State v. Morin

203 So. 3d 1115, 16 La.App. 5 Cir. 65, 2016 La. App. LEXIS 1944
CourtLouisiana Court of Appeal
DecidedOctober 26, 2016
DocketNO. 16-KA-65
StatusPublished

This text of 203 So. 3d 1115 (State v. Morin) 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. Morin, 203 So. 3d 1115, 16 La.App. 5 Cir. 65, 2016 La. App. LEXIS 1944 (La. Ct. App. 2016).

Opinion

MURPHY, J.

11 Defendant/appellant, Michael Morin, appeals his sentence for failing to register as a sex offender, in violation of La. R.S. 15:542.1.1. For the reasons that follow, defendant’s conviction and sentence are affirmed.

STATEMENT OF THE CASE

On December 5,2014, the Jefferson Parish District Attorney filed a bill of information charging defendant, Michael Morin, with failing to appear for his annual registration as a sex offender in violation of La. R.S. 15:542.1.1. Defendant was arraigned on December 19, 2014, and pled not guilty. On August 25, 2015, defendant filed a “Motion for Suspended Sentence and Probation Despite a Mandatory Minimum Sentence”, which was denied following a hearing on August 26, 2015. On that same date, defendant pled guilty as charged. On September 23, 2015, defendant filed a motion to reconsider sentence [1117]*1117(even though he had not yet been sentenced), which was set for hearing on October 7, 2015, the date of his sentencing. On October 7, 2015, the trial court sentenced defendant to imprisonment at hard labor for two years, without benefits, to run concurrently with the sentence in case number 14-0852. After the denial of defendant’s motion for reconsideration, his timely motion for appeal was granted.

FACTS

Because this conviction was the result of a guilty plea, the underlying facts regarding the offense were not elicited at trial. However, in both the bill of information, and the factual basis given at the time of defendant’s guilty plea, the State alleged that on or about October 11, 2014, defendant violated La. R.S. 15:542.1.1 when he failed to appear for his annual registration as a sex offender.

¡■ASSIGNMENT OF ERROR AND DISCUSSION

In his sole assignment of error, defendant contends that the “excessiveness” provision of the Louisiana Constitution’s Article I, Section 20 ban on “cruel, excessive, or unusual punishment” empowers a sentencing judge to impose a sentence below a mandatory minimum if the life of a family member will be severely endangered by the defendant’s incarceration. Defendant also relies on the ease of State v. Dorthey, 623 So.2d 1276 (La. 1993), to support his proposition that a single factor can make a particular sentence unconstitutionally excessive. Citing the case of State v. Sepulvado, 367 So.2d 762 (La. 1979), and La. C.Cr.P. art. 894.1, defendant asserts that “impact on the family of a defendant is a common* and recognized factor for sentencing.” Defendant concludes that his two-year mandatory minimum sentence was unconstitutionally excessive and that the trial judge erred by denying his “Motion for Suspended Sentence and Probation Despite a Mandatory Minimum Sentence.” ■ ■

The State responds that defendant is precluded from seeking review of his sentence since his sentence was imposed in conformity with a plea agreement set forth in the record at the time of the plea. The State further responds that defendant cannot challenge the trial judge’s denial of his “Motion for Suspended Sentence and Probation Despite a Mandatory Minimum Sentence” since he did not reserve his right to appeal that adverse ruling under State v. Crosby, 338 So.2d 584 (La. 1976).

La. C.Cr.P. art. 881.2(A)(2) provides, “[T]he 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.” Accordingly, this Court has held that a defendant is precluded from raising a claim of excessiveness on appeal when |sthe imposed sentence is the product of a plea agreement. State v. Cross, 06-866 (La. App. 5 Cir. 4/11/07), 958 So.2d 28, 30.

In the instant case, on August 26, 2015, the date of his guilty plea, defendant executed a waiver of rights form which reflects that he understood that the sentencing range in this case was “2-10 years at hard labor w/o parole, probation or suspension of sentence” and that his sentence for this guilty plea would be two years at hard labor, concurrent with the sentence in No. 14-0852. The transcript of August 26, 2015, further reflects defendant’s acknowledgment in- open court during the Boykin colloquy that the sentence he would receive upon pleading guilty would be “2 years at hard labor.” On October 7, 2015, the trial court imposed the agreed upon sentence after finding that defendant’s plea was knowingly, intelligently, freely, and voluntarily made. Because defendant’s sentence was imposed in conformity with a [1118]*1118plea agreement which was set forth in the record at the time of the plea, defendant cannot now appeal or seek review of his sentence. See Lá. C.Cr.P. art, 881.2(A)(2); Cross, swpra.

Furthermore, as correctly noted by the State, defendant did not preserve his right to seek review of the trial court’s denial of his “Motion for Suspended Sentence and Probation Despite a Mandatory Minimum Sentence” at the time of his guilty plea. In State v. Crosby, supra, the Louisiana Supreme Court determined that the Louisiana courts of appeal may review assignments of error specifically reserved at the time a guilty plea is made and “where the trial court accepted the guilty plea so conditioned.” Id. at 588. In the instant case, the record does not show that defendant sought to preserve his right to have the denial of his motion reviewed on appeal as a condition of his guilty plea.

Nevertheless, even if considered, we find that defendant’s assignment of error lacks merit.

1/The Louisiana Legislature has clearly detailed its intent behind requiring sex offenders to register upon moving to this state. As succinctly summarized by the Louisiana Supreme Court in State ex rel. Olivieri v. State, 00-0172 (La. 2/21/01), 779 So.2d 735, 747:

A careful review of the subjective intent enunciated in -LA. REV. STAT. ANN. § 15:540 shows that the Legislature enacted this state’s Megan’s Laws with an avowedly non-punitive intent. It is clear that the laws were enacted to protect communities, aid police in their investigation of sex offenders, and enable quick apprehension of sex offenders. These enactments were further founded on the findings of the Legislature that this legislation was of paramount governmental interest because: (1) sex offenders pose a high risk of engaging in sex offenses, (2) sex offenders have a high incidence of recidivism, and (3) unless there was registration and community notification, sex offenders could remain hidden and thereby increase the risk to public safety.

As provided in La. R.S. 15:542.1.4, sex offenders who violate the registration requirements “shall, upon a first conviction, be fined not more than one thousand dollars and imprisoned with hard labor for not less than two years ,.. without benefit of parole, probation, or suspension of sentence.”

A mandatory minimum sentence is presumed to be constitutional. State v. Johnson, 97-1906 (La. 3/4/98), 709 So.2d 672. A court may only depart from the mandatory sentence if it finds clear and convincing evidence in the particular case before it that would rebut the presumption of constitutionality. Id. In order to rebut the presumption of constitutionality, the defendant must clearly and convincingly show that he is exceptional, that is, because of unusual circumstances he is a victim of the legislature’s failure to assign sentences that are meaningfully tailored to the culpability of the offender, the gravity of the offense, and the circumstances of the case.

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Related

State v. Crosby
338 So. 2d 584 (Supreme Court of Louisiana, 1976)
State Ex Rel. Olivieri v. State
779 So. 2d 735 (Supreme Court of Louisiana, 2001)
State v. Weiland
556 So. 2d 175 (Louisiana Court of Appeal, 1990)
State v. Dorthey
623 So. 2d 1276 (Supreme Court of Louisiana, 1993)
State v. Johnson
709 So. 2d 672 (Supreme Court of Louisiana, 1998)
State v. Sepulvado
367 So. 2d 762 (Supreme Court of Louisiana, 1979)
State v. Oliveaux
312 So. 2d 337 (Supreme Court of Louisiana, 1975)
State v. Cross
958 So. 2d 28 (Louisiana Court of Appeal, 2007)
State v. Lindsey
770 So. 2d 339 (Supreme Court of Louisiana, 2000)
State v. Celestine
92 So. 3d 335 (Supreme Court of Louisiana, 2012)
Hall v. Excelsior Steam Laundry Co.
5 La. App. 5 (Louisiana Court of Appeal, 1926)
State v. Smith
922 So. 2d 639 (Louisiana Court of Appeal, 2006)

Cite This Page — Counsel Stack

Bluebook (online)
203 So. 3d 1115, 16 La.App. 5 Cir. 65, 2016 La. App. LEXIS 1944, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-morin-lactapp-2016.