STATE OF LOUISIANA V. HARRISON LEE (2020)

I agree that the trial court did not abuse its discretion when it imposed sentences of nine-years for each of Defendant's convictions for distribution of methamphetamine. Nonetheless, I disagree with the majority's determination that the imposition of consecutive sentences was grossly disproportionate to the severity of the crime and made “no measurable contribution to acceptable penal goals[.]”

“[A]lmost without exception, in cases where small amounts of drugs were sold over a short period of time, consecutive sentences were imposed on defendants who had prior, and in many cases, extensive criminal activity.” State v. Wallace, 11-1258, p. 19 (La.App. 3. Cir. 5/30/12), 92 So.3d 592, 605, writ denied, 12-1861, (La. 3/8/13), 109 So.3d 355, writ denied, 12-1865 (La. 3/8/13), 109 So.3d 355. As the majority opinion points out, on May 15, 2017, and May 17, 2017, Defendant sold methamphetamine to an operative working for the LaSalle Parish Sheriff's Office.

Beyond the extremely short period of time within which Defendant sold the methamphetamines, the trial court offered ample justification for imposing consecutive sentences upon Defendant. It first reviewed Defendant's criminal history, which spans approximately thirty-five years and includes convictions for distributing other controlled substances. The trial court then noted: “That's not a record, necessarily, of a guy who is going on the straight and narrow. By my count, since 1983 you have been arrested or sited [sic] at least fifty-two times. For criminal activity. That's unacceptable[.]” Additionally, the trial court noted that the Presentence Investigative Report is “unremarkable” as it pertains to Defendant's social history. Defendant is the oldest of five siblings and the father of three children. Further, Defendant studied carpentry at trade school; the trial court considered Defendant a potential “productive member of society, if [he] so chooses[s],” since Defendant stated that he had no problem finding a job. Finally, the trial court observed: “You are showing zero remorse and responsibility for the steps that you took.”

When imposing the sentence, the trial court stated:

[B]ecause of the nature of your offense and because your record is clear that you cannot stay out of trouble, in your adult life. I find that the actions have become a pattern of conduct that must be broken. And if you were given solely a suspended sentence or placed on probation, there is an undue risk to society that you would continue to commit further drug related offenses. This determination is bolstered by the fact that you continue to sell and use drugs, despite being caught at least two times previously. Further, giving [sic] the serious nature of the offenses that you are now convicted of, I believe that you are in need of the correctional treatment that can best be provided most effectively by a commitment to an institution. Accordingly, in light of my review of the pre-sentence investigation report, and in consideration of the factors contained in article 894.1 (A)(1) through (3) of the Louisiana Code of Criminal Procedure, in count 1 of docket number 17-1849, on the charge of Distribution of Methamphetamine, it is the sentence of this court that you serve nine (9) years at hard labor in the custody of the Department of Corrections of the State of Louisiana. On Count 2 of the same bill of information, on the charge of Distribution of Methamphetamine, it is the sentence of this court that you serve nine (9) years at hard labor in the custody of Louisiana. The sentence imposed in Count 2 is to run consecutive to the sentence imposed in Count 1[.]

Finally, I acknowledge the amendment to La.R.S. 40:967, effective August 1, 2017, and that sentences for the distribution of methamphetamine became prospectively dependent on the weight of the substance sold. I recognize that these changes were made in response to the Louisiana Justice Reinvestment Task Force's findings and the effort to reduce Louisiana's prison populations. Nevertheless, under the facts of the present case, particularly the thirty-five years during which Defendant was involved in the distribution of various controlled substances and the trial court's observation that the Defendant has shown neither remorse nor an inclination to change his criminal behavior, I find the trial court's consecutive sentencing choice was not constitutionally excessive. I acknowledge that State v. McGowan, 17-623 (La.App. 3 Cir. 12/06/17), 258 So.3d 609, recognized the trial court may consider the ameliorative changes enacted by the 2017 amendment to La.R.S. 40:967 to convictions that predate the effective date of this legislation. However, I find Defendant's long criminal history and Defendant's present convictions for crimes that predate the amendment nullify any ameliorative benefits that the amendment to La.R.S. 40:967 made available.

For these reasons, I find the trial court did not abuse its broad sentencing discretion when it imposed two consecutive nine-year sentences. Thus, I dissent from the majority's decision to vacate the sentences, in part, with instructions to the trial court to impose concurrent sentences.

PERRY, Judge, concurring, in part, and dissenting, in part.