133 So. 3d 250
La. Ct. App.2014Background
- Defendant Dominick charged by bill of information in 139 counts of pornography involving juveniles (La. R.S. 14:81.1).
- Plea entered: guilty pleas to all counts with an agreed ten-year sentence per count, to run concurrently, on March 13, 2012.
- Motion for downward departure from the agreed ten-year sentence was denied; formal sentencing followed August 8, 2012.
- Trial court sentenced to ten years on each count, concurrent with all other sentences, with credit for time served.
- Appeal challenges the denial of downward departure and the court’s handling of sentencing; court also notes a sentencing error patent regarding a missing mandatory fine.
- Court remands for imposition of the statutorily mandated fine; otherwise conviction and sentence affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is the downward-departure denial an abuse of discretion? | Dominick argues mitigating factors after plea warrant downward departure. | Dominick contends new mitigating evidence justifies reducing the agreed sentence. | No reversible error; denial affirmed. |
| Must the mandatory fine under La. R.S. 14:81.1(E)(1)(a) be imposed? | N/A (State) | N/A (Defendant) | Remanded for imposition of the mandatory fine. |
| Does the plea agreement bar appellate review of the sentence? | State contends plea agreement precludes review. | Dominick asserts review should be limited; but evidence shows agreement to ten years. | Court treats issue as non-jurisdictional and permits limited review as to the sentencing issue presented. |
Key Cases Cited
- State v. Wyatt, 83 So.3d 131 (La.App. 4 Cir. 2011) (implied term restrictions from statute in sentencing conveyed by record)
- State v. Hart, 80 So.3d 25 (La.App. 4 Cir. 2011) (mandatory fine must be imposed; remand for imposition)
- State v. Williams, 859 So.2d 751 (La.App. 4 Cir. 2003) (statutory restrictions in sentencing apply when not stated on record)
- State v. Horton, 962 So.2d 459 (La.App. 2 Cir. 2007) (possession of child pornography may be inadvertent; relevant to mitigation/intent discussion)
- State v. Pete, 112 So.3d 353 (La.App. 4 Cir. 2013) (unqualified guilty plea waives non-jurisdictional defects; limits review)
- State v. Sellers, 902 So.2d 418 (La.App. 4 Cir. 2005) (non-jurisdictional defects reviewed under Boykin-based waiver principle)