                                                                        PD-0759-15
                 PD-0759-15                            COURT OF CRIMINAL APPEALS
                                                                       AUSTIN, TEXAS
                                                     Transmitted 6/22/2015 10:36:56 PM
                                                       Accepted 6/24/2015 10:48:34 AM
                                                                        ABEL ACOSTA
                 NO. __________________                                         CLERK




                        TO THE

COURT OF CRIMINAL APPEALS
                      OF TEXAS
                     ***************

                 ROGER STONE
                                       Petitioner,
                           v.

             THE STATE OF TEXAS
                                       Respondent.
                     ***************
 PETITION FOR DISCRETIONARY REVIEW IN CAUSE NUMBER
 07-13-341-CR FROM THE SEVENTH COURT OF APPEALS, AND
 IN CAUSE NUMBER 10,928 FROM THE 316th DISTRICT COURT
                 OF HUTCHINSON COUNTY
                     ***************

PETITION FOR DISCRETIONARY REVIEW
                     ***************

                                John Bennett
                                Post Office Box 19144
                                Amarillo, TX 79114
 June 24, 2015                  Telephone: (806) 282-4455
                                Fax: (806) 398-1988
                                Email: AppealsAttorney@gmail.com
                                State Bar No. 00785691
                                Attorney for the Petitioner

       THE PETITIONER REQUESTS ORAL ARGUMENT
             IDENTITY OF PARTIES AND COUNSEL

1.   Trial Court Judge

     Hon. David Gleason

2.   Petitioner

     Roger Stone

     Trial Counsel:       Amanda Harris (State Bar No. 24046027)
                          P.O. Box 3375
                          Borger, Texas 79008
                          Telephone: (806) 274-2889

     Appellate Counsel:   John Bennett (State Bar No. 00785691)
                          P.O. Box 19144
                          Amarillo, Texas 79114
                          Telephone: (806) 282-4455

3.   The State

     The State of Texas

     Trial Counsel:       Curtis Brancheau (State Bar No. 24064943)
                          84th District Attorney’s Office
                          500 Main
                          Stinnett, Texas 79081
                          Telephone: (806) 878-4036

     Appellate Counsel:   Mark W. Snider (State Bar No. 00797468)
                          84th District Attorney’s Office
                          500 Main
                          Stinnett, Texas 79081
                          Telephone: (806) 878-4036




                                    2
                                      TABLE OF CONTENTS

Index of Authorities ..............................................................................................4

Statement Regarding Oral Argument ...................................................................6

Statement of the Case............................................................................................6

Statement of Procedural History ...........................................................................6

Ground for Review ...............................................................................................6


               Even where a defendant’s criminal history is considered, a
         sentence of seventy-five years’ imprisonment and a fine of $10,000
         “grossly disproportionate” to the offense of mere possession of a
         controlled substance?


Argument ..............................................................................................................7

Prayer for Relief ....................................................................................................8

Certificate of Compliance .....................................................................................8

Certificate of Service ............................................................................................9

Opinion Below ............................................................................ following page 9
                               INDEX OF AUTHORITIES

Case

Graham v. Florida, 460 U.S. 48, 130 S.Ct. 2011,

       176 L.Ed.2d 825 (2010)..............................................................................6

Ramirez v. Castro, 365 F.3d 755, 765, 770 (9th Cir. 2004) ..................................6




                                                    4
                           NO. __________________


                                    TO THE

COURT OF CRIMINAL APPEALS
                                    OF TEXAS
                                ***************

                         ROGER STONE
                                                  Petitioner,
                                       v.

                 THE STATE OF TEXAS
                                                  Respondent.
                                ***************
    PETITION FOR DISCRETIONARY REVIEW IN CAUSE NUMBER
    07-13-341-CR FROM THE SEVENTH COURT OF APPEALS, AND
    IN CAUSE NUMBER 10,928 FROM THE 316th DISTRICT COURT
                    OF HUTCHINSON COUNTY
                                ***************

PETITION FOR DISCRETIONARY REVIEW
                                ***************




To the Honorable Judges of the Court of Criminal Appeals:

      COMES NOW Roger Stone, petitioner in the above cause, and submits

this petition in support of his request for a new sentencing range regarding the

conviction entered in this cause.


                                       5
          STATEMENT REGARDING ORAL ARGUMENT

      Since the facts are unusual, the petitioner requests oral argument.



                        STATEMENT OF THE CASE

       After pleas of not guilty to possessing slightly more than ten grams of a

substance containing methamphetamine and to tampering with physical

evidence, a jury convicted the petitioner. After he pled true to one enhancement,

the jury returned sentencing verdicts of 75 years’ imprisonment and a fine of

$10,000 for the possession and two years and $1,000 for tampering.



               STATEMENT OF PROCEDURAL HISTORY

      The court of appeals affirmed the conviction on May 15, 2015. A copy of

the opinion is attached. No motion for rehearing was filed. A motion to extend

time to file this PDR is filed contemporaneously with the PDR.



                         GROUND FOR REVIEW

      Even where a defendant’s criminal history is considered, a sentence of

seventy-five   years’   imprisonment    and    a   fine   of   $10,000      “grossly

disproportionate” to the offense of mere possession of a controlled substance?




                                        6
                                ARGUMENT

      The Eighth Amendment “forbids only extreme sentences that are ‘grossly

disproportionate’ to the crime.” Graham v. Florida, 460 U.S. 48, 59-60, 130

S.Ct. 2011, 176 L.Ed.2d 825 (2010). And in Ramirez v. Castro, 365 F.3d 755,

765, 770 (9th Cir. 2004), 25 years to life was grossly disproportionate for petty

shoplifting, where the petitioner’s criminal history consisted of two nonviolent

burglaries for which he received a year in jail. Id. at 765, 770.

      And here the circumstances were little more egregious. As the court of

appeals noted, the petitioner was arrested for resisting arrest and forgery in the

mid-1990s and received three years of community supervision, later revoked; he

was sentenced to two years’ incarceration. He was also convicted of possession

of a controlled substance and evading arrest with a vehicle. (Opinion, attached,

p. 4). And he had previously been convicted and imprisoned for possession of

marijuana in a drug-free zone. (RR, v. 4, p. 217; v. 6, State’s Exhibit 23).

These offenses are all non-violent and non-sexual ones.

      The court of appeals, though, found that “evidence of disproportionality is

lacking.” (Opinion, p. 4). But a sentence of 75 years for mere possession of a

substance containing methamphetamine for a defendant without an extensive

criminal history and without any history of violence or sexual crimes is grossly

disproportionate to this offense.


                                         7
                           PRAYER FOR RELIEF

      The petitioner therefore prays the Court grant discretionary review and

order a new sentencing hearing in this cause, or grant all appropriate relief.

                                             Respectfully submitted,

                                             /s/ JOHN BENNETT
                                             John Bennett
                                             Post Office Box 19144
                                             Amarillo, TX 79114
                                             Telephone: (806) 282-4455
                                             Fax: (806) 398-1988
                                             Email: AppealsAttorney@gmail.com
                                             State Bar No. 00785691
                                             Attorney for the Petitioner




                    CERTIFICATE OF COMPLIANCE

      I certify that this entire PDR contains 904 words.

                                             /s/ JOHN BENNETT
                                             John Bennett


                                         8
                      CERTIFICATE OF SERVICE

      I certify that a true and correct copy of the above and foregoing PDR has

been served by prepaid U.S. Mail, first class delivery prepaid, on Mark Snider,

Esq., Hutchinson County Criminal District Attorney, to him at Hutchinson

County Courthouse, 500 Main Street, Stinnett, Texas 79083, and, on Lisa

McMinn, Esq., State Prosecuting Attorney, P.O. Box 13046, Austin, Texas

78711, both on June 19, 2015.

                                          /s/ JOHN BENNETT
                                          John Bennett




                                      9
                                     In The
                                Court of Appeals
                       Seventh District of Texas at Amarillo
                                ________________________

                                    No. 07-13-00341-CR
                                ________________________

                           ROGER DUANE STONE, APPELLANT

                                                V.

                             THE STATE OF TEXAS, APPELLEE



                            On Appeal from the 316th District Court
                                    Hutchinson County, Texas
                   Trial Court No. 10,928; Honorable David Gleason, Presiding


                                          May 15, 2015

                               MEMORANDUM OPINION
                     Before CAMPBELL and HANCOCK and PIRTLE, JJ.


           Appellant, Roger Duane Stone, appeals from a judgment following a jury trial

sentencing him to seventy-five years confinement and assessing a $10,000 fine for

possession of four grams or more, but less than 200 grams, of methamphetamine1 and



       1
         See TEX. HEALTH & SAFETY CODE ANN. § 481.115 (West 2010) (an offense under this section is
a second degree felony). Appellant’s second degree felony conviction was enhanced to a first degree
felony conviction due to a prior felony conviction. See TEX. PENAL CODE ANN. § 12.42(b) (West Supp.
2014). See also id. at §§ 12.32, 12.33 (West 2011).
confinement for two years and a $10,000 fine for tampering with physical evidence,2

with the two sentences to be served concurrently. In a single issue, Appellant asserts

his sentence for possession of a controlled substance constitutes cruel and unusual

punishment and, as such, violates the Eighth Amendment of the United States

Constitution. We affirm.


                                CRUEL AND UNUSUAL PUNISHMENT


       Appellant asserts seventy-five years confinement is cruel and unusual

punishment because he is an addict living on disability, has had no opportunity for

formal drug treatment, and is a decent, generous human being. He contends continued

confinement will do nothing to help him beat his habit, will be degrading to his dignity,

and amounts to a life sentence due to his age. Appellant concedes his punishment is

within the range established by the Legislature and does not challenge the

constitutionality of the statutes under which he was sentenced.


       Texas courts have traditionally held that, as long as punishment is assessed

within the range set by the Legislature in a valid statute, the punishment is not

excessive. Winchester v. State, 246 S.W.3d 386, 388 (Tex. App.—Amarillo 2008, pet.

ref’d). That said, however, Texas courts recognize that a prohibition against grossly

disproportionate sentences survives under the federal constitution apart from any

consideration whether the punishment assessed is within the statute’s range.                       Id.

(collected cases cited therein). See Ham v. State, 355 S.W.3d 819, 826 (Tex. App.—

Amarillo 2011, pet. ref’d).

       2
          See TEX. PENAL CODE ANN. § 37.09 (West Supp. 2014) (an offense under this section is a third
degree felony). Appellant’s third degree felony conviction was enhanced to a second degree felony
conviction due to a prior felony conviction. See id. at § 12.42(a), §§ 12.33, 12.34 (West 2011).
                                                  2
       Finding a federal constitutional principle of proportionality for criminal sentences

under the Eighth Amendment, the United States Supreme Court indicated that, in

determining the proportionality of a sentence, courts should be guided by the following

objective criteria: (1) the gravity of the offense and the harshness of the penalty, (2) the

sentences imposed on other criminals in the same jurisdiction, and (3) the sentences

imposed for the commission of the same crime in other jurisdictions. Solem v. Helm,

463 U.S. 277, 290, 103 S. Ct. 3001, 77 L. Ed.2d 637 (1983). See Harmelin v. Michigan,

501 U.S. 957, 1004-05, 111 S. Ct. 2680, 115 L. Ed.2d 836 (1991) (Kennedy J.,

concurring in part and concurring in judgment) (Eighth Amendment does not require

strict proportionality between crime and punishment but forbids only against sentences

that are grossly disproportionate to the crime). Only if the court can infer a sentence is

grossly disproportionate to an offense should the court consider the remaining factors in

the Solem test. See Winchester, 246 S.W.3d at 389 (citing McGruder v. Puckett, 954

F.2d 313, 315 (5th Cir. 1992), cert. denied, 506 U.S. 849, 113 S. Ct. 146, 121 L. Ed.2d

98 (1992)). Moreover, state legislatures should be accorded substantial deference and

“a reviewing court rarely will be required to engage in extended analysis to determine

that a sentence is not constitutionally disproportionate.” Winchester, 246 S.W.3d at 389

(quoting Solem, 463 U.S. at 290 n.16).


       Appellant was sentenced under the provisions of section 12.42 of the Texas

Penal Code, a statute providing for penalties for repeat and habitual felony offenders.

See TEX. PENAL CODE ANN. § 12.42 (West Supp. 2014). Under this statute, sentence is

imposed to reflect the seriousness of his most recent offense, not as it stands alone, but

in light of prior offenses. Winchester, 246 S.W.3d at 390. Further, a repeat offender’s

sentence is based not merely on that person’s most recent offense but also on the
                                             3
propensities he has demonstrated over a period of time during which he has been

convicted of and sentenced for other crimes. Id. (citing Hicks v. State, 15 S.W.3d 626,

632 (Tex. App.—Houston [14th Dist.] 2000, pet. ref’d)).         Therefore, in considering

whether Appellant’s sentences are “grossly disproportionate,” we consider not only the

present offenses but also his criminal history. Id.


       Appellant’s criminal history goes back as far as 1996 when he was arrested for

resisting arrest. In 1997, he was arrested for forgery of a financial document. Although

he received probation for three years, his probation was revoked in thirteen months and

he was sentenced to two years confinement.            Thereafter, he was in and out of

confinement on three successive convictions for possession of controlled substance(s)

and for evading arrest or detention with a motor vehicle until his present conviction.

Given Appellant’s past criminal history and the similarity of the offenses for which he

now stands convicted, we cannot infer his present sentence is grossly disproportionate.

This is particularly so here where the sentence is less than the statutory maximum and

evidence of disproportionality is lacking. Appellant’s single issue is overruled.


                                       CONCLUSION


       The trial court’s judgment is affirmed.


                                                 Patrick A. Pirtle
                                                    Justice


Do not publish.




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