State v. Harris

601 So. 2d 775, 1992 WL 120094

Opinion

601 So.2d 775 (1992)

STATE of Louisiana
v.
Gary HARRIS.

No. 91 KA 0431.

Court of Appeal of Louisiana, First Circuit.

May 22, 1992.

Doug Moreau, Dist. Atty., Office of the Dist. Atty., Baton Rouge, by Kay Howell, Asst. Dist. Atty., for plaintiff/appellee.

D. Bert Garraway, Asst. Public Defender, for defendant/appellant.

Before LOTTINGER, EDWARDS and GONZALES, JJ.

LOTTINGER, Judge.

Defendant, Gary Wayne Harris, was charged by bill of information with one count of first degree robbery. La.R.S. 14:64.1. Defendant pleaded guilty to the instant charge, and, at the same time, pleaded guilty to two counts of first degree robbery charged under bill of information number 5-90-576. For the instant conviction, defendant received a sentence of imprisonment at hard labor for thirty years without benefit of probation, parole or suspension of sentence. Defendant also received two concurrent sentences of thirty years at hard labor without benefit of probation, parole or suspension of sentence for the other two first degree robbery counts. Those convictions and sentences were separately appealed. See State v. Harris, 601 So.2d 779 (La.App.1992) also decided this date. Defendant appeals, urging two assignments of error.

FACTS

At the preliminary examination, Baker Police Detective Randall Dunaway testified that he was called, just prior to midnight on April 13, 1990, to investigate a robbery at the Pizza Hut restaurant on Manhattan Street in Baker. Detective Dunaway testified that the manager of the restaurant, Mary Simms, told him that a man entered the restaurant with a paper bag over his right hand and demanded the money from the register. Simms gave the man the money and, after ripping the telephone cord from the wall, he fled the restaurant. Responding uniformed patrol officers observed a vehicle leaving the area whose driver matched the description given by Simms. The officers followed the vehicle, attempting to stop it by giving both visual and audio signals; but the driver refused to stop. The vehicle finally stopped near Baker Parts Service, and its passenger exited the vehicle and fled into a wooded area behind the business. The uniformed officers pursued the man (defendant herein) into the woods, subsequently arresting him and finding in his possession the bank bag with the money removed from Pizza Hut. Simms identified the bank bag as belonging to Pizza Hut, and she also identified defendant as the robber. Simms stated that she thought the robber had a gun when he demanded the money. The driver of the vehicle was also arrested, and he was tried separately.

ASSIGNMENT OF ERROR NUMBER ONE

In his first assignment of error, defendant alleges that the trial judge erred when he accepted defendant's guilty plea. Specifically, defendant contends that the Boykinization was inadequate because defendant was not advised of the nature of the charges against him and was not informed of the sentencing range provided for this offense.

It is well settled that a plea of guilty waives all defects prior to that plea except those jurisdictional defects which appear on the face of the pleadings and proceedings. See State v. Allen, 263 La. 123, 267 So.2d 544 (La.1972); State v. Fabre, 525 So.2d 1222, 1224 (La.App. 1st Cir.), writ denied, 532 So.2d 148 (La.1988). Defendant did not file a motion to withdraw his guilty plea. Nevertheless, we elect to review the merits of defendant's claims.

Nature of Charges

Before accepting the plea, the trial judge read the first degree robbery statute to defendant. The trial judge asked defendant if he understood the charge, and defendant answered, "Yes." The trial judge reminded defendant that there had been a preliminary examination and asked him if defendant had been present for it and if the testimony given at that examination had been true and correct. To both questions, defendant answered, "Yes." The trial judge then carefully advised defendant of his rights: against self-incrimination, to a trial by jury and to confront his accusers. The trial judge asked defendant who made the final decision to plead guilty; and defendant answered, "I did." The trial judge promised that he would make defendant's sentences run concurrently, and he informed defendant that he would have to sentence defendant to at least three years.

A preliminary examination was conducted, at which testimony revealed facts which constitute the elements of first degree robbery. During the Boykin examination, the trial judge read to defendant the statute defining first degree robbery. Therefore, we find that defendant did know the nature of the charges against him.

Sentencing Exposure

The United States Supreme Court, in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), reversed five robbery convictions based upon guilty pleas on the basis that the court accepting the pleas had not ascertained that the defendant voluntarily and knowingly waived his right against compulsory self-incrimination, right to jury trial, and right of confrontation. The language included in many Louisiana cases concerning a requirement that accused be advised of his possible sentencing exposure, citing Boykin, apparently derived from footnote 7 in Boykin, in which the Supreme Court quoted from a Pennsylvania state court case as a demonstration of that court's approach to the issue. The Boykin decision itself does not require such advice; it only requires that a defendant be informed of the three rights enumerated above. "Its scope has not been expanded to include advising the defendant of any other rights which he may have, nor of the possible consequences of his actions." State v. Nuccio, 454 So.2d 93, 104 (La.1984).

Defendant argues that the guilty plea is invalid because the trial judge did not advise him of the sentencing range. As previously noted, Boykin requires no such advice. Moreover, it is not clear what, if any, explanation is owed to a defendant about his maximum penalty exposure, only that an understanding of the exposure is important to a defendant in some cases. State v. Haney, 434 So.2d 1264, 1266 n. 3 (La.App. 1st Cir.1983). Defendant herein does not contend that his guilty plea was rendered involuntary because he received a sentence in excess of one promised him nor that he was actually unaware of his sentencing exposure. Cf. State ex rel. LaFleur, v. Donnelly, 416 So.2d 82 (La.1982) (wherein the defendant attacked his guilty plea by way of post conviction relief and established his misunderstanding of when he would be eligible for parole and that he would not have pled guilty had he known he would be ineligible for probation or parole).

We note that defendant knew he could have been convicted of one count of armed robbery (as originally charged in bill of information number 5-90-576), the penalty for which would have been a maximum of ninety-nine years at hard labor without benefit of parole, probation or suspension of sentence, as well as three separate counts of first degree robbery. All four offenses were committed separately, and, therefore, defendant could have received four consecutive sentences. He chose, instead, to plead guilty to three counts of first degree robbery and to have his sentences run concurrently. A guilty plea is a conviction and, therefore, should be afforded a great measure of finality. State v. Thornton, 521 So.2d 598, 600 (La.App. 1st Cir.), writ denied, 530 So.2d 85 (La.1988). For the reasons herein stated, we find this assignment of error meritless.

ASSIGNMENT OF ERROR NUMBER TWO

In his second assignment of error, defendant alleges that the trial judge erred when he imposed an excessive sentence and failed to comply with the sentencing guidelines set forth in La.Code Crim.P. art. 894.1. Specifically, defendant contends that he was sentenced to the near maximum amount and that there is nothing in the record which supports the imposition of this near maximum sentence. Further, defendant argues that the trial judge did not mention art. 894.1, or the factors contained therein, when sentencing him.

Although a sentence falls within statutory limits, it may be excessive. State v. Sepulvado, 367 So.2d 762, 767 (La.1979). However, the trial judge has great discretion in imposing a sentence within statutory limits; and such a sentence will not be set aside as excessive in the absence of manifest abuse of discretion. State v. Latiolais, 563 So.2d 469, 473 (La.App. 1st Cir.1990).

The penalty for first degree robbery under La.R.S. 14:64.1(B) is imprisonment at hard labor for not less than three years and not more than forty years, without benefit of parole, probation or suspension of imposition or execution of sentence. Defendant was sentenced to imprisonment at hard labor for thirty years. We cannot say the sentence is excessive under the circumstances set forth by the trial judge. The sentence is within the sentencing range and does not appear to be grossly disproportionate to the offense committed, especially in light of the fact that defendant pleaded guilty to two other counts of first degree robbery, for which he received the same thirty years, because the sentences are to run concurrently. During sentencing, the judge noted that the presentence investigation revealed that defendant had been arrested for twenty-eight crimes, twenty-four of which were felonies. Although thirty years is in the upper range of the sentencing scale, defendant's criminal record justifies this sentence.

La.Code Crim.P. art. 894.1 requires the trial judge to weigh both aggravating and mitigating circumstances in determining the length of the sentence. While the trial judge is not required to articulate every such circumstance in imposing sentence, the record must reveal adequate consideration of the guidelines enumerated in article 894.1. State v. McGuire, 560 So.2d 545, 552 (La.App. 1st Cir.), writ denied, 565 So.2d 941 (La.1990). See also La.Code Crim.P. art. 894.1(C). Even in the absence of adequate compliance with the mandate of article 894.1, it is not necessary to remand the matter for resentencing when the sentence imposed in not apparently severe in relation to the particular offender or the particular offense. State v. Holts, 525 So.2d 1241, 1246 (La.App. 1st Cir.1988). A sentence imposed without the assignment of reasons will not be set aside automatically on appeal, but will be set aside for resentencing only if the record is inadequate or if the record clearly indicates the sentence is excessive. State v. Buie, 477 So.2d 157, 165 (La.App. 1st Cir.1985).

The trial judge did not meticulously comply with article 894.1, but the trial judge did order a presentence investigation. The trial judge mentioned defendant's lengthy criminal record, his drug abuse as the probable motivation for defendant's life of crime and the fact that defendant had been on probation twice before and had "done poorly." The trial judge also commented that every victim had recommended that defendant serve a long term in jail and that the Probation and Parole Office recommended the maximum sentence. We find no manifest abuse of the trial judge's sentencing discretion and, for the reasons herein stated, we find this assignment of error meritless.

PATENT ERROR

After reviewing this record, we have discovered a sentencing error patent on the face of the record. The trial judge did not give defendant credit for time served when the sentence was imposed.

La.Code Crim.P. art. 880 requires the court to give a defendant "credit toward service of his sentence for time spent in actual custody prior to the imposition of sentence." Patent sentencing error occurs when the trial court fails to specify credit for time served. State v. Hall, 287 So.2d 798, 799 (La.1973). See also State v. Greer, 572 So.2d 1166, 1172 (La.App. 1st Cir.1990). Accordingly, we find a patent sentencing error and amend the sentence to reflect that defendant is to be given credit for time served prior to execution of his sentence. See La.Code Crim.P. art. 882(A). Resentencing is not required. However, we remand the case and order the district court to amend the commitment and minute entry of the sentencing to reflect that defendant is to be given credit for time served.

CONVICTION AFFIRMED; REMANDED FOR CORRECTION OF SENTENCE.