 20, 2023, the Jefferson Parish District Attorney filed a bill of information charging defendant with possession of methamphetamine weighing two grams or more, but less than twenty-eight grams, in violation of La. R.S. 40:967(C). Defendant pled not guilty at her arraignment on August 2, 2023. On September 6, 2023, the State amended the bill of information, changing the weight of the methamphetamine to “two grams or less.”

On July 9, 2024, a six-person jury found defendant guilty of possession of methamphetamine weighing less than two grams.¹ On July 11, 2024, defendant filed a motion for a new trial, which the court denied on July 12, 2024. After waiving sentencing delays, the court sentenced defendant to imprisonment at hard labor for eighteen months, to run concurrently with “any other sentences that [defendant] might be serving.”² On July 15, 2024, defendant filed a Motion for Reconsideration of Sentence and a Motion for Appeal. The Motion for Appeal was granted on July 16, 2024, and the Motion for Reconsideration of Sentence was denied on August 6, 2024.³

FACTS

Detective Micah Blange with the narcotics unit of the Jefferson Parish Sheriff's Office arrested defendant on January 5, 2023. The investigation began with an anonymous Crime Stoppers complaint that provided defendant's name and address on Nursery Avenue in Metairie.⁴ It was determined that a white female lived at the address. Detective Blange and other officers conducted physical surveillance of the residence for a few hours on January 5, 2023. During that time, a female matching the description in a photograph obtained through their research was observed exiting the house and was identified as defendant. Later, an older male, subsequently identified as defendant's father, arrived in a vehicle and picked up a young boy. Detective Blange and other officers followed defendant's father to a gas station on Veterans Boulevard, where the officers approached him to learn whether defendant was in the residence. Defendant's father informed the officers that defendant was in the residence. Through further research, they also learned that defendant had multiple outstanding attachments for her arrest.

The officers then returned to the residence and conducted a “knock and talk,” which involved speaking with the individual they were looking for. Detective Blange testified that a teenage female answered the door, and when asked if defendant was home, she confirmed that defendant was. Detective Blange asked if they could step inside to speak with defendant. The female invited them in and told them where defendant was located. Detective Blange walked towards the bedroom the female pointed out, knocked on the door, announced who they were, and asked if defendant was inside. Defendant confirmed her presence and stated that she was using the bathroom. Defendant was subsequently advised that she was going to be placed under arrest for outstanding attachments and needed to step out of the residence. Detective Blange explained that upon entering and making contact with defendant, the officers could smell marijuana inside the residence. Everyone was removed from the residence, including defendant, defendant's brother, the female who opened the door, and another female who was found on the bed in defendant's bedroom.⁵ Defendant was then brought to the front of Detective Blange's vehicle, placed under arrest, and advised of her rights. Defendant agreed to speak with Detective Blange, and he informed her about the complaint. Defendant admitted there was a small amount of marijuana in the residence, but she refused to sign a consent-to-search form. The detective then obtained a search warrant for the house.

A search of the residence was conducted, including a search of defendant's bedroom that she shared with her daughters. Defendant's black purse was located in the bedroom. Inside the purse were two digital scales, defendant's ID, and a tin containing a crystal-like substance, which later tested positive for methamphetamine. Detective Blange further described finding a tray inside a blue storage bin in the bedroom that contained a glass pipe, rolling papers, scissors, a lighter, and marijuana. He stated that the tray also held a “roach,” or burnt marijuana. He confirmed that field testing identified the vegetative matter as marijuana. Based on his experience, he explained that the glass pipe was commonly used for smoking methamphetamine and individuals often use scissors to cut cigars, remove the tobacco, and replace it with marijuana before rolling and smoking it. The evidence was collected and sent to the crime lab for further testing. At that time, the detective informed defendant of everything found in the bedroom. Defendant stated that she had forgotten about the methamphetamine. She was subsequently arrested on the methamphetamine charge.

On cross-examination, Detective Blange stated that a body-camera recording did not exist for the incident. He acknowledged that the marijuana found in the blue storage bin did not have any identifying information on it. He confirmed that three people shared the bedroom and the other females in the residence were not questioned about the contents. Detective Blange elaborated that photographs taken at the residence showed the silver canister on the silver tray. He stated that he believed the silver canister was originally in defendant's purse and when officers searched the blue storage bin, he set it down to take a photograph. The defense asked whether the detective had moved evidence from the purse to the bin before photographing it to suggest that was where it was found. Detective Blange responded that he did not claim that was its original location and he took the photograph to document the evidence. He acknowledged that evidence is sometimes moved during searches but denied that anything else was moved in this instance. He reaffirmed that he believed the silver canister was found in defendant's purse when the search was conducted.⁶

Brian Schulz, the forensic chemistry supervisor for the Jefferson Parish Sheriff's Office Crime Lab, testified as an expert in the field of analysis and identification of controlled dangerous substances. Mr. Schulz analyzed the evidence seized in the instant case and prepared a report. According to Mr. Schulz, the plastic bag containing green vegetative material was found to contain marijuana. The bag containing a silver canister with a crystal-like substance was found to contain methamphetamine, weighing 1.40 grams.

On appeal, defendant assigns the following errors:

1. The trial court erred in imposing an excessive sentence.

2. The trial court erred by failing to comply with the sentencing mandates of La. C.Cr.P. art. 894.1.

3. The trial court erred by denying the motion to reconsider sentence.

Because they are related, the assignments are analyzed together.

ANALYSIS

On appeal, defendant argues that her sentence is excessive and the trial court failed to adequately consider the sentencing factors outlined in La. C.Cr.P. art. 894.1. She contends that her sentence was imposed without explanation. She asserts that the court's initial restriction of benefits, which was not legally permissible, suggests uncertainty regarding sentencing options. Defendant further argues that the court failed to consider her employment, education, and family background, as well as mitigating factors such as her drug addiction, lack of violent offenses, and personal hardships, including caring for her children with severe medical issues. She maintains that the court treated her addiction as a character flaw, rather than a medical condition, and improperly dismissed her plea for leniency. Defendant concludes that the sentence should be vacated and the case should be remanded for resentencing.

On July 12, 2024, after defendant waived sentencing delays, the judge sentenced defendant to imprisonment at hard labor for eighteen months, without the benefit of probation, parole, or suspension of sentence. After a discussion between the defense and the court regarding the statute's provisions, the court acknowledged that the defense was correct in that the statute did not provide for a restriction of benefits. The court then clarified that the sentence was at hard labor, granted credit for all time served, and ordered it to run concurrently with any other sentences defendant might be serving.

On July 15, 2024, defendant filed a Motion for Reconsideration of Sentence, arguing that the sentence imposed was excessive, should be reconsidered, and that a lower sentence should be imposed. On August 6, 2024, a hearing was held on the motion. Defense counsel explained that defendant had asked her to read a statement to the court, requesting that the court consider certain factors when deciding whether to reduce her sentence. Counsel relayed defendant's words: “These are reasons, not excuses for my past behaviors.” Counsel stated that defendant had eight children—three sets of twins and two individual children. One set of twins was born with autism, one of which had a blockage in a main vein in her head. Both of defendant's daughters began experiencing seizures at ages seven to eight. In 2008, defendant had five children and was five months pregnant with her third set of twins. The father of her twins with autism was injured in a construction accident one morning and then walked out on her. During this time, defendant had no source of income. Counsel relayed that while defendant acknowledged using drugs, she stated that she was not stealing to support a drug habit, but rather to provide food for her five children.

Defense counsel stated that during this time, defendant had been living in a hotel for approximately a year after losing her home during Hurricane Katrina. For the next five years, defendant went without support. During this period, someone from her past re-entered her life. After a one-year relationship, defendant became pregnant at forty-two years old and underwent her third C-section. Defendant's mother and sister passed away, and then the COVID-19 pandemic began. On June 6, defendant's daughter suffered a seizure and became brain dead; defendant's world fell apart. One year later, on July 17, defendant's relationship ended, and she no longer received assistance. Counsel relayed that defendant began using crystal meth sporadically—approximately every six months. A year ago, her three youngest children were placed in foster care. Six months ago, defendant, along with her eighty-two-year-old father, thirty-one-year-old daughter, and twenty-one-year-old daughter with autism, had been living in a hotel while their home was being fully renovated. Counsel explained that defendant pleaded with the court for the opportunity to prove—to the court, her family, and herself—that she could change. Defendant asked to be allowed to return home to her family. Defense counsel asserted that defendant had no crimes of violence on her record and believed her prior offenses were theft-related.

The State responded that defendant remained statutorily ineligible for probation, but acknowledged that she was “cleansed from any bill status.” The State then outlined defendant's conviction history, which included possession of a Schedule II substance and felony theft in 2006, felony theft in 2014, and another felony theft in 2016. Regarding arrests, the State indicated that defendant had traffic attachments, a misdemeanor marijuana charge, and a misdemeanor theft charge in 2016. The State further explained that since completing her 2016 sentence, defendant had only two arrests, both for municipal or traffic attachments.

The judge asked if defendant had anything else to say, and explained that, after listening to her counsel's statements, the statement “didn't help.” The judge noted that defendant had eight children, but chose to focus on herself, men, and drug use. In response, defendant stated that she sent her daughter to St. Benilde for four years and her two autistic children to St. Michael's for five years. She said that they were cheerleaders and participated in the Zurich Classic, explaining that she had devoted everything to her children.

The judge responded that defendant had not devoted everything to her children, and that was the issue. The judge explained that in the letter read by her defense counsel, defendant spoke about using drugs for years. The judge also mentioned that, in addition, neighbors had complained about the behavior occurring at her house. The judge stated that this was how the entire situation began, emphasizing that defendant lived in a great neighborhood. Defendant acknowledged this by responding, “Yes, ma'am.” The judge further stated: “And the neighbors don't deserve that, your kids don't deserve to live in a house where their mother is using and leaving drugs laying around.” The judge expressed that the best thing for defendant's family at this time was for her to get clean and recognize the seriousness of her actions and behavior. The judge then denied the Motion for Reconsideration of Sentence, expressing a sincere hope that upon her release, defendant would stop engaging in such behavior and refocus on what truly matters—her family and children.

Failure to make or file a motion to reconsider sentence, or to state the specific grounds upon which the motion is based, limits a defendant to a review of the sentence for unconstitutional excessiveness only. State v. Gassenberger, 23-148 (La. App. 5 Cir. 12/20/23), 378 So.3d 820, 840. This Court has held that when the specific grounds for objection to the sentences, including alleged non-compliance with La. C.Cr.P. art. 894.1, are not specifically raised in the trial court, then these issues are not included in the bare review for unconstitutional excessiveness, and the defendant is precluded from raising these issues on appeal. Id. Defendant did not argue in her written Motion for Reconsideration of Sentence or before the court that the trial court failed to consider factors set forth in La. C.Cr.P. art. 894.1. As such, we find that defendant is not entitled to review of whether the trial court complied with Article 894.1. See State v. Clark, 19-518 (La. App. 5 Cir. 6/24/20), 296 So.3d 1281, 1291, writ denied, 21-62 (La. 3/9/21), 312 So.3d 585 (citing State v. Hills, 03-716 (La. App. 5 Cir. 12/9/03), 866 So.2d 278, 286, writ denied sub nom. State ex rel. Hills v. State, 04-1322 (La. 4/22/05), 899 So.2d 569; State v. Escobar-Rivera, 11-496 (La. App. 5 Cir. 1/24/12), 90 So.3d 1, 8, writ denied, 12-409 (La. 5/25/12), 90 So.3d 411).

The Eighth Amendment to the U.S. Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. State v. Haynes, 23-494 (La. App. 5 Cir. 7/31/24), 392 So.3d 1160, 1164. A sentence is considered excessive, even when it is within the applicable statutory range, if it makes no measurable contribution to acceptable goals of punishment and is nothing more than the purposeful imposition of pain and suffering and is grossly out of proportion to the severity of the crime. Id. A sentence is grossly disproportionate if it shocks the sense of justice when the crime and punishment are considered in light of the harm done to society. Id.

According to La. C.Cr.P. art. 881.4(D), the appellate court shall not set aside a sentence for excessiveness if the record supports the sentence imposed. State v. Adams, 23-427 (La. App. 5 Cir. 4/24/24), 386 So.3d 676, 683. In reviewing a sentence for excessiveness, the reviewing court shall consider the crime and the punishment in light of the harm to society and gauge whether the penalty is so disproportionate as to shock the court's sense of justice, while recognizing the trial court's wide discretion. Id. In reviewing a trial court's sentencing discretion, three factors are considered: 1) the nature of the crime; 2) the nature and background of the offender; and 3) the sentence imposed for similar crimes by the same court and other courts. State v. Fuentes, 23-502 (La. App. 5 Cir. 7/31/24), 392 So.3d 1167, 1173. However, there is no requirement that specific matters be given any particular weight at sentencing. Id.

“A trial court should consider the defendant's personal history such as age, family ties, marital status, health, employment record, as well as his prior criminal record, seriousness of offense and the likelihood of rehabilitation in determining an appropriate sentence.” Adams, 386 So.3d at 686. 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 when imposing a sentence. State v. Barnes, 23-208 (La. App. 5 Cir. 12/27/23), 379 So.3d 196, 204, writ denied, 24-136 (La. 9/24/24), 392 So.3d 1141.

Defendant was convicted of possession of methamphetamine weighing less than two grams in violation of La. R.S. 40:967(C)(1). At the time of the offense, the sentencing range for this offense was imprisonment with or without hard labor for not more than two years. Additionally, a fine of not more than $5,000 may have been imposed. See La. R.S. 40:967(C)(1). Defendant was sentenced to eighteen months imprisonment at hard labor, and no fine was imposed. Thus, the sentence imposed is less than the maximum term of imprisonment and does not include the optional fine allowed by the statute.

Regarding the nature of the crime and the background of the offender, the record reflects that defendant was arrested following an investigation initiated by an anonymous Crime Stoppers complaint identifying her and her residence. Law enforcement conducted surveillance and later approached the home for a “knock and talk,” during which a female teenager allowed them inside. While inside, officers detected the odor of marijuana. After placing defendant under arrest for outstanding attachments, the officers obtained a search warrant, which led to the discovery of methamphetamine and marijuana in defendant's bedroom and purse. Additionally, officers found digital scales, a glass pipe, rolling papers, and other drug paraphernalia. The record further reflects that multiple individuals, including three children, resided in the home, and defendant's daughters stayed in the same bedroom as her.

At sentencing, defense counsel provided details about defendant's background. Defendant is the mother of eight children, including twin daughters with autism and medical complications. Counsel explained that defendant endured financial struggles after Hurricane Katrina and experienced personal tragedies. Defendant admitted to past drug use, explaining that she began using methamphetamine sporadically after experiencing further hardships. The record reflects that defendant had prior felony convictions, including possession of a Schedule II substance in 2006 and multiple felony thefts in 2006, 2014, and 2016. Since completing her last sentence in 2016, her only arrests were for minor municipal or traffic offenses.

Despite this background, in denying defendant's Motion for Reconsideration of Sentence, the court expressed concern that her drug use had created an unsafe environment for her children. The judge emphasized that neighbors had complained about activity at her home and defendant had prioritized substance use over her responsibilities as a parent. The judge concluded that incarceration was necessary for defendant to recognize the seriousness of her actions and focus on rehabilitation. Additionally, defendant failed to appear for a hearing on October 26, 2023, leading the State to request an attachment. She was ultimately arrested on May 28, 2024, and ordered to be held without bond.

We also consider sentences imposed for similar crimes by this Court and other courts. While a comparison of sentences imposed for similar crimes may provide insight, sentences must be individualized to the particular offender and to the particular offense committed. State v. Ducksworth, 17-35 (La. App. 5 Cir. 12/13/17), 234 So.3d 225, 237. Additionally, it is within the purview of the trial court to particularize the sentence because the trial judge “remains in the best position to assess the aggravating and mitigating circumstances presented by each case.” State v. Amaya-Rodriguez, 19-91 (La. App. 5 Cir. 11/13/19), 284 So.3d 654, 664.

In Gassenberger, 378 So.3d at 841-42, this Court upheld a two-year sentence at hard labor for possession of methamphetamine weighing less than two grams. In that case, methamphetamine, narcotics paraphernalia, scales, and small bags were found in various areas of the residence. The defendant, who was approximately forty-three years old at the time of the offense, was on probation and had a prior conviction for vehicular homicide. He initially agreed to cooperate with law enforcement to avoid arrest, but was later taken into custody for failing to comply. The record also indicated that the defendant was facing a potential probation or parole revocation. This Court mentioned that other courts have upheld similar sentences under comparable circumstances.⁷

In light of the foregoing, we conclude that the trial court did not abuse its discretion in sentencing defendant to eighteen months imprisonment at hard labor for the subject offense, particularly given defendant's criminal history and the circumstances of the offense. We further conclude that the trial court did not err in denying the Motion for Reconsideration of Sentence. Additionally, defendant is not entitled to review of the court's alleged failure to comply with La. C.Cr.P. art. 894.1.

ERRORS PATENT REVIEW

The record was reviewed for errors patent according to La. C.Cr.P. art. 920, State v. Oliveaux, 312 So.2d 337 (La. 1975), and State v. Weiland, 556 So.2d 175 (La. App. 5 Cir. 1990). Our review reveals discrepancies in the sentencing minute entry and the Uniform Commitment Order (“UCO”).

La. C.Cr.P. art. 879 provides that “[i]f a defendant who has been convicted of an offense is sentenced to imprisonment, the court shall impose a determinate sentence.” This Court has recognized this distinction in sentencing, finding the “open-ended” statement that a sentence be served with “any other sentence” requires correction and is distinguishable from a sentence ordered to be served concurrently with “any sentence [the defendant] may be serving.” State v. Lavigne, 22-282 (La. App. 5 Cir. 5/24/23), 365 So.3d 919, 962, writ not considered, 23-1119 (La. 1/10/23), 370 So.3d 1086.

Here, the sentencing transcript reflects that the trial court ordered the sentence to run “concurrent with any other sentences that [defendant] might be serving.” The sentencing minute entry, however, states: “The Court ordered that the above sentence is to run concurrently with any and all other sentences.” In the UCO, the box is checked next to: “This sentence shall be concurrent with any or every sentence the offender is now serving.” However, the UCO also indicates that the sentence is concurrent with “any/all other sentences.” The transcript prevails where there is a discrepancy between the minutes or commitment and the transcript. State v. Lynch, 441 So.2d 732, 734 (La. 1983).

Additionally, at the hearing on the Motion for Reconsideration of Sentence on August 6, 2024—several weeks after the sentencing on July 12, 2024—the trial court recommended that defendant be allowed to participate in self-help classes. However, the UCO does not reflect this recommendation.

Accordingly, to ensure accuracy in the record, we remand this matter to the trial court: 1) for correction of the minute entry, as well as the UCO due to its inconsistent nature, to correctly reflect the trial court's ruling regarding the concurrent nature of the sentences; and 2) for correction of the UCO to reflect the courts recommendation that defendant be allowed to participate in any self-help program. We also direct the Clerk of Court for the 24th Judicial District Court to transmit the corrected UCO to the officer in charge of the institution to which defendant has been sentenced as well as the Department of Corrections’ legal department.

DECREE

For the foregoing reasons, defendant's conviction and sentence are affirmed. The matter is remanded for the limited purpose of correcting the sentencing minute entry and UCO as noted herein.

CONVICTION AND SENTENCE AFFIRMED; REMANDED WITH INSTRUCTIONS

FOOTNOTES

1.   Defendant was also tried in a simultaneous bench trial on the misdemeanor charge of possession of marijuana. The trial judge found defendant guilty of that offense.

2.   On that same date, the trial judge sentenced defendant on the misdemeanor conviction to a $100.00 fine.

3.   Because the Motion for Reconsideration of Sentence was properly filed, the trial court retained jurisdiction to deny it under La. C.Cr.P. art. 916(3), even after granting the Motion for Appeal. See State v. Mejia, 23-161 (La. App. 5 Cir. 11/29/23), 377 So.3d 860, 868, n.1, writ denied, 23-1722 (La. 5/29/24), 385 So.3d 705.

4.   Further details about the complaint were not elicited at trial.

5.   It was determined that five individuals lived at the residence, including defendant, her brother, and her children.

6.   The silver canister described in Detective Blange's testimony appears to be the same item as the tin containing the crystal-like substance that later tested positive for methamphetamine.

7.   This Court cited Gassenberger in State v. Siekmann, 24-178 (La. App. 5 Cir. 2/5/25), 2025 WL 397005, where, pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and State v. Jyles, 96-2669 (La. 12/12/97), 704 So.2d 241, it considered whether the defendant's two-year sentence at hard labor for possession of methamphetamine weighing less than two grams was excessive. This Court found that the sentence imposed did not present any non-frivolous issues for appeal.

GRAVOIS, J.