State v. ColeState v. Cole
- Reporters:
- , , ,
- Before:
- Ciaccio
Lead Opinion
Defendant, Guy Cole, was charged by bill of information with theft of goods valued at $100 to $500, a violation of
The Court accepts the plea as willful and voluntarily made, signs the plea document, and makes it part of the record. Mr. Cole, in your ease, because you do have this prior conviction, the Court is not permitted to place you on probation, although the prior conviction I do not consider to be a very serious one. In fact, I consider it to be a misdemeanor, at least in the eyes of this Court.
But, in any event, it is there. But what I’ve done, what I’ve promised your attorney is this: The statute, under which you’re charged, provides that the Court can sentence you to imprisonment for up to two years or assess you a fine of up to $2,000. And the Court does not necessarily have to impose a period of imprisonment in your case, and I will opt to do that.
But as I told Ms. Turissini, what I will do is, I will be fining you $500. But the only way that I can insure that that’s going to happen, since I cannot put you on probation, is defer your sentence. (Boykin Transcript, 8/26/93, pp. 4, 5).
The trial judge then deferred sentencing the defendant to September 30, 1993. On September 30, 1993 the defendant admitted to a multiple bill of information filed by the State. The following excerpt from the multiple bill and sentencing hearing transcript sets forth the sentence and the trial judge’s findings and reasons therefore.
The Court - finds that in this case Mr. Cole has acknowledged that he is a multiple offender and the Court will find that, in fact, it has been proven. Under Shelton, the Court will also make a finding that the previous offense in this matter, number one, took place may the 17th, 1989, a little bit over four years ago. 14:89, in the sentencing guidelines, is the least offensive felony listed and, in fact, it’s ^tantamount to a misdemeanor. This is also reflected by the fact that in 1989, when Mr. Cole was sentenced by Judge Winsberg, the sentence reflects a sentences (sic) that would, in fact, be a misdemeanor offense.
In the instant case, Mr. Cole is charged with shoplifting. The Court sees no purpose in finding Mr. Cole a multiple offender and sentencing him to the minimum statutory requirements other than for the pure pleasure of inflicting pain, which gives this Court no pleasure. Therefore, it will be the sentence of the Court, Mr. Cole that you’re ordered to pay a fine of five hundred dollars or in lieu thereof that you’re ordered to serve 90 days in parish prison. You will have until the 2nd of November to accomplish this. Please pick up a subpoena to return here. State?
The State objected to the sentence and noted its intent to file an appeal.
On October 5, 1993, the State filed a motion to correct an illegal sentence which was granted. The trial judge resentenced defendant under the Habitual Offender Law to serve one year in the Department of Corrections. Defendant appealed.
*1256A review of the record for errors patent reveals none.
Defendant argues that the trial court erred in granting the State’s motion to correct an illegal sentence. In his appellate brief defendant argues that the Habitual Offender Law,
Defendant plead guilty to theft, of goods valued at $100 to $500 dollars. The penalty for the offense as set forth in
When the misappropriation or taking amounts to a value of one hundred dollars or more, but less than a value of five hundred dollars, the offender shall be imprisoned, with or without hard labor, for not more than two years, or may be fined not more than two thousand dollars, or both.
Had the defendant been a first offender the $500 fine imposed by the trial court would have been legal. The State, however, filed a multiple bill to which the defendant plead guilty. Under these circumstances, the trial judge had to sentence the defendant pursuant to the Habitual Offender Law,
The question then arises as to whether the $500.00 fine imposed by the original sentencing judge is a legal sentence under the Habitual Offender Law. In other words, does the Habitual Offender Law allow the trial court to impose a fine in lieu of jail time for second felony offenders where the penalty provision for the underlying conviction provides for either the imposition of a fine, or the imposition of a determinate sentence, or both? We hold that it does not.
LSA-R.S. 15:529.1(D)(3) provides in part:
When the judge finds that he has been convicted of a prior felony or felonies or adjudicated a delinquent as authorized in Subsection A, or if he acknowledges or confesses in open court, after being duly cautioned as to his rights, that he has been so convicted or adjudicated, the court shall sentence | ¿him to the punishment prescribed in this section, and shall vacate the previous sentence if already imposed, deducting from the new sentence the time actually served under the sentence so vacated. ...
Section (D)(3) clearly mandates that the trial court sentence second, third and fourth felony offenders in accordance with the Sections (A)(1), (A)(2), and (A)(3) of the statute.
LSA-R.S. 15:529.1(A)(l)(a) provides:
If the second felony is such that upon a first conviction the offender would be punishable by imprisonment for any term less than his natural life, then the sentence to imprisonment shall be for a determinate term not less than one-half the longest term and not more than twice the longest term prescribed for a first conviction. (Emphasis ours).
The present Habitual Offender Law was enacted in 1956. See Acts 1956, No. 312. Prior to 1956, Acts 1942, No. 45, Section 1(1) set forth the penalty for second felony offenders and provided:
(1) If the second felony is such that, upon a first conviction, the offender would be punishable by imprisonment for any term less than his natural life, then such person must be sentenced to imprisonment for a determinate term not less than one-third *1257the longest term and not more than twice the longest term prescribed for a first conviction;
(emphasis added). The antecedent to Acts 1942, No. 45 also required a mandatory jail sentence for second felony offenders. See Acts 1928, No. 15.
The enactment of the 1956 law made changes in the penalty clauses of the former statute. Act No. 312, Sections 2 and 3 substituted the language “then the person shall be sentenced to ...” in place of “then such person must be sentenced to....” as used in Sections 2 and 3 of the 1942 statute. Also, Act. No. 312, Section 1 replaced the phrase “then such person must be sentenced to imprisonment....” in Section 1 of the 1942 statute with the 15phrase “then the sentence to imprisonment shall be....”
The State argues, and we agree, that the 1956 changes in the penalty provisions were merely cosmetic and not substantive. There is no indication in the Historical and Statutory Notes following
The problem arises with the trial court’s correcting the illegal sentence, however, because defendant’s original sentence was based upon a plea bargain agreement with the trial court.
When a plea rests in any significant degree on a promise or agreement of the prosecutor so that it can be said to be part of the inducement or consideration, such promise must be fulfilled. Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971); State v. Redfearn, 441 So.2d 200 (La.1983). Likewise, if the record reflects that the guilty plea is made in reliance upon an agreement with the trial judge the promise must be fulfilled or the defendant must be allowed to withdraw his guilty plea.
In the instant case the State did not object to the defendant’s pleading guilty, however, it did object to the sentence imposed by the trial judge after ^accepting the defendant’s plea. Nonetheless, the record clearly indicates that the defendant entered a guilty plea with the understanding that he would only be fined $500.00 and not sentenced to a period of imprisonment. When the State filed the motion to correct an illegal sentence the new trial judge should have allowed the defendant to withdraw his guilty plea before imposing a new sentence of imprisonment.
Accordingly, defendant’s sentence of February 8, 1994 is vacated and the case’ is remanded to allow the defendant the opportunity to withdraw his guilty plea.
VACATED AND REMANDED.
LANDRIEU, J., concurs in part; dissents in part.
Concurrence in Part
concurring in part, dissenting in part.
I respectfully dissent. I would vacate the sentence but reinstate the original sentence. The defendant, Guy Cole, argues that in light of State v. Dorthey, 623 So.2d 1276 (La.1993), his original sentence of a $500 fine was legal. His argument is supported by the record.
At sentencing, the judge stated that “the court sees no purpose in finding Mr. Cole a multiple offender and sentencing him to the minimum statutory requirements other than for the pure pleasure of inflicting pain-” In deciding not to imprison Cole, even though he had been adjudged a second offender, it is clear that the judge exercised *1258the discretion granted to him by the Dorthey decision (which was rendered on September 10, 1993, twenty days before Cole was sentenced). Further, the judge’s decision to impose a fine rather than a term of imprisonment was undeniably correct under the circumstances. Cole’s conviction for a crime against nature four years prior to his guilty plea to shoplifting hardly makes him a career criminal. After sentencing, however, the judge (who was sitting ad hoc) was replaced. A new judge, when faced with the State’s motion to reconsider the sentence because it violated
Because the original sentencing judge found imprisonment under the enhancement statute to be constitutionally excessive with respect to this defendant and that finding is supported by the record, I would hold that the first sentence was legal. Since it had become executory,1 the sentence could not be amended or vacated by a successor judge. 2Accordingly, the sentence of February 7, 1994, should be vacated and the sentence of September 30, 1993, reinstated.
There is another issue, however. This court sua sponte raised the issue of whether
Contrary to the State’s argument and the position adopted by the majority, I believe that the legislative history supports the position (as indicated by the clear language of the statute) that the legislature intended to treat second offenders differently. Prior to 1956 the language of the Multiple Offender Statute was consistent with respect to second, third, and fourth offenders. The statute provided with respect to each class “then the person must be sentenced to imprisonment-” Acts 1942, No. 45 (emphasis added). In 1956, at a time when crime was not the threat that it is today, the legislature amended the statute and differentiated the language applicable to second offenders from that of third and fourth offenders. Sections 2 and 3, which pertain to third and fourth offenders, were changed to “the person shall be sentenced to_” Section 1 which pertains to second offenders was, |3by contrast, changed to “then the sentence to imprison*1259ment shall be” If, as the State argues and the majority agrees, this change was nothing more than cosmetic, then the legislature needs a new plastic surgeon.
This is not the only instance where the legislature with good reason has chosen to treat second offenders differently from third and fourth offenders. La.Code Crim.Proc. Ann. art. 893 (West Supp.1994) provides for the suspension of sentences for certain second offenses, but not for third and fourth offenses. Under certain circumstances,
Clearly, we cannot use current attitudes to judge legislative intent in 1956 when the world was a safer place and judges were held in greater respect. We can, however, give to the English language a normal reading. When read properly,
The majority finds comfort in the fact that the Historical and Statutory Notes following
Notes
. Although it is within the trial court’s discretion to amend or change a legal sentence prior to the beginning of execution of a legal sentence, it may not do so after the beginning of execution of the sentence. See La.Code Crim.Proc.Ann. art. 881(A) (West 1984) (emphasis added). In this case, the defendant paid $250 toward the fíne of $500 and the execution of the sentence had begun.