State v. Silvie

721 So. 2d 998, 98 La.App. 3 Cir. 663, 1998 La. App. LEXIS 2991, 1998 WL 749333
CourtLouisiana Court of Appeal
DecidedOctober 28, 1998
DocketNo. CR98-663
StatusPublished

This text of 721 So. 2d 998 (State v. Silvie) 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. Silvie, 721 So. 2d 998, 98 La.App. 3 Cir. 663, 1998 La. App. LEXIS 2991, 1998 WL 749333 (La. Ct. App. 1998).

Opinion

JJJECUIR, Judge.

This appeal seeks review of the sentence imposed on the Defendant, Terome Silvie. The Defendant was charged with armed robbery, a violation of La.R.S. 14:64, aggravated battery, a violation of La.R.S. 14:34, and aggravated criminal damage to property, a violation of La.R.S. 14:55. At his arraignment on April 21, 1995, the Defendant entered a plea of not guilty to each charge. The State moved to amend the armed robbery charge to attempted manslaughter, a violation of La.R.S. 14:27 and 14:31, and moved to dismiss the other charges, pursuant to a plea bargain. The Defendant pled guilty to attempted manslaughter. After advising the Defendant of his rights, the trial court accepted his plea. Defendant was sentenced by the trial court to twenty years imprisonment, with credit for time served.

The Defendant filed a pro se Motion to Reconsider Sentence, which was denied by the trial judge. The Defendant later filed an out of time appeal, which was denied by the trial court. The Defendant then filed a writ application to this court to require |2the trial judge to allow his appeal. This court granted the writ and ordered an evidentiary hearing to determine if the Defendant was entitled to an out of time appeal. State v. Silvie, an unpublished writ opinion bearing docket number 95-1069 (La.App. 3 Cir. 2/26/96). The evidentiary hearing was held and the [999]*999trial judge again denied the Defendant’s out of time appeal. At the evidentiary hearing, the Defendant limited his relief to a reduction of the sentence and did not challenge the plea bargain itself. Finally, this court granted another writ allowing the Defendant an out of time appeal. State v. Silvie, an unpublished writ opinion bearing docket number 97-279 (La.App. 3 Cir. 12/29/97). Defendant now appeals and assigns three assignments of error.

FACTS

On or about February 17, 1995, the Defendant robbed two men while armed with a dangerous weapon. In the process of the robbery, he shot them. Also, during the robbery the Defendant damaged property within the home.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find there is one error patent.

Although the Defendant was originally charged with armed robbery and aggravated battery, he entered a plea of guilty to attempted manslaughter. Attempted manslaughter is not a responsive verdict to either of the above charges.1 According to this court in State v. Price, 461 So.2d 503 (La.App. 3 Cir.1984), the State should have amended the bill of information to reflect the Defendant’s plea to the nonresponsive |3offense. Although the minutes indicate the Defendant’s armed robbery charge was amended, neither the transcript nor the bill of information show such an amendment. Pursuant to an information request sent by this court, the clerk of court’s office informed this court that no new bill of information was filed with the amended charge.

In State v. Rito, 96-1444 (La.App. 3 Cir. 10/8/97); 700 So.2d 1169, this court stated that the prosecution is not required either by statute or by the constitution to amend the bill of information before the defendant can plead guilty to a nonresponsive crime. The court stated:

It is well settled that a defendant may plead guilty to a crime nonresponsive to the original indictment as long as the district attorney accepts it. La.Code Crim.P. art. 487(B) and State v. Price, 461 So.2d 503 (La.App. 3 Cir.1984). Further, the state is not constitutionally or statutorily required to amend the information before the defendant can plead to a nonresponsive offense. Price, 461 So.2d 503 (Knoll, J., dissenting)_ Id. at p. 3; 1170.

Nevertheless, the court went on to decide whether the state’s failure to amend the bill of information was harmless or reversible error. The court found the first circuit’s opinion in State v. Barclay, 591 So.2d 1178 (La.App. 1 Cir.1991), writ denied, 595 So.2d 653 (La.1992), to be dispositive of the issue. Discussing Barclay, the court stated:

In that case, the defendant was charged by grand jury indictment with aggravated rape but pled guilty to conspiracy to commit aggravated rape. The court espoused the following harmless error principle to uphold the conviction and sentence despite the state’s failure to formally amend the bill of information:
[Wjhere ... the defendant enters a plea of guilty to a crime nonresponsive to the original indictment when such plea is acceptable to the district attorney, the defendant is fully aware of the charge to which he pleaded as shown by extensive Boykinization, and the plea is not prejudicial to the defendant, any error caused by a failure to formally amend the indictment is harmless.

Id. at p. 3; 1170-1171.

I4AII of the Barclay considerations have been satisfied in this case. First, the State accepted the Defendant’s plea. Second, the trial court thoroughly Boykinized the Defendant. The trial court stated the Defendant was pleading guilty to attempted manslaugh[1000]*1000ter and he stated the penalty provision for that offense. When informing the Defendant of the penalty provision for attempted manslaughter, the trial court stated, “Now let me tell you exactly what your sentence is going to be, if you enter this plea. It’s going to be just what your attorney told you it will be. It will be twenty (20) years in the Louisiana Department of Corrections, do you understand that?” The Defendant stated that he understood the penalty. The Defendant was, in fact, sentenced to twenty (20) years at hard labor. Finally, when asked if he felt all the elements of attempted manslaughter were present, the Defendant’s attorney responded, ‘Tes, Your Honor.”

Furthermore, the Defendant benefitted substantially from his plea. His sentencing exposure was reduced from a possible sentence of ninety-nine (99) years for armed robbery and ten years for aggravated battery to twenty (20) years for attempted manslaughter. As stated earlier, the Defendant received twenty (20) years at hard labor. For the foregoing reasons, the Defendant was not prejudiced by the State’s failure to amend the bill of information, and such error should be considered harmless.

ASSIGNMENTS OF ERROR NOS. 1, 2, & 3

In his assignments of error, the Defendant contends that the trial court erred when it sentenced the Defendant to twenty years. Specifically, he argues that before sentencing, a pre-sentence investigation should have been conducted and that the sentence imposed was excessive and in contravention to the Sentencing Guidelines in effect at the time. He argues that because he was a first time offender and, because |sthere is no evidence in the record as to why this particular sentence was imposed, the sentence was excessive.

The Defendant does not deny that he committed the offense. Rather, the Defendant asserts that the sentence of twenty years imposed by the trial court, was excessive and that by not obtaining a pre-sentence investigation, the sentence was inappropriate. However, because the Defendant in this case was told exactly what his sentence would be prior to pleading guilty, and he knowingly and intelligently agreed to that sentence, he is unable to appeal this sentence pursuant to La.Code Crim.P. art. 881.2.

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Related

State v. Price
461 So. 2d 503 (Louisiana Court of Appeal, 1984)
State v. Bell
412 So. 2d 1335 (Supreme Court of Louisiana, 1982)
State v. Barclay
591 So. 2d 1178 (Louisiana Court of Appeal, 1991)
State v. Young
680 So. 2d 1171 (Supreme Court of Louisiana, 1996)
State v. Curry
400 So. 2d 614 (Supreme Court of Louisiana, 1981)
State v. Watkins
700 So. 2d 1172 (Louisiana Court of Appeal, 1997)
State v. Rito
700 So. 2d 1169 (Louisiana Court of Appeal, 1997)

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Bluebook (online)
721 So. 2d 998, 98 La.App. 3 Cir. 663, 1998 La. App. LEXIS 2991, 1998 WL 749333, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-silvie-lactapp-1998.