State of Louisiana v. Melvin Sigue

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

06-527

STATE OF LOUISIANA

VERSUS

MELVIN SIGUE

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APPEAL FROM THE
SIXTEENTH JUDICIAL DISTRICT COURT
PARISH OF IBERIA, NO. 04-CR-389
HONORABLE LORI A. LANDRY, DISTRICT COURT JUDGE

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JAMES T. GENOVESE
JUDGE

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Court composed of John D. Saunders, Elizabeth A. Pickett, and James T. Genovese,
Judges.
AFFIRMED.

W. Jarred Franklin
Louisiana Appellate Project
3001 Old Minden Road
Bossier City, Louisiana 71112
(318) 746-7467
COUNSEL FOR DEFENDANT/APPELLANT:
Melvin Sigue

J. Phil Haney
District Attorney – Sixteenth Judicial District
ADA Robert C. Vines
ADA Jeffrey J. Trosclair
300 Iberia Street, Suite 200
New Iberia, Louisiana 70560
(337) 369-4420
COUNSEL FOR PLAINTIFF/APPELLEE:
State of Louisiana

GENOVESE, Judge.

On March 3, 2004, Melvin Sigue was charged by bill of information with one

count of possession of cocaine with intent to distribute, a violation of La.R.S. 40:967,

and with one count of possession of dihydrocodeinone, a schedule II narcotic, a

violation of La.R.S. 40:968.

On March 10, 2004, the Defendant entered a plea of not guilty to all charges,

and the matter was fixed for trial. After jury selection, the Defendant withdrew his

plea of not guilty and entered a best interest no contest plea to the charge of

possession of cocaine, with intent to distribute, in accordance with a plea agreement.

Pursuant to the Defendant’s plea, the State agreed to dismiss the remaining charge.

On November 3, 2005, the trial court held a sentencing hearing at which time

the Defendant orally moved to withdraw his plea of no contest, but the trial court

denied the motion. The trial court then sentenced the Defendant to imprisonment at

hard labor for a term of ten years, with credit given for time served. On November

22, 2005, the Defendant filed a motion to reconsider sentence. The trial court denied

the motion without providing written reasons. The Defendant is now before this court

on appeal, asserting (1) that the trial court erred by denying his motion to withdraw

his no contest plea; and (2) that the trial court imposed an excessive sentence. We

disagree and affirm the Defendant’s sentence.

FACTS

Because the Defendant entered a best interest no contest plea to the charge of

possession of cocaine, with intent to distribute, the facts are taken from the transcript

of the plea proceedings, as follows:

BY MR. VINES (Assistant District Attorney): The evidence in
this case, Your Honor, would indicate that on the date alleged in the Bill

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of Information, in Iberia Parish, agents with the Narcotics Division of
Iberia Parish Sheriff’s Office received information from an informant
that she could purchase cocaine or get cocaine from [the Defendant];
they set up at a local hotel, the Southland Inn. They set up the room
with a video camera. They monitored a telephone conversation between
the confidential informant and [the Defendant]. [The Defendant]
traveled in his vehicle to the Southland Inn, entered the hotel room; the
officers entered the hotel room from an adjacent room next door after
[the Defendant] was captured on tape inside the hotel room with the
confidential informant. The officers detained [the Defendant], found
him to be in possession of cocaine. They arrested him; they ran a dog
on the vehicle that he traveled to the hotel in; the dog alerted for the
presence of illegal narcotics; they searched the vehicle and found a
packet of cocaine in the vehicle. The evidence would indicate that [the
Defendant] possessed that cocaine with the intent to distribute.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for

errors patent on the face of the record. After reviewing the record, we find that there

are no errors patent.

ASSIGNMENT OF ERROR NO. 1

In his first assignment of error, the Defendant asserts that the trial court erred

by failing to allow the Defendant to withdraw his plea of no contest. In his brief to

this court, the Defendant asserts that, consistent with allegations he made in his post-

plea motions, the Defendant understood the plea agreement to include a maximum

five year sentence, and without that five year sentencing cap, he would not have

entered the no contest plea.

During the sentencing hearing, the Defendant orally moved to withdraw his

plea. During that hearing, the Defendant asserted that his plea was “coerced by

psychological persuasion.” The trial judge then asked the Defendant, “Who coerced

you?” The Defendant eventually replied that the coercion was committed by the trial

judge and his own attorney at the pre-trial conference in the judge’s chambers. The

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record indicates that the Defendant did not specify any statements made by the trial

judge, by the State, or by his own attorney that were coercive. The trial court denied

the Defendant’s motion:

BY THE COURT: If I am hearing you right, you want a motion
to withdraw your plea, which I am going to deny. Based on my memory
of this case, nothing in your case was done any differently than the other
hundreds of cases we handle.

We have pre-trial conferences. You had your day before the jury.

I strongly suggested you go to the jury.

The trial court then suggested to the Defendant that, “[i]f you are do [sic] a motion

to withdraw your plea, written and formal, you are going to have to have a little more

than you started with today.” On January 10, 2005, the Defendant filed a written

motion to withdraw his no contest plea, in which he asserted that the Boykin colloquy

clearly indicated his “disinclination” to accept a no contest plea, or any other type of

plea. However, the record indicates that this allegation is directly refuted by the

Defendant’s own statements during the Boykin hearing. When the trial court asked

him if he understood that his no contest plea would have the same effect as a guilty

plea, he answered in the affirmative. The trial court then asked him whether he was

sure that is what he wanted to do. The Defendant again answered in the affirmative.

The trial court denied the written motion on January 17, 2005, with no written

reasons.

The Defendant also raises a claim about the plea in his “motion for

reconsideration” filed on November 22, 2005. In that motion, the Defendant asserted

that “dilatory tactics [were] employed to impede his desire to proceed to trial by the

State and Defense Attorney.” However, the record indicates that the Defendant does

not specify what actions, taken either by the State or by his own attorney, constituted

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tactics designed to impede the proceedings. The record also indicates that though the

Defendant described the motion as a “motion to reconsider his motion to withdraw,”

the remaining claims in that motion involve the sentence. Therefore, we will discuss

those remaining claims below.

On December 2, 2005, the Defendant filed an application for post-conviction

relief in the trial court, wherein he asserted again that the trial court and his own

attorney employed coercion in order to persuade him to enter the no-contest plea. As

in the previous motions, the Defendant did not specify any of the alleged coercive

actions. On December 7, 2005, the Defendant filed a “motion of supplemental brief”

wherein he also claimed that he pled no contest in return for an agreement whereby

he would be sentenced to no more than five years imprisonment.

This court has determined when a defendant should be allowed to withdraw his

plea based on a mistaken belief regarding his sentence:

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. State v. Jones, 546 So.2d 1343,
1346 (La.App. 3d Cir.1989); State v. Taylor, 535 So.2d 1229, 1230
(La.App. 3d Cir.1988), quoting State v. Dixon, 449 So.2d 463, 464
(La.1984). 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. Malmay, 548 So.2d 71, 73 (La.App. 3d Cir.1989); State v.
Jones, supra.

It is also well settled that a misunderstanding between a defendant
and counsel for defendant does not have the same implication as a
breached plea bargain agreement, and this misunderstanding does not
render the guilty plea invalid. State v. Lockwood, 399 So.2d 190
(La.1981); State v. Johnson, 533 So.2d 1288, 1292 (La.App. 3d
Cir.1988), writ denied, 563 So.2d 873 (La.1990). In the absence of
fraud, intimidation, or incompetence of counsel, a guilty plea is not
made less voluntary or less informed by the considered advice of
counsel. See, State v. Johnson, 461 So.2d 1259, 1261 (La.App. 1st
Cir.1984).

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

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Additionally, “[a] misunderstanding does not have the same implications that

a breached plea bargain has,” and a defendant may not withdraw his guilty plea

simply because the sentence imposed was heavier than expected. State v. Lockwood,

399 So.2d 190, 193 (La.1981); see also State v. Robinson, 311 So.2d 893 (La.1975).

In his brief to this court, the Defendant asserts that his plea agreement was

induced by an agreement that he would not be sentenced to more than five years. In

contrast to that assertion, the plea agreement form clearly shows that the Defendant

agreed to plead no contest to possession of cocaine with intent to distribute, and, by

a handwritten notation, that the sentencing range of the offense was from two to thirty

years, with two years to be served without benefits. Additionally, during the plea

hearing, the trial court discussed the sentence range with the Defendant:

BY THE COURT: The penalty is at [La.R.S. 40:967(B)(4)(b)]:
Upon conviction shall be imprisoned to a term of hard labor for not less
than two nor more than thirty years, with the first two years being
without the benefit of probation, parole, or suspension of sentence; and
may be fined to pay not more than fifty thousand dollars.

Do you understand the penalty?

BY THE DEFENDANT: Yes, Ma’am.

Based on the plea agreement form and the plea hearing discussion, we find that

the Defendant failed to show that either the State or the trial court induced any

misunderstanding of his possible sentencing exposure. Therefore, the Defendant’s

assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 2

In his second assignment of error, the Defendant asserts that the trial court

imposed a sentence that is excessive for the particular offense and the particular

offender. The Defendant asserts that the sentence is excessive because nearly twenty

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years had passed between his prior conviction and the charged offense, because the

charged offense was non-violent, and because the Defendant was employed and

supporting his wife and her three children. Further, the Defendant asserts that the

trial court failed to adequately consider the mitigating factors present in his case.

In his brief to this court, the Defendant refers to the motion for reconsideration,

filed on November 22, 2005, and discussed in part above, as his motion for

reconsideration of sentence. In that motion, the Defendant asserts that his ten-year

sentence is excessive because it is his first drug conviction, because his prior

conviction was nine years past and he had completed his probation, and because the

trial court failed to observe, prior to imposing sentence, a twenty-four-hour delay

after denying the motion to withdraw his guilty plea. However, in his brief to this

court, the Defendant did not assert that the trial court erred by failing to observe any

time delay. Accordingly, that claim is not properly before this court.

After being charged by bill of information with one count of possession of

cocaine with intent to distribute, a violation of La.R.S. 40:967, and with one count

of possession of dihydrocodeinone, a schedule II narcotic, a violation of La.R.S.

40:968, the Defendant entered a best interest no contest plea to the charge of

possession of cocaine, with intent to distribute. At sentencing, the trial court stated:

BY THE COURT: [Your criminal record] shows that this is not
your first time.

That you have been involved with the law since a juvenile [sic].

But as an adult, sir, you have been involved with the law - - you
pled guilty to Negligent Homicide, amended down from Attempted
Second Degree Murder. I don’t know how that happened. You got
three years hard labor. You pled guilty to Armed Robbery and you got
fifteen years hard labor.

You were paroled in ‘96. Your parole closed satisfactorily, I

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suggest, in December, 2002.

You picked up another charge in 2000, Possession with Intent to
Distribute Cocaine in Iberia Parish that was nolle prossed.

Criminal Neglect of Family, that’s between you and your children.

And this offense, January 8, 2004, Possession with Intent to
Distribute Cocaine.

....

I knew that your criminal history was going to involve some
crimes of violence.

I focused in, though, on the person you have been since you were
paroled. And since your parole was terminated satisfactorily, I had to
consider the whole person.

I had to consider the fact that you are standing here today, and
they have you as the second felony offender because you plead guilty
[sic]; conviction and arrest was different on the Armed Robbery and the
Negligent Homicide.

I sentence you according to the charge and the record that you
have, nowhere near what a maximum sentence would have been.

A person convicted of possession of cocaine with intent to distribute may be

sentenced to a term of imprisonment at hard labor for not less than two years nor

more than thirty years, with the first two years to be served without benefit of

probation, parole or suspension of sentence, and may be ordered to pay a fine of not

more than fifty thousand dollars. See La.R.S. 40:967(B)(4)(b).

This court has set forth the following standard to be used in reviewing

excessive sentence claims:

La.Const. art.[ 1], § 20 guarantees that, “[n]o law shall subject any
person to cruel or unusual punishment.” To constitute an excessive
sentence, the reviewing court must find the penalty so grossly
disproportionate to the severity of the crime as to shock our sense of
justice or that the sentence makes no measurable contribution to
acceptable penal goals and is, therefore, nothing more than a needless
imposition of pain and suffering. State v. Campbell, 404 So.2d 1205

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(La.1981). The trial court has wide discretion in the imposition of
sentence within the statutory limits and such sentence shall not be set
aside as excessive absent a manifest abuse of discretion. State v.
Etienne, 99-192 (La.App. 3 Cir. 10/13/99); 746 So.2d 124, writ denied,
00-0165 (La.6/30/00); 765 So.2d 1067. The relevant question is
whether the trial court abused its broad sentencing discretion, not
whether another sentence might have been more appropriate. 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).

State v. Barling, 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035,
1042-43, writ denied, 01-838 (La. 2/1/02), 808 So.2d 331.

In order to decide whether a sentence shocks the sense of justice or makes no

meaningful contribution to acceptable penal goals, this court has held:

[An] appellate court may consider several factors including the nature
of the offense, the circumstances of the offender, the legislative purpose
behind the punishment and a comparison of the sentences imposed for
similar crimes. State v. Smith, 99-0606 (La.7/6/00), 766 So.2d 501.
While a comparison of sentences imposed for similar crimes may
provide some insight, “it is well settled that sentences must be
individualized to the particular offender and to the particular offense
committed.” State v. Batiste, 594 So.2d 1 (La.App. 1 Cir.1991).
Additionally, it is within the purview of the trial court to particularize
the sentence because the trial judge “remains in the best position to
assess the aggravating and mitigating circumstances presented by each
case.” State v. Cook, 95-2784 (La.5/31/96), 674 So.2d 957, 958.

State v. Smith, 02-719, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 786, 789, writ denied,
03-562 (La. 5/30/03), 845 So.2d 1061.

Originally, the Defendant was charged with one count of possession of

dihydrocodeinone, a schedule II narcotic, a violation of La.R.S. 40:968, in addition

to the charge of possession of cocaine with intent to distribute. Under La.R.S.

40:968, the Defendant could have received a sentence of up to five years

imprisonment, along with a fine of up to five thousand dollars, in addition to the ten-

year sentence imposed by the trial court. By pleading guilty pursuant to a plea

agreement that the State would not prosecute him for the additional charge, the

Defendant received a significant benefit by reducing his exposure to a sentence for

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that charge.

In his brief to this court, the Defendant additionally asserts that the trial court

failed to adequately consider the applicable mitigating factors. In discussing a review

of sentences, this court opined in State v. Williams, 02-707, pp. 8-9 (La.App. 3 Cir.

3/5/03), 839 So.2d 1095, 1100-01:

The trial court must state for the record the considerations taken
into account and the factual basis for the sentence. La.Code Crim.P. art.
894.1(C). Although the trial court need not refer to every factor listed
in Article 894.1(A), the record should affirmatively reflect that adequate
consideration was given to codal guidelines in particularizing the
defendant’s sentence. State v. Iron, 00-1238 (La.App. 3 Cir. 2/15/01);
780 So.2d 1123, writ denied, 01-1232 (La.3/15/02); 811 So.2d 898.
Yet, when the trial court fails to adequately address the factors of
La.Code Crim.P. art. 894.1, “the trial court’s reasoning alone will not
necessitate the need for re-sentencing as long as an adequate factual
basis is found within the record.” State v. Butler, 98-1258, p. 7 (La.App.
3 Cir. 2/3/99), 734 So.2d 680, 684.

Even if the trial court’s consideration of mitigating factors is determined by this court

to be inadequate, resentencing would not be necessary since the record contains an

adequate factual basis to support the sentence.

This court further stated in Williams, 839 So.2d 1095, 1101:

The trial court may also consider other factors not provided by La.Code
Crim.P. art. 894.1. Specifically, when the offense to which the
defendant has pled guilty inadequately describes the entire course of the
defendant’s conduct, the court may consider the benefit obtained by the
defendant through the plea bargain. State v. Lanclos, 419 So.2d 475
(La.1982). The trial court should particularly make such considerations
where the plea bargain results in a significant reduction in the
defendant’s potential exposure to imprisonment. State v. Robinson,
33,921 (La.App. 2 Cir. 11/1/00); 770 So.2d 868; State v. Waguespack,
589 So.2d 1079 (La.App. 1 Cir.1991), writ denied, 596 So.2d 209
(La.1992). In addition, the trial court may consider other criminal
activity which did not result in a conviction. State v. Texada, 98-1647
(La.App. 3 Cir. 5/5/99); 734 So.2d 854, writ denied, 00-2751
(La.6/29/01); 794 So.2d 824.

At the time of entry of the Defendant’s plea, and when he was advised of the

maximum penalty, the Defendant decided that the benefits to him in accepting the

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plea outweighed any disadvantages.

While not listing all factors to be considered when applying the sentencing

guidelines set forth in La.Code Crim.P. art. 894.1, the trial judge stated her

consideration of the provisions in her reasons for imposition of the sentence. In light

of the Defendant’s criminal history, and the substantial benefit of the elimination of

his exposure to a sentence from the dismissed charge, we find that the ten-year

sentence is not excessive.

CONCLUSION

We find that the trial court did not err in denying the Defendant’s motion to

withdraw his no contest plea, and that it did not abuse its discretion in sentencing the

Defendant to imprisonment for ten years for the offense of possession of cocaine with

intent to distribute.

AFFIRMED.

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