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State v. Nixon

Court of Appeals of Louisiana, Second Circuit

May 19, 2017

STATE OF LOUISIANA Appellee
v.
LAWRENCE NIXON Appellant

         Appealed 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 for Appellant.

          LAWRENCE NIXON Pro Se.

          DANNY W. NEWELL District Attorney TERESA CULPEPPER CARROLL TAMMY GANTT JUMP Assistant District Attorneys Counsel for Appellee.

          Before WILLIAMS, MOORE, and BLEICH (Pro Tempore), JJ.

          BLEICH, J., concurs in the results.

          MOORE, J.

         The 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.

         FACTS

         Nixon 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.

         Nixon 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.

         Nixon filed a motion to reconsider and set aside the verdict and a motion to dismiss. The trial court denied the motions without a hearing.

         On June 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.

         Nixon 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.

         DISCUSSION

         By his 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.

         In 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.

         An 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.[1] 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.

         The 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.

         The 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 So.3d 29.

         In 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.

         A 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, supra.

         We have 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 responded:

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.

         The court acknowledged Nixon's statement and proceeded to sentencing, starting with a review of Nixon's criminal history obtained from the presentence investigation (PSI).

         The 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 ...


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