State v. Sepulvado

25 So. 3d 899, 2009 La. App. LEXIS 1790, 2009 WL 3448830
Louisiana Court of Appeal·Decided October 28, 2009·No. 44,763-KA, 44,764-KA·Published·Cited by 3 cases

Opinions

STEWART, J.

b The defendant, Donna Kay Sepulvado, pled guilty to negligent homicide and distribution of a Schedule II controlled dangerous substance (“CDS”). She received concurrent sentences of five years at hard labor and ten years at hard labor, respectively. By this appeal, she argues that the homicide conviction must be set aside on the grounds of double jeopardy and that her sentence is excessive because it was based on improper victim impact testimony. Finding no error, we affirm.

FACTS

On February 5, 2006, the defendant sold methadone to Troy Holland, who died sometime that night or early the next day after ingesting the drug. Holland’s death certificate identified the primary cause of death as acute combined methadone and alprazolam intoxication due to self-administered drug abuse.

On February 23, 2006, the defendant was charged by grand jury indictment with second degree murder, a violation of La. R.S. 14:30.1, for unlawfully distributing or dispensing a Schedule II CDS which was the direct cause of Holland’s death. She pled not guilty.

On April 7, 2008, the defendant entered a plea agreement. She withdrew her plea of not guilty to second degree murder and entered an Alford plea, see North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), to the charge of negligent homicide. Also, the state filed a new bill charging distribution of a Schedule II CDS, namely methadone, in violation of La. R.S. 40:967(A)(1). The defendant waived formal arraignment and pled guilty to the distribution charge.

|2The victim’s mother, Ann Bryant, testified at the sentencing hearing that she blamed the defendant for the deaths of both her son and her daughter, who had also died after allegedly ingesting drugs purchased from the defendant. Defense counsel objected to Bryant’s testimony about her daughter as beyond the scope of the sentencing hearing. William Keith Robbins, the defendant’s husband, testified on her behalf, stating that she had a drug problem and that she was on drugs the night Holland purchased the methadone. He also brought up the matter of Bryant’s daughter. The trial court judge continued the sentencing to review the PSI.

When the sentencing hearing resumed a month later, the victim impact statement and the PSI were entered into the record. Defense counsel objected to evidence regarding the death of Bryant’s daughter included in the victim impact statement. After reviewing the relevant factors, the trial court imposed concurrent sentences of five years at hard labor for negligent homicide and ten years at hard labor for distribution of a Schedule II CDS. The defendant was granted credit for time served.

Upon denial of a motion for reconsideration of the sentences, this appeal followed. Raising two assignments of error, the defendant argues that her sentences are excessive due to having been based on improper victim impact testimony and that her convictions violate the protection against double jeopardy.

^DISCUSSION

Double Jeopardy

Arguing that the same facts were relied on for both the negligent homicide [902] and the distribution convictions, the defendant asserts a double jeopardy violation.

A guilty plea generally waives all non-jurisdictional defects and is reviewed to ensure that the plea was counseled and voluntary. State v. Arnold, 2001-1399 (La.4/12/02), 816 So.2d 289. Double jeopardy is an exception to this rule where the face of the record shows that the court had no power to enter the conviction or impose the sentence. State v. Arnold, 2001-1399 (La.4/12/02), 816 So.2d 289, citing United States v. Broce, 488 U.S. 563, 109 S.Ct. 757, 102 L.Ed.2d 927 (1989). Review of a double jeopardy claim in connection with a plea is limited to the charging documents and the plea colloquy. Arnold, supra; State v. Gobert, 2002-771 (La.App. 3d Cir.11/12/03), 865 So.2d 779, writ denied, 2003-3382 (La.12/10/04) 888 So.2d 829. There is also authority for finding a waiver of double jeopardy even where it is apparent on the face of the record. State v. Gobert, supra.

In Gobert, supra, the defendant was twice convicted of second degree murder and each conviction was overturned on appeal due to prosecutorial error. Shortly before the third trial commenced, the defendant pled guilty to one count of manslaughter and one count of attempted manslaughter. In an application for post conviction relief, the defendant asserted a double jeopardy claim, which the trial court denied. On appeal, the third circuit |4noted that the defendant had been charged by bill of indictment with second degree murder and that the state amended the bill to reflect the new charges. Reviewing the plea colloquy, the court found that the manslaughter and attempted manslaughter charges were agreed upon because they would guarantee a term of imprisonment that was amenable to the victim’s family and because they would allow the defendant to avoid a sentence of life imprisonment.

Upon citing the rule that a plea bargain does not preclude a double jeopardy claim when a violation is apparent on the face of the record, the third circuit noted an “important qualification” to that rule by the United States Supreme Court which stated in Broce, supra, “We do not hold that a double jeopardy claim may never be waived.” See Broce, 488 U.S. at 575, 109 S.Ct. at 765. Considering this qualification, the third circuit noted that Gobert alleged that counsel did not discuss double jeopardy considerations with him before entering the plea agreement. He argued that without having considered the possibility of raising a double jeopardy defense, he had not intentionally waived his right to claim double jeopardy. Rejecting this argument, the court cited Broce, supra, explaining that a conscious waiver is not required for each potential defense relinquished by a guilty plea, rather:

Relinquishment derives not from any inquiry into a defendant’s subjective understanding of the range of potential defenses, but from the admissions necessarily made upon entry of a voluntary plea of guilty. The trial court complied with Rule 11 in ensuring that respondents were advised that, in pleading guilty, they were admitting . guilt and waiving their right to a trial of any kind. A failure by counsel to provide advice may form the basis of a claim of ineffective assistance of counsel, but absent such a claim it cannot serve as the predicate for setting aside a valid plea.

United States v. Broce, 488 U.S. at 573-74, 109 S.Ct. 757, 102 L.Ed.2d 927; Gobert, 2002-771, p. 11, 865 So.2d at 785.

The third circuit found that Gobert, who voluntarily, knowingly and intelligently entered the plea agreement, was aware that the charges raised double jeopardy con[903] cerns even though the trial court never explicitly told him he was waiving his right to assert a double jeopardy violation. According to the third circuit, fundamental fairness dictated that Gobert could not attack the validity of his plea on grounds of double jeopardy.

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State v. Sepulvado, 25 So. 3d 899, 2009 La. App. LEXIS 1790, 2009 WL 3448830 (La. Ct. App. 2009).

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