State v. Underwood

724 So. 2d 859, 98 La.App. 3 Cir. 363, 1998 La. App. LEXIS 3716, 1998 WL 901777
CourtLouisiana Court of Appeal
DecidedDecember 23, 1998
DocketNo. CR98-363
StatusPublished
Cited by1 cases

This text of 724 So. 2d 859 (State v. Underwood) 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. Underwood, 724 So. 2d 859, 98 La.App. 3 Cir. 363, 1998 La. App. LEXIS 3716, 1998 WL 901777 (La. Ct. App. 1998).

Opinions

liWO OP ARP, Judge.

Oscar Ray Underwood, the defendant, alleges that his fifteen-year sentence at hard labor for committing aggravated burglary is excessive. For the following reasons, we set aside the sentence and remand for resentenc-ing.

FACTS

On January 7, 1997, the defendant entered the residence of Gertrude Cornish without authorization. Attempting to force her to resume a “relationship” with him, he held a butter knife to the stomach of her eight-year-old son. He then took the keys to her car after threatening her.

On February 27, 1997, he was charged by bill of information with one count of unauthorized use of a movable, one count of unauthorized entry of an inhabited dwelling, and one count of second degree kidnaping. On that date, he entered a plea of not guilty to the charges. An amended bill of information was filed, containing the additional charge of aggravated burglary. That same date, he withdrew his not guilty plea and entered a plea of guilty to the charge of aggravated burglary. The remaining ^charges were dismissed. He was sentenced to serve fifteen years at hard labor. He now appeals this sentence alleging it was excessive.

LAW

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 one error patent. The minutes of sentencing incorrectly state that the defendant was sentenced to three years at hard labor, when the defendant was sentenced to serve fifteen years at hard labor. Thus, we instruct the court below to [860]*860correct the minutes to reflect the correct sentence.

The Sentence

In addition to complaining that the sentence was excessive, the defendant contends that the trial court failed to articulate sufficient reasons to justify the sentence, particularly in light of certain mitigating factors, specifically, his alleged mental illness.

The state agreed to dismiss all the remaining charges against him in exchange for his guilty plea to the charge of aggravated burglary. La.Code Crim.P. art. 881.2(A)(2) provides: “The 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.” The defendant acknowledges awareness of the supreme court’s holding in State v. Young, 96-0195 (La.10/15/96); 680 So.2d 1171. In that case, the court found that “the legislature intended La.C.Cr.P. art. 881.2(A)(2) to apply to plea agreements involving both specific sentences and sentencing caps.” Id. at 1174. However, the defendant claims that Young is not applicable to the present ease since the parties did not actually agree upon a specific sentence or a sentencing cap, and, citing State v. Planco, 96-812 (La.App. 3 Cir. 3/26/97); 692 So.2d 666, he notes that we have held that a defendant has the right to seek review of a sentence imposed even pursuant to a sentencing cap when he reserves his right to appeal the sentence as excessive. Finally, he argues even if this court finds that Young is applicable, since other counts in the bill were dismissed, this court should, nevertheless, review the sentence because he was not advised that he was waiving his right to appeal.

bln opposition, the state points out that the defendant did not reseñe his right to seek review of his sentence for excessiveness. There is no authority, jurisprudentially or otherwise, for requiring the trial court to inform a defendant, who is sentenced on a reduced charge pursuant to a plea agreement, that he, thereby, waives his right to attack the sentence imposed on appeal for excessiveness.

In State v. Jordan, 98-101 (La.App. 3 Cir. 6/3/98), 716 So.2d 36, this court addressed the applicability of Article 881.2(A)(2) to a situation factually similar to the present case. In Jordan, the defendant was originally charged with three offenses — molestation of a juvenile, aggravated oral sexual battery, and aggravated crime against nature. The aggravated crime against nature charge was reduced to indecent behavior with a juvenile. The defendant entered a plea of guilty to the charge of indecent behavior with a juvenile and the remaining charges were dismissed. The defendant was sentenced to seven years at hard labor, the maximum sentence for indecent behavior with a juvenile. Addressing whether or not Article 881.2(A)(2) precluded review of the defendant’s sentence, we stated:

In view of this reduction of the charges, the one remaining charge may be seen to operate as a sentencing cap as it reduced the defendant’s exposure from a total possible sentence of fifty years to a possible sentence of seven years, the statutory maximum for the charge to which he pled guilty. Even further, the parties jointly agreed that the State would recommend that the defendant be sentenced to three years. This portion of the agreement was clearly fulfilled as the defendant pled guilty to a reduced charge, the State made its recommendation, and the remaining charges were dismissed. Thus, each of the parties complied with the plea agreement. However, the court did not accept the recommended sentence, as was done in the above-cited cases, but, rather, sentenced the defendant to the statutory maximum of seven years at hard labor for a conviction under La.R.S. 14:81. Therefore, under existing jurisprudence it is unclear whether Article 881.2 applies.

(Footnote omitted.) Id. at 38.

The court in Jordan stated: “In an instance where the court sentences the defendant in accordance with the parties’ recommendation for a specific sentence or a sentencing range, it is clear that review of the imposed sentence is precluded. See (citing) State v. Watkins, 97-364 (La.App. 3 Cir. 10/8/97); 700 So.2d 1172; State v. Lar-[861]*861oux, 93-719 (La.App. 3 Cir. 2/2/94); 631 So.2d 730, writ denied, 94-0577 (La.6/3/94); 637 So.2d 498; State v. Lewis, 633 So.2d 315 (La.App. 1 Cir.1993).” Jordan, 716 So.2d at 38. However, the present ease is distinguishable from the cases cited in Jordan. The defendant, in this case, entered his plea to the reduced offense without extracting any promise from the state that it would recommend imposition of a specific sentence or sentencing cap.

Further addressing the possible application of article 881.2(A)(2), we said in Jordan:

A sentence imposed in conformity with the plea agreement would, as previously stated, preclude review on appeal. However, if we were to determine that the defendant was not sentenced in conformity with the plea agreement, it follows that review would be permissible under Article 881.2(A)(2), but such a sentence would be illegal and, thus, would be vacated. A vacated sentence, obviously, could not be reviewed for excessiveness.
Our review of the relevant jurisprudence does not indicate that this exact issue has been addressed by a court of this state. However, in State v. Goodman, 96-376 (La.App. 3 Cir. 11/6/96); 684 So.2d 58, a panel of this court concluded that Article 881.2(A)(2) applied only in circumstances where a specific sentence or a specific sentencing range was agreed upon and not where a defendant merely pled guilty to a reduced offense. This court reasoned as follows:

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State v. Franklin
803 So. 2d 1057 (Louisiana Court of Appeal, 2001)

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Bluebook (online)
724 So. 2d 859, 98 La.App. 3 Cir. 363, 1998 La. App. LEXIS 3716, 1998 WL 901777, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-underwood-lactapp-1998.