ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA. NO. 12-4971, DIVISION " M" . HONORABLE HENRY G. SULLIVAN, JR., JUDGE PRESIDING.
PAUL D. CONNICK, JR., DISTRICT ATTORNEY, Twenty-Fourth Judicial District, Parish of Jefferson, TERRY M. BOUDREAUX, ASSISTANT DISTRICT ATTORNEY, Gretna, Louisiana, COUNSEL FOR THE STATE OF LOUISIANA.
BERTHA M. HILLMAN, ATTORNEY AT LAW, Louisiana Appellate Project, Thibodaux, Louisiana, COUNSEL FOR DEFENDANT/APPELLANT.
CORY D. SPENCER, Louisiana State Penitenitary, Angola, Louisiana, DEFENDANT/APPELLANT.
Panel composed of Judges Fredericka Homberg Wicker, Robert M. Murphy, and Hans J. Liljeberg. LILJEBERG, J., DISSENTS WITH REASONS.
ROBERT M. MURPHY, Judge.
[14-319 La.App. 5 Cir. 2] STATEMENT OF THE CASE
On October 31, 2012, the Jefferson Parish District Attorney filed a bill of information charging defendant, Cory D. Spencer, with conspiracy to possess cocaine in excess of 400 grams in violation of La. R.S. 40:979 and La. R.S. 40:967(F). On that same date, defendant was arraigned and pled not guilty. On October 3, 2013, the defendant withdrew his not guilty plea and, in his colloquy with the trial judge, pled guilty to the lesser included offense of conspiracy to possess cocaine in excess of 28 grams in violation of La. R.S. 40:979 and La. R.S. 40:967(F)(1)(c) & (G). The trial judge then sentenced defendant to imprisonment at hard labor for fourteen years without benefit of parole, probation, or suspension [14-319 La.App. 5 Cir. 3] of sentence, with that sentence to run concurrently with any other sentence defendant was already serving.
On November 14, 2013, defendant filed a pro se motion to reconsider his sentence as excessive that was denied on January 17, 2014. Also on November 14, 2013, he filed a pro se motion for appeal that was granted on January 17, 2014. Defendant filed a writ application with this Court challenging the trial judge's ruling on the motion to reconsider sentence. This Court denied the writ application, noting that the trial court had granted defendant an appeal, and therefore, the issues in question could be raised at that time. Spencer v. State of Louisiana, 14-150 (La.App. 5 Cir. 3/20/14) (unpublished writ disposition).
Because defendant entered a guilty plea, the facts were not fully developed at a trial. Nevertheless, the State alleged in the bill of information that on or about October 3, 2012, defendant violated La. R.S. 40:979 and La. R.S. 40:967(F) in that he knowingly or intentionally conspired to possess cocaine in excess of 400 grams.
ASSIGNMENT OF ERROR NUMBER ONE
There is error patent on the face of the record. The court sentenced Spencer without benefit of parole, probation or suspension of sentence. Under the applicable statues [ sic ], Spencer is eligible for parole and probation.
PRO SE ASSIGNMENT OF ERROR
A proven patton - error [ sic ], that Spencer received a [ sic ] illegal sentence when the court sentenced his [ sic ] to serve his (14) years [ sic ] sentence " without benefit of" parole, probation or suspension of sentence. Which made the sentence " illegally lient" [ sic ].
Defendant argues that the trial judge erred by ordering his fourteen-year sentence to be served without benefit of probation or parole. He contends that [14-319 La.App. 5 Cir. 4] because there is no statutory minimum for conspiracy to possess 28 grams of cocaine under La. R.S. 40:979 and La. R.S. 40:967(F)(1)(a) and (G), his sentence should have been imposed with benefit of probation and parole. Alternatively, defendant asserts that under those statutes,
he is eligible for probation or parole after serving the minimum five-year sentence. The State responds that because the underlying offense has a statutory minimum of five years, defendant's sentence should be served with at least five years without benefits. Nevertheless, the State asks this Court to affirm defendant's conviction and sentence.
The first issue we consider is whether defendant pled guilty to conspiracy to possess cocaine in excess of 400 grams or whether he pled guilty to conspiracy to possess cocaine in excess of 28 grams.
La. C.Cr.P. art. 560, relative to a change of plea from not guilty to guilty in a felony case, provides that " [a] defendant may at any time withdraw a plea of not guilty and plead guilty, subject to the limitations stated in Articles 556 through 559." La. C.Cr.P. art. 556.1 sets forth the specific requirements of a knowing and voluntary felony plea of guilty in defendant's colloquy with the court. This article reads, in pertinent part:
A. In a felony case, the court shall not accept a plea of guilty or nolo contendere without first addressing the defendant personally in open court and informing him of, and determining that he understands, all of the following:
(1) The nature of the charge to which the plea is offered, the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law.
* * *
C. The court shall also inquire as to whether the defendant's willingness to plead guilty or nolo contendere results from prior discussions between the district attorney and the defendant or his attorney. If a plea agreement has been reached by the parties, the court, on the record, shall require the disclosure of the agreement in open court or, on a showing of good cause, in camera, at the time the plea is offered.
[14-319 La.App. 5 Cir. 5] D. Any variance from the procedures required by this Article which does not affect substantial rights of the accused shall not invalidate the plea.
La. C.Cr.P. art. 558 provides that " [t]he defendant, with the consent of the district attorney, may plead guilty to a lesser offense that is included in the offense charged in the indictment." The bill of information does not need to be corrected to conform the charge to that which defendant enters a guilty plea, if the defendant pleads guilty to a lesser-included offense of the same generic charge. State v. Marceaux, 542 So.2d 1121 (La.App. 5 Cir. 1989).
In this case, the record reflects that the State filed a bill of information charging defendant with conspiracy to possess cocaine in excess of 400 grams in violation of La. R.S. 40:979 and La. R.S. 40:967(F). The waiver of rights form shows that defendant later pled guilty to conspiracy to possess over 400 grams of cocaine in violation of La. R.S. 40:979 and La. R.S. 40:967. That form shows that the maximum sentence the court could impose was fifteen years with or without hard labor and a fine of $125,000.00, and that defendant's sentence would be fourteen years at hard labor without benefit of parole, probation, or suspension of sentence. In that form, when asked to explain the factual circumstances surrounding this crime, defendant indicated that he conspired to possess over 400 grams of cocaine in Jefferson Parish.
The transcript of the colloquy, however, reflects that at the beginning of the guilty plea colloquy, the ...