State of Louisiana v. Michael L. McDonald

Judgment rendered January 11, 2023.
Application for rehearing may be filed
within the delay allowed by Art. 922,
La. C. Cr. P.

No. 54,838-KA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

STATE OF LOUISIANA Appellee

versus

MICHAEL L. MCDONALD Appellant

*****

Appealed from the
Eighth Judicial District Court for the
Parish of Winn, Louisiana
Trial Court No. 44,525

Honorable Anastasia S. Wiley, Judge

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LOUISIANA APPELLATE PROJECT Counsel for Appellant
By: Mary Constance Hanes

R. CHRISTOPHER NEVILS Counsel for Appellee
District Attorney

STEVEN D. CREWS
COLE B. SMITH
Assistant District Attorneys

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Before PITMAN, COX, and ROBINSON, JJ.

PITMAN, J.

Defendant Michael McDonald appeals the sentence imposed of

20 years at hard labor, without benefit of parole, probation or suspension of

sentence, for the crime of possession of a firearm by a person convicted of

certain felonies, a violation of La. R.S. 14:95.1, to which he pled guilty. For

the following reasons, we affirm.

FACTS

Defendant was charged by bill of information with one count of third

degree rape, a violation of La. R.S. 14:43, which rape was allegedly

committed on September 16, 2018, upon the victim, C.S. He was also

charged with second degree battery, a violation of La. R.S. 14:34.1, for

committing a battery upon C.S. with the intention of inflicting serious bodily

injury. Defendant was also charged with a violation of La. R.S. 14:95.1,

possession of a firearm or carrying concealed weapon by a person convicted

of certain felonies. The state alleged that on September 16, 2018,

Defendant, being a person previously convicted of aggravated assault with a

firearm,1 possessed a firearm or concealed weapon, specifically a Hi-Point

40-caliber handgun.

At the guilty plea, the facts of the rape and battery charges were

communicated to the court in State’s Exhibit 1, the offense report prepared

by Winnfield Police Officer Alan Marsden and a supplemental report

prepared by Officer Andy Roberts. The basic facts of what occurred on

September 16, 2018, were that Defendant and C.S. were romantically

involved with each other. They had a fight that night, went to a bar, became

1
See the minutes from Winn Parish Docket No. 42,776, dated February 27, 2013,
which were introduced in evidence as State’s Exhibit 1 at the guilty plea hearing.

intoxicated and then went to Defendant’s home. Defendant claimed they

had consensual sex twice and then he fell asleep. C.S. claimed that she fell

asleep and was awakened to Defendant on top of her having sex with her,

that she was in pain and told him to stop, but he refused. She was bleeding

profusely from her vagina and so she left the home, went out to her car in the

driveway and called the police to tell them where she was and that she had

been raped. The police arrived, and C.S. had to be transported to a hospital

where it was discovered that she had a tear in her vagina and was still

bleeding. She was first taken to the Winn Parish Medical Center; but

because of the severity of her injuries, she was taken to St. Frances Cabrini

Hospital in Alexandria, Louisiana. On the way to Alexandria, she lost so

much blood that her blood pressure dropped. She had to be intubated and

resuscitated and received two units of blood upon her arrival at the hospital.

The police returned to Defendant’s house and received permission to

search the premises, which appeared as if someone had made an attempt to

clean. The bed was made; but when the police pulled back the covers, the

bedding was soaked with fresh bright red blood. Defendant did not deny

that it was C.S.’s blood. Police continued to search the house for evidence

and found other blood evidence; a jar of petroleum jelly, which was empty

except for two walnut sized blood clots; and a handgun in the closet. Police

were aware that Defendant was a prior felony offender and had last pled

guilty in February 2013 to aggravated assault with a firearm. When they

asked him why he had the gun, he replied that he thought it had been long

enough since his last conviction that he was allowed to have it.

In August 2021, Defendant decided to enter a plea agreement whereby

the charges of third degree rape and second degree battery would be
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dropped, and he would plead guilty to possession of a firearm by a convicted

felon. He testified at the guilty plea hearing that he understood that the

potential sentence he faced under La. R.S. 14:95.1 was 5 to 20 years in

prison and that the plea was being made without any promises that the

sentence would be imposed at any certain level. He specifically stated that

he understood that a presentence investigation (“PSI”) would be performed,

that his sentence would be entirely up to the trial court’s discretion, that his

sentence would be final and that no appeal could be taken as to conviction or

sentence. Defendant stated again that he understood that he was waiving his

rights to file any appeal of the conviction and sentence or motions to

reconsider sentence. After the guilty plea was accepted, the charges of third

degree rape and second degree battery were dismissed.

At the sentencing hearing on October 20, 2021, the trial court

questioned Defendant regarding his social factors. He stated he was

59 years old, had completed his GED and was employed laying concrete.

The trial court reviewed the PSI report, which reflected that Defendant had a

criminal history that began in the 1980s and included three prior felony

convictions.

The trial court noted that the state submitted a letter to the court that

contained a recommendation that it impose the maximum penalty provided

by law of 20 years. The letter was admitted into the record and states:

While we ended up accepting a plea to possession of a firearm
by a convicted felon-Count III and dismissing the other counts,
this in no way should be construed as any type of doubt as to
the seriousness and veracity of the other counts. It simply came
down to an issue of proof.

After giving Defendant a chance to speak on his own behalf, at which

time he asked for mercy so that he could return to his family, the trial court
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cited La. C. Cr. P. art. 894.1 and found that there was an undue risk that

during the period of a suspended sentence or probation he would commit

another crime; that he was in need of correctional treatment that could be

best provided in an institution; that a lesser sentence would deprecate his

crime; and, last, that he was not eligible for probation because of the nature

of his crime.

The trial court sentenced Defendant to serve the maximum sentence of

20 years at hard labor without benefit of probation, parole or suspension of

sentence. He was given credit for time served. At the end of the sentencing

hearing, the trial court informed Defendant that he had “two years from the

date this judgment is final to file for any post-conviction relief.”

Despite the fact that Defendant waived his right to appeal the

sentence, Defendant’s attorney filed a motion to reconsider sentence,

claiming that the trial court considered the crime of third degree rape in

fashioning the sentence, but that charge had been dismissed. Defendant

claimed the dismissal was not pursuant to a plea bargain agreement but,

instead, was dismissed because the state lacked evidence. Defendant also

claimed that the sentence was excessive and not commensurate with the

crime of possession of a firearm by a felon. The trial court denied the

motion for reconsideration of the sentence. Defendant filed this appeal,

seeking review of the denial of the motion to reconsider sentence and

reduction of his sentence.

DISCUSSION

Defendant argues that the trial court erred when it “considered all

factors” in imposing the maximum 20-year sentence because those factors

included the charges that had been dropped in exchange for the plea bargain
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agreement. He claims that although a sentencing judge is allowed to

consider prior criminal activity, including arrests, even in the absence of

proof that the defendant committed the other offenses, the arrests should not

be considered by the trial court for sentencing purposes when the evidence

tends to demonstrate that the defendant was innocent of those offenses. He

asserts that because the state informed the trial court that there was “an issue

of proof” as to why the other charges were dismissed, it should not have

considered the other offenses of rape and battery when it imposed the

maximum sentence.

Defendant also argues that the trial court seemed to place undue

importance on its observation that he was a fourth felony offender, which he

claims would be an error as the correctness of a multi-bill was not even at

issue. He asserts that this court should vacate his sentence and remand for

imposition of a sentence within constitutional limits.

The state argues that Defendant’s extensive and violent criminal

history alone warranted the maximum sentence imposed by the trial court. It

also argues that he received a significant and meaningful benefit in pleading

guilty as he was exposed to the potential threat of consecutive sentences

upon conviction for the sex crimes in conjunction with the unrelated gun

crime. It contends that the consideration of the rape and battery would be

absolutely appropriate in making a sentencing determination but also argues

that it placed no emphasis on the dismissed charges and did not even

mention them when determining the sentence. It points out that the

sentencing judge was not the judge who heard the evidence at the

preliminary examination and probably did not review anything other than

the PSI report. It argues that the sentence is appropriately tailored to
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Defendant and the crime of which he pled guilty. Further, it contends that

the sentence is not unconstitutionally excessive.

In 2018, the year the crime was committed, La. R.S. 14:95.1(B) stated

that the penalty for possession of a firearm or carrying a concealed weapon

by a person convicted of certain felonies was imprisonment at hard labor for

not less than 5 nor more than 20 years without the benefit of probation,

parole or suspension of sentence and a fine of not less than $1,000 nor more

than $5,000.

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. La. C. Cr. P. art. 881.2(A)(2); State v. Jackson, 51,011 (La.

App. 2 Cir. 1/11/17), 211 So. 3d 639. This provision applies to both agreed-

upon sentences and sentencing ceilings, ranges and caps. State v. Young,

96-0195 (La. 10/15/96), 680 So. 2d 1171; State v. Jackson, supra.

If a plea agreement did not include an agreed-upon sentence, it is subject to

appellate review. State v. Lindsey, 50,324 (La. App. 2 Cir. 2/24/16),

189 So. 3d 1104.

In State v. Jones, 48,774 (La. App. 2 Cir. 1/15/14), 130 So. 3d 1033,

the record showed that the defendant agreed to the sentence cap of 15 years

and was sentenced to 14 years. On appeal, this court held that because the

defendant was made aware that he was waiving his right to appeal by

pleading guilty, he was not entitled to review of his sentence. Nevertheless,

this court acknowledged that defendants have been afforded review of their

sentences in cases where the issue is close. Id. Similarly, in State v. Wright,

49,882 (La. App. 2 Cir. 7/08/15), 169 So. 3d 835, this court held that,

because the defendant agreed during his plea that he would not be able to
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appeal, he was not entitled to appellate review of his sentence. The record

showed that during the plea hearing, the defendant was advised that there

was a sentencing cap, and he would not be entitled to an appeal from his

sentence. This court found that the trial court’s statements to the contrary at

the sentencing hearing did not influence the defendant’s decision to plead

guilty or interfere with the enforceable cap. Id.

In the case at bar, Defendant’s plea agreement did not include an

agreed-upon sentence, but he was informed of the sentencing range of 5 to

20 years at hard labor and that the decision of imposition of sentence was

left to the trial court’s discretion. Defendant’s agreement included that the

two very serious charges of third degree rape and second degree battery

would be dropped if he pled guilty to the firearm charge, and this resulted in

a significant reduction in potential exposure to confinement. In addition,

Defendant was told twice that he was waiving his right to appeal whatever

sentence the trial court imposed; and he indicated he understood. At

sentencing, Defendant was informed that he had two years from the date of

finality of the judgment to file for post-conviction relief. Excessive sentence

is not a ground for filing a request for post-conviction relief. La. C. Cr. P.

art. 930.3. Under these circumstances, Defendant waived his right to appeal

his sentence.

Therefore, this assignment of error is without merit.

CONCLUSION

For the foregoing reasons, the conviction and sentence of Defendant

Michael L. McDonald are affirmed.

AFFIRMED.

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