State of Louisiana v. David Stapleton

Opinion

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

09-0891

STATE OF LOUISIANA

VERSUS

DAVID STAPLETON

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APPEAL FROM THE THIRTY-FIFTH JUDICIAL DISTRICT COURT PARISH OF GRANT, NO. 07CR169 HONORABLE WARREN D. WILLETT, DISTRICT JUDGE

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JIMMIE C. PETERS JUDGE

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Court composed of Oswald A. Decuir, Jimmie C. Peters, and David E. Chatelain,* Judges.

AFFIRMED.

James D. White Assistant District Attorney Thirty-Fifth Judicial District P. O. Box 309 Colfax, LA 71417 (318) 627-3205 COUNSEL FOR APPELLEE: State of Louisiana

*Honorable David E. Chatelain participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore. Mark O. Foster Louisiana Appellate Project P. O. Box 2057 Natchitoches, LA 71457 (318) 572-5693 COUNSEL FOR DEFENDANT/APPELLANT: David Stapleton

David L. Stapleton Louisiana Department of Corrections #239476 River Bend Detention Center, Phase 2 9450 Highway 65 South Lake Providence, LA 71254 Pro Se PETERS, J.

The defendant, David Stapleton, appeals the sentence imposed for his

conviction for driving while intoxicated, fourth offense, in violation of La.R.S. 14:98.

After his conviction by a jury, the trial court sentenced him to serve thirty years at

hard labor and to pay a fine of $5,000.00.1 For the following reasons, we affirm the

sentence in all respects.

The defendant has asserted two assignments of error through his counsel, as

well as three pro se assignments of error. Through his counsel, the defendant asserts

that:

1. The trial court erred in sentencing Mr. Stapleton to the maximum sentence of 30 years imprisonment, without complying with the requirements of La.C.Cr.P. Art. 894.1.

2. The maximum, 30-year sentence imposed by the trial court was cruel, unusual and excessive, in violation of Article I, § 20 of the Louisiana Constitution of 1974.

In his pro se brief, the defendant asserts that: 1) the state did not offer the defendant

a plea bargain and recommended that he receive the maximum sentence; 2) the

minutes inaccurately reflect the judge presiding over the matter; and 3) the conviction

from 1993 cannot be used as a predicate offense.

Assignment of Error Filed by the Defendant’s Counsel

The incarceration sentencing range for driving while intoxicated, fourth

offense, is ten to thirty years at hard labor.2 La.R.S. 14:98(E). The defendant asserts

in his first assignment of error that the trial court erred in sentencing him to the

maximum incarceration period without complying with the requirements of La.Code

1 This is actually the second time the matter is before us on appeal. In State v. Stapleton, 08- 685 (La.App. 3 Cir. 12/10/08), this court, in an unpublished opinion, vacated the defendant’s original sentence and remanded the matter to the trial court for resentencing because the defendant was not represented by counsel at the time of sentencing. 2 The defendant does not contest the imposition of the $5,000.00 fine. Crim.P. art. 894.1. In his second assignment of error, he asserts that the sentence

imposed is cruel, unusual, and excessive. We will consider both of these assignments

of error together.

In rejecting both of these assignments of error, we first note that the defendant

did not object to the sentence at the time it was imposed or file a motion to reconsider

the sentence imposed. That being the case, we find that the defendant has waived his

right to have this court review the claim of excessiveness of sentence. See State v.

Williams, 01-998 (La.App. 3 Cir. 2/6/02), 815 So.2d 908, writ denied, 02-578 (La.

1/31/03), 836 So.2d 59, and State v. Bamburg, 00-675 (La.App. 3 Cir. 11/2/00), 772

So.2d 356. Therefore, we find no merit in these assignments of error.

Pro Se Assignments of Error

In his pro se brief, the defendant complains that prior to his conviction the

State of Louisiana (state) had offered him a ten-year sentence in exchange for a guilty

plea, but, after his conviction, had recommended to the trial court that he receive the

maximum sentence for the offense. He also asserts that the court minutes are

inaccurate in that they reflect that Judge Peyton Cunningham presided from April 13,

2007, through January 3, 2008, when, in fact, Judge Allen Krake presided until the

last six months of 2008. Finally, he asserts that it was error to use a 1993 conviction

for driving while intoxicated, fourth offense.

In considering these arguments, we note that the defendant submits no legal

argument to suggest that somehow the state is precluded from recommending a

different sentence after conviction from that offered in plea negotiations or that he

was somehow prejudiced by the inaccurate court minutes. Furthermore, in the

previous unpublished opinion, this court specifically addressed the issue of the 1993

2 conviction and found no merit in the defendant’s argument on this point. Thus, we

find no merit in these assignments of error.

DISPOSITION

For the foregoing reasons, we affirm the sentence imposed on the defendant,

David Stapleton, in all respects.

AFFIRMED.

This opinion is NOT DESIGNATED FOR PUBLICATION. Rule 2-16.3, Uniform Rules, Courts of Appeal.