State v. HansonState v. Hanson
- Reporters:
- ,
- Before:
- Dufresne, Cannella, Chehardy
CANNELLA, Judge.
Defendant, Alvin Hanson, appeals his 12 year imprisonment at hard labor sentence for his conviction of simple burglary, his 8 year imprisonment at hard labor sentence for his conviction of illegal possession of stolen things valued over $500, and his enhanced sentence of 20 years imprisonment at hard labor for being adjudicated a fourth felony offender. We affirm his conviction and adjudication as a fourth felony offender. We set aside his enhanced sentence
On November 12, 1998, Defendant was charged with one count of simple burglary of a 1992 white Chevy 6000 pickup belonging to Richard Koch, in violation of
On August 19, 1999 Defendant filed a writ application alleging that his retained counsel filed a motion to withdraw the guilty pleas based on the State failing to perform the conditions of the plea agreement, which rendered the guilty pleas involuntary. The trial court denied his motion. He asked this court to reverse the trial court‘s ruling. State v. Hanson, 99-KH-932 (La.App. 5th Cir.8/19/99). We denied his writ application because the trial court record did not show that a motion to withdraw the pleas was filed and because Defendant was granted an appeal.
On September 29, 1999, Defendant filed a motion to withdraw his guilty pleas. On October 27, 1999, a hearing was held on the motion. At that time, Defendant filed an Amended Motion for New Trial, alleging newly discovered exculpatory evidence. On December 14, 1999 the two motions were denied. Defendant filed a writ application from the ruling denying his motion for new trial, arguing primarily that the sentences were excessive. This Court denied the writ application because Defendant failed to file his new trial motion prior to sentencing as required by
On appeal, Defendant asserts that the imposition of the maximum sentence is unconstitutional both in itself and as applied to this Defendant.2 In his argument, Defendant contends that the original sentences are excessive. He does not address the habitual offender enhanced sentence. The State asserts that the original and habitual offender enhanced sentences are not excessive.
Defendant does not dispute that his pleas were voluntary. He entered negotiated guilty pleas after being informed by the trial judge that if the habitual offender bill were filed he would be exposed to a life sentence.3 Further, he entered the pleas with the understanding that, in the event of the filing of a habitual offender bill, there would be no enhancement of his prison sentence greater than 20 years.
Our review of the transcript and record for patent error shows that, before imposing the enhanced sentence, the trial judge vacated the entire original 20 year imprisonment sentence which was imposed on the two convictions. This action vacated both the 12 and 8 year consecutive sentences. The trial judge then imposed a single enhanced sentence of 20 years imprisonment at hard labor, basing it on count 1, simple burglary. However, the Defendant is no longer sentenced on count 2. In order to remedy this patent error, we must vacate the enhanced sentence of count 1 and remand the case for the trial judge to resentence Defendant as a fourth felony offender, consistent with the sentencing exposure cap in the plea agreement. Further, we must set aside the vacating of the sentence in count 2.
Accordingly, Defendant‘s convictions of illegal possession of stolen things and simple burglary and finding that he is a fourth felony offender are affirmed. Defendant‘s enhanced sentence as a fourth felony offender is hereby vacated. Further, the vacating of Defendant‘s sentence on count 2 is set aside and the sentence is reinstated. The case is remanded for resentencing on count 1 in conformity with the plea agreements.
CONVICTION AND FINDING AS A FOURTH FELONY OFFENDER ARE AFFIRMED; ENHANCED SENTENCE ON COUNT 1 IS VACATED; VACATING OF SENTENCE ON COUNT 2 IS SET ASIDE; CASE REMANDED.