State v. Spencer

888 So. 2d 1128, 2004 WL 2806167
CourtLouisiana Court of Appeal
DecidedDecember 8, 2004
Docket04-857
StatusPublished
Cited by4 cases

This text of 888 So. 2d 1128 (State v. Spencer) 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. Spencer, 888 So. 2d 1128, 2004 WL 2806167 (La. Ct. App. 2004).

Opinion

888 So.2d 1128 (2004)

STATE of Louisiana
v.
Ronald SPENCER, Jr.

No. 04-857.

Court of Appeal of Louisiana, Third Circuit.

December 8, 2004.

*1129 J. Phillip Haney, District Attorney, New Iberia, LA, for Appellee, State of Louisiana.

Paula Corley Marx, Louisiana Appellate Project, Lafayette, LA, for Defendant/Appellant, Ronald Spencer, Jr.

Ronald Spencer, Jr., Newelton, LA, pro se.

Court composed of JOHN D. SAUNDERS, MARC T. AMY, and BILLY HOWARD EZELL, Judges.

AMY, Judge.

The defendant pled guilty to two counts of armed robbery as well as attempted armed robbery and theft in excess of five hundred dollars. He was sentenced to serve twenty years at hard labor on each of his convictions for armed robbery, fifteen years at hard labor on the conviction for attempted armed robbery, and five years at hard labor on the conviction for theft. All of the sentences were ordered to be served concurrently. The defendant appeals, asserting that the record fails to reflect a plea of guilty to one of the armed robbery charges and also fails to reflect the concurrent nature of the sentences imposed. The defendant further asserts that his sentences were constitutionally excessive. For the following reasons, we affirm and remand with instructions.

Factual and Procedural Background

According to the factual basis supplied by the State at the plea hearing, on August 10, 2002, the defendant, Ronald J. Spencer, Jr., and two others, Joseph Paul Anthony and Natrish O'Neil, robbed an O'Reilly's Auto Parts store. The defendant acted as a lookout and getaway driver while Mr. Anthony and Mr. O'Neil entered the store armed with dangerous weapons. The men took money from two employees, Leon Neazey and Harold Johnson, who were inside the store.

The factual basis presented by the State at the defendant's plea hearing further stated that on August 27, 2002, the same three men participated in a theft of money from an O'Reilly's Auto Parts store where Mr. O'Neil was an employee. The men faked a robbery, wherein Mr. O'Neil reported that he had been robbed while working at the store. In fact, however, he permitted the other men consensual entry and gave them an amount of money greater than five hundred dollars from the store, which they all shared.

The State's factual background further alleged that on September 12, 2002, the defendant, together with Arthur January and Joseph Paul Anthony, conspired to rob the Regents Bank. Again, the defendant acted as a getaway driver and dropped the two men off near the bank. Armed with dangerous weapons, the two men hid in a nearby field waiting for Laura Bodin, the bank's manager, to open the bank. The robbery was foiled when the men were scared off by a local farmer who was plowing the field. The defendant then picked up the men near the bank.

The defendant was charged by bill of information with two counts of armed robbery, violations of La.R.S. 14:64; one count of theft in violation of La.R.S. 14:67, and; one count of attempted armed robbery in violation of La.R.S. 14:27 and 14:64. He was arraigned on February 13, 2003. The defendant pled guilty as charged on April 10, 2003, in exchange for a recommendation that all of the sentences run concurrently.

The defendant was sentenced to twenty years at hard labor without the benefit of probation, parole or suspension of sentence on each of the two convictions of armed robbery, fifteen years at hard labor on the conviction for attempted armed robbery, *1130 and five years at hard labor on the conviction for theft. All of the sentences were ordered to be served concurrently. The defendant filed a motion to reconsider the sentences, which was denied in open court on January 7, 2004. The defendant was granted an out of time appeal on March 30, 2004, and now appeals, asserting the following as error:

1. The record fails to reflect a plea of guilty to Count 2, Armed Robbery of Harold Johnson; therefore, the conviction and sentence imposed thereto must be vacated.
2. The minutes fail to reflect the concurrent nature of the sentences imposed.
3. The trial court erred in imposing unconstitutionally harsh and excessive sentences for this remorseful non-violent first offender, with a limited role in the commission of the crimes.

The defendant also asserts as error in his pro se appellate brief that the trial court erred in imposing sentences that did not conform to his plea agreement. He asserts that the agreement guaranteed that he would receive a sentence of only one-half of the sentences that his co-defendants received.

Discussion

Errors Patent

In accordance with La.Code Crim.P. art. 920, the court reviews all appeals for errors patent on the face of the record. After reviewing the record, we find there are no errors that require correction.

Guilty plea

The defendant relies on the requirement of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), that a guilty plea contain an affirmative showing that it is made understandingly and voluntarily. He argues that his conviction and sentence on one of the armed robbery charges must be vacated because "[t]he record fails to reflect a plea of guilty to Count 2[.]"

The record reveals that during the guilty plea colloquy, wherein the trial court addressed the defendant, the following exchange took place:

Q: [By the Court]
Mr Duhe' [Assistant District Attorney] is telling me that you are charged as a principal to the commission of armed robbery on Leon Neazey on or about August 10th. How do you plead to that charge?
A: Guilty
Q: And on the same date, a principal to the armed robbery of Harold Johnson.
MR. DUHE':
And he is also a principal to the attempted armed robbery of Ms. Bodin who is the manager of Regents Bank.
Q: September 12th, 2002, attempted armed robbery as the principal of Laurie Bodin. How do you plead to that charge?
A: Guilty
Q: How do you plead to the charge of theft by misappropriation or taking of property belonging to O'Reilly's Auto Parts, in an amount greater than five hundred dollars?
A: Guilty.

We note that this portion of the record alone does reflect an absence of an explicit guilty plea by the defendant to count two of the indictment, which is the armed robbery of Harold Johnson. The State urges that "the failure of the transcript to capture Spencer's plea of guilty to the second count of principal to armed robbery is harmless error. The record overwhelmingly establishes Spencer's guilty plea to both counts."

*1131 The Louisiana Supreme Court has considered whether an "imperfect" guilty plea transcript can support a conviction. The court held that the entire record, without limitation to the transcript of the plea proceeding alone, may be considered in assessing whether a plea was intelligently and voluntarily entered into with full knowledge of its consequences. State ex rel. LeBlanc v. Henderson, 261 La. 315, 259 So.2d 557 (1972). The court disapproved of the requirement that a verbatim transcript of the colloquy appear in the record in order to uphold a conviction as intelligent and voluntary. Id.

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Bluebook (online)
888 So. 2d 1128, 2004 WL 2806167, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-spencer-lactapp-2004.