State v. Jordan

716 So. 2d 36, 1998 WL 283044
CourtLouisiana Court of Appeal
DecidedJune 3, 1998
Docket98-101
StatusPublished
Cited by31 cases

This text of 716 So. 2d 36 (State v. Jordan) 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. Jordan, 716 So. 2d 36, 1998 WL 283044 (La. Ct. App. 1998).

Opinion

716 So.2d 36 (1998)

STATE of Louisiana, Appellee,
v.
Harold E. JORDAN, Defendant-Appellant.

No. 98-101.

Court of Appeal of Louisiana, Third Circuit.

June 3, 1998.

Robert Richard Bryant, Jr., Lake Charles, for State.

*37 Edward K. Bauman, Lake Charles, for Harold E. Jordan.

Before DOUCET, C.J., and DECUIR and AMY, JJ.

AMY, Judge.

The defendant, Harold E. Jordan, was convicted of indecent behavior with a juvenile, a violation of La.R.S. 14:81 and was subsequently sentenced to seven years at hard labor. Additionally, in the event the defendant is released on parole, the trial court ordered the defendant to place a sign in his yard alerting passers-by that he is a child molester. On appeal, the defendant alleges that the sentence imposed is excessive, that the trial court was without authority to order the placement of the sign, and, finally, that his plea of guilty was not knowingly and intelligently entered.

Factual and Procedural Background

This matter stems from the alleged sexual molestation of a three-year old neighbor of the defendant, Harold E. Jordan. In regard to this offense, the defendant was charged by grand jury indictment, on December 5, 1996, with one count of molestation of a juvenile, one count of aggravated oral sexual battery and one count of aggravated crime against nature. On December 11, 1996, the defendant entered a plea of not guilty to the charges.

On the day the matter was set for trial, June 16, 1997, the defendant and the State entered into a plea agreement. Pursuant to this agreement, the bill of indictment was amended to reflect that the charge of aggravated crime against nature was reduced to indecent behavior with a juvenile. Following the trial court's inquiry as to the waiver of his rights, the defendant entered a plea of guilty to the charge of indecent behavior with a juvenile. As part of the plea agreement, the remaining charges, molestation of a juvenile and aggravated oral sexual battery, were dismissed.

In a separate proceeding held on September 25, 1997, the defendant was sentenced to seven years at hard labor. This sentence was entered despite the State's recommendation that the defendant serve a three-year sentence. Furthermore, the trial court ordered, should the defendant be paroled, that the defendant erect a sign in his yard in order to alert children that he is a child molester.

The defendant appeals his conviction and sentence assigning the following as error:

1. The sentence imposed by the trial court was cruel, unusual and excessive, in violation of Article I, § 20 of the Louisiana Constitution of 1974.
2. The trial court was without authority to order defendant to place a sign in his yard when paroled stating "I am a child molester."
3. The defendant's plea of guilty was not knowingly and intelligently made.

Discussion

Errors Patent

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. Our review reveals one such error.

The trial court informed the defendant of the three-year period for filing post-conviction relief at the time of the guilty plea rather than at the time of sentencing as required by La.Code Crim.P. art. 930.8. In State v. Green, 94-617 (La.App. 3 Cir. 12/7/94); 647 So.2d 536, this court found such notice to be sufficient but, out of an abundance of caution, asked the district court to inform the defendant of the prescriptive period for filing post-conviction relief by sending appropriate written notice to the defendant. Accordingly, we too remand this matter in order for the trial court to inform the defendant of the prescriptive period for filing postconviction within ten days of the rendition of this opinion and file written proof that the defendant received notice in the record of these proceedings.

Excessiveness of the Sentence

By this assignment, the defendant contends that his seven-year sentence, the maximum available for conviction of indecent behavior with a juvenile, is excessive under the facts of this case. In particular, the defendant notes that he is sixty-nine years of age, *38 is wheelchair bound, has no significant prior criminal history, and, further, has no prior convictions for sexual offenses.

As the defendant's guilty plea was entered pursuant to a plea agreement, we first look to La.Code Crim.P. art. 881.2(A)(2) which precludes the review of a sentence in the following instance:

The defendant cannot appeal or seek review of a sentence imposed in conformity with a plea agreement which was set forth in the record at the time of the plea.

In State v. Young, 96-0195, p. 5 (La.10/15/96); 680 So.2d 1171,1174, the Louisiana Supreme Court determined that Article 881.2(A)(2) applies "to plea agreements involving both specific sentences and sentencing caps." In an instance where the court sentences the defendant in accordance with the parties' recommendation for a specific sentence or a sentencing range, it is clear that review of the imposed sentence is precluded. See State v. Watkins, 97-364 (La. App. 3 Cir. 10/8/97); 700 So.2d 1172; State v. Laroux, 93-719 (La.App. 3 Cir. 2/2/94); 631 So.2d 730, writ denied, 94-0577 (La.6/3/94); 637 So.2d 498; State v. Lewis, 633 So.2d 315 (La.App. 1 Cir.1993).

Here, we are not faced with a situation where the statutory language clearly indicates whether it is applicable. Rather, the plea agreement in the instant matter involves a situation where, in exchange for a the defendant's guilty plea, the State reduced one of the charges and dismissed two remaining charges. Originally, the defendant was charged with three offenses which, if convicted on each of the charges, could have resulted in sentences totaling fifty-years.[1] In view of this reduction of the charges, the one remaining charge may be seen to operate as a sentencing cap as it reduced the defendant's exposure from a total possible sentence of fifty years to a possible sentence of seven years, the statutory maximum for the charge to which he pled guilty. Even further, the parties jointly agreed that the State would recommend that the defendant be sentenced to three years. This portion of the agreement was clearly fulfilled as the defendant pled guilty to a reduced charge, the State made its recommendation, and the remaining charges were dismissed. Thus, each of the parties complied with the plea agreement. However, the court did not accept the recommended sentence, as was done in the above-cited cases, but, rather, sentenced the defendant to the statutory maximum of seven years at hard labor for a conviction under La.R.S. 14:81.[2] Therefore, under existing jurisprudence it is unclear whether Article 881.2 applies.

A sentence imposed in conformity with the plea agreement would, as previously stated, preclude review on appeal. However, if we were to determine that the defendant was not sentenced in conformity with the plea agreement, it follows that review would be permissible under Article 881.2(A)(2), but such a sentence would be illegal and, thus, would be vacated. A vacated sentence, obviously, could not be reviewed for excessiveness.

Our review of the relevant jurisprudence does not indicate that this exact issue has been addressed by a court of this state. However, in State v. Goodman, 96-376 (La. App. 3 Cir.

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Bluebook (online)
716 So. 2d 36, 1998 WL 283044, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-jordan-lactapp-1998.