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State v. Modica

Court of Appeals of Louisiana, Fifth Circuit

February 8, 2017

STATE OF LOUISIANA
v.
RYAN JOSEPH MODICA

         ON APPEAL FROM THE FORTIETH JUDICIAL DISTRICT COURT PARISH OF ST. JOHN THE BAPTIST, STATE OF LOUISIANA NO. 15, 112, DIVISION "C" HONORABLE J. STERLING SNOWDY, JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA Bridget A. Dinvaut, Orenthal J. Jasmin

          COUNSEL FOR DEFENDANT/APPELLANT, RYAN JOSEPH MODICA Gwendolyn K. Brown

          Panel composed of Marc E. Johnson, Robert M. Murphy, and Stephen J. Windhorst

         AFFIRMED

         SJW

         MEJ

         RMM

          STEPHEN J. WINDHORST, JUDGE

         Defendant, Ryan Joseph Modica, pled guilty to one count of introducing or possessing contraband into a municipal, parish prison, or jail, in violation of La. R.S. 14:402E.[1] In accordance with the plea agreement, the trial court sentenced defendant to six years with the Department of Corrections and ordered that his sentence run concurrently with any other sentence he was serving.[2] After the denial of his pro se motion for reconsideration of sentence, defendant requested an appeal, alleging he was wrongfully sentenced to six years when the maximum penalty authorized by statute was five years. For the reasons that follow, we affirm defendant's conviction and sentence.

         Because defendant pled guilty, the facts were not fully developed at trial. However, in the bill of information, the State alleged that on or about March 4, 2015, defendant violated La. R.S. 14:402E in that he possessed or introduced or attempted to introduce contraband into the premises of a municipal or parish prison or jail; or sent, took, or gave or attempted to send, take, or give any contraband to an inmate of a municipal or parish prison or jail. During preliminary examination, Deputy Glenn Steadman testified that after defendant turned himself in at the St. John Parish jail and had proceeded through "booking, " marijuana was found in his shoe during the "pat down." During defendant's plea colloquy, he was told he was "charged with introducing or possessing cannabinoids in the parish prison, in violation of 14:402 .E [sic]."

         In his only assignment of error, defendant argues that his sentence is illegally excessive. He contends that the statute for which he was convicted, La. R.S. 14:402, only authorizes a maximum penalty of five years. He argues that since he was sentenced to six years, his sentence exceeds the statutory mandate and must be corrected. Further, defendant avers that his sentence is constitutionally excessive because his sentence is over the maximum statutory limit, which should be considered grossly disproportionate and should shock this Court's sense of justice. He alleges that the trial court erred in imposing an illegal and excessive sentence, and requests that it be vacated and a legal sentence be imposed.

         La. C.Cr.P. art. 881.2 A(2) provides that a "defendant cannot appeal or seek review of a sentence imposed in conformity with a plea agreement which was set forth in the record at the time of the plea." This Court has consistently recognized that La. C.Cr.P. art. 881.2 A(2) precludes a defendant from seeking review of a sentence to which the defendant agreed prior to pleading guilty. See State v. Stevenson, 00-1296 (La.App. 5 Cir. 01/30/01), 778 So.2d 1165, 1166. However, under La. C.Cr.P. art. 881.2 A(1), the defendant may seek review of a sentence which exceeds the maximum sentence authorized by the statute under which the defendant was convicted. The record reflects that defendant was sentenced in accordance with a plea agreement that was set forth in the record at the time of the plea. However, because defendant claims that his sentence exceeds the maximum sentence authorized by the statute in question, we find that the issue raised by defendant on appeal is properly before us.

         La. R.S. 14:402E makes it unlawful to introduce, possess or send contraband into, within or from any municipal or parish prison or jail. According to La. R.S. 14:402G, the penalty for a violation of La. R.S. 14:402 E is a fine of not less than two hundred fifty dollars and not more than two thousand dollars, and imprisonment with or without hard labor for not more than five years. However, La. R.S. 14:402 G further provides that when the contraband at issue is a controlled dangerous substance, whoever is convicted of introducing or possessing such contraband into a municipal or parish prison ...


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