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State v. Zackery

Court of Appeals of Louisiana, Second Circuit

November 20, 2019

STATE OF LOUISIANA Appellee
v.
LANDER ZACKERY Appellant

          Appealed from the Fifth Judicial District Court for the Parish of Richland, Louisiana Trial Court No. F-2017-299 Honorable Stephen Gayle Dean, Judge

          LOUISIANA APPELLATE PROJECT By: Annette F. Roach Counsel for Appellant

          JOHN M. LANCASTER District Attorney Counsel for Appellee

          KENNETH D. WHEELER AMANDA M. WILKINS Assistant District Attorneys

          Before MOORE, PITMAN, and COX, JJ.

          COX, J.

         This criminal appeal arises from the Fifth Judicial District Court, Richland Parish, Louisiana. Lander Zackery was charged by bill of information with possession with intent to distribute a Schedule I controlled dangerous substance: marijuana, in violation of La. R.S. 40:966(A)(1); and, illegal carrying of weapons while in the possession of a controlled dangerous substance: Highpoint 40 caliber pistol, in violation of La. R.S. 14:95(E). Zackery reached a plea agreement with the State in which he pled guilty to possession with intent to distribute a Schedule I controlled dangerous substance: marijuana. The State dismissed the illegal carrying of a weapon charge. The agreement also included a 10-year sentencing cap, no multi-bill, and required Zachery to forfeit the weapon. Zackery was sentenced to 10 years at hard labor. Zackery filed a pro se motion to reconsider the sentence, which was denied. He now appeals, urging ineffective counsel during and after sentencing, leading to an excessive sentence. For the following reasons, we affirm the conviction and sentence.

         FACTS

         The facts of this case are uncontroverted. According to the evidence admitted at Zackery's guilty plea hearing held on July 18, 2018, on October 20, 2017, Zackery was driving a gray, four-door vehicle eastbound on I-20. Zackery crossed the fog line on the right side of the exit ramp while exiting the Interstate and then failed to come to a complete stop at a stop sign. Officers initiated a traffic stop. Officers approached Zackery and asked whether he had any illegal substances, guns, or knives. Zackery responded that he did not. Officers noted that Zackery was fumbling with his words and kept reaching between his legs, toward the floorboard of the vehicle. Officers then asked for consent to search Zackery's vehicle. Zackery consented to the search. When Zackery exited the vehicle, he attempted to take a camouflage bag and jacket from the vehicle. The officers ordered Zackery to leave the items in the vehicle. At that time, Zackery informed the officers that there was a pistol in the bag. Police searched the vehicle and located a Highpoint 40 caliber pistol and a plastic bag of suspected marijuana inside the camouflage bag. The search also revealed several vacuum-sealed bags of suspected marijuana, approximately 9 pounds, inside a duffle bag and a cooler which were both locked in the trunk. The suspected marijuana was sent for testing at the North Louisiana Criminalistics Laboratory and confirmed to be marijuana. The exact weight was 4, 044.8 grams. At his plea hearing, Zackery was informed that he had a right to appeal a conviction after a trial, but by pleading guilty, he was giving up those rights. Zackery acknowledged that he understood. The following colloquy occurred:

Q. Do you understand that since you've entered into a plea bargain with regard to the sentence, you will not be allowed to appeal or seek review of the length or severity of the sentence and I will not be able to amend, modify, or reduce your sentence after you begin serving your sentence. Do you understand that?
A. Yes, sir.

         Zackery was sentenced pursuant to a plea agreement which consisted of a 10-year cap, waiving sentencing as a habitual offender, and forfeiting his pistol. Zackery's sentencing hearing took place on January 9, 2019. The district court made note of the pre-sentence report which contained positive and negative information regarding Zackery. The district court pointed out that Zackery showed remorse, that he wanted to be a better person, he was a veteran and works to help veterans fill out paperwork, he had a newborn child in need of support, and he suffered from pain which contributed to his marijuana use. The district court noted that Zackery requested a sentence that did not include jail time. The court also considered Zackery's social history and letters written from relatives, law enforcement, and friends as mitigating factors. The district court related that Zackery had been convicted of drug trafficking marijuana in November 2017, after the commission of the present offense, and received a probated sentence. Additionally, the court noted Zackery had three separate arrests for crimes against persons, all of which were not prosecuted by a local prosecutor.

         In accordance with La.C.Cr.P. art. 894.1, the trial court found the following aggravating factors applicable: 1) there was an undue risk during the sentence of probation that Zackery would commit another crime; 2) Zackery was in need of correctional treatment that could be provided most effectively through commitment to an institution; and, 3) a lesser sentence would deprecate the seriousness of Zackery's crime. The district court determined that based on the seriousness of his crimes, the aggravating circumstances, and that there were no mitigating circumstances applicable, a 10-year sentence was appropriate. Therefore, Zackery was sentenced to 10 years at hard labor. He was given credit for time served, provided with post-conviction relief time delays, and informed that he could appeal any or all of these proceedings.

         In response to the district court's sentencing, Zackery filed a pro se motion to reconsider sentence. In his motion, Zackery argued his sentence was excessive. He pointed to the fact that he was a military veteran who served 21 years in the United States Army, he has an associate's degree, he supports one minor child and raised 6 adult children who live respectable lives, he has several physical and mental ailments, including post-traumatic stress disorder as well as spine injuries from combat, and that he has no prior criminal convictions. Zackery further argued that he accepted responsibility for his action and that since marijuana is being ...


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