STATE of Louisiana v. Dwayne CROSS.
No. 06-KA-866.
Court of Appeal of Louisiana, Fifth Circuit.
April 11, 2007.
958 So. 2d 28
CLARENCE E. MCMANUS, Judge.
Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS, and FREDERICKA HOMBERG WICKER.
Holli A. Herrle-Castillo, Attorney at Law, Marrero, Louisiana, for Defendant/Appellant.
CLARENCE E. MCMANUS, Judge.
The defendant, Dwayne Cross, pled guilty to distribution of cocaine, a violation of
The defendant failed to report as ordered, and the State requested a contempt hearing. At the hearing, after the defendant stipulated to the contempt charge, the trial judge made the defendant‘s sentence executory. On the same day, the State exercised its right under the plea agreement (in light of the defendant‘s failure to report as ordered) to file a habitual offender bill alleging that the defendant was a second felony offender. The defendant admitted to the allegations in the multiple offender bill and acknowledged, in both the colloquy before the judge and in the “Waiver of Rights — Plea of Guilty Multiple Offender — LA R.S. 15:529.1” that he was subject to a sentencing range of fifteen to sixty years at hard labor, and that his sentence would be twenty years hard labor without benefit of probation or suspension of sentence. Thereafter, the trial judge found the defendant to be a second felony offender. The previous sentence was vacated, and the trial judge sentenced the defendant to twenty years at hard labor. The first two years of the defendant‘s sentence were ordered to be served without benefit of parole, probation, or suspension of sentence, and the remaining eighteen years to be served without benefit of probation or suspension of sentence. The defendant now appeals.
During the plea colloquy, the defendant acknowledged that he was pleading guilty to one count of distribution of Cocaine occurring January, 5, 2005. The State informed the court that the defendant distributed one rock of cocaine to an undercover officer in exchange for twenty dollars.
In this appeal, the defendant alleges that the sentence imposed is excessive. The defendant argues that the trial court failed to consider the criteria in
The State relies on State v. Stewart, 03-976 (La.App. 5 Cir. 12/30/03), 862 So.2d 1271, in arguing that the defendant is precluded from appealing his sentence as excessive, because his sentence was imposed in conformity with his plea agreement. Additionally, the State argues that the defendant‘s sentence is not excessive, because it falls within the statutory range of fifteen to sixty years. The State claims that the defendant did not receive the imposed sentence as a punitive measure; rather, it was imposed because of the defendant‘s violent history involving children.
In the present case, the defendant argues that his sentence is excessive. For the first time on appeal, the defendant claims that the trial court failed to follow the sentencing guidelines in
Before the defendant‘s admission of guilt to the multiple offender bill was accepted, the defendant was informed during the colloquy with the trial judge and in the waiver of rights form that his sentence would be twenty years. In addition, the defendant signed and initialed the waiver of rights form in conjunction with the admission to the multiple bill. Also, the defendant initialed by the sentence he would receive and signed the bottom of the form along with his attorney and the trial judge. Since, the defendant‘s sentence was imposed in conformity with a plea agreement, which was set forth in the record at the time of the plea, the defendant is precluded from raising a claim of excessiveness on appeal. State v. Stewart, supra; State v. Dixon, supra. Accordingly, we find no merit to defendant‘s allegation that his sentence is excessive.
Next, the defendant requests an error patent review. This Court routinely reviews the record for errors patent in accordance with
For the above discussed reasons, the defendant‘s conviction and sentence are affirmed.
AFFIRMED.