State of Louisiana v. Brandon Small

Judgment rendered February 26, 2025.
Application for rehearing may be filed
within the delay allowed by Art. 922,
La. C. Cr. P.

No. 56,089-KA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

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STATE OF LOUISIANA Appellee

versus

BRANDON SMALL Appellant

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Appealed from the
First Judicial District Court for the
Parish of Caddo, Louisiana
Trial Court No. 387,641

Honorable Donald E. Hathaway, Jr., Judge

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LOUISIANA APPELLATE PROJECT Counsel for Appellant
By: Christopher A. Aberle

JAMES E. STEWART, SR. Counsel for Appellee
District Attorney

ALEX L. PORUBSKY
KENDRA S. JOSEPH
BRIANA SPIVEY
Assistant District Attorneys

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Before STEPHENS, THOMPSON, and ROBINSON, JJ.

THOMPSON, J.

After the trial court imposed a hard labor sentence of six years for

attempted possession of a firearm by a convicted felon, the defendant,

Brandon Small, claimed that his attorney had advised him he would receive

only a probated sentence. Prior to his sentencing hearing and through the

exchange and rejection of multiple plea offers, Small was made aware that

sentencing was to be determined by the trial court, and no agreement was

reached with the State or the trial court as to sentencing. The trial court

confirmed with Small during Boykinzation for entering his guilty plea that he

understood the possible sentence and that his sentence was up to the court to

determine. Small’s attorney also confirmed on the record that Small

understood.

On appeal, Small now claims that his guilty plea was not valid

because he did not enter into it knowingly and intentionally, believing he

would receive probation. For the following reasons, including but not

limited to the entire record conflicting with Small’s assertions, we affirm

Small’s guilty plea, amend his sentence in part to allow for it to be served

with benefits of probation, parole, and suspension of sentence, and vacate

the $1,000 fine imposed pending a hearing that we instruct the trial court to

conduct, and hereby remand for that limited purpose.

FACTS AND PROCEDURAL HISTORY

On September 29, 2020, Brandon Small was originally charged, and

then on October 17, 2023, an amended bill of information1 similarly charged

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When Small was originally charged with carrying a concealed weapon by a convicted felon, the
predicate offense was listed as a 2021 conviction for possession with intent to distribute a Schedule 1
Controlled Dangers Substance. The October 17, 2023 amended bill changed the predicate offense to a
conviction for the same offense from 2013.

him with a single count of possession or carrying a concealed weapon by a

convicted felon, correcting the date of his predicate conviction of possession

with intent to distribute a Schedule I CDS from 2013.

At a hearing on October 17, 2023, Small’s appointed attorney

tendered an offer on his behalf where Small would plead guilty to attempted

possession of a firearm, for a sentence of two years at hard labor, suspended,

with two years active supervised probation. The trial court responded: “I

can already tell you it’s not. That’s not enough probation and not enough

backing up the sentence.” The State indicated it had previously rejected this

exact same offer on June 12, 2023. On that date, the State had

counteroffered for Small to plead guilty to the minimum sentence of 5 years

at hard labor. Small’s counsel advised the State that he was not likely to

accept the offer. At no point during this or any other proceeding was Small

promised he would receive only a probated sentence.

On November 2, 2023, Small pled guilty to the responsive charge of

attempted possession of a firearm or concealed weapon, which reduced the

length of exposure in sentencing from a maximum of 20 years to a

maximum of 7 ½ years. At the hearing, the State stated on the record that

sentencing was to be determined by the trial court. A Pre-Sentence

Investigation (“PSI”) report was ordered. Small was not promised by the

State or the judge that he would receive probation as a condition of his guilty

plea.

Small’s sentencing hearing was conducted on February 14, 2024. In

accordance with La. C. Cr. P. art. 894.1, the trial court noted its

consideration of the PSI report, Small’s personal and criminal history, and

noted three prior felony convictions. The trial court sentenced Small to six
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years at hard labor, to be served without benefits, and imposed a fine of

$1,000. During sentencing, Small was represented by newly appointed

counsel. Small stated during sentencing: “My attorney said I was going to

get probation.” The trial court responded: “No, he didn’t. There is no way

in heck you would have gotten probation with three felony convictions. And

I did a Boykinization with you. It was complete. You know what your

sentence could possibly be and you pled guilty.” Neither Small’s newly

appointed counsel nor counsel for the State corroborated his claim that he

was promised probation. Further, Small did not seek to withdraw his guilty

plea at the hearing or in his motion to reconsider sentence.

Subsequently, on March 14, 2023, Small filed a motion to reconsider

sentence, arguing that the trial court did not consider all possible mitigating

factors as listed in La. C. Cr. P. art. 894.1, and that the sentence imposed

was constitutionally excessive. Small did not address the validity of his

guilty plea in his motion to reconsider sentence. The trial court denied the

motion to reconsider sentence. Small now appeals, seeking a remand for an

evidentiary determination regarding his understanding of his guilty plea.

DISCUSSION

Small has extensive experience in the criminal justice system, and he

certainly is not the first defendant who, in hindsight, regrets having rejected

a more favorable plea offer than the ultimate sentence imposed. His sole

assignment of error focuses on his assertion it was his understanding he

would receive a probated sentence:

Assignment of Error: Small’s pro se claim that he was told by his
attorney, who was not present at sentencing, that he would receive only
probation merited an evidentiary fact finding rather than a knee-jerk
summary rejection.

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On appeal, Small argues that the statement he made at his sentencing

– that he was told by his attorney (who was not present at sentencing) he

would receive only probation – merits an evidentiary fact-finding by the trial

court. Small argues that his guilty plea that he made in reliance on counsel’s

material misrepresentation of the sentence he would actually receive was not

made knowingly and intentionally. Small argues that when he informed the

trial court that his attorney told him he would receive only a probated

sentence, Small effectively called into question the validity of his plea.

Small argues that the trial court’s refusal to address the merits of his

assertion was improper and was rendered in the absence of his attorney, who

could have confirmed or denied the allegation. Small claims this matter

should be remanded for an evidentiary hearing on whether his guilty plea

was valid due to his understanding that he would receive probation.

In contrast to Small’s expressed subjective beliefs, the objective

record reflects that at the time of sentencing, neither Small nor his attorney

objected on the basis of the validity of the plea deal, only providing his self-

serving statement that “[m]y attorney said I was going to get probation.” In

opposition to Small’s assertion, the record reflects the last plea offer to

Small was a five-year hard labor sentence, which Small rejected (and

understandably now regrets having done so). At no other time was a

probated sentence offer extended or even discussed on the record between

the Small, his counsel, the State, or the trial court. During Smith’s

Boykinization, the following colloquy took place:

THE COURT: […] Notwithstanding the provisions of Revised
Statute 14:27, whoever is found guilty of attempting to violate
the provisions of this section shall be imprisoned at hard labor
for not more than seven and one-half years and not less than

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$500 nor more than $2,500. Do you understand what the
maximum and minimum sentences could be?

THE DEFENDANT: Yes, sir.

THE COURT: Have you gone over what it means to plead
guilty with your attorney and are you satisfied with his advice?

THE DEFENDANT: Yes, sir.

There was no agreement as to sentencing and it was clear Small

understood the terms of his plea agreement, as confirmed by his attorney

when addressed by the court:

THE COURT: All right. Mr. Lawrence, are you satisfied that
Mr. Small understands the terms of his plea agreement?

MR. LAWRENCE: Yes, Your Honor.

We find that Small has failed to demonstrate that a material

misrepresentation was made to him about the sentence he would actually

receive. The record shows that Small, via his attorney, had rejected prior

plea offers from the State. Further, the record clearly shows that there was

no agreement as to his sentence, sentencing was left to the trial court, and

the sentencing range was detailed to Small. Additionally, neither Small nor

his attorney objected to the sentence at the sentencing hearing, aside from

Small’s statement claiming he was told he would receive probation. To

preserve an issue for appellate review, a party must state an objection

contemporaneously with the occurrence of the alleged error, as well as the

grounds for the objection. La. C. Cr. P. art. 841(A); State v. Mosley, 51,168

(La. App. 2 Cir. 6/21/17), 223 So. 3d 158.

We conclude the record is sufficient to determine that Small’s guilty

plea was knowingly and voluntarily made. Therefore, a remand for an

evidentiary hearing is not necessary. The record shows that Small was never

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promised he would receive probation as a part of his guilty plea. To the

contrary, the State never offered any plea agreement which did not include a

hard labor sentence, and the court advised Small’s attorney the proposed

probated sentence was not acceptable. Small does not seek to withdraw his

guilty plea to attempted possession of a firearm by a convicted felon.

Rather, he wants the opportunity to pursue a more lenient sentence than that

imposed by trial court. Again, neither Small nor his attorney lodged any

objections or requests for an amendment to his sentence based on his

asserted belief he would only receive probation, even in his motion to

reconsider sentence. We also note that by pleading guilty to the responsive

charge of attempted possession of a firearm by a convicted felon, Small’s

sentencing exposure was reduced from a maximum of 20 years at hard labor

to 7 ½ years. Even with that substantial reduction in his exposure, Small did

not receive the maximum 7 ½ year sentence. Rather, he received a mid-

range sentence of six years. Accordingly, we find this assignment of error is

without merit.

Error Patent Review:

Our error patent review reveals that the trial court improperly imposed

Small’s sentence for attempted possession of a firearm by a convicted felon

without the benefits of probation, parole, or suspension of sentence. The

trial court sentenced Small to six years at hard labor without benefit of

probation, parole, or suspension of sentence. La. R.S. 14:95.1(B) provides,

in pertinent part:

… [W]hoever is found guilty of attempting to violate the
provisions of this Section shall be imprisoned at hard labor for
not more than seven and one-half years and fined not less than
five hundred dollars nor more than two thousand five hundred
dollars.
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The Louisiana Supreme Court has consistently held that when a defendant is

sentenced under a statute that contains no prohibition of parole, the district

court must sentence the defendant to a term that does not include such a

prohibition, because parole eligibility under La. R.S. 15:574.4 is to be

determined by the Department of Corrections. State ex rel. Porter v. State,

04-2080 (La. 11/28/05), 916 So. 2d 123; St. Amant v. 19th Judicial District

Court, 94-0567 (La. 9/3/96), 678 So. 2d 536. Accordingly, Small’s sentence

should not have been imposed without benefits of probation, parole, or

suspension of sentence, because the statute under which he was convicted

contains no prohibition on parole. Small’s parole eligibility under La. R.S.

15:574.4 is a determination to be made by the Department of Corrections.

Small’s sentence, therefore, is hereby amended to six years at hard labor.

Further, a review of the record indicates that there is an error patent

regarding the trial court’s imposition of the $1,000 fine. As noted above, La.

R.S. 14:95.1(B) authorizes the imposition of a fine of not less than $500 nor

more than $2,500 upon conviction of the crime of attempted possession of a

firearm by a convicted felon. The trial court imposed a $1,000 fine on

Small. We find that Small was entitled to a hearing pursuant to La. C. Cr. P.

art. 875.1, regarding a determination of substantial financial hardship to a

defendant, prior to the imposition of the $1,000 fine. There is no evidence in

the record that Small or the trial court waived the determination of financial

hardship. Because a hearing was not held, we are compelled to vacate the

$1,000 fine and remand the matter to the trial court for the required hearing.

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CONCLUSION

For the foregoing reasons, we affirm the guilty plea of Small and

affirm, in part, his sentence of six years, with benefits in accordance with La.

R.S. 14:95.1(B), vacate, in part, the imposition of a $1,000 fine imposed

without a hearing, and remand solely for a hearing pursuant to La. C. Cr. P.

art. 875.1, to determine Small’s ability to pay any assessed fine.

SENTENCE AFFIRMED, IN PART, AND VACATED, IN PART.
CASE REMANDED, WITH INSTRUCTIONS.

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