State of Louisiana v. David Lemelle

N1OT FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

06-371

STATE OF LOUISIANA

VERSUS

DAVID LEMELLE

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APPEAL FROM THE
TWENTY-SEVENTH JUDICIAL DISTRICT COURT
PARISH OF ST. LANDRY, NUMBER 03-K-0289
HONORABLE ELLIS J. DAIGLE, JUDGE
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J. DAVID PAINTER
JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Jimmie C. Peters, and J.
David Painter, Judges.

AFFIRMED.
Thibodeaux, Chief Judge, dissents with written reasons.

Mark O. Foster
Louisiana Appellate Project
P.O. Box 2057
Natchitoches, LA 71457
Counsel for Defendant-Appellant:
David Lemelle

Earl B. Taylor
District Attorney
P.O. Drawer 1968
Opelousas, LA 70571
Counsel for Appellee:
State of Louisiana

PAINTER, Judge.

Defendant, David Lemelle, appeals the sentences imposed in connection with

his conviction for selling cocaine. We affirm, finding that the plea agreement was not

breached and that the trial court did not abuse its discretion in imposing sentence.

According to Defendant’s brief, he was arrested after making a series of sales

of rocks of crack cocaine to undercover police officers. On October 25, 2005,

Defendant pled guilty to three counts of distribution of cocaine, in violation of

La.R.S. 40:967(A). As a part of the plea bargain agreement, the State agreed to

dismiss one count of false representation of a controlled dangerous substance in

violation of La.R.S. 40:971. The State also agreed to recommend a sentencing cap

of ten years on each count and that the sentence on each count be served concurrently

with the others and concurrent with any other sentence Defendant was serving at the

time.

The trial court sentenced Defendant to three concurrent fifteen-year prison

terms with two years of each sentence to be served without the benefit of parole,

probation, or suspension of sentence. The court ordered that the sentences be served

concurrently with the sentence Defendant was serving at the time and with any other

sentences which might be imposed. The court gave Defendant credit for time served

from the date of the arrest. Defendant made an oral motion to reconsider the

sentences, and the court denied it in open court.

Defendant appeals the sentences. He alleges that the plea agreement was

breached or, alternatively, that the sentences are constitutionally excessive under the

facts of the case.

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Plea Agreement

Defendant asserts that the plea agreement was breached when the trial court

sentenced him to three fifteen-year terms of imprisonment. He argues that, in

exchange for his plea, he was to be sentenced to no more than ten years on each

count. He further argues that the trial court did not give adequate reasons for failing

to follow the State’s sentencing recommendation. He asks that this court remand the

matter to the trial court for resentencing within the sentencing cap.

A guilty plea is invalid, or constitutionally infirm, when a defendant is
induced to enter a plea of guilty by a plea bargain agreement, or what he
reasonably or justifiably believes was a plea bargain agreement, and the
terms of the bargain are not satisfied. It is well settled that if a
defendant’s misunderstanding is not induced by or attributed to
representations made by the district attorney or the trial court, there is
no ground for invalidating the guilty plea.

State v. Roe, 05-116, p. 8 (La.App. 3 Cir. 6/1/05), 903 So.2d 1265, 1271, writ denied,

05-1762 (La. 2/10/06), 924 So.2d 163 (citations omitted), (quoting State v. Readoux,

614 So.2d 175, 176-77 (La.App. 3 Cir. 1993)).

The plea form signed by Defendant on October 6, 2005 shows that he agreed

to plead guilty to three counts of distribution of cocaine. In exchange, the State

agreed to dismiss a fourth count under which Defendant was charged with

distribution of a false representation of a controlled dangerous drug. Under the

section for the District Attorney’s recommendations it is written that there are no

recommendations. However, the form contains the marginal notation: “10 year cap

w/concurrent sentences.”

At the plea hearing, the trial court told Defendant that it was not bound by the

plea agreement. The court stated that, even though the plea agreement form noted a

sentencing cap of ten years, other factors, including information from the pre-

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sentence investigation report, would determine the sentence imposed. Defendant was

asked how many times he had been arrested and how many times he had been

convicted. He replied that he had been convicted only once before. The judge stated

that, if the pre-sentence investigation told him something different, he was not bound

by the plea agreement. Defendant indicated that he understood and agreed with that.

At the sentencing hearing, the trial court stated that it noted a previous felony

charge for possession of cocaine and three other pending charges on drug offenses.

It further noted that Defendant had had nineteen “other brushes with the law,”

including those he had previously noted. The trial court then sentenced Defendant

to three concurrent fifteen-year terms of imprisonment.

The trial court made it clear that the length of the sentences depended on the

information contained in the pre-sentence investigation report. A trial court is not

bound by the sentencing recommendation made by the State or a defendant. State v.

Rios, 95-961 (La.App. 3 Cir. 3/6/96), 670 So.2d 708. The trial court did not breach

a promise that it would sentence Defendant to ten years on each count. The court

gave sufficient reasons for its decision not to follow the State’s recommendation as

to the length of the sentences.

Excessive Sentences

Defendant argues, in the alternative, that the sentences imposed were excessive

under the circumstances of the case.

On review, the question is not whether another sentence would
have been more appropriate, but whether the trial court abused its
discretion when it imposed the sentence. State v. Cook, 95-2784
(La.5/31/96); 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615,
136 L.Ed.2d 539 (1996). Furthermore, “[t]he trial judge may take into
consideration the fact that the Defendant’s actions were more serious
than the conviction reflects.” State v. Garner, 99-160, p. 5 (La.App. 3
Cir. 6/2/99); 741 So.2d 771, 774. We are also mindful that “[a] plea

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bargain which brings about substantial benefits to a defendant is a
legitimate consideration in sentencing.” State v. Bates, 29,252, p. 11
(La.App. 2 Cir. 1/22/97); 711 So.2d 281, 287.

State v. Charles, 02-443, p. 13 (La.App. 3 Cir. 10/2/02), 827 So.2d 553, 561, writ

denied, 02-2707 (La. 3/28/03), 840 So.2d 569.

Defendant pled guilty to three counts of distribution of cocaine. Louisiana

Revised Statutes 40:967(A) provides for imprisonment of no less than two years and

no more than thirty years. Defendant was sentenced to one-half the possible term of

imprisonment. However, depending on the circumstances of the case, a sentence

which falls within the statutory limits can, nonetheless, be excessive if it would shock

the sense of justice. State v. Jeansonne, 06-263 (La.App. 3 Cir. 5/31/06), 931 So.2d

1258.

The fifth circuit, in State v. Lisotta, 98-648 (La.App. 5 Cir.
12/16/98), 726 So.2d 57, writ denied, 99-433 (La.6/25/99), 745 So.2d
1183, held that a reviewing court should consider three factors in
reviewing the trial court’s sentencing discretion: 1) the nature of the
crime, 2) the nature and background of the offender, and 3) the sentence
imposed for similar crimes by the same court and other courts.

State v. Touchet, 06-281, pp. 3-4 (La.App. 3 Cir. 5/31/06), 931 So.2d 1264, 1267.

As previously stated, Defendant was convicted of three counts of distribution

of cocaine. He had an extensive history of criminal activity which included several

arrests for dealing drugs and, at the time of sentencing, one other conviction for

possession of cocaine. Defendant’s criminal history indicates that he makes his living

dealing drugs. Additionally, the plea agreement worked to Defendant’s benefit.

Another charge was dismissed, and the trial court went along with the State’s

recommendation that the sentences be served concurrently in spite of circumstances

which would have allowed for consecutive sentences. The court also ordered that the

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sentences be served concurrently with a sentence Defendant was already serving and

with any other sentences he might be ordered to serve.

A review of sentences imposed in connection with convictions for the same

offense indicates that a fifteen-year sentence is not an uncommon term of

imprisonment for people with a history of drug convictions. See Charles, 827 So.2d

553; State v. Myers, 99-677 (La.App. 3 Cir. 12/8/99), 753 So.2d 898, writ denied, 00-

53 (La. 6/23/00), 765 So.2d 1036.

The trial court did not abuse its discretion in sentencing Defendant.

CONCLUSION

The trial court did not breach the plea agreement. It gave sufficient reasons for

not following the District Attorney’s sentencing recommendation. Further, the court

did not abuse is discretion in sentencing Defendant. The sentences imposed are

within the statutory limits, are justified by his prior criminal history, and are

comparable with sentences imposed for similar crimes. Therefore, the sentences are

affirmed as imposed.

AFFIRMED.

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STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

06-371

STATE OF LOUISIANA

VERSUS

DAVID LEMELLE

THIBODEAUX, Chief Judge, dissenting.

The United States Supreme Court has aptly observed that:

The disposition of criminal charges by agreement between
the prosecutor and the accused, sometimes loosely called
‘plea bargaining,’ is an essential component of the
administration of justice. Properly administered, it is to be
encouraged. If every criminal charge were subjected to a
full-scale trial, the States and the Federal Government
would need to multiply by many times the number of
judges and court facilities.

Disposition of charges after plea discussions is not
only an essential part of the process but a highly desirable
part for many reasons. It leads to prompt and largely final
disposition of most criminal cases; it avoids much of the
corrosive impact of enforced idleness during pre-trial
confinement for those who are denied release pending trial;
it protects the public from those accused persons who are
prone to continue criminal conduct even while on pretrial
release; and, by shortening the time between charge and
disposition, it enhances whatever may be the rehabilitative
prospects of the guilty when they are ultimately
imprisoned.

Santobello v. New York, 404 U.S. 257, 260-261, 92 S.Ct. 495, 498.

Santobello also recognized there is no absolute right to have a guilty plea

accepted and that a court may exercise its judicial discretion in rejecting a plea. Id.

at 262. However, Santobello equally recognized “that when a plea rests in any

significant degree on a promise or agreement of the prosecutor, so that it can be said

to be part of the inducement or consideration, such promise must be fulfilled.” Id.

Due process is denied, State v. Hayes, 423 So.2d 11 (La.1992), and the constitutional

right to fairness is abridged, State v. Redfearn, 441 So.2d 200 (La.1983), when the

State or a court fails to comply with a validly-accepted plea agreement and a

defendant is induced to plead guilty. That is exactly what happened in this case. The

trial judge’s cautionary remark to the Defendant that he was not bound by the plea

agreement was predicated on the fact that the Defendant had one prior felony

conviction. The sentencing transcript supports the fact that a deal between the

prosecutor, and the defendant, and the court was consummated.

While I agree that the trial judge has the ultimate responsibility to

impose a sentence and does not have to accept the joint recommendation of the State

and a defendant, the trial court is bound by the plea agreement if the trial court was

a participant. See, e.g., State v. Redfearn, 441 So.2d 200.

The Defendant’s written plea agreement contained a recommendation of

a ten-year sentencing cap with concurrent sentences. The trial judge asked the

Defendant if he had been promised any leniency other than what was contained in the

plea agreement. The Defendant replied that he had not been promised anything else.

The trial court told the Defendant that:

“I realize that on this Written Plea Agreement there are
certain items provided, one of which is a ten-year cap with
concurrent sentences dealing with the crimes in this
matter. You realize that if I had a Pre-Sentence
Investigation or other evidence that’s showing other things,
then the court is obviously not bound by this sentence?
You do realize that?”

(emphasis added).

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In the context of the plea agreement at issue in this case, “other things” clearly

referred to the existence of more than one felony conviction. The Defendant

responded affirmatively.

The State then asserted that “[t]he judge is operating on the assumption

that you have only one prior, right?” (emphasis added). After a brief discussion, the

trial judge asserts:

“I am operating on that premise, then. If the Pre-Sentence
Investigation tells me something different, I am not going
to be bound by what’s down here as to this ten-year cap.
Do you understand that? In other words, if I get a Pre-
Sentence that shows you’ve been convicted three times,
and I’m taking that as an example, it can be one time, it can
be two times but if I get a Pre-sentence that indicates that
you’ve been convicted two times, you’re telling me once,
then I am not bound by this agreement. Do you understand
that?”

(emphasis added).

Clearly, this colloquy demonstrates the judge agreed to the ten-year cap

based on the premise that the Defendant had only one prior conviction. Nothing in

the Pre-Sentence Report indicated more than one prior conviction. It did indicate

other crimes. Those other crimes for which there were no convictions are what the

judge relied upon in not agreeing to the ten-year cap. A fair reading of the trial

transcript demonstrates that the judge did not say that he was going to take into

consideration factors other than a prior conviction. If there was more than one prior

conviction, then the ten-year cap would not apply. That was the basis of the tripartite

agreement.

Simply stated, a deal is a deal. In this case, the trial court breached its

promise that it would sentence the Defendant to concurrent ten-year sentences as

indicated on the written plea agreement.

For the foregoing reasons, I dissent.

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