from the Second Judicial District Court for the Parish of
Jackson, Louisiana Lower Court Case No. 45, 311 Honorable
Jimmy C. Teat, Judge
LOUISIANA APPELLATE PROJECT By: Douglas Lee Harville Counsel
LAWRENCE NIXON Pro Se.
W. NEWELL District Attorney TERESA CULPEPPER CARROLL TAMMY
GANTT JUMP Assistant District Attorneys Counsel for Appellee.
WILLIAMS, MOORE, and BLEICH (Pro Tempore), JJ.
BLEICH, J., concurs in the results.
defendant, Lawrence Nixon, was convicted of two counts of
distribution of marijuana and one count of distribution of
cocaine arising from two sales to a pair of confidential
informants for a combined sum of less than $100. The trial
court imposed sentences of 20 years at hard labor on each
count and ordered the prison sentences to be served
consecutively. Additionally, Nixon was ordered to pay a $15,
000 fine. He filed this appeal alleging, inter alia,
that the 60-year total sentence is excessive. For the
following reasons, we hold that the trial court's order
that the three, 20-year sentences be served consecutively
results in a sentence that is grossly disproportionate for
the offenses committed, and therefore, unconstitutionally
excessive. Accordingly, we set aside the sentences and remand
to the trial court for resentencing.
was charged by bill of information with two counts of
distribution of marijuana, in violation of La. R.S.
40:966(A)(1), and one count of distribution of cocaine, in
violation of La. R.S. 40:967(A)(1). The charges arose from
two separate transactions. On January 20, 2012, Nixon sold
three plastic bags of marijuana to two female confidential
informants for $30. On February 23, 2012, Nixon sold the same
informants a rock of cocaine and a marijuana joint for $60.
On both occasions, the informants recorded the transactions
with an iPhone provided to them.
was represented by several different attorneys during
pretrial proceedings and the initial trial in this case,
which ended in a mistrial. For the second jury trial, Nixon
chose to represent himself. Following the presentation of
testimony and evidence, the jury unanimously found Nixon
guilty as charged on all three counts.
filed a motion to reconsider and set aside the verdict and a
motion to dismiss. The trial court denied the motions without
2, 2016, the trial court sentenced Nixon to 20 years at hard
labor on each count of distribution of marijuana. For the
distribution of cocaine conviction, the court sentenced Nixon
to 20 years at hard labor and ordered the first two years of
the sentence to be served without the benefit of parole,
probation, or suspension of sentence. The court then ordered
the sentences to be served consecutively, and ordered Nixon
to pay a fine of $15, 000.
filed a motion to reconsider sentence, arguing that a total
60-year sentence is excessive. The trial court denied the
motion without a hearing. This appeal followed.
first assignment of error, appellate counsel alleges that the
trial court erred by imposing an unconstitutionally harsh and
excessive sentence considering the facts of the case. Nixon
is 41 years old. Consequently, his age makes the 60-year
sentence a de facto life sentence--all for the
commission of three small-scale, illicit drug transactions.
Nixon is the father of two children, and the grandfather of
five. He obtained his GED shortly after dropping out of high
school in the twelfth grade, and attended junior college on
an athletic scholarship. He asserts that he has an
established work history, and only two prior felony
convictions for nonviolent offenses. He contends that the
sentence fails to provide him with the opportunity to be
rehabilitated and return to society as a productive member
while being punished in a reasonable manner for his
nonviolent criminal acts.
response, the state argues that the trial court properly
reviewed the sentencing guidelines and articulated the
specific factors it considered to justify ordering
consecutive sentences. In light of Nixon's extensive
criminal encounters with the law, and his previous failures
to take advantage of opportunities for rehabilitation, the
state maintains that Nixon's sentence is not excessive.
appellate court uses a two-pronged test to review a sentence
for excessiveness. First, it reviews the record to determine
if the sentencing court followed La.C.Cr.P. art. 894.1, which
provides sentencing guidelines for courts regarding the
imposition of sentences of imprisonment. The statute provides
a list of aggravating and mitigating factors that the court
may consider to determine if the defendant is eligible for a
suspended sentence or probation. Although the court is not
required to list every aggravating or mitigating factor
present in the case, the record should reflect that the court
considered the criteria established in the article. State
v. Smith, 433 So.2d 688 (La. 1983); State v.
Johnson, 48, 320 (La.App. 2 Cir. 11/20/13), 127 So.3d
988; State v. Watson, 46, 572 (La.App. 2 Cir.
9/21/11), 73 So.3d 471. The goal of La.C.Cr.P. art. 894.1 is
for the court to articulate the factual basis for the
sentence imposed, not to impose rigid or mechanical
compliance with its provisions. Where the record clearly
shows an adequate factual basis for the sentence, remand is
unnecessary even though there has not been full compliance
with La.C.Cr.P. art. 894.1. State v. Jones, 398
So.2d 1049 (La. 1981); Johnson, supra; State v.
Ates, 43, 327 (La.App. 2 Cir. 8/13/08), 989 So.2d 259,
writ denied, 08-2341 (La. 5/15/09), 8 So.3d 581.
second prong of the test entails review for unconstitutional
excessiveness. A sentence violates La. Const. art. I, §
20, if it is grossly out of proportion to the seriousness of
the offense or nothing more than a purposeless and needless
infliction of pain and suffering. State v. Smith,
01-2574 (La. 1/14/03), 839 So.2d 1; State v.
Dorthey, 623 So.2d 1276 (La. 1993); State v.
Allen, 49, 642 (La.App. 2 Cir. 2/26/15), 162 So.3d 519,
writ denied, 15-0608 (La. 1/25/16), 184 So.3d 1289.
A sentence is considered grossly disproportionate if, when
the crime and punishment are viewed in light of the harm done
to society, it shocks the sense of justice. State v.
Weaver, 01-0467 (La. 1/15/02), 805 So.2d 166;
Johnson, supra; State v. Sims, 49, 682
(La.App. 2 Cir. 2/27/15), 162 So.3d 595, writ
denied, 15-0602 (La. 2/5/16), 186 So.3d 1161.
trial court has wide discretion to impose a sentence within
the statutory limits, and the sentence imposed will not be
set aside as excessive absent a manifest abuse of that
discretion. State v. Williams, 03-3514 (La.
12/13/04), 893 So.2d 7; State v. Diaz, 46, 750
(La.App. 2 Cir. 12/14/11), 81 So.3d 228. On review, an
appellate court does not determine whether another sentence
may have been more appropriate, but whether the trial court
abused its discretion. Williams, supra;
State v. Free, 46, 894 (La.App. 2 Cir. 01/25/12), 86
cases involving multiple offenses and sentences, the trial
court has limited discretion to order that the multiple
sentences are to be served concurrently or consecutively.
When two or more convictions arise from the same act or
transaction, or constitute parts of a common scheme or plan,
the terms of imprisonment shall be served concurrently unless
the court expressly directs that some or all be served
consecutively. La.C.Cr.P. art. 883. Concurrent sentences
arising out of a single course of conduct are not mandatory,
and consecutive sentences under those circumstances are not
necessarily excessive. State v. Hebert, 50, 163
(La.App. 2 Cir. 11/18/15), 181 So.3d 795. It is within the
court's discretion to make sentences consecutive rather
than concurrent. State v. Robinson, 49, 677 (La.App.
2 Cir. 4/15/15), 163 So.3d 829, writ denied, 15-0924
(La. 4/15/16), 191 So.3d 1034.
judgment directing that sentences arising from a single
course of conduct be served consecutively requires particular
justification from the evidence or record. When consecutive
sentences are imposed, the court shall state the factors
considered and its reasons for the consecutive terms. Among
the factors to be considered are: (1) the defendant's
criminal history; (2) the gravity or dangerousness of the
offense; (3) the viciousness of the crimes; (4) the harm done
to the victims; (5) whether the defendant constitutes an
unusual risk of danger to the public; and (6) the potential
for the defendant's rehabilitation. However, the failure
to articulate specific reasons for consecutive sentences does
not require remand if the record provides an adequate factual
basis to support consecutive sentences. Robinson,
carefully reviewed the record in this case, including the
transcripts of trial and sentencing. The defendant
represented himself at trial, but we also observe that the
pretrial record is replete with meritless pro se
motions. The defendant repeatedly interrupted the sentencing
proceeding with objections, arguments and meritless oral
motions which the trial court had already ruled upon several
times in the course of pretrial and trial proceedings. For
example, when Nixon's case was called for sentencing,
Nixon orally moved to quash the bill of information and asked
for his immediate release claiming his due process rights
under the 14th Amendment were violated. When the
court informed him that he had already been tried and
convicted, Nixon moved to dismiss the case on grounds of lack
of subject matter jurisdiction. The court informed him that
the crimes were committed in Jackson Parish where he was
tried and convicted, so that jurisdiction was proper. Nixon
then immediately moved to "dismiss with prejudice due to
a conflict of interest" because the state prosecutor did
not appeal a district court ruling in Nixon's favor
quashing the original bill of information because Nixon did
not get a 72-hour hearing. The court explained to Nixon, as
it had apparently done many times previously, that Nixon
simply won the motion regarding the 72-hour hearing, but the
state could still prosecute him for the crimes he had
committed. When Nixon was finally sworn in for the sentencing
hearing, the court asked him if there was anything he wanted
to say before going through with the sentencing. Nixon
Your honor, I contend there's a case of double jeopardy
that exists which I will argue on appeal and reserve my right
under State v. Crosby. I contend there is a case of
entrapment by illegal use of evidence at the second jury
trial and contend that to be in violation of the
defendant's due process right. Also, there's some
irregularities that exist in that second jury trial which I
contend I find an error on your behalf, Your Honor, and I
will argue that matter on appeal on a motion to dismiss with
prejudice which I had filed here in Court. I contend that it
violates defendant's due process clause rights of the
Fourteenth Amendment. Also, Your Honor, I contend there is a
procedure violation due to the fact that at the time of
arrest I was not issued my Miranda rights by the
arresting law enforcement parole officer within time limits
at the time of arrest on January 18, 2013. I contend that
violates the State and Federal Constitutional rights as well,
Your Honor. Also, for lack of subject matter, which I had
mentioned, and time constriction of speedy trial I contend
that State was in violation of taking the defendant, Lawrence
Nixon's trial, within time limits prescribed by State and
Federal Constitutional laws.
court acknowledged Nixon's statement and proceeded to
sentencing, starting with a review of Nixon's criminal
history obtained from the presentence investigation (PSI).
reveals that Nixon's criminal "activity" has
spanned 20 years beginning on July 22, 1992, when at age 17,
he was charged with illegal possession of stolen things. He
was tried, convicted and fined $500. His last criminal
charge, felony possession of stolen goods, was committed
March 4, 2014, when Nixon was age 38, for which he apparently
pled down to misdemeanor possession and received a ...