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State v. Butler

Court of Appeals of Louisiana, Second Circuit

April 11, 2018


          Appealed from the Thirty-Seventh Judicial District Court for the Parish of Caldwell, Louisiana Trial Court No. 93135 Honorable Ashley Paul Thomas, Judge

          LOUISIANA APPELLATE PROJECT By: Peggy J. Sullivan Counsel for Appellant

          BRIAN E. FRAZIER Counsel for Appellee District Attorney

          CHARLES L. COOK Assistant District Attorney

          Before BROWN, MOORE, and STONE, JJ.

          MOORE, J.

         The defendant pled guilty to four counts of illegal possession of stolen things valued at over $1, 500 (Counts 1-4), each a violation of La. R.S. 14:69(B)(1), and three counts of illegal drug possession, including one count of possession of a Schedule II controlled dangerous substance, Hydrocodone (Count 6), a violation of La. R.S. 40:967(C), and two counts of possession of Schedule IV controlled dangerous substances, Alprazolam and Barbital (Counts 7 & 8), each a violation of La. R.S. 40:969(C). In exchange for his guilty plea, the state agreed to dismiss the charge in Count 5, possession of methamphetamine, and it also agreed not to file a habitual offender bill. Despite the defendant's record of several felony arrests and convictions, he is classified as a second felony offender.

         The trial court imposed consecutive three-year sentences at hard labor for each of Counts 1-4, illegal possession of stolen things, and concurrent sentences of two, four and two years at hard labor respectively for Counts 6, 7 and 8, the drug possession offenses. The court ordered the concurrent sentences imposed for Counts 6, 7 and 8 to be served consecutive to the sentences imposed for Counts 1-4. Accordingly, the total sentence initially imposed was 16 years.

         Following this sentencing proceeding, the defendant filed a motion to reconsider sentence. Subsequently, the trial court amended the defendant's sentence solely with regard to Count 3, making that three-year consecutive sentence a three-year sentence running concurrent with the other illegal possession charges. In all other respects, the sentences remained as they were originally imposed. The court specifically noted that Counts 6, 7 and 8 were to be served consecutively to the three consecutive sentences for Counts 1, 2, and 4, of which the three-year sentence for Count 3 would run concurrently. As such, the court noted that the total sentence imposed was now 13 years. The court gave Butler credit for time served, and also amended the original sentence by ordering that Butler undertake substance abuse treatment while incarcerated.

         The defendant now appeals his sentence, alleging it is constitutionally excessive. For the following reasons, we affirm Butler's convictions and sentences.


         The state provided the following factual basis for Butler's guilty pleas:

         On May 25, 2016, law enforcement received a complaint from someone named Mabel Butler that Butler was putting items on her property without her consent.[1] Investigating officers found Butler staying in the mobile home on the property. With Mabel Butler's consent, the property was searched. Officers found four pieces of equipment, all reported stolen: a Big Tex trailer, belonging to River Run Dirt Service, reported stolen on May 25, 2016;[2] a John Deere mini excavator, reported stolen on May 19, 2016;[3] a white, enclosed utility trailer, reported stolen on April 7, 2016;[4] and a Kubota mini excavator, reported stolen and already resold to a third party by Butler.[5]

         Officers also found, during a search of the mobile home and vehicle on the premises, methamphetamine, hydrocodone, alprazolam and barbital. There were two doses of alprazolam in a total of 66½ tablets.

         Butler agreed with the state's recitation of facts and said he was guilty of each of the offenses. The court found a sufficient factual basis for each of the guilty pleas and accepted Butler's guilty pleas to Counts 1, 2, 3, 4, 6, 7 and 8. Count 5 was dismissed. The court ordered a presentence investigation ("PSI").

         At the sentencing hearing on July 11, 2017, the court noted that it reviewed the PSI and a letter provided by Butler's attorney, on Butler's behalf, asking the court to consider running all sentences concurrently since none of the offenses were crimes of violence and the drug offenses were for possession, not distribution. Additionally, the defense argued the victim impact was minimal because items were returned to the victims who reported only minimal financial loss. One victim reported he had to replace some lights on his trailer, and the owner of the Kubota excavator reported a loss of potential revenue because the equipment was unavailable for rent.

         The state argued that concurrent sentences would be improper under La.C.Cr.P. art. 883, because the items were stolen at separate times and from separate locations; thus, Butler did not possess the items in one act or as part of one scheme or plan. The state further objected to concurrent sentences in light of Butler's extensive criminal history. Additionally, it pointed out that Butler had resold the stolen Kubota excavator to a third party who never recovered several thousand dollars he gave to Butler as a down payment.

         The court reviewed Butler's personal, family, and educational history. Butler, age 36 (at the time of sentencing), was educated through the 11th grade, and had held jobs in a music store, a surveying business and the pipeline industry. Butler reported that he was separated from his wife and that he had three children, ages 11, 10, and 5. Butler admitted that he used marijuana and pain killers, but denied having an addiction.

         The court noted that Butler had an extensive list of arrests and convictions. He had not changed his behavior as a result of incarceration, and violated probation. Butler has been a career criminal since attaining the age of majority and had demonstrated a propensity to commit crimes, an unwillingness to learn from his mistakes, a ...

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