State v. Wiggins

139 So. 3d 1, 2013 La.App. 1 Cir. 0649, 2014 La. App. LEXIS 213, 2014 WL 685563
CourtLouisiana Court of Appeal
DecidedJanuary 31, 2014
DocketNo. 2013-KA-0649
StatusPublished
Cited by5 cases

This text of 139 So. 3d 1 (State v. Wiggins) 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. Wiggins, 139 So. 3d 1, 2013 La.App. 1 Cir. 0649, 2014 La. App. LEXIS 213, 2014 WL 685563 (La. Ct. App. 2014).

Opinion

DRAKE, J.

The defendant, Michael Wiggins, was charged by bill of information on count one with attempted second degree murder and on count two with possession of a firearm or carrying a concealed weapon by a convicted felon, in violation of Louisiana Revised Statutes 14:27, 14:30.1, and 14:95.1. The defendant originally pled not guilty, but later withdrew that plea and pled guilty as charged on both counts. The defendant was sentenced to forty years imprisonment at hard labor, without the benefit of probation, parole, or suspension of sentence on count one, and was sentenced to twenty years imprisonment at hard labor, without the benefit of probation, parole, or suspension of sentence on [3]*3count two.1 The trial court ordered that the sentences be served concurrently. The defendant now appeals, assigning error to the constitutionality of the forty-year sentence imposed on count one, to the effectiveness of counsel for failure to file a motion to reconsider sentence, and to the constitutionality of Louisiana Revised Statutes 14:95.1.2 For the following reasons, we affirm the convictions and sentences.

STATEMENT OF FACTS

During the Boykin examination,3 the State submitted the facts as elicited during the preliminary examination hearing as the basis for the plea. The | ofollowing facts were presented at the hearing on the motion for preliminary examination. On November 22, 2010, Sergeant Clarence MeGarner of the Baton Rouge Police Department responded to the scene of a shooting at a residence. After arriving at the scene, Sergeant MeGarner was advised that the defendant and the victim, Kevin White, had a dispute over cigarettes prior to the shooting. After the gunfire, a witness observed the defendant running down the street from the scene of the shooting carrying a long black handgun. Sergeant MeGarner created a photographic lineup based on the witness’s statements. While at Our Lady of the Lake Hospital in IGU, though he was unable to speak, the victim was able to identify the defendant by nodding his head to signal his selection of the photograph of the defendant from the photographic lineup. During a subsequent interview prior to the hearing, the victim gave a statement again identifying the defendant as the shooter and describing the argument that started when White tried to take one of the defendant’s cigarettes. According to the record, the defendant has a prior conviction of simple burglary of - an inhabited dwelling.

ASSIGNMENTS OF ERROR ONE AND TWO

In his first assignment of error, the defendant contends that the trial court failed to state reasons for the sentence and did not consider the individual facts and circumstances of this case. The defendant concludes that a sentence of forty years, without the benefit of probation, parole, or suspension of sentence, is unconstitutionally excessive in this case. In the second [4]*4assignment of error, the defendant contends that his trial counsel’s failure to file a motion to reconsider sentence constitutes ineffective assistance of counsel in the event that review of the sentence is procedurally barred on appeal. The defendant argues that but for counsel’s failure to object, the sentencing would have been changed below or on |4appeal, maintaining that the forty-year sentence is disproportionate to the harm done and shocks one’s sense of justice. Contending his trial counsel’s deficient performance rendered the proceeding fundamentally unfair and that he was prejudiced as a result, the defendant argues that a showing of ineffective assistance of counsel has been made. The defendant specifically focuses on the forty-year sentence imposed on count one, and is not challenging the twenty-year sentence imposed on count two which, as noted above, was ordered to be served concurrently.

A review of the transcript of the defendant’s guilty plea indicates the defendant seeks review of a sentence imposed in conformity with a plea agreement set forth in the record at the time of the plea. The term of forty years in exchange for the State’s waiver of the habitual offender allegations is specifically set forth in the record before the trial court’s acceptance of the guilty plea. The trial court noted that the sentence was being imposed in accordance with that agreement. A defendant cannot appeal or seek review of a sentence imposed in conformity with a plea agreement that was set forth in the record at the time of the plea. La.C.Cr.P. art. 881.2(A)(2); see State v. Young, 96-0195 (La.10/15/96), 680 So.2d 1171, 1175. Moreover, where a specific sentence has been agreed to as a consequence of a plea bargain, there is no need for the trial court to comply with Louisiana Code of Criminal Procedure article 894.1(C). State v. Mareno, 530 So.2d 593, 601 (La.App. 1st Cir.), writ denied, 533 So.2d 354 (La.1988). Therefore, the fact that defense counsel did not move for reconsideration of sentence does not constitute deficient performance. Thus, assignments of error one and two are without merit.

ASSIGNMENT OF ERROR THREE

In the final assignment of error, the defendant argues that Louisiana Revised Statutes 14:95.1 is unconstitutional on its face, in light of the strict scrutiny mandated by the amended version of Louisiana Constitution article I, section 11. IsThe defendant specifically contends that Louisiana Revised Statutes 14:95.1 cannot pass strict scrutiny review because it is not narrowly tailored to achieve a compelling government interest, and it is not the least restrictive means of achieving its purported public safety interest. The defendant further argues that Louisiana Revised Statutes 14:95.1 applies to a broad range of felony convictions without reason or discretion, specifically noting that some of the felonies have at best an attenuated connection to firearm possession or use. Finally, the defendant contends that Louisiana Constitution article I, section 11 demands a less restrictive procedural application, such as allowing convicted felons to argue for the restoration of their gun rights at a hearing following the completion of their sentences.

Louisiana Revised Statutes 14:95.1, provides, in pertinent part:

A. It is unlawful for any person who has been convicted of a crime of violence as defined in R.S. 14:2(B) which is a felony or simple burglary, burglary of a pharmacy, burglary of an inhabited dwelling, unauthorized entry of an inhabited dwelling, felony illegal use of weapons or dangerous instrumentalities, manufacture or possession of a delayed action incendiary device, manufacture [5]*5or possession of a bomb, or possession of a firearm while in the possession of or during the sale or distribution of a controlled dangerous substance, or any violation of the Uniform Controlled Dangerous Substances Law which is a felony, or any crime which is defined as a sex offense in R.S. 15:541, or any crime defined as an attempt to commit one of the above-enumerated offenses under the laws of this state, or who has been convicted under the laws of any other state or of the United States or of any foreign government or country of a crime which, if committed in this state, would be one of the above-enumerated crimes, to possess a firearm or carry a concealed weapon.
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C.

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Cite This Page — Counsel Stack

Bluebook (online)
139 So. 3d 1, 2013 La.App. 1 Cir. 0649, 2014 La. App. LEXIS 213, 2014 WL 685563, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-wiggins-lactapp-2014.