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State v. Miller

Court of Appeals of Louisiana, Third Circuit

May 17, 2017

STATE OF LOUISIANA
v.
RICKY WAYNE MILLER AKA RICKY MILLER

         APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF VERMILION, NO. 59219 HONORABLE LAURIE A. HULIN, DISTRICT JUDGE

          Annette Fuller Roach Louisiana Appellate Project COUNSEL FOR DEFENDANT/APPELLANT: Ricky Wayne Miller

          Hon. Keith A. Stutes Lafayette Parish DA COUNSEL FOR PLAINTIFF/APPELLEE: State of Louisiana

          Ted L. Ayo Attorney at Law COUNSEL FOR PLAINTIFF/APPELLEE: State of Louisiana, Ricky Miller, Ricky Wayne Miller

          Court composed of D. Kent Savoie, Van H. Kyzar, and David E. Chatelain [*] , Judges.

          D. KENT SAVOIE JUDGE

         On January 12, 2016, Defendant, Ricky Wayne Miller, entered a guilty plea for theft of a firearm (district court docket number 59219), a violation of La. R.S. 14:67.15.[1] On May 13, 2016, as part of the plea agreement, Defendant was sentenced to seven years at hard labor to be served without the benefit of probation, parole, or suspension of sentence. Additionally, the trial court ordered the sentence to run concurrently with the sentences imposed in 58080, 58133, 59221, 59259, and 58075. A motion to reconsider sentence was not filed.

         The Defendant appeals assigning the following errors[2]:

1. The trial court erred in imposing consecutive sentences in violation of the plea agreement set forth on the record at the time of the pleas of guilty.
2. Trial court [sic] rendered assistance below that guaranteed by the Sixth Amendment of United States Constitution by failing to object to the court's failure to impose sentences in compliance with the plea agreement.

         For the following reasons, we vacate Defendant's sentence and remand this matter to the trial court for resentencing in accordance with the plea agreement.

         FACTS

         At the guilty plea proceeding, the State set forth a factual basis for the charge. The State indicated that Defendant took a firearm which belonged to Shane Winch, without the consent of Mr. Winch and with the intent to permanently deprive him of the firearm.

         ERRORS PATENT

         In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find one error patent present.[3]

         A conviction of theft of a firearm requires the imposition of a $1000.00 fine. La.R.S. 14:67.15. This fine was not imposed by the trial court, rendering the Defendant's sentence illegally lenient. However, "[w]e will not recognize an illegally lenient sentence claim unless it is raised as error." State v. Kinchen, 11-9, p. 4 (La.App. 3 Cir. 6/8/11), 71 so.3d 344, 348.

         ASSIGNMENT OF ERROR NUMBER ONE

         Defendant complains that the plea agreement was breached. In the transcript of the January 12, 2016 proceeding, the plea agreement was set forth in open court. It provided a sentencing cap of twenty-five years at hard labor, and the State agreed that it would not file a multiple offender bill. Additionally, the following pertinent exchange occurred:

[COURT]: All right. So Docket No. 58075, 58080, 58133, 59219, 59221, 59224, 59253, 59259, and 59572 are all going to run concurrent?
MS. YOUNG: Correct, with Docket No. 58118.
[COURT]: All right. That's what's agreed upon?
MS. YOUNG: Correct.
[COURT]: And then the Court will decide whether or not to run 58118 concurrent or consecutive, after the ...

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