State Of Louisiana v. Deontre Powe

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

2023 KA 0594

STATE OF LOUISIANA

VERSUS

DEONTRE POWE

Judgment Rendered:
NOV 0 3 2023

On Appeal from the 23rd Judicial District Court
In and for the Parish of Ascension
State of Louisiana
Trial Court No. 42440

Honorable Jason M. Verdigets, Judge Presiding

Ricky L. Babin Attorneys for Appellee

District Attorney State of Louisiana
Donald D. Candell
Lindsey D. Manda
Leila Braswell
Assistant District Attorneys
Gonzales, Louisiana

Andre Belanger Attorney for Defendant/ Appellant
Baton Rouge, Louisiana Deontre Powe

BEFORE: THERIOT, PENZATO, AND GREENE, JJ.

PENZATO, J.

The defendant, Deontre Powe, was charged by grand jury indictment with

one count of second degree murder ( count 1), a violation of La. R.S. 14: 30. 1;

aggravated criminal damage to property ( count I1), a violation of La. R.S. 14: 55;

possession with intent to distribute a Schedule I controlled dangerous substance

marijuana) ( count I11), a violation of La. R.S. 40: 966( A)( 1); and illegal

possession of stolen firearms ( count IV), a violation of La. R.S. 14: 69. 1. In

accordance with a plea agreement, the State amended the indictment on count I to

manslaughter, a violation of La. R.S. 14: 31, and the defendant pled guilty to the

reduced charge. Additionally, the State entered a nolle prosequi on counts II, III,

and IV. The court deferred sentencing pending the return of a pre -sentence

investigation ( PSI) and, in accordance with the plea agreement, stated the

defendant' s sentence would be no greater than fifteen years. Thereafter, the

defendant was sentenced to fifteen years imprisonment at hard labor. In a

combined assignment of error, the defendant contends that the trial court misstated

the penalty range for manslaughter and imposed an excessive sentence, because it

failed to articulate aggravating or mitigating factors to support its sentence, as

required by La. C. Cr.P. art. 894. 1. For the following reasons, we affirm the

conviction and sentence.

FACTS

Due to the defendant' s guilty plea, the facts of this case were not fully

developed in the record. However, the following factual basis for the charge was

set forth at the Boykin' hearing and accepted by the defendant.

On or about April 20, 2020, deputies were dispatched to West Tenth Street at

Orange Street in Donaldsonville, Louisiana, in reference to a homicide. The victim

Boykin v. Alabama, 395 U. S. 238, 89 S. Ct, 1709, 23 L.Ed. 2d 274 ( 1969).

2

had been shot in the left cheek. Video surveillance showed the defendant shooting

at the victim, driving over his body, and dragging his body approximately 100 yards.

Witnesses identified the defendant as the shooter and driver of the vehicle.

DISCUSSION

In his sole assignment of error, the defendant contends the trial court' s

sentence was excessive notwithstanding an agreed-upon sentencing cap, because the

trial court failed to articulate the aggravating and mitigating factors to support the

sentence and articulated the wrong penalty range in its written and oral reasons for

judgment.

As a general matter, sentences imposed in accordance with plea agreements

are unreviewable. La. C. Cr.P. art. 881. 2( A)(2) (" 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."); State v. Kennon, 2019- 00998 ( La.

919120), 340 So. 3d 881, 885. The defendant argues that because the trial court

advised him that he had two years from the date his conviction became final to file

for either post -conviction relief or an out -of t-ime appeal, his appellate right to

review his sentence for excessiveness was preserved, relying on State v. Thomas,

51, 364 ( La. App. 2d Cir. 5117117), 223 So. 3d 125, writ denied, 2017- 1049 ( La.

319118), 238 So.3d 450.

We need not address the defendant' s argument that the trial court' s

statements were sufficient to preserve his right to appellate review of his sentence.

A thorough review of the record in this case indicates that the defendant herein,

unlike the defendant in Thomas, did not orally move for reconsideration of his

sentence at the time of sentencing, nor did he subsequently file a written motion to

3

reconsider the sentence.' Under La. C. Cr.P. art. 881. 1( E), the failure to make or

file a motion to reconsider sentence or to include a specific ground upon which a

motion to reconsider may be based, shall preclude the defendant from raising an

objection to the sentence on appeal, including a claim of excessiveness. See State

v. Smith, 2022- 0231 ( La. App. 1st Cir. 1114122), 354 So. 3d 697, 703.

Accordingly, we find that review of defendant' s sole assignment of error is

procedurally barred.

CONVICTION AND SENTENCE AFFIRMED.

2 We also note that the opinions of other circuit courts are not authoritative or binding on this
court. Derbonne v. State Police Commission, 2019- 1455 ( La. App. lst Cir. 10114120), 314 S0. 3d
861, 871, writ denied, 2020- 01323 ( La. 2117121), 310 So. 3d 1152.
4