State v. RobinsonState v. Robinson
Defendant, Christopher P. Robinson, was charged with two counts of simple burglary of an inhabited dwelling in violation of
FACTS AND PROCEDURAL HISTORY
Defendant‘s arrest arose from two separate burglaries committed on July 2, 1999, when Defendant entered the homes of two elderly victims and took several items of jewelry. On August 20, 1999, Defendant was charged by bill of information with two counts of simple burglary of an inhabited dwelling, to which Defendant pled not guilty. Before trial, Defendant and the State entered into “an agreed upon plea” whereby the State agreed to amend the bill of information to charge two counts of simple burglary, to which Defendant pled guilty, and the State recommended that the sentences be served concurrently. Defendant‘s pleas of guilty were accepted and a pre-sentence investigation was ordered. On February 3, 2000, Defendant was sentenced to serve two years at hard labor on each of the two counts, to run consecutively. Defendant‘s timely motion to reconsider sentence was denied by the trial court.
DISCUSSION
We will first address Defendant‘s argument that the sentences imposed violated the plea agreement and, therefore, must be vacated. Defendant argues that any sentences imposed should have been ordered to run concurrently in accordance with the State‘s recommendation and the expectation of all parties, rather than consecutively as ordered by the trial court. According to Defendant, this breach of the plea agreement requires that his sentence be set aside. We disagree.
It is well settled that the sentencing discretion of the trial judge cannot be limited by a sentence recommended by both the State and the defendant. The trial judge may accept or reject a joint sentence recommendation. State v. Collins, 359 So.2d 174 (La.1978); State v. Rios, 95-00961 (La.App. 3d Cir.3/6/96), 670 So.2d 708; State v. Barnes, 596 So.2d 302 (La.App. 3d Cir.1992). We acknowledge, however, that a guilty plea is constitutionally
Considering the record in this case, it appears that the plea bargain terms were that Defendant would be allowed to plead to two counts of the lesser crime of simple burglary, thereby avoiding the mandatory minimum sentence of one year at hard labor on each count of simple burglary of an inhabited dwelling, in exchange for the State‘s recommendation that any sentences imposed would run concurrently. It is clear from the record that the plea bargain agreement did not include that the trial court would impose concurrent sentences. In other words, the “agreed upon plea” was not an “agreed upon sentence,” but, rather, an agreement that the State would make a particular recommendation on behalf of Defendant. In reviewing the plea agreement at the guilty plea proceeding, the district attorney stated, “[t]here‘s no recommendation for sentencing from the state, however, except that the sentences would run concurrent.” Significantly, the trial court informed Defendant during the plea bargain colloquy that concurrent sentences were only a recommendation from the State and that the trial court would impose sentences after considering the pre-sentence investigation and other factors. The following exchange took place during sentencing:
COURT: Do you understand the process of what‘s going to happen after the plea? The Department of Corrections personnel are going to gather information, give that to your lawyer, give that to me and then I‘ll decide the sentence within the law and the factors that go into sentencing which includes case law, includes a number of factors that the law provides but that‘s left up to me. Do you understand that?
DEFENDANT: Yes sir.
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COURT: Is your decision voluntary?
DEFENDANT: Yes sir.
The trial court then accepted Defendant‘s guilty plea, stating, “[p]articularly, let the minutes reflect and the presentence investigation reflect that the only sentencing recommendation is that the two sentences run concurrently, sentencing to be determined by a presentence investigation which I order at this time.”
Defendant argues that under the terms of his plea bargain agreement and the discussions during his guilty plea colloquy, he believed that any sentences would be concurrent. He acknowledges, however, that there was no agreement as to the length of the sentence, but asserts that all parties acknowledged that concurrent sentences were recommended. Therein lies the key to resolution of this issue: the State agreed only to make a recommendation of concurrent sentences. The trial court was not bound by the State‘s sentencing recommendation, and did not err in imposing the sentences to run consecutively. State v. Collins, supra; State v. Rios, supra; State v. Barnes, supra. Additionally, we find that the trial court‘s questioning of Defendant prior to sentencing reveals Defendant‘s understanding that he was not guaranteed concurrent sentences.
The test imposed by the reviewing court in determining the excessiveness of a sentence is two-pronged. First, the record must show that the trial court took cognizance of the criteria set forth in
Whether the sentence imposed is too severe depends on the circumstances of the case and the background of the defendant. A sentence violates
There is no requirement that specific matters be given any particular weight. State v. Dunn, 30,767 (La.App.2d Cir.6/24/98), 715 So.2d 641. Any other relevant aggravating and mitigating factors may be considered in imposing sentence under
Where a defendant has pled guilty to an offense which does not adequately describe his conduct, benefit received by plea bargain agreement and the attendant reduction in potential exposure to criminal penalty is a proper sentencing consideration. State v. Wry, 591 So.2d 774 (La.App. 2d Cir.1991); State v. Anderson, supra; State v. Wilson, 561 So.2d 889 (La. App. 2d Cir.1990); State v. Bradford, supra; State v. Strange, 28,466 (La.App.2d Cir.6/26/96), 677 So.2d 587; State v. Lighten, 516 So.2d 1266 (La.App. 2d Cir.1987). As a general rule, maximum sentences are appropriate in cases involving the most blameworthy or egregious of offenders. State v. Grissom, 29,718 (La.App.2d Cir.8/20/97), 700 So.2d 541.
Regarding imposition of consecutive rather than concurrent sentences,
If the defendant is convicted of two or more offenses based on the same act or transaction, or constituting parts of a common scheme or plan, the terms of imprisonment shall be served concurrently unless the court expressly directs that some or all be served consecutively. Other sentences of imprisonment shall be served consecutively unless the court expressly directs that some or all of them be served concurrently.
It is within a trial court‘s discretion to order sentences to run consecutively rather
In the instant case, the trial court determined that Defendant was in need of correctional treatment in a custodial environment most effectively provided by commitment to an institution, and that any lesser sentence would deprecate the seriousness of Defendant‘s actions. In addition to the term of incarceration, the trial court recommended participation in the Intensive Incarceration/Intensive Parole Supervision Program.
The trial court‘s written reasons for sentencing indicate that it carefully analyzed the considerations under article 894.1. The trial court noted the benefit and leniency given to Defendant by allowing him to plead guilty to two counts of simple burglary, thereby avoiding the more severe penalty of a mandatory minimum one-year sentence for each of the two counts of simple burglary of an inhabited dwelling. The trial court stated that the convictions resulted from two residential burglaries, both committed on July 2, 1999. The results of the pre-sentence investigation were reviewed. The report related Defendant‘s criminal history, which began in 1997 and included prior charges of simple theft, possession of marijuana and two prior convictions of simple battery. The trial court noted that Defendant completed the tenth grade, had no work history and had not completed any further educational or vocational training. Several mitigating factors were considered by the trial court, including Defendant‘s youthful age and “no particular history of criminal activity.”
As previously stated, the trial court was not required to give specific matters any particular weight. State v. Dunn, supra. The trial court‘s consideration of the factor of the potential harm caused by Defendant‘s actions was a proper consideration in stating a factual basis for imposing consecutive sentences. State v. Thomas, 98-1144 (La.10/9/98), 719 So.2d 49; State v. English, 582 So.2d 1358 (La. App. 2d Cir.1991), writ denied, 584 So.2d 1172 (La.1991); State v. Lighten, supra. The pre-sentence investigation report supports the trial court‘s finding that Defendant lacked remorse, which was also a proper sentencing consideration. State v. Shipp, supra; State v. Daniels, supra; State v. Anderson, supra; State v. Colvin, supra. Finally, the benefit Defendant received by the plea bargain agreement was also properly considered by the trial court. We believe that the record clearly shows an adequate factual basis for the sentence imposed in terms of the length of the respective sentences as well as the order that they be served consecutively. Regarding the latter, we reiterate that Defendant committed two separate burglaries on July 2, 1999, and we find that it was well within the discretion of the trial court to order that the sentences for those burglaries run consecutively, rather than concurrently, notwithstanding the State‘s recommendation to the contrary.2
In summary, the record does not indicate that Defendant‘s consecutive sentences are grossly out of proportion to the seriousness of the offenses, or nothing more than a purposeless and needless infliction of pain and suffering. State v. Dorthey, supra; State v. Bonanno, supra. Viewed in light of the harm done to society, Defendant‘s sentences do not shock the sense of justice. State v. Hogan, supra; State v. Bradford, supra. The sentences imposed are not excessive.
CONCLUSION
For the foregoing reasons, Defendant‘s convictions and sentences are affirmed.
AFFIRMED.