State v. Robinson

770 So. 2d 868, 2000 WL 1634152
Louisiana Court of Appeal·Decided November 1, 2000·No. 33,921-KA·Published·Cited by 64 cases

Opinion

770 So.2d 868 (2000)

STATE of Louisiana, Appellee,
v.
Christopher P. ROBINSON, Appellant.

No. 33,921-KA.

Court of Appeal of Louisiana, Second Circuit.

November 1, 2000.

*870 Louisiana Appellate Project by Amy C. Ellender, Counsel for Appellant.

Richard Ieyoub, Attorney General, Counsel for Appellee.

Before WILLIAMS, GASKINS & PEATROSS, JJ.

PEATROSS, J.

Defendant, Christopher P. Robinson, was charged with two counts of simple burglary of an inhabited dwelling in violation of La. R.S. 14:62.2, punishable by imprisonment at hard labor for not less than 1 year, without benefit of parole, probation or suspension of sentence, nor more than 12 years. Pursuant to a plea agreement with the State, Defendant pled guilty to two counts of simple burglary in violation of La. R.S. 14:62, each punishable by a fine of not more than $2,000 and imprisonment, with or without hard labor, for not more than 12 years. Defendant was sentenced to serve two consecutive 2-year hard labor sentences. Defendant appeals his sentences as excessive and in violation of his plea agreement with the State. For the reasons stated herein, Defendant's convictions and sentences are affirmed.

FACTS AND PROCEDURAL HISTORY

Defendant's arrest arose from two separate burglaries committed on July 2, 1999, when Defendant entered the homes of two elderly victims and took several items of jewelry. On August 20, 1999, Defendant was charged by bill of information with two counts of simple burglary of an inhabited dwelling, to which Defendant pled not guilty. Before trial, Defendant and the State entered into "an agreed upon plea" whereby the State agreed to amend the bill of information to charge two counts of simple burglary, to which Defendant pled guilty, and the State recommended that the sentences be served concurrently. Defendant's pleas of guilty were accepted and a pre-sentence investigation was ordered. On February 3, 2000, Defendant was sentenced to serve two years at hard labor on each of the two counts, to run consecutively. Defendant's timely motion to reconsider sentence was denied by the trial court.

DISCUSSION

We will first address Defendant's argument that the sentences imposed violated the plea agreement and, therefore, must be vacated. Defendant argues that any sentences imposed should have been ordered to run concurrently in accordance with the State's recommendation and the expectation of all parties, rather than consecutively as ordered by the trial court. According to Defendant, this breach of the plea agreement requires that his sentence be set aside. We disagree.

It is well settled that the sentencing discretion of the trial judge cannot be limited by a sentence recommended by both the State and the defendant. The trial judge may accept or reject a joint sentence recommendation. State v. Collins, 359 So.2d 174 (La.1978); State v. Rios, 95-00961 (La.App. 3d Cir.3/6/96), 670 So.2d 708; State v. Barnes, 596 So.2d 302 (La.App. 3d Cir.1992). We acknowledge, however, that a guilty plea is constitutionally *871 infirm when a defendant is induced to enter that plea by a plea agreement which is then not fulfilled. State v. Dixon, 449 So.2d 463 (La.1984); State v. Gasca, 575 So.2d 913 (La.App.2d Cir.1991), writ denied, 580 So.2d 674 (La.1991); State v. Taylor, 535 So.2d 1229 (La.App. 3d Cir. 1988). Moreover, even in the absence of a plea bargain, if a defendant justifiably believes there was one and pled guilty in part because of that justifiable belief, the guilty plea was not knowingly made, and in such a case, the plea must be set aside and the defendant allowed to plead anew. State v. Berry, 31,861 (La.App.2d Cir.3/31/99), 732 So.2d 638; State v. Bates, 29,252 (La. App.2d Cir.1/22/97), 711 So.2d 281.

Considering the record in this case, it appears that the plea bargain terms were that Defendant would be allowed to plead to two counts of the lesser crime of simple burglary, thereby avoiding the mandatory minimum sentence of one year at hard labor on each count of simple burglary of an inhabited dwelling, in exchange for the State's recommendation that any sentences imposed would run concurrently. It is clear from the record that the plea bargain agreement did not include that the trial court would impose concurrent sentences. In other words, the "agreed upon plea" was not an "agreed upon sentence," but, rather, an agreement that the State would make a particular recommendation on behalf of Defendant. In reviewing the plea agreement at the guilty plea proceeding, the district attorney stated, "[t]here's no recommendation for sentencing from the state, however, except that the sentences would run concurrent." Significantly, the trial court informed Defendant during the plea bargain colloquy that concurrent sentences were only a recommendation from the State and that the trial court would impose sentences after considering the pre-sentence investigation and other factors. The following exchange took place during sentencing:

COURT: Do you understand the process of what's going to happen after the plea? The Department of Corrections personnel are going to gather information, give that to your lawyer, give that to me and then I'll decide the sentence within the law and the factors that go into sentencing which includes case law, includes a number of factors that the law provides but that's left up to me. Do you understand that? DEFENDANT: Yes sir. * * * COURT: Is your decision voluntary? DEFENDANT: Yes sir.

The trial court then accepted Defendant's guilty plea, stating, "[p]articularly, let the minutes reflect and the presentence investigation reflect that the only sentencing recommendation is that the two sentences run concurrently, sentencing to be determined by a presentence investigation which I order at this time."

Defendant argues that under the terms of his plea bargain agreement and the discussions during his guilty plea colloquy, he believed that any sentences would be concurrent. He acknowledges, however, that there was no agreement as to the length of the sentence, but asserts that all parties acknowledged that concurrent sentences were recommended. Therein lies the key to resolution of this issue: the State agreed only to make a recommendation of concurrent sentences. The trial court was not bound by the State's sentencing recommendation, and did not err in imposing the sentences to run consecutively. State v. Collins, supra; State v. Rios, supra; State v. Barnes, supra. Additionally, we find that the trial court's questioning of Defendant prior to sentencing reveals Defendant's understanding that he was not guaranteed concurrent sentences.

*872 Next we turn to the question of whether or not the sentences imposed are excessive. Generally, Defendant challenges the two-year hard labor sentences and, in particular, argues that the record fails to support the trial court's order that the sentences be served consecutively. He contends that the trial court did not place sufficient emphasis on his youthful age and minimal criminal history. Defendant further asserts that the potential of harm should not have been considered as an aggravating factor. Finally, according to Defendant, there is no evidence in the record which indicates that he is the most blameworth

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State v. Robinson, 770 So. 2d 868, 2000 WL 1634152 (La. Ct. App. 2000).

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