State v. EmersonState v. Emerson
- Reporters:
- ,
- Before:
- Whipple, Fitzsimmons, Downing
Gwendolyn K. Brown, Appellate Attorney, Baton Rouge, Counsel for Defendant/Appellant Jimmy Emerson, Jr.
DOWNING, J.
This is defendant‘s second appeal urging the excessiveness of a sentence imposed pursuant to a plea bargain agreement under which defendant pled guilty to a lesser offense and sentencing was left largely to the discretion оf the trial judge, subject to a cap.
PROCEDURAL HISTORY AND FACTS
The defendant, Jamie Emerson, Jr., was charged by grand jury indictment with the
Prior to a scheduled re-trial, defendant withdrew his plea of not guilty and pled guilty to manslaughter, a violation of
Defendant filed a motion to reconsider sentence,7 relying primarily upon excerpts from the original trial to bolster his argument that the sentence imposed was unduly harsh. He requested that the transcript from the trial be admitted into evidence in the sentencing proceeding, which request was granted.8 At the sentencing hearing, argument was made, but no witnesses were presented. The prosecutor made a brief statement, acknowledging that the State did not intend to get involved in the sentencing. A new judge assigned to the matter presided over the motion to reconsider sentence. He assured the parties that he was fully familiar with the trial transcript through his attempts to reconstruct it in compliance with orders of this court. After giving detailed oral and written reasons for judgment, the new trial judge amended defendant‘s sentence to delete the provision denying him the benefit of parole, probation, or suspension of sentence, but the sentence was otherwise left
Defendant appealed, insisting that the trial judge erred in imposing an excessive sentence and in relying on erroneous information that influenсed sentencing. This court affirmed defendant‘s conviction on appeal, but vacated his sentence and remanded for resentencing, finding merit in defendant‘s assertion that certain sentencing considerations werе based on misinformation.9 On remand, the trial judge corrected certain errors pointed out by this court, but again sentenced defendant to twenty-five years imprisonment at hard labor.10 The prosecutor made no comments during this sentencing hearing.
Defendant filed a motion to reconsider the sentence imposed pursuant to remand from this court, rearguing many of the same arguments made in the earlier proceeding.11 Another hearing wаs held and defendant, for the first time, introduced the testimony of witnesses in an attempt to obtain a downward revision of his sentence. The witnesses who testified had also testified at defendant‘s jury trial. Yashisha Williams testified that she witnessеd the altercation between the defendant and the victim. She admitted that at first it looked as though the two were playing. But toward the end, defendant was being hurt. She claimed that when defendant got loose, he ran into the nearby trailer owned by his aunt and the victim pursued him with a gun. Jermaine West testified that after defendant went inside to get a gun, the screen door was closed and locked. He claimed that the victim pulled it open and chargеd the defendant. He further claimed that he did not think defendant would intentionally endanger the residents of the trailer. Darryl West, a convicted felon who testified at the initial trial and a first cousin to Jermaine West, testified that he sаw Desmond Dunbar give the victim a gun. He did not testify to this information at defendant‘s jury trial, claiming that he was afraid to do so for fear of retaliation by Dunbar, who was then a co-defendant of his on an unrelated felony charge.
At the conclusion of the defendant‘s presentation, the prosecutor opined that the twenty-five year sentence earlier imposed was reasonable and that defendant was attempting to demonstratе that the homicide was justified as self-defense, even though he had pled guilty to manslaughter. At the conclusion of the hearing held on October 21, 2003, the trial judge granted defendant‘s motion to reconsider sentence. He revised defendant‘s sentence downward to twenty-one years imprisonment at hard labor, with credit for time already served, adopting his previously filed reasons for ruling.12 No oral motion was made to reconsider sentencе, nor was any follow-up written motion to reconsider sentence ever filed. Thereafter, defendant filed another appeal contesting the excessiveness of this sentence.
In his latest appeal, dеfendant urges four assignments of error, all related to his claim that his twenty-one year sentence is excessive:
1. The trial judge erred by considering erroneous information when it selected a sentence for defendаnt;
2. The trial judge erred by failing to correct his errors when those errors were brought to his attention through the motion to reconsider sentence and memorandum in support thereof; 3. The trial judge erred in applying aggravаting factors not supported by the record evidence;
4. The trial judge erred in imposing an excessive sentence.
Concluding that defendant cannot legally appeal the judgment and that his complaints were not properly preserved for appellate review, we affirm his sentence.
ANALYSIS
At defendant‘s Boykin hearing, he stipulated that he committed manslaughter upon Lavell Earl on January 11, 1996.13 Although there was a plea agreement whereby the State agreed to accept a guilty pleа to the offense of manslaughter, there was no agreement as to the sentence to be imposed. This sentence was left to the discretion of the sentencing judge, subject to a thirty-year cap. In defendant‘s four related assignments of error, he argues that the trial judge abused his discretion by imposing an excessive sentence.
First, we note that a defendant has no appeal or review of a sentence imposed in conformity with a plea agreement set forth in the record at the time of the plea. See State v. Terrebonne, 01-2632, p. 5 (La.App. 1 Cir. 6/21/02), 822 So.2d 149, 152. Here, the sentence imposed is in conformity with the plea agreement.
Further, the record does not rеflect either an oral or written motion to reconsider the new sentence imposed on October 21, 2003. When his new sentence was imposed, defendant made no comment that could be interpreted as an objection to the new sentence.
One purpose of the motion to reconsider is to allow the defendant to raise any errors that may have occurred in sentencing while the trial judge still has the jurisdiction to chаnge or correct the sentence. The defendant may point out such errors or deficiencies, or may present argument or evidence not considered in the original sentencing, thereby preventing the neсessity of a remand for resentencing. State v. Mims, 619 So.2d 1059, 1059-1060 (La.1993) (per curiam).
DECREE
We affirm the judgment of the trial court for the abovе-stated reasons.
SENTENCE OF OCTOBER 21, 2003 AFFIRMED.