                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-15-00116-CR



        KEITH WILLIAM BENNETT, Appellant

                           V.

           THE STATE OF TEXAS, Appellee



        On Appeal from the 124th District Court
                Gregg County, Texas
              Trial Court No. 44069-B




      Before Morriss, C.J., Moseley and Burgess, JJ.
       Memorandum Opinion by Justice Moseley
                                 MEMORANDUM OPINION
       William Keith Bennett appeared before the trial court December 15, 2014 and entered an

open plea of guilty to possession of more than 4 grams but less than 200 grams of a controlled

substance (methamphetamine) with the intent to deliver it, the penalty being enhanced by two prior

theft convictions.   At the plea hearing, the trial court reminded Bennett that the range of

punishment for the offense ranged from twenty-five years’ imprisonment to ninety-nine years’ or

life imprisonment. The trial court then set a bond for Bennett and rescheduled the punishment

hearing for a later date so a presentence investigation report could be obtained. One of the last

things the trial court did was strongly advise Bennett to be certain to attend the sentencing hearing.

Despite this sage advice, Bennett failed to appear at the scheduled March 4, 2015 sentencing

hearing, and his bond was revoked. Returned to custody June 4, 2015, Bennett was scheduled for

a new hearing on punishment July 16, 2015. Bennett offered testimony from himself and his

mother regarding his plea for leniency, following which he was sentenced to thirty years’

imprisonment.

       On appeal, Bennett has claimed to have been assessed with a penalty that was

disproportionate to the crime that was committed and, thus, in violation of the Eighth Amendment

to the United States Constitution’s prohibition against cruel and unusual punishment. In his brief,

Bennett points out that punishments for crimes are to be graduated and proportioned to the offenses

that were committed, citing Graham v. Florida, 560 U.S. 48 (2010), as his authority and criticizes

the practice of the authorities in incarcerating drug addicts in lieu of treating their addictions as a

medical problem.


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        We note that the United States Supreme Court addressed the issue of proportionality of

sentences at length in Solem v. Helm, 463 U.S. 277, 290 (1983), laying down a three-part test of

objective criteria: “(i) the gravity of the offense and the harshness of the penalty; (ii) the sentences

imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for

commission of the same crime in other jurisdictions.” Id. at 292. However, the test in Solem was

modified somewhat by that court’s ruling in the plurality opinion issued in Harmelin v. Michigan,

501 U.S. 957 (1991). In that case, the Solem proportionality test was rejected by two of the justices

and three justices took the position that there was a narrow proportionality principle contained

within the Eighth Amendment, with only four of the justices holding that (in essence) the test in

the Solem case was correct. Id. at 1027 (White, J., dissenting). Following Harmelin, the Fifth

Circuit Court of Appeals subsequently adopted the modified Solem test. McGruder v. Puckett,

954 F.2d 313, 316 (5th Cir. 1992). Under the McGruder analysis, the initial inquiry is a

comparison of the gravity of the offense weighed against the severity of the punishment received.

Id. If a reviewing court does not find that the sentence is grossly disproportionate to the offense,

there is no need to attempt to apply the final two prongs of the Solem test. Id.

        As mentioned previously, the sentence range for the crime with which Bennett was charged

had a minimum sentence of twenty-five years’ imprisonment with a ceiling of ninety-nine years’

imprisonment or imprisonment for life. Bennett’s sentence was only thirty years’ confinement,

well toward the lower end of the range of punishment that was possible. Considering the range of

punishment that the Legislature has prescribed, we do not consider the sentence meted out to

Bennett to be disproportionately harsh.

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        Because we do not deem the severity of the punishment disproportionate to the gravity of

the offense (when the enhancements are taken into account), it is not necessary to weigh the other

criteria set out in Solem.

        We affirm the judgment of the trial court.




                                             Bailey C. Moseley
                                             Justice

Date Submitted:         March 14, 2016
Date Decided:           April 13, 2016

Do Not Publish




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