State v. Vance

36 So. 3d 1152, 2010 La. App. LEXIS 731, 2010 WL 1981043
CourtLouisiana Court of Appeal
DecidedMay 19, 2010
Docket45,250-KA
StatusPublished
Cited by6 cases

This text of 36 So. 3d 1152 (State v. Vance) 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. Vance, 36 So. 3d 1152, 2010 La. App. LEXIS 731, 2010 WL 1981043 (La. Ct. App. 2010).

Opinion

WILLIAMS, J.

| Jfhe defendant, Leonard Vance, Jr., was charged by bill of information with two counts of aggravated second degree battery, in violation of LSA-R.S. 14:34.7. In accordance with a plea bargain, he pled guilty to one count of aggravated battery, a violation of LSA-R.S. 14:34. The defendant was sentenced to serve seven years in prison at hard labor. For the reasons that follow, we affirm the defendant’s conviction and sentence.

FACTS

The facts of this matter are not in dispute. On January 3, 2009, the defendant and his brother, Aaron Vance, attacked Luther Burrell and Shawn Smith with a wooden club. The attack occurred at the home of Aaron Vance. Both victims suffered serious injuries, and at least one of the victims was rendered unconscious. 1 The defendant and Aaron Vance were arrested at the scene.

The defendant was charged with two counts of aggravated second degree battery. He pled guilty to one count of aggravated battery in exchange for a recommendation of a seven-year prison sentencing cap. On September 1, 2009, the defendant was sentenced to serve seven years in prison at hard labor. The trial court denied his motion to reconsider sentence. The defendant appeals.

DISCUSSION

The defendant contends the sentence imposed was excessive. He argues that he would have received a lesser sentence had he been allowed to | .¿deny or explain the allegations against him.

A 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. LSA-C.Cr.P. art. 881.2(A)(2). Where a specific sentence or a sentencing cap has been agreed upon as a consequence of a plea bargain, a sentence imposed within the agreed range cannot be appealed as excessive, and there is no need for the trial judge to give reasons for the sentence as normally required by LSA-C.Cr.P. art. 894.1; State v. Young, 96-0195 (La.10/15/96), 680 So.2d 1171; State v. Foster, 42,212 (La.App.2d Cir.8/15/07), 962 So.2d 1214.

The maximum sentence for aggravated battery is a fine in the amount of $5,000, ten years in prison, with or without hard labor, or both. LSA-R.S. 14:34. In the instant case, the record reveals that the defendant and the state entered into an agreement which provided that the maximum sentence would be imprisonment for not more than seven years. The terms of *1155 the plea agreement were set forth in the record at the time the defendant’s guilty plea was entered. The defendant was properly advised of his constitutional rights and of the minimum and maximum sentences that could be imposed for the charged offense. The defendant expressed his understanding of the agreement and voluntarily entered his guilty plea in accordance with that agreement. The trial court sentenced the defendant to serve seven years in prison at hard labor, pursuant to the plea agreement. Therefore, the defendant is not entitled to appeal the sentence.

However, this court has allowed a defendant’s sentence to be | .reviewed in cases in which the defendant is informed of the right to appeal by the trial judge during the plea colloquy, even though there was an agreed upon sentence or sentencing cap. This court reasoned that to do otherwise might raise the issue of whether the advisement of the right to appeal had any effect on the voluntariness of the plea. See, State v. Scott, 44,509 (La.App.2d Cir.8/19/09), 17 So.3d 1058; State v. Fizer, 43,271 (La.App.2d Cir.6/4/08), 986 So.2d 243; State v. Foster, supra.

In the instant case, during the guilty plea colloquy, the trial court specifically informed the defendant that he had a right to an appeal. Because the court mentioned the right to appeal during the plea colloquy, the possibility exists that the mention of an appeal may have influenced the defendant’s guilty plea. Therefore, out of an abundance of caution, we will review the defendant’s excessive sentence claim.

The record herein shows that the trial court took cognizance of the criteria set forth in LSA-C.Cr.P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 433 So.2d 688 (La.1983); State v. Lathan, 41,855 (La.App.2d Cir.2/28/07), 953 So.2d 890, writ denied, 2007-0805 (La.3/28/08), 978 So.2d 297. The articulation of the factual basis for a sentence is the goal of LSA-C.Cr.P. art. 894.1, not rigid or mechanical compliance with its provisions. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is unnecessary even where there has not been full compliance with LSA-C.Cr.P. art. 894.1. State v. Lanclos, 419 So.2d 475 (La.1982); State v. Swayzer, 43,350 (La.App.2d Cir.8/13/08), 989 So.2d 267. The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La.1981); State v. Ates, 43,327 (La.App.2d Cir.8/13/08), 989 So.2d 259. There is no requirement that specific matters be given any particular weight at sentencing. State v. Shumaker, 41,547 (La.App.2d Cir.12/13/06), 945 So.2d 277, writ denied, 2007-0144 (La.9/28/07), 964 So.2d 351.

Second, a sentence violates La. Const, art. 1, § 20 if it is grossly out of proportion to the seriousness of the offense or nothing more than a purposeless and needless infliction of pain and suffering. State v. Smith, 2001-2574 (La.1/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonanno, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 2001-0467 (La.1/15/02), 805 So.2d 166; State v. Lobato, 603 So.2d 739 (La.1992); State v. Robinson, 40,983 (La.App.2d Cir.1/24/07), 948 So.2d 379; State *1156 v. Bradford, 29,519 (La.App.2d Cir.4/2/97), 691 So.2d 864.

The trial judge is given a wide discretion in the imposition of sentences within the statutory limits, and the sentence imposed by him should not be set aside as excessive in the absence of a manifest, abuse of his discretion. State v. Williams, 2003-3514 (La.12/13/04), 893 So.2d 7; State v. Thompson, 2002-0333 (La.4/9/03), 842 So.2d 330; State v. Hardy, 39,233 (La.App.2d Cir.1/26/05), 892 So.2d 710. On review, an appellate court does not determine whether another sentence may have been more appropriate, but whether the trial court abused its discretion. State v. Cook, 95-2784 (La.5/31/96), 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).

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Bluebook (online)
36 So. 3d 1152, 2010 La. App. LEXIS 731, 2010 WL 1981043, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-vance-lactapp-2010.