State of Louisiana v. Bryan Guilbeau

• Court: Louisiana Court of Appeal
• Decided: December 8, 2010
• Docket: KA-0010-0511
• Status: Unknown

Opinion

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

10-511

STATE OF LOUISIANA

VERSUS

BRYAN GUILBEAU

**********

APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF CALCASIEU, NO. 5293-08 HONORABLE G. MICHAEL CANADAY, DISTRICT JUDGE

SHANNON J. GREMILLION JUDGE

Court composed of John D. Saunders, J. David Painter, and Shannon J. Gremillion, Judges.

AFFIRMED.

John Foster DeRosier District Attorney 14th Judicial District Court P. O. Box 3206 Lake Charles, LA 70602-3206 (337) 437-3400 Counsel for Appellee: State of Louisiana

Carla Sue Sigler Assistant District Attorney 14th Judicial District Court P. O. Box 3206 Lake Charles, LA 70602 (337) 437-3400 Counsel for Appellee: State of Louisiana Pride Justin Doran Doran Law Firm P. O. Box 2119 Opelousas, LA 70571 (337) 948-8008 Counsel for Defendant/Appellant: Bryan Guilbeau GREMILLION, Judge:

Defendant, Bryan Guilbeau, pled guilty to possession of more than twenty-

eight, but less than two hundred grams of cocaine, a violation of La.R.S.

40:967(F)(1)(a). He now complains that he was not asked if he wanted to withdraw

his guilty plea when the trial court did not accept the sentencing recommendation to

which the State and defense counsel agreed. Defendant seeks to have his sentence

vacated so that he may withdraw his plea or confect a new sentencing agreement.

Defendant’s conviction and sentence are affirmed.

FACTS

As part of Defendant’s plea agreement, the charge of possession of

hydrocodone with the intent to distribute was dismissed. Defendant’s counsel and

the State agreed to recommend the minimum sentence of five years at hard labor, to

run concurrently with a sentence Defendant was serving as the result of a conviction

in St. Landry Parish.

After this offense occurred, but before his guilty plea and sentencing,

Defendant was convicted of possession of cocaine in St. Landry Parish and received

a five-year probated sentence. His probation was revoked when he was charged with

aggravated battery; a plea which resulted in him serving four years at hard labor.

Based on these additional convictions, the trial court rejected the

recommendation of a concurrent five-year sentence. He sentenced Defendant, after

considering the factors of La.Code Crim.P. art. 894.1, to ten years at hard labor, to run

consecutively to the sentence Defendant was already serving. Prior to the trial court’s

pronouncement of the sentence, Defendant indicated that he had reviewed his waiver

of constitutional rights and guilty plea form with his attorney, and that he had no

1 questions about it. He told the trial court that he understood the sentencing range for

the pled offense was five to thirty years at hard labor. When the trial court asked if

he had any questions, Defendant responded, “[t]he only question is I just wanted to

know, if that charge carries 85%, how much time would I have to serve?,” and then

stated, “[t]hat was my only question.” Defendant also indicated his understanding

that the trial court was not bound by the recommendation of a five-year sentence, and

that he knew the difference between concurrent and consecutive.

Defendant now complains that he was not asked whether he wanted to

withdraw his guilty plea after he learned that the trial court would not follow the

recommended sentence.

ASSIGNMENT OF ERROR NUMBER ONE

Defendant contends that the trial court erred in accepting his plea as knowing

and voluntary because Defendant believed he would receive a pre-determined

sentence of five years at hard labor that would run concurrently to the sentence he

was serving at the time. He argues that the trial court’s failure to honor the

recommended sentence rendered his plea constitutionally infirm.

The recommended five-year sentence was, however, not “a pre-determined

sentence.” It was a sentence the State and defense counsel agreed to recommend to

the trial court. This court has recognized “that the sentencing discretion of the trial

judge cannot be limited by a sentence recommended by both the State and the

defendant. The trial judge may accept or reject a joint sentence recommendation.”

State v. Higginbotham, 03-49, pp. 3-4 (La.App. 3 Cir. 4/30/03), 843 So.2d 1230, 1232

(citations omitted), citing State v. Robinson, 33,921, p. 2 (La.App. 2 Cir. 11/1/00),

770 So.2d 868, 870.

2 In Robinson, the second circuit discussed the distinction between an “agreed

upon plea” and an “agreed upon sentence.” The defendant agreed to plead guilty to

two counts of simple burglary, a lesser crime than the original charge. The State

recommended the sentences be served concurrently, but that was not noted in the

written plea agreement. When the defendant complained that he did not receive the

agreed upon sentence, the court noted that there was only an agreement for the State

to make a particular recommendation, not an agreement to a particular sentence, and

it affirmed the sentence.

Likewise, in Higginbotham, the State recommended the defendant’s sentences

run concurrently. Because the plea agreement contained an “agreed upon plea” and

not an “agreed upon sentence,” the plea agreement was not breached when the court

did not follow the sentencing recommendation.

Here, Defendant alleges that he entered into the plea agreement solely because

he believed he would receive a concurrent five-year sentence. However, that was not

a part of the plea agreement. The trial court told Defendant that the sentence the State

and his counsel agreed to was only a recommendation, one he was not required to

follow. Defendant said he understood, and proceeded with his guilty plea. Defendant

may not withdraw that plea simply because the sentence he received turned out to be

more than the sentence he expected. “It is not unreasonable for a trial court to deny

a defendant the luxury of gambling on his sentence, then withdrawing his plea if and

when he discovers, before imposition, the sentence is not to his liking.” State v.

Stewart, 03-976, p. 5 (La.App. 5 Cir. 12/30/03), 862 So.2d 1271, 1275 (citations

omitted).

3 Defendant was advised of the rights he waived by a guilty plea, of the

maximum sentence he could receive by pleading guilty to his offense, and of the trial

court’s discretion to disregard the sentencing recommendation. The trial court found

his guilty plea to be knowing and voluntary based on Defendant’s indication that he

understood.

Defendant’s plea was knowingly and voluntarily made under these facts. His

plea bargain was never based on an agreement that he would receive a five-year

sentence; rather, it was based on the agreement that the State and defense counsel

would jointly make that recommendation to the trial court. They fulfilled their

promise to Defendant. The trial court acted within his discretion in opting not to

follow the sentencing recommendation.

ASSIGNMENT OF ERROR NUMBER TWO

Defendant contends the trial court erred by not advising him of his right to

withdraw his guilty plea after he became aware that the trial court “would not honor

the joint plea promise/bargain.” As discussed above, there was no “plea

promise/bargain.” Rather, there was only a recommendation, and the trial court was

not bound to accept it. This assignment lacks merit.

ASSIGNMENT OF ERROR NUMBER THREE

In his last assignment of error, Defendant contends that the trial court erred in

denying his Motion to Withdraw Guilty Plea and/or Reconsider Sentence. “The

withdrawal of a guilty plea is within the broad discretion of the trial court, and is

subject to reversal only if that discretion is abused or arbitrarily exercised.” State v.

Roe, 05-116, p.8 (La.App. 3 Cir. 6/1/05), 903 So. 2d 1265, 1271, writ denied, 05-

1762 (La. 2/10/06), 924 So. 2d 163 (citation omitted). For the reasons we have

4 already stated, we find the trial court neither abused its discretion nor acted

arbitrarily.

CONCLUSION

Defendant’s conviction and sentence is affirmed.