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State v. Alexander

Court of Appeals of Louisiana, Fifth Circuit

October 2, 2019

STATE OF LOUISIANA
v.
KEVIN ALEXANDER

          ON APPEAL FROM THE FORTIETH JUDICIAL DISTRICT COURT PARISH OF ST. JOHN THE BAPTIST, STATE OF LOUISIANA NO. 11, 265, DIVISION "C" HONORABLE J. STERLING SNOWDY, JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLEE, STATE OF LOUISIANA Honorable Bridget A. Dinvaut Justin B. LaCour

          COUNSEL FOR DEFENDANT/APPELLANT, KEVIN ALEXANDER Emily Posner

          Panel composed of Judges Fredericka Homberg Wicker, Robert A. Chaisson, and Stephen J. Windhorst

          ROBERT A. CHAISSON JUDGE

         In this appeal, defendant, Kevin Alexander, seeks review of the thirty-two year sentence that was imposed as a result of his guilty plea to manslaughter. For the reasons that follow, we find no merit to the arguments raised by defendant relating to his sentencing, and accordingly, we affirm his conviction and sentence.

         STATEMENT OF THE CASE

         On August 15, 2011, a St. John the Baptist Parish Grand Jury returned an indictment charging defendant with second degree murder, in violation of La. R.S. 14:30.1. Defendant pled not guilty at the arraignment. However, on March 14, 2016, defendant withdrew his not guilty plea and, after being advised of his rights, pled guilty to the amended charge of manslaughter, in violation of La. R.S. 14:31. The trial court thereafter sentenced defendant, in accordance with the plea agreement, to imprisonment for thirty-two years in the Department of Corrections.[1] The trial court ordered the sentence to be served in accordance with La. R.S. 15:571.3(D), in that defendant would not be eligible for diminution of sentence since this was his second crime of violence, and further ordered the sentence to run concurrently with defendant's other sentences. Defendant was subsequently granted an out-of-time appeal[2] and now seeks review of his sentence.

         First, defendant contends that his sentence of thirty-two years at hard labor is unconstitutionally excessive, noting that the record "is replete with documentation that demonstrates his diminished culpability and capacity for rehabilitation." In support of his excessive sentence argument, defendant points out that he was only seventeen years old at the time of the offense and further that he had many mitigating factors in his background that the trial court was unaware of at the time of sentencing. In particular, defense counsel notes that defendant suffered with undiagnosed traumatic brain injuries, post-traumatic stress disorder, and substance abuse disorders. Further, defendant was exposed to traumatic domestic abuse, drug use, and neglect that changed the trajectory of his life.

         While we are sympathetic to the difficulties faced by this defendant, we nonetheless note that defendant, as part of a plea bargain with the State, agreed to the imposition of a thirty-two year sentence. The record reflects that defendant was originally charged with second degree murder, which exposed him to the possibility of life in prison. However, the State thereafter amended the charge to manslaughter, which substantially reduced defendant's sentencing exposure, and in exchange, defendant agreed to plead guilty. During the guilty plea proceedings, defendant was advised of his possible sentencing exposure of forty years and was further advised that upon acceptance of his guilty plea to manslaughter, he would be sentenced to imprisonment for a term of thirty-two years in the Department of Corrections with credit for time served from April 1, 2011, to June 16, 2011, and from July 18, 2011, to March 14, 2016. In addition, defendant was informed that his sentence would be served in accordance with La. R.S. 15:571.3(D), in that he would not be eligible for diminution of sentence since this was his second crime of violence, and that his sentence would run concurrently with other sentences being served. Defendant was thereafter sentenced in accordance with the plea agreement as set forth in the record at the time of the plea.

         La. C.Cr.P. art. 881.2(A)(2) clearly states: "The 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." Defendant argues that Article 881.2(A)(2) does not and cannot categorically ban the appellate review of the constitutionality of a criminal sentence regardless of whether the court imposed the sentence in conformity with a plea agreement.[3] However, this Court has consistently and recently held in numerous cases that Article 881.2(A)(2) precludes a defendant from seeking review of his sentence imposed in conformity with a plea agreement that was set forth in the record at the time of the plea. See State v. Carter, 18-541 (La.App. 5 Cir. 5/29/19), 274 So.3d 831, 836; State v. Lawrence, 18-372 (La.App. 5 Cir. 5/15/19), 273 So.3d 548, 551; State v. Cuza, 18-716 (La.App. 5 Cir. 4/24/19), 271 So.3d 369, 375; and State v. Black, 18-494 (La.App. 5 Cir. 2/6/19), 265 So.3d 1014, 1017. During the guilty plea proceedings in the present case, the trial court specifically advised defendant of the restrictions set forth in Article 881.2(A)(2) as follows:

By agreeing to this document, you also are telling the Court that you understand that you cannot appeal or seek the reconsideration or review of the sentence if it is imposed in conformity with this agreement. However, you do have 30 days after sentencing to file a Motion to Appeal a sentence, if it is something you have not bargained for or something you have not agreed to.

         In the present case, the record is clear that defendant's sentence was imposed in conformity with the plea agreement that was set forth in the record at the time of the plea. Therefore, in accordance with Article 881.2(A)(2) and the well-established jurisprudence of this Court, defendant is now precluded from challenging his sentence on appeal.

         Next, defendant asserts that his sentence is illegal under the provisions of La. RS. 14:31 because the trial court denied him the opportunity for parole. Defendant requests that this Court amend his sentence to reflect parole eligibility. We have reviewed the record and find no support for defendant's assertion that the trial court sentenced him to thirty-two years without benefit of parole. Specifically, the transcript, the minute entry, the uniform commitment order, and the waiver of rights form do not reflect that the trial court restricted parole when sentencing defendant on his manslaughter conviction. ...


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