Michael W. Stringer pled guilty, as originally charged, to one count of distribution of a Schedule III controlled dangerous substance (hydrocodone), contrary to La. R.S. 40:968(A)(1). He was sentenced to 10 years at hard labor. He now appeals, alleging constitutional excessiveness. We affirm.
On May 23, 2014, the defendant sold one hydrocodone pill to a confidential informant in exchange for $20.00. On August 17, 2015, the trial court accepted the guilty plea, ordered a presentence report, and set sentencing for October 30, 2015. On that date, the trial court sentenced the defendant to 10 years at hard labor with a recommendation that he participate in any available substance abuse programs.
At sentencing, the trial court noted the receipt and review of the presentence investigation report, and specifically noted that the defendant:
The trial court thoroughly reviewed this man's criminal history.
After reviewing the presentence report, the trial court stated:
The defendant did not file a motion to reconsider sentence, and thus constitutional excessiveness is the only issue before us.
The defendant argues:
The state responds:
Our law is well settled as to appellate review of excessiveness.
La. R.S. 40:968, Prohibited Acts-Schedule III; penalties, states in pertinent part:
Based on this defendant's track record, this maximum 10-year sentence falls far short of shocking the sense of justice. This sentence would have withstood scrutiny even had a motion for reconsideration been filed. The trial court thoughtfully considered the PSI report and the factors outlined in La. C. Cr. P. art. 894.1. Further, the trial court was clearly familiar with all relevant aspects of the defendant's life.
Because there is no requirement that the trial court give particular weight to specific matters at sentencing, the record reveals that the trial court more than adequately complied with La. C. Cr. P. art. 894.1. See State v. Jones, 398 So.2d 1049
Although the defendant received a maximum sentence, he was not fined and he was fortunate in not being charged as a habitual offender. See State v. Robinson, 49,825 (La.App.2d Cir. 5/20/15), 166 So.3d 403. Had he been adjudicated as such, his minimum sentencing exposure would have been 20 years at hard labor.
This is a just sentence, tailored to the life of a career criminal.
This record reveals that the trial court did not properly inform the defendant as to the mandatory time limit to file for post-conviction relief, as per La. C. Cr. P. art. 930.8. At sentencing, the trial court advised Stringer that he had "two years from today's — from the date this conviction becomes final to file any post-conviction relief that either you or your attorney deems appropriate." The Louisiana Supreme Court has held that La. C. Cr. P. art. 930.8(C), which requires the trial court to inform the defendant of the limitation period for filing an application for post-conviction relief, is supplicatory language. State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189, abrogated on other grounds in State ex rel. Olivieri v. State, 2000-0172 (La. 2/21/01), 779 So.2d 735; State v. Hunter, 36,692 (La.App.2d Cir. 12/20/02), 834 So.2d 6. The failure to properly advise a defendant is not grounds to vacate or remand. State v. Cooper, 31,118 (La.App.2d Cir. 9/23/98), 718 So.2d 1063, writ denied, 99-0187 (La. 5/14/99), 741 So.2d 663. We now notify the defendant that he has two years from the date his conviction and sentence become final under La. C. Cr. P. arts. 914 or 922 to file any application for post-conviction relief. State v. Parker, 49,009 (La.App.2d Cir. 5/15/14), 141 So.3d 839.
The defendant is notified that he has two years to file for post-conviction relief, commencing from the finality of this conviction and sentence. The defendant's conviction and sentence are AFFIRMED.
La. C. Cr. P. art. 881.1 precludes a defendant from presenting sentencing arguments to the court of appeal which were not presented to the trial court. Accordingly, when a defendant fails to file a motion to reconsider sentence, the appellate court's review of a sentencing claim is limited to the bare claim that the sentence is constitutionally excessive. State v. Mims, 619 So.2d 1059 (La.1993); State v. Jones, 41,449 (La.App.2d Cir. 9/20/06), 940 So.2d 61; State v. Duncan, 30,453 (La. App.2d Cir. 2/25/98), 707 So.2d 164.
Constitutional review turns upon whether the sentence is illegal, grossly disproportionate to the severity of the offense or shocking to the sense of justice. State v. Lobato, 603 So.2d 739 (La.1992); State v. Livingston, 39,390 (La.App.2d Cir.4/6/05), 899 So.2d 733; State v. White, 37,815 (La.App.2d Cir. 12/17/03), 862 So.2d 1123.
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 infliction of pain and suffering. State v. Dorthey, supra. A sentence is grossly disproportionate if, when the crime and punishment are viewed in light of the harm to society, it shocks the sense of justice. State v. Weaver, 2001-0467 (La. 1/15/02), 805 So.2d 166; State v. Bradford, 29,519 (La.App.2d Cir.4/2/97), 691 So.2d 864.
As a general rule, maximum sentences are appropriate in cases involving the most serious violation of the offense and the worst type of offender. State v. Jacobs, 41,663 (La. App.2d Cir. 12/13/06), 945 So.2d 897.
The Louisiana jurisprudence follows the requirement of comparing the same offenses, not merely the same charges. State v. Foley, 456 So.2d 979 (La.1984); State v. Dunn, 30,767 (La.App.2d Cir. 6/24/98), 715 So.2d 641. However, in determining whether a defendant's sentence is excessive, a reviewing court should compare the defendant's punishment with the sentences imposed for similar crimes by the same court or other courts. State v. Telsee, 425 So.2d 1251 (La.1983); State v. Ferguson, 44,009 (La.App.2d Cir. 2/25/09), 4 So.2d 315.