State v. Collins

865 So. 2d 117, 2003 WL 22304493
CourtLouisiana Court of Appeal
DecidedOctober 8, 2003
Docket03-388
StatusPublished
Cited by5 cases

This text of 865 So. 2d 117 (State v. Collins) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Collins, 865 So. 2d 117, 2003 WL 22304493 (La. Ct. App. 2003).

Opinion

865 So.2d 117 (2003)

STATE of Louisiana
v.
Larry COLLINS.

No. 03-388.

Court of Appeal of Louisiana, Third Circuit.

October 8, 2003.

*118 Asa Skinner, Assistant District Attorney, Leesville, LA, for Appellee, State of Louisiana.

Laura Pavy, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant, Larry Collins.

Court composed of ULYSSES GENE THIBODEAUX, SYLVIA R. COOKS and BILLY H. EZELL, Judges.

COOKS, Judge.

Defendant pled guilty to distribution of cocaine and was sentenced to sixteen years at hard labor, fined $1,500.00 and ordered to pay court costs. He appeals his sentence contending it was excessive. For the following reasons, we affirm.

FACTS

On December 7, 2001, the Defendant, Larry Collins, distributed cocaine to an undercover officer. Defendant was charged by bill of information with two counts of possession of cocaine with intent to distribute, a violation of La.R.S. 40:967(A). Defendant initially entered a plea of not guilty, but eventually pled guilty to distribution of cocaine, also a violation of La.R.S. 40:967(A). Defendant was subsequently sentenced to sixteen years at hard labor, to run concurrent to any other sentence he was subject to, with credit for time served. He was ordered to pay a fine of $1,500.00 and court costs. A Motion to Reconsider Sentence was filed and denied by the trial court. Defendant then lodged this appeal contending the sentence imposed was excessive.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. Initially, we note there is a problem with the bill of information. The record indicates Defendant was charged with two counts of possession of cocaine with intent to distribute. Defendant entered a plea of guilty to count one of the bill and count two was dismissed as part of a plea agreement. However, the record further indicates the bill was not amended and Defendant pled guilty to distribution of cocaine.

In State v. Charles, 02-0443 (La.App. 3 Cir. 10/2/02), 827 So.2d 553, writ denied, 02-2707 (La.3/28/03), 840 So.2d 569, the defendant was charged with distribution of cocaine, but pled guilty to an amended charge of possession with the intent to distribute cocaine, which this court found was a nonresponsive offense. See also State v. Starks, 615 So.2d 943 (La.App. 1 Cir.1993). Defendant, thus, pled guilty to a nonresponsive offense; and this court found it was an error for the State not to amend the bill of information. See La. Code Crim.P. art. 814.

*119 In State v. Richard, 99-1078 (La.App. 3 Cir. 12/27/00), 779 So.2d 927, this court recognized as error patent the defendant's plea to a nonresponsive crime. In addressing the error, we stated:

According to this court in State v. Price, [461 So.2d 503 (La.App. 3 Cir.1984)] the State should have amended the bill of information to reflect the Defendant's plea to the nonresponsive offense, which the State did not do in the instant case. However, later, in State v. Rito, [96-1444 (La.App. 3 Cir. 10/8/97), 700 So.2d 1169] this court stated that, neither a statute, nor the constitution required the prosecution to amend the bill of information before a defendant can plead guilty to a nonresponsive crime. The court stated:
It is well settled that a defendant may plead guilty to a crime nonresponsive to the original indictment as long as the district attorney accepts it. La.Code Crim.P. art. 487(B) and State v. Price, 461 So.2d 503 (La.App. 3 Cir.1984). Further, the state is not constitutionally or statutorily required to amend the information before the defendant can plead to a nonresponsive offense. Price, 461 So.2d 503 (Knoll, J., dissenting).
Nevertheless, the court went on to decide whether the state's failure to amend the bill of information was harmless or reversible error. The court found the first circuit's opinion in State v. Barclay, [591 So.2d 1178 (La.App. 1 Cir.1991), writ denied, 595 So.2d 653 (La.1992)] to be dispositive of the issue. Discussing Barclay, the court stated:
In that case, the defendant was charged by grand jury indictment with aggravated rape but pled guilty to conspiracy to commit aggravated rape. The court espoused the following harmless error principle to uphold the conviction and sentence despite the state's failure to formally amend the bill of information:
[W]here ... the defendant enters a plea of guilty to a crime nonresponsive to the original indictment when such plea is acceptable to the district attorney, the defendant is fully aware of the charge to which he pleaded as shown by extensive Boykinization, and the plea is not prejudicial to the defendant, any error caused by a failure to formally amend the indictment is harmless.

....

In Rito, the court distinguished State v. Cook, [372 So.2d 1202 (La.1979)] which found reversible error in the state's failure to amend the bill of information. This court stated:

We are able to distinguish the Supreme Court case from the instant case because in the former case, the nonresponsive crime to which that defendant pled (simple burglary of an inhabited dwelling) was more serious than the offense he was originally charged with (simple burglary). As a result, the Supreme Court found a flaw, justifying reversal in that case. In contrast, the crime that defendant pled guilty to in this case was less serious than that originally charged with, and the resulting sentence imposed was more favorable to the defendant in this instance.

Id. at 929-930 (Footnotes omitted).

Possession with the intent to distribute cocaine and distribution of cocaine are contained in the same statute and carry the same penalty. Our examination of the record reveals the Barclay factors were met. The State accepted Defendant's plea, and thoroughly Boykinized Defendant. The trial court stated Defendant was pleading guilty to distribution of *120 cocaine and explained the nature of that offense as well as its penalty range. When asked if he understood what he was pleading guilty to and the penalty range, Defendant replied "Yes, sir." Defendant also benefitted from his plea in that one charge was dismissed, no habitual offender bill was filed and at least one-half of his sentence was to run concurrent with a sentence he was then serving. He also received a mid-range sentence of sixteen years. Facing the possibility of a $50,000.00 fine, he was ordered to pay only $1,500.00. Thus, Defendant clearly was not prejudiced and the error is harmless.

We also note the trial court failed to impose the first two years of Defendant's sentence without benefit of parole, probation, or suspension of sentence. La.R.S. 15:301.1(A) and (C) provide that these provisions are self-activating and occur by operation of law. Thus, we find Defendant's sentence is deemed to contain the restriction pursuant to La.R.S. 15:301.1(A).

EXCESSIVE SENTENCE

Defendant contends the trial court imposed an excessive sentence. In State v. Williams, 02-707, pp. 7-9 (La.App. 3 Cir. 3/5/03), 839 So.2d 1095, 1100-01, we stated as follows:

La. Const. art. 1, § 20 ensures that "[n]o law shall subject any person to ...

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Cite This Page — Counsel Stack

Bluebook (online)
865 So. 2d 117, 2003 WL 22304493, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-collins-lactapp-2003.